Retained EU Law (Revocation and Reform) Bill
Tuesday 25th October 2022
(1 year, 6 months ago)
Commons ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts
Madam Deputy Speaker (Dame Eleanor Laing)
I inform the House that the reasoned amendment in the name of the Leader of the Opposition has been selected.
Patrick Grady (Glasgow North) (Ind)
On a point of order, Madam Deputy Speaker. I have the Bill in front of me. It states that it is presented to the House by “Mr Secretary Rees-Mogg”, but the right hon. Member for North East Somerset (Mr Rees-Mogg) is sitting on the Back Benches. Can you explain to the House how on earth we can possibly proceed with what was essentially a vanity project for that particular individual? Would it not be better for him to try his luck with a 10-minute rule Bill, or in the private Members’ Bill ballot?
Madam Deputy Speaker
The hon. Gentleman gets the prize for making the best point of order of the day, and possibly of the month or Session. His observation about what is printed in the Bill is correct, as is his observation that the right hon. Gentleman to whom he refers is sitting in his previous customary place on the Back Benches. At the point the Bill was printed, the Secretary of State was the right hon. Member for North East Somerset (Mr Rees-Mogg), but government is seamless. The name of the right hon. Gentleman, then Secretary of State, being on the Bill is of historical importance, but of no constitutional importance today. Other Ministers are now ready to speak at the Dispatch Box representing the Government, and all Government Ministers are Ministers—[Interruption.] I hear a sedentary interruption from somewhere of “for now”, but that is exactly my point: individuals are transient; government is permanent—[Interruption.] Permanent during the space of one Parliament. As we are in that same Parliament, the personal position of the right hon. Member for North East Somerset is, I am sorry to tell him, irrelevant for the moment. I call the Minister, who last week was a new Minister and is now a seasoned Minister, to move Second Reading.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Dean Russell)
I beg to move, That the Bill be now read a Second time.
News of my promotion to Secretary of State has been exaggerated, but as Minister I will do my best this afternoon. I pay tribute to—I will not say predecessor—the former Secretary of State, my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg). Without his staunch and hard work, and his passion to help families and businesses across the country to survive the difficult winter that is coming, and ensure that the energy support would be there, a lot of families would be very worried this winter. I pay tribute to him for his work. It is honourable of him to be here during this speech.
On 31 January the Government announced plans to bring forward the Retained EU Law (Revocation and Reform) Bill, which is the culmination of the Government’s work to untangle the United Kingdom from nearly 50 years of EU membership. Through the Bill we will create a more agile and innovative regulatory environment that would not have been possible were we still a member of the European Union. That will benefit people and businesses across the United Kingdom. The Government have achieved much since leaving the European Union and taking back control of money, borders, laws and our waters. We have created a world-leading covid vaccine programme, and signed 35 deals with 70 countries around the world. We accept that there is still more to do, and in January this year we set out our approach to becoming the best regulated economy in the world.
Sir Desmond Swayne (New Forest West) (Con)
How will the Minister answer the intemperate correspondence to which many of us have been subjected, announcing that the Bill will provide for the rape of the countryside and the destruction of wildlife? Will he be able to persuade people that this is a proportionate measure that will allow us to choose the regulations by which we wish to live, and judge them on their merits?
Dean Russell
I think that is the longest intervention I have ever heard my right hon. Friend make. He is absolutely right. The premise of the Bill is to ensure that we do what we have always done, which is to be the best place in the world to live, and that includes our environment. It is an absolute priority of this Government that the United Kingdom will be the best place to start and grow a business, to live, and to ensure that our environment around us is supported at all times. Within the Bill are powers that will allow us to make good on that promise.
Several hon. Members rose—
Dean Russell
I will give way in a little while; I want to make some progress. The Bill will enable outdated and often undemocratic retained EU law to be amended, repealed and replaced more quickly and easily than before. That will remove burdens on business, and create a more agile and sustainable legislative framework to boost economic growth.
Stella Creasy (Walthamstow) (Lab/Co-op)
Will the Minister be honest with the House? He says that the Bill will allow us to have the highest standards, but clause 15 formally confirms that we can only go down, and we can only have a race to the bottom, because it talks explicitly about not increasing burdens. Will the Minister tell the House who voted to lower our environmental protections in the referendum?
Dean Russell
I can be very honest in saying that the Bill will ensure that we have the highest standards, and within the process of this framework we will ensure that the burdens of delivering the best possible regulatory scheme are removed, while ensuring that we have the highest standards across all we do.
Several hon. Members rose—
Dean Russell
I will come back to the hon. and learned Lady shortly.
As has been alluded to, some naysayers have asked, “Why is the Bill needed?” As a consequence of the oddities created by our previous EU membership, there are currently insufficient powers to make subordinate legislation to enable the amendment or removal of retained EU law from the statute book. The practical result is that standards do not get updated when they should be. Regulation, rather than adapting to support the needs of businesses in stable and emerging markets, ends up holding British businesses back. That is simply wrong, particularly when businesses and consumers face high energy bills and food prices as well as the many other challenges that we know are down to world events, and in particular the awful actions of President Putin. With our new-found freedom, it is important that we take the necessary powers to bridge the gap and reform legislation in a timely manner.
Maria Caulfield (Lewes) (Con)
The Minister is doing a fantastic job at the Dispatch Box. At oral questions this morning, Opposition Members were complaining about red tape and bureaucracy hamstringing small businesses. Does he agree that that means they will hopefully support the Bill in the Lobby tonight?
Dean Russell
My hon. Friend is absolutely right. The Bill is about cutting red tape where it is not needed and ensuring that businesses can spend more time transforming their business than filling out forms. We have a great opportunity to deliver for them and for people across the nation.
Dean Russell
I will make some progress and give way in a while.
As I said, rather than adapting to support the needs of business, regulation has potentially been holding British businesses back, and we have an opportunity to deal with that. To ensure that the devolved Administrations can also seize fully the benefits of Brexit, we are providing them with the tools to reform retained EU law by extending the majority of powers in the Bill for use by devolved Administrations. It is a great opportunity—
Several hon. Members rose—
Dean Russell
I am sure that many hon. Members are standing up to say how pleased they are with that announcement.
Sammy Wilson (East Antrim) (DUP)
As someone who fought to free ourselves from the shackles of Brussels, I welcome the legislation. Does the Minister recognise that the passing of the Bill will make it even more imperative that the Northern Ireland protocol be removed, because those freedoms would not be available to the Northern Ireland Administration, which will still be bound by EU laws?
Dean Russell
The right hon. Member makes an important point. This is about the United Kingdom and making sure that every single person across this great nation, wherever they live, can do and be their best in all that they do.
John Redwood (Wokingham) (Con)
I strongly support the Bill and congratulate the Minister on his presentation. I hope that the Government will urgently reform the energy directives and regulations that have made us cruelly import-dependent such that we now have to buy excessively expensive energy on the world market when we should drive for self-sufficiency.
Dean Russell
I thank my right hon. Friend for his intervention. It is ultimately about ensuring that we are doing the right thing by people across the country. The truth is that the Bill is a framework, and this is not the time to debate the minutiae and the details as there will be plenty of opportunities for that in Committee, the future stages and statutory instruments. We should welcome the Bill’s framework, which is about taking back control for the country.
Joanna Cherry
The Minister said that the Bill is about doing the right thing by people. Earlier, I understood him to say that there will be no diminution in rights as a result of it. However, has he not looked at clause 15(5), which makes it clear that, far from creating higher standards, replacement legislation can only keep standards the same or lower them? That is the case, is it not?
Dean Russell
I very much enjoyed serving with the hon. and learned Lady on the Joint Committee on Human Rights and understand that she is incredibly focused on detail. There will be much time for her to explore that further if she makes a speech; I hope that she will. The point of the framework is to transfer EU law into UK law and make sure that it does what it should. If she is happy with EU law where that is retained, it will be written in UK law.
Dean Russell
I will come back to the hon. and learned Lady in a little while.
Dame Andrea Leadsom (South Northamptonshire) (Con)
Has my hon. Friend noticed, as I have, that Opposition Members seem to think that the only place that can possibly regulate, possibly have high standards and possibly deliver laws for this land is the EU? Does he agree that, actually, we have created much better regulation and far stronger standards that are much more flexible and suited to these islands than the EU and that we should carry on doing that?
Dean Russell
I thank my right hon. Friend—she is a very good friend—for her comments. The Bill is ultimately about making sure that we continue to do what we have done for decades, if not centuries: exporting high-quality products, exporting doing the right thing and exporting making sure that the world is a better place.
Several hon. Members rose—
Dean Russell
I will continue; I have taken quite a few interventions.
We have carefully considered how the Bill will affect each of the four great nations. We recognise the paramount importance of our continuing to work together as one on important issues, including environmental protections. The Bill will not weaken environmental protections.
Mr Robin Walker (Worcester) (Con)
My hon. Friend is doing a great job. It is right that, six and a half years after the referendum, we should get on with the process of taking control of our laws.
I served for two years in the Department for Exiting the European Union and gave many assurances in those years that, as we left the EU, our environmental standards and animal welfare regulations would be improved and strengthened, not weakened. Will he assure me that Ministers at the Department for Environment, Food and Rural Affairs will meet the Conservative Environment Network and our Wildlife Trusts to ensure that nothing is done in the process of the Bill to undermine our leadership in the nature protection space?
Dean Russell
I thank my hon. Friend and applaud the briefing that the CEN gave Members earlier today. Ultimately, this is about making sure that we are the best place in the world to live. On meetings, I assure him that we will engage widely—including with Opposition Members—and deliver on those promises. We will use the powers in the Bill to ensure that our environmental law is functioning and able to drive improved environmental outcomes, with the UK continuing to be a world leader in environmental protection.
Caroline Lucas (Brighton, Pavilion) (Green)
The Minister said earlier that the Bill was proportionate, but that is exactly what it is not, particularly given the sunset clause that means that DEFRA will have to go through revising and amending more than one piece of law a day between now and the end of next year. It is not proportionate; it is indiscriminate. It is also ideologically driven. Does he agree that DEFRA staff have better things to be doing, given that they are already late on the river basins management programme and the 25-year environment plan, and that the idea that the Department has the staff and resources to do that is irresponsible?
Dean Russell
I totally disagree, but I thank the hon. Lady for the intervention. Let me remind her that the Conservatives were the green party before the Green party. We are the party of the environment and will continue to be so. We were the party that made sure that businesses will not be able to put sewage in our waters, despite many Opposition Members making out that we voted for sewage. We did not—we made absolutely made sure that we are protecting our waterways. We are protecting our green fields and our land from top to bottom.
Several hon. Members rose—
Dean Russell
I will continue, because I have a lot to get through. I am sure that hon. Members have worked incredibly hard on their speeches, and I would like to listen to them.
As I said, we will use the Bill’s powers to ensure that our environmental law is functioning and able to drive improved environmental outcomes. The former Secretary of State did an excellent job recently meeting representatives of environmental groups alongside the environment Minister and assured them of the work that we will do. I am sure that that will continue.
As well as maximising the benefits of Brexit across the UK economy, the Bill will enable the Government to take the necessary steps to put our statute book on a sustainable footing by removing or replacing more than 2,500 laws derived from the UK’s membership of the EU, many of which are outdated and unduly burdensome. Earlier this year, the former Secretary of State—it irks me to have to say that—invited the House and members of the public to review the mass of legislation for themselves through the retained EU law dashboard, which was published in June and is available on gov.uk. That treasure trove of reform opportunities has acquired more than 100,000 views so far. I thank the public, businesses and civil society organisations for their invaluable views and input.
Together, we have identified where retained EU law must be excised from our statute book. Now, using this Bill, we will go further and faster to capitalise on the opportunities of Brexit. We will achieve that by addressing the substance of retained EU law through a sunset which means retained EU law will fall away on 31 December 2023 unless there is further action by Government and Parliament to preserve it. A sunset is the most effective way to accelerate reform across over 300 policy areas and will incentivise the rapid reform and repeal of retained EU law.
Hilary Benn (Leeds Central) (Lab)
What is the justification for allowing Ministers to scrap legislation that currently applies simply by doing nothing because of the sunset clause? I have never seen anything like it before. What is the justification for allowing law to fall away if Ministers decide, “Well, I’m not going to address it at all”?
Dean Russell
I thank the right hon. Gentleman for his comments. He was a staunch advocate of not leaving the EU, and I appreciate that that is his view. To answer the question, the goal here is that we are looking at all those laws. It is actually public on the dashboard; there is an opportunity for everybody to engage. On the framework of the Bill, there will be a Committee stage, and the ability to have parliamentary scrutiny is huge. I would make one other point, however. At what point were we able to scrutinise these laws when part of the EU? We were not. All those laws were put in without scrutiny and without the ability for us to do the work we needed to do. We are now taking back control to this country to deliver on the promises we made to the people and on the referendum they voted in.
Several hon. Members rose—
Dean Russell
I will not take many more interventions. I will continue for a short while.
Prior to 31 December 2023, the Government will determine which instruments should be preserved, which should be reformed and which should be revoked. I commend colleagues from across all Departments for their gallant efforts in establishing ambitious reform plans that will help to drive growth. We are already in the process of removing outdated retained EU law in financial services through the Financial Services and Markets Bill and have already repealed outdated rules, which has enabled us to capitalise on tax freedoms.
Patrick Grady
I thank the Minister for giving way. He is making the case for the constitutional importance of the Bill. As I asked him in Westminster Hall last week, will he not accept that the timetable proposed by the Government in the programme motion is wholly inadequate for the scrutiny of a Bill of such constitutional importance? If he will not commit the Bill to a Committee of the whole House, can he at least guarantee that we will have longer than a day on Report, so that it can receive the scrutiny it really deserves?
Dean Russell
I thank the hon. Member for his comments and for taking part in the debate last week. To be honest, we would have had more time today to debate if we had not played silly games earlier with votes and points of order, although I accept that they were important.
Several hon. Members rose—
Dean Russell
I will continue, if I may.
Prior to the date in the Bill, the Government will determine which instruments should be preserved, which should be reformed and which should be revoked. I repeat that because it is important. I commend colleagues across Departments for helping to ensure that we are driving growth. We are already in the process of removing outdated retained EU law in many areas. The Procurement Bill, for example, which is currently in the other place, replaces the EU procurement regime with a streamlined British approach, and of course DEFRA has made great headway over the past two years, taking us out of the common fisheries policy and common agricultural policy and pushing the boundaries of innovation thanks to Brexit, with two new pieces of legislation on gene editing.
The Bill will help us to sweep away outdated and obsolete EU legislation, paving the way for future frame- works better suited to the needs of the UK, including on energy, emissions trading, services and consumer law. Many in this House have claimed that changes to individual pieces of legislation will not make a difference. I could not disagree more. We must address the EU legislation holistically. By making marginal improvements across a whole host of regulation, we can foment a revolution in the margins and radically improve the UK’s competitiveness and productivity.
Several hon. Members rose—
Dean Russell
I have given way quite a lot today, and I want to at least get to the end of my speech while I am still in post!
For example, there are 33 individual pieces of retained EU law relating to eco-design requirements. I posit that it would be easier for business to comply if there was just one piece of legislation covering all relevant goods, providing a strong market incentive for businesses to increase energy efficiency. There are countless examples across Whitehall of where the Bill enables positive changes, from improving the clinical trial process to establishing sensible and proportionate artificial intelligence regulation, while still being very mindful of the rules around the impact on the culture sector and on many others.
Sir Robert Neill (Bromley and Chislehurst) (Con)
I am very grateful to the Minister for giving way and I congratulate him on doing such a sterling job under such difficult circumstances.
I recognise that it will be necessary to make changes to retained EU law that was never intended to be permanent, and there are good reasons for doing that, but there is a concern that doing it in the way proposed will add to legal uncertainty. The former Secretary of State, my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg), kindly wrote to me as Chair of the Justice Committee to say that officials from the Department had engaged with the judiciary on how the Bill will work in relation to the interpretation of retained EU law and changes to it. Can the Minister help me, having had the benefit of discussions with the judiciary, with how the proposed changes will improve legal certainty, which of course is itself important for business certainty?
Dean Russell
I thank my hon. Friend for his comments. One of the key things for certainty is having a clear date and a point when it will all happen. Uncertainty often comes by not knowing. We were going to have to make sure that the sunset clauses came in at some point. If I am still in post, I will gladly continue to meet him. If I am not, I will make sure that the person who comes in after me—a bit like “Doctor Who” and David Tennant emerging from the TARDIS this week—continues that work. I look forward to that.
After consideration of the retained EU law dashboard, the former Secretary of State took the decision to exclude Acts of Parliament and Acts of the devolved legislatures from the sunset. The content of those Acts largely concerns the operation of domestic policy. As they have all been properly scrutinised and reflect the will of the public as enacted through democratically elected representatives, we will make sure of that. Given the practice of qualified majority voting in the EU, the same cannot be said for most other parts of retained EU law. That is why it is right we have the review and make plans to amend that law now. I remind Members that our constituents voted for us to be here to make decisions on laws that affect them. The idea that we should not be doing that and the idea that we are trying to say, “Let us keep it as it is” feels very wrong to me.
I accept, however, that some retained EU law in the scope of the sunset is required to continue to operate our international obligations, including the trade and co-operation agreement, the withdrawal agreement and the Northern Ireland protocol. Therefore, 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, so that the public can scrutinise it. However, the sunset and the powers in the Bill are not enough to fully reclaim our parliamentary sovereignty. That is why I am also delighted to confirm once again that the Bill abolishes the principle of the supremacy of EU law. It is just absolutely absurd that in certain situations foreign law takes precedence over UK statute passed before we left the EU.
Several hon. Members rose—
Dean Russell
I am afraid I will make progress, because I can see the Opposition Front Bencher itching to get up and speak and comment on my speech.
By ending this constitutionally outrageous and absurd provision on 31 December 2023, we will ensure that Acts of Parliament passed during our membership of the EU will be returned to being the highest law in the land. The will of those past Parliaments as expressed through primary and secondary legislation will no longer be secondary to the will of Brussels.
The Bill will unlock growth across the United Kingdom. As we seize the benefits of Brexit and restore a sovereign approach to law and regulation, we can again legislate in support of the UK’s interests, rather than those of Brussels. This is of particular importance now, as our country pushes forward to recharge our economy in order to make the UK the best place in the world to run a business—[Interruption]—whether you want to live here, whether you want to walk in a beautiful green field in a park in our wonderful, beautiful lands of the UK—[Interruption]—or whether you want to start a business or grow a business—[Interruption.]
Madam Deputy Speaker (Dame Eleanor Laing)
Order. I have let this run, but I have had enough now. The hon. Member for Lewisham West and Penge (Ellie Reeves) must stop shouting at the Minister. It is not appropriate behaviour and it gets us nowhere. She will have an opportunity to make a speech. If the Minister wishes to take her intervention, he will take it as he has taken other interventions, but she must stop shouting at him.
Dean Russell
Thank you, Madam Deputy Speaker. I have no issue with Opposition Members shouting, but I think that they perhaps sometimes do it a little too much. We want to make this country the best in the world; I have taken many interventions and hopefully that has been recognised. I commend the Bill to the House.
Madam Deputy Speaker
I call Justin Madders—[Interruption.] Forgive me—I was totally prepared for a change of personnel on the Government Front Bench, but I had no idea that there would be one on the Opposition Front Bench. I call Jonathan Reynolds.
Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)
I beg to move an amendment, to leave out from “That” to the end of the Question and add:
“this House declines to give a Second Reading to the Retained EU Law (Revocation and Reform) Bill because, notwithstanding the need to address the future status and suitability of retained EU law following departure from the European Union, the Bill creates substantial uncertainty for businesses and workers risking business investment into the UK, is a significant threat to core British rights and protections for working people, consumers and the environment as signalled by the wide body of organisations opposed to the Bill, could jeopardise the UK’s need to maintain a level playing field with the Single Market under the terms of the Trade and Cooperation Agreement, and contains powers which continue a dangerous trend of growing executive power, undermining democratic scrutiny and accountability.”
I thank the Minister for stepping in to do a speech at the last minute; that is not an easy task.
Before I turn to the detail of the Bill and the reasoned amendment that has been tabled in my name and those of my hon. Friends, it is important to revisit the grotesque chaos that we have had over the past few weeks, because it goes to the heart of why the Bill should not become law. The Bill asks the British public to place blind faith in the Government—to trust them with our rights at work, our environmental protections and our legal rights—but why would we trust a Government who have crashed our economy, driven up the cost of borrowing, dashed the hopes of homeowners across the country and hiked up mortgages for the rest? This is the Government who pledged to ban fracking and then voted for it, and who sacked their Chancellor, their Home Secretary and finally, their Prime Minister, only to try—but fail—to bring back the Prime Minister that they sacked before while he is still under investigation by the House. We find ourselves debating a Bill that would transfer vast powers to the Business Secretary, covering every part of national life, yet we do not even know who that Business Secretary will be. It is clear for all to see that where the Conservatives go—like a bull in a china shop—chaos follows. It is just not good enough.
I listened carefully to the Minister’s speech. He cannot assuage the concerns of any of us, on both sides of the House, about the Bill. I do not think he denied that the sunset clause will be a huge source of uncertainty for businesses and workers. Contrary to his claims, rather than taking advantage of the freedoms that Brexit could conceivably grant the UK, that reckless approach threatens many of the core rights and protections that the British people currently enjoy. Far from taking back control, the Bill risks diminishing democratic scrutiny and accountability in key areas of British law.
Ellie Reeves (Lewisham West and Penge) (Lab)
I thank my hon. Friend for giving way, unlike the Minister. Does my hon. Friend share my concerns about the lack of a reference to employment rights in the Minister’s speech? Limits on working time, the right to paid holiday, rights for temporary and agency workers and parental leave all derive from EU law. Those fundamental workers’ rights could all disappear under the Bill. Given that the previous Business Secretary, the right hon. Member for North East Somerset (Mr Rees-Mogg), stated that holiday pay is not an “absolute…right”, does my hon. Friend agree that we need confirmation that our hard-fought-for employment rights will be protected?
Jonathan Reynolds
My hon. Friend is an expert in such matters and she is absolutely right to highlight those concerns. That is what the Bill is about. It is not about Brexit—Brexit has happened; it is a fact. For most people, there is no appetite to revisit those arguments. Although many people have strong views on how it has been done and how the Government have not delivered on the promises that they made—I understand that—the task for us in the House is to get on and make it work. It is therefore important to recognise that the Bill is not about whether people think Brexit was a positive or negative thing. It is about whether we wish to give the Government the power to sweep away key areas of law that are of great importance to all our constituents with no scrutiny, no say and no certainty over their replacements. Put simply, do we wish to bring more Conservative confusion and chaos into the British economy?
Pete Wishart (Perth and North Perthshire) (SNP)
We now know that Labour is a party of Brexit, no different from the other major party of Brexit, but how on earth do we make something that is unworkable work in the way that the hon. Member describes? Brexit is not a political strategy; it is an ideological venture and mission. He may have given up on getting back into the European Union, but we on the Scottish National party Benches certainly have not.
Jonathan Reynolds
I understand the hon. Member’s position. I simply say that, if we were to lock ourselves into a permanent debate on this matter, it would produce many of the negative consequences that have already come from this process. I appreciate that, from an SNP perspective, it does not see uncertainty as a problem, because its plans would, in many ways, produce even more uncertainty. However, I do not think what he suggests is a serious way forward. I am happy to have that argument because I do not think that it is a practical set of proposals.
The past four weeks in British politics have been nothing short of a disgrace, but the UK’s problems predate the past four weeks. As we heard earlier in Business, Energy and Industrial Strategy questions, at the heart of the poor economic performance over the past 12 years is the fact that our business investment has been too low. Even before the mini-Budget set fire to the British economy, the UK had the lowest rate of business investment in the G7, despite having the lowest headline rate of corporation tax.
Business is crying out for stability, for long-term political commitment and for consistent policy. That is why we on the Opposition Benches have published our industrial strategy and why the chairman of Tesco recently said that only Labour is on the pitch when it comes to growth.
The Conservatives’ imaginary view of business leaders who want deregulated, unpredictable, pure market forces simply does not sit with the established facts. Business likes certainty, but the Bill throws thousands of pieces of legislation into the grinder with no idea which and how many of them will survive. Why would a business have any confidence in our country when it has no idea what the rules will be that govern every part of its operation in 12 months’ time? Once again, this is a matter of trust. After the chaos of the past few weeks, Government Members are foolish to think that any business leader would now trust them with this seismic task.
John Redwood
Can the Opposition spokesman name a single regulation or directive of the EU that he thinks should either be repealed or could be improved?
Jonathan Reynolds
I certainly can. I have always said, for instance, that Solvency II could be improved by having to do the regulation on a basis in this country. If we look at the Government’s approach to that area through the financial services and markets legislation, we see that they are taking exactly what might be termed a more sensible approach, going on a sector-by-sector basis, putting forward positive proposals, rather than following the sunset clause procedure, which is so reckless and uncertain. I say genuinely to the right hon. Gentleman: please have the humility to look at the damage done in the past four weeks, and the role of Government Members in that, and perhaps think, “What if we are wrong, and what are the consequences if we are?”
Stella Creasy
Might one of the reasons why businesses are so confused about the impact that the legislation will have be because the Minister is? He tried to claim to the House that all the laws affected are published on the dashboard and will have full transparency. However, 24 hours ago in answer to my written question, the Minister admitted that the dashboard provided an “authoritative, not comprehensive” list. Does my hon. Friend agree that, when businesses and consumers are already struggling with the cost of living crisis, the last thing that we need is to not even know what a piece of legislation is deleting?
Jonathan Reynolds
My hon. Friend is absolutely correct. The retained EU law dashboard, although useful, is not and never has been a comprehensive list of all the retained law that this Bill affects—[Interruption.] Government Members say that they never said it was. It does not clearly distinguish where retained EU law has been devolved, much to the frustration of the Welsh and Scottish Governments. However, it still lists more than 2,400 sources of law. If the Government want to put a blanket sunset clause on all of this, should they not be able to list exactly what is covered?
The practical case that the Government have put forward for the sunset clause is that they cannot find the time to use primary legislation to amend these laws. Why not? The Government have a majority of 70, at least for the time being. Where the law needs to be changed, what is preventing the Government from doing so? The fear is that what they really want to do is to reduce key regulations entirely, which brings me to my next point—that the Bill poses a threat to core British rights and protections.
There is no question but that the scale of the Bill is large. The policy areas affected cover not only employment law, but environmental protection, consumer protection, agriculture, fisheries, transport, data protection and much, much more. That is why a huge variety of organisations, from the TUC to the RSPB, have signalled their alarm. I am sure that Members on both sides of the House will raise their own worries about those issues during the debate.
The situation in relation to employment law is particularly alarming. Most of the UK’s core labour law protections are contained in regulations originally made under section 2 of the European Communities Act 1972, rather than in primary legislation. They are not cumbersome red tape; they are things that British workers expect, including the Working Time Regulations 1998, the Maternity and Parental Leave etc. Regulations 1999, the Transfer of Undertakings (Protection of Employment) Regulations 2006 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. On all of them, the Government are saying, “Trust us.” Why should we?
This is a Government who have not kept their promise of an employment Bill to ensure workers’ rights post Brexit and who do not keep their manifesto promises at all. This is a Government in which we do not know who will be in each job from one week to the next—and I wrote that bit before the right hon. Member for North East Somerset (Mr Rees-Mogg) resigned as Secretary of State for Business, Energy and Industrial Strategy a few hours ago. I am afraid that we cannot in good conscience hand the Government powers to arbitrarily decide matters that are of fundamental importance to the lives of working people in this country, not least because we have no idea whether any Ministers will still be in position in 24 hours, let alone 12 months.
Under the terms of the Government’s trade and co-operation agreement, the UK must maintain a level playing field with the single market. Such provisions are important to the UK: they protect against a global race to the bottom in standards and protections. We can only guess how the Government will use these powers, but the powers in the Bill are clearly deregulatory in tone.
This goes to the heart of the Conservative party’s simplistic and inaccurate understanding of regulation. When I ask a business what attracts it to invest in the UK, good regulators are always on the list. Businesses simply do not want the fantasy deregulatory agenda that lives only in the mind of so many Tory MPs. After the events of the past month, in which the financial markets themselves rejected the Conservative party’s allegedly pro-market agenda, I would have hoped for a little more wisdom and insight from the Government, but unfortunately I doubt that that will be forthcoming.
Finally, there is the issue of how Parliament will go about changing the law in future. The Government have already been severely criticised for how little power they have returned to Parliament since we left the European Union, and the Bill continues that approach. The use of negative statutory instruments, so that MPs have to actively object to prevent something from becoming law, is very poor practice indeed. When it comes to future proposals, the use of a sunset clause to cover such a large and complex body of law effectively puts a gun to Parliament’s head. Anyone who wishes to scrutinise or object to any future legislation replacing retained law will be taking a gamble, because unless that legislation is passed in time, the current law in its entirety will simply fall away. That is not conducive to good laws being made.
The obvious question is “Why not proceed on a policy-by-policy basis or, if appropriate, a sector-by-sector basis?” As we have already discovered, the Financial Services and Markets Bill does exactly that. Why not bring forward positive replacement proposals where the law needs to change or where something can be done better?
The fact is that this Government are out of ideas. They are more intent on their own survival than on putting in place the positive changes that we need. At a time when the British people are crying out for stable, competent government by a Government who recognise that economic growth comes from working people and businesses and from stability and certainty, not from the fantasy economics of the Conservative party, the Bill is not just wide of the mark, but wantonly destructive.
Caroline Lucas
The hon. Member is giving a powerful speech. On environmental regulation, does he agree that this could be a very good test of the credibility of the Office for Environmental Protection? If the Government really are assured that there is no environmental risk, they should have no worries at all about referring the Bill to it. The OEP is already deeply worried about the workload in the Department for Environment, Food and Rural Affairs and about the number of pieces of legislation that should be coming forward but are not.
Jonathan Reynolds
The hon. Member makes a very good point. Unfortunately, we know that the Government do not like independent assessment of their choices. They believe that they can simultaneously deliver the promises made on net zero and bring back fracking. Some independent verification would be very welcome indeed.
Rebecca Pow (Taunton Deane) (Con)
It was actually this Government, through the Environment Act 2021, who set up the Office for Environmental Protection, knowing that it is so important to be seen to be doing the right thing on the environment. I think the hon. Member needs to be careful in what he says, because actually that is the purpose of the body. I know that it will be looking closely at the matter, but that is its role and that is what it was set up for.
Jonathan Reynolds
I think the hon. Member has agreed with the hon. Member for Brighton, Pavilion (Caroline Lucas), so we have cross-party agreement. The Government will struggle to resist such a powerful alliance.
The Bill is the same sorry tale of uncertainty, dogma and poorly thought-out initiatives designed to appeal to Conservative Members and no one else. At a time when we need solutions for the future, the Government are retreating to the failed ideas of the past. The Bill promises yet more Conservative chaos, driving a bulldozer through our hard-fought rights.
Britain is fed up with this nonsense, frankly. It is time for a fresh start. It is time for serious government. The sooner we get a general election to achieve that, the better it will be for everybody.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
May I say what a pleasure it is that normal service can be resumed, and that I am now able to speak slightly more freely than I may have done when I sat in a different place? I congratulate my hon. Friend the Minister on his particularly brilliant speech. I think it was particularly brilliant because I was involved in writing it; I may therefore be a rather prejudiced audience, but I thought it was delivered with panache and verve. He took so many interventions and put the case brilliantly.
I know that it is not orderly to mention people in the Galleries, but I do not know whether the officials’ Box counts for that purpose. Nevertheless, I would like to thank the officials who have been involved with the Bill. They have done a terrific amount of work to get it ready in a short time. I confess to the House that when I was Leader of the House, I thought that getting the Bill ready for Second Reading by this date would not be possible, but the work that has been done is absolutely terrific. Let me reassure those who may think that I have sometimes criticised the civil service that in this instance it is worthy of paeans of praise.
The Bill is of fundamental constitutional importance because it removes the supremacy of EU law. We have heard arguments about certainty. Certainty, certainty—everyone always wants certainty. In an uncertain world, I am not sure that certainty is ever possible, but in a legal context the Bill provides more certainty than the alternative, which would be to retain two different legal systems in these islands of ours that would apply in different circumstances. I know that we have Scottish law, English and Welsh law and Northern Ireland law, but we would have a separate law applying differently in each of those three jurisdictions. We are now removing that, so the law made and voted for by people in this country will be the supreme law. That is surely right.
The issue of supremacy is of constitutional importance. Anybody who opposes the removal of the supremacy of EU law is fighting the Brexit battle over again, saying, “We didn’t really leave after all. We’d like to pretend we’re still there. Isn’t it nice to allow this alien law to continue to tell us what we ought to do?” No, it would not be nice to do that. Let us clarify the law. Let us get as close to certainty as humanly possible, so that we have a sensible, intelligent and well-formulated statute book.
Richard Graham (Gloucester) (Con)
For some of us, the point is not the constitutional argument about which laws should be sovereign, which we may well happily accept, but the practical issue of how we convert literally hundreds of laws, for DEFRA and so on, within the timescale imagined. Does my right hon. Friend understand the severe doubts that many people have about the practicality of what is on offer?
Mr Rees-Mogg
I am afraid that my hon. Friend has never liked the decision to leave the European Union, and everything he says must be taken in that context. Otherwise, he would not have intervened—
Mr Rees-Mogg
I am not giving way again. Otherwise, my hon. Friend would not have intervened at this stage, because I was setting out the issue of supremacy before coming to the crucial point about why the Bill is now necessary and how it works in practice.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. This is a point of order. It would have been simpler had the hon. Gentleman been facing the Chair in the first place, because while he was addressing the right hon. Member for North East Somerset (Mr Rees-Mogg) I could not see him, and it was therefore difficult for me to hear what he was saying. When I ask Members to face the Chair, it is not out of some kind of vanity; it is because if everyone faces in this direction, everyone can be heard.
Richard Graham
This is a very simple point of order, Madam Deputy Speaker. My right hon. Friend the Member for North East Somerset (Mr Rees-Mogg) just said that I have never accepted the decision of this country to leave the European Union. That is a quite extraordinary and entirely untrue observation, and I would ask him to withdraw it.
Madam Deputy Speaker
I appreciate the sensitivities. The hon. Gentleman knows that the content of the right hon. Gentleman’s speech is not a matter for the Chair, and not one on which I will comment, but he has made his point.
Mr Rees-Mogg
I now give way to my right hon. Friend the Member for South Northamptonshire (Dame Andrea Leadsom).
Dame Andrea Leadsom
I am grateful to my right hon. Friend for all the work that he has done. I was actually hoping to clarify the point that our hon. Friend the Member for Gloucester (Richard Graham) was making. Having myself held the role of Leader of the House during that attempt to leave the EU between 2017 and 2019, I recall that the House was able to get through some 800 or 900 pieces of secondary legislation. In my opinion, it is very much within the realms of possibility that this amount of legislation can and will be dealt with by the House very successfully.
Mr Rees-Mogg
I am very grateful to my right hon. Friend, who has made an excellent point. The ability of the House to get through its business is exceptionally good, and it is able to do so in an orderly way, as my right hon. Friend showed in dealing with the no-deal Brexit legislation.
Patrick Grady
Given his commitment to scrutiny by the House, the right hon. Gentleman, who said that he was involved in drafting of the Bill, must have had sight of the draft programme motion as well. The European Union (Withdrawal) Act 2018, which created retained EU law, was given eight days of scrutiny on the Floor of the House in Committee, and two days on Report. Does he really think that the time the Government are providing for scrutiny of this Bill is sufficient?
Mr Rees-Mogg
There is always a discussion to be had about whether a few days in a Committee of the whole House or upstairs in Committee provides better scrutiny. People sometimes reach different conclusions on that, but there will be a proper opportunity for a Committee stage upstairs, and I think that is perfectly reasonable.
I want to go back to the fundamental point about the supremacy issue. Let me reiterate that anyone who opposes the Bill is in fact re-fighting the Brexit battle.
John Redwood
I thank my right hon. Friend for all the great work that has been done on the draft legislation. Does he not find it an odd paradox, or contradiction, that many Opposition Members come to this place apparently to form laws but do not believe we can ever make a law that is good, and we need to rely on EU law in so many areas where I think we can actually do better?
Mr Rees-Mogg
I am grateful to my right hon. Friend, who is wise, as always. But it is even odder than that, because there is this very strange view that laws that came in without any scrutiny at all—regulations of the EU that became our law automatically—cannot be removed without primary legislation. That is just bizarre.
The laws with which we are dealing came in under section 2(2) of the European Communities Act. Either they came in with minimum scrutiny but could not be amended or changed, or they came in with no scrutiny at all. I know that my hon. Friend the Member for Stone (Sir William Cash) disagrees with me on this, but we are not using this procedure to repeal Acts of Parliament. Even though these measures have the effect of introducing EU law, an Act of Parliament has had full scrutiny in the House, and to be repealed it deserves full scrutiny to be taken away. That is the correct constitutional procedure.
Stella Creasy
Does the right hon. Gentleman recognise that some of us may be a little bit sceptical about the definition of democratic engagement that he has just set out? He is arguing that, for example, taking away laws that require cosmetics not to contain cancer-causing chemicals or laws on illegal trading—as well as maternity rights and TUPE—is a matter that does not require the scrutiny of the House, but only that of statutory instrument Committees. If he had been so wedded to restoring democracy, might he not have at least written the affirmative resolution procedure into these statutory instruments? Why he is taking back control, not for this House and the great democratic institutions—and he is now joining us on the Back Benches—but to No. 10?
Mr Rees-Mogg
I do not accept that construction of what is actually happening. The House will have the ability to focus on issues on which it thinks the Government are going in the wrong direction. Let me pick at random one of the retained EU laws that may be reformed or become redundant:
“a common methodology for the calculation of annual sales of portable batteries and accumulators to end-users”.
Does the hon. Lady really think that deserves primary legislation—a count of batteries? That is what is in the 2,400 statutory instruments on the dashboard, and, as has been pointed out, that is not necessarily the full list.
There are all sorts of minor and unimportant things that need to be dealt with. As for those that are of major significance, it was said clearly at the Dispatch Box that environmental protections would be maintained. That is fundamentally important. It is a commitment from His Majesty’s Government to this House. The Bill will allow those protections to become UK law—which I use as shorthand to cover the three different types of law in the United Kingdom—to ensure that they can be enforced logically and sensibly by our courts in accordance with our legal maxims. That must be a right and certain means of proceeding.
It is interesting that people, having been told this, are still opposing the Bill. I come back to the conclusion that those who are opposing it actually do not like Brexit altogether.
Jonathan Reynolds
I am grateful for the chance to put a question to the right hon. Gentleman. I was going to welcome him to his position, but I did not want to seem ironic. He says that we can take a guarantee from the Dispatch Box. Even the Conservative party’s manifesto commitments no longer hold: we have seen that. How can we take the word of Ministers when even manifesto commitments no longer bind this Government?
Mr Rees-Mogg
The hon. Gentleman knows that Dispatch Box commitments have a very high standing in our political system. As Leader of the House, I was concerned that we were not using legislative reform orders as comprehensively as the legislation seemed to imply. In fact, the reason for that was a Dispatch Box commitment given by Paul Goggins, in the last Labour Government, during the passage of the Bill that limited the application of LROs to non-controversial issues. Dispatch Box commitments are actually a fundamental part of the way in which our discussion works, as the hon. Gentleman knows only too well.
Sammy Wilson
The right hon. Gentleman is entirely correct. This is an issue of the supremacy of this Parliament, and this law will enforce, and reinforce, the point that when we left the EU we made Parliament sovereign. Does the right hon. Gentleman accept, however, that the Bill will also highlight the fact that Parliament is not sovereign across the United Kingdom? Some of this cannot apply to Northern Ireland, where EU law past and future will still apply. If anything, the Bill could drive a greater wedge between Northern Ireland, constitutionally, and the rest of the United Kingdom.
Mr Rees-Mogg
I am certainly concerned about that. In the last couple of days I had to sign off a couple of explanatory memorandums covering law that was going to come into Northern Ireland from the European Union. That is an unsatisfactory constitutional situation, which is why I am so supportive of the Northern Ireland Protocol Bill that is in the other place today. That is something we must push forward with, to ensure that we have a unified legal system across the whole of the United Kingdom.
Margaret Ferrier (Rutherglen and Hamilton West) (Ind)
The Bill creates several new powers that will not require UK Government Ministers to seek consent from the devolved Administrations, essentially retaining power over areas within devolved competence. Does the right hon. Gentleman recognise the impact of this Bill on the devolution settlement?
Mr Rees-Mogg
The Scottish Parliament has been reluctant to give legislative consent motions to any Brexit-related legislation because of the politics of the SNP. That is a view that it has taken because it wanted to remain in the European Union—as the SNP, to its credit, argues for firmly and clearly on these Benches. The SNP is rather clearer about this state of affairs than the socialist friends we have in here who like to run with the hare and hunt with the hounds. That inevitably means that, in my discussions with the devolved Administrations, there has not necessarily been a meeting of minds with the Scottish Parliament. But that is to be expected. This Bill in fact returns powers to the devolved Parliaments, because it gives them the authority to reform and repeal EU law too. They will be the decision makers over those areas that are devolved, so we are increasing devolution.
Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)
The right hon. Gentleman will of course accept that the Welsh Government have similar concerns to those of the Scottish Government. The Welsh Government are run by the Labour party, which is a Unionist party. Indeed, the Counsel General of the Welsh Government, Mick Antoniw, has said:
“As currently drafted, this legislation could see UK Government Ministers given unfettered authority to legislate in devolved areas.”
These concerns are being expressed not just on the nationalist Benches but among Unionist colleagues.
Mr Rees-Mogg
I know from my previous experience that His Majesty’s Government will observe the Sewel convention in relation to this. There may be occasions on which, for simplicity, the devolved authorities want the Westminster Parliament to move ahead with something on which everybody agrees, but what is devolved is devolved and the devolved Administrations will have the right to pursue it.
This Bill is not only one of constitutional importance that will get our statute book tidied up but one of massive opportunity. It presents an opportunity, not necessarily to do any one big individual thing—like the Financial Services and Markets Bill, which can change Solvency II involving billions of pounds for the economy—but to go through every single individual issue in detail, one by one, so that we can see, bit by bit, those rules that have made our businesses less competitive, those regulations that have put our businesses under more pressure and those intrusions that have made people’s lives less easy. We will be able to sweep those away, and we will be doing so in a proper constitutional process.
Craig Mackinlay (South Thanet) (Con)
My right hon. Friend previously served on the European Scrutiny Committee, as I still do. Does he recall the inches-thick paperwork that used to land in front of us on a regular basis? Despite the pleadings of the Chairman, my hon. Friend the Member for Stone (Sir William Cash), that legislation never had any debate, and even if it had, there was little to nothing we could do about it. This is the true victory and the Brexit dividend that we can now face.
Mr Rees-Mogg
My hon. Friend is absolutely right. The ports directive was debated and debated, and opposed on both sides of the House, but it went through anyway. There was absolutely nothing we could do. This is why I challenge Opposition Members who say that this is not proper scrutiny. Why did they not object to the section 2(2) power? Why were they not joining my hon. Friend the Member for Stone on the European Scrutiny Committee to ask, week in and week out, why these laws were going through without anybody being able to gainsay them and why parliamentary sovereignty was not being upheld? We are restoring parliamentary sovereignty by ensuring that there is a parliamentary process, that Parliament will have its say and that we will have our own law for our own country.
Graham Stringer (Blackley and Broughton) (Lab)
The right hon. Gentleman will not be surprised to know that I agree with the core of his speech about returning supremacy to British law and getting rid of EU supremacy. The way in which statutory instruments and the negative procedure have been used in this House has not always been satisfactory. For instance, covid regulations, past the time they had been implemented, were brought into operation and were inappropriate in many cases. I could give many other examples. As somebody who campaigned to leave the EU and is glad to get back control of our laws, I am disappointed that the process will not see full transparency of debate, because our regulations and laws are better when they are transparent and when different people can bounce their ideas off each other. Does the right hon. Gentleman agree with me?
Madam Deputy Speaker (Dame Rosie Winterton)
We must not have such long interventions.
Mr Rees-Mogg
The hon. Gentleman makes a valid point. The scrutiny of statutory instruments in this House is not all that it should be. I actually think that the other place does it better. I think there are too many statutory instrument Committees that look at things for two minutes before they all go home, but that is an issue we must face as a House to decide how we want to improve it.
My final point is that those who oppose the Bill seem to think that British politics and the British electorate count for nothing. They stand up and say that we will have no employment law protections—practically arguing that we will be sending children up chimneys. Do they think the British voter was born yesterday? Do they really think the British electorate and the British people will accept or vote for a party that takes away the protections they already have and enjoy? Are they unaware of the fact that our maternity leave protections antedate the European Union’s regulations, and have always gone further than those regulations?
What sort of a country do opponents of the Bill think we are? Why do they have no confidence in our democracy? Do they think that right hon. and hon. Members on this side, when standing on a parliamentary platform and going before our constituents, will say that we are going to have a burning of everything they like? Of course we are not. We will stand up for people’s rights, we will stand up for people’s dignity and we will stand up for the rule of law. Most of all, we will stand up for that fundamental right, that overarching right, that right on which all our constitutional freedoms are built and on which all human rights depend—the right of the ballot box.
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—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. The debate is well subscribed. I do not want to impose a time limit, but my advice is that contributions should be around eight minutes, to make sure that everyone has equal time. I call Sir William Cash.
Sir William Cash (Stone) (Con)
I add my personal best wishes to my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg) following his resignation from his post. I commend the Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Watford (Dean Russell), for his excellent opening speech that he delivered at such short notice, and for his dexterity in answering questions.
Over the past 45 years, before we left the European Union, we were governed by and subjugated to European laws that were made behind closed doors by majority vote and without any transcript, such as we have here every day in our own Hansard in our own Parliament. Manifestly, that was not democratic and it was rejected in a referendum of all the people in this country and in the general election of 2019. Nobody can now justify returning to that undemocratic system of Government and the EU system of law making. It does not work, as we can see from the political resistance and national democratic changes that are taking place now throughout the European community, such as in France, Italy and Poland and throughout the whole continent. President Macron’s bid to create European sovereignty in his recent elections has paralysed his Government.
The sovereignty of our democracy and of the United Kingdom is guaranteed by section 38 of the European Union (Withdrawal Agreement) Act 2020. This sovereignty is not theoretical or constitutional; it is our democracy and is in line with the referendum result of 2016, which was endorsed by the results of the general election of 2019. We were elected on a manifesto, which I am glad the Prime Minister emphatically endorsed this morning as being, as he put it, at the “heart” of our mandate, including embracing “the opportunities of Brexit”, encouraging competitiveness, investment, productivity and some deregulation and innovation, such as our world- beating roll-out of vaccines, including the AstraZeneca vaccine, which, by the way, the EU tried to stop altogether.
We now have the opportunity to deliver those commitments and to stabilise this country against the background of the £400 billion spent on covid, and the increases in inflation, interest rates and the cost of living brought about by President Putin’s energy deal with Germany, which I predicted would create geopolitical and European instability in an article in 2001, which was commended by The Times. Covid and Ukraine were external factors; they were not caused by this Government, and they are at the root of our current problems.
Most other countries in Europe are experiencing a worse cost of living crisis and economic downturn. Our unemployment rate, for example, is running at only 3.5% and our job vacancies, according to the latest figures, stand at approximately 1.2 million. There are those who claim that we need legal certainty—I have heard that argument—but what is certain is that it would be untenable and hopelessly uncertain to have two statute books and two systems of interpretation.
As the Government have said, retained EU law was never intended to remain on the statute book indefinitely, but was preserved as a temporary bridging measure following Britain’s exit from the European Union. This Bill is an essential component in resolving that. It gives us the opportunity to remove unnecessary laws that restrict our competitiveness and growth and enables us to realise our potential as a sovereign independent nation, making our own laws through our own Members of Parliament, from all parts of the House, who were elected by the voters of this country in the general election. This is the fundamental issue that we have to address. This EU-derived law did not have UK levels of parliamentary scrutiny, as our traditional domestic, sovereign legislation demands, and was made subject to goings-on in Brussels behind closed doors. It is right that we should have full control over our domestic legislation.
My right hon. Friend the Member for North East Somerset mentioned the ports directive, and I remember it terribly well. It was opposed by every single person in this House who had representative objections put to them by people from the trade unions, from the Government and from the ports employers. Every single sector involved in the ports legislation refused to accept it, but it made no difference; it went through anyway. Indeed, I can honestly say that, since 1972, and certainly 1984, since I have been in the House, not a single piece of European legislation passed under the auspices and direction of section 2 of the European Communities Act 1972 has ever been rejected by this House. This is an opportunity to put right that democratic absurdity. The simple fact is that retained EU law currently on the statute book lacks the legitimacy that we have in our Acts of Parliament. This Bill removes the supremacy of EU-derived law, much of which was created by the Council of Ministers, as I have pointed out, behind closed doors and without a transcript.
I was pleased to read in the Government response to our latest report, “Retained EU Law: Where next?”, that:
“The Government recognises the incongruous nature of Retained EU Law, particularly the principle of EU supremacy, which has no place in the legal system of an independent, sovereign nation”.
I am glad that that is clearly the basis on which the Prime Minister made his comments this morning, and I was actually encouraged, somewhat ironically—because I do not put too much trust in them, to say the least—by the remarks made about Brexit from the Opposition Front Bench.
The European Scrutiny Committee recommended that
“when retained EU law is modified by domestic legislation, the Government ensures that the amending legislation clearly indicates whether the modified legislation is to keep the status of retained EU law. We consider that the status should not continue.”
I am pleased that the Bill makes provision for that, and I welcome the inclusion of the sunset provisions to provide clarity and an effective timeframe for the repeal of all EU retained law, which is essential.
The director of the CBI on the “Today” programme this morning basically agreed that the Government have, as he put it, levers at their disposal that can support the growth push that we will need. He actually used the words:
“The growth imperative is bigger than before”.
He specifically mentioned, as part of that growth imperative, “different kinds of regulation”, and put growth at the heart of what he was talking about, because he knows it is true, Conservative Members know it is true and Opposition Members know it is true. We need growth and productivity. It is essential that we deploy these levers to achieve that growth, and in unity, to realise our potential and improve our competitiveness and our capacity for investment. I strongly support the Second Reading of this Bill.
Hilary Benn (Leeds Central) (Lab)
Here we go again: another piece of legislation introduced in the name of Brexit, which we were repeatedly told was about restoring Parliament’s sovereignty and supremacy, and yet one that gives Ministers absolute control over whole swathes of legislation that impact upon our national life by cutting Members of Parliament out of the process almost altogether, and the public as well. This is what the Hansard Society had to say:
“The Bill…Sidelines Parliament because it proposes to let all REUL expire on the sunset deadline unless Ministers decide to save it, with no parliamentary input or oversight.”
This is a shocking Bill. As I see it, one of the main purposes of the Bill is presentational: it is trying to remove the words “Europe”, “European” and “EU” from the statute book. It is a form of linguistic and legislative purge, which may make those who argued to leave the EU feel better, but it does not add to the sum total of human happiness. The former Business Secretary, the right hon. Member for North East Somerset (Mr Rees-Mogg), who has just left the Chamber, made it crystal clear what the aim was when he wrote to me on 13 October and said that the Bill will require Departments
“to remove unnecessary or burdensome laws which encumber business and no longer meet the Government’s policy objectives.”
I remind the House that one person’s burdensome law is another person’s safe working conditions; it is their right to take parental leave.
At a time of great uncertainty and economic difficulty, what the Bill does is simply add to the uncertainty. This point was brilliantly made by my hon. Friend the Member for Stalybridge and Hyde (Jonathan Reynolds). What businesses want to know is what the rules are and what the framework is, because that knowledge provides them with certainty, on the basis of which they can invest and carry out their work. The Government are doing the absolute opposite with this Bill. They are saying to every one of those businesses and would-be investors, “We just need to point out that the laws, regulations and rules that are in place today may not be in place in the same form after Christmas 2023 if we don’t get round to saving them.” I cannot think of an approach more calculated to undermine confidence in the British economy and to deter would-be investors than the one in this Bill. I point out that we are not doing very well on inward investment—we have the lowest level of inward investment in the whole G7.
Part of the problem is that we have no idea, and I do not think the Government have any idea, which bits of EU law the Government want to scrap, which bits they want to amend and retain and which bits they want to keep in their entirety. We know that there is a list; reference has been made to it. It is not a little list—it is a jolly big list, and it is found on the famous dashboard. I echo the plea made by other Members: I really hope that the Government have counted everything. To paraphrase Lord Denning’s famous phrase, now that the incoming tide of EU law has ebbed away, have Ministers and civil servants searched every estuary, every river, every tributary and every salt marsh to make sure they have found all the bits of legislation that will be subject to this Bill? It is really important that they have done so, because if they have missed anything, that bit of legislation will fall in December next year—it will disappear from the statute book, whether Ministers want it to or not.
The next thing that is objectionable about the Bill is that, for the first time I can recall, it allows Ministers to change the law of this country by doing nothing—by simply watching the clock move and the pages of the calendar fall until December 2023 comes around. Even if Government Members agree with the aim of reviewing these laws—and there is an argument to be had for that—it is extraordinary that Ministers are asking the House to give them this power. The Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Dean Russell), who is no longer in his place, did a good job of moving the Bill’s Second Reading having come to it very recently, but he had no answer to the point I put to him, and I have yet to hear one in the debate, about why Ministers should be allowed to get rid of law simply by sitting on their hands.
Sir William Cash
The right hon. Gentleman is rather avoiding the point that the legislation came in with exactly the same arrangements and was imposed upon us by the Council of Ministers, by majority vote behind closed doors, and he knows it.
Hilary Benn
Well, what I do know is that I sat on the Council of Ministers for seven years as a Cabinet Minister and took part in discussions and decisions about directives. That is a point the hon. Gentleman never, ever mentions; it is like everybody was locked out of the room. He makes that argument to avoid addressing what is in the Bill. Saying that something in the past was not perfect—I happen to agree with him about the fact that we were not allowed to watch the Council of Ministers at work—is not an argument for what is proposed in the legislation before us today.
What is more, are Ministers seriously arguing that, given all the pressures and the things that the new Prime Minister no doubt wants to do, civil servants should spend time going through 2,417 pieces of legislation? I say good luck to the new Secretary of State for Environment, Food and Rural Affairs, whose Department has 570 pieces of legislation—the Department for Transport has 424 and the Treasury has 374—and who will have between now and next Christmas to decide what on earth to do about them. While they are valiantly trying to do that, there is absolutely no provision in the Bill for public consultation and there will be no impact assessment on any changes that they are proposing to make. It takes a particular type of genius to make an enemy of worthy organisations such as the Wildlife and Countryside Link, the Green Alliance and others by threatening that which we and they value in pursuit of a headline.
What about workers’ rights? What exactly is the Government’s intention, in detail, when it comes to the working time directive? We have often heard Ministers complain about some of the consequences of the working time directive, but at other times we have heard them say, “Under no circumstances will we weaken workers’ protections.” The Minister acknowledged that we have entered into certain commitments as a country—although that does not mean that the Government will keep to them, if the Northern Ireland Protocol Bill is anything to go by—and that certain employment and environmental legislative commitments are engaged by the trade and co-operation agreement.
We all know that, if we act in a way that the EU thinks gives us an unfair competitive advantage, it can retaliate. How will it help economic growth if we are inviting the prospect of that happening? I listened carefully to the commitment that the Minister made from the Dispatch Box on environmental and employment laws, but I am sorry to say that it is still not clear what he means by that. It is the detail that matters, so what will be changed and what will be kept the same?
The Bill does its best to tell the courts what they can and cannot take into account when considering cases before them. The Government tried to do that previously with the European Union (Withdrawal) Act 2018 and they are back to have another go. One part in particular is extraordinary; clause 7(3) proposes to amend section 6(5) of the 2018 Act by substituting it with:
“In deciding whether to depart from any retained EU case law…the higher court concerned must (among other things) have regard to…the extent to which the retained EU case law restricts the proper development of domestic law.”
What on earth does that mean? Can any hon. Member explain what the proper development of domestic law is? I think that clause 7 is trying to kick the judiciary again into being more enthusiastic about Brexit, but Ministers know that in the end, the courts will take into account the things that they think are relevant.
I will say what I think will happen after this song and dance and all the chest beating about the wonderful new freedom. The Bill has not just one sunset clause, but three: 31 December 2023, 30 June 2026 and forever. Under clause 1(2), Ministers can decide to retain EU law in perpetuity or until such time as they choose to change it. I wager, therefore, that as next December approaches, many Ministers will find lots of reasons to use clause 1(2), because they will not have had time to decide what to do with the legislation.
In conclusion, this is a bad Bill. It threatens lots of laws that people value; it creates uncertainty; it takes powers away from the House; and it allows Ministers to repeal the law by doing nothing. For all those reasons, it should be rejected.
Rebecca Pow (Taunton Deane) (Con)
It is a pleasure to follow the right hon. Member for Leeds Central (Hilary Benn). I welcome the Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Watford (Dean Russell), who is no longer in his place. He did a jolly good job of having to step in at short notice. I also pay my respects to the retiring Secretary of State, my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg), with whom I share Somerset in common.
I rise to support using our Brexit freedoms to design better regulation and unlock economic growth as appropriate. Regulations are obviously there for a reason, but it is right to periodically analyse them to ensure that they are doing what they were designed to do—or indeed, what we would like them to do as things change. We have that opportunity now, so as many hon. Members have highlighted, we need to ensure that the regulations that have been rolled over from the EU are bespoke to our nation. The Minister stressed this himself, saying that they really need to be working in the UK’s interests, and I agree. A lot of very sound points have been made by Conservative Members on that very matter, but I want to focus my comments on nature and the environment, which probably will not surprise Members in the Chamber.
I want to thank the Minister for meeting a group of us earlier to discuss how there are quite clearly concerns and to have open discussions. I, too, have met many outside organisations on these issues—the Green Alliance, the Wildlife and Countryside Link, the Better Planning Coalition, Greener UK—but also many businesses and farmers, because these issues affect all those categories. All of those people and, I believe, Conservative Members as well—particularly those of us from the Conservative Environment Network, which is doing really good work in this sphere—are just seeking assurances that the Bill will not weaken the UK’s environmental protections.
I was reassured by what the Minister did say at the Dispatch Box, because he openly commented that environmental protections will be maintained. I take that as a signal that he means it and, indeed, that the door is open to work on this—and maybe our Green party Member, the hon. Member for Brighton, Pavilion (Caroline Lucas), will be working on it, too—so that we get to a place that everyone is happy with.
Jonathan Edwards
I am sure the hon. Member will realise that some of us are less happy than she is about this approach. Would it not be better for the British Government to bring forward alternative proposals on a sector-by-sector basis, as the shadow Secretary of State, the hon. Member for Stalybridge and Hyde (Jonathan Reynolds), said in his remarks, and then the whole House can discuss and scrutinise those alternative proposals, as opposed to giving the Government a blank cheque?
Rebecca Pow
I thank the hon. Member for that, but we have had assurances from the Minister that he is going to engage with us. I think it behoves us all to get involved in that, and to represent all the people who are coming to us, because there is a great deal of knowledge that I am sure the Minister will be open to discussing with us.
I particular want to set out for the House this Government’s record on the environment. We are the greenest Government we have ever had. We have moved further and faster on environmental issues than any Government, not least through our Fisheries Act 2020, Agriculture Act 2020 and Environment Act 2021, which is a groundbreaking piece of legislation. The rest of the world was watching us as we brought this through our Parliament, and they are still watching us now to see how we are going to implement all its measures, because it does put us on a sustainable trajectory for the future. Indeed, we on the Conservative Benches did all vote for it.
Deidre Brock (Edinburgh North and Leith) (SNP)
I have just heard the news that the COP26 President has lost his position in Cabinet. Does the hon. Lady agree that that suggests this is a Government who are not fully committed to supporting the environment?
Rebecca Pow
I am obviously not party to all these things, but I believe the COP26 President is just not attending Cabinet but is keeping his position, and rightly so.
I was touching on our environmental record, and I know that the Minister for Climate certainly understands the need to uphold this record. We are a global leader on this, which is very appropriate with COP27 coming up. We cannot be seen to be backtracking on things on which we are actually considered to be a global leader. That is why we need to show that we can uphold our environmental protections, while also being able to grow the economy, as is necessary in what are very challenging times. In my view, there should not be any kind of conflict between having a fully functioning ecosystem and a growing economy, with secure food supplies and, indeed, increasing food production. It is quite possible to make it all work.
We have set a legally binding target to halt the decline of species abundance—basically nature—by 2030 and to start to bend that curve, but I would be the first person to say, and perhaps the right hon. Member for Leeds Central might agree, that while we have had environmental protections, they have not actually done a great job in protecting our nature. We have had a massive nature crash in this country, and that is what we have to sort out. We need to look at some of our system of protection and make it work better. We do not need to undermine what we are doing; we need it to function better for the UK.
Rebecca Pow
I will press on because I think I will be under pressure—I will perhaps give way in a minute.
We have set a whole framework, and we need our protections to help that work to restore our nature. We must get those protections and the regulations enforcing them right. The Environment Act 2021 creates that framework, requiring Ministers to set long-term targets for environmental improvements, to set out policies to meet them, and to report annually on the delivery of those targets that relate to waste, air, nature, water and biodiversity. By the end of this week, on 31 October, the Government should be reporting back on the targets. Those have been widely consulted on, and I urge the new DEFRA team to publish them. They will be an important indication that we mean business on restoring nature, and business on our biodiversity net gain measures, which all developers know are coming down the tracks.
I mention that because it highlights the huge amount of work that DEFRA already has on its plate to tackle these things, and having to do a major review of hundreds of pieces of EU-derived legislation could put it under a great deal more strain. There are something like 572 laws relating to the DEFRA portfolio, whether that is sewage pollution, waste, water, air or pesticides. I know it is a good Department with some great officials, but fifteen months is a pretty short time to wade through that legislation. There is scope in the Bill to extend that sunset clause to 2026 if necessary, and I urge that door to be kept open, and for us to be realistic about this. If the right position has not been found by 2023—some of these things are pretty complicated—and if more engagement would be appropriate, I ask Ministers seriously to consider extending that sunset clause. No one is saying, “Don’t look at the regulations,” but we need that door to be open.
On the habitats directive, I urge Ministers to look at the nature recovery Green Paper that DEFRA undertook while I had the honour of being environment Minister. A whole team was considering proposals to streamline and consolidate site designations, to provide more certainty and predictability for developers—they had input into that—planners, and consultants. A whole range of people were asked to come up with some thoughts on getting a more strategic approach for tackling pressures on our protected sites. We have already done that for the infamous great crested newt, which is often cited as a reason for holding up planning applications. There is now a good plan for working strategically with our newts, with mitigations and compensations and so on, and it is working well. I urge the DEFRA team to look at the proposals in the Green Paper, as they are a basis for reform without weakening environmental protections. May we also have clarity on the Emerald network of areas of special conservation interest?
Finally, businesses need certainty and clarity, which is why we must ensure that they know there is a level playing field that will ensure high environmental standards. Our manifesto committed us to delivering the most ambitious environmental programme of any country on earth. The Minister mentioned that earlier, and it is something we should be proud of not just here but on the global stage. It is what we need to deliver for future generations. Let us give ourselves time for the assessment process. Do not rush the changes. We cannot grow our economy by weakening our environmental protections, but we can make a bespoke system that is better for us all.
Several hon. Members rose—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. I gently remind hon. Members that, if we are to be fair to each other, I did say that speeches should last about eight minutes, as opposed to 11 minutes.
Stella Creasy (Walthamstow) (Lab/Co-op)
It is a pleasure to follow the hon. Member for Taunton Deane (Rebecca Pow). I hope she will appreciate that I listened to what she said and responded in my comments.
We have all done it: we have all accidently hit “Delete”, broken something or not saved a document that we meant to save. Or, even worse, we have been in workplaces where somebody has done that and all that institutional memory and knowledge has gone. Then we face a choice: either come clean that all that information is lost, or try to pretend that it did not matter. In taking the latter option, the Government are putting at risk thousands of rights that have been the fabric of everyday life for all our constituents.
In opposing the Bill, let me be clear that that is not talking about Brexit. It is not talking about rerunning a referendum. It is not to argue that we must go back. I am sorry that the right hon. Member for North East Somerset (Mr Rees-Mogg) is not in his usual place—I am not sorry, really—because it is also not about supremacy. It is about sanity and the business of doing government. In the time that I have, I want to set out that I and Opposition Members will oppose the Bill because of both what it does and how it does it. I urge Government Members to look at how the Bill operates, because all the powers, promises and ambitions in the legislation cannot be achieved.
We do not really know what the Bill does, because we really do not know what it covers. I am sorry that the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Dean Russell), is not in his place—who knows whether he is still a Minister and whether, when he comes back, he will be on the Front Bench or the Back Benches—because being honest about the fact that we do not know the levels of European law is critical.
It is not just minor changes, as the former Secretary of State tried to suggest; there are serious, important pieces of legislation that many in the House, and especially those who care about environmental issues, have discovered are not on the retained EU law dashboard. The conservation of habitats and species regulation does not appear on the Government’s dashboard. Therefore, as a starting point, we have literally no idea which rules are being abolished by the Bill because the Government do not know—they have not found them all. That is what the parliamentary question admitted yesterday with its authoritative but not comprehensive list. Call me an old- fashioned democrat, but I would quite like to know what I was voting to abolish and be able to tell my constituents about that before being asked to do so.
It is also not clear how the legislation will operate in the devolved legislatures. Of course, that matters in making sure that laws are tenable if they are to cross borders, let alone for our colleagues in Northern Ireland who face multiple legislative processes—all that red tape that we were told we could get rid of by leaving the European Union.
Above all, the Bill asks us to play the worst game of “Snog, marry, avoid” that I have ever seen for any piece of Government legislation; in deciding whether something is kept, amended or simply abolished. Let us have a go at that and see whether our constituents really want to play when they see what is at stake.
Let us talk first, nice and simply, about those things that we probably want to keep. I presume—maybe I have misread things—that there will be general agreement across the House that it is a bad idea to have cancer-causing chemicals in cosmetics, so we should retain rules that keep those out. Again, we all think that insider trading is a bad idea, but the legislation will rip up all the rules on that. On airline safety—by that I mean literally the rules that require a plane to be worthy to go in the air—we probably agree across the House that having rules that ensure that planes are safe is a good thing, so we could take a bipartisan approach. Again, we probably all agree on preventing food manufacturers from making false claims about the nutritional content of their food, and on tackling illegal firearms smuggling. One question from many of us might be: when we have a cost of living crisis and a Government who are in chaos, why on earth are we spending time rewriting laws that, on the whole, we all agree with?
That is where the rub is in the legislation: what the Government want to avoid and abolish. They need to come clean to our constituents. They are asking us to approve powers that would let them get rid of the rules around a whole plethora of issues, including those that require major sporting events to be free to air. I was very troubled to discover at the weekend that the Department for Digital, Culture, Media and Sport was trying to claim that was not the case. Clearly, Government Departments have not looked at the legislation on which they have depended. Disease control for bird flu is suddenly up for abolition, along with compensation rules for lost luggage and delayed trains. I guess if a Government are dealing with privatised rail industries and are unable to help them, they think that removing those basic consumer protections will somehow be good for them. However, they should be honest with our constituents if that is what they intend. The payout that comes if someone’s firm goes bust and the entitlement to 50% of their pension pot—let alone TUPE protections if their job is outsourced, paid holiday rights and maternity rights—are up for abolition through the Bill. I am sorry that the right hon. Member for North East Somerset is not in his place, because we could have a conversation about exactly how the EU protected women’s basic maternity rights against decisions by the UK Government.
On part-time workers’ rights, the hon. Member for Taunton Deane says she has had assurances from the Government. Well, I thought the Conservative manifesto was an assurance about what the Government were going to do, but that seems to have been ripped up. The Bill will give the Government carte blanche powers across 2,500 pieces of legislation and 300 policy areas. Can she really, hand on heart, be confident that all of those will be retained? She does not have in the Bill any recourse if those pledges come to nought, so she is taking a huge gamble.
Secondly, one might agree that all those things need to be up for grabs and that it no longer matters—I would love to see the referendum leaflet that said abolishing paid holiday leave would be a good thing; I will sit down if the Government can show me that—but the Bill hits delete through a sunset clause, abolishing everything all at once. As my right hon. Friend the Member for Leeds Central (Hilary Benn) says, that creates a power for Governments to abolish pieces of legislation just by doing nothing, with no judicial review powers if those rights are important.
I am sorry that the hon. Member for Stone (Sir William Cash) is not here. The Bill hands powers to those very Ministers who were in the Council meetings he objected to, to make those laws. In which case, we must all ask, “What help are they getting?” We have talked about 570 different pieces of legislation from DEFRA to be revised. At the moment, there are three DEFRA civil servants dealing with 570 pieces of legislation. It is the same across other Government Departments: two officials in the Department of Health and Social Care dealing with 137 regulations covering healthcare; nobody in the Department for Work and Pensions, which has 208 regulations to rewrite; and nobody in the Treasury, which has 602 regulations to review—snog, marry, avoid—in the next year and decide whether we will keep, or amend, them. The Department for Transport could not even confirm how many staff it had working on this issue. It does not even know who is responsible for it. That is not really a surprise. Of the 2,500 pieces of law that are being ripped up, on which we have been dependent for decades, 800 have no direct ministerial lead to even worry about whether we should keep them.
Ministers will decide what happens to those pieces of legislation—they can water down protections and any promises made to the hon. Member for Taunton Deane, or simply drop them without any form of scrutiny. I am disappointed that the right hon. Member for North East Somerset is not in his place, because those of us who are democrats believe passionately that the only people who are anti-democracy are those trying to take back control to Downing Street rather than to this place. It is simply not true to say to the British public that, through this Bill, Brexit is giving the House powers—let alone the trade war it could easily start, because we signed agreements in good faith with the European Union under the TCA that we would have a level playing field on areas such as food safety and employment rights. The Bill could lead to retaliatory tariffs.
What the hon. Member for Taunton Deane and her colleagues should reflect on most of all, perhaps, is clause 15, which enshrines deregulation. I would be with her in the Lobby on introducing higher environmental standards, but the Bill formally requires that that cannot happen. The direction of travel is only one way—to water down and reduce rights.
Joanna Cherry
The hon. Lady will have seen that I put that point to the Minister earlier and he said that clause 15(5) was just a minor detail. Does she agree that that is absolutely wrong and that it is absolutely central to the Bill?
Stella Creasy
Clause 15(5) is why the Bill is the anti- growth coalition. Businesses, consumers and environmental organisations alike are against no regulation. No regulation is a recipe for less competition. It is a recipe for a wild west. They want better regulation. Clause 15(5) rules that out and gives Ministers the responsibility not only of finding legislation, but then doing something with it without any scrutiny from this place. There are plenty of parliamentary mechanisms that could change that. There are many different ways that could work. It is not just about the sunset clause; it is about affirmative regulations. There are ways we could reduce red tape, but they are not written into the Bill.
The new Prime Minister says he will fix the mistakes of the past. He could do no better than to abandon the Bill and rethink it, because, as we all know, when we hit delete and do not save, it is a mess for all concerned.
Theresa Villiers (Chipping Barnet) (Con)
Having witnessed the EU legislative process at first hand as an MEP for six years, I can attest to the fact that it tends to be bedevilled by horse-trading, misunderstanding, ambiguity, vested interests and protectionism. My experience of that process and its often flawed results radicalised me and was a major reason why I decided, when the referendum came, to campaign to leave the EU. I believe that when it comes to regulation, we can do better in this country. We can and must retain our high standards—as every Government Member has said today, including the Minister—but deliver them in a way that is less cumbersome, less bureaucratic and less costly. We can ensure that our rules are properly targeted at the real problems that we want to resolve and that they are tailored to our domestic circumstances and our national interest. Delivering that change is a crucial means to making us more productive and more competitive and to growing our economy. It is a key benefit of leaving the European Union.
That point was made clearly in the report of the taskforce on innovation, growth and regulatory reform, of which I was a member. We highlighted the need to return to the principles of common law after nearly five decades in which the Napoleonic code-based approach had found its way into such a wide range of our laws in the UK. I therefore welcome the Bill’s proposal to remove the special status of retained EU law. I also believe that it is important to take a fresh decision on each item of law that we have inherited from our period of EU membership to determine whether it should be retained, amended or repealed. But—this is an important “but”—I am concerned that the hard-stop sunset clause, which kicks in at the end of 2023, may not give us time to conduct the in-depth, evidence-based review of regulation that is needed.
The Bill provides a mechanism in certain circumstances for that deadline to be extended to 2026, but, as many have said, that still leaves an immense amount of work to be done in a brief period of time. We do not know with certainty, for example, how many laws there are within DEFRA’s food, animal welfare and environmental remit, because that has not yet been comprehensively counted on the Government’s dashboard. However, groups such as Greener UK point out that it includes at least 570 pieces of legislation. Reviewing those 570 enactments is a mammoth task. I well recall, during my time as Environment Secretary, the huge bandwidth needed to prepare and take through the statutory instruments needed for the initial exit process, and that was only 122 SIs.
It is worth looking at our experience with the deposit return scheme. That is a popular move and businesses believe that it can be made to work well, yet it is not expected to be in operation until 2024 at the earliest—six years after it was announced. If an uncontroversial bit of regulation takes that long to get right, my fear is that the process of reviewing environmental, animal welfare and food regulations might not be completed prior to either the 2023 or 2026 deadlines.
Retaining strong environmental rules and protections is absolutely crucial if we are to meet our commitment to halt species decline by 2030 and become a net zero economy by 2050. The perils of any gaps in food safety regulation are illustrated by the fact that, 30 years after the BSE disaster, there are still countries that ban British beef.
In conclusion, I would be the first to acknowledge that there are aspects of EU environment and food rules that could, and should, be made to work better. The habitats regulations are perhaps the most important example of that. As the former Environment Minister, my hon. Friend the Member for Taunton Deane (Rebecca Pow), said, important work has already gone into potential changes and reforms, but we must avoid the situation where sunset clauses leave us with a period without legal rules on crucial environment, food safety and other issues.
This Conservative Government have shown the strongest commitment to environmental goals. They have led on the world stage and have enacted a groundbreaking new Environment Act. I now look forward to working with Back-Bench colleagues and with Ministers to improve the Bill and deliver legislation that seizes the economic opportunities provided by regulatory reform and ensures we achieve the historic goal that ours will be the first generation to hand on the natural environment in a better state than we found it.
Joanna Cherry (Edinburgh South West) (SNP)
I listened to the new Prime Minister’s speech this morning, in which he promised to fix “mistakes”, acknowledged that work was needed to “restore trust” in the Government, and said that his Government would be marked by “integrity, professionalism and accountability”. One problem with the Bill, however, is that it will hugely remove the Executive’s accountability to Parliament. That is one of the mistakes that need to be fixed by the new Prime Minister, because it was prompted by ideology and desperation to point to some so-called Brexit benefits, when the overwhelming body of opinion—from business to the trade unions—says that it is a mess that will lead to legal uncertainty and more chaos. The author of the Bill has gone; I think the Bill should go with him.
Let us make no bones about it. The departing Prime Minister has left an almighty mess behind her because she pursued an economic policy that the vast majority of people, including the incoming Prime Minister, advised her against. The vast majority of people are advising against the Bill, including the majority of parties in this House, business, the trade unions, legal experts, all sorts of third-sector bodies and the devolved Governments. My plea to the Prime Minister, given the promises that he made this morning, is not to make the same mistake with the Bill that his predecessor made with the economy.
There are so many problems with the Bill that it is hard to know where to start. Other hon. Members have outlined some of them, but there are seven that I want to raise.
The first problem is that the Bill represents a huge transfer of power from Parliament to the Executive. That is hardly taking back control. Taking back control was supposed to be about the people of the United Kingdom and this Parliament, not the Executive. The Bill will give Ministers incredible powers to legislate on areas that affect our everyday lives without any meaningful democratic input.
The second problem is that the Bill means that if Ministers want retained EU law to fall away, they need take no action at all. The decision to take no action is not subject to parliamentary scrutiny, meaning that very important rights and protections could be lost, including the right to equal pay as between men and women—a pivotal change in our society—as well as food safety standards, which other hon. Members have mentioned, and workers’ rights such as a certain amount of paid holiday per year and a 48-hour maximum working week for road hauliers. Those are not the sort of rights that should just fall away, perhaps even by accident.
The third problem, which I raised in my intervention early in the debate, is that far from creating new high standards in our regulatory frameworks, the replacement legislation cannot increase standards; it can only leave them as they are or lower them. That is what clause 15(5) says. [Interruption.] The Minister shakes his head, but in my opinion that is what it says, and many other legal experts think so. It is not a minor detail; it is a major problem with the Bill.
The fourth problem is that reducing standards or allowing key pieces of legislation simply to lapse could risk the UK’s trading relationship with the EU at a time when we can ill afford it. I know that it was several Prime Ministers ago, but will the Government please remember the trade and co-operation agreement and their obligations under it?
The fifth problem is the fact that the proposed speed and scale of these changes—as we have heard, the Government’s retained EU law dashboard includes more than 2,400 pieces of legislation in 300 policy areas across 21 sectors of the UK—are completely unrealistic, and will inevitably result in mistakes.
The sixth point concerns the problems that the Bill poses for the devolution settlement. My hon. Friend the Member for Argyll and Bute (Brendan O’Hara) went into those in some detail so, given the constraints of time, I will not go into them in the same detail myself. The fact of the matter is, however, that in its current form the Bill will allow UK Government Ministers to act in policy areas that are devolved, and to do so without the consent of the Scottish Ministers or our Parliament, because secondary legislation does not need consent. Primary legislation needs consent, but that rule is more honoured in the breach than the observance.
Jonathan Edwards
As usual, my hon. and learned Friend is making a forensic speech. She will be interested to learn that more than 10,000 people marched for independence in Cardiff recently. I never thought that that would happen in my lifetime, but it is happening because of Bills like this. The people of Wales are seeing the British Government supplanting the devolution settlement, and are concluding that they have a choice between direct Westminster control and independence. That is what is happening in Wales, and I am sure it is what is happening in Scotland.
Joanna Cherry
Indeed, and I am pleased to say that I spent the weekend in Cardiff. It was my first visit, and I found it to be a beautiful city. I was attending the FiLiA feminist conference. I will certainly go back to Cardiff, and I should quite like to join one of those independence marches some time. Whether one is a Unionist or a nationalist, the fact remains that the mess that the Bill will create will only cause problems between Westminster and Holyrood.
That brings me to my seventh point, which concerns Northern Ireland and the impact of the Bill on the Protocol on Ireland/Northern Ireland. The Government have not yet conducted a full and comprehensive assessment of retained EU law, and they have also failed to analyse which areas of retained EU law interact with or have an impact on the commitments made in article 2(1) of the protocol or, as I pointed out earlier, on the level playing field provisions of the trade and co-operation agreement. The removal of key frameworks for interpreting retained EU laws and settlement agreement legislation—including EU general principles, in clause 5, and retained EU case law, in clause 7—may have an impact on the “keeping pace” commitment associated with article 2(2). That is another area in which the Government need to go back to the drawing board.
As Chair of the Joint Committee on Human Rights, I can say that we will be scrutinising the Bill very carefully for its rights implications, and will table amendments. However, I must add that I think it is pretty much beyond amendment, and that, as I have said, the Government need to go back to the drawing board. I say to them, “Please do not pursue another dangerous ideological experiment at the cost of our constituents’ rights, and at the cost of their livelihoods.” The Bill will have a big impact on business and a big impact on workers’ rights. This is absolutely not about people, or this Parliament, taking back control; it is about executive fiat, and the sidelining of democratic scrutiny by this Parliament.
In his speech when he took office this morning, the Prime Minister said that he would put the country’s needs above politics. Well, the country does not need this, and, in fact, there is more than one country in our Union. The Government need to respect the wishes of Scotland’s voters, the wishes of Welsh voters and the wishes of Northern Ireland voters, as well as the devolved settlement.
My message to the Government is that the Bill is a mess. Yes, it is embarrassing to ditch Bills, but let us face it, the Government have had a lot of embarrassment recently and they are getting used to it. They have already ditched one Bill, the Bill of Rights; I believe it may be bouncing back soon as a result of the Cabinet reshuffle, but it is certainly possible to ditch a Bill at this stage. This Bill needs to be ditched, and the way in which we deal with retained EU law needs to be revisited completely.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
The UK is party to many international legal arrangements, many of which do not enjoy a great deal of scrutiny in this House. Having heard several Members raise points about scrutiny in respect of EU law, I think it is important for us to acknowledge that there are a number of Members here with direct experience of that scrutiny process. We have heard about the Council of Ministers, in which UK Ministers signed EU law into the laws of all the member states. We have heard from former Members of the European Parliament, where the directly elected representatives scrutinise that law during the law-making process. I can speak as a former member of the Committee of the Regions, where the indirectly elected representatives of the United Kingdom authorities, including the Scottish Parliament and the Welsh Government, scrutinised those laws in that law-making process.
I can also speak as having chaired one of the employer organisations in the social dialogue, which were part of the cross-industrial sector process of working up the detail of what those laws and regulations should contain. So while it is absolutely the case that that law, once it was signed into the law of the United Kingdom by our Ministers, did not enjoy further scrutiny here, the UK was well known as a leader in designing good regulation across the European Union. I recall my experiences in the education sector, where in neighbouring conference rooms organisations such as chemical engineers, veterinarians, pharmacists, clinicians and representatives of the aviation sector were having similar discussions seeking to design better law and regulation, which sits in this retained body of EU law today as part of Margaret Thatcher’s single market.
A weakness of that process that we must acknowledge is that it was easy for big industrial organisations and corporates to engage with, but in a country where around 70% of our workforce are in enterprises with fewer than five employees, it was challenging for those types of organisations to have a voice. They will not have had the input that the UK industrial sector had in the designing of these regulations. This should remind us of the importance of our scrutinising the detail of what this Bill means when it comes to deciding what pieces of law we might wish to keep and which we might not. Ministers and Members across the House have acknowledged this.
For example, it is easy to dismiss the value of regulations around batteries, but those pieces of regulation were designed to ensure that the ambition set out in this House by British Governments that all batteries would be recycled was achieved. We will wish to ensure that if we continue to support that ambition, which we clearly do, we will have an equivalent form of UK regulation, appropriate for our market, that will ensure that that outcome can be achieved, as was the intention of those European Union rules.
This seems to be a good moment to take stock of what is in this wide body of legislation. I welcome the fact that our former Prime Minister but one made a number of clear public statements that the Government’s ambition would be to go beyond what was set out in the EU legislation, especially in respect of environmental protections and animal welfare, and that it was the aspiration of the United Kingdom, just as we encouraged higher standards in the EU when we were a member of it, that we would use the freedom from those standards to seek to have still have higher welfare standards and higher levels of environment protections than those that previously legally applied. I hope we are going to hear that this is not simply a matter of maintaining a minimum, or indeed of going back, and that it is going to be a considered process of looking at where we can go beyond what we have, because that is good for our economy, good for our environment and good for our people.
It is positive that several Members have recognised that there are opportunities to make this legislation better. We know that the European Union, much criticised sometimes for the slowness of its law making, would have been unlikely to be able to implement changes to the financial market legislation, for example. I have to acknowledge, having been involved in some of the EU discussions about online safety, that the UK’s Online Safety Bill goes well beyond what was envisaged as part of the EU law-making process. It sets a higher standard for online protection in the United Kingdom than was likely to have been achievable across that greater body of member states. There are opportunities for us to do things better as a result of these changes.
That said, like my right hon. Friend the Member for Chipping Barnet (Theresa Villiers), I welcome the fact that there is scope within this Bill, as we go through the process of looking line by line at what the implications of those legal changes would be, to extend the life of those protections, indefinitely if necessary. I suspect the right hon. Member for Leeds Central (Hilary Benn) is correct that there will be a number of areas where we will decide that the regulations work just fine as they are, thank you very much, and we will consider them to be implemented at UK level. However, we will undoubtedly wish to change or reshape some elements in the light of our UK circumstances.
I have had a clear message from constituents, especially those with an interest in the environment and animal welfare. They recognise that some of those pieces of EU legislation have been cumbersome and that they have not always been as helpful, as sharp and as enforceable as we would like to see when it comes to things such as habitat protection; but they note that we have had the highest level of wildlife loss of any nation in the G7. There are reasons for that, and it happened under EU regulation, so there is a need to ensure that within this context of “taking back control”, the promise of higher and better standards and more flexible legislation that was made to the British people is met in full.
I urge colleagues on the Government Benches to keep that at the forefront of their minds. This Bill is not about deregulation; it is about showing that we in the United Kingdom will have the ambition to have the highest possible standards and the best possible regulation as a country outside the European Union.
John McDonnell (Hayes and Harlington) (Lab)
I will speak as a trade unionist, taking up the point made by the hon. Member for Ruislip, Northwood and Pinner (David Simmonds). From the trade union point of view, I have been inundated with briefings from individual unions, including my own, which is Unison, the TUC, etc. All of them have the wishful hope that any legislation that comes before this House would be about improving standards and moving to the best possible, as he said. Unfortunately, all the briefings I have received are about the risks, rather than the benefits, that accrue from this legislation.
The list is almost endless; other hon. Members have mentioned them, but I will run through a few: risks to the right to paid annual leave, limits to working time, health and safety protections, prevention of less favourable treatment for part-time workers, guarantees and protections for parental leave, TUPE rights, discrimination laws, equal pay and maternity, paternity and adoption protections —it goes on and on. There is fear out there about what this legislation can do.
Many trade unionists voted for Brexit. They will have voted on the basis of the slogan “taking back control”—that is the reality of it—and they will have been convinced by some of the arguments about reasserting national sovereignty and the argument that decisions should be taken by this Parliament rather than the EU. However, I do not by any means think they voted for a massive transfer of powers to Ministers on the scale seen in this legislation.
This Bill asks trade unionists for a leap of faith. It asks them to put trust in Ministers on both the sunset clause, to be able to include continuation of or improvement on all the existing legislation, and the scrutiny process in this legislation, which is largely based on delegated legislation. Even in the best of worlds, particularly when the Government are revoking the Lords’ amendments to the European Union (Withdrawal) Act 2018 on the use of the super-affirmative process by which delegated legislation can be amended, that is a leap of faith too far.
That leap of faith relies on trust in a Government and a party that has been attacking trade union rights for 40 years and now seeks to introduce a new wave of anti-trade union legislation to undermine the right to strike itself. It also asks trade unionists to put their confidence in Ministers who in many instances do not survive a fortnight in office, and to put trust in Government and Ministerial decisions in the current industrial climate, with the Government cutting trade unionists’ pay and about to introduce another round of austerity.
In all the briefings I have received, there is a complete lack of trust in the Government’s competence to administer that transfer of legal powers. Mention has been made time and again of the 2,700 individual instruments. I agree with hon. Members who spoke of their lack of confidence in the Government even being able to survey the full range of instruments comprehensively. To put it in context, this is a Government who have announced the cutting of 91,000 civil service jobs in the coming period. It is very difficult to have confidence in the Government administering this whole process when they are decimating the civil service and removing that administrative expertise.
I urge the Government to think again about the detail of this Bill. I will vote against it today, because it is just not viable at the moment. Concern has been expressed on both sides of the House about the unrealistic sunset clause. The hard and fixed deadline of the sunset clause will not work. Even with the elements of flexibility contained in the Bill, it is hard to see how we can give assurance to our constituents that all their individual rights will be protected.
I have mentioned the concern within the trade union movement. I cannot see it having any confidence in this Government meeting those deadlines without some element of either malevolently undermining trade union rights or, following the cock-up theory of history, missing individual pieces of needed legislative reform.
We now need to look clearly at the legislative scrutiny process. I am sure the House of Lords will introduce amendments, as it did on the European Union (Withdrawal) Bill in 2018. We want this House to be able to have thorough scrutiny, with not just the ability to reject but the ability to amend and, in answer to the hon. Member for Ruislip, Northwood and Pinner, the ability to improve legislation through delegated legislation. That means the super-affirmative process included in the EU withdrawal process.
I re-emphasise what others have said: this Bill is transferring from Parliament to Ministers a scale of decision making, authority and sovereignty that we have not seen happen in this country’s peacetime history. This is fundamental to the rights of Parliament. Members on both sides of the House should take it extremely seriously and say to the Executive, “This is too far. You need to think again.”
Claire Hanna (Belfast South) (SDLP)
As other Members have outlined, this Bill should not be before us. The chaos that has characterised the Government’s past few months has distracted from the scale and scope of the Bill. By moving the Bill on day one, the Government are undermining the more stable and cautious approach that the new Prime Minister told us they would be taking. There might be a different name over the door, but this is very much the same approach. The idea that Parliament could address all these issues in the next 14 months is for the birds. Members have outlined the vast number of regulations—we are talking more than one a day, in addition to all the other priorities of sponsoring Departments—and the closest we have come to reassurance from the Government is that it is within the realms of possibility, which does not give much comfort.
We have predictably heard quite a lot about sovereignty and supremacy. Actually, retaining these laws, as we decided to do a few years ago, was an act of sovereignty. It was a rational act by a Parliament taking the necessary action to protect its people and the economy, but the Government are now proposing to whip off the tablecloth as a posturing tactic for no real reason, just because other countries—“aliens” we are told—were involved in their shaping. That is petulant and reckless. The Institute for Public Policy Research described it as creating
“extraordinary uncertainty for businesses and workers.”
And it ignores the fact that the vast majority of these regulations, far in excess of 90%, were agreed with the UK’s full consent and, in many cases, with the UK as a driving force.
Handing these powers to Ministers, whoever they may be tomorrow or in the next few months, also undermines the concept of parliamentary sovereignty, which was a core platform of the Vote Leave campaign. Frankly, this race to the bottom stuff—that is what this is really about—would not have flown so well on Facebook in 2016, when that campaign was being run.
As other Members have pointed out, it is for exactly that reason that people do not trust the Conservative party with the scale of these plans. What is at stake is the protection of workers, consumers and the planet. As people have said, maternity, paternity, adoption and parental leave, equal pay, TUPE rights, holiday pay and many other things are at risk of just sliding off the books, with some of the Britannia unchained crew in the driving seat. Unison has called this:
“An attack on working women”.
It is hard to disagree.
As clause 55 makes clear, the only way is down. At no point has there been anything stopping this Government raising standards for workers or for the environment, but they have not done so. The risk to the environment and nature is even more acute. Just in the lifetime of this Parliament, with the Trade Bill and the Agriculture Bill, the Government have had many opportunities to legislate to protect standards and they have absolutely dodged them. So nobody has any confidence that with this Bill things will be any different.
Of course, my key concern is for Northern Ireland, including the impact on the non-diminution of rights provisions in the trade and co-operation agreement and the protocol. Our region is already one of the most nature-depleted on the planet, with more than 10% of species at risk. We only just agreed in the dying days of the last Assembly very basic climate targets. The absence of an Assembly now because of the veto of the Brexit fans and vetoholics who usually sit in front of me means that there is no opportunity for Northern Ireland’s elected representatives to try to design replacement legislation. Even if and when the Assembly returns, this Bill makes good governance all but impossible for Northern Ireland, because the ability to know precisely which legislation applies to us, which is still to be spelled out, and which gaps might suddenly appear in law, is not available to us.
Furthermore, the replacement of retained EU law using delegated powers means that new legislation that could have profound impacts on intra-UK divergence can be made without consulting this House, let alone Stormont or any other devolved Assembly. So the Bill would compound the difficulty we already have of ensuring commonality across the UK and across these islands, including between north and south on the island of Ireland, in the areas that are required by the Good Friday agreement and in the many more areas that have emerged, which we now know need protection and regulation; two and a half decades have passed since that agreement. All the borders that this Government have spent the last few years hardening do not see the environmental problems that this Bill could create.
Unfortunately, the Government have shown themselves to be quite ignorant of the basket of shared norms and regulations that keep these islands together and keep us relatively safe. The Bill will have unknown consequences, with various different Ministers, dozens of them, re-weaving that basket with different threads and different colours, and without any real adherence to any particular pattern or scheme. The concept is bad, the content is bad and the timing is bad. Northern Ireland, once again, appears to be an afterthought. We will be opposing the Bill and we hope others will, too.
Paul Blomfield (Sheffield Central) (Lab)
In last Thursday’s business questions, there was some discussion about whether the Bill should be proceeding at this time. It is a good question not simply because of the uncertainty caused by the latest episode in the Tory leadership soap opera, which of course reflects the deep divisions that have torn that party apart in recent years, for which the country has paid the cost, but because the Bill comes from the same thinking that drove the mini-Budget. It puts ideology before common sense, ignoring evidence, refusing advice, dismissing experts, and causing huge damage to the economy and to families, in pursuit of what Conservative Members described as a libertarian experiment. That approach was honed in the referendum campaign. Let us remember the way the Office for Budget Responsibility projection of the hit on our GDP was dismissed. However, as the former Governor of the Bank of England pointed out last week, in 2016, Britain’s economy was 90% the size of Germany’s and now it is less than 70%. That is where putting ideology before common sense leaves us.
The point is not to reopen the Brexit debate, despite the best attempts of some Government Members to frame every discussion on the EU in that way. We are not rejoining the EU. We are not rejoining the single market or the customs union, although major Tory donors have made that case this week. The point is that we should learn from our mistakes, but the Bill doubles down on putting ideology before common sense, and which side he falls on will be a real test for the new Prime Minister.
Let us remember why we have retained EU law—it is because the Conservative Government proposed it as a sensible way of dealing with the practical problem of the legal vacuum that we would face if we left the EU without it. Hundreds and hundreds of laws that are part of the fabric of our lives would otherwise have fallen without proper consideration. We should remember —and the hon. Member for Ruislip, Northwood and Pinner (David Simmonds) made this point—that often those laws were driven through the EU by the UK; they were shaped by us; they were laws we needed.
The principle of retained law was that, over time, we could review the legislation and, if we chose, update, amend or drop it, but there are 2,400 laws. The madness of this Bill, but also its central purpose, is the sunset clause, which will see all retained law expire next December if it has not been incorporated in UK law. Of all people, the right hon. Member for Chipping Barnet (Theresa Villiers) warned about that quite forcefully as an ardent Brexiteer.
The Bill is the brainchild of a Secretary of State who is no longer in government. We know he faced significant opposition in Cabinet when he proposed it, and for good reason: it forces every Government Department to prioritise, above everything, the review of retained law over the next 14 months, or lose it. Is that really the priority for Government? We have an economy that is tanking as a result of their actions, a cost of living crisis that will break thousands of families, a war in Europe and a climate emergency, but in the face of all of that, the Bill tells every Department that its priority is to review retained EU law. It is complete madness.
What is at risk? In a cost of living crisis, with prices rising and businesses struggling, uncertainty will push costs even higher. The regulations and standards that we risk losing at the end of next year, as civil servants are stretched with the real business of government and struggling with the issues, are necessary for confidence in businesses, purchases and markets. They provide the certainty needed for growth. Without them, we are deliberately damaging investment—who would want to bankroll ventures that might lose their viability or access to markets as regulations are set to change significantly? How do British standards remain high and of good quality if we risk their simply dissolving without consideration either by Ministers or by the House when the sunset clause is triggered?
The legal chaos unleashed by this process is wildly unproductive. By tearing up all these regulations at a time of huge pressure on our public services and Government, the potential for things to be missed, late, or poorly executed is huge. How can businesses be sure of the obligations they need to fulfil in this situation? How can they ensure health and safety standards for their employees? How can they be certain that there will not be legal repercussions for their activities if these frameworks are binned in favour of a Daily Mail headline?
The head of the Government Legal Service from 2014 to 2020—the crucial period in which we debated our departure from the EU—said this weekend that this is
“absolutely ideological and symbolic rather than about real policy...there is no indication of which areas the government is thinking of retaining and which it is getting rid of. So there is no certainty about what laws we will have and what will replace them. It is a very, very bad way to change and make law...It creates…uncertainty within a very tight, and completely self-imposed timescale.”
Business is clear too—it has enough to be getting on with, protecting jobs and livelihoods, without the Government creating more barriers to their work. The Federation of Small Businesses has said that the Bill adds
“an extra burden to already very difficult trading conditions.”
It continues:
“A year just isn’t long enough for small businesses”—
the hon. Member for Ruislip, Northwood and Pinner made that point well too—
“to work out how their operations will need to change in response to a fundamental shift in the regulatory environment, such as the one proposed by the EU revocation and reform bill.”
As a member of the UK Trade and Business Commission, chaired so well by my right hon. Friend the Member for Leeds Central (Hilary Benn)—
Sir Robert Neill
Will the hon. Gentleman give way? I will not be speaking later in the debate.
Sir Robert Neill
The hon. Gentleman refers to business uncertainty. Has he seen the detailed briefing that has been prepared by the Bar Council about its concerns over the creation of legal uncertainty in relation to certain clauses of the Bill? Those clauses leave doubts as to how retained law should be interpreted, and doubts as to its status and what discretion judges will have in its interpretation. Surely those things should be put right before the Bill goes any further.
Paul Blomfield
I have not seen that briefing, but I will now look because the hon. Gentleman makes a very strong and forceful point, as he so often does in this House.
As I was saying, through the UK Trade and Business Commission, which draws representatives from every single party in this House, we have heard many frustrations from businesses over the past two years. Those businesses have asked for many things to improve the environment in which they are operating. Not one has said, “Please, ditch EU retained law.” Laws make sense—laws that we have helped to shape, laws that we have often played a key role in creating. Laws, as described by my hon. Friend the Member for Walthamstow (Stella Creasy), protect pensions, prevent carcinogenic materials in cosmetics, protect part-time workers’ conditions and so on. They are not bureaucratic red tape, but basic laws that underpin a civilised society and a good quality of life.
Why chuck everything in a bin and set it alight? Over the past few weeks, in particular, have we not had enough of disrupters in Government? I listened to the new Prime Minister this morning. He talked about placing economic stability and confidence at the heart of the Government’s agenda. He set out priorities in which this Bill does not figure. He said that his Government will
“have integrity, professionalism and accountability at every level.”
If he is serious, he will drop this Bill. Let us legislate with purpose, not for a headline in the Daily Mail. Let us reject this Bill today.
Layla Moran (Oxford West and Abingdon) (LD)
To state what is so obvious to my struggling constituents, we are in the middle of a cost of living and an economic crisis—a crisis made worse by this Conservative party’s cack-handed handling of the country’s finances and economy. I am talking not just about the past few days either, but about the decisions that the Conservatives have made in the sort of agreement that we struck with the EU following Brexit.
This Government have put up many barriers to trade over the past few years. They have created enough business uncertainty. We do not need any more of it, but that is what the Bill does. As others have said, I am amazed to see the Bill being brought forward—today of all days. It is indeed the brainchild—the baby—of the right hon. Member for North East Somerset (Mr Rees-Mogg). Minutes after Business, Energy and Industrial Strategy questions this morning, he then resigned, so it was left in the capable hands of the Minister, the hon. Member for Watford (Dean Russell), who I guess in this case would be the nanny—but that would be appropriate, would it not?
This is also the first day of the Prime Minister’s new tenure. People say start as you mean to go on. Well, I am sorry, but this is a very, very bad start indeed. What the Minister has failed to fully answer is why the Government are introducing this Bill. Why do they have to introduce it when there are so many other things that we need to get done, post pandemic, to get out of this mess? Why this? Why are the Government taking forward legislation that will make life harder for businesses in my constituency and across the country? Why do they want to make it harder for them to trade with businesses in France, Germany and Spain? Every time we diverge in standards, businesses face more red tape to export into the EU. This legislation would mean divergence en masse. That is not a pragmatic way to approach trading ties with our largest trading partner.
Then there is the cliff edge. Why on earth do Ministers think this is wise? I think back to 2019—I can see many Members who were here then—because if there is one thing that can unite the House, it is that we do not like cliff edges in Parliament. They are corrosive, including incidentally to inward investment, because they are damaging to business. They create a fog of uncertainty and put undue pressure on Parliament. Indeed, Members have been wise to raise that point, in thoughtful contributions not just from the Opposition Benches but from the Government Benches. This cliff edge is entirely unnecessary and, let us face it, will probably not survive the Lords, and quite rightly. I urge the Government to think again.
The Prime Minister told us yesterday that the country faces a profound economic challenge. Actually, on that we agree—who doesn’t? Yet one of his first acts as Prime Minister was to bring in this Bill. If he was serious about putting the economy right, he would pull this Bill. He would act in the national interest and put businesses up and down the country first, but instead he has chosen to put his party first. This Prime Minister, who no one voted for, has decided on his first day in office to push ahead with a massive undemocratic power grab that tries to wrest control of scrutiny away from Parliament, preventing us from having any meaningful say on future changes, and with no clear steer on how exactly the Government are to achieve this mammoth task in the timeframe they have set themselves.
Incidentally—this bit is even worse—Ministers can choose to do nothing. They do not have to lift a finger, and the termination of these standards, regulations and rights becomes the default, and settled areas of law become uncertain and contested, as the Chair of the Justice Committee has rightly pointed out. I am sure that other Members’ inboxes will have been inundated, as mine has, with emails from constituents who are outraged at the whole suite of vital protections that could now be struck down by this Conservative Government —I dare say that the Prime Minister was right to say that trust is not there, because, boy, do they not trust this Government, and nor do I.
Environmental protection is top of my constituents’ list of concerns—I remind the Prime Minister that we are also in a climate crisis, as well as an economic one. The RSPB has described the potential revocation of environmental laws in the Department for Environment, Food and Rural Affairs policy space as “an attack on nature” and has expressed particular concern about the regulation of air and water quality, and the prevention of pollution. Ruth Chambers, a senior fellow at Greener UK, a coalition of conservation groups, has said that the Government are
“hurtling towards a deregulatory free-for-all where vital environmental protections are ripped up and public health is put at risk.”
The approach to employment law is the same, as others have said. A host of rights, such as holiday pay and agency workers’ rights, face being downgraded or eliminated. The Institute for Public Policy Research has said that the cliff edge would create
“extraordinary uncertainty for businesses and workers”,
and the same is true in many different areas: justice, data protection, protections for consumers, and a whole host of others.
It is clear that this Bill is simply not fit for purpose. It is a Tory vanity project, replaying and harking back to an old record, played in happier times, and designed, frankly, to keep their fanatical right from their door. All of this will, in return, result in chaos, confusion and yet more consternation for our constituents and all those businesses, which deserve so much better. It will therefore surprise no one to hear that I and the Liberal Democrats will act in the national interest tonight by opposing this reckless Bill.
Patrick Grady (Glasgow North) (Ind)
Some 78% of voters in Glasgow North voted to remain in the European Union in 2016, but now in this Bill they find out what “Brexit means Brexit” really means: not just moving away from European directives and regulations, but an attempt to literally erase from history the fact that the UK statute book was ever influenced by them at all. It was this Government who invented the concept of retained EU law with the European Union (Withdrawal) Act 2018, and now they want to abolish it.
I was going to say that the former Secretary of State for Business, Energy and Industrial Strategy, the right hon. Member for North East Somerset (Mr Rees-Mogg), like some even more terrifying version of the Borg queen from “Star Trek”, would decide which regulations would become assimilated and which would be ejected into the cold vacuum of space, but he has ejected himself to the cold vacuum of the Conservative Back Benches.
The rejections being imposed by the Government start with the core principles of European law: the equality principle and the protection of fundamental rights. That is what Brexit really means in the minds of the hard Brexiteers: getting rid of all the protections that have improved the safety and wellbeing of people and nature, and putting the drive for profit, externalising responsibilities and the race to the bottom back at the heart of trade and the economy.
Can the Minister name a single stakeholder, even among the former Secretary of State’s friends in the City of London, who genuinely think this Bill is a sensible, pragmatic approach to reforming retained EU law? As we have heard from Members across the House, there is a list as lang’s my arm of groups and organisations who think it is the precise opposite. They call it dangerous, a cliff edge, a power grab and more. Workers’ rights, environmental rights, consumer protections, health and safety standards, the Northern Ireland protocol, the devolution settlement and the building blocks of parliamentary scrutiny and democracy are all at risk from the provisions of the Bill. Yes, there are suggestions from some of the stakeholders for reform, amendments or changes, but the overwhelming consensus is that the Bill should be stopped and scrapped outright.
In Westminster Hall last Wednesday and in the debate today, Ministers have been unable to give a coherent or compelling reason as to why the provisions of the Bill are necessary at all. If Parliament genuinely is sovereign, and if we really have taken back control as a result of Brexit, surely the approach to retained EU law should be the same as to the rest of the statute book: propose policies, engage with our constituents, consult stakeholders and then legislate as necessary through the usual processes of political debate and deliberation in Parliament— but no.
The irony is that the Bill was proposed by a Secretary of State who carved out a role for himself as a defender of Back Benchers, the rights of the House and parliamentary sovereignty, and now from the Back Benches he cheerleads a power grab of unprecedented proportions, even in a world where unprecedented events seem to be taking place on a daily basis. The Brexiteers’ logic was that the EU had become all-consuming and stood in the way of this Parliament’s freedom to consider and legislate for the allegedly unique challenges facing the United Kingdom. Faceless Brussels bureaucrats and unaccountable commissioners were standing in the way of hallowed British parliamentary sovereignty, but now faceless Whitehall mandarins and out-of-touch Tory Ministers will essentially be given all the powers that were once held by the whole suite of EU institutions—its Executive, its legislature and its courts. All those processes will be wrapped up into this one piece of legislation.
That is to say nothing of the total disrespect being shown by the Government to the devolved legislatures on these islands. Tory Ministers sometimes like to ask Members from Scotland to name one devolved power that is being taken back by Westminster after Brexit, and now we know the answer: pretty much all of them. Anything previously regulated by retained EU law can be changed across the whole of the UK at the stroke of a ministerial pen, even if it is in a devolved area. The whole edifice of devolution is being undermined faster than you can say “Sewel convention.” That is particularly important because the Scottish Government have committed to remaining aligned with EU regulation wherever possible.
Alignment makes trade in goods and services easier and more beneficial to all. It will also make the process of Scotland rejoining the European Union as an independent country that much more straightforward, so perhaps it is not surprising that the UK Government want to ensure that as much of the UK diverges as much and as quickly as possible from the EU acquis.
If that was not bad enough, as I have said in interventions, we need to look at how the Bill is being scrutinised. The European Union (Withdrawal) Act 2018, which created retained EU law, was scrutinised for two days on Second Reading, eight full days in Committee on the Floor of the House, a further two days on Report and then two rounds of ping-pong with their lordships’ House. But this Bill is getting whatever time we have been able to squeeze in before 7 pm today, with a bog-standard programme motion kicking it upstairs to a Committee full of hand-picked Government loyalists to rubber-stamp. A Bill of such constitutional significance should have been debated in a Committee of the whole House, and the Minister and his former boss, the right hon. Member for North East Somerset, know that. I hope that Ministers can commit to a supplementary programme motion for a Report stage that allows proper time for debate and for amendments to be discussed by the House as a whole.
As many hon. Members have said today, this Bill is not about efficiency; it is about ideology—the ideology of a Secretary of State who has now returned to the Back Benches. In reality, as hon. Members have also said, the Government will have to come crawling back to the House, either through the statutory instrument provisions or perhaps even with primary legislation, because what is proposed in the Bill will simply prove unworkable. It is not possible or necessary—let alone safe or secure—to sunset thousands of regulations at the end of next year.
As the right hon. Member for Leeds Central (Hilary Benn) and other hon. Members have said, there will have to be extensions, whether to the next arbitrary date of 2026, or perhaps a broader kind of continuation, much like what was established under the European Union (Withdrawal) Act in the first place. In the meantime, there will be uncertainty, confusion and a further erosion of any pretence of democratic scrutiny and accountability in the House. In among the Westminster chaos, people in Glasgow North and across Scotland can see what is happening, and they want no part of it. Their chance for a different kind of repeal Bill—the repeal of the Act of Union 1707—is coming very soon.
Rachel Hopkins (Luton South) (Lab)
I rise to speak in support of the Opposition’s reasoned amendment. Many of us voted to leave the European Union to see a strong, democratic, sovereign state working, facilitating UK business growth and decent jobs, and ensuring the delivery of public infrastructure and services in the interests of its citizens. Contrary to the assertions made by Conservative Members, I, too, believe that the UK can thrive outside the EU. I support the supremacy of our Parliament, as many hon. Members have put forward already, but this rushed, dog-ate-my-homework legislation presents a future of more chaos and uncertainty under this Conservative Government.
As we all know, at the end of the transition period, the European Union (Withdrawal) Act 2018 incorporated most EU law on to the UK statute book as “retained EU law”, so there is a need to resolve its future status and relevance in terms of how applicable it is and whether and where it should be placed in a hierarchy relative to UK primary legislation. Indeed, setting out a future sovereign state after Brexit requires a legislative process to establish the future status of laws—I believe that people expect that.
The Government’s Bill, however, gives enormous powers to the Executive to repeal and amend—but not improve—vast swathes of rights and regulations. In doing so, the Government are flying blind, as they have not bothered to publish an exhaustive list of the retained EU law that is in scope. That is as disrespectful to all citizens and businesses, whatever view they took of our membership of the EU, as it is to the House, which in effect, is not being informed about how many pieces of legislation are affected.
While the retained EU law dashboard is helpful, it is not an comprehensive list, as we heard earlier. The Commons Library has said that the Bill will apply to at least 2,400 pieces of legislation, so will the Minister commit to publishing in the Library, as a matter of urgency, a comprehensive list of the legislation that would be in scope of clause 1? This is an important point of principle; democratic parliamentary scrutiny must not be ridden over roughshod by the Government.
Further to not being certain about the full details of the EU retained law that is in scope, it is absolutely chaotic to then pursue a sunset clause that simply removes it all from the statute book by 2023. That just smacks of a Government shying away from scrutiny and lacking any sense of accountability, in a chaotic pursuit of a free-market race to the bottom of workers’ rights and environmental protections.
The Conservatives have shown that they cannot be trusted on the economy, and while they are hellbent on causing more chaos and uncertainty for the British people, Labour will act in the national interest and make Brexit work. We just need a general election to offer the certainty and leadership that our economy needs.
Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)
I was elected to this place on a prospectus for Scotland’s independence, which is a completely legitimate argument. When the right hon. Member for North East Somerset (Mr Rees-Mogg), who is no longer in his place, made his remarks about the value of democracy, they rang rather hollow in my ears. Although I respect England’s democratically expressed right to vote for Brexit and withdraw from the EU, I do not accept, as the Government and Opposition Benches do, that holding Scotland’s democracy hostage is somehow acceptable—it is absolutely not. The legislative process being considered this evening has been conducted without the consent of the Scottish people. It has not been consented to by our Parliament and it was not consented to in the referendum that was held. Although I do respect the right of withdrawal from the EU, it is disingenuous, at the very least, for the very people who embraced withdrawal from the EU to deny Scotland the right to withdraw from this Union.
Secondly, part of the agreement between the Kingdom of Scotland and England that led to the treaty of Union was that any law change should be to the “evident utility” of the people of Scotland. That is set in the articles of Union, and I see nothing in the Bill that is for the evident utility of the people in my Kirkcaldy and Cowdenbeath constituency. Scotland entered this Union through the coercive influence of the English Alien Act 1705 and the financial enticements of Scottish MPs who were bought and sold for English gold, to the outrage and consternation of the Scottish people. There was rioting in the streets and the Act of Union was burned in various towns.
Scotland’s 62% vote in the EU referendum in 2016 is often dismissed, as our history is often dismissed, as irrelevant to the modern era because we voted as one country. But the Act of Union 1707 created one state; it did not create one nation. Scotland is a country, and it has always maintained its identity as a country, even with the UN. From the declaration of Arbroath to the claim of right, it is the people of Scotland who are sovereign, not a Parliament and not a regent. That is a fundamental difference between Scots law and English law. Scots law is underpinned, in the common law, by the claim of right, whereas English law, and many other jurisdictions, is underpinned by Magna Carta. There are two Unions—there was the Union of the Crowns and, 100 years later, there was the political Union—but there was never a territorial union. Scotland is a separate and distinct people and country. The importance of the claim of right was best demonstrated most recently when King Charles acceded to the throne and had to swear to uphold the claim of right.
Despite some of my former colleagues being elected in 2016 on the basis of offering an independence referendum if Scotland were taken out of the EU against its wishes, subsequent elections have happened and no referendum has been brought forward. Despite pronouncements in this place and tough words in other Chambers, no referendum or preparations for a referendum have been forthcoming. Scotland has now been taken out of the EU against her wishes.
Pete Wishart
I do not know if the hon. Gentleman is not paying attention, but has he not noticed, and does he not recognise, that there is going to be a referendum in November next year? I know that Alba represents about 0.7% of all voters across Scotland, but at least they could start to pay attention.
Neale Hanvey
I thank the hon. Gentleman for that intervention, and if he paid attention he would know that the last poll put us on considerably more than 0.7%, which I know he loves to trot out on Twitter along with his usual offensive messages.
This legislative programme gives nothing to Scotland, and it will undermine the preparations that the Scottish Government are supposedly making to rejoin the EU. We now know what the United Kingdom Internal Market Bill was for. It was to facilitate the destruction of the devolution settlement, and that cannot stand. Alba’s position is that Scotland should join the European Free Trade Association immediately after our Parliament acquires the competencies to sign international treaties and abide by them. That would give us access to the European economic area immediately, and give us free trade with the EU. It would also solve cross-border trade with the UK, because the UK already has an arrangement with EFTA. EFTA membership could be negotiated in weeks rather than the years that it will take for the EU process to complete, and which would leave Scotland in the wilderness. It is essential that EFTA is back on the table for the Scottish people to consider.
We would also bring forward a written constitution by which Scotland will govern itself, and work with the variety of groups that have already brought forward developmental pieces of work on that. We consider that a series of citizens’ assemblies would be much better placed than a Committee Room upstairs to consider the laws that apply to the Scottish people. When the people are free and independent, they must fashion the instruments with which they are to govern: the divisions of powers, the extent of those powers between the Parliament and the Executive, the franchise, the electoral system, the judiciary and its appointment, the relationship between Government, police and people, and the principles and values that describe us as the nation we want to be seen to be on the international stage.
The written constitution should start from the principle that the people are sovereign, in keeping with Scottish constitutional tradition. That would offer us greater economic and social stability than being shackled to a failing, visionless political Union and this tawdry Bill. It is incumbent on all independence-supporting MPs to act in concert through a constitutional convention, to define the means to take us out of this dreadful Union.
Alex Cunningham (Stockton North) (Lab)
As we have heard, the Bill threatens environmental, health and industrial protections by casting an enormous shadow of uncertainty. During an economic crisis caused by the current period of Tory turmoil, the Government claim that they seek to promote growth, but the Bill would cause major disruption for businesses and, as the Chair of the Justice Committee said, put even more pressure on an overstretched legal system in settling uncertainties in the law.
There is also a huge cost to people and business, and I will concentrate on the tremendous pressure on the chemical industry, such as the one on Teesside, in complying with Government demands for UK regulations as perfectly workable EU ones are ditched. I am told that implementing the British REACH regulations, which has been demanded by the Government, will not now cost the industry £1 billion because, according to the Chemical Industries Association, the final bill is expected to be several times greater. Given that there is no clarification from Ministers about which laws and regulations they intend to retain, amend, or allow to expire, industries are left in a state of precariousness. Will EU regulations be retained, will they be amended, or will they just be ditched?
An incoming black hole left from the ditching of EU-derived legislation is increasing anxieties for businesses, including those in the chemicals industry. Many Members will know of the REACH—registration, evaluation, authorisation and restriction of chemicals—regulations, which regulate the majority of chemical substances that are manufactured in, or imported to, the country. They are vital for improving the protection of human health and the environment from hazardous chemicals, and for facilitating trade in chemicals across borders. Businesses that make chemical products and solutions are integral to some 96% of all manufactured goods and key ingredients, including for food and life-saving medicines, as well as material for mobile phones and electric vehicle batteries. The industry is calling for an alignment with EU REACH regulations that does not duplicate the efforts and costs already incurred by British businesses. Indeed, it would be unthinkable to do anything that reverses steps towards a better environment.
Alex Cunningham
No, I will leave it, thanks.
Rather than scrapping any chemicals regulation, the industry wants to ensure that the system for managing chemicals is both risk and science-based to ensure a high level of protection for our environment and society. Furthermore, the Bill places at risk the UK’s fulfilment of legal obligations outlined by the trade and co-operation agreement. Should there be a breach of that agreement, the EU could seek to impose tariffs on UK goods, increasing the impact on consumers during a cost of living crisis. The Bill in no way delivers the frictionless trade and consistency that the industry desperately needs. Instead, it creates barriers to trade and is loading billions of pounds in extra costs on an industry that is already under pressure due to the energy crisis.
I also fear the Bill’s impact on investment. It saddens me to say this, but why on earth would a multinational company opt to invest in Britain where business life is so much more complicated and expensive when it could be on the continent of Europe where such impediments do not exist? That is not what people on Teesside who voted in large numbers to leave the EU wanted or expected. I seek assurance from the Minister that he will think again about ditching and minimise any deviation from the EU REACH regulations to protect our chemical and other industries.
The Bill also poses a significant threat to workers’ rights, as the TUC made clear. EU-derived law—we have heard this several times—currently delivers: holiday pay; agency worker rights; data protection rights; protection of terms and conditions for outsourced workers; protection of pregnant workers; rights to maternity and parental leave; and rights relating to working time. In many areas, it is unclear what will happen to the protections that workers currently rely on as a basic necessity.
The legal system could very much do without untold chaos. Where EU-derived legislation is restated by Parliament, previous judgments relating to those instruments will no longer be binding. Issues will have to go through the judicial system yet again. The result will be workers and employers spending more time in court to establish what the law now means.
It is worth reporting that, at the weekend, Sir Jonathan Jones KC, the former head of the Government Legal Department, said:
“I think it is absolutely ideological and symbolic rather than about real policy”.
That is shown particularly by the failure of Ministers to provide answers on which areas will be affected.
The Bill also undermines the sovereignty of Parliament, removing the necessary opportunity for scrutiny and giving unwarranted powers to Ministers to revoke, modify or replace laws through secondary legislation. When people voted to leave the EU and take back control, they did not expect to be handing that control to a small bunch of Tory Ministers to do what they liked. We cannot allow Ministers to commandeer the parliamentary process for untold control, enabling them to change vast swathes of our law. Businesses, environmental groups, legal experts and unions are united on the desire to avoid the complications that the Bill will create.
The fundamental flaw on which the Bill rests is that well-established laws currently offering crucial protections on workers’ rights, businesses and the environment can essentially disappear. The former Business Secretary would have all forms of rights and regulations axed, but his days are over. It is important that the right hon. Member for Welwyn Hatfield (Grant Shapps) takes the opportunity to review this madness before it causes unbounded chaos and focuses instead on tackling the real problems that our country faces.
Pete Wishart (Perth and North Perthshire) (SNP)
It is like the old days, is it not? I was going to say the good old days, but they were not all that good. Remember the endless blue-on-blue, Tory-on-Tory Brexit wrangling with nobody being able to make up their minds about the way forward. We have had a little of that, and I thought it was going to get quite serious when the right hon. Member for North East Somerset (Mr Rees-Mogg) seemed to be squaring up to the hon. Member for Gloucester (Richard Graham)—I almost saw top hats at dawn. Thank goodness that they were able to back down and come to some sort of a reasonable conclusion.
Here we are once again debating Brexit: the issue that never goes away. You would expect nothing else, Mr Deputy Speaker, but I will put my cards on the table: I think that this is an awful Bill. It is a dreadful Bill. In fact, it is a Bill conceived, drafted and prosecuted in their ongoing ideological Brexit frenzy, ridding the UK of any vestiges of their hated EU. In fact, I would call it a vindictive Bill—more of a vendetta than a piece of legislation. And like all desperate ideologues, all traces of the ancient regime must be obliterated. Everything must be erased. Year zero must be established. We are getting three year zeros, but I think the one at the end of 2024 is the year zero for when all of Brexit is finally banished and we have the sovereignty that they claimed we were always going to have but never actually quite aspired to.
And so, this Brexit exercise in self-harm goes on and on and on. It is the ideological battle that never ends. I get the sense that nothing will ever satisfy them. Their insatiability for things Brexit and EU will never actually be met. They are almost like the Bolsheviks in the 1920s prosecuting their permanent revolution. I suspect that once we are concluded with this Bill and it is on the statute book, they will get around to digging into the earth’s core and start to geologically separate this island just that little bit further from mainland Europe.
The thing is that everybody is coming to the conclusion that their Brexit is a disaster. Anybody and everybody is beginning to tell them that. Even their friends are telling them that. I never knew anything about this guy, Guy Hands, but he is extolling them to
“admit the public was lied to”.
He is saying that they should renegotiate a new deal with the European Union. He says:
“The first thing to do would be to admit that the Brexit negotiations were a complete disaster”.
I do not know this Guy Hands, but I suspected he might have been some sort of tofu-munching Liberal Democrat, with all due respect to my Liberal Democrat friends, but apparently he is the Tories’ biggest donor and even he is saying that Brexit must be renegotiated.
As this disaster unfurls, is it not so disappointing to see the Labour party embracing it? The Labour party is becoming another party of Brexit. But it is okay, Mr Deputy Speaker, because it is going to make Brexit work! Are we not all relieved about that, then? The thing is, and I say this candidly to my colleagues on the Labour Front Bench, is that they cannot make Brexit work. In fact, it is designed not to work. Brexit was never a political strategy, so it cannot work. Brexit is an ideological venture driven by those guys over there on the Conservative Benches, founded by and predicated on British exceptionalism, the exclusion of others and an almost pathological hatred of everything European. But Labour is going to make it work! It is actually going to make it work without revisiting the single market or reinstating freedom of movement. It is going to make it work almost identically to the Brexit ideologists.
Labour may have given up on getting back into Europe, but those of us on the SNP Benches will never give up on our European ambitions. We will lead an independent Scotland back into the European Union. We are a European nation which values our EU membership, which voted to remain and aspires to return. With Scottish independence, we will put Scotland back into the heart of Europe in line with the wishes of the Scottish people.
This is the first day of the third Government in three weeks or four weeks—a few weeks, anyway. Was it not just a perfect opportunity for them to reconsider, pause, rethink and assess whether all of this is working? I went online the minute I got up very early in the morning to have a look to see if the Second Reading debate on the Bill was still on the Order Paper. To my great surprise it was, because I thought they would have taken this opportunity to reset and have a think about their European relationship. But not a bit of it. What we find is that the Sunak Government are the same as the Truss Government, the same as the Johnson Government and the same as the May Government. They are all Brexit—
Mr Deputy Speaker (Mr Nigel Evans)
Order. Not only is the hon. Gentleman going a bit wide of the Bill, but he is mentioning current serving Members by name which he must not do. He has been here long enough. He knows.
Pete Wishart
I heard, Mr Deputy Speaker, from a sedentary position, “Too long!” I am trying to resolve that—help me out. I want to be part of an independent nation. The hon. Gentleman and his friends could help in that ambition.
Simon Hoare
I am told that the Chiltern hundreds are beautiful at this time of year.
Pete Wishart
I hear the Scottish highlands are even more beautiful, but we might debate that one at some other point.
This Bill will drive a coach and horses through the devolution settlement. Combined with the United Kingdom Internal Market Act 2020, we are beginning to reach a crescendo in the assault on Scottish democracy and our parliamentary democracy. The joint pincer movement of the internal market Act and the Brexit regulations means that the Government are now almost entirely free to legislate at their leisure on Scottish devolved issues—issues that are the responsibility of Scottish Government Ministers and within the purview of the Scottish Parliament. The fact that the Government can legislate at leisure and at will is a threat to our Parliament.
I say gently to Government Members that what has happened has been a disaster for them. The idea of aggressive, muscular Unionism having any sort of resonance with the Scottish people has not worked. If there is an early general election—let us hope that there is—they will find that out to their cost with the loss of nearly all their Scottish Members.
I can see you exhorting me to finish, Mr Deputy Speaker, but let me say this about the Bill. I do not think that we have ever seen such a nasty, awful piece of legislation come before the House. Given that 2,500 pieces of legislation have to be looked at, doing away with all the EU regulations means that the House will be endlessly debating this stuff. Why not leave it alone? Take this opportunity to reset and rethink. Dump this dreadful Bill. Let Scotland become an independent nation—and then everybody will be happy.
Caroline Lucas (Brighton, Pavilion) (Green)
It is a positive delight to follow the hon. Member for Perth and North Perthshire (Pete Wishart), and it was refreshing to hear that strong defence of his position—to say that we will make Brexit work is frankly ludicrous for all the reasons he set out.
In the midst of a climate emergency, a nature crisis and a cost of living scandal, this reckless Government are introducing a Bill that is not only a bureaucratic nightmare, sucking away limited time from civil servants who should be able to address the critical issues that the country faces, but is purely ideological and can set alight vital environmental, worker and consumer standards in a bonfire of regulations.
All of this is happening because the former Secretary of State, the right hon. Member for North East Somerset (Mr Rees-Mogg), was so obsessed with purging our statute book of the European Union, but that is legislation that UK MEPs will have scrutinised, amended or supported. I know that because I was a Member of the European Parliament for 10 years. I can tell the Government that UK MEPs will have had a big part in shaping that legislation. After listening to two of the Government Members who spoke, I am not sure where they have been over the past 20 or 30 years, but it is almost as though they do not know that we had UK Members of the European Parliament. It is almost as though they did not know that environmental legislation, for example, was made through co-decisions, so we had a real say, or that the UK was a leader in some of this stuff and that we had a big role to play in the Council of Ministers, too.
All of that is now being thrown out. REACH, for example, controls or restricts the use of hazardous chemicals and ensures that manufacturers and importers not only understand, but manage the risks associated with their use. Although those regulations are directed at businesses, they are crucial for protecting human and environmental health while also setting rules on, for example, animal testing. What is more, REACH has already been amended through secondary legislation to make it operable in a domestic context. It has already received huge input from the UK through its MEPs and the Council of Ministers. The Bill fails to recognise the importance of that regulation. The Government are prepared to see it fall. That threatens public health, diverges from the EU system of approval and could lead to yet more, for example, animal testing in proving the safety of chemical products for export. This is bad law-making.
The former Secretary of State said in his ministerial statement on the Bill that it would
“fully realise the opportunities of Brexit”.
If he were here, I would ask him, in all seriousness, to tell me for whom those opportunities would be, because all I can see from where I am standing is the opportunity for Ministers to unilaterally strike out legislation that offends their sensibilities—potentially taking us back decades—without giving any indication of which laws will stay and which will go, underlining all the uncertainty for business, which others have mentioned. Simply being derived from the EU does not make laws bad, so this is irresponsible lawmaking of the highest order.
First, as other hon. Members have said, the sunset clause at the start of the Bill will automatically revoke legislation on 31 December next year if it is not already explicitly being retained, replaced or amended. That will create a totally unnecessary cliff edge and could lead to significant gaps in our legislative framework if laws fail. In other words, it is legislative vandalism. I assume that the Government do not actually intend a legal vacuum come January 2024, although who knows? However, that is what will happen as a result of this clearly unreasonable timeline, as many of the Government’s own Members have emphasised. It is simply not a sensible approach to mobilising Departments to act.
Furthermore, although the Bill sets out that there can be a later deadline of 2026 for some laws, neither the threshold nor the process for arriving at that point has been outlined. It is not clear, for example, whether it will be a decision for Secretaries of State to make for themselves. Worse still, the power appears not to be available to the devolved Administrations.
Secondly, clause 15 will allow Ministers to revoke or replace legislation with similar or alternative provisions that they consider “appropriate”. These are far-reaching provisions that have been described as conferring a “do whatever you like” power on Ministers. The Bill will fundamentally undermine parliamentary scrutiny because its role in revoking secondary legislation will essentially become discretionary. As hon. Members have eloquently said, if the Government choose to do nothing, the legislation will simply drop off the statute book.
Thirdly, there are wide-ranging impacts of the Bill that we simply do not yet understand because the Government have utterly failed to produce an impact assessment on the environment, on workers’ rights, on businesses or indeed on devolved competences.
Fourthly, as I have said, the Bill will come at a huge cost to the Treasury and create a massive burden for Departments at a time when they are already under enormous strain to provide basic services and are being warned by the Chancellor that they will have to make so-called efficiency savings when we know that there is nothing left to cut.
In that context, it is hard to imagine how the Secretary of State can possibly think that launching this deeply complex and totally unnecessary programme makes any sense at all. As other hon. Members have said, the Government’s retained EU law dashboard contains more than 2,400 pieces of law across 300 distinct policy areas and 21 sectors of the economy. This is an enormous piece of work that will take a herculean effort to deliver. The Government seem to be relying on a “trust us” mantra, but giving huge powers to Ministers on a “trust us” basis is a bad way to legislate.
The Bill will entrench the Government’s move towards deregulation. Although Ministers can replace laws with alternative provisions, the Bill states explicitly that they cannot increase what it calls “the regulatory burden”. I simply point out that one person’s regulatory burden is someone else’s protection of human and environmental rights. “Burden” is defined as including
“a financial cost…an administrative inconvenience…an obstacle to trade or innovation…an obstacle to efficiency”
and so on. An administrative inconvenience? I mean, come on! The protection of people, our environment, animal rights and human health has to be more important than something that the Government themselves define simply as an administrative inconvenience.
I was reflecting, as one does, on the 2019 Conservative manifesto, which included a clear commitment to “maintain high standards”. Hon. Members have repeatedly reassured us in this place that the Government will not weaken those standards post Brexit. Our concerns have been dismissed, brushed aside and ridiculed, yet the famous clause 15 absolutely makes the thrust of the Bill clear. Eroding regulations, or at least not increasing them, is built into it because they are not allowed to be strengthened, for all the reasons I have set out.
These are laws that have a very real impact on the lives of our constituents, ensuring that they are safe at work, that they are not subject to discrimination, and that they are able to spend time with their children—time that we know is fleeting and precious. The former Secretary of State has often made known his disdain for workers’ rights, but I think he has failed to understand the meaning of rights in the sense that they are universal and for everyone to enjoy, whatever their job is. It is not, as he has said, about some rights for some people but not for others.
The Bill constitutes the most significant threat to environmental law in recent history. As I have said time and again in this place, nature is at crisis point. The latest “Living Planet Report”, published just a few weeks ago, reveals that wildlife populations have plummeted by almost 70% globally in the past 50 years, a decline so severe that the World Wildlife Foundation warns that it
“puts every species at risk, including us.”
In the UK, we have lost almost half of our biodiversity since the industrial revolution—more than any other G7 country. That horrifying decline is blamed on our kick-starting intensive agriculture and industrialisation, or what Professor Andy Purvis describes as
“the mechanised destruction of nature in order to convert it into goods for profit.”
Hundreds of species are at risk of disappearing from our shores altogether. It is essential that we change that picture as a matter of urgency and restore our natural world, on which all life depends, but the Bill is going in the opposite direction.
I want to say a few final words about animal welfare, because it has not been mentioned much today. I am deeply concerned about the status of our major animal welfare laws, 80% of which are EU-derived and which the UK played a leading role in negotiating. These laws include bans on rearing hens in battery cages, the use of hormones in cattle and the import of products made from dog and cat fur, as well as covering the hunting and trapping of wildlife. Those are all deeply emotive issues about which we know our constituents feel hugely strongly.
Henry Smith (Crawley) (Con)
I am glad that the hon. Lady is raising the issue of animal welfare, which is extremely important. I hope that the Minister, when he sums up the debate, will assure us that the Animal Welfare (Kept Animals) Bill will return to the House, and that some of the other Brexit commitments that were given—for instance, that we would ban the export of live animals for slaughter and fattening—will indeed be realised.
Caroline Lucas
I entirely agree with the hon. Gentleman. I hope very much that the Minister will give us that guarantee.
The Environment Secretary reportedly told the Conservative party conference that his Department would become an “economic growth” Department. That, I think, is a ludicrous statement, because it fails to understand that the economy is reliant on and embedded within nature, not external to it. Indeed, as the Treasury-commissioned Dasgupta review makes clear,
“Our economies, livelihoods and well-being all depend on our most precious asset: Nature.”
In the light of that, I urge the Government not only to drop this dangerous Bill, which prioritises deregulation and reducing administration for businesses above our environment, but to drop their entire attack on nature. What we need right now is positive action. The leaders’ pledge for nature needs to be honoured, and the COP26 presidency needs to go forward into COP27 with positive measures, not the kind of aggressive policy that is summed up in this Bill.
Hywel Williams (Arfon) (PC)
The chaos recently visited on our constituents is yet another episode in the Conservative party’s extended Brexit fugue state. Many Conservative Members saw the last Prime Minister’s accession to Downing Street as an intoxicating chance to shrink the state, to deregulate, and to cut taxes for the very rich. We now know how that ended, when their cravings collided with reality. This bad Bill is a morning-after hangover.
Equally delusional was the idea, peddled hard, that the UK could risk trashing trade with our nearest neighbours while also growing the economy. Brexit is the driving force behind a 5.2% fall in GDP, a 13.7% fall in investment and a drop of 16% in UK-EU trade from what was projected—to which the Bill adds uncertainty and its disincentive effects. One might have thought that that would provoke a change of policy, and from both large parties, given that some on this side of the House dream of making the Tories’ hard Brexit work. Were they ever to find themselves in office, however, they too could not evade the contradictions that are implicit between Brexit and wider economic and social aims.
Another Brexit claim that is crumbling on meeting reality is the claim that leaving the EU was about giving power back to the people. This Bill will transfer large legislative powers from Parliament to Ministers. Earlier, the Minister claimed that the Government’s aim was to co-operate with devolved Governments, but the Bill is yet another assault on our Senedd’s powers, and the powers of the Scottish Parliament and the Northern Ireland Assembly. It gives UK Ministers powers to revoke, replace or update secondary retained EU law in devolved areas, subject only to the negative procedure in the House, and in many instances the test for use of these powers will simply be whether a Minister considers it appropriate. Indeed, as was said earlier, the Wales Counsel General has already warned that the Bill would give UK Ministers
“unfettered authority to legislate in devolved areas”,
and inevitably lead to lower standards.
The UK Government have refused a Welsh request for the dashboard of retained EU laws to be updated to identify which legislation is reserved and which is devolved, and how Welsh legislation might be affected. That was a practical suggestion. I recall the pre-devolution days and the structural confusion when every LAC—local authority circular—from Westminster was a WOC, or Wales Office circular, but every WOC was not a LAC. The Government are insisting on further trouble, further chaos and further uncertainty with this Bill. Will the Minister tell us whether that refusal to update the dash- board will be revisited?
Further, that approach undermines the principle that the UK Government should not legislate in devolved areas without the Welsh Government’s consent. In this regard, I draw the House’s attention to an important Bill tabled in the other place by my colleague, Lord Wigley: the Government of Wales (Devolved Powers) Bill. That Bill would enshrine in law the principle that powers devolved to the Senedd should not be amended or withdrawn without a super-majority vote of Senedd Members. Unfortunately, such protections are desperately needed in the face of a Westminster Government who are openly hostile to devolution. In contrast to the Bill before us, protecting the devolution settlement it is not about posturing; it is about powers for a purpose.
This Bill risks creating a regulatory ceiling that would prevent the Welsh Government from strengthening our rights as citizens, as consumers and as workers. Indeed, it only allows for the status quo or a diminishing of those rights. We are at risk of losing hard-won health and safety rights and employment rights derived from, or reinforced by, EU law. Westminster could abandon or modify laws that are crucial to conserving and restoring the natural environment, protections relating to the safety and standards of baby foods, protections for pregnant workers and rights relating to working time, including rights to a maximum weekly working time and paid annual leave. There is much more, and all this is the Government’s Brexit spree. If they are so confident that the Bill is wanted by the people of Wales, why don’t they just call a general election?
Stephen Farry (North Down) (Alliance)
I too am strongly opposed to the Bill. We can be wishful in our thinking that we are simply going through the motions today and that the Bill will never see the light of day again, but surely any Government who are serious about economic growth and doing the right thing by the UK as a whole would not allow it to proceed any further. Wide-ranging protections around the environment, climate change, employment rights, consumer protection and data protection are under threat from the Bill. We cannot separate this from the context of a Government with a stated objective of deregulation and trying to become Singapore on the Thames.
If the Government are serious about investing in growth, the lessons from around the world are that they should invest in skills, in infrastructure and in research and development. Crucially, they should also address the trade barriers that have been erected with our nearest trading partner, the European Union. That is where the biggest impediment to growth is coming from. I urge the Government to wake up and address that reality, rather than being blinkered around the ideology they have adopted. But even if there were no overt agenda and this was just a change of approach, the approach that has been taken is hugely reckless. Rather than simply adopting or amending each regulation or directive as they go along and as circumstances change, they are upending everything in one go. That is an accident waiting to happen, because gaps will be inevitable in that respect.
A few Members have referenced the pressures on the civil service, and there are precious few civil servants working on this already. This is an impossible timescale to get it done correctly, and next week we will see further announcements of spending cuts to Government Departments, including to staff, which will create further barriers. Frankly, this Bill is at best a huge distraction from what the Government should be doing, and at worst a sinister development that could undermine devolution in the three devolved nations and regions of the UK.
There are also particular threats both to the level playing field protections of the trade and co-operation agreement and, in particular, to the Northern Ireland protocol. Although the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Dean Russell), spoke about the UK observing its international obligations in that respect, there is none the less a danger that these obligations will be unpicked, particularly at the interface where it is not entirely clear where responsibilities lie or how different commitments are interpreted.
The classic example relates to the Northern Ireland protocol. Although it may be clear that annex 2 takes legal precedence over anything else, that is not the case for article 2 on the non-diminution of rights, which touches on a whole range of equality and employment rights protections that could well be unpicked because it is open to a certain degree of interpretation.
It is also fair to say that the more divergence there is between Great Britain and the European Union on a whole range of regulations, the greater the barriers will be to trade. The classic example is data protection. If the UK diverges on data protection, it will create barriers to UK companies dealing with the European Union. Companies often want to ensure that they have access to the European market, so it is in their self-interest to align with EU regulation. We have to recognise that few powers in the world have the mass and weight to be de facto arbiters of what regulation looks like. One is the United States and another is the European Union. I have to say, the United Kingdom is not at that level outside the European Union.
The Bill also creates an even bigger cliff edge for what is happening inside the UK with regard to the Northern Ireland protocol. The closer that Northern Ireland and Great Britain are aligned, the softer the protocol will be, but if Great Britain diverges further in the areas covered by the protocol, it will create more tensions in the Irish sea interface at a time when, notionally, the Government are seeking negotiations with the European Union to overcome those tensions.
The final area is the Bill’s overall impact on the devolved settlements. I agree with the many opposition Members, from a range of political parties, who have said that the Bill is a major threat to the devolved settlements, as it upends the balance between the UK Government and what happens in Edinburgh, Cardiff and Belfast. The Bill builds on the precedent of the United Kingdom Internal Market Act 2020 and the repeated breaches of the Sewel convention.
Although we may have some protection in Northern Ireland through the protocol, we will potentially see as many as 500 pieces of regulation upended. In the devolved regions we have a cliff edge of 2023, as we do not have the option of extending it to 2026. That will place huge pressure on civil servants. I do not need to remind the House that Northern Ireland does not currently have an Assembly or an Executive, much to my regret. Frankly, those who pulled the plug are in dereliction of their duty and were asleep whenever this happened to our devolved settlement.
Civil servants will have precious little time to put this in place, which will potentially leave consumers, businesses and workers in Northern Ireland in an extremely vulnerable situation. I urge Members to reject this Bill today. If they do not, I hope we are going through the motions and that wiser counsel prevails, as this dead end is utterly counterproductive to the UK as a whole.
Kim Johnson (Liverpool, Riverside) (Lab)
This is a Government operating without a mandate. We have had three Prime Ministers in less than two months and no general election. The new Prime Minister was appointed only a few hours ago, having been crowned with the support of fewer than 200 MPs and without a single ballot cast. This Government now want us to entrust them with sweeping powers to rewrite thousands of vital workplace protections. Let us not forget that it was the Tories who brought in the most draconian trade union legislation across Europe. This Government have been a disaster for workers, with a long history of opposing rights and standards at work, as we have seen from fire and rehire to the explosion of in-work poverty, precarious work and zero-hours contracts. They are currently undertaking a bonfire of basic rights, from the Public Order Bill to this Bill. Many years of struggle in the name of progress are being wiped out in the blink of an eye, and all with next to no scrutiny or accountability.
Matt Rodda (Reading East) (Lab)
One of the most pernicious aspects of this Bill is the threat to maternity and paternity rights. In my constituency, and across the country, parents are already under enormous pressure because of the very high cost of childcare. My hon. Friend may well be moving on to this point, but I just want to ask the Minister or his colleagues to write to our shadow Front-Bench team to reassure them about the Government’s intentions in this important area.
Kim Johnson
I thank my hon. Friend for his intervention and I will be touching on that point. Others have mentioned today the rights that will be attacked. With all that in mind, how could this Bill be anything other than an unmitigated disaster? Equal pay, maternity and paternity rights, the 48-hour working week, minimum rest periods and holiday pay, to name but a few, are all on the table to be put on the scrapheap—and that’s not even the half of it. Can the Minister tell us where in the 2019 Conservative party manifesto it says that the Government intend to scrap all that? People in this country did not vote for this. Work will become more dangerous and yet more insecure.
This Bill is being driven forward by a small number of ideologues who are hellbent on discarding basic rights and protections, driving a reckless race to the bottom for workers. Hidden in this Bill are sunset clauses: provisions to create a countdown for the expiry of vital workplace protections by December next year. That means that by the time the festive season comes around next year, holiday pay could be off the table.
Margaret Greenwood (Wirral West) (Lab)
My hon. Friend is giving a powerful speech, as she always does. She is talking about the sunset on retained EU law, causing most of it to expire by the end of 2023, handing over to the Executive immense powers to do whatever they wish. She is making a powerful case about the impact of that on workers’ rights. The Institute for Public Policy Research has raised the concern that this will create extraordinary uncertainty for businesses and workers, as well as the prospect of legal chaos. Does she agree that in recent weeks the Conservative Government have caused huge uncertainty for businesses and that this simply will not help?
Kim Johnson
My hon. Friend makes a valid point about the disruption that this Government have caused in the past couple of weeks and months. This is a zombie Government clinging to power in order to push through their destructive agenda. They are running scared from the people they are supposed to represent. They have no mandate, no plan to meet the challenges of the cost of living crisis and nothing to offer working people.
The Bill places our rights at work, our environment and our hard-won equal rights on a cliff edge, left to the mercy of Tory Ministers. The economy is on the floor, with the cost of living crisis set to cost thousands of lives this winter. We need a stable economy with a significant redistribution of wealth and power more than ever. I wish to appeal to the Conservative Members opposite: it is within your gift to stop this deeply destructive Bill and the threats it poses to your constituents. You are facing some of the lowest polling your party has ever seen. Your economic credibility is in the bin. After 12 years of Tory austerity—
Mr Deputy Speaker (Mr Nigel Evans)
Order. You should not use the word “your”—that refers to me.
Kim Johnson
Apologies, Mr Deputy Speaker. As I was saying, we have seen Tory austerity, attacks on working people and a concentration of wealth and power. It is time to face reality. People in this country are saying, “Enough is enough.” [Interruption.]
Mr Deputy Speaker
I am sorry, there were some noises there but I was not saying anything.
Kim Johnson
Okay, Conservative Members can make a lot of noise, because that is all they ever do. Thanks.
Is now really the time to decimate rights and standards at work, environmental protections, and health and safety? Conservative Members should consider just how destructive this will be, and just how angry people will be with this wholesale attack on their basic rights and protections. This Bill is not fit for purpose and it should not go ahead.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
On a point of order, Mr Deputy Speaker. At noon, the new Prime Minister promised “integrity, professionalism and accountability”. At 5 pm, he reappointed the former Home Secretary, who resigned from the post just one week ago, saying that she had broken the ministerial code and admitting that she had sent confidential documents outside Government from a private email.
In the urgent question last week, I raised a series of questions about whether there had been an official audit to check what other documents the former, and current, Home Secretary might have circulated from personal emails, because there were suggestions in the media that there had been others; and whether the right hon. and learned Lady’s resignation letter was in fact factually correct, because her account was different from briefings to the media and the statement by the Minister for the Cabinet Office last week.
May I ask you, Mr Deputy Speaker, to help us to get urgent answers to these questions? The Home Secretary has access to the most sensitive information of all, relating to our national security. We cannot have someone careless and slapdash in that job. How on earth does it meet standards of integrity and professionalism to reappoint someone who has just broken the ministerial code, and has just breached all standards of professional behaviour in a great office of state? It looks as if the new prime minister has put party before country. Our national security and public safety are too important for this.
Mr Deputy Speaker (Mr Nigel Evans)
I thank the right hon. Lady for her point of order. While she will clearly have opportunities to address those matters in Home Office questions, I fully appreciate that the next Home Office questions will not be until 14 November. Those on the Treasury Bench will have heard her point of order, and I am sure that they will pass it on to the Home Office.
Royal assent
Mr Deputy Speaker
I have to notify the House, in accordance with the Royal Assent Act 1967, that His Majesty the King has signified his Royal Assent to the following Acts:
Supply and Appropriation (Adjustments) Act 2022
Social Security (Special Rules for End of Life) Act 2022
Health and Social Care Levy (Repeal) Act 2022
Energy Prices Act 2022.
Retained EU Law (Revocation and Reform) Bill (First sitting)
Tuesday 8th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 November 2022 - (8 Nov 2022)
The Chair
Colleagues, welcome to this interesting Committee, as we get stuck into this important Bill. We are now sitting in public and the proceedings are being broadcast. I have taken my jacket off, so feel free to disrobe in any way that you feel is appropriate. I have a few preliminary announcements. Hansard colleagues would be grateful if Members could email their speaking notes, if they exist, to hansardnotes@parliament.uk. When I was first elected, we never had to say such things, as we did not have emails. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings. Date Time Witness Tuesday 8 November Until no later than 9.50 am Sir Stephen Laws KCB KC Tuesday 8 November Until no later than 10.25 am Professor Catherine Barnard, Professor of European & Employment Law, University of Cambridge; Professor Alison Young; Sir David Williams, Professor of Public Law, University of Cambridge Tuesday 8 November Until no later than 10.55 am Tom Sharpe KC, One Essex Court; Martin Howe KC, 8 New Square Tuesday 8 November Until no later than 11.25 am The Bar Council; Eleonor Duhs, Bates Wells Tuesday 8 November Until no later than 2.35 pm Sir Richard Aikens, Brick Court Chambers; Barnabas Reynolds, Shearman and Sterling; Jack Williams, Monckton Chambers Tuesday 8 November Until no later than 3.05 pm Sir Jonathan Jones KC, Linklaters; Hansard Society Tuesday 8 November Until no later than 3.35 pm Trades Union Congress; Unison Tuesday 8 November Until no later than 4.20 pm Green Alliance; Wildlife & Countryside Link; Unchecked UK; RSPCA Tuesday 8 November Until no later than 4.40 pm The Scottish Government Tuesday 8 November Until no later than 5.10 pm Law Society of Scotland; Charles Whitmore, Research Associate, Cardiff University; Dr Viviane Gravey, Senior Lecturer, Queen’s University Belfast
We will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and, if we need to, a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope that we can take those matters without debate. I call the Minister to move formally the programme motion in her name, which was discussed yesterday by the Programming Sub-Committee for the Bill.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 8 November) meet—
(a) at 2.00 pm on Tuesday 8 November;
(b) at 9.25 am and 2.00 pm on Tuesday 22 November;
(c) at 11.30 am and 2.00 pm on Thursday 24 November;
(d) at 9.25 am and 2.00 pm on Tuesday 29 November;
(2) the Committee shall hear oral evidence in accordance with the following Table:
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 10, Schedule 1, Clauses 11 to 20, Schedules 2 and 3, Clauses 21 to 23, new Clauses, new Schedules, remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 29 November. —(Ms Ghani.)
The Chair
The Committee will therefore proceed to line-by-line consideration of the Bill on Tuesday 22 November at 9.25 am.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Ms Ghani.)
The Chair
Copies of written evidence that the Committee receive will be made available in the Committee Room and circulated to Members by email.
The next motion relates to deliberating in private. We may not need to move this motion, colleagues. My suggestion is that I will start every panel by turning to the Labour lead to ask the first questions. We will then go across the Committee. Indicate to me if you wish to ask a question to the particular witness, bearing in mind that the knives are absolute; we have 15 or 20 minutes, or whatever, with each group of witnesses, and we cannot go beyond that.
It would be helpful, if you are asking a question, and if there is more than one witness at the time—particularly if we have witnesses on Zoom and witnesses in person—to indicate who in particular you would like to answer the question, or whether you would like them all to answer. That would be quite helpful, but you will probably forget that after about 10 minutes. Are we happy to proceed on that basis without going into a private session to agree how we will ask the questions? If everyone is happy, that is that.
This is a serious moment, colleagues. Before we start hearing from the witnesses, do any Members wish to make a declaration of interests in connection with the Bill? No. In that case, we will now hear oral evidence from Sir Stephen Laws, former First Parliamentary Counsel, who is waiting patiently for us on Zoom. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill, and we must stick to the timings in the programme motion that the Committee has agreed. For the first witness, we have until 9.50 am.
Examination of Witness
Sir Stephen Laws KCB KC gave evidence.
The Chair
Will the witness please introduce himself for the record?
Sir Stephen Laws: My name is Stephen Laws. I was First Parliamentary Counsel from 2006 until 2012. Before that, I had been a career drafter and civil servant since 1975. I am now a senior research fellow at Policy Exchange.
Justin Madders (Ellesmere Port and Neston) (Lab)
Q
Sir Stephen Laws: Yes, I think it is. The ideal for the law is that all law can be found from easily accessible sources and relied on to mean what it says without being qualified by complex, obscure or general glosses, or involving complex historical research to find out whether it is valid. The Bill, by removing everything that is subject to those disadvantages—because the ideal is not the situation at the moment for retained EU law—is an important step towards securing that the ideal is achieved, by forcing the decisions to be made about how this law can be properly integrated into UK law quickly. Things will only get worse if that does not happen.
Retained EU law is imprecise because it has been removed from the context needed to make sense of it. That will get worse because the sources become of historical interest only, and the methodologies in the UK system for dealing with EU law will become lost knowledge and of historical interest only. The law will become obscure. The Bill is a useful way to force things to become better.
Justin Madders
Q
Sir Stephen Laws: The way in which it is scrutinised is a matter for Parliament to work out. It is not something that you would expect to be wholly within the Bill. When deciding what parliamentary scrutiny there should be, it is important to decide what parliamentary scrutiny is for. There is a sort of myth that Parliament should treat itself as the author of legislation and should look at every line, and that legislation for which Parliament has not looked at every line has not been properly written. That is an unrealistic position.
Parliament is a political filter for legislation. It is important that it should identify the bits of legislation that are politically salient, and that it should provide an incentive for technical quality. The first can be achieved, as was the case with the legislation under the European Union (Withdrawal) Act 2018, by having a really rigorous system of triaging subordinate legislation made under the Bill to ensure that Parliament picks up the things that are politically salient. The second is achieved in practice already right across the board by random sampling; what keeps drafters keeping the quality of their drafting up is not that Parliament will look at every line, but the fact that they do not know which lines Parliament will look at, so they have to get them all right.
The Bill establishes the conventional methods of scrutiny, but they need to be backed up by a parliamentary process decided by Parliament and not set out in legislation, because, as we have learned in the last six years, if you put provisions about parliamentary procedure in legislation, you find yourself in the courts. That is not where the processes of Parliament should be.
Justin Madders
Q
Sir Stephen Laws: By the support given to the parliamentary Committees that look at legislation, and perhaps by asking the Government to make sure that their plans for legislation are exposed first, so that Parliament has an opportunity to look at the plans and say, “Well, if that’s what you’re going to do, those are the things that we want to look at in particular.”
Justin Madders
Q
Sir Stephen Laws: Yes, I would, because they have not told you what they aim to do with all this legislation that is going to be repealed. I suggest that you ask them to do that as the process proceeds.
The Chair
I have a feeling that that might happen.
Sir Stephen Laws: Yes, I thought that it might happen too.
The Minister for Science and Investment Security (Ms Nusrat Ghani)
Q
Sir Stephen Laws: Yes, it is. EU law applied in a situation where we are not in the EU is quite difficult to work out. The provisions of the 2018 Act are extremely complex; they are glossed. A lot of the EU law was made in the context of trying to harmonise across Europe. When you are trying to work out what it means, you want to know what it is for, and what a lot of it was for is not now relevant. It is not about harmonising rules across Europe; it is about applying rules in a domestic context.
Ms Ghani
Q
Sir Stephen Laws: On the whole, yes. I have some reservations, because there are respects in which the Bill contains worrying aspects through which it might be possible for inertia to reassert itself, and for the status quo to become the default for what replaces it. My experience of all legal change is that it is most effective when it is ratcheted—when people do not have the option of saying, “Oh well, we will exercise this power to keep things the way they were.” That needs to be watched carefully and, if possible, legislatively discouraged.
Ms Ghani
Q
Sir Stephen Laws: Yes, it does. The major difference between the way the UK traditionally legislates and the way the EU—and indeed lots of other countries—legislate is that under a parliamentary system the Government take responsibility for the effect and quality of the law. That means that when law is made, it is made to do something that people have agreed on. Very often, law made in Europe—in different languages as well—was a matter of agreeing words, irrespective of what the words achieved. If you could agree on the words, that was the best that you could hope for; that may happen very occasionally in my experience, and very rarely indeed in the UK. In the UK people agree on the substance, so you know what the law does. Retaining all this law that was there because it was a compromise on words is making life difficult for those people who have to use it.
Peter Grant (Glenrothes) (SNP)
Q
Sir Stephen Laws: Well, most of the law that this relates to—certainly the early clauses about subordinate legislation—is not law that Parliament made; it is law that Parliament enacted or approved because it had to. The law that will be made under the Bill will be made by a Government accountable to Parliament. The powers in the Bill are equivalent in some ways to the power under section 2(2) of the European Communities Act 1972, but in that case there was no choice about the substance of how you exercised the power; the argument was all about the means. Under this Bill, Parliament will have an opportunity to look at the substance as well as the means.
Peter Grant
Q
Sir Stephen Laws: Yes, but that does not mean that Parliament agreed to the substance of the legislation—nor, in some cases, did the Minister. They are all part of compromises. In the end, the European law had to be enacted because it was European law.
Peter Grant
Q
Sir Stephen Laws: There were mechanisms to feed in the UK view, but the UK view did not necessarily have to prevail.
Peter Grant
Q
Sir Stephen Laws: Frankly, that is not a question that I have prepared for, so I cannot say much. What I can say about the Good Friday agreement is that I am not sure that the protocol is relevant, because the law by which the protocol applies is the law of the things that are not retained just because we were carrying over the old law, which is what this Bill is mainly about. I am sorry; I have not looked specifically at the Northern Ireland aspects of the Bill.
Mr David Jones (Clwyd West) (Con)
Q
Sir Stephen Laws: Yes, I do. I think that that is part of the confusion. If we are going to work out what the law means, it is important that the system for retained EU law should fit the system that we have for all other law, which is that the latest views of Parliament should count.
Alex Sobel (Leeds North West) (Lab/Co-op)
Q
Sir Stephen Laws: I did not intend to imply that every one of the laws that will disappear needs to be replaced. A rational approach is to say that everything will cease to have effect unless we replace or retain it. There is a fallacy around legal reform that was criticised by Cass Sunstein, the American jurist and adviser to President Obama, which is that the law is very fond of the status quo: the law thinks that if we know the law already, changing or removing it must be less clear. I think that the status quo is something that needs to be justified just as much as any proposal for change needs to be justified.
We have had six years to look at all this law and to decide what of it is so valuable that we need to keep it. If people are now not able to defend specific bits of the status quo that they think are important, it is likely that they never will be able to. People will keep relying on the fact that it is the law already and must be clearer than a change, but to say that we should not change law because change is always more uncertain than keeping things the way they are is an argument against all legislation. We might as well wind up Parliament all together if we are to pursue that argument.
Alex Sobel
Q
Sir Stephen Laws: I think you need to be concerned about it, but first, you have to exclude from the equation the idea that law becomes uncertain just because you are changing it; that is an argument against changing the law altogether. Secondly, you have to recognise that most law, but not all, is about either imposing duties on people to do things, or imposing duties on people not to do things. It is quite clear that repealing a law does not bring about anything that did not exist before. You do not, by removing a prohibition, require people to do what was previously prohibited; nor do you, by removing a duty, forbid people from doing what they were previously under a duty to do. For most purposes, if a law disappears, people can carry on behaving exactly as they did before until they see a good reason not to. It is just that they are not required to undertake that duty, or are no longer subject to a duty not to do something different. I am not sure that as much lack of clarity is produced by removing a whole load of law as is being suggested.
Alex Sobel
Q
Sir Stephen Laws: I do not think so, because as I have said, people have had six years to look at this law and see how much of it they think is important. Another year does not seem an unreasonable period in which to finalise their views on these things.
Saqib Bhatti (Meriden) (Con)
Q
Sir Stephen Laws: Yes, because it removes a whole load of law that was enacted under a system that qualified parliamentary sovereignty by imposing obligations on the Government and, indirectly, Parliament, to produce particular forms of law. The Bill replaces that with a system in which all new law will be subject to questions, as to substance and form, in a parliamentary forum.
Saqib Bhatti
Q
Sir Stephen Laws: I do not think I can add much to what I said before: there is a great volume of law here; a great volume of law was produced under section 2(2) of the European Communities Act 1972 and, indeed, under the 2018 Act. It is important that Parliament develops a sensible system of scrutiny, so that it can do its job of questioning and legitimising matters that are politically salient, and providing a robust system of random sampling, so as to make sure that the quality of legislation is maintained.
The Chair
There is time for one quick question, if anyone is bursting to ask one. Ah! I call Stella Creasy.
Stella Creasy (Walthamstow) (Lab/Co-op)
Q
The Chair
You have 30 seconds, Sir Stephen.
Sir Stephen Laws: It is possible to underestimate the influence Parliament has, even if the procedures are relatively formal. In the last six years, we have seen that Governments who try to do things that do not have the approval of Parliament get themselves into a lot of trouble. By now, they have probably learned the lesson—indeed, I think they have always known the lesson— that Governments do not propose things to Parliament that they know Parliament will not, in the end, want to agree to.
The Chair
Thank you. That is a high note on which to finish, Sir Stephen. Thank you for the clarity of your evidence.
Examination of Witnesses
Professor Catherine Barnard and Professor Alison Young gave evidence.
The Chair
We will move on to oral evidence from Professor Catherine Barnard, professor of European and employment law at the University of Cambridge, and Professor Alison Young, Sir David Williams professor of public law at the University of Cambridge. Both witnesses are joining us via the magic of modern technology. For this session, colleagues, we have until 10.25 am. Could the witnesses please introduce themselves for the record? Professor Barnard, would you like to go first?
Professor Barnard: Thank you very much for the invitation. My name is Catherine Barnard. I am professor of EU and employment law at the University of Cambridge, and a deputy director of UK in a Changing Europe.
Professor Young: I am Professor Alison Young. I am the Sir David Williams professor of public law at the University of Cambridge, and a fellow of Robinson College, Cambridge.
The Chair
Thank you for being with us. We have a plethora of questions for you. The first is from Justin Madders.
Justin Madders
Q
Professor Barnard: Thank you for that question. No, we have not. UK in a Changing Europe is trying to track the changes to retained EU law, but as we have seen from the Financial Times reports this morning, the National Archives has worked with Government and found an extra 1,400 pieces of retained EU law that the Government did not seem to know about until about last week, so it looks like there are about 3,800 pieces of law. If they found an extra 1,400 pieces after the extensive work that Government had done before that, it makes you wonder whether other things are out there. This is the issue with the sunset being the default position. As a default, it will turn off all retained EU law, even if the Government are unaware of what that retained EU law actually is.
Justin Madders
Q
Professor Barnard: On the first point, listing the provisions that will be turned off avoids those bits of legislation that we do not know about—that is, they have not been found, despite an exhaustive search, including by the National Archives—being accidentally turned off, and our not knowing that they have been turned off until they become an issue down the line in some sort of litigation. One way of avoiding error is to have a list of legislation—it looks like 3,800 pieces of legislation have been identified—and to say, “This is the legislation that is potentially subject to the sunset.” If you list all those in the statute, it avoids the problem of the missed bits being caught up by the sunset.
Once you have done all that, you can say, “Right, we should consult on those bits of legislation.” I am not in any way advocating, as Stephen Laws suggested, being in stasis and doing nothing—quite the contrary. One of the reasons for Brexit was to think about how we can have laws that are more suitable for the United Kingdom. The trouble is that this slash-and-burn technique means that proper consideration is not given to what a future rulebook might look like.
Justin Madders
Q
Professor Barnard: Absolutely. I am in no way advocating for no change—quite the contrary. However, the trouble is that the rather brutal approach envisaged by the sunset clause, and the lack of clarity about how the delay process in clauses 1(2) and 2 will work, will generate huge amounts of uncertainty for users. Unlike Stephen Laws, I would say that these laws cover things as fundamental as gas equipment safety and food safety—what goes into food and the listing of foods. These are things that people absolutely take for granted. The idea that manufacturers will carry on respecting the law even when they are no longer required to because the laws have been simply turned off is, I am afraid, for the birds. All businesses need to try to cut costs, and they will not necessarily comply with high standards in the absence of legislation telling them to do so.
The Chair
Professor Young, did you want to add anything?
Professor Young: To confirm what Professor Barnard was saying, it is important to recognise that although we have had six years to think about which laws to keep and which to remove, we have to put that against a backdrop of those not having been six usual years. We have also had to deal with covid, which generated lots of difficulties, and we are now dealing with energy crises and austerity. I fully accept that there is a need to think about which laws we retain and which laws we change, and that we need a period in which to think about that, but you have to recognise that there are other things on the legislative agenda that might make it difficult to have a complete list of all of them.
I agree that having a list of those laws that we have found will increase legal certainty. It would then also always be possible, once others are found, for the Government to enact regulations and say, “These regulations will be subject to the sunset,” or “These will be subject to a different sunset.” That would give us much more clarity, while still enabling us to change laws to build on the advantages brought by Brexit.
Ms Ghani
Q
“alien to the UK constitutional system”.
As a creation of the Court of Justice of the European Union, it
“sits uncomfortably with established constitutional principles”
in the UK now that we have left the EU. Is it inappropriate for a non-EU country to still have instances where EU law takes precedence over its law?
Professor Barnard: Thank you for that question, Minister. Yes, at first sight, it looks rather unusual to have the notion of supremacy of EU law. You are absolutely right that it was a creation of the Court of Justice. That said, the 2018 Act essentially gave a parliamentary imprimatur to the principle of the supremacy of EU law in respect of retained EU law. Supremacy comes with quite a lot of baggage attached. Thinking about what supremacy means, it is essentially a conflict-of-laws rule—we have loads of them in the legal system. Where there is a potential conflict between two blocks of rules, a conflict-of-laws rule says which one will prevail in which circumstances.
The 2018 Act says very clearly that, in respect of pre-Brexit UK-retained EU law, if there is a conflict with EU law, EU law will prevail for the time being. However, there is absolutely nothing to stop Parliament legislating to reverse that in the future. The purpose of the 2018 Act was to ensure clarity, legal certainty and continuity. You have continuity with the snapshot approach taken by the 2018 Act. If you turn it off, which, of course, a sovereign Parliament is absolutely free to do, there will still be issues about how to manage conflicts between the rules. Indeed, the Bill makes provision for the supremacy provision to be turned back on if a Department decides it is necessary in its particular area.
Ms Ghani
Q
Professor Young: Thank you, Minister. It is a matter of recognising that EU law tends to be drafted by setting out the purposes that it is meant to achieve in certain circumstances. Directives have a different format from regulations; they set out the aims and purposes, and allow member states discretion in how to implement them, which is why so much of retained EU law is secondary legislation that was enacted by the UK to implement particular provisions of directives. In that sense, it tends to be drafted in a slightly different style. You also have to recognise that its main aim was harmonisation, so that might influence how it was drafted.
While the UK was a member of the European Union, we got used to understanding how EU law was drafted, and to interpreting it in line with background EU law principles, including the general principles of EU law. Obviously, one of the things this Bill will do is switch that off. You then have to think about how, without those general principles, we will interpret any of the retained EU law that becomes assimilated or is retained by regulations. We might have to think about not just retaining particular provisions through regulations, but whether we need to add elements to amend them or make them clear, so that we have a fuller understanding of how they are meant to apply in certain circumstances.
Peter Grant
Q
Professor Barnard: The simple answer is no; I am completely unaware of any precedent for this. Of course, that does not mean that we cannot try to adopt this approach, but we need to be extremely mindful of the associated risks. That is one of the reasons why we have proposed carving out areas, such as environment and social policy, that are already subject to obligations under the trade and co-operation agreement. That will ensure that we do not accidently turn them off but not turn them back on again through the powers in clauses 1(2), 2 or 12 to 15, and so will ensure that we are not subject to the trade and co-operation agreement’s dispute resolution mechanisms, which may result in tariffs being imposed on us.
Peter Grant
Professor Young, I saw you nodding. Is there anything you want to add? Do you agree with Professor Barnard?
Professor Young: I agree. I too am unaware of any process that has tried to make such a big change to so many laws in such a short period. That is why it could impose so many practical problems. In most systems, when you have a change of legal system or regime, there is this element of what we did originally, which maintains legal certainty by retaining the old provisions. Then, step by step, in what we often call a sector-specific approach, there is a detailed assessment of whether we should keep those laws or change them. As far as I am aware, this is quite a novel way of doing this with such a large amount of law.
Peter Grant
Q
Professor Young: It is not necessarily that I am reluctant to change or am concerned about change. We need to think about what this is asking against the backdrop of what we are aiming for in the Bill. You have to recognise that the difficulties of uncertainty will be not for lawyers, but for those trying to carry out business. Those carrying out business and trade need legal certainty, so that they have an understanding of the rules, now and going forward. As for the elements and problems of uncertainty, we do not necessarily think that things will be uncertain because they are changing; 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.
Other provisions in the Bill might further that uncertainty. For example, under the Bill, legal officers can refer an issue to the court if they think that a decision should have changed the interpretation of a particular piece of retained or assimilated EU law but did not. That can happen after the agreement has been included and the decision has been made by the parties. You might think, “Well, the Bill says that is not a problem because it won’t affect the result between the parties,” but you have to recognise that others in the legal system will have seen that case, and that interpretation of the law, and will have perhaps planned their business on that basis. They will suddenly find that there is a reference to the court that might change how the law is interpreted or what it means.
That is why we are concerned about certainty. We are concerned about the consequences for those carrying out trade, because they need legal certainty to plan their business activities.
Peter Grant
Q
Professor Barnard: I would just say that the business of legal academia is forever to be making proposals to change the law, to try and improve it in some way. The idea that lawyers are hostile to change is just not correct. 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 by the sunset clause.
Stella Creasy
Q
It would be quite helpful to know, with the extra 1,400, who has drawn the short straw? Are they all in one particular Department or across the Departments? A previous witness claimed that there would be adequate parliamentary scrutiny, and if Parliament did not like what Ministers were doing, it would intervene. What would this process mean for our ability to influence the content produced as a result of the Bill?
Professor Barnard: On the first point, as you rightly point out, there are provisions in the Bill to allow Ministers, by regulations, to keep retained EU law, which will eventually be called assimilated law, but what is not at all clear is the process by which the Minister decides to engage in that process. Remember, if the Minister decides to sit on his or her hands, the default kicks in, which is that those all those provisions will go. In reality, we understand that Government Departments have a reasonable idea of the law in their area, and civil servants will need to go through that law statutory instrument by statutory instrument.
There is a real issue about capacity in Government Departments. Jacob Rees-Mogg himself said that his own Department for Business, Energy and Industrial Strategy had identified that it needed 400 civil servants to be working on the 300 or so pieces of legislation that had then been identified. Presumably, now they have discovered an extra 1,400 that number will increase. It is a huge amount of civil service time. The issue is even more acute in the Department for Environment, Food and Rural Affairs, which is the Department most affected by retained EU law. The question is, what is the internal process? Even if the Secretary of State in DEFRA decides that he or she wants to retain all the legislation because it is so important in different forms, what happens? Does it go to the Cabinet? Is there some sort of star chamber that looks at what is being proposed by the Departments? We know none of that, and we know none of the detail about whether there will be any consultation with external stakeholders, which is particularly important in the field of agriculture, where a large number of stakeholders are affected.
Stella Creasy
Professor Young, do you want to add anything?
Professor Young: We also have to think about how ministerial Departments will liaise with each other, because those different Departments might be looking at the same statutory instrument that might regulate bits that fall within the ambit of their respective Departments. Something will also be required in Government to keep track of that and to work out what the process should be.
With regard to parliamentary scrutiny, under the Bill the default position would be the negative resolution procedure. Obviously, there are some exceptions, for example, if a measure is used to modify primary legislation, to create a power to enact subordinate legislation or to create a criminal offence in certain circumstances. There is an ability to bump that up to the affirmative resolution procedure, but it will be very difficult for Parliament necessarily to keep track of all this, because so much is coming through. As I am sure you are all aware, it is very difficult for either of the Houses to actually pass a resolution to say that they disagree with a particular provision. Because of the demands on parliamentary time, it will be even more difficult when you have so many provisions coming through. 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.
Stella Creasy
Q
Professor Young: Exactly.
Stella Creasy
In your opinion, then, the ability of parliamentarians, as opposed to Ministers, to influence what laws come next, if they are enacted at all, is limited. Can you suggest, or are there examples from your experience, how parliamentary scrutiny could be strengthened in this Bill?
Professor Young: Obviously we have elements that we saw under the European Union (Withdrawal) Act 2018, which allowed for aspects of enhanced scrutiny in certain circumstances as well as the ability to exercise the affirmative resolution procedures. There can be procedures that you can use whereby you put forward drafts of delegated legislation and allow parliamentarians to scrutinise them. Obviously it is difficult to set that up and to have the time to do so.
I think we need to think about two issues. First, we need to think about what is the appropriate procedure that enables parliamentarians to have adequate scrutiny and we also need to think about how we ensure that parliamentarians have sufficient time to perform that scrutiny. That is why you accurately quoted the information relating to the last time that either the House of Commons or the House of Lords voted against a particular resolution. Perhaps that shows the very great difficulty of actually achieving the time to get that on the parliamentary agenda.
Stella Creasy
Q
Professor Young: Yes.
Stella Creasy
Q
Professor Young: That’s it; absolutely. The only way perhaps to get around that would be to ensure that different departmental Select Committees could go away and look at the area of their law, and perhaps write reports to propose that there should be changes or provisions should be retained or revoked. Obviously, that would only be a report and not necessarily something that a Minister would have to follow in any way, shape or form.
Professor Barnard: If I may just put a footnote to your questions, of course if Parliament did decide to vote by resolution against a statutory instrument, that risks running out of time. Therefore the default kicks in and the sunset kicks in, so you lose a measure all together.
Alex Sobel
Q
Professor Barnard: The Financial Times reports, and indeed the Mail on Sunday report, which is where the story about the extra 1,400 pieces originated, just talk about 1,400 pieces; they do not talk about the fields in which they fall. By definition, however, given that DEFRA already has the largest group of retained EU laws—it is about 500 and something—DEFRA is very likely to be affected by the discovery of an extra 1,400 pieces.
On your question about the Northern Ireland legislation, as you know, annex 2 of the Northern Ireland protocol lists all the areas of EU law that will continue to apply in respect of Northern Ireland on a dynamic basis. Clause 1(5) of the Bill contains a rather general and ill-defined carve-out for Northern Ireland legislation, but it is not clear because, as you will be aware, the Northern Ireland Protocol Bill is also going through Parliament at the moment, which will turn off a large amount of the EU legislation that applies in respect of Northern Ireland—all the annex 2 legislation. Other bits of legislation still apply, particularly in the field of equality law and social policy, but you have this generic and rather vague exclusion in respect of Northern Ireland in clause 1(5).
Professor Young: I have nothing to add.
Alex Sobel
Q
Professor Young: I agree that it is a real danger, because obviously a business takes business-based decisions. If a particular regulation that was perhaps making you not as competitive disappears, you might find ways of not following the old regulation because it might give you a competitive advantage in certain situations. We need to think about this against the backdrop of the United Kingdom Internal Market Act 2020, which provides that, if a good can be marketed in one component part of the United Kingdom, it can be marketed in any other component part of the United Kingdom. That will also incentivise what we call a race to the bottom—the idea that you will have a competitive advantage if you are not following other regulatory burdens that might make your good less competitive. If you are aware that you do not have to follow that, not only will you decide not to do so, which might give you a competitive advantage, but it might put others at a disadvantage across the 2020 Act. You can sell your good across the UK because you are adhering to a lower element, and it is lawful to sell it in one component part. I think that there is a real risk that people will not follow the former rules and regulations.
Professor Barnard: I think Sir Stephen Laws takes a very benign view of human and indeed business nature. If there is an opportunity to save costs by not complying with rules, businesses will take it. The only thing I would add to that is that businesses that are doing most of their trade with the EU will still be required to comply with EU rules, otherwise they will not be able to sell their products on to the EU market. Business that are part of supply chains that feed into the EU market will still have to comply with EU rules. Perhaps he is right there that there might be voluntary compliance, but it is actually market-induced compliance rather than absolute voluntary compliance.
Stella Creasy
Q
Professor Young: The problem with that particular provision is that it is that element of not reducing burdens, which includes elements of administrative inconvenience, as well as obstacles to trade or innovations or obstacles to efficiency, productivity or profitability. The difficulty is what would or would not be increasing burdens in these circumstances. On the one hand, you are right; this is incentivising a reduction in these burdens and the potential follow-on we would see is a reduction in standards, particularly because it is looking at obstacles to trade or obstacles to efficiency, productivity and profitability. Another way of potentially reading it is to say that if I take a number of earlier burdens, turn them into one burden with a higher standard, that is also not increasing the burden. The difficulty is that the clause could be quite ambiguous, which could, in some senses, perhaps alleviate some of the risk that that might incentivise towards removing burdens. However, that is going to leave these particular measures open to potential legal challenges because people will argue “This has increased my burden in these circumstances.” That, in turn, could add to legal uncertainty.
Stella Creasy
Q
Professor Barnard: Yes, you are absolutely right. That is one of the reasons we proposed carving out, for example, environmental law and employment law, because those are the two areas that are subject to the so-called level playing field provisions in the trade and co-operation agreement. We are free to lower our standards—that is our choice—but if we do and, depending on the provision, that materially affects trade between the UK and the EU, the EU can start the dispute mechanism in the TCA. In respect of the so-called rebalancing dimension in the level playing field, the retaliation is brutal, quick and immediate.
Justin Madders
Q
The Chair
Professor Young, you look like you are about to burst forth.
Professor Young: Sorry, I could not quite hear who you were asking. It would be for the Minister to decide, when they are deciding to make a regulation, whether they do or do not think it will or will not increase a burden. There is a possibility for the Minister to make a statement, but there is no requirement to do so, and it will be up to parliamentarians when they see that particular measure to scrutinise it. If you think it imposes a burden and you are concerned about it, you could use the negative resolution procedure to vote against it.
The Chair
Professor Barnard, did you want to add anything in 20 seconds?
Professor Barnard: No, I agree.
The Chair
Thank you very much, both of you, for the clarity of your evidence. We are now moving on to our next group of witnesses. Thank you to those from Cambridge.
Examination of Witnesses
Martin Howe KC and Tom Sharpe KC gave evidence.
The Chair
We are now moving on to hear more evidence in person, from Martin Howe KC of 8 New Square chambers and Tom Sharpe KC of 1 Essex Court chambers. In this session, we have until 10.55. Please introduce yourselves for the record; Martin, would you like to go first?
Martin Howe: I am a practising King’s Counsel, principally in the field of intellectual property law, and formerly European Union law, mainly in the field of free movement of goods and services—cross-border freedom to trade. That is my professional background. I became chairman of a group called Lawyers for Britain, which was set up during the referendum campaign to campaign among the legal profession for a leave vote. I wish we had been able to wind it all up—job done—but we still exist and I am still the chairman.
Tom Sharpe: I am Tom Sharpe, King’s Counsel. I spent too long as an Oxford don, but I have been in practice for quite a long time. The nature of my teaching at Oxford and my practice was heavily European law, which I now put in the semi-past tense. I have appeared in the European Court quite a few times. The central core of my practice has always been the regulatory area—competition law and state aids—but I have done quite a lot of judicial review work, attempting to overturn EU regulations and misapplied and misadopted directives. I, too, am a member of the Lawyers for Britain group, and Martin and I made submissions in Miller 1 and Miller 2.
Justin Madders
Q
Justin Madders
I am indeed. It is the best type.
Tom Sharpe: The honest answer is no. However, your excellent House of Commons research paper does indeed advert to this and describes the justification, which I have forgotten.
Justin Madders
Q
Tom Sharpe: Slightly different between case law and—
Justin Madders
Yes.
Tom Sharpe: Shall I kick off? I know that Martin has some fairly strong views on this. What the Department is trying to do here is to provide some illustrative guidance as to the reasons why people can depart. They could have done nothing and left it open to the court, which would have been unsatisfactory. By and large, judges, like all of us, need some help and guidance. As to the differences, the justification is the TuneIn case, Martin, is it not?
Martin Howe: Warner against TuneIn, yes.
Tom Sharpe: Why don’t you pick this up? It is your area.
Martin Howe: One feature of the 2018 Act, as you know, is that it made European Court judgments continue to be binding after exit in the interpretation of retained EU law. I would have preferred to see them just as persuasive authority from the beginning, but that is what the Act said. It gave only a very tiny exception, allowing the Supreme Court and the High Court of Justiciary in Scotland to depart, but only in circumstances where they would depart from their own previous decisions. It was extremely narrow. That was slightly widened by a statutory instrument under the 2020 Act, which expanded that to the Court of Appeal, the Inner House of the Court of Session in Scotland and the Court of Appeal of Northern Ireland, but it still had a very narrow test. I do not think, even if you got rid of all these restrictions, that the judiciary would actually make very many changes to or departures from legislation.
That comes out from the TuneIn case, in which the Court of Appeal considered a very unsatisfactory area of jurisprudence by the Court of Justice—a very technical area on communication to the public in copyright cases—and did not feel that it wanted to depart from that law, basically because it thought that to do that you have to almost legislate to fill in what you are replacing the judgments with. Judges are naturally reluctant to do that. My view of these provisions is that they are helpful. They slightly widen the circumstances in which there can be a departure, but are unlikely to make much practical difference. They will mean very few cases that see actual departures.
Tom Sharpe: May I add a supplementary? In answer to your specific question, clearly, the case law, which is the second provision in clause 4, is much broader. All sorts of case law is affected, and some would say infected, by European principles. What this is simply doing is inviting Parliament to say that the breadth of review can be triggered by any impact or any influence. It is really very broad—“determined or influenced by”. I think that is the justification for it, and I think it is sound. What is the point of having an imperfect means by which higher courts can be seized of these matters if they are important enough to go up to the higher courts?
Ms Ghani
Q
Tom Sharpe: It is not the right time at all. This should have been started in 2016, and certainly the dashboard—the process of creation—should have happened then. When—or if and when—this is enacted, it will be, what, six years since the referendum? That is a very long time; it will probably be seven years when the Lords get hold of it. It seems to me that the promises that were made in the referendum and the obligations owed to those who voted for Brexit, which in turn, of course, were repeated in the 2019 election, have to be redeemed. It seems to me that it is appropriate for that to be done, and to be done by a means whereby good faith can be applied—that is to say, a balance between speed and comprehension, balancing the requirements of Government in order to get the legislation on the statute book with the interests of Parliament and the interests of stakeholders. It seems to me, as a general rule, that this is actually what it does.
Ms Ghani
Q
Martin Howe: I think the Bill is desperately needed. The flaw with the 2018 Act is that it was clearly necessary to preserve what is now retained EU law on an interim basis until it could be reviewed and either kept or replaced or modified, but what was not necessary was making it impossible to change most of it except by Act of Parliament, which is what the 2018 Act did, and also to import a whole load of EU law doctrines on top of the legislation. It was all said to be for the purposes of legal certainty. In my view, it does not add to legal certainty; it generates legal uncertainties and allows vague things to be argued.
I have had a look to see what progress has so far been made in changing the vast body of EU retained law. There is one important Bill going through the Commons now, the Financial Services and Markets Bill, which would deal with that field, where we put in place our domestic policy choices.
There are also two further Bills that I have identified. One dealt with the Vnuk case, which was a case in the European Court that interpreted the motor insurance directive—in my view, misinterpreted it—to say that it applied to off-road vehicles, so things such as farm tractors would be compulsorily insured. That has now been corrected in our law, but only via a private Member’s Bill, which became an Act in April when the Government lent parliamentary time to the Bill. I think that the Government estimates are that it would have cost £2 billion per year—mainly to farmers, I suppose.
The other Bill, which is actually more important, is on the gene editing matter, where the European Court, in the case between the French peasants collective and the French Government, decided that the genetically modified organisms directive covered gene editing. Now, gene editing is a different technique from genetic modification. There is a lot of criticism of that judgment. It was completely unexpected and had very damaging effects, particularly on the life sciences industry in this country. That is subject to correction by a Bill that has just finished its Commons stages and has gone to the Lords.
Those are just two interpretations of two bits of EU law. That shows the complete impossibility of performing this exercise by primary legislation, and therefore how essential it is to have the statutory instrument power in the Bill. It is important to appreciate that the statutory instrument power does not apply to primary legislation, so Acts of Parliament that were passed in compliance with EU obligations are not within scope; only the secondary legislation is covered.
Ms Ghani
Q
Martin Howe: Well, it does. It is comparable to the parliamentary scrutiny that section 2(2) of the European Communities Act 1972 allowed when most of these measures were introduced.
Ms Ghani
Q
Tom Sharpe: I see the Bill as a framework Bill. Of course, it gives Ministers and Departments very considerable powers—powers of proposal, as you know, to amend, revoke or replace existing legislation.
As Martin has just said, an Act of Parliament, which was probably passed—if I may say so respectfully—before many of you were born, provided an enabling power to enact legislation of some quite sweeping character. Despite all the things that law students learned about how Parliament needed to approve legislation, not one single regulation—this is one of the bits we are discussing—has ever been debated, approved or amended by the House of Commons or Parliament. That is a striking statement, but it is absolutely true. We were forbidden, in law, to debate or amend such legislation. I suspect you all know that, but it does not hurt to be reminded.
As for the directives, of course they, too, were approved by Parliament—or, more accurately, not disapproved—but the power of Parliament was utterly residual because the objective of a directive had to be observed. If it was not, the UK would be subject to proceedings from Brussels—and it was, on occasion, but not as often as many other countries.
We are now debating a system of revocation, amendment and replacement, and giving it far more formality than we gave the creation of the laws themselves. That ought to give us pause for thought. That is the background. As far as parliamentary scrutiny is concerned, yes, most of it will be subject to negative resolution, and it is easy to make what I will disrespectfully call a good debating point about the times when statutory instruments have fallen under the negative procedure. But here, we are dealing with a sea change. We are dealing with masses of legislation, as we know, all of which will be subject to significant scrutiny within the House of Commons by parliamentarians and by the press. It seems to me that those issues have to be given notice. There is also the sifting procedure that we adverted to earlier, which I think could be quite a powerful brake on Ministers’ discretion.
Peter Grant
Q
Tom Sharpe: Where do we start?
Martin Howe: I am concerned by the attitude taken by the Bar Council. As a subscribing member, I fear that it is trespassing rather too far into political issues. Unfortunately, I think there is a sort of small “c” conservative lawyer’s mentality, which has led over time to various things, such as counsel saying in the “Lady Chatterley’s Lover” trial, “Members of the jury, would you allow your wives or your servants to read this book?” Since so many members of the Bar are imbued with the system of working with European Union law—it is all part of their practice and the way they operate—there is a natural mental attitude towards keeping it. I do not think that reflects the necessities of the democratic process following the referendum result.
Peter Grant
Q
Tom Sharpe: It is our trade union, and it does not speak on my behalf on this political matter, very obviously, and it should not have done that. I think there is a broad issue here. If you look at the criticism of the Bill by the Bar Council and by members working with it—the Hansard Society, which got a mention, and various leading members of the Bar whom I know very well; they are my friends and I respect them—the dominant theme is one of extreme pessimism. That is to say that if we have a mendacious Government, a supine Parliament and a lazy and ignorant press, all sorts of things can happen. Now, I do not think that is true. I have far more respect for this House, and even for Ministers and the press. If Ministers are getting out of hand, they will be put in check. If they are not, the judiciary has a role in reviewing the exercise of these powers. We can ignore the judiciary in this context, but it has an important residual role.
We can call it benign or naive, but I do not think that is right. I think that by and large the House of Commons does a pretty good job, and I see no reason at all why it will not continue to do so in relation to this important Bill.
Peter Grant
Q
To go back to the comments you made earlier about the difference between primary and secondary legislation, when was the last time Parliament amended a piece of secondary legislation?
Martin Howe: It does not. The procedure is a yes/no procedure either by affirmative resolution, in which case there has to be a positive vote or it fails; or by negative resolution, in which case, unless it is prayed against and there is a vote against it, it stands.
Peter Grant
Q
Martin Howe: Indeed. By its nature, there is much less opportunity than with a Bill, which you go through line by line, but all the legislation that is within the scope of the Bill to be potentially corrected, changed or left out by secondary legislation was introduced by secondary legislation. The primary legislation is not covered by the powers.
Tom Sharpe: Remember what we are discussing. I think it is very unlikely that there will be a wholesale slash and burn—to use the academic term that we heard earlier—of all EU retained legislation or assimilated legislation; a good deal of it will remain. I do not recognise the gloomy picture of businesspeople clawing their way to the bottom. I understand the theory, but in the course of a year I advise dozens of CEOs and chairmen, and not one has said: “We have a terrific opportunity to make extra money out of the consumer.”
What is missing here is public scrutiny and reputation, and we have to be balanced and less shrill about this: not everything will change; not everything will change at once; and some things will be changed—in particular under clause 15(3) where, respectfully, the real issues arise for parliamentary scrutiny. There, as you heard, some will be determined by affirmative resolution and others will go through the sifting procedure, which requires the Minister to come to Parliament to justify the choice of a negative procedure. You will have an opportunity to deal with that.
Stella Creasy
Q
Martin Howe: The argument I was putting forward was for a practical way to speed up the process. Frankly, it was a suggestion that I floated, a possible—
Stella Creasy
Q
Martin Howe: What I was then proposing was not so much a scrutiny mechanism as a sort of motor to get the process going—
Stella Creasy
Q
Martin Howe: No, because the main thing—the important thing—is to get the job done. What I am disappointed about is that I published a paper in July 2016, a month after the referendum, arguing that we should start a systematic process of review of European Union laws. I naively suggested that that would be with a view to revising what we needed to revise by the time of exit two and a half years later—
Stella Creasy
Q
Martin Howe: No. I was naive to think that the process of revision would be started. I share Tom’s view that it would have been better had this process been started earlier, but it does need to be done.
Stella Creasy
Q
Martin Howe: Well, it is a matter for Parliament as to what you press Ministers on with regards to their plans and intentions.
Stella Creasy
Q
Martin Howe: To be clear, I was not suggesting that they be retained in the long term. Those areas need revising and converting into coherent UK-based law. Elements of EU law should not be retained into the indefinite future.
Stella Creasy
Q
Martin Howe: Sorry, I have not changed my mind on the relationship between retained EU treaty law and other EU law. The point is that that should be converted into domestic law, but our domestic legal system can cope with the question of precedence of one law over the other. I have never been in favour of indefinite retention.
The Chair
Stella, you have asked a lot of questions. We are moving on, and we will come back to you if there is time.
Mr Marcus Fysh (Yeovil) (Con)
Q
Tom Sharpe: The general point is very well made, if I may say so. It seems to me that that type of exercise—that kind of inclusive thinking about making the country more efficient and getting rid of silly regulations—would be valid even if we were not dealing with the Bill.
One of the problems with the Bill is that it is a framework Bill, and I can see a quite compelling case for eliminating some of the opacity that surrounds the Government’s intentions. It is early days, and the Bill is just a Bill. I do not think it would be enhanced by Ministers detailing in fine print exactly what is to be done, but there is a case for some ministerial guidance as to where the priorities should lie.
As for doing away with dud regulation, I find it amusing to read the submissions to Government. This is an important point about consultation. My understanding is that there have been thousands of responses to the dashboard—I think I am right in that. That is an element of public consultation. It is amusing to me to see that so many bodies that campaigned remorselessly against some of the EU legislation that we had no control over now resolutely do their best to try to preserve it. With a little more honesty, they would have been more compelling, I think.
Mr Fysh
Q
Martin Howe: That is helpful and it sounds like a good idea. Whether it ought to be spelled out in the Bill is a different question, because there needs to be a certain amount of flexibility over these processes. Certainly, involving outsiders in looking at these issues, as opposed to doing it as a purely internal measure within Departments, strikes me as beneficial.
The Chair
Gentlemen, thank you for your evidence. Our time is now up. Thank you once again for being with us.
Examination of Witnesses
Mark Fenhalls KC, George Peretz KC and Eleonor Duhs gave evidence.
The Chair
We will move on to our final group of witnesses for this morning. Of course, we have a long afternoon ahead of us. We will now hear oral evidence from Mark Fenhalls KC, chair of the Bar Council. I wonder whether he was listening to the previous panels.
Mark Fenhalls: I was listening, Chair.
The Chair
Excellent.
Mark Fenhalls: I am very much looking forward to trying to do my best.
The Chair
I am sure you will do a great job. George Peretz KC of the Bar Council’s working group on retained EU law is joining us via Zoom. We also have Eleonor Duhs, partner and head of data privacy at Bates Wells, here in person—I hope that was the correct pronunciation of your name.
Eleonor Duhs: It was, yes.
The Chair
For this session we have until 11.25 am. George Peretz is not here yet, but if he does appear we will ask him questions as well. We turn to Justin Madders to start.
Justin Madders
Q
Mark Fenhalls: There is nothing but risk. I will tell you one brief anecdote to illustrate this point. Last week I was at an international conference, working with the Ministry of Justice on selling legal services overseas, and talking to lawyers and Bar leaders from around the world. They asked me what this country’s intentions were around its laws following the departure from the European Union. I explained that I have no difficulty with change; change is a necessary thing. We all hope there is a sunlit upland where we can find better or fewer rules and regulations in the future. But when I explained about the inherent uncertainty and risks around this, they all looked and me in horror and said, “Why would we do any business with the UK”—until 2024 on the current timescales—“if we don’t know what the rules and regulations are going to be around all these issues?” There is a tremendous problem with this Bill, which was described by previous witnesses as a “framework Bill”, because we do not know what Ministers are going to do and Parliament does not have the opportunity to take control of the process or scrutinise it.
In our judgment, the Government should take the approach referred to in relation to the Financial Services and Markets Bill, where it looks as though considered, measured changes are being put forward, and there is an undertaking not to change the rules and regulations without consultation with the sector. We cannot understand why financial services are the subject of such a responsible, measured approach, which does not seem to apply to consumer protection, cosmetic and household cleaning product safety, water and air standards, and so forth. If the Government could take the same measured response, sector by sector, that would be a more sensible and less risky way to proceed.
Justin Madders
Q
Mark Fenhalls: 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. The reality is that this is our law. It was passed over four decades of membership while we were a part of the European Union. The previous witnesses may not like the process of scrutiny that existed, but we were part of that. We had MEPs and a Parliament that dealt with that. There was a democratic process, like it or not.
We now have a different democratic process, but these laws are part of our laws, which our businesses operate by and which provide protection to our citizens. If I may say so, I think Parliament has a responsibility not to import uncertainty and change without showing there is something better—and certainly not by just having the power to let the laws lapse.
Eleonor Duhs: Perhaps I could add something on the timeframes. 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. In data protection, which is the field that I work in, there are at least three pieces of legislation that amended and then re-amended the statute book—just to get it ready, from a technical perspective, for Brexit. There may be huge policy changes under this legislation, and the end of 2023 is simply not a realistic timeframe for the process.
Justin Madders
I see that George Peretz has joined us. I do not know whether he wanted to respond to any of the questions first of all.
The Chair
Yes, Mr Peretz, welcome. Did you hear the questions that were asked?
George Peretz: I had a slight technical hitch in joining. I was going to make a point about the effect of the sunset clause. Stephen Laws made the point that law reform is necessary and it happens, and one should not get stuck in defending the status quo. But there is every difference between a Government saying, “Here is the existing law, we propose to replace it with legislation, and here is the text of the proposed reform,” which is the normal process of law reform, and what is happening here. The Government are effectively saying to business and the wider world, “All of this law is open to change; we cannot tell you whether we will keep any of it. Some of it may just disappear, it may be replaced, and we cannot yet tell you what the replacement is. All of this is going to happen in 18 months.” That inevitably produces an enormous amount of uncertainty, and that is uncertainty above and beyond the inevitable uncertainty of law reform.
Justin Madders
Q
Mark Fenhalls: I am not privy to any of that correspondence; I cannot help with that. I do not know whether either Ms Duhs or Mr Peretz is familiar with it.
Eleonor Duhs indicated dissent.
Ms Ghani
Q
Mark Fenhalls: I am sorry if you think I am going on about it. All I am doing is saying that there was a democratic process, which we were party to for several decades: we were members of the European Union, and we followed the lawful processes. We now have this body of law, which Parliament owns, and we are all looking for an opportunity for Parliament to say, “Let’s now take advantage of our departure from the European Union, put aside the conflict of the past and work out a better way.” We are all delighted by that. None of us is hostile to change. We just want change in a measured and balanced way, so that we know what the alternatives are.
The effect of the Bill—I was thinking about it as I listened to the previous speakers—feels a bit like the uncertainty and the uncosted promises made by the former Chancellor, which so disrupted the bond market. [Interruption.] You asked the question, Minister. The difference between that and the Bill is that we are being told to trust Ministers to see what will happen, and we have no idea what they will do. We have no idea what is being left or what will be changed. There is conflict between current Bills before Parliament, such as the Levelling-up and Regeneration Bill, and the Bill we are discussing, and we do not know how the Government propose to address it.
Peter Grant
Q
Mark Fenhalls: I am not a parliamentarian or a politician. The short answer to that is that I do not know, but I do know that every single stakeholder and lawyer I have spoken to—who are simply thinking about their clients’ business interests and the rights of the people involved—wants to know what the alternative proposals are before they take a view. The difficulty with this Bill is not change, because change in itself is fine; it is the fact that we do not know what the proposals will be. We have suggested what we suggested in our submission and we have put in fall-back positions saying that if the Bill is to proceed, we should put in place scrutiny measures or duties on Ministers to come to the House and say, “This is what we propose to do,” and not run the risk, for example, of the sunset causing us to crash into the wall at the end of next year.
Peter Grant
For the record, there are two lawyers sitting behind you who quite clearly do not share the view that you just expressed about the various lawyers you have spoken to. Some of us think that lawyers argue with lawyers all of the time; that is what they are there for.
The Chair
Before we continue, I think Mr Peretz wanted to come in on that point.
George Peretz: I wanted to come in in response to the Minister’s question about section 2(2) of the European Communities Act 1972. There are two points here. One is the point, developed by Martin Howe, that it considerably underestimates the degree of democratic scrutiny that EU law actually had, particularly in the European Parliament and on the reform of EU law. It also understates the mechanisms that Parliament had to scrutinise how Ministers acted in the Council of Ministers.
I suppose one is getting slightly political here, but perhaps the more important point is that one of the arguments for Brexit, as I understood it, was that it would strengthen democratic accountability for legislation. It is slightly disappointing that the argument put forward for the Bill is sometimes, “Well, the EU was undemocratic in this, so you cannot complain that this is equally undemocratic.” We can do rather better than that.
Peter Grant
Q
Eleonor Duhs: I would still have some concerns, because the end of 2026 is not far away and that is what people are saying would perhaps be the revised timeframe.
There are some really significant things in this Bill in terms of changing the way in which the law works. I will give an example from data protection law. Clause 4 would change the relationship between retained EU law and domestic law. To show what that might mean in practice, I will give the example of a conflict between the UK general data protection regulations and the Data Protection Act 2018. This is not addressed by the provisions that Mr Madders asked about; that is simply about how data protection legislation as a whole interacts with the domestic statute book and is not overridden by it. In a conflict between the UK GDPR and the Data Protection Act 2018, if we remove the principle of supremacy, for example—which is what the Bill seeks to do—we could end up reducing data protection standards in the UK. That could cost UK businesses up to £1.6 billion and significantly increase red tape, so this is really important.
Last year there was a case called the Open Rights Group case, which was to do with exemptions in the 2018 Act that were overly broad. The Court of Appeal said that the UK GDPR had precedence—so this was decided under the retained principle of the supremacy of EU law—and that the provision in the 2018 Act was unlawful. If we had not had that retention of the principle of supremacy of EU law, and had had this new section 5(A2), the 2018 Act would have had precedence and the broader exemption would have applied, which would have reduced rights in the UK.
Why is it helpful for rights in the UK to remain as they were before? Because our current standard of protection of personal data has been deemed by the EU to be essentially equivalent to their standards of protection. That allows a data adequacy decision and, at the moment, the free flow of data between the EU and the UK. If we did not have that—if we lost data adequacy, which could happen under proposed new section 5(A2) in clause 4—UK businesses would have to spend time putting in place contracts and would have to do transfer risk assessments.
The New Economics Foundation and University College London wrote a paper entitled “The cost of data inadequacy”, which they published in November 2020. It stated that losing the free flow of data could cost UK businesses up to £1.6 billion in extra red tape, and it would have other economic implications, including a reduction in UK-EU trade, especially digital trade; reduced domestic and international investment in the UK; and the relocation of business functions, infrastructure and personnel outside the UK. So the Bill could have really significant implications for trade.
Peter Grant
Q
George Peretz: The short time is clearly a concern given the enormous work that will need to be done both in Whitehall and by Parliament if it intends to scrutinise any of this properly within a very short timeframe. A lot of this law is very important, a lot is very complicated, and quite a lot of it is both, so one should not underestimate the resource implications. Obviously, if you have a longer timeframe—until 2026, say—that resource could be spread over a longer period, and perhaps more efficiently.
There are other, wider concerns about the Bill and how it amends the application of some EU rules to retained EU law as it continues to operate, and about Ministers’ power to revoke and replace. Those are separate from the sunset clause concerns, but 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.
Alex Sobel
Q
“A plan…to review or repeal all EU laws on the UK statute book by the end of 2023 has suffered another setback after the discovery of 1,400 additional pieces of legislation.”
We were aware of 2,100 pieces of legislation, but that is another 1,400, so we are now seemingly aware of 3,500, with a sunset clause at the end of 2023. Is that the end of it? Will it be 3,500 pieces of legislation or could there be more? How are we going to find and define all these pieces of legislation so that we know what law we are acting under? You have just described qualitatively how pieces of legislation will fall under the negative resolution procedure because they are going to be sunset-claused out. Quantitively, where do you think we are going to end up by December 2023?
George Peretz: One does not know. On your point about the legislation being discovered, like you I have read the story in the Financial Times. I do not know the background to it, but we drew attention in the Bar Council paper to the risk of things simply being forgotten. As that story shows, that is not a hypothetical risk. That is one reason why we suggested as a possible amendment to the Bill that the Government add a schedule that simply lists all the regulations that are going to be affected and if it is not on the list, it does not fall. It is very difficult to see the argument against that. Presumably, the Government want to know what is being repealed. One does not want to repeal things one does not know about. What would be the good of not evaluating the risk? It is very difficult to see why there would be an objection to listing everything out. Then everyone would know precisely what goes and what stays. That was one suggestion we put forward.
It is very undesirable to have the sunset clause—for all the work that is going to have to be done to be done effectively with a gun pointed at everybody’s head saying, “Unless you’ve done all this analysis within a very restricted time period, the rules will fall.” There is just endless room for mistakes.
One of the points we discovered when we were rewriting a lot of EU rules for the purposes of the withdrawal Act—which Eleanor knows very well about and can speak about in more detail—was that, as the legislation was being rewritten, it was discovered that there were problems with it. If we look down any of the lists of amended rules, as one might experience in practice, one normally finds that over the 2018 and 2019 period there were frequent amendments. As one version was done, it was found that there was a problem with it or something needed to be added, and another amendment was made. There just is not time within the process of this Bill for that amendment process.
There is also a technical problem. It is not clear that there is the power once a regulation has been rewritten for Ministers then to say, “Oh dear—we realise that this regulation contains the following defects; we would quite like to amend it now.” I am not actually sure that the Bill contains a power for Ministers to do that. That is a bit of a problem.
Mark Fenhalls: I agree with what George just said. You will know far better than we do the stresses and strains on you as individual constituency MPs attempting to deal with those issues, and what in truth MPs can do as individuals scrutinising material like this. Ministers will know how pressured their civil servants are. I know from my dealings with civil servants how afraid they are of the possible forthcoming cuts. It is very difficult as an outsider to contemplate how the civil service can begin to cope with an assessment of what all this law involves.
The concluding point would be that if you have the list that George spoke to, that is a foundation for a proper ministerial division of responsibility as to who is doing what—which regulations affect which ministries and therefore what should our plan be? By the time we get through the end of next year, we might have dealt with financial services, perhaps, and with regeneration and levelling up, perhaps, because that covers environment and habitat and planning, but with that list and that firm foundation, you can make sensible evidence-based decisions about what to do. The frightening thing about the FT story—again, I know nothing about where it has come from—is the thought as to the unintended consequences, which nobody can possibly want, of not knowing what is out there. That is why, in a sense, a framework Bill is so flawed in its approach, because we do not know what we are dealing with.
The Chair
I have three questions to get in before 11.25 am, so let us have quick questions and quick answers, please.
Mr Fysh
Q
Mark Fenhalls: That is a political accusation that could not be more unfair. That is not the case at all. The short answer to your question is no. Parliament, rather than Ministers, should be making the decisions. That is the democratic point, if I were to engage with you on a democratic level. It does not matter what I did or did not want; I have said to you, and I mean it, that I have no difficulty with change—absolutely none whatsoever.
The Chair
Marcus, you have asked a question and now you are interrupting Mr Fenhalls. Let him finish.
Mark Fenhalls: I want it to happen on the basis of evidence and with better proposals coming. What I do not want is to be lost in a world of uncertainty when we do not know what is coming, because, out of uncertainty, clients and people will stop doing business and they will not know where we stand.
Mr Jones
Q
Eleonor Duhs: Retained EU law is domestic law. We domesticated the statute book, and we did that to provide certainty for businesses, for individuals, for the Government and for users of the law, so that they would know what the law was. That was a policy of maximum certainty. Of course, it is now for Parliament—this was in the White Paper on the European Union (Withdrawal) Act 2018—to look at the law and to decide how it should change. We should absolutely make the most of the opportunities that we have, but it must be done in a thoughtful way. It must not be done in a rush and in a way that gives rise to legal uncertainty, because this is our domestic statute book and it needs to work for all of us. It needs high standards, it needs to enable trade and it needs to be the best post-Brexit outcome that we could have.
George Peretz: I can add something to that. It is slightly unfortunate that the EU withdrawal Act chose to continue what was called the principle of supremacy of EU law, because it is something of a misnomer. As Professor Barnard explained, it is actually a conflict-of-laws rule that gives priority to retained EU law over pre-Brexit statutes. You have to remember that pre-Brexit statutes were passed by Parliament, or made by Ministers, against an understood background that EU law was supreme, so you could say that when Parliament passed a pre-Brexit statute, it expected that statute to be inferior to EU law. It was the sea in which we were all swimming at that point, so I do not accept that there is anything constitutionally objectionable about having the conflict-of-laws rule.
Before you change the conflict-of-laws rule, you also have to think very carefully about its effect. One of the disappointments I have is that nobody in the Government or outside has produced any analysis at all of the concrete effect of removing the conflict-of-laws rule. I have likened it to pushing a very large button that says, “We do not know what happens if you push this button.” That is not a wise legislative technique.
Stella Creasy
Q
All the lawyers have talked this morning about the approach of working with businesses and whether a regulatory burden could be created, which clause 15(5) is designed to avoid. We do not have any business witnesses coming forward, but we have heard that businesses are talking about risk being a drag on growth. Can you give us some examples of where you have worked with businesses with legal uncertainty? You have all talked about uncertainty, but can you explain what it could do to your clients?
The Chair
I am afraid we have 40 seconds left.
Mark Fenhalls: In 10 seconds, an organisation such as TheCityUK, which represents a range of financial services, accountancy, law and consultancy firms, will tell you that all its international clients are saying, “We don’t know what the rules are going to be; therefore, we are troubled.” There are business organisations out there from which you may choose to try to take evidence, and they may be useful to the Committee.
Eleonor Duhs: That is exactly what I am hearing too. They want to invest, but you cannot invest if you do not know what the law is going to be.
George Peretz: This is not my area of practice, but colleagues of mine at the Bar have made that point. If you are involved in a large development project—
The Chair
Forgive me, Mr Peretz, but I have to cut you off because we have reached 11.25 am. It is an existing law that we have to honour. Thank you to our three excellent witnesses. We appreciate your time and thank you for being here in person and for contributing online. Colleagues, we will meet again at two o’clock this afternoon for more fun.
Retained EU Law (Revocation and Reform) Bill (Second sitting)
Tuesday 8th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 November 2022 - (8 Nov 2022)
The Chair
Colleagues, this is just a reminder: we are sitting in public and the proceedings are being broadcast, so best behaviour is required at all times. We will now hear oral evidence from Barney Reynolds, of Shearman & Sterling; Sir Richard Aikens, of Brick Court Chambers; and Jack Williams, of Monckton Chambers. We are delighted to see that all of them are with us in person, and we have until 2.35 pm for this part of the sitting. Could our witnesses begin by introducing themselves for the record, starting with Sir Richard?
Sir Richard Aikens: Good afternoon. My name is Richard Aikens. I started my professional career as a barrister in commercial chambers. After 25 years, I became a judge of the High Court, where I sat, among other places, in the commercial court. I then went to the Court of Appeal. I gave that up in 2015. I now work as an arbitrator in international arbitrations. I teach law at King’s College London and Queen Mary University of London. I am also involved in writing and editing textbooks, most recently the latest edition of “Dicey, Morris & Collins on the Conflict of Laws”, where of course issues concerning EU law and the subsequent part it might play are important.
Barney Reynolds: Hello. I am Barney Reynolds, partner at the international law firm Shearman & Sterling, where I am head of financial institutions—about half the firm’s business—and the financial regulatory group. I practise in UK and EU regulation and associated areas. I led a team, of about 50 people, that drafted the laws and regulations for Abu Dhabi Global Market, which is a new financial centre in Abu Dhabi. It is now in operation, with about 20,000 people and 4,000 companies, and is based entirely on the English law, UK regulatory model. I have been helping other Governments look at adopting our model—in fact, without the EU bits—as well.
Jack Williams: Good afternoon. I am Jack Williams. I am a barrister at Monckton Chambers. Prior to entering practice, I taught constitutional law at Brasenose College, Oxford University. I have written and spoken a lot about the legal implications of Brexit as a matter of domestic law.
Justin Madders (Ellesmere Port and Neston) (Lab)
Q
Jack Williams: I am happy to begin if that is okay with the other panel members. Clause 7 obviously has a number of different aspects to it. If I may, I will start with the departing from retained EU and domestic case law aspects, before turning to the domestic reference procedure, because I think the implications of both are significant.
The first is essentially a nudge to the courts—a gentle nudge but a nudge none the less—in order to encourage greater departure from retained case law. It achieves that by essentially modifying the test for when certain courts—the Court of Appeal upwards, generally speaking —may depart from retained case law, and it does so by listing three particular factors. As a normal matter of statutory interpretation, when certain factors are listed, they are to be given greater significance and weight. Each of those factors in its own terms is encouraging departure. What you do not see there, for example, which was very clear in the House of Lords practice direction, which this is moving away from, is whether it is right to depart from case law, based on legal certainty grounds and taking into account that change in case law by judges necessarily is different from changes that the politicians and Parliament bring into force prospectively. That has implications for certainty, because one does not know what cases the judges may or may not apply, but also for something that has not been discussed this morning: the separation of powers. This puts an awful lot of policy decisions in the hands of judges.
Justin Madders
Q
Jack Williams: It does dictate what matters are litigated and which arguments parties run, particularly because litigators and our clients will have a number of different options going forward. Does one wait and see how the first-tier judge deploys the retained case law and whether one can convince them to depart from it directly by distinguishing it, so that one is not actually changing the law but departing from the EU principle? Or does one ask now for a reference at first instance stage, which would add in delay and costs, and go off the Court of Appeal, for example, to argue whether that case should remain the law or not? This raises a number of strategic questions that I am sure we will debate in this session.
Sir Richard Aikens: I agree with everything that Jack Williams has said, but, in my experience at least, it is likely that judges will take a very conservative view on the question of deciding whether to depart from retained EU case law, and an even more conservative view about departing from retained domestic case law, which is itself based on what was European case law as applied by judges in the United Kingdom. That is just the nature of the judicial animal: he or she is very conservative and, as Jack Williams said, they will be very reluctant to tread into areas that might be seen as policy or more political. Such departures would obviously have to take account of the statutory considerations that are set out in clause 7(3) and (4), but even when taking them into account, I suspect that judges will be very reluctant to change things—we will see.
On the other aspect, I wonder whether getting a reference to a higher court will be of any practical use at all because of the delay and expense. Unless you have two parties for whom money is no object, money is a very big consideration, especially in civil matters—these are all civil matters—in which, in the vast majority of cases, you do not have anything such as legal aid. The prospect of something going to a higher court and then perhaps coming back again is not something that parties will consider lightly. I really wonder whether it is a practical proposition.
The Chair
Do you want to come in on that question, Mr Reynolds?
Barney Reynolds: The provision is drafted in a very limiting and narrow way. It gives three examples of things that the court should have regard to when considering whether to depart from EU case law, and those three are pretty extreme instances. The first is that you are not banned. The second is a change in circumstances, but it is possible to make a departure under our system anyway if there is a change in circumstances. And the third is if we think that the retention of the EU case law decisions begin to affect adversely the development of our law. Again, that is pretty narrow. I do not think that the Bill as drafted is going to have a dramatic effect. In fact, I would even consider going further in the text by adding to those examples.
It seems to me that—this is true of the Bill as a whole—there is a tension here between lawyers wanting legal certainty, continuity and so on, which is all perfectly justifiable, and the fact that we are going through a constitutional change and need to effect that change. India has taken until only recently to get rid of its version of the Companies Act 1948, but that is a fellow common law country. We are moving from an alien legal system to our own, and our methods are different. The sooner we get on with it, the better.
That transition—this is just in the context of case law, and the same goes with the provisions—inevitably involves some element of change and some element of legal uncertainty. But I think our lawyers will coalesce with the judges around revised interpretations of provisions very quickly. I observe that, in terms of expanding the provision in clause 7(3), for instance, one of the key methods of interpretation that the EU adopts is its own version of the purposive method of interpretation, which of course—
Stella Creasy (Walthamstow) (Lab/Co-op)
It is hard to hear you. I wonder whether it is because you are between two microphones. I am sorry.
Barney Reynolds: One of the EU’s methods of interpretation is its version of the purposive method of interpretation, which we also have—we look at Hansard and so on when things are not entirely clear—but it is very limited in its use here. We basically go on the meanings of the words on the page, whereas in the EU, the purposive method, which they leap to pretty quickly in the courts, involves trying to work out the intentions of the legislators behind provisions. In the EU context, that includes ever closer union and various other purposes that are alien to our country and our system—as it now is, at the very least.
As I say, it seems to me that the sooner we get on with it, the better. Clause 7(3) is pretty anodyne. I would consider expanding it, and I would not get too troubled by the fact that moving from A to B—that is, where we are now to where we want to get to—potentially involves some element of legal uncertainty that would not otherwise arise. If we wanted perfect legal certainty, we would do nothing.
Justin Madders
Q
Sir Richard Aikens: It is difficult to say. I cannot give you express examples, of course, and I am concerned only with the process, rather than any particular provisions that might be tested. Here, after all, we are looking at the issue of what the case law says, and how the case law has interpreted any particular EU regulation, directive and so on. It may be rather more limited, but as soon as you get into litigation, there are costs. We cannot get away from that.
The Minister for Science and Investment Security (Ms Nusrat Ghani)
Q
Barney Reynolds: I think it will be beneficial as soon as we get through the process. Our system delivers greater legal certainty, which business craves, than the code-based method that we are coming out of, which has swept through our law in a number of areas, including my practice area, financial services law, which is almost all from the EU. I see it day to day. When we come out the other side—how quickly we get through is up to us—I think we will get those benefits.
The transition will probably involve some element of uncertainty arising from that, inasmuch as reinterpreting provisions interpreted using these EU techniques under our system, or wondering whether a judge is going to retain some of that element of interpretation or move completely to our own method, is unclear at the very beginning. I think that very quickly, after a few early court cases, we will get certainty on that. In fact—it is very interesting to hear Sir Richard talk—I think that the judges themselves will do their absolute utmost to make sure that legal certainty is there through the transition, and I would trust that process to work well. I have no real concerns even about the transition. Yes, there could be things that go wrong. If we try to craft it so that there is no conceivable possibility of something turning out in an unexpected way, we will deny ourselves the benefits that I have mentioned.
Ms Ghani
Q
Sir Richard Aikens: May I start a bit further back? We are now in a situation where there is no EU law as such that affects this state, the UK. Everything we have here is, by definition, UK law. The question that has to be addressed is how you deal with that UK law, given its origin and the way it was treated and the way it was interpreted by the EU court, in particular. The whole of this Bill is an attempt to produce a process that enables what is now UK law to be dealt with, as I understand it, in a manner that is consistent with all other aspects of UK law.
Having set that as the objective, it is inevitable that you are going to have some problems on the way. The way in which this has been done means that the timescale is very short. To my mind, it is an almost impossible task to have the whole process done by the end of 2023. Frankly—you will say that I am pessimistic, perhaps too much so—I doubt whether it could be done by the end of 2026.
Given all that, it is inevitable that, because the process is almost entirely by secondary legislation, you are going to get challenges because people will think, rightly or wrongly, “That is a political matter, not a legal one”, or that the changes are not in accordance with the law or not in accordance with due process. I think that the way this has been fashioned is actually an invitation to litigation and an invitation to controversy. It may well mean that there are going to be challenges, because people feel that they have lost rights and that they are disadvantaged, and the manner in which it will have been done is through a short form of secondary legislation, which is not what you might imagine is the normal way of dealing with some of the big issues that have to be dealt with, such as workers’ rights, environmental issues and so on. This is a very difficult process.
Jack Williams: In response to that question, may I add that the outcome of the Bill may well be to preserve rights, but it is an absolute “may” and is entirely in the gift of Ministers. The Bill does not preserve rights or give any safeguards for that outcome to be achieved. That may be the outcome, but that is in the gift of Ministers. That is because the Bill sets one on an irreversible train track that leads to a cliff edge, and Parliament has not built in any breaks or stops on the train track to save or preserve those rights.
I have full faith in Ministers. I am sure that they want to do good for their constituents and to maintain rights. I love the fact that they are coming out and saying those words, but they are only words—it is not in the legislation. There is no legal protection for those rights in the Bill.
Barney Reynolds: I am not sure what the alternative would be. The Bill gives the system as a whole, as it were, the opportunity to execute on a shift that cannot be prescribed in advance, given the unprecedented volume and complexity. I have some limited relevant experience—I mentioned creating a system in Abu Dhabi—but one can go quickly. The main work there took 18 months, and I think that with the right size team we could go even quicker.
I note that in the Bill, the deadline is not in truth the end of 2023, because there are various ways under the switching back on powers in clause 13(6), (7) and (8), to allow even sunsetted provisions to be reinstated before mid-2026. In effect, there is a quick rush to do the main job, and an ability to tidy up things before mid-2026, which seems to be sensible.
You can choose different deadlines; you can debate all of these things. My basic point is that I am not sure quite how else one could do it if you actually want to get it done in any realistic timetable. Obviously, behind and above all that, Parliament will itself need to decide how, through a joint Committee, your Committee, or some other Committee, it wishes to oversee the process. That is a completely separate matter from the Bill.
Stella Creasy
Q
Perhaps Abu Dhabi, as part of an authoritarian state, is not the best example for us democrats of how we might wish to proceed. I wonder if you could talk a little bit more about some of the barriers created in the Bill for judges because of the lack of parliamentary scrutiny, and if there are other examples of legislation that you have seen that may offer us a way forward. Perhaps we start with Jack, as you look most interested by the question, then go across the panel.
Jack Williams: It is extraordinarily difficult to think of ways that the Bill tells judges exactly how and how not to do things. Ironically, one of the ways that the Brexit legislation is going is to codify almost into a civil system exactly how judges should interpret certain matters. The roles of the court are only in clause 7 provisions, which say in their own terms that they may have regard to certain things, but do not give a definitive list. Those that are listed are nudging towards departure, as I said earlier.
I do not think there is anything in the Bill that gives judges the power to preserve or save certain rights. What I would say is that it puts them in a very tricky political position because they will be asked to depart from case law and make all sorts of policy decisions. That is slightly ironic when a lot of the political discussions over the past few years have been to save judges from stepping into the political arena.
I very much agree with Sir Richard that the outcome of the Bill is to generate litigation, because the vast majority of the laws that come out of it will be secondary laws, which are susceptible to challenge. One will be arguing, for example in relation to clause 15, whether the similar objectives were being met by regulations that replaced the earlier retained EU law, and whether that has been met by the new rules. That is an incredibly difficult task, and one that could end up in lots of litigation. I think that we will end up with a lot more cases on those sorts of issues.
Sir Richard Aikens: I agree with what Jack said. As I read clause 7(7), the factors that the court must have regard to are not exclusive. In other words, they can have regard to other factors as well, which Parliament has not identified and has left to the judges to decide whether they might be relevant. So I would like to make two points. First, this is not exclusive, and it may well be that, in future cases, appeal courts will introduce other factors, maybe on a case-by-case basis, which are only relevant to that particular case, but there may be a development of more general factors, which, once you get that at a Court of Appeal or above level, will then tend to be repeated thereafter.
The second point, as has been made by both my colleagues already, is that EU case law necessarily involves a consideration of the way that the Court of Justice of the European Union looks at regulations and its previous case law. In my view, the CJEU is a much more active court in terms of both interpretation of EU instruments, to use the phrase that is in the Bill, and its previous case law. It tends to develop principles derived from both instruments and case law in a rather more positive way than the UK courts do. I can only speak for the English courts, of course.
The problem, therefore, that the judges are going to have to deal with is: do they carry on with that approach, as in the case law of the EU, or do they somehow retreat from that? Although they have got these factors here that are laid out, they do not really deal with that aspect at all. That, again, puts the judges in a difficult position, because they have not got the guidance from Parliament. They have got this body of law—the acquis of the retained EU case law—but do not really know quite how to push it on, or not push it on. I think it will make life quite difficult for the judges.
Jack Williams: As a footnote to that, on the Court of Appeal for the reference procedure, the Court will not even have decided facts, so it is quite ironic that what is being imported with the national reference procedure is like the preliminary reference procedure under EU law at the moment where you ask a court a legal question—an abstract legal question here—on whether to depart from retained case law. And yet, very unlike common law reasoning, one would not actually have a judgment from below with a factual position working out how the case law is applying to a certain set of facts, so it is even harder for the judges, because you are asking them a pure abstract question: should we depart as a matter of law from that EU case law without understanding the full factual matrix? That is very unlike common law reasoning where you incrementally grow and apply to the facts.
The Chair
Order. I have three colleagues bursting to get in and we have only about seven minutes left, so short answers to short questions, please.
Barney Reynolds: In short, I am not suggesting we follow another country. The court interpretation provision is unprecedented. Abu Dhabi created something from scratch. It was not a transition from what they have got, which was based on the French-Egyptian model, to the common law model. We should do our own thing that works for the UK, and using our methods. I agree with that.
I agree with my colleagues on the uncertainties that can potentially arise. As a lawyer, I think we need to be very careful about those. I am concerned with them. My solution is to expand clause 7 and the list of things that should be borne in mind in order to execute an adroit shift to our common law method in a way that does not involve interpretation too much. I do not think you can remove the necessity for judges to exercise interpretative powers to execute the shift. Ultimately, this shift involves trusting the judiciary, which I do. I am fine doing that, and I do not think that there is a shortcut or a way in which we can box people in so they cannot use any discretion and nevertheless get to the same place. We have to trust people to do it.
Mr David Jones (Clwyd West) (Con)
Q
Sir Richard Aikens: You start from the fact that supremacy no longer exists unless it is retained by UK law. Half speaking as a lawyer, but I suppose half speaking as a commentator, I do not myself see why there should be any part of our UK law that is regarded as more supreme than another, unless specifically identified by Parliament as being necessary for some reason. In many other countries, there is the principle of the constitution, which is inevitably supreme and cannot be crossed; we do not have that and have never had that in our law, except perhaps in very specific circumstances.
In general, therefore, I would say that the whole idea of supremacy should be done away with, unless there is some specific reason in specific areas of law why it is necessary to retain it. For my part, I cannot think of anything that immediately comes to mind that is not already dealt with in our law—I am thinking in particular of human rights.
Alex Sobel (Leeds North West) (Lab/Co-op)
Q
Jack Williams: I would start by not necessarily having what George Peretz KC calls the gun to your head, so that by the end you do not have time to scrutinise, because if you did take the time to scrutinise it, you might be left with the choice on the last day of what is there or nothing at all. That is obviously a difficult position for Parliament to be put into, having to save its own law somehow without a set procedure.
A direct answer to your question, however, is more scrutiny from Committees. One can imagine, for example, a Committee that was set up specifically to analyse all the changes that are coming to certain practice areas, with consultation and independent experts assisting—much like this Committee format. There is also the legislative reform order super-affirmative procedure, which builds and bakes in consultation and I think extra time in the process—the downside is exactly that last point, which is that it leads to delay. If you have a cliff edge of 2023, it is not particularly suitable, but it might give some ideas for inspiration. It is under a 2006 Act, but I think it has been used fewer than 50 times, precisely because it takes so much time and involves so much scrutiny—but if you are looking for an example.
Mr Marcus Fysh (Yeovil) (Con)
Q
Barney Reynolds: Yes, I think we should look at reinstating the Interpretation Act 1978, which spells out the UK method of interpretation. That would mean all lawyers could understand what existing EU provisions will mean on the basis of the words on the page, with very limited delving beyond that, and would probably lead to greater certainty than trying to move slowly from one to the other, case by case.
The Chair
Thank you. I am afraid our time has run out, and we are under strict time limits. I thank all three of you for your expert evidence. It has been very helpful for the Committee.
Examination of Witnesses
Sir Jonathan Jones KC and Dr Ruth Fox gave evidence.
The Chair
We move on to more experts. We have with us in person Sir Jonathan Jones KC, former Treasury Solicitor, and Dr Ruth Fox. Please take your seats. We have until 3.05 pm for this session. Please could the witnesses introduce themselves for the record?
Dr Fox: I am Ruth Fox. I am director of the Hansard Society. For transparency, the Hansard Society is leading a review of delegated legislation, on which we have a cross-party advisory group that will be reporting shortly. Sir Jonathan is a member of that advisory group.
Sir Jonathan Jones: Good afternoon. I am Jonathan Jones. I am a consultant with a law firm Linklaters and I was previously Treasury Solicitor.
The Chair
Thank you. We will start, as usual, with our shadow spokesman, Justin Madders.
Justin Madders
Q
Dr Fox: The fundamental concern we have, as you have heard from other witnesses, is with the sunset clause and its cliff-edge nature. It is also the fact that Ministers will decide which pieces of retained EU law will expire at the end of next year and Parliament will not have any oversight of what falls away. It has been variously described as being turned off, but that implies that it might be turned on again at a later date. It cannot; it will fall away and expire.
The concern is there could be pieces of retained EU law that have been missed. We have heard today that there is a possibility that a significant proportion of retained EU law has been missed from the Government’s dashboard, so we do not know exactly what the scope of retained EU law is. If pieces of legislation have not been identified and saved by the expiry date, they will fall away and we may have regulatory gaps. That is a significant concern for Parliament’s oversight of the regulatory landscape going forward. That is our primary concern: the cliff-edge nature of the sunset clause and the fact that the Government’s objectives, in our view, could be done in a different and less risky way.
Justin Madders
Q
Dr Fox: There were provisions in the European Union (Withdrawal) Act providing additional consultation periods for proposed instruments under the Act. They ensured additional oversight for Parliament. Although the Government are proposing to remove those provisions, that is not a major concern for us because the Government are, frankly, right that there has not been much tangible benefit to that process, because parliamentarians have not used those oversight provisions. For example, when statutory instruments have been laid for pre-consultation for 28 days, parliamentarians have not looked at them. They have not raised issues about them and a Committee has not looked at them.
The House of Lords has done marginally better. Its Secondary Legislation Scrutiny Committee has looked at the instruments, but the Commons has not. It is hard to argue that they need to be retained. There have been problems with them from a civil service perspective because it is complex to determine which of the consultation and oversight provisions apply to the instrument in front of them. Mistakes have been made and they have had to withdraw instruments and lay them again. I do not have a major concern about that, but there are broader scrutiny issues in terms of sifting in the legislative and regulatory reform order process.
Justin Madders
Q
Dr Fox: You are inviting me to give away the Hansard Society’s review proposals before we have published them! We all know that the delegated legislation scrutiny process is, at various points, inadequate for everybody concerned. Ministers spend a lot of time attending delegated legislation Committees, carving out significant time in their diaries. You all spend time in those Committees and feel that they are not necessarily a constructive form of scrutiny and oversight. There are lots of problems with the process.
The triage system applied to European Union (Withdrawal) Act orders was a technical sifting of instruments. Those who participated in European statutory instrument Committees found that it was a useful exercise but a very technical and legal process. We feel that that could be widened and expanded. There is no reason why sifting could not apply to all the instruments laid under the Bill rather than just to those laid under three specific clauses. That would have implications for parliamentary time and management, but it could be a way of improving scrutiny. We would certainly extend sifting to clause 16, for example, which is quite an extensive power that is not sunsetted. Those are possible ways to improve scrutiny.
Ms Ghani
Q
Dr Fox and Sir Jonathan, you are not comfortable with what the Bill proposes, but I get the feeling that you are probably just not comfortable that we are trying stop EU law continuing to sit on the UK statute books for ever without us having any power to amend it. Is that the case, or do you see a time in the future when it would be appropriate to move EU laws off the UK statute books? I will come to you first, Dr Fox.
Dr Fox: I reject that. I am up for change and quite embrace it. This was the purpose of Brexit, was it not? We should therefore get on with it. I do not object to your objectives; I object to the particular nature of the process and procedure by which you are proposing to achieve them, which is unduly risky.
If, for example, you do not find a regulation or a piece of retained EU law and so do not deal with it by next December, it will fall away. You cannot know the implications of that if you do not know about, and have not dealt with, the existence of the regulation—that is my concern. As I set out in our written evidence, I think you could achieve your objectives, and indeed my objectives, in a different way.
Sir Jonathan Jones: I agree with that. Plainly, I have no objection to Parliament changing any law it wants, be it former EU law or any other law. I am sure that the EU law that we inherited when we left the EU is a mixed bag, and that some of it is ripe for review and change.
Like Dr Fox, the difficulty I have with the Bill is twofold. First, it creates a huge amount of uncertainty as to what the law will actually be by the end of 2023 or thereafter, because there are no policy parameters on what might change, what might stay or what might fall away. That is quite aside from the risk you have heard about—that some law might fall away simply by accident, because it has been missed, which creates a huge amount of uncertainty for users of the law.
The second issue that I have difficulty with is the lack of scrutiny—an issue that I know you keep coming back to and that Dr Fox touched on—by Parliament itself of the process. In the Bill, Parliament is not being invited to consider particular policy areas or particular changes to the law; it is simply signing off on a principle and a process, and I would say that the principle and process carry with them all that legal risk as to what the outcome will be. Those are the difficulties that I have. It is not a difficulty with Parliament being able to change any law it wants, including former EU law, whenever it wants to; it is the process being followed that I have difficulty with.
Stella Creasy
Q
I say that as someone who this week received something I had never, ever received before—I wonder, Dr Fox, whether you can advise me if this is common: a ministerial correction to an answer to a written question. The written question was to the Department for Environment, Food and Rural Affairs about the application of the legislation to the Avian Influenza and Influenza of Avian Origin in Mammals (England) (No 2) Order 2006. Originally, Ministers told me that the order was not made under section 2 of the European Communities Act 1972 and therefore did not fall within the scope of clause 1 of the Bill, but they issued me with a ministerial correction to admit that it did. Have there been other instances of Ministers not knowing the consequences of their legislation? What impact do you think that has on our ability to scrutinise legislation as parliamentarians?
Dr Fox: I cannot give you a number, but I am sure that there have been corrections of that kind. We also see that in respect of statutory instruments, where instruments have to be withdrawn and re-laid because of errors.
Clearly, one of our problems is that the complexity of law now, and the layering of regulations on regulations, coupled with inadequate scrutiny procedures, makes the whole scrutiny process incredibly difficult. Another problem is that the breadth of the powers in Bills which enable Ministers to take action, but do not define on the face of the Bill the limits and scope of that action, are very broadly drawn. That makes scrutiny incredibly difficult.
We also have amendment of legislation going through both Houses, and that adds layers of complexity. Particularly in the House of Lords, Members seek to introduce scrutiny constraints of the kind we have talked about in respect of the European Union (Withdrawal) Act. That is just additional complexity, which then hits civil servants trying to work out which powers they should be laying instruments under, and which scrutiny measures apply. For people who have to interpret and implement the law, it becomes ever more difficult.
I hope that one aspect of the review process would be to simplify some of those areas, with things like consolidation and so on, to help the process. However, given the scope and scale, I do not think that can be done by December of next year.
Stella Creasy
Q
Sir Jonathan Jones: I am not in the civil service, as you know; I am on the other side, advising clients about what the effect of the Bill will be on their businesses and so on. This was always going to be a very complicated exercise, including for the civil service. We are leaving one legal order and, in one sense, we are out of it—we are free—but the legal constitutional consequences of that were always going to be very complicated, because we had this huge body of law that over decades had been integrated into UK law. We were not keeping a running tally throughout that time of the laws that we might one day want to change, because they had come from a particular source. They were enmeshed it all sorts of different ways with UK law.
As soon as we left, we had to begin the process set out in the European Union (Withdrawal) Act 2018, which was about identifying what retained EU law needed to be changed in order for it to work operationally and technically. That was the process that was done with the 2018 Act, and it involved, as I think you have heard, many hundreds of sets of regulations to cure deficiencies in the language of that legislation. That was complicated enough, and it is possible that things were missed. There are certainly examples of some changes having to be made multiple times because they were not got right the first time.
That was complicated enough but at least, if something was missed, the law did not fall away altogether; it could be corrected later. What was being done then was an essentially technical exercise to keep the pre-existing law and to make it work as far as possible, in a way that provided continuity and certainty for users. What we are talking about now is an exercise of a completely different order. This is about changing policy, potentially getting rid of some laws and, in some cases, deciding what replaces them.
This is an immensely more complicated exercise even than the one that has already been done, and the civil service will not have started with a pre-existing list, however authoritative they are trying to make it. There is therefore a risk that as Departments perform an audit, or as the National Archives help with that process, additional laws will be found. There must be a risk that some will be missed altogether. If that is so, again as you have heard, the consequence of the Bill is that the law will fall away altogether on the sunset date, and you will not have the option of making a correction. Ministers, if they wanted to, would have to come back to Parliament with a Bill to replace or change the law. That is the complexity of the exercise.
Mr Fysh
Q
I have two questions. First, how else could you inject such urgency to get this done quickly, other than through what has been proposed? Secondly, we have heard a lot about the permanence of the falling away—this is your contention—of the laws because of the sunset, but is it not the case that in various clauses, such as clause 2(1), and clauses 12 and 13, there are powers for a restatement or reproduction of different things up until 2026 should it become necessary? Is that not an adequate safeguard mechanism should there turn out to be something that the taskforce approach, which should be very competent, has missed?
Dr Fox: On the latter point, yes—there is provision to extend the sunset through, as you say, to 2026, but that applies to the piece of retained EU law that you know about and are saving and assimilating, and that you will then have the option to amend later. The concern is that if you have not identified and saved it, it could fall away and you could then have that problem. There is also the prospect that you end up with a patchwork quilt of sunset dates, because it could be before 2026.
There are issues about at what point in that process, prior to December 2023, the Government would identify what they intend to do, either with the individual pieces of retained EU law or sections of retained EU law, which will introduce uncertainty. What we have proposed is to do that in a slightly different way: that is, take away the cliff edge where everything falls away—unless you choose to save it—and use Parliament as an ally in that process.
I completely understand the concern about internal inertia, particularly in the final two years of a Parliament and in these current socioeconomic conditions, where there are lots of capacity pressures. However, it seems to me that you could use Parliament as an ally by, instead of having cliff edge dates where legislation and law falls away, having dates in the process, possibly linked to your taskforces, where there are statutory reporting requirements to Parliament by Government Ministers and Departments and where Select Committees could be engaged in that process by scrutinising those reports.
You could set out what you want the Government to report on—what are their plans, what is their implementation timetable, what progress are they making, as with the EU withdrawal Act process for the statutory instrument programme; you could engage the National Audit Office in monitoring implementation of that; and you could have reporting. One of the things that wakes up permanent secretaries and others in the civil service is the possibility of having to appear before a departmental Select Committee and report on a lack of progress, or the fact that their plans are failing. Your model of taskforces to ensure consultation, coupled with statutory reporting requirements, through to a deadline of 2026 or 2028—whatever you choose—would be a better approach, because you could still achieve what you want to achieve but reduce the risk of missing something.
The Chair
Thank you. I have got a few more questions to get in before five minutes past. It was the first or second question, Marcus, which perhaps Sir Jonathan could answer, if you can remember it?
Mr Fysh
It was whether there are in fact powers to bring back things that have been sunsetted, such as in clause 13.
Sir Jonathan Jones: The short answer is that the powers to extend and save do not work if an instrument has been missed altogether by the time you get to the sunset date.
Mr Jones
Q
Dr Fox: It will probably not be that dissimilar to what we were talking about in terms of what we went through with the Brexit process. On sifting, the process proposed is that all negative instruments will be laid before the sifting committee in draft form. They would have 10 sitting days to decide whether to upgrade it to the affirmative procedure. The implications for parliamentary time will depend on what their decisions and recommendations are and whether the Government accept them, and therefore whether there has to be a delegated legislation Committee.
So yes, the potential is for an increased number of delegated legislation Committees. The reality is that doing all that before December 2023 is clearly nigh-on impossible; if your deadline is 2026 or 2028 and you smooth it out over time, then it is achievable. Again, it will depend on what the numbers are and what proportion of negative and affirmative instruments there are, depending on what the Government propose to do.
Alex Sobel
Q
Dr Fox: It would depend on what the enhancement was—improvement, but if the improvement implied obstacles to trade or innovation, financial cost or administrative inconvenience, then no, it could not. It is hard to see how the kinds of enhancements that have been talked about—for example, in relation to animal welfare—would not necessarily imply an administrative burden; they therefore could not be done under this provision. That said, my understanding is that the former Secretary of State who was the architect of the Bill took the view that it was not appropriate for imposing new regulations through delegated legislation. That is not a bad thing, but the problem is that the nature of the exercise does not work in that context, because of the cliff edge.
Sir Jonathan Jones: May I add a brief comment? First, the power in clause 15 is undoubtedly very wide, so the Minister has huge discretion in deciding what is appropriate. The test about regulatory burdens is quite a slippery test, not least because the assessment is whether the overall effect of the change is to increase regulatory burden. All sorts of factors might weigh within that burden. It may be that the Minister decides to increase some procedural burden and reduce some other, and makes the assessment that overall the effect is to reduce the burden. Within that, however, could be all sorts of complexity. It is very difficult to predict in the abstract exactly how the power might be used.
Paul Blomfield (Sheffield Central) (Lab)
Q
Sir Jonathan Jones: They will all be doing their best, I have no doubt. The example we have is the one already mentioned, which was the process gone through under the 2018 Act to identify the laws that were going to be carried forward as retained EU law and to work out what changes to those were necessary to make them work. As I said, that was complicated enough, and some things were either missed first time around or needed to be amended more than once, because they were not got right.
I was in the civil service for the first part of that process, and I helped to set it up and saw it happening. Of course civil servants do their best—Government lawyers were drafting like crazy to get the relevant regulations done in time, and by and large I think that did work. I am sure some things were missed, but the consequences for missing something then was not that we had a great gap in the law, but that we would have a technical flaw that later on could be cured. This is of a different order, but I will not repeat myself.
What can I say? They will be doing their best. There must be a risk that things will be missed, and the timescale set for doing this is much tighter than the time that was taken to do the previous exercise, hence the concerns you have heard us express.
The Chair
Thank you very much. I see no further questions, but I think a point of order is about to come.
Justin Madders (Ellesmere Port and Neston) (Lab)
On a point of order, Sir Gary. With reference to the Minister’s clarification earlier in respect of the story about the National Archives, from what she said I understand that that was work commissioned by the Department. I seek your guidance on a process by which the Committee will have the full information about that report and, in particular, on whether more laws will be covered by the ambit of the Bill. The situation is unusual, but a written statement by the Minister or a letter to the Committee might be appropriate as a way ahead.
The Chair
That is not a point of order for the Chair. I know the Minister—a very helpful Minister—will have heard the point, and I am sure something positive will be forthcoming.
The Chair
Nodding is going on. I thank the witnesses for their expertise and advice.
Examination of Witnesses
Tim Sharp and Shantha David gave evidence.
The Chair
Colleagues, we have until 3.35 pm for this session. Will the witnesses please introduce themselves for the record?
Tim Sharp: I am Tim Sharp, senior employment rights officer at the Trades Union Congress, which has 48 affiliated trade unions representing 5.5 million members.
Shantha David: Hello, and thank you for having us here today. I am an employment law solicitor. My name is Shantha David. I am head of legal services at Unison, the public sector trade union, which has 1.3 million members, 75% of which are women.
I have listened to some of the evidence, and there is a lot of discussion around process. I, on behalf of the union, would quite like to talk a little bit about the effect that this Bill will have on employment laws and workers.
The Chair
Thank you. I am sure that some of the questions—perhaps even some of the early questions—will draw that out from you. I call Justin Madders.
Justin Madders
Q
Shantha David: As we know, the Bill in the abstract looks at removing EU-derived laws. What we do not understand is how, if the provisions are sunsetted, that will strip away some very basic employment rights. I thought I would set some of those out.
For example, through EU-derived provision, the UK allows for 20 days of statutory annual leave. That will no longer survive if the provision is sunsetted. There is also protection for eight additional bank holidays, which is derived from the UK but is contained in the working time regulations. It is unclear whether those provisions would go, along with the 20 days of statutory leave, leaving UK citizens with no provision and no statutory annual leave entitlement.
Other typical basic employment rights are things such as the TUPE—transfer of undertakings (protection of employment)—regulations and protections, which I am sure you will know about. Those preserve an employee’s employment where their employment is outsourced or brought back in house, or where an employer’s business is bought out by another. Those employees are protected from dismissal. Their terms and conditions are also protected from being varied because of the transfer. If TUPE legislation goes, those sorts of employees could be sacked with no legal recourse, so it is unclear what would happen to them.
Family-friendly provisions are contained in a variety of different legislation. They are derived from the EU, as well as through Acts of Parliament. It is a tapestry of rights. Basic rights to maternity and paternity leave fall under the Employment Rights Act 1996, but the specifics in terms of the length of leave, who is eligible for that leave and payment of leave comes through EU provisions. Given the lack of information, it is unclear what will survive and what will face the chop.
There are other protections, such as part-time worker regulations and fixed-term regulations, which allow for parity of treatment for those types of workers. Again, those provisions will disappear overnight.
There are other provisions, such as the Equal Pay Act 1970. There are certain facets of that Act that are derived from Europe. Where there is a single source of payment for people’s terms and conditions, an employee can compare themselves with employees at a different establishment. Again, there are cases in the tribunals and courts at the moment dealing with this particular point. Removing the principle of direct effect will mean that these women in particular can no longer rely on the principle of equal pay for work of equal value. These are just some of the rights. There are many more, but we will provide written evidence if that is helpful.
Justin Madders
Q
Shantha David: Yes, the TUPE provisions provide for certain types of service provision changes and protections, particularly for outsourcing and insourcing. These are UK-derived provisions that survived and were potentially updated in the 2014 TUPE regulations. It was interesting at that time because the consultation responses said there was a certain level of certainty in the provisions and to keep making changes was unsettling for businesses. It was businesses that came out most loudly saying, “We all know where we stand at the moment. Let’s leave this piece of legislation alone.” Removing it altogether will create a great deal of uncertainty and take us back to the ’70s and ’80s when we did not know quite what was going on. The effect will be to block up the courts and tribunals, which are already under-resourced. We know of the delays and backlogs in the court system. Trying to rectify and understand how the laws will work if TUPE is removed is very hard.
Justin Madders
Q
Tim Sharp: Following on from what Shantha said, it is clear to us that these rights are not some sort of additional “nice to have” rights, they are crucial ones. They are particularly crucial for low-paid and vulnerable workers, and particularly the protections for part-time workers, for agency workers and for security guards and cleaners who are being transferred from one company to another.
At best, the uncertainty means that more things will be fought out in the courts. If you are a low-paid worker holding together multiple jobs, going through that process is both expensive and more than you can probably cope with. At worst, those rights go completely, so we are really worried about the impact it will have on vulnerable workers in particular. When you talk to business groups, it appears to be bad news for good bosses who want to do the right thing and follow what the law says. It is great news for bad bosses who do not care either way and they will have more freedom to do what they like. We are really worried about the impact of the legislation as it stands.
Ms Ghani
Q
The UK is leading in a number of these aspects. We were the first to introduce two weeks’ paid paternity leave in 2003; the EU has only just legislated for this. We have the highest minimum wage if you compare us to France, Germany and Japan. We are leading on paid bereavement as well. We have far more maternity leave with over a year; the EU has just 14 weeks. In April 2019 we quadrupled the maximum fine for aggravated breaches of workers’ rights, so the assumption that we are somehow going to fall into the 1970s, creating an atmosphere of insecurity, is not healthy.
I am sorry; I will get to the point and ask my question. The Government have stated many times in the past few years that we will not reduce rights and protections as we leave the EU, and the Bill contains powers that enable the Government to preserve and codify the REUL in a way that will incorporate it fully into UK law. What basis is there to be fearful of those rights diminishing? I do not want to hear speculation—we do not have enough time. I want to understand what basis there is.
Shantha David: I do not think this is speculation because, unfortunately, the Tableau does not provide a full list of legislation that is due to go. Without knowing what that is, it is impossible to know what will stay and what will go. It is imperative that the Government produce a list. The Tableau 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. The working time regulations contain the provision for the eight bank holidays. Whether they stay or go will be down to the Government, of course, but at the moment we do not know, and that is the biggest problem. It is the lack of clarity that is causing us the biggest headache.
Also, we are talking about 2,400 or 3,800—whatever the number is—pieces of legislation that are due to be sunsetted within a year. I understand they will simply go away at the end of next year unless something positive is done to replace them. If that is the case, yes, we will lose our rights to the 20 days of minimum annual leave entitlement. Women, who tend to be part-time workers, will not have the protections against dismissal and parity of treatment. And fixed-term workers, who also tend to be female, will not have their protections. Women who want to go back to the workplace and have the same employment and protection will not have that protection. You might think that is conjecture, but without knowing anything else, what else is there?
We need to have a comprehensive list of the legislation that is due to be affected. Once we know that, perhaps then we can be consulted as trade unions, as individuals and as members of the public so that we can have our say on what we want to keep. I do not think the Government intend to simply remove all legislation that assists workers and employees. I cannot imagine that that must be what the Government wish to do, so it would be helpful to have that information in front of us so that we can respond.
Stella Creasy
Q
Tim Sharp: No, we have not had those conversations. We are still in the dark. We are really concerned about the array of rights that have been set out so far today. There are lots of health and safety laws as well and things like protection for pregnant workers—there are lots of protections—but, so far, we do not know. It seems we are taking a shortcut to an unknown destination.
Stella Creasy
Q
Shantha David: Just to clarify, the 20 days are derived from Europe. The additional eight days were because, historically, those eight days were incorporated into the 20 days. To ensure that people had the additional eight days of bank holiday, they were allowed for under UK law, but it is contained within the same piece of legislation, which is where the confusion might arise.
Stella Creasy
Q
Shantha David: I think it is worse than that, actually; we will not have the 20 days at all. We will have the eight days of bank holiday only if they are taken out of the current regulations, presumably, and put somewhere else. If the regulations go altogether, regulation 13A, which talks about the bank holidays, will go with them.
Mr Fysh
Q
Shantha David: It would be helpful, though, if that were in writing. I am grateful for your words, but as a lawyer it would be helpful to have a full list of what is included. If that piece of legislation, say, is sunsetted and introduced at a later date, there will be workers who do not have access to those laws. That is a breach of access to justice as well.
Mr Fysh
That would be a strong incentive for the Government to get it right.
Shantha David: Indeed, but the timing is an issue. There is only just over a year to identify the pieces of legislation, and, as we mentioned, they are a tapestry of rights; we do not know where one right begins and another ends. I recommend the Employment Lawyers Association paper, which sets this out clearly.
Mr Jones
Q
Tim Sharp: We have raised our concerns about the protection of workers’ rights on a number of occasions when there has been speculation in the past, and have received lovely assurances, but I do not think we have met BEIS Ministers—there have been quite a few lately—in recent weeks. We certainly have not had the confirmation on workers’ rights. We have not been told if they are being retained.
Mr Jones
No, can Mr Sharp answer this? He is the person who has had the meeting.
Tim Sharp: We have met BEIS officials as the TUC. Have we asked for assurances? We have asked for information on what is planned on workers’ rights, and we have not been given any information on what is intended.
Mr Jones
Q
Tim Sharp: It would be lovely to think that the Government will retain the rights as they are, but even in this benign scenario—it would be great if it happened—we are still going to have great chaos. Let us say that all the regulations are restated. We still have all the interpretive principles and the case law falling away. It has taken years of litigation to work out what entitlement workers have to carry over sick leave, for example. We do not know what the position might be after this Bill is passed. If you are a worker or a rep in a workplace, you do not want to be going to tribunal and to court to settle all these matters again, which is effectively what this Bill does. You want to be able to have a conversation—
The Chair
I think you have pressed far enough on this, David. I would like to hear from Shantha.
Shantha David: Thank you very much. I am just going to remind Mr Jones that the equality impact assessment does identify that the removal of laws will have a detrimental effect. I am not sure that that is an assurance, because it is not. Beyond that, I do not know what help we have. I do not have access to Ministers in that way. It takes a while to get an answer.
Much like Mr Sharp was saying, the only way to clarify legislation as we go along and to get certainty in the law—we will not have it if provisions are sunsetted—is via litigation. That is something I am able to talk about. Litigation is costly, and pursuing appeals in the Senior Courts will take a long time because of the delays I mentioned. Given that tribunals and lower courts will no longer be bound by retained EU law, there is also the question of how long-established principles of precedent would work, and whether referrals would have to be made from tribunals and lower courts to the Senior Courts, which is what is envisaged in the Bill—either to go to the Courts of Appeal in Scotland, Northern Ireland and England and Wales, or to go directly to the UK Supreme Court. We are not aware—there is nothing mentioned in the paperwork, which is the only thing we have to work on—that that will be resourced in any way. We already know that it takes at least a year to get to the UK Supreme Court. There are only 11 justices. I am unclear as to who will make those decisions around interpretation.
Justin Madders
Q
Shantha David: Absolutely. If it is the Government’s intention not to get rid of workers’ rights and legislation that protects employees, of course it would be a lot simpler to simply set out what is protected.
Stella Creasy
Q
The Chair
Let us not stray too widely into Beecroft, because we are considering this Bill, but an answer would be helpful if it is relevant to this.
Stella Creasy
But it is relevant as an element of employment rights.
Shantha David: The difficulty we have here is the speed at which this thing is happening. It is not about whether you want EU-derived legislation to exist; it is about being able to have a considered view on the employment provisions that exist for workers, and to ensure that employees and employers are not mired in litigation forever and a day. The costs of this are incredible, and I think that is not completely understood. The costs of litigation are profound. If there are to be clear exceptions, and if it is very obvious that certain employment legislation will survive this cull, perhaps that should be specified. That would be very helpful.
Mr Fysh
Q
Shantha David: We would be more than happy to help.
Tim Sharp: Absolutely; trade unions would want to engage in such a process. I am not sure that it would stave off the scenarios we see, as the exact meaning of different rights would still end up being litigated. Even in that scenario—great, we would love to have those conversations, as it is really crucial that workers’ voices are heard, but the Bill will still cause immense confusion and costs to business and workers.
The Chair
Thank you very much indeed for your evidence. We now move on to our next set of witnesses. We will slightly change the language and tone of proceedings, as we will be discussing the environment, which is an ever important issue.
Examination of Witnesses
Ruth Chambers, Dr Richard Benwell, David Bowles and Phoebe Clay gave evidence.
The Chair
Thank you very much to our next set of witnesses. We are starting three minutes early, but we expect a Division at about 4.15 pm. If that is the case, we will try to end our session when the Division bell rings. Will you please all introduce yourself for the record?
Ruth Chambers: Good afternoon. I am Ruth Chambers. I am senior fellow at the Green Alliance, representing the Greener UK coalition of environmental groups.
Dr Benwell: My name is Richard Benwell. I am from Wildlife and Countryside Link, which is a coalition of 67 environmental and animal welfare charities.
David Bowles: I am David Bowles. I am head of public affairs and campaigns at the RSPCA, and I am representing the animal welfare stance.
Phoebe Clay: I am Phoebe Clay. I am co-director of Unchecked UK. We are a non-partisan network of 60 organisations making the case for strong environmental and social protections.
Alex Sobel
Q
Dr Benwell: Thank you so much for the question. Link has given evidence to lots of Bill Committees over the years—I have given evidence to some of the members of this Committee—and I do not think we have ever been moved to say at this stage in a Bill that it should simply be withdrawn. That is our view of the Bill at the moment.
We see the Bill playing out in perhaps one of three scenarios. In the most benign scenario, you could imagine a situation where the whole body of environmental EU retained law is simply restated and moved across on to the UK statute book as assimilated law. Even in that most benign scenario, we see a situation in which Parliament and the civil service have spent huge amounts of time, likely costing millions of pounds, in delivering the shift across. Even more importantly, we see a huge opportunity cost in terms of lost time to actually make environmental improvements. You said, Mr Sobel, that DEFRA has already had some capacity crises, and it is true. All sorts of important DEFRA agendas—the environmental principles, the environmental targets, the river basin management plans—and a whole raft of pieces of vital DEFRA work being proposed by this Government are now extremely delayed, and that would only be made worse by that scenario.
The second scenario is the cliff-edge version of the Bill, where you imagine huge swathes of potentially vital environmental laws falling off the cliff edge at the end of the sunset. I do not think any of us imagine that the Government will knowingly let things like the habitats regulations, the water framework directive or pesticides rules hit the buffer. I do not think anybody thinks that is the intention, but the fact is that we imagine there will be mistakes along the way. If you look at the process following the European Union (Withdrawal) Act 2018, there were lots and lots of wash-up SIs at that point from all the mistakes that were made by DEFRA alone—simply to get through the legislation at that point. With this version, so much more is on the table. Things are likely to be missed. Mistakes are likely to be made.
The third scenario is one of change and ministerial fiat to mess around with things along the way. The delegated powers in the Bill are some of the most extraordinary that I have ever seen. They give Ministers the power to change things almost without scrutiny along the way. The third scenario, and probably the most likely, is that we see elements of law being cherry-picked, either to be taken out or changed over the next 12 months, without any opportunity for people to amend, scrutinise or improve.
All three are really terrifying scenarios, and we can talk about why they come through the Bill later, but our view at the moment as Wildlife and Countryside Link is that the Bill is irredeemable and should be withdrawn.
Alex Sobel
Q
Ruth Chambers: Absolutely, and I endorse what Rich has just said. One other implication of the Bill relates to environmental law and policy making across the rest of the UK. I know we are very much focused on Whitehall today, but how, for example, will this process be conducted in Northern Ireland without a functioning Government? How are stakeholders going to be involved? That is not clear to us. We know that the Department of Agriculture, Environment and Rural Affairs in Northern Ireland has identified 600 pieces of rule that pertain to it as a Department. Again, where is it going to find the capacity to deal with that?
In relation to Scotland, there is an interesting angle, because the Scottish Government have a legal commitment to keeping pace with the EU. What is the interplay between that legal duty and the programme of rule in relation to the Bill and the Scottish Government? We note the concerns raised by Senedd Cymru, the Welsh Parliament, that the Bill risks imposing a regulatory ceiling on ambition and distracting from programmes in Wales. Those are some additional impacts to the ones identified by Richard.
I will come back to DEFRA, which is where we are perhaps more qualified to speak, and look at some numbers for a minute, in case that is of assistance to the Committee. We have heard talk of the previous EU exit statutory instrument programme, which we were involved with. Looking at the numbers of SIs involved in the two years of that programme, there were 108 in 2018 and 161 in 2019. That was a huge undertaking for the Department. As you have just said, it took a lot of resource from outside DEFRA, which put in some really innovative consultative mechanisms to help it to cope with that number of instruments.
By contrast, under this programme, the dashboard shows that DEFRA has 570 published pieces of REUL, but that is not the final number. We understand from the Department that the number is 835 and counting. That is not yet a published figure, and obviously we will need to have it confirmed by the Department, but that is a huge increase. The EU exit SI programme will pale into insignificance when you look at those numbers, which will require resource housed in legal capacity and technical policy capacity, and will require asking the expert stakeholder community as well. There is a lot of work to be done.
The Chair
I just want to intervene before the other witnesses give their answers. This is all very good stuff, but the answers will need to be quite a bit shorter or we will run out of time.
Alex Sobel
Q
David Bowles: I concur with everything that has been said. Two years from now will mark the 50th anniversary of the first ever animal welfare law passed at the EU level. The RSPCA has worked out that since that date in 1974, we have had 44 different animal welfare laws.
I will make one additional point. Obviously, animal welfare plays out very resonantly with the public and, indeed, with the Government. The Johnson Government came in with five different manifesto commitments on animal welfare and a pledge to improve animal welfare. It is quite ironic that the Bill, in Richard’s cliff-edge scenario, could get rid of those 44 pieces of legislation.
An additional issue that I do not think the Committee has looked at is that of devolution, which Ruth touched on. As you are probably aware, the Senedd yesterday put out advice on the legislative consent motion to reject the Bill, which it does not believe is good for the Welsh Government. Curiously enough, although Ministers of the Crown have the chance to delay the Bill’s deadline from 2023 to 2026, that option does not apply to Welsh Ministers.
Most animal welfare legislation is devolved—we have worked out that only 13 of the 44 pieces of legislation are reserved, while the rest are devolved—so it is up to those in Wales to decide what to have in their country, such as the battery hen ban and a vast array of other farm legislation, including on the live transport of animals. They will have all those things only until 2023 because Welsh Ministers have no option to extend that deadline. Only Ministers of the Crown have that option, and that really worries me.
Alex Sobel
Q
Ruth Chambers: All the groups you mentioned would be immensely helpful to the various Departments in identifying and commenting on the body of REUL that belongs to them. The important question is how such consultation should be conducted. For us, it should be hardwired from the outset and conducted in a transparent and structured way. Navigating the complexities and time constraints of consultation will place a huge burden on businesses and civil society. The more that that can be signalled in advance, the easier it will be for us all.
Last time around, the Department put in place a reading room on statutory instruments, for example. That was a helpful vehicle that gave stakeholders of all persuasions some extra time to look at the statutory instruments in question. It was just one mechanism that was put in place, but that sort of thing probably is not sufficient given the scale of the work that we are talking about. The more structured the engagement can be, the better, but it will be a big undertaking. It goes back to clarity on just how many pieces of law we are talking about, so that we know which laws are in scope and which are out of scope.
Alex Sobel
Q
Phoebe Clay: Looking further from that list, one important facet of that process is missing, which is people—the public. This is not an expectation of the public, certainly not during the referendum and certainly not in the past five years. What we have done a lot of is talk to people—your constituents—about their attitudes and what they value in relation to regulations. We find very little appetite for a process of this kind. We have been doing polling consistently over three years; all our polling suggests that a good two thirds of the British public think we should retain or, indeed, strengthen the level of standards that we had as members of the European Union. We find very little evidence that people see Brexit as an opportunity to deregulate—quite the opposite. People want to play to a sense of British standards, of the march of progress towards a better—and more—level of protection. In terms of what we value in the UK, this goes very deep. I would echo what my colleagues have said in relation to transparency and having in place a process whereby there is a level of democratic engagement with the Bill.
Alex Sobel
Q
Dr Benwell: As you say, that order is the main plank of action against invasive species. If we were imagining that the Bill is about reducing costs, far from it. If we were to lose that piece of regulation—the cost of invasive species in the UK on businesses at the moment is already in the billions. I think the sum is about £4 billion per year at the moment for the cost of invasive species on, for example, water companies. That would only multiply if we were to see those regulations lost or weakened. There are several areas where those kinds of rules exist only in retained law. For example, think of air quality threshold standards, or provisions such as the habitats regulations for protecting rare species or for providing the gold standard of protection for habitats. Think of the environmental impact assessment and the strategic environmental assessment rules. In some areas there is overlap, but in each of those areas EU retained law adds a really important element, over and above what existed in domestic law.
In some ways, it is a bonkers distinction. We have the term of “assimilation” in the Bill, as if we are taking something that is currently alien and making it British. It is already UK law; it has been on our statute book for a very long time. It has been assimilated in so far as businesses and people know how to work with it, expect it to operate and feel as if it is part of our law. There are loads of areas where the law can be improved, but simply choosing to tackle this block as if it were a special thing is a bad way to target areas for improvement. We could do much better through consultation, and by doing proper impact assessment of the laws that we know need improvement.
Ms Ghani
Q
My question is for Ruth Chambers. The review of the substance of retained EU law has uncovered more than 500 pieces of retained EU law owned by DEFRA. Many of those pieces of legislation relate to environmental regulations and protections dating back 20 years. Surely there is merit in reviewing the totality of those regulations, as the Bill provides for, to see whether they can be consolidated. Do you agree or disagree?
Ruth Chambers: It is certainly true that the body of retained EU law is ripe for being improved. That is what we would hope the processes of the Bill, or anything else, would lead to. Our concern is that the Bill would, either accidentally or if powers were misused in the future, not lead to those sorts of outcomes. Instead of the processes in the Bill, we would prefer a much more targeted approach that looks at retained EU law, and that picks the areas where the benefits to business are the greatest and environmental outcomes could be maximised, which Minister Trudy Harrison said, in answer to a written question, is DEFRA’s aim for reviewing retained EU law.
We are not opposed to reviewing the law, and we are definitely not opposed to improving it; we just do not think that the processes in the Bill will naturally lead to that outcome, especially when you look at clause 15, which we might have time to talk about. It basically makes the direction of travel of the Bill about deregulation rather than anything else.
Ms Ghani
Q
Ms Phoebe Clay, previously your organisation has accused the Bill of threatening to interrupt the Government’s target to halt the decline of nature in England by 2030. Can you set out how you consider that the Bill could interrupt a legally binding target that has been established by the Environment Act? We have a lot of lawyers this morning, and we want to contrast their evidence with yours.
Phoebe Clay: I think that is an ambitious target, and regulation has to be part of the pursuit of it. As Ruth has just said, the intent in the way that it is expressed at the moment is deregulatory. Our view is that, if that intent is pursued, we will struggle to stay on course with those broader objectives. It is worth stressing that is not just my organisation. Like Richard, we are a coalition. We represent a whole series of organisations across the spectrum, ranging from the Royal Society for the Protection of Birds to women’s institutes and a number of organisations working on worker protections. I guess it is worth underlining that this is not our position as a small coalition, but the position of all the other organisations that have signed up to that.
The Chair
I think it is only fair to give Dr Benwell a chance to come back on the issue of neutrality, very briefly.
The Chair
Q
Dr Benwell: Thanks, Sir Gary. Just to emphasise, we definitely see areas where EU-derived law can be improved, and absolutely share that intention. I could list quite a number for you now. Here I am representing not my personal views but those of the coalition. It is extremely clear from our published materials that the strong view of the environmental sector is that, while we share the intention of improving environmental law, we do not think that this process is the way to achieve it, because of the sunset clause, the deregulatory lock-in and the overly generous delegated powers to Ministers along the way.
Ms Ghani
Q
Phoebe Clay: I guess that we just want the guarantee that those environmental protections will remain in UK statute. At the moment, we do not think that the other providers—
Dr Luke Evans (Bosworth) (Con)
Q
Dr Benwell: No.
Dr Evans
Q
Dr Benwell: I am not sure that is the crucial part of the Bill from an environmental perspective; the crucial part of the Bill from our perspective is that it potentially or inadvertently allows for the loss of large portions of the statute book and for changes to environmental law without scrutiny. It also locks in an old-fashioned view of regulatory costs, seeing cost to business as the only way to judge the costs of regulation.
Dr Evans
Q
Dr Benwell: I do not think that we are the only organisation to have said that. I think that the Bar Council included the suggestion that the Bill should be withdrawn in its evidence. Wildlife and Countryside Link does not speak as a single body; it speaks on behalf of many of our members. The RSPB, for example, has been very clear in saying that the Bill should be withdrawn, as have lots of our members.
The Government might find features of the Bill they could bring forward separately. I think that the question of supremacy is one where we would see some risks in the interpretation of the law, but that is a political choice and, in itself, it is not the bit that we are most worried about. The bits that we are worried about, however, are so deeply ingrained in the fabric of the Bill that we suggest starting again.
On the sunset clauses, if you look at the House of Commons Library interpretation of what a sunset clause should do, it is there to stop emergency powers existing in perpetuity, giving Parliament a chance to review them. The Bill is taking, en bloc, huge amounts of environmental law and saying that they should potentially end within a year; it is a very strange amplification of sunset powers. On delegated legislation, the provisions in clause 15 that suggest Ministers should be able to bring forward alternative provisions without even tethering that to the original purposes of the regulations on offer are extremely broad delegated legislation powers. Another aspect that is deeply ingrained in the Bill is the idea that no alternative provision should be brought forward if it imposes new costs on business or hampers innovation and that sort of thing. That is an old-fashioned mentality that sees the costs to business of implementing regulation as the only view of the point of that regulation. Actually, if you take a deregulatory approach, it does not reduce costs; it simply transfers them from the businesses responsible for delivering them to the public. Those are all part of the weft and warp of the Bill, and that is why we think that the whole thing should go, rather than starting to amend it.
The Chair
That is clear, thank you. I will bring Ruth in on this, and then we will go to Stella Creasy. Ruth, you wanted to come in.
Ruth Chambers: Thank you, Chair. I have two points of clarification to make. First, I confirm that Greener UK as a coalition also wishes the Bill to be paused and withdrawn. That is not inconsistent with our position that we also believe that the body of retained EU law could be improved and that a process could be devised to do so. I feel that there was a little conflation of those two points but, to be absolutely clear, they are not the same thing.
Secondly, Minister, may I come back to your point about environmental targets, the 2030 species recovery target and the relationship with REUL? The relationship is a rather straightforward one: the opportunity costs that will inevitably come with the Department having to review, assimilate and reform such a large body of law. In fact, the Government have already missed their first legal milestone on environmental targets, on 31 October. That is just one example of how this can have a serious impact—because of the sheer deliverability challenges.
Stella Creasy
Q
The Chair
We are all reunited, more or less. Stella has the floor. We will let you know in a moment what the ending time for this witness panel will be; we are still trying to work it out.
Stella Creasy
Q
David Bowles: There are many examples. I mentioned at the beginning of the session that there are 44 different animal welfare laws, but that is my assessment; if you look at the dashboard that the Government have set up, there are 16 that are not on the dashboard but are on my list. That gives you an indication of the uncertainty, although to be fair, the dashboard is one of the most opaque measures of what the Government are doing. It does not seem to be in alphabetical or chronological order, and going through the 570 laws under the Department for Environment, Food and Rural Affairs tab is quite onerous. I think it is uncertain about where it is.
The Bill applies not just to the UK, but to Wales, and probably 31 of 44 laws in my area of animal welfare are devolved. The Senedd and the Scottish Government, who have responsibility for them, are uncertain as well, because they are taking their lead from DEFRA. Yesterday the Welsh Government said they were not minded to work out which laws were devolved, which were not, and which came under retained law. They were going to leave that up to the UK Government. That just fuels the uncertainty.
Stella Creasy
Q
David Bowles: It could create huge uncertainty. Two things need to be worked out. First, what does retained EU law mean? As we saw today from the article in the newspaper, there seem to be more such laws coming forward. Secondly, which are devolved and which are not devolved? There could be a huge discussion about that. The Bill will have huge implications. There is not just the devolution issue, but the common frameworks issue, which is how the three Governments work out how to move forward on specific pieces of legislation. There is also the matter of the United Kingdom Internal Markets Act 2020, which is the legislation that allows free trade within Great Britain. There are huge implications for all those issues.
Stella Creasy
Q
Ruth Chambers: That is a really important question. Clause 15 and how it defines “burden” is one of our biggest concerns about the Bill. If you look at the passage that defines “burden”, it is everything from an administrative inconvenience to something that causes issues to do with profitability. What does it actually mean? It also does not seem to sit readily with the answer that DEFRA Ministers have given, which is that their intention, in reviewing that body of rules, is to improve environmental outcomes. How does that sit with reducing regulatory burdens?
Not many weeks ago, some Government Ministers were suggesting that environmental protections were regulatory burdens and should be removed. That is not the case, we believe, with the current Government and current set of Ministers, but it shows that things can move quite quickly. That is why the Bill needs to be watertight on these issues.
The Chair
Shall we move down the table? Dr Benwell.
Dr Benwell: This is a really problematic part of the Bill because, as has been said, “burden” is defined in purely financial and business terms. It imagines that the small cost that business might incur is not worth it for the environmental benefits that come out the other end. Of course even critical laws, such as the habitats regulations, can be improved. For example, you could define projects and plans better, so that you could take intensive land management in as well. Those are conversations we are actively having with DEFRA, and we want to find ways to do that, but those proposals simply could not be given effect through the Bill because of clause 15, which sort of sets out a deregulatory agenda. Altogether you see a lock-in of deregulation where you might otherwise find improvements. We want to improve the law, but the Bill does not allow us to do that.
David Bowles: I concur with the two previous witnesses. The Government came in with a manifesto commitment to improve animal welfare, and indeed they are looking, hopefully, to get rid of cages for laying hens and pigs, but because we are so uncertain about the status of the conventional ban on battery hens, which was agreed in 1999 and finally came into force in 2012, we do not know if that ban is to be scrapped. The Government are almost looking two ways on the issue, and that worries us.
We need reassurance that there is a transparent process for filtering the 570 DEFRA Bills, and a time period in which to do that. I concur with the other witnesses: we are not against improving legislation; of course we want to do that. We are not saying that the legislation is perfect, but there are a number of caveats, including the time period, the filtering process and the impact on devolution. All of that is so unclear that we need reassurance.
Phoebe Clay: You put your finger on it when you mentioned the word “burden”, Stella. That is a really problematic word from our perspective. If we were to frame the discussion around environmental, social and human protections, the Bill would probably be less problematic. We know that people see the rules as protections, and conceive of them as things that keep them safe, particularly at a time when people are feeling incredibly uncertain and under-protected. Shifting away from the idea that regulations are necessarily burdensome would be a really important step forward.
The Chair
We have until 4.33 pm, slightly to my surprise, so we have another 11 minutes to go. Minister, did you want to come in?
Ms Ghani
Q
David Bowles: indicated assent.
Saqib Bhatti (Meriden) (Con)
Q
Ruth Chambers: It is not, unfortunately. I think you have to see these things in their places. On the Environment Act 2021, you are absolutely right: it was groundbreaking legislation that the Government passed to do many things. It is an enormous Bill, as you know, because you were on the Bill Committee. It sets up the Office for Environmental Protection, and it passed law on resource efficiency and so forth, but in the main, it is new legislation. Part 1 ensured that some protections that we lost after we departed from the EU were put in place—for example, on environmental principles. Other parts are brand new, such as the requirement to set environmental targets.
That is, however, separate from this vast body of law that we are talking about today, which is inherited from the EU. It relates to some of the laws I have just been talking about, but also covers completely different areas—for example, pesticide regulation. The important thing is not to pit one against the other, but to make sure that we have a coherent and functioning statute book, in which primary legislation such as the Environment Act continues to work and to be given priority, and the body of retained EU law is treated with respect and improved in a manner that we can all get on board with. They are part of the same legislative picture, but they are not really in competition with each other.
Saqib Bhatti
Q
Ruth Chambers: It is great to hear you say that, but of course every Act of Parliament is only as good as the pace and vigour with which it is implemented. We mentioned that the first statutory deadline on improvement targets has unfortunately been missed. We very much hope and want to work with the Government to address that legal breach at the earliest opportunity. The Act is full of powers. It gives the Government the option to do a great many things, but of course it is only the Government who can decide to do them. We will support you all the way in putting those powers in place in the most ambitious way, but it is not sufficient to say that the Act is testament to the ambition. It has to be implemented, delivered and resourced.
Saqib Bhatti
Q
Dr Benwell: That is what the legislation enables. I do not have a particular view on that from an environmental perspective.
Saqib Bhatti
Q
Dr Benwell: I do not have an environmental view on that question. I completely understand the political point, and that is for Parliament to decide.
Saqib Bhatti
Q
Dr Benwell: Definitely, and things like the Environment Act are a brilliant sign of progress. The promise in the manifesto to have the most ambitious environmental programme on Earth was excellent, and if we can deliver the species target that is in the Environment Act to halt the decline of species by 2030, that will be the first time in the world any country has set and met a target like that—but it does not operate by itself. Delivery of that Act rests on many of the environmental provisions that are put at stake by this Bill, such as provisions on planning rules, species protection and water protection. They do not live in the Environment Act; the Environment Act builds on them.
There is definitely the chance to do things better, and to bring forward lots of the positive things that the Government have already promised in their environmental programme, but they risk being set back as a result of the amount of time that the Bill will take and the potential for mistakes that this Bill introduces. That is why we are worried about it, not because of any of the principles around sovereignty. That is not a question we have a view on. It is more a matter of the practicality and enormousness of the task in front of us.
Justin Madders
Q
Phoebe Clay: We have asked questions very generically, as you saw in the research that was published in October, and we have asked more specific questions. We find time and again that the majority of the British public opt for strengthening rules, including members of the public who voted to leave the European Union.
We find very little evidence of significant geographical differences. People in the south and north of England, for example, have similar views. Our research has been corroborated by research by others, including by Professor John Curtice after the EU referendum, the Legatum Institute and others, so we can state with a lot of confidence that the British public do not perceive these rules as burdensome. I think there is a real sense that they are protections, including the environmental rules, and there is a general sense that protections are something that we should aspire to, exactly as the Member of Parliament just mentioned. We should be aspiring for stronger standards than we had when we were part of the European Union, rather than weaker ones.
The Chair
That concludes this session. Thank you to our witnesses on our expert panel. We appreciate the evidence that you have given.
Examination of Witness
Angus Robertson MSP gave evidence.
The Chair
We are moving on to Scotland. We will hear via Zoom from Angus Robertson MSP, Cabinet Secretary for the Constitution, External Affairs and Culture in the Scottish Government. This session must end at 4.53 pm. Thank you for joining us, Angus.
Angus Robertson: Thank you for having me, Sir Gary. Hello to erstwhile colleagues.
The Chair
Lovely to have you with us, Angus. The first question will be from the shadow Minister, Justin Madders.
Justin Madders
Q
Angus Robertson: If you do not mind, I was told that I could briefly make a few points at the beginning of the session. If you would indulge me, I might be able to both answer the question and set out some of the concerns of the Scottish Government and, by extension, the Welsh Government—we have the same position.
Thank you for the opportunity to speak to you all. I know you have had a lot of witness sessions today, so thank you for your patience. It will come as no surprise to members of the Committee to learn that the Scottish Government have deeply held, fundamental concerns about the legislation, particularly because of the undermining of devolution. There is concern about the democratic deficit that it exemplifies, and there are concerns, as we heard in the previous session, about the potential deregulatory challenges. We would want amendments brought forward in each of those areas.
Fundamentally, the Bill is the result of Brexit, which was overwhelmingly rejected by people in Scotland and is causing real damage to our economy and our society. The Bill is yet another example of a policy agenda being imposed by the Westminster Government on people in Scotland against their consent.
Let me start with devolution and why that is important. I represent a Government who were elected with a mandate to maintain close regulatory alignment with the European Union and EU standards. I recognise that the UK Government have a different agenda, but the whole point about devolution is to allow diversity, and it would be entirely possible to reconcile the difference in approaches through agreed common frameworks. After the EU referendum, that exact approach was agreed between the devolved Governments and the UK Government, yet the United Kingdom Internal Market 2020 and now this Bill make that near impossible. The Bill would allow UK Government Ministers to act in devolved areas without the consent of Scottish Ministers or the Scottish Parliament; there is no requirement even to consult. The internal market Act is having an insidious and erosive effect on devolution; in contrast, this Bill is a direct assault on devolution.
The second concern is about democratic scrutiny. The Bill grants Ministers, including Scottish Ministers, powers to amend or abandon legislation with minimum democratic scrutiny. Mere inaction or oversight could result in important protections falling from the statute book. Far from the promise of Parliament taking back control through Brexit, the Bill sidelines proper and appropriate parliamentary scrutiny.
Thirdly, on deregulation, the UK Government have said that they want the Bill to “utilise regulatory freedoms” by “lightening their burden” on UK businesses. The businesses here that I hear from are not interested in discarding 47 years’ worth of protections. Businesses, workers, consumers and our environment all benefit from high standards and not from a race to the bottom.
In conclusion, the people of Scotland rejected Brexit by a margin of 24%, and there was a majority for remaining in the European Union in every single local authority area in the country. The more people in Scotland see of Brexit, the less they support it; a panel-based survey this summer found that 63% of people in Scotland would vote to rejoin the European Union. Given that level of support for the EU, I note with some sorrow Labour’s pro-Brexit position alongside the Tories, most recently articulated by Keir Starmer when he was in Scotland at the weekend.
To finish where I started, the Scottish Government are fundamentally opposed to the Bill and have lodged with the Scottish Parliament this very morning a recommendation that consent be withheld. Thank you very much, Sir Gary.
The Chair
Thank you so much for making your position crystal clear. Justin, do you have a follow-up question?
Justin Madders
Q
I wanted to ask specifically about some of the inconsistencies when it comes to the powers available to you vis-à-vis the UK Government. Am I right that you will generally have the power to revoke and amend regulations, but the power to extend the sunset clause is not available to you? Do you know why that distinction has been made?
Angus Robertson: Indeed. It runs contrary to the conversation that I had with the erstwhile Cabinet Minister with responsibility for this, Jacob Rees-Mogg. He was very keen to give me assurances that devolution would not be undermined and that Scottish Ministers in the Scottish Parliament would be able to exercise maximum control to fulfil our democratic mandate: to remain aligned with the European Union.
Different powers are being assigned to UK Government Ministers and Scottish Government Ministers in important respects, and that is problematic for us—as is the point of capacity. I do not know whether you want to come on to that, but it is an absolutely massive challenge given that we are a Government who have a legislative agenda already. If we want to remain aligned with 2,000-plus or, if the Financial Times is to be believed, 3,000-plus pieces of European legislation, many of which are about devolved areas, we are talking about massive displacement activity in our Parliament here in Scotland. That is hugely challenging.
Justin Madders
Q
Angus Robertson: We have begun to do that. I should say that when I asked Jacob Rees-Mogg—as the proposing Minister, you would have thought he might have known—how many pieces of legislation would impact directly on the UK Government but then also on devolved policy areas, he was not able to tell me. We have still not been told the scale of the legislative impact, but it will be very considerable. Consider what is devolved—environment, rural affairs, transport and a whole series of other things. It will necessitate the legal services of the Scottish Government and the Scottish Parliament spending a lot of time dealing with the consequences of this Bill.
The problem could quite easily be solved by the UK Government simply acknowledging that there is no demand for this to happen from either the Scottish or Welsh Governments and simply carving out devolved areas. It would remain on the statute book here. If colleagues down south want to go ahead with that, I leave that up to them. We did not vote for this, and we certainly do not want it to happen, yet our parliamentary process and the way in which Government operates here is going to be deluged by trying to deal with this proposal, to which little to no thought has been given as to how it impacts on the devolved institutions of the United Kingdom.
Ms Ghani
Q
Angus Robertson: The Bill confers significant powers on Scottish Ministers and UK Ministers in devolved areas. Where the powers are exercised by the UK Ministers, no role is afforded to the Scottish Ministers or the Scottish Parliament. In devolved areas, it is the Scottish Parliament that has a democratic mandate to hold Government to account. That is why we have consistently argued that where the UK Government have powers in devolved areas under this Bill, they should need the consent of the Scottish Government, which is of course scrutinised by the Scottish Parliament, in order to exercise those powers.
As it stands, the powers you highlight would allow the UK Government to make broad changes in retained EU law in devolved areas, including revoking and entirely replacing standards that we have inherited from the European Union. This Bill will introduce a massive democratic disconnect. I would hope that colleagues across the parties would realise that this is a huge challenge to the basic understanding of how devolution works.
I would be interested to know, Sir Gary, because we have not yet heard, how this will work now that the Scottish and Welsh Governments have both withheld consent for this legislation. We have the ability through the Sewel convention to say that this, as it stands, is not workable, practical, proportionate, and I could go on—
Ms Ghani
Please don’t; I think the point is crystal clear. So much of this is caught up in legal language. You made it clear that there are some powers that would allow you easily to align yourself to retained EU law. This Bill does not limit the powers given to Scottish Ministers in the European Union (Continuity) (Scotland) Act 2021 to align with EU law in areas of devolved competence. Rather, the Bill will give Scottish Government Ministers further powers to more easily preserve or sunset retained EU law within a devolved competence. These new powers sit alongside those given to Scottish Government Ministers in the 2021 Act. I can fully understand that you have perhaps had some unsatisfactory conversations with Secretaries of State, or not had the assurances you are constantly seeking, but the reality is that you would have far more authority than you are alluding to with regards to control of legislation with this Bill. [Interruption.] Let’s move the conversation on, because we are very short of time. If we follow your argument, there is a concern that the Bill will cause greater divergence between retained EU law in England and Wales and retained EU law in Scotland. Is that conflict a concern for you?
Angus Robertson: With the greatest respect, the point about devolution is that we are able to do things differently in different parts of the United Kingdom. That is the point.
There are two significant problems that I really hope colleagues understand the scale of. We do not wish the proposal to go forward, yet if it does, we are a Government who already have a legislative programme which is going to come under massive pressure over the next years, depending on when the sunsetting arrangements are finalised for, and we are going to have to legislate through primary and secondary legislation to retain alignment with the European Union. That is the first point. I would hope there is an understanding of that.
The second point that I have tried to underline is the ability of UK Government Ministers to, in effect, override the concerns of the Scottish Government. That is much more than a democratic deficit; it is an undermining of the devolution settlement in its entirety. I am sure that some colleagues on the Committee will have looked closely at the workings of the United Kingdom Internal Market Act 2020 and the common frameworks. In effect, they mean that decisions made in the UK Parliament in relation to England are then applied throughout the UK regardless of the view taken by Parliaments in Scotland, Wales or Northern Ireland. I hope colleagues understand the seriousness of the territory we are getting into.
Ms Ghani
Q
Angus Robertson: I am not talking about any laws returning to Westminster; I am talking about UK Government Ministers having the ability, in effect, to legislate in areas that are devolved. That is a totally different thing—
Ms Ghani
Q
Angus Robertson: They can in any area they like—that is the problem. That is the concurrent nature of the powers for UK Ministers and devolved authorities. It is clear to be read: it is a power that can be used. I cannot foresee exactly which Minister would seek to use such a power or for what purpose, but they would have that power. That should surely be a concern for everybody. Is it not?
Peter Grant (Glenrothes) (SNP)
Q
Angus Robertson: Yes.
Peter Grant
Q
Angus Robertson: Yes, it is. I believe the Welsh Government are withholding legislative consent, as are the Scottish Government. If the UK Government are true to the word of the erstwhile Minister with responsibility for this legislation, Jacob Rees-Mogg—when I met him on 28 September he said to me, in terms, that the UK Government would respect the Sewel convention—it is a moot point because they will not proceed. I hope they do not.
Peter Grant
Q
Angus Robertson: Indeed. First, the Bill could be drafted in such a way that it did not apply to Scotland or Wales. That would be the easiest solution: just limit the scope of the Bill to non-devolved areas. That is suggestion 1. Suggestion 2 is to amend it now to do that or to have a similar effect. Why proceed, given the serious concerns that have been raised by both the Scottish and Welsh Governments? I do not understand why the UK Government seem to be ploughing on regardless, given that there has been a dialogue and these concerns have been enunciated for quite some time now.
Peter Grant
Q
Angus Robertson: We know that the scale of the challenge is significant first, for the reasons that I have pointed out: we already have a legislative programme and a Government legal service involved in all the legislation currently going through the Scottish Parliament.
Now we have this additional challenge, which has not been properly quantified by the UK Government, who cannot even tell us what they believe to be the split between reserved and devolved. As I have outlined, we know in broad terms what devolved powers are—they cover very significant areas. Our estimation, which is still to be gone through with a fine-toothed comb, is that this will have an extremely serious impact on the ability of the Scottish Government and the Scottish Parliament to scrutinise legislation that would need to go through our process to ensure that legislation does not fall over the sunsetting cliff edge. That is very significant.
Should the retained EU law dashboard identify whether retained EU laws in scope of the Bill are devolved or reserved? Absolutely. Do we have any sense that that is going to happen? No, we do not. A lot of work will have to be undertaken, and it is a massive displacement effort from what we are trying to get on with. If the UK Government really want to respect the devolved settlement and listen to the Scottish and Welsh Governments, and do not want to break the Sewel convention, they should bring forward an amendment that disapplies the legislation either in whole or specifically in devolved areas. That would be the most sensible and, given what the UK Government Ministers have said to me personally, the most pragmatic way of going forward. If not, one can only conclude that what was said was not said in good faith.
The Chair
Thank you very much. We have one minute left. I am keen to bring in Stella Creasy for a quick question, and then Angus for a quick answer, please.
Stella Creasy
Q
Angus Robertson: I am all in favour of good intergovernmental relations. I have been doing this job since last year, and I have gone into conversations in good faith about any and every potential challenge. If that is one of them, I am happy to do so again.
The wider point is that we are supposed to have a range of measures that we can use to make devolution work, including the Sewel convention. We have subsequently agreed ways in which Governments in the UK should work together to push through potential challenges, and common frameworks and the like are supposed to deal with some of these issues. I wish the UK Government would live up to their promises to work with the devolved Administrations across the UK, as I am keen to do. They have an opportunity to do so by respecting the Sewel convention in this particular piece of legislation.
The Chair
Thank you so much. Your evidence has been very clear, but sadly we have run out of time. It is very nice to see you again.
Angus Robertson: Thanks for having me.
Examination of Witnesses
Michael Clancy OBE, Charles Whitmore and Dr Viviane Gravey gave evidence.
The Chair
I thank our final set of witnesses for being patient—we have run slightly over time because of the Division in the House of Commons. We will now hear oral evidence from Michael Clancy, director of law reform at the Law Society of Scotland; Charles Whitmore, research associate at the School of Law and Politics at Cardiff University; and Dr Viviane Gravey of the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast. All three witnesses are appearing via Zoom. We have until 5.23 pm.
Would the witnesses introduce themselves for the record, please? Let us start with Mr Clancy—[Interruption.] We cannot hear you at the moment—[Interruption.] Okay, we are having technical problems. We will suspend briefly and someone will do something with a hammer.
The Chair
I hope that we have got it right this time. Would our witnesses like to try introducing themselves again, please?
Michael Clancy: Thank you, Sir Gary. My name is Michael Clancy. I am director of law reform at the Law Society of Scotland.
Dr Gravey: I am Viviane Gravey, a senior lecturer in European politics at Queen’s University Belfast. I am also co-chair of Brexit & Environment, a network of academics looking at the impact of Brexit on the environment.
Charles Whitmore: My name is Charles Whitmore. I am a research associate with Cardiff University’s Wales Governance Centre, where I lead on its joint work with the Wales Council for Voluntary Action, which is the national membership body for charities in Wales, on the constitutional and legal changes arising from, in this case, withdrawal from the EU.
Justin Madders
Q
Dr Gravey: Thank you very much for the question. It is true that, in any case, there will be many more concerns for Northern Ireland. We have two different types of concern. First, it will be more complex for Northern Ireland, and secondly, in the absence of an Assembly or Executive, it will be harder for Northern Ireland to either participate in the retained EU law powers or to give any kind of oversight.
In terms of how it is more complex for Northern Ireland, there were some mistakes in the discussion this morning around the scope of the Bill when it comes to Northern Ireland, in clause 1(5). That is basically just about excluding, as with the rest of the UK, a primary role from the scope of the Bill. Basically, that is there because we sometimes have direct rule in Northern Ireland. There are Orders in Council, and they are not secondary legislation, but there are statutory instruments and statutory rules in Northern Ireland that will fall within the scope of the Bill.
The protocol comes in in two different ways. First, because of the protocol, we have retained EU law in Northern Ireland, but we also have a different type of EU-inspired legislation, which is directly applicable EU law, through the annex to the protocol. There is some question about the overlap between those two groups, and what will happen, for example, if we start removing or adding protocol laws that do different things from retained EU law. We have a very complex system in Northern Ireland right now. That is one of the issues.
The other issue is, as I think you have heard, about the primacy of EU law. That will be removed by the Bill, but it is maintained and reaffirmed in the Northern Ireland Protocol Bill, which is also in front of the Commons. How those two Bills will work together is one of the big questions, and I do not think anyone has an answer. Civil society and Government—Ministers and civil servants—in Northern Ireland have a lot of questions, and there are concerns that we are not getting answers or clarity from the UK Government on this.
Justin Madders
Q
Dr Gravey: Again, there are two different impacts. There is the impact on deciding on REUL, and what happens on the revoking end impacts on oversight. Before we lost our Ministers at the end of last month, some of the Departments had started work on mapping REUL. We know that the Department of Agriculture, Environment and Rural Affairs has identified around 600. The Department for Infrastructure has identified around 500. But the other Departments have not yet told us how many. It looks like the Northern Ireland Office is pushing the Departments to do something, but there is very little clarity. On a NI dashboard, for example, it is very unclear what we are going to get —if anything.
The other point is on consent and oversight for REUL. Through the UK Brexit SIs, we experienced that best efforts at involving the devolved Administrations were very limited in practice. On the environment and agriculture, for example, the experience in Northern Ireland has been that, even when the Assembly returned in 2020, the Committee for Agriculture, Environment and Rural Affairs and DAERA were getting only parts of the Brexit SIs, and they got them very late, with very little time to engage at all with stakeholders or to provide consent. That was when we had an Assembly. When we did not have an Assembly—for most of the Brexit process—there was no formal process for stakeholder engagement and involvement in the massive change that has already happened for the creation of retained EU law.
The fact that this Bill creates even more of an opportunity to change a vast amount of legislation even more deeply, and the lack of an Assembly, leads to the concern—the Scottish Minister said this earlier—that decisions will be made without the involvement of devolved citizens. That is even more the case in Northern Ireland because we do not have the mechanism for normal consent through the Assembly and the Executive.
The Chair
Q
Michael Clancy: The Law Society of Scotland’s principal concerns are about the potential for confusion and the lack of clarity about what the law is, what law applies and when it applies. In particular, we think that the sunset provisions are unduly short. We are told that the sunset will operate from the end of 2023—a phrase that lacks some statutory precision, I might say, so we will be preparing amendments to deal with that.
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. I hope that is helpful.
The Chair
That is very helpful. Mr Whitmore?
Charles Whitmore: It is important to emphasise as a starting point just how significant the Bill is from a devolved perspective. There has not as yet been sufficient consideration of the implications at the governmental level. It is not evident to me, from the Bill and the Bill documents, that sufficient consideration has been given to that.
For instance, there is a lack of a consent mechanism, despite that being contrary to practice in recent legislation. The clause 2 extension power is not being granted to devolved authorities. There is significant uncertainty about how the legislation might interact with different levels of governance and the different levels of inter-dependence therein. Crucially, we do not know much yet about what mechanisms relating to institutions for intergovernmental relations we might need, have or lack so that we can ensure co-operation in what is fundamentally a shared policy space.
It is important that those issues are given due consideration, ideally prior to the introduction of the legislation. Not having an understanding of them could amplify the significant risks of omissions and accidents arising from the sunset mechanism.
A second core concern for us is the legal uncertainty, which I am sure the previous panels spoke to you about. There is significant scope for the Bill to 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, and because there is uncertainty around how you address the tensions in the Bill at an intergovernmental level.
For instance, we do not know how different parts of the UK will make use of the powers in the Bill. Which will fall within the market access principles of the United Kingdom Internal Market Act 2020? Will they fall within or without an area covered by a common framework? 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.
Ms Ghani
Q
Michael Clancy: In terms of the EU legislating differently from Scotland, it all depends on what was meant by that phrase, Minister. I am therefore kind of in the dark about what you are asking me to comment on. Certainly, the EU is a completely different legislative creature from legislatures within the UK. It operates in the field of supranational law, rather than national law, and has a different mechanism in the relationship between the Parliament, the Commission and the Council. Those are significant differences constitutionally from the way in which we operate, but I am not really sure what your fundamental objective is?
Ms Ghani
Q
Michael Clancy: As you might have seen from our evidence, we took a lead from the comments made by Theresa May when she was Prime Minister about the creation of retained EU law as a route to certainty following the UK’s withdrawal from the European Union. Of course, it is always in the gift of Governments to change tack. To change to a different legislative structure, following the creation of retained EU law, is certainly possible, and the Bill seeks to do that, but I suppose the question is whether it is wise to do that in the time of the current economic crisis in which we are living.
Is it wise to do that with what could be described as a doctrinaire approach to time limits? The symbolic element of the later time by which changes can take place terminating 10 years after the referendum is all very well in terms of the political discourse, but will it be practicable to get to that point? Will there be adequate time for consultation with relevant individuals and businesses before that date arrives? Those are real issues embedded in the Bill.
There is then of course the issue that Mr Robertson and others talked about: the way in which all that interacts with the devolved Administrations and legislatures, and how they can deal with that approach to changing REUL. That is where one would want to criticise the Bill and ensure that we get it right if the changes are to proceed.
Ms Ghani
Q
“The UK government is in effect telling the devolved administrations to put on hold a lot of their priorities if they want to keep the status quo in any areas such as the environment where REUL plays a significant role.”
The compatibility and preservation powers in the Bill have been drafted as concurrent powers allowing either the devolved Administrations or UK Ministers to use them in devolved areas, or acting jointly. Those concurrent powers mean that devolved Administrations do not necessarily have to put on hold their priorities or allocate significant resources if they wish to maintain the status quo. Do you not agree?
Dr Gravey: Thank you so much, first of all for having read the blog—
Ms Ghani
I will never get those hours of my life back. That is fine. Please carry on.
Dr Gravey: Just the fact of the need to map all retained EU law in the devolved sphere is something that the devolved Administrations had not planned to do, and are being asked to do. Whether we can restate everything or not, there is one thing that as a Minister you might be able to help us with. Through transposition back in the ’90s or 2000s, a single SI might have been taken for the whole of the UK, even though it is an area of devolved competence. Can the different Administrations now each retain or amend that same SI differently? Can we have that kind of restatement of devolution powers?
There is a potential issue there. We are not sure what will happen when there was only one Brexit SI or one SI that was transposed back in the ’90s. For example, in some cases, transposition has been done by primary legislation in Scotland but secondary legislation in the rest of the UK.
We have all these things that have to be mapped. The mapping itself will take a lot of time, as we know from past SIs work. On the devolved Administration point, a lot of the worry is just going through and potentially making the case that at this point they need to have the right to retain something, although it is perhaps revoked in England. The impression that I have from my engagement with the Administrations is that there are some concerns there. If the UK Government are willing to say, “Don’t worry, even if it is the same SI, you can retain it while we revoke it”, that will reassure the devolved Administrations a lot.
Michael Clancy: May I say that I do not think that concurrent and joint are the same thing? We talk about powers granted to devolved Administrations being conferred concurrently and jointly. Concurrently means that they are used either by a UK Minister or by a devolved Administration independently of each another in devolved areas, whereas jointly means that a UK Minister and a devolved Administration are acting together. It is useful to get that kind of distinction on the record.
The Chair
Thank you, that is very helpful.
Charles Whitmore: While we are on the concurrency of the powers, I think this is a significant concern. It is a constitutional anomaly within our legislation that the UK Government can use concurrent powers in the Bill to legislate in areas of devolved competence without any form of seeking consent from relevant devolved Ministers. It is egregiously out of keeping not only with the Sewel convention, which is already under significant strain but with other EU withdrawal-related pieces of legislation.
Sections 6(7), (8), (9) and section 10(9) of the United Kingdom Internal Market Act 2020 require the UK Government to seek the consent of devolved authorities before making regulations and to publish a statement as to—if this is the case—why they are going ahead with that, despite potential devolved refusal. We have mechanisms in the European Union (Withdrawal) Act itself, and an intergovernmental agreement alongside, which provide a consent mechanism so that there is a recognition that this is a jointly shared space. It is quite odd that there is no consent mechanism of that nature in this Bill.
Justin Madders
Q
Michael Clancy: It might be difficult to get a protocol into the Bill, but if one recollects, in the United Kingdom Internal Market Act it was a long tussle between the Government and the other parliamentary participants in making reference to common frameworks in that measure.
One can say that under the EUWA arrangements for making retained EU law that had to be made by UK Ministers, a protocol was established between the Scottish Government and the Scottish Parliament where Scottish Ministers would indicate to the Parliament certain UK measures that would affect devolved matters. The Parliament would consider them and rank them according to whether they were significant or less so. Something like 83 separate orders were dealt with in that way, in terms of creating retained European Union law at that time over the period from 2018 to 2021.
Dr Gravey: If I can just add to that, of course a consent mechanism would be welcome, although we have seen some issues. What has been put in place for REUL around the withdrawal Act has been inter-governmental, so we are removing oversight in Parliament—both in Westminster and in the devolved Administrations—from the equation. They only come in because it is in the gift of the Scottish Government and Welsh Government to involve them, and because they have decided to involve them, but the agreement is between the UK Government and, for example, the Welsh Government.
Secondly, the absence of an Executive in Northern Ireland raises the question of how we can get consent. Can we have some kind of role for the civil service in Northern Ireland to grant consent? Can we have some role for the Northern Ireland Affairs Committee in the House of Commons to review some of this work? We do not know, but we need to think about it, because the absence of an Executive in Northern Ireland will be a rolling issue, and consent has to be rethought around that.
The Chair
Thank you very much—a final word from Mr Clancy.
Michael Clancy: That is a very important point about the role of intergovernmental relations in all this. We had a long period of reflection on intergovernmental relations, which resulted in the new structure being created earlier this year. One of its key aspects is that the relations should facilitate effective collaboration and regular engagement in the context of increased interaction between devolved and reserved competences in our new relationship with the EU and other global partners. The issue of intergovernmental relations has already anticipated that, and we should not necessarily want to reinvent the wheel. Instead, I suggest that we need to reflect on the structure of intergovernmental relations and see whether there is anything that can be developed or, alternatively, refocused on the issues that arise from the Bill.
The Chair
Thank you very much. There are no further questions, but you have given us a lot to think about. I am sorry for the technical glitch and the delay at the beginning, but thank you for your expert and excellent evidence. We will take it into account as we take forward our Committee proceedings.
Colleagues, I am afraid that brings us to the end of the time allotted—I know you will be upset—for the Committee to ask questions in this sitting. On behalf of the Committee, I thank the witnesses for their evidence. The Whip is about to prepare to move the adjournment, and the Committee will next meet on Tuesday 22 November for line-by-line consideration of the Bill. I cannot wait.
Ordered, That further consideration be now adjourned. —(Joy Morrissey).
Retained EU Law (Revocation and Reform) Bill (Third sitting)
Tuesday 22nd November 2022
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 November 2022 - (22 Nov 2022)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
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 hansardnotes@parliament.uk. 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.
Stella Creasy (Walthamstow) (Lab/Co-op)
It is a pleasure to serve under your chairmanship this morning, Sir George, as indeed I believe it will be throughout the Bill Committee. I am sure that we will have a wonderful and detailed discussion. Government Members are laughing about that idea. Maybe that is the irony about all of this, because, when we were told that Brexit should happen, it was about “taking back control” for this place. Well, let us give some control to this place in the proper scrutiny of this legislation. I support the comments of my Front Bench colleague, my hon. Friend the Member for Ellesmere Port and Neston, and of the hon. Members from further north than me—the hon. Members for Glenrothes and for Argyll and Bute—on these amendments.
Amendments 26 and 28 are critical. Let us start this debate by being absolutely clear; this Bill has nothing to do with Brexit. Brexit has happened. It may be continuing to cause many problems, but it has actually happened. However, the Bill is not what Brexit was about, because the Bill is a process and it has everything to do with a knee-jerk obsession with the idea that something with the word “Europe” in must be bad. That obsession will cause catastrophic devastation for our constituents, because the process that the Bill brings forward is incredibly destructive.
As my hon. Friend the Member for Ellesmere Port and Neston said, it is a deadline in search of a headline. That seems a rather poetic attempt to say something simpler, which is that nobody quite understands why the Government are doing it in this way. After all, when we look at the amendments that have been tabled, and at the evidence that has been given, not a single piece of evidence has been provided in support of this approach. That is a startling thing to recognise. Nobody knows why these particular laws are up for abolition, all in one go, apart from the fact that they contain “Europe” at some point in their titles.
That knee-jerk reaction is incredibly dangerous because it means that we will delete things that we did not even know were on the statute book, as things stand. Yesterday, I had the pleasure of serving in a Delegated Legislation Committee—I suspect that we will have thousands more if this legislation goes through—where the Ministers were not aware of the foundations of the laws that they were trying to amend. They were technical amendments, they said, to do with pollutants, rooted in European legislation.
Now, that is not a case for staying in the European Union; as I said, we have left. I would take up the challenge of the right hon. Member for Clwyd West, who talked about other laws we would want to change. Of course, there are laws we want to change in this place; nobody ever says that the statute book is the preserve of being correct, apart from Governments who are frightened of scrutiny.
The amendments have a simple, pragmatic basis: what this Government are trying to do is too big to do in one year. It is a very simple proposition, and we want to hold the Government accountable for the consequences of trying to delete everything all at once. One might look at the amendment paper and think that there are 50 ways to leave the European Union using this legislation, given all the different amendments that have been tabled. I prefer to think of Warren G, and his debate around “Regulate”, because this Bill is ultimately about the regulations that we have in this country—everyday rules that make such a massive difference to the people of this country.
I know we will come on to those, Sir George, so I will not test your patience by listing them, but that is why this sunset clause matters. When the Government are putting up for grabs people’s rights not just to a paid holiday or maternity rights, but to compensation, to not have cancer-causing chemicals in their cosmetics, to be able to watch the Olympics free of charge, or around compensation if they are artists—thousands and thousands of regulations that have been part of the social fabric of this country for generations—it is right to ask whether deleting all of them in one year, with no guarantee about what will come next, is the right way to approach the matter.
The debate we had yesterday in a Delegated Legislation Committee on the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2022 was a classic example of what the folly is. Not only was it not clear to the Minister which amendments would be deleted by the legislation we are debating, which then underpinned the Statutory Instrument that the Minster was presenting, but she could not clarify what would come next. She made a strong case about the importance of protecting us and protecting against the ways in which pollutants might be used within the chemical industry, but if we do not amend the legislation, that case will fall in a year’s time—by the sheer fact that the very legislation which underpinned the proposals, the technical amendments the Minister was trying to make, will also fall, because the Government are deleting absolutely everything.
During the passage of the Bill, let no one say that the concerns being raised are about whether Brexit should have happened. Brexit is done. This is about the folly of hitting “delete”, “control” and “alt” at the same time—then hoping we can remember what was taken out and that in a single year everything can be replaced. Six hundred statutory instruments were introduced during the Brexit process and anyone who was here at the time—I know that not everyone was—will remember the hours we spent in Committee Rooms. Here we have five times the number in a single year.
Some may suggest that Members of Parliament are lazy, that they do not do very much. Some even suggest that Ministers—current or former—might have time to go into a jungle. I know, however, that no one thinks it really feasible that we will have 167 days of non-stop Delegated Legislation Committees, yet that is exactly what this legislation will require if we stick to this particular sunset clause for everything. At the moment, given the way in which the Bill is drafted, it does indeed cover everything—and that is without beginning the process of what we want to keep and what we want to get rid of. The point of all this is that there are things the Government want to change. Those of us who are democrats believe that the Government ought to set out what regulations they intend to remove, because that is what taking back control really meant. Again, if we have only one year in which people are to understand quite how the Government wish to change their rights to paid holiday, it seems not unreasonable to expect the Minister to give us some idea of the direction of travel before we hit delete—but, again, we have nothing.
The amendment is simply about setting a calmer course of action. I think we owe that to all our constituents. I do not think there is a single member of the Committee who in recent weeks and months has not dealt with constituents who are terrified about the status quo, terrified about what is happening now and worried whether they will get through Christmas. It is not unreasonable to say that our primary focus is stabilising the economy and we will not do anything that would undermine that. Whether someone is a passionate believer that Brexit still brings opportunities—and I say good luck to them, and also, “We all know of a good therapist”—or whether they were worried at the time that this was a high risk to take, recognition that the pace of change is best tackled in a measured and orderly fashion is something I am sure we can all agree on. The amendment is about the pace of change, not the change itself. It is about recognising that in an economy that is struggling, we cannot rip up every single regulation, not provide any clarity about what comes next in under a year, then expect Parliament to find the time to write all those regulations—or, indeed, to find all the regulations; we will come on to the question of whether we know about everything that is going to be deleted. Yesterday, Ministers from DEFRA certainly did not; and the Whips even suggested that it was a problem for the Department for Business, Energy and Industrial Strategy rather than for DEFRA. I am sure it was news to the Minister in that Committee that she is now responsible for persistent organic pollutants on top of everything else.
I urge Government Members not to see this as about stopping Brexit, because Brexit has happened; but, rather, to see this as the best course of action to show that Brexit could work for this country. That means taking a simple proposal about how best to look at the legislation and its rubric. If we are going to find 4,000 hours of parliamentary scrutiny for delegated legislation, what are Ministers not going to be able to do? If we are going to find the civil servants to be able to deal with all this legislation, what else are they not going to be able to do? Are we confident that the next year will not bring further crises that will require our time, effort and energy? Are we confident that what is happening in Europe right now will not lead to further challenges that we would be better off putting our time, effort and energy towards?
I know that Government Members want to believe that the amendments are about opposing Brexit, but they are about opposing chaos. Government Members will have to explain to people how we will find parliamentary time, let alone find all the regulations. I note that the Minister said she would tell us what other regulations would be affected after we had passed the legislation, which does not inspire massive confidence. If not today, I hope that Government Members will reflect, and perhaps use the opportunity of those press reports to urge a calmer course of action. I think that all our constituents would thank us for it at a later date.
Mr Marcus Fysh (Yeovil) (Con)
On a point of order, Sir George. The hon. Member for Walthamstow mentioned at the beginning of her speech that Government Members were laughing. That was not true. I wonder whether we could ask the Hansard Reporters to strike that from the record.
The Chair
Order. I am not responsible for any comments that the hon. Lady might make. I was not aware of anybody laughing, but that does not necessarily mean to say that they were not.
Lia Nici (Great Grimsby) (Con)
Further to that point of order, Sir George. I was hoping to make the exact same point. If it will not be stricken from the record, the Hansard Reporters should ensure that the comments of my hon. Friend the Member for Yeovil are noted.
The Chair
I am grateful to the hon. Lady, but I think I have already dealt with the point.
Stella Creasy
Further to that point of order, Sir George. I merely rise to clarify that if somebody had a twinkle in their eye, I would consider that to be laughing. It might not have been heard by everyone, but I did not mean to suggest that anybody does not think that this is a serious matter; it was merely a wry reflection on the challenge ahead of us. I hope that the rest of the Committee’s proceedings will follow in good spirit and humour accordingly.
The Chair
I think the hon. Lady is trying to restore the calm that she referred to in her speech. I am sure that she has done so.
The Minister for Industry and Investment Security (Ms Nusrat Ghani)
It is an honour to serve under your chairmanship, Sir George. I hope that, over the next few—or many—days, proceedings will be conducted as calmly as possible. To start on a friendly note, I wish the hon. Member for Ellesmere Port and Neston a happy birthday—the big five-0. Now he will not talk to me any more.
I reject amendments 26 and 28, which would change the sunset date from 2023, as well as the date to which the sunset may be extended under the extension power. I am grateful that, although amendment 26 is not appropriate for the Bill, some hon. Members who spoke in support of it at least acknowledged that a sunset will be a valuable tool in dealing with retained EU law. It was interesting to hear the hon. Member for Argyll and Bute, for whom I always have a huge amount of time, say that he will oppose every step of the Bill. Fundamentally, he is just opposing Brexit, and we really cannot rehash the same conversation over and over. The hon. Member for Walthamstow referred to Brexit as a process. This is part of the process, so we need to crack on. We need a sunset date, otherwise it will be 20-on-the-never-never.
Paul Blomfield (Sheffield Central) (Lab)
I, and I think a lot of Opposition Members, have some sympathy for the Minister in having to defend the indefensible—a piece of legacy legislation. Has she seen the report in the Financial Times this morning? Her boss is apparently briefing that the sunset clause is inappropriate for next December. His aides are saying:
“Grant thinks things should be done at a more sane pace”,
reflecting all the evidence that we have received. When will she put us out of our misery and acknowledge that the December 2023 sunset date is madness?
Ms Ghani
If I have to respond to every item in a newspaper, regardless of where it comes from, we will be here much longer than we are already committed to be. If the hon. Member gives me a few moments, I will explain why the sunset date matters. As he says, many people are concerned about the timelines in the Bill, but I assure the Committee that there is definitely not a cliff edge. I want to respond to allegations of a bureaucratic burden—although that would assume that we would never have any change. This process is not simple, but we are not in government to do simple things; that is the honest truth.
Paul Blomfield
The Minister says that work is taking place in every Department. The Government clearly have a lot concerning them at the moment and many priorities. What assessment has been made of the amount of civil service time that will be involved? We have seen many estimates of hundreds of civil servants having to be devoted solely to this work, so I assume that the Government have done an evaluation of the impact. Can the Minister share that with us?
Ms Ghani
Every time the Government put forward a piece of legislation, Government resources are focused on that piece of legislation to ensure that it is delivered. We have a Brexit Opportunities Unit in place as well. The assumption that resources are not moved around to get a piece of legislation through is slightly absurd. We understand that it is a piece of work that needs to be done, that it is a process and we have a deadline, but the work will be done.
Ms Ghani
If the hon. Member gives me a moment to expand a little more I can explain; I will then take interventions from the birthday boy. Officials have catalogued retained EU law across Government, which has been collated, as part of the cross-varietal substance review of retained EU law, into the dashboard that was published on 22 June. Crucially, powers in the Bill have been drafted to ensure that the current date is workable. The preservation power enables UK Ministers and devolved authorities to keep specific pieces of legislation that would otherwise be subject to sunset where the legislation meets a desired policy effect, without having fully to restate or otherwise amend the legislation.
The power to revoke or replace the compatibility power and the power to restate assimilated law will be available until 23 June 2026, while the power to update will be a continuous power. These powers have the ability to amend assimilated law once the sunset date has passed and retained EU law is no longer a legal category; that means that Departments can preserve their retained EU law so that it becomes assimilated law after the sunset date, and amend it further beyond that date if required. In addition, the Department for Business, Energy and Industrial Strategy will be working closely with other Government Departments, as well as devolved Governments, to ensure that appropriate actions are taken before the sunset date. Finally, the extension mechanism in clause 2 ensures that, should more time be required fully to review the changes needed to retained EU law, the sunset can be extended for specific provisions or descriptions of retained EU law until 23 June 2026.
Peter Grant
The Minister has tried heroically but unsuccessfully, I am afraid, to argue that this arbitrary deadline will not place enormous strain on a civil service that is already under enormous strain. Can she look at it from the opposite direction? Can she explain why it would be bad to set an absolute deadline of 2026? If Departments and Ministers are able to sort things out by the end of 2023, they can do so in a safe environment where they are not under pressure to get it done quickly, with the possible consequence that it would then be done wrong.
Ms Ghani
I simply do not recognise that the added burden means that the programme of work cannot be deliverable. I mentioned the fact that we have an ability to provide an extension, depending on what that piece of legislation is. What we do not want to do is undermine focus on delivering the bulk of the work by the sunset date that is in place at the moment.
Justin Madders
I am grateful for the Minister’s references to my special day, which will now be recorded forever more. She mentioned the Brexit opportunities team. Who is the Minister responsible for that team?
Ms Ghani
The Brexit opportunities team sits in BEIS and it works across Whitehall. This programme of work is being delivered with the team and across all Whitehall Departments as well; the focus of the work that is taking place is across Whitehall. Any anxiety that people are not working closely or collectively is for the birds. The fact that we have a deadline means that it focused everyone’s mind and attention.
Justin Madders
This is a very important piece of work, as the Minister has outlined. There must be a Minister who is responsible for it. Who is that? Who can we ask and speak to about this issue, because this is clearly a matter of important scrutiny?
Ms Ghani
I am not sure exactly what the hon. Member wants to speak about with regard to the Bill. I am here to perform my role and deliver this piece of legislation. We have a Secretary of State and we know that the Prime Minister is delivering on this piece of legislation as well. I am not sure what further contact the hon. Member needs.
Alongside amendment 26, amendment 28 would have very little impact, as clause 2 would still specify that 2026 was the maximum date that an extension could be set for. If we combined these amendments with amendment 29 or amendment 32, which we will debate later, that would result in the extension mechanism being able to extend specific provisions or descriptions of retained EU law beyond 31 December 2026. The extension power’s very nature is to mitigate any risks posed by the current sunset date. I recognise that, without an extension, there is a risk that Departments would not have sufficient time to perform the legislative and administrative procedures required for retained EU legislation in certain complex areas.
Stella Creasy
If we cannot play a game of “Guess Who?” as to who will then be responsible for the implementation of this legislation if it is passed, let me ask this. The Minister wrote to us to say that the Government were still scoping out which laws would be covered by it, so how can she be confident that everything is in place to cover the full gamut of what would be covered by this legislation if she cannot at this point tell us how many laws will be covered? It is a reasonable question to ask, is it not? How much work is there to be done? If the Minister cannot tell us now or at least confirm how many laws are covered, it is not unreasonable to worry that equally she cannot confirm that the Government have put in place the people and the processes to do it all within a year.
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.
Peter Grant
My recollection, which may help the hon. Member on his first point, is that Angus Robertson said they had not had a chance to begin to quantify the amount of legislation. He was saying not that it was because there was not very much but because there was so much of it. Can the hon. Member be clear as to what Labour’s current position is? If a piece of retained EU law related exclusively to one of the devolved competences—either the Scottish Parliament, Senedd Cymru or the Northern Irish Assembly—is it Labour’s position that that retained law should be removed from the devolved legislatures only with their explicit consent, or does Labour support the Government, who think this Parliament can legislate away in fields of devolved competence without the consent of the devolved Administrations?
Justin Madders
I thank the hon. Member for his intervention. I think we start from the point that this should be a matter of logic. If an issue is within devolved competence, it should be for the devolved Administration to determine, but I wait to hear the Minister’s explanation for leaving that proposition to one side for the purposes of the Bill. We suspect the Government have done this because of the political imperative that Ministers will be able to say they have got rid of everything they do not want by the arbitrary deadline of 31 December 2023. If this amendment is accepted and it is something the Government accept is a valid argument, we would expect similar measures to come forward for Wales.
Another consideration is that we do not actually know at this stage which laws are within the competence of Scotland. We do not know which laws are covered, because there is no list anywhere. We just have the dashboard, but that does not give us any clues as to which pieces of regulation are considered to be within the devolved nations’ competence. Can the Minister justify the power to extend the sunset having to reside only in Westminster when it deals with matters of devolved competence? Can she also explain what the process will be in Government with the Brexit Opportunities Minister, when appointed, for identifying the laws that are within devolved competence, and the procedure to be followed for resolving any disputes about ownership of those pieces of legislation and which authority has competence?
Stella Creasy
This is a good example of the challenge we faced yesterday in the Delegated Legislation Committee on persistent organic pollutants, where it was not clear what legislation was covered by this Bill and what would be deleted and, therefore, whether it was worth rewriting any legislation. The Minister got into a tangle. We would be talking about such a tangle on a more widespread scale across our devolved Administrations.
I echo the point made about my Front-Bench colleague, my hon. Friend the Member for Ellesmere Port and Neston, about the importance of recognising our colleagues in the Senedd as well. That is the challenge with this legislation. Because we do not know the full extent of what it will do, we do not know how it will affect devolution. We do not know where the lines between devolved powers and powers held at Westminster will be drawn and what will be retained. These amendments reflect that. It is not unreasonable to ask Government Ministers to clarify how they see this all working.
One of the concerns over the last couple of years has been the fractures in devolution and the pressure we have put on our devolved Administrations in making the decision to leave the European Union. I would ask the Minister to set out not just why she thinks Westminster should supersede any of the devolved Administrations, but also what her plans would be, should in that subsequent, updated, rolling list of laws a piece of retained law come up that had perhaps not been previously identified but that is quite clearly about devolved powers. How would she look to manage that?
The Minister’s colleagues yesterday were rather intemperate, shall we say, when it was pointed out that they were passing a statutory instrument that rested on legislation that would no longer exist at the end of the next year, 50% of which had not yet been identified as being on the dashboard but was clearly part of the regulations the Government had put forward. How does the Minister feel that will affect our relationships across the United Kingdom and our ability to speak up for the Union if the Westminster Government puts Government Ministers across the devolved Assemblies and the Scottish Parliament in the same position for 4,000 pieces of legislation?
I hope the Minister will recognise that these amendments and concerns about devolution come, yet again, not from a desire to stop Brexit, because Brexit has happened, but from a desire to protect the Union and ensure that people in any part of the United Kingdom have confidence that Government Ministers know exactly what they are doing.
Ms Ghani
The Committee should reject the amendments, which would exempt devolved legislation within Scotland’s legislative competence from the sunset, and amend the territorial extent of the Bill so that it does not extend to Scotland. A sunset is the quickest and most effective way to accelerate the review of the majority of rules on the UK statute book by a specific date in the near future. That will incentivise genuine rule reform in a way that will work best for all parts of the UK.
The territorial scope of the Bill is UK-wide. It is therefore constitutionally appropriate that the sunset applies across all four sovereign nations in the UK. That approach is consistent with other EU exit legislation, and will enable the devolved Governments to make provisions for addressing retained EU law in areas of devolved competence. Every nation of the UK should have the opportunity to review the retained EU law and have the powers to reform the legislation in a way that is appropriate and best suited to its citizens and businesses. 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.
Peter Grant
I put it to the Minister that rejecting the amendment very much affects the devolution settlement. It means that the priorities on which the Scottish, Welsh and Northern Ireland civil service work will no longer be those set by their democratically elected Parliaments and Governments, but the policies set by the UK Government. Angus Robertson made it clear that the Scottish Government believe that there will be a substantial burden of administration on the Scottish civil service. What gives Ministers in this Parliament the right to tell the Scottish civil service to do what they tell them to, not their elected Ministers?
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.
Justin Madders
I beg to move amendment 90, in clause 1, page 1, line 6, at end insert—
“(1A) Schedule [the Definitive List] sets out a complete list of instruments to be revoked by subsection (1) (referred to as the ‘Definitive List’).
(1B) The Secretary of State must by regulation add all relevant instruments referred to in subsection (1), so far as they are known to the Secretary of State at that date, to the Definitive List within 14 days of the date of Royal Assent to this Act.”
The Chair
With this it will be convenient to discuss the following:
Amendment 91, in clause 1, page 1, line 7, leave out subsection (2) and insert—
“(2) Before 30 June 2023 a relevant national authority must consult such organisations as appear to it to be representative of interests substantially affected by the inclusion of an instrument in the Definitive List, and any other persons potentially affected as the relevant national authority considers appropriate.
(2A) Following the consultation referred to in subsection (2), where a relevant national authority considers it appropriate, it may by regulations made no later than 31 May 2023—
(a) add any EU-derived subordinate legislation or retained direct EU legislation to the Definitive List, or
(b) remove any EU-derived subordinate legislation or retained direct EU legislation from the Definitive List.
(2B) No later than 30 June 2023 the Secretary of State must publish and lay a report before Parliament setting out—
(a) a summary of the objectives and effect in law of each instrument listed in the Definitive List and of the legal consequences of its revocation;
(b) whether that instrument affords any protections for consumers, workers, businesses, the environment, or animal welfare, and, if so, whether and how that protection is to be continued when the instrument is revoked;
(c) any benefits which are expected to flow from the revocation of that instrument;
(d) the consultation undertaken as required by subsection (2), together with any representations received in the course of the consultation;
(e) the reason why the relevant national authority considers that it is appropriate to revoke the instrument having considered those representations;
(f) the likely effect of the revocation of that instrument on the operation of the Trade and Cooperation Agreement between the United Kingdom and the EU, and on UK exports of goods or services to the European Economic Area; and
(g) the likely effect of the revocation of that instrument on the operation of the Protocol on Ireland/Northern Ireland in the EU Withdrawal Agreement.
(2C) The Secretary of State must by regulations remove an instrument from the Definitive List following an order of either House of Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru, or the Northern Ireland Assembly) calling on the Secretary of State to remove that instrument from the Definitive List.
(2D) If the Secretary of State is required by subsection (2C) to make regulations removing any instrument from the Definitive List but the Secretary of State has either—
(a) not made such regulations, or
(b) has made such regulations but they will not come into force on or before 31 December 2023,
then such regulations will be deemed to have been made and to have come into force on 31 December 2023.”
New schedule 1—The Definitive List—
“This schedule sets out the Definitive List in accordance with section 1 of this Act.”
Justin Madders
I apologise in advance that this discussion will last longer than that on other amendments. We accept that these amendments would fundamentally change the nature of the Bill, but they would do so in such a way as to create greater transparency and accountability and ensure that Parliament was able to properly fulfil its role in relation to the regulations. I refer to the evidence of the Bar Council, which said:
“It is a matter of great public interest that, where it applies, REUL should be as certain as possible. It is also important as a matter of democratic principle—as well as ensuring that replacement legislation in areas of great importance to business and the wider public is effective in achieving its goals—that replacement legislation be carefully considered and properly scrutinised before it is enacted.”
We certainly agree with that as a starting proposition. It is clear that the Bill as currently drafted does none of those things. The first thing to do is to identify and agree on what is covered by the Bill, but I am afraid that has not been forthcoming so far. I am grateful to the Minister for writing to us on 11 November to set out her understanding of the position following reports in the Financial Times that another 1,000 or 1,400 laws that have been identified do not appear on the dashboard. The critical point, as she wrote in her letter in respect of further legislation that may be identified by the National Archives, is:
“This number has not yet been verified by the Government.”
We still do not know what the Bill covers.
The former Minister, the hon. Member for Watford (Dean Russell), told us in response to a written question on 24 October:
“The dashboard presents an authoritative, not comprehensive, catalogue of REUL. Therefore, there may be some legislation that is covered by clause 1 of the Bill that is not yet captured in the dashboard. The Government will continue to identify additional REUL and update the dashboard on a quarterly basis to reflect this.”
I am sure that I am not the only person struggling to understand how something can be authoritative but not comprehensive. The former Minister also told us in response to a written question on 21 October that
“we anticipate over 100 additional pieces of legislation will be added to the REUL dashboard.”
We now know that it may well be considerably more than that. Even if just 100 pieces of legislation are missing, that will make that dashboard neither authoritative nor comprehensive. In that same answer, the former Minister also told us:
“Government officials are currently working to quality assure this data and any amendments to the data will be reflected in an update of the dashboard this Autumn.”
The position is that the dashboard may be updated at some point in the not-too-distant future, but it is certainly not comprehensive or authoritative at the moment. With this Bill, we do not even know what we are allowing the Government to change.
As my hon. Friend the Member for Walthamstow told us in an evidence session, the Department for Environment, Food and Rural Affairs issued a ministerial correction to a written answer about the application of the Avian Influenza and Influenza of Avian Origin in Mammals (England) (No.2) Order 2006. Originally, it said that the order
“was not made under section 2(2) of the European Communities Act 1972, and therefore it does not fall within the scope of Clause 1 of the Retained EU Law (Revocation and Reform) Bill”,
but the ministerial correction confirmed that it did. Those actions hardly inspire confidence that that Department—or, indeed, any Department—has adequately identified the regulations that will be classified as retained EU law.
For good measure, the Marine Conservation Society has said that the Conservation of Offshore Marine Habitats and Species Regulations 2017, the Environmental Damage (Prevention and Remediation) (England) Regulations 2015, the REACH Enforcement Regulations 2008 and the Civil Aviation (Working Time) Regulations 2004 are all absent from the dashboard but are retained EU law.
Those are just a few of the known unknowns, so we find ourselves in the unacceptable position of setting up a framework for the removal of laws, but we do not know which laws it will apply to. It is now six and a half years since the country voted to leave the EU. Surely the Government should know by now which laws are EU-derived and which ones they want to junk. I will come to that later point in due course, because before we get to the substance of what the Government intend to do with the Bill, let us first have an agreed baseline for what is covered by it.
Peter Grant
I have a great deal of sympathy with amendment 90, but amendment 91 seems to be telling the devolved Administrations how to do their job. Does the hon. Gentleman not think that if we want to allow the devolved Administrations to decide whether to vote for a particular piece of retained EU law, we should also leave it to them to decide the process by which they do it?
Justin Madders
If the hon. Member does not think that doing proper consultations is the way the Scottish Parliament wants to go, that is a matter for him, but we would like consistency of approach across all Departments and nations of this United Kingdom. Subsections (2C) and (2D) in amendment 91 would effectively create a failsafe so that any attempts to frustrate the will of the devolved nations cannot be made by the inaction of a recalcitrant Secretary of State. I hope the hon. Member can at least take some reassurance from that—any exercises of the devolved nations would, under the amendment, be honoured by Westminster.
We have already heard arguments that some of these laws were not brought into force in a truly democratic manner. Therefore, they do not need the same level of scrutiny that would ordinarily be afforded to other laws passed by this Parliament. Frankly, I find that argument nonsense. It is like saying, “I object to my neighbour planting leylandii in their garden, so I am going to do exactly the same.” If the complaint is that the level of accountability and scrutiny was insufficient when the laws were brought in, surely those making that argument would want accountability and scrutiny when those laws are reviewed. Is taking back control not about us—this Parliament—having a fuller role in the legislative process?
As it happens, I do not accept that characterisation of how these laws were introduced in the first place. In its written evidence, the Bar Council said that
“the EU legislative process, whilst certainly capable of much improvement, contains a number of democratic checks and balances: for the vast bulk of EU subordinate legislation, the co-legislators, both of whom must adopt the final text by (normally weighted) majority, are the Council, comprised of elected Ministers from the Member States, and the European Parliament”,
which is democratically elected, of course, and whose membership included until 2020 Members who were democratically elected from the UK. It continues:
“Important Commission legislative proposals are preceded by impact assessments and so-called roadmaps, and often accompanied by Staff Working Documents, all publicly available and setting out the policy intent. In addition, public consultations and stakeholder meetings are frequent features of the process, whether concerning binding or non-binding measures.”
I do not know whether the criticisms of this process are about the quality of representation that we had over there. A number of former MEPs are now Members of these Houses of Parliament, and they all seem pretty capable people to me. Let us not forget that once the EU issued its directives, we in this place had the European Scrutiny Committee and other Select Committees to examine any proposals. It is simply wrong to say that our politicians, stakeholders and policymakers did not have ample opportunity to exert influence on the development of EU policy and secondary legislation.
There are many examples where EU legislation was supported, and even promoted, by the UK Government of the day. One example—I am sure you will remember this, Sir George—was the social chapter. That was clearly telegraphed by the Labour party as something it would introduce if it got into power back in the 1990s; it was in the manifesto. Of course, Labour won that election and those laws were introduced, including rights on parental leave and working hours. Nobody can say those rules were forced on us without our consent. It should therefore be a matter of agreement for everyone who wants to see democracy prosper that the replacement legislation under this Bill should be made by Parliament after proper consultation, public debate and scrutiny, not simply a ministerial decision—or, as the case may be, ministerial non-decision.
The best idea we have at the moment regarding how the Government intend to approach this mammoth task is a statement from Lord Frost, who said the policy intention was
“to amend, replace or repeal all retained EU law that is not right for the UK.”—[Official Report, House of Lords, 16 September 2021; Vol. 814, c. 1533.]
“Not right”—is that the best we can do? This centuries-old Parliament, taking a historic decision to wrestle back control from those unelected Brussels bureaucrats, finds itself in the ludicrous position of having another unelected person tell us that laws will be changed if they are “not right”. Surely the Minister can see that could mean absolutely anything. That is the equivalent of a dictator waking up one morning and saying, “I don’t think it’s right that people in my country are allowed to wear hats, so from today we will outlaw that.” Clearly that is an extreme example, but that is the consequence of having a Government who have the power to dispense with laws with no consultation or scrutiny because they do not think those laws are right. Surely as a Parliament we can do better than that. Surely we should hold ourselves to a high standard when we want to change legislation. We should not legislate on a whim, and Parliament should not hand powers to Ministers that enable them to do just that.
Stella Creasy
Government Members may find this incomprehensible, but at some point it is not inconceivable that they may be in opposition. When they are, and they are presented with a Government Bill and literally nobody knows the full extent of what it does, that will seem similarly incomprehensible. I know that many Government Members have never contemplated the wilderness of opposition. For other Members, such as myself, it is all that we have ever known—but we have never known a situation where to ask Ministers to set out what a piece of legislation covers is considered an inconvenience at best or offensive at worst. The amendment is about rectifying that—not to put Ministers on the spot, but because it is completely reasonable and rational in a democracy to expect to know what Parliament is being asked to do.
The fact that we have to state that—my colleague on the Front Bench, my hon. Friend the Member for Ellesmere Port and Neston, gave an admirably gentle and mild version of what I am about to say—is a reflection of the difficulties of a Government who are struggling on after 12 years and cannot explain themselves. Our constituents could look at the consequences of not knowing what the legislation does as either—in what I believe is the common parlance—cock-up or conspiracy. That is precisely what will happen if we do not know what laws will be covered. Yet the Minister has admitted that she does not know. She wants to tell us some time next year, after the legislation will apparently have passed through Parliament.
I do not know about you, Sir George, but I am pretty sure that the Netflix special is already being written, because there must be some conspiracy behind this. Why do the Government not want to tell us what laws they want to get rid of? After all, we have just been told that actually the Bill is all about Brexit. Those of us who think that this is a bad process and that Brexit could be done in 101 other ways are clearly mistaken. There must be a conspiracy at stake here. The true width of what is happening must be something that could rival “Designated Survivor”. The alternative—that the Government have put forward a Bill with a timetable and pace that mean they literally do not know what will happen next—is frankly disrespectful to our constituents. This amendment is about the confidence that the Government have in their own work. I turn again to the wondrous words of Warren G, when he said about being a regulator,
“you can’t be any geek off the street”.
Surely there must be some competency involved in this role. That competency is knowing what the legislation does. That is why with every other piece of legislation we have an impact assessment. It is not unreasonable for us as parliamentarians to ask for that. After all, we will have to justify it to our constituents—well, we Opposition Members will not, but those currently sitting in the glorious offices of Government will. They will have to explain to their constituents why they passed a piece of legislation while not realising what it would do. At this point in time, nobody in this House can explain what it will do. Nobody, as the Minister yesterday discovered, could explain what would replace it. Nobody in this room can tell us exactly what is on that list. It is indescribable.
I do not think that in 12 years—that makes me a grandee in Labour terms at this rate—I have ever seen a piece of legislation where we as the Opposition have to ask for the extent of its impact. I want to warn Government Members: some day this may well happen to them. I know that must seem a gross insult, but they too will want Governments who are able to explain what they are intending to do, even if they do not agree with it, because they would then be able to go and tell their constituents why they do not agree with it. It is a reasonable proposition.
Amendment 90 asks the Government to set out a comprehensive list of retained EU law. After all, it is on the face of the Bill that that is what this legislation does. I apologise, Sir George, because I am now laughing. I am laughing at the absurdity of our being at a point where we have to ask the Government to set out what they are going to do. There is the concept of an “authoritative but not comprehensive” list—those words are worthy not just of “Yes Minister” but of “Blackadder” in their pomposity and stupidity. It is stupidity because it is incredibly dangerous to give the Government powers that they do not know what they are going to do with. Let me be clear that I am talking about the stupidity of the legislation, not the people.
I am talking about stupidity in terms of accidental intent—the cock-up element of this, rather than conspiracy. That is what I fear most of all. A conspiracy means somebody at least has a plan. As I am sure we will come on to later, the conspiracy is that the Government intend to rip up thousands of rights that people have relied on, such as by ending people’s right to bank holidays, leaving them as an option, and ripping up maternity rights. After all, some of us in the House remember the Beecroft report well, so we know this is something Government have talked about before. That would be the conspiracy.
The cock-up is in creating a piece of legislation that deletes things and the Government then not realising they have deleted them until somebody comes forward to point it out. The statutory instrument I spoke to yesterday, which I really hope Ministers go and look at, was also about correcting deficiencies in how legislation was written. That is to say, things had been missed off. It happens, but asking the Government to set out clearly what legislation the Bill will amend—whether that be deleting, replacing or amending it—is not an unreasonable request. Our constituents should expect us to know what it is we are going to be legislating on.
On Second Reading, the previous Minister—not the Minister in front of us, to be clear—tried to claim that I should not be worried that this legislation would have an impact on airline safety, as that was a matter contained in primary legislation, so not subject to the sunset. In reality, we have now replaced that provision of civil aviation legislation with a range of secondary legislation, meaning precisely that airline safety is up for grabs and we will need to find time to rewrite that legislation.
If the Ministers responsible for this legislation do not themselves know its extent, how can we expect all those civil servants—who the Minister cannot clarify are working on this legislation—to know the full extent, let alone the colleagues she cannot name who are working on it? What will happen when a Minister is suddenly presented with a piece of legislation that has been abolished, which was not on the dashboard, not identified and not set out in the legislation? A Minister presented with that scenario will have no recourse—it will have happened, unless we pass amendments that give everybody clarity and confidence. It is not unreasonable to want to set out a workload for Government so that they know what they are doing.
Amendment 91 allows us to work out how the amendments happen. Again, I am laughing at the absurdity of our being in a position where we have to set out an understanding of how things might be changed and who we might want to talk to—perhaps industry experts. I am sure Government Members who stood on platforms where they supported things such as Beecroft have no problem with watering down the working time directive. I am sure they will tell us later when we come to debate that.
What about standards regulations—those incredibly technical but incredibly dull pieces of legislation that, if we are all honest, we have not spent a lot of time looking at, but we look to industry experts to be able to tell us about? How is it unreasonable to set out a process by which those people will be consulted? What have we got against experts in this country? Frankly, at this point in time, some expertise on legislation, given that the Government have to admit they do not know the full extent of the Bill, would be welcome.
In my 12 years as an MP, we have always expected to have impact assessments and to know roughly what is in scope in legislation. Clerks cannot tell us that because Clerks do not know the full extent of the legislation, because we do not have a full list. We keep coming back to the themes of the amendment, but we also have to recognise that removing the entire body of EU-based legislation at a stroke, without clarity about what replaces it, will also have a wider impact. It could impact on the TCA itself, because it could be considered to breach regulations that we put into the TCA to show that we were not going to reduce or water down rights in order to make sure we did not start a trade war. Again, setting out what laws are up for grabs would help mitigate that impact.
Government Members can be as blind as they like or as deaf to the idea that there could be any problem with passing a piece of legislation where we literally have no idea of what it covers. But mark my words, Sir George: if and when they find themselves in opposition, they will rue the day they set the precedent that it is possible for Government Ministers not only to have such sweeping powers, but not to be told what it is they can use those powers for.
The amendments are not unreasonable; I will wager that when the Bill comes to the House of Lords, if the Ministers today are adamant about turning down the amendments, we might see something similar. I hope that Members across the House will support them if only for the sanity of being able to remove the idea that there is some sort of conspiracy, and we can go back to expecting a common or garden cock-up in how legislation in this place is written.
In the meantime, I urge Government Members to support the amendments. If they cannot explain to their constituents what they are doing in Committee today, they certainly would not be able to explain it when we come to the election to decide which side of the House any of us sits on, and that will be a very testing moment indeed.
Ms Ghani
I ask hon. Members to reject amendments 90 and 91 as well as the introduction of new schedule 1. The amendments undermine the central sunset policy of clause 1 and the Bill as a whole. The sunset provision was drafted to incentivise Departments to review their retained EU legislation and actively make a decision on whether to preserve something. Amendment 90 creates the preservation of a default position and therefore removes the key impetus for reform. Allowing outdated retained EU laws to languish on our statute book where they do not work in the best interests of the UK is irresponsible.
The sunset is the backbone of the Bill as it accelerates reform and planning for future regulatory changes. Without it, the benefits and the potential to bolster economic growth might not be realised at all, as sunset ensures that a single cohesive domestic statute book will exist following the sunset deadline. We have already committed to abolishing retained EU laws that stifle growth and are not in the best interests of UK businesses and consumers. The sunset is our fulfilment of that commitment.
I want to quickly respond to some of the questions raised. I do not have a list of TV or Netflix programmes or movies to contrast my responses. To crush the conspiracy about the laws that have been recognised, I refer hon. Members to the dashboard, which has the retained EU laws available, collected as part of a cross-Government collaborative exercise. The process was led by the Brexit Opportunities Unit, and it is where retained EU law sits across over 300 policy areas and 21 sectors of the economy. Hopefully, that conspiracy theory can die very quickly.
Ms Ghani
If I make progress, maybe I will answer some of the hon. Gentleman’s questions.
A question was raised about whether this was the only account of retained EU law. Throughout the process of the retained EU law review, we have been working closely with the National Archives. There was a figure in the Financial Times, but we have yet to verify all those items. The number covers all existing legislation, but some of it may have already outdated itself as legislation has been updated.
On the question about management and cost, the retained EU law dashboard was built by officials from the Brexit Opportunities Unit and the Cabinet Office using the software Tableau. It was created with no additional cost to the Government. Hopefully, that covers some of the conspiracy theory about where the information is kept.
Ms Ghani
If I can continue, I will hopefully finish on some of the questions that were raised, such as the one about working with Parliament. We are committed to working collaboratively with Parliament to deliver the programme, as we did with our programme of statutory instruments for EU exit. I do not see why we cannot build on that approach as well.
The question was raised about international obligations. The UK Government are committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the withdrawal agreement, the Northern Ireland protocol and the trade and co-operation agreement after the sunset date. The UK Government will make sure that the necessary legislation is in place to ensure the terms of the withdrawal agreement are upheld after the sunset date, including regarding citizens’ rights and the Northern Ireland protocol. The aim of the Bill is not to alter the rights of EU nationals, which are protected or eligible to be protected by the relevant citizens’ rights provisions contained within the withdrawal agreement.
I do not buy the Opposition argument that somehow we will take decisions that mean we have a different set of values to Brussels—lower standards, making our constituents less safe and taking away their rights. That is not who we are as elected officials. We are all working together in the same room and many Opposition Members know that we share the same values as they do. Scaring people that we are going to do something that takes away those rights is slightly absurd.
Clause 2 also allows for extensions to the sunset date for specified instruments or a specified description of retained EU legislation where we have plans to amend and reform but need slightly longer to do so. Everybody will recognise and welcome that. Introducing a schedule that requires a listing of all retained EU law to be revoked is unnecessarily burdensome and not a good use of civil service and parliamentary time when preservation would still be necessary.
Several hon. Members rose—
Justin Madders
Thank you, Sir George. I am happy to take interventions if any hon. Members wish to intervene.
Stella Creasy
I thank my hon. Friend for giving way. Given that we are debating whether Ministers are capable of scrutiny, not to take any questions rather proves the point. Does my hon. Friend agree with me that he has already set out a number of instances of regulations that are not on the dashboard? I wish to add the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012. Is there a number for the regulations that are not currently on the dashboard that people can feel comfortable with? Is there a margin of error that the shadow Minister can set out, given that the Government will not answer that question? Or given that businesses want better rather than no regulation, is it not completely unreasonable not to know what is up for grabs?
Justin Madders
Businesses want certainty and, with this Bill, we are as far away from that as is possible. I do not know if there is going to be a margin of error. Indeed, I do not think there should be any margin for error when talking about legislation in this place. We should all know exactly what we are voting for and signing up for. At the moment, the Bill does none of those things. The Minister said that the amendments would undermine the Bill. Absolutely they would. They are intended to create some parliamentary scrutiny, which the Bill sorely lacks. The Minister also said that the Bill’s drafting aims to incentivise Departments to hurry along and decide which laws they want to retain, but I am afraid that if we are using legislation as a management tool for civil servants we are in a pretty poor place
Paul Blomfield
Does my hon. Friend agree that the purpose of a Public Bill Committee is to put legislation under scrutiny and that that process is enabled by Ministers answering questions? Does he further agree that the objective of the process we are involved in will not be served if the Minister refuses to take interventions?
Justin Madders
I thank my hon. Friend for his intervention. When a Bill is clear, and when the intention and the factual basis for proceeding are clear, it is not always necessary to have interventions, but when a Bill is as opaque and uncertain as this, it is important that the Government set out clearly their rationale for proceeding in such a way. No doubt those concerns will be picked up in the other place, where I hope they get more comprehensive answers.
Paul Blomfield
I understand the difficulties the Minister has in dealing with some of the questions, but on her specific point about it being too burdensome for civil servants to produce a list of laws, does my hon. Friend share my incredulity at her acceptance that undertaking a review and putting forward revised proposals, or indeed making a recommendation, to revoke all the laws is not too burdensome, although it is too difficult for the Government to list those laws?
Justin Madders
I agree. I, too, have sympathy for the Minister, who has been dealt a pretty poor hand, but the idea that we cannot get someone to cut and paste from the dashboard to the Bill is ludicrous.
Peter Grant
I note that the hon. Gentleman’s incredulity is almost as great as mine with respect to a Minister who a minute ago said that we can deal properly with 4,000 bits of legislation in just over a year, but then said that the Government cannot take stuff from their own dashboard and transpose it somewhere else.
Am I correct to think that, essentially, the purpose of the amendment is to give the Government some insurance cover to prevent them from revoking useful legislation by mistake? What does it say about the arrogance of a Government that they refuse to accept such an offer of help and prefer to see legislation that could have unintended damaging consequences, rather than simply having the humility to accept such a proposal, which they seem to reject purely because of where it comes from, rather than any benefit it might contain?
Justin Madders
I hope the Minister will learn that I always try to be helpful with my amendments. We are genuinely trying to get the Bill into some kind of shape whereby it might restore faith in parliamentary democracy. We will not be the ones to bear the consequences of accidental omissions; it will be our constituents. They will rightly ask, “What were you doing? Where were you when the Bill was passed?” It will be clear that we raised our concerns and pointed out the terrible potential consequences of not doing this correctly.
Stella Creasy
Can my hon. Friend have any confidence in the dashboard itself if Ministers are not prepared to put it on a statutory footing by at least listing the laws that are creating it? The Minister tells us to have confidence in the dashboard process, saying that it is a wonderful tool for people to be able to learn what is going on, but not so wonderful that it can be transplanted in legislation. Does my hon. Friend agree that that rather undermines any confidence that people might have in the dashboard, even as an authoritative if not comprehensive list of the legislation affected?
Justin Madders
I will use a hip-hop lyric in response, seeing as that is the road we are going down. LL Cool J once said
“you can’t gain or maintain…Unless you say my name”,
and that is the point of this amendment. We cannot actually say, scrutinise or understand the effect of the Bill if we do not have a comprehensive list. The Minister has said that the dashboard is the panacea for our criticism, concerns and, indeed, conspiracies about what is going on here, but when the Government themselves admit that the dashboard is not a full list of the laws, it cannot be acceptable or tenable that that is the basis on which they intend to proceed. We do not legislate in this place by website; we legislate by legislation, and the intention of the legislation should be clear.
I will pick up one other point that the Minister made. She said that we continue to support the values of the EU, even though we are leaving it. I am afraid that clause 5 does not do that; it specifically says that we will no longer be following the principles of EU law as we leave. I accept it is a legitimate position, but that is the fact of the matter. I appreciate that we have dealt with this matter to the nth degree, so I will finish by saying that I intend to push this amendment to a vote. We cannot have a situation where we do not know what legislation covers, where we do not what know what the Government intend to do with the legislation, or where the Government will not talk to anyone about what they intend to do with it.
We cannot have the Government changing the law on a whim; there must be proper accountability and scrutiny. We cannot have unaccountable Ministers changing the rules without reference to anyone else. That is not what taking back control was supposed to mean. I am afraid that says that the Government are not confident about their intentions and, frankly, that is a completely unacceptable situation, which this amendment would go some way to putting right.
Question put, That the amendment be made.
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.
Justin Madders
The amendments acknowledge that it should not be Ministers who get to decide which laws to keep and which to chop. The Bill gives the Government widespread executive powers to rewrite affected laws through statutory instruments that require little parliamentary scrutiny, and with no mandate from the voters. There has been no guidance on, or indication of, which laws Ministers consider to be outdated, and what improvements are intended to make them
“better suited to the UK.”
Any replacement for these rights would require little parliamentary scrutiny. Core workers’ rights, key environmental protections and important consumer rights are left in the gift of Ministers. I think we have made it clear that we do not think that is acceptable.
The refrain of those who advocated for Brexit was that we should take back control—“we” meaning the people we represent, not Ministers sitting in rooms on their own, answerable to nobody, and under no requirement to explain their actions or inaction. That is not the way to go. The Government cannot argue that the Bill brings sovereignty and democratic control back to the legislative process when it demolishes the role normally undertaken by Parliament.
Any meaningful attempt to increase democratic oversight would seek to address those fundamental flaws. Parliamentary safeguards exist precisely because Ministers might always be tempted to resist scrutiny from Parliament. Those safeguards are important, if only because scrutiny and debate prevent errors, omissions—we certainly feel that there may well be omissions—and mistakes. These are important matters that will impact our constituents’ lives, and the prosperity or otherwise of the nation for years to come. Should not any Government have the courage of their convictions and open up their decisions for parliamentary approval? Should not we have a say on whatever Government decide that they are letting themselves and their citizens in for?
The Civil Society Alliance has said that this Bill will further destabilise devolution arrangements at a time when tensions between devolved and central authorities are more challenging than ever, and that will undermine the UK’s democracy and constitution, as well as the role of devolved and central Parliaments. The alliance says that the Bill gives staggeringly broad delegated powers to repeal and replace parliamentary laws with policy that is subject to little or no democratic scrutiny and is introduced at an alarming pace. We have already made clear our position: we do not agree with this. No one, whether they voted remain or leave, would want that. For that reason, we think that the amendments have some merit.
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).
The Chair
With this it will be convenient to discuss the following:
Amendment 76, in clause 15, page 17, line 5, at end insert—
“(1A) 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 legislation which provides for workers’ protections from the power to revoke without replacement in subsection (1).
Amendment 67, Clause 22, page 21, line 42, at end insert—
“(da) section [Workers’ rights];”
Amendment 60, in clause 22, page 22, line 19, at end insert—
“(d) any regulations made under section 2 of the European Communities Act 1972 which have the effect of conferring rights or protections on workers.”
New clause 4—Workers’ rights—
“The Secretary of State must by 1 January 2023 publish a list of any provision to which this Act applies which confers rights or protections on workers which has not been—
(a) subject to regulations under section 1(2),
(b) restated under section 12 or 13,
(c) replaced under section 15(2), or
(d) revoked under section 15(3) and replaced with alternative provision
as at 1 January 2023.”
Justin Madders
Amendment 73 provides that clauses 1 to 3 and the powers under clause 15 do not apply to the list of regulations set out in the amendment. Committee members with a keen eye will notice that they all relate to employment and workers’ rights. The amendment would remove them from the sunset clause and prevent further watering down by the Government. If the Committee is minded to support the amendments, we can all leave here today safe in the knowledge that we have done our bit to protect workers’ rights from deliberate action or careless inaction.
I will not go through the effect of every one of the regulations. Some will be more familiar to Members than others. They represent, as far as we can identify, all the major employment rights in the ambit of this Bill—rights that people enjoy every day.
Paid annual leave is one of the greatest achievements of the last Labour Government. Also included are the regulations that introduced daily and weekly working limits. For Members who are not aware, that arose from a concern about workers’ health and safety. The risk of working excessively long hours has been shown time and again. The regulations listed also include a worker’s right to a 20-minute break in a shift, a break from work each day, and a day off every week or two days off every 14 days. We should not jettison those minimum standards.
Other regulations in the list oblige employers to assess health and safety risks to their workers, and to keep that risk assessment up to date. Do we not think that everyone has a right to work in a safe environment, and that employers should take steps to ensure that?
There are other laws in the list that are well worth fighting for, such as the right of part-time and fixed-time workers to be treated, pro rata, similarly to permanent workers unless the employer can justify the different treatment. Agency workers have the right after 12 weeks to receive the same basic working and employment conditions as directly employed workers. There are rights to do with taking parental, paternity and maternity leave, and of course the right not to be subject to detriment or to be dismissed for having exercised such a right. Importantly, there is the right to return to the same job that the employee had before they went on maternity leave.
Employees have the important right to be consulted on health and safety, and to paid time off to carry out health and safety training and other duties. They also have the right to protection from discrimination or victimisation for carrying out health and safety duties.
Also included are rights under the TUPE regulations, which ensure that when one business buys another, there is reasonable certainty about which workers transfer to the new business, so that the purchaser knows which employers it is getting and, critically, workers know that they cannot be dismissed or have their terms and conditions chopped just because they are working for a new employer. How many times does the TUPE regulation get applied every year? I do not have a figure, but I expect that hundreds of thousands of people have their employment changed each year under TUPE. No one has ever come to me and said that they do not think that workers deserve the protections and consideration that those regulations provide.
Having a new boss creates uncertainty, as Government Members will no doubt appreciate after the past few months, so let us not add to it. Let us make it crystal clear that TUPE will stay. Imagine if someone was thinking of buying a business in 2023. How on earth would they know whether to proceed with the purchase if they did not know whether they were obliged to take on its employees? We have a stable, settled, well-understood framework of law that helps businesses to operate more efficiently, and this amendment seeks to retain that.
Retained EU Law (Revocation and Reform) Bill (Fourth sitting)
Tuesday 22nd November 2022
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 November 2022 - (22 Nov 2022)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 76, in clause 15, page 17, line 5, at end insert—
“(1A) 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 legislation which provides for workers’ protections from the power to revoke without replacement in subsection (1).
Amendment 67, in clause 22, page 21, line 42, at end insert—
“(da) section [Workers’ rights];”
Amendment 60, in clause 22, page 22, line 19, at end insert—
“(d) any regulations made under section 2 of the European Communities Act 1972 which have the effect of conferring rights or protections on workers.”
New clause 4—Workers’ rights—
“The Secretary of State must by 1 January 2023 publish a list of any provision to which this Act applies which confers rights or protections on workers which has not been—
(a) subject to regulations under section 1(2),
(b) restated under section 12 or 13,
(c) replaced under section 15(2), or
(d) revoked under section 15(3) and replaced with alternative provision
as at 1 January 2023.”
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair this afternoon, Sir George. Before our lunch break, I was talking about some of the important employment rights that derived from EU legislation.
Mr David Jones (Clwyd West) (Con)
I rather wondered why the hon. Gentleman was regaling us with this list of workers’ rights. Is he seriously suggesting that this Government would sweep away all those rights? If he is, does he not accept that that is scaremongering? Does he not agree that in many respects, workers’ rights in this country are far superior to those employed in many European countries?
Justin Madders
If the right hon. Member wants to give the public reassurance that there is no intention to sweep away the rights, this is the perfect opportunity to do so by voting for the amendments. I remind him that over the past 12 years the Government have doubled the qualifying period for unfair dismissal, introduced employment tribunal fees and cut down on consultation requirements for collective redundancies. The track record is a mixed one to say the least. A number of prominent Brexiteers have talked extensively about the need to reduce red tape and do away with employment rights, which I will discuss shortly.
If, as the right hon. Member says, there is no intention to remove employment rights, that is welcome news. It would be more welcome if the amendments were supported, because that would be consistent with the manifesto that Conservative Members stood on in 2019, which says on page 5 that
“we will legislate to ensure high standards of workers’ rights, environmental protection and consumer rights.”
This is the chance to legislate for that, starting with amendment 76 on workers’ rights.
Peter Grant (Glenrothes) (SNP)
I am possibly anticipating what will be said later, but for clarification will the hon. Member confirm that retaining all this EU legislation in domestic law does not in any way prevent the Government from deciding that they want to legislate for a greater level of workers’ rights or environmental protection than is currently the norm throughout Europe? They would only need to repeal this law if they intended to weaken those protections.
Justin Madders
The hon. Member is exactly right. If there is no intention to do away with these laws, the Government simply have to accept the amendment with no further question or debate about it. We will be very pleased to be able to report to our constituents that their rights are protected.
We are sceptical about some of the intentions of the Conservative party. The right hon. Member for North East Somerset (Mr Rees-Mogg), the architect of the Bill, has gone on the record with what can only be described as a Victorian attitude to workers’ rights, with such classic lines as “there is no moral right to annual leave.” There were reports in The Times only a couple of months ago that he was planning to scrap both the Working Time Regulations 1998 and the Agency Workers Regulations 2010. Amendment 76 would protect both measures, putting the issue beyond doubt. The Minister does not need to the follow the right hon. Member’s lead any more; she can act today to show that she is on the side of workers, that she understands the value and importance of workers’ rights and that she can do the right thing by supporting the amendment.
When discussing these amendments it is important to acknowledge that there will almost certainly be a disproportionate impact on women if these laws are scrapped, as many of them have been of great benefit to women in the workplace. Fifty years after this country legislated for equal pay between men and women we still have not quite got there. Women face far greater challenges of discrimination at work. Let us not make an unacceptable situation any worse by reducing some of the measures that protect them.
The Bill’s own impact assessment recognises that it contain threats to equality, particularly in paragraphs 11, 25 and 41. Unison has said that the Bill will
“deliberately wipe the slate clean and create confusion around the principle of precedent that UK common law is premised on. It places ideological principles above the lived, practical needs of the UK.”
Perhaps the Minister will tell us, as the right hon. Member for Clwyd West has already suggested, that we are being melodramatic, and that the Government do indeed intend to honour their manifesto commitments to improve workers’ rights. We know what we need to do if that is the case.
As I say, I am a little suspicious about what is going on with the Bill and why it has been drafted in such a way to squirrel away debate and discussion about workers’ rights. If the Government truly intended to maintain these rights, they could have put something in the Bill along the lines of the amendments from Labour or the SNP. Better still, as we have touched on, they could have done the Bill the other way round, so that we knew what was going to be removed. The fact that they have not done that raises concerns.
When the review of retained EU law commenced, Lord Frost said that the Government were in the position to ensure that retained EU law could be revoked, replaced, restated, updated and removed or amended to remove burdens. Of course, he could have added to those comments and said that, while we want to do that with retained European law, we respect and support workers’ rights and do not need to change them. Instead, we have the language of attack—of revocation, of removing burdens—not the language of a Government intent on upholding workers’ rights.
I urge Members to consider what the Minister’s colleague, the right hon. Member for Beverley and Holderness, said on Second Reading on the subject of workers’ rights:
“In line with the UK’s track record, we will seek to modernise our regulations, including on workers’ rights, ensuring that unnecessary burdens are minimised”.—[Official Report, 25 October 2022; Vol. 721, c. 252.]
I am not sure what he meant by “modernise”, given that the Government have yet to implement the vast majority of recommendations from the Taylor review that sought to bring in new regulations to protect workers in the gig economy, but it is the latter part of that sentence that I want to examine further.
We hear far too often from those on the right of politics that employment rights are an unnecessary burden on businesses. Of course, for many, the visceral hatred of workers’ rights was a huge motivating factor for wanting to leave the EU. However, I would say that workers’ rights are not a burden, but an essential ingredient of a civilised society. If we want our citizens to play an active role in the country moving forward and in future economic growth, our citizens have to be rewarded fairly and treated fairly. Security and respect at work are the cornerstone of any success we may have as a nation. A secure and happy workforce is a productive workforce. Giving people dignity, certainty and fairness in the workplace is not a burden on businesses, but is what good businesses want to do, what good businesses will see the fruits of, if they implement it properly, and what we as Members of this House should want to see in every workplace.
We view the Government’s approach to the amendment with scepticism. I urge all members of this Committee not to pass up the opportunity that this amendment gives them to say to those who may see the Bill as a chance to weaken workers’ rights that we are not going to let that happen: these rights are not up for grabs, they are non-negotiable and they will not be dumped at the end of 2023.
Stella Creasy (Walthamstow) (Lab/Co-op)
I know there was bated breath and anticipation as we returned this afternoon. I hope we have as joyous and entertaining a debate as we had this morning about such an important piece of legislation.
We are getting to the meat of the matter this afternoon, which is what the legislation will do and what the Government’s intention actually is. It is only fair for the Government to come clean on their intentions. They keep saying that those of us who are raising concerns are scaremongering, but it is our job to probe the Government. As much as the Minister might not like these questions, our constituents deserve better than vague pledges that the Government would not possibly do something that we know in the past this Government and its Members have tried precisely to do.
Let us start with workers’ rights. These amendments are about a perfectly reasonable parliamentary process of fleshing out the Government’s intentions. This morning, we heard that there is, of course, time for the replacement of all the legislation that will be deleted by the Bill. We heard that none of us should have any concerns about the timetable or process or persons unknown who will be responsible for this legislation. The reasons for our concerns are to do not with Brexit but with the content of the Bills that are going to be deleted. They are Bills and rights on which our constituents have depended for generations, and workers’ rights are an absolute case in point because they safeguard the right to a decent workplace and decent employers. Businesses do not want employment rights to be watered down. They want certainty so that they can get on with rebuilding their businesses in this difficult economic climate.
As we have seen in the responses that we have received, many businesses agree with the rights that the Bill puts at risk of deletion. The Working Time Regulations 1998 include the right to paid time off, including bank holidays. This is a very simple proposition for Conservative Members: if they do not vote with us to remove these laws from this Bill, they will put the right to a bank holiday up for deletion. The Government have been very clear that they will not provide any guarantees as to what will replace or amend any of the laws that they are deleting. If they join us, they will make things a lot clearer for our constituents.
It is not just about the working time directive. My hon. Friend the Member for Ellesmere Port and Neston said this morning that he was not sure how many people benefit from TUPE. I can tell him that 30,000 people a year benefit from TUPE protections, yet the Beecroft report suggested that TUPE legislation should be watered down. It is not unreasonable for those of us who have had concerns for many years about this Government’s approach to workers’ rights to be concerned that this Bill deletes TUPE in its entirety, which is something that Beecroft only dreamed of.
The Management of Health and Safety at Work Regulations 1999 protect, among other rights, the requirement for an employer to perform a risk assessment for all workers, and specify that that must include a risk assessment once an employee falls pregnant. If Conservative Members think that those rights should be protected, they should vote in favour of them today, send a clear message to their Government colleagues to remove the measure from the Bill and put beyond doubt the fact that it is reasonable to require an employer to carry out a risk assessment when an employee falls pregnant. We must protect health and safety regulations. Each year many of us commemorate those who have lost their lives in the workplace, but this Bill deletes important legislation at a stroke and Ministers have not given any assurances or details as to which regulations they will bring back in their entirety.
The children and young person working time regulations protect a child’s right to access education by preventing the employment of children. Ministers and Conservative Members will say that it is scaremongering to talk of sending children back down the mines or up a chimney, but that legislation was brought in precisely to protect children. Why on earth would we not want to put it beyond doubt that we want to keep those protections, unless the Government either want to water them down or abolish them altogether? Voting for the amendment would put that beyond doubt.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ensure that millions of our constituents are not discriminated against in the workplace. It is predominantly women who are protected by those regulations. Nearly a fifth more women than men are on temporary contracts, and more than twice as many women are in part-time employment than men. When this Bill is enacted, the rights that they have relied on to protect them in the workplace will be dissolved at a stroke. It is not unreasonable for us to give them the comfort that those rights will remain by ensuring that they are not removed by the Bill.
The Maternity and Parental Leave etc. Regulations 1999 protect women in the workplace from unequal treatment on account of maternity leave, pregnancy or childbirth. We know that 50,000 women a year experience pregnancy discrimination, even with that legislation in place. Removing it and refusing to keep it will result in even more women experiencing pregnancy discrimination. That is a critical point. Nobody is suggesting that these laws are perfect or that they do not require amendment and should not change with the times we are in, but that does not mean that they should be abolished and that we should hope that a future Minister remembers that they were on the list and comes up with some proposals. The 50,000 women already experiencing pregnancy discrimination need to know that the law is going to move forwards, not backwards, and this Bill can only be a retrograde step.
Conservative Members should come clean to their constituents. If they do not think these rights are important, they should put them up for abolition and hope that Ministers will come forward with alternatives. They should be clear with their constituents, because we will hold every single Member in this House to account if they delete the right to have a bank holiday or not be discriminated against as a pregnant woman or new mother.
Stella Creasy
I can see the hon. Lady shaking her head—I am sure everyone can—but that is exactly what the legislation does. It is important to our constituents that we either do not deny that that is a possibility or we act to remove it. This amendment gives Conservative Members the ability to offer more than just words on this matter—to make a deed and ensure they protect the workers’ rights their constituents depend on.
We are very clear: if Government Members do not vote for this amendment, we will hold them to account and ensure that their constituents know that they voted to put those rights up for grabs with no guarantee that they will be protected. I can see Conservative Members smiling. Those smiles will not be smiles when our constituents ask why they put their rights into a process that will mangle them with 4,000 other pieces of legislation, with no guarantee that parliamentary time can be found and no guarantee of what it means for their employers. The right hon. Member for Clwyd West asked if it was scaremongering. It is not scaremongering. It is called accountability, and it is about time the Government listened to it.
Mr Jones
The hon. Lady will know that this Government have consistently improved the rights of workers. It is a process that has continued over the last 12 years since this party has been in Government. Frankly, it does her no credit at all to raise these concerns with probably very vulnerable people, who will now be concerned about what she has said. She will have to be accountable for what she has said.
Stella Creasy
I thank the right hon. Gentleman for his intervention. He was part of a Government who brought forward the Beecroft report, so I will take absolutely no lectures about frightening vulnerable people.
What I see before me is a piece of legislation that deletes those rights. That is beyond doubt. The question is whether they are going to be replaced. The right hon. Gentleman could argue that that is what Ministers have committed to. I am sure that is what the Minister will try to say—that we should not worry and that these rights will be replaced—but at this point in time when we are being asked to pass this legislation, there are no guarantees. There is nothing on the statute book. There have been no specific pledges on these rights.
We have a Government with a track record of seeking to try to delete and dilute rights. They were prevented from doing so by being members of the European Union at the time. Brexit has happened. Now the entire responsibility and onus on protecting those rights relies on Government Ministers and Members of Parliament holding the Government to account. That is exactly what we are doing today. Vulnerable people deserve to know the truth of what the outcome of this legislation will be.
Dr Luke Evans (Bosworth) (Con)
The hon. Lady is making a very good point about ensuring we have protections in place. Is she not missing the point and being slightly mischievous, because this is setting out a framework of how to deal with the problem, not the specifics? Those can still come later. She is right to argue that anyone in the House could make those changes, but the whole principle here is laying out the framework to enact these rights.
Stella Creasy
The hon. Gentleman comes so close, yet does not quite score his goal. He has said that it is about setting out a framework so these things could happen. There is no guarantee about what comes next. That is the challenge for his constituents. That is why the amendment puts in place what could come next by removing these particular rights from that process. The hon. Gentleman is right to say that it sets out a process. The point is what is the impact of that process. If he cannot read this legislation, he needs to read all the submissions we have had from people setting out their concerns.
Paul Blomfield (Sheffield Central) (Lab)
My hon. Friend is right in her response to the question of process. Does she agree that it was a previous Conservative Government—there have been so many—that set out a process in the withdrawal Act? That process was to embrace the principle of retained law so that we did not risk losing the rights and protections we had collectively agreed over 43 years and would then have the opportunity, as and when the chance arose or it would seem fit, to change or improve that law. That process would be set against the safety net of not losing what we already had. That was the process the Conservative Government put in place and which this Bill is now ripping apart.
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.
Peter Grant
I may be mistaken, but I distinctly remember being a member of the European Scrutiny Committee in this place for several years. The explicit job of that Committee was to scrutinise proposed EU legislation and to express whether it, on behalf of Parliament, was content for Ministers to either support that legislation or oppose it. It was not the fault of the European Union that very often that Committee had no teeth. It was certainly not the fault of the European Union that as often as not, Ministers ignored the views of that Committee. Is it not the case that the difficulties with parliamentary oversight of European legislation for the 40 years that we were in the EU were nothing to do with the failings of the European Union, and everything to do with the failings of scrutiny in this place?
Saqib Bhatti (Meriden) (Con)
Opposition Members keep telling us that they accept the result of the referendum and this is not about Brexit. Is it not the case that through this legislation we are taking back control and allowing Parliament to be the body that has the scrutiny mechanisms? Does the Minister have more faith in Parliament than Opposition Members do?
Paul Blomfield
I thank the Minister for giving way. On her point on the absence of scrutiny, did she not read the written evidence submitted by the Bar Council? In paragraph 12, it said:
“We also point to the very valuable work over the years of the House of Commons EU Scrutiny Select Committee and other Select Committees...UK ministers, politicians and officials, stakeholders and policy makers had ample opportunity to, and did, exert influence on the development of EU policy and secondary legislation...Indeed, in most cases, the EU legislation was supported, and even promoted, by the UK Government of the day.”
The idea that there was no scrutiny is nonsense, is it not?
Several hon. Members rose—
Ms Ghani
What I will make some progress now.
The Bill is enabling legislation. The measures in it, including the sunset, will allow UK Ministers, including those in the devolved Governments, to make decisions to review, amend or repeal retained EU law as they see fit. We have heard considerable contributions about which laws have moved down into UK law from the EU, making the assumption that we were never able to lay down rules and laws for our people in the UK, and that somehow we would get rid of all the high standards we have.
Let me point out some of the things that we have done, to let everyone know that we have pretty high standards when we are passing legislation. We have the highest minimum wage in Europe, which increased again on 1 April. UK workers are entitled to 5.6 weeks of annual leave, compared with the EU requirement of just four weeks. We provide a year of maternity leave, with the option to convert to shared parental leave to enable parents to share care, while the EU minimum maternity leave is just 14 weeks. The right to request flexible working for all employees was introduced to the UK in the early 2000s, while the EU agreed rules only recently and will offer the right to parents and carers only. The UK introduced two weeks’ paid paternity leave in 2003, while the EU has only recently legislated for that. Those facts show that we are very capable of ensuring good standards here in the UK.
Ms Ghani
I am moving forward. I will give way shortly.
The sunset is not intended to restrict decision making; rather, it will accelerate the review of REUL. The Bill will allow UK Ministers, including those in devolved Administrations, additional flexibility and discretion to make decisions in the best interests of their citizens. It is up to Departments and devolved Administrations what they will do on specific pieces of policy. The Bill creates the tools for Departments. Plans will be approved by a Minister of the Crown or the devolved authority where appropriate, and will be shared when ready, given that this is an iterative process that is still ongoing.
On the specifics policies listed in the amendment, the Government do not intend to remove any necessary equality law rights and protections. With the introduction of the Bill, the Health and Safety Executive is reviewing its retained EU law to consider how best to ensure that our regulatory frameworks continue to operate effectively, and to seek opportunities to modernise its regulations without reducing health and safety rights. The Government have no intention of abandoning our strong record on workers’ rights, having raised domestic standards over recent years to make them some of the highest in the world. Our high standards were never dependent on our membership of the EU. Indeed, the UK provides stronger protections for workers than required by EU law. I listed a few a moment ago.
Several hon. Members rose—
Ms Ghani
On new clause 4, it is right that the public should know how much legislation is derived from the EU and the progress that the Government are making to reform it. This is why on 22 June 2022 we published an authoritative public record of where REUL sits on the UK statute book in the form of the REUL dashboard on gov.uk, which catalogues more than 2,400 pieces of legislation derived from the EU. The information is there; asking that we cut and paste it somewhere else is slightly ridiculous and over-bureaucratic.
Ms Ghani
The Government have no intention of abandoning our strong record on workers’ rights, having raised domestic standards over recent years to make them some of the highest in the world.
The hon. Member for Walthamstow raised the issue of maternity rights. She has done a huge amount of work for women’s rights, as have I. I just find it incredibly unfortunate that both she and I have been defending and promoting women’s rights but that we might create an anxiety based on fiction and not on fact. The repeal of maternity rights is not and has never been Government policy. The high standards of maternity rights that I mentioned earlier have never been dependent on, or even mirrored, those of the EU; we have always gone a lot further.
Taking all that into account, I ask the hon. Member for Ellesmere Port and Neston to withdraw his amendment.
Justin Madders
I have quite a few things to say. First, the rehashing of the old arguments about a lack of scrutiny when the laws covered by the amendment were introduced is, as I said at length this morning, not correct. Even if people think that, the answer is certainly not to make it harder to scrutinise laws now.
Stella Creasy
Will my hon. Friend comment on the irony that the Minister has argued that we need to do this because we were never able to refuse a piece of legislation from the European Union, but at the same time is defending a piece of legislation that will not take back control to Parliament, but will give it to Ministers? Under the Bill, MPs will not be able to refuse or amend a piece of legislation that, like it or lump it, will come from No. 10 rather than Brussels. How is that taking back control?
Justin Madders
It is not taking back control, is it? Anyone who has read the Bill will understand that Parliament’s role will be severely restricted, and that is why the Opposition are worried about what will happen. The Minister cited a long list of measures that strengthened employment rights, many of them introduced under a Labour Government of course. Not all of them came from Europe—the minimum wage is not derived from European law. We want to see such rights protected.
I think the Minister is sincere in her desire to support equality, but her exact words were that there is no intention to remove any necessary equality law. I just question whose definition is used to decide what is necessary or unnecessary. What does that mean? That is why it is so important that we have a proper scrutiny process. If it is decided that no equality laws are unnecessary, they should be removed from the terms of the Bill all together.
Peter Grant
I will ask question that the Minister chose not to hear. The Bill runs to 37 pages, and we do not know how long the Government have taken to put it together, but we know that they had a month between First and Second Reading. In that time, at least 15 mistakes were identified in the Bill, because the Government themselves have tabled 15 amendments to correct mistakes in a Bill of 37 pages. The items of legislation subject to the hon. Gentleman’s amendment run to something like 360 pages. The legislation relating to this amendment alone is nearly 10 times as long as the Bill we are currently considering, yet the Government have so far identified 15 amendments that are required to the Bill. What confidence can we have that 360 pages of revoked legislation will have been properly gone through and assessed, and all properly put back into law in just over a year from now?
Justin Madders
We do not have a lot of confidence. The hon. Member is right to point out the amount of legislation to which just this amendment relates. We are trying to do the Government a favour by attempting to remove various legislation from the Bill. The Minister spoke about an over-bureaucratic process, and we can help with that by removing some regulations from the Bill so that they are retained in law. There is therefore no need to go through any bureaucratic exercise.
The Minister spoke about modernising health and safety law. To me, modernising can mean any number of things, and it does not always mean that law will be improved or rights increased. As we know, the Bill specifically prevents an increase in the legislative burden, and I think a lot of people may say that health and safety is a burden, although I certainly do not think it is; I think it is an absolute essential, but we know how it is characterised in some quarters.
I want to address head-on the claim that we are scaremongering, worrying people and causing anxiety by raising the issue. In order to remove such anxieties, the simple answer is to vote for the amendment, because then there would no question about those rights being protected.
Paul Blomfield
My hon. Friend is right. Had I had the opportunity to intervene on the Minister, and had she accepted my intervention, I would have asked why she failed to respond to the challenge from my hon. Friend the Member for Walthamstow to reassure the House simply by committing on the record that all the legislation listed in our amendments 73 and 76 would be replicated at least in full, and perhaps made better, and not lessened in any way whatsoever. As a starting point, the Minister could commit to put the legislation through before December 2023. Would my hon. Friend welcome that if the Minister were to intervene now to give that commitment?
Justin Madders
I guess that we are not going to get that assurance, and that shows why we were exactly right to table the amendment, and we will put it to a vote. I do not think that even Conservative Members when campaigning for election here put on their literature that they wanted to put workers’ rights at risk. I doubt the people of Grimsby, Orpington or Yeovil actually want to see a reduction in workers’ rights. It is time now to send out that clear message.
Justin Madders
It may be news to the hon. Lady, but we left some time ago. I find that intervention interesting, because it rather suggests that there is an intention to weaken some workers’ rights. We have concerns, and I am afraid that the debate has heightened them.
Stella Creasy
Does my hon. Friend agree that it is worth having concerns when not only do Government Members prioritise removing anything that includes the word “Europe”, but the Minister seems not to know the complete history of maternity and pregnancy discrimination legislation in this country? The European Union held the UK Government to account with the pregnant workers directive in the 1990s because the UK Government sought to water down the protection of women. I am sure that Government Members would support the legislation on maternity discrimination introduced by their colleague, the right hon. Member for Basingstoke (Dame Maria Miller), which sought to move things forward, but we have not seen progress on that from the Government.
Ministers seem not to be fully aware of the history of European legislation when it comes to maternity rights and pregnancy discrimination; there has been a lack of action in response to proposals from Government Members; and we now have a piece of legislation that deletes rules simply because they have the word “Europe” in, with no guarantee of what comes next. Given all that, we understand why organisations such as Pregnant Then Screwed are campaigning on maternity and pregnancy discrimination. It is happening now, under this Government, and the Government are doing very little about it.
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.
Alex Sobel (Leeds North West) (Lab/Co-op)
I beg to move amendment 74, in clause 1, page 1, line 9, at end insert—
“(2A) Subsection (1) does not apply to the following instruments—
(a) The REACH Regulation and the REACH Enforcement Regulations 2008,
(b) The Conservation of Habitats and Species Regulations 2017,
(c) The Conservation of Offshore Marine Habitats and Species Regulations 2017,
(d) The Urban Waste Water Treatment (England and Wales) Regulations 1994,
(e) The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010,
(f) The Bathing Waters Regulations 2013,
(g) Water Environment (Water Framework Directive) (England and Wales) Regulations 2017,
(h) The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (also known as the Farming Rules for Water),
(i) The Marine Strategy Regulations 2010,
(j) The Marine Works (Environmental Impact Assessment) Regulations 2007,
(k) The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017,
(l) The Plant Protection Products Regulations 1107/2009,
(m) The Sustainable Use Directive Regulation (EC) 396/2005,
(n) The National Emission Ceilings Regulations 2018,
(o) Invasive Alien Species (Enforcement and Permitting) Order (2019),
(p) Directive 2010/63 on the protection of animals used for scientific purposes,
(q) Directive 1999/74 laying down minimum standards for the protection of laying hens,
(r) Regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof, and
(s) The Welfare of Animals (Transport) (England) Order 2006.”
This amendment would exclude certain legislation which provides for environmental protections from the sunset in subsection (1).
The Chair
With this it will be convenient to discuss amendment 77, in clause 15, page 17, line 5, at end insert—
“(1A) Subsection (1) does not apply to the following instruments—
(a) The REACH Regulation and the REACH Enforcement Regulations 2008,
(b) The Conservation of Habitats and Species Regulations 2017,
(c) The Conservation of Offshore Marine Habitats and Species Regulations 2017,
(d) The Urban Waste Water Treatment (England and Wales) Regulations 1994,
(e) The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010,
(f) The Bathing Waters Regulations 2013,
(g) Water Environment (Water Framework Directive) (England and Wales) Regulations 2017,
(h) The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (also known as the Farming Rules for Water),
(i) The Marine Strategy Regulations 2010,
(j) The Marine Works (Environmental Impact Assessment) Regulations 2007,
(k) The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017,
(l) The Plant Protection Products Regulations 1107/2009,
(m) The Sustainable Use Directive Regulation (EC) 396/2005,
(n) The National Emission Ceilings Regulations 2018,
(o) Invasive Alien Species (Enforcement and Permitting) Order (2019),
(p) Directive 2010/63 on the protection of animals used for scientific purposes,
(q) Directive 1999/74 laying down minimum standards for the protection of laying hens,
(r) Regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof, and
(s) The Welfare of Animals (Transport) (England) Order 2006.”
This amendment would exclude certain legislation which provides for environmental protections from the power to revoke without replacement in subsection (1).
Alex Sobel
We now come to the impact of the Bill on laws that fall within the remit of the Department for Environment, Food and Rural Affairs. The Government’s dashboard lists only 570 laws that DEFRA identified as falling in scope of the Bill; that figure alone would make DEFRA the most heavily impacted Department in Government. However, we understand that DEFRA officials have privately revealed that more than 1,000 individual laws are at risk of being revoked by the Bill’s sunset clause. How do the Government plan to resource DEFRA to enable officials to properly examine each of these laws in the time remaining before the sunset sweeps them away?
The Department is already beset by delay and overwhelmed by consultation responses. The supposed Government priorities of environmental action and animal welfare are long past their due dates; on 31 October, for example, the Government missed a legal deadline to publish environmental targets. Instead of clogging up the entire Department with months of pointless work reviewing lists of laws that no one wants to drop, the Government should prioritise their environmental commitments in the Environment Act 2021 and the 25-year environment plan, including the actions and policies necessary to deliver nature’s recovery by 2030.
The sample of 19 laws listed in these amendments cover a vast range of important policy areas about which the public feel passionately. They include animal welfare, water quality, the treatment and discharge of sewage, the protection of wildlife, the safe use of chemicals and pesticides, the protection of human health from the impacts of air pollution, the use of animals in scientific testing and the prevention of the spread of animal diseases, such as the bird flu that is devastating poultry businesses and our precious wild bird populations. The regulations listed in amendments 74 and 77 should therefore be seen as a non-exhaustive list of the key examples of law that it is vital to retain to maintain standards. The regulations listed in the amendments represent some of the most prominent environmental protections, but many potentially vital but not always easily identifiable protections will remain at risk.
A definitive list of environmentally important measures does not exist. One could say that the Government have been naughty by nature, but I would not do that. However, we know that it is even more extensive than the comparable list of the retained EU law that provides critical protections for workers’ rights and conditions, which we have debated in relation to amendments 73 and 76. The inventory of workers’ rights legislation is shorter and more easily identified, so there are important differences between the three domains of rights and protections highlighted by our amendments.
The environmental retained EU laws covered by the Bill include major protections that we rely on for clean air, clean water and safe food, as well as providing crucial safeguards for a struggling natural world. Under the Bill, critical environmental protections face the prospect of being revoked without replacement or replaced by weaker regulations, because of the extremely limited time available to consider and draft workable replacements before the application of the sunset clause, and because of the lack of parliamentary oversight and public consultation—those are the focus of other amendments.
The Government have said that they are committed to maintaining environmental protections. For instance, the former Business Secretary, the right hon. Member for North East Somerset, said that
“the Government is committed to maintain all the environmental protections that currently exist and met a number of the environmental lobby groups to confirm this”.
I will go into a little more detail about how we believe the Bill will completely undermine those commitments and place at risk the safety of chemicals.
REACH stands for the registration, evaluation, authorisation and restriction of chemicals. Under the European Union (Withdrawal) Act 2018, the EU REACH regulation was brought into UK law on 1 January 2021 and is now known as UK REACH, but the UK and EU REACH regulations operate independently from each other. Most industries must therefore comply with both sets of regulations if they want to trade in both the UK and the EU. Furthermore, UK REACH regulates only chemicals placed on the market in GB, and, under the terms of the Northern Ireland protocol, EU REACH continues to apply in Northern Ireland.
The HSE website explains that REACH is
“a regulation that applies to the majority of chemical substances that are manufactured in or imported into Great Britain (GB)…This can be…A substance on its own…A substance in a mixture, for example ink or paint”
or a
“substance that makes up an ‘article’—an object that is produced with a special shape, surface or design, for example a car, furniture or clothes.”
The chemicals legislation in the amendments works closely with the 2008 classification, labelling and packaging of chemicals regulations, which are about the responsibility for identifying and communicating hazardous properties of chemicals. That legislation also works with other chemicals regulations listed on the Government dashboard, such as the Toys (Safety) Regulations 2011 and the Cosmetic Products Enforcement Regulations 2013, which restrict the use of certain chemicals in those products.
REACH places restrictions on the use of more than 2,000 harmful chemicals on which it has taken more than 13 years to legislate at EU level. That has helped to drive innovation in the development of safer alternatives and delivered considerable benefits for our health and environment. Lifting or weakening those restrictions could result in the import of everyday products—from sofas and paint to cosmetics and toys—that contain chemicals that are linked to cancer or affect intellectual development, and that are restricted in the EU but sold in other parts of the world.
The UK was one of the driving forces behind the creation of EU REACH in 2006. That was acknowledged during proceedings on the Environment Act by the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Taunton Deane (Rebecca Pow), who said that
“we were instrumental in designing the whole process in the first place, which we kicked off during our presidency in 1990.”––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]
Perhaps the Minister who is with us today will argue that revoking REACH would nevertheless realise Brexit opportunities. However, businesses are not asking for the revocation of REACH; quite the reverse.
Last week, the chief executive officer of the Chemical Industries Association said:
“We are not in the market for any regulatory bonfire”.
Far from helping to drive economic growth—that is the intention behind the Bill—throwing UK rules into doubt will create uncertainty and instability for businesses, and it will very likely deter investment. Businesses will essentially be left with three costly options: to comply with two regimes at once; to end exports to the EU; or to remain aligned to EU standards, in which case why attempt to deregulate UK REACH?
If Ministers think that the Bill is needed to provide the flexibility to adapt the regulations to a UK context, they seem not to realise that legislative powers for updating and adapting REACH for a UK context already exist under schedule 21 of the Environment Act. Those Environment Act powers include important safeguards for public health and the environment that the Government have not necessarily thought to include in the Bill. Furthermore, work to review and adapt REACH to a UK context has been ongoing pre and post EU exit. The Bill will pointlessly divert that work. For example, we are still waiting for a UK chemicals strategy, which was first promised in the 25-year environment plan more than four years ago.
Without a strategy, the various parallel Department for Environment, Food and Rural Affairs reviews lack strategic direction. A strategy is urgently needed to set out much-needed measures to improve the regulation to address our growing chemical pollution crisis. Why does REACH need the amending powers in the Bill, unless it is to deregulate and to lower standards? The hon. Member for Taunton Deane previously assured us that we would maintain
“high standards of protection for the environment, consumers and workers”
while having
“the autonomy to decide how best to achieve that for Great Britain.”––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]
The status quo in the Environment Act already does that, but the Bill could only be designed to usher in low environmental standards.
Labour tabled an amendment to provide a non-regression mechanism to schedule 21 powers in the Environment Bill. The response from the hon. Member for Taunton Deane was that there was no intention to regress. She pointed to proper safeguards in the powers to ensure that, including protected provisions
“that cannot be changed…relating to the fundamental principles of REACH”.––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]
Those principles include core principles of good chemicals regulation such as “no data, no market” and the precautionary principle. It is difficult not to see the “malign opportunities” that she rejected when she highlighted the safeguards in the powers two years ago. If the aim is a sensible review and updating of our laws, the Government should allow her Department to get on with it.
We already know that there is a serious lack of capacity and expertise in the HSE to do its job. That has resulted in declining safety standards on chemicals in the UK. A recent NAO review found that a lack of operational capacity and loss of data is having a negative impact on HSE’s ability to assess risks and carry out its work, and that it would not be able to achieve its long-term objectives unless that were addressed. How can the Government even contemplate piling even more work on to the HSE’s already overstretched workforce by requiring it to review and rewrite the retained EU law elements of our chemicals regulation?
On top of that, Ministers seem to completely ignore the additional burden on UK business. The pressure on HSE already results in UK REACH considering far fewer protections for health and the environment from harmful substances. For example, the UK has initiated only two restrictions on hazardous substances compared with the five that have been implemented in the EU since UK exit, and a further 20 are in the EU pipeline. Specifically, it has rejected 10 protections that have been targeted by its European counterpart. That includes a restriction on concentration limits for eight polycyclic aromatic hydrocarbons used as infill and in loose form in synthetic football pitches and playgrounds.
Alex Sobel
You will have to intervene if you want me to say it again. Those chemicals are linked to an increased cancer risk, putting our children’s health at risk.
The protective gap between the UK and the EU could become a chasm over the years ahead as the EU takes forward its chemicals strategy for sustainability. That is likely to result in the dumping of harmful chemical products on the UK market, with the divergence harming UK businesses.
There is a severe lack of chemical safety data. This is the central challenge of a separate, stand-alone system and it still has not been resolved. Deadlines for companies to submit vital safety data on the UK market are due to be put back for the second time, while the chemical safety database will not be complete for eight or nine years. The Government’s own latest figures estimate that the chemicals industry faces £2 billion of post-Brexit red tape—twice the cost of initial estimates. During proceedings on the Environment Act, Labour pushed for a minimum standard of protection under UK REACH. We have major concerns that the UK system is already considerably weaker than EU REACH, and the Secretary of State has taken sweeping powers to further reduce the level of protection for the public and environment from hazardous chemicals.
I will now turn much more briefly to other important environmental protections, a sample of which are listed in the amendments. The Government have been dragging their heels on protecting our animals for years, with lots of press releases but little action. Many of the animal welfare measures in the last Queen’s Speech were lifted directly from Labour’s animal welfare manifesto, but the Government have repeatedly stalled and delayed on taking through Parliament the limited selection that they have so far committed to, such as the missing-without-a-trace Animal Welfare (Kept Animals) Bill and the unkept promises to ban the imports of fur and foie gras.
We can have little confidence in this Government’s commitment to animal welfare. Their manifesto promised not to compromise on Britain’s high standards in trade deals, but the Australian trade deal and the precedent it has set risk bulldozing through our standards for animal welfare and environmental protections as well as impoverishing our farmers. As the Committee heard from David Bowles of the RSPCA, there are 44 individual pieces of animal welfare legislation that could be dropped or weakened because of the Bill.
Amendments 74 and 77 list an illustrative sample of just four of these: directive 2010/63 on the protection of animals used for scientific purposes; directive 1999/74 laying down minimum standards for the protection of laying hens; regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof; and the Welfare of Animals (Transport) (England) Order 2006.
As we have explained, the whole purpose of the Bill is to weaken and reduce regulations that ideological purists in the Conservative party see as an irredeemable burden. However, directive 2010/63 sets standards for the accommodation and care of animals used for research, and lowering these standards would increase suffering among lab animals. Article 14 of the directive requires, where possible, animal experiments to be carried out under general or local anaesthesia. The removal of this requirement could greatly increase the pain and suffering of animals undergoing experiments.
Directive 1999/74 banned the use of barren cages for laying hens. Weakening it could change acceptable cage standards for laying hens, allowing the expansion of battery chicken farming through the back door. Regulation 139/2013 stops the importation of wild-caught birds for the pet trade. Its introduction across the EU in 2005 reduced the volume of wild bird trading to about 10% of its former level. In addition to increasing the risk of the importation of wild bird diseases such as avian flu, weakening the regulation could breathe new life into the trade in wild-caught birds, and renewed UK demand could provoke further devastation of wild bird populations in South America, Africa and Asia.
Finally, the Welfare of Animals (Transport) (England) Order 2006 set basic welfare conditions for the live transportation of animals. Weakening the order could see UK welfare standards for animal transportation fall below those of our neighbours in the EU. It would also mark the complete reversal of the UK Government’s plans to increase welfare standards in transportation following Brexit—already stalled through the halting of the Animal Welfare (Kept Animals) Bill.
I turn to the conservation of rare and endangered wildlife and the precious habitats inhabited by vulnerable species. The Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017 include a crucial provision preventing any development that could adversely affect the integrity of our most precious nature sites. We have already seen this Government threaten our areas of outstanding natural beauty through scrapping protections when they fall in a so-called investment zone. Now, with this Bill, we face the prospect of a much more widespread weakening to allow unsustainable development to go ahead on or around important nature sites, even when it would cause damage to them. This damage could include more pollution reaching water habitats and the shrinking of terrestrial habitats. Nationally and internationally important nature sites on land and at sea in England, including Ashdown Forest, Braunton Burrows and Dogger Bank, will become more vulnerable.
Amendments 74 and 77 list the following laws that are part of the legal framework protecting our waterways from pollution: the Urban Waste Water Treatment (England and Wales) Regulations 1994; the Bathing Waters Regulations 2013; the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017; the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010; and the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018. Those regulations provide the legislative underpinning for efforts to protect and clean up our rivers.
The Urban Waste Water Treatment (England and Wales) Regulations 1994 are important for keeping up the pressure on water companies and developers to provide sufficient primary waste water infrastructure to meet the needs of urban areas, especially when they are growing. If those regulations end up weaker as a result of the Bill, there will be an increased risk of insufficiently treated waste water from urban areas spreading pollution across the fresh water network. Weakening the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 and the Bathing Water Regulations 2013 would undercut the measures that drive frontline organisations, especially water companies, to take holistic action to improve water quality.
Stella Creasy
I pay testament to my hon. Friend for working through that list, and for introducing us all to the concept of killer shrimp. I am sure that we will have nightmares about them, as we might about the legislation and the Committee sittings.
I hope that we can find common ground in Committee, because many of us have had to deal with the consequences of animal welfare legislation in our constituencies, particularly in relation to avian flu. As a local MP, I never thought that I would say regularly, “Don’t touch the ducks!” but that has become a refrain in my community because of problems we have had with avian botulism and avian flu. That is why I am convinced that it is important we parliamentarians should understand legislation—just as we should the Schleswig-Holstein question—and the intricacies and details of the negotiations behind the laws that protect us.
I see that Regulation (EU) No 139/2013, which lays down the animal health conditions governing the importation of birds and their quarantine conditions, is up for deletion under the Bill. I know, however, that in Bosworth last year, Wealden earlier this year, and recently in Clwyd West, members of the Committee had the same experience and I have of bird flu in their constituency. They know about the importance of the regulation. We recognise the concern that if that regulation is simply torn up and no commitment is made to it, the means of addressing that very live issue in our communities is at stake. Consider the work that is done to protect our bird life, our wildfowl and other wildlife. In particular, consider the avian influenza prevention zones, which have had an impact in many constituencies across the House. All that work is underpinned by that EU regulation, so the idea of deleting it when we have such a live issue with bird flu in the UK causes concern.
My hon. Friend the Member for Leeds North West referred to the National Emission Ceilings Regulations 2018. Many of us will have seen the horrific case this week of the child who died in a damp property, but we also remember Ella Kissi-Debrah’s death in February 2013, which was found to be caused by acute respiratory failure and severe asthma. As MPs we deal with such issues—damp, mould, air quality—and complaints about them daily. The retained European law has underpinned the regulations and standards to which we have held our local authorities and, indeed, our national Government. Nobody is saying that that is why we should not have left the EU—that has happened. We are simply saying that deleting laws on such live issues without making a commitment to replace them creates uncertainty at a time when our constituents are asking for action on air quality and avian flu.
Anyone who has been an MP for any length of time also knows that when animal welfare issues come up in the House, our inboxes explode. It is an old chestnut. The Bill deletes all the protections offered on animal welfare, and brings back something that I have not seen since I was a teenager—not terrible ’90s fringes or blue lipstick, but live animal exports. I never thought that we would have to debate that again in the House, because I thought that there was agreement that we would not see that practice return. The Bill, however, deletes the very laws that made that debate go away and made clear what we wanted to see as a country. The Minister may say to us that the Government have no plans to remove such laws, but at the moment, the only plan on the table is the plan to remove them. That is the challenge here.
My hon. Friend the Member for Leeds North West did an incredible job in setting out the range of laws at risk. Supporting the amendment would be the first step towards taking 3,500 laws, possibly more, that would need to be rewritten, off the table. There is common agreement. Perhaps I am naive, but I have yet to meet anyone in this place who wants to reinstate live animal exports, or battery farming for hens. Those are settled matters, and yet we will now have to find parliamentary time for them, unless we can pass the amendment and take those issues off the table.
I am sure that there were firm words among Ministers after the Statutory Instrument Committee that sat yesterday. My hon. Friend talked about REACH and the chemicals regulations. Those chemicals regulations, which were part of another piece of legislation, were not known to DEFRA officials. The Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Taunton Deane (Rebecca Pow) said she knew that at least 800 pieces of legislation were up for grabs, but what that means in terms of the ability to do business next year, let alone in the years to come, is questionable. Taking major pieces of legislation off the table, including some that are not on the dashboard but we know will be affected by the Bill, will make the Government’s life simpler.
I plead with the Government to see sense, if not for the ducks in my local park, Lloyd Park, which are struggling, then for the hens and sheep that were being exported when I was a mere 15-year-old. Involvement in politics was then just a glint in my eye, but I was getting up early to shout at the docks. Those issues are not contentious, because there is a commitment to animal welfare across the House. Why would we put them up for grabs? Why would we raise the prospect of reducing our standards, or having to spend parliamentary time to rewrite regulations on them? Why not take those regulations off the table and move on? The point of the amendments is to take off the table the things that we all thought were not contentious. I suspect that our environmental colleagues who are listening in will hear this loudly.
If the Government do not do this, they are sending a clear message that they want to put these issues up for grabs, revisit old arguments, and water down animal welfare and conservation regulations, with all the chaos that will come with that. So many laws such as planning laws rest on those regulations. That is quite apart from the fact that colleagues in DEFRA are having nightmares about the effect on those 800 laws.
I hope that the Minister will give us some more positive news. She did not really take up my offer to suss out which employment protections the Government will absolutely keep, so that my constituents could be confident in supporting her, but perhaps she will do so on the environmental protections, and will reassure us that the ducks are safe and the killer shrimps will be defeated.
Ms Ghani
Hon. Members will not be surprised to hear that I will reject amendments 74 and 77. It has been an absolute joy to hear a new shadow Minister, the hon. Member for Leeds North West, who shadows DEFRA. I have a couple of powerful responses to make to his points, but I will need time to go through them; as he knows, I am not a DEFRA Minister.
I do not understand why the Opposition are trying to create a huge amount of fear. Fundamentally, that comes from their standpoint of being part of the anti-Brexit brigade. We are simply trying to finally finish the process finally. As Members know, because I have said it many times, the Bill is enabling legislation. The measures in it, including the sunset, will provide for UK and devolved Ministers to make decisions to review, amend or repeal their REUL as they see fit. Where Ministers see fit, they have the power to preserve REUL that would otherwise be in scope of the sunset. That includes Ministers in the devolved Governments. There is no need to have specific exemptions. I am responding directly to amendments 74 and 77.
Secondary REUL that is outdated and no longer fit for purpose can be revoked or replaced. Such REUL can also be restated to maintain policy intent. As such, there is simply no need for any carve-outs for individual Departments, specific policy areas or sectors. REUL across all sectors of the economy in the UK is unfit for purpose, and it is right that it be reviewed and updated equally in all sectors and in the same timeframe.
A point was made about scrutiny. Departments will be expected to develop and deliver plans that outline their intention for each piece of retained EU law. The Brexit Opportunities Unit team will work with Departments to draw up those delivery plans and to ensure that the legislative process proceeds smoothly. The delivery plans will be subject to scrutiny via the internal Government or ministerial stock-take process. More information will follow, including on how to factor such processes into statutory instrument timetables.
There is no doubt that this is a considerable amount of work, but we do not enter politics or Government to be work-shy. The work will definitely be done. The sunset empowers all to think boldly about these regulations, and provides an impetus for Departments to remove unnecessary regulatory burdens.
Turning to amendment 77, the Bill will allow Departments to unleash innovation, and will propel growth across every area of our economy. The power in clause 15 to revoke or replace is an important, cross-cutting enabler of reform. Exempting regulations associated with environmental protections from the power will reduce the genuine reform that the Bill sets out to deliver. The UK is a world leader when it comes to environmental protection. In reviewing our retained EU law, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. We remain committed to delivering on our legally binding target to halt nature’s decline by 2030. The Bill will not alter that. That is why we do not consider the proposed carve-out for environmental regulations to be necessary.
Alex Sobel
The Minister’s response reflects the scale of the task at DEFRA. Just last week, a question was asked of DEFRA on the topic of pesticide regulations. The Minister for Food, Farming and Fisheries responded:
“We are currently working through Defra’s REUL to identify the actions we intend to take before the sunset date.”
I think the scale of the task is reflective of what is before DEFRA. From what the Minister has said, I am looking forward to this huge army of new civil servants who are going to arrive in DEFRA and do all this work before December 2023. We are just trying to retain and carve out some of the most important pieces of legislation—the ones the public will be most concerned about in terms of the regulation that they see as protecting them in their everyday life.
Paul Blomfield
My hon. Friend will be aware that the former Secretary of State for DEFRA, the right hon. Member for Camborne and Redruth (George Eustice), bitterly fought the right hon. Member for North East Somerset (Mr Rees-Mogg) in Cabinet in opposition to the sunset clause, and was worried about the impact on the Department and its capacity to deliver on it. Does my hon. Friend think that is because the right hon. Member for Camborne and Redruth had real concerns, or is it, as the Minister suggested, because he was workshy?
Alex Sobel
It was interesting to see the proclamations by the right hon. Member for Camborne and Redruth on various aspects. I mentioned the Australia trade deal in my speech, and last week the right hon. Member was very derogatory about the terms of that trade deal for the UK and UK farmers. We are now hearing from him what really happened behind the scenes, and we are going to see an unfurling of some of the work that took place and the disagreements around the Cabinet table. I do not want to prejudge the speech of my hon. Friend the Member for Ellesmere Port and Neston, but we might hear about some of the consequences of the Government carrying on with this Bill. We might see some of the same commentary as that from the right hon. Member for Camborne and Redruth from other Members who have left ministerial offices. We have had a lot of churn recently, have we not?
Stella Creasy
Does my hon. Friend think this is also a live issue for current DEFRA Ministers? In the Delegated Legislation Committee yesterday on the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations, the Minister was not able to say what would happen with them, given that the regulations are based on legislation that is not on the dashboard in some areas and on it in others. She could not give a commitment as to what would happen to those regulations post 2023. As DEFRA has most of the regulation, does he think that DEFRA Ministers probably have the most to offer in terms of understanding why taking some of these regulations off the rule book altogether would make life a lot simpler for them?
Alex Sobel
I do not want to rehash the debate we have already had, but we were talking about maybe as many as 500 or more regulations not currently on the dashboard, with effects that we cannot predict. I would not want to be a Minister in the Government staring down the line at that, but that is exactly what Ministers in DEFRA are doing, so they have my sympathy in that regard.
The 20 sets of regulations that we want to carve out represent a small fraction of the canon of DEFRA legislation that the Bill could sweep away at the end of next year or leave at risk of being weakened. Amendments 74 and 77 list only a tiny sample of the protections that could be swept away because of the reckless and incompetent approach the Government have chosen to take with this Bill. There are hundreds of items of retained environmental law, in a complex web sitting within and alongside domestic legislation, some with significant case law attached to them. The Minister is making the argument that the amendments are unnecessary, but I am looking to the future progress of the Bill and seeing how that will unfurl and how many of these Bills will potentially be swept away, whether by the present set of Ministers or those who might follow.
Question put, That the amendment be made.
Justin Madders
I beg to move amendment 75, in clause 1, page 1, line 9, at end insert—
“(2A) Subsection (1) does not apply to the following instruments—
(a) The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005,
(b) Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations,
(c) The Consumer Rights (Payment Surcharges) Regulations 2012,
(d) The Electrical Equipment (Safety) Regulations 2016,
(e) The Toys (Safety) Regulations 2011,
(f) The Control of Asbestos Regulations 2012,
(g) The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015,
(h) The Cocoa and Chocolate Products (England) Regulations 2003,
(i) Commission Regulation (EU) No 748/2012 of 3 August 2012,
(j) The Representation of the People (England and Wales) Regulations 2001, and
(k) The Bauer [C-168/18] and Hampshire [C-17/17] judgements.”
This amendment would exclude certain retained EU law which provides for consumer protections from the sunset in subsection (1).
The Chair
With this it will be convenient to discuss amendment 78, in clause 15, page 17, line 5, at end insert—
“(1A) Subsection (1) does not apply to the following instruments—
(a) The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005,
(b) Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations,
(c) The Consumer Rights (Payment Surcharges) Regulations 2012,
(d) The Electrical Equipment (Safety) Regulations 2016,
(e) The Toys (Safety) Regulations 2011,
(f) The Control of Asbestos Regulations 2012,
(g) The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015,
(h) The Cocoa and Chocolate Products (England) Regulations 2003,
(i) Commission Regulation (EU) No 748/2012 of 3 August 2012,
(j) The Representation of the People (England and Wales) Regulations 2001, and
(k) The Bauer [C-168/18] and Hampshire [C-17/17] judgements.”
This amendment would exclude certain legislation which provides for consumer protections from the power to revoke without replacement in subsection (1).
Justin Madders
Now that we are done with the forces of nature, I will take Government Members to the edge of panic again with more of what they will consider to be scaremongering—this time, about consumer rights. We are not trying to worry anyone; we are just trying to protect the rules that are already in place.
Amendment 75 prevents key consumer regulations and legislation from falling off a legislative cliff edge in a little over a year’s time, and amendment 78 removes them from the scope of the powers to revoke without replacement in section 15 of the Bill. To be clear, neither of the amendments is designed to tie the hands of the Government; in fact, they could be seen as doing the opposite. Leaving barely a year to process all the retained EU law could be seen in itself as tying the hands of the Government, although they seem very comfortable with that at the moment. The amendments remove the hard deadlines for these key pieces of legislation, preventing them from being removed without replacement or being watered down. That will free the Government to find ways to improve upon these rights in a considered manner, and—as was argued during the referendum campaign—make the most of our freedom to move beyond EU regulations to better and more appropriately protect consumers’ rights. I cannot see how Conservative Members could oppose these amendments, but I have a feeling that we may again be disappointed.
Paragraphs (a) to (k) of amendment 75 deal with only a fraction of the consumer rights that come under the scope of the Bill. However, these are some of the most important rights to our consumers and constituents, and their presence on the list of rights subject to the sunset date will no doubt cause unnecessary uncertainty. Taking a lead from my hon. Friend the Member for Leeds North West, I will go through some of the legislation we are seeking to protect—I will probably not take quite as long as he did, but I will do my best.
First, the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005 enact EU regulations that uphold rights in the commercial aviation sector. Its provisions include the right to compensation when flights are cancelled or delayed or boarding is denied, and giving priority to passengers who have a disability. I ask the Minister: are those rights meaningless red tape? They are important protections for Britain’s air passengers and should be maintained, not under the threat of being sunsetted in a year’s time without any replacement.
Of course, it is not just the protection of air passengers’ rights that falls under that sunset date. Key protections for Britain’s rail passengers are also included in the retained law that implements regulation 1371/2007 of the European Parliament and the Council. It contains provisions that impact all aspects of taking a train in the UK, including, rather topically—I am sure many Members will be aware of this—stipulations on passengers’ right to receive compensation, and the amount of compensation they are entitled to, when a train is delayed or cancelled in the form of the Delay Repay system. That system is probably getting more visits than the Government’s retained law dashboard at the moment. The regulation also contains important rights to accessibility assistance at platforms and on train services, maintaining a lifeline for many of the people who rely on that form of transport. Why can the Government not accept that those rights should be retained?
Paragraphs (c), (d) and (e) of amendment 75 are all examples of how retained EU law protects the rights of our high street shoppers on a daily basis. The Consumer Rights (Payment Surcharges) Regulations 2012 prevent shops from imposing surcharges that go beyond the coverage of costs; the Electrical Equipment (Safety) Regulations 2016 are technical and sweeping, yet are crucial in protecting consumers from unsafe electrical equipment by setting standards for the testing of products and the voltages of appliances; and the Toys (Safety) Regulations 2011 impose minimum safety standards on products sold for children’s consumption.
The amendment does not only name consumer protections that maintain high-quality standards on products and services; it also deals with how to deal with disputes under the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015. Under those regulations, consumers have a clearer route for out-of-court settlements when they have a dispute over a product. In essence, they facilitate, through an impartial body, the ability to claim compensation. Given the amount of litigation that this Bill will generate, it is a good idea to continue to divert people away from the court process if an alternative is possible.
Stella Creasy
We come to a list of things that surely leads Members of different parties to think, “Of course we’re going to retain these pieces of legislation. Why even give it a second glance?” I am absolutely confident that Government Members will say to us, “Don’t scaremonger. Of course people will still be able to get compensation if their flight is delayed.” The trouble is that we do not have from the Government anything like a list of what will exist post 2023. That is the challenge, as these are probably the pieces of legislation that our constituents rely on most of all, because they deal with people’s everyday transactions. They are matters about which people get extremely agitated, because it feels incredibly unfair if someone’s flight is delayed or they suddenly discover that they have bought something that is faulty. People expect to be able to get redress as a matter of course.
In a former lifetime, I had the sheer joy of being the shadow consumer Minister. I encourage all Members to come shopping with me—if nothing else, most employers try to get me out of the shop quickly by offering a very good deal by the end of the transaction, because I was involved in writing the Consumer Rights Act 2015. These sorts of requirements shaped that piece of legislation, and they did so with good reason, because where is the partisan argument about the Electrical Equipment (Safety) Regulations 2016? We may disagree about the impact of workers’ rights on our economy—clearly, we do. Government Members did not want to save bank holidays, and that is their call, but surely we all agree that somebody should be able to plug in a toaster and not have it blow up or cause them harm, and that having regulations is not onerous but sets a level playing field. Most businesses, which are good actors, want to be confident that they will not be undercut by somebody selling faulty goods.
I know that the hon. Member for Bosworth will be relieved to hear that the regulations do not cover charging cables for phones and iPads—so they can play as much music as they like. However, they do cover whether goods are of a certain standard. Having goods of a certain standard is surely not something that we want to put up for grabs, because if we do, over the course of the next year—assuming that we find time for all the DEFRA pieces of legislation and for working out whether workers’ rights will be replaced or changed—we will then have to find time to deal with all these pieces of legislation.
Members may feel more strongly about some pieces of legislation than others. As I say, not being able to get a refund when someone has been mis-sold something, or has experienced a delay, is a cause of high concern for many people. Often, it is something that they will come to their Member of Parliament about, so I would not want to be the MP explaining that I had deleted people’s right to compensation and did not know what was going to come next. I would be giving a green light—unusually for some of these companies, because many of them operate with red lights.
Justin Madders
It just strikes me that the idea of someone coming to their Member of Parliament and saying, “This isn’t what we asked for, and we would like a refund,” is what we are dealing with in the Bill. I do not think that many people who voted to leave the European Union voted to remove all the laws that we are talking about.
Stella Creasy
I would certainly be happy to refer them to any consumer champion, because I think they would have a very strong case that they were not getting compensation in reasonable time and in a reasonable format, which is obviously what the Consumer Rights Act—it is a piece of UK legislation, but it echoes the requirements—does.
There are other things on the list, which is not comprehensive but is authoritative—after all, we have been told that that is acceptable—about the sorts of things that surely we should all want to put beyond doubt, such as when people’s pensions are at risk. We have all had cases in our constituencies of pensioners whose pensions were put at risk. They may have worked for companies that went bust, and now they need protection. I absolutely want to take up the challenge about not frightening vulnerable people. The pension protection fund itself would not disappear, because that is part of UK legislation, but the challenge is that the Bauer and Hampshire judgments set out what that fund can do. The issue is not that there would not be someone to whom we could refer our constituents, but let us be clear: if we delete the relevant legislation and do not replace it, that organisation will start to query what it can do to help our constituents. That may mean that they end up with a lower level of compensation.
It could be the same when it comes to people having their flight or train delayed. The Delay Repay claims have given most people a level of certainty and confidence about their travelling, and I think we all want to see that reinforced—we all think people should have a fair deal. Why would we therefore spend parliamentary time rewriting something that works? Why would we put up for grabs the amount that people can be charged for using a debit card, when many of our constituents are trying to use them to manage their finances because there is too much month at the end of their money? Why would we do that?
Why would we again put the content of chocolate up for grabs? Come on. We have seen what happened to Cadbury; we have all tasted the difference. Anyone here knows the limitations of Hershey. Yet here we are again, rewriting laws that we brought in to protect things so that consumers could have confidence and go about their business every day. That is the point about all this. It is not about leaving the EU; that has happened. It is not about an objection to leaving the EU; that debate has happened. It is about an objection to deleting laws we all agree on, and the waste of time that the legislation creates, especially in terms of consumer protection.
Again, I offer the hand of friendship to the Minister, although I am sure she will bite it off with glee at this point in the afternoon. If she can tell us precisely what will replace the regulations listed in the amendment, and commit that our constituents will retain the protection of those standards, she will have my support. That is the purpose of the amendments. If she can tell us what will happen to the Representation of the People (England and Wales) Regulations 2001, she will have our support, because people want that certainty. The parts of EU law to which the amendment relates refer to those bits of everyday life where people do not want the headache of uncertainty. I hope that the Minister will take up that offer, finally, as we consider the third list of regulations.
Now that we have been through some of the laws in question, I hope the Minister’s colleagues understand what is at stake. This might be a process, but we must remember the impact of it and the uncertainty that it creates. There is a risk that Ministers and MPs will sign off a piece of legislation only to find themselves having to explain to their constituents, “Ah yes, I was told that there wouldn’t be a dilution of your rights to compensation, but the Minister came forward with a change and, like with those pesky EU regulations I said I could not amend, the Minister has told me that I’ve got to like it or lump it.” Remember, the Bill does not offer any scope for amendment. I do not think Conservative Members would want to be in that constituency surgery explaining to somebody that, if they have been done over by Mastercard, they have been done over, or that their chocolate will have to taste bitter. That would be a bittersweet conversation.
Ms Ghani
I urge the Committee to reject amendments 75 and 78. The issue of scrutiny has come up again, and I find myself repeating that, as well as the dashboard, Departments will be expected to develop a delivery plan to outline their intention for each piece of retained EU law. I will try to go through each of the points raised to satisfy some of the questions.
A question was raised about electrical equipment and toy safety. Our current product safety framework is largely a mix of retained EU law, domestic law and industry standards. As a result, it can be complex and difficult to understand. The Government remain committed to protecting consumers from unsafe products being placed on the market now and in the future. Although the Bill is unlikely to give us the powers needed to implement a new framework, we hope that the powers in it will make it possible to amend or remove outdated EU-derived regulations and give us the ability to make some changes to reduce burdens for business.
Justin Madders
Can the Minister give us some examples of those outdated regulations?
Ms Ghani
That is the beauty of each Department putting together their delivery plan. Their own teams will be able to put forward the pieces of REUL that they will assimilate, update or remove. That is the beauty of the programme; it works across each Department.
A question was raised about consumer disputes. The Government are committed to a consumer rights framework that protects consumers and drives consumer confidence, while minimising unnecessary cost to business. Core consumer protections, as set out in the Consumer Rights Act 2015, remain unaffected by the REUL Bill. The Government will maintain their international commitments on consumer protection. We will bring forward proposals to address REUL that impacts consumer protection using the powers in the Bill or other available legislative instruments. The UK regime sets some of the highest standards of consumer protection in the world, and this will continue to be the case.
Ms Ghani
As I mentioned earlier, it is up to Departments and devolved Administrations as to what they would do on specific pieces of policy. The Bill creates the tools for Departments. Plans will be approved by a Minister of the Crown—I know that Opposition Members object to that—or a devolved authority where appropriate, and will be shared when ready, given that this is an iterative process that is still ongoing. I therefore ask the hon. Member for Ellesmere Port and Neston to withdraw the amendment.
Justin Madders
I think we got a real mix there of things that the Government intend to continue with, but also—I am particularly concerned about how this relates to the Bauer judgment—things that they do not wish to continue with. But the underlying theme, the stock answer or explanation, was that Departments will put forward their delivery plans in respect of these REULs in due course, and that simply is not good enough.
Stella Creasy
Given that the Minister would not let me intervene on her earlier, I want to clarify that she appeared to give us our first piece of evidence about what the Government intend to do with this Bill, when she said that they do not intend to continue with the Bauer and Hampshire judgments, which require pension protection funds to pay out half the value of people’s pension if their employer goes bust. Does my hon. Friend agree that we have finally seen, for the first time today, what the consequences of this legislation are? That is why we are all so worried: because protection for employees is being withdrawn by this Government. The Minister has just confirmed that—perhaps she wants to intervene to say that that is not the case, although that is what she said, and she does not look like she is about to get up. Does my hon. Friend therefore agree that at least now we have seen why we should all be so worried by this legislation?
Justin Madders
I thank my hon. Friend for that intervention. It has taken us perhaps five or six hours to get to that point. We now finally see why we are right to be concerned about this process, why it is important that we put in proper scrutiny safeguards, and why we want to see certain pieces of legislation exited from the Bill so that they are not lost. Pension protection is an important issue. My predecessor, the late Andrew Miller, did an awful lot in that regard when he represented Ellesmere Port and Neston. An awful lot of people in my constituency have benefited from the Pension Protection Fund. If we are to see a reduction, we will no doubt explore that with the relevant Department. For now, we will do our bit to protect these regulations and the others mentioned in the amendment by pressing it to a vote.
Question put, That the amendment be made.
Ms Ghani
I beg to move amendment 2, in clause 1, page 1, line 10, after “instrument” insert—
“, or a provision of an instrument,”.
This amendment and Amendment 3 provide that the revocation of a provision of an instrument does not affect any amendment made by the provision to any other enactment.
Ms Ghani
As hon. Members know from this morning, the clause is the backbone of the Bill, ensuring that EU-derived subordinate legislation and retained direct EU legislation will all be removed or reformed by 31 December 2023. Specifically, the amendment will ensure that the Bill’s sunset does not impact on amendments to primary legislation inserted by retained EU law that is now in scope of the sunset. As drafted, the Bill provides for that to be the case only where an entire instrument is revoked by the sunset. This Government amendment provides that the revocation of a particular provision of an instrument does not affect any amendment made by the provision to any other enactment. Sunsetting amendments to primary legislation is not our aim with the Bill. We clearly rule that out of the Bill’s scope. I ask the Committee to join me in voting for the amendment.
Turning to Government amendment 3, further clarity is required to ensure that, where the preservation power under clause 1(2) has been exercised, it is REUL as it exists at the time of the sunset that is preserved. Without amendment 3, there is a risk that modifications to a piece of REUL made after it has been preserved, but before the sunset date, would unintentionally be subject to the sunset. The amendment will ensure that the modification is also preserved. As such, it is minor and technical but ensures the necessary clarity that REUL is preserved as intended, with necessary amendments or restatements.
Peter Grant
The Government have admitted that, even before we decide on clause 1, three important parts of what the Minister described as a fundamentally important clause need to be amended, because the Government got it wrong. How can we be confident that, in less than a year, 4,000-plus statutory instruments will be amended, revoked or replaced without similar mistakes being identified when it is too late and the defective legislation is already in place, with no other choice but to amend them in a Public Bill Committee?
Ms Ghani
The hon. Gentleman might have been in Parliament longer than I have and might have sat on Committees longer than I have, but it is not unusual to amend pieces of legislation in Committee. I have known that in legislation from many Departments. It is not unusual; it is just the process that we are in.
Ms Ghani
Government amendment 4 clarifies the power to make transitional provisions for the sunset. Transitional provisions are provisions that regulate transition from the existing law to the law as it will be amended by the Bill. For instance, transitional provisions could be made to ensure that laws that fall away after the sunset will continue to apply to certain types of ongoing contracts after the sunset date if the contracts were entered into on the basis of those laws applying. Consequently, the amendment ensures consistency for businesses and citizens following the sunset’s effects. That is highly important, given the role the Bill will play as a key driver for growth. I trust that Committee Members will support consistency and growth for British business and citizens, and I ask them to support these amendments.
Justin Madders
I will not speak for long. Will the Minister explain what the procedure will be, particularly for dealing with amendments to regulations under Government amendment 4? That is important. I think I understood the Minister’s train of thought, but if she could explain what that process will be and what opportunity there will be for parliamentary scrutiny, I would be grateful.
Stella Creasy
The Minister is not allowing questions, so will she provide clarification? It is absolutely normal to have amendments to legislation, but it is not normal to delete all the legislation and then try to amend in a lacuna. Will she clarify whether she recognises that these amendments need to be put forward because the legislation, as currently drafted, is not correct? She will know of other legislation that has had to be drafted—indeed, statutory instruments have come forward. What provision—what backstop or safety net—is in place, should something be deleted and should a change need to be made by this legislation in that absence? Will that law remain on the statute book, or will we simply see potentially thousands of amendments needing to be made but no legislation to be amended? If the Minister could take questions, she could probably reassure all of us on these questions. I do not think they are unreasonable ones to ask—she has raised the point.
Peter Grant
Before the comments from the hon. Member for Walthamstow, the Minister thought she was winning the argument. She said that there was nothing unusual in legislation having to be amended by the Government in Committee. That is exactly the problem. It is not unusual; in fact, it is almost inevitable. It is happening so many times in this 23-clause Bill, which runs to 30-something pages, but we are expected to believe that anything up to 4,000 pieces of legislation can be wiped out and that they will all be properly and adequately replaced, when this Public Bill Committee stage, which is allowing the defects in the original Bill to be corrected, will be removed from all of them. That is why this is such a reckless and cavalier way to go about changing the laws of these islands. We are not talking about one or two pieces of secondary legislation being introduced to replace or amend what was there before. We are talking about thousands of pieces of legislation needing to be enacted to replace a blank set of paper—in order to replace complete anarchy. Does the Minister now understand that that is why, with the best will in the world, the civil servants will not get them all right? If we go ahead with clause 1 and the rest of the Bill, as the Minister insists, there will be defects in the legislation that is put in place. Bits will be missed out that no one wanted to miss out. Businesses will suffer as a result.
Ms Ghani
Another question about scrutiny. Thank goodness that we are having this debate and legislating in the UK, where there is an opportunity to scrutinise and have everything on record in Hansard.
Let me go through the process again. Departments will be expected to develop a delivery plan, which will outline their intention for each piece of retained EU law. They will be supported by the Brexit Opportunities Unit. There will be a huge amount of outreach and stock-take process in place. To go through the process further, the Bill will obviously go from here to Report stage and then to the House of Lords. There will be a huge amount of scrutiny throughout. Once the Bill receives Royal Assent, work on reform will continue in Departments. They will review their retained EU law, prioritise areas for reform and lay statutory instruments where appropriate. That process may include designing policy and services; conducting stakeholder consultations; drafting impact assessments; or supporting individuals who may be impacted by any such reform. That is the level of work that we always conduct when we are legislating.
On the question about the statutory instrument programme, and how the House will have sight, the Government recognise the significant role that Parliament has played in scrutinising instruments to date and are committed to ensuring the appropriate scrutiny of any legislation made under the delegated powers in the Bill. The Bill will follow the appropriate scrutiny procedures as it progresses through Parliament. It is right that we ensure that any reforms to retained EU legislation receive the proper scrutiny from the relevant legislatures and are subject to the proper processes for consultation and impact assessment.
Once the Bill receives Royal Assent, work on reform by Departments will continue. They will review their retained EU law, prioritise areas for reform and lay SIs before Parliament where appropriate. A sifting procedure has been included to ensure that Parliament can assess the suitability of the procedure used for SIs. Parliament can recommend stronger scrutiny procedures as needed. I hope that is thorough enough.
Peter Grant
I do not want to detain the Committee much longer, but I cannot support clause 1. It is not just about me not accepting that this Parliament has the right to take my people out of an international union that they voted to be part of. It is about the fact that even if we accept that there is no way back into the European Union—even if we accept that Brexit has to be a process of substantially distancing ourselves from it—this is not the right way to go about it.
It is perfectly possible, as others have said, to set up a process that allows retained EU law that gets in the way to be revoked, repealed or amended, but that allows good EU law to be maintained and adopted into domestic legislation, without running the risk of having to start from a blank sheet of paper and replace 40-years of legislation in the space of a few months.
The briefing paper to the late Queen’s Speech that the Government produced to set out the background to the Bill talked about using the Bill to assert the sovereignty of Parliament. Well, quite clearly, the Government do not understand that this Parliament never has exerted, and never will exert, sovereignty over the people of Scotland. If the Bill was to progress with clause 1 as it is, it would not be asserting the sovereignty of Parliament; it would be asserting the sovereignty of the Prime Minister and the Government Chief Whip. They will decide what goes in the legislation, they will decide who presents that legislation to Parliament and they will decide what Minister gets the boot if they do not support the necessary changes. That is not about the sovereignty of Parliament; it is about the sovereignty of the Executive—of the Prime Minister and Chief Whip in particular.
If we look at that briefing on the important aspects of the Bill, we see red flags all over the place because it is about short-circuiting the parliamentary process. The Government’s own assessment is that, if we were to take this retained EU law through a proper process of parliamentary scrutiny, it would take decades to get through. I am not necessarily saying that we should wait decades for the process to be completed. But taking a process of decades—by implication, that is 20 years at least—and squeezing it into a single year, and especially a single year when the Government are dealing with the impacts of the war in Ukraine, the after-effects of covid and the worst cost of living crisis in living memory, is not a responsible way for the Government to make legislation.
I will be opposing clause 1. If people believe that that will wreck the Bill, then this is a Bill that has to be wrecked. The Government have to be told to go back and bring forward a Bill that achieves what most Members in this House now seem to want, but that does so in a way that does not expose all of us—and those who elected us—to risks that we cannot yet even identify because they could come out of legislation that nobody here knows exists. It would be madness to repeal a piece of legislation that we do not even know is there.
Justin Madders
I beg to move amendment 72, in clause 2, page 2, line 5, leave out “Minister of the Crown” and insert “relevant national authority”.
This amendment provides devolved assemblies the power to make the decision to delay the sunset of legislation, and not just a Minister of the Crown.
The Chair
With this it will be convenient to discuss the following:
Amendment 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.”
New clause 5—Extension of sunset to 2026 under section 1 by Scottish Ministers—
“(1) The Scottish Ministers may by regulations provide that section 1, as it applies in relation to a specified instrument or a specified description of legislation within section 1(1)(a) or (b), has effect as if the reference in section 1(1) to the end of 2023 were a reference to a later specified time.
(2) In subsection (1) “specified” means specified in the regulations.
(3) Regulations under subsection (1) may not specify a time later than the end of 23 June 2026.”
This amendment would give the Scottish Ministers a power to extend the sunset date for devolved retained EU law equivalent to that conferred on a Minister of the Crown by Clause 2 of the Bill.
New clause 6—Extension of sunset to 2029 under section 1 by Scottish Ministers—
“(1) The Scottish Ministers may by regulations provide that section 1, as it applies in relation to a specified instrument or a specified description of legislation within section 1(1)(a) or (b), has effect as if the reference in section 1(1) to the end of 2026 were a reference to a later specified time.
(2) In subsection (1) “specified” means specified in the regulations.
(3) Regulations under subsection (1) may not specify a time later than the end of 23 June 2029.”
This new clause confers a power on the Scottish Ministers to modify the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation may take effect, to a date no later than 23 June 2029.
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.
Peter Grant
The Minister’s clarification in response to my hon. Friend the Member for Argyll and Bute’s questions has been about as clear as mud. On the basis of that response, I sincerely hope that my hon. Friend will stick to his guns, move his amendment and push it to a vote. Either the Minister genuinely does not get devolution, or she gets it and is trying to roll it back, because the whole point of devolution is the recognition that there are four distinct identities, at the very least—four distinct sets of needs and priorities—within the four nations of this Union. Arguably, England could be split into several autonomous regions as well if the people of those parts of England so desired.
I think the fault line is that the Minister continually expects the people of Scotland to be reassured when she says, “This is not what the Government intend to do with this new power. This is not what the Government intend to do with this new legislation.” I mean nothing personal against this particular Minister when I tell her that the people in Scotland do not trust this Government. The people in Scotland have never trusted a Tory Government and never will, so if the reassurance that the Minister wants to give my constituents and constituents of other colleagues in Scotland is “We promise you that although we’ve got this power, we will not do it to you”, that will not be enough. The one way to make that promise credible is to say, “We are so determined not to do this to you that we are not going to take the power that would allow us to do it. We are going to make a law that would prevent us from doing that.”
The Minister still has not answered my hon. Friend the Member for Argyll and Bute’s questions, so maybe I can ask them in a different way. Who does she believe should have the right to decide whether chlorine-washed chicken or hormone-injected beef should be allowed to be sold in shops in Scotland? Is that a decision that rightfully belongs with the Parliament of Scotland, or does it belong to this place?
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.
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)
Thursday 24th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 24 November 2022 - (24 Nov 2022)
The Minister for Industry and Investment Security (Ms Nusrat Ghani)
It is a pleasure to serve under your chairmanship once again, Sir George. The clause is a vital part of the Government’s retained EU law reform programme and will make sure that EU rights, obligations and remedies saved by section 4 of the European Union (Withdrawal) Act 2018 cease to apply in the UK after 31 December 2023.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair this morning, Sir George. Members will note that I am a little hoarse —please do not give me a sugar cube. I hope that means I will not be quite as lengthy as I was on Tuesday.
Justin Madders
We can try.
I want to say a few words about the clause, which will fit in with the discussion we will have on the following clauses. All these clauses pertain to the future of our law after the removal of the legal effects of EU law. I will try not to repeat myself and to focus specifically on the terms of this clause.
I begin by stating the obvious: as we untie ourselves from the European Union, we will clearly need a new settlement of legal principles. Nevertheless, we ought to treat the clause with some scepticism and scrutinise the impact it will have on our country’s legal system. In doing so, we must consider why it was decided to take a snapshot at the end of 2020 in the first place.
When the country entered the transition period for leaving the EU, the potential for a legal vacuum to emerge rapidly became apparent, as the process of preserving EU legislation and EU-derived legislation made under section 2 of the European Communities Act 1972 began. Section 4 of the European Union (Withdrawal) Act 2018 was therefore designed to prevent such a legal vacuum once the 1972 Act was repealed, by catching everything that might have been missed and its legal effects.
I am saying that to highlight an important feature of the 2018 Act, which has been to maintain the smooth operation of our legal system while we formally left the EU. Clearly, it still has importance. Unless the Government are able to use the powers in clauses 12 to 15 to replace the effects of EU law exactly—although it is clear that they do not want to do that—we face the prospect of a legal vacuum.
I have a couple of questions for the Minister. First, does she agree that section 4 of the EU (Withdrawal) Act has provided an important function over the previous years in creating stability and certainty? Secondly, does she recognise the risk of a legal vacuum opening after 2023, and can she provide any assessment the Government have made of that risk?
As a matter of interest, I have just read on the front page of today’s Financial Times that a wide range of groups, from the TUC to the CBI, have written to the Prime Minister requesting that the Bill be withdrawn. One reason they give is that it will create a vacuum and a great amount of legal uncertainty. I suspect that the Minister has not yet had a chance to discuss the contents of that letter with the Prime Minister, but if she has, will she update us? [Interruption.] The Minister’s response suggests that she has not had that opportunity.
Such questions naturally lead us to the identification problem that we discussed on Tuesday. My understanding is that the dashboard sought to capture the examples under section 4 of the 2018 Act on retaining
“rights, powers, liabilities, obligations, restrictions, remedies and procedures”.
Due to the dashboard’s catch-all nature, however, can we be certain that all those have been picked up, given that even the Government admit that not all the regulations have been captured? How on earth can we be certain that serious vacuums will not be left by the removal of section 4 if we cannot be sure that we have identified everything affected by it? That is an important point.
Linking again to our debate on Tuesday about the timeframe in which such legal effects and legislative provisions need to be restated, replaced or revoked under clauses 12 to 15, we must not treat clause 3 in isolation. We must remember that what happens alongside the mountain of other pieces of EU legislation that need to be processed will be key to how the country moves forward. At the very least the Minister must try to offer us some reassurance—or, better yet, a plan that shows—that the Government have the matter in hand and will deal with all the legislative provisions and legal decisions before the 2023 deadline.
Overall, we agree that there has to be an end to EU supremacy in UK law, but we still have concerns about how that will operate in practice. We want to avoid a situation that the Government have known was coming for at least two years. I would be grateful if the Minister could provide some assurances to the Committee that action on the concerns that have been expressed by a wide body of representative groups is in hand.
Stella Creasy (Walthamstow) (Lab/Co-op)
Good morning, Sir George. I rise to support the comments made by my hon. Friend the Member for Ellesmere Port and Neston. I also think that the debate on the clause sums up some of the practical challenges with the legislation. The retained EU law dashboard has identified just 28 pieces of directly effective retained law under section 4 of the EU withdrawal Act—a mere amuse-bouche of laws that will be affected by the Bill overall. Given that the number is so small in comparison with the at least 2,500 that have been identified, and the possible 4,000, why could the Minister not show us what will happen next? After all, our debates on Tuesday were all about what would happen if we deleted every piece of legislation. There are no guarantees about what would happen next. Rather than assuming that all these pieces of legislation should go at the end of 2023, surely Ministers could commit to reviewing the 28 now and showing us the way ahead—whether some will be retained, amended or indeed abolished. Then the clause would not be required.
All of this does make a difference. For example, on Tuesday the Government gave their very first commitment on what will happen to one of the 4,000 pieces of legislation—the Bauer and Hampshire judgments about pensions. To remind Government Members, who may well have constituents coming to them about this, those are the requirements—the pieces of case law—that mean that if a company goes bust, people are entitled to at least 50% of their pension fund. The Government committed on Tuesday to abolishing those pieces of legislation, but they are affected by the clause.
The 28 pieces of legislation are not insubstantial; they could be the way forward for the Minister. Instead of requiring the clause, she could say, “We’re going to look at the 28 and tell you what we’re going to do with them,” so that people can have confidence that we have an administrative process for these pieces of legislation and the suggestion that there has been scaremongering can be put aside. She could say, “Here are 28 examples of what we’re going to do, and the fact that they are rights under section 4 of the EU withdrawal Act helps us to contain them as a piece of work.”
The Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019 are another of the 28. Given that the Government are getting rid of the Bauer and Hampshire judgments, thereby affecting the pension rights and protections of our constituents, could the Minister set out what might happen on that one? She was very kind on Tuesday to set out an example of what will happen to one of the 28. It would be incredibly helpful for us as a Committee to understand the impact of the legislation and to perhaps start, if not to allay our concerns—I think Opposition Members are concerned when people’s pension protections are being not just watered down but, frankly, abolished—then to understand what the Government’s intentions are in using these powers.
I simply ask the Minister to use the clause stand part debate to explain why the 28 pieces of legislation could not have been dealt with in advance of the Bill, given that they stand on the EU withdrawal Act, and to tell us a bit about what will happen to them, to give us an indication of what horrors are to come or perhaps to reassure us. Government Members want to use the term “scaremongering”. I use the term “accountability”. I am looking forward to what the Minister has to say.
Ms Ghani
It is curious that Opposition Members say they do not want to prevent Brexit or accept the supremacy of EU law, but then they come up with every which way to stop these things actually being delivered.
The matters saved by section 4 of the EU withdrawal Act consist largely of rights, obligations and remedies developed in the case law of the Court of Justice of the European Union. Many of those overlap with rights already well established by domestic law, and those overlaps can cause confusion. The Bill allows the Government to codify any specific rights that may otherwise cease to apply if they consider it a requirement.
A question was raised about whether we are ending section 4 rights; that is not the case. Section 4 of the EU withdrawal Act incorporated the effect and interpretation of certain rights that previously had effect in the UK legal system through section 2(1) of the European Communities Act 1972. Section 4 rights largely overlap with rights that are already available in UK domestic law, and it is domestic legislation where they should be clearly expressed. This Bill seeks to rectify that constitutional anomaly by repealing section 4 of the 2018 Act. That does not mean the blanket removal of individual rights; rather, combined with other measures in the Bill, it will result in the codification of rights in specific policy.
Ministers in each Department, which will be responsible for their own elements of the Bill, will work with the appropriate bodies to ensure that they share what they will be assimilating, repealing and updating. All of that will provide additional clarity, making rights clearly accessible in UK law. That is why I recommend that the clause stand part of the Bill.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Abolition of supremacy of EU law
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 5 and 6 stand part.
New clause 8—Conditions for bringing sections 3, 4 and 5 into force—
“(1) None of sections 3, 4 or 5 may be brought into force unless all the following conditions have been satisfied.
(2) The first condition is that a Minister of the Crown has, after consulting organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, that section on a draft of that report, laid a report before each House of Parliament setting out, with reasons, the Minister’s view as to the likely advantages and disadvantages of bringing that section into force, setting out in particular the effect of that section on—
(a) the rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare;
(b) legal certainty, and the clarity and predictability of the law;
(c) the operation of the Trade and Cooperation agreement between the United Kingdom and the EU, and UK exports of goods and services to the European Economic Area; and
(d) the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.
(3) In relation to section 4, that report must take into account any regulation made or likely to be made by a relevant national authority under section 8(1).
(4) The second condition is that a period of sixty days has passed since that report was laid before Parliament, with no account to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.
(5) The third condition is that, after the end of that period, both Houses of Parliament have approved a resolution that that section come into force.
(6) If both Houses of Parliament have approved a resolution that that section should not come into force unless it is amended in a way set out in that resolution, then the Minister may by regulation amend that section accordingly, and that section may not be brought into force until that amendment has been made.”
This new clause requires Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles. It also includes opportunity for Parliamentary approval and timeframes for laying reports before both Houses.
Justin Madders
I rise to speak to new clause 8, but before that I will address clauses 4, 5 and 6.
Clause 4 is a Ronseal clause: with regard to abolishing the supremacy of the EU, it does exactly what it says on the tin. However, unlike putting a coat of varnish on a fence, it will not be a case of simply walking away once it is done. It is inevitable that courts will need to consider case law that we have previously regarded as settled, because that law was settled when EU law was supreme, and it no longer will be. The reality is that none of us know where this clause is going to take us.
Most lawyers practising today know no other legal environment. The world has moved on in the last 50 years in ways that we could not have foreseen, and the law has moved with it, so any reinterpretation of the law needs to be done carefully. It must strike a balance between making changes where appropriate, based on our new position outside the EU, and maintaining some consistency and predictability for businesses and individuals who are trying to conduct their working and private lives within the ambit of the law. That is why some of our other amendments have attempted to create stability in terms of what the Government can control with these regulations, because we recognise that not even this Government can control the courts and which issues are litigated.
Section 5(2) of the European Union (Withdrawal) Act 2018 stated that the principle of the supremacy of EU law will continue to apply
“so far as relevant to the interpretation, disapplication or quashing of any enactment...passed or made before exit day.”
That means that retained EU regulations would take precedence over pre-existing domestic legislation that is inconsistent with them. It also makes it clear that this does not apply to anything passed after 31 December 2020, so to some extent, supremacy of EU law has already entered history. What analysis has been done on the legal consequences of retrospectively altering the relationship between retained EU law and domestic legislation passed before 31 December 2020? Have the Government have done any analysis of this, and can they anticipate which areas will be prone to more legal challenge on the issue of supremacy?
I suspect that it will be impossible for any of us to say whether the consequences of removing the principle of supremacy would reduce the clarity of the law or change its effect in any particular case. However, the overall effect is that there will be a reduction in certainty and a risk of unpredicted—and perhaps entirely undesirable and unjust—consequences. What assessment has been made of the impact of the new level of uncertainty on business investment?
Paul Blomfield (Sheffield Central) (Lab)
I wish to make a relatively brief point, anticipating what the Minister might say on the basis of her response to comments on clause 3. It is worrying, when we are trying to have a serious consideration of the Bill, that serious questions either from our Front Bench or from my hon. Friend the Member for Walthamstow are met with the suggestion that we are, in some way, trying to deny Brexit.
I think we need to be clear on this: we campaigned to remain in the European Union; the majority of Conservative Members campaigned to remain in the European Union; but we lost and we left. There is no going back; none of us is arguing for it—no rejoining the EU, no rejoining the single market, no rejoining the customs union. But there are choices in the way that we manage our future outside of the EU. That is what we are trying to deal with, because we want to make the right choices, and are worried that the Government are not.
I have come to this session from a meeting of the UK Trade and Business Commission, which is a cross-party, cross-industry body looking at the trade opportunities and trade implications of our departure from the European Union. Both the British Chambers of Commerce, which gave evidence to us this morning, and the TUC expressed huge concern about the uncertainty created by the provisions in clauses 4 to 7 and the potential for businesses and workers to get lost in a legal quagmire from which, as my hon. Friend the Member for Ellesmere Port and Neston says, only the lawyers will benefit. Given the current backlog of such cases in our courts, that uncertainty will last for some time.
Will the Minister address the concerns that were raised by the Bar Council, whose evidence I know she will have read? It warns about,
“creating uncertainty as to the meaning and status of such REUL by removing established principles by which it is to be interpreted, altering its status vis-à-vis other law, and nudging the courts towards departing from EU case-law that interprets it.”
I hope that the Minister will respond to the questions asked by my hon. Friend the Member for Ellesmere Port and Neston, because the evidence then says:
“We detect no sign that any assessment has been done as to the legal effect of those changes on the regulations concerned (despite their importance) and can therefore detect no policy rationale for those changes whatsoever.”
I hope that, in her remarks, the Minister will address those points.
Stella Creasy
My hon. Friend the Member for Sheffield Central is absolutely right. This is not about whether Brexit has happened. We all know that Brexit has happened. We have left the European Union, and, frankly, it reflects an intellectual insecurity about the legislation if that is the only response that the Government can come up with—if they cannot actually engage in defending their proposals but try to take us on to a completely different debate.
That matters because millions of people across the country are dealing with the consequences of Brexit on a daily basis, none more so than our friends and family in Northern Ireland. I rise to ask the Minister to put aside the constant talk about, “Well, if you disagree with this, if you want to ask these questions, it’s cos you didn’t agree with Brexit,” and to do justice to the people of Northern Ireland.
The Chair
Before I call the Minister to respond, the hon. Lady prayed in aid the Schleswig-Holstein affair. Without interfering in the politics of the debate, I think that a more appropriate comparison might be Zollverein in Germany or Risorgimento in Italy, which were all about the assertion of the rights of nation states.
Ms Ghani
This is turning into a very interesting morning indeed, Chairman.
I rise to resist new clause 8. This new clause seeks to set conditions on the commencement of clauses 3, 4 and 5 of the Bill. I will explain to the right hon. Member for Ellesmere Port and Neston why we are making the changes in these clauses.
Each clause is vital to this Government’s programme to reform retained EU law. That there are still circumstances where retained EU law takes precedence over UK law is not consistent with our status as an independent nation. The principle of EU supremacy must be ended without delay. These amendments would add further delay by requiring the Government to write reports on items to which we have already committed. As set out already, the Government have committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, which includes maintaining the UK’s obligations under the trade and co-operation agreement or the Northern Ireland protocol. We will come on to consider an amendment that will allow us to spend more time discussing that issue.
This Bill will not lead to legal uncertainty—to have perfect legal certainty would mean that we would forever keep the same laws. Our approach is to improve accessibility and legal clarity by codifying, where necessary, rights and principles expressly into domestic statute.
With regard to the delegated powers in the Bill, the Government are committed to ensuring robust scrutiny for the secondary legislation made under these powers while ensuring the most effective use of Parliamentary time; I believe, Chairman, that we spent many hours discussing this issue just on Tuesday. This means that legislation made using the delegated powers in the Bill will be subject to either the negative or draft affirmative procedure, depending on the legislation that is being amended and the power used. A sifting procedure will also apply to regulations to be made under the power to restate, which affords additional scrutiny of the use of power.
Clause 4 ends the principle of supremacy of retained EU law in so far as it applies to pre-2021 legislation. The clause establishes a new priority rule, which ensures domestic legislation prevails over retained direct EU legislation where there is a conflict. Thanks to the clause, an Act of Parliament will once again be the foremost law in the land. Clause 5 ensures general principles of EU law will no longer be part of the UK statute book from the end of 2023. Clause 6 establishes that after the end of 2023 all retained EU law preserved from the sunset provisions will be known as “assimilated law”.
In response to some of the questions raised, I put on the record once again that the rulebook does not seek to remove rights. In most instances, those rights already operate and are available in domestic legislation. The rulebook contains provisions to enable the UK Government and the devolved Administrations to safeguard the rights and protections of citizens of the United Kingdom. The Bill includes a restatement power so that Departments can codify rights into domestic legislation.
On Tuesday, we spoke at length about scrutiny, the sifting process and the role that Parliament will play, so I am not sure what further response I can make today. That programme has been made clear. The Government recognise Parliament’s significant role in scrutinising statutory instruments to date and are committed to ensure appropriate scrutiny of any secondary legislation made under the Bill’s delegated powers.
Changes in the law can give rise to litigation—that is normal—but we would never change the law if people wanted no change whatsoever. The risk will be mitigated in areas where Departments use the Bill’s powers to maintain the effect of our current law, if necessary, for desired policy outcomes. In other cases, proactive management of the removal of retained EU law will allow a controlled and positive introduction of a new legal regime that seeks to mitigate any risks posed by increases in litigation. For instance, the Bill contains powers allowing the Government to retain the current legislative hierarchy between specified pieces of legislation. The effects of repealing supremacy will only be considered relevant to matters arising after the enactment of policy. The change is not retrospective, and cases that have already been concluded will not reopen. Upon finding that pre-2021 domestic law is incompatible with retained EU law, courts may place conditions in the incompatibility order to mitigate the effect of that finding.
Justin Madders
I did posit in my opening remarks the principles of EU law that will be jettisoned. In the example of legal certainty and equal treatment, does the Minister consider that those principles should no longer be part of UK law?
Ms Ghani
That assumes that we would not be treating people equally and fairly, and that is not the case when we legislate in the UK. I do not buy the idea that without EU law we are incapable of governing fairly in the UK. We are all elected to Parliament to represent our constituents, and we want to go home and tell our constituents, regardless of who they are and where they are from, that we are legislating fairly for everybody.
Why are we removing the principle of EU supremacy? That principle means that pre-2021 domestic law must give way to some pieces of retained EU law when the two conflict. That ensured legal continuity at the end of the transition period, but it is constitutionally anomalous and inappropriate, as some domestic laws, including Acts of Parliament, are subordinate to some pieces of retained law. That is the nub of the issue. We either accept the supremacy of the EU or accept the supremacy of this place. We can go round and round, but only one can prevail, and the Government believe that this Parliament should be supreme.
On the protection of fundamental rights and the equality principle, the principle of fundamental rights is generally not the exclusive preserve of the EU. We are proud of the history of the UK legal systems in which common law principles and legislation are well established to protect fundamental rights. For example, the principle of equality before the law is rooted deeply in British law. It was in 1215 that Magna Carta first acknowledged that British people had legal rights and that laws could apply to kings and queens too. The Equality Act 2010 has, to date, brought together more than 116 pieces of legislation into a single Act—a streamlined legal framework to protect the rights of individuals and to advance equality of opportunity for all. There is no equivalent to that Act in EU law, which shows how important it is that we are able to express principles such as equality before the law in a UK statute rather than relying on principles of EU law.
Mr David Jones (Clwyd West) (Con)
Does my hon. Friend not agree that a particular strength of our domestic legal system is the principle of stare decisis, whereby there is a strict rule that cases are followed in terms of precedent, which does not apply in the case of EU law?
Justin Madders
I will first address the intervention of the right hon. Member for Clwyd West. The point of clause 4 is that it removes the ability of the courts to refer to precedents from any decisions that have been taken in accordance with EU law, so it is worrying that the right hon. Member makes such comments.
The Minister said that we must decide whether we accept the supremacy of Parliament. We absolutely do, which is why so many of the amendments that we have tabled are about giving Parliament back control, not handing power to Ministers or, in the case of this clause, handing power to lawyers and judges to decide how our law moves forward.
I thank the Minister for promoting me to a right hon. Member—that was very kind of her. She also said that new clause 8 would delay matters. It will not. If the Government are on top of things, which I would like to think they were, they should be doing this work anyway. They should be doing this analysis in a way that enables Parliament to scrutinise the effect of the Bill.
Stella Creasy
Does my hon. Friend recognise that the Minister did not utter the words “Northern Ireland”, and did not at all address the question of how supremacy will be resolved in Northern Ireland, which follows both EU and UK legislation? I see that she is being given a note, so perhaps she can do us the courtesy of responding to that question.
The Chair
The Minister might care to intervene on the hon. Member who is speaking. That does not require a point of order.
Justin Madders
We will be returning to Northern Ireland, as the Minister says. She said that the Bill will not add legal uncertainty. I am afraid that that is exactly what it will do, and it is exactly what the bulk of evidence from every legal representative who has contacted the Committee shows. By abolishing principles that have been in formation for half a century, we will be in a new era and will have to develop new legal principles. That can only create uncertainty.
It is worth reflecting on the letter to which I referred earlier, which is reported in the Financial Times today. It was sent by about a dozen organisations, including the Trades Union Congress and the Chartered Institute of Personnel and Development, that have a huge interest in ensuring that the law is fair and certain. The letter warns that the Bill
“would upend ‘decades-worth of case law’ and create ‘a huge risk of poor or potentially detrimental law entering the statute book’”.
We should be listening to these people; they know what they are talking about. They have looked at the effect of the Bill and believe it will not do what some think it will. It will not be a rerun of 2019, although the Conservatives would like us to go back to 2019, because they were ahead in the polls then. We have left the EU. This legislation is about how we move forward, but I am afraid that there has been a complete failure to address the consequences of its provisions. We will be coming back to the issue for years to come, because there has been a shocking lack of forethought about the Bill’s implications. I will press new clause 8 to a vote.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clauses 5 and 6 ordered to stand part of the Bill.
Clause 7
Role of courts
Alex Sobel (Leeds North West) (Lab/Co-op)
I beg to move amendment 79, in clause 7, page 4, line 32, at end insert—
“(d) the undesirability of disturbing settled understandings of the law, on the basis of which individuals and businesses may have made decisions of importance to them;
(e) the importance of legal certainty, clarity and predictability; and
(f) the principle that significant changes in the law should be made by Parliament (or, as the case may be, the relevant devolved legislature).”
This amendment adds further conditions for higher courts to regard when deciding to diverge from retained EU case law.
I will not speak for as long as I did on Tuesday, when I recited many different chemicals and species. I will also disappoint my hon. Friend the Member for Walthamstow by not mentioning killer shrimp. My contributions from now on will be pointed, seeking clarity from the Minister.
Through amendment 79, for which we are indebted to the Bar Council, we seek to expand clause 7 to make clear the important legal and constitutional principles that will be taken into account by the courts. The amendment directs higher courts, when deciding whether to depart from retained EU case law, to consider the well-established and, we hope, uncontroversial principles of legal certainty and regulatory stability. It would be helpful if the Minister could say whether she and the Government accept those legal principles and, if so, whether she agrees that higher courts should have regard to them when deciding whether to depart from retained EU law.
The amendment aims to safeguard the important constitutional principle that a significant change to the law, including a change to established case law, should be made by Parliament or the relevant devolved legislature. Again, does the Minister accept that fundamental constitutional principle and, if so, that it should guide the courts’ decisions under clause 7? She may not be in a position to accept the amendment, but I hope that she can make a simple and straightforward statement that she and the Government agree that the three legal constitutional principles set out in it must be maintained and respected by the courts.
Ms Ghani
I rise to resist amendment 79, which puts in place too high a bar for UK courts to depart from retained case law, including judgments made and influenced by the EU courts. Clause 7 will free our courts to develop case law on retained EU law that remains without being unnecessarily constrained by the past judgments of these new foreign courts. The clause introduces a new test for higher courts to apply when considering departure from retained EU case law. The test gives higher courts greater clarity on the factors to consider, and greater freedom to decide when it is appropriate to depart from retained EU case law. The amendment, however, would reinforce the excessive influence of the European courts and judgments on our domestic courts, and limit judges’ ability to decide to depart from retained EU case law, as should be their right and responsibility. I therefore ask the hon. Gentleman to withdraw the amendment.
Alex Sobel
We will not push the amendment to a vote, but the Minister did not give us sufficient clarification. I am sure that when we progress we will continue to hear the opinions of other bodies in relation to retained case law. That is really important as the Bill progresses through the House and into the other place.
Stella Creasy
The Government might not listen to Opposition Members, but they might listen to the Office for Environmental Protection, which, after all, they set up. It said:
“In making it easier for courts to depart from environmental retained case law, the Bill is likely to lead to uncertainty as it will be unclear whether long-established precedents will continue to be followed. This could result in unnecessary, costly legal proceedings. Consideration should also be given to whether this could also result in a reduction in environmental protection (where protections have been established through case law) and how this will be addressed.”
Does my hon. Friend agree that those critical points need to be addressed?
Alex Sobel
Absolutely. Agencies such as the Environment Agency, Natural England and the Office for Environmental Protection use these regulations and case law all the time. They have evolved over time in many areas—water, nature and so on. There is now a real danger to those provisions, so I hope the Minister will consult with her colleagues in the Department for Environment, Food and Rural Affairs and ensure we are not unable to undertake regulatory and enforcement action on the environment.
Alex Sobel
Having seen the opinions of different agencies—my hon. Friend the Member for Walthamstow mentioned the Office for Environmental Protection—and heard the evidence of the Bar Council, I am not sure that is the case.
Mr Jones
I hesitate to intervene again, but it is specifically provided for in clause 7(2) that, although precedent may not apply in the case of European decisions, it does in the case of domestic decisions. Of course, European courts are not bound by precedent, so we have a significant safeguard in clause 7(2) against the risks that the hon. Gentleman mentions.
Alex Sobel
I know from my brief in the shadow DEFRA team that some very important enforcement actions are extrapolated from European case law, because we were under the aegis of the European Court of Justice for a very long time. It is important that we are mindful of that.
Stella Creasy
Obviously the Bill also enshrines the idea that protections can only be watered down, because it says that nothing can be brought in that increases burdens. Of course, courts are free to set new precedents, but when this Bill is enacted only precedents that reduce protection can be set. That is why the Office for Environmental Protection is concerned.
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.
Peter Grant (Glenrothes) (SNP)
It is clearly not for me to comment on the best way for a Department for domestic English affairs to rule on what English courts and English Law Officers can do and must do. Equally, it is not for anybody here, including those of us from Scotland, to change the rules on what the Law Officers and courts of Scotland can do and must do—that is exclusively for the Parliament of Scotland.
Given the importance that the Prime Minister and the Secretary of State for Scotland repeatedly attached yesterday to the need for consensus when considering any change to the relationship between our two nations, will the Minister confirm that the consensus principle works in both directions, and that no changes will be made to the powers and responsibilities of Scotland’s Law Officers or Scotland’s courts without the explicit consent of the Scottish Government?
Ms Ghani
As I just said, 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. For those reasons, I ask the hon. Member for Argyll and Bute to withdraw the amendments.
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.
Ms Ghani
I beg to move amendment 5, in clause 7, page 9, leave out lines 5 and 6 and insert—
“(2) The following are entitled to notice of the proceedings—
(a) each UK law officer;
(b) the Lord Advocate;
(c) the Counsel General for Wales;
(d) the Attorney General for Northern Ireland.”
This amendment and Amendment 6 leave out the definition of “devolved law officer” from subsection (5) of new section 6C of EUWA and instead mention each devolved law officer in subsection (2) of that section.
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.
Stella Creasy
It would be incredibly helpful if the Minister could clarify what she said about bespoke arrangements for Northern Ireland. Under article 2 of the protocol we have an obligation to uphold the institutions, including the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. Is she therefore saying that there are instances in which EU law will be retained because of the Northern Ireland protocol? Is she committing to upholding EU law where those institutions propose that it is part of upholding the Good Friday agreement? She said they were bespoke arrangements. Can she clarify that? It is quite an important point.
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)
Thursday 24th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 24 November 2022 - (24 Nov 2022)
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 6 - Question accordingly agreed to.
The Minister for Industry and Investment Security (Ms Nusrat Ghani)
It is a privilege to spend the afternoon with you in the Chair again, Sir George.
In certain areas of legislation, for example on data protection, it is likely necessary to specify that certain effects of the existing legislative hierarchy are maintained, to ensure the continuation of the legal regime. The clause therefore establishes a new power to maintain intended policy outcomes by specifying the legislative hierarchy between specific provisions of domestic legislation and provisions of retained direct EU legislation or assimilated direct legislation to maintain the current policy effect.
Justin Madders (Ellesmere Port and Neston) (Lab)
I have only a couple of questions. As I said, the Opposition consider the clause to be sensible, but will the Minister outline whether any assessment has been done as to what circumstances it is likely to be used in? What steps will the Government take to preserve the intent of the measure after 23 June 2026, when regulations made under the Bill will expire?
Ms Ghani
The hon. Gentleman asked about assessment. The REUL reform programme has been under way for more than a year. Departments have been engaged as to the effect of removing EU law principles—such as that the EU is the only one that can create principles and legislation—which is what we are working on. The work will continue to take place.
On the evidence about changing interpretation rules under clause 4, in specific cases—data protection regulation and competition law—removing the principles of interpretation as set out in the EU (Withdrawal) Act 2018 will cause unintended policy consequences as a result of the way that the legislation has been written. The compatibility power will ensure that the relationships between individual pieces of domestic legislation going forward are maintained. We intend that to ensure that our domestic law operates as the UK Government want it to. Each Department will of course be responsible for REUL elements within their portfolio.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9
Incompatibility orders
Alex Sobel (Leeds North West) (Lab/Co-op)
I beg to move amendment 80, in clause 9, page 10, line 36, at end insert—
“(4A) Within 28 days of the making of an incompatibility order, a Minister of the Crown must, by written statement, set out the Government’s view on the incompatibility. The statement must include consideration of the impact the incompatibility order has on rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare, and whether the Government intends to produce regulations to revoke, amend or clarify the law in light of the order.”
This amendment requires ministers to set out, through a ministerial statement, their position on an incompatibility order that includes a consideration of the impact it will have on the rights of people.
Alex Sobel
The amendment would require Ministers to report to Parliament with a written statement in the event that a court made an order to declare that EU law and domestic law are incompatible. As we explained in relation to previous amendments, the Bill could impact on many fundamental rights of citizens in multiple areas of daily life. It could also interfere with important existing environmental protections, which I have explained at length in previous amendments.
The clause might have the effect of a court setting aside laws that guarantee such rights and protections, without giving Parliament any opportunity to ensure they can continue in place. In the interests of transparency and proper scrutiny, the amendment is designed to ensure that Parliament is alerted if that happens, enabling us to scrutinise the court decision and to consider whether we should exercise our rights to legislate to ensure that there is no confusion about Parliament’s intentions. It is not my intention to press this amendment to a vote, but I would like the Minister to explain how we can ensure proper scrutiny when such clashes inevitably occur.
Ms Ghani
The clause gives the judiciary powers in connection with the ending of the supremacy of EU law. It requires a court or tribunal to issue an incompatibility order where retained direct EU legislation cannot be read consistently with other pieces of domestic legislation. It gives the judiciary broad discretion to adapt the order to the case before it. That includes granting remedies to the effect of the incompatibility.
Courts generally have wide discretion to grant remedies that they may grant in a given case, and the clause is consistent with that principle. Where the court considers it relevant, the order could set out the effect of the incompatible provision in that particular case, delay the coming into force of the order, or remove or limit the effect of the operation of the relevant provision in other ways before the incompatibility order comes into force.
The clause is a matter of judicial process. It grants powers to the courts but does not change any rights or protections in and of themselves, which is a matter for Parliament in the scrutiny of this Bill. We do not need to create a new scrutiny process for incompatibility orders. A process of “declaration of incompatibility”, similar to that set out in clause 9, exists under the Human Rights Act 1998, and no new scrutiny procedure, such as the one proposed by this amendment, has been deemed necessary. Similar court orders could also be made under the European Communities Act 1972, where conflicts arose—again, with no such scrutiny procedure.
Once again, the hon. Member for Leeds North West raised environmental regulations. To repeat myself, we will not weaken environmental protections. The UK is a world leader in environmental protection and, in reviewing our retained EU law, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. We are committed to delivering our legally binding target of halting nature’s decline by 2030. I therefore ask the hon. Gentleman to withdraw the amendment.
Alex Sobel
I take on board what the Minister says, although that last comment on the environment is slightly galling considering that on 31 October the Government were meant to bring forward, under their own domestic post-Brexit legislation—the Environment Act 2021—targets on a whole range of areas, including air quality and water quality. It is now 24 November and we still have no targets. If I am a little concerned about the Government’s performance here, she should not be surprised, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 ordered to stand part of the Bill.
Clause 10
Scope of powers
Peter Grant (Glenrothes) (SNP)
I beg to move amendment 50, in clause 10, page 11, line 12, leave out paragraph (b) and insert—
“(b) for sub-paragraph (2), substitute—
(2) Power may only be exercised by virtue of sub-paragraph (1) if—
(a) a written statement explaining the modification has been published by the Secretary of State,
(b) the Secretary of State has made an oral statement on the modification to both Houses of Parliament, and
(c) the Secretary of State has published an assessment of the impact of the modification.”
The intention of the amendment is to do what Brexit was supposed to do: restore some parliamentary oversight to the way in which the Government make and change legislation in this place. The amendment is pretty self-explanatory. It is not ideal that Ministers are giving extensive powers to chop and change laws as they see fit. If, in exceptional circumstances, it is necessary for them to have those powers, the very least Parliament should expect is that Ministers will be held to account and will explain to Parliament—ideally beforehand, but certainly afterwards—why they have done what they have done and what the impact has been.
If the Minister genuinely believes in improving accountability in this place, she will accept the amendment. In saying that, it is clear that all Ministers—nothing against this Minister—in all Public Bill Committees are under instruction not to accept anything from the Opposition. If we moved an amendment that said, “Today’s Thursday”, the Government would keep talking until it was Friday and then vote it down.
Ms Ghani
I recognise that none of that was directed at me personally, but rather collectively at all Ministers. I beg hon. Members to reject the amendment. The Government recognise the significant role that Parliament has played in scrutinising instruments to date and we are committed to ensuring the appropriate scrutiny of any secondary legislation made under existing delegated powers. We must end the restriction that some existing powers may only be used to amend retained direct principal EU legislation or rights under section 4 of the European Union (Withdrawal) Act 2018 if they are also capable of amending domestic primary legislation.
The hon. Member for Glenrothes suggests that a written ministerial statement made by a Secretary of State is accompanied by an oral statement when an existing power is exercised. I remind him that all statutory instruments that are subject to parliamentary procedure must be accompanied by an explanatory memorandum. These memorandums provide Parliament with the information and explanations required. When powers are exercised by virtue of paragraph 3(1) to schedule 8, explanatory memorandums would be laid as appropriate. Any statutory instrument that reforms retained direct EU legislation made under existing delegated powers will be subject to the proper processes for impact assessments. However, a blanket requirement for impact assessments is not appropriate as some reforms could fall below the de minimis threshold set out in the “Better regulation framework” guidance.
Now that we have left the EU, it is only appropriate for retained direct EU legislation that was not scrutinised or approved by Parliament to be treated in the same way as domestic secondary legislation, which is amendable by existing delegated powers that this Parliament has approved. For those reasons, I ask the hon. Member to withdraw his amendment.
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.]
Ms Ghani
I ask hon. Members to reject the amendment. Clause 10 ensures that appropriate parliamentary scrutiny is applied to the use of existing delegated powers when they are used to amend retained direct EU legislation or section 4 of the European Union (Withdrawal) Act 2018 rights. It is this Government’s view that the appropriate procedure applied when amending retained direct EU legislation should be the same as the procedure applied to domestic secondary legislation. Any additional procedure, such as that proposed by the hon. Member, would be disproportionate given the type of legislation retained direct EU legislation is composed of.
It would be wholly inappropriate if, for example, updating individual provisions adding cheese and honey to the simplified active substance list required the approval of both Houses of Parliament, the Scottish Parliament and the Welsh Parliament. Making it easier to use pre-existing powers to amend assimilated retained direct EU legislation, while ensuring it receives the most suitable level of parliamentary scrutiny, will ensure our regulations can be kept up to date, supporting growth across the whole UK.
Peter Grant
The Minister referred to domestic secondary legislation. Does she not understand that if a piece of secondary legislation relates exclusively to, for example, a devolved power of Senedd Cymru, as far as this place is concerned that is not domestic law—it is somebody else’s domestic law—and this Parliament should keep out of it?
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.
Ms Ghani
Hon. Members are already aware that clause 10 modifies powers contained in other statutes that can be exercised to make secondary legislation amending former directly effective EU law. Schedule 1 makes related amendments with similar effect to alter the procedural requirements in relation to other powers to amend retained direct principal EU legislation in line with the changes made in clause 10 to schedule 8 of the European Union (Withdrawal) Act 2018. Schedule 1 also contains amendments that are consequential on the changes to the EU withdrawal Act in clause 10. I commend the clause to the Committee.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 11
Procedural requirements
Justin Madders
I beg to move amendment 81, in clause 11, page 13, line 26, leave out subsections (1) and (2).
This amendment removes the subsections that omit and replace paragraphs 13, 14, and 15 from the European Withdrawal Act 2018, and thereby leaves intact the existing scrutiny procedure for instruments which amend or revoke subordinate legislation made under s2(2) of the ECA 1972.
Good afternoon, Sir George. In essence, the amendment would remove the subsections that omit and replace paragraphs 13, 14 and 15 of schedule 8 to the EU withdrawal Act and leave intact the scrutiny procedure inserted for instruments that amend or revoke subordinate legislation made under the European Communities Act 1972.
If Ministers wish to revoke retained EU law, they are currently subject to what I would consider to be an appropriate level of parliamentary scrutiny, with mandatory explanatory statements, mandatory periods of prior parliamentary scrutiny and the mandatory use of draft affirmative procedures. Those enhanced provisions were inserted during the passage of the EU withdrawal Act in 2018 because Parliament considered such enhanced scrutiny necessary and proportionate, given the vast and varied nature of retained EU law and the potential impact of changes that we have debated at length over the past few days. We are talking about important environmental rights, workers’ rights and consumer rights. As we can see from the submissions made to the Committee, it appears that social media platforms are also at risk of being inadvertently switched off as a result of the Bill. We therefore think that this enhanced scrutiny is required.
I gather that the Government’s response as to why the requirements from the EU withdrawal Act can be watered down is that they believe those procedures have brought no tangible benefit. However, it is difficult to see what the rationale is for reducing the level of scrutiny when Parliament as a whole obviously thought that they were important enough to place in the Act just a few years ago. Could the Minister set out why she considers that a lower level is now appropriate?
I hear what the Hansard Society said about these procedures not having been used extensively thus far, but we are, of course, talking about something of an entirely different order to what we have seen to date. The procedures have mainly been used to maintain the status quo, but we are on a different and possibly uncertain trajectory now. It is clear from the Government’s refusal to accept any of our amendments to protect any pieces of regulation that there are going to be dramatic changes as a result of the Bill. Removing the requirement for the affirmative procedure will, once again, see a significant erosion of Parliament’s ability to scrutinise and hold Ministers to account when they amend the law. Why should parliamentarians not have greater involvement in the process set out in the Bill?
I have said this a number of times, but we really should aim to do better in the Bill. We should ensure that we are confident that, when changes are made, both Houses are able to scrutinise Ministers’ decisions. We will probably be presented, yet again, with arguments as to why we do not need such levels of scrutiny because these laws were foisted on us against our will in the first place, but that is essentially a way of saying that two wrongs make a right. I do not accept that. As I explained extensively on Tuesday, there has been a great deal of involvement on the part of UK politicians and representatives in the development of EU laws. I just do not accept the characterisation of these laws as having been foisted on us as correct.
I am not going to rehash all the arguments at the length I did the other day. I merely reaffirm that scrutiny is important, and when we, as parliamentarians, are faced with such a ministerial power grab, we should be concerned about trying to restrain it in some way. That is what this amendment seeks to do.
Stella Creasy
Apologies, Sir George, I was waiting for an affirmative action—in the same way I am waiting for an affirmative version of scrutiny from this legislation.
I rise to support amendment 81 because it is the nub of the issue, isn’t it? This is exactly what taking back control was supposed to be all about. It was about giving this place the powers that it was claimed had been cruelly taken from us by being part of the European Union. It is a while now, if we are honest, since we had the Brexit debates, but I do not recall a single leaflet that said, “Taking back control to Downing Street. Taking back control to a civil service office that would advise a Minister to pass an SI.” Yet, that is exactly what this piece of legislation will do on thousands and thousands of laws that our constituents care about because they have depended on them existing for generations.
I totally understand the challenge for Government MPs. Whether they were elected in 2019 or before, their experience of this Government has been of stability—of confidence in every decision and every piece of legislation that has been introduced. So they have never felt the need to question things or to have a mechanism whereby they could have a voice. What I often hear them loudly saying is, “In Downing Street we trust”—
Stella Creasy
Whoever is in it at any point—this week, next week, come what may.
The point is that parliamentary scrutiny is not a bad thing. Those of us who are democrats think it is quite a good and healthy thing.
Paul Blomfield (Sheffield Central) (Lab)
My hon. Friend is making a powerful point. Does she recognise the way this procedure contrasts with the way these laws were originally made? Obviously, under the co-decision making in the European Union, laws are not made only by the Commission, which is characterised as the bureaucrats. They can be passed only with the active engagement and approval of the Council of Ministers, consisting of elected representatives from each member state, and the European Parliament, consisting of directly elected Members. Does it not appear that, when Government Members talk about taking back control, the democratic deficit that they once spoke of, pointing their fingers at Brussels, will now be pointed out here?
Stella Creasy
My hon. Friend has alighted on the fundamental challenge here. Obviously, it is a case of Council of Ministers—bad; individual Minister—no problem whatever. That seems to be what this Bill is doing and the process that MPs are setting up. As somebody who is hopeful that—not too long from now—Labour Members will be sitting on the Government side of this room, I still think it is a good idea for Back-Bench MPs to be able to raise questions, to table amendments and to have a voice. I thought taking back control was very much about saying that we did not trust Ministers when they joined a Council, but we did trust them when they had to face parliamentary scrutiny and to be in front of MPs who could ask them questions—difficult or otherwise, approved by the Whips or not. I know that my Whip, my hon. Friend the Member for North Tyneside, will catch my eye at this point. Amendment 81 would restore the scrutiny powers that we all agreed to in the EU withdrawal Act in the end and that were part of a process of giving people in this place more opportunity to influence what would happen next.
There is a practical challenge here. If we have all accepted that we do not even know which laws will be covered, because the dashboard will not be updated until next year, will all of us on this Committee be completely confident when a constituent comes to us and says, “You did X, but your Parliament did Y. Tell me the reason for that. Did you vote for that? Where were you when laws were passed that led to Facebook stopping working in the UK? Where were you when laws were passed that led to pension protections being deleted? What did you say? Did you vote for it? How did you represent me in that process?”—and answer there comes none, because the powers were entirely with Ministers, and the power of scrutiny, which MPs in this place could have saved and given to colleagues, was abandoned?
Peter Grant
I stand to speak in favour of the amendment, although, at best, all it seeks to do is take an entirely unacceptable clause and make it slightly less unacceptable. Clause 11 is about a Henry VIII power; it is about removing protections for this House that were, ironically, forced on the Government by Members of the other House. I am not a great fan of unelected legislatures anywhere—I certainly do not want my country even partly ruled by one—but I have to say to Conservative Members that when the House of Lords is keener on protecting the rights of this House than Government Back-Bench and Front-Bench Members are, the Government really do need to look at themselves in the mirror and ask themselves: are we a democratic Government or are we not?
I support the limited improvements to the clause, but if the amendment falls, I will seek to divide the Committee to exclude clause 11 in its entirety.
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.
Justin Madders
I think the irony is noted: the Minister says that everyone has their opportunity to speak and then does not give way to interventions.
Dr Luke Evans (Bosworth) (Con)
On a point of order, Sir George. I think it is fair to say that the Minister has given way numerous times. It is a little churlish to suggest that she has not, and I would like Hansard to observe that.
The Chair
As the hon. Gentleman well knows, it is not up to me to decide whether a Minister, or anyone else, should give way during a speech. So, strictly speaking, it is not a point of order, but the hon. Gentleman has made his point.
Justin Madders
The convention is of course that Ministers give way when asked to in Bill Committee, because that is the point of a Bill Committee—that we have the opportunity to scrutinise legislation and question the Minister on its intent. I think the record will show that that has not been possible on every occasion.
That is why this amendment is so important, because the Government are obsessed with keeping power for themselves. The idea that the decision to leave the EU was about taking back control was not about the people of this country; it was about Ministers in Parliament making decisions that they do not have to address the elected representatives of this country on and that they do not have to justify. They are hiding away from proper accountability. That is not what taking back control is about.
My hon. Friend the Member for Walthamstow said it is clear that Government Members have no scintilla of doubt about the intentions of the Government and are confident that nothing untoward will happen. Well, if the last scintilla of doubt has ridden out of town for them, it is certainly very much in the high street for us, because we are concerned about the Government’s intentions. We have plenty of reasons to be concerned that they will not maintain laws that we want maintained and that our constituents expect to see maintained. So we want to push this amendment to a vote.
Stella Creasy
Does my hon. Friend agree that it is quite worrying that the Minister is conflating scrutiny of the Bill, and Opposition Members raising concerns about the process set out in it, with scrutiny of the subsequent statutory instruments that will be laid by Ministers under the Bill to address the 4,000 pieces of legislation that will be deleted by it? The Committee is scrutinising the Bill itself, not its impact. That the two are being conflated—the idea being that no further scrutiny should be required—is troubling. We do not know what impact the Bill will have, only the powers that it asks for. Does my hon. Friend agree that separating out those two things is important in taking back control?
Justin Madders
I agree, and I hope that by the time the Bill reaches its conclusion we have clearer answers on how Parliament will be able to properly scrutinise many of the powers that the Government are awarding themselves in the Bill. I will press the amendment to a vote.
Question put, That the amendment be made.
Peter Grant
I oppose the inclusion of clause 11, as I indicated earlier. I will give the Minister credit and assume that she just got confused. She has attempted to justify removing the requirement for full parliamentary consideration of a Bill to revoke European legislation and turning it all into secondary legislation. Not content with insisting on a sunset clause that means that if that secondary legislation does not get approved, nothing gets approved, she then attempted to justify removing the requirement to use the affirmative process for the vast majority of that legislation and instead use the negative process, which we all know is an even weaker form of parliamentary scrutiny. She completely missed the point. In fact, I think she confused the status of a Public Bill Committee such as this with that of a Delegated Legislation Committee, which she thinks is an adequate way for some of these important regulations to be considered.
The reason this Public Bill Committee exists is that the legislation was approved—not unanimously, by any means—by the House of Commons. The only requirement that anybody had to speak and vote on Second Reading was that the people of their constituency chose them to represent them in Parliament. Every member of the Committee is here because our party Whips chose to put us here. We were not elected to it by our people. We had to be elected to be in the Chamber of the House of Commons, but it is the Whips who decided who got to serve on this Committee. As my hon. Friend the Member for Argyll and Bute has said, Northern Ireland Members never get the opportunity to have their voice heard on a Delegated Legislation Committee, though they do have a voice on Second and Third Reading. There is also no automatic right for Wales to be represented. Wales is represented in this place by four political parties, but there is only one voice from Wales on this Committee. That did not have to happen; the Whips could easily have put someone else on it instead.
Dr Evans
If Scotland were to be independent and part of the EU, the European Council uses majority voting so members have to like or lump whatever they are given at the end of the vote. At the end of the day, someone has to make a decision and Government have to decide. How would that fit if Scotland were independent?
Peter Grant
I cannot speak about what decisions the Scottish Parliament will take after we are independent, but I look forward to seeing that day before any of us are very much older. I am confident that it is a modern, democratic Parliament with much improved scrutiny procedures. For example, in the Scottish Parliament it would have been impossible for us to have two changes of Prime Minister without the explicit approval of the Parliament. Nobody can become a Minister of the Scottish Government without being approved by the Scottish Parliament. There is much greater parliamentary accountability for the Executive than there is ever going to be here.
My confident expectation is that when an independent Scotland goes back into the European Union, the Scottish Parliament will have a much greater role in scrutinising the actions of our Ministers, acting on our behalf, at the European Council than this Parliament has ever had. As I have said to the Committee before, the problem with lack of accountability and scrutiny of European legislation is not because the European Union’s processes are flawed, but because parliamentary accountability in this place is fundamentally flawed.
If I intended to be part of this establishment for much longer, I would be attempting to improve its processes in order to bring it into line with proper democratic Parliaments, such as the one in Scotland. Given that neither I nor any of my colleagues from Scotland are likely to be here for very much longer, I will have to leave it to those who remain to sort out the mess of a Parliament that they have created.
Ms Ghani
Our objective is not to remove power from Parliament. Our objective is to ensure that amendments or revocations made to subordinate legislation made under other existing powers receive the most appropriate level of parliamentary scrutiny. Fundamentally, people need to accept the Brexit vote and appreciate that we have to have sovereignty here. I do not think we are going to win that argument—we are too far apart.
When the European Union (Withdrawal Agreement) Act 2020 was agreed, additional parliamentary scrutiny requirements were agreed in relation to the amendment or revocation of secondary legislation made under section 2(2) of the European Communities Act 1972. It is clearly inappropriate that legislation created solely to implement our obligations as a member of the EU enjoys that privileged status. We therefore seek to remove those requirements. This reflects the main purpose of the Bill—removing the precedence given in UK law to EU-derived law—which is no longer fit for purpose now that the UK has left the EU. I recommend that the clause stand part of the Bill.
Question put, That the clause stand part of the Bill.
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.
Ms Ghani
The overarching aim of the Bill is to define retained EU law as a legal category, and the power to restate such law must be viewed with that in mind. The hon. Member for Argyll and Bute said that he wants to help the process, even though he is fundamentally trying to block it. The power to restate has been designed to allow the Government to restate domestic law where it is considered appropriate for the UK in a post-Brexit setting. However, the resulting legislation will no longer be retained EU law, as subsection (3) makes clear. The restated legislation will be ordinary domestic UK legislation that is subject to traditional domestic rules of interpretation. In particular, the supremacy of EU law will no longer apply, and section 4 rights and the general principles of EU law will cease to be read into the legislation.
Ms Ghani
If I can make a bit of progress, I will give way later.
The power will enable the Government to clarify, consolidate, codify and restate REUL to preserve the effect of the current law, while removing it from the category of REUL. It will be used selectively and is not a way to simply continue the broad concepts of EU law. Retained EU law was never intended to sit on the statute book indefinitely, although I believe that hon. Members wish it did. It is both constitutionally anomalous and politically challenging. Subsection (3) is therefore a crucial part of clause 12, and is necessary to ensure that the Government can deliver on the overarching aims of the Bill.
Peter Grant
Can the Minister explain the difference between restating and amending? At what point does a restatement of a piece of legislation become either an amendment or a completely new piece of legislation? Who will be the arbiter of that? Will the courts decide?
Ms Ghani
I did not hear the end of that question, but each Department will be in charge of the Bills in its portfolio. We have the Brexit opportunities department helping as well. I have already mentioned the processes in place to ensure that scrutiny happens, and how Ministers will work to ensure that we assimilate, amend or update.
Peter Grant
I am sorry if the Minister did not understand my question. I am talking not about the political, democratic scrutiny, but about the legal interpretation of restated legislation, which will fall to the courts. My question is: who decides whether what has been done under clause 12 is simply a restatement of EU retained law or an amendment to law, which requires a different process?
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.
The Chair
With this it will be convenient to discuss the following:
Amendment 83, in clause 14, page 16, line 26, at end insert—
“(3A) A restatement may not be made unless such consultation with relevant stakeholders as the relevant national authority considers appropriate has taken place on whether the conditions set out in subsection (3) are met.”
This amendment ensures that relevant stakeholders are consulted to ensure that the conditions for the exercise of the power to restate set under clause 14(3) are met.
Government amendment 14.
Amendment 56, in clause 14, page 16, line 32, leave out subsection (5).
Government amendment 15.
Amendment 55, in clause 14, page 17, line 2, at end insert—
“(9) Regulations under section 12 or 13 may not be made unless the relevant national authority has consulted all parties that authority considers relevant.”
Clause stand part.
Alex Sobel
Our amendments 82 and 83 require the national authority to consult on a draft text of restatement regulations, and to set out to Parliament or the relevant devolved legislature its reasoning on the choices made when drafting the regulations. I am sure the Minister will want to earnestly reassure us that national authorities are bound to consider those decisions carefully. It follows that she should readily accept that their reasoning should be published.
On consultation, the Bar Council’s written evidence refers to clauses 12 to 15 and schedule 3 granting Ministers enormous power to legislate at will to replace or update retained EU law, without any requirement to consult anyone, on matters of enormous importance to business, consumers, employees and the environment. There is no requirement for any parliamentary vote; there will be only the minimal scrutiny afforded by the affirmative procedure.
Furthermore, Parliament may well be confronted with Hobson’s choice: either agree in full to unsatisfactory replacements for retained EU law, or vote out the whole lot. As a result, as we heard earlier, fundamental rights such as paid bank holidays or environmental protections to stop air or water pollution could simply disappear completely, perhaps through mistake or oversight, with little or no opportunity for public debate.
We agree with the Bar Council that important changes to our law should be made by Parliament after proper consultation, public debate, and scrutiny, not by ministerial fiat. The rushed and uncertain process for replacement or removal of REUL and the deliberate creation of legal uncertainty will seriously damage the UK’s hard-won reputation for regulatory stability, predictability, and competence, on which growth-promoting investment in critical sectors of our economy depend.
The Bar Council points out that the complete absence of any requirement to consult those affected by the exercise or non-exercise of Ministers’ powers under the Bill is incomprehensible, given that we are talking about often complex legislation, and that errors or omissions can have serious adverse consequences for business as well as consumers, workers and others. Businesses can have no confidence that they will have any ability to comment on or influence, or even any prior notice of, legislation that can profoundly affect them—a gap that, in the Bar Council’s view, which we share, would be a serious deterrent to investment.
Stella Creasy
I have a horrible feeling that it is because of something I am about to say. I rise to support amendment 82. To go back to the theme of this afternoon, if we are taking back control, then surely control should rest with this place. That means that this place needs the relevant information and powers to do its job. Amendment 82 would require consultation on any restatement of retained EU law, including on whether it affects rights and protections.
The right hon. Member for Clwyd West will find that amendment 82 finally satisfies his concern that we are all scaremongering. If we are scaremongering, it should not be a big deal for Government to restate and confirm that the laws they are replacing will not change any protections; that will reassure those of us who might otherwise trouble vulnerable people.
Amendment 82 does two things. First, it helps with the reality, which is that no Government—shock, horror!—is perfect. No Government get everything right all the time, so sometimes, with the best will in the world, and the best grace in the world, corrections need to be made. We have all sat on Delegated Legislation Committees to do that.
Consultation on draft regulations will help identify minor issues, unintended consequences and drafting errors before a law comes into force; that ensures that it is better legislation before parliamentary time is committed to it. We agreed on Tuesday that this would take 4,000 hours of parliamentary time—267 days, if we sat 24 hours a day. The Minister looks surprised at that; I hope she has done some maths on how we will pass all these SIs before the deadline in the Bill. It will require some parliamentary time, at least.
Consultation can be incredibly helpful. It can identify quirks, and experts come up with points. We might have strong views on workers’ rights, but SIs will come up regarding standards, and there are experts out there who spend their lives being obsessed with electrical standards. Surely asking them to double-check what we have written down would be good.
Restatements are subject to less scrutiny, because they should not make substantive changes to regulations. That takes me to my second point, and the more substantive—dare I say it, “conspiracy, rather than cock-up”—moment in all this. It would be simple and straightforward for the Government to affirm that there will be no change in protections or rights if they did not intend to use the powers in the Bill to water down workers’ rights; to reduce environmental protections that we all believe are important; or to reduce fundamental consumer protections that resolve knotty problems, such as whether, at this time, when everyone is trying to book a train, we will get compensation from Avanti. We live in hope. Why would the Government not commit to doing that, and reassure us all? All amendment 82 does is hold the Government to the pledges that they are making, and ensure that every single time a piece of legislation is brought before the House, it does what it says on the tin. I have forgotten the name of the company I am thinking of. It is not Dulux; it is the other one—the one that has to do with paving.
Stella Creasy
Ronseal, that’s it; I am showing my age. This should be a Ronseal moment—it does what it says on the tin. I have a horrible feeling that the Minister will reject the amendment. I hope that she recognises that the concern comes in when the Government reject relatively benign proposals, such as the suggestion that they should simply say, “Yep, this legislation is like-for-like; it does not water down protections.”
As we saw on Tuesday, the Government have already started to decide, in private, which pieces of EU retained law they will not continue with, so we know that some things will change. Some legislation will fall, and we understand that; the whole point of leaving the European Union was to have the power to reject things. Knowing what will or will not be taken out is surely the epitome of taking back control. Each of us should be able, in our constituency surgeries, when we are inevitably asked about a piece of legislation and its impact, to say, “Ah, yes. Well, that is where this decision came from, and this is what we were told at the time.” Parliamentary scrutiny, done well—even done at all—is taking back control, so let us see some of it in this Bill, for a change.
Peter Grant
I rise to speak to amendments 55 and 56 in my name and that of my hon. Friend the Member for Argyll and Bute. This is an attempt to, once again, restrict the Executive’s power grab and to limit, to some small extent, the extent to which the Government are taking powers away from this Parliament and for themselves. It is an attempt to limit the use of Henry VIII powers.
First, the amendments seek to remove subsection (5) to clause 14. I make no apology for raising this point every time I see such a provision in any legislation. It is a bad idea to allow a Minister of the Crown to change any Act of Parliament that they fancy without having to present a Bill in the House of Commons that amends it. The whole House should need to approve the change, after giving it appropriate consideration, and after every single Member has had a chance to comment on it. Subsection (5) essentially seeks to do that. Interestingly, its text is now fairly standard in Bills featuring the Henry VIII powers that the Government are putting through. At some point, the Government spotted something that worries them. They have discovered a part of an Act of Parliament that they are terrified a Minister could ever change, so they have tabled Government amendment 14 to stop that happening.
Ms Ghani
The Government recognise the importance of ensuring legislation undergoes appropriate scrutiny and consultation, and I will set that out shortly. However, I ask that hon. Members reject amendments 82, 83, 55 and 56.
It is right that we ensure that any amendments to retained EU law or assimilated law receive appropriate scrutiny and are subject to the proper processes for consultation. That is why we have sought to ensure that the Bill contains robust scrutiny mechanisms, including for the powers to restate under clauses 12 and 13. First, the draft affirmative procedure will be applied where the powers to restate are being used to amend primary legislation. Secondly, the sifting procedure will apply to clauses 12 and 13 for the regulations that are proposed to be made under the negative procedure. The sifting procedure largely corresponds with the sifting procedure under the European Union (Withdrawal) Act 2018, and will provide for additional scrutiny of the legislation being made. Parliament can then scrutinise instruments, subject to sifting, and make active decisions regarding the legislation. It is our expectation that Departments will follow the standard procedures regarding consultation during policy development.
On amendment 56, let me be clear that the powers are not capable of restating any REUL or assimilated law that is primary legislation. Work is already ongoing across Whitehall on a REUL statutory instrument programme, which will continue after the Bill’s Royal Assent. The inclusion in the Bill of a consultation requirement for the powers, which is what the amendments seek to achieve, would build further time into the SI programme. That would disempower Departments, hindering their ability to pursue the REUL reform that they judged to be necessary. For the powers to restate in particular, that would delay the opportunity for Departments to use the powers to maintain the existing policy effect of their REUL in cases where that was judged to be necessary, by reproducing certain EU principles of interpretation that will cease to apply after the sunset.
Given that the powers to restate have been designed to enable Departments only to provide for substantially the same policy effect, when that is considered desirable and appropriate for the UK in a post-Brexit setting, the inclusion of a requirement to consult—both on the regulations proposed to be made and the purposes for their use—seems particularly unnecessary. As such, I ask the hon. Member for Leeds North West to withdraw the amendment.
The Government’s simple clarificatory amendments will ensure that the restatement powers in clauses 12 to 14 cannot be used to bring back the EU law concepts—such as the principle of supremacy or general principles—that the Bill aims to sunset, in general terms.
Alex Sobel
The Minister talked about both an appropriate level of scrutiny and robust scrutiny, but then went on to talk about sifting. We know that there are upwards of 4,000 regulations. That is exactly the concern we have about how much scrutiny there will be across those regulations. The Minister’s main objection seemed to be that the provision would create too lengthy a procedure for the SI programme. Our point is that it would otherwise be rushed through within a matter of months, until the 2023 sunset date, without the proper scrutiny. That is why amendments 82 and 83, and the SNP amendments 55 and 56, are necessary. I will press amendment 82 to a Division.
Question put, That the amendment be made.
Peter Grant
I had intended to press both to a Division, Sir George, but to save time, and given that the Government Whip already has her great big no vote ready to hang up to make sure that Conservative Back Benchers know what they are supposed to do, there is clearly no point. We know the result already, so to save the Committee time, I will not press either amendment.
The Chair
I am very grateful to the hon. Gentleman. We would have been in a bit of muddle otherwise.
Clause 14, as amended, ordered to stand part of the Bill.
Clause 15
Powers to revoke or replace
Alex Sobel
I beg to move amendment 84, in clause 15, page 17, line 30, at end insert—
“(4A) No regulations may be made under this section unless the conditions set out in section [Conditions on the exercise of powers under section 15 and 16] have been complied with.”
This amendment ensures that the powers to revoke or replace would be subject to restrictions as laid out in NC9.
The Chair
With this it will be convenient to discuss the following:
Amendment 85, in clause 15, page 17, line 31, leave out subsections (5) and (6).
This amendment will remove the restriction on the replacement of EU law that states it must not add to the regulatory burden.
Amendment 94, in clause 15, page 17, line 37, at end insert—
“(6A) No provision may be made under this section unless the relevant national authority considers that the effect of the provision will lead to an increase in levels of environmental protection.
(6B) The relevant national authority must consult its environmental governance body before making any provision under this section.
(6C) The relevant national authority must publish any advice it receives from its environmental governance body, as well as the authority’s response and reasons for any departure from this advice, and lay these documents before the relevant parliament or assembly.
(6D) No provision may be made by the relevant national authority under this section until the final version of its policy statement or statutory guidance on environmental principles, as set out in Section 14 of the Environment Act 2021 for England, Schedule 2 paragraph (6) for Northern Ireland, and Section 14 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 for Scotland, has been laid before the respective Parliament and the relevant legal duty commenced.
(6E) The relevant national authority must consult persons or bodies representing the interests of those likely to be affected by the provisions before making regulations under this section.
(6F) No provision may be made under this section by a Minister of the Crown until the legally binding targets required under the Environment Act 2021 have been published, and the Secretary of State has laid before Parliament a statement setting out how the provision is compatible with the delivery of these targets.”
This amendment sets a number of conditions which must be met before provision under this clause revoking or replacing retained EU law may be made.
Amendment 86, in clause 15, page 18, leave out lines 1 to 7.
This amendment is consequential on Amendment 85.
Clause stand part.
Amendment 87, in clause 16, page 18, line 27, at end insert—
“(3) No regulations may be made under this section unless the conditions set out in section [Conditions on the exercise of powers under section 15 and 16] have been complied with.”
This amendment would ensure that the power to update would be subject to the restrictions laid out in NC9.
New clause 9—Conditions on the exercise of powers under section 15 and 16—
“(1) The first condition is that the relevant national authority has consulted such organisations as appear to it to be representative of interests substantially affected by its proposals, and any such other persons as it considers appropriate, on a draft of those regulations.
(2) The second condition is that the national authority has, after that consultation has concluded and after considering any representations made to it, laid a draft of the regulations before each House of Parliament (or, as the case may be, the Scottish Parliament, Senedd or Northern Ireland Assembly), together with a report setting out, with reasons, the authority’s view as to the likely advantages and disadvantages of making those regulations, setting out in particular—
(a) a summary of the objectives and effect of those regulations as compared to the instrument that they will revoke, replace or modify;
(b) any difference as between that instrument and the proposed regulations in terms of protections for consumers, workers, businesses, the environment, or animal welfare;
(c) any benefits which are expected to flow from the revocation or replacement of that instrument;
(d) the consultation undertaken as required by subsection (2);
(e) any representations received as a result of that consultation;
(f) the reason why the national authority considers that it is appropriate to make those regulations, having considered those representations;
(g) the reasons why the national authority considers that section 15(5) (overall reduction in burdens) does not preclude the making of the regulations, explaining what burdens are reduced or increased as a result of the making of the regulations;
(h) the compatibility of the revocation, modification, or replacement of that instrument with obligations in the Trade and Cooperation Agreement between the United Kingdom and the EU, and the likely effect on UK exports of goods or services to the European Economic Area; and
(i) the likely effect of the revocation, modification, or replacement of that instrument on the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.
(3) The third condition is that a period of sixty days has passed since those draft regulations or that report were laid as required by subsection (2) with no account to be taken of any time during which Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru or Northern Ireland Assembly) is dissolved or prorogued or during which either House or that body is 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.
(4) The fourth condition is that the national authority has considered any representations made during the period provided for by subsection (3) and, in particular, any resolution or report of, or of any committee of, either House of Parliament (or, as the case may be of the Scottish Parliament, Senedd Cymru or Northern Ireland Assembly) with regard to the proposals, and has published its reasons for accepting or rejecting any such representations, resolution, or report.”
This new clause requires the relevant national authorities to consult with key stakeholders on proposed regulations revoking or replacing REUL, and to show Parliament their assessment of the impact of the changes.
Alex Sobel
I am afraid we are back to the Homeric length of speech that I regaled everyone with on Tuesday.
This wide range of amendments is designed to do three things. First, amendments 84, 87, new clause 9 and amendment 94 require proper consultation before the revocation, replacement and updating powers in clauses 15 and 16 can be exercised. Secondly, amendments 85 and 86 remove a prohibition in clause 15(5) against the relevant national authority using powers in a way that would “increase the regulatory burden”. Thirdly, amendment 94 adds a new subsection to clause 15 to ensure that the use of powers to revoke or replace retained EU law is made subject to compliance, in addition to consultation, with the environmental governance framework established by the Environment Act 2021. I will consider each of those three considerations in turn.
First, on consultation, as we have already discussed when considering other amendments, many worried stakeholders have voiced deep concerns about the unchecked powers that clauses 15 and 16 in particular place into the hands of Ministers. The Hansard Society has commented that clause 15 includes, with just a few caveats, “Do anything we want” powers for Ministers. I will not denigrate them by calling them Henry VIII powers. The Hansard Society's written evidence says the blank-cheque powers allow Ministers to act without having to observe the same oversight provisions—for example, a requirement to consult—that were required by the very legislation they are replacing.
Clause 15 also permits sub-delegation, the creation of a criminal offence or the imposition of a monetary penalty providing that any new regulations “correspond” or are “similar to” the original retained EU law. What such terms as “appropriate”, “correspond” and “similar” mean in practice is left entirely up to Ministers—“Do anything you want.” The duty to consult those bearing the brunt of the changes should be one of the most basic to a Government who have now been in power for more than 12 years. Carrying out such a process should not be viewed as burdensome; it is, or should be, a basic requirement of good and proper governance.
Our new clause 9 would remedy that defect by setting out a proper, good governance process of consultation. After consultation, Ministers would need to report to Parliament on the comments and representations made, and explain their objectives, their reasons for accepting or rejecting comments and any differences between the proposed and original regulations, in terms of protections for consumers, workers, businesses, the environment and animal welfare. They would be required to explain what burdens are reduced or increased as a result of the new regulations and to list the anticipated benefits they expect from the revocation or replacement, state whether the revocation or replacement is compatible with the trade and co-operation agreement, explain the likely effect on UK trade with the European Economic Area and, finally, set out the likely effect on the Northern Ireland protocol.
I hope the Minister agrees that those are all perfectly reasonable things to consider. If so, I hope she will either accept our amendments or, if she prefers, could make a commitment now that that will be part of the Government’s process.
Stella Creasy
We come to the rub of the matter. When Brexit happened, we were told that we wanted to make our own laws. Any of us who were concerned that that might lead to a reduction in standards or protections were told we need not worry: being out of the EU, which was holding us back from making our own laws, was also holding us back from having higher standards.
Fast forward to 2022 and clause 15, and we know the truth. The clause writes the obsession with deregulation into law. If the Bill passes in its current form, all that our constituents can look forward to is the slow trickle of their rights being watered down and washed away—all in the name, allegedly, of reducing burdens on business. Let us be very clear: business does not want a no-regulation environment. That is a recipe not for competition, creativity and entrepreneurship, but for bad actors running riot over well-established industries and ruining entrepreneurship and creativity. Business wants better regulation. It wants good regulation.
When a law talks of a “regulatory burden”, we know that it does not speak to our economy; it speaks to an ideology that is holding this country back. At a time of economic boom, that would not be a sensible measure. At a time of economic crisis, it is genuinely destructive. Clause 15 means that all the things we were told during the Brexit referendum about higher standards were not true. It means that the promises that environmental protections would be better if we left the European Union will not be kept.
For the avoidance of doubt, that is not an argument about returning to the European Union or undermining the referendum, and nor is it saying that we should not have left the European Union—that debate has been had. It is an argument for holding to account all who claimed during the referendum campaign that somehow things would be better. The Bill demands that they must not be, because it insists that a regulatory burden cannot be created, and what it defines as a regulatory burden is a better standard.
The amendments in this group are therefore designed not just to hold to account all those Brexiteers who made such rash claims, but to protect the right of the British public to have the standards that they want, especially when it comes to the environment, workers’ rights or consumer protections. On Tuesday, Ministers spent much of the time telling us about their record of improving our legal standards and the rights of our constituents. Indeed, the Minister said:
“The UK regime sets some of the highest standards of consumer protection in the world, and this will continue to be the case.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 168.]
This clause means that that is not necessarily the case.
The clause says that we cannot improve our consumer protections. Indeed, we have already seen that from how the Government have reacted since we left the European Union. The European Union tried to bring in various regulations about sustainability of goods—frankly, about ensuring that if someone is sold something, it is not tat. Our Government have refused to implement those regulations. Indeed, if the Bill is passed as drafted, we could not introduce them. In this brave new world, we could be sold as much tat as we like and not know that it is tat, all because the Government are determined that deregulation is what the country wants. Again, that is not something I ever saw on the leaflets that came out during the referendum campaign.
Amendment 85 deletes the ratchet provision, and amendment 86 is consequential to it. Between them, the amendments would allow Ministers to replace existing retained EU law with more stringent measures to allow us to have the higher standards that we all say we want on environmental issues, so that we can protect and conserve our precious species—dare I say it, even the killer shrimp. That would help to make the promise a reality.
The Minister might suggest that new burdens should not be pushed through without consultation, and that the minimal parliamentary scrutiny given the potential impact is not a problem, but deregulation is not value-neutral. The loss of a protection can and will create as much of a burden for businesses as not having a burden would do. When we open the door to lower standards, we open the door to bad actors. Good legal protections for workers’ rights, consumer rights and environmental rights help to ensure that the market is fairer. They give businesses certainty and encourage creativity, because they allow people to plan without worrying that they will be undercut.
Given that, the Minister needs to be clear about the definition of a burden in what the Government are doing. For example, is it a burden for a business to pay new parents during their parental leave, regardless of how long they have been employed? In that case, is it deemed undesirable? Is it a burden to have to record whether any materials known to be harmful to human health are involved in a cosmetic product, and therefore is it something undesirable? Are rules governing how many hours employees are allowed to take off possibly a burden? Is reporting on the ethnicity pay gap in an organisation a burden, and therefore something deemed undesirable by the Bill?
If we are reviewing all retained law—it is debatable whether we even have the time to do so in the timetable set out by the Government—we should use the opportunity to usher in the higher protections that Ministers have assured us are the Government’s ambitions. They are things that my and all our constituents deserve. Here are some of the places where, without subsections (5) and (6), Government regulations could improve rights and standards in the UK.
We could have stronger protections for agency workers, many of whom work in the creative industries and have been hit hard by covid and the cutting of our ties with the European Union. That is something that many musicians, actors and performers would benefit from.
We could have higher standards on equal pay. I was born shortly after the equal pay legislation was introduced in this country, and it is a source of shame for many of us that we still do not have equal pay. However, we could finally use the freedom that comes from taking back control to do that. The Government have fallen behind on their own commitments, and that is nothing to do with retained EU law—they failed to publish a report on the gender pay gap, which we were promised. We could use this gap and the fact that we are abolishing all the existing laws to bring in higher standards. On Tuesday, the Minister spoke passionately on how she has been supporting those campaigns.
We could bring in the legislation sponsored by the right hon. Member for Basingstoke (Dame Maria Miller), and ensure that pregnancy and maternity discrimination does not happen in this country.
Peter Grant
A long time ago now, it seems, I was a member of my local planning authority for a number of years. We used to get dozens and dozens of planning applications for consideration, and there was often a lot of discussion about whether councillors who were uncomfortable with an application should attempt to draft conditions that had to be honoured before the application could be approved. A lot of those conditions were perfectly reasonable; we would put in conditions to ensure that housing development was road-safe, for example. An important piece of national guidance that certainly applied in Scotland—I do not know if there was an equivalent in England—was that if someone had to burden a planning application with a huge, complex set of conditions in order to make it acceptable, the application should be refused and the applicant invited to come back later with a better one. That is where we are with clause 15. The official Opposition clearly feel that the only way to make clause 15 even vaguely acceptable is to restrict it in so many ways, and with so many amendments, that it would effectively tear the heart out of the clause.
Although I certainly will not oppose any of the amendments that the hon. Member for Leeds North West wants to press to a vote, we will oppose clause 15 when the question on it is put, whether it is amended or not. It is an utterly dreadful piece of legislation. Can Members imagine any circumstance in which it could be considered good governance to give an individual or a national authority the right to repeal 4,000 pieces of legislation, knowing perfectly well that they have no intention of bringing anything forward to replace them? That is what clause 15 effectively aims to do.
As the hon. Member for Walthamstow pointed out earlier, subsection 5 of clause 15 gives the lie to the entire argument about why the Tories wanted to be allowed to regulate for themselves. It was never about being allowed to have better standards of employment law than the rest of Europe, and it was never about being allowed to apply better standards of environmental protection, consumer protection, animal welfare or anything else. It was always about pandering to what my hon. Friend the Member for Argyll and Bute has described as the wide-eyed enthusiasts of the European Research Group, and those who are so far to the right of the ERG they cannot even get elected to this place. In clause 15, and particularly in subsection (5), theirs is the agenda we are being asked to follow.
I am really interested to hear the Minister explain why she feels it is necessary to have an Act of Parliament that potentially allows a national authority to tear down 40 years of protective legislation, with the intention of replacing it with nothing, and with the extreme risk that we will run out of time to replace it with anything. We should remember that we have barely a year from now, never mind from when they start to tear apart the legislation.
When we look at the restriction in subsection (5) and then look over the page at what some of the terms in the subsection mean, we find that they are hair-raising. Legislation that imposes a burden that could include a financial cost is not allowed. There is no threshold and no limit on how many people would need to be affected by that financial cost. For example, the personal protective equipment non-provider PPE Medpro—it was slated in The Guardian this morning and in the Chamber earlier—made a profit of £76 million by supplying to the Government PPE that was not fit for use. If the Minister had been minded to bring in replacement legislation, it would have reduced PPE Medpro’s overnight profit from £76 million and tuppence to a mere £76 million. The Bill would say that was a financial burden. It would therefore be an increased regulatory burden, and it would not be allowed.
Subsection 10(b) refers to “an administrative inconvenience”. Well, good luck to the lawyers who want to decide what is an inconvenience and what is not. Again, there is no threshold and nothing about proportionality. There is nothing to say whether it imposes a disproportionate administrative inconvenience on a substantial section of the economy. That would be a reasonable protection to want to build in, but anybody who claims that that is inconvenient administratively could then challenge it in court. In fact, there is nothing written into the clause that says that the burden has to affect the private sector in order to make it unlawful.
If the burden applies to the civil servants that are trying to administer the new legislation, that is an administrative inconvenience to the civil service, especially if there will be 90,000 fewer of them than we had last year. I am talking about improving legislation that allows one person out of 60 million in these islands to say, “That’s a bit inconvenient for me”, and an entire piece of secondary legislation can be struck down. Despite some of the things I have seen from the Conservative party in my time, I genuinely do not believe that that is what it wants, but I know that that is what some people want.
My fear is that people who cannot get elected to this place are pulling the strings of those who did. Those people are looking to use the clause, and particularly subsection (5), to achieve their dream of a tiny bit of the world where all regulations can be struck down at the stroke of a pen, and once they are struck down it is impossible to replace them with anything. There are people who, at times, have been very close to the seat of power in this place—their donations have helped to change the course of political history in the last 10 years—who do not want there to be any workers’ rights whatever.
A former member of the Government, on whose watch this Bill was drafted, is on the record as saying that he does not think workers have an automatic right to paid holidays. That is the kind of ideology we are dealing with here.
Clause 15 is not about achieving a reasonable objective; it is about completely tearing down 40 years of legislation, some of which we might not welcome but much of which has helped to make the four nations of the United Kingdom more modern and democratic. For that reason, I can understand why some people would happily see all that legislation torn up and replaced with nothing. I genuinely do not believe that is what the Minister wants, I genuinely do not believe it is what the majority of Conservative party members want and I can say with absolute certainty that it is not what the people of Scotland want, and it is not something that the people of Scotland will accept.
I will support any amendments that the Opposition are minded to press to a vote but, amended or unamended, I will seek to divide the Committee on removing clause 15 from the Bill.
Ms Ghani
I beg that the Committee rejects amendment 84 and does not press new clause 9 or amendment 87.
It may surprise the Committee that English is not my first language—I was not born in this country—but it has never occurred to me that the words “regulation” and “standards” are the same. Members can look them up in a dictionary, but they are definitely not the same.
Clause 15 is about ensuring we have the right regulations in place, by removing those regulations that are unduly burdensome, outdated or not fit for purpose in the UK. How about swapping them for proportionate, high-quality and agile regulations that help the UK economy, and all of us who work in it, to be nimble and competitive?
I remind the Committee that Departments will be able to maintain the current level of regulation where it is considered appropriate. Only where existing regulations are considered to be unnecessarily burdensome and not fit for purpose may a lower level of regulation be introduced. I will validate that in a moment.
The concerns of hon. Members regarding the scope of the Bill’s powers are unfounded, as the powers to revoke or replace are important cost-cutting enablers of retained EU law reform. The dashboard has identified more than 2,500 pieces of retained EU law, and it is therefore right to have a power of this scope that is capable of acting on a wide range of REUL covering a variety of policy areas. The powers have several safeguards that mitigate their use, namely any legislation made under clause 15(2) that recreates a delegated power or a criminal offence present in REUL is subject to the affirmative procedure. Legislation made under clause 15(3) is specifically subject to the affirmative procedure, which will ensure that changes to policy objectives can be actively approved by Parliament. In addition, a sifting procedure will apply to legislation where Ministers choose to use the negative procedure.
The clause 16 power is intended to facilitate technical updates to retained EU law, to take account of changes in technology or developments in scientific understanding. This ongoing power is not intended to bring about significant policy change. It is instead designed to ensure the UK keeps pace with advances in science and technology over time.
The amendments would add a significant amount of time to the process and, ultimately, could risk Departments being unable to maximise the use of their powers to revoke or replace retained EU law across all policy areas, until such powers sunset. The Bill has been drafted to ensure that legislation made under these powers is subject to robust scrutiny procedures that are proportionate to the scope of the powers, as highlighted above.
I ask the Committee not to press amendments 85, 86 or 94. As I mentioned, the Bill is an enabling Act. Amendment 94 would place a number of environmental requirements on UK Ministers or devolved authorities when they intend to use the powers to revoke or replace, irrespective of the policy area. This amendment would therefore preclude Departments making reforms in policy areas unrelated to the environment, which would significantly impact the opportunity to use these powers.
On amendments 85 and 86, we have sought to ensure that the powers to revoke or replace cannot be used to add to the overall regulatory burden on this subject area. In her evidence to the Committee, Professor Alison Young noted that combining
“a number of earlier burdens, turn them into one burden with a higher standard, that is also not increasing the burden.”––[Official Report, Retained EU Law (Revocation and Reform) Bill Public Bill Committee, 8 November 2022; c. 19, Q33.]
The requirement not to add to the overall regulatory burden has been drafted to allow the relevant national authority to determine how best to achieve the desired policy outcome. For example, removing regulations or administrative requirements that are deemed unnecessary or unsuitable will make it possible to add new regulations with a higher standard—shock, horror—where it is deemed necessary or desirable, provided that the overall regulatory burden is not increased. The reforms that these powers will enable are vital to allow the UK to drive genuine reform and seize the opportunities of Brexit.
We had a repeat of the debate about animal welfare. As I mentioned the other day, the Government remain focused on how best to deliver the “Action Plan for Animal Welfare” published in 2021, which builds on our existing high animal welfare standards. I therefore ask the hon. Member for Leeds North West to withdraw the amendment.
Alex Sobel
The Minister and Conservative MPs expect us to trust them, when they have repeatedly voted against our attempts to preserve the most basic legal rights and protections for consumers, workers and the environment in Committee so far. In fact, no Government should be trusted with the sweeping powers that this Bill will grant, with minimal parliamentary oversight or scrutiny. Instead of wasting time debating their trustworthiness, our amendments were designed to move beyond the trust that the Government have failed to earn and allow for greater transparency. I will push amendment 85 to a vote, but I beg to ask leave to withdraw amendment 84.
Amendment, by leave, withdrawn.
Amendment proposed: 85, in clause 15, page 17, line 31, leave out subsections (5) and (6).—(Alex Sobel.)
This amendment will remove the restriction on the replacement of EU law that states it must not add to the regulatory burden.
Question put, That the amendment be made.
Retained EU Law (Revocation and Reform) Bill (Seventh sitting)
Tuesday 29th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 29 November 2022 - (29 Nov 2022)
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
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.”
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.
The Minister for Climate (Graham Stuart)
It is a pleasure to serve under your chairmanship, Sir Gary.
I thank the hon. Member for Argyll and Bute for tabling the amendment, but I urge the Committee to reject it. The power under clause 16 is intended as an updating power to make modifications to retained EU law that take account of a change in technology or developments in scientific understanding. The scope of that power has been deliberately restricted so that it can only be exercised to bring about such modifications.
It is critical that that power operates in that manner to ensure that legislation that sits on the UK’s statute book is able to keep pace with scientific and technological developments, so that we continue to uphold our high standards as well as ensure laws remain tailored to best suit the UK’s needs. Without that power, it would take a significant amount of parliamentary time for the Government to bring forward bespoke proposals and consider each amendment on a sector by sector basis.
I consider the requirement for Ministers to produce a written ministerial statement on the societal and economic changes relevant to the proposed changes under the clause to be neither relevant nor appropriate. The UK Government are committed to the appraisal of any regulatory changes relating to retained EU law, and the nature of that appraisal will depend on the types of changes that Departments make and the expected significance of their impact. We assess that current scrutiny procedure for legislation made under the clause is sufficient. Further scrutiny would be inappropriate for that type of power and would place additional pressure on parliamentary time. The power is circumscribed and, in answer to an earlier question, it is for Ministers to make those decisions. Further scrutiny could hinder the UK’s ability to keep pace with new scientific and technological developments, and I am sure that no member of the Committee would want that.
Justin Madders
Will there be a standard threshold across Departments to trigger when Ministers may use the power? If so, can the Minister share it with us?
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.
Justin Madders
The clause relates to legislative reform orders under the Legislative and Regulatory Reform Act 2006. There are certainly positives associated with the mechanisms within which those orders operate.
The procedure for enacting draft Bills, in common with the terms of new clauses we have tabled, would include requirements for consultation, with further time for parliamentary consideration. When we are talking about between 2,400 and 3,800 laws, we think that is a reasonable proposal. That requirement would apply to instruments introduced under both the negative and the affirmative procedure, with the super-affirmative procedure further requiring 60 days for consideration, and a requirement on Ministers to have regard to recommendations to amend the draft order. Even if Ministers choose to press ahead with the unamended order, they must still lay a report before the House detailing the representations made and the proposed revisions. Although these measures do not go quite as far as our proposed new clauses, if they were used across the board for non-deregulatory purposes, they would be far more preferable to the use of the standard procedures currently in the Bill.
As Jack Williams pointed out in evidence a couple of weeks ago, the main concern is that using any of the mechanisms contained in the 2006 Act will put in place completely unrealistic time constraints, if they were used on all regulations and pieces of legislation on the EU dashboard. We have discussed at length why we think the 2023 sunset is unrealistic. Given that the time restrictions we face are well known, why does the clause remain in the Bill? Are there plans to use this power? Will the Minister provide us with some examples of where he thinks it might be appropriate to use this procedure or where it is already intended to be used? How will the problem of the clear six to eight months we will have once the Bill is passed to deal with all the regulations be dealt with?
The Government have promised to abide by all the stages of consultation and reporting in the Bill. It seems to me that it would therefore be a challenge to deal with this in the timeframe we have. Will the Minister tell us what criteria will be used when deciding to use this procedure? I presume some consideration was given as to when it might be appropriate to use it before it was inserted into the Bill. If Ministers choose not to use this power, there is nothing that we as parliamentarians can do about it. That is the nub of it.
Looking at 2016 Government guidance on legislative reform orders, it was noted that it can take some 10 to 14 months from the start of a consultation before a legislative reform order becomes law and reaches the statute book. I think we are all conscious of the fact that, even in the unlikely event that there is a smooth passage of this Bill through the Lords, it will be in force at the lower end of that timescale, if not far below it. I wonder if the Minister can tell us whether there is any intention to use the powers under the clause and, if so, in which circumstance they might be operative.
Graham Stuart
Clause 17 amends the LRRA 2006 explicitly to include any retained direct EU legislation in its definition of legislation. This amendment confirms that the delegated powers existing in the framework for legislative reform orders extend to retained direct EU legislation, and enable it to be amended within the current procedures and scope of the LRO process. There is no reason to exempt this category of legislation from the LRO process. It is a pretty innocuous technical change, and I commend the clause to the Committee.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clause 18
Abolition of business impact target
Question proposed, That the clause stand part of the Bill.
Alex Sobel (Leeds North West) (Lab/Co-op)
I will be brief, as we have many clauses to get through. Clause 18 abolishes the business impact target in the annual report that the Conservative Government themselves introduced in 2015. Perhaps the Minister could explain the rationale behind the change. Have the Government finally caught up with the pointlessness of this exercise, which has piled unnecessary work and bureaucracy on civil servants over the past seven years? It would be helpful to hear the Minister’s explanation for the change.
Peter Grant (Glenrothes) (SNP)
My apologies for being late for the start of the sitting, Sir Gary.
About eight years ago, I bought myself a car. For a long time, the car did pretty much what I wanted it to do, but now it is showing its age and is not really behaving the way I would like, and I am wondering whether it is worth keeping. It would be foolhardy for me to get rid of my car when I have no idea what kind of car I want to replace it with, because I would leave myself open to the possibility either that I am without a car for a lot longer than I expected to be or that a replacement car is much more difficult and expensive to acquire. That is the position the Government want to put us in with this clause.
Graham Stuart
Having left the EU, the UK has the regulatory freedom to ensure that all regulations are designed with UK interests front and centre. To seize the opportunities that come with this freedom, it is important that the Government’s framework for scrutinising regulation—the better regulation framework—is reformed. As set out in “The benefits of Brexit”, we are reforming the system to ensure that we regulate only where necessary. When regulation is needed, it should be designed and implemented in a way that minimises burdens on businesses and households, thereby driving competition, innovation and, ultimately, growth.
The abolition of the business impact target will support the delivery of the reforms by reducing what is currently a disproportionate focus on direct costs to business and allowing—I hope the whole Committee will agree—a more holistic appraisal of the impacts. By increasing the early scrutiny of the flow of new regulation and improving the existing stock of regulation undertaken through the use of powers elsewhere in the Bill, the new system will support the Government’s growth ambitions.
Peter Grant
The Minister has great faith in the new system, but none of us can have any faith in it because we have not seen it. When can we expect to see the intended replacement for the relevant sections of the 2015 Act?
Graham Stuart
As I said, we expect the reforms to the better regulation framework to set a higher bar for the introduction of regulation and to help to reduce the flow. On the precise timing of when that will be, I will come back to the hon. Gentleman, unless I am suitably refreshed right now. As I say, this is a more proportionate approach, which I think the whole Committee will support. I therefore recommend that the clause stand part of the Bill.
Peter Grant
On the basis of the Minister’s answer, I assure him that we will come back to him in due course and tell him when we are prepared to support clause 18, but we are not prepared to support it yet.
Question proposed, That the clause stand part of the Bill.
Alex Sobel
We have already debated how the Bill grants Ministers sweeping powers; we now come to clause 19, which looks like it literally and explicitly allows Ministers to do anything they want. The Minister needs to explain what the Government think the powers are going to be used for, specifically in relation to EU regulations.
On the face of it, clause 19 would allow Ministers to make the case for anything at all, provided only that they consider it appropriate and in consequence of the Act. It is entirely left up to Ministers themselves to define “appropriate” and “in consequence”. I would like the Minister to give the Committee further clarification of what “appropriate” and “in consequence” really mean—or perhaps he does not yet know.
It is noteworthy that the powers include modifications to any Act of Parliament—including this legislation. The powers are so sweeping that it is difficult to understand why the Government cannot better define the powers they are giving themselves in the clause.
Peter Grant
First, I have a concern similar to the hon. Gentleman’s. It is the same concern that the SNP has expressed repeatedly throughout the progress of this Bill and many others. If the Bill does not just give any Minister the power to do whatever they like, will the Minister explain what clause 19 does not allow them to do? I always think it is interesting that when they give powers to Ministers, the Government put it into legislation that the Minister can do only what they consider appropriate. It is almost as if they do not trust their own Ministers not to do things that are considered completely inappropriate—although, having seen the actions of some Ministers over the past few years, I completely understand why they put that restriction in.
Secondly, is there a legal definition of what is actually meant by the words
“in consequence of this Act”?
If there is not, we could see regulations made under clause 19 being challenged in court, with the case hanging on whether the Minister’s decision was in consequence of this Act. A phrase as woolly as that is going to be a field day for lawyers. It is going to end up with the Government, and potentially businesses, being tied up in exactly the kind of legal uncertainty that the Government claim they are trying to get rid of by the passing the Bill. Will the Minister clarify those two points, with particular regard to the legal interpretation?
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?
Peter Grant
Following the comments of my hon. Friend the Member for Argyll and Bute, the existence of schedule 2 specifically tells us everything we need to know about the nature of what is sometimes claimed to be democracy in this place. There is an explicit assumption in the schedule that Ministers in this place have the right to directly hold to account the democratically elected national Parliaments of the United Kingdom. That is not devolution; that is colonialism. It is not democracy; it is elected dictatorship. I appreciate that what is stated in schedule 2 is simply a restatement of the assumption that has run through this place for the past 300-plus years, yet it is a false assumption. It is an assumption that ultimate sovereignty by gift of God resides with an unelected individual who then passes down that sovereignty to a semi-elected Prime Minister.
Dr Luke Evans (Bosworth) (Con)
If the SNP decides to join the EU, is that not exactly what would be being joined?
Peter Grant
I think the hon. Gentleman knows perfectly well that that is not the case. The European Union is about sharing and pooling sovereignty; there is no shared or pooled sovereignty within this Union. There is absolute sovereignty exerted, in effect, by one individual. One individual was able to end the careers of 40 Conservative MPs in 2019, just because they disagreed with him. That is how powerful one individual in this place can be. No individual in the European Union would have that authority against the will of national Parliaments and national Governments. My final response to the hon. Member is that he might think it is in Scotland’s interests to leave the European Union but, with the greatest respect, it has nothing to do with him. It is—it should be—a choice for the people of Scotland—
Peter Grant
It is also for the people of Scotland to decide what restrictions are put on the actions of their national Parliament and national Government, as it is for the people of Wales and of Northern Ireland. The inclusion of the schedule is another example of the rights of those three devolved nations being usurped by a state that claims to have the absolute right of sovereignty over them—but it does not have that absolute right, and, quite soon, it is going to discover, to its cost, that it never had that right.
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.
Graham Stuart
I beg to move amendment 1, in schedule 3, page 30, line 5, leave out paragraph 2 and insert—
“2 (1) Sub-paragraph (2) applies to a statutory instrument containing regulations under this Act which is subject to a procedure before Parliament for the approval of the instrument in draft before it is made.
(2) The statutory instrument may also include regulations under this Act or another enactment which are made by statutory instrument which is not subject to the procedure mentioned in sub-paragraph (1) (whether or not it is subject to any other procedure before Parliament).
(3) Where regulations are included as mentioned in sub-paragraph (2), the statutory instrument is subject to the procedure mentioned in sub-paragraph (1) (and is not subject to any other procedure before Parliament).
(4) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument containing regulations under this Act which is subject to a procedure before Senedd Cymru as they apply in relation to a statutory instrument containing regulations under this Act which is subject to a procedure before Parliament, but as if references to Parliament were references to the Senedd.
(5) Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply in relation to a statutory instrument but as if references to Parliament were references to the Northern Ireland Assembly.
(6) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument containing regulations under this Act which is subject to a procedure before a devolved legislature as well as a procedure before Parliament as they apply in relation to a statutory instrument containing regulations under this Act which is subject to a procedure before Parliament, but as if references to Parliament were references to Parliament and the devolved legislature.
(7) In sub-paragraph (6) ‘devolved legislature’ means the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly.
(8) Nothing in this paragraph prevents the inclusion of other regulations in a statutory instrument or statutory rule which contains regulations under this Act.”
This amendment enables regulations under this Act subject to the draft affirmative procedure to be combined with regulations that are not subject to that procedure.
This is a technical amendment necessary to ensure that the mechanism for combining statutory instruments in the Bill functions correctly. The intent behind the Bill is to enable regulations made under different powers in the Bill to be combined into a single statutory instrument where it would be more appropriate to do so. This technical amendment will allow provisions made under any powers in the Bill and other enactments to be combined with regulations under the Bill that require a draft affirmative instrument.
Where such provisions are combined, the default procedure will be the higher procedure, which is the draft affirmative. That will enable statutory instruments to be combined more effectively, which will save resource and reduce the future burden on parliamentary business. The amendment also makes equivalent provision for the devolved legislatures. I commend the amendment to the Committee.
Justin Madders
I am grateful to the Minister for providing an explanation of the technical nature of the amendment. It actually quite an important amendment for the Government if they are to have any chance of meeting their self-imposed deadline in a year’s time. Being able to link together different instruments that require different procedures will, as the Minister said, be a helpful tool to limit the amount of parliamentary time taken up, although that may come at the cost of scrutiny. I am, however, encouraged by the Minister’s confirmation that the affirmative procedure will be used in those circumstances. It is almost as if there will be levelling up of regulations so that the higher standard of scrutiny will apply.
Will the Minister tell us whether there has been any assessment of on how many occasions it is anticipated that the amendment will be used? It is worth saying, once again, that if the Government had not created this artificial cliff edge and put themselves up against the clock so steadfastly, the amendment would not be necessary.
Peter Grant
I will not oppose the amendment, but I need to put on record that the fact that such a detailed technical amendment is needed is clear evidence that the people who draft legislation do not always get it right first time. Is it not lucky that we have a Bill Committee, so that errors, omissions and oversights in the drafting of the Bill can be put right before it comes into force? The 4,000 or so—at the latest estimate—bits of legislation that the Bill will tear up and throw in the fire will be replaced by things that we will not get a second chance to put right in Bill Committee.
When, as will almost certainly be the case, the Government end up repealing bits of legislation that nobody knew existed, we will not have a Bill Committee to put things on hold in order to correct any mistakes. The fact that the Government have already had to table this and so many other amendments and we have no idea what else they will have to introduce on Report or in the House of Lords does not represent a criticism of those who drafted the legislation. It is simply an illustration of an uncomfortable fact: no matter how good we are at drafting legislation, we do not get it right first time. If this Bill passes in the form in which the Government are determined to pass it, there are potential catastrophic impacts from Parliament repealing legislation that it did not even know existed.
Graham Stuart
I am glad that there is, I think, acceptance that this amendment is a practical and sensible measure. By bringing procedures together in one and having the affirmative procedure, we can ensure that Parliament can scrutinise in a more holistic manner, to address some of the concerns that have been raised by the Scottish nationalist spokesman. As to precisely how often, I do not have an estimate on that, but I expect it to be on numerous occasions, because, as has been said, there is a substantial amount of retained EU law. If that can be brought together and scrutinised in an effective manner that allows full and proper scrutiny but does so in a way that does not waste parliamentary time, I hope we will have something that works for all parts of the House and is seen as practical and proportionate.
Amendment 1 agreed to.
Alex Sobel
I beg to move amendment 88, in schedule 3, page 31, line 6, leave out from “15” to the end of line 8 and insert—
“(d) regulations under section 16.”
This amendment, together with Amendment 89, would make all regulations under Clause 15 (regulations that are intended to achieve the same or similar objectives as the REUL being replaced) and under section 16 (technological developments) subject to affirmative procedure.
The Chair
With this it will be convenient to discuss amendment 89, in schedule 3, page 31, line 17, leave out paragraph (c).
See explanatory statement to Amendment 88.
Alex Sobel
We have already spoken at length about the lack of effective parliamentary scrutiny provided for in the Bill. Our amendments 88 and 89 would ensure that any instruments made by Ministers to replace retained EU law under clause 15 or to update it under clause 16 were subject to the affirmative procedure and had to be approved by both Houses. At present, schedule 3 does not provide for the affirmative procedure for clause 16 instruments at all; for clause 15, it provides for the affirmative procedure to apply only in the case of revocation or for much more limited cases where the clause 15 powers are used for sub-delegation or to create a new criminal offence.
It seems to us, as well as to many of those who have submitted written evidence, that the powers in both clauses are potentially extremely significant even if they are not being used for wholesale revocation. Updating and replacing retained EU law might well involve alterations to existing and long-established rights and protections—alterations that we feel Parliament should be asked to positively agree to before they pass into law. The Minister himself just said that this Bill covers a substantial number of regulations, so it is only right and proper that we have the correct level of scrutiny and process in this place.
Can the Minister explain the circumstances in which he envisages the powers to replace and update being used? Can he also provide examples of the replacement or updated legislation that Departments are planning to take through, using these powers? I ask because we have heard very little, but we know that civil servants are busy preparing regulations for this procedure.
Stella Creasy (Walthamstow) (Lab/Co-op)
Good morning, Sir Gary. It is a pleasure to serve under your chairmanship this morning on this Bill. You have missed some real treats, I venture to suggest, about the future of decision making in this place.
Members who have been on this Committee for the whole marathon rather than the last couple of miles will know that Opposition Members have been raising consistent concerns about how we do what we were all promised we would be able to do—take back control. The amendments before us this morning are about exactly that, because one of the central concerns that we have about this legislation is that it does not take back control to the British people; it simply takes back control to the back rooms of Downing Street and Departments. These provisions, these amendments, show why that concern is merited.
All of us have sat through statutory instrument Committees in our time in Parliament. It is a joy to receive the message, at the last minute, that you have been selected, Sir Gary, for what pleasures—what delights—await you and what information you will learn on one of those Committees. But they are a vital part of our parliamentary scrutiny process. After all, they offer the opportunity for Ministers to set out clearly the purpose behind any amendments; the recognition that not everything needs to be debated on the Floor of the House; and clarity about the Government’s thinking. Many of us who have sat through court cases will recognise how important that is when it comes to the application of the law.
As we have discussed previously in Committee, this legislation will delete overnight potentially 4,000 laws. It could be more, or it could be slightly less—who knows? We probably should know before we pass the Bill. We have had that debate and the Government still do not think it is important, but they have always told us that they wanted to take away unaccountable European bureaucrats and give us the opportunity to have British bureaucrats making legislation. The amendment challenges that process. It would give back to us, as parliamentarians, the responsibility for holding the Government to account.
Stella Creasy
Perhaps, then, the Minister will publish and confirm for all of us who have been on the Committee—he is new to these debates, but I am afraid he is going to hear this concern repeated at length—what comes next. Without clarity over what comes next, it is difficult to be confident that the legislation will not be a destructive disaster. I see he is already enjoying the fact that he is on duty today.
Having this power only for revocation undermines other powers the Bill gives to Ministers, because it is a power both to ignore and to amend legislation. Taking back control and returning it to the back rooms to allow Ministers to write legislation and then simply put it before us in a “like it or lump it” proposal is not really taking back control.
I also venture to say that it is worth ensuring that we have this procedure for all forms of legislation that are affected by the Bill—not for some grand political design so we can have these wonderful debates, but because, as we have already seen with this Bill, not everything is going to be perfect. Departments make mistakes. Drafting can contain errors. I am reminded of the tale, which is completely true, of the Belgian legislature that managed to put a recipe for asparagus into Belgian law because it was cut and pasted into legislation by accident. That genuinely happened—I am sure the Minister will google it—in 2021.
Statutory instruments give us an opportunity to pick up drafting errors, as well as to hold Ministers to account, and to challenge and query legislation—for example, one of those so-called technical amendments, although we know the Bill represents not technical amendments, but, potentially, serious changes to rights, rules and regulations that people have relied on and recognised for generations. Having such a procedure would give us the chance to identify actions, and possibly to identify the asparagus.
If the Minister will not accept the amendment, he is saying two things: first, that taking back control is not about Parliament, but simply about the back rooms, and, secondly, that we never get things wrong. We have all met in life individuals, and perhaps even organisations, who say, “I never get things wrong,” and we know that that is the most worrying thing that anybody can say. Drafting errors are part and parcel of trying to get right even one or two pieces of legislation, but the Government, potentially, are setting us up to try to get 4,000 right to replace the laws they are deleting overnight.
Statutory instruments and the use of processes and amendments are an important part of the process of trying to ensure that that is done with the greatest possible skill. Removing those powers, or not clarifying that they are part of those processes, and giving Ministers the opportunity to decide whether they want to put themselves up for parliamentary scrutiny is like letting contestants in “The X Factor” avoid the judges’ houses stage. This all forms an important part of the process.
I have a horrible feeling that the Minister is not going accept the amendment, so in responding to the queries and questions we have raised, and in reflecting on why the amendment has been tabled, will he consider why—when we are discussing potentially significant and meaningful changes, and when we know he can only water down regulation because the Bill says that regulation can only be something that does not create a burden—he believes our constituents should be denied that representation and that voice in the process? That is what not including such a provision, or not having any form of it, means.
We saw that in the pandemic, when statutory instruments were not receiving appropriate scrutiny. In December 2020, a new set of covid restrictions that would have criminalised a child going to school in tier 4, despite schools remaining open, were implemented without any parliamentary scrutiny. In that case, due to the extraordinary public scrutiny these regulations faced, the issue was finally identified before the schools returned from the Christmas break for one day. Despite what they might think, however, it is not normal for commentators on Twitter to go through legislation at this level. Such errors are not minor—they are not just asparagus—but could have real life implications. They happen and they happen in this place, and not having proper scrutiny of SIs is the foundation of such errors.
I hope the Minister will do more than laugh at the asparagus. I hope he will act on these concerns and finally agree, if not to this amendment, to the tabling of the Government’s own amendment in the other place to ensure we finally take back some control. I say to my colleagues on the Government Back Benches that at some point, somebody will turn up in their constituency surgeries asking about the outcome and implication of this legislation, and they will have to say, “Well, I didn’t vote through any changes. I did not recognise the problems with the sunset. I was pretty confident about not knowing what laws this would affect and I did not even vote through any powers to be able to scrutinise what happens next. I just thought it would all be fine because this Government never make mistakes.” It simply will not wash.
Graham Stuart
I urge the Committee to reject amendments 88 and 89. Alongside the other powers in the Bill, the power to revoke or replace in clause 15 is an important, cross-cutting enabler of reform in the Bill. The power to update in clause 16 is an essential, ongoing power that will facilitate technical updates to retained EU law to take account of changes in technology or developments in scientific understanding. We recognise Parliament’s important role in scrutinising legislation, and the Bill ensures the appropriate scrutiny of all amendments and revocations of retained EU law using the powers in the Bill, including the powers provided for in clauses 15 and 16.
When discussing matters of scrutiny, I feel it is important to note the negligible scrutiny that most of the legislation we are discussing today—with such high-falutin’ language from the Opposition—received when it was created. When our democratically elected Government of the people of the United Kingdom take decisions, for which they are accountable at the ballot box, that is what I mean by taking back control. The people who are elected are responsible for what happens. That is what we have, and we are accountable at the ballot box. When they go to the ballot box now, British people will know who to hold responsible: us. It is not some pooled whatever system in Brussels; it is here in the United Kingdom. Power sits within this legislature, which is elected by the people of this country; it is not about precisely where the powers sit within our legislature. That is why it seems ironic that the Opposition parties had so little concern when powers were exercised on the other side of the channel, but apparently it is outrageous when those powers are exercised here by a democratically elected Government.
Several hon. Members rose—
Graham Stuart
I am not going to give way. If I was, I would certainly let them know, Sir Gary. [Hon. Members: “Lack of scrutiny!”] More important than issues around lack of scrutiny is the Minister’s failure to keep everyone calm. I recognise that is a significant misstep on my part.
Let me first turn to clause 15. Any regulations made under subsection 15(2) that recreate a power to make subordinate legislation or a criminal offence present in the retained EU law that is being replaced are already subject to the affirmative procedure, as are those regulations making alternative provision to the REUL being replaced under subsection 15(3). The power to update has been crafted so that we can do this in the right way. I must underscore this by saying that the power is intended to enable UK legislation to be updated to reflect future advances in science and technology, rather than to provide for any fundamental policy changes.
Given the scope of the power and the amendments that we expect to be made to regulations under this power, we judge the negative procedure to be the proportionate level of scrutiny. We therefore do not assess that it is necessary or appropriate for all regulations made under clauses 15 or 16 to be subject to the draft affirmative procedure. To do so would place additional pressure on parliamentary time and detract from the legislative agenda, and indeed from the scrutiny of substantive measures that should be subject to that positive scrutiny that we are talking about. I therefore ask the hon. Gentleman to withdraw the amendments.
Peter Grant
Thank you, Sir Gary, for calling me to speak. You will be aware that I attempted to intervene on the Minister to correct his mistake, because we are not in the same position with this Bill as we were with European legislation. The reason that Parliament did not do more to scrutinise the action of British Government Ministers in making legislation on our behalf while we were in the European Union is that, for most of the time, Parliament under any Government was completely supine. This Parliament is set up in such a way that it does what the Government tell it to do. It is headline news around the world if Parliament does not do what the Government tell it to do. Parliament had the power to rein in Ministers, but shamefully it repeatedly failed to do so. If this Bill goes through, Parliament will not have that power; Ministers will be able to do pretty much what they like.
The Minister talks very grandly about the fact that people have the chance to hold the Government to account. It is not a debate for just now perhaps, although some of us think that it is a debate for every day of the week, but the people of Scotland have been holding this Conservative party to account since 1955 and they just cannot get rid of them. He will perhaps understand why we can have no confidence in a legislative process that puts powers into the hands of a group of Ministers who people in Scotland have rejected at every opportunity they have been given since before I was born.
Alex Sobel
I want to just pick up on the idea that before 2016, or before early 2020 anyway, the regulations that we are talking about were somehow just created out of thin air—that an EU Commissioner decided one day that that was the regulation and that was it, and suddenly it was law in this country. That is a long way from the truth. The regulations had to go through the Council of Ministers, on which a UK Minister sat; they had to go through the European Parliament, where UK MEPs sat and provided scrutiny; and then they had to go through this House and the whole process here in the UK Parliament. When they related to devolved bodies, they also had to go through the devolved Administrations. I do not understand the argument that somehow there was a lack of scrutiny and process before, and now there is proper scrutiny and proper process. What our amendments would do is introduce the affirmative procedure.
Stella Creasy
Does my hon. Friend agree that there is a heavy irony in a Minister who refuses to take interventions and to be held accountable for what he says suggesting that nobody should be worried about the details of parliamentary scrutiny, who then cloaks himself in an argument that somehow the scrutiny mechanisms within the European Union were not acceptable?
Alex Sobel
That is a theme running through the whole Bill. First, Ministers want to take powers for themselves—for the Executive—and away from Parliament. I understand that the Executive in this country is elected, at least in part—that is, down at this end of the building. Secondly, even in the microcosm of this Bill Committee, this is the third part of the Bill on which Ministers have refused to take interventions from the Opposition. They are not prepared to allow relevant scrutiny, which creates an even stronger argument as to why we need protections.
Justin Madders
Does my hon. Friend agree that although we hear an awful lot about how terrible the processes were and about these laws being imposed on us, as we discussed at length, we never hear which specific laws the Government object to?
Alex Sobel
As we do not know, there might be more than 4,000 of these regulations. We would all like lists of the various different types of regulations; I would certainly like to see which of the regulations did not receive adequate democratic process and scrutiny.
In conclusion, all of the arguments that we have heard make it even more important that the Committee accepts these two amendments.
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.
Peter Grant
The Minister appears to be admitting that the ideological, arbitrary and unnecessary deadline of the end of next year is more important than the basic processes of democracy and of courtesy towards the devolution settlement. Is that correct? Is that what he is saying?
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.
Justin Madders
It is worth spending a little time on schedule 3 because it is the engine underneath the dashboard of the vehicle that will drive us off the cliff edge at the end of next year. It gives the Government the ability to use regulations to carry out the heavy lifting required by the Bill. As we have discussed many times already, we know the potential ramifications of that for the huge range of protections that our constituents currently enjoy and for the lack of parliamentary oversight that there will be in that process.
We have said all this before, but the broad changes that will be carried out under the regulations will mainly fall under the negative procedure. Offering only the affirmative procedure to a small proportion of the changes envisaged by the Bill falls far below the standard of scrutiny that we would expect. When one considers the sheer number of regulations required to make the changes, which we have talked about, and of course the risk that laws will fall by default because the relevant Department has not identified them, the concerns over lack of scrutiny multiply.
Stella Creasy
Does my hon. Friend agree that what is so critical is that we depend on Ministers knowing what is affected and what is not? I am struck by the fact that the Minister tried to tell us on Second Reading that airline safety rules would not be included and therefore we did not need to worry about the regulations. In fact, subsequent written parliamentary questions have confirmed that the SIs around airline safety were part of the Bill and therefore not contained in the Civil Aviation Act. Does my hon. Friend agree with me that making sure the engine underneath is roadworthy is perhaps one of the most critical things we can do in Committee, given that Ministers themselves perhaps should not be at the wheel?
Justin Madders
I think I have got rather lost in the number of analogies there; I might want to pull over and take a breather. The point is that we just do not know the full extent of the Bill. If we do not know, and if the Ministers and civil servants do not know, we cannot be confident that there will be no unintended consequences, which is why the level of scrutiny that the Bill affords is inadequate.
The wider problem is the way the Bill is framed. It seeks to provide the wrong answer to, essentially, the right question—“What do we do about all the retained EU law?”—but I am afraid that the answer we have come up with is wholly inappropriate. It does not uphold principles of scrutiny or parliamentary supremacy; actually, it makes Parliament a bystander in large parts of the process.
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.
Peter Grant
I take the initial point of the hon. Member for Ellesmere Port and Neston that we should perhaps have included the other devolved nations. It is an indication of the weakness of the Bill Committee system that sometimes some of the devolved nations have no representation whatever on a Committee. Of course, the way to address that is for the Government to signal their clear intent by accepting the amendment and undertaking to introduce an equivalent amendment protecting Northern Ireland and Wales at a later stage.
My hon. Friend the Member for Argyll and Bute raised a concern that the Bill will be used to lower standards. The Government always howl in protest and say that it will not be, but last week they insisted on including a clause that would prohibit making regulations under the Bill that placed additional burdens on businesses. They have not introduced a clause that prohibits the use of the Bill to make regulations to lower standards on workers’ rights, animal welfare or anything else. I wonder why that might be.
My hon. Friend also pointed out yet again that the presumptuous way in which the UK Government forced through the United Kingdom Internal Market Act 2020 was based on the assumption that, notwithstanding the devolution settlements, Ministers in the British Government have the right to overrule the elected national Parliaments and Governments of Scotland, Wales and Northern Ireland. Although there will be cases where it is better to have similar or sometimes identical standards across these islands, the Government assume that what is decided by those who are elected by and for the people of England should automatically be what is imposed on the people of the other nations of the United Kingdom. That is not how devolution works. That is not how consensus works, which is what the Secretary of State for Scotland kept going on about last Wednesday in reply to our urgent question.
If the Government seriously want to work by consensus across the four nations, they would introduce legislation that required it to be in place before anything was done to change legislation. The Government have been reminded umpteen times over the past few weeks of the devolved competencies of our national Parliament in Scotland, Senedd Cymru and the Assembly in Northern Ireland. I appreciate that there is a different situation in Northern Ireland just now, and that there may be times when it is essential, and in the interests of the people of Northern Ireland, for the UK Parliament to act when the Northern Ireland Assembly is not functioning, but the Bill is not about stepping in in emergency circumstances. The Bill, and the clause that we are looking at, is about the Government having the right to step in wherever it suits them.
I urge the Government to accept the amendment. I know they will not, because they seem to be under orders not to listen to or accept any amendment, regardless of how sound or sensible it is, if it comes from the wrong side of the Committee. If that is an indication of the way they intend to use the powers that the Bill will give them, we should all be very concerned indeed.
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)
Tuesday 29th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 29 November 2022 - (29 Nov 2022)
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are considering 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.”
Question put, That the amendment be made.
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.
Peter Grant (Glenrothes) (SNP)
Who is best placed to decide whether any of this retained EU law is in Scotland’s best interests? Is it the 5.5 million people who live in Scotland or the Minister?
Graham Stuart
I would have thought the hon. Gentleman would still be smarting from finding out—from the Supreme Court, no less—that all the exaggerated, hyperbolic claims made by the Scottish National party had no grounding whatever. If he was a true democrat, he would respect that once-in-a-generation opportunity taken by the Scottish people, in which they were asked if they wished to stay part of this Parliament and this United Kingdom; and they decided that, yes, they would. It is on that basis that I reject the amendment. I am pleased that the Supreme Court agreed with any other well-informed commentator—other than those specially selected by the Scottish nationalist party—that we are behaving in an appropriate way that fully supports and respects Scottish democracy, and will continue to do so.
Peter Grant
I genuinely and sincerely thank the Minister for the contemptuous way in which he has dismissed the demands of the people of Scotland, because he has added another couple of percentage points to their support for independence. Perhaps—appropriately, when we are discussing a Bill that is full of opportunities for the Government to change the law by mistake—he is single-handedly bringing independence day that wee bit nearer.
There is an important point here. The Minister claimed that in 2014 the people of Scotland were given the chance to decide our future. The chance to decide our future is not something we are given by some colonial overlord. The chance to decide our future is recognised in this place as a fundamental right, as, indeed, is the chance to decide whether the interests of Scotland are best served by a chaotic Brexit, as illustrated in this Bill, or by remaining in the European Union. I accept the Minister wants this country out of the European Union. It is time he respected that I want my country back in. If he wants to talk about the decision that was made in 2014—
The Chair
Order. I blame the Minister for taking us down a particular path, but I encourage the hon. Gentleman to stick to amendment 62.
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.
Graham Stuart
The amendment clarifies the power to make transitional provisions for the sunset. Transitional provisions regulate transition from the current law to the law as it will be when amended by the Bill. For instance, transitional provisions could be made to ensure that laws that will fall away after the sunset continue to apply to certain types of ongoing contracts after the sunset date, if the contracts were entered into on the basis of those rules applying. Consequently, the amendment ensures consistency for businesses and citizens following the sunset’s effects. That is highly important, given the roles the Bill will play as a key driver for growth. I trust the Committee will support consistency and growth for British business and citizens, and thus will join me in voting for the amendment.
Justin Madders (Ellesmere Port and Neston) (Lab)
As the Minister just said, Labour will support growth for British business, and we look forward to seeing some in the next 18 months, or maybe before. However, I have a couple of questions about the commencement dates.
Subsection (2) states:
“Section 18 comes into force…two months”
after Royal Assent, whereas subsection (3) contains a much broader provision for Ministers of the Crown to implement different parts of the Act on different dates. As the Committee will have gathered from my comments this morning, I think that that will be sooner rather than later for much of this Bill, but will the Minister explain the difference? Why is there a specific date for section 18, but a much broader power for the remaining provisions?
Subsection (5) refers to various pieces of legislation, including the Financial Services and Markets Act 2022, Financial Conduct Authority and Prudential Regulation Authority rules, and the Financial Services (Banking Reform) Act 2013, as not being applicable to this Act. We have tried to exclude and carve out various pieces of legislation from this Bill, because we believe that some provisions are important for our constituents. I wonder what the rationale is for deciding that those particular provisions are so special that they deserve that treatment.
Graham Stuart
In short, it is because clause 18 covers the business impact target, which is an internal Government process, so I hope that answers the hon. Gentleman’s question.
Amendment 7 agreed to.
Question put, That the clause, as amended, stand part of the Bill.
The Chair
We come to new clause 1, which has already been debated. I call Brendan O’Hara to move new clause 1 formally.
Peter Grant
On a point of order, Sir Gary. I am looking for some clarification. The earlier amendments that would have introduced these new clauses were voted down, so we were unsure whether the new clauses themselves could still be voted on, or whether they had automatically been deemed to have fallen.
The Chair
I think I have made a slight error, so we will move on. The new clauses have fallen—my apologies.
New Clause 8
Conditions for bringing sections 3, 4 and 5 into force
“(1) None of sections 3, 4 or 5 may be brought into force unless all the following conditions have been satisfied.
(2) The first condition is that a Minister of the Crown has, after consulting organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, that section on a draft of that report, laid a report before each House of Parliament setting out, with reasons, the Minister’s view as to the likely advantages and disadvantages of bringing that section into force, setting out in particular the effect of that section on—
(a) the rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare;
(b) legal certainty, and the clarity and predictability of the law;
(c) the operation of the Trade and Cooperation agreement between the United Kingdom and the EU, and UK exports of goods and services to the European Economic Area; and
(d) the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.
(3) In relation to section 4, that report must take into account any regulation made or likely to be made by a relevant national authority under section 8(1).
(4) The second condition is that a period of sixty days has passed since that report was laid before Parliament, with no account to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.
(5) The third condition is that, after the end of that period, both Houses of Parliament have approved a resolution that that section come into force.
(6) If both Houses of Parliament have approved a resolution that that section should not come into force unless it is amended in a way set out in that resolution, then the Minister may by regulation amend that section accordingly, and that section may not be brought into force until that amendment has been made.”—(Justin Madders.)
This new clause requires Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles. It also includes opportunity for Parliamentary approval and timeframes for laying reports before both Houses.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 11—Impact assessments—
“(1) This section applies when—
(a) a relevant national authority is making regulations under section 12, 13, 15 or 16, or
(b) EU-derived subordinate legislation or retained direct EU legislation is to be revoked under section 1(1) of this Act and regulations made under section 2 do not apply to that legislation.
(2) Six weeks prior to the coming into force of the regulations or (as the case may be) three months before the revocation of the legislation, a relevant national authority must lay before Parliament the report required by subsection (3).
(3) The report required by this subsection must outline the impact the authority expects the regulations or (as the case may be) revocation to have on—
(a) the UK’s obligations under the Trade and Cooperation Agreement,
(b) divergence in standards, rights, protections and regulatory burden between component parts of the UK,
(c) the regulatory burden for businesses seeking to import or export goods or services, and
(d) level playing field provisions contained within bilateral trade agreements between the UK and countries outside the EU.
(4) If the report required by subsection (3) is not laid before Parliament by the date required by subsection (2), the regulations may not be made or (as the case may be) the legislation is, notwithstanding section 1(1), not revoked.”
This new clause will insert the requirement for taking out a comprehensive impact assessment when using the powers afforded by sections 12, 13, 15, and 16, and before the application of section 1(1) (sunset of retained EU law).
Justin Madders
The Government have a track record of inadequate impact assessments going back a few years, and they are not showing much sign of improvement with this Bill. Labour sees it as our duty to push for new clauses that would force the Government to wake up and properly assess the impact of this Bill and policies that will flow from it. As we are approaching the end of proceedings, I will try to keep this brief.
Subsections (1) and (2) of both new clauses should be somewhat familiar to those who have been following our new clauses closely. In both new clauses, subsection (1) simply states that the new clauses would apply to national authorities making regulations under clauses 12, 13, 15 and 16, or section section 1(1), and subsection (2) mimics the timeframe stipulations in our other new clauses; it requires that at least six weeks before the legislation comes into force, or at least three months before it is revoked, a report should be laid before the House that sets out the issues outlined in the new clauses.
The two new clauses differ in the issues that the impact assessments are designed to tackle. New clause 10 focuses on the impact that modifications will have on each authority’s obligations under section 149 of the Equality Act 2010. If Members are unaware of what that includes, it is a duty to consider the need to
“eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act…advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”
and
“foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
Those are principles that I hope all members of the Committee can sign up to, so it should not be seen as an unreasonable requirement on the Government to prepare such an assessment. In fact, I would be deeply concerned if they were not planning to do that as a matter of course.
The Minister told us last week that the Government were committed to retaining all necessary equality legislation. Leaving aside the question of who decides whether legislation is necessary, if the Government were committed to maintaining equality, they would surely as a matter of course want to know the impact on equalities of all the changes that Ministers are giving themselves the power to make under the Bill. All the new clause does is require the Government to lay a report on these issues before Parliament in good time. Can the Minister tell us whether the Government intend to undertake equality impact assessments of each legislative change in the Bill? He mentioned this morning that there was a commitment to undertaking assessments, but I do not think that we specifically heard that there would be equality impact assessments.
I remain sceptical that we will get the full and proper assessments that we need, because there has been little time and space for proper scrutiny and assessment of the consequences of the powers that Ministers are giving themselves in the Bill. That is, of course, not an accident. As I argued last week, it is by design, so that as little attention as possible is drawn to the impact of any changes that the Bill may deliver.
Tom Randall (Gedling) (Con)
I stand to be corrected, but my understanding is that equality impact assessments under the 2010 Act are not a legal requirement anymore. If I am right on that—I may not be—are the Opposition requiring an equality impact assessment for this Bill alone, or is this part of a broader change in their approach?
Justin Madders
Of course, we can talk only about the effects of the Bill, so the proposal is limited to the Bill at this stage. If the hon. Member has been listening throughout the last three days, he will know that Ministers’ powers to revoke and amend EU legislation have a range of potential implications on equalities. That is why an assessment is particularly important in this instance. Our concern is that the Government do not want it in the public domain that changes under the legislation will lead to Equality Act obligations being failed or less stringent. They seem to be trying to ensure, either by accident or design, that the legislation passes without the microscope of scrutiny and assessment that we think is necessary when talking about basic protections and equality laws.
We parliamentarians should be concerned about the consequences of any legislation that we pass. Our new clauses address that. They do not just set out a requirement to report on obligations under the Equality Act. In new clause 11 we ask for a more general impact assessment, including of the effect on our obligations under the trade and co-operation agreement, which we discussed briefly, and on divergences in rights, standards protections and regulatory burdens in the component parts of the UK. We discussed that, and why it is important, this morning.
We have already discussed the regulatory burdens incurred by businesses seeking to import and export goods and services, and the level playing field provisions in bilateral trade agreements between the UK and the EU, so I will not detain the Committee by setting out why those assessments are vital for the Bill. One would hope that those issues were being factored into any decisions made by Ministers under the powers in the Bill, but there are two key problems that would be made less likely as a result of the impact assessments under new clause 11. Proposed new subsection (3)(a) and (d) would ensure that the assessment highlighted the potential for changes to break international trade obligations. Proposed new subsection (3)(b) and (c) would require the assessment to ensure that the impact on our economy was minimal.
The Minister does not need me to tell him that if the Government decide that basic employment or environmental protections should no longer apply, they will potentially be in breach of the level playing field provisions in the TCA. That is probably the headline example of why we think that impact assessments are important. We certainly do not want to enter into a trade war. All we ask is that the Government make available to parliamentarians the details of what they have taken into consideration. Given how short a period the Government have in which to process every retained law, it is important that the assessment is available to parliamentarians. It will help us to identify any potential burdens on businesses and, significantly, whether there will be divergences across the country—an issue that we have already discussed. It is important that those issues are picked up at an early stage before regulations are passed.
We rely on the Government to undertake the necessary due diligence, but at the moment, we parliamentarians will not see the benefit of it. That is why I tabled the new clauses. We are trying not to place unreasonable restrictions on the Government, but we parliamentarians need the right information to scrutinise the changes. Unfortunately, assessments in recent times have been pretty flimsy. The Regulatory Policy Committee described the impact assessment for the Bill as “weak” or “very weak” in every respect. It said:
“As first submitted, the IA was not fit for purpose as it failed to consider adequately the full impacts of the Bill, in line with RPC primary legislation guidance. Specifically, the RPC highlighted, in its initial review, that the IA had not…provided a clear baseline position, with respect to the overall number of REUL”,
which of course is something that we are still waiting to get to the bottom of,
“that was in scope of the Bill and would, potentially, be retained, amended or sunset”.
We have discussed the question of what is in scope. The report also said that the impact assessment had not
“clarified whether other legislation that is in progress, will have impacts on some of the REUL contained in the overall figure of over 2,400 pieces of REUL”,
or 3,800, depending on which report we believe.
The Regulatory Policy Committee also said:
“The Department was not clear on how the different legislation would interact with the Bill”,
nor had it
“discussed, or set out, any examples of the REUL that is likely to be sunset, despite the Department having previously published extensive assessments of candidate REUL that could be changed or removed…The Department had not drawn upon any evidence or analysis, which was used to support those prior legislative changes, to provide an indication of the potential impacts associated with amending/replacing”
legislation, nor had it
“provided a more considered assessment of the full range of impacts of the Bill”,
so—
The Chair
We will continue with the excellent speech being made by the shadow Minister, the hon. Member for Ellesmere Port and Neston. If you feel that there are points that we may have forgotten, you may wish to repeat them.
Justin Madders
With that encouragement, I will start from the beginning. Hon. Members will be relieved to hear that I was actually reaching my peroration. The new clauses are designed to address our concerns about the amount of consideration that has been given to the Bill’s impact. We are continually told that this is a framework Bill. What confidence can we have that there will be sufficient assessment of the powers in the Bill? It is not outlandish or unreasonable to ask the Government to identify and critique the impact of the changes that they intend to make. Any prudent Government would seek to do that, given the nature of the Bill. For that reason, I hope that the Minister will finally agree, at the fag end of this Committee, to the new clause.
Graham Stuart
I ask the Committee to reject the new clause. I assure the hon. Gentleman that the Government take their responsibilities under the Equality Act 2010 very seriously. We would never intend to bring forward legislation that does not comply with that law. The Government will continue to provide equality impact assessments for regulations that engage a relevant public sector equality duty, as is good practice. We follow our responsibilities under the Equality Act, and will continue to do so when the Bill becomes law. With no further ado, I ask the hon. Gentleman to consider withdrawing the new clause.
Justin Madders
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 12
Assessment of impact on governance
“(1) Each relevant national authority must, within 28 days of the passage of this Act, lay before Parliament a report on—
(a) the projected cost incurred by each Government department or relevant national authority of complying with the requirements of sections 1 to 23 of this Act;
(b) the projected number of staff required by each Government department or relevant national authority to process all of the relevant retained EU law by the deadline in section 1(1);
(c) the amount of Parliamentary time expected to be needed to process the legislation relevant to each Government department or relevant national authority; and
a timeline outlining how each Government department or relevant national authority plans to meet the deadline in section 1(1).”—(Justin Madders.)
This new clause will establish the requirement for relevant departments to publish an assessment of the impact of processing through all the retained EU Law before the deadline set by Clause 1(1).
Brought up, and read the First time.
Justin Madders
I beg to move, That the clause be read a Second time.
We are almost back where we started, with questions about governance and capacity. Despite spending the best part of three days scrutinising the Bill, we are no closer to getting satisfactory answers. The new clause requires each national authority to produce a report for its Parliament within 28 days of the Bill becoming law, setting out the costs that each Department expects to incur in complying with the Bill’s requirements, the projected number of staff required to process all the retained EU law before the 2023 cliff edge, and the amount of parliamentary time that will be needed to deal with all the legislation. Most importantly, the new clause requires national authorities to produce a plan for how that deadline will be met.
I hope that Members see why there is a need for that report. We are concerned, if not alarmed, about the level of denial in Government about what they are letting themselves in for. There will be consequences, possibly negative ones, because of that lack of understanding of the task ahead. Any big project needs a critical analysis of timescales, resources and capacity.
Say the Government decided to build a giant gas pipeline all the way to Arctic, and someone said, “Let’s have it done by the end of next year.” People might reasonably ask whether one could build a pipeline of that length in just over a year. If all we parliamentarians got back was an assurance that each Department had teams looking at what was involved, we might question whether those plans were realistic. If we were lucky, that Arctic pipeline might reach the Shetland islands by the end of next year. The Bill is that pipeline. It is a hopelessly optimistic, totally unrealistic and frankly reckless attempt to achieve something on a timescale that is driven entirely by political rather than practical considerations. For the umpteenth time, completing this task by the end of next year is not going to stop Brexit, because we have already left the European Union.
Graham Stuart
You will be surprised to learn, Sir Gary, that I ask the Committee to reject the new clause. I apologise to Government Members for the Opposition’s mournful tone. They may not realise that, here we are, restoring our sovereignty in this Parliament—restoring our law, rather than being subject to that of a foreign sovereign.
Through the legislation that my colleagues and I are helping to proceed through this House, we are seeking to ensure that this law is fit for the needs of the UK, Department by Department. We are challenging Departments to look at retained EU law to ensure it is fit for purpose. I admit we are giving them a challenging deadline by which to do that, but I make no apology for doing that, and nor does any other Government Member. We are ambitious; we want to get on with growing the UK economy and ensure we do so in the right way. The new clause would place an unnecessary and laborious burden on the very officials who should be dedicating their time to delivering the retained EU law reform programme.
Paul Blomfield
I am impressed by the Minister’s ambition, although I am not sure that everybody shares his confidence. Will he share with the Committee how realistic it is that that ambition will be realised? He will know that the previous Secretary of State, the right hon. Member for North East Somerset (Mr Rees-Mogg), was advised that, in his Department alone, it would take 400 civil servants to work on the 300 laws that need revision. What assessment has the Minister made of the impact that will have on the Department’s other work? If that figure is wrong, what is the correct figure? I am sure that, behind all that rhetoric, an awful lot of detailed work has gone on to work out how this will be put into practice.
Graham Stuart
I recognise that the retained EU law reform programme is a significant piece of work. However, it is the quickest and most efficient way to deliver the Bill’s objective and end retained EU law as a legal category in its current form—something that everyone who accepts the result of the referendum—
Graham Stuart
The hon. Gentleman, who represents the SNP, does, of course, have a problem with accepting the results of referendums. He never likes the result they come to! Those who have accepted the result will recognise that this is the best way to incentivise genuine reform of retained EU law in ways that work for all four nations of the UK and are consistent with the devolution settlements.
Peter Grant
If the Minister checks his record, he will find that in three of the four referendums I have voted in in Scotland, Scotland voted in accordance with my wishes, and only one of those has been in any way respected by the present Government. The Minister gave a great oration about how important it is for him that the laws affecting his country are made by his country. Could he then explain why it is that when he wants the laws that affect his country to be made by a Government elected by his country, he is a patriot, but when I want the laws affecting my country to be made by the Government elected by the people of my country, I am a narrow-minded separatist? Why is that?
Graham Stuart
Of course, the hon. Gentleman is part of Parliament. That is why he is sitting in this United Kingdom Parliament—because, when his electors and electors across Scotland were asked, “Do you want to be in an independent Scotland?”, they said no. Despite that, this false narrative is pushed on a daily basis by the separatists opposite, who try to suggest that they are being held against their will. In fact, the only will they are being held against is the will of the Scottish people, who refuse to comply with the demands of the separatist SNP, which does not listen to the results of a referendum taking place in Scotland.
Getting back to the Bill, Departments will be expected to develop a delivery plan that outlines their intention for each piece of retained EU law. The Brexit Opportunities Unit will work with Departments to draw up those delivery plans and ensure the legislative process proceeds smoothly. The delivery plans will be subject to scrutiny via an internal Government process or ministerial stocktake process. More information on that will follow, including information on how to factor these processes into statutory instrument timetables.
Turning to the body of law we are talking about, we are currently engaging with the National Archives to uncover any additional information on retained EU law. However, it is worth nothing that many statutory instruments uncovered by the National Archives have been recognised either as orphaned statutory instruments or as no longer applicable to our current legal framework. We are exploring various ways—whether that is star chambers or using the dashboard—to identify what REUL is kept or sunsetted. Although individual Departments will take responsibility, we in the Department for Business, Energy and Industrial Strategy will be helping to co-ordinate this across Government.
Alex Sobel (Leeds North West) (Lab/Co-op)
It is helpful that the Minister has given us some insight into the work of the National Archives. When does he think those regulations—whether orphaned or not—will appear on the dashboard so that we can see them? They are currently opaque for the rest of us.
Graham Stuart
The National Archives has a statutory duty, as the King’s printer, to ensure the statute book is accurate, so asking it to look at REUL is in its existing remit, and—going back to the question from the hon. Member for Ellesmere Port and Neston—it does not cost additional money. It is actually a fundamental part of its work. It is working on that and, like him, I hope to see progress as quickly as possible.
The Government have proved during the Brexit transition and covid-19 that they can deliver extensive legislative programmes to tight deadlines. In so many ways—I should not stray from the subject, so I will not—we have learned from those programmes, and will work with Parliament to bring an even more successful REUL SI programme before the House. I therefore ask the hon. Member for Ellesmere Port and Neston to consider withdrawing his new clause.
Justin Madders
We have had a slightly lively end to the proceedings. I want to pick up on some of the comments made by the Minister. He characterised our opposition to the Bill as not being ambitious—well, if we are in league with the Institute of Directors in saying that this Bill should be withdrawn, I cannot think of a more ambitious bunch of people. Its correct characterisation is that anyone who thinks the timescales in this Bill are realistic is deluded. There is a difference between reality and ambition, and at some point the Government will find the two colliding. I do not want be on the Government Benches when we have to deal with the fallout from that.
Justin Madders
We’ll see about that.
Whichever Benches I am on, I will always hold firm to the view that Parliament should be sovereign, and that Parliament should be the body that looks at laws and considers changes that affect our constituents. People voted in 2016 for Parliament to take back control, but the Bill does not do that; it gives control to Ministers. It wrenches control away from Parliament and the people we represent. At the core of this is a lack of transparency and a lack of confidence in the Government’s programme, because if they cannot tell us what they intend to do with the Bill and they do not want the light of scrutiny shone on their intentions, it suggests that they are not confident about what the public will say when those intentions become clear. A Government who are not confident in their own policies should not have the confidence of the public. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
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.
Retained EU Law (Revocation and Reform) Bill
Wednesday 18th January 2023
(1 year, 3 months ago)
Commons ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 18 January 2023 - (18 Jan 2023)
17:53 - The House divided: - Ayes: 239 / Noes: 297 - Question accordingly negatived.
18:07 - The House divided: - Ayes: 239 / Noes: 300 - Question accordingly negatived.
18:19 - The House divided: - Ayes: 238 / Noes: 301 - Question accordingly negatived.
18:32 - The House divided: - Ayes: 242 / Noes: 295 - Question accordingly negatived.
18:55 - The House divided: - Ayes: 297 / Noes: 238 - Question accordingly agreed to.
At or before the end of 2023 | After the end of 2023 |
|---|---|
Retained EU law | Assimilated law |
Retained case law | Assimilated case law |
Retained direct EU legislation | Assimilated direct legislation |
Retained direct minor EU legislation | Assimilated direct minor legislation |
Retained direct principal EU legislation | Assimilated direct principal legislation |
Retained domestic case law | Assimilated domestic case law |
Retained EU case law | Assimilated EU case law |
Retained EU obligation | Assimilated obligation |
The Minister for Industry and Investment Security (Ms Nusrat Ghani)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
New clause 2—Conditions for bringing sections 3, 4 and 5 into force—
“(1) None of sections 3, 4 or 5 may be brought into force unless all the following conditions have been satisfied.
(2) The first condition is that a Minister of the Crown has, after consulting organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, that section on a draft of that report, laid a report before each House of Parliament setting out, with reasons, the Minister’s view as to the likely advantages and disadvantages of bringing that section into force, setting out in particular the effect of that section on:
(a) the rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare;
(b) legal certainty, and the clarity and predictability of the law;
(c) the operation of the Trade and Cooperation agreement between the United Kingdom and the EU, and UK exports of goods and services to the European Economic Area; and
(d) the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.
(3) In relation to section 4, that report must take into account any regulation made or likely to be made by a relevant national authority under section 8(1).
(4) The second condition is that a period of sixty days has passed since that report was laid before Parliament, with no account to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.
(5) The third condition is that, after the end of that period, both Houses of Parliament have approved a resolution that that section come into force.
(6) If both Houses of Parliament have approved a resolution that that section should not come into force unless it is amended in a way set out in that resolution, then the Minister may by regulation amend that section accordingly, and that section may not be brought into force until that amendment has been made.”
This new clause requires Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles. It also includes opportunity for Parliamentary approval and timeframes for laying reports before both Houses.
New clause 3—Conditions on the exercise of powers under section 15 and 16—
“(1) The first condition is that the relevant national authority has consulted such organisations as appear to it to be representative of interests substantially affected by its proposals, and any such other persons as it considers appropriate, on a draft of those regulations.
(2) The second condition is that the national authority has, after that consultation has concluded and after considering any representations made to it, laid a draft of the regulations before each House of Parliament (or, as the case may be, the Scottish Parliament, Senedd or Northern Ireland Assembly), together with a report setting out, with reasons, the authority’s view as to the likely advantages and disadvantages of making those regulations, setting out in particular:
(a) a summary of the objectives and effect of those regulations as compared to the instrument that they will revoke, replace or modify;
(b) any difference as between that instrument and the proposed regulations in terms of protections for consumers, workers, businesses, the environment, or animal welfare;
(c) any benefits which are expected to flow from the revocation or replacement of that instrument;
(d) the consultation undertaken as required by subsection (2);
(e) any representations received as a result of that consultation;
(f) the reason why the national authority considers that it is appropriate to make those regulations, having considered those representations;
(g) the reasons why the national authority considers that section 15(5) (overall reduction in burdens) does not preclude the making of the regulations, explaining what burdens are reduced or increased as a result of the making of the regulations;
(h) the compatibility of the revocation, modification, or replacement of that instrument with obligations in the Trade and Cooperation Agreement between the United Kingdom and the EU, and the likely effect on UK exports of goods or services to the European Economic Area; and
(i) the likely effect of the revocation, modification, or replacement of that instrument on the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.
(3) The third condition is that a period of sixty days has passed since those draft regulations or that report were laid as required by subsection (2) with no account to be taken of any time during which Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru or Northern Ireland Assembly) is dissolved or prorogued or during which either House or that body is 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.
(4) The fourth condition is that the national authority has considered any representations made during the period provided for by subsection (3) and, in particular, any resolution or report of, or of any committee of, either House of Parliament (or, as the case may be of the Scottish Parliament, Senedd Cymru or Northern Ireland Assembly) with regard to the proposals, and has published its reasons for accepting or rejecting any such representations, resolution, or report.”
This new clause requires the relevant national authorities to consult with key stakeholders on proposed regulations revoking or replacing REUL, and to show Parliament their assessment of the impact of the changes
New clause 5—Powers to revoke or replace: application to environmental law—
“(1) This section applies in respect of provision which may be made by a relevant national authority under section 15 where the provision is in respect of secondary retained EU law which is environmental law.
(2) No provision may be made unless the relevant national authority considers that the provision will contribute to a significant improvement in environmental protection.
(3) The relevant national authority must—
(a) have regard to international environmental protection legislation and international best practice on environmental protection,
(b) comply with the requirements and objectives of the Aarhus, Bonn, Bern, Ramsar, OSPAR and Biodiversity Conventions, and
(c) comply with environmental principles and the policy statement on environmental principles.
(4) The relevant national authority must—
(a) seek advice from persons who are independent of it and have relevant expertise,
(b) seek advice from, as appropriate, the Office for Environmental Protection, Environmental Standards Scotland, a devolved environmental governance body or other person exercising similar functions, and
(c) publish a report setting out—
(i) how the provision will contribute to a significant improvement in environmental protection, and
(ii) how the authority has taken into account the advice from the persons referred to in paragraphs (a) and (b).
(5) In this section—
“Aarhus Convention” means The UNECE Convention on access to information, public participation in decision making and access to justice in environmental matters (Aarhus, 25 June 1998);
“Bern Convention” means the Council of Europe's Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979) [ratified / signed];
“Biodiversity Convention” means the UN Convention on Biodiversity (Rio, 1992);
“Bonn Convention” means The Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979);
“devolved environmental governance body” has the same meaning as in section 47 of the Environment Act 2021;
“environmental law” has the same meaning as in section 46 of the Environment Act 2021, but without the exception set out in section 46(3) and (4) (devolved legislative provision);
“environmental protection” has the same meaning as in section 45 of the Environment Act 2021;
“environmental principles” and “policy statement on environmental principles” have the same meanings as in section 17 of the Environment Act 2021;
“Environmental Standards Scotland” has the same meaning as in section 19 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021;
“international environmental protection legislation” has the same meaning as in section 21 of the Environment Act 2021;
“Office for Environmental Protection” has the same meaning as in section 22 of the Environment Act 2021;
“OSPAR Convention” means The Convention for the Protection of the Marine Environment of the North-East Atlantic (1992);
“RAMSAR Convention” means The Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar, 1971).”
This new clause creates additional conditions to be satisfied before the powers set out in clause 15 can be exercised where the subject matter of their exercise concerns environmental law.
Amendment 33, page 1, line 2, leave out clause 1.
This amendment deletes the sunset clause.
Amendment 18, page 1, line 4, leave out “2023” and insert “2026”.
This amendment moves the sunset of legislation from 2023 to 2026.
Amendment 28, 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.
Amendment 37, 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 Northern Ireland Assembly if it were contained in an Act of the Northern Ireland Assembly, or
(b) could be made in subordinate legislation by Ministers of the Northern Ireland Executive.”
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 Northern Ireland Executive and Assembly.
Amendment 38, 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 Senedd Cymru if it were contained in an Act of Senedd Cymru, or
(b) could be made in subordinate legislation by the Welsh Ministers 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 Senedd.
Amendment 19, 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 and
(m) The Health and Safety (Consultation with Employees) Regulations 1996.”
This amendment would exclude certain regulations which provide for workers’ protections from the sunset in subsection (1).
Amendment 21, page 1, line 9, at end insert—
“(2A) Subsection (1) does not apply to the following instruments—
(a) The REACH Regulation and the REACH Enforcement Regulations 2008,
(b) The Conservation of Habitats and Species Regulations 2017,
(c) The Conservation of Offshore Marine Habitats and Species Regulations 2017,
(d) The Urban Waste Water Treatment (England and Wales) Regulations 1994,
(e) The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010,
(f) The Bathing Waters Regulations 2013,
(g) Water Environment (Water Framework Directive) (England and Wales) Regulations 2017,
(h) The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (also known as the Farming Rules for Water),
(i) The Marine Strategy Regulations 2010,
(j) The Marine Works (Environmental Impact Assessment) Regulations 2007,
(k) The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017,
(l) The Plant Protection Products Regulations 1107/2009,
(m) The Sustainable Use Directive Regulation (EC) 396/2005,
(n) The National Emission Ceilings Regulations 2018,
(o) Invasive Alien Species (Enforcement and Permitting) Order (2019),
(p) Directive 2010/63 on the protection of animals used for scientific purposes,
(q) Directive 1999/74 laying down minimum standards for the protection of laying hens,
(r) Regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof, and
(s) The Welfare of Animals (Transport) (England) Order 2006.”
This amendment would exclude certain legislation which provides for environmental protections from the sunset in subsection (1).
Amendment 24, page 1, line 9, at end insert—
“(2A) Subsection (1) does not apply to the following instruments—
(a) The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005,
(b) Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations,
(c) The Consumer Rights (Payment Surcharges) Regulations 2012,
(d) The Electrical Equipment (Safety) Regulations 2016,
(e) The Toys (Safety) Regulations 2011,
(f) The Control of Asbestos Regulations 2012,
(g) The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015,
(h) The Cocoa and Chocolate Products (England) Regulations 2003,
(i) Commission Regulation (EU) No 748/2012 of 3 August 2012,
(j) The Representation of the People (England and Wales) Regulations 2001, and
(k) The Bauer [C-168/18] and Hampshire [C-17/17] judgements.”
This amendment would exclude certain retained EU law which provides for consumer protections from the sunset in subsection (1).
Amendment 36, page 1, line 12, at end insert—
“(3A) The Secretary of State must, no later than three months before the date specified in subsection (1), publish a list of all legislation being revoked under this section (the “revocation list”) and lay a copy before Parliament.
(3B) With each update of the revocation list up to the date specified in subsection (1), the Secretary of State must lay an updated copy of the revocation list before Parliament.
(3C) Any legislation not included in the revocation list, as updated, on the date specified in subsection (1) is not revoked.
(3D) At any time before the date specified in subsection (1), the House of Commons may by resolution amend the revocation list by adding or removing instruments specified in the resolution, and the Secretary of State must accordingly lay the updated revocation list before Parliament.
(3E) At any time before the date specified in subsection (1), the House of Lords may by resolution propose amendment of the revocation list by adding or removing instruments specified in the resolution.
(3F) If the House of Commons does not pass a motion disagreeing with a resolution of the House of Lords under subsection (3E) within ten days of the date of that resolution, the Secretary of State must amend the revocation list in accordance with the resolution of the House of Lords and lay the updated version before Parliament.
(3G) If the Secretary of State does not amend the revocation list when required to do so by paragraphs (3D) or (3F) before the date specified in paragraph (1), the revocation list will be deemed to have been amended as specified in the resolution of the relevant House of Parliament, and the relevant legislation will be treated as though the change has been made.
(3H) Any legislation to which section (3C) applies is not to be considered as either retained EU law or assimilated law.”
This amendment would require the Government to publish an exhaustive list of every piece of legislation being revoked under the Sunset Clause, and allow for Parliamentary oversight of this process so that it is the House of Commons which has the ultimate say on which legislation is affected.
Amendment 29, in clause 2, page 2, line 12, 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.”
This amendment clarifies what provisions would be devolved and therefore under the competence of Scottish Ministers for decision, rather than a Secretary of State.
Amendment 39, page 2, line 12, at end insert—
“(1A) Subsection (1) has effect in relation to provision which is within the competence of the Welsh Ministers as if, after “A Minister of the Crown”, there were inserted “or the Welsh Ministers”.
(1B) A provision is within the devolved competence of the Welsh Ministers for the purposes of this section if—
(a) it would be within the legislative competence of Senedd Cymru if it were contained in an Act of Senedd Cymru, or
(b) it is provision which could be made in other subordinate legislation by the Welsh Ministers acting alone.”
This amendment clarifies what provisions would be devolved and therefore under the competence of Welsh Ministers for decision, rather than a Secretary of State.
Government amendments 1, 3 and 6.
Amendment 26, in clause 7, page 4, line 36, at end insert—
“(d) the undesirability of disturbing settled understandings of the law, on the basis of which individuals and businesses may have made decisions of importance to them;
(e) the importance of legal certainty, clarity and predictability; and
(f) the principle that significant changes in the law should be made by Parliament (or, as the case may be, the relevant devolved legislature).”
This amendment adds further conditions for higher courts to regard when deciding to diverge from retained EU case law.
Government amendments 7 to 17 and 2.
Amendment 20, in clause 15, page 17, line 28, at end insert—
“(1A) 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 and
(m) The Health and Safety (Consultation with Employees) Regulations 1996.”
This amendment would exclude certain legislation which provides for workers’ protections from the power to revoke without replacement in subsection (1).
Amendment 22, page 17, line 28, at end insert—
“(1A) Subsection (1) does not apply to the following instruments—
(a) The REACH Regulation and the REACH Enforcement Regulations 2008,
(b) The Conservation of Habitats and Species Regulations 2017,
(c) The Conservation of Offshore Marine Habitats and Species Regulations 2017,
(d) The Urban Waste Water Treatment (England and Wales) Regulations 1994,
(e) The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010,
(f) The Bathing Waters Regulations 2013,
(g) Water Environment (Water Framework Directive) (England and Wales) Regulations 2017,
(h) The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (also known as the Farming Rules for Water),
(i) The Marine Strategy Regulations 2010,
(j) The Marine Works (Environmental Impact Assessment) Regulations 2007,
(k) The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017,
(l) The Plant Protection Products Regulations 1107/2009,
(m) The Sustainable Use Directive Regulation (EC) 396/2005,
(n) The National Emission Ceilings Regulations 2018,
(o) Invasive Alien Species (Enforcement and Permitting) Order (2019)
(p) Directive 2010/63 on the protection of animals used for scientific purposes,
(q) Directive 1999/74 laying down minimum standards for the protection of laying hens,
(r) Regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof, and
(s) The Welfare of Animals (Transport) (England) Order 2006.”
This amendment would exclude certain legislation which provides for environmental protections from the power to revoke without replacement in subsection (1).
Amendment 25, page 17, line 28, at end insert—
“(1A) Subsection (1) does not apply to the following instruments—
(a) The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005,
(b) Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations,
(c) The Consumer Rights (Payment Surcharges) Regulations 2012,
(d) The Electrical Equipment (Safety) Regulations 2016,
(e) The Toys (Safety) Regulations 2011,
(f) The Control of Asbestos Regulations 2012,
(g) The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015,
(h) The Cocoa and Chocolate Products (England) Regulations 2003,
(i) Commission Regulation (EU) No 748/2012 of 3 August 2012,
(j) The Representation of the People (England and Wales) Regulations 2001, and
(k) The Bauer [C-168/18] and Hampshire [C-17/17] judgements.”
This amendment would exclude certain legislation which provides for consumer protections from the power to revoke without replacement in subsection (1).
Amendment 34, page 18, line 12, at end insert—
“(4A) No regulations may be made under this section unless the conditions set out in section [Conditions on the exercise of powers under section 15 and 16] have been complied with.”
This amendment ensures that the powers to revoke or replace would be subject to restrictions as laid out in NC3.
Amendment 23, page 18, line 13, leave out subsections (5) and (6).
This amendment will remove the restriction on the replacement of EU law that states it must not add to the regulatory burden.
Amendment 35, in clause 16, page 19, line 9, at end insert—
“(3) No regulations may be made under this section unless the conditions set out in section [Conditions on the exercise of powers under section 15 and 16] have been complied with.”
This amendment would ensure that the power to update would be subject to the restrictions laid out in NC3.
Amendment 30, in clause 20, page 20, line 38, 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.”
This amendment adds protection for devolved competence, denying any Secretary of State the chance to revoke REUL within devolved competence.
Government amendments 4 and 5.
Government new schedule 1—“Assimilated law”: consequential amendments.
Amendment 31, in schedule 3, page 34, line 38, 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.
Ms Ghani
It is a pleasure to be here, and I thank all Members who have tabled new amendments and new clauses and who will speak in the debate. I also thank the members of the Public Bill Committee for their work.
I will address the Government new clauses and amendments first, but I will say more about them in my closing speech when other Members have had a chance to contribute. I will also address some of the concerns that have been raised, and some of the misinformation about the Bill.
The Government new clauses and amendments are minor and technical. They cover four areas. The first is updating the definition of “assimilated law” and how it should be interpreted, and, in the case law provisions, ensuring that the High Court of Justiciary is covered in all instances. I thank the Scottish Government for their engagement: there has been engagement between our officials and those in the Scottish Government, and with the Advocate General. Our new clauses also clarify the fact that the use of extension power also applies to amendments to retained EU law made between the extension regulations and the sunset, and clarify the application of clause 14 to codification as well as restatement. These are technical drafting measures, and I ask the House to support them.
Let me now explain why the Bill is crucial for the UK. My explanation will directly cover many of the new clauses and amendments. The Bill will end the special status of retained EU law on the UK statute book by the end of 2023. It constitutes a process. Considerable work has been done with officials across Whitehall and with the devolved authorities; that work has been proportionate, and has been taking place for over 18 months. I cannot stress enough the importance of achieving the 2023 deadline. Retained EU law was never intended to sit on the statute book indefinitely. It is constitutionally undesirable, as some domestic laws, including Acts of Parliament, currently remain subordinate to some retained EU law. The continued existence on our statute book of the principle of supremacy of EU law is just not right, as we are a sovereign nation with a sovereign Parliament.
Sir Robert Neill (Bromley and Chislehurst) (Con)
We all accept that the status of EU law must change and that it will have to be reassimilated into domestic law in due course. No one argues with that. Will the Minister not reflect that it is constitutionally unacceptable to create what the Law Society—which might know a little more about the law than politicians and civil servants—described as a “devastating impact” on legal certainty and business confidence? To do so by means of Henry VIII powers so wide that all scrutiny is, in effect, removed from this House is not taking backing control but doing the reverse of what the Government seek to do.
Ms Ghani
I always respect my hon. Friend’s opinion, but he is fundamentally mistaken. We have undertaken a considerable amount of consultation with our courts and have worked with them consistently. It is absolutely right that we deliver Brexit by ensuring that laws made here are sovereign over EU laws.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) is fundamentally wrong. The Bill is providing legal certainty. Rather than having a flow of EU law interpreted according to EU principle, from now on we will have a single set of laws within this country. That must be certainty rather than otherwise.
Several hon. Members rose—
Ms Ghani
Before I take any more interventions, I want to address the point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) about the Henry VIII powers. That is a misrepresentation of what is happening. Each Department will review and then amend, assimilate or revoke EU law. Each Department’s Secretary of State will be responsible for the decisions they take. All the laws are on the dashboard, which will be updated once again, and we will be codifying the retained EU law. In the absence of the application of supremacy, restating a rule in primary legislation could lead to the same policy effect as the rule itself currently has. The Bill just sets out a process to allow each Department to take a decision. Why would we not want to review the EU law that is out there and assess what needs to be assimilated? If we can amend and update it, why would we not do that?
Sir John Hayes (South Holland and The Deepings) (Con)
Notwithstanding the charmingly innocent faith in lawyers of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the key thing about our decision to leave the European Union is that sovereignty lies in this place and with the people to whom we are accountable. The point about this measure is that it will allow exactly that sovereignty to be exacted in practice with regard to retained EU law.
Ms Ghani
Absolutely. When decisions are taken either to amend or to revoke, the usual channels will be followed in Parliament. Committees will be put in place and decisions will be reviewed the Leaders of both Houses. Decisions can be taken openly and transparently. We also have the dashboard, which will be updated and already has thousands of EU laws on it.
Sammy Wilson (East Antrim) (DUP)
The Minister is right that the whole point of Brexit was to take control of our own laws. She is also right that there needs to be a single set of laws across the United Kingdom. But the Bill makes it clear that we will not have a single set of laws across the United Kingdom, because a wide range of laws in Northern Ireland are exempt from the provisions of the Bill. Furthermore, in future when EU law changes and applies in Northern Ireland, the gap between the laws in the rest of the United Kingdom and Northern Ireland will get ever wider. Does she accept that unless the protocol is dealt with, there is a real danger that Northern Ireland will be treated differently and be constitutionally separated from the United Kingdom?
Ms Ghani
My right hon. Friend raises a very important issue. As it is sensitive, he must allow me a moment to ensure that my response is accurate. The UK Government are committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the Northern Ireland protocol and the trade and co-operation agreement after the sunset date. The Bill will not alter the rights of EU nations that are protected, or eligible to be protected, by the relevant provisions in the Northern Ireland protocol. The Bill contains provisions that, when exercised appropriately, will ensure the continued implementation of our international obligations, including the Northern Ireland protocol.
It is our preference to resolve the Northern Ireland protocol issue through talks. The Government are engaging in constructive dialogue with the EU to find solutions to these problems. I must put on record that officials have been working with officials in Northern Ireland for the last 18 months. We know how important and sensitive this issue is.
Ms Ghani
I will just make a little progress before I take more interventions.
I cannot stress enough the importance of achieving the deadline. The retained EU law was never intended to sit on the statute books indefinitely. On 31 January last year the Government announced plans to bring forward the Bill, which is the culmination of the Government’s work to untangle ourselves from decades of EU membership. It will permit the creation of a more agile, innovative and UK-specific regulatory approach, benefiting people and businesses across the UK.
It is a priority of the Government that the United Kingdom will be the best place to start and grow a business. The Bill contains powers that will allow us to make good on that promise. It will allow outdated and often undemocratic retained EU law to be amended, repealed or replaced more quickly and easily than before. It will remove burdens on business and create a more agile and sustainable legislative framework to boost economic growth.
Sir James Duddridge (Rochford and Southend East) (Con)
I am sure that my hon. Friend will remember being on the Back Benches and sitting in statutory instrument Committees in which we had no ability whatsoever to change the legislation going through, because it was driven by the European Union. This is about taking back control by giving democratic authority to this place. Furthermore, on things such as maternity leave, minimum wage, annual leave, product safety and international regulations we are already doing better than the EU minimum standards. This Government will promise to keep those standards and, in many cases, increase them.
Ms Ghani
My hon. Friend is absolutely right. There has been a lot of misinformation about the environment. The Department for Environment, Food and Rural Affairs has committed to maintain or enhance standards. He is right that we had very little say over positions taken in Brussels, but now, in the Bill, those decisions are taken by the devolved authorities. That will remain devolved and they will have a say, so why would they want to give away that power?
Ian Blackford (Ross, Skye and Lochaber) (SNP)
The Minister spoke of taking back control, but the harsh reality is that the Government are taking back control from the Scottish Parliament. Yesterday we heard about the UK Government enacting section 35 to strike out a Bill of the Scottish Parliament. The Scotland Act 2016 contains the Sewel convention, which requires the UK Government to obtain the consent of the Scottish Parliament when they are acting in devolved matters. The Scottish Government are not giving their consent. What is good for the goose is good for the gander. Why should the Scottish Government not have the right to veto this Bill, which tramples over devolution and our laws in a way that we do not consent to?
Mr Deputy Speaker (Sir Roger Gale)
Order. Could I gently say to the Minister that in order to facilitate Hansard and hon. Members seeking to hear, it would be helpful if she could address the microphone rather than the Back Benches?
Ms Ghani
My apologies, Mr Deputy Speaker.
The question is, why would the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) not take the power that the Scottish Government will be given through this Bill when it comes to devolved matters, to look at the EU laws and see whether they want to maintain them or enhance them for their own people? Why would they want to reject the power that they have been offered through this Bill? We remain fully committed to the Sewel convention. It is an essential element of the devolution settlement. The UK Government continue to seek legislative consent for Bills that interact with devolution. The right hon. Member’s argument does not make any sense. My worry is that Scottish Government do not want the powers because then they will have to exercise them. I know it is a little bit of work, but it is worth doing.
This Bill provides the opportunity to improve the competitiveness of the UK economy while maintaining high standards. It will ensure that the Government can more easily amend, revoke or replace retained EU law, so that the Government can create legislation that better suits the UK. This programme of reform must be done. The people of the UK did not vote for Brexit with the expectation that nearly a decade later, politicians in Westminster would continually rehash old and settled arguments, as those on the Opposition Benches so love to do. We must push on and seize the opportunities that Brexit provides. That will ensure that our economy is dynamic and agile and can support advances in technology and science.
Geraint Davies (Swansea West) (Lab/Co-op)
On agility, the Minister will know that the majority of the thousands of rules that need to be changed are in the environmental area. Does she think it is a good idea that civil servants are completely distracted and focused on the changes to these rules when we have one in four people in food poverty, 63,000 people dying a year due to poor air quality, sewage pouring into our seas and crabs dying off the north-east coast? Would it not be better if the civil servants and the Government tackled those problems rather than going down a rabbit hole and inventing worse standards than the EU, such as trying to get to World Health Organisation air quality standards by 2040, which the EU is trying to get to by 2030?
Ms Ghani
I think many people coming into the debate today think that this is the start of something, but this process has been in place for more than 18 months, and DEFRA has committed to maintain or enhance standards. The constant misinformation given out over what is happening on the environment is simply incorrect. DEFRA has already taken decisive action to reform areas of retained EU law and it already has flagship legislation on our statute book, including the Environment Act 2021, the Fisheries Act 2020 and the Agriculture Act 2020, all on powers that the SNP wants to give back to Brussels. The Environment Act strengthens our environmental protections while respecting our international obligations. It is simply incorrect to suggest that the Government will be weakening any of those protections. The Environment Act has set new legally binding targets, including to halt and reverse nature’s decline. Those targets, with oversight from the Office for Environmental Protection, will ensure that any reform to retained EU law delivers positive environmental outcomes. DEFRA will also conduct proportionate analysis of the expected impacts, so it is absolutely incorrect to misrepresent this Bill.
Stella Creasy (Walthamstow) (Lab/Co-op)
The hon. Member for Rochford and Southend East (Sir James Duddridge) talked about statutory instrument Committees. I think all of us have sat on statutory instrument Committees, where we know that it is a question of like it or lump it when it comes to what is being proposed. Under this Bill, Ministers will have powers over key issues that our constituents care about. The Minister talks about the dashboard and admits that it still needs to be updated. As a matter of good democratic practice, will she give us, here and now, today, the exact number of laws covered by this Bill, so Members of this House can at least have some sense of the task that they are voting for? If she cannot tell us how many laws are covered, it is definitely not clear to us how any of us can influence them.
Ms Ghani
The hon. Member was very astute in Committee, and we spent many hours together discussing this. The dashboard is public. It has had more than 100,000 views to date. I was on it only last night. It has thousands of laws on it, and it will be updated again this month. There is a process within each Department, which is why a unit has been established to work with each Department across Whitehall. Every EU law that is identified will be put on the dashboard. So it is public, it is accessible, and all the information is out there.
I must just respond to another point that the hon. Member raised, once again, about scrutiny in this place, because it is being misrepresented—[Interruption.] Unfortunately, it is. The Bill will follow the usual channels for when laws are being either amended or revoked. The Leaders of the two Houses will meet and the business managers will take a decision. The Delegated Powers and Regulatory Reform Committee in the House of Lords has already said that it is comfortable with the way the Bill will progress and the laws will be scrutinised, and the European Statutory Instruments Committee has said that it is comfortable with the way the laws will be scrutinised and assessed. So there is a process in place, as there was for a no-deal Brexit. The crunch is: if you do not like Brexit and if you did not like the way the Brexit vote that took place, you are not going to like any elements of this Bill.
Saqib Bhatti (Meriden) (Con)
Just before that intervention, the Minister was talking about the environment. Is it not the case that Members on this side of the House have delivered the Environment Act, that we are perfectly capable of making our own laws and delivering for the British people and that we do not need guidance from the European Union, unlike those on the Opposition Benches?
Ms Ghani
Absolutely. We on this side of the House have done a tremendous amount of work that did not require us to be directed by bureaucrats in Brussels. This gives me a great opportunity to point out all the fantastic work that we have achieved.
First of all, I must just say again that we will be maintaining and enhancing environmental standards. I want to touch on a list of things that we have achieved, especially on animal welfare, which has been a huge priority for Government Members. We have had the Animal Welfare (Sentencing) Act 2021 and the Animal Welfare (Sentience) Act 2022. Since 2010, we have had new regulations on minimum standards for meat and chickens, banned the use of conventional battery cages for laying hens, made CCTV mandatory in slaughterhouses in England, made microchipping mandatory for dogs in 2015, modernised our licensing system for a range of activities such as dog breeding and pet sales, protected service animals via Finn’s law, banned the commercial third-party sale of puppies and kittens via Lucy’s law, passed the Wild Animals in Circuses Act 2019 and led work to implement humane trapping standards. Our Animal Welfare (Kept Animals) Bill will further the rights of animals outside the EU, including the banning of export of live animals for slaughter and fattening. It is remarkable how much we can achieve when we are left to our own devices.
Ms Ghani
I will just make a little bit of progress.
As I have said, the sunset clause is necessary and is the quickest and most effective way to pursue retained EU law reform. It is only right to set the sunset and the revocation of inherited EU laws as the default position. It ensures that we are proactively choosing to preserve EU laws only when they are in the best interests of the UK. It ensures that outdated and unneeded laws are quickly and easily repealed. It will also give the Government a clear timeline in which to finish the most important tasks. Some retained EU laws are legally inoperable, and removing them from the statute book easily is good democratic governance. Requiring the Government to undergo complex and unnecessary parliamentary processes to remove retained EU law that is no longer necessary or operable, and can more easily be removed, is not good governance.
Mike Amesbury (Weaver Vale) (Lab)
Surely parliamentary sovereignty is giving Members of Parliament control, not the Executive or bureaucrats in Whitehall.
Ms Ghani
The reality is that Ministers take decisions all the time, and there is a process in place where laws are amended or updated if there is a significant policy change. The same policy process will be in place. If the hon. Member is not comfortable with Conservative Ministers taking those decisions or with the SI process that is already in place, fundamentally he is just not comfortable with the decisions we are taking because we are taking these rules from Europe and placing them here on our UK statute book. That is a different argument altogether.
Vicky Ford (Chelmsford) (Con)
I want to react to what I think I heard the Minister saying when she suggested that those of us who did not support Brexit in the referendum would not support this Bill. That is not the case. As someone who did not vote for Brexit but who absolutely recognises that democratic choice and respects the referendum, I do support the premise of the Bill. We need to look at the EU law, although there are elements of the Bill we could improve on to give some certainty, and I hope that I will be called to speak later.
Ms Ghani
I would not want to misrepresent my right hon. Friend’s position. The point I was making was that Opposition Members who have complained about the Bill have a particular position that has been long held because of the outcome of the vote that took place.
We believe it is right that the public should know how much legislation there is derived from the EU, and know about the progress the Government are making. For that reason, we have published a public dashboard—perhaps colleagues would like to go on to the site for a moment—containing a list of UK Government retained EU law. The site will also document the Government’s progress on reforming retained EU law and will be updated regularly to reflect plans and actions taken. It will be updated again this month. I was slightly inaccurate earlier: there have in fact been 148,727 visitors to that site. It is not as if people are in the dark. There are many opportunities to be aware of what we are doing.
Caroline Lucas
I am grateful to the Minister for finally giving way. She is suggesting that those of us who oppose the Bill are opposing it for some kind of ideological reason. I draw her attention to the words of the chair of the Office for Environmental Protection, who herself said:
“Worryingly, the Bill does not offer any safety net, there is no requirement to maintain existing levels of environmental protection”.
Not only that, there is actually a requirement not to go on and make the legislation stronger. That is written into the Bill.
On the issue of certainty, I do not know how the Minister can stand there and pretend that this is about certainty when businesses have no idea which laws will be in or out and when she does not know how many laws are on her dashboard.
On democracy, when we were in the European Union we at least had Members of the European Parliament who had a say over these things. When the laws come back here, we have no say over them at all; it is all with Ministers. Is that what she means when she says this is supposed to be a good Bill that is full of opportunities from Brexit?
Ms Ghani
The hon. Lady has got the meme for her Facebook page. Unfortunately, she wholly misrepresents what the Bill is doing. Environmental standards will be maintained or enhanced. At the moment, the laws that come down from Brussels on the environment and land cover everything from the Arctic to the Mediterranean. This Bill is a great opportunity to maintain, to enhance and to review what more we can do to make things better for our environment across the UK. We already have flagship legislation in place: the Environment Act 2021, the Fisheries Act 2020 and the Agriculture Act 2020. The Office for Environmental Protection has been fully established to enforce those elevated environmental rules and standards. The water framework directive covers our water. Instead of misrepresenting what the Bill does, why not take the opportunity to ensure that we enhance provision for what we are not maintaining?
Alexander Stafford (Rother Valley) (Con)
Listening to the Opposition, we might think that the EU is the land of milk and honey when it comes to the environment. This is the same EU that put fossil fuels and gas in last year’s green taxonomy. Getting out of the EU allows us to have our own taxonomies and to make far greener efforts than naming gas as a green technology, which it is not.
Ms Ghani
We can make sure that we have a better focus on renewables, and we can take the decisions that work best for our communities. Fundamentally, we are maintaining and enhancing. We must not forget that the Department for Environment, Food and Rural Affairs has been able to introduce substantial law on water, animals and land. I have covered the dashboard, and I assume colleagues will now be pouncing on it.
Departments have been actively working on their retained EU law reform plans for well over 18 months to ensure that appropriate action is taken before the sunset date. Additional work to lift obsolete laws will inevitably be slow, but that work will continue. We cannot allow the reform of retained EU law to remain merely a possibility. The sunset provision guarantees that retained EU law will not become an ageing relic dragging down the UK. It incentivises the genuine review and reform of retained EU law in a way that works best for the UK. What reforms are desirable will differ from policy area to policy area.
As my hon. Friend the Member for Watford (Dean Russell), the then Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, said on Second Reading, the environment is one of the Government’s top priorities. We will ensure that environmental law works for the UK and improves our environmental outcomes. As I said, we will be maintaining and enhancing. The Bill does not change the Environment Act, and we remain committed to delivering our legally binding target to halt nature’s decline by 2030.
Fleur Anderson (Putney) (Lab)
Many constituents have been in touch with me with their concerns about habitat protection, maternity leave protection and other issues. The National Archives says that 1,300 additional pieces of legislation are not necessarily in scope. Can the Minister give more clarity on how many pieces of legislation this Bill will cover?
Ms Ghani
We are working across Departments to cover laws that will either be assimilated, amended or revoked. We are finding that a number of those laws are obsolete, and the fact we are still identifying them is good. We are putting them on the dashboard as soon as we can, and we will update the dashboard again this month. It is right that we conduct this exercise to know where we are and to ensure that we refer to UK law where we assimilate, and that we amend it to improve the situation for our communities and businesses. If the laws are not operable in the UK, we can revoke them.
The hon. Lady mentioned maternity rights, which is one of the unfortunate misinformation campaigns on this Bill. I struggle with the fact that colleagues are sharing misinformation, as people who may be vulnerable are made more vulnerable by such misinformation. The UK has one of the best workers’ rights records in the world, and our high standards were never dependent on our membership of the EU.
Indeed, the UK provides far stronger protections for workers than are required by EU law. For example, UK workers are entitled to 5.6 weeks of annual leave compared with the EU requirement of four weeks—we are doing better here. We provide a year of maternity leave, with the option to convert it to shared parental leave. The EU requirement for maternity leave is just 14 weeks—we are doing better here. The right to flexible working for all employees was introduced in the UK in the early 2000s, whereas the EU agreed its rules only recently and offers the right only to parents and carers—we are doing better here. The UK introduced two weeks’ paid paternity leave back in 2003. Who can remember then? The EU legislated for this only recently—once again, we are doing better here. I ask Members please not to hold up Brussels as a bastion of virtue, as that is most definitely not the case.
Ms Ghani
I will make a little progress.
Significant reform will be needed in other areas, which is why the powers in the Bill are necessary. The people of the UK expect and deserve positive regulatory reform to boost the economy. Via this Bill, we will deliver reform across more than 300 policy areas. We cannot be beholden to a body of law that grows more obsolete by the day just because some in this House see the EU as the fount of all wisdom.
Robin Millar (Aberconwy) (Con)
My hon. Friend is setting out a very powerful case. On the one hand, she is making the case that in Britain we have many laws that are superior and offer greater benefits and protections to residents, and on the other hand, she is making the self-evident point that we should unshackle ourselves from laws that will become increasingly historical, some of which were assimilated into British statute without scrutiny.
Will the devolved Administrations be able to preserve retained EU law where it relates to devolved areas of competence?
Ms Ghani
My hon. Friend is absolutely right. If the law is already devolved, the devolved Administrations have the ability to assimilate, amend or revoke, which is why some of the interventions from Opposition Members are slightly absurd. Why would they not want the opportunity to have a review? If the devolved Administrations want to assimilate the law, they can. If they want to amend it, they can. If they wish to revoke it, they have that choice. Why would the devolved Administrations not want to embrace the powers this Bill will give them?
Hywel Williams (Arfon) (PC)
The Minister talks about the devolved Administrations hanging on to their powers. Will she ensure that the dashboard on retained EU law is updated to identify which legislation is reserved and which is devolved, as well as how legislation in Wales might be affected?
Ms Ghani
Yes. The hon. Gentleman may have missed the earlier part of my speech. Government officials have been working with devolved Administration officials for more than 18 months, and that work will continue. When we discover an EU law, we put it on the dashboard. Of course, there are conversations with officials in the devolved authorities, and it is important that we continue to work closely with them.
I was going to say more about the UK’s tremendous work on the environment, because I saw some dreadful, inappropriate coverage in the press, including nonsense about marine habitats. I have just had some information from DEFRA about its fantastic work in Montreal on marine. We have done more work on environmental standards and status outside the EU, including in protected areas such Dogger Bank, to enhance protection by 2030. We are also integrating our ocean and coastal mapping.
Unfortunately, colleagues who are uncomfortable with the Bill have also peddled misinformation about our water bodies and water standards. There is an assumption that the target is being moved, which is absolutely incorrect. Targets are not being moved. It is incorrect to say that the target for the good state of England’s water bodies has been changed—it is still 2027, as outlined in the water framework directive. Hopefully that will cancel out any other misinformation on this stuff being shared on social media sites.
Reform will be needed in other significant areas, which is why the powers in the Bill are necessary. It has been suggested that the Bill will somehow be a bonfire of workers’ rights. We are proud of the UK’s excellent record on labour standards, and we have one of the best workers’ rights records in the world. Our high standards were never dependent on our membership of the EU. Indeed, the UK provides far stronger protections for workers than are required by EU law. I have already spoken about maternity rights, but we can also look at maternity cover, holiday pay and other rights for employees.
Geraint Davies (Swansea West) (Lab/Co-op)
On a point of order, Mr Deputy Speaker. I seek your advice because the Environment Secretary testified to the Select Committee on Environment, Food and Rural Affairs that the water framework directive was subject to change, on the advice of the Environment Agency, but now we are being told that it will not be. So who should we believe?
Mr Deputy Speaker (Sir Roger Gale)
The hon. Gentleman is well aware that that is not a matter for the Chair. The Minister is responsible for her own words and statements, and she must take responsibility for them. While I am on my feet, let me say that a significant number of Members wish to participate in this debate and a limited time is available. It is clear that the Minister does not intend to give way, having done so several times, and we should progress with the debate.
Ms Ghani
Thank you, Mr Deputy Speaker. To ensure that the devolved Governments are also able to fully seize the benefits of Brexit, we are providing them with the tools to reform the retained EU law that is within their own devolved competence. That will give the devolved Governments greater flexibility to decide how they should regulate those areas currently governed by retained EU law. The majority of the powers in the Bill are conferred on the devolved Governments, which will enable them to take more active decisions about their citizens and their businesses. The devolved Governments will also have the ability to decide which retained EU law they wish to preserve and assimilate, and which they wish to let sunset within their devolved competences.
Since we left the EU, more powers have already been passed on to devolved Administrations, in areas such as farming, fishing and the environment. Under the Bill, these powers can continue to be there. The question is: why would they not enjoy that power to make sure that decisions are taken that best fit their communities? We have carefully considered how this Bill will have an impact on each of the four great nations and we recognise that it is of paramount importance that we continue to work together as one on important issues, including the environment.
As has been mentioned, we accept that some retained EU law in scope of the sunset is required to continue to operate our international obligations, including the trade and co-operation agreement, the withdrawal agreement and the Northern Ireland protocol. Therefore, I am happy to make a commitment here today that the Government will, as a priority, take the action required to ensure that the necessary legislation is in place to uphold the UK’s international obligations. In the near future, we will set out where retained EU law is required. Obviously, as well as sharing things on the dashboard, we are working closely with officials in Northern Ireland.
One amendment relates to carving out devolved nations. This Bill must and should apply to all nations of the UK. The territorial scope of the Bill is UK-wide and it is therefore constitutionally appropriate that the sunset applies across all four sovereign nations of the UK. One of the Bill’s primary objectives is to end retained EU law as a legal category across the UK. Providing a carve-out for legislation that is within a devolved competence would severely impact the coherence of the UK statute book and legal certainty for our public and businesses.
I also commend my Cabinet colleagues who are already making gallant efforts to establish ambitious reform plans that will help to drive growth. We are already in the process of removing outdated retained EU law in financial services, through the Financial Services and Markets Bill, and we have already repealed other outdated rules, enabling us to capitalise on tax freedoms. For example, the Government have ended the tampon tax by removing VAT on women’s sanitary products. We have also been able to embrace other opportunities, such as on vaccines, freeports, gene editing, free trade agreements, EU budget payments, immigration control, fishing and even foreign policy on Ukraine. Outside the EU’s unwritten rules on solidarity in foreign policy, we were the first to send arms to defend Ukraine, ignoring German bans on such equipment. That is unlikely to have happened when we were in the EU.
Ms Ghani
I will finish this point and then I will take some interventions. We also now have AUKUS, where we have signed a nuclear submarine deal with Australia, in opposition to France; we have new agricultural support schemes; and—this is one of my favourites—no MEPs means more democracy here.
Anna Firth (Southend West) (Con)
The Minister is making an excellent speech. Does she agree that stagnant EU laws are hindering economic growth in the UK and that this Bill will enable us to protect and enhance our important fishing industry, particularly our famous cockle industry in Leigh-on-Sea?
Ms Ghani
It will indeed help the cockle industry. The Department for Environment, Food and Rural Affairs has said that it will be maintaining and enhancing when it comes to the environment, including our waters. My hon. Friend is absolutely right; this is just an enabling Bill. It is a process to enable Departments to review EU law to see what we can do to ensure that regulation best suits us here in the UK and that we are nimble for the sectors we want to promote. Some of the sectors we want to work fast and hard in are incredibly progressive and modern, and we cannot have law that is made for a much larger group of nations overseeing us here in the UK.
Patrick Grady
Is that not precisely the point: any Department, at any time, that identifies areas of retained EU law that it thinks need to be reformed can bring forward primary legislation—that is the point of parliamentary sovereignty—so that it can be properly scrutinised in this place? The Minister does not need the powers in this Bill. This House already has those powers—I thought that that was supposed to be the point of parliamentary sovereignty.
Ms Ghani
I am afraid that the hon. Gentleman fundamentally misunderstands the Bill. Many items of law will be assimilated. The idea that we will debate every single one on the Floor of the House is slightly absurd. The idea that we will be debating laws that are now obsolete is absurd. We will use the same process as we did for the no-deal Brexit; the usual programme of work will take place.
The powers in the Bill will allow us to overhaul regulation where it is not fit for purpose and move us away from the EU body of law. However, once powers have been used to replace the retained EU law or assimilated law with ordinary domestic legislation, they cannot be used in respect of that legislation again. This is a far cry from the Executive power grab of which we have been accused.
Andrew Jones (Harrogate and Knaresborough) (Con)
I chair the European Statutory Instruments Committee, which has been mentioned in this House already. We provide the sifting process, ensuring that there is parliamentary oversight as we review Brexit legislation. Does the Minister agree that comments that there is no parliamentary oversight are plain wrong and that attacks from the Labour party, when it does not even take its Committee places, are entirely—[Interruption.] Does she agree that those attacks are extremely hollow?
Ms Ghani
They are not just hollow, but simply inaccurate. My hon. Friend has mentioned his European Statutory Instruments Committee, but we also have the Delegated Powers and Regulatory Reform Committee; the usual channels, which are managed by our business managers; and Leaders of the House in both Houses. So it is not as though there is not ample opportunity to consult.
Once again, let me say that I know people are amused by the dashboard, but it is there and people who are interested can log on, and it will indeed be updated. Without this Bill, legislation that flowed on to the statute book directly from the EU into 300 different policy areas would, in many cases, have to be replaced via primary legislation. That would take decades to amend and this would mean a marked reduction in our ability to regulate in an adequate and timely manner. Without the powers in the Bill, the UK will remain at a competitive disadvantage. It would be economically irresponsible to leave this body of law unchanged, as the Opposition would wish us to do. As I have set out today, this Bill is of vital importance to the future of the UK. As I am sure colleagues will recognise, the reform of retained EU law must be completed without delay. I look forward to the remainder of the debate.
Justin Madders (Ellesmere Port and Neston) (Lab)
I am grateful for the opportunity to rise to speak in support of the amendments that appear in my name and those of my right hon. and hon. Friends. Our amendments, even if they are all accepted, cannot completely cure this fundamentally defective Bill, but we will see where we go with that. Let me add my appreciation, as the Minister did, to those on the Committee for their efforts in scrutinising this Bill and to the Clerks for assisting us in doing that.
First, turning to amendment 18, I have yet to hear any rational justification for the deadline of 31 December 2023 for the jettisoning of all EU regulations. We are told that it is an imperative that we free ourselves of the shackles of these regulations by that date and that we must hurry along and free ourselves of the 2,400 or 3,800 regulations—or however many it turns out to be—that are holding us back.
I understand the importance of having a target to work to, but the date has been plucked out of thin air, seemingly at random, and we should not accept it unless a compelling and rational argument is put forward, especially, as I shall go on to explain, as it carries far greater risks than benefits. We were told by the Minister at the Committee stage that, in essence, the cliff edge is being used as some sort of management tool to ensure that civil servants remain focused and can deliver the work necessary to clear the statute books of all this legislation. What a sad state of affairs it is that the only way that the Government think they can get officials to function properly is to legislate for them to do so. Imagine if we got ourselves into a position where every time the Government wanted the civil service to work to a deadline we had to put it in a Bill. It is an explanation that is as threadbare as the impact assessment that accompanies the Bill.
Margaret Ferrier (Rutherglen and Hamilton West) (Ind)
As we have heard, the vast majority of policy, from use of harmful pesticides to air quality, that will be impacted by the changes brought through this Bill is with the Department for Environment, Food and Rural Affairs. Does the shadow Minister share my concern that, even if the timeline were extended, that is a lot of work for one Department and its officials to make sure they are getting right so quickly?
Justin Madders
I will go on to explain why that deadline is inappropriate and, indeed, impractical.
The Government are using the Bill as a motivational tool. That message has not got through to DEFRA, which, as we know, is considered to be the Department with the most regulations, although, of course, until we see a definitive list, we cannot know that for sure. At the moment, according to the Secretary of State, there are probably about 1,100 regulations in DEFRA that are subject to the sunset. I will not get into whether the word “about” is good enough in this context, but the number of civil servants that we have been told are working on this in that Department is three. It is no good this Bill being used as a way of focusing Departments’ minds if they do not have the resources to do the job properly in the first place.
This is a serious issue. The House of Lords Common Frameworks Scrutiny Committee even complained about a lack of engagement from that Department after not receiving a response from it to five separate letters. We know from a written ministerial answer that the Department itself does not know how much the exercise will cost or how many staff it will need. If the deadline is meant to focus attention, it has not succeeded in doing so yet.
Alexander Stafford
I am listening carefully to the hon. Member’s speech, especially about the timeline. My question is this: when does he want this to end. My constituents in Rother Valley voted in 2016 to leave the EU—lock, stock—not to wait. Even now, I would want to bring the deadline forward, because we should have left fully years ago. When do the Opposition and those who want to stifle our leaving want us to leave—2024, 2025, 2026 or never? I want to leave fully and utterly now.
Justin Madders
If people are going to intervene, they should read the Bill and the amendments, because they would see our suggestion for a deadline. Of course, as everyone else in this Chamber seems to know, we have already left the EU, so this is not about leaving the EU, but about the remaining laws.
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 we agree. What is far more convincing than the arbitrary date that we are presented with are the warnings that we have received that there is not sufficient capacity in the civil service for a genuinely effective appraisal of the regulations that the Bill seeks to remove in the timescale allowed. The case for the cliff edge is incredibly weak. The arguments for removing it and putting it on a more realistic footing are much stronger.
The potential for things to be missed is clear. If worse comes to worst and some vital regulation ceases to be law by accident and nobody notices until it is too late, our constituents will rightly ask us, “What on earth were you doing? What were you thinking of?” No wonder the impact assessment on the Bill is silent on the issue of the sunset date.
The Regulatory Policy Committee has made it clear that it believes that the analysis of that sunset date is inadequate. This is a deadline in search of a headline. Presumably, that headline will be, “Free at last”. I would suggest that a more apposite headline might be. “The sun has set on your employment rights, your consumer rights and your environmental protections.” Indeed, the sun has set on parliamentary democracy.
Overall, the Regulatory Policy Committee puts a red rating on the impact assessment of the Bill as not fit for purpose, yet here we are, ploughing on as if it will be all right on the night.
Mr Rees-Mogg
Surely the hon. Gentleman is aware that our first legislation on consumer rights was in 1893, some time before the European Union, and that the Act giving paid holidays was 1938, again before the European Union. We have never needed the European Union for worker and consumer rights.
Justin Madders
I am sure that those were the glory years—the right hon. Member’s favourite period of time. This is about protecting the rights that we have, and this Bill allows those rights to fall by default if no action is taken. That is why we are so concerned about the Bill.
Stella Creasy
I think everybody agrees that, as we have left the European Union, we need to look at the foundation of the laws that we have in this country. One challenge of this legislation is that, because we do not know precisely what laws are covered, we do not know the laws that we need to look at. Does my hon. Friend agree that people are concerned not because the law says “Europe” on it, but because it is about things such as maternity rights and employment rights? [Interruption.] The Minister is chuntering from a sedentary position. She needs to talk to her colleagues who, when we have asked about these explicit regulations and whether they are going to retain, replace or revoke them, have said that they do not know. They do know on other legislation. Does he agree that, if Ministers have made up their minds on some things but not others, they should be honest with the British public that they are asking us to give them the power to make that decision and take it away from this place? That is not taking back control.
Justin Madders
I am grateful for that intervention. That is exactly the problem here. If Ministers decide to remove laws, there will be no opportunity for us to challenge it, which is why we are concerned. The Minister told us in Committee that the sunset date was chosen because it is the quickest and most efficient way to enact retained EU law without taking up additional parliamentary time—so the Government are doing us all a favour by giving us less work to do.
In this context I 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 businesses, 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”.
That sums up exactly why we should be voting against the Bill.
Colum Eastwood (Foyle) (SDLP)
When it comes to workers’ rights or environmental protections, does the shadow Minister suspect, as I do, that this is a Government determined to throw people’s rights on to the Brexit bonfire? If this is the future of the United Kingdom, is it any wonder that more and more people in the north of Ireland are looking forward to being part of a progressive new and united Ireland?
Justin Madders
That probably takes us slightly away from the thrust of the Bill. But what is this Government’s record on employment rights? They doubled the time to be able to qualify to claim unfair dismissal, taking millions of people out of being able to claim that right. They slashed the consultation periods for people on redundancy. They introduced employment tribunal fees. Their record on employment protection is not a good one. There is a whole back catalogue of Ministers and Cabinet Ministers saying why they want to get rid of these burdensome employment rights. We are right to be worried about where this is all heading.
Caroline Lucas
The hon. Member is being generous and making a powerful case. Does he share my concern that, for all the rhetoric and green wash coming from the Government when they say that this is about keeping high standards, that is completely undermined by a clear clause in the Bill that states that, while Members can replace laws with alternative provisions, those cannot “increase the regulatory burden”. That is clear—it is in black and white. The Bill is an absolute ideological attack on safety and on environmental standards—on the things that keep us safe and our planet safe as well.
Justin Madders
The hon. Member is right. I shall come back to that in a little while.
Sir John Hayes (South Holland and The Deepings) (Con)
In essence, when we took back control through the referendum decision in 2016, it was not to a particular party or even to a particular Government: it was to the British people and their sovereign Parliament. I find it inconceivable and rather disappointing that the hon. Gentleman does not have the confidence that this Parliament will do the right thing in a range of legislative areas.
Justin Madders
I am afraid the right hon. Gentleman does not understand what the Bill does. It hands the power to Ministers, not to Parliament—that is why we are so concerned about it. Taking back control was about this Parliament, not giving power to Ministers.
I turn back to the Bar Council’s clear warnings. It is not some sort of anarchist organisation, it is not part of an anti-growth coalition—it is the Bar Council, for goodness’ sake. Anyone who is concerned about parliamentary scrutiny and accountability and who wants to make this country work should listen carefully to what the Bar Council says and its warnings about why the Bill is inappropriate.
The sunset clause is interrelated with the question of Ministers’ powers and the ability of Parliament to effectively scrutinise changes. I do not want to be faced later this year with having to make a choice between a reduction in the number of days’ paid holiday that people are entitled to and their having no rights at all—and that is a choice that this Bill could force upon us, if we are pushed up to the precipice due to timescale.
Abena Oppong-Asare (Erith and Thamesmead) (Lab)
Following the Bar Council’s recommendations and concerns about protections, I put on record that I have been contacted by a large number of constituents who are concerned about the protection of their rights as workers, which they fought hard for, and their rights as consumers. Furthermore, they want hon. Members, particularly the Minister, to know that they are concerned that no scrutiny will take place on this. Does my hon. Friend agree that, based on this Government’s record, there is no way they will maintain the high standards that our constituents expect or ensure that this Bill adequately represents our constituents?
Justin Madders
My hon. Friend articulates well why her constituents and indeed many people across all sectors of society are concerned about the impact of the Bill. It is not about Parliament taking back control. The Delegated Powers and Regulatory Reform Committee has said that the
“abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy”.
As the former Secretary of State, the right hon. Member for North East Somerset (Mr Rees-Mogg) is here, I will quote his response, when he was Leader of the House, to the Committee’s report on the frequent use of skeleton Bills. 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 Secretaries of State
“to minimise the use of delegated powers where possible.”
For once, I agree with him; I am sorry he does not agree with himself any more.
Richard Graham (Gloucester) (Con)
The shadow Minister has implied that the whole country is very concerned about what is going to happen to the current bulk of EU retained law, but he would have heard the Minister saying that all those laws that come under DEFRA—as he knows, that is probably three quarters of the total EU retained law—will be either retained or improved. Now that the Environment Act 2021 brings them under the remit of the Office for Environmental Protection, the watchdog that is there to make sure that they are enhanced, surely he will accept that that gives huge numbers of people and organisations, particularly in the environmental sector, a lot of reassurance.
Justin Madders
I think we would be reassured if that was what the Bill did, but the Bill does not give Ministers the power to improve the situation: specifically, as we have heard, it prevents burdens from being increased so—
Geraint Davies
Does my hon. Friend agree that, over the 47 years of our membership, we evolved thousands of rules with the EU, that the choice for Ministers in DEFRA and elsewhere will be whether to assimilate, revoke or amend those rules, and that, if they do not have time to go through them all, the rules will simply fall out of bed? The real risk is that employment, environmental and other rights will simply—perhaps accidentally—disappear. Does he therefore agree that this sunset clause is completely ridiculous?
Justin Madders
That is a very good point. If the Government cannot even tell us how many rules are covered by this Bill, how can we be confident that things will not be missed? The 2023 date is a deadline in search of a headline; it is not a serious proposition or the action of a responsible Government, and it should be rejected.
The cliff edge is even more absurd when we consider that the Government do not know what rules will be covered by this Bill. I am glad to see the hon. Member for Watford (Dean Russell) in his place; when he was on the Front Bench, he told us, in answer to a written question:
“The dashboard presents an authoritative, not comprehensive, catalogue of REUL.”
He told us in response to a written question on 21 October:
“we anticipate over 100 additional pieces of legislation will be added to the REUL dashboard”.
As we know now, that 100 is probably more like 1,400, so we cannot accuse him of over-promising and under-delivering. He also told us:
“Government officials are currently working to quality assure this data and any amendments to the data will be reflected in an update of the dashboard this Autumn.”
It is 2023 now and, as of midday today, that dashboard had not been updated at all since this Bill was first presented, so it is certainly not comprehensive or authoritative—it is actually not very helpful either. That is undoubtedly not a sound basis on which to be legislating.
Janet Daby (Lewisham East) (Lab)
I am sure many of us have received emails from constituents concerned about this process, or rather the lack of process. Thousands of pieces of legislation need to be reviewed and amended. I am sure our constituents would agree that it seems very undemocratic of the Government not to bring that legislation to the Chamber to be scrutinised, as legislation is processed in this place.
Justin Madders
My hon. Friend is right that we must answer to our constituents about what is going to happen with these rules. That is why we have tabled our amendments.
John McDonnell (Hayes and Harlington) (Lab)
There is a huge point of principle here, but there are also issues around pragmatic logistics. I can understand some of the frustrations of Conservative Members about delays in implementation since the referendum, but I must remind them that they have been in Government. Privately, I know of no civil servant who has any confidence that the deadline will be met. We now face a strike by 100,000 civil servants. Even the FDA has gone for strike action. The world may have changed since this legislation was first prepared. May I suggest to my Front-Bench colleagues that we assure the Government that there will be an open door for discussion throughout this process when they want to talk about extending the deadline to ensure proper scrutiny of this legislation? I fear that the parliamentary process will break down, poor decisions will be made and we will overburden an administration that already has enough on its plate.
Justin Madders
I am grateful to my right hon. Friend. The deadline was pretty risky to start with, but it now looks completely foolish. That is why we will be moving an amendment later to make sure the deadline is put back three years, to give us confidence that things will be done properly.
Several hon. Members rose—
Justin Madders
If you do not mind, Mr Deputy Speaker, I am not going to take any more interventions for a while, because I appreciate a lot of people wish to speak.
Just for a minute, I ask hon. Members to imagine they are a business trying to plan for the next year and having to navigate a dashboard that is not complete, but might be updated at some point. That business is looking at the dashboard just to understand what rules might be changed under the auspices of the Bill, never mind whether they should be changed or whether those changes will affect the business.
If the Government do not even know what the Bill covers, how can they expect anyone looking to invest to do so? That is an absurd way to proceed. No wonder groups as diverse as the TUC and the Institute of Directors oppose this Bill. We do not legislate in this place by website; we legislate by legislation, and the intention of that legislation should be clear.
There is a solution in sight to this rather unsatisfactory state of affairs, in the shape of amendment 36 in the name of my hon. Friend the Member for Walthamstow (Stella Creasy), which would at least enable us to see what laws Ministers want to revoke and allow Parliament—yes, Parliament—to express a view on whether it wishes to see those laws taken off the statute book, in the true spirit of taking back control. Crucially, the amendment would require Ministers, at least three months before the cliff edge, to set out which laws they intend to revoke.
One would hope that, by September this year, Ministers would have formed a view on which laws they wanted to keep and which they did not. It would be nice if they had done so by then—it would be even nicer if they let Parliament know, and nicer still if they afforded that courtesy to the rest of the country, so that people were able to plan.
We cannot have the Government changing the law on a whim. There must be proper accountability and scrutiny. We cannot have unaccountable Ministers changing the rules without reference to anyone else—that is not what taking back control was supposed to look like. When this Bill was first mooted and Lord Frost was still a Government Minister, he said that the policy intention behind the Bill was
“to amend, replace or repeal all retained EU law that is not right for the UK.”
I think we need something a bit more detailed than a general feeling that something is not right for the UK. This centuries-old Parliament, having taken a historic decision to wrestle back control from those unelected Brussels bureaucrats, finds itself in the ludicrous position of having another unelected person telling us that laws will be changed if they are “not right”. What that phrase gains in brevity it loses in clarity. It can mean absolutely anything, and of course—crucially for this place—it puts all the power in the hands of Ministers. Surely, as a Parliament, we can do better than that; surely we want to hold ourselves to a higher standard when we change legislation. We should not legislate on a whim, and Parliament should not hand powers to Ministers enabling them to do just that. The Regulatory Policy Committee described the Bill’s impact assessment as either “weak” or “very weak” in every aspect, so any Member who is thinking of handing over those powers should, in the light of that warning, think very carefully before doing so.
Andrew Jones
It is clearly right to have parliamentary scrutiny of these measures and those that will come as a consequence of this legislation, but why has Labour not filled its places on the European Statutory Instruments Committee? If the hon. Gentleman is so keen to see parliamentary scrutiny, why has his party not taken the opportunity that it has?
Justin Madders
I direct the hon. Gentleman to the Whips Office around the corner. He can have a word with them and see what is going on.
I do not accept the characterisation of how these laws were introduced in the first place. As we know, the vast bulk of EU subordinate legislation was adopted by the member states and the European Parliament, of course, both of which had representatives from the United Kingdom—indeed, our MEPs were democratically elected until 2020—so it is simply wrong to say that politicians, stakeholders and policymakers did not have ample opportunity to exert influence on the development of EU policy and secondary legislation.
In fact, there are many examples of where EU legislation was supported and even promoted by the UK Government of the day. One good example is the social chapter, which the Labour party’s 1997 manifesto pledged to introduce. It included rights on parental leave and working hours. Nobody can say that those rules were forced on us without our consent. Conservative Members may not have liked them—that is clear—but there was a clear democratic pathway to their introduction.
Amendment 36 is about Parliament taking back control, but new clause 2, which is on the amendment paper, goes one step further. It would require Ministers to set out their analysis of the impact of the removal of EU laws and the abolition of the application of EU principles to our laws. As our amendment 26 sets out, there needs to be some recognition that tearing up 50 years of legal development overnight might just create a little bit of uncertainty—as, of course, will revoking thousands of laws. New clause 2 would require some thought to be given to what the impact of all that might be and, crucially, would require it to be shared with everyone else.
We therefore think that it ought to be a matter of agreement among everyone who wants to see democracy prosper that the replacement regulations under the Bill should be made by Parliament after proper consultation, public debate and scrutiny, not simply by ministerial decision—or, as the case may be, by non-decision. All we are asking Ministers to do is to publish their work on how these laws will affect our constituents, which they ought to be doing anyway. Or will we have to wait until the end the year to find that some law that has slipped off the books is causing problems with, for example, the trade and co-operation agreement? Is it not better for us to know about that now? Ministers will know what the issues are, so why do they not share that knowledge with the rest of us? New clause 2 would give Parliament sufficient time to express a view on all that, putting power back into the hands of Parliament, which is what I thought all those who campaigned to leave the EU actually wanted to happen.
Likewise, new clause 3 would create a requirement for there to be genuine consultation if the powers under sections 15 and 16 are to be exercised in revoking, replacing or updating a regulation, and, again, for Parliament to be sighted on that consultation and on the Government’s assessment of the proposed changes. I hope that we are not being too revolutionary by wanting accountability and transparency for Ministers’ actions.
While we are on the regulations, why are we tying Ministers’ hands—we have already touched on this—by insisting that anything that replaces them cannot add to the regulatory burden? Why is the language of rights and protections always expressed as a burden? Of course, the whole thrust of the Bill is to reduce the number of EU regulations in our system, which in itself will reduce the regulatory burden, but when Ministers are looking to update or replace these rules, why must we insist that they do not add to the burden? What even counts as a burden? I am saddened that Conservative Members think it a burden to ensure that our workplaces are safe and that people are protected against discrimination, and to protect natural habitats.
If it was thought that reviewing the laws on maternity discrimination, for example, was actually a good opportunity to strengthen protections—possibly along the lines of the private Member’s Bill of my hon. Friend the Member for Barnsley Central (Dan Jarvis)— this Bill would not allow that. If my hon. Friend’s Bill navigates the private Member’s Bill lottery, it would extend the time period for protection against unfair redundancy to a six-month period after the return to work from maternity, adoption or shared parental leave. That is, by the way, something that the Government committed to in 2019, but under this Bill they would not be allowed to implement it because it would increase the burden. I am not sure how that circle will be squared, but it illustrates the point that this Bill could prevent the Government from implementing their own policies. Although most of us on the Opposition side would want that to apply to just about everything this Government introduce, when it is confined to things that might actually benefit our constituents, it is a cause for concern.
That brings us neatly to our amendment 20, which deals with workers’ rights. The regulations that it lists represent, as far as we can identify, all the major employment rights within the ambit of the Bill—rights that people enjoy every day; rights that nobody voted to squash; rights that those on the Labour Benches will do everything in our power to protect. To protect them and remove any scintilla of doubt, we need to take them outside the scope of the Bill.
I heard what the Minister said about there being no plans to remove those rights, which ought to mean that she has no problem with voting for the amendment. After all, if that is what the Government are going to do anyway, what is there to lose?
Craig Whittaker (Calder Valley) (Con)
The hon. Gentleman has already said that the UK’s elected processes already had input into EU laws and protections and rights for workers. I will go one step further and say that this country actually led on a lot of those EU rights and protections for workers, so why does he not believe that this place can enhance those rights and protections, driving them forward for workers in this country?
Justin Madders
Well, a Government who have been promising an employment Bill for five years and allowed the scandal of 800 P&O workers being dismissed without any notice are not a Government who can really claim to be on the side of workers. If the hon. Gentleman is genuine about supporting workers’ rights, he will support our amendment to ensure that they are protected.
Let us look at some of those rights. The first regulations listed in amendment 20 are the Management of Health and Safety at Work Regulations 1999, which ensure, among other things, that an employer must perform a risk assessment for all workers, and that there must also be a specific risk assessment if an employee becomes pregnant. I sincerely hope that the requirement to conduct risk assessments to ensure that people work in a safe environment is not something that the Government consider an unnecessary burden. Do we not think that everyone has a right to work in a safe environment, and that employers should take steps to ensure that?
Those regulations ensure that employees have the important right to be consulted on health and safety, and to receive paid time off to carry out health and safety training and other duties. They also have the right to protection from discrimination or victimisation for carrying out health and safety duties. It is just as important as the requirement for a safe working environment that those who put themselves forward as health and safety representatives can do so without fear of reprisal.
In Committee, the Minister talked about modernising health and safety law, which is not, of course, the same as promising to keep those laws. The term “modernising” can mean any number of things—it certainly does not always mean that a law will be improved or a right increased. As we know, the Bill specifically prevents an increase in the regulatory burden. I know that health and safety is often characterised by Conservative Members as a burden. I do not think that; I think it is absolutely essential. If Members agree with me on that, they should vote with us on amendment 20.
On the part-time employee regulations that are included in the amendment, more than twice as many women than men are in part-time employment. Why would we want to open the door to greater discrimination against women by getting rid of protections for part-time workers?
The Maternity and Parental Leave etc. Regulations 1999 protect women who might be pregnant or taking maternity leave from workplace discrimination, ensure that they have the right to return to the same job once they return from maternity leave, and, of course, make it unfair to sack someone because they are pregnant. Surely Conservative Members want to ensure that those regulations are protected under the Bill?
Vicky Ford
The hon. Member is suggesting that this Government want to get rid of a huge number of workers’ rights. The Minister wrote to all Members this morning making it clear that the Government have no intention of abandoning workers’ rights. Is he suggesting that this Minister is not true to her word?
Justin Madders
If the Minister is true to her word, she will vote with us and make sure that that is exactly what happens. I refer to the impact assessment, which recognises in three separate paragraphs that the Bill contains a threat to equality, so this is not something we are making up out of our own heads; it is something that is there and to be concerned about.
One set of protections definitely in the sights of those who see employment rights as a burden include the working time regulations, the introduction of the right to paid annual leave, limits on weekly working hours and a legal entitlement to daily and weekly rest breaks. They are some of the greatest achievements of the previous Labour Government, and for Members who are not aware, those regulations originated from concern about workers’ health and safety and the risks associated with working excessively long hours. I am proud that my party tackled that. Do we want to turn the clock back to when people worked 70 or 80 hours a week? We know that some on the Government Benches think there is no moral right to annual leave, but on these Benches we could not disagree more. Also included in our amendment are the Transfer of Undertakings (Protection of Employment) Regulations 2006.
Mike Amesbury
I am after my hon. Friend’s help on this: was it a figment of my imagination, or did those on the Government Benches drive through a piece of legislation that curtailed the fundamental freedom and right to strike in the past few days? I just seek his help on that.
Justin Madders
Yes, I think that Bill also gives employers the power to sack striking nurses, teachers and doctors. Those are not the actions of a Government who want to protect employment rights.
The amendment includes the 2006 TUPE regulations, which ensure that when one business buys another, there is reasonable certainty about which workers transfer to that new business, so that the purchaser knows which employees it is getting and, critically, workers know that they cannot be dismissed or have their terms and conditions slashed just because they are working for a new employer. Let us make it crystal clear that TUPE will stay. That would ensure protection and certainty for employees, but also certainty for employers. How on earth would someone thinking of buying a business in 2023 know whether to proceed with the purchase if they did not know whether they were obliged to take on the workforce with it? We have a stable, settled, well understood framework of law that helps businesses to operate. Why put that in jeopardy, particularly if, as is claimed, Ministers have no intention of removing it?
To make a general point on employment rights, they are not a burden. They are an essential ingredient of a civilised society. If we want our citizens to play an active role in the country moving forward and in future economic growth, our citizens have to be rewarded fairly and treated fairly. Security and respect at work are the cornerstone of any success we will have as a nation. A secure and happy workforce is a productive workforce. Giving people dignity, certainty and fairness in the workplace is not a burden on businesses; it is what good businesses do, and what good businesses will see the fruits of, if they are allowed to operate on a level playing field.
My constituents will be considerably poorer over the next few years as a result of the economic decisions made by this Government. I do not want them to be poorer in terms of rights, as well. Employment rights ensure that people can participate in the labour market without facing unfair discrimination. They give vulnerable workers more job security and stability of income. They help to encourage a committed workforce and the retention of skilled workers. They are not just about individual dignity and respect in the workplace; they also have social and economic value and are an essential component of a healthy, stable and progressive country.
We need a country where people have the security of knowing that if they do a good job and their employer runs its business well, they will be rewarded properly and be able to stay in work. What we have instead is a culture of disposable commodities and fire and rehire, where loyalty counts for nothing. It is time to draw a line in the sand and say, “No further.” Let us not allow this Bill to open up another line of attack on working people. Let us close it off now once and for all and support amendment 19.
Several hon. Members rose—
Mr Deputy Speaker (Sir Roger Gale)
Order. Take out your mental editing pens, ladies and gentlemen, because you are going to have to start cutting your speeches in a big way. We have heard two very lengthy opening statements and a number of lengthy interventions. There are some 30 Members still wishing to take part and the wind-up speeches will start at 5.30 pm. I am going to call the Chairman of the European Scrutiny Committee and the SNP Front-Bench spokesperson, upon both of whom I would urge brevity, after which I shall impose a six-minute time limit on speeches, which may drop further under Mr Evans later on. I call the Chairman of the Select Committee.
Sir William Cash (Stone) (Con)
Having endured the last 40 minutes, I am bound to say, as Chairman of the European Scrutiny Committee, that although I will be relatively brief there are important matters that need to be discussed. I will raise them and give the House the opportunity to reflect on what I have to say.
This Bill was passed by this House without amendment. There were no amendments on Second Reading or in the Public Bill Committee. I have been Chairman of the European Scrutiny Committee for many years, and I have been on this Committee since 1985. I draw the attention of the House to the European Scrutiny Committee report tagged to this debate, published on 21 July last year. As the Minister said, EU retained law was never intended to remain part of our domestic statute book. I am deeply grateful to the Government for today’s round robin letter to all Members and to my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg) for his work on the genesis of this Bill.
We left the European Union with section 38 of the European Union (Withdrawal Agreement) Act 2020 guaranteeing UK sovereignty and democracy, and therefore UK democracy itself. It was the culmination of a process that began with my sovereignty amendment to the Single European Act in 1986, which, at that time, I was not even allowed to debate. In turn, that was followed by the Maastricht treaty and a whole series of treaties, enactments and debates on the Nice, Amsterdam and Lisbon treaties.
Incidentally, on the question of maternity pay—the only interesting thing mentioned by the hon. Member for Ellesmere Port and Neston (Justin Madders)—the UK actually has 52 weeks of maternity pay, while the EU has merely eight. On holiday pay, we have six weeks; the EU has four.
The views of the British people, as expressed ultimately in the 2016 referendum, repudiated the idea of our remaining in the EU by democratic vote, and the general election that endorsed that decision, under my right hon. Friend the Member for Uxbridge and South Ruislip (Boris Johnson) as Prime Minister, gave the present Conservative Government a large majority. The democracy that we enjoy is based on our unique and universally envied constitutional arrangements, whereby laws are passed in this House by a simple majority of MPs representing individual constituencies, who derive their authority exclusively from those who voted them into the House of Commons.
Sir John Hayes
This is the essence of the misunder-standing of the hon. Member for Ellesmere Port and Neston. The relationship between the Executive and the legislature is such that the Government receive a mandate from the people, but Ministers are answerable to this House. I am amazed that the hon. Gentleman has not grasped that constitutional fundamental.
Sir William Cash
I am grateful for that intervention, because nothing could have been more obvious than the fact that the hon. Member for Ellesmere Port and Neston, and indeed many Opposition Members, simply do not have a clue about how the operations of the European Union function. I will deal with them in a minute, as the hon. Gentleman will find out—I would be interested if he would like to intervene and repudiate what I am about to say.
The Lords themselves—unelected, of course—are subject to the Parliament Acts, which may well prove necessary in relation to this Bill. This is therefore an issue of democracy.
I have watched and participated in the evolution of change in relation to European matters both in this House and outside, in referendum campaigns and the like, for the best part of 38 years. It is essential for those who are not so well acquainted with the manner in which EU law is made, which became more objectionable as the competencies in each of the treaties expanded, to appreciate just how undemocratic and unaccountable the EU system unequivocally is. I have to say that my own party is responsible for many of the problems that were created, but I am delighted to say that the democratic decisions of the British people have now demonstrated the need for this Bill, along with the fact that we have left the European Union.
The democratic deficit is one of the most important reasons—if not the most important reason—why we had to leave and why the Northern Ireland protocol arrangements and the Northern Ireland Protocol Bill are in need of immediate resolution. That Bill, which has passed all its stages in this House, is now becalmed like the Mary Celeste in the House of Lords, with nobody on board, pending agreement from the European Union to change its mandate and resolve this outrageous democratic deficit immediately.
As Con O’Neill, who negotiated our entry into the European Union, admitted in his 1983 report to Lord Hume—by then, far too late—the Government simply did not understand the undemocratic system that was and remains employed by the European Union. Many people, as is quite obvious from what we have heard in the past 40 minutes, do not have the foggiest idea what that means in practice and the way in which the European Union actually functions.
Mr David Davis (Haltemprice and Howden) (Con)
Will my hon. Friend give way?
Sir William Cash
No. In a nutshell, every single law that goes to the Council of Ministers, which is the ultimate law-making body, does so by a majority vote of the 27 member stated behind closed doors, without even so much as a transcript and in total secrecy. Indeed, I had an exchange with the noble Lord Clarke of Nottingham on this matter when he was still in this House in 2017. He made it abundantly clear in his response to an intervention that the real legislative power of the Council of Ministers was exercised in private, going on to say,
“I used to find that the best business at the European Council was usually done over lunch”,—[Official Report, 14 November 2017; Vol. 631, c. 215.]
which is fundamentally different from the way in which we have legislated since we left the EU and in this actual debate today. By contrast, we are conducting business today, and taking democratic decisions, by a majority of this House, which is proof in itself that it works.
In practice, in the context of the sunset arrangements in this Bill, clauses 12 to 16 provide delegated powers to restate, revoke and/or replace and update certain retained EU laws, which are secondary retained EU law and a new category of “secondary assimilated law”. Many of these powers are subject to the negative procedure, but the affirmative procedure is required where primary legislation is being amended or substantive policy change implemented. Some primary legislation is in the Bill. Where the negative procedure applies, the scrutiny system is similar to the work done by the European Statutory Instruments Committee, and it will be for the House to decide how that evolves in line with the democratic decision taken by this House today.
When the original proposals for the first withdrawal agreement Act were brought into effect, at my suggestion—I introduced a Bill on the subject—all EU law was then deemed to be UK law. But then remainers got to work and came up with the concept of retained EU law, which asserted the supremacy of the principles of EU law and decisions by the European Court. We may have left the EU, but a massive ball and chain was embedded in that Act preventing us from making our own sovereign laws on our own terms. I add, by way of parenthesis, that the Prime Minister responsible for that Act resigned—thanks to the Spartans.
Those laws had been made under sections 2 and 3 of the European Communities Act 1972. It is certainly true to say that since that date, not one single European law was ever repudiated by this House, because the provisions of that 1972 Act prevented it. We were therefore subjugated to the European Union and decisions of the European Court of Justice by our own irresponsible, voluntary abdication of the inherent and democratic procedures that evolved in this House over the best part of 400 years.
Our entry into the EU in 1972 was therefore a blind step into the void of an undemocratic and unaccountable system of government. These thousands of laws lack inherent democratic legitimacy, and must therefore be removed from and/or replaced on our statute book. The Bill also allows us to move back to the certainty implicit in the UK common-law way of doing things, as compared with the purposive interpretation of law by our judges, as laid down by the principles of EU law. Nobody can dispute that.
Wera Hobhouse (Bath) (LD)
On a point of order, Mr Deputy Speaker. I have been told many times that when we are on Report, we should not make general speeches but refer to amendments. Can you make a judgment on whether what is being said is appropriate?
Mr Deputy Speaker (Sir Roger Gale)
I have already exercised that judgment. If I thought that the hon. Gentleman was out of order, I would have ruled him out of order.
Sir William Cash
Thank you, Mr Deputy Speaker. So much for that.
Our system has relied uniquely on a large bench of high-quality, independent judges, who address points that are brought before them when people or businesses apply to the courts for remedies for perceived damage or misconduct. Through our traditional decision-making process, which must be interpreted in accordance with what is precisely set out in our sovereign Parliament, the judges must develop what is generally regarded as a fair and equitable system of redress, and set standards of care and determine consequences of breach in matters of responsibility and duty.
We therefore have to strip away vast amounts of inherited EU law, which operates on the constitutional code-based model that is alien to our system, so that we once again have a single common law system in our country—provided, of course, that we have the right people doing it, such as the Brexit opportunities unit, and that the task can be performed smoothly. In addition, economic research shows that this step will considerably enhance the UK growth rate, not by lowering standards but by removing or replacing voluminous, poorly drafted, generalised, purposive EU texts.
If we miss this opportunity, we will have shirked the core and inevitable consequence of the democratic decision that was taken by the people of this country. We must make our own sovereign democratic laws on our own terms, although on occasion, we may well decide to complement laws made in the US, parts of the EU or parts of the Commonwealth. Exchange across different constitutional arrangements sometimes leads to improved ways of doing things and improved laws, which is a good thing.
Ultimately, however, the simple test is what this House decides as the democratic law-making system under which we are governed; what the judges determine in the best tradition of our constitutional arrangements, which have been built up over many centuries; and how they interpret those laws in line with what our sovereign Parliament has decided. The work of the Brexit opportunities unit and of my right hon. Friend the Member for North East Somerset, to whom I pay tribute, as well as the work of my Committee, is absolutely enormous.
The principle of the Bill was agreed on Second Reading and, as I said, in the Public Bill Committee. I pay tribute to the Prime Minister and the Government for listening to the strong advice that I and others have offered. The Bill not only is justified democratically but, as enacted, will continue to be so. The freedoms that it will provide, in creating new opportunities for legislation, competitiveness and innovation, are self-explanatory.
Alyn Smith (Stirling) (SNP)
It is a pleasure to follow the hon. Member for Stone (Sir William Cash). Bluntly, we do not agree on much, but I do not doubt his enthusiasm for the subject. If what he is on comes in powder form, I would be grateful if he could slip me over some wraps—I think I am missing out on quite a journey.
Much as we disagree with the substance and content of the Bill, it is a pleasure to speak in the debate. I pay tribute to my hon. Friend the Member for Argyll and Bute (Brendan O'Hara), who did much of the heavy lifting throughout its earlier stages and who, for his troubles, was rewarded by metamorphosing into our Chief Whip so he cannot be here today. I am pleased to carry on his work. The fact that he has maintained his sunny disposition and sanity during the process is testament to his fortitude, because when I read the earlier proceedings, I could not help thinking that they were some sort of satirical effort written by Armando Iannucci, Ian Hislop, Paul Foot or—to go back a bit further—Jonathan Swift or Lewis Carroll; I very much enjoyed “Nusrat in Wonderland” during the Minister’s opening speech.
I will focus on our amendments 29, 30, 31 and 33. We will press amendment 28 to a vote, because we believe that it is worth checking the mood of House. I will come on to the detail of that in due course.
I will speak about our philosophy and approach to the Bill, and about its import. I have never been more conscious of the difference in world view between Government Members and my party and country. We did not see the EU as a prison to leave or as undemocratic. EU laws were passed in conjunction with the democratically elected UK Government and democratically elected MEPs in the Council. The hon. Member for Stone talked about the codified basis of EU legislation, and he is right about that in codified jurisdictions, but to enter into the domestic legal framework of these islands, it had to be dealt with via statutory instrument. I really do not think, therefore, that the starting point of the Bill is correct.
I will give our bona fides. SNP Members deeply regret leaving the EU, as does my country, which voted against it. We in Scotland were taken out against our democratic will, so although the hon. Gentleman talks about a democratic deficit, Government Members should worry far more about the democratic deficit in the UK than the one in the EU. I see their smirks, as ever, but it is not just us that they are denigrating—it is the people of Scotland. In the last opinion poll, 72% of the people of Scotland wanted to go back into the European Union. We hear that Brexit has been such a success, but in 2016, the UK economy was 90% the size of the German economy and it is now 70%. If anybody would like to prove me wrong about that, they can try. These are facts.
I accept the democratic mandate that some hon. Members talk about, but in terms of where we are coming from with the Bill, I hope that Government Members respect our pro-EU sentiment, because it is deeply felt. To be clear, this is a matter of deep sadness and anger for us, but I am not interested in fighting old battles. I am interested in fighting future ones, however, and we will have plenty of those.
I say to Government Members: “If you will do this damn silly thing, don’t do it in this damn silly way.” I do not agree with the premise or the intent of this legislation, but it is the content that will quickly come back to haunt the Government, in exactly the same way that many other mistakes that were harrumphed to the rafters in this House came back to haunt the Government who tried to deny that they had anything to do with them.
Robin Millar
The hon. Gentleman makes some interesting and thoughtful points. How, then, did leaving the European Medicines Agency come back to haunt the country, given that we were free to invest in and create a vaccine that has benefited others because we were not part of it?
Alyn Smith
I am glad that the hon. Gentleman has mentioned that often-quoted canard. As a starter, the European Medicines Agency had 700 jobs in London, which were lost. There was also absolutely nothing in the UK’s response to covid that membership or otherwise of it hindered; it is important to get that point across. It is perfectly legitimate to have wanted to leave the EU or the European Medicines Agency, but let us not claim that successes were predicated on things that they were not.
What I find so objectionable about the Bill is that it is unnecessary. I am really not interested in fighting old battles, but the people who voted leave and wanted to take back control of our laws and so on won—it happened, so get over it! They are not so much bad losers as bad winners. Every single law, regulation or standard, however it was derived through the EU channels over the long history of the UK’s involvement in it, is subject to this House and this Government—right now. Any legislative instrument that the UK Government want to amend, repeal or bin is open to that authority in the House right now, so there is a deeply ideological mistake in the Bill that, even at this stage, I urge hon. Members to think hard about.
The fact that we do not know how many legislative instruments will be affected by the scope of this Bill should give a sensible, rational Government pause. I do not dispute the idea that a greater complementarity of the domestic statute book is desirable: I am in favour of the codification of all UK and Scots law. If the UK had a unified Gesetzbuch the way the German Government have, we would have a far more logical legislative framework, but we do not need to set arbitrary deadlines that are going to come back to haunt our own officials and Ministers for the artificial black hole that will open up over various Whitehall Departments. That will not give any legislative certainty. It will give the opposite: there will be a chill effect over deeply held rights.
For those who want to take back control, I do not dispute the logic of the idea. If there is a particular legacy piece of EU legislation that is not fit for purpose, it is open to the Government to get rid of it through the normal legislative process, but this Bill is not the normal legislative process. We have heard much about parliamentary scrutiny, but this Bill is a huge blank cheque for here today, gone tomorrow Ministers who have demonstrated throughout the Brexit process a lack of foresight and competence. That is not a sensible thing to do. I appreciate that there is a degree of scrutiny over subordinate legislation, but it is nowhere near as good as the scrutiny of this House, which is why we will support amendment 38, which would make it clear that this House, and not here today, gone tomorrow Ministers, should be in charge of that process.
The idea is that the abolition of laws will lead to some sort of dynamism and freedom, but it will not. It will lead to legislative black holes into which bad actors will expand very quickly. The idea that the UK Government are properly set up to take due account of that, when they cannot even tell us how many instruments are under consideration, should be of concern.
So I do not like this Bill, and I really fear that the Government are making problems for themselves, because this legislation is neither rational, proportionate nor pragmatic. The idea that particular domestic provisions—they are all domestic provisions now; they have all been incorporated into domestic UK law—should, because of their origin rather than their content, somehow lapse is an utterly flawed premise.
Sir William Cash
I jib very strongly at the suggestion of avoiding the procedures whereby these laws were made. It is not just a question of their origin, because it is the EU and some people do not like it very much. It is rather because of the manner in which the procedures operate.
Alyn Smith
That is a point on which we flatly disagree. These legislative instruments were for over 40 or 50 years accepted by the UK Government in this House and latterly in the Scottish Parliament, the Welsh Senedd and others. They were also incorporated by the hon. Gentleman’s Government into domestic law in order to provide ongoing continuity in legal sentencing. So where there are pieces of legislation that are not fit for purpose—or are somehow holding the country back from this brave new world we are all excited about—then get rid of them, but do not say that vast swathes of legislative instruments on our statute book should just somehow stop without any thought about their replacement or anything else; that is not a sensible way to go.
These are significant points. I accept there has been some hyperbole in describing what is at risk, but what is at risk is fundamental to how the citizens of our countries lead their lives: labour rights; rights to clean air and water; product safety; consumer protection; food quality; protection for women in the workplace; protection of biodiversity; trading standards; and health and safety. I could go on—there is a lot more, and colleagues will come on to that—but there are deeply held principles that our party cherished which under this Bill will be subject to a reversal process which we reject.
Turning to what we are looking to do and focus upon, we will support amendment 36 and also the Labour amendments on workers’ rights and other matters; we need a united front on this. Our focus, however, given that we are the SNP, is Scotland’s democracy. The Minister made a number of points about the increased power for the Scottish Parliament, and there are some powers, but if we are being fully intellectually robust about that process we also need to look at the interaction with the United Kingdom Internal Market Act 2020 and the fact that just yesterday a section 35 order was made by this Government. That is implicit in the devolution settlement; that makes clear that the reality of devolution is that anything done by the Scotland Parliament can be called in by the UK Ministers. I do not like that, but it is the reality of devolution, but the UK Internal Market Act makes clear that any future law of any Scottish emanation of government could be subject to calling in on political grounds in order to maintain the coherence of the UK internal market. That means every single power of the Scottish Parliament and every local authority, health service, university and all the rest is subject to a gainsaying that upends the fundamental principle of devolution.
Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)
What are my hon. Friend’s thoughts on the fact of those powers being called in by a Minister, not this House?
Alyn Smith
I agree with that point, but that is the reality of devolution, which is why we think devolution is not suitable for Scotland’s ambitions and wants.
The Act in question was passed by Labour Members, SNP Members, Greens, Liberal Democrats and three Conservative Members, yet it has been called in by the Secretary of State for Scotland. We will fight that; we think it is a bad decision and we will take it right the way through the courts. The United Kingdom Internal Market Act 2020 makes it clear, however, that any future decision of any Scottish body is subject to it. The Bill makes it clear that the past is not safe either; existing bits of the domestic statute book are open to reversal as well, and some will fall off the statute book entirely. The Minister says she is keen for more powers for the Scottish Parliament, so I hope she will accept our amendment 28, which we will put to the vote, which makes that explicit. There are opportunities to tidy up EU elements of domestic statute. I fully accept that and I accept it needs to be done, but it is not done by setting fire to the house because we do not like the curtains in the downstairs privy, which is what this Bill does. It is, flatly, a damned silly thing.
Stephen Farry (North Down) (Alliance)
Does the hon. Gentleman agree that there is a commonality of approach and of concerns, which he has voiced, between Scotland, Wales and Northern Ireland? My hon. Friends the Members for Belfast South (Claire Hanna) and for Foyle (Colum Eastwood) and I, and indeed Plaid Cymru Members, have tabled similar amendments—amendments 37 and 38, which I am glad the hon. Gentleman is pressing to a vote. Does he recognise that the capacity of our local civil service is constrained, particularly in relation to the “end of ’23” deadline? In Northern Ireland, which does not have a functioning Assembly, we have a particular challenge as none of this might drop off the statute book and no one is in political charge to take control of the situation.
Alyn Smith
The hon. Gentleman makes an important point. The UK constitutional arrangements in London, Wales, Scotland and Northern Ireland were all predicated upon the maintenance of the single market, the customs union and the EU; that was the balance of devolved competences that was struck. All this was upended by Brexit and the actions of the UK Government since. So there is deep consequence for the devolved settlements in all the home nations, and indeed the Brexit process, from this Bill.
If we are serious about protecting devolution—frankly, in light of yesterday’s decision, I do not accept that the UK Government are—we have put forward, as have others, ways to do so. But I do not think the Bill is fit for purpose. I disagree with its purpose; I think it was borne of spite and hubris rather than any pragmatic, rational process. I think it will cause problems for the UK Government—I say that with no pleasure—and in so doing will undermine the devolution settlement and cause grave disquiet to millions of our businesses and citizens.
I say to the Government that if they are going to do this damned silly thing, do not do it in this damned silly way.
Dean Russell (Watford) (Con)
I rise to speak primarily about new clause 1, but I will touch on other amendments.
This Bill delivers on the promise of Brexit, but also the practicalities of what that means for this country. The truth is that when people voted for Brexit across the country in large majority, especially at the last election, they wanted—to use a phrase that has been referred to a lot today—to take back control. There is no greater taking back control than having politicians and MPs in this place, and the Government that the people have elected, being able to decide our laws and make sure they are being implemented.
There has been a lot of talk about the idea that this is somehow a burden and a bonfire of rights. Actually, what we have seen in the Conservative party and the Government—I saw it myself last year—is an absolute passion to ensure that workers’ rights are at the heart of what we do. In my own work as a Back-Bench MP in the last year, I brought in a private Member’s Bill so that workers could keep their tips, which my hon. Friend the Member for Ynys Môn (Virginia Crosbie) is taking through its stages. On workers’ rights, we have backed private Members’ Bills on extending maternity rights and carer’s leave. We are doing that in lots of ways not because we are being forced to or because the EU has told us to but because we believe that that is the right thing to do. I fully back that.
The truth is that the Bill is about ensuring that, when voters elect us to this place, we have the ability to make changes. At the next election, they can choose to keep us or get rid of us, but, by kicking the issue down the road, which is in effect what some of the amendments are about, that will never happen. We need a deadline that is purposeful and delivers on what people voted for at the last election. We need to ensure that we are delivering in a timely fashion.
There is the idea that somehow we are putting too much work on to civil servants, that it will be too hard and that it is too much effort. Actually, we are voted in to be here to deliver and to ensure that our civil servants are delivering on the promises that we made to the British public. I have to say that civil servants do an amazing job; my experience with them has been fantastic.
I have heard lots of misinformation and, sadly, in some cases, disinformation in the media and in emails about what the Bill will do. It is not about reducing rights or reducing environmental measures. It is actually about looking at what laws are in place and being delivered in this country for the British people.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
The hon. Member and I have worked collaboratively on a number of things, including the Online Safety Bill. Given the vast swathe of legislation that has still yet to be determined, what is concerning is that there are difficulties around trust. I think in particular about the rights of workers built up over a number of years, environmental standards, and even several aspects of online safety. If, for such significant changes in existing provision, that legislation could be brought back to the House so that we could see it, that would restore confidence.
Dean Russell
I enjoyed working with the hon. Lady on the Online Safety Bill, which made huge progress yesterday and is now going to the Lords. The key point here is that there are many laws—and many pieces of what I would consider to be red tape—on the statute book, some of which even those who wanted us to stay in the EU do not know exist. We need to go through a process to identify that. The Bill is about amending, repealing or replacing that legislation. One part of that is about ensuring that case law that currently refers to pieces of EU case law and others refers to UK pieces. There is legislation that will become rapidly out of date because it refers to old EU legislation, priorities and policies. That cannot be right. We need to ensure that our legislation is fit for purpose and up to date.
Sir William Cash
On a small point that was just raised, may I mention that the Online Safety Bill is not retained EU law? There is a law in the European Union, but our Bill does not relate to that.
Dean Russell
I agree with my hon. Friend.
I am conscious of time. The bit that I really want to touch on is this legislation’s role with regard to growth and small businesses. In the different world that we live in nowadays, it is essential that our small businesses—I believe that they are about 99% of all our businesses—can be nimble. We used to talk about having a shop on every corner, and we now have businesses that can be in every corner of the world. We need to ensure that they can grow and that they are not burdened with spending most of their time doing admin and back-office stuff to fulfil legislation that is out of date and unnecessary. We need to know what that legislation is.
Jim Shannon (Strangford) (DUP)
While most of the United Kingdom will benefit from the Bill, and my party will support the Government when it comes to the votes, Northern Ireland is being left behind due to the protocol, which the hon. Member for Stone (Sir William Cash) referred to. Does the hon. Gentleman agree that while we do these things tonight, we must ensure that the Northern Ireland Protocol Bill goes through so that the people of Northern Ireland have the same rights as the rest of us in United Kingdom?
Dean Russell
I thank the hon. Member—my friend—for his comments. Absolutely, we need to get that sorted, because it is essential that we move forward in the right way.
My point on small businesses is that, at the moment, they need staff to do extra things to deal with Government—admin, processes and all those different things—and if we relieved that stress and enabled them to be more nimble, they could spend more of their time selling and doing rather than filling out paperwork. That has got to be a good thing. When we look at this legislation, we must ensure that everything is fit for purpose, that there is a purpose to it and that we are being purposeful in implementing it.
There are thousands of laws on the statue book that are not essential or necessary. They are just there, and many hon. Members probably do not realise that they exist. That cannot be good for this country. It cannot be good for growth and it cannot be good in particular for small businesses and those who run those small businesses.
There is lots more that I would like to talk about, but I will finish. I absolutely support the Bill and look forward to seeing it go to the Lords. I hope that Opposition Members will see the benefits that it will bring to this country and that, when they talk about taking back control, they realise that this is at the heart of that.
Hilary Benn (Leeds Central) (Lab)
The Bill certainly has not improved with age; on the contrary, all of its flaws have become more exposed as the chorus of criticism on it has become louder and louder. We have heard Ministers blame misrepresentation a lot this afternoon. I think that they need to realise that they have brought this mess entirely on themselves. I wonder whether now, on reflection, they regret embarking on a process that has made opponents of so many people they did not need to anger. This morning, I listened to the chief executive of the Wildlife Trusts, who was absolutely scathing about the Bill. The Government have brought that upon themselves. Whatever Ministers think it is that they are doing, this is very bad politics—not that it is for me to advise them.
The fundamental problem, as we have heard, is that the Government still do not seem to know what it is that they want to do. Here we are, six-and-a-half years after the referendum, and they cannot tell us precisely what they want to scrap, what they want to amend and what they want to save. They cannot tell us. For my sins, I read the Hansard of the Committee, and found that, despite being asked that question many times, the Minister could not or would not provide an answer. As yet, I describe this as a process without a purpose. In the meantime, as we have also heard, Ministers have created huge uncertainty for business.
It is extraordinary, and that is why I am supporting the amendments that have been tabled by my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders). They seek to give substance to what the Government claim, which is that they have no intention of sweeping away lots of environmental and consumer protection and workers’ rights laws; they just refuse to be specific about the ones they are going to keep. The amendments would make it clear beyond doubt which pieces of EU retained law will not be affected by sunsetting.
I am also supporting the cross-party amendment—amendment 36—tabled by my hon. Friend the Member for Walthamstow (Stella Creasy) because, whatever differences of view there may be in the House about other aspects of the Bill, surely nobody would argue that it is acceptable to repeal legislation by accident. Nobody can argue for that—that a piece of retained EU law should suddenly disappear from the statute book in just over 11 months because no one noticed its existence.
The Minister argued in Committee:
“Allowing outdated retained EU laws to languish on our statute book where they do not work in the best interests of the UK”—
debate—
“is irresponsible.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 121.]
I would argue that it is irresponsible to propose this legislation, which could cause laws to disappear simply by neglect, given that Ministers cannot even produce a list of the so-called outdated laws—I simply do not understand this idea that all these bits of legislation are dragging the nation down—let alone a full and complete list of all the pieces of retained EU law that come within scope of this Bill. Because of that, the amendment my hon. Friend will be moving is necessary.
Craig Whittaker
First, I would like to put on record my support for this Bill. I fully understand the huge opportunities it presents for UK plc. I do not agree with those who believe this is a Bill to strip away rights and hard-fought-for gains in various legislation. Those who detract seem to forget that, when the UK was part of the EU, often, legislative change was led by this country to improve rights for all people in the EU, and it is because of this country’s input that many of these pieces of legislation are in place today in the EU. On that basis, there is no reason why we cannot enhance some of these laws further. This Bill will give us as a nation every opportunity to do so.
However, I would like to ask the Minister to ensure that, when changes are made, we take every opportunity to enhance laws beyond what we currently see. As well as doing that, can we ensure we have a swift mechanism so that when we do not get it right—in some instances we will not get it right—we can swiftly plug any loopholes? Today, I want to briefly highlight one sector that is being exploited not by the Europeans, but by far eastern countries as a result of us being too liberal—with good intention, I might add—from the outset after Brexit.
Currently, a member of the Chartered Institute of Trade Mark Attorneys who is EU qualified but does not currently reside in the EU, cannot practise on EU trade marks in the EU, or in this country for that matter. When Brexit happened, the only criteria we adopted to represent a client here in the UK was the need to have a UK address—so the criteria are different from those under which we traditionally operated. The change, while it had every intention of making the system more open, actually has brought huge unintended consequences, with tens of thousands of additional applications clogging up the system. We see far eastern companies and others setting up a PO box in this country, which counts as having a UK address. On the face of it, that does not seem to be an issue, until of course you need to contact them, which you cannot.
Prior to Brexit, if a trade mark was breached in this country, a company would employ a trade mark attorney, who then would negotiate with the company or the attorney of the company breaching the trade mark or trying to apply for a similar trade mark. An agreement generally would be reached before having to go to court and the cost to UK business was more of an irritant than a substantial cost. Now we have a multitude of PO boxes where a company’s attorney cannot even get a reply by email from those so-called companies. That means it has to go to court on virtually every occasion. That is many times more costly for UK companies, not to mention the huge amounts of frustration and irritation that comes with the current process.
To highlight how huge this issue is, these foreign-based firms with PO boxes now account for 39% of all UK trade mark applications at the UK Intellectual Property Office, compared with just 19% prior to Brexit in 2019. If we are not careful, we will have a situation where trade mark-intensive industries, which by the way account for £770 billion of our GDP each year, may be completely undermined by what appears on paper to be a good change of legislation, but which in reality has the ability to totally undermine the sector and a huge part of our GDP.
Without taking any more of the House’s time, I would like to ask the Minister to reiterate what safeguards will be in place to ensure unintended consequences, such as those happening to the trade mark and intellectual property sector, do not happen. What can the Minister do to ensure we have a system in place where legislation can be changed quickly, as in the case of CITMA, when we totally miss the unintended consequences?
Stella Creasy
I rise to raise amendment 36, tabled in my name and in the name of the right hon. Member for Haltemprice and Howden (Mr Davis) and many other Members across the House.
As far as I can see, there have been three responses to the Bill in Parliament. First, there are those who have not paid attention because—let’s face it—many years on from the Brexit referendum still anything that involves Europe is cold cup of sick territory. That is understandable but not excusable because it means that those people have not woken up to the fact that this is nothing to do with Brexit and everything to do with an audacious ministerial power grab.
The second group are those who have read the Bill and are completely happy with the idea that the Government should just hit delete on all legislation with the word “Europe” in it, with all the confusion, chaos and complications that will cause for our constituents, because it is a price worth paying. That is not understandable, but it is excusable, because they do not see the laws at stake here—they just see the word “Europe”. There is an honesty in being so hellbent on the idea that anything we have ever shared with Europe is bad and it does not matter whether people value it—employment rights, environmental protections, consumer standards, flight safety rules. For them, if the choice is cake or death, it is death every time.
The third group of people are the people I am trying to appeal to today. They know this is not the right way to deal with retained EU law, but they hope that somebody else will step in and sort it out—the Opposition, other MPs, the Lords or perhaps even some divine intervention from the Lord himself. That is not understandable or excusable, because if the Bill goes through unamended it will stop us doing our job and it is our job to speak up for our constituents.
Today’s debate is not about how the Europeans make legislation. We have left the European Union. This debate is about exactly what taking back control meant, and about whether we will be able to speak up for our constituents on the issues that they care about. The emails in our inboxes show that they care. What was promised during the Brexit referendum campaign was not a sovereign Whitehall or taking back control in Downing Street, but that is exactly what the Bill does—and it does it in a way that is beyond parody. Personally, I think that the dashboard was created as a way to keep the then Business Secretary occupied putting random words into it. It is a farce that, as my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) said, we are legislating by website.
It matters that the scope of legislation is correct, which is what amendment 36 would ensure. Let me help Ministers out here, because they do not know how many laws are missing. We have already found many, including the Conservation of Habitats and Species Regulations 2017, the Conservation of Offshore Marine Habitats and Species Regulations 2017, the Marine Strategy Regulations 2010, the Marine Works (Environmental Impact Assessment) Regulations 2007 and the Welfare of Animals (Transport) (England) Order 2006.
In other cases, the dashboard lists regulations that are no longer laws, so some poor civil servant is going through them even though they no longer exist. The Financial Services and Markets Bill seeks to revoke at least four sets of EC regulations that do not appear on the dashboard. Two of the first five statutory instruments that it seeks to revoke are not listed on the dashboard either.
It is estimated that the process will cost the taxpayer tens of millions of pounds, at a time when we are all being told to tighten our belts because of the Government’s mismanagement of the economy. There are 3,500 pieces of legislation involved—that is the estimate, but there could be more, and I suspect that that is why the Minister does not want to be honest with us—in comparison with the 600 that we made during the Brexit process.
The Minister says that the dashboard will be updated, but it will be updated after the point at which we are being asked to approve the process. I will withdraw my amendment if Ministers can just give us a clear number and a clear list of what is in scope. I do not understand why that is an unreasonable proposition. Frankly, Back Benchers of any political party should be worried about the precedent set by legislation that allows the Government to give themselves an enabling power without defining its limitations.
That is before we even get on to who makes the decision about what happens next. Ministers want to tell me that I am scaremongering when I raise concerns about how they will use these powers—they say, “Of course we wouldn’t get rid of these laws.” Well, let us have a look at that scaremongering. I have been tabling parliamentary questions to try to understand what will happen to rights that all our constituents care about, such as paid annual leave, bathing water quality, sharps rules in hospitals, consumer protection from unfair trading, food hygiene and toy safety legislation. Those are surely things that Ministers would want to put beyond reach, so nobody could say that they might be revoked or accidentally lost down the back of the ministerial sofa, along with the 800 sets of regulations that have no ministerial leads and are quite likely to get lost in the process.
The problem I have is that Ministers are clear that there are some regulations that they are going to revoke and some they are going to keep. So they do know what they want to do with the power that Members are going to hand them; they just do not want to be honest about it. Why do they know that they want to keep the regulations on bird flu, but not those on maternity and paternity leave? The Minister ought to talk to her colleague the Minister for Food, Farming and Fisheries, who wrote back to me clearly saying that the Government were reviewing that.
That is the problem: Conservative Members may trust their Government colleagues to do the right thing, in the same way that they might trust a 17-year-old when they ask for the keys to a Porsche “just to polish it”, but those of us who have been here and seen Governments of different colours, and the temptation that comes with ministerial power, know that the point about taking back control was parliamentary sovereignty. That starts with knowing what we are being asked to hand over: we are being asked to hand over oversight of an unknown number of laws. That is what amendment 36 asks for clarity on.
We also have to hope that our colleagues in the other place will make it clear that we can have influence—and not just in like-it-or-lump-it statutory instrument Committees; don’t kid anybody who has sat on one that they are a good or effective version of parliamentary scrutiny—and that we can speak up for our constituents. It may feel like cold cup of sick territory when we see something with the word “Europe” in it, but with all the rights and regulations up for deletion under the Bill, I promise that our constituents will not forgive us if we do not stand up for parliamentary sovereignty and support amendment 36.
Mr Rees-Mogg
May I begin by thanking the fantastic Bill team, some of whom may be listening to our proceedings this afternoon? This was an extremely difficult piece of work to pull together. The hard work that they have put in to achieve that in a timely way shows, it has to be said, the British civil service at its best. I am sometimes quite critical of the British civil service, so it is nice to be able to put on record in Hansard my grateful thanks for the deeply impressive work that has been done.
The Bill is being enormously overinterpreted by Opposition Members, and—it has to be said, as my hon. Friend the Minister did—mainly by people who never wanted to leave the European Union anyway. I think the laws of physics are being rewritten by the opponents of Brexit, because as far as I am aware, things do not expand in black holes; that is rather the point of them. Things are sucked in, and even light is trapped by the gravity.
Ian Blackford
I hope the right hon. Gentleman will understand this point. Of course there is a difference: we wish to be back in the European Union as an independent country, but by dint of this Bill we are going to have to introduce legislation to make sure that we remain aligned with the European Union. We have no desire to do that, because we are already closely aligned. These measures are going to be forced on us, against our will, by this Parliament.
Mr Rees-Mogg
The right hon. Gentleman makes a fair point. There will be some work for the Scottish Parliament to do to maintain the status quo. That is a policy decision for the Scottish Parliament, resulting from a decision that was taken by the whole United Kingdom. That is how devolution works, and that is a proper and fair working of devolution. That, actually, is what gives the Scottish Parliament the power to do what it wants to do. It flows from our constitutional settlement, and from the overarching decision made by the British people, as one people, to leave the European Union.
I now come to the entirely bogus point about the threat to rights. In his opening speech on Second Reading, my hon. Friend the Member for Watford (Dean Russell) made it clear, on the Government’s behalf, that the environmental rights would be maintained. The Government have been and are committed to that. But they will maintain them in UK law. We have been able to that before. I believe Henry Brooke was the Home Secretary who introduced the Clean Air Act 1956. The Conservative party has a pretty good record on that. It turns out that the Sale of Goods Act 1893, to which I earlier referred the Minister, was one of the last Acts of Gladstone, so the Liberals should be proud of their history of doing things in a British way rather than needing the European Union to do it. The Conservatives introduced the Holidays with Pay Act 1938—again, the protection of workers’ rights. That is before we go back to Lord Shaftesbury and the Factory Acts. We do not need to go into the mists of time to see that we can do it ourselves.
Finally, I must mention amendment 36. This is the man upon the stair. We all know about the man upon the stair:
“Yesterday, upon the stair, I met a man who wasn’t there. He wasn’t there again today. I wish, I wish he’d go away.”
If we do not know what our laws are, how are people supposed to obey them? If the laws are unknown, mystic and possibly imaginary, surely they should not be laws in the first place. They have made the best argument for getting rid of the man upon the stair who was not there in the first place.
Alex Sobel (Leeds North West) (Lab/Co-op)
I will keep my remarks to the Bill’s impact on laws that fall within the remit of the Department of Environment, Food and Rural Affairs. The Government’s dashboard lists only 570 laws that DEFRA identified as within the scope of the Bill. That figure alone would make DEFRA the most heavily impacted Department. However, in Committee it became clear that as many as 1,000 laws may be at risk of being revoked by the Bill’s sunset clause in December.
There are not the resources in DEFRA to enable officials to examine properly each of those laws in turn in the time remaining before the sunset sweeps them away. That is forgetting all the other work on environmental land management, sewage, waste, air quality and our commitments at the nature COP in Montreal. While our nature is depleted further due to the Government’s short-sightedness, we will have a year of navel gazing and the entire Department will be clogged up with months of pointless work reviewing lists of laws that no one wants to drop.
I take umbrage with the right hon. Member for North East Somerset (Mr Rees-Mogg). There are no guarantees. The Government are not guaranteeing that a single law will be retained in UK law. They should prioritise their environmental commitments in the Environment Act 2021 and the 25-year environment plan, including the actions and policies necessary to deliver nature’s recovery by 2030, as well as the environmental targets, the statutory instrument for which will become law next Monday. Those should be the Department’s priorities.
A definitive list of environmentally important measures does not exist. One could say that the Government have played themselves. It is the same old story, but there is still time to change the ending. We know that the list is even more extensive than the comparable list of retained EU law that provides critical protections for workers’ rights and conditions. The inventory of workers’ rights legislation is shorter and more easily identifiable.
There are important differences between the three domains of rights and protections highlighted by Labour’s amendments, all of which would set us back on the right path and change the ending. The Bill is unnecessary and we need to retain all those regulations and laws as minimum standards in this country. The retained EU environmental laws covered by the Bill include major protections that we rely on for clean air, clean water and safe foods. They provide crucial safeguards for the world’s most nature-depleted nation. Those are not my words but the words of Lord Goldsmith, a Government Minister in the other place.
Under the Bill, critical environmental protections face the prospect of being revoked or replaced by weaker regulations. Those are our real, identifiable concerns. Due to the extremely limited time available to consider and draft workable replacements before the application of the sunset clause, and the lack of parliamentary oversight and public consultation, we must focus on those issues if we want the Government to change the direction of the Bill. The Government have said that they are committed to maintaining environmental protections. The right hon. Member for North East Somerset said that
“the Government is committed to maintain all the environmental protections that currently exist and met a number of the environmental lobby groups to confirm this”.
That quote was from an earlier time but I think he just repeated himself. There is no guarantee—it his just words on the record, and he is no longer a member of the Government.
Caroline Lucas
Is it not also the case that, as far as we are aware, the perception of environmental legislation held by the right hon. Member for North East Somerset tends to be very much a narrow thing about habitats, water and so forth? It does not include things like product standards, chemical regulation or efficiency standards, for example, all of which might not necessarily be dealt with by DEFRA but which absolutely affect us every day of our lives.
Alex Sobel
There is a point about REACH—the EU regulation concerning the registration, evaluation, authorisation and restriction of chemicals—which was mentioned in the Bill Committee, but I want to give other Members time to make their speeches, so I will take on the hon. Lady’s points and I am sure others will pick them up later in the debate.
Alex Sobel
As I have mentioned the right hon. Gentleman twice, I will give way to him.
Mr Rees-Mogg
I am very grateful. I just want to clarify a point. It is not my word that has any significance in this; it is a Dispatch Box commitment, by which Governments tend to be bound successively. I would point out that, on legislative reform orders, this Government have tended to follow the Dispatch Box commitment given by Paul Goggins when he was a Labour Minister. Dispatch Box commitments are important.
Alex Sobel
I look forward to repeating the words of the right hon. Gentleman and the Minister on the Treasury Bench in December this year, to see if that is true. Only time will tell. Maybe my poor level of trust might be wiped away or eroded, but I doubt it.
I will conclude, to give others more time. The Bill as it stands today gives us no protections and is a charter for a bonfire of rights and protections that the public not only hold dear but need in order to breathe clean air, drink clean water and ensure that our countryside is not ravaged by destruction and extraction. That is why I am supporting our Front-Bench Members and the amendment tabled by my hon. Friend the Member for Walthamstow (Stella Creasy).
Vicky Ford
I want to start by thanking the Minister for the “Dear colleague” letter that arrived last night. It went a long way to myth-busting some of the misinformation that has been put out about this Bill, particularly by clarifying that it will not weaken environmental protections and that the Government are committed to protecting workers’ rights. However, the letter did not mention consumer legislation. Consumer legislation is often dealt with by many different Government Departments, and that might be part of the reason why. I particularly want to focus on consumer legislation.
I worked for many years as a British MEP representing British constituents, and I also chaired the European Parliament’s Internal Market Committee, which is responsible for consumer legislation, so I am very aware of how important much EU consumer legislation is to protecting constituents—British consumers—and this covers many areas, including food safety, product safety and safety when we travel.
But I am also aware that EU legislation is not always perfect in all regards. Yes, the UK played a key part in negotiating much EU consumer law, but that does not mean that every single element of the law perfect fits the UK market or UK consumer needs. In some cases, the UK might have wanted to introduce different or even stronger protections, but to get consensus across all the EU member states, either a one-size-fits-all or a lowest-common-denominator approach was sometimes followed. For example, I sometimes saw larger companies lobbying on specific regulations or product specifications and making them so specific that smaller competitors would find themselves locked out of the market, thus stifling competition and reducing consumer choice. So I agree with the principle of the Bill that all of Whitehall needs to look again at all EU retained law and ensure that it fits UK needs.
Furthermore, where unnecessary regulation produces additional costs, these costs are too often passed on to consumers. In today’s economic environment, so many of our constituents have such pressures on their household budgets, and we need to reduce those unnecessary costs, so I understand why clause 15 has been drafted. However, this does not mean that removing all consumer regulation is in the consumer’s interests, because a well-regulated market can benefit consumers, especially when it comes to safety measures. There might be examples where it would be sensible for the UK actually to increase safety measures and therefore increase regulations in some places.
We also need to make sure that important protections do not inadvertently drop out of our legislation during this process. It is therefore important for Ministers to ensure that equivalent or improved legislation is put in place, so that consumer interests, especially regarding safety, can still be protected. I hope the Minister will be able to comment on that in the wind-ups.
We should also recognise that there are some areas, particularly in fast-moving sectors, where new or deeper regulation is needed. The consumer organisation Which? regularly reminds us that product safety regulations do not fully cover the way in which consumers spend their lives online, and there may be an opportunity to improve that in the forthcoming digital markets, competition and consumer Bill. Product safety regulations could be updated, given that the consultation is shortly to be launched by the Office for Product Safety and Standards. We need to make sure that the Retained EU Law (Revocation and Reform) Bill does not cut across those other initiatives.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
One of the loveliest plaudits I have had since becoming a Member of Parliament is to be named as a species champion for the brimstone butterfly. If I had longer, I would tell the House about what a beautiful butterfly it is and how it can be conserved.
This debate reminds me of my daughter’s favourite film, “The Lorax”, which I have seen many, many times. The Lorax stands and speaks for the trees. Today I am speaking not only for the trees but for nature. There are very legitimate concerns about the impact of revoking all retained EU law, and those concerns come from the Royal Society for the Protection of Birds, Butterfly Conservation, Buglife, Plantlife, the Bumblebee Conservation Trust, the Bat Conservation Trust and the Amphibian and Reptile Conservation Trust. These are not radical or militant groups. They are not interested in the rights and wrongs of Brexit, and many were in existence long before the UK even joined the EU. Their intervention is unprecedented. These are mainstream conservation charities that rely on their membership, which I know personally is comprised of people with completely different political beliefs who share a common desire to improve and support nature. When the RSPB calls this Bill “an attack on nature,” we have to listen.
The Government created the category of retained EU law to ensure continuity after leaving the EU, and their deadline is arbitrary. Anyone would think the Prime Minister is more concerned about the upcoming local elections and the impending general election than about doing the right thing. The Bill flies in the face of common sense. Rushing to get rid of legislation without the time or the capacity to consider properly what we might want to keep does not make sense. As has been repeatedly pointed out in this debate, the Minister is not even aware of all the legislation that we might be getting rid of. It feels as though the Government are intent on cutting their nose off to spite their face. This is childish and it is another example of the Prime Minister putting the needs of his Brexit extremists ahead of what is right for our country.
The Environment Secretary had told the Environment and Climate Change Committee that 1,000 pieces of legislation were possibly involved, but we know that that figure has doubled, and the Minister is unable to give a final figure. If we do not know how much legislation is impacted, how can we possibly consider what we want to keep? Let us look at what is at risk. The environmental protections at risk include the highly effective habitats regulations, which protect some of most threatened and rare species and their habitats from the impacts of inappropriate development and persecution; the water framework directive, which regulates water pollution prevention and drives forward quality improvements in rivers and lakes; and the plant protection products regulations, which provide protection for all the environment and human health from pesticides.
Of course, what we want is to strengthen and not destroy, but this Bill makes a nonsense of the country’s environmental targets and commitments, and the Environment Secretary knows it. The confusion in this Government is shown by the fact that, on the one hand we have the new statutory English biodiversity targets published under the Environment Act 2021, which add to the pre-existing target of having 30% of the country protected for wildlife by 2030, while on the other hand DEFRA is consumed by a scramble to redraft regulations that have taken decades of work and expert consultation to evolve, under the direction to “lessen environmental burdens”. Like the rest of government, DEFRA is pulling in two directions at the same time.
Clause 15 prevents redrafting by precluding any that would “increase the regulatory burden”, even if these burdens that we are so worried about increasing amount to only an administrative inconvenience. It is crystal clear that the only outcome can be a weakening of environmental protections for our air, soils and water, and an increase in the loss of biodiversity. I believe that the public really care about this. The membership of all those organisations, right across the whole of our country, in every constituency, care too. We are a nation of animal lovers and we want the air we breathe and the waters around us to be clean. If we do not know what we are getting rid of, how it may have an impact and what difference it might make, how can we be sure we are doing the right thing? I was always taught that if something is worth doing, it is worth doing well. So will the Government just calm down, focus and get it right? Our country will pay the price if they do not.
Mr David Davis (Haltemprice and Howden) (Con)
I will be brief. My arguments will be simple and they will go straight to amendment 36.
When the right hon. Member for Leeds Central (Hilary Benn) spoke, I had a flash of déjà vu, back to the days when I co-operated with his father, thwarting the Blairite attempts to bypass Parliament some years ago. It came back to me that his father and I also shared a view on the European Union, with both of us knowing that it was undemocratic. We knew that both from ministerial experience and because we had read out history; Monnet and Schuman had designed it to be undemocratic, which was why we wanted to leave.
I say to the Minister, given what was said before from the Front Bench, that I come at this as a convinced and campaigning Brexiteer. I remind the House, given the substance of this Bill, that I resigned from Cabinet to preserve the right to diverge from the EU. So I agree with the aims of the Bill, but I also agree with the SNP spokesman, the hon. Member for Stirling (Alyn Smith), about its effectiveness in delivering those aims. I voted and campaigned to improve democracy; I wanted to take back control in order to give it to Westminster, not to Whitehall. However, that is what we have here.
When the Minister was speaking earlier, she talked about the consultations, but they were not with us—they were with the Scottish Government, the Welsh Government, the Departments of State and not with us. But we are the people who are responsible for this legislation. What is more, we are being asked to sign a blank cheque—one might almost say a pig in a poke—because we do not even know how many pieces of legislation are going through on the back of this Bill, let alone what they are. That, of course, is not democratic. We have heard the anoraks talking about this SI Committee, that sifting Committee and so on. That is not the Floor of this House. These issues are sufficiently important—some of them, not all of them—to be debated in the Chamber. Just glancing down the list, I see: aviation safety; compensation rules; insider trading; protecting a pensioner’s payout when a company goes bust—I cannot think of anything more significant to our constituents than that; and preventing the trafficking of illegal weapons. These are substantive issues that need to come to us.
Stella Creasy
I hesitate to stop the right hon. Gentleman, but does he therefore agree with me that the fact that Ministers have already unilaterally decided to revoke the piece of legislation that protects our constituents getting 50% of a pension pot if their company goes bust, without any consultation with us because they will use the powers in the Bill simply to let it be deleted, makes exactly his case as to why this is not democracy or taking back control?
Mr Davis
If the hon. Lady had given me 30 seconds, I would have made exactly that point. I agree with her. This morning, or last night, we had No. 10 rushing to brief the papers and to write to us saying that the Bill will not remove existing rights and protections, which is plainly not true, and that it will not impinge on environmental rights and so on. That demonstrates what a great hole there is in the middle of this legislation. If those matters were covered in the law, we would not need to have that assurance. All of the non-governmental organisations that are concerned—I do not agree with all of them—would not have had to have their say either.
Mr Rees-Mogg
I am very grateful to my right hon. Friend for giving way, because I, too, am very much in favour of parliamentary scrutiny and things being done properly. Everything that is covered by this Bill came in by a secondary measure and therefore it is proportional. Primary legislation is not within the scope of the Bill. If anything that came out of Europe came through in primary legislation, it will have to go through consideration on the Floor of the House. Unless my right hon. Friend is against secondary legislation altogether, I do not quite understand why he finds this Bill so shocking.
Mr Davis
I am sorry, but two wrongs do not make a right. The reason why I did not like the European Union was precisely what my right hon. Friend has just described. We had things almost de facto imposed on us. We went down an SI-type route to do things that I thought were important enough to justify discussion on the Floor of the House. The depletion of debate on the Floor of the House, mostly in the years before he came into the House, was one reason I was a Brexiteer.
We have approached this issue in a different way in other respects. Let us imagine that we are talking about 4,000 pieces of law, regulations or whatever. In truth, probably 90% of that may be clunky and may not work very well, but there is one thing in the Bill that I approve of, which is dealing with the superiority of European law—taking those priorities out of it. That is sensible. Once we have dealt with that, things will broadly work and will not justify a rush at this exercise. Let me explain very briefly what I think the consequences of that will be. I said that it is not democratic, but it will also be inefficient and possibly incompetent. I give the House, as a demonstration of this, what we did on 3 March 2020. You may remember, Mr Deputy Speaker, that that was the day that we gave the Government all sorts of powers under the emergency Coronavirus Act 2020. If we look, we can see how many errors were made in governing the country over the next six months, until we corrected that Act. If we do not bring a Minister to that Dispatch Box to justify what they are doing, the quality of the decision goes down, and that is dangerous when we are talking about measures as important as these.
The right approach is the one that we have actually taken in some areas. For example, we are rewriting the General Data Protection Regulation under a digital Bill. We are rewriting Solvency II and other financial measures under primary legislation, and the same is true for some procurement work. We should be doing similar things with some other software elements and biomedical rules. That is the way to do it: pick off the 10% or the 5% that really matter—that make 100% of the difference—and do that properly, on the Floor of the House, and not by remote control on a ministerial diktat in an SI Committee upstairs.
Sarah Olney (Richmond Park) (LD)
It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis) in this debate. I rise to speak to amendment 36, tabled in my name and the names of right hon. and hon. Members from across the House, and to pay tribute to the hon. Member for Walthamstow (Stella Creasy) for her hard work in drafting and tabling it.
Mr Marcus Fysh (Yeovil) (Con)
I voted for the independence that we gained from leaving the EU, as did many of my constituents. But they and I want to see us take advantage of the flexibility to make our own law that that independence gives us. That is the point of Brexit, and I think that one of the frustrations for people around the country has been in not seeing that taken to its logical conclusion.
The Bill is an overdue but welcome part of that. It is necessary because we are looking to streamline our systems and give them precision and certainty through a full framework of UK law-making, not EU judge-led interpretation and code. We need the Bill for the flexibility and agility that it will give us in being able to promote competitiveness and law that is appropriate to our conditions in these islands, and focus on the things that are important to our constituents. We need those laws to be accountable to them. We need the Bill for practicality and pace in achieving that. We do not need the process of engaging with the review of our retained EU law to be hamstrung by the House of Lords, or for the order paperOrder Paper to be commandeered by interest groups and Opposition Members.
We need to establish this common law framework by which our law can evolve. We do not want it to be subject to enduring purposive confusion and obstruction by European Court of Justice judgments, which inevitably affect the interpretation of law that originated from EU sources. We need the Bill to focus on those things. We need it not to be confused on these matters by arguments from the other, unelected, House. As people have mentioned, there are extensive powers in the Bill to provide that there are no lacunae in our laws by virtue of the revocation and the sunset. There are powers to restate and remake our law should those lacunae appear.
Overall, the Bill is essential to send a clear message to the government machine that it needs to apply itself now and finish the work that it has started. I am confident that it can and will do that. The civil servants whom I have seen working on these things are extremely dedicated and absolutely able to achieve that. After we pass the Bill, we need Ministers in every Department to step up and lead. They absolutely can do that, and they can do it well—there is time, but it will require a coherent process. They need to be focused on triage and prioritisation, with assistance from, at the centre, the Brexit opportunities group in the Cabinet Office, about which we have heard. That group can commission outside counsel to help with that process, to drill down into the most important things to achieve and to achieve them efficiently, and to set up common law frameworks for the evolution, clarification and elaboration of our principles in common law on all these matters.
It is also very important that that process involves practitioners from industry. Sometimes, we listen too much to the CEOs of big companies and the heads of various industry bodies, who often are political in their outlook, rather than thinking about the practicalities of getting from A to B and coming up with proposals that would make a genuine positive difference to how our laws and regulations evolve. We need to ensure that we have those mid-level practitioners present in these discussions to ensure that the practical avenues are taken up.
In response to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), one thing that Ministers might like to think about is whether, in these things wherechoosing to bring to the Floor of the House those matters that we can make a big practical difference, they might choose to bring those matters to the Floor of the House on, so that we can examine them more, help to champion them and celebrate what we are doing. That might be a thing something that we could all agree on. I am confident that if we pass thisthe Bill unamended, we can together bring more precision and clarity to how our law evolves. The Bill will be of tremendous advantage to all the United Kingdom.
Bambos Charalambous (Enfield, Southgate) (Lab)
I rise to speak in support of amendments 18, 19, 21, 24 and 36. What is clear from the Government is that this Bill is ideologically driven, lacks common sense, avoids parliamentary scrutiny and puts rights and protections that we have had for many years at risk of being revoked and deleted. In short, thisthe Bill plays Russian roulette with our rights and protections, and the Government cannot even tell us how many or give us an exhaustive list of which ones. When the Government unite groups ranging from the RSPB to the Law Society in opposition to the Bill, they should take note. This Bill creates uncertainty and is careering at great speed towards the edge of a cliff on 31 December 2023.
If the Government want to ensure that workers’ rights and environmental protections are not lost, they will have no problem in accepting amendments 19 and 21, which would exclude those rights and protections from the 31 December sunset clause and stop them from falling off a cliff edge. The Government have adopted 31 December as the date for the sunset clause, but they have not told us why. If they cannot even provide a definitive list of all the EU retained law that will be revoked in time for that date, surely that suggests we need more time to get the list ready.
Considering the wide range and extent of the rights and protections that we know about, surely having a longer sunset clause will help the Government to give greater certainty, which we were told was one of the reasons for thisthe Bill. The Government should therefore have no problem at all in accepting amendment 18, which extends the sunset clause to 2026. It would also allow the Government greater opportunity to bring Bills for primary legislation, allowing greater scrutiny by thisthe House in replacing the retained law that they propose to delete.
The Minister has continually failed to answer the question of exactly how many retained EU laws will be revoked under the sunset clause, and I do not understand why that is a problem. Surely all the retained EU law is there before us, and we should be able to find out exactly which regulations need to be retained and which will be deleted? There is no excuse. No new EU law has come about since we left the European Union, so that retained law should be easy to find. I cannot understand why we do not know which laws will be revoked under this Bill.
Amendment 36 requires the Government to publish an exhaustive list of every piece of legislation that is to be revoked under the sunset clause. Parliament should not be asked to vote on the revocation of these laws when we are not aware of which laws or how many there are. We need to be told, because that is one of the very points of having this Bill before us.
On the Henry VIII powers that the Bill gives to Ministers, which are designed to avoid parliamentary scrutiny, what are the Government afraid of? We should have parliamentary sovereignty; we should be the ones to decide which laws we want to retain and to revoke. Primary legislation should be brought for the laws that are revoked. There is no excuse for the clause to be there. Do the Government deny that there is a need for primary legislation? There will be laws revoked for which there will need to be legislation. Which ones are they and why can they not be put into a Bill and brought before this House? That would be give the House greater scrutiny and allow us to ensure that we do not accidentally lose certain laws.
Sir John Hayes
The great constitutional theorist A.V. Dicey declared:
“The principle of parliamentary sovereignty means neither more nor less than this...that Parliament has the right to make or unmake any law whatever”.
When we joined the EU, despite the promise at the time of Europhilic politicians like Edward Heath that it was an economic community, what happened in practice was that this place paradoxically used the very sovereignty it had inherited from generations before to give up sovereignty and surrender parliamentary authority. The promise of Brexit was a repudiation of such international law making. I know that it discomforts the globalist liberal elite that that promise will and must be delivered, but that is how it is and how it will be. The people’s will must be seen and must be seen to be done, and that is precisely what this Bill is all about.
The journey since 2016 has not been easy. The doubters and deniers—the schemers and plotters—unable to let go of their Euro-federal fantasies, have conjured every trick imaginable to try to stymie Brexit. However, this Government are clear: we will deliver on the promise made in 2016 and restore parliamentary sovereignty to this country. In doing so, we will re-empower the people to whom we are answerable.
I will pick up a couple of points made by Opposition Members. I enjoyed the rhetoric of the SNP spokesman, the hon. Member for Stirling (Alyn Smith), which was as elegant as ever. I particularly enjoyed his criticism of hyperbole, which was immediately followed by a hyperbolic list of all of the things that are now at risk. Do any Opposition Members really believe that the Government or Government Members want less safety for our workers, dirtier rivers and less protection of the environment? If they do, they cannot have listened to what Members on the Tory Benches have advocated and fought for, in many cases, for years.
It is an absurdity that, six years on from the referendum, we remain shackled to thousands of articles of retained EU law. I accept that whether we keep, amend or discard those articles needs to be a thorough process, but there must be a single means of delivering that process, which is precisely what this Bill is. Some claim that this is a power grab, but this process—this business of secondary legislation; this use of statutory instruments —was how these regulations found form in the first place. It is a well-established practice that Governments through time have used to deal with such matters, and will again.
That detailed practice requires a Bill of the kind that has been drafted. Without such impetus, we risk wallowing in the malaise and self-doubt that can too often infect those tasked with grand undertakings. After six years, the British people deserve a deadline by which they can know for certain that Britons will live exclusively under British law, free from the interference of foreign powers. This Bill delivers the very certainty that those who criticised it have called for today. Such self-confidence is anathema to the hon. Members who still balk at the audacity of the 17 million Britons who believed in Britain enough to vote for Brexit.
To hon. Members who have signed amendment 36, I say that it is, by definition, an attempt to dilute, delay and obfuscate. Such efforts must be resisted. There are those who remain unreconciled to the decision of the British people to leave the EU, but any device to perpetuate our legislative connection to the EU is incompatible with our national interest and the common good. The unamended Bill facilitates the removal of our EU hangover through all the necessary, democratic mechanisms.
The Bill is a decisive and unequivocal declaration of self-confidence in self-governance. At last, we have a Government who display such self-confidence, free of the doubt and guilt that has infected politicians on both sides of the House for far too long. Edmund Burke said that what matters
“is not what a lawyer tells me I may do, but what humanity, reason and justice tell me I ought to do.”
What we ought to do now is deliver what the British people missioned us to do in 2016: to ensure that the laws and regulations that affect their lives are made in this House and that their Government are free to lead that process.
I enjoyed the speech of hon. Member for Ellesmere Port and Neston (Justin Madders), which was rather like a Russian novel—very long but with good bits—but he must know that there are any number of ways in which Ministers are accountable to the House. For example, they can be questioned orally and in writing, and they can be challenged through Opposition day debates, Standing Order No. 24 debates and urgent questions. Ministers should and will be held to account by both sides of the House in all kinds of formal and informal ways, but we could never hold to account those foreign powers that dictated our laws for far too long.
Now, we escape.
Ian Blackford
The right hon. Member for Haltemprice and Howden (Mr Davis) described the Bill as a pig in a poke. I think it is a pig in a poke that the Government have put lipstick on. We have heard about taking back control many times this afternoon, so I am at a loss to understand why Government Members would go through the Lobby in support of this Bill. In effect, a whole range of legislation will be wiped out, but they do not know what it is or what authority they are giving to the UK Government. They do not even know whether it will be 3,000, 4,000 or more pieces of legislation. It is extraordinary that a group of people who want to take back control are giving authority to the UK Government to do what they like without any scrutiny in this House—that is exactly the point of the Bill.
We have heard that we should not worry, because we will have statutory instruments and the ability to hold the Government to account, but the last time that the Government were defeated on a statutory instrument was in 1979—my goodness. Those who want to take back control talk about parliamentary sovereignty and the lack of democracy in the European Union, but all that they are doing is giving untrammelled powers to Ministers to do what they like. There is nothing that the Opposition or Government Back Benchers can do to effectively hold the Government to account. What an extraordinary set of circumstances.
SNP Members have always accepted that it is the right of others in other parts of the United Kingdom to determine their future. They want to leave the European Union, but we reject that—of course, we do not want to leave. As my hon. Friend the Member for Stirling (Alyn Smith) said, according to a recent opinion poll, 72% of the public of Scotland want to stay in the European Union. We have a tale of two different Parliaments moving in different directions. It is clear that Scotland is on a journey to independence and we will rejoin the European Union as a member, hopefully soon. To do that, however, we need to remain aligned with the European Union.
This is about democracy. We have referred to the Scotland Act 1998 on many occasions, as we did yesterday in the debate on section 35, and it is worth reflecting on the difference between what happened there and what is happening today. We have a Parliament in Edinburgh that we are proud of. There was a majority in that Parliament for legislation that was passed before Christmas, yet this Government in London can bring in legislation under the Scotland Act that strikes out an Act of the Scottish Parliament and there is nothing we can do about it. In this particular case, the legislation impinges on domestic legislation and devolved legislation in Scotland. The principle was established in the Scotland Act that in order to do that the principle of consent stood—the so-called Sewel convention. That means the devolved Government in Edinburgh, and in Cardiff and in Belfast, have to give consent for matters that affect domestic legislation. Yet we are told to go and stick it—the view of the Scottish Parliament and the Scottish Government that this is not in our interest and we do not consent to it.
We saw yesterday that a UK Government can strike down a Bill of a Scottish Parliament. Why does not the Scottish Parliament have the right to say to this Government that they are doing that without our consent? That demonstrates to the people of Scotland that devolution as it works at the moment means Westminster continues to call the shots. Westminster determines what happens in devolved legislation. It is a wake-up call to the people of Scotland in the debate we are having on independence that, if we want to secure the right to determine areas such as the economy, the environment and consumer protection, we cannot rely on the Westminster Government to protect our rights and we cannot stop a UK Government interfering in what are devolved matters. If we want to secure that protection, if we want to secure our rights, if we want to celebrate the joys we had of European membership from 1973 until now, we need to take the final steps.
Look at what has happened in this House this week: there has been the threat to the right to strike, the threat to democracy in Scotland yesterday, and the threat to the values and protections we have built over many years in the European Union. All are being swept away. This is a United Kingdom turning the clock back, moving backwards. We want to move forwards as a member of the European Union. That is why today we will push our amendments and reject this Bill.
Mr David Jones (Clwyd West) (Con)
The measures in the Bill are wholly necessary and greatly welcome. The retention of EU law after our departure from the European Union was certainly necessary in order to maintain temporary legal equilibrium and avoid gaps in the UK’s statute book. However, as time has passed, it has become increasingly anomalous for the United Kingdom to have a large body of foreign-derived legislation that is accorded supremacy over our own domestic law.
After almost half a century of EU membership, the United Kingdom has automatically absorbed a vast amount of EU legislation, which was either directly imposed or created by domestic subordinate legislation. Much of that legislation is probably obsolete. It was telling that around 1,400 items of EU law that everyone had apparently forgotten about were recently discovered in the National Archives. It seems self-evident that those pieces of legislation could not possibly have been of much practical utility if everybody had forgotten about them, but despite the fact that those items of law had been forgotten, they continue to have special status in our domestic legal system. Not only do they have supremacy over our domestic legislation, but they are interpreted in accordance with the general principles of EU law, rather than those of our own indigenous systems. They are a kind of EU cuckoo in the nest of the common law and Scots law.
It appears there are in total about 3,800 items of retained EU law, and the Government are entirely right to have decided to review them as quickly as possible and remove or assimilate them as appropriate. Furthermore, the Government are right to set out an ambitious timetable for the completion of that exercise through the sunset provisions of clause 1. Amendment 36 would hamper that process. The sunset provisions of clause 1 are of course intended to encourage and incentivise Government Departments to press on quickly with the exercise of identifying and reviewing individual items of retained EU law that affect them. Those Departments will then make a decision as to whether those items of law should be revoked, pursuant to clause 1, or assimilated into the domestic legal system, pursuant to clause 6. That is an entirely sensible process, which will ensure that those items of retained EU law that are not revoked pursuant to clause 1 become subject to the ordinary processes of the domestic legal system. That will be beneficial to businesses and citizens in that the well-understood principles of common law or Scots law, with their nimbleness and certainty, will apply to assimilated law rather than the unpredictable purposive approach of the EU legal system.
Ruth Cadbury (Brentford and Isleworth) (Lab)
What is it about the Conservative party and its predilection for avoiding scrutiny in the House? It tried that during the withdrawal Act process, and even to some extent during the Australia and New Zealand free trade agreement debate. Now it is at it again. Of all the concerns that I and hundreds of my constituents have about the Bill, I will focus on a single, central topic: democracy and, specifically, how this legislation directly attacks the very system underpinning our democracy in Westminster.
Some might ask, “How could a Bill that repeals laws attack our democracy?” It is simple. The Bill gives huge and sweeping powers to Ministers to wipe out laws that already exist: important laws that govern everything from our rights at work to protections for our planet. This is not a party political issue—I see that many right hon. and hon. Members on the Government Benches have put their names to amendment 36, tabled by my hon. Friend the Member for Walthamstow (Stella Creasy), which I will support along with those tabled by my Opposition Front-Bench colleagues.
As I stand here, I think back 250 years to a predecessor of mine, the hon. Member for Middlesex, John Wilkes, who is famous in Brentford for being the cause of the riot at the 1769 election hustings in the Butts in the centre of Brentford. It is a tree-lined square filled with elegant houses, many of which were probably standing then. John Wilkes was at first a radical journalist with a flair for words and a sharp tongue, but more importantly he fought for both the rights of parliamentarians and the rights of his electors. He stood up repeatedly for the rights of the majority of the electors in Middlesex, who sent him to Parliament as their representative. Despite Parliament repeatedly trying to exclude him, because of his locally popular but nationally unfashionable views, he was re-elected again and again, and Parliament kept trying to exclude him. Parliament won the battle to exclude him but not the war, and six years later he was again elected. In 1782, Parliament finally expunged the orders and resolutions it had passed to try to get rid of him.
Why do I speak about an election held 250 years ago, apart from grabbing for a constituency link in this debate? It relates to a simple and historical right—the right of our voters to elect Members to represent them in this House of Commons, where we vote on and scrutinise legislation. We have seen a remarkable number of changes since Wilkes’s time, and probably one of the most important is that the franchise eventually spread to all women and men. However, a constant is the right of Members of this House, not Government Ministers and their civil servants, to amend and change the law.
The laws that this Bill covers impact on our constituents every single day. We sit in this House not only to try to stop bad laws being passed, but to ensure that much-needed laws remain, such as laws that protect pregnant women from being sacked; laws that protect our planet from toxic chemicals; laws that protect vehicle occupants and other road users, and airline passengers; laws that provide regulatory certainty for business; and much more. Then there are all the laws that the Government are not currently aware of because they do not have a complete list. Yet this Bill removes this power from elected Members and passes powers directly to Ministers, and those powers turn Government Ministers into monarchs—monarchs of old—who are able to remove our laws at the stroke of a pen.
With this legislation we see a bonfire being stoked, on to which we know the Government wish to throw our hard-won rights in order to watch them burn. Tonight this House has a chance to reject this bonfire. I will be supporting amendments that protect these hard-won rights and these good laws, and will ensure that this House has the final say on those that need repealing, amending or keeping, not the petty monarchs on the Treasury Bench.
Lia Nici (Great Grimsby) (Con)
There has been a lot of discussion about democracy this afternoon. I would just point out that 70% of my constituents voted to leave the EU, and they did not realise then that six and a half years later we would still be having to have these conversations; that we would still be subject to EU law imposed on them with no democratic right to have any discussion in place; and—horror of horrors—that people in this place would be saying it may be at least 10 years until we can revoke or assimilate these laws. We need to make sure we are delivering for our constituents.
The discussions about this are just absolutely sad and appalling, because I have to say that the only argument the Opposition seem to be making is that there is a lot to do. Well, there really is a lot to do, and we need to get on with it. That should not be a reason for us not actually doing our jobs.
We do not want to be subject to EU laws for longer than we have to be. Our systems work differently, and we want to be a sovereign UK in which we know we are moving back to our own way of working in UK law and our court system.
I have to say, very sadly, that this seems to be “Project Fear 2”. Talking about bonfires and going to the edge of a cliff is a really irresponsible way of dealing with the issue. Our electorate want us to make sure we are getting on with the job. Opposition Members talk about Ministers acting as petty kings. Ministers are elected Members of Parliament who are subject to their own electorate and to us in this place. It is very regrettable that the Opposition talk in that way. The reality is that, when I am knocking on doors, people know that if the Labour party got into government, it would want to take us back into the EU in a heartbeat. Labour Members want this process to take as long as possible because they want to rescind the work that is being done. That is the reason why the Conservatives are in Government and why we have a very strong majority.
The Ministers have worked incredibly hard and have been incredibly clear, despite the tsunami of nonsense from the Opposition, and I will be supporting the Bill wholeheartedly.
Hywel Williams
Alas, I am going to add to the tsunami of nonsense, as it was termed a moment ago.
I rise to speak to amendments 38 and 39, tabled in my name and those of my right hon. and hon. Friends. I see the Minister is back in her place. I welcome her undertaking to me earlier that the dashboard of retained EU law will be updated to identify which legislation is reserved, which is devolved and how Welsh legislation might be affected. I look forward to seeing that in short order.
It is no wonder that we are debating amendments tabled by the SNP, the Alliance party and Plaid Cymru aimed at preventing the UK Government legislating in areas of devolved competencies. The UK Government have cut the Welsh Government out of post-EU funding schemes, rendered the Sewel convention almost valueless, and yesterday made it clear beyond any doubt that the Union is not a partnership of equals, when they vetoed legislation passed with overwhelming cross-party support in the Scottish Parliament.
The protections offered by amendments 28 to 30 and 37 to 39 are vital as it becomes clearer still that our rights are not safe under Westminster. The Government seek to undermine the democratic right to strike, the democratic right to peaceful protest, and the media’s ability to report matters of public interest and importance. And now before us we have this dangerous Bill threatening the rights and protections we gained as an EU member as fuel for their Brexit bonfire.
I add Plaid Cymru’s support for amendments 19 and 20, tabled by the Opposition, which would prevent the UK Government revoking vital protections for workers. In my view, the way to protect Welsh workers’ rights for good is to devolve employment law to enable the Welsh Government to legislate on a wide range of matters, but that is not quite in scope for this debate. It is important, however, given that the UK Government seem to have given up any pretence of doing so themselves. Instead, the Welsh Government are lumbered with the consequences of this impractical, dangerous, costly and wholly ideological legislation. The Counsel General for Wales, Mick Antoniw, has warned that the Bill could lead to the Welsh Government’s own legislative programme being almost completely overwhelmed, with significant financial and resource implications. And this at a time when our focus should be on supporting households and businesses struggling with cost of living pressures.
The Bill is an unwelcome, unnecessary and politically driven distraction. It risks reducing standards by allowing key pieces of legislation simply to lapse, placing even greater pressure on businesses who trade with the EU, while eventually and inevitably giving rise to a whole new batch of red tape. But we should worry not, of course, as that red tape will be true blue British red tape and beyond criticism!
I am happy to support amendment 36, which would require the Government to publish a list of the legislation being revoked by the sunset clause. That, at least, would simplify comprehensive scrutiny of the legislation affected and any further consequences. Unsurprisingly, the Government are baulking at it, either as a deliberate blocking tactic or—perhaps more likely—because of that special blend of arrogance and exceptionalism that got us into this position in the first place.
On Second Reading, I asked a question of the then Minister, the hon. Member for Watford (Dean Russell), but unsurprisingly I got no answer. The Welsh Government say that they cannot advise the Senedd to grant legislative consent to the Bill at the moment. Can the present Minister tell us whether her colleagues in the other place will now address the Welsh Government’s request for “concurrent-plus” powers?
Peter Aldous (Waveney) (Con)
I have concerns about the Bill in its current form. Those concerns are informed partly by the National Farmers Union, of which I am a member through the family farm of which I am a partner, but they also apply to all other sectors of the economy and to all means of protection and regulation, whether they relate to the environment, to consumers or to workers. They are concerns of practicality, not of principle, and are driven by a desire to improve the UK’s regulatory and legal framework after our departure from the EU.
My principal worry is that the requirement to revoke all EU legislation by the end of this year is unrealistic. Such a sudden sunset clause sets a framework for bad and hasty lawmaking, although I acknowledge that the Bill makes provision for the deadline to be extended in certain circumstances.
Let me make some brief observations. Nearly seven years after the referendum, it is right that this process is finally being legislated for. There are many aspects of the law that require improvement and reform, but that needs to be carried out in a considered, not rushed, manner, with a proper review process set out and with full consultation.
The scale of the task, given the timescale proposed, is enormous. There is real worry about whether Departments such as DEFRA have the capacity to carry out the work, or whether other important work, of which there is much in these challenging times, will be given a lower priority as an unintended consequence. DEFRA alone has approximately 600 pieces of legislation to go through, and there may well be regulations of which it is unaware. A rash striking out of all laws by a set date could leave gaps in the law and the regulatory framework.
We should keep in mind the implications for the Government Legal Profession, in which morale is already low. A recent survey found that a third of its staff want to leave within a year. As well as the possible environmental and consumer protection risks that might inadvertently be created, there is also a worry that there will be a negative impact from a business perspective, with attention being diverted, uncertainty created and investment decisions delayed or cancelled.
In conclusion, I am worried that the Bill appears to be a continuation of the approach that has been adopted since Brexit: a rush, with no considered long-term plan in place, to carry out work such as agreeing trade deals that justify Brexit. We seem to be striving for quantity rather than quality. We are in danger of losing sight of what should be our ultimate objective: to put better arrangements in place than we had when we were in the EU. I fear that in its present form the Bill puts that aim at risk. I hope that in the Minister’s winding-up speech and in the other place, the Government will allay my concerns. They would do well to adopt the four-point improvement plan that my right hon. Friend the Member for Chelmsford (Vicky Ford), who is not in her place, set out earlier in the debate.
Mick Whitley (Birkenhead) (Lab)
Less than 48 hours after we stood in this House to defend the right to strike, my hon. Friends and I find ourselves once more having to stand up to protect our constituents’ most basic rights. The right to holiday pay, working time regulations, data protection rights, and countless vital environmental and consumer protections have all been carried over from European law. These were not given to us as an act of benevolence by Brussels; they were hard fought for by trade unionists and activists working across Europe, and now they are all at risk as a result of the proposals that the Government have put to the House today.
In 2016, my constituents voted narrowly to leave the EU. They had many reasons for voting as they did, and I have always argued that their will should be respected, but not a single one of them voted for the kind of chaos that Ministers are preparing to let loose today. This is a colossal undertaking, far larger than the Minister seems to realise. The Government have failed to provide an exhaustive list of all the retained law that they are preparing to sweep from the statute books, but experts are warning that nearly 4,000 pieces of legislation could be affected. In order to make this act of legislative vandalism possible, the Secretary of State is proposing to give himself unprecedented powers to repeal and rewrite laws and regulations governing almost every aspect of our lives, with almost no scrutiny and with no guarantees as to what will replace them.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Industry bodies are currently concerned about the divergence of regulation, which is a divergence over time, because the UK is not keeping up. Will the Bill not make the exporting situation and the economic situation in the UK a lot worse?
Mick Whitley
The hon. Member has made a good point. There is no doubt that this will cause an absolute divergence.
It is ironic that a party that has so often argued that power should reside in this House and not in Brussels, or even in the democratically elected Parliament of Scotland and the Welsh Senedd, is now attempting to cut MPs out of the legislative process entirely. The Bill represents a power grab on the part of the Executive of a kind almost unheard of in a parliamentary democracy. That is why I am so grateful to my hon. Friend the Member for Walthamstow (Stella Creasy) for tabling amendment 36. It guarantees Members of this House their right to oversee what will undoubtedly be an extraordinarily complex and lengthy process, and it reaffirms a principle that is so fundamental to this country’s constitution: that laws should be made in this House in the full view of the public, and not cooked up by Ministers using obscure parliamentary procedure.
I have listened closely to the arguments advanced by Conservative Members, and I have yet to hear a single convincing case for why the Government should proceed with this Bill. For many of my constituents, every day is a struggle. They desperately need to see action to boost wages, tackle the scourge of fuel poverty, and support the NHS through the worst crisis in its long history. Instead, the Government are deciding to waste precious time and resources on this needless, reckless, and utterly ill-considered shake-up of the law. On this, as on so much else, this Government have their priorities all wrong.
Patrick Grady (Glasgow North) (SNP)
It is interesting to hear some Members go on about how retained EU law has a special status in UK law. It is only special because the UK says it is; for everyone else, it is just “the law”. Yes, it has been inherited from our time in the EU, but that was the point of incorporating it in the first place, and now it governs and regulates thousands of aspects of our daily lives, and, as we have heard from a number of Members, protects a great many of our hard-won rights and freedoms.
It is a contradiction to say that this Bill, particularly or uniquely, somehow asserts or reasserts parliamentary sovereignty. Every Bill passed in this House asserts parliamentary sovereignty, even for those of us who believe in popular sovereignty. That is the point. As my hon. Friend the Member for Stirling (Alyn Smith) said at the start of the debate a long time ago, there is not a single law, regulation or rule in the corpus of retained EU law that the Government, through this House, could not repeal, replace or reform at any time of their choosing through primary legislation.
In her opening speech, the Minister herself reeled off all the great Brexit Bills and Acts that Parliament has already passed. That proves the point that we do not need the powers in this Bill, and we certainly do not need the sunset clauses and cliff edges that it establishes. The Bill reveals contempt for parliamentary sovereignty—a massive power grab from this House and the devolved institutions, and unprecedented power placed in the hands of Ministers and the Whitehall mandarins who have simply stepped in to replace the Brussels bureaucrats so hated by the ERG and their Brexiteer friends.
If the Government genuinely believed in parliamentary sovereignty and the devolution settlement, they would accept the amendments tabled. They would pay particular attention to amendment 36, as everyone has remarked and several of their Back Benchers have signed. Many constituents in Glasgow North—in which, incidentally, 78% voted to remain in the European Union; I make no apology for standing up for their views—have told me that they believe the amendment will offer at least some degree of protection from the bonfire of rights and freedoms that this Bill represents.
The Government could admit that the game is up and that there is no prospect of seriously reviewing the thousands of regulations that make up EU retained law by the end of this year. They could accept SNP amendment 33 to drop the sunset clause altogether. At the very least, they could accept amendments 28 to 31, which would protect the powers of Scotland’s Parliament and Government to legislate in areas that were already supposed to be devolved under the terms of the Scotland Act. They say there is no power grab, but they have grabbed powers that should have come from Brussels directly to the Scottish Parliament.
But the Government will do none of those things. They will press ahead with the fantasy that this Bill is necessary in the first place, and that its aims are achievable within the timescale set out. It is perhaps ironic that in “Star Trek” there was an evil race called the Borg who would come to assimilate entire planets and civilisations into their collective consciousness. That is how the Brexiteers viewed the European Union. Now, it is the Government who want EU retained law to be renamed “assimilated law” on the statute book. Nothing else will change and the effect of the laws will be the same, but references to the hated European Union will have been purged. What a huge achievement.
Unlike the Borg or the UK Government, it is the EU laws that have protected and enhanced our liberties, freedoms and basic health and safety in these islands over the past 40 years. This Bill, and the Government’s refusal to accept any amendments this evening, expose the Government’s true agenda. By scrapping retained EU law, they want to create a race to the bottom, a buyer-beware, survival-of-the-fittest economy that pays minimal regard to democratic oversight and even less to the welfare of the poorest and most vulnerable. That was the Brexiteers’ agenda all along: stuff the consequences playing out in society and the economy all around us.
Once again, with a rather heavy dose of irony, it will fall to the unelected House of Lords to stand up for democracy and against the worst excesses of this Tory Government. The Government will come back after the Lords have dealt with this Bill with their tail between their legs, admitting that what they proposed was never viable in the first place. For people in Scotland, there is another option—a route out of this Tory madness and back into the partnership, community and mutual respect of the European Union. That is the popular sovereignty that comes with independence.
Mr Deputy Speaker (Mr Nigel Evans)
I congratulate the hon. Member on his reference to “Star Trek” on Report. At least he referred to the amendments as well.
Margaret Greenwood (Wirral West) (Lab)
Through this pernicious piece of legislation the Government seek to give themselves the power to scrap a whole host of legal protections that we currently enjoy, including hard-won employment rights and environmental protections. Through the Bill, a sunset provision will be placed on retained EU law, causing the vast majority of it to expire at the end of 2023. It could apply to more than 2,400 pieces of legislation. Indeed, reports suggest that the figure could be as high as 4,000.
The laws in question cover areas including environmental protection, food safety, civil aviation codes, health and safety in the workplace, employment law, parental leave, intellectual property, product safety, biosecurity, private pension protections, vehicle standards and noise pollution. The very idea that the Government should give themselves the power to discard such a large amount of legislation is shocking indeed. Decisions about UK law should be made in Parliament, not by Ministers. I therefore support amendment 36, which would require the Government to publish an exhaustive list of every piece of legislation being revoked under the sunset clause in the Bill and which would give the House of Commons the ultimate say on which legislation is affected. This would take power out of the hands of Ministers and provide transparency.
Wera Hobhouse (Bath) (LD)
I rise to speak in support of amendments 21 and 36. Losing environmental protections was a major concern for all of us who opposed Brexit. The majority of my Bath constituents and I feared that Brexit would prove a colossal mistake. At the time, our fears were branded as scaremongering, yet this Conservative Government are clearly prepared to let environmental protections fall on the bonfire of regulations. The sheer volume of retained EU law instruments means that there is now a huge danger that many will fall automatically if they are not amended or identified in time.
This is reckless lawmaking, legislating with hammer blows instead of following the evidence. The December deadline is totally unnecessary. It is clearly unrealistic to replace all this legislation by the end of the year. There are currently only three full-time equivalent staff working on retained EU law in DEFRA. How can the Government expect them to cope with this enormous workload, and what is the rush? I have heard many Conservative Members today saying, “We don’t want to be subjected to laws made in the EU.” May I gently remind them that these laws were our laws? They became our laws by which we lived our lives for decades. Pulling them from under our feet without a transparent process to replace them is the most undemocratic proposal I can think of.
Amendment 21 would exempt certain environmental protections from the sunset clause. Nature provides a better chance of mitigating the worst impacts of climate change. Protecting ecosystems that regulate the climate or contain critical carbon stores must be prioritised alongside cutting emissions. This is not just about the EU; it is about a Government not caring about net zero. It is crucial that these protections are not allowed to fall needlessly to prove an ideological point. Amendment 21 would at least protect legislation such as the National Emission Ceilings Regulations 2018. These regulations require the Secretary of State to prepare an annual inventory of emissions and air pollutants, which are killers. It is about our health. The Government are frustrating every step towards a healthier planet and healthier people.
Amendment 36 would require the Government to publish a list of every piece of legislation that is being revoked under the sunset clause and to allow parliamentary oversight of that process. If the Conservatives believe in parliamentary democracy, what could possibly be preventing them from supporting this amendment?
There is huge public interest in our environmental laws. I have received hundreds of emails about this Bill from my Bath constituents, but I feel my constituents are being ignored. Amendment 36 would also provide much-needed clarity on the legislation that will be affected. Many clauses in this Bill will make settled areas of law uncertain and contested. How can we meet our net zero targets if we do not even know what environmental legislation will be standing this time next year?
There will be no coming back and no next time if we miss our net zero targets. For that reason alone, it is important to support amendment 36. Shamefully, our Government are satisfied to leave environmental protections to chance. They are intent on getting Brexit done without any idea of the cost to current and future generations.
Mr Deputy Speaker (Mr Nigel Evans)
We have two more Back-Bench contributions, and then we will move on to the wind-ups. I advise Members who have taken part in the debate to make their way to the Chamber.
Geraint Davies
This is the second shameful bit of legislation the House has seen this week, the first being the Bill that will sack nurses for striking to feed their family.
The Retained EU Law (Revocation and Reform) Bill risks a bonfire of fundamental rights and protections, both at work and for the environment, that have evolved over our 47 years in the EU. I say that because the Bill will get civil servants to look at all the thousands of laws, rules, rights and protections by the end of the year and to decide either to abolish them, to change them—not specifically to improve them, because this Bill is deregulatory —or to continue them. If the civil servants do not have time, the laws, rules, rights and protections will end by default.
Various protections and rights are likely to fall out of bed because civil servants do not have enough time to look at them. Of course, 100,000 civil servants are now going on strike, and 80% of these laws are in DEFRA, which has only three people looking at retained EU law. There are currently enough problems in DEFRA, including the sewage being pumped out along our coasts and rivers where we used to have so-called EU blue beaches. There are air quality problems, with 63,000 people dying prematurely each year at a cost of £20 billion. Of course, the EU wants to get to the World Health Organisation target of 10 micrograms per cubic metre by 2030, but we will leave it until 2040. The Minister’s assurance that we will do as well or better than the EU is farcical.
One in four people in Britain is in food poverty, and we do not have enough people to pick the fruit or butcher the meat. We cannot export to the EU, and half of businesses are now no longer exporting to the EU. Millions of crabs, lobsters and prawns are dying from pollution off the north-east coast. People in DEFRA have enough to do without being distracted by looking through every bit of legislation and deciding whether to change, continue or abolish it, which is frankly ridiculous. They have enough on their plate—sadly not north-east crab.
The abolition of rights by default is a major risk that will come back to haunt us all, whether on rights at work, environmental rights or other rights. The other key issue, obviously, is the loss of democratic control. We were told that we would take back control, but this Bill gives all the power to Ministers and civil servants. They will look at 47 years of legislation and decide which bits to cherry-pick, which bits to forget and which bits to inadvertently drop. That is not democratic. This is not democratic and it is not what people voted for. Furthermore, it is going to be snatching from the devolutionary settlements in Scotland, Wales and Northern Ireland. We saw the instincts of the Government only yesterday, as we did on the sacking of strikers, the stopping of protests and the introduction of photo ID. Those things all show the sort of Government we have and whether we can trust them with this issue—obviously, we cannot.
Finally, this Bill is an attempt to have divergence for the sake of it. I am proud to be the trade rapporteur for the Council of Europe, charged with embedding democracy, human rights, the rule of law and sustainable development into international trade agreements. That requires our coming together over a set of rules to protect our fundamental values and our environmental future, but this Bill does the opposite. As has been pointed out, it will have the impact of reducing the amount of trade that stimulates our economy. Altogether, this is a farcical rush to wave a banner of “Taking back control”, but underneath is the pirate ship with a flag of, “Let’s take control from you, do what we want and destroy your rights and protections.” Therefore, this will make the economic crisis even worse than it is already. What we want is not a weaker, poorer, dirtier Britain, which is what this Bill and others will bring about. We want a stronger, fairer, greener future, which will happen only with a Labour Government.
Mr Deputy Speaker (Mr Nigel Evans)
I know that Christmas was a few weeks ago, but here is a late present: I am not putting the clock on you, Mr Rodda, so if your speech is over six minutes, so be it.
Matt Rodda (Reading East) (Lab)
Thank you very much, Mr Deputy Speaker. I am a lucky man.
I wish to speak about a number of amendments. First, I strongly support amendment 36, which calls on the Government to publish a list of the laws affected by the Bill. I also offer my support to amendments 18 and 19, which give more time for proper debate and protect workers’ rights; amendments 21 and 22, on the environment; and a number of others mentioned by the Opposition Front-Bench team.
This is clearly an important Bill. It covers a large number of laws across a wide range of policy areas, including protections for workers’ rights, the environment and the consumer. As the Minister said, the Bill deals with laws covering some 300 different policy areas across government. I followed her speech carefully and with great interest, and noted that she was not able to say how many pieces of law the Bill affects. That is highly important for the debate today; the Government plan to remove all this EU law, even though they do not fully understand the full list of laws, by the end of this year. They are proposing enormous changes, yet they do not even know the full scale of the change involved. As we have heard, the Law Society describe the Government’s approach as having a
“devastating impact on legal certainty”.
To make matters worse, the Government plan to give themselves sweeping powers to push through these changes. Ministers will be given the power to use the negative statutory instrument procedure to address such important and controversial issues, with the result that workers’ rights, environmental protections and consumer rights could all be changed with barely any scrutiny. Even at this late stage, I ask the Government to reconsider that reckless approach. I hope the Minister will have time to respond to the concerns raised. I hope she will listen and take the views from across the House back to her ministerial colleagues.
I also hope the Minister will take on board the deep concerns felt by people across the country. Like other Members, I have received a large number of emails on this important issue. I have been contacted by a range of organisations as diverse as the TUC, the National Trust, the Royal Society for the Prevention of Cruelty to Animals, The Rivers Trust, the British Safety Council, the Angling Trust, Unison and the Institute of Directors. That is a formidable list of civil society organisations, so I hope that she will consider the interesting points they make about this Bill.
Mr Deputy Speaker, I very much appreciate my belated Christmas present, but I realise that time is pressing on. To conclude, the Bill is clearly deeply flawed, and I ask the Minister again to listen to the points made by Members from across the House and take them back to her colleagues.
Margaret Greenwood
I am just trying to squeeze a bit more out of Mr Deputy Speaker’s kind gift. Does my hon. Friend agree that we need a guarantee from the Minister today that there will be no watering down of asbestos controls?
Matt Rodda
My hon. Friend makes an excellent point. I have worked with asbestos campaigners in my own area in Berkshire. I have met them and listened to some of the stories about asbestos pollution and the effects on workers, families and other individuals who, sadly, came into contact with asbestos. She has made an excellent point, so I hope that the Minister will take that on board and take it back to her colleagues. That is one powerful example of the wide range of difficult issues addressed by the Bill and the practical problems in trying to cover such a broad range of policy areas in this way. I hope that the Minister will take that back and ask the Government as a whole to reconsider—
Matt Rodda
I am conscious of time and, given that I have allowed one intervention, I should now conclude.
Again, I thank you, Mr Deputy Speaker, for allowing me some extra time and my hon. Friend the Member for Wirral West (Margaret Greenwood) for making the worthy point about asbestos. I hope that the Minister will take that point back, and, indeed, the wide range of other points made today by Members from across the House.
Mr Deputy Speaker (Mr Nigel Evans)
Thank you. I call the Minister to wind up.
Ms Ghani
I thank everybody for their contributions, which have been measured and passionate. Many important points have been raised and I shall do my best to respond to as many as I can.
We have had quite a long list of speakers: the hon. Members for Ellesmere Port and Neston (Justin Madders) and for Stirling (Alyn Smith); the right hon. Member for Leeds Central (Hilary Benn); the hon. Members for Walthamstow (Stella Creasy), for Leeds North West (Alex Sobel), for Kingston upon Hull West and Hessle (Emma Hardy), for Richmond Park (Sarah Olney), and for Enfield, Southgate (Bambos Charalambous); the right hon. Member for Ross, Skye and Lochaber (Ian Blackford); the hon. Members for Brentford and Isleworth (Ruth Cadbury), for Arfon (Hywel Williams), for Birkenhead (Mick Whitley), for Glasgow North (Patrick Grady), for Wirral West (Margaret Greenwood), for Reading East (Matt Rodda), for Swansea West (Geraint Davies), and for Bath (Wera Hobhouse).
We also heard from my hon. Friends the Members for Stone (Sir William Cash), for Watford (Dean Russell), and for Calder Valley (Craig Whittaker); my right hon. Friends the Members for North East Somerset (Mr Rees-Mogg), for Chelmsford (Vicky Ford), for South Holland and The Deepings (Sir John Hayes), and for Clwyd West (Mr Jones); my hon. Friends the Members for Yeovil (Mr Fysh), for Great Grimsby (Lia Nici), and for Waveney (Peter Aldous). I will try my best to respond to as many issues raised as I can.
Obviously, I am here to support the Government’s amendments, and I will go through in detail the amendments tabled by the Opposition. They fundamentally misunderstand that this is an enabling Bill, or they are deliberately trying to delay, deny or dilute what we are trying to achieve, which is, basically, delivering the Brexit that we promised the public: the promise that we would free ourselves from EU law and make UK law sovereign. Laws and regulations that manage our lives should be rooted here in this country and that is a law that should be supreme. Fundamentally, that is what we are trying to achieve.
Much has been said about the dashboard. I should be clear: at the moment, the figure we have identified and verified for EU law is 3,200 and we expect it to be 4,000. So it is what we were expecting and the dashboard will be updated. As I said earlier, officials have been working for more than 18 months and they will continue to work with officials across all Departments and with officials in devolved authorities.
Angus Brendan MacNeil
We know that Brexit has damaged the UK’s GDP, but has any assessment been made—I have spoken to industry bodies, particularly those involved in exporting—of potential damage from the divergence of regulations? Have industry bodies been consulted, or has an assessment been made of the damage to the UK’s GDP from this Bill? I imagine that it is going to be considerable.
Ms Ghani
The report today said, in contrast to the hon. Member’s comment, that we are one of the top countries to invest in globally. I am anxious to hear where he thinks the damage is being done.
I wish to address some of the amendments that misinterpret what the Bill does when it comes to workers’ rights. Workers’ rights are often rooted in UK law—they often started here, not in the EU—and the UK Government will not abandon our strong record on workers’ rights. We have some of the highest standards in the world. Why would we change that, if we started it and campaigned for it? In many areas, our workers’ rights are much stronger than those in the EU.
We have talked about maternity leave, maternity rights, flexible working, annual leave and the national living wage: all those things started here. Amendments that propose a carve-out for workers’ rights, which are not under threat because they started here, are a bit absurd.
Comments were made about product safety. The Government are committed to protecting consumers from unsafe products being placed on the market now and in the future. Of course that would be the way we do business. We are finalising a consultation setting out the next steps in delivering the Government’s ambitions for a new product safety framework. Our proposals include changes to save time and money for business.
Geraint Davies
On product safety, and specifically on asbestos, since it has been raised, the Minister will know that the precautionary principle means that chemicals that may be hazardous must be proven by the manufacturer to be safe. In the United States, the Environmental Protection Agency must prove they are hazardous, otherwise they can be sold—hence asbestos is sold in bricks in America. Can the Minister guarantee that there will be no shift to the American regime, which puts the onus on the Environmental Protection Agency and not the manufacturer? If there is, we will all be at risk of asbestos.
Ms Ghani
That is why we are going through EU legislation—to identify that and to make those decisions. I will respond to the hon. Gentleman’s point directly, but in his speech he mentioned his time at the European Council, and I believe that when he was there—
Ms Ghani
The Council of Europe, forgive me. When he was there recently, the hon. Gentleman was open in saying that, when a Labour Government are in power, they will return us to the EU. If that is his motivation, I understand why he makes these points—
Madam Deputy Speaker
Does the Minister wish to take an intervention? No. Okay. The hon. Gentleman has withdrawn what he said. Thank you.
Ms Ghani
If his remark had not been withdrawn, I would have read out the quotation.
To return to hazardous substances, the UK Government and the devolved Administrations, within their respective territories, will follow the usual procedures but take into account the principles set out in the hazardous substances common framework. Part of the process we are going through is identifying what the laws are so that we can take a decision.
On animal welfare, there has been a lot of mis-information. Especially since 2010, we have regulated for chickens, battery cages, mandatory CCTV in slaughter-houses, mandatory microchipping in dogs—a huge amount of work has been done.
When it comes to the environment, many of our standards started here, and we should be proud of them. We have the world-leading Environment Act, which has dramatically strengthened environmental regulations. Moreover, the EU model has not stopped the decline in our natural world. Of course there is much more that we need to do, and we will: we have our own legally binding targets, we are committed to halting the decline in nature by 2030 and we are among the first countries in the world to commit to net zero by 2050.
A point was raised about flight compensation. The Department for Transport published the aviation consumer policy reform consultation back in 2022, and the proposals will look into aviation consumer protection, redress for breaches of consumer rights and reform to compensation for delays or for damaged wheelchairs and other mobility equipment. When I was a Minister at the Department for Transport, we went much further than our European counterparts in ensuring protection for the most vulnerable people.
Stella Creasy
The Minister is setting out a number of laws, and she has just said on the record that she has verified 3,200 pieces of legislation. The dashboard still says 2,400, and she says the ultimate number will be 4,000. Can she just clarify that she is asking us today to vote for her Ministers to have power over 1,600 undefined, un-public pieces of regulation? She is shaking her head, but that is the maths, and she has to be open with people about what is at stake with this legislation. Is it 1,600 pieces that are missing, or is the number higher or lower?
Ms Ghani
The dashboard will always be updated as new EU law is being discovered. The fact that it has to be discovered and that we need to go and identify it tells us that there is a problem. We have verified a substantial amount. It could be up to 4,000 laws, but this gives each Department time to assess, amend, assimilate or revoke.
On new clause 1, the sunset is a fundamental aspect of the Bill. The sunset date of 31 December 2023 was chosen to incentivise and accelerate a programme of reform that is well under way. Although 2023 may be an ambitious deadline, it has been years since we voted in favour of leaving the EU, as colleagues across the House have noted, so it is absolutely right for our constituents to expect us to be able to remove outdated laws in that time. There is also an extension, up to 2026, if Departments need more time to consult and take decisions on the EU laws that they wish to amend or repeal. That has always been in the Bill. To deliver those reforms, each Department will take its own view on how to prioritise and timetable pieces of REUL to ensure delivery before the sunset date. The Government will ensure that that work is appropriately resourced.
The criticism about the Bill enshrining a race to the bottom is just incorrect. We have sought to ensure that the powers to revoke or replace cannot be used to add to the overall regulatory burden for any particular subject area, but they do not preclude the introduction of higher standards. That will help to ensure that the UK takes a more modern, agile and proportionate approach to making regulations, and establishes a more nimble, innovative and UK-specific regulatory approach to go further and faster and in seizing the opportunities of Brexit.
On the concerns raised by my hon. Friend the Member for Calder Valley, the Government will ensure the continued functioning of the intellectual property framework, given its importance both in underpinning investment and in supporting international trade. We recognise the importance attached to stability and certainty in the area of intellectual property. Those will be prominent considerations for the Government when making decisions on REUL in this area.
Suggestions that we have delivered, or will deliver, a bonfire of workers’ rights are absolutely inaccurate. As I mentioned earlier, we are proud of the UK’s excellent record on labour standards. We have the best workers’ rights record in the world, and our high standards were never dependent on our membership of the EU. Indeed, the UK provides stronger protections for workers than those required by EU law. I thank my right hon. Friend the Member for North East Somerset for setting out that Parliament has been legislating to protect workers’ rights for hundreds of years.
Sir John Hayes
The truth is that we would have the power to do exactly as the Minister said and to introduce improved regulation where necessary and in our national interest, but that power would rest here in this House and with our Government, who are accountable to this Parliament. That is the difference; it is as simple as that. To claim anything else is a thinly veiled deception.
Ms Ghani
My right hon. Friend hits the nail on the head. We are elected to govern. Of course, it will take some work, but the outcome is that we can take the decisions here. Whether we choose to take those decisions, are anxious about taking decisions, or do not even want to know what these EU laws are—that is just a very ignorant way to be—we need to be aware so that we can take those decisions.
My hon. Friend the Member for Waveney talked about 2023 being a cliff edge. That is the time by which we wish to sunset, but there is an extension to 2026 for the bits of EU law for which Departments need more time to consult. The process has already been around for 18 months, and it has been and will continue to be considered. Department officials will continue to work together on that.
My hon. Friend the Member for Great Grimsby spoke about her constituents’ concerns and anxieties about the Labour party doing everything it can to take us back into the EU. There has been a lot of fearmongering from the Labour party in the amendments that it has tabled, but in this instance, I would argue that maybe her constituents should be afraid, as I am told that the Labour leader has attempted to block Brexit at least 48 times.
Sir William Cash
Does my hon. Friend, in the light of what she has just said, recall “Project Fear”, with George Osborne and others saying, for example, how many hundreds of thousands of unemployed we would have, how the financial markets would dissolve, how the City of London would become a ghost town, and all that sort of nonsense? Does she remember all that, and where are we now?
Ms Ghani
I would be giving away my age if I said I do remember it well. Fortunately, not all of that has come to pass, but I worry that my age is out there. I must thank my right hon. Friend the Member for Clwyd West for his fantastic work in Committee. He very sensibly talked about how we have absorbed EU legislation. Some of it is obsolete, and some being discovered by the National Archives is also obsolete. It is absolutely right that we have an exercise to identify and assess what is fit for our country.
Dean Russell
One of the key things here is looking at red tape that is unnecessary for small businesses. I am a great believer that businesses should focus on transforming their business and not just filling out forms. Does the Minister agree?
Ms Ghani
My hon. Friend, who was a fantastic Minister in the Department and led earlier consideration of the Bill, hits the nail on the head once again. We have an opportunity to look at regulation to see whether there is a way we can streamline it to make it even more easy for business to do business—it is as simple as that.
My right hon. Friend the Member for South Holland and The Deepings gave a fantastic speech, in which he talked about how we have surrendered our parliamentary authority and lawmaking to Brussels, but the people’s will means that we need to ensure that we are delivering laws and regulations here in the UK Parliament. That is what our constituents have empowered us to do. They want to be living under British law, and that is what the Bill delivers.
My hon. Friend the Member for Yeovil talked about this Bill being overdue and, boy, how many years will we spend discussing Brexit? I agree that the Bill is overdue. It is absolutely right that we have precision and certainty and that responsibility is best placed here in UK law, not in European law with European judges.
My hon. Friend the Member for Watford made a splendid speech—he was also splendid at the Dispatch Box when he was leading the Bill—once again standing up for small business, and his assessment is absolutely right: there are many opportunities if we are able to deregulate.
My right hon. Friend the Member for North East Somerset once again thanked all the civil servants working on the programme, and I must thank him for all the tremendous work he has done on the Bill. He spoke about having a base and principles within UK law, and how we should not be relying on EU law and how EU law should not be supreme over UK law. There is nothing to fear in having UK law sovereign. We are somehow going to have to pull this plaster off, and this is obviously the time to do it. My right hon. Friend the Member for Chelmsford talked about her experience of consumer legislation, which I mentioned earlier, and I am more than happy to discuss that with her when the time allows.
Vicky Ford
Can my hon. Friend confirm that businesses will get notice of which laws will drop away at the end of this year and that Ministers will not be fearful of using the extension if necessary? Can she confirm that Ministers will look at all consumer legislation to make sure that none of it is inadvertently dropped?
Ms Ghani
Most consumer legislation is based in UK law, but officials are working with Departments, and they will be taking decisions about what they will assimilate, amend and revoke.
Several hon. Members rose—
Ms Ghani
I must make some progress; I am worried about time running out. I must also speak in particular to amendment 36, mostly because my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones), who chairs the European Statutory Instruments Committee, made some fantastic interventions. The amendment states that we need greater transparency on how the process will continue. There are opportunities to be on Committees and to scrutinise legislation, but my hon. Friend made it clear that Labour MPs have not even turned up to take their places on the European Statutory Instruments Committee.
EU law that will be amended or repealed will go through the usual channels. Business managers and the Leaders of both Houses will take decisions. The European Statutory Instruments Committee will be involved, and the Delegated Powers and Regulatory Reform Committee will be involved in the House of Lords, and we have the dashboard. Nothing could be more transparent, and it will involve colleagues from across the House.
My right hon. Friend the Member for Chelmsford mentioned consumer rights. I want to put on the record that core consumer protections, as set out in the Consumer Rights Act 2015 and the Consumer Protection Act 1987, will continue to apply and remain unaffected. Furthermore, I reiterate my commitment that the dashboard, as I said earlier, will be published this month.
Turning to devolution, the Government recognise the importance of ensuring that the Bill is consistent with the devolved arrangements and remain committed to respecting the devolution settlement and the Sewel convention. The Bill will allow the devolved authorities to look at devolved law and take a decision on what they wish to assimilate, amend or revoke—decisions that they never had when we were a member of the EU. I would hope that those authorities would embrace that with both hands, not reject it.
Ms Ghani
I am reluctant to give way, because the intervention will end up being, “But we just don’t want to be here.” If it is on a different topic, I will give way to the right hon. Gentleman.
Ian Blackford
Will the Minister respect the right of the Scottish Parliament not to give consent to this Bill?
Ms Ghani
I find this extraordinary. The devolved authorities have the right to make decisions on devolved laws. Why would that not be embraced, instead of being rejected?
I must comment on the Bar Council’s evidence. Barrister Tom Sharpe KC noted that the Bar Council
“is our trade union, and it does not speak on my behalf on this political matter…obviously”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 24, Q43.]
An issue about deregulation was raised. It is not enshrined in any of the clauses, but the Bill says that overall burdens must be reduced.
Anthony Browne (South Cambridgeshire) (Con)
I have been involved in European policymaking over a period of about 20 years, including being Europe editor of The Times. Something that struck me is that it is very difficult to get agreement between 27 or 28 countries, so once a law is passed it is almost impossible to change. EU laws get frozen in time and things move on. With EU laws stagnant across the economy, does the Minister think it is right that EU laws should be reviewed across the entire economy, in all different sectors?
Ms Ghani
That is what the Bill proposes, so that we are not stuck in time with EU laws made elsewhere.
This is the Parliament of one of the oldest continuous representative democracies in the world, of which the UK is rightly proud. The Bill will restore Acts of Parliament as the highest law of the land by ensuring that domestic law will take precedence over retained direct EU law. This is all part of what the British public voted for in the referendum and the general election—for Britain to be left to do things differently and to be the supreme arbiter of our own laws. That is all that this Bill is proposing.
To conclude, the Bill will allow the United Kingdom to take the next steps in reasserting the sovereignty of Parliament. It will end the special status of retained EU law in the UK statute book and enable the Government more easily to amend, revoke and replace retained EU law, and to seize the opportunities of Brexit. I therefore ask hon. Members to support the Government’s amendments, withdraw their own amendments and support the Bill.
Question put and agreed to.
New clause 1 accordingly read a Second time, and added to the Bill.
Clause 1
Sunset of EU-derived subordinate legislation and retained direct EU legislation
Amendment proposed: 18, page 1, line 4, leave out “2023” and insert “2026”.—(Justin Madders.)
This amendment moves the sunset of legislation from 2023 to 2026.
Question put, That the amendment be made.
Assimilated case law | Section 6(7) |
Assimilated direct legislation | Section 20(1) |
Assimilated direct minor legislation | Section 20(1) |
Assimilated direct principal legislation | Section 20(1) |
Assimilated domestic case law | Section 6(7) |
Assimilated EU case law | Section 6(7) |
Assimilated law | Section 6(7)” |
Ms Ghani
I beg to move, That the Bill be now read the Third time.
I wish to thank all the right hon. and hon. Members who have contributed today. It has been a long day, but this Bill has been around for a whole year and I wish to thank everybody who has been working on it for a year. In particular, I wish to thank the Bill team, Lorna, Janet, Ryan, Jenna, Mahsa, Sam, Sagar and Sol; and the policy team, Fergal, Lizzie, Walter, Zach, Rachel, Nikoli, Jess, Hannah, Anita, Jon, Miranda and Ruth. I also wish to thank my hon. Friends the Members for Bosworth (Dr Evans), for Beaconsfield (Joy Morrissey) and for Wolverhampton North East (Jane Stevenson) for doing such fantastic work behind the scenes.
I know that a few Members wish to speak, so I shall be brief. I just want to thank all Members for their contributions as regards the constitutional importance of the Bill—ending the supremacy of EU law and restoring Acts of Parliament as the highest law in the land is, of course, of paramount importance. I am proud that this Bill will build on the European Union (Withdrawal) Act 2018 and ensure, by default, that no Act of Parliament is subordinated by the retained EU law any longer.
Madam Deputy Speaker (Dame Rosie Winterton)
I call the shadow Secretary of State.
Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)
As we move to Third Reading, may I thank all colleagues, Ministers, civil servants and Clerks of the House for their work on this Bill. In particular, I thank my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) for leading on it for the Opposition, and for the strength and clarity of the arguments he has put forward, and the diligence of his work to try to improve the Bill at all stages. I also wish to recognise my hon. Friends the Members for Leeds North West (Alex Sobel) and for Walthamstow (Stella Creasy) for their work, and my hon. Friends the Members for Sheffield Central (Paul Blomfield) and for North Tyneside (Mary Glindon) for their work in the Bill Committee.
We opposed the Bill on Second Reading on the basis that it was not a serious or appropriate way for the Government to address the matter of retained EU law, and nothing that has occurred since has changed that view. This is not and never has been about Brexit. It is about how the law should be changed, and the certainty and clarity the Government need to give when they do that. Legislating for a sunset clause on a huge body of legislation, the scale of which the Government have themselves struggled to identify, has appalled businesses, charities and the public. The fact that we now know on Third Reading that 1,600 additional laws, on top of the ones disclosed in the dashboard, are affected, without the Government being able to tell us what they are, is frankly absurd.
The Government are asking us trust them on a whole range of laws, covering employment rights, consumer protection, environmental standards and more, but how can anyone trust this Government? They are hardly a model of stability. Between First Reading and Third Reading we have had a completely different Prime Minister and a completely different Business Secretary. So who knows who may be in charge by the time it finishes in the other place? We have still not heard a compelling answer as to why the Government cannot address the body of EU retained law on a sector-by-sector basis, putting forward their replacement proposals in the same way as we legislate for everything else. After all, this is the Government’s own approach, which they have taken with the Financial Services and Markets Bill in the area of financial regulation.
This Bill is a charter for uncertainty, confusion and the regression of essential British rights. We cannot and will not stand for that. The Labour Party will therefore vote against the Bill’s Third Reading tonight, in the national interest, and I urge all colleagues to do the same.
Mr Rees-Mogg
First, may I congratulate the Minister for Industry and Investment Security, my hon. Friend the Member for Wealden (Ms Ghani), on her brilliant performance today and on taking on this Bill and driving it through? I will now confess to this House that a year ago, as Leader of the House, I thought it was going to be impossible to get this Bill done, written and ready for Parliament. I know I am not meant to mention people in the Galleries, Madam Deputy Speaker, but I hope you will indulge my saying that some of the Bill team are there and they were fabulous. They made the impossible happen and they deserve great thanks, because this is about restoring British law, with the common law replacing European law.
The Bill is a tidying-up law, but it is of great constitutional importance. It has been sent from this House with technical amendments from the Government but no fundamental amendment. I hope that the other place will note that carefully; the Bill goes with a strong democratic mandate and a wind behind it. It is one of the really important completions of Brexit and the people who oppose it are, in their hearts, the ones who opposed Brexit all along. The Bill is a reclamation of democracy, of parliamentary sovereignty and of our proper law.
Alyn Smith
I will be brief because we have had a long discussion today. The SNP opposes the Bill. We believe that Scotland’s best future is independence in Europe, but it is not about that tonight. I also, simultaneously—as a friend of the UK—do not want to see this place pass bad law, and we believe that this is bad law. It is possible to do a bad thing well, but I fear that the Bill will do a bad thing badly. As I said earlier in the debate, if Government Members must do this damn silly thing, please do not do it in this damn silly way. The Bill will have real consequences and real problems for the UK Government and the rest of us, and for the devolution settlement alongside. The SNP will oppose it.
Sir William Cash
After 38 years in this House, I simply say a profound thank you to the British electorate—the 17 million who voted to leave the European Union in the referendum and endorsed that in the general election of 2019. I congratulate the Government, the Ministers and all the people in this House who have supported the idea of leaving the European Union. Above all else, I thank the British electorate.
Bell Ribeiro-Addy (Streatham) (Lab)
I am sure that many other Members have said this already, but this has nothing to do with Brexit. These are all pieces of legislation that are in British law. If the Conservatives want to remove them, they should come to this House and debate each and every one of them on an individual basis. Removing these pieces of legislation will have far-reaching consequences. Unfortunately, I believe that consequences will be brought to bear on Conservative Members at the next election. If you are not thinking about the destruction to our democracy, you should at least think about your constituents—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. The hon. Lady must not keep using the word “you.” She must speak through the Chair. I think that she has made her point.
Sir John Hayes
Fear, doubt and guilt have bedevilled politicians and politics for too long in this country, but the British people are not so fearful of their freedoms, not so doubtful about their sovereignty, and not so nervous about the journey that we have now embarked on to a free future, where this country, through its elected Parliament, can make laws in the national interest for the common good. We have had a lot of fears expressed today. We have heard about bonfires and cliff edges, but the people know that they can trust in the people that they choose, from all parts of this House, to do the right thing by them. If we do not believe that, then what on earth are we doing here? It is absolutely right that we have fulfilled the promise from the 2016 election and taken back control. This Bill—I congratulate Ministers on bringing it before the House today—is the next step on our path to sovereignty, freedom and success.
Patrick Grady
The Minister would not take an intervention, but I think the right hon. Member for North East Somerset (Mr Rees-Mogg) is going to be pretty disappointed. I suspect it will, ironically, fall to the unelected House to look at the amendments that the Government rejected this evening and decide that perhaps they have a place in the Bill after all. At that point, the climbdown will have to begin and the Bill team, who no doubt have worked extremely hard, will have to work even harder, because they will have to find a compromise and a way to explain why everything the Minister said at the Dispatch Box about how necessary and workable this Bill is was completely and utterly incorrect. In reality, the Bill is totally unworkable and totally unnecessary.
The right hon. Member for North East Somerset and his Brexiteer friends wanted to take back control to this House. They wanted parliamentary sovereignty. This Bill does not assert parliamentary sovereignty; it hands it over to the Executive to pass thousands of laws, or to get rid of thousands of laws, by Executive diktat. That is not parliamentary sovereignty. The people in Scotland can see exactly what is happening, and it will not be long before they reclaim their popular sovereignty.
Stella Creasy
I put on record my thanks to all the civil servants who have answered our questions on this Bill, to all the members of the Committee and the Minister for taking questions—I think in years to come her diaries will be a revelation about what she really thinks of this legislation.
We should make a pledge tonight, because this House has started to hear the voices of the British public, who recognise that legislation like this is us not doing our job. It is us taking away the job and putting power in the hands of the shadowy elite behind the back of Downing Street. It is not parliamentary sovereignty. We will make a pledge tonight in this House to keep hearing their voices—to keep hearing the many campaign groups who have spoken with one voice and said, “There is a better way to do this,” to hold all of us to account, to work with our colleagues in the other place to ensure that we truly do take back control to this place and uphold parliamentary sovereignty.
Those of us on the Opposition side know how valuable that is to our democracy, and we invite all those on the Government side who recognise that to join us. A sinner that repenteth is still a sinner that repenteth.
Question put, That the Bill be now read the Third time.
Retained EU Law (Revocation and Reform) Bill
Thursday 19th January 2023
(1 year, 3 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 18 January 2023 - (18 Jan 2023)
Retained EU Law (Revocation and Reform) Bill
Monday 6th February 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 18 January 2023 - (18 Jan 2023)
Lord Callanan
That the Bill be now read a second time.
Relevant documents: 28th Report from the Secondary Legislation Scrutiny Committee, 25th Report from the Delegated Powers Committee
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, before I get into my speech, I note with great anticipation that we will be hearing not one but two maiden speeches today. We are indeed blessed. Let me first warmly welcome my noble friend Lady Bray of Coln and the noble Baroness, Lady O’Grady of Upper Holloway. I am delighted to note that Lady O’Grady has come from advocating for a people’s assembly in 2013 to joining us here today—quite the journey. I look forward to both their contributions to this debate.
First, I thank the Minister for Industry and Investment Security for ensuring that the Bill has been sent to us in this place following much reasoned and thorough debate in the other place. At all stages there were commitments made across a number of issues, including our international obligations, employment rights and environmental protections. I reiterate those commitments now and of course will continue to do so throughout the passage of the Bill.
The retained EU law Bill is the next step in reasserting the sovereignty of Parliament and untangling the United Kingdom from nearly 50 years of EU membership. Retained EU law was never intended to sit on our statute book indefinitely. Indeed, the time is now right to review retained EU law and end it as a special legal category. The Bill will achieve this by enabling the Government to more easily amend, revoke or replace retained EU law by the end of 2023. This will ensure that the Government are able to create legislation which better suits the UK without taking decades of parliamentary time to achieve.
The Bill enables the UK to fully grasp the myriad opportunities to create modern and agile regulation, to support the ambitions of our sovereign nation. There are countless opportunities for reform ahead of us, ranging from financial services to data, and from artificial intelligence to transport and energy. Through the Bill, the Government will work to develop a new, pro-growth, high-standards regulatory framework that gives businesses the confidence to innovate, invest, scale up and therefore to create more jobs.
Clause 1 lays the groundwork for an ambitious and efficient overhaul of all retained EU law. It establishes 31 December 2023 as the sunset date on which retained EU law will cease to exist, unless there is further action by government and Parliament to preserve it as “assimilated law” without its special EU law features. In this way, the sunset ensures that outdated and unnecessary laws are quickly and easily repealed. It will also provide government departments with a clear timeline to seize reform opportunities. Indeed, a sunset is the quickest and most effective way to accelerate reform across over 400 policy areas and deliver the rapid repeal of retained EU law.
It is only right to set the sunset of retained EU law as the default position. This ensures that we are proactively choosing to preserve laws inherited from our membership of the EU only where they work in the best interests of the United Kingdom. Some retained EU law is of course inoperable and removing it from the statute book is merely good democratic governance.
The sunset extension mechanism, found in Clause 2, will allow specified instruments or specified descriptions of retained EU law to continue in force beyond the sunset date where that is necessary and in our interests. The sunset date cannot be extended beyond the end of 23 June 2026. It is my hope that this clause proves unnecessary, but it would be irresponsible not to include a clause to allow for unforeseen circumstances. Together, these two clauses will facilitate reforms that will help to grow our economy, deliver the opportunities Brexit provides and support advances in technology and science.
From the end of 2023, the Bill will end the special status of retained EU law on our statute book. Clauses 3 to 5 will ensure that EU rights, obligations and remedies retained by Section 4 of the withdrawal Act will cease to apply and that the application of the principle of supremacy and general principles of EU law as rules of interpretation will end. The retention of these principles provided legal continuity at the end of the transition period, but it would be constitutionally inappropriate to leave these retained EU law principles on the UK statute book in perpetuity. In many cases, the principles and rights in question already overlap with well-established provisions in domestic law. This has the potential to undermine the clarity of our law. To reflect these changes, Clause 6 renames retained EU law which has not been sunset as “assimilated law” after the end of 2023. This is not, as some have said, a simple “rebranding” exercise but is a new body of law without the EU law rules of interpretation.
Where further provision is necessary, the Bill provides powers in Clause 8 and Clauses 12 to 14 to codify specific rights and interpretive effects clearly and accessibly in domestic statute. We are proud of the history of the UK legal system, in which common-law principles and legislation are well established. These reforms will continue that tradition and ensure that our law continues to develop as one best suited to the UK context.
Past judgments of the courts have set too high a bar for UK courts to depart from retained case law and the judgments of EU courts. Now that we have left the European Union, we must reassess when it is right to depart from retained case law and establish more UK-focused precedents. The retained EU law Bill will free our courts to develop case law on retained EU law in a way that is right for the United Kingdom. Clause 7 introduces new tests for higher courts to apply when considering departure from retained case law. The tests give higher courts greater clarity on the factors to consider, and greater freedom to decide when it is appropriate to depart from that retained case law. The clause will also facilitate more decisions on departure from retained case law. It empowers lower courts to refer points of law to higher courts for a decision on whether to depart. It also confers on the law officers of the UK and on the devolved Governments similar reference powers and gives them the right to join cases to argue with regard to departure from retained case law.
Clause 9 gives the judiciary powers in connection with the ending of the supremacy of EU law. Courts and tribunals will issue incompatibility orders and will be able to grant appropriate remedies in legal proceedings where retained direct EU legislation cannot be read consistently with other pieces of domestic legislation.
Retained direct EU legislation, composed mainly of EU regulations over which the UK Parliament had no real say, often does not reflect the UK’s priorities or objectives to drive growth. We are currently forced to treat some of this legislation as equivalent to an Act of Parliament when amending it. This limits our ability to make vital reforms and is constitutionally inappropriate.
Viscount Hailsham (Con)
In respect of the legislation that is to be revoked or re-enacted, is my noble friend going to tell the House what consultation there will be with the various stakeholders, who must run into the thousands?
Lord Callanan (Con)
When secondary law is implemented there is a well-established procedure for appropriate consultations, which of course will take place. All those stakeholders are able to have their say through many Members of both Houses of Parliament as well.
Clause 10 will therefore ensure that retained direct principal EU legislation and Section 4 EU withdrawal Act rights are downgraded, ensuring that they are treated as equivalent to secondary legislation for the purposes of amendment.
It is critical to ensure that this body of law can be updated, amended and reformed using appropriate delegated powers. Without these measures, thousands of regulations will become stagnant—unable to stay up to date, react to new information or implement new international agreements without requiring a new Act of Parliament. Clauses 10 and 11 support this Government’s commitment to taking the necessary steps to put the UK statute book on a sustainable footing, guaranteeing that we can seize all the opportunities that leaving the EU supplies.
The powers in the Bill, combined with the downgrading of retained direct principal legislation, will make it easier for Ministers to amend or repeal retained EU law without the need for primary legislation. The powers have also been designed to deal with matters arising in relation to the sunset and the ending of retained EU law as a legal category at the end of 2023. It has become increasingly clear that there is a lack of subordinate legislation-making powers to remove retained EU law from the statute book. It is appropriate to take powers in the Bill to address this.
The retained EU law dashboard has identified over 3,700 pieces of retained EU law across 16 departments. While some of these laws will be preserved, of course, many are outdated, some are unduly burdensome, and others are increasingly unsuited to the UK’s economic circumstances. Therefore, it is necessary to have powers in the Bill that are capable of acting on a wide range of retained EU law covering a variety of different policy areas. This is not a power grab by the Government.
Lord Callanan (Con)
Rather, the powers in the Bill will enable us to seize the opportunities of Brexit through reviewing the laws that were imposed on us by Brussels during our membership of the European Union. Sectoral-specific legislation simply cannot be passed in a timely enough manner to ensure that these regulations are made suitable for the United Kingdom.
The powers in the Bill will enable the Government to more easily replace retained EU law with domestic laws that are tailored to the UK and, importantly, work in the interests of the United Kingdom, while the power to update will ensure that the UK keeps pace with advances in science and technology over time.
The Government recognise the importance of ensuring that legislation undergoes the appropriate level of scrutiny.
Lord Callanan (Con)
Well, it is more than some of the EU legislation did. I did not mean to start a debate on this.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, while not forbidden, it is considered discourteous to interrupt the Minister in his opening speech. If the noble Lord wishes to speak, he should put his name down for the gap.
Lord Hannay of Chiswick (CB)
I merely want to ask the Minister: what proportion of the legislation was, as he described it, imposed? Presumably, it was only the laws that we voted against.
Lord Callanan (Con)
Given his direct experience, the noble Lord knows exactly how the procedures work in Brussels. The point I was making was that the vast majority was introduced into UK law directly, without any appropriate scrutiny from Parliament beforehand. Obviously, there were lots of discussions in Brussels. He took part in some on behalf of the Council, and I took part in many in the European Parliament as well. But there was no scrutiny in this Parliament for much of that legislation.
The Earl of Kinnoull (CB)
I do not mean to be discourteous; I really am not. But the European Union Committee of this House and the European Scrutiny Committee of the other place sat for nearly 50 years doing the scrutiny that the Minister is saying did not take place. It was very heavy: it used 72 Peers from this Chamber in its structure. There was quite a lot of scrutiny going on.
Lord Callanan (Con)
There was scrutiny but no ability for Parliament to amend any of it, of course.
Lord Callanan (Con)
We will have this debate as we progress with the legislation, I am sure.
As I was saying, the Government recognise the importance of ensuring that legislation undergoes the appropriate level of scrutiny. The Bill has been drafted to ensure there are robust scrutiny measures and safeguards in place. This includes a sifting procedure for regulations proposed to be made under the powers to restate and the powers to revoke or replace.
Now that we have left the EU and regained our sovereignty, it is important that the UK has a regulatory system designed to benefit UK consumers and businesses. To ensure that the UK makes the most of the opportunities outside the EU, and as outlined in the The Benefits of Brexit report published in January last year, the UK is reforming how it monitors and evaluates future regulation.
It is important that we repeal the business impact target, which has too narrow a focus on the impacts of regulation. Our new system will ensure earlier scrutiny of proposed regulation; a more holistic assessment of its impacts on UK households, businesses and consumers; and a regulatory framework that is therefore fit for purpose.
We have seen how our legislature has evolved since leaving the EU. It is right that we now take the next step and relinquish from our statute book retained EU laws that do not work in the interests of the United Kingdom. The Bill ensures that we can achieve that, by seizing the freedoms afforded to us by Brexit.
The Government have read with interest the reports from the DPRRC and the Secondary Legislation Scrutiny Committee. I look forward to hearing reasoned comments on these from many noble Lords, particularly my noble friend Lord McLoughlin and members of both of those committees.
The Bill will benefit people and businesses across our country, reassert our sovereign approach to law and regulation, and support the interests of our United Kingdom, rather than those of Brussels. I know that many noble Lords in this Chamber will agree with me when I say that, in this current climate, protecting the UK’s best interests is of the utmost importance. We must therefore continue to surge forward to ensure that our statute book is put on a sustainable footing for all four sovereign nations of the United Kingdom. I beg to move.
Lord Fox
At end insert “but regrets that the Bill (1) weakens the scrutiny role of Parliament and proposes unparalleled delegated powers be given to Ministers of the Crown, (2) does not respect the constitutional role of the devolved administrations, (3) sets an arbitrary deadline for the revocation of many hundreds of laws protecting the United Kingdom’s high environmental standards, as well as employment and consumer rights and safety standards, with no indication of the rules that will replace them, and (4) imposes a cliff-edge at the end of 2023 that will create uncertainty for people and businesses”.
Lord Fox (LD)
My Lords, I draw attention to my non-pecuniary interests as a vice-president of the German-British Chamber of Commerce and a director of the German British Forum. I associate my thoughts with the Minister in anticipation of the two maiden speeches by the noble Baronesses.
As we have heard, the Bill seeks to make major changes to the body of retained EU law in UK domestic law. It aims to automatically revoke, or sunset, most retained EU law at the end of 2023. Any retained EU law that still applies after the end of 2023 would be renamed as assimilated law. At this point, I stop agreeing with the Minister, because this Bill hands huge powers to Ministers at the expense of elected MPs.
Your Lordships might have become immune to the Henry VIII clauses that have been propagated by Bill after Bill coming before this House, but this Bill represents a new, unprecedented level of transfer of power from Parliament to the Executive. It gives Ministers powers to legislate in areas that affect every aspect of our daily lives without any meaningful democratic input. Far from creating new high standards, as has been promised by Minister after Minister, the replacement legislation cannot increase standards: it can only keep them the same or make them lower. Moreover, the impractical timetable imposed by the sunset clause indicates clearly that this Government know that their race is run.
The reaction across key communities and committees across Parliament is very clear—I have never received so much comment from civil society as I have on this Bill. It is not only anti-democratic; it is ill thought through and badly drafted. For example, the impact assessment was roundly criticised by the Regulatory Policy Committee. Then, just last week, the Delegated Powers and Regulatory Reform Committee issued its verdict, which is damning. I am sure your Lordships will refer to it in more detail, but crucially, to my mind, the DPRRC highlights the false dichotomy epitomised by the Bill.
As the committee explains, the Government create such a dichotomy by saying that replacing all retained EU law purely through sector-specific primary legislation would take decades. That might be so, but the committee also notes that this is a false choice between replacing all such legislation with primary legislation and replacing all of it with regulations made by Ministers. There is another way. The choice is not all primary legislation or all ministerial edict. The advice of the Bar Council is a useful suggestion for the way we should go forward. It says of the legislation under review
“the question should be whether it remains fit for purpose: would alternative UK regulation achieve different and preferable goals, be better or more cost-effective in achieving its goals, or more certain in its application?”
In other words, this approach is to improve legislation where appropriate, which reflects the thinking on these Benches.
The Bar Council also outlines two overarching concerns regarding the Bill. First, it says, as do many others, that it is anti-democratic, noting:
“Important changes to our law should be made by Parliament after proper consultation, public debate, and scrutiny.”
This echoes many of the comments that we have heard. Secondly, the Bar Council says:
“The Bill and the attendant legal uncertainty that will follow its adoption as currently drafted will damage the UK’s reputation for regulatory stability, predictability, and competence, on which growth-promoting investment in critical sectors of our economy depends.”
I will be interested to hear what the lawyers in your Lordships’ House have to say about the need to establish brand-new case law right across the piece. For my part, I note that the Bill also grabs back power from the devolved authorities. I am sure my noble friend Lady Randerson will expand on that theme later today.
However you look at it, this is an unprecedented upheaval of the nation’s laws, yet when I listen to the Minister and his colleagues across Parliament, somehow it is depicted as a sort of tidying-up process. Indeed, Jacob Rees-Mogg described it as a “technical tidying up operation”. I do not know what tidying up looks like in the Rees-Mogg household, but this is not light dusting. To stretch a metaphor, it is the equivalent of tidying up the family nursery by completely dismantling Casa Mogg brick by brick and then putting it back together again. That is quite a task, and there is no guarantee of what comes out at the end.
In this case, what is rebuilt is up to Secretaries of State and them alone, and we all know how such grand designs end: in cost overruns, changes, delays and unexpected problems, but, unlike with the TV programme, there is no guarantee that this real and present story has any pleasing outcome—none whatever.
The tidy-up story would perhaps have a shred of credibility if Ministers were not at the same time pandering to the likes of Sir Bill Cash, who expressed the views of the ultras very well when he said that retained EU law is
“a massive ball and chain”,—[Official Report, Commons, 18/1/23; col. 419.]
implying that the UK must remove this regulation. Only last month, we also heard the Chancellor of the Exchequer talking up the need to remove, reform and take away regulations. This Bill makes all that possible without Parliament and elected MPs getting in the way, which is music to the ears of Sir Bill and his deregulating colleagues.
Of course, this process also effectively does away with much of the legislation delivered by thousands of statutory instruments passing through your Lordships’ House. As your Lordships no doubt recall, these incorporated retained EU law into British law to avoid what was then described as a chaotic bonfire of regulation as we left the EU, but it seems we delayed that bonfire a few years because a bonfire is what is now proposed in this Bill. This fire will impact a vast range of areas, including consumer rights, safety regulations of all kinds, protecting the environment and, of course, employment rights. No doubt many noble Lords will have detailed examples of these issues as we debate the Bill today.
As well as a power grab and a deregulator’s paradise, this Bill is also likely to deliver something that this Government have excelled at, which is chaos. The Bill, say Ministers, is designed to support business interests—indeed, we heard the Minister say that just now—but we hear from business that it will create chaos and poor governance, rather than stability. This will undermine confidence and will be likely to have a negative impact on business investment in the economy, something I am sure the Minister would prefer to be going in the opposite direction.
Speaking last month, Tony Danker, the director-general of the CBI, argued that scrapping these 4,000 or so EU-derived laws by the end of 2023, as facilitated by the Bill, was
“creating huge uncertainty for UK firms”.
As he put it:
“Do we really want to subject the public—and industry—to another round of mass confusion and disruption, just when we’re trying to exit recession?”
In his view, and ours, EU laws should be reviewed and, where needed, repealed as part of a wider strategy to deliver smart and better regulation. He noted that the Chief Scientific Adviser, Sir Patrick Vallance, is currently reviewing how the UK can better regulate emerging technologies—for example, some of those that the Minister reeled off. The sensible thing, said Danker, would be to wait for that review and act on it systematically. We see the same attitude and response across business. The Federation of Small Businesses, the car makers and most of UK manufacturing do not want the confusion that this Bill will deliver.
Your Lordships’ Secondary Legislation Scrutiny Committee has worked fast, and should be credited for that, to ensure that its extensive report is available to inform this debate. The committee focuses on the sunset provisions and the lack of effective scrutiny of secondary legislation, but in a broader sense, its view is important and something I would like your Lordships to take on board. It said:
“Amending the Bill so that the shift in power between Parliament and the executive is reversed will require a great deal of thought and creativity, and commitment to the overarching aim of redressing the current imbalance of power.”
In other words, there is a lot to do to this Bill to make it acceptable. We agree that this going to be a difficult job, but we commit to doing it, because we feel it is vital to ensure that MPs maintain a grip on the legislative process rather than, as the Bill commands, hand decisions solely to Ministers.
This amendment highlights why this Bill is wrong. It is wrong because it weakens the scrutiny role of Parliament and gives unparalleled delegated powers to Ministers. It is wrong because it does not respect the constitutional role of the devolved Administrations. It is wrong because it sets an arbitrary deadline for the repeal of numerous laws that protect the UK’s environmental standards, safety standards, employment rights and consumer rights, and it is wrong because it creates uncertainty for businesses and individuals. I beg to move.
Baroness Chapman of Darlington (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Fox, and to welcome the noble Baroness, Lady Bray, and my noble friend Lady O’Grady; I look forward to their maiden speeches. I take this opportunity particularly to welcome my noble friend, who has been an inspiration to women throughout the labour movement for many years—especially since she spent time in the 1980s with my husband organising members to join the T&G, some of it spent hanging around outside the back of hotels and other such salubrious places. I know that she will never forget her roots; her being here today just goes to show what a great engine of social mobility the trade union movement can be. I very much look forward to her speech.
Six years ago, when the Government introduced the then European Union (Withdrawal) Bill, which ensured that EU-derived law was incorporated into UK law, I sat in the other place and listened carefully to the Secretary of State as he laid out the Government’s case. That day, he told us:
“The key point of this Bill is to avoid significant and serious gaps in our statute book. It ensures that consumers can be clear about their protection, employees can be clear about their rights, and businesses can be clear about the rules that regulate their trade.”—[Official Report, Commons, 7/9/17; col. 334.]
Somehow, incredibly, the Government have come full circle. This new Bill does the exact opposite. Faced with no external pressure or deadline, the Government are willingly creating their own cliff edge: generating uncertainty rather than reducing it; creating gaps in our legal framework rather than filling them; bringing chaos to the structure of rights, protections and standards on which so much business, trade, employment and environmental protection depends. That is why the opposition to the Bill is so broad and has come from such diverse quarters. It is no mean feat to unify the CBI and the TUC, industry and environmentalists, farmers and factory owners, twitchers and anglers, doctors and lawyers, national parks and the National Trust, Scottish Parliament and Welsh Senedd, and many, many more. All are united in opposition to this Government’s plans. The CBI says that the Government is subjecting
“the public—and industry—to another round of mass confusion and disruption, just when we’re trying to exit recession.”
The TUC has called the Bill a “recipe for chaos”. The Institute of Directors says that it
“will impose a major new burden on business”.
The Federation of Small Businesses wants the sunset provisions removed. The National Farmers’ Union fears that it could unintentionally remove important regulatory safeguards. The Marine Conservation Society says that it
“poses a huge threat to marine life and environmental protections”.
The RSPB says that it will put at risk thousands of crucial laws that protect the natural environment and public health. The Government’s own Regulatory Policy Committee has called the Bill “not fit for purpose”.
It would be hard to find a less popular proposal but, despite the warnings of this unprecedented coalition, the Government plough ahead regardless, closing their ears to warning and criticism, with a Bill that is reckless, unpopular and—worst of all—unnecessary. The Bill is not about Brexit. We have left the European Union; we have been out of the EU for three years and the referendum was the best part of a decade ago. These questions are nothing to do with leave or remain; they are not even principally about our future relationship with the EU, although that too, like so much else, could be affected by this legislation. Principally at issue are how we govern our own country, how we regulate our economy, how we ensure rights for workers, how we protect the environment, and the proper role of this Parliament in making those decisions.
No one could reasonably object to revisiting specific laws derived from the EU in a sensible, orderly fashion. It is right and reasonable to ask whether there are areas in which we can do things differently or better—that is the essence of competent government—but what is needed is a smart approach to regulatory change. Ensuring that workers’ rights, consumer protections and environmental standards are maintained or indeed enhanced; carefully considering where we might do things differently and what should stay the same, on a case-by-case basis; listening to stakeholders from business and civil society; respecting the proper role of the devolved Administrations; and promoting a race to the top, not to the bottom—that would be the approach taken by a Labour Government. Instead, we have this uniquely reckless and wrong-headed approach to legislative change.
The Bill is unlike any other that I have seen in my time in either House. There are multiple reasons why in its current form it does not deserve to be on the statute book, but I shall focus on four. The first is the dangerous presumption in the Bill to remove all law which is not specifically retained; the second is the legislative cliff edge created by the so-called sunset clause; the third is the risk that it poses to rights and protections in countless fields; and the fourth is the extraordinary and unjustifiable powers given to Ministers of the Crown, and the disrespect shown to Parliament. I will take each in turn.
First, the upshot of the intention to remove all EU-derived law by default is one simple and absurd fact: no one knows exactly what laws will be revoked at the end of the year. The Government certainly do not know. They are still merrily adding new legislation to their online dashboard, checking behind government sofas for some other scroll of vellum that they may have overlooked. Nothing illustrates this farcical process more than the fact that, between the Bill passing Third Reading in the Commons and arriving before noble Lords today, another 1,000 pieces of legislation were added to the pile. Some may still be removed without being identified first, with indeterminate consequences. This is legislative Jenga. Never before in my time in either House have a Government brought forth a piece of legislation whose legal scope they are unable to define. The Government’s proposal is that this House should give Ministers the power to remove laws without them being able to say which laws will be removed. That is a nonsensical way to govern.
The second objection is to the sunset clause. All EU law that is not specifically retained will be revoked by the end of the year. That creates a completely arbitrary and unnecessary regulatory cliff edge at a time when business is crying out for stability. In fact, the Bill in effect contains three sunset clauses—2023, 2026 and for ever—since, under Clause 1(2), Ministers can choose to retain EU law until they choose to change it. If you were trying to design a Bill to undermine business confidence and inward investment, it would be hard to do a better job than this one. The Bill says to business, “The current rules that you operate under—the rules that you understand, rely on and are compliant with—may cease to exist at the end of the year. We can’t say which rules for certain yet, we can’t say what they will be replaced with, and the decision will be made by the Business Secretary on a whim.” If the Minister disagrees, could he tell the CBI, the FSB, the British Chamber of Commerce and the Institute of Directors why it is them who are wrong?
The cliff edge will generate an extraordinary volume of work for civil servants, especially in those departments with a large body of retained EU law, such as Defra. According to the Government’s own dashboard, Defra will have to assess, revise or amend more than 1,700 pieces of law—more than four pieces of law every day between now and the end of the year. That is not achievable. As the consumer watchdog Which? has said, this time pressure creates the risk of mistakes or errors that could have serious consequences. It is also a massive opportunity cost. That is why the RSPB says that the Bill will
“derail urgent action to tackle the nature and climate crisis”
by consuming the resources of departments. Amid a recession and a cost of living crisis, can frantically combing through a back catalogue of law against a self-imposed deadline really be the right use of Civil Service time? I know that many members of the Minister’s own party share these reservations about the sunset clause. It is not a partisan point; it is about competent government—and that brings me to my third principal objection.
This Bill puts at risk many crucial rights and standards and expects trust in the Secretary of State to be a substitute for legal protection. Let us just consider some of the areas covered by retained EU law, such as environmental protection, food safety, civil aviation codes, noise pollution, biosecurity, vehicle standards and employment law. Many of these protections were hard fought and hard won. They cannot be crudely dismissed as abstract red tape. Protections for pregnant women from workforce discrimination, paid annual leave, parental leave, protections for part-time employees, limits on weekly working hours—many of these rights and protections disproportionately affect women and the impact assessment recognises in three separate paragraphs that the Bill contains a threat to equality.
We cannot accept a situation in which these vital protections could be changed at the whim of the Business Secretary. This is made worse by Clause 15, which confirms that rights and protections can go in only one direction: down. The requirement to not increase burdens ensures there can be no race to the top on standards and rights. We must be clear that diminishing our standards could have serious implications for trade. It will complicate the issues created by the Northern Ireland protocol, make it harder to remove barriers in the Irish Sea and could create new difficulties in our trade with the EU.
Finally, I want to address the lack of scrutiny and accountability. This is another Bill brought forward in the name of Brexit that, rather than restoring parliamentary sovereignty, continues a trend of growing executive power. The Bill sidelines Parliament, minimises scrutiny, weakens accountability and hands Ministers unreasonable and unjustifiable powers. To do so in the name of democracy is double-speak.
The Bill contains no requirement for public consultation or impact assessments of proposed changes. Any parliamentarian who wishes to scrutinise or object to future legislation replacing retained law will be taking a gamble because, unless that legislation is passed in time, the current law in its entirety will simply fall away. The sunset clause puts a gun to Parliament’s head. This cannot be the right way to make law in our country.
While we acknowledge that the Bill has passed in the other place and will not frustrate it, we continue to have grave concerns about this legislation. It threatens workers’ rights, environmental standards and consumer protections. It puts our country on course to a self-imposed cliff edge. It undermines scrutiny and accountability and will weaken Parliament. We will seek to amend the legislation to address these issues.
This Bill rests on a fundamentally simplistic and inaccurate view of what regulation is and who it is for. The Government are trying to please some fantasy version of business, still fighting Brexit ghosts in their heads. But business does not want an uncontrolled bonfire of regulation. The truth is that good regulation enables business and trade. It creates stability and predictability. It raises standards. It protects companies as well as consumers, employers as well as workers. The truth is this Bill is a political hangover—the last promise of a Government who collapsed as they made contact with reality. While people are still paying the price in higher mortgage bills, the Government can still spare the public and business the disruption this Bill will generate. I urge them to change course now.
Lord Frost (Con)
My Lords, I am delighted to have the chance at last to speak again on one of my favourite subjects: getting rid of retained EU law from our statute book and supporting the Bill. It is also a pleasure to speak straight after the noble Baroness, Lady Chapman; I very much enjoyed our discussions across the Dispatch Box in 2021, but I am also glad that her undoubted eloquence, of which we have just heard another sample, and her untiring efforts have not yet succeeded in slowing the progress towards getting rid of the effect of EU law in this country.
I make that point because the immediate origins of the Bill lie in decisions I took as a Minister in 2021. But the real origins obviously go much further back: they are part of the logic of delivering a meaningful Brexit in which we have extricated ourselves properly and fully from the EU legal framework, and of the vision on which this party won an election in 2019.
We know the situation: we have on our statute book virtually all the laws we took on in the period of EU membership, thanks to the 2018 withdrawal Act. This came with all the related interpretative concepts: the supremacy of EU law, ECJ jurisprudence and so on. We even upgraded those laws to the status of primary legislation and prevented British courts from reinterpreting EU law doctrines. The effect has been to create a defined body of law, with its own concepts and rules, within the UK statute book. Obviously, such an arrangement can only be provisional; it can only ever be a “short-term bridging measure”, as I described it in a Statement in December 2021.
When it passes, the Bill will bring that situation to an end. It is the product of the work that began in 2021, when I announced that the Government would conduct a review that would start the process of removing the special status of retained EU and reviewing its content comprehensively. That review is complete, and the corpus of law is known. The Bill gives Ministers the necessary powers not only to deal with law on the statute book but to remove interpretive principles, such as those in Clause 4 of the 2018 Act. It is worth dwelling on that point: it is not even clear what law was retained by that clause, as has been noted. It simply enables lawyers to say, “Whatever the law was before, it now is afterwards”—and we cannot live with that sort of uncertainty on our statute book.
Getting this right is necessary to make Brexit work properly. It may be that some noble Lords in this Chamber opposed Brexit and do not want it to work—
Lord Frost (Con)
I know it is hard to believe. I would understand their opposition to the Bill. But noble Lords who profess to accept Brexit surely must accept the logic of the Bill. It makes no sense for this whole body of rules with special status to remain in place on our statute book for a prolonged period. Practically, our lawyers, judges and civil servants cannot deal with two separate statute books, with completely different interpretive principles and case law. We must find a way of changing this and assimilating these laws into our legal system, adjusting and redrafting as necessary.
I recognise that some critics of the Bill will say, “We accept that, but the pace and the process are the problem”. Responding to that, I point to the nature of the powers that will be granted, the criticism of which has been absurdly exaggerated. They are targeted at a specific set of laws, and they exclude any powers to deal with the fundamentals of primary legislation; they are about secondary legislation changing secondary legislation. I cannot see the difficulty with this. It is relevant that this legislation was passed by a body outside this country, often against the opposition of this Government.
To finish, these inherited EU laws have little real legitimacy now that we have left the system that created them. We cannot leave them there for decades while we get around to passing endless primary legislation to replace laws that never came in in that way in the first place.
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Lord really must draw his comments to a close.
Lord Frost (Con)
I will do. We lived for 47 years under a system in which we did not control our own laws. The Bill is not only necessary and essential; it is unavoidable and part of the logic of Brexit. I look forward to supporting it now and in Committee.
Lord Rooker (Lab)
Your Lordships’ House has been sent the Bill by the elected House of Commons to, in effect, snuff out the elected House of Commons from its role in primary legislation and to subordinate Parliament to Ministers in respect of nearly 4,000 items of legislation, in which the elected House will have no role. I was not sent to this House in 2001 to oversee the dismantling of the accountability of the Government to Parliament in order to make Parliament accountable to Government.
The Government’s delegated powers memorandum indicates in paragraph B that a key role of the Bill is
“restoring the primacy of Acts of Parliament in UK statute.”
That is not achieved by the Bill. The European Union (Withdrawal) Act 2018 made repeated references to Parliament making the changes to law after the exit from the EU. However, according to the Bill, Ministers alone will decide what happens to retained EU law, with no role for Parliament.
Members will have seen the delegated powers report on the Bill. Our approach is meticulous and concerned not with policy but with the use of delegated powers. These are constructed in a way to remove power from Parliament. In fact, the Bill is the concluding evidence that the Government have not intended, are not intending and do not intend to pay the slightest attention to the reports debated as recently as 12 January, Democracy Denied? and Government by Diktat. There is one group that ignores the reports at its peril and ours: the group drafting the legislation. Its members are clever and know what they are doing: they are following orders from Ministers in a way that their predecessors from a couple of decades ago would not recognise. Those who drafted Bills were a constraint on Ministers stepping over the line—not any more. Parliamentary counsel are wholly owned by the Government; they work for, and are accountable to, the Government and not Parliament. They are currently located in the heart of government departments, rather than in their own buildings. In July last year at a joint meeting of the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee, when I asked the First Parliamentary Counsel about the current process, Dame Elizabeth Gardiner said:
“I think things have changed a lot.”
Yes, they have; and the Bill is proof that government counsel are not fit for purpose as far as the primacy of Parliament and the House of Commons is concerned. I do not buy the “only following orders” defence given by Dame Elizabeth when she said that
“we have a key role in what the Bill looks like, but we do not decide on its contents”;
it is
“a political and policy decision.”
If they had any professional self-respect, there would have been a resignation of counsel on a par with that of Sir Jonathan Jones, the former head of the Government Legal Service, in 2020. Anyone associated with drafting the Bill should not be welcome in a regime that believes that the Government are accountable to Parliament.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, the sheer number of speakers is an indication of just how concerned Members of this House are about this legislation. At the time of the Brexit vote, the Government promised that reforming the laws previously vested in Europe would rest solely with Parliament, giving both Houses the opportunity to review legislation suitable for the country. However, what we have before us is the exact opposite: the power to restate, revoke, replace or update retained EU legislation will rest entirely in the hands of Ministers. That is neither what the public voted for in 2016, nor what was contained in the Brexit Bill of 2018. The DPRRC is damming in its 25th report; other speakers will doubtless refer to it.
There is widespread concern that the Bill, in its current form, does not have the support of environmentalists across the country. Given the earlier short debate on the environmental improvement plan, which promises much, it is disappointing that the Bill makes little attempt to support the EIP.
The Conservation of Habitats and Species Regulations 2017 protect more than 50 native UK species, many residing in special protection areas and special areas of conservation. These habitats will need protection if the UK is to meet its obligations under the GBF’s 30 by 30. Revoking this piece of legislation will have a catastrophic effect on endangered species.
In four minutes, it is impossible to deal with how concerned those involved in animal welfare, biodiversity, farming and food production are about the loss of legislation which has helped to protect our health and countryside. Some 44 existing laws concerning animal welfare could all be deleted by this Bill in a single stroke.
The NFU, while welcoming a review of retained EU laws, is very concerned at the speed with which it is proposed this will be carried out and that any EU-originated law that exists beyond 2023 will be referred to as “assimilated law”. It has disquiet that legislation will be discarded without a proper assessment, including vital stakeholder consultation.
Will the Government give firm assurances that this process can be undertaken with due care and attention, while properly involving stakeholders, in the short timeframe proposed? Will the Government also ensure that sufficient parliamentary oversight will be provided, given the significant impact on farming businesses, so essential to food production?
The Government’s dashboard gives a rough indication of the number of pieces of legislation to be dealt with. This started at 2,500 and has risen to over 3,500. Of these, Defra has the largest group of all. Some of the briefs I have received set this figure at 1,700. If we assume that the process of sifting through begins the moment the Bill finishes its passage in approximately mid-March, taking every sitting day from Monday to Thursday until 23 December—approximately 107 sitting days, excluding Fridays—and if Defra has 1,700 pieces of legislation to review in under 300 days and MPs and Peers have 107 sitting days to oversee the legislation and make any corrections necessary, it is quite clear that this quart is not going to fit into the pint pot and there will be very considerable spillage.
Lord Judge (CB)
My Lords, I think I am the only Member of the House who received this letter by special messenger. Having received it, I think I had better read it to your Lordships. It is from the Executive and it is called “Restoring Parliamentary control”. This is how it reads, ignoring the introductions:
“To achieve the object of restoring control back to Parliament, please would you surrender to the Executive powers to repeal or otherwise nullify or dispose of as we think fit some 4,000 or so statutory instruments of great public importance, such as employment laws, environment laws, food safety laws, et cetera (which covers existing laws of which we are still unaware)? These laws were imposed on us by the European Union, but we do have to admit that was with your consent in 1972 in primary legislation. In any event, that is a long time ago and we can reduce the troublesome processes of consent to a virtual formality which would save you all much time and work.
We shall exercise these new revocation powers by the end of the year, but we do not yet know what we shall replace them with. But if we do not manage to replace them or any of them, notwithstanding the urgency, we shall do so by June 2026 or whenever.
Now we must clarify the replacement process. Please would you also surrender to the Executive powers to decide which of three distinct processes may be used for the replacement process for each individual statutory instrument? These are: first, power to decide not to replace any of the relevant laws that we have revoked; secondly, on whatever basis that we think appropriate to replace such laws to achieve their or similar objectives; and, thirdly, to make fresh new laws to cover the topics addressed in the 4,000 or so statutory instruments which have been revoked and make alternative provisions, whether or not the provision achieves the same or similar objectives, as we think appropriate.
Finally, we ask you to surrender power to us to enable the use of secondary legislation to change any existing statute which may have any bearing on the exercise of any of the powers you have surrendered to us in relation to the 4,000 statutory instruments. PS Existing statute includes this very Act itself.
By agreeing to all these separate surrenders, Parliament will have taken back control. We trust you agree.”
Lord Lilley (Con)
My Lords, it is a great pleasure to follow the very witty speech from the noble and learned Lord, Lord Judge. Whenever I negotiated laws in Brussels, my ministerial brief usually began, “We don’t want this measure, Minister, but we cannot stop it. The best we can hope is to negotiate one or two amendments from the long list we have proposed to you”. I therefore fully support the need to revise, retain or repeal EU law and I urge Ministers to rake out these old negotiating briefs, which will reduce the burden of work on departments when deciding what revisions to propose.
That said, I largely share the concerns expressed by noble Lords about the constraints on parliamentary scrutiny and the limited time to complete this process. I understand their fears that this could result in poor revision, and even wholesale repeal of necessary legislation. However, I also understand the fears that led the Government to adopt this tight timetable, and I think the latter fears negate and should dispel the former. Let me explain why. As parliamentarians, especially in this Chamber, whose only power is to make the other House consider our amendments and arguments, we are bound to want the maximum time and strongest procedures to fulfil that function. It is true that almost all these 4,000 laws went through Parliament under the biggest Henry VIII clause of all time—the European Communities Act 1972—with little debate and without a vote, and they would have become law even if every Member of this and the other House had voted against them.
Many noble Lords now calling for more scrutiny never complained about that lack of scrutiny in the past. I rejoice in their damascene conversion to the supremacy of Parliament—there is more joy in heaven over one sinner who repenteth than 99 just men who need no repentance—but when they suggest that taking back control is meaningless without maximal parliamentary scrutiny, they are exaggerating the purpose of Brexit with the zeal of converts. Brexit was, above all, about the British people getting back control. As my referendum leaflet put it:
“In a democracy, if the Government does not deliver ... the people can throw them out.”
The Government will be accountable to the British people at the next election, not least for how they handle these 4,000 laws, and that is the accountability that lies behind the timetable the Government have set for getting this done. I was surprised by the timetable and when I asked Ministers to take it at a more leisurely pace, they explained that it is essential to complete this process before the next election, not because we promised to get Brexit done but, above all, because this is the only way we can prove to the electorate that the scare stories about the process that we heard today are false. Completing the process will show that the Bill was not about removing workers’ rights or demolishing environmental protection or safety standards; nor will it result in huge gaps in our law book. The fact that the Government intend to complete this process in time to face up to their accountability to the electorate makes most of the scare stories ring hollow.
If we had world enough and time, we would undertake this process in a more leisurely fashion, but we do not, so I entirely support my noble friend’s wish to get it done as speedily as possible by processes that are as rigorous as those by which the legislation was introduced, and thereby demonstrate that all the scare stories are untrue.
Lord Liddle (Lab)
My Lords, with the agreement of the usual channels, I have swapped places in the batting order with my noble friend Lady Andrews. I look forward with great pleasure to the maiden speeches of the noble Baroness, Lady Bray, and, in particular, my noble friend Lady O’Grady. She has done a lot for this country; the calm, decent way in which she has expressed common-sense views has raised the stature of the trade union movement in British society. That is one reason why, in the present wave of industrial unrest, the Government cannot pin the blame on the trade unions as they have so often successfully done in the past.
This must rank as one of the silliest pieces of legislation ever to come before Parliament. I was surprised to see the noble Lord, Lord Callanan, in his place to defend the Bill, because the strategy it sets out is completely different from what he advocated when he presented the European Union (Withdrawal) Bill to us some time ago. I do not know quite how he justifies this change of position. This legislation is not necessary to get Brexit done. That legislation was. He put forward the withdrawal Bill and we retained in British law the legislative output of nearly 50 years of EU membership, the vast majority of which—with respect to the noble Lord, Lord Lilley—the British Government certainly agreed to. In some cases, such as that relating to the single market, they pioneered and promoted it.
The approach now being adopted is quite different. The noble Lord, Lord Callanan, said that we would incorporate EU law and take a rational, sectoral approach to trying to change it in the light of what we thought the main challenges of Brexit would be. That rational approach has been abandoned. I would have hoped that this sectoral approach would continue; I am glad that the Chief Scientific Adviser, Sir Patrick Vallance, is conducting these studies—that is fine—but to put an atomic bomb, totally irrationally, under what is in our statute is ridiculous.
When we debated Brexit, the Government told us that we would have higher standards in a lot of areas than we had enjoyed in the EU. Michael Gove was adamant on this in terms of environment and farming, and the noble Lord, Lord Callanan, was always telling us how we would have higher standards in employment. However, the fact is that this legislation does not permit higher standards; it allows only a lowering of standards. That is why it is so objectionable.
I am out of time but could go on about this for ever. It is a disgraceful piece of legislation and I hope that this House will tear it apart.
Baroness Randerson (LD)
My Lords, “Take back control” was a tempting offer. EU processes are often slow and frustrating; Brexiteers call them undemocratic but, if anything, they suffer from democracy overload—layers of decision-making subject to repeated democratic checks and balances. On the plus side, so many cooks stirring the broth rarely get the recipe wrong. However, with this Bill, all pretence has been dropped. The DPRRC calls it a “hyper-skeletal” Bill giving “extraordinary powers” to Ministers and, importantly, says:
“Ministers, not Parliament, will be responsible for determining what stays, what goes and what, if anything, is to replace what goes.”
I wish to touch on two issues, the first of which is devolution. The Bill does not just take powers from Parliament; it also takes powers from the devolved Administrations. It un-devolves powers. Clause 2 allows UK Ministers to defer the guillotine until 2026, but Ministers in the DAs, which have previously held powers over many of these areas, are not able to defer the guillotine. I realise it will not worry the Government, but it is almost certain that the Senedd and the Scottish Parliament will not grant legislative consent.
On transport, this massive clearance sale of EU laws creates uncertainty. We do not know which will go and which will stay. The dashboard currently has 424 transport laws. When will the full list be published? Businesses must know where they stand: lack of democracy is compounded by a lack of transparency. How can we be debating a Bill which gives Ministers powers to change or repeal thousands of pieces of legislation, but we do not know how many and we do not know which ones. Clearly, the Department for Transport does not have the capacity to deal with this avalanche. This is the department that got 20 years behind in updating maritime legislation in line with our international treaty commitments. Rail cancellations and delays are at an all-time high, but the department does not have the time to introduce the Williams-Shapps reforms. It cannot find the time for long overdue legislation to regulate e-scooters. Our vehicle manufacturing industry risks terminal decline, but the Government cannot find time to update our vehicle standards legislation to bring it into line with the suite of EU vehicle safety regulations introduced last year. Those regulations save lives, and they help our manufacturers who need our standards to mirror those in the EU, which is their main export market. Over 4,000 pages of this legislation relate to aircraft safety, and I have yet to find anyone in the aviation sector who wants a comma of it changed. But the Government did find time last year to consult on their proposal to reduce our right to claim compensation for cancelled internal flights—an example, I think, of one of our Brexit freedoms.
Three years ago, the Government embarked on creating 32 common frameworks to regulate the way this legislation is dealt with alongside devolved Administrations. It was supposed to take a year; it has taken more three years. Finally, transposing EU law into UK law over a period of years is a reasonable aim; dealing with 4,000 pieces of legislation in 10 months by ministerial diktat is not. Either this Bill is a result of massive incompetence, or this is what totalitarianism looks like.
Lord Wilson of Dinton (CB)
My Lords, like previous speakers, I welcome the maiden speeches we are going to hear and say that this is a very friendly gathering, and they will find they enjoy taking part in it.
I regret to say they have chosen to speak on what, in my view, is a bad Bill. There is no way you can get away from it. It is a bad Bill because it will create uncertainty in business and in our communities, and your Lordships have heard about the number of organisations which have made that clear. It is a bad Bill because it could do real harm in all sorts of areas by meddling very fast with things that matter to the community. Above all, it is a shocking Bill because it will undermine Parliament to a degree which, I think, is unprecedented by giving sweeping powers to the Executive. It will make important changes as a precedent to the way we do legislation. It is very important that Parliament asserts itself. If we are going to restore power and sovereignty to Parliament, this Bill is not restoring sovereignty to Parliament but taking it away.
What is the strategic objective that this Bill is meant to serve? I cannot see one. The only one is the wish to purge our statute book of EU-derived law and get rid of a ball and chain. That is an emotion. It is a strong emotion, but there is a policy void, and most good legislation comes in a context that makes sense. The body of EU-derived law that we have in this country, which is going to be abolished, has been built up and assimilated with the British legal system over 40 years or longer, in close consultation with businesses and communities affected, environmentally and otherwise. To throw it all out overnight will create a huge void in our legal system. There is not enough time for government to devise new measures to fill that void, let alone consult with business and others about them. This is a task for 10 years, not 10 months. It will take a huge amount of Civil Service time, which I would have thought, if I was head of the service still, was needed for other things that are also high priorities in our community.
Does all the law need to be replaced? Does it all need to be abolished in this time, aside from the law that is exempted? Let us be honest: some of the things the EU made us do over the years has been good. I am not going to embarrass my former Ministers, but I have had Ministers who have been delighted that the EU has pressed the British Government to do things they could not get their colleagues to do. That happened more than once. There are many examples where we have benefited from EU law, not least in facilitating trade. I find it very hard to understand. The EU is why we want to diverge from our largest trading partner. Why are we so intent on creating trade barriers? Why do we want our legal standards to diverge and make trade more difficult? Why are the Government so determined to make life difficult for British business, which is what this Bill is actually about?
If the EU-derived law is doing harm, let us identify that, have legislation and talk about it. Here, as so often, the hard work has not been done. Brexit is past; what we need to do now is find ways of exploiting the opportunities. Positive, hard work needs to be done: we need to go through the legal system to work out strategies for those industries that could benefit and bring legislation forward to Parliament, restore parliamentary sovereignty and work out ways to take advantage of Brexit—not just express emotion about Europe. I have learned through my career that there is such a thing as good government and there is such a thing as bad government. This Bill, I am sorry to say, is bad government.
Lord Inglewood (Non-Afl)
My Lords, I must begin by welcoming the maiden speakers to this debate this afternoon. Thinking about the subject of our discussion, I cannot recall from my experience a more spurious case for legislation than the one advanced in support of this Bill. The reason I say that is that the legislation subject to the provisions of the Bill was put on the statute book by the British Parliament in the European Union (Withdrawal) Act. That is how we do these things in this country. It is a British law, like any other, subject to all the usual, time-honoured mechanisms, procedures, safeguards and conventions. The Bill adds nothing to what can be done already. It merely threatens further weakening of the checks and balances of our constitutional arrangements, as has been pointed out from all around the House, including by the Minister.
I probably ought to sit down having said that. But there is a lot of contextual noise that has a bearing on our debate. As the noble Lord who spoke before me said, Brexit is done. Brexit is now the one of the “vanished pomps of yesterday”—
“one with Nineveh and Tyre!”
What matters is the future. A Government’s convenience matters—particularly to the Government—but it is not a reason in itself to change our nation’s constitutional equilibrium and balance. What I might describe as “shorthand” legislation on contentious issues undermines the workings of our democratic process, which provides political legitimacy to our Governments and, in particular, to the acceptance of legislation with which one disagrees.
As has been said already in this debate, the relationship between the Executive and Parliament has already moved too far away from Parliament and should not be allowed to go further. Speakers have commented that many businesses of all kinds are, in the face of very considerable adversity, trading into the single market, albeit considerably less than hitherto. Gratuitous divergence from single market standards threatens industry and commerce, particularly those involved in supply chains.
The country is in a mess of all kinds. Resolving that should be our national priority, not promoting this particular piece of self-indulgent and frivolous distraction, trying to build a New Jerusalem in a few months. In short, it is simple: as has been said, reasoned change, good; what is proposed, bad. In a form of words I never thought I would use in this House, the case for this legislation is collapsing under its own internal contradictions; it should not be resuscitated and should be allowed to die where it falls.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I rise to speak with mixed emotions on this piece of legislation. On the one hand, I voted to leave, and I have had no reason in my mind to change that view. I think the world order based on the individual nation state, which emerged after the Treaty of Westphalia in 1648, has still some time to run. It may come to an end, but the nation state remains the basic building block, and that is why I voted to leave. As a result of that, my noble friend will be pleased to hear that I enthusiastically support the purposes behind this Bill—the “untangling” I think was the phrase he used in his opening remarks. But I am also a democrat, and I believe very strongly in maintaining an appropriate balance of power between the Government and Parliament.
Members of your Lordships’ House will be aware that, until Tuesday a week ago, I was for three and a half years chair of the Secondary Legislation Scrutiny Committee, and some of our work has been very kindly referred to already this afternoon. During that three-and-a-half-year period, I am afraid I saw the Government begin to accrete powers at the expense of Parliament in various ways, but specifically by the use of what I call framework or skeleton Bills, in which only the broadest sense of the direction of policy travel is given, and all the detail is given in secondary legislation. Of course, we know that secondary legislation has a much lower level of scrutiny and, in particular, that it cannot be amended. Over the past year, the SLSC has produced a number of reports detailing this. Government by Diktat has been referred to already. My last task as chairman was to sign off the report we made on this Bill, which we titled Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. From that, it will be seen that I am not entirely happy with the position we now find ourselves in.
There are three things my noble friend could usefully think about to try to bridge the gap with those who would wish to support the principle and yet have some difficulty with the practice. The first would be the establishment of a proper triaging process to distinguish what is serious from what is trivial. Of the 600 or 700 regulations the SLSC looks at every year, probably more than two-thirds are quite uncontroversial, and I dare say the same will be true when we come to consider the 4,000 or so EU regulations that will come before us. There is no need, in my view, to get the vapours about that. But we definitely need a better procedure to examine that small number of regulations that carry significant policy implications. The procedure should, in my view, at the very least carry the opportunity for Parliament to ask the Government to think again.
I have two further quick suggestions in my last 45 seconds. First, I hope the Government will undertake to produce impact assessments for all the regulations they intend to change. It is important, because good impact assessments are not just about the money; they are how we learn about the thinking that went on, how the Government reached the decision they did and why certain policy options were adopted and others were not. Finally, we need a statutory undertaking to undertake post-implementation reviews—PIRs—on all regulations. PIRs show what happens when hope meets reality, and it is an important part of good governance that Governments should learn from past mistakes. It will be exceptionally important that we do that as we enter this new phase in our way of governing ourselves. I hope my noble friend can consider those as a way of meeting some of the concerns around the House without losing his particular objective.
Baroness O'Grady of Upper Holloway (Lab) (Maiden Speech)
My Lords, I thank your Lordships for the warmth of your welcome. In particular, my thanks are due to my noble friends Lady Prosser and Lord Monks, who guided me through my introduction, which was no easy task. I am all too aware that I have a lot to learn. I also thank the House of Lords staff for their support. As a former TUC leader, it is good to know that so many brilliant staff here are proud trade unionists too.
Many of the rights and liberties we cherish as a country began with working people standing together. In 1968, Rose Boland and the Ford sewing machinists went on strike for equal pay, which was a catalyst for the introduction of the Equal Pay Act. Many years later, their story was made into a popular British film, “Made in Dagenham”, which opened to rave reviews right across the media. But back in 1968, some of those same newspapers were far from sympathetic to the women’s action—a reminder that those who demonise workers on strike for fair pay today may well find themselves on the wrong side of history. Of course, the UK’s Equal Pay Act proved limited. It took EU directives to introduce the much more ambitious principle of equal pay for work of equal value, so I am grateful for the chance to contribute to this important debate about a Bill which the RPC has deemed, in terms of its impact assessment, “not fit for purpose”.
So many of the rights we rely on as workers were derived from the EU—for example, maternity rights. It is true, as we have heard, that the UK now provides more weeks of paid maternity leave than the minimum the EU set back then, although, shamefully, UK maternity provision is still a lot less generous than in many other European countries. In any case, this is not the whole story. EU law introduced other vital protections, including paid time off for antenatal appointments; new health and safety rights; and, where reasonable for new mums, the right to return to the same job. For pregnant women and new mothers, these rights really matter too and should not be casually overlooked. There are many other examples where EU-derived law lifted standards here, such as protection for workers whose jobs are outsourced or whose company becomes insolvent; equal pay and pensions for part-time workers; and, of course, limits on dangerously long working hours.
Good law is rarely made within arbitrary deadlines, without proper parliamentary scrutiny, and without listening to organisations that have real-world experience, expertise and—if I dare say it—a bit of shop-floor wisdom. Instead, as parliamentary committees have warned, the Bill gives Ministers unprecedented powers to disappear vital laws from the statute book, or to replace them with something worse. Ministers promise that there is no intention to rip up or water down rights, but the Bill prohibits the inclusion of so-called burdens ordained to be an obstacle to “profitability”. If that is the test, it is no wonder that workers are worried.
There could be implications for Britain’s trade, and therefore jobs, too. No doubt this House will keep a close eye on the “level playing field” labour clauses enshrined in the agreement with the EU that the UK Government signed up to. Back in 2019, Ministers also promised a new employment Bill which many hoped would tackle the British disease of zero-hours contracts, bogus self-employment and fire and rehire, but we are still waiting. It seems that there is a difference between a promise and a guarantee.
From Carillion and Amazon to Sports Direct and P&O Ferries, many working people feel that the scales of workplace justice are rigged against them. Profits, boardroom pay and shareholder payouts are up, but real wages are down. Surely the priority should be stronger collective rights for workers—ensuring that the decent employer is not undercut by the bad—and growing a greener economy built on fair trade, fair taxes and fair shares of the wealth that workers create.
I am a girl from Oxford—town, but not gown. Early in my working life, I was employed serving tables in Oxford colleges, but thankfully not in the Bullingdon Club. Ever since, I have always believed that whatever our race, religion or background, everyone should be treated with dignity and respect at work. I know that these are values which many across this House share, and I hope they will guide us when considering this bad Bill’s threat to rights which workers across generations and borders campaigned so hard to win.
Baroness Andrews (Lab)
My Lords, it is a great privilege to congratulate my noble friend on her marvellous maiden speech. It could not have been better. It was much anticipated, and she lived up to every expectation. It was inspirational, because that is the business she has been in all her life. Her speech told us as much about her character as her career and convictions and the way she lives her values. She spoke with huge authority about the long fight for fairness in the workplace and for equal rights, but she did not, because she is so modest, tell us about her own role over the years in achieving so much. She brings all that together with moderation and real-world knowledge, which is a winning combination in this House. Above all, as the first woman leader of the TUC, she knows what it takes to change things for the better, which is probably why her choice of discs on “Desert Island Discs” included Sam Cooke’s “A Change Is Gonna Come”. I think we had a taste of that in her maiden speech, and I am sure that is what we can look forward to in her role in this House. We are proud not just on these Benches; she will be an asset to the whole House.
I turn after that moment of optimism to the grim realities of the Bill in front of us. In the words of one Minister in this House, the scale of the task it represents against a disingenuous and unachievable timeline is “herculean”. The deliberate risks that the Government are prepared to take in the face of huge public anxiety, with the rush to the cliff edge over which many vital laws will be thrown because they will be misjudged and misplaced—just lost in chaotic processes—are unconscionable.
The Bill tells us nothing. The Delegated Powers and Regulatory Reform Committee has had to invent a special term for it: “hyper-skeletal”. It seems to be just a bundle of twitching nerve ends. As for being surprised that there are so few impacts, how can they be assessed? Nobody knows or can predict at this moment which laws will survive or not, or why, whether and how they will be replaced or amended. We are looking at a dystopian future when we will know how bad the damage is only when it is done and it is too late to put it right. The president of the Law Society describes this dislodging of the law as “devastating”.
Some things are certain: first, that the task of choosing the fate of SIs has been delegated to civil servants across Whitehall, who will in effect have the power to decide on behalf of Wales and Scotland as well. Secondly, of course, as many noble Lords have referred to, the Bill gives Ministers undreamed-of powers to abolish and make laws without accounting for how they will work, powers that are justified, frivolously, as being driven by urgency—the only urgency being ministerial ambition and, clearly, the electoral timetable. In its report, the DPRRC simply calls for the removal from the Bill of those clauses which give excessive powers to Ministers. I hope the House will support that; does the Minister intend to follow the recommendations of the DPRRC?
Further, the Bill attacks the devolution settlement in principle and practice. Ministers in Wales and Scotland have not been consulted and they cannot extend the sunset clause. The Bill fundamentally invites and accelerates divergence and, with it, the further fragmentation of the UK. It includes the possibility of a UK Minister making regulations that impact on policy areas that have been devolved, with no requirement to consult or consent. It is hardly surprising that Wales and Scotland may well withhold consent.
Common frameworks have already been touched on—I speak personally this afternoon and not as chair of that committee. They are the positive and practical expression of how the union is building co-operation as the four countries work together across the internal market, enabling each country to make different choices without disruption. They affect everyday life, for everything from environmental safety to public health. They are underpinned by a cat’s cradle of hundreds if not thousands of complicated, interrelated SIs. Ministers tell us that if anything should go wrong with the judgment afforded these SIs, the disputes process in the frameworks will resolve any future problems. That is nonsense. If common frameworks are destabilised, there will be greater threats to the internal market and the devolution settlement. Will the Minister answer my other question tonight? Does he intend to press ahead with the Bill without the consent of Wales and Scotland, and will he, for safety’s sake, exempt common frameworks from the Bill entirely?
The explanatory memorandum says that the Bill is intended to return lawmaking powers to Parliament—a travesty of language and logic. The Bill empowers Ministers to make laws while leaving Parliament powerless. It is indefensible and must be changed in this House.
Lord Beith (LD)
My Lords, I congratulate the noble Baroness, Lady O’Grady, on her maiden speech. Her experience and knowledge of the world of industrial relations will be of genuine and timely value to this House in current circumstances.
When we left the EU, it was pretty obvious what we should do about European law. We should take a snapshot of it, which we now call retained European law, and amend it, as need and as changing circumstances dictated, much as we would other forms of existing law. We should bear in mind that this law had not been handed down like tablets of stone; it had been the subject of extensive processes of amendment and examination in the European Parliament in which British MEPs played a significant part—including, I trust, the Minister when he was in that role. Instead, however, we have a triumph of dogma over common sense, in which all this European law is supposed to be junked by Christmas, except perhaps for those laws that will appear on a list, which either exists and is not disclosed by Ministers or is a blank sheet of paper—which, in a way, is a little more worrying. However, their unwillingness to tell us what will be on the 2026 list illustrates the contempt with which Parliament is viewed in this whole process. This is not taking back control but is a massive surrender of parliamentary sovereignty and is augmented by numerous other provisions in the Bill allowing for statutory instruments to change the content of retained EU law.
What are the processes by which Parliament will make changes to retained European law? It will be via negative instruments, which are not even guaranteed a debate in the Commons, and affirmative instruments, which are subject to a vote in both Houses but cannot be amended in any way. In this House, there are those of our own Members who question whether we should reject a clearly and plainly defective statutory instrument because of the primacy that is supposed to attach to the elected House. If we accept that view, the process is null and void. If there are no circumstances in which the instrument can be rejected for lack of appropriate amendment, the power is not a real one. EU law covers areas where detailed discussion and assessment will be required—environmental standards, consumer protection and water quality—and the only real negotiations may be between the Government and the very interests we are trying to regulate, some of which have close links to this Government anyway.
I have described the process as a triumph of dogma over common sense. That is also illustrated by the name change, “assimilated”—of course, we have to describe it as that because there are those who cannot bear to admit that these laws were made in Europe. They were—it is a fact; it is history; get over it and accept that they are currently part of our system. The other weakness of the Government’s position is that they have set themselves an examination that they are bound to fail. The department simply does not have the qualified personnel to rewrite between 3,000 and 4,000 pieces of legislation, primary and secondary—it is not there. Week by week in the Joint Committee on Statutory Instruments, I have observed what effort is required to make secondary legislation compliant with the parent legislation and to make it good law capable of being used by those among whom it will be enforced. We saw during the Covid period that if the time pressure becomes severe, serious mistakes are made. We saw serious mistakes being made, with people being arrested who should not have been. That kind of consequence will follow if we rush this process through.
It is difficult to find anything favourable to say about the abandonment of a fairly sensible process of gradual modification of law where required for one which junks laws and has no adequate process for replacing them. I am afraid that the Executive have put their tanks on Parliament’s lawn, and they should be taken away.
Lord Janvrin (CB)
My Lords, I too offer a warm welcome to our two maiden speakers in this debate this afternoon.
As the debate is undoubtedly demonstrating, there are many features in this deeply controversial Bill which will merit a lot of discussion in this House, not least the pressures of the sunset clauses and the interests of devolved Administrations. In the limited time available I want as a member of the Delegated Powers Committee to concentrate on the issues raised by its report on the Bill.
One of the more compelling political arguments deployed in favour of Brexit was that the European Union lacked democratic accountability. It is ironic therefore that the Bill gives, in the words of the Delegated Powers Committee report, “a blank cheque” to Ministers to revoke, replace or update retained EU law by statutory instrument—a form of legislation which is subject only to limited scrutiny by Parliament. The Delegated Powers Committee report sets out at some length why this blank cheque is unacceptable and why some of the key clauses in the Bill confer inappropriate powers on Ministers.
The House will no doubt explore these issues at length in Committee, but I want to make a wider point. Many of the concerns expressed in the Delegated Powers Committee report would not arise if secondary legislation was subject to a process of more effective scrutiny by Parliament, both by the Lords and the Commons. If ever there was a reason for updated procedures to empower Parliament—in particular including the Commons—to sift, scrutinise, debate and, where appropriate, amend secondary legislation, it is surely this Bill.
Effective scrutiny makes better law. This issue affects every citizen—all of us. We need a new approach and we need a new Statutory Instruments Act. We can perhaps discern something of a drumbeat in favour of reform in the recent reports from the two scrutiny committees and the debate we had on them last month in this Chamber. The Hansard Society will set out its ideas later this week.
Whatever else it does, the Bill highlights dramatically the need for effective scrutiny of secondary legislation. This issue goes to the very heart of the balance of power between Parliament and the Executive. It is ultimately about public trust in our democratic system, and we ignore it at our peril.
Baroness Hoey (Non-Afl)
My Lords, for a number of years I was a member in the other House of the European Scrutiny Committee, under the formidable chairmanship of Sir William Cash—I expect that he will be a noble Lord eventually. I say “formidable” because he had a fervent eye for transparency and detail and a determination for scrutiny to be carried out with an attitude almost of zealotry. Sadly, the scrutiny that we had there did not mean that we could amend or stop the huge weekly package of new EU directives and regulations that came through. Occasionally, we would get a debate, if we or another Select Committee could manage it, but the result was always, as we know, that once the EU had agreed to something, it was difficult to change it. Therefore, I welcome a Bill that abolishes the supremacy of EU law.
I find it a little depressing that many in your Lordships’ House seem to have more faith in the European Union to deliver than in our own country’s ability to decide its own laws. There seems to be this misty-eyed view that the only institution that could really be trusted could never be our Government—of whatever political party—but could only be the European Union. Yet we know that so many of the rights that we got came originally from the campaigning of trade unions, which got Labour and Conservative Governments to bring into law some of our rights. It was not just about the EU.
rule of a foreign institution. Already we have seen dozens of changes to regulations brought in which have had no discussion or democratic consent in Northern Ireland. Even if the Assembly was sitting, it would make no difference. The EU makes changes which GB does not have to follow, but in Northern Ireland they do.
Noble Lords will be fed up with me saying this, but I reiterate that we in Northern Ireland had the same ballot paper on the referendum. Yes, there was a majority to remain, just as there was in Scotland, but at least Scotland is covered by this Bill under the arrangements for devolved Administrations, while Northern Ireland cannot benefit from any of it. The protocol carefully plotted by the EU, encouraged by the Irish Government and, sadly, agreed to by our Government, was not about trade; it is about trying to ensure that the divergence between Northern Ireland and the Republic of Ireland is reduced. By retaining Northern Ireland in the same single market as the Republic, under the same customs code and VAT regime, and being governed by the same laws, Northern Ireland is slowly being pushed away from Great Britain, our biggest market, and forced into an economic Ireland, which is, of course, a foreign country. This may have been a grave mistake by our negotiators, but it was certainly not a mistake by the Irish Government. It was an assault on Northern Ireland’s constitutional position and, sadly, our Government naively went along with it.
Obviously, in Committee there will be changes to this Bill, and it might get greater scrutiny. However, I say to those here who are concerned about the scrutiny of this Bill—and plead to noble Lords to remember—that, while we are talking about scrutiny of something that Ministers at least can get involved in, in Northern Ireland we are putting through more and more regulations from the European Union that nobody in this House, nobody in Northern Ireland and nobody in the Assembly, if it was sitting, has anything to do with. That is a disgrace for anyone who calls themselves pro-union.
Lord McLoughlin (Con)
My Lords, this Bill has come in for sustained criticism, not least from the Delegated Powers and Regulatory Reform Committee, which I have the privilege and honour of chairing. I would like to say a few words about the report that we published last week but also say that I hope that the Government are very much in listening mode. I very much welcome the fact that the Attorney-General has been at the Bar of the House for a very long time during this debate.
This Bill represents a significant departure from the line that the Government have taken since 2018. Once we had left the EU, they said that it would be for Parliament, rather than just Ministers, to decide which elements of EU law would be kept, amended or repealed. The Government have now backtracked on that, which I very much regret.
Secondly, we felt that the Bill was so lacking in detail that it was not possible to describe it as skeleton or skeletonian; it is basically just a framework for allowing Ministers to decide what happens to whole swathes of EU-retained law. The devil will be in the detail and, unfortunately, the detail does not appear in the Bill. It will be in unamendable statutory instruments later this year and possibly even up to 2026. From the Government’s point of view, all the scare stories that will arise during that period as to what changes may or may not take place will cause them a great deal of trouble.
Thirdly, Parliament is very much bypassed. The main constitutional argument for Brexit, for that utopia that was going to be reached, was that Parliament would take back control of making our laws from the EU. However, many of the changes to the EU-retained law foreshadowed in this Bill will not be for Parliament in primary legislation but for Ministers—and Ministers come and go, as we have seen. Civil servants and parliamentary counsel stay there for a very long time, able to apply the slant that they wish. There must be a way in which scrutiny takes a much stronger role in these matters.
Fourthly, talking of scrutiny, the delegated powers in this Bill are only subject to the negative procedures unless they amend an Act of Parliament, in which case affirmative procedure will apply. I am glad that the Government have been applying the affirmative procedure where statutory instruments amend Acts of Parliament, and I am glad that there is a sifting procedure enabling negative legislation to be upped to the affirmative procedure. However, there are likely to be many important and controversial changes in the pipeline that will not amend Acts of Parliament. In those cases, and only subject to sifting, will the negative procedure apply, meaning that changes will not be debated in Parliament at all.
There is talk of this Bill being extended to 2026. Obviously, a general election will fall in 2025 at the latest. The Government should think very carefully about what is already in the Bill. A lot has come forward from this debate so far which shows how very unsatisfactory this is. Everybody accepts that new procedures will now be necessary, but they should be procedures which enable Parliament to have some scrutiny. At the moment, this Bill is an “all powers, no policy” Bill. That is not acceptable and should not be acceptable to Parliament.
Lord Monks (Lab)
My Lords, I am delighted to welcome my noble friend Lady O’Grady, my close colleague and friend. She will continue to liven up our debates with her passion and commitment, as she has done this afternoon, and we look forward to many future contributions. We also look forward to the contribution of the noble Baroness, Lady Bray, shortly.
As the noble Lord, Lord Janvrin, said, the Government have produced a blank cheque for themselves to obliterate most of the 40 years of UK membership of the EU. Because of the skeletal nature of that Bill, we do not know what we are approving today except for some procedural issues which we will debate as this Bill goes through the House. A purge is going on: a purge of what the EU years did for this country. I happen to think that most of them did very well—plenty probably did not—but surely the resources that are going into this purge could be better deployed. By the way, perhaps we could be told how many civil servants have been transferred to work on this Bill, because it seems that a lot of people and resources are being thrown at a problem which is being totally exaggerated.
My focus today is on employment law, a topic that I am sure the Government have in their gun-sights—they have ever since the Maastricht treaty. In recent debates on EU employment law, the Minister has liked to downplay the EU influence on workers’ rights in the UK. He is right that many of the UK’s positive employment laws are homegrown: in fact, they were enacted by Labour Governments. But it is completely wrong to downplay the EU influence at the same time.
There are 60-odd laws on employment with an EU origin, but I will quickly pick out four areas that I want to focus and comment on. The first is TUPE, the regulations on transfer of undertakings. They protect workers’ terms and conditions on a change of employer; for example, under a privatisation. Is that really for the chop? Are the Government going to come forward on that issue?
The second is working time, which was a controversial issue in its day but is not any more. I draw particular attention to the provision on four weeks’ paid holiday. As the Minister has pointed out previously to the House, the average Brit might get more than that, but there are many who do not. By the way, before that was introduced, British workers were lucky to get three weeks’ paid holiday a year. Is that underpinning to be binned? It is not archaic or out of date.
The third is the requirement for a company to provide information and consult on changes in company strategy and key issues such as redundancy, and the related provisions for large multinational companies to have European works councils. When I left the European Trade Union Confederation in 2011, we had about 750 EWCs, with UK companies and workers playing a prominent part in 500. Are those very positive processes—European works councils, and information and consultation—to be consigned to the knacker’s yard in future?
Fourthly and finally, the EU took a particular interest in vulnerable workers: part-timers, fixed-term workers and agency workers. Are they now at risk?
The Government are very good at inventing problems, when they have enough problems of their own to deal with. Noble Lords will have a crucial part to play in combating that tendency, playing their part with vigour and commitment in getting a better outcome than this Bill will ever do.
Baroness Parminter (LD)
My Lords, for those people who voted for Brexit to take back control and for sovereignty, this Bill shows what a threadbare bargain they received: it completely sidelines Parliament and gives power into the hands of the often nameless and faceless—not bureaucrats in Europe but equally unknown to the man and woman on the Clapham omnibus—Ministers. Others have made that case far better than I can. I want to concentrate on the environmental impacts of this legislation, which the noble Lord, Lord Wilson, so powerfully described as “bad government”.
As others have said, over half of all the pieces of legislation on the dashboard come down to Defra, a small department in the scheme of things. The opportunity costs are really far too high at a time when our environment here in the UK is so under threat and has been laid bare by the OEP to such a degree, particularly when you consider that environmental legislation is difficult, complex, interconnected and long-term.
Equally, we do not know what the process is. There is no guarantee that some of the very powerful protections that the EU has given us over the last 50 years will remain. We may see more people swimming in sewage on British beaches. The Minister may shake his head, but I pick up the point from the noble Baroness, Lady Hoey, who asked: why do we say that Europe has done so much for us? Before the EU, we were known as the dirty man of Europe when it came to beaches. We might be able to do better, but the Bill stops us getting better legislation. I will come on to that in a moment.
Our bees and pollinators may be subject to neonicotinoids, which kill them. We may get cattle-fed beef in British farming, let alone it being imported, if we get rid of the hormone regulations. As the noble Baroness, Lady Bakewell, rightly said, the regulations on habitats are critical pieces of legislation which fundamentally protect our wildlife. It is no good for the Government to set brilliant targets to reverse the effects of species decline—I applaud them for doing so—if we do not protect the habitats where those species live, breed and feed. It is absolutely critical.
As I have said, and as the noble Baroness, Lady O’Grady, said so powerfully in her excellent maiden speech, the Bill says that we cannot make legislation better. That applies to workers’ rights and environmental rights, because of the fundamental point in Clause 15 about how profitability is the underlying element. Indeed, the Minister talked about profitability in his opening remarks. So we have no guarantee that we can improve our legislation in the future. I am delighted that the Minister is shaking his head. Perhaps he can give us in his summing-up some firm guarantees that we can find ways within the scope of the Bill to enhance legislation. That would be an important statement if he could make it.
Other noble Lords have made the point that businesses do not want this. I will not repeat the point, but I will add another person who has said that they do not want this legislation: Chris Skidmore, who was commissioned by this Government to look at how we will bring forward the net-zero targets. This Government desperately need to do this, and I know that the Minister is personally very committed to it. Chris Skidmore’s review said that the Government wants consistency in regulation, yet the Bill does exactly the opposite.
I look forward to the maiden speech of the noble Baroness, Lady Bray of Coln. I am sure we may not always agree, but I look forward to speaking to and debating with her as she joins our Environment and Climate Change Committee.
The Bill is putting ideology above Parliament, people and our precious planet. This House must muster all its efforts to oppose it.
The Earl of Kinnoull (CB)
My Lords, I will address matters concerning devolution and the trade and co-operation agreement. I have noted before that the number of pieces of law concerned is a rapidly moving target. There were 2,400 in the Explanatory Notes accompanying the Bill into the other place in September, 3,200 in the revised notes for us in January, and 3,745 as I speak today. But the explanation on the first web page of the dashboard notes that the dashboard
“is not intended to provide a comprehensive account of REUL … that sits with the competence of the Devolved Governments.”
So the dashboard will never be a complete catalogue of REUL and cannot be relied on by the devolved Governments.
The week before last, I visited the Welsh and Scottish Parliaments with the European Affairs Committee. In both places, we had detailed discussions about how the Bill affected them. It was clear that an unknown proportion of the unknown number of REUL pieces of legislation are wholly or partly devolved matters, and that at least a part of the unknown unknown pool of REUL yet to be discovered seems certain to include things that affect the devolved Governments.
For the partly devolved REUL, clearly and case by case, a careful discussion needs to take place among the Governments concerned. Can the Minister assure the House that this is taking place? Can the Minister tell us how that process works for wholly devolved REUL that was made before devolution? For wholly devolved REUL made after devolution by the devolved Governments, can the Minister describe how support to the devolved Governments is being given, to identify, analyse and, if need be, help to legislate?
In any event, like many here today, I am highly concerned about the capacity of Whitehall to deal with matters in the timescales. Following my visits to Cardiff and Holyrood, I am certain that the necessary capacity in the devolved nations is simply not there.
I finish on my home territory—and a point at least as important as the devolution one that I have just made. Clearly not all REULs are about reindeer movement, the example that the Minister wittily gave recently. I am very concerned that some of the REULs could be directly relevant to our treaty arrangements with our closest neighbours and biggest trading partners under the trade and co-operation agreement. Of especial concern is the potential to interact with the level playing field provisions, particularly those on employment and environmental standards. I feel that anything of that nature would naturally need to come before Parliament for scrutiny and agreement, and those REULs would need separate treatment under the Bill.
In the materials accompanying the Bill, we have no document detailing how the Government are ensuring that the Bill will not lead to any breach of the trade and co-operation agreement or describing the process that all the various UK Governments will go through to ensure that. I have asked my three questions already, but here I would urge the Minister to commission such a document forthwith.
Lord Heseltine (Non-Afl)
My Lords, I salute the two excellent maiden speeches that we have heard today. I am one of the few surviving members of Margaret Thatcher’s first Government and I am amazed to find myself sitting here listening to the arguments from the Front Bench as to why her greatest achievement should be sacrificed. I remember Arthur Cockfield: he is not, perhaps, a household name today, but if you look him up in Wikipedia, you will see him described as the “father of the Common Market”, and that is right. Margaret—not a natural supporter of foreigners—saw very clearly that the mistakes of the common agricultural policy must not be made again, so she sent Arthur Cockfield to Brussels as a commissioner in order to make sure that British self-interests were dominant in the negotiation of the single market.
The single market was historically, perhaps, one of the most extraordinarily successful concepts ever developed by humankind. The implementation was difficult, against difficult economic circumstances and endless forms—small employers at night, having done all the work themselves, finding yet another form—and the flame was fanned by those two great arbiters of British self-interest, Rupert Murdoch and Conrad Black. There was a growing resentment, and John Major inherited the problem. “Go to it, Tarzan”, he said to the Tory Party conference.
I was entrusted with the first serious attempt to look at the real effect of all these wealth-destroying, uncivilised, burdensome regulations. I went to it with all the enthusiasm that I hope noble Lords would expect of me. What did I do? I was entrusted with a Minister of State in every department to worm away, dig it all out. I set up public/private-sector committees for each field of activity, led by some of the most strident critics of the regulatory process. I actually published 3,000 of these regulations, so that nothing was hidden from anybody. “Let’s know what we’re all talking about in detail: here they are, great volumes of stuff”. I did something else: I wrote to every trade association and I said, “Look, I’m your man. All you’ve got to do is send me a regulation as drafted that is holding your members back and undermining the country, and send me an alternative draft”. I did not get any replies.
The issue is, of course, central to Brexit. Once the decision was taken—I was rather against it—it was important to get on and do something about the new world, because the uncertainty was bound to be burdensome and frustrating. I thought it was absolutely right that the principal Brexiteers were put in charge of the show: Boris Johnson, David Davis and Liam Fox. They, after all, presumably knew what the opportunities were, what needed to be done and what was holding us back, so they were in charge. Well, that did not last long. We had Jacob Rees-Mogg, with his Robespierrean fanaticism, and a whole new government department called Exiting the European Union. Let us not get carried away: the nameplate on the door changed. With Robespierrean fanaticism, he threw himself into the task. There was an uncharacteristic lack of history here, because of course Robespierre followed Louis XIV to the guillotine. Well, it is a more generous and kinder world that we live in today. Four Prime Ministers later, Jacob Rees-Mogg is back on the Back Benches. Dozens of Ministers have lost their jobs. I say to my noble friends on the Front Bench, “Beware: here today, gone tomorrow”. That has an ominous ring for anyone who becomes mired in this Brexit saga.
Lord Evans of Rainow (Con)
My Lords, I am so sorry—the noble Lord’s time has run out.
Lord Heseltine (Non-Afl)
My Lords, I am in favour of free and open discussion. I do not want the noble Lord silenced in any way: the Floor is his.
Well, here we are, another vacuum in the Brexit debate.
The essence, of course, is that, for all the empty generalisations, all the promises and all that new world, there was nothing there. This Bill demonstrates beyond peradventure that they did not know what they were doing. Six years on, they did not know what they were doing. They have now actually created a giant question mark over a whole realm of regulations that are the custodian that separates us from the law of the jungle. They are what defines a civilised society. At a time of economic stress, when we need desperately to increase the levels of investment in our economy, what have they provided? A giant question mark for anyone seeking to know whether to spend a penny piece in the United Kingdom economy. I beg noble Lords not to let this legislation leave this place unscathed.
Lord Young of Cookham (Con)
My Lords, it is a pleasure to follow my noble friend Lord Heseltine. Like him, I am a fellow survivor of Margaret Thatcher’s first Administration—although I was but a humble spear carrier at the time. I look forward to the maiden speech of my noble friend Lady Bray who, like me, before she came here represented Ealing and Acton in another place—a constituency of beauty and contrast. As I remember it, all the beauty was in Ealing and all the contrast was in Acton.
About two hours ago, the noble Baroness, Lady Chapman, in introducing this debate, said that it was not about Brexit versus Remain: it was about the Executive versus Parliament. Control may well have been brought back, but it has been delivered to the wrong address: to Whitehall instead of Westminster.
Following what my noble friend has just said, I have left the Government five times—more than anyone else in this Chamber—but only once voluntarily. That was when Boris Johnson illegally prorogued Parliament. My concern then, and my concern now, is that, in the legitimate delivery of the referendum decision, the Government have done, and continue to do, injury to Parliament. They are repeat offenders, and we got used to this under the last two Prime Ministers, but the present one has inherited this poisoned pill and we should help him by amending it.
Last Thursday, I tuned in to a Zoom call organised by the noble Lord, Lord Anderson, and listened to Ruth Fox of the Hansard Society. Her verdict in a nutshell was that the powers in the Bill transfer future democratic oversight of any changes to REUL away from Parliament. The Bill itself does not specify the Government’s intended policy changes in respect of any area or piece of REUL. We are being invited to give Ministers a cliff-edge power without knowing what, if any, pieces of REUL may be thrown off the cliff on sunset day.
So far, no one in this debate has explained the indecent haste proposed in the Bill. Everything else to do with Brexit has taken some time. It has taken about seven years to get this far, but we now have this mad rush to disengage from inherited legislation, contradicting, as we heard from the DPRRC, pledges by the Government that Parliament would be the agent of substantive policy change in these areas. Noble Lords do not have to read its report; they just have to look at the headings: “Bypassing Parliament” “Uncertainty” and “Lack of justification for the powers”. The Regulatory Policy Committee said that the Bill’s impact assessment is “Not fit for purpose.” It said that the Government needed to
“provide a stronger argument for why the sunsetting of REUL is necessary, as opposed to merely setting a deadline to complete the review.”
Grant Shapps told the Regulatory Policy Committee:
“Efforts are also underway to understand the potential impacts of sunsetting.”
That is an astonishing confession. Those efforts should have preceded the introduction of the Bill, not followed it.
We are all entitled to have reservations about this Bill, but I read in the Telegraph on 28 January that my noble friend Lord Hannan believes that those who do so are “demented”. He wrote:
“To overcome the bureaucratic inertia, ministers came up with the sensible idea of a sunset clause, whereby all EU rules would lapse at the end of this year unless expressly readopted. The demented response to that proposal, not just from Opposition parties but from civil servants, is revealing.”
I say to my noble friend that it is not just opposition parties and civil servants who suffer from this sad lack of short-term memory loss and an inability to articulate themselves clearly, but two Select Committees of this House, about half the Conservative Peers speaking in this debate, the CBI, the City, constitutional experts and the law. I suspect that the last person who called the noble and learned Lord, Lord Judge, demented was sent down for a few hours to cool off. If ever there was a Bill the second Chamber should revise, it is this one.
Baroness Crawley (Lab)
My Lords, it is a delight to have heard from my noble friend Lady O’Grady, and I look forward to the maiden speech of the noble Baroness, Lady Bray.
The Bill has already achieved a great deal: it has brought together the UK business sector, trade unions, environmental organisations, Justice, the consumer protection world and Chester Zoo in one almighty cry of, “No, no, no.” As we have heard from many noble Lords, the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee have also not pulled their punches in their withering verdict on the Bill.
Let us get this right. At a time of unprecedented economic woe in our country, with food banks doing a roaring trade and exporters on their knees, the Government think it is a good idea automatically to revoke or sunset most retained EU law at the end of the year, law which underpins so much of the daily life of the country. It is law which underpins the common framework, the process by which the new UK internal market is being built post Brexit; consumer laws which protect consumers from scams and rogue traders—as a vice-president of the Chartered Trading Standards Institute, I see that the Bill as it stands could make convictions for consumer rights offences unsafe—as well as laws on food safety, product safety, animal health, intellectual property and weights and measures regulations. If I remember rightly, it was a row over weights and measures in a market square in Tunisia that led to the Arab spring. Goodness only knows what this reckless legislation will lead to.
We have no idea, as the noble Earl, Lord Kinnoull, said, what the final law count will be. It is 3,745 and counting. Goodness knows what it will be by the end of this debate. The retained EU law dashboard on GOV.UK talks about an “authoritative” catalogue of law up for review. It fails to say that it is a “comprehensive” catalogue, however, because new laws are being found almost all the time. The hapless Minister in charge of this sunsetting exercise in each department may well be pushed to leaving their clothes in a neat pile on a beach in Florida, John Stonehouse-style, through the sheer pressure of it all.
My opposition to the Bill is based on the harm it will do to our country and this Parliament. The TUC is, of course, worried about the potential loss of worker’s rights, including the loss of protection for pregnant women and rights to maternity and parental leave. Thirty years ago this year, the EU maternity leave directive became law against the ludicrous obstruction of the then Conservative British Government first opposing it, then watering it down, and then delaying it as much as possible. As chair of the European Parliament’s women’s rights committee at the time, I played a small part in getting it through, and millions of British women have subsequently benefited. So when Ministers say, “Your rights at work are safe with us in this Bill”, I know from experience that they have form and that we have every right to be concerned about the Bill.
Deregulation in order to compete—the famous Singapore-on-Thames—is at the heart of the Bill. Call me old-fashioned, but I will oppose the Bill on the basis that to be a leading force in the world in 2023 we need to be the best: the best in standards and rights for the British people, and the best for our accountability to our Parliament.
Lord Hannay of Chiswick (CB)
My Lords, the Bill we are debating today surely represents the triumph of ideology over common sense and pragmatism. A huge number of existing laws are to be scrapped at the end of this year not because they are bad laws or inadequate laws, but simply because they are laws based on decisions taken collectively by EU institutions of which we were a full and active part when they were adopted. They are to be scrapped irrespective of whether by that date they have been replaced by a new statute or not.
To look first at the quantum of laws to be scrapped in this way, even the Government do not know the exact number. It is somewhere in the region of 3,000 to 4,000, and the figure is augmented by new discoveries in the National Archives which means it keeps going up. To initiate a vast scrappage scheme without knowing what you are scrapping is surely unprecedented. Whatever the final figure turns out to be, the replacement of this massive body of law will absorb the Civil Service and Parliament to the exclusion of other, perhaps higher, legislative priorities. Is that a sensible choice of priorities? If an oversight is discovered later this year or after the guillotine comes down at the end of it, there will be a void in our statute book on a matter that could be of great significance and importance for people’s everyday lives.
Secondly, look at the replacement process proposed in the Bill. This represents a massive extension of executive power, with Parliament having little or no say given the inadequacies of parliamentary oversight in the statutory instrument process. You might think it is an odd interpretation of taking back control. There will be little or no time to conduct the wide consultancy processes which ought to precede legislating on complex or sensitive matters.
Add to those drawbacks a third category: the implications for devolution and the relationships with the devolved Assemblies. Many of the laws to be scrapped cover matters that have been devolved to Scotland and Wales. What say will they have in the decision to scrap one of their laws? They will have none, so those devolution complications will necessarily take a good deal of sorting out.
Fourthly, what will be the implications for our relationship with the EU if the replacement legislation diverges too sharply from that of the EU on matters that fall within the ambit of the trade and co-operation agreement? That agreement has provisions for what is known as a level playing field, and it has provisions for the other side to compensate itself for any failure to maintain that, possibly leading to worsening of the already suboptimal conditions for trade between us in goods and services for what remains our biggest overseas market.
Of the four major categories of defects in the Bill I have identified, on not one are the Government in a position to provide clarity or reassurance at this point in time. They really are offering an irrevocable leap in the dark with this overhasty legislation. What will be the consequences for investment, so necessary if we are to achieve the growth the Government are promising? Sharply negative if the view of the director-general of the CBI is anything to go by.
The conclusion surely is that this Bill in its present form, with its detailed provisions and cut-off deadlines, requires meticulous scrutiny and, very probably, considerable amendment. No one, so far as I can see—and no one who has spoken—is arguing that no retained EU law should be replaced. This is simply not the best way to do it. Would not a sectoral approach be better than this sledgehammer method? Would not a longer timetable make sense? If we legislate in this way in haste, repentance will be painful and durable for an economy not currently in particularly robust condition.
Baroness Bray of Coln (Con) (Maiden Speech)
My Lords, I start by thanking noble Lords for the wonderfully warm welcome they have given me since I arrived here just a few weeks ago. It has meant a great deal to me. My special thanks must go to my mentor, my noble friend Lord Ashton of Hyde, and to my two supporters, my noble friends Lady Finn and Lord Maude of Horsham, for whom I worked as his Parliamentary Private Secretary when he was Minister for the Cabinet Office and responsible for the coalition Government’s world-leading efficiency reforms.
I also offer huge thanks to all the staff here, who have been so helpful in every way. I single out the doorkeepers, who have always been ready to redirect me as I try to find my way around the building—I still have not been entirely successful—and the digital services team, who continue to show the patience of Job as I come seeking help with my iPhone and iPad, yet again.
My journey to this place really started when I was around 12 years old. My father loved politics and was always keen to discuss the latest issues, especially over Sunday lunch. My mother and older sister were not at all interested, so he settled on me to show an interest. He loved picking a subject to debate and then putting me on one side and himself on the other. I did my best. The next Sunday, he would announce that we were going to do the same subject again but we were going to swap sides. Well, I certainly learned that there are at least two sides to every issue, and I began to rather enjoy it all.
After leaving St Andrews University, I went on to train as a radio journalist, working first for British Forces Broadcasting in Gibraltar and then LBC Radio in London. From there I was asked to join Conservative Central Office to head up the broadcasting unit in the press office. I met so many talented and interesting politicians while doing that, quite a few of whom I have met all over again here.
I later became leader of the Conservative group, having been elected in 2000 to one of the first tranches of the London Assembly at the GLA for the seat in which I live, London West Central. This was my first experience of proper, elected political life. I was learning it at the feet of possibly London’s most prominent and canny politician at the time—Ken Livingstone, London’s first elected mayor. As I said, I later became leader of the Conservative group. It was a great honour and also quite a challenge, but I like to think that the nine of us were quite an effective force at City Hall.
I stood down from the GLA before the 2008 London election because, by then, I had been adopted as the parliamentary candidate for the newly created constituency of Ealing Central and Acton. It was, I was told, the most critical marginal seat in the country, but Labour-leaning; so no pressure then. I won the seat in 2010, then Labour won it back off me in 2015—but what a five-year term it was. I loved every minute of it. The constituency is a fascinating mix: some communities are wealthy, some are a lot poorer, many different languages are spoken and it is wonderfully diverse. It was a great education for me as I sought to help my constituents on a huge variety of issues.
And now, I am honoured to be standing here in this place. As to the debate in which we are participating, I am in danger of being in a bit of a minority, but I fully support what the Government are aiming to achieve with this Bill—which is, essentially, to cut back on unnecessary rules and regulations so that we can more easily and successfully grow and flourish as a nation. I applaud the ambition of cutting red tape where it is not needed, to ensure that businesses can spend more time transforming and growing their business rather than filling out forms.
I know some may worry that this Bill may weaken the laws that protect our environment but, at Second Reading in the House of Commons, the Minister made clear that the Government will
“use the powers in the Bill to ensure that our environmental law is functioning and able to drive improved environmental outcomes, with the UK continuing to be a world leader in environmental protection.”—[Official Report, Commons, 25/10/22; col. 186.]
Let us also focus on some of the additional benefits that our renewed freedom outside the EU has already brought us. For instance, it allowed us to develop and roll out our highly effective Covid vaccination programme at critical speed, long before the EU had got its act together. I appreciate that the process of disentangling our laws will not always be easy, but it would be extraordinary, surely, if, after all we went through with the referendum, ultimately choosing to leave the EU, we then decided that we were quite happy continuing to live under EU law after all. I am confident that we can successfully take control of our legal affairs once again as an independent nation state.
Baroness Lea of Lymm (Con)
First, I want to say how delighted I am to follow the excellent maiden speech of my noble friend Lady Bray. I very much congratulate her and, given her illustrious career, I am sure she has much to contribute to this House. I look forward to being her colleague for many years to come—although I am not sure whether that is a threat or a promise.
Moreover, I wholly concur with my noble friend’s comments on the Retained EU Law (Revocation and Reform) Bill. We left the EU over three years ago and the transition period ended over two years ago. It is surely right that British authorities should be able to decide which rules they wish to retain, scrap or change for the benefit of the country. I do note the concerns over parliamentary scrutiny that have been expressed here this afternoon.
The Government’s policy paper The Benefits of Brexit, issued in January 2022, discussed the potential new freedoms. It said:
“We now have the opportunity to set ourselves apart and deliver bespoke UK-orientated regulation that is primarily focused on delivering growth, innovation and competition while minimising burdens on business.”
I pretty well agree with that. The Chancellor’s Edinburgh reforms relating to financial services, part enabled by Brexit, and the Financial Services and Markets Bill, are also encouraging developments.
To put the Bill in a wider context, quite simply, we now have freedoms that we did not have in the EU, and not just regulatory freedoms. Trade is clearly, potentially, a significant winner. The free trade agreements with Australia and New Zealand are our first “from scratch” FTAs in over 50 years; I remember 50 years ago. And membership of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership—try saying that when you cannot speak—currently being negotiated, should deliver notable benefits.
If I may be allowed to digress into broader economic issues, there are, of course, many who voice concerns over the economic impact of Brexit. It is reasonable to suggest that the introduction of various trade restrictions following Brexit has dampened trade; but the trade data are not easy to interpret—and my goodness me, have I spent my life doing that. The extended lockdowns, supply chain disruptions and the global recession have had a major impact on trade, and data collection changes by HMRC have muddied the waters even further. But the latest data from the ONS—the Office for National Statistics—show that goods trade picked up very strongly in 2022, despite Brexit, after weakness in 2020 and 2021.
Concerning the economy more generally, I remember well the Treasury and the Bank of England uttering dire warnings about Brexit’s impact back in 2016; and the IMF and OECD chimed in. Suffice to say, “Project Fear” did not materialise, but identifying Brexit’s economic impact now is fraught with difficulties, not least because of the disruptive lockdowns and the sharp increases in energy prices, exacerbated by Russia’s invasion of Ukraine. Any assessments, therefore, must be treated with the greatest caution. Let us note that the OBR’s much-quoted 4% negative impact on productivity is basically an assumption based on external forecasts. I suggest that the analysis of data outturns is potentially a more constructive way forward. OECD data show that the UK and Germany have grown at very similar rates since 2016: faster than Italy, a bit slower than France. That does not suggest a major Brexit hit.
In the meantime, I look forward to Brexit’s potential benefits, including those flowing from the retained EU law Bill—that is why I support it—and, indeed, the major savings on our contributions to the EU.
Baroness Young of Old Scone (Lab)
My Lords, I declare my environmental interests that are in the register.
In my 25 years in your Lordships’ House, I do not think I have ever heard a Bill so roundly condemned from all quarters. I welcome the noble Lord, Lord Hodgson of Astley Abbotts, who, although he supported Brexit, is clear, as was his committee, that the Bill itself is unsupportable.
Lots of other noble Lords have said that the Bill takes powers from Parliament and hands them to the Executive, that it is a super-framework Bill or that it is super-skeletal, but I have a simple term for it: it is a pig in a poke. We are buying something that we do not know what it is going to be when we vote it through.
It is basically a deregulatory measure. The Clause 15 measures have been paraphrased as, “Ministers can do anything provided it doesn’t increase regulatory burden”, which is defined as
“a financial cost; … an administrative inconvenience; … an obstacle to trade or innovation; … an obstacle to efficiency, productivity or profitability”.
That is pretty clear and no-bones. It is about deregulation, despite the fact that regulation is often most simple and efficient way of achieving environmental outcomes.
I shall focus on the environmental issues in the Bill. Of the 3,700 pieces of EU retained law—as is currently the case; we have seen the dashboard wobble about quite a bit regarding the number of pieces of legislation that is estimated, so I do not think 3,700 is the last word—1,781 are in Defra’s court, four times more than any other department. This is the department that has already been ticked off twice in the last four months by its new environmental regulator, the Office for Environmental Protection, for not meeting the targets and deadlines that Defra itself set. So I do not really have a lot of confidence that Defra is going to be able to cope with reaching decisions about four times more pieces of EU retained legislation than any other department.
I am a very sad human being and I have read the list of 1,781 pieces of Defra legislation. I would agree with the Minister, were he to say this, that some are indeed minor, some have lost their relevance as a result of us leaving the EU, and some of them are a bit tech-y. I am sure the Minister will agree with me on that. For example, I enjoyed reading the one on
“additional guarantees regarding salmonella for consignments to Finland and Sweden of laying hens”.
That looked like a showstopper to me. However, some pieces of retained EU legislation in that list are substantial, long-standing and deeply woven into the fabric of environmental protection in this country at national and local level, and are accepted by many people as vital, operational and well constructed.
I know that the habitats regulations are a bogeyman for deregulators, but the one thing that we have to remember is that they are effective because we invented them. The noble Lord, Lord Heseltine, talked about safeguarding British self-interest—although I disassociate myself from Mrs Thatcher in that. We showed British self-interest in negotiating and leading the EU into adopting a highly effective protection system for biodiversity of species and the habitats on which they depend. We were a mover and a shaker in the EU; this was not stuff that was done to us.
I thank the Minister for meeting us last week over the Bill. When pressed, he will tell us that alternatives to the habitats regulations have already been devised in the Environment Bill and, now, in the levelling-up Bill, but that has not been made clear while we have debated these Bills. Not once during the passage of the Environment Bill was it stated that its priorities were—
Baroness Bloomfield of Hinton Waldrist (Con)
Will the noble Baroness conclude her remarks?
Baroness Young of Old Scone (Lab)
I will finish in two seconds. Not once during the passage of the Environment Bill was it stated that its provisions were intended to replace the habitats regulations. This is no sort of process, where alternatives are inserted piecemeal rather than laid out to show how they match up to what is being done away with.
The Bill is cosmetically and disastrously aimed at getting rid of EU legislation before the next election at any cost.
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Baroness has exceeded the speaking limit by some margin. It is time for the noble Baroness, Lady Jones.
Baroness Young of Old Scone (Lab)
I recommend that your Lordships’ House not amend the Bill but not pass it.
Baroness Jones of Moulsecoomb (GP)
My Lords, I congratulate our two new noble Baronesses on their excellent speeches. I think they will both be an incredible asset to their parties. I will welcome the noble Baroness, Lady Bray, into the Opposition over here when the Tory Government fall.
Some 2,000 years ago, the Roman philosopher Cicero said, “The closer the collapse of an empire, the crazier its laws”. That is what we have here. There are families who are starving, people who are freezing in their homes and workers rightfully striking on the streets, but we are in here debating this dross. I do not know how the Government can face us when they send us legislation like this. Just as the Public Order Bill is an attack on democracy in the streets, this Bill is an attack on democracy here within Parliament. Rather than taking back control, the Government are seeking to take away Parliament’s sovereign power of voting for or against laws and to hand that power over to a chaotic Executive of right-wing Ministers and their civil servants. We have reached the slash-and-burn stage of Brexit cultism, which will certainly throw this country into a state of legal uncertainty.
The European Union (Withdrawal) Act 2018 provided a comparatively sensible way for the Government to transition out of the EU with a functioning body of law, with the ability to identify opportunities outside the EU and pass new laws accordingly. This is not the same by any means. We do not have a list of laws that are going to be deleted by the Bill; it gives carte blanche to delete all, and it is going to be an absolute mess. It will be at the discretion of Ministers, who will choose to delete—or not—some parts of EU law without further scrutiny, either parliamentary scrutiny or scrutiny by the electorate.
The electorate have not voted for this Bill. It is not in the Tory party manifesto. Voters have never been asked about the approach that the Government want to take to retained EU law. It is not part of the oven-ready Brexit that we were promised, which was cooked up last year with a poison pill. It will mean that important decisions on which laws are retained will have been made by the end of this year before the general election, and then some other political party will have to pick up the mess and try to cope with the disaster.
The Bill gives the legal mechanisms but no political mechanisms. Only Ministers will choose the fate of 4,000 pieces of legislation. It seems crazy that we are handing that power to Ministers. We did not trust them before this came and we certainly will not trust them afterwards.
Our future relationship with the EU is important. There is a growing recognition that leaving the European Union has not delivered the benefits that we were promised. The Bill is proof that even this Government cannot find any benefits to boast about. There will soon be a public debate about our relationship with the European Union, and the Green Party has decided that the relationship should be as close as possible until the political circumstances are right for us to rejoin. I say that as someone who voted for Brexit. What I have seen is destruction by this Government, and they are not delivering on all their promises.
My feeling is that the only sensible thing now is to cut our losses and rejoin the EU, and I think many others, some inside this building but many outside, will agree with me.
Lord Hamilton of Epsom (Con)
My Lords, I add my congratulations to the noble Baroness, Lady O’Grady, and my noble friend Lady Bray. They made excellent maiden speeches, and I am sure they will bring great expertise and enhance our proceedings in the future.
In 2018, we passed the European Union (Withdrawal) Act, which made it absolutely clear that we were going to review all the EU legislation. You would have thought that that would have been a signal to the civil servants of the noble Lord, Lord Wilson, to start sorting out what this actually meant and how much EU legislation they had in their departments. In fact, as far as I can make out, almost nothing happened at all. They thought, “Well, we needn’t bother about this. It will never happen and, anyway, most of us voted remain and we would quite like to rejoin the EU anyway.”
It is an absolute disaster that we are now having to impose sunset clauses in this Bill which has galvanised the departments to produce the EU retained law that they have. They are even sorting out in archives and so forth to bring this stuff out. The briefing that we got said that there were 2,000 bits of EU retained law. That then went up to 3,300; now we have heard today that it is 3,700. Most people think it is going to top out at 4,000. I only hope they are right, as it seems to me that there is no limit to the amount that this number might grow.
When we come to review it, it seems to me that there are a number of options in front of the Government. We could retain the laws from the EU and, presumably, it would be pretty uncontroversial with most of your Lordships in this House if we retained the law intact and unamended.
We could repeal some of the law. As my noble friend Lord Callanan said last week, some of the bits of EU law involve—and the noble Earl, Lord Kinnoull, made light of this—movement of reindeer between Denmark and Sweden. That is of no concern to this country whatever. What we need to know is how many more bits of legislation there are which are as irrelevant as reindeer in Denmark. I would ask my noble friend to give us the percentage. But I am afraid that, as he does not even seem to know the number of bits of EU law there are, the chances of him knowing the percentage that are completely irrelevant to this country probably are not very great.
Other bits that we would want to repeal are ones where EU provision is actually less than what we provide already in this country in our legislation. Presumably, that would be relatively non-controversial if it could be proved that we make greater provision for workers’ rights or whatever than under the EU law. If we follow the suggestion from my noble friend Lord Hodgson of Astley Abbotts to somehow filter this stuff, then it would be quite possible to say that it could go through under a statutory instrument because it would be basically non-controversial.
We then come on to the more difficult areas where we are revising legislation to bring it up to date. They are technical changes. As we well know, technical changes can be a number of different things. They can be very dramatic changes or just genuinely technical, and that is why once again I support my noble friend’s suggestion. We have to filter out genuinely technical changes from those that are not.
What is very bad news about this legislation that we have in front of us is that it enables Ministers to completely change legislation altogether, and that is something that we did not vote for in the referendum. When we wanted to get our powers back, we certainly did not say, “We will bring undemocratic edicts from Europe and enhance the power of Ministers and increase the powers of the Executive.” That is not what we are here for and not what we should be voting for.
Lord Hendy (Lab)
My Lords, I add my congratulations to the noble Baroness, Lady Bray, and my noble friend Lady O’Grady on their excellent maiden speeches.
As a member of the Delegated Powers and Regulatory Reform Committee, I of course agree with its report on the Bill and that of the Secondary Legislation Scrutiny Committee. Both reports reflect the statement of principles in their 2021 reports, Democracy Denied? and Government by Diktat.
I want to focus on one aspect of the Bill: the sunset clause which facilitates the removal of our employment rights without parliamentary scrutiny, as there will be no draft legislation to scrutinise. Twice in recent weeks, my noble friend Lord Woodley has asked whether the Minister will retain the Transfer of Undertakings (Protection of Employment) Regulations. The Minister declined to say. If he sits tight and does nothing, that important suite of rights will evaporate on New Year’s Day and the noble Lord, Lord Woodley, will not be able to oppose, amend or even debate it.
The Minster claimed on 23 January that:
“UK employment rights do not depend on EU law.”—[Official Report, 23/1/23; col. 3.]
He repeated the claim on 1 February. The truth is that some do not but most do. My noble friends Lady O’Grady, Lady Crawley and Lord Monks have mentioned some. I will mention some others. The right to a safe place of work, system of work, safe equipment and competent colleagues is a homegrown common law right originating in 1837 and articulated in the case of Wilsons & Clyde Coal v English in 1938.
The Safety Representatives and Safety Committees Regulations were made under our domestic Health and Safety at Work etc. Act. Their provenance was one of the recommendations of the Piper Alpha disaster inquiry. However, the Health and Safety (Consultation with Employees) Regulations, which make similar provisions about safety representatives and safety committees where no union is recognised were made under the European Communities Act to implement EU law. In fact, most employment rights and health and safety are EU law.
I will give some examples to illustrate the scale of this. We are talking about regulations on: management of health and safety, workplace health and safety, work equipment, PPE, manual handling, display screen equipment, carcinogens, biological agents, construction, safety signs, pregnant women, drilling, mining, chemical agents, dangerous substances, explosive atmospheres, fishing vessels, ionising radiation, lifts, machinery, biocidal products, major hazards, transport, working time, work at height, temporary and mobile worksites, explosive atmospheres, young persons, physical agents, noise, vibration, and offshore installation safety cases.
Clause 1(4)(a) of this Bill will sweep away regulations made under the European Communities Act. But the regulations I have mentioned will survive because they are made under the Health and Safety at Work etc. Act. The fate of regulations made under both Acts such as the Control of Asbestos Regulations is not clear. The answer, however, is academic. All these statutory instruments will be caught by Clause 1(4)(b) since they were made to implement EU law, whatever their statutory foundation.
Consequently, all the Minister has to do is to sit on his hands and all these vital protections hitherto enjoyed by our 30 million workers will disappear in a puff of smoke without parliamentary scrutiny. That is unacceptable and also appears to be a flouting of the obligations we undertook to maintain and implement health and safety laws under Articles 386 to 388 and 399 of the trade and co-operation agreement.
Baroness Humphreys (LD)
My Lords, I am grateful to the Delegated Powers and Regulatory Reform Committee, of which I am a very new member, for its report on this Bill and to Senedd Research for its informative legislative consent memoranda and other documents.
As the report from the Delegated Powers and Regulatory Reform Committee highlights, in 2018 the European Union (Withdrawal) Act promised that Parliament and the devolved legislatures would be able to decide which elements of some 3,000 or 4,000 pieces of retained EU law to keep, amend or repeal once the UK had left the EU. This retained EU law Bill cuts across that pledge and makes a mockery of the supposed argument for Brexit that the UK Parliament would be supreme and would be responsible for making our laws once we had left the EU.
The Bill, however, gives unfettered authority to Ministers through secondary legislation, bypassing both the UK Parliament and the Senedd in Wales. Such a blatant attack on the powers of the UK Parliament might be unusual but in Wales we have become rather used to this type of treatment, especially since 2019. Giving evidence to the Welsh Affairs Committee in November, the Welsh First Minister, Mark Drakeford, reflecting on the relationship between the two Governments and the increasing problems around the Sewel convention, said:
“We had engaged relationships with Conservative Governments from 2010 to 2019. We did not agree on many things, of course, but we were always around the table together talking. The exception in this … rule is the period from 2019 to earlier this year.”
The retained EU law Bill is a child of the Brexit Government who came to power in 2019. Since then, emboldened by their majority in the other place and fuelled by a unionism sometimes described as “aggressive”, they have ridden roughshod over the Sewel convention, they have usurped the powers of the Senedd and, in the Bill, they will also blatantly usurp the powers of the UK Parliament.
The Delegated Powers Committee’s report concludes:
“We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether. The shortcomings of this hyper-skeletal Bill justify our approach.”
The Welsh Government go further: I believe they have now recommended that the Senedd withholds consent for the Bill. The Welsh Counsel General and the Scottish Government’s Cabinet Secretary for the Constitution, External Affairs and Culture have published a joint letter in the Financial Times, calling for the Bill to be withdrawn. The devolved Administrations are preparing lists, reviewing thousands of pieces of retained EU law and seeking the Government’s help in ascertaining whether some laws are devolved or reserved, all in what appears to be a state of uncertainty, confusion and chaos.
The Bill allows an extension, to 2026, for the UK Ministers to complete their work, but Ministers in the devolved Administrations are restricted to the 2023 deadline. Welsh Ministers have requested an amendment to address this anomaly, but we still await a response. Will the Minister explain why there has been no response, address the anomaly and assure me that an amendment will be tabled by the Government? If he cannot do the latter, I will happily do so.
Lord Dobbs (Con)
My Lords, this afternoon, we have had the glorious sight of many noble angels dancing on the head of a pin, effervescing with enthusiasm for the virtues of parliamentary oversight. Of course, they are absolutely right, but I just wonder where this particular angelic host was hiding during the previous 40-odd years, when rule was piled upon regulation and then dropped from the commanding heights of Brussels on to this so-called sovereign Parliament. There was not much debate then, or much protest from the usual suspects. There were not many Tarzans swinging through the jungle, if I may put it that way. You do not get back in your car, with your windscreen smothered in almost 50 years of parking tickets, and then decide that you can drive away while peeling them off one by one—although some noble Lords have come up with an answer: they want to drive away in reverse gear. That is what a good deal of the criticism is really about: going back to the future and reliving the glorious past, with all its myths, fantasies and metric martyrs.
It is suggested that the Bill is a cut-and-paste exercise. Thank goodness for that, because, while we use paste, the EU uses superglue. We can move things around, but it cannot: once you are in, you are stuck. We have a dashboard. We have this debate, we will have a stringent Committee—I hope it will be prosperous—and future Governments will be able to have their way, too. So, yes, let us defend the rights of Parliament against the Executive, but let us not forget that the Bill has already passed through our elected House of Commons. Yet we have heard threats from Opposition Benches today that they intend to tear the Bill apart—that is unacceptable, irresponsible and utterly undemocratic.
Sadly, politics is not the pursuit of perfection; it is usually a choice between the unappetising and the totally inedible. What is inedible, and impossible to stomach, is that knot of prejudice that simply refuses to accept Brexit. I will not point a finger at anyone in this House, although I suspect that some volunteers may like to step forward, but I will point a finger at Guy Verhofstadt—Mr Europe—who, the other day, offered the conclusion that Putin invaded Ukraine because of Brexit. Perhaps his foie gras had gone off or something. There was me thinking that independent post-Brexit Britain had pulled Europe towards its senses on Ukraine and into action, just as we did with Covid vaccines. Thank goodness we were able to make those decisions with some speed then. Mr Verhofstadt’s words are truly appalling.
Other words I find more compelling are those of Jonathan Reynolds, the Labour spokesman on the Bill in the other place. I was glad to hear them echoed today by the noble Baroness, Lady Chapman. During the Commons Second Reading, Mr Reynolds said that this Bill
“is not about Brexit—Brexit has happened; it is a fact.”—[Official Report, Commons, 25/10/22; col. 191.]
So we must stop pretending that the European parliamentary system was so much more democratic and its laws so much better considered. Brexit is a fact—a democratic fact—and it is our duty to get on with it.
Lord Verdirame (Non-Afl)
My Lords, I am afraid I agree with a lot of the criticisms and concerns that have been expressed by many noble Lords, although not the noble Lord who just preceded me. I regret to be in this position because I support the idea that there should be a review of retained EU law, and I also support the principle that retained EU law should be fully assimilated as UK law. Clauses 4 to 6 are not perfect, but they are not the main problem that the Bill presents.
As explained by a number of noble Lords, the two main concerns are the Bill’s impact on legal certainty and its impact on the integrity of the legislative process. We have all read about the uproar of concern from businesses and professional and social organisations about legal certainty in particular. I do not think that behind this reaction there is a concerted attempt to create a permanent shrine for EU law within our legal system. The need for legal clarity is prompting these concerns, and I hope that, in Committee, we will be able to consider ways in which the operation of the sunset clauses in particular can be improved to satisfy this basic requirement.
It is in the Government’s interest to proceed in a clearer and more systematic way. According to the calculations of the Law Society, which I believe are based on the latest available figures, it would be necessary to review 13 pieces of legislation per working day from today until 31 December. Even if this were just a tidying-up exercise—I do not think it is or that it is being characterised as such; otherwise, it would not offer all these opportunities—it would be a huge task. It is precisely because I agree with the Government that this work could present opportunities that I think it is important to get it right, even if it takes a bit longer.
There are other aspects of the Bill that affect legal certainty that I look forward to considering more fully in Committee. For example, I am a bit perplexed by the system of references by law courts, tribunals and law officers envisaged in Clause 7. In the Bill, of all places, I did not expect to find any EU law input; I would have thought it preferable to leave the process of assimilation of EU law into UK law to the forces of the common law under clear legislative guidance—but without a procedural mechanism that is convoluted and risks generating delay and uncertainty.
Briefly, on the integrity of the legislative process, I too share many of the concerns that have been expressed about the power clauses, and in particular Clause 15. The Government and a number of speakers have a point when they say that the legislation with which we are dealing came into our legal system via the old European Communities Act 1972 and was subject to very little or no scrutiny—although I hear different views on that. It seems to me that the key point is that the European Communities Act did not exist in a vacuum; it was predicated on the delegation of legislative competence to international institutions which had their own legislative processes, governed by treaties to which we had acceded. I was never a fan of that legislative process—I was certainly not misty-eyed about it—but, even so, I cannot agree with the proposition that the delegation of legislative power under the European Communities Act can be compared with the delegation proposed under Clause 15 in particular. For this reason, and on this point, I too would very much welcome constructive and sensible proposals for improving the Bill.
Lord Howard of Rising (Con)
My Lords, Monsieur Barnier recently warned Britain not to tear up EU laws—well, he would, wouldn’t he? This should come as no surprise. For all its trumpeted advantages, the EU is performing worse than Britain. Whatever way you look at it, Britain is doing better. As Britain escapes the cloying and destructive stranglehold of EU regulations and red tape, we will leave the EU trailing even further behind. It is no wonder that Monsieur Barnier is nervous.
Many claim that Britain has suffered economically from leaving the European Union. That is nonsense, driven by those who wish for us to rejoin the European Union. Last year, Britain’s GDP grew faster than those of Germany, France and Italy. Our economy has grown by 5.7% since 2016—the same as that of Germany, the financial powerhouse of the EU. Yet, in 2022, real wages fell further in Germany than they did in the UK. While food prices are up by 19.9% in Britain, they have risen by 21.1% in the eurozone and 24.1% across the whole of Europe.
However badly the British economy might be faring in these challenging times, the European Union is doing worse. That is in relation not only to economics; our Covid vaccine development, procurement and rollout is a good example of what can be achieved free from EU restrictions. It was such a success that the EU tried to keep it for itself and to block shipments to Britain. By March 2021, Britain had vaccinated 40% of its population, while the EU had vaccinated only 12% to 14%. Just think how much more the rest of our life sciences sector and other industries can achieve when they are fully freed from the EU’s shackles.
We must support the Bill; it will help to remove the remaining EU bureaucracy from our statute book that continues to impede our economy and society. Some noble Lords may complain, as indeed they have today, that too much discretion is being given to Ministers, but we should remember that the retained EU laws only exist because edict after edict was imposed on the UK without this country being able to alter so much as a comma. Noble Lords have far more scrutiny now, and under the Bill, than they ever did when the legislation was created.
Lord Howard of Rising (Con)
It is not nonsense; it is true.
Above all, we should celebrate that our country is a sovereign nation and be grateful that we are not subject to the 25,163 new EU laws created since we left. I urge noble Lords to support the Bill, which recognises that our country is now governed from Westminster and not by faceless bureaucrats in Brussels.
Lord Trees (CB)
My Lords, the Bill sets out considerable detail on the legalistic process of dealing with retained EU law, which noble, and noble and learned, Lords are rightly examining, and will continue to examine, in great detail. But the Bill says absolutely nothing about specific items of law.
I will focus on the areas within the remit of Defra and get down to some specifics. As we have heard, the department has by far the biggest burden of legislation to consider from the current dashboard of over 1,700 pieces of legislation, encompassing animal health and welfare and the environment, matters of great concern to the UK public and critical for trade. While the Bill aims to retain, amend or revoke retained EU law, according to that which is “right for the UK”—which is perfectly fair and reasonable—there is as yet little indication of which laws are going to be judged “right for the UK”.
In the light of the absence of specifics in the Bill, my points will be a series of questions; while the Minister may not be able to answer them today, I hope he will respond to them by letter. It is difficult, from the current dashboard, to determine how many pieces of legislation have been reviewed by Defra and may be accepted, for example, as unchanged. On Defra’s legislative burden, can the Minister tell us where it currently stands on assessing the 1,781 REULs? What additional resources has Defra been given to cover this vast workload? I also note that an extension of the sunset beyond 2023 is possible for England, but not for the devolved Administrations. Yet so many of the relevant laws are devolved competencies, so how will His Majesty’s Government assist the devolved nations in dealing with this in the very limited time available?
The UK has played an important role in developing the 44 retained animal welfare laws, and, given our pride in the high standards we have in the UK, can we assume that most, if not all, of these will be accepted into UK law unchanged? Who will decide whether to accept, amend or revoke the many hundreds of laws and regulations before they are presented to Parliament as SIs, at which point of course we will have very limited opportunities for parliamentary scrutiny? Transparency here is essential for the credibility of the process, so can the Minster tell us who will decide, how they will decide, and when they will decide?
A particular concern relates to the REACH regulations, which require animal testing for the safety of chemicals and so have animal welfare implications. Will there be mutual recognition of testing, either in the UK or the EU, so as to avoid the replication of animal testing?
On food safety, has the Food Standards Agency been given the resources to cope with the huge number of legislative adjustments that will be required concerning food safety and quality?
Finally, on trade, the requirement for export health certificates to our biggest single export market for animals and animal products has ballooned from about 20,000 a year to over 200,000 a year. Will legislative changes consequential to the Bill add to this regulatory burden or reduce it? If they will reduce it—how?
I have asked a few questions, but they are only a fraction of the thousands of questions that the Bill raises.
Lord Udny-Lister (Con)
My Lords, although some would still care to deny it, it is a fact that no single electoral option has received more votes in UK history than that to leave the European Union. Indeed, the majority of the 17.4 million voters who turned out on that historic day to cast their votes to leave the EU did so on the simple premise that we in this place would take back control of our laws and untangle the UK from nearly 50 years of top-down EU bureaucracy. Today, through Second Reading of this Bill, the Government have shown that they will live up to the mandate and, in so doing, they have my full support.
Throughout my participation in other Brexit-related debates and listening to some of the contributions made by noble Lords, I have been rather confounded, as regretfully there appears to be an assumption by some that the only origin of standards and protections is the European Union and the European Union alone. I put it to your Lordships’ House that this view is complete baloney. It neglects the fact that for centuries this island nation has been the global benchmark and upholder of high standards, robust regulations and the origins of many legal and financial mechanisms which ensure fairness, competitiveness and probity in our global systems to this day.
Perhaps, in his summary, the Minister might reassure the House of this and of the fact that this country has a proud track record of creating sound regulation where required and, in some cases, more robust standards than even those of the EU. It would also be helpful if the Minister could confirm that the Civil Service in the UK is well up to the job and more than capable of writing regulations, because there has been a suggestion today that it is not capable of delivering that in the time available, which seems rather strange from so many people here.
I support this Bill, as it presents government with an unparalleled opportunity to cut red tape where it is not needed and allow our businesses the freedom to get on with innovation and transformation. With SMEs accounting for around 60% of UK employment, the more freedom we give them, the better and the stronger our economy will be in the long term. I hope that Ministers will seize this opportunity and remove as many of these regulations as possible.
The constitutional significance of this Bill cannot be downplayed, for through the ending of the special status of retained EU law, we are returning sovereignty to this Parliament and restoring the primacy to Acts of Parliament. Most importantly, we are putting the British back in control of the laws of the land and for that reason the Bill has my support.
Retained EU Law (Revocation and Reform) Bill
Monday 6th February 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 18 January 2023 - (18 Jan 2023)
The Earl of Lindsay (Con)
My Lords, the overarching objective of this Bill is a timely and important opportunity to review, rationalise and update a wide-ranging tranche of legislation, and that I warmly welcome and strongly support. However, I have grave reservations about how the Bill proposes that it is done. My concerns are therefore about process, not purpose, and fall into two broad areas. The first is the role allotted to Parliament; the second is the uncertainties for, and potential impact on, consumers and businesses.
I will cover the first area with brevity. Having been a member of the SLSC when it signed off its report on this Bill and having become a member of DPRRC before it signed off its report, I fully endorse the concerns and recommendations set out in both those reports. They deal largely with concerns about parliamentary sovereignty, the need for greater parliamentary oversight, and the extent to which it is intended that secondary legislation will be used. I will not repeat those important concerns in detail, as they have been well articulated by others and not least by my noble friends Lord Hodgson of Astley Abbotts and Lord McLoughlin, respectively the former and current chairs of those two committees.
I turn to a range of more practical concerns. In doing so, I declare my interest as president of the Chartered Trading Standards Institute, the CTSI, which is the professional body for trading standards. In expressing its concerns, I am raising concerns that have equally been raised by the noble Baroness, Lady Crawley, who was my predecessor as president of the CTSI.
CTSI and the coalition of partner organisations see considerable merit in the opportunity to reappraise and update the legislation and regulations that underpin trading standards and consumer safety. However, they are deeply concerned about the practicability of doing this comprehensively, with due process and to good effect, across such a vast swathe of legislation, given the proposed sunset deadline at the end of the year and the minimalist approach to consultation and parliamentary scrutiny.
CTSI, alongside organisations such as the Chartered Institute of Environmental Health, the Child Accident Prevention Trust and Electrical Safety First, are therefore calling for the proposed sunset deadline of 31 December 2023 to be revisited. Their understandable fear is that, with thousands of pieces of vitally important but often complex legislation needing to be reviewed, rewritten or sunsetted, mistakes, omissions and contradictions are inevitable. This in turn could result in key protections for consumers and businesses being undermined or lost.
More specifically, CTSI and its partners are concerned that the Bill creates a lack of clarity around trading standards’ duties to enforce laws vital to ensuring the safety of products such as toys, electrical appliances and cosmetics; could weaken fair trading rules that protect consumers and law-abiding businesses; could undermine rules that ensure the welfare of animals and the UK’s ability to export animal products to EU member states; could result in diminished information requirements for food provenance, allergens and use-by dates; could make convictions for consumer rights offences unsafe if the laws that underpin them are not clear and coherent; and poses a threat to life due to differences in technical metrology definitions in the healthcare sector on the road and at sea. These are very real uncertainties and concerns, as are those that relate to the role of Parliament and parliamentary procedure.
I said at the start that the Bill is a rare and, I believe, welcome opportunity to review and update a lot of important legislation. We therefore need to ensure that the processes that the Bill is proposing are made fit for purpose and command greater confidence inside and outside Parliament.
Lord Woodley (Lab)
My Lords, the arguments against this undemocratic Bill are well understood by both Houses and, indeed, beyond. Unfortunately, there is not enough time today for me to do justice to these arguments, so I will attempt to highlight only my gravest concerns with the Bill—as many others have, in fairness.
Most of the most important employment rights, such as the protection of pregnant workers, maternity and parental leave, guaranteed rest breaks, equal treatment for part-time works, and especially TUPE protections, are derived from EU law, as the Minister knows. All these rights are now under serious threat, despite the Tory manifesto promising to
“legislate to ensure high standards of workers’ rights”.
I have asked the Minister twice, as the noble Lord, Lord Hendy, said earlier, to confirm that no existing employment rights would be weakened or scrapped, but he point-blank refused to answer. When I asked him specifically whether he would allow TUPE protections to fall off the statute books, the Minister would only say that he
“will look at that and see whether it is appropriate for the UK economy”.—[Official Report, 1/2/23; col. 658.]
I find this answer totally unacceptable. How on earth can there be any debate about whether these vital protections are appropriate for our economy? What kind of economy do this Government want? One where workers see their pay and conditions slashed after takeovers; a race to the bottom? That is what we are left with without these protections. It is a far cry from the high standards we were promised.
Last week, my noble friend Lord Watts made the excellent point that Ministers were well fond of rolling over trade deals, and he asked why we could not roll over the protections that workers have now, to stop them worrying about their futures. Unfortunately—but, once again, not surprisingly—the Minister did not answer. Perhaps he might like to address this point today.
As parliamentarians, it is our duty to stand up for our constitutional role of holding the Government to account. It was highlighted by various committees of this House, including the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee, that this Bill would lead to a “significant shift of power”—not to Parliament, but to Ministers. This Bill, therefore, runs counter to the principles of parliamentary democracy and is a blank cheque placed in the hands of Ministers, according to these committees. Is that what the Government really meant by “taking back control”? It certainly looks like it to me. Is it really what people voted for in 2019? I do not think so: they did not vote for that.
In its report, the delegated powers committee said:
“The Bill is sufficiently lacking in substance not even to be described as ‘skeletal’.”
It is outrageous; it is an abuse of the democratic process.
This Bill, and the Minister’s refusal to rule out a bonfire of employment rights, is completely the opposite of what the Government promised voters. It is therefore nothing less than the duty of this House to defeat it or, at the very least, to delay it until the next election, when the voters can decide for themselves whether workers’ rights are worth defending after all. I think I know what the voters will say.
Lord Clement-Jones (LD)
My Lords, last week I hosted a meeting with Zsuzsanna Szelényi, the brave Hungarian former MP, a member of Fidesz and the author of Tainted Democracy: Viktor Orbán and the Subversion of Hungary. I reflected that this Bill, especially in the light of the reports from the DPRRC and the SLSC, is a government land grab of powers over Parliament, fully worthy of Viktor Orbán himself and his cronies. This is no less than an attempt to achieve a tawdry version of Singapore-on-Thames in the UK without proper democratic scrutiny, to the vast detriment of consumers, workers and creatives. It is no surprise that the Regulatory Policy Committee has stated that the Bill’s impact assessment is not fit for purpose.
It is not only important regulations that are being potentially swept away, but principles of interpretation and case law, built up over nearly 50 years of membership of the EU. This Government are knocking down the pillars of certainty of application of our laws. My noble friend Lord Fox rightly quoted the Bar Council in this respect. Clause 5 would rip out the fundamental right to the protection of personal data from the UK GDPR and the Data Protection Act 2018. This is a direct threat to the UK’s data adequacy, with all the consequences that that entails. Is that really the Government’s intention?
As regards consumers, Which? has demonstrated the threat to basic food hygiene requirements for all types of food businesses: controls over meat safety, maximum pesticide levels, food additive regulations, controls over allergens in foods and requirements for baby foods. Product safety rights at risk include those affecting child safety and regulations surrounding transport safety. Civil aviation services could be sunsetted, along with airlines’ liability requirements in the event of airline accidents. Consumer rights on cancellation and information, protection against aggressive selling practices and redress for consumer law breaches across many sectors could all be impacted. Are any of these rights dispensable—mere parking tickets?
Many noble Lords—in particular the noble Baroness, Lady O’Grady, in her excellent maiden speech—the TUC and many others have pointed out the employment rights that could be lost, and health and safety requirements too. Without so much as a by-your-leave, the Government could damage the employment conditions of every single employee in this country.
For creative workers in particular, the outlook as a result of this Bill is bleak. The impact of any change on the protection of part-time and fixed-term workers is particularly important for freelance workers in the creative industries. Fixed-term workers currently have the right to be treated no less favourably than a comparable permanent employee unless the employer can justify the different treatment. Are these rights dispensable? Are they mere parking tickets?
Then there is potentially the massive change to intellectual property rights, including CJEU case law on which rights holders rely. If these fall away, it creates huge uncertainty and incentive for litigation. The IP regulations and case law on the dashboard which could be sunsetted encompass a whole range, from databases, computer programs and performing rights to protections for medicines. At particular risk are artists’ resale rights, which give visual artists and their heirs a right to a royalty on secondary sales of the artist’s original works when sold on the art market. Visual artists are some of the lowest-earning creators, earning between £5,000 and £10,000 a year. Are these rights dispensable? Have the Government formed any view at all yet?
This Bill has created a fog of uncertainty over all these areas—a blank sheet of paper, per my noble friend Lord Beith; a giant question mark, per the noble Lord, Lord Heseltine—and the impact could be disastrous. I hope this House ensures it does not see the light of day in its current form.
Baroness McIntosh of Pickering (Con)
My Lords, we recently celebrated the third anniversary of Brexit and it is indeed the gift that keeps on taking: taking control and scrutiny away from Parliament, effectively passing it to unelected officials in the Civil Service, and taking certainty, confidence and competitiveness away from businesses. The whole thrust of the debate today is what assurance is there that key protections that we have achieved will remain on the statute book and that there will be no gold-plating. I play tribute to my noble friend Lord Heseltine, who single-handedly eradicated gold-plating from the transposition of a very innocuous directive, such as the toy directive, into the home-spun rules of our home civil servants.
The dashboard is very difficult to navigate. It is a moving feast, but we know that there are some 1,780 Defra proposals. I pay tribute to the Defra officials who spent the best part of two years transposing farming, environment and other regulations into UK law at some considerable speed and therefore had to return with corrections. I do not blame them for that, but that shows us what the expectations will be with an even more limited timetable before us in the Bill.
As others have mentioned in the debate, the dashboard does not cover all retained EU laws agreed by the devolved Administrations, so it is no wonder that the Welsh and Scottish Administrations have withheld their consent from the Bill. Now, with a sweep of the pen, all that we have achieved over years of transposing and passing into UK law these protections is going to be rolled away purely as a result of a political decision to achieve this arbitrary timetable before the next election.
I would like to judge the Bill before us this evening by the extent to which at the end of this process we will still be able to export and import, which we were told would not be jeopardised as we would have frictionless trade through the trade and co-operation agreement. I have been contacted by businesses I worked with 30 years ago and longer as a Member of the European Parliament in the food and drink sector, chemicals and, in particular, the cars and vehicle sector. We have identified a change in policy direction moving away from a functioning statute book to a period of tremendous uncertainty. No one in the debate this evening disagrees that the statute book should be kept under constant review. I think that all who have spoken expressing caution about the Bill are concerned about the manner in which the statute book is to be maintained. Parliament will not be in the driving seat; it will nominally be Ministers, but I would say unelected officials. What evidence is there that there has even been a proper consultation of all the interested parties affected, many of whom have been represented in their concerns being voiced today? I urge my noble friend and the Government to be prudent, drop any arbitrary deadline and seek to give a measured response where we can pay tribute to those who have expressed their concerns.
To the extent that we can still export and import, I have been contacted by those in the car sector who are concerned that we have only recently agreed type approval regulations. For chemicals, we have only recently agreed the UK REACH regime, and for the food and farming sector, animal health safety and welfare have featured largely this evening.
In conclusion, while my noble friend and I are on different sides of the argument regarding Brexit, throughout our careers we have held business dear to our hearts. Will he say which part of the Bill promotes business and will help to facilitate exports and imports?
Lord Kerr of Kinlochard (CB)
Doctrinaire, ideological, subversive of Parliament, a headlong rush, an arbitrary timetable, a blank cheque for government by diktat—this Bill is coming in for a bit of criticism from Conservatives. I am not surprised, because the presumption that change is needed and the proposed method of change do not strike me as terribly Conservative. Lord Salisbury in 1892 defined Conservatism as delaying changes until they become harmless. I have always believed that he also said: “Change? Why should we change? Things are bad enough as they are.” I can get away with that as the noble Lord, Lord Lexden, the real expert on this, is not here; he says it is apocryphal. Here are Lord Salisbury’s successors running a rushed, in-house review of some 4,000 laws with a presumption that change is required because of the laws’ origins, not their effects.
I was there in Brussels during a period of peak legislation with the single market programme. I was there when the European Union was dancing to the tune of a British Conservative initiative, inspired by Margaret Thatcher, prescribed by Arthur Cockfield, pressed by John Major, driven through by Commissioner Leon Brittan. Were they all wrong? Is their legacy now suspect simply because they succeeded in getting the EU to buy their prescriptions for appropriate regulation?
Of course, some of the 4,000 laws could well be overtaken; I do not know. There could be sense in a sift done bottom-up, sector by sector, consulting those affected, balancing the consumer interest with the interests of producers and traders—but not this way; not top-down, in-house, with no consultation, minimal scrutiny, an end-year guillotine and new rules by decree cutting out Parliament.
Business hates this Bill. Business likes certainty. Business wants regulatory predictability. The perception of change for change’s sake is anathema to business. The chemical industry and Defra confirm that the cost of replacing the EU REACH regulations will be about £2 billion. That is just one industry. This Bill and the uncertainty that it creates will affect them all. No wonder the CBI opposes it so strongly.
Lord Salisbury also said in 1879:
“Whatever happens will be for the worse, and therefore it is in our interest that as little should happen as possible”.
As regards this Bill, that seems to be exactly right. It is malign, misconceived, damaging, undemocratic, un-Conservative—and we should throw it out.
Lord Jackson of Peterborough (Con)
My Lords, people watching these proceedings will be astonished that this House seems minded to obstruct this Bill and to fail to fully engage with the difficult and messy process of self-government as an independent, sovereign parliamentary democracy, arising from the largest plebiscite in British history in 2016.
The Bill should be seen in the wider context of what went before and what is proposed, a wider historical context—what I might call the Benn challenge. In his valedictory speech to the House of Commons in March 2001, Tony Benn asked of those tasked with exercising power:
“What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?”—[Official Report, Commons, 22/3/01; col. 510.]
Is that not the fundamental question at hand in considering the Bill today? The fact that the EU failed to answer that question is why Brexit happened.
The Bill’s opponents are mostly well-meaning and sincere, and I accept that, but many observers will see an effort to thwart Brexit and render it a failure. Some noble Lords pray in aid the need for scrutiny and oversight, but they were silent when 265,490 EU laws, judgments, directives, regulations and decisions—the mythical EU acquis—mostly taken behind closed doors and rubber-stamped by the European Council of Ministers, were forced on our sovereign Parliament between 1973 and 2020 by virtue of one Act of Parliament: the European Communities Act 1972, Section 2. No one voted for that, unlike Brexit and the Conservative Party manifesto in 2019, and the elected House just last month, which gave this Bill a healthy Third Reading majority.
The withdrawal Act 2020 specifically and formally recognises in Section 38 the right of the UK to exercise—in its own way, within its autonomy and independence through a sovereign Parliament—its own legal regime. It was also well understood in 2018 that the withdrawal Act was iterative and transitional legislation, so a sunset clause is both logical and inevitable, although perhaps arbitrary, and any attempt to extend it beyond either 2023 or 2026 will be viewed as lacking democratic legitimacy.
There is no evidence—this is the Chicken Licken argument—that the Bill will inevitably lead to a weakening of our own domestic legal rights and protections. In any case, no Government can bind the hands of their successors. Any policy development that is against the interests of working people in this country will be judged harshly, and the efficacy of those policies will be judged at a general election. That is the basis of democracy. It is not our place to second-guess the views of the electorate at a forthcoming general election.
We now have opportunities to develop new policies and make our own laws on animal welfare, on vaccine rollout, on freeports and on diverging from EU solvency rules. The Bill honours the commitment made to the British people in 2016 and 2019. I regret that I have not been able to rebut the findings of the committee report published last Thursday, but in due course we will do that in Committee and on Report. Essentially, EU legal and political supremacy has no place in a mature, independent, self-governing democracy.
Lord Shinkwin (Con)
My Lords, it is a pleasure to follow my noble friend Lord Jackson of Peterborough and to congratulate the noble Baroness, Lady O’Grady, and my noble friend Lady Bray on their impressive maiden speeches.
I am sure I am not the only one in this Chamber who longs for the day when we are united in holding the Executive to account for decisions and policies made here at home. But I cannot see how we can get to that point unless and until retained EU legislation no longer takes priority over domestic UK legislation. Surely that is a prerequisite for parliamentary sovereignty to be restored—and with it the fate of the people in Parliament and the Government’s ability to deliver—and indeed for the opportunities and benefits of Brexit to be realised. It is, as my noble friend Lord Frost said, the logic of delivering Brexit.
Now I recognise that some noble Lords are absolutely determined that this should not happen, and that the consideration of this Bill should be used as a chance to delay, in the hope that Brexit will never be enacted. I completely respect their right to hold such a position and to articulate it—if only they would. But I fear that instead we are in for another bout of Brexit-bashing amid the familiar and disdainful refrain that “they”—the people who voted leave—did not know what they were doing. As someone who knew exactly what he was doing when he voted leave, I fear that continued skirmishing simply delays the healing we so desperately need.
Like my noble friend Lady Bray, I have faith in our parliamentary democracy and in the people—as my noble friend Lord Jackson of Peterborough just reminded us—to ensure that, once accountability is brought home, as this Bill provides for in the medium to longer term, “they”, the voters, will decide at a general election whom to hire and fire on the basis of policies decided and delivered in the UK for the UK. They will have the final word. But for that to happen, this Bill—however uncomfortable we may find it—must pass first. I thank my noble friend the Minister for his tireless tenacity in ensuring that it does. He deserves our support.
Baroness Bennett of Manor Castle (GP)
My Lords, noble Lords have already heard from my noble friend Lady Jones of Moulsecoomb, a former Brexiteer who has seen the chaos we have already, before this Bill is enacted, and has said that she has had enough and wants to rejoin the EU, as the whole Green Party does. I was initially going to have a list—a chart—of all the practical problems but so many people have done such a great job on that already: the noble Lord, Lord Hendy, on labour rights, the noble Baroness, Lady Young of Old Scone, on all the Defra issues and Defra’s incapacity to deal with them, and the noble Lord, Lord Trees, on the issues being raised for the devolved Administrations, whom the Government so often seem to ignore.
That the Government lack the capacity to deliver the fantasy they are setting out in any kind of orderly way is clearly not stopping them, or perhaps not being orderly is the intention of at least some parts of the Government. In the financial sector there is a lot of money to be made from chaos, as Naomi Klein showed us so clearly two decades ago in her explanation of the shock doctrine of disaster capitalism.
It is very clear that this Bill, should your Lordships’ House not oppose it, will be a complete working out of the hashtag #ToryChaos. I urge all sides of your Lordships’ House to oppose the Bill—to vote it down. We have heard from a barrage of Cross Benchers and more than a few Conservatives how dreadful it is. The responsibility is in our hands. How bad does a swathe of Henry VIII clauses have to be before your Lordships’ House takes responsibility? I direct that remark particularly to the Benches to my right.
As I am speaker number 46, much has already been covered and I aim not to go over old ground. Instead, I am going to take a different approach and interrogate the Government’s own stated intentions with the Bill and see how lacking a base in realism they are. In the Government’s own words on the retained EU law dashboard, the justification is:
“This will allow us to create a new pro-growth, high standards regulatory framework that gives businesses the confidence to innovate, invest and create jobs.”
I want to unpack that. They say they want to remove outdated regulation that may be hampering growth. What does “outdated” mean? Is a protection for nature, for workers’ rights, for consumer rights outdated? Who is going to judge? What kind of growth? Surely your Lordships’ House will agree that we do not want growth in water pollution, air pollution or exploitation of workers. All-out growth, of course, is the ideology of the cancer cell.
On creating a high standards framework, I go back to our earlier discussion of the environmental improvement plan and the issue of plastics, highlighted by the noble Baroness, Lady Bakewell of Hardington Mandeville. We do not have a bottle deposit scheme in England, but many EU countries have one, so it is not EU rules that have stopped that. The French are racing towards getting rid of single-use containers in fast food stores—that is within EU rules.
On confidence to invest, I will quote an Institute for Government report from last year on business investment:
“The UK has persistently lagged other comparable countries.”
It is well behind Germany, France and Italy; it is not EU rules that are holding them back.
The Minister used the phrase “create … jobs” again. That is curious, when the lack of people for jobs is currently one of the UK’s great problems. We have 47,000 nurse vacancies, an 11% vacancy rate in the care sector and an overall vacancy rate of 1.3 million. Do we not need to find a way to use the human resources that we have now? EU rules are not stopping us doing that.
Finally, in introducing the Bill, the Minister spoke of “countless opportunities”. I assume he meant that rhetorically, but of course it is literally true: the Government are still trying to count the number of regulations and rules that the Bill covers—
Baroness Bloomfield of Hinton Waldrist (Con)
I suggest that the noble Baroness brings her comments to a close.
Baroness Bennett of Manor Castle (GP)
How can you make a law when you do not know what it covers?
Baroness Altmann (Con)
My Lords, in opening, my noble friend the Minister stated that the Bill will “benefit people and businesses”, but workers’ and employers’ organisations are united in their opposition to it: neither businesses nor consumers want the Bill. It would leave our country and its framework of rules, laws and protections in a state of prolonged uncertainty.
The Secondary Legislation Scrutiny Committee and a report from the Delegated Powers Committee offer their concerns in stark terms, with the Regulatory Policy Committee giving the impact assessment a red rating—namely, “not fit for purpose”. The Government admit that they do not even know which laws will be lost. I find this truly shocking. I have been in Parliament since 2015 and have watched in horror the stripping away of previous norms in the last couple of years. The idea that we should just throw all of our laws into a big hat, pull out a few, change a few and throw the rest away—without even knowing which ones are which—cannot be the way to run any country, let alone a serious parliamentary democracy. I ask my noble friend a simple question: how is this Bill in the national interest? Are we a parliamentary democracy? Does Parliament have the power to make, change and decide on laws, or has it been surrendered, or are we being asked to surrender it, to a group of Ministers, who may change very frequently? We do not know which Ministers will be in place at any one time.
I believe we have a duty to oppose this. Removing Clause 7’s mandatory directions to courts, removing Clauses 15 and 16’s excessive powers—never tightening regulations—and extending the irresponsible deadline of the end of 2023 would all be improvements, but they are not enough. Where is the comprehensive dashboard of all the laws and regulations that will be removed? Members of Parliament have no idea who will lose out and who will gain. Which laws will be deleted, which will be changed and how far can Parliament assess any of it?
This is not about Brexit; Brexit has happened. My noble friend Lord Frost said that it is part of the logic of Brexit, but I fear that Brexit is being used here as a smokescreen for a deregulatory power grab, the results of which are impossible to gauge—it is recklessly irresponsible. My noble friend insisted that this is not a power grab, but how else do we describe the Government asking Parliament to give up its power of scrutiny over the laws of the land and all its regulations by handing powers to Ministers to tear up regulations just because they may have an EU-related origin?
The overarching soundbite seems to be “regulations must be bad, so we have to get rid of them”, but “regulations” is basically another word for protections. Indeed, regulations can be drivers of growth in themselves; for example, environmental regulations can drive investment in skills, innovation and job creation. They protect every facet of our lives. In the words of the song,
“you don’t know what you got ‘til it’s gone”.
It is not too late for my noble friends and other noble Lords to pull us back from this brink.
Lord Whitty (Lab)
My Lords, the Minister will remember that, about four years ago, we were discussing the EU withdrawal Bill. It was flawed in many ways—it took a long time, and we were raising all sorts of points —but we all recognised at that point that we needed something such as that, because we needed some degree of continuity, stability and time to consider whether we wanted the EU regulations or whether we wished to change them. We agreed, in principle, that we needed a Bill. The opposite is true of this: 80% of speakers in your Lordships’ House today have been fundamentally opposed to the Bill. A larger proportion of representations from civic society, industry and business—almost everybody; not just the usual wussy bugbears of the Government, such as human rights lawyers, trade unionists and environmentalists—is opposed to the basic precept of the Bill. So I will scrap the rest of my speech, except to pose the key question: what is your Lordships’ House going to do about it, with this unanimity of view?
If they were put to the vote tonight, I would vote for the amendments to the Motion. While I would have preferred to try to block the Bill at Second Reading, the House of Lords does not do that. So what shall we do if we follow our normal course? We need to make some fundamental amendments to the Bill, and I will suggest five. We should establish, before we go any further, a proper parliamentary process for considering the remains of the EU regulations, which probably needs to be a body of both Houses. We should delete the arbitrary sunset deadline of December this year, which is less than 11 months away. We should delete the provisions in Clause 15(5), which mean that we can alter the regulations only in a deregulatory way, with a very narrow definition of deregulation. We should put in the Bill the declarations made by Ministers that workers’ rights and environmental protections will not diminish. We should also move back the ultimate sunset clause of the end of 2026, as we need more time. Frankly, the reindeer in Lapland can wait a bit; there is, after all, still a statute on our book that says that you are allowed to kill a Scotsman in Carlisle if he is carrying a bow and arrow, but not on a Sunday—we have never deleted that one. While we need to delete some laws in due course, let us take proper consideration under parliamentary procedure and not under ministerial fiat.
There is such unanimity of view that the House of Lords needs to get out of its pram and assert itself. If necessary, we should do so more than once. If the Government do their usual job of rejecting all Lords amendments, let us send it back again; then the Government will have to decide whether to use the Parliament Act, by which time we will be in a general election and, hopefully, the world will change.
Baroness Boycott (CB)
I would like to add that I am very keen to get out of the pram with the noble Lord, Lord Whitty—I think it is a very good idea. I want to make a few remarks about food. The regulations that we have about food, most of which have happened in Europe, are about protection. In fact, we do not get enough of it. So I am completely dismayed that everything in this Bill says that there can be no further strengthening of regulations.
At the moment, the food companies are allowed to kill us slowly. They cannot kill us quickly. In other words, if you walk into a high-street fast-food restaurant, you are not going to drop dead. But, if you lived on food from that high-street fast-food restaurant, you would probably drop dead, or at least have diabetes, or be in ill health by the time you were 50 or 60 and living a bad life because of bad food. So we need more regulation.
I agree with so much of what has been said tonight, but in my few minutes, I want to give your Lordships an idea of how much relates to food, farming and public health that we are possibly going to throw out of the window. This is about antibiotic use on farms; it is about harmonised testing; it is about the banning of the use of hormone growth promoters; it is about the import of meat from animals which have been treated with hormone growth promoters. People are now beginning to understand what this does to the human body—it ain’t pretty.
All food safety laws, including the maximum containment for BSE monitoring; setting maximum residue levels for pesticides; lists of countries allowed to import meat; health marks on meat; labelling of beef; country of origin labelling on food—remember the horse meat scandal—preventing river pollution from agricultural activity; training staff to perform these checks at borders; increasing border controls and emergency measures for the entry of certain goods; as well as the huge one about the transportation of animals, which has been something we have worked on with the EU and we have done well here. Any suggestion that we would lower our animal welfare standards in the pursuit of capitalism and a quick buck is, quite frankly, disgusting. Rules on the production and labelling of organic produce are also possibly going to be sunsetted. And, by the way, who came up with the idea that sunset was a verb?
I will quote the Food Standards Agency, because it has an extremely brilliant new chair, Susan Jebb. She said:
“In the FSA, we are clear that we cannot simply sunset”—
she used it—
“the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health”.
The task ahead of us to go through these rules is very challenging and it inevitably means that we will have to deprioritise other important work. Is this what we want? We do not have a great food system at the moment; I have banged on about it long enough. We now stand looking at an even worse one and making good people, such as Susan Jebb, go through basic laws. Please, let us find a way, as the noble Lord, Lord Whitty, said, to get out of the pram and stand up to this outrageous business.
Lord Balfe (Con)
My Lords, I draw attention to my interests in the register and congratulate my noble friend Lady Bray and the noble Baroness, Lady O’Grady, on joining us. I have known them both for some years and know they will make a distinguished contribution.
The points I have to make are about transport and somewhat technical, so the Minister may need to write to me rather than answer. They have so far identified 424 transport instruments that will be affected by the Bill, but no one is actually sure that that is the correct final number.
My first point is about safety legislation and regulation, which have developed to support the incredibly high levels of safety enjoyed by passengers and crew aboard UK-registered commercial aircraft. I remind noble Lords that the last fatal crash in the United Kingdom involving a passenger plane on the UK register was in 1990. There is a threat to the cohesiveness of this complex web of aviation regulations if some parts are inadvertently or thoughtlessly removed, possibly just because they are overlooked or forgotten. Safety regulation should always be amended in an evolutionary way, not by this slash and burn approach.
My second point concerns legislation which is relied on by the aviation industry in a secondary sense. Passengers with reduced mobility, environmental problems, security and consumer protections are all covered by mature and complex, often overlapping, regulation, and they are at risk should the Bill become law, with the supporting jurisprudence falling. There are also fatigue-related parts of the specific mobile worker working time directive which could be lost inadvertently.
Thirdly, there is a matter of confidence in the legislative process. People live in the confidence of a mature and effective safety system, which means that the hazard they face is near zero. Much of this legislation is secured by international agreement, some of it under EU law and some of it under other parts of the law. But, with this sunset clause approach, there is a danger that some of it will be discarded without thought, and the work to generate new legislation is, frankly, a distraction. We ought to leave this legislation where it is.
Finally, I draw attention to the fact that, in November 2022, the DfT briefed the DfT industry engagement forum on aviation safety on the Bill. At this cross-industry safety body, even the DfT made clear that its preference was for the maintenance of the sitting arrangements. It emphasised that it was finding it impossible to impress on people higher up in government that this was the officials’ policy: so officials in charge of safety are apparently being ignored. At an appropriate time, I will be looking for support to amend the Bill to look after the safeguarding provisions of safety legislation. I hope the Minister will make that unnecessary by bringing forward an amendment to exempt them.
Lord Cormack (Con)
If the Minister does not and my noble friend does, I will be glad to give him my support.
My Lords, I begin by congratulating our two new Members, my noble friend Lady Bray and the noble Baroness, Lady O’Grady. I want just to say to the noble Baroness, Lady O’Grady, that everyone in this country has reason to be grateful to her because, at a time when her party did not have its most responsible leadership, she was a model of temperance, pragmatism and good leadership, and we are all in her debt for that.
I am afraid I share the misgivings of those who do not like the Bill. That will not come as a great surprise to many people. Government by diktat and by deadline is never a good idea. It is particularly not a good idea when it marginalises Parliament in the process. What we face is a marginalisation of Parliament and an accretion of power to the Executive. Yes, individual Ministers may exercise that with discretion and good sense, but they should not have that power, which will be vested in them if the Bill goes through on this ridiculous deadline when there is no need for a deadline. We would have escaped the Irish protocol had there been a good acceptance that a deadline was not the best way to govern. We would have avoided many other disasters in recent years if we had adopted a similar process.
I say to my friends and colleagues who take a different view of the Bill, please, tomorrow, read the speeches of my noble friends Lord Hodgson of Astley Abbotts and Lord McLoughlin; one a self-proclaimed Brexiteer, who sees the constitutional difficulties in the Bill, and the other a former Government Chief Whip and a very good friend of mine who has done a wonderful job in his career in Parliament—I was proud that he came from my constituency. These are not ciphers; these are people who have strong, coherent views based on real facts.
Although my noble friend Lord Hamilton—I listened to him; he might just give me the benefit—tried to dismiss this Bill, it should not be dismissed. It is a constitutional monstrosity. That point was also made by my noble friends Lady Altmann and Lord Young of Cookham and many others around your Lordships’ House. We have a duty to parliamentary democracy. We do not have the final word, and nor should we; we are not the elected House. However, we have a constitutional duty.
Although people talked of great majorities in the other place, they were more or less on party lines—majorities of around 50 or a little more. They were not sweeping majorities, such as we have had with certain Bills before us, but majorities on party lines with people obeying the party Whip. As far as I am concerned—I have always adopted this stance throughout my 53 years in Parliament—a Whip is a guide. It is a request, not an instruction or order. I ask all my noble friends to remember that.
Lord Kirkhope of Harrogate (Con)
My Lords, setting out on a journey when you do not know where you are going seems somewhat unwise. Politicians sometimes have to pursue careers without certainty as to the outcome, but as legislators we really should have some idea of where we are going.
Here we are considering a rare situation: a complex Bill that sets out to abolish many regulations and accepted and important rules, without the foggiest idea of what may or may not replace them. The Government do not intend to replace some at all, but others are vital to businesses big and small and critical to other processes. They are to be abandoned without proper scrutiny or thought-through replacements. How many pieces of EU-derived legislation are we talking about? The Government do not know.
However, my concerns with this Bill are not about the principle but about the process. The scale of the task in the proposed timescale is enormous, and I am yet to hear a convincing argument as to why the end of 2023 has been chosen as a date for disposal in all cases. This creates significant resource issues and there is insufficient capacity in our Civil Service to deal with this effectively. Surely, it is also a distraction at a time when the Government’s focus should be on matters of much greater importance.
A danger presented by the sunset clause is that, as the default position, swathes of retained EU law could expire without our knowing it, leading to many unintended consequences such as gaps in the law and important protections inadvertently dropping out of regulation. Provisions in the Bill will also allow the Government to amend or revoke retained EU law by means of secondary legislation, much spoken of today, effectively sidelining Parliament and removing any form of scrutiny. We have spoken up about this “executive grab” on many occasions before, but this would be a stage too far. Maybe the other place has lost its appetite for proper scrutiny, but this House has not and must not. As my noble friend Lord Young said earlier, it is also noteworthy that its own independent Regulatory Policy Committee has called an impact assessment conducted by the Department for Business “not fit for purpose”.
The breadth of legislation affected is well reflected by the groups that have expressed deep concerns: the National Farmers’ Union, the Bar Council, the Institute of Directors—I could go on. We know that British business needs certainty, continuity and transparent regulatory processes. This Bill kills that concept. There is also the impact on the UK to consider. Given that the Bill will confer powers on both the UK Government and, where applicable, the devolved Administrations, there is concern that different approaches may be taken, producing uncertainty and divergence between our constituent nations.
The vast majority of retained EU law, which the UK—and I as an MEP—played a key role in shaping as part of a democratic process, is vital in many spheres. It would be better to look at the small proportion of retained EU law that the Government believe is not working and rewrite it under primary legislation once the impact of such changes is fully considered by Parliament.
Of course, those who are promoting this legislation claim that removing the influence of the ECJ and replacing it with the British courts in relation to derived laws is justification itself. Lawyers here will hardly—for once—be grateful for the confusion and uncertainty created by these new powers. Some areas of the law do need improving, but this must be done in a considered manner. The Government must extend the 2023 deadline, or at least allow Parliament the opportunity to consider what laws need replacement and what alternatives are to be put in place to maintain stability.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have a lot of sympathy with the furious frustration expressed today at being asked to grant an Executive a licence to legislate on thousands of legal instruments, all without accountability to Parliament or the public. I empathise because that anger at a democratic deficit was exactly what prompted me to vote to leave the EU. These very EU retained laws started life as secondary legislation impositions on the UK Parliament: they were directions from and obligations to the EU Executive. They were products of a supranational institution whose very design is to ring-fence swathes of lawmaking from national electorates and to delegate sovereign powers to unaccountable European Commissioners, the European bank, et cetera.
Do not get me wrong: there are problems with this Bill. The Government may have missed an opportunity to use the retained law issue as a spur for democratic renewal. They could have launched nationwide town-hall meetings and debates to guide decisions on what laws to keep or delete. But, to note, whatever the anti-democratic dangers of this skeleton Bill, there is a popular mandate behind the Bill’s intent: to fulfil a promise of taking back control of our legal system by abolishing EU supremacy. We do indeed need to give domestic courts more discretion to depart from retained EU case law—they can take it into account but should not be required to follow it. Also, the real constitutional outrage before us is not the Bill so much as the fact that some domestic primary legislation remains subordinate to EU law. I am not sure that complaints that the sunset clause means changes are rushed will cut it with the public. For many millions who voted to leave in the largest democratic vote in UK history, the impression is of sloth, prevarication and obstruction. They deserve a sense of urgency to finish what voters started in 2016.
Many of the core objections we have heard today seem to be driven by a failure of imagination. Many noble Lords have cited professional bodies, NGOs, employers organisations, trade union leaders and lawyers—all who appear unable to imagine social and economic progress happening without retained EU laws. Nowhere is this more gallingly illustrated than in accusations that the Bill will create a bonfire of workers’ rights. Surely this legalistic presumption is insulting to decades of self-organisation by working-class people who fought tooth and nail to win those gains. Maybe tell the RMT rank and file members—many of whom I campaigned alongside for Brexit—that their rights are safer in EU retained law than on their picket lines. Do I trust the Tory Government with workers’ rights? Of course not. But I do not trust EU law either. The first time I heard of the model strike-breaking legislation in the form of minimum service requirements was when it was being eulogised in the European Parliament. And, yes, I will be opposing it when it comes to this House.
The TUC briefing warns that this Bill jeopardises the agency workers directive, but we might note that this very directive is a device used to avoid paying agency staff at the same rate as employed staff. It has been used by the ECJ to break collective bargaining agreements via the 2007 rulings in the Viking Line and Laval cases. Other briefings warn us this Bill will drive a wrecking ball through women’s employment rights and equality legislation. Actually, a far greater threat to equality law in 2023 is not this Bill but the Scottish Government’s Gender Recognition Act. How disappointing that all those condemning this so-called dodgy legislation today have not been clamouring to oppose this material assault on women’s sex-based rights that threatens the UK-wide Equality Act.
The 4,000 retained EU laws were put on the UK statute books without Members of this unelected House crying democracy. Earlier, we were assured that it was all okay because, as one noble Lord explained, there were special behind-closed-door committees that scrutinised them. There was no mind that, no matter how many British voters might object to any one of those laws, there was nothing—zilch—they could do. The lack of outrage at that democratic deficit—
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Baroness has exceeded her time limit. Perhaps she could bring her comments to an end.
Baroness Lawlor (Con)
My Lords, it is a great pleasure to welcome the noble Baroness, Lady O’Grady, and my noble friend Lady Bray and to follow the noble Baroness, Lady Fox—so you have four noble Baronesses tonight on different sides.
I welcome this Bill to remove and reform EU law. It honours the country’s decisions in the 2016 referendum and the 2019 general election leave the EU, its legal orbit and its corpus of law. The voters’ mandate was clear—to restore sovereignty so that the laws under which we are governed reflect their wishes and the Parliament they send to Westminster honours their mandate. The Bill honours that mandate in two principal ways. First, it accords supremacy to UK law, ending that of the EU where there is incompatibility. Secondly, retained EU secondary legislation will, unless otherwise decided, lapse at the end of 2023—the sunset clause about which we have heard so much today.
Others have spoken about the economic potential of this measure. I shall touch on the concerns, which I do not share, practical and constitutional. The practical concerns relate to timing and uncertainty—what is thought to be too short a timeframe and possible uncertainty in so rapid a switch to a new system, which could, it is thought, be bad for business. But not only should the deadline be achieved quickly and smoothly if individual departments get down to the task—a task with which they will already be familiar through the laws for which they are responsible—but the more rapidly this corpus of secondary legislation is removed or adapted for UK law, and the sooner the two systems of law end, the greater the certainty for all. The constitutional concerns relate to what is seen as the Executive overlooking Parliament—or what others have called, in more colloquial language, a power grab.
We are speaking here about secondary legislation, which was introduced under the EU, much of it without proper parliamentary scrutiny. It did not reflect the wishes of the people of this country but was the result of a Byzantine system of laws under an unelected European commission and handed down from on high to Parliament. Moreover, there are good reasons for acting as proposed. Unlike the UK system of law, EU legislation is based on the continental system of law. It is a different form of law. It enshrines the precautionary principle covering every possible situation, but often does so too late for innovators and entrepreneurs. Four thousand is the number of regulations we have heard mentioned today, but more laws do not necessarily mean better law.
Moreover, Ministers are and will be accountable, but to Parliament, and more accountable and more important to the people of this country, who, at a general election, send Parliament to Westminster. It is from the people that the authority of Parliament derives, not from itself. Governments listen to the voice of the people and have acted decisively and rapidly throughout the centuries: workmen’s compensation in the 1890s; national insurance and pensions in the 1910s; widows’, orphans’ and old age pensions in the 1920s; holidays with pay in the 1930s; family allowances, national insurance, maternity allowance and legal aid in the 1940s. I therefore welcome this measure. I have no doubt that the Government will move ahead rapidly and I shall do nothing to delay the passing of the Bill.
Lord Randall of Uxbridge (Con)
My Lords, I think it is time I brought a bit of consensus—a bit of unanimity—to this House: I am a rotten politician.
Lord Randall of Uxbridge (Con)
You see? I got the House’s agreement straightaway. The reason is that I have been listening to these speeches, including the two excellent maiden speeches from my noble friend Lady Bray and the noble Baroness, Lady O’Grady—I congratulate them on speaking on a non-controversial Bill, as per the tradition—and I can see merit in many of the arguments. I do not want this to be about dogma, though. I can see that there is a polarisation between those for Brexit and those opposed to it—but not among everyone.
But the Bill is not about this. As many have said, and as my noble friends Lord McLoughlin and Lord Hodgson have pointed out in their committees, that is not the way forward with this Bill at this particular moment. My noble friend Lord Young made an extremely good point when he said that those people who thought that powers were coming home found that they had been delivered to the wrong address; they were not delivered to Parliament. I also congratulate my noble friend Lord Hamilton, who made a very good point: why were some of these laws that we are talking about and are worried about not enshrined in law previously? They have had time to work on this.
I will speak briefly; it has all been said, and there is no point in overdoing it. I declare my interests in conservation as in the register. I want to concentrate on one aspect that I have concerns about, which I hope the Government will be able to reassure me on at some stage: the habitats directive. The noble Baroness, Lady Young of Old Scone, also mentioned this. This was not brought in by the faceless bureaucrats in Brussels—well, it was, except it was actually UK-originated. We in this country pushed that forward, probably reluctantly, on a lot of the European Union. We cannot afford for that to go. You might say—as I am sure my noble friend will, in his customary agreeable manner—that there is no intention to do so at all, but I heard, not so long ago, that in the push for growth some of these regulations were potentially at risk. I do not want that.
All I would say is that I have been told over the years that with great age comes wisdom—well, not in my case. I think Voltaire said that with great age comes responsibility. I hope so, but I have to say to noble Lords that, in my case, with great age comes great cynicism, and I am afraid that I will need a lot more reassurance before I can allow the Bill to go forward in its current state.
Lord Anderson of Ipswich (CB)
My Lords, having spent too much of my working life in the innards of EU law, I am as conscious as anyone of its inadequacies, particularly for a country that is no longer able to shape the content and development of that law, as I think we once did rather successfully through our participation in its Commission—where I had the honour to work for Lord Cockfield—its Council of Ministers, its Parliament and its courts. So, it is right that we should engage forward gear, address the issue of supremacy and review the EU laws retained in our system, weighing in each case the advantages of continued alignment against the opportunities for striking out on our own.
Need this take what the Minister described as “decades of parliamentary time”? Not if we follow the model that literally stared us in the face for the first three hours of this debate: the Financial Services and Markets Bill, which students of the annunciator will know was being debated in Grand Committee. Hundreds of items of retained EU law, identified after a painstaking review, are listed in that Bill for revocation—a list which is, of course, amendable by Parliament. Powers are provided for new rules to be made, after consultation and engagement with parliamentary committees. That is a process which could and should be adapted to other fields in which the view is taken that it is time to move on. Yet this Bill takes another course: it asks us to sign away both the authority of Parliament and what remains of this country’s reputation for considered and responsible lawmaking.
What is to be done? Like the noble Lord, Lord Whitty, I offer a few ideas to start us off. First, on revocation, if the sunset clause cannot be moved, the Commons should at least have a veto over decisions to revoke, as provided by the cross-party Creasy-Davis amendment in the other place. This would place a guard-rail on the edge of the cliff.
Secondly, replacement: the astonishing Clause 15 should be removed, as recommended by our Delegated Powers Committee. If it must remain, as our Secondary Legislation Scrutiny Committee has said, we must contemplate what it described in carefully chosen words as
“a procedure by which the Houses can modify an instrument.”
Clause 16, its powers not time-limited like the others, also needs attention.
Thirdly, there should be a guarantee that powers in the Bill will not be used in a way that contravenes the Northern Ireland protocol or the level playing field provisions in the trade and co-operation agreement.
We should also address a point not much touched on today: the legal certainty issues in Clauses 4 to 7 noted by the Bar Council—commendably on its part, since we barristers thrive on uncertainty and, unamended, the Bill will provide rich pickings indeed.
Last May, in the debate on the gracious Speech, the noble and learned Lord, Lord Judge, asked,
“what is the point of us being here if, when we identify a serious constitutional problem, we never do anything about it except talk?”—[Official Report, 12/5/22; col. 130.]
He was right. The Bill is an attack on the constitutional role of Parliament, a view expressed eloquently across this House from the noble Baroness, Lady Parminter, to the noble Lord, Lord Hamilton of Epsom. The analogy of powers under the European Communities Act 1972 is a false one, as the noble Lord, Lord Verdirame, explained with authority, and even if it were otherwise, two wrongs would not make a right. The powers of this House are modest, and properly so, but if the views so firmly expressed today are not heeded by government, we will be justified in using every one of them.
Lord Hannan of Kingsclere (Con)
My Lords, I think I detect a certain limp and enervated air in the Chamber, largely as a result of the length of this debate—I am the 57th and last of the scheduled Back-Bench speakers. However, I fancy that it is also perhaps a little because of, in the wider sense, the length of the debate. We have been arguing these points for six and a half years now, and one sometimes feels that it is as though we were in the trenches in Flanders, with every clause—every legislative proposal—fought over as fiercely as a clod of dirt in no man’s land.
The battle lines were drawn this afternoon in the early speeches, and very little advance was made. My noble friend the Minister—and my noble friend Lord Frost, who I suppose is the ultimate author of these proposals—set out the case for the Bill, which is that you cannot have a special category of law in perpetuity on the statute books and that this was always intended to be a contingent and transitional arrangement; and then the case on the other side was made eloquently from all sides, from people in every party and on the Cross Benches, namely that we should be careful about transferring powers from the legislature to the Executive, and that this constitutes a Henry VIII clause.
I have a lot of sympathy with that view. In a perfect world, we would not need to do this. However, the world we inhabit is not perfect: it is gross, sublunary and very much imperfect. I wish that we had gone ahead and deregulated at some point over at least the last three years since Brexit came into effect, if not the last six years since the referendum. We have been very slow to seize the regulatory and competitive opportunities afforded to us by independence. However, as I say, we live in an imperfect world. The real reason for the haste was given—with the frankness that a Back-Bencher is allowed and Front-Benchers are not—by my noble friend Lord Lilley: if this corpus of law is left untouched, people will make all sorts of claims about the likely impact of its abolition, and we will be left with this image of some kind of Dickensian workshop at the end of the day. The only way of anticipating and disproving that is to go ahead and show that it was not the case.
I had not heard much mention of Henry VIII before I came here but I have been hearing it a lot recently. It is worth remembering that every law here that is being scrapped is itself a piece of secondary legislation that came before your Lordships’ House out of a system which really does involve a massively powerful Executive and a very weak legislature. I was in the European Parliament for 21 years. As many of my former colleagues on all sides here will recall, the European Commission, extraordinarily, is both a legislative and an executive body, despite being unelected. It has a monopoly on the right to initiate legislation. Yet very few of the people who are complaining now about these Henry VIII clauses complained then, and nor did they complain about the mother of all Henry VIII clauses, Sections 2 and 3 of the European Communities Act 1972—whoever the mother of Henry VIII was. Oh, it was Elizabeth of York, the luckless lady who lost so many of her kin in the Wars of the Roses.
I suppose that it is a very good thing that we do now care so much about the supremacy of our Parliament. It would have been nice if more voices had been raised when we had this torrent of law imposed from abroad, but better late than never. It would have been nice, as recently as the lockdown legislation, if there had been a little more concern about the powers being granted to the Executive, but joy shall be in heaven more over one sinner that repenteth. If one of the great advantages of Brexit was that it would restore Parliament to its centrality in our national story, then it is already working.
Lord Hacking (Lab)
My Lords, I have been given permission to speak in the gap, which I will do very briefly. I will start with how I come into this issue. When I first arrived in the House of Lords in 1972, there was the European Communities Act. I served on the European Community Committee, which later changed its name to the European Union Committee. Your Lordships will remember the brief intervention at the beginning of this debate by the noble Earl, Lord Kinnoull, when the Minister was speaking. He might find it more awkward, now that he is on the Woolsack, to intervene when the Minister speaks again. However, his intervention drew attention to the work of the European committees, in this place and the other place.
What did we do? We were given drafts from the European Union of directives and regulations. We were then given the opportunity to comment. We called evidence, we wrote a report, we sent it back to the Commission in Brussels and surprisingly, you may think, a lot of our recommendations were accepted. Therefore, when the Minister said that the European committees had no power to veto the drafting—I have forgotten his exact words—that got missed out, because we did have a good opportunity to do so in looking at the drafts.
Where are we now? I have heard every speech except one. I begin by giving the score. Only 10 speakers have spoken permanently pro Bill. One or two others have hesitantly spoken pro Bill, out of a total of 58 speakers. That gives a message, does it not? My noble friend Lady Young of Old Scone said that we should not pass this Bill. I suggested to my Front Bench that we should oppose the Bill—that we should not allow it to go any further. I am afraid that I was told that this was not the policy. I then moved towards the Liberal Democrat Benches. I got more favourable noises but certainly not “We should not pass this Bill”.
Lord Hacking (Lab)
I am sorry. I was tempted then to move over to the noble and learned Lord, Lord Judge, and his flock, the Cross Benches. He did not say that to me, but I am a former Cross-Bencher and I think that his answer was, “I have no control over the Cross Benches”. I even thought that, under the generalship of the noble Lord, Lord Heseltine, there might be a cohort from the Government Benches to move that this Bill do not pass. I am afraid that I failed in all those endeavours, but that is clearly my wish.
Baroness Ludford (LD)
My Lords, the noble Lord, Lord Hacking, might understand that there are lots of things that the Liberal Democrat Benches might want to achieve, but, unfortunately, we cannot do things on our own and we need rather considerable support from other Benches.
We have heard some very eloquent and forceful criticisms of the Bill. I commend all those speeches, not only but especially from my own Benches. I am sorry that I lack time to react to most of the speeches I appreciated, though that of the noble and learned Lord, Lord Judge, has to be a witty exception. I will nick the terms used by the noble Lords, Lord McLoughlin, Lord Hannay and Lord Cormack, and the noble Baroness, Lady McIntosh, respectively: “all powers, no policy”, “scrappage scheme”, “constitutional monstrosity” and “the gift that keeps on taking”.
I warmly congratulate the noble Baroness, Lady O’Grady of Upper Holloway—we come from the same borough—on her maiden speech. She adequately and expertly refuted the assertion, made by the Minister a couple of times in this Chamber in the past fortnight, that UK employment law owes nothing to EU law. She is a very valuable addition to this House. I also welcome the noble Baroness, Lady Bray of Coln. I hope that she did not learn the wrong things from Ken Livingstone.
The contribution of the noble Lord, Lord Heseltine, reminded us how un-Conservative, and certainly un-Thatcherite, the Bill is, with its revolutionary approach to eradicating at a stroke EU laws crucial to business, as well as to unions and many other aspects of life. He rightly warned that any potential investor would be deterred by “a giant question mark”.
Only a few voices—was it 10? I did not count quite that many—were raised in fervent support of the Government. Otherwise, we heard from across the House, as we are hearing from commentators and interested parties outside, that the Bill is extremely unwise, ill considered and reckless. I do not know of anyone outside a rarefied circle of cheerleaders—that is, anyone sensible and reasonable, even for a Conservative—who thinks the Bill is a good idea. Can the Minister cite anyone?
Stephen Kon, competition lawyer at law firm Macfarlanes, said that it is hard to think of a piece of legislation that has been so broadly and deeply criticised. The Hansard Society says that the Bill’s approach to REUL is “fundamentally and irresponsibly flawed”. Journalist Peter Foster—from that woke, left-wing rag, the Financial Times—has said that this Bill
“is a reminder that the outwardly sensible Sunak government still comes with some pretty crazy baggage”.
The distinguished legal commentator, Joshua Rozenberg, has called the Bill “dangerous”. The experienced George Peretz KC says:
“Fiddling around with the law when you don’t know what the consequences of the fiddle are is not obviously a good idea”
and suggests that
“if you don’t know what the effect is of what you are doing, don’t do it”.
Sir Jonathan Jones KC, former head of the Government Legal Service, says
“it’s a very bad way to legislate”.
The Bar Council, as others have quoted, says that the Bill
“will damage the UK’s reputation for regulatory stability, predictability, and competence on which growth-promoting investment in critical sectors of our economy depends”.
As has been much quoted, the independent Regulatory Policy Committee of experts red-rated the impact assessment for the Bill as “not fit for purpose”. The chief executive of Wildlife and Countryside Link said that scrapping environmental laws would be “legislative vandalism”.
Noble Lords get the picture. But after director-general of the CBI, Tony Danker, said the Bill risked uncertainty and chaos, the Minister last week breezily brushed aside the fears of the boss of UK’s top business organisation as wrong. We are well beyond the era when the Tory party even claims to be the party of business. It has just gone rogue. This Bill is not some arcane or obscure exercise. It will affect substantive law and thus businesses and all kinds of organisations in the many fields already cited in this debate.
I will say a word to those complaining that this Parliament had no ability to block or amend legislation once it was agreed in Brussels. It was a supranational organisation, as has been said. Please remember that democratically elected MEPs and the UK Government made the decisions on the legislation, not in fact the European Commission, apart from some regulations about sheep meat prices or something. Of course, many of us in this Chamber are former MEPs.
The UK was rarely outvoted in the Council, and if there was a gap in UK parliamentary scrutiny, that was a failing of Westminster, since other national Parliaments, such as the Danish one, insisted on full accountability from their Governments on what they were agreeing to in Brussels. Indeed, they had a veto on what their Government did. I am sorry: do not blame Brussels, blame Westminster.
These are just some of the objections to the Bill. The huge legal uncertainty created will be very damaging. Businesses, workers, consumers and citizens are in the dark. Even lawyers, who might be expected to relish all the work coming their way, are quaking in their boots. The Government have no idea of how many instruments the Bill will affect; there is indeed no guarantee that all retained law subject to its provisions will be identified.
There will be very considerable legal confusion. For instance, no one knows what removing the supremacy, direct effect or general principles of EU law will mean. The meaning not only of regulations but of primary legislation, such as of the Equality Act 2010—already the subject of huge controversy—will not be the same next year as this. As our Delegated Powers Committee says, the Government
“need to explain what is behind the headlong rush and the impending and arbitrary end-of-year deadline”.
Can the Minister give the committee, me and others who have quoted this a coherent reply?
Where regulations are restated, previous judgments relating to these instruments would no longer be binding; workers and employers would be back at square one, and issues will have to go through the judicial system again, with all the length and expense of that process. The noble Lord, Lord Callanan, confirmed this in his opening speech, though he seemed to think it was a good idea. If lower courts are able to reject ECJ decisions, this may precipitate more—even opportunistic —litigation by some less reputable companies.
What happens if there are errors, either because the hard-pressed Civil Service, with its high turnover of staff, has perhaps lost its institutional memory and misses something, or if a regulation is accidentally switched off at the end of 2023? Is the Civil Service adequately resourced for this exercise? BEIS has said it needs 400 extra staff: what a waste when Whitehall faces so many other pressing issues.
The Government’s proposed wholesale deregulation—a slash and burn exercise—gives stakeholders no chance to say what should be kept. This is sweeping away the European Union (Withdrawal) Act 2018 settlement which took a long-term approach, allowing departure from EU law over time and after consultation. The Government made a political commitment during the passage of that Act that, aside from technical tidying-up, primary legislation would be needed to make significant policy changes. This Bill breaks that pledge. It is simply anti-democratic and authoritarian in conferring massive powers instead on the Government. The Delegated Powers Committee called it
“a blank cheque placed in the hands of Ministers”,
as others have quoted.
The unexpected consequences of kicking out the EU undergirding of UK law could be very perverse and damaging, with what is left lacking legal coherence. In the field of construction, the Building Safety Act 2022 is premised on definitions in a set of 2015 regulations—the Construction (Design and Management) Regulations —implementing an EU directive and creating a framework for health and safety in construction. Unless these regulations are kept switched on, the 2022 Act of Parliament will have its underpinning yanked away. What then exists?
In employment rights, despite what the Minister has recently claimed, there are many topics for which EU law is the bedrock, even if added to—or gold-plated—in UK law, since, after all, EU law always only provided for minimum, not maximum, standards. Parental leave had no basis in UK law before the EU legislated, and it could be entirely removed or drastically altered by the Bill.
Many of the regulations affected are in areas of devolved competence. My noble friend Lady Randerson and others eloquently explained the harmful effect of this Bill on the devolved Administrations. Others have talked about the consequences for Northern Ireland and for the level playing field provisions in the trade and co-operation agreement—which, if we break it, could lead to trade retaliation. Will the Minister tell us about that?
To conclude, if, as the Government claim, there are real regulatory gains from altering retained EU law which could be agreed with or not, there are much better ways of doing that that have already been identified by this very Government, as others have said. The Financial Services and Markets Bill, which was quoted by the noble Lord, Lord Anderson of Ipswich, makes provision for an extensive new regime which has already been subject to considerable consultation. The Procurement Bill brings in new rules on that topic, and then there is the review led by Professor Sir Patrick Vallance to examine EU regulation in high-growth sectors. However, primary legislation and expert reviews require real, careful work, not a simplistic, arbitrary and ideological presumption that EU law must be slashed. They need Bills to be brought forward asking Parliament to legislate with democratic input from MPs, but also input from affected stakeholders of all kinds.
In short, this is a very bad Bill that does not deserve a place on the statute book—certainly not in the form in which it is now before us. The Minister referred in his opening speech to good governance. I think we would like to see some.
Lord Collins of Highbury (Lab)
My Lords, I congratulate my noble friend Lady O’Grady on her maiden speech. She showed what a real champion for equality and fairness she is. I must admit that little did I know when I interviewed her for her first job in the trade union movement in the 1980s, working with my noble friend Lady Prosser, that she would go on to break the glass ceiling and become the first woman general secretary of the TUC. I am immensely proud of her. I also congratulate the noble Baroness, Lady Bray of Coln, and certainly I found her speech inspiring. I like the idea that she values debate and respects all sides of that debate, and I look forward to her future contributions in the Chamber.
The theme of this debate is clearly about ensuring certainty that avoids chaos. I must admit that reading the Sunday Telegraph this week, we have all had recent experience of how uncertainty can create chaos, and that is something that we certainly want to avoid. Of course, EU law which applied to the UK was turned into domestic law to provide the maximum certainty after Brexit—as we have heard in this debate, laws related to farming, food standards, the environment, employment, financial services, privacy and much more. Reference has been made to CBI director-general Tony Danker, who said that this Bill is creating huge uncertainty for UK firms and risks throwing industry into some chaos. The Law Society said it could see a devastating impact on legal certainty in the UK and a negative impact on its status as an internationally competitive business environment.
Where did we start? Where was the policy? In the Explanatory Note to the European Union (Withdrawal) Act 2018, as the DPRRC report reminds us, the Government’s policy on repealing and replacing retained EU law was that it would be for democratically elected representatives in the UK to decide on changes after full scrutiny and proper debate. No one disputes the need to consider the status of those laws whose placed on our statute book depended on our EU membership.
Noble Lords in this debate have made it very clear: this should not be an ideological debate. This is not about Brexiteers and remainers; it is about how we make our laws. That should be something that unites us all. This rushed and chaotic process, putting power over huge swathes of law in the hands of Ministers without parliamentary oversight, is simply not right.
As we have heard, this Bill seeks to: sunset most retained EU law by the end of 2023; change the way in which any retained EU law that Ministers decide to keep is interpreted; and provide Ministers with wide-ranging powers to restate, revoke or replace retained EU law. If Ministers want retained EU law to fall away—the noble Lord, Lord Kerr, made the point so effectively—all they need to do is nothing: take no action. The decision to take no action is not subject to parliamentary scrutiny.
The 28th report of the SLSC draws attention to the risk of “inadvertent omission” because departments have failed to identify key laws, and to the absence of parliamentary scrutiny of retained EU law that Ministers have decided should be sunsetted. Far from creating new, high standards of regulatory framework, the replacement legislation cannot increase standards; as we have heard in the debate, it can only keep them the same or make them lower. Reducing standards or allowing key pieces of legislation to simply lapse risks the UK’s trading relationship with the EU at a time when we can ill afford it.
As we have heard, the uncertainty is: what are we talking about? The Explanatory Notes first cited 3,200 bits of REUL legislation. The dashboard refers to 3,745 bits. It grows each week as we examine it. We do not know what we are leading ourselves towards.
The Minister constantly states that he is proud of the UK’s record on employment standards, which, he says, were never dependent on us mirroring the same rules as the EU. Well, what is at risk? Why do workers and their representatives remain concerned? The TUC lists examples of rights that could be lost, and we have heard noble Lords refer to them today: holiday pay; agency workers’ rights; data protection rights; protection of pregnant workers, and rights to maternity and parental leave; protection of part-time and fixed-term workers; rights relating to working time, including rights to daily and weekly rest; maximum weekly working time; paid annual leave and measures to protect night workers; protection of workers’ rights on the insolvency of their employer; rights to a written statement of terms and conditions; collective consultation with workers’ representatives when redundancies are proposed; and protections of terms and conditions for workers whose employment is transferred to another employer.
I remind noble Lords that, last week, my noble friend Lord Woodley raised this matter, and he raised it again today: the protection known as TUPE. He asked the Minister a straightforward question: will he guarantee that TUPE protections will not be scrapped? The response he got was what all government Ministers across Whitehall appear to be saying, which is, “We will look at that and see whether it is appropriate for the UK economy and, if necessary, we will modernise, update or replace it”.
That is why workers are concerned. Statements such as that raise uncertainty and concern. I hope the Minister will answer that direct question tonight: will he keep that protection for workers who are threatened because, through no fault of their own, somebody has bought their company or it has been transferred? We need to have those guarantees. On part-time workers, the prevention of less favourable treatment regulations was raised by noble friend Lord Prentis last week—and he got absolutely no response on that either.
Perversely, the Minister argues that the sunset date provides certainty—a target by which departments can look at their body of retained EU law and decide whether it needs replacing, retaining or updating. A sunset clause is arbitrary. It leads to all kinds of errors and mistakes. The Minister argues that Parliament is not being refused the opportunity to discuss these issues, and that regulations that are updated or changed will come back to Parliament for approval. He forgets to mention that retained EU laws will simply fall away by being sunsetted.
We have heard in this debate from the noble Lord, Lord Hodgson. I echo the remarks that he made on 12 January in the debate on the Select Committee report Democracy Denied? By the way, those reports are excellent reading. I also recommend that people look at that debate on 12 January. The noble Lord said:
“Nobody … could reasonably argue that secondary legislation is as effectively scrutinised as primary. … Secondary legislation is unamendable: it can be passed or rejected but it cannot be amended.”
In that same debate, the noble Lord, Lord Blencathra, a former Government Whip and Minister, said that
“when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual.”
He also reminded us that:
“The excuse that excessive delegated powers are needed because Parliament cannot move quickly enough has been proved false on many occasions, not least by Parliament’s reaction to Covid legislation.”—[Official Report, 12/12/23; cols. 1532-37.]
We have heard Covid mentioned a lot in today’s debate, but it was Parliament that made those decisions and reviewed those instruments. We should not forget that.
The DPRRC’s clause-by-clause examination of the Bill is devastating. I have never read a report like it. The committee recommends that, of the six most important delegated powers contained in the Bill, five should be removed from it altogether. It argues that the shortcomings of this hyper-skeletal Bill justify its approach. I am sure that in the coming weeks we will see noble Lords from across the House speaking up for democracy by seeking legal certainty regarding all the rights and protections that this legislation will impact, and for the restoration of direct parliamentary oversight and accountability.
The overwhelming view expressed in this debate is that a reasonable balance can be struck between an efficient process for managing the transposition of legislation and ensuring democratic accountability where changes to rights are intended. None of the changes argued for today would prevent the Government from reviewing, reconsidering and, where necessary, replacing retained law, but Members from across this House want to ensure that the process used to do so is transparent, accountable and, above all, driven by the will of Parliament. We are here not to frustrate this legislation but to fix it together so that we can take back control to our democratic institutions.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, this has been a characteristically excellent debate which I think reflects the importance of the Bill. Before I get on to the substance of the issues raised, I will congratulate our two maidens, the noble Baroness, Lady O’Grady, and my noble friend Lady Bray, on their fine maiden speeches. I hope that the House is a similarly engaged audience to the one that my noble friend Lady Bray had when she was presenting for the British Forces Broadcasting Service in Gibraltar. I noted with interest that she studied medieval history at St Andrews. I am also told that she was fired as a PPS in the other place in 2012 for voting against the coalition Government’s plans to reform this House. With those two bits of excellent experience, she will clearly make an excellent Member of this House.
Then we come on to excellent contribution from the noble Baroness, Lady O’Grady. I profoundly disagreed with all of it, of course, but she put it extremely well. I think it was the noble Baroness, Lady Andrews, who referred to her choice of “A Change Is Gonna Come” on “Desert Island Discs”. I was slightly more concerned by two of her other music choices on that programme—“Pieces of a Man” and “Burn It Down”. I hope neither of them is an omen for me or the House on some of our future debates. I congratulate both maiden speakers; I thought they did extremely well.
As we have had 60 speakers today, I am afraid noble Lords will understand that I cannot answer every Peer directly. I am sure that many of the points will come up again in Committee. I seem to have heard an awful lot of them in the Brexit withdrawal debates from essentially the same people, but I am sure we will raise the points again.
Before I turn to the wider contributions, let me first address the regret amendments tabled today by the noble Lord, Lord Fox, and the noble Baroness, Lady Chapman. I am sure it will come as no surprise to either noble Lord that I disagree with the amendments on all points. I do not accept the characterisation that these powers are unprecedented or weaken the scrutiny of Parliament. Indeed, as has been said many times, many of these laws were brought into force with no scrutiny of any kind by this Parliament and were merely directly imposed by Brussels. I noted with interest my noble friend Lord Lilley’s remarks on how this process really worked in practice from the point of view of a UK Cabinet Minister.
Furthermore, the sifting committee for the more substantial powers will ensure that Parliament can debate and vote where it deems appropriate. The scrutiny role of Parliament is not reduced but rather enhanced through this Bill. Of course, we respect the role of the devolved Administrations, which is why the majority of the powers contained in the Bill are conferred on devolved Ministers. It will be up to the devolved Ministers and Administrations to decide which direction they take their stock of retained EU law.
On the final two points of the regret amendments, we should of course aim to complete these reforms as quickly as practically possible. They are necessary to seize the benefits of Brexit and I do not accept that this will cause significant uncertainty nor that, if it did, uncertainty alone is a reason not to make these legislative changes. With regard to environmental law, workers’ rights and the other areas that noble Lords have referred to, I refer all noble Lords to the commitments that have been made by me in this House so far—and I will no doubt do so many times in the Committee debates to come—and by Government Ministers in the other place.
I move now to the substantive points raised in the debate. I thank my noble friend Lord Frost for setting into motion the two reviews into retained EU law that have culminated in the Bill—he has a lot to be proud of—and for explaining the importance of removing REUL from the statute book.
I also pay tribute to the remarks of my noble friends Lord Hannan, Lord Lilley and Lord Jackson for making the obvious point that Parliament will have much more say over this legislation than it did during our time in the EU, when direct EU legislation did not receive full parliamentary scrutiny before it became law in the UK. Had we not left the EU, much of this legislation would be amendable by the EU as if it were secondary legislation, without any direct input from this Parliament at all. By treating this legislation in the same way as domestic secondary legislation for amendment purposes, it can be amended much more easily by delegated powers. It is therefore appropriate that the changes to this body of legislation can be done via secondary legislation. Requiring REUL reform to be subject to primary legislation would take decades in many cases and would see a marked reduction in the UK’s dynamism. My noble friend Lord Dobbs amplified this point, emphasising that the Bill has come through the elected Chamber of this Parliament with only government amendments. It is only right and proper that we view the Bill in light of that majority.
I also commend the excellent speech of my noble friend Lord Jackson, who was right to note the majority that the Bill received at Third Reading in the other place and the lack of concern that this House often showed to powers that were exercised under the European Communities Act—another point also made by my noble friend Lord Hannan.
My noble friend Lord Howard of Rising made it clear that there are many opportunities for us to seize as part of Brexit. He is right to laud the success of our vaccine programme and to note, in the same vein as my noble friend Lord Lilley, that Parliament will have much more of a say in regulation that works on behalf of the UK.
I was disappointed by the remarks of the noble Lord, Lord Rooker, about parliamentary counsel and their work and approach. He is correct that parliamentary counsel are civil servants working for, and delivering the priorities of, the Government of the day. However, although I acknowledge the strength of the noble Lord’s views, it is not in keeping with the customary courtesy of Members to criticise those who cannot defend themselves in this Chamber.
The noble Baroness, Lady Chapman, and my noble friend Lord Hamilton of Epsom raised questions about why we are changing the EU withdrawal Act only five years after its passage. It was a bridging measure and was never intended to be on the statute book indefinitely; we discussed it at length at the time. Now that our future relationship with the EU is known and we have established a sense of legal certainty, it is right for us to review retained EU law. The Bill ensures that only retained EU law that we judge is right for the UK is assimilated into our statute book.
The noble and learned Lord, Lord Judge, the noble Lord, Lord Beith, and many others are concerned that the sunset could be a regulatory cliff edge. In our judgment, a sunset is the quickest and most effective way to accelerate the review of the majority of retained EU law. A major cross-government programme is already under way to identify retained EU law that can be reformed, repealed or replaced. When the Bill receives Royal Assent, a cross-government legislative programme will commence to sensibly manage change ahead of that sunset date. Without the sunset as a default for retained EU law, we risk unsuitable or obsolete EU laws still being on our statute book in 10, 15 or even 20 years’ time, which should not be acceptable to anyone in this House. We do not need regulations on the issuing of a certificate for the export of cheeses that the UK has never exported. Nor do we need regulations that grant additional aid for the consumption of butter, or hundreds of other obsolete EU regulations. A sunset ensures that we can quickly and easily remove outdated legislation of this nature.
Many noble Lords, including the noble Earl, Lord Kinnoull, and the noble Baroness, Lady Chapman, made claims that the Government will need to pass nearly 4,000 SIs before the end of this year. That is absolutely not the case. Our work to date has indicated that the number of SIs would be in the hundreds, not the thousands. Of course, this is still a significant task, but it is certainly not the impossible one that has been portrayed today. My noble friend Lord Udny-Lister is right that our first-rate Civil Service and legal service are more than capable of delivering the work required.
A number of noble Lords raised environmental concerns, as they often do, including the noble Baronesses, Lady Parminter, Lady Young of Old Scone and Lady Bennett, who all claimed that this will somehow remove environmental protections. I can absolutely provide the reassurance that my rightly cynical noble friend Lord Randall was looking for. The Government will ensure that we continue to improve environmental outcomes for this country. The UK has a long record of environmental protection, most of which was never dependent on the EU. The Bill will not change that, nor will it change the world-leading Environment Act that this Conservative Government are proud to have passed.
The noble Lord, Lord Trees, questioned whether this means that we are resiling from our commitment to food standards, and the noble Baroness, Lady Boycott, questioned what this means for the FSA. The Government remain committed to promoting robust food standards, both nationally and internationally, to protect consumer interests, to facilitate international trade and to ensure that consumers can have confidence in the food they buy.
The trade unionists, the noble Lords, Lord Monks, Lord Hendy and Lord Woodley, have claimed that the Bill will lead to a downgrading of UK workers’ rights. We have had similar debates a number of times across this Chamber, and I have no doubt that we will continue to have them on issues such as TUPE. As I have said many times before, their claim could not be further from the case. We are proud of the UK’s excellent record on labour standards. We have one of the best workers’ rights records in the world, one of the lowest rates of unemployment and one of the highest minimum wages. As I have repeated many times, our high standards were never dependent on our membership of the European Union; indeed, in many areas, the UK provides for stronger protections for workers than are required by minimum EU standards.
The noble Earl, Lord Kinnoull, and the noble Baronesses, Lady Randerson and Lady Andrews, raised the important issue of the impacts of the Bill on devolution. The provisions in the Bill do not affect the devolution settlements, and they are not intended to restrict the competence of either the devolved legislatures or the devolved Governments. Rather, the majority of the powers will be conferred concurrently on the devolved Governments, enabling devolved Ministers to make active decisions on retained EU law in their respective areas of devolved competence. The UK Government are committed to respect the devolution settlements to safeguard the union and to ensure that the provisions in the Bill work for all parts of the UK, and we will continue our discussions with the devolved Administrations with that in mind. When using the powers in the Bill, we will use the appropriate mechanisms, such as the common frameworks, to engage with the devolved Governments to allow for proper joined-up decision-making across this United Kingdom.
Speaking of devolution, the noble Baronesses, Lady Chapman and Lady Hoey, raised concerns about the specific impacts of the Bill on Northern Ireland. The territorial scope of the Bill will be UK-wide. It is constitutionally appropriate that the core measures in the Bill apply across all parts of the United Kingdom. As my honourable colleagues in the other place have committed, the UK Government will ensure that the necessary legislation is in place to uphold the UK’s international obligations, including the Northern Ireland protocol and the trade and co-operation agreement, after the sunset date.
To answer the specific question from the noble Lord, Lord Fox, on case law, the REUL Bill does not require the creation of brand-new case law across the piece. The Bill’s measures facilitate UK courts to treat retained case law in a similar way to judgments of other foreign jurisdictions by encouraging departure from retained case law in a careful and managed way to allow for the proper development of UK law.
Many noble Lords and noble Baronesses, including the noble Baroness, Lady O’Grady, have expressed concern about Clause 15(5) through the somewhat misplaced fear that it means that standards can only be lowered. Let me be clear: that is not a correct interpretation. By removing unnecessary or unsuitable regulations, or by consolidating multiple regulations into one, it will be perfectly possible to add new regulations with higher standards under the powers to revoke, provided that the overall regulatory burden is not increased. My noble friends Lady Bray and Lady Lea recognised that point in their speeches, noting that we can keep our high standards with the Bill. I can confirm that the Government share their ambition to ensure that the body of legislation is better suited to the UK. The review of legislation will enable us to improve regulation for business and the economy, which I also hope addresses the concerns of the noble Lord, Lord Hannay, although I suspect that it will not.
On business and trade, my noble friend Lady McIntosh raised the issue of imports and exports. I can confirm that we have already modified EU legislation covering the use of export restrictions to manage short supply, to make it effective in the UK following our exit from the European Union.
My noble friends Lord McLoughlin and Lord Hodgson spoke eloquently about their respective committee reports. The Government welcome the publication of the reports and I look forward to engaging with the recommendations that have been made. I hope my noble friends will understand that, given the reports’ recent publications, I cannot yet comment on what position the Government will take on the recommendations, but I will carefully study them and a formal response will be made in the usual manner.
Turning to the many comments on impact assessments and post-implementation reviews made by many noble Lords, including my noble friend Lord Hodgson, we recognise their importance and departments will be expected to take a proportionate approach to analysing the impact of SIs. For smaller-impact measures, this could include the completion of the impact section in an Explanatory Memorandum, a de minimis assessment or a fuller impact assessment, dependent on the regulation in question. Where expected business impacts exceed the current threshold of £5 million of annual business impacts, in the usual way departments will need to submit a full impact assessment for independent scrutiny if their change is a regulatory provision, as defined in the current better regulation framework, to which we are fully committed.
I am, of course, grateful for the recent recommendations of the Secondary Legislation Scrutiny Committee on impact assessments and will ensure that my officials make clear to departments the expectations for providing enough information to Parliament when studying new regulations. Departments will be expected to conduct proportionate monitoring and evaluation of their measures up to and including full post-implementation review. My officials will be providing more guidance on this to departments shortly.
I would like to reassure my noble friend Lord Balfe that the Government are committed to maintaining comprehensive safety standards, as he would expect, including in civil aviation and all manner of transport. Similarly, I can reassure the noble Baroness, Lady Ludford—although again I suspect she will not accept the reassurance—that, while I do not agree with her assessment of the level of scrutiny that laws received within the EU institutions, I can confirm that the Government will not, of course, weaken building safety standards.
This Bill will ensure that we can end retained EU law as a legal category, simplifying and bringing certainty to our statute book. It will also ensure that we can bring forward genuine reform, now ensuring that the UK’s regulatory system is suited to our needs. The Government are determined to see the opportunities of Brexit and I know that the Bill delivers that result.
Lord Fox (LD)
My Lords, it has been an absorbing and long debate and I will not extend it more than a few seconds. I did not expect the Minister to embrace my regret amendment and I am pretty sure that the noble Baroness, Lady Chapman, did not expect him to embrace hers either; however, noble Lords around the House picked up on all the issues set out in both amendments and amplified them in a very strong way. The scale of the disquiet over the Bill has really been emphasised in this debate, and if the Minister was in any doubt as to the level of disquiet the Bill is generating, then that has been dispelled. But the extent of this concern is itself an opportunity for all of us to work across the Chamber to produce the amendments and the changes that the Bill needs to make it fit for purpose. We on these Benches undertake to work with everybody, across parties and across Benches, to try to make sure that in Committee and particularly on Report, those changes are brought forward to your Lordships’ House. In the meantime, I beg leave to withdraw my amendment.
Baroness Chapman of Darlington
At end insert “but regrets that this Bill threatens workers’ rights, environmental standards and consumer protections; that it has been introduced without a complete understanding of its scope or impact or what will replace the laws it revokes; that it creates damaging confusion and disruption in the economy during a cost of living crisis; is opposed by both business and workers representatives, including the Confederation of British Industry and the Trades Union Congress; that its legislative ‘sunset’ is arbitrary and will create a regulatory cliff-edge; that it ignores the concerns and lacks the consent of the devolved administrations; and that it undermines democratic scrutiny and accountability, providing ministers with unnecessary and unjustifiable powers.”.
Baroness Chapman of Darlington (Lab)
My Lords, I do not wish to move my amendment.
Lord Callanan
That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order: Clauses 1 to 6, Schedule 1, Clauses 7 to 10, Schedule 2, Clauses 11 to 20, Schedules 3 and 4, Clauses 21 to 23, Title.
Retained EU Law (Revocation and Reform) Bill
Thursday 23rd February 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (22 Feb 2023)
Baroness Burt of Solihull
Member's explanatory statement
This amendment excludes the Maternity and Parental Leave etc Regulations 1999 from the sunset in Clause 1. These Regulations confer rights to maternity and parental leave.
Baroness Burt of Solihull (LD)
My Lords, I am disappointed that noble Lords are not staying to hear my words of wisdom. I rise to move Amendment 1 standing in my name and I apologise to the House for not being able to attend the Second Reading of the Bill, but I have specific concerns about its impact in relation to my equalities brief.
It has fallen to me to lead on this group of amendments, which are related to employment and all make the same point relating to the Bill. As we know, it will sunset much of EU retained law by 31 December this year, unless an active decision is taken to retain it. That is legislation thoughtfully discussed and thought through over decades gone in a few short months from now, regardless of the consequences and the effect on people in this country. We know that there are thousands of pieces of legislation that could fall under the axe, but not even the Government know exactly how many. We do not know what consequences will be wrought when the legislation that the Government do not even know about, or have not considered, is suddenly not there anymore. Where there is no legislation, there is a recipe for a free-for-all—a race to the bottom where lack of protections in standards and for the workforce will delight cowboy companies, which will be able to undercut their competitors, ignore safety standards, ignore everything in pursuit of profit and put competitors who retain ethical standards out of business.
I am intrigued to know who the Government think they are going to please with this legislation. It is not the business world—apart from the least ethical members, of course. It is not small businesses; a CIPD poll found that only 6% of small businesses saw employment legislation as a barrier to growth. A group of business and employment lawyers we met on Monday laid out a stark picture of Britain post 2023. They said that one thing the business world fears is uncertainty. How will it trade if it does not know what the playing field will look like? They described trying to untangle the complex interrelationships of EU and UK law as “trying to untangle knotweed”. Perhaps most frighteningly, decades of case law will be overturned, so we will have none of the secondary clarifications that we have relied on for many years. We will be making it up as we go along—unless the Minister has any news that he might like to inform the House of today.
Before I completely steal the thunder of everybody else in this group, I will move on to the amendment standing in my name. MAPLE exemplifies the EU-derived employment protection law which is under threat. It is an acronym for maternity and parental leave. It is EU-inspired legislation and is one of the thousands of laws poised to go on the bonfire unless specifically excluded.
Let us take what might happen to parental leave legislation as an example. Parental leave is different from maternity or paternity leave. It entitles parents, after they have been in a job for a year, to be absent for a set period to care for a child. Employers can only postpone it in narrow circumstances when the operation of a business would be “unduly disrupted”. As currently drafted, Clause 12 or 13 of the Bill could be used to change parental leave substantially, with minimum parliamentary scrutiny. It could change the wording, for example, from “unduly disrupted” to simply “disrupted” or even “caused inconvenience”. Clause 15 could give employers the power to refuse leave altogether and, since subsection (2) would not require the affirmative procedure, there would not be a thing that MPs, elected to represent constituents who will be affected, could do about it.
A real-life case under the maternity provisions is the example of Lucy. Lucy was employed by an international law firm as an anti-money laundering manager. She continually exceeded expectations in her performance reviews and had been promoted on several occasions. Lucy took her full entitlement of 52 weeks of maternity leave. Just before she was due to return to work, she was informed that she had been replaced by her maternity cover and was offered an alternative role which she considered to be a demotion. Her employer told her that if she did not accept the new role, they would have no option but to accept her resignation. Lucy was legally entitled to return to her previous role on the same terms and conditions. Her employers’ preference to retain her maternity cover was not enough to refuse to allow her to return to the job after the maternity leave. Lucy was being discriminated against because she was on maternity leave. By asserting her rights under MAPLE, the Employment Rights Act 1996 and unlawful pregnancy and maternity discrimination contrary to the Equality Act 2010, she was able to secure a substantial compensation package and an agreement that her employer would pay all her legal costs.
What might happen to someone like Lucy if they had been treated like this after the sunset date at the end of this year? We simply do not know. All these suppositions would apply only if the Government decided to modify MAPLE. They could of course just let it fall off the edge with all the other protections that would be lost. This is not what business and employers want, and if the Government think that this Bill will win them any support from the business world, they are very much mistaken. I beg to move.
Baroness Crawley (Lab)
My Lords, I have added my name to the amendment in the name of the noble Lord, Lord Fox, and the noble Baroness, Lady Burt of Solihull, and I support the other important amendments in this group tabled by the noble Lord, Lord Fox, and my noble friend Lord Collins of Highbury.
I have checked with the official statistical offices for Great Britain and Northern Ireland, and there are roughly 900,000 conceptions each year. That is some 900,000 women on the verge of motherhood and not necessarily for the first time. I am aware of course that not all will go to full term, but the sheer scale of demand for a serious, advanced, 21st-century maternity and parental rights provision is referenced in such a figure.
What are the Government saying to this vast community of women and parents? “We will abolish the EU rules that underpin your protection and think of something for you all later”—is that it? We should be improving the maternity provision that we already have, not putting an enormous question mark next to it. While statutory maternity pay, amounting to some 47% of the national living wage, is increasing from April 2023, roughly in line with inflation, it is still falling well below what many can realistically live on. New parents often face debt and have to return to work earlier than planned.
The cost of living survey carried out by Maternity Action last year found that 51% of respondents had either relied on credit cards or borrowed money while on maternity leave just to get through. Several campaigning organisations, including the Young Women’s Trust, Gingerbread, Pregnant Then Screwed, Working Families, the Women’s Budget Group, and of course the TUC, all believe that the Bill poses a significant threat to British women’s rights at work, and I share that belief, as do many in this Committee today.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, the Minister is on record as saying:
“While some of these laws will be preserved, of course, many are outdated, some are unduly burdensome, and others are increasingly unsuited to the UK’s economic circumstances.”—[Official Report, 6/2/23; col. 988.]
Can the Minister tell us exactly which of the employment rights listed on the dashboard fall into the category of “outdated”, “burdensome”, or “unsuited to the UK”? Surely these are not health and safety matters such as paid holidays, rest breaks and safe limits on working time; regulations covering asbestos, construction, working at height, gas safety and the control of hazardous substances; or equality provisions such as equal rights for part-timers, parental and maternity leave, and equal pay for work of equal value.
Kwasi Kwarteng, the then Business Secretary, wrote to me last year, when I was TUC general secretary, to promise that no workers’ rights would be worsened as a result of the Bill. So if they are not deemed “burdensome”, why not exempt them from the Bill altogether? Millions of working people depend on these rights week by week. The CBI and IoD oppose the Bill because it will cause huge uncertainty and damage our reputation. The TUC and unions oppose the Bill because it causes huge uncertainty and anxiety for working people; this has real-world effects. Certainly, it would be sensible at least to remove the sunset date of 31 December 2023, which denies proper parliamentary scrutiny and accountability.
I have one other point: the RPC gave the Government’s impact assessment for the Bill a red rating—not fit for purpose. The strikes Bill impact assessment was also judged not fit for purpose and the Minister undertook to look at it again and to address its red-rated inadequacies. Will the Minister make that commitment for this Bill too? In particular, the impact assessment for this Bill suggested that there would be no negative impact on trade and investment, but no specific consideration was given to the EU–UK Trade and Cooperation Agreement level playing field clauses and the sanctions that breaches would attract, or indeed commitments that are enshrined in the Northern Ireland protocol. Can we see not the legal advice, which we understand that the Minister will not share, but the commentary, the analysis, and the assessment of that?
Baroness Thornton (Lab)
My Lords, I apologise for not having been involved in the Second Reading debate on this but I think it is worth noting that in the last couple of days the EHRC has issued a briefing note about its concerns about the Bill, particularly these amendments. I am here partly to read into the record some of the concerns that our Equality and Human Rights Commission has about the things that are contained in the Bill, including:
“The Bill covers legislation on limits on working time, the right to paid holiday, rights for temporary and agency workers, and parental leave. These are important legal protections for all UK workers which have specific impacts for people with certain protected characteristics under the Equality Act, such as sex and pregnancy and maternity”,
as my noble friends have already outlined. The EHRC also says:
“Any negative impacts on people sharing protected characteristics must be identified and mitigated by Government”
and that it is
“concerned at the potential impact of the Bill on workers with the protected characteristics of sex and pregnancy and maternity. This is because the workers’ rights at risk, such as maternity and equal pay, and parental leave, disproportionately affect women”,
as the Minister will be aware. It continues:
“There may also be negative economic impacts if the ability of women to participate in the labour market is eroded.”
The EHRC goes on to talk about the “legal uncertainty” that this will create within our labour market and our equalities field. So my question to the Minister is: how are the Government going to mitigate these risks?
Lord Hamilton of Epsom (Con)
My Lords, what we seem to be ignoring in all these amendments is that it is essential in this legislation that we do have a sunset clause, because if we did not, we would not know how many bits of legislation we are talking about. Ministers have been asking departments to produce all their EU retained law and absolutely nothing happened until minds were focused by the fact that the sunset clauses were put into this legislation. I am going to oppose every conceivable amendment saying “This bit of EU retained law should be retained” for the simple reason that the sunset clauses are absolutely critical.
What we must do is decide how we deal with all the EU retained law. It must be sifted, because some of it is completely irrelevant to British statute. I mean, we talk about movement of reindeer between—
Lord Collins of Highbury (Lab)
Is the noble Lord suggesting that employment rights are irrelevant, not important and not a consideration?
Lord Hamilton of Epsom (Con)
I am not arguing that at all. I am saying that much of this legislation is going to be retained and some of it will be discarded. What we have to do is decide which legislation falls into which category. That is the critical element of all this. We cannot say that we should start retaining this bit, that bit or the other, because that is not relevant.
Baroness Thornton (Lab)
The noble Lord is being distinctly unsuccessful in convincing his own Government that that is indeed an important thing to do.
Lord Hamilton of Epsom (Con)
I am saying that we have to decide how we handle the whole bulk of EU retained law. If the noble Baroness had been here for Second Reading, she would have known that I actually raised this issue. We have to sift this legislation and decide what is going to be debated in primary legislation and what is going to be subjected to secondary legislation and so forth. You cannot generalise about all the legislation coming into one category or another—it will not. Some of it will be retained, some of it will be amended and some of it will be abolished altogether. There has to be some sifting system that makes the decisions on that. Therefore, we should not be pleading for individual bits of EU legislation to be retained; we should be saying that we need a system that divides it up and sensibly deals with it in one way or another.
That is why I am not going to vote for any of the amendments that go against the sunset clause, because I think the sunset clause is critical. We would not know how many bits of legislation we were dealing with if we did not have a sunset clause.
Baroness Andrews (Lab)
My Lords, I have some sympathy with the noble Lord’s position, because, as he made clear at Second Reading—which we were delighted and a bit surprised by—he takes issue with the Bill. The noble Lord talks about there being a system and us being involved. However, first, Parliament is not involved in this; that is almost universally agreed around the Chamber. Secondly, the process is being conducted by a handful of civil servants, across Whitehall, who are working frantically against the clock to make serious judgments on issues of which they often have little experience themselves. They are doing it on behalf of the devolved Governments as well. The sunset clause is a ludicrous timetable against which to make extremely sensitive judgments.
The whole process is untransparent, to say the least. For example, take the dashboard which the Government keep saying will tell us everything we need to know. It does not even cover all the SIs which are now coming into scope. It does not explain which bits of law are SIs, which are the remainder, or which are other forms of retained law. It is virtually useless for anybody trying to make a judgment on whether the issues they are concerned about will be inside or outside the scope of this.
My noble friend made the point that all we need to reduce uncertainty in the first place is some set of criteria whereby certain SIs may be retained and others may not. For example, one red line could be whether an SI impacts on our trade relationships or our international obligations. We could see that and be able to judge if we had a set of criteria, but we have none of that. It is making life totally dreadful for people who are trying to make decisions inside government. Defra has 1,700 individual SIs. The common frameworks, which we will discuss later, will be dealing with about 500 SIs which translate across the whole of the internal market, and the dislodging of one may well impact 50 others.
We are trying to make sense of a process in which there is no sense. Could the Minister give us some idea of the timetable against which Whitehall is working? When will we know when those basic judgments have been made about what can be retained and what is going to be put in the “disposable” bucket? If we had a timetable which gave us some reassurance about that, or a timetable about when, for example, an SI which needed to be put in the place of something that was going to be removed would come forward, that would help. Noble Lords should bear in mind that this House takes six to eight weeks to process SIs. If you work backwards from Christmas and the sunset clause, we will need to start laying SIs in May or June to get them through in order to replace the laws we will lose. That is a measure of the chaos that is being created by the Bill. This House needs to take its processes seriously and slowly, so that we can introduce some reassurance to all those bodies outside—such as the CBI and the trade union movement—which are relying on us to create some clarity around this.
Lord Berkeley (Lab)
My Lords, I support my noble friend’s comments about the timetable. I have heard from people in the Department for Transport that, if they had to comply with these requirements and the sunset date, they would have to stop all other work in the department for the rest of the year. That would include the long-awaited transport Bill—which not many noble Lords are awaiting with glee.
There is another issue, which I think it is good to raise now: the question of the Health and Safety at Work etc. Act 1974. My understanding is that we signed up to the European equivalent, CSM RA, which basically provides the opportunity for checking whether whatever project or design is proposed is safe. It is based on the ALARP principle, which we have had here for many years. Our Office of Rail and Road has been trying for a long time to interpret how to link the ALARP principle, which is ours, with the European one in a way that enables people who have to go through this process to feel satisfied that whatever they are doing is as safe as is reasonably practicable. This is just one of many examples in the railway sector. It would be nice to have a list, as my noble friend has said. There is much more to say on this, but on a system such as the railways, which is very safety conscious, it is important that we get this safety issue right.
Lord Howard of Rising (Con)
Would the Minister agree that, as the United Kingdom has one of the best employment records in the entire world, which was never dependent upon the EU, these amendments are utterly pointless and could probably do more harm than good?
Lord Whitty (Lab)
My Lords, further to that point, even this discussion on the first amendment that we are faced with requires the Minister to withdraw some of the assertions he has made, and which his noble friend has just made again. The very fact that we are debating maternity rights which were brought in because of the European Union means that his statement that British workers do not depend on the European Union for their employment rights is made absurd. It is correct that successive British Governments have decided that they will go along with the European rights, but it was because of the European Union that we have those rights. Therefore, we need a specific exclusion from the fact that, by 31 December this year, these regulations, and many other workers’ rights regulations and related regulations, will fall automatically, without any parliamentary decision.
I would like the Minister to withdraw his assertion about European rights. He forgets his history. Why does he think that Mrs Thatcher fell out with Jacques Delors? Why does he think that John Major refused to sign the Social Chapter? Until the Labour Government came in, British workers’ rights were less than those of workers in Europe. This is an absurd assertion, as has been made clear by the debate on this very first amendment.
I have one more general point. I tried to table an early amendment which would give Parliament an alternative way of dealing with this, where we would have a Joint Committee to look in a reasoned way at the priority, the status and the need for action to change European laws. There is an amendment from the noble Lord, Lord Carlile, to do a similar thing, but we are not debating that today.
However, there must be a better way than leaving a whole tranche of European-derived law to an unknown process, ministerial decree—when they come in with their own version of the law—or simply leaving it until 31 December when the law will then disappear. This Parliament, this House, must assert a better way of dealing with this. That is clear from this amendment and from the complete absurdity of how we are dealing with the subject matter in this Bill.
Lord Hacking (Lab)
My Lords, my noble friend has done that in his Amendment 40, which is the sensible way forward.
Baroness Meacher (CB)
I make a very short but rather strong point. I speak as a former member of the Delegated Powers and Regulatory Reform Committee, who has had the privilege of reading counsel’s note on this Bill to the committee. I have been on that committee for years and have never seen a counsel’s opinion on a Bill as devastating as this counsel’s opinion on this Bill. I wanted to add my name to Clause 1 stand part, but unfortunately there are already four names on it. We are attempting to have a debate on this Bill when the counsel made clear that you cannot even call this a skeletal Bill because it is not that there is a little bit of information and too much is left for delegated powers; there is no information in this Bill—nothing—about what Ministers want to do across a massive swathe of policies.
Your Lordships’ wonderful House is attempting to have this debate based on zero information. Counsel is recommending to the committee that Clause 1 should not stand part of the Bill, nor should Clauses 10, 12, 13 or 15. In other words, the Government need to take the Bill back and realise that you cannot delegate all power across a whole swathe of policy without giving Parliament any powers in the matter at all. As we know, the government policy until this point was to transfer powers from the EU to the UK Parliament. The Government’s own memorandum made clear that the aim of the Bill is to ensure that the UK Parliament is the sole arbiter of UK law. I am sorry, but the Bill does not do that; it takes all power away from the UK Parliament.
I interject because it is important that we decide how to deal with the Bill. Either we go to the Clause 1 stand part debate, relate that to these other clauses and try to get the Government to withdraw the Bill early, or we spend weeks debating this bit and that bit with no knowledge upon which to have those debates. With that, I wish your Lordships well.
Baroness Crawley (Lab)
My Lords, on the issue of timing, bearing in mind what the noble Lord, Lord Hamilton of Epsom, and my noble friend Lady Andrews said, I and I am sure other noble Lords are increasingly hearing that we are not talking about 31 December as the sunset; we are talking about October. If December as the cut-off date for civil servants to find all this law is bad enough, October is disastrous. We may be replacing EU law with our own versions, but I am told by a senior civil servant that the fail rate for SIs is 10%. Therefore, the replacements will not be perfect and many will have to be looked at again once they have been published.
My noble friend Lady Andrews is right that the dashboard is a mess. Again, from talking to people close to the dashboard, they were not sure when asked whether they were talking about one directive or one directive plus the four SIs that come from it for each devolved authority. Really and truly, we must think very carefully about signing up to this sunset.
Lord Hacking (Lab)
My Lords, this is to correct myself. I referred to my noble friend’s Amendment 40 in error; it is my noble friend Lord Whitty’s Amendment 44A which is the right way round.
Lord Frost (Con)
My Lords, I fear we are in for quite a repetitive afternoon as we work through proposals to exclude one law after another from this Bill.
I want to make a couple of broader points. First, we must remember what the Bill does. It defines a corpus of law inherited from the European Union and says that it needs to be reviewed by the end of the year. As a result of that review, laws will be dropped, retained or restated. There is an attempt being made to suggest that the only option is the first one—that all these laws that are an important part of our regulatory framework will somehow disappear and that people should be very frightened about that prospect. That is obviously not going to happen. This is a fiction.
Lord Frost (Con)
We know because the way that companies and employment rights are regulated cannot be changed overnight. I have no doubt that when the Minister comes the Dispatch Box he will make it perfectly clear that our intention is to maintain high standards in this area, and that is the approach that will be taken through this process. That is what is necessary.
Secondly, as many people know, before I came into this House I was a diplomat and a civil servant, and did other things. Under a Labour Government I ran the campaign against the working time directive, out of the Foreign Office. The then Labour Government did not like the working time directive and mounted what the then head of the TUC said was the most effective campaign against a piece of employment legislation ever. The Labour Government did it again on the agency workers directive.
Therefore, forgive me if I take with a pinch of salt the suggestion that the laws that we are debating, and each suggestion for an exclusion, are somehow a perfect emanation of the wonderful European law-making process. They are not, and the behaviour of the party opposite in the past on some of these specific pieces of legislation demonstrates that. The correct way forward is for the Government to review these laws en bloc in accordance with the provisions set out in the Bill and to come to a reasonable and appropriate assessment of them, not to give any of them quasi-constitutional status by excluding them from this review process. I am sure that is what the Minister will say, and we look forward to it.
Lord Carlile of Berriew (CB)
When the noble Lord made his transfer from diplomacy to contentious politics, did he expect that he would be coming to this House and suggesting that the practices that he had followed throughout his very distinguished career in the public services would involve excluding Parliament from a vast swathe of legislation when, as my noble friend Lady Meacher and the noble Lord, Lord Whitty, made clear a few moments ago, there are ways of doing this which do not exclude Parliament?
Lord Frost (Con)
Well, I had sat down. Nevertheless, of course, most of the time that I was a diplomat and civil servant, this Parliament was excluded on most of those provisions. Once the working time directive or agency work directive or whatever had been agreed at EU level, this Parliament was excluded. What we are doing is now giving the Government—and Parliament, let us not forget, through secondary legislation—the power to take a view on these things, and that is quite right.
Baroness Andrews (Lab)
My Lords, it is quite extraordinary that the noble Lord says that Parliament has been given power. We have been given no power. He has been in this House long enough to know that we are excluded from changing or even challenging secondary legislation. We have no purchase on this Bill, other than by the process we are going through now.
Lord Davies of Brixton (Lab)
My Lords, I was unable to be present at the Second Reading of this Bill because I was at the fourth day of the Committee stage of the Financial Services and Markets Bill. There is an interaction between that Bill and this Bill, which we can discuss in more detail when we get to the Government’s Amendment 45. But, in the context of this debate and the suggestion made by the noble Lord, Lord Hamilton of Epsom, that the sunset clause is essential, he should read the justification for the Government’s Amendment 45. It says:
“This new clause contains new exceptions to the clause 1 sunset”.
So even the Government do not believe that the sunset clause is essential; there are groups or parts of European legislation without the sunset clause and so, if special rules can be made for financial services, why does he think that we cannot have special rules for other areas of legislation?
Lord Hamilton of Epsom (Con)
I am very grateful to the noble Lord for letting me in. Does he not accept, though, that, when this Bill was printed with the sunset clauses in it, that was the only point at which all this legislation started to appear? They had done nothing up until that time to actually dig it out.
Lord Fox (LD)
My Lords, it seems the debate has started quite strongly already, as I think we expected. I am indebted to the noble Baroness, Lady Meacher, for her intervention, which I think puts in context quite a lot of what we will hear today. This group of amendments is part of a series, as the noble Baroness will have seen, that highlight how this is not a tidying-up exercise, as it was characterised by Rees-Mogg, and is not about reindeer-related legislation. It is about a fundamental set of changes that could affect almost everybody, potentially seriously detrimentally.
Each of these groups sets out different areas of concern; that is the point of what we are doing here today. Together, they indicate the breadth and the importance of the legislation that is being cast into doubt by this Bill. It is all very well the noble Lord, Lord Frost, saying, “Trust us”—we do not, and we will not until all these laws are ruled in, because until they are ruled in, they may very well be ruled out or amended. That is our purpose here today: to use specific examples to explain that this is real, and affects real people and real lives. That is what we are here to do.
I rise to move Amendment 23, which is in my name, and to support Amendment 1, which is also in my name and the names of my noble friend Lady Burt and the noble Baroness, Lady Crawley. I also support Amendment 40, in the name of the noble Lord, Lord Collins. This set of amendments concerns employee rights; Amendments 1 and 23 deliberately focus on one of the suite of employee rights that could be swept away by the effects of the Bill. These rights could be lost as a result of the deliberate actions of the Government, bent on winding back the national clock, or they could happen as a result of accidental changes that are not picked up—legislative commission, or legislative omission. In either case, Parliament is all but bypassed in the process.
Amendment 1, as we have heard set out thoroughly by almost all the people speaking today, on parental leave, is really vital to the lives of so many people, and an important enabler to working families. It is so vital that we do not think it should be risked in the potential pitfalls that this legislation sets out. That is why we propose to exempt it from the sunset, to make sure that UK working families get the opportunities they so need with their children at the start of life.
Turning to Amendment 23, which I know no one has yet spoken about, that looks at a different but equally important employee right: the Transfer of Undertakings (Protection of Employment) Regulations 2006, known as TUPE. I am sure that noble Lords are more than familiar with this; I certainly am from my business life, and I am sure that many noble Lords are from their different experiences. To be clear, it means that when one business buys another business, there is a reasonable certainty as to which workers transfer to the new business, so that the purchaser knows what employees they are getting and what they will cost, and workers know that they cannot just be dismissed because of the transfer. This is about fairness and peace of mind, and ensuring that employees caught in an outsourcing, for example, are not driven out of work as costs are slashed.
We saw with P&O Ferries that this law has serious limitations, but it is better than nothing and we need it to endure through this process. This is also business-friendly, because it allows businesses planning that are acquisitions to know what they will be buying. Similarly, businesses that are pitching for outsourced work now, to be carried out next year, need to know what rules they will have when that work starts. So this amendment gives both workers and businesses certainty.
On Wednesday 1 February, in answer to a question regarding employee rights from the noble Lord, Lord Woodley, the Minister, the noble Lord, Lord Callanan, said that
“our workers’ rights, of which we are very proud, do not and did not depend on our membership of the EU … let me repeat: UK standards did not depend on EU law”.—[Official Report, 1/2/23; cols. 658-59.]
That spirit has been reflected by speakers opposite, but, as evidenced by these two specific regulations—real regulations that exist now—the Minister was not correct. It is very clear that, as the Minister indicated, there are UK-derived laws, but these work in tandem with, and are interwoven with, laws that were imported into the UK from the EU. These work together to deliver the suite of workers’ rights that we have today.
Parental leave and TUPE are not the only important worker protections that are in danger; they are illustrative of a whole raft of legislation that is up for grabs. For example, I would emphasise the right of NHS workers, who have worked through the pandemic, to be able to carry over annual leave that they have been unable to take; maximum hours, not just for office workers but for safety-critical workers such as airline workers, deep-sea fishermen and HGV drivers; and the obligation on employers to make an assessment of health and safety risks to their workers and to keep such risk assessments up to date—I think the noble Lord, Lord Berkeley, referred to that. In the second group of amendments, we will also reflect on part-time work and agency workers, which is another important area.
There are a number of other laws that are set out by the noble Lord, Lord Collins, in Amendment 40. However, I am aware that this is not an exhaustive list, so can the Minister confirm that the Government now know all the laws that will be in scope of Clause 1? How many concern, first, employment rights and, secondly, workplace health and safety? We would be very pleased to know the numbers there.
As the noble Baroness, Lady Crawley, set out, many of these laws impact women more than they do men. The Bill’s equality impact assessment confirms that the Government’s commitment to upholding high standards in equalities does not expressly acknowledge the potential disparate impact of revoking these regulations. As we know, unless the Government positively act to save a regulation, it will be abolished at the end of 2023—although the Government can decide to extend that into 2026; that is a voluntary act.
In his answer to the noble Lord, Lord Woodley, earlier this month, the Minister also said:
“Regarding the regulations the noble Lord mentions, as with all retained EU law we will look at that and see whether it is appropriate for the UK economy, and if necessary we will modernise, update or replace it”.—[Official Report, 1/2/23; col. 658.]
Well, these are amendments about specifics. Will the Government be retaining these specific laws as they are or do they find it necessary to modernise, update or replace them? We would like specific answers on these specific laws.
I fear there is a further complication, which I would like to probe in this amendment—and here I thank the Employment Lawyers Association for some very detailed help. There is a third factor, and that is case law. On the face of it, the least disruptive course that the Government could choose is to take current law and assimilate it directly into UK law—essentially making no fundamental changes but perhaps tweaking some of the language. Surprisingly, that does not finish the uncertainty. That is because the Bill does not just turn off regulations; it turns off EU law that the European Union (Withdrawal) Act 2018 kept in British law. Examples of the law that would be turned off are wide-ranging. The Bill also turns off the direct effect of many parts of EU law that the courts use to interpret regulations in domestic law, and this is what I wish to interrogate.
The turning off of this type of EU law is amplified by the Bill abolishing the principle of the supremacy of EU law in Clause 4, together with the general principles of EU law in Clause 5. The new Bill sets a new default that removes three principles from British law at the end of 2023. The Bill will erase the interpretive principles and settled decisions that courts have relied on to give settled and predictable meaning to hundreds of employment law rights and obligations that are derived from EU law. To be clear, the three principles are these: the direct effect, supremacy of EU law and the general principles of EU law.
Abolishing the direct effect removes rights such as a facet of equal pay law which is being used by tens of thousands of women to claim equality with better-paid men. This is because equal pay rights in the Equality Act 2010 do not go as far as the current case law, as since 1976 the Act has been supplemented by EU law. Abolishing the direct effect sets a default to abolish rights such as the right to normal pay during holiday—enjoyed by millions of workers—or the ability to carry over holiday, and with it holiday pay, from one year to another when sick. It sets a default to remove from UK law the legal reasoning that has helped extend anti-discrimination law and other protections to atypical and gig workers.
Abolishing the principle of supremacy, together with abolishing the general principles of law and the removal of the direct effect, means that the settled meaning of not only EU regulations but primary Acts of the UK Parliament, such as the Equality Act 2010, will not be the same after 2023. The Bill affects primary Acts of Parliament as they may be interpreted in the future. An employment dispute centred on the meaning of a legal right in December 2023 may have a completely different outcome from one that arises in January 2024. In other words, all the existing case law can fall away and new case law has to be built up from scratch. That will create huge legal uncertainty and a bulge of cases in the country’s courts.
These regulations, and ones like them, are used every day by workers and employers in courts and tribunals. Lawyers are asked to advise on them and use the certainty of past decisions to be able to give answers to clients that allow them to conduct their business and resolve their disputes in a settled, stable and well-understood framework of law. This reduces disputes and litigation. The settled and predictable meaning of a considerable body of employment law will be wiped away, creating unpredictability. It will be up to the courts to decide whether case law carries over or whether it changes. Legal uncertainty will undermine any plan that the Government might have for growth, as neither employers nor employees will have any clarity on the meaning of large parts of employment law that affect investment and the cost of labour. I ask the Minister to give us a very detailed response to this because it is one of the most important elements and has so far not been debated very much by the general public.
As I have said, these amendments are the first in a series that illustrate how everyday lives will be affected. They also bring into stark relief the risks inherent in this Bill of disturbing settled understandings of the law, turning legal certainty, clarity and predictability on their heads. Will the Minister please give the Committee a detailed response to this amendment, particularly setting out the view of government lawyers on the implications of removing direct effect, the supremacy of EU law and the general principles of EU law?
I repeat my question. Will the Government be retaining the specific laws set out in these amendments—parental leave and TUPE—or do they believe that there is a necessity, in the Minister’s words, to modernise, update or replace?
Baroness O'Grady of Upper Holloway (Lab)
Does the noble Lord agree that it took trade unions years, representing cases, to win a definition of normal pay that included, when workers were normally working and were required to work overtime, that overtime? That money matters to thousands of workers, but if this Bill passes, all that case law, and all those years of hard work to win workers justice, will be swept away and we will have to start from scratch, as the noble Lord said. I hope he agrees that that would have a catastrophic impact on working families who are already struggling to manage.
Lord Fox (LD)
I thank the noble Baroness for her intervention. To be brutally honest, it was her I was thinking of when I made that reference, because I know how hard she worked on that issue in her former life. Of course I agree, and that is why we bring it up. This is not about reindeer farming; this is about people’s lives.
Lord Wilson of Dinton (CB)
I support the wise and well-expressed advice and views of my noble friend Lady Meacher. I was not going to speak but I am deeply disturbed by this legislation.
I said at Second Reading that I thought that this was bad government. I repeat that. Of course the noble Lord, Lord Hamilton, is right: we need to know what EU-derived laws the Government propose to keep, amend or abolish. But this is not the way to do it. The Government should do the work first. This is lazy government and it is very improper.
It is 50 years since I first sat in the Box as a Private Secretary to a noble Lord, and I have been here for many Bills and attended many sessions in this House. I have never heard this kind of debate or seen this kind of Bill. It is shameful that the Government have not done the work. The right thing to do is for the Government to withdraw the Bill, go away and do the work, and decide what they want to keep, what they want to amend and what they want to abolish, and then tell Parliament so that it can debate and scrutinise what the Government want to do—and it can be a proper process with consultation. That will take longer, but the Government are taking on a very big job with huge complexity and scale. What you do not do is take sweeping powers which largely ignore Parliament, with the Government simply saying what they want the law to be.
I find great irony in the argument of the noble Lord, Lord Frost, that we never were consulted before. The Government, having complained about the EU being tyrannical and dictating our laws, want to substitute the Government having the same tyranny themselves. I do not think that works. Brexit was based on the return of sovereignty to Parliament. Do the Government still believe that? If so, will they act on it in relation to this Bill?
Lord Lisvane (CB)
My Lords, I support every word just spoken by the noble Lord, Lord Wilson of Dinton, and earlier by the noble Baroness, Lady Meacher.
On the generality of the issues raised by this group of amendments, I say very gently to the noble Lord, Lord Frost, that he might like to consider whether his intervention earlier damaged the Government’s case rather more than assisting it. I have been involved, in one way or another, with the processes of this institution now for more than half a century. I have to say that his description of delegated legislation, and the implications of Parliament handing it, is not one I recognise.
Lord Hendy (Lab)
My Lords, this Bill is objectionable both in form and in content. As to form, I cannot possibly improve on the speech of the noble Baroness, Lady Meacher. Like her, I have been a member of the Delegated Powers and Regulatory Reform Committee, and I absolutely support and uphold the principles that it has enunciated, in particular in relation to this Bill.
There is one point that I could add to that, which is that we have had discussions this morning about how long it would take to draft, introduce and debate statutory instruments to replace those EU-derived laws which are sought to be removed. Let me just point out that the sunset clause means that, if the Minister decides not to introduce a statutory instrument to preserve those rights, they will disappear without any debate whatever. They will just simply evaporate.
As to content, my concern is with workers’ rights. I have to declare that I have spent most of the past 45 years of practice at the Bar dealing with workers’ rights. I want to make a few very short points. First, all the labour law rights, workers’ rights, employment rights—call them what you will—that we are concerned with in the United Kingdom are UK law. Whatever their derivation, whatever their provenance, it is UK law that we are talking about. Let me remind the House that many of the laws that we have, not derived necessarily from the EU, also fulfil other international legal obligations deriving from the International Labour Organization or from the European Social Charter and the European Convention on Human Rights, which are both instruments of the Council of Europe and have nothing whatever to do with the EU.
For example, our unfair dismissal law satisfies ILO and European Social Charter obligations. The protection in Section 146 of the Trade Union Labour Relations (Consolidation) Act 1992, the protection for trade union activists against discrimination for trade union activity, has been moulded by both the ILO jurisprudence and a particular decision of the European Court of Human Rights interpreting Article 11 of the European convention—I refer to Wilson and Palmer v the United Kingdom. Likewise the protection of our right to strike fulfils clear obligations under ILO convention 87, Article 6.4 of the European Social Charter and Article 8 of the International Covenant on Economic, Social and Cultural Rights. All these are treaties and particular provisions which have been specifically ratified by the United Kingdom.
When a lawyer is consulted by a worker or employer on the subject of employment rights because some problem, dispute or issue has arisen, the lawyer does not look to see what the provenance of the law is; the lawyer looks at what UK law has to say about the problem. Let me give the Committee a hypothetical example—I am sure I have done many of these cases in the past. A worker falls off scaffolding at height and is injured. They want to sue. They sue on the basis, of course, of clear, homespun English common law—the failure to provide a safe place of work and a safe system of work, part of UK common law since Wilsons and Clyde Coal v English in 1938—but they also rely on the Management of Health and Safety at Work Regulations and the Work at Height Regulations which originated from EU directives in what was known as “the six pack” in 1992.
Let me give the Committee one other example from my own experience. Six years ago, I represented the National Union of Mineworkers over the closure of the last deep mine pit in the United Kingdom at Kellingley. The dispute was over the compensation payable to the redundant miners. Of course, they were entitled to their redundancy pay and, indeed, an agreed enhancement. Their redundancy pay derived clearly from UK law. There is no EU input into redundancy payment, which has been part of our law since the Redundancy Payments Act 1965. However, they also claimed because they said—and were ultimately proved right—that there had been inadequate consultation with the union over the closure of that pit and the laying off of all those men. That derives from Section 188 of the Employment Rights Act, the provenance for which is EU law. Is the Minister going to tell us that that protection and that requirement for consultation before collective redundancy—the noble Lord, Lord Fox, referred to P&O Ferries, and that was the law that P&O accepted that it had broken in that case—is going to be repealed? Or perhaps it is simply to be a subject on which the Minister will not introduce any protective statutory instrument or further legislation but will simply sit on his hands and it will disappear on 31 December this year.
We are debating Amendment 1 at the moment, but Amendments 2, 17, 21, 23—which the noble Lord, Lord Fox, referred to—and 25, and Amendment 40 in the name of my noble friend Lord Collins, set out a raft of employment laws which those who tabled those amendments seek to protect. They are just a few of the employment laws which have a provenance from the EU. It might be recalled that, at Second Reading, I identified a whole raft of health and safety laws which fall into that category. There are others which have not so far been identified, one of which is, of course, the Section 188 to which I referred to a moment ago.
Those seeking to preserve specific rights, as the amendments this morning are seeking to do, are faced with a dilemma of trying to identify what rights need protection when faced with a blanket sunset clause which will remove the whole lot unless protection is given. As my noble friend Lady O’Grady and the noble Lord, Lord Wilson of Dinton, have intimated, it should be incumbent on the Government to identify what is proposed to be repealed and what the justification for it might be. I call on the Minister to do that in his speech and tell us what the Government are going to get rid of. The fact is that those who voted for Brexit, for good reasons, no doubt, surely did not vote for the removal of all these rights in the workplace or the uncertainty about whether those rights would subsist after 31 December 2023.
There is one final matter before I sit down, which is a point alluded to by my noble friend Lady O’Grady. The trade and co-operation agreement that was ratified by the United Kingdom in 2021 includes two articles, Article 387 and Article 399, which require the United Kingdom to preserve certain rights guaranteed by international treaties which it has ratified and to implement them. There is an enforcement mechanism if the United Kingdom does not do those things. I tell the Committee that the European Parliament and the European TUC are already urging the European Commission to initiate that enforcement mechanism by reason of this very Bill that we are discussing today. It does not add to the reputation of the United Kingdom that we should already be breaching a treaty that we ratified only two years ago.
The Lord Bishop of Leeds
My Lords, the reason these amendments and this debate are important is that one always explores the general by probing the specific to see if it holds water. I wonder if, in that respect, it might be helpful for the Minister and the Committee if he defined in his response parliamentary sovereignty as against executive sovereignty. If we understood that more clearly, we would understand the status and the rationale behind what is proposed in this Bill, which I personally see as unnecessary.
Lord Collins of Highbury (Lab)
My Lords, this has been a very important and fascinating debate. I open by echoing the remarks of the right reverend Prelate the Bishop of Leeds. This is Committee stage and we are probing what the Government intend. How do we better understand what they intend? The reason we have put these amendments down, particularly Amendment 40, is that we will not fully understand their intentions unless we understand their belief on the specifics. If we are to believe the noble Lord, Lord Frost, this is simply a technical exercise—one that the Government will decide with very little input from Parliament.
I have said this in other debates on other Bills: we had two excellent Select Committee reports from this House, with cross-party support, that made it clear that this is not the way to do things. They also made clear the dangers of the Executive having full power over secondary legislation, and why secondary legislation was so different. We cannot amend or change it; we either accept or reject it. If we reject it, what are the consequences? We lose the very rights we are trying to defend. So this is not even an opportunity to say that we do not like what the Government are doing. I agree with the noble Lord, Lord Hamilton, that there should be a better way. I accept that my probing amendments would not necessarily improve the Bill as constructed; it is extremely difficult to see how one can improve this Bill because it is so undemocratic, so wrong and takes powers away from Parliament rather than giving them to it.
I know this has been a lengthy debate, but to pick up the point made by the noble Lords, Lord Hamilton and Lord Fox, it is important that this Parliament talks about what these regulations mean to people. It is very easy to talk about laws and SIs and regulations, especially when some of the language can be very technical. It is very difficult to persuade people why this debate is so important. That is why I come back to the right reverend Prelate’s point: we have to test the specifics.
On many occasions in this Chamber, I have supported my noble friend Lord Woodley in raising what is a really good specific point concerning TUPE. We often talk about TUPE as if everyone understands what it means: the transfer of undertakings and the protection of employment. Many years ago, I am afraid to confess, I was a trade union official too. Many people here who were in local government in the 1980s will have seen the push for contracting out and the insecurity that meant: cutting wages and cutting services. These regulations do not necessarily offer complete protection but they create greater certainty, particularly when services are moved from one employer to another within, for example, local government. Real people have been protected by that regulation.
I hope that, if the Minister cannot tell today’s Committee what the impact will be, he can tell us how many people he thinks have been protected by TUPE over the last 12 months, or the last five years? He cannot dismiss this and say it is a technical exercise and that some of these regulations require modernisation and reform. What requires that TUPE be reformed? What additional protections will there be? We are talking about additional protections because, as my noble friend Lady O’Grady said, we have had commitments from this Government that there will be no reduction in workers’ rights. So, let us focus on TUPE. What will they do, in terms of this review, to enhance those regulations? Will they enhance them? Where do they need modernisation? Where does the language need to be changed? Will the Minister please answer because, as we proceed through this Bill, it is those specifics, as the right reverend Prelate said, that people outside this Parliament need better to understand.
As my noble friend Lord Hendy said, however people voted in the 2016 referendum is irrelevant to this debate. This is about rights that people have earned, fought for, gained and want protected. We have yet to hear from Ministers about this process, which will mean that we will not know which laws they intend to retain or allow to expire. That is a considerable amount of uncertainty: we do not know, with this sunset clause, what laws will simply disappear without any reference to Parliament and the people. That is a scandal. I have listed every regulation, in terms of what we understand are the current employment laws—
Lord Pearson of Rannoch (Non-Afl)
I am grateful to the noble Lord for giving way. Does he agree that all EU law was put into law without the consent of the British people and Parliament? That is the EU system, is it not: proposed in secret by the Commission, voted on in secret by COREPER and eventually passed through the Council of Ministers? When have the British people ever agreed to a single EU law that we are now, rightly, getting rid of?
Lord Collins of Highbury (Lab)
The noble Lord may want to re-open the debate on the referendum and EU membership, but I do not. I want to focus on people’s rights now; that is the important point. That is why I appeal, across the House, to people who may have supported Brexit and people who did not. I think the House can unite on this sort of issue. As we have heard, this is not the way to do it; there is a better way to review retained EU law and a better way to create certainty and understanding on the part of the public.
That is why these amendments are so critical, in that they ask for specifics. I am pretty certain that, sadly, the Minister will give us the same mantra that we heard in the other place: “Trust us, this is a process; we have a time constraint.” Why they have put this time constraint in place, God only knows. But the Minister will not give us an idea about the specifics, and that is really important.
As my noble friend Lady Crawley, the noble Lord, Lord Fox, and others have mentioned, this is not just about regulations; this is about case law as well. That is vital. I cannot beat the illustration of my noble friend Lady O’Grady. All Governments of all colours have had to be persuaded to give these rights. It has not been an easy journey for workers, particularly women workers, and that is the other thing about this. Hard-won rights, particularly on equal pay and equal rights at work, are under threat here. That is something that the public need to hear very firmly.
I conclude with a simple request of the noble Lord, Lord Callanan. He has assured us that UK employment rights do not depend on EU law, and we have heard the arguments in this debate. Can he confirm which of the regulations that I have listed in Amendment 40 are not covered by Clause 1? Can he give us that guarantee? I suspect that he will not; he will make some excuse. But this will not go away; this debate will continue because the public out there need to know whether they can trust this Government. I suspect that they will answer no; what they want is Parliament to decide.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, I thank everybody who has contributed. I suppose we had to have the debate in principle at some stage, and we have had it on Clause 1. I will attempt to provide some reassurance to noble Lords. I suspect that those who think that somehow the Government have malign intentions will not be convinced, but let me try my arguments anyway.
As my noble friend Lord Frost made clear, this is of course an enabling Bill. The measures in it, including the sunset, will provide for UK and devolved Ministers to make decisions to review, amend or repeal retained EU law as they see fit. I agree with my noble friend Lord Frost’s point. I understand that the Opposition will want to portray all EU law as perfect and ideally suited for the UK’s circumstances, but most of my time in the European Parliament was spent during the period of the last Labour Government. There were numerous occasions when UK Ministers, and civil servant at the behest of UK Ministers, came to give me examples of where the regulations were not suited to the UK and not in the UK’s interests. Many times, as a Conservative, I agreed with them, and we did our best to change or amend them. Often, we were not successful. This legislation gives us the opportunity—
Lord Callanan (Con)
I will let the noble Lord come back in a moment, but let me make a little progress—I might answer some of his points, you never know.
Let us not pretend that it is all perfect. I accept that the Opposition have a principled difference with us on how we go about this process, but at least let us have the debate and, I hope, make some progress. The sunset is not intended to restrict decision-making; rather, it will accelerate the review of retained EU law across all sectors, as my noble friend Lord Hamilton made clear. The Bill will allow for additional flexibility and discretion to make decisions in the best interests of this country.
I start with Amendment 1, in the name of the noble Lord, Lord Fox. I take this opportunity, as I have done many times in this Chamber before, to reassure him and the noble Baroness, Lady Burt, and the Committee, that the repeal of maternity rights is not and never has been the UK Government’s policy. As I have said many times before, our higher standards in this area were never dependent on our membership of the European Union. Indeed, the UK provides stronger protection for workers than is required by EU law. I have made this point many times, and the opposition parties do not seem to want to accept it.
Lord Callanan (Con)
I am going to make this point and then I will allow the noble Lord to intervene.
Our high standards were never dependent on our membership of the European Union. We provide stronger protection for workers than is required by EU law, both under previous Governments and under this Government. Let me give the Committee some examples. We have one of the highest minimum wages in Europe. On 1 April this year, the Government will increase the national living wage by 9.7% to £10.42—higher than most other European countries. UK workers are entitled to 5.6 weeks of annual leave, compared with the EU requirement of four weeks. We provide a year of maternity leave, with the option to convert to shared parental leave to enable parents to share care, whereas EU maternity leave is just 14 weeks. The right to request flexible working for all employees was introduced in the UK in the early 2000s; the EU agreed rules only recently and will offer the right to parents and carers only. The UK introduced two weeks of paid paternity leave in 2003; the EU has legislated for this only recently. Let there be no doubt about the commitment of this Government to enhancing and providing for workers’ rights.
Lord Fox (LD)
I am afraid I can wait no longer. I am somewhat surprised that I still do not really understand what the Minister is saying. We did not put on the dashboard the regulations and laws set out so ably by the noble Lord, Lord Collins, and by my noble friend and others; the Government put them on the dashboard. If the Minister is saying that these do not affect British employment regulations, how can that be true? It is simply not true. What the Minister is saying is wrong. They are on the dashboard and they will sunset if nothing is done. They affect day-to-day employee rights, and therefore the Bill potentially affects those employee rights because these regulations are on the Government’s dashboard.
Lord Callanan (Con)
They are on the dashboard if they are retained EU law. I noticed that, in all the statements and speeches from Members opposite, the words “if” and “could” were doing an awful lot of heavy lifting. I accept that there is no trust from the Opposition in the intentions of the Government and that they want to make their political attacks. The reason I outlined UK employment rights and standards was to demonstrate the commitment of this Government to those rights. The point that the noble Lord, Lord Fox, made earlier is essentially correct: while we have some very high standards, of which we are proud and will maintain, there is a complicated mishmash of laws in this area between some elements of EU and domestic law.
Lord Callanan (Con)
If the noble Lord will sit down, I will come to him in a second. I will make this point and then I will give way.
UK rights were provided in the complicated mishmash of UK law, with higher standards often based on minimum standards and provisions that were in EU law originally. That is why they have been included on the dashboard. We will conduct a review of all these regulations—which this legislation provides for—and we will do so in the context of the high standards that the UK already has.
Lord Kerr of Kinlochard (CB)
I think I understand the noble Lord’s argument, and that he is therefore going to end by saying that he accepts Amendments 1, 23 and 40. If our standards are so high, there can be no question of the Government reducing our standards or amending or sunsetting the legislation spelled out in Amendments 1, 23 and 40. If the Minister is not prepared to accept these amendments, will he explain why, if they are in the Government’s view good, they have to be in doubt until the end of the year and then possibly dead?
Lord Callanan (Con)
As the noble Lord knows very well, that is not what I am saying. The reason that I am not saying that goes back to two points made earlier in the debate. First, there is a complicated mishmash of rights and responsibilities across these particular laws, but we will maintain our high standards. Secondly, it goes back to the argument the noble Lord, Lord Fox, made about interpretive effects. If the interpretive effects are being abolished to bring them in line with the rest of UK common law and to reduce some that have the status of primary legislation to secondary legislation, we need to review the whole panoply of employment law as a whole—which we will do, but we will do it in the context of the high standards that we have and will maintain. That is the point I am making
Lord Hope of Craighead (CB)
I am very grateful to the noble Lord for giving way. It is a question of the sunset and whether one can achieve what the Minister is suggesting in time. A lot of the worries we have are that the Government are trying to move too fast. We are trying to create a new rulebook for ourselves. I quite understand the desire for that, and I quite see the value of a timetable, because, if you do not have a timetable, things will drift into the far future, which is not desirable in view of the objective the Government have. However, they are trying to move too fast. The more we debate these issues, the more complicated they become, and the more people have to be consulted. That is the basic problem. I hope very much that, when we come to look at the sunset, the Minister will take account of these things and be a little more relaxed about the date for the sunset, otherwise we will be moving far too fast and destroying so many rights because of mistakes and misadventures.
Lord Callanan (Con)
The noble and learned Lord knows I have tremendous respect for him and there is a great deal of sense in what he says. If we are getting into a discussion about the sunset, it is my view and the Government’s view that we can do all of this, given the current sunset. Work is under way across Whitehall in the new business department on employment law and in Defra on environmental regulations to do exactly that.
Lord Callanan (Con)
I will give way in a second; let me answer the previous point before the noble Baroness makes another. I think it is perfectly possible and work is under way in the business department and in Defra, which have many of these retained EU laws, to do precisely that. As Committee proceeds, I hope to be able—maybe I will not be able, but I will do my best—to convince the Committee that we will be able to do this in time, with the given sunset. I give way to the noble Baroness.
Baroness Young of Old Scone (Lab)
Would the noble Lord perhaps admit that the only way in which the timetable can be met is by not undertaking the sort of consultation we have come to expect, and indeed enjoyed, during the passage of all this legislation over many years, which has resulted in it being EU retained legislation? My personal sphere of knowledge is the work in Defra. I am desperately worried that many of the things emerging from Defra that are purportedly a replacement for EU law are not being portrayed as that when they come out, and they are not being consulted on in any way whatever. I do not believe that the EU retained law workload can be done by Defra in time without it being a fait accompli by Ministers that is not consulted on and does not go through a process in this House that allows us to have any influence on it. So I would like the Minister to assure us that there will be a full process of consultation that can be contained by the deadline.
Lord Callanan (Con)
“Yes” is the answer to the noble Baroness’s question. All new regulations will be subject to a period of consultation. I have to say, with great respect, I would have a little more sympathy for the noble Baroness’s argument had any of these regulations been introduced into UK law in the first place with a period of consultation—but, of course, we all know they were not. Many of the people complaining now that these regulations are so valuable never said anything at the time about the process by which they were introduced. But I accept that is a difference of principle between us.
As I said, our high standards do not and never have depended on EU law. Ministers will have the power to preserve such retained EU law from the sunset where appropriate. Building on some of the earlier points made by the noble Baroness, Lady Humphreys, this includes Ministers in the devolved Governments. As such, it is the Government’s contention—I suspect it is one that will not draw much sympathy from the Opposition—that there is simply no need for any carve-outs for individual departments, specific policy areas or sectors, particularly when I have been able to reassure the Committee on the principles of maternity rights and employment law as a whole.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, one reason we have such concerns about the timetable is that, as we have heard in exchanges today, there is no agreement on the evidence base we are working to. Part of solving that would be going back to the drawing board on the impact assessment, which, as we heard, was red rated and deemed not fit for purpose. Could the Minister explain at what point we will be looking again at that impact assessment and dealing with the criticisms of the one that received the red rating? What impact could that have on the timetable? If we could agree more and have dialogue on the evidence base, perhaps we might be able to make more progress.
Lord Callanan (Con)
I totally understand the point the noble Baroness is making. I have looked at this—indeed, I was the Minster responsible until very recently for the Regulatory Policy Committee, which does some fantastic work. But of course it is very difficult to produce an impact assessment for what is essentially an enabling framework Bill. I think what would be more relevant to the noble Baroness, and what she would be more interested in seeing, are the detailed impact assessments that will be produced on the particular regulations. If regulations are just carried on and essentially replaced, there will be no need to bring an impact assessment because there is no change. However, if change is proposed, of course the relevant departments will produce impact assessments for those particular regulations. I am sure the noble Baroness will have great enjoyment in reading those.
Lord Davies of Brixton (Lab)
My Lords, perhaps the Minister will take on board that, when he says there is no need for carve-outs, his own Amendment 45 creates a carve-out for financial services. We can have a substantial debate on that issue when we get to that amendment, but the idea that you do not have carve-outs is clearly wrong; the Government’s own amendment creates one.
Lord Callanan (Con)
We will get to that debate on those technical amendments later.
Lord Callanan (Con)
I think it was the noble Lord, Lord Davies, who talked about the Financial Services and Markets Bill, which repealed a number of EU regulations and produced regulations that were more suitable for the UK.
Moving to the specific amendments we are debating, Amendment 23 relates to the transfer of undertakings regulations. It is up to Ministers and the devolved Governments to decide what to do on specific pieces of policy. This Bill, as a framework Bill, creates the tools for departments. Plans will be approved by a Minister of the Crown, or the devolved authority where appropriate, and will be shared when that work has been done, given that it is an iterative process that is still ongoing. As part of the retained EU law programme of work, as I said earlier in response to the noble Lord, Lord Fox, the Government are conducting a comprehensive review of all retained EU employment law in the context of the very high standards the UK already has to ensure that our regulations are specifically tailored to the needs of the UK economy, are workable in UK common law and help to create the conditions for growth and investment. That review includes the transfer of undertaking protection of employment regulations.
Lord Collins of Highbury (Lab)
Can I ask a simple question on TUPE? My fear is that we are not getting straight answers. Does the noble Lord think that it sets a good standard to protect workers in difficult circumstances? If he does, where does it need to be improved? If he is unable to answer those two questions, what are we to conclude?
Lord Callanan (Con)
I have already given the noble Lord examples of where UK worker standards and employment regulations are superior to the base standards of the EU. I cannot give him a specific answer to his question, as he well understands, because that work is ongoing, but it is ongoing in the context of the high standards that we already have. If any changes are proposed to that regulation—it may be that the change of interpretive effect will require some ongoing changes to the regulation; I do not know because that work is currently ongoing—the regulation will be presented to this House, when the noble Lord will no doubt want to comment on it.
Lord Lucas (Con)
In the context of some of the arguments advanced by my noble friend, has he considered extending the principle embodied in Clause 15(5), which says that, in particular subject areas, changes cannot increase the regulatory burden? This would address some of the points made in the amendments by giving an overall protection that workers’ rights will not be reduced by the changes made as a result of the Bill. It might give some comfort to those of us who support the Bill and do not doubt the Government’s intentions to see them embedded in law, in just the same way as they propose in Clause 15(5).
More generally, I am disappointed that my noble friend does not address the issue of the role of Parliament. To my mind, it is a great demonstration of the need for the House of Lords that this Bill has arrived in our House in this shape, and if we let it go out of this House in the same shape, we will demonstrate why we ought to be replaced.
Lord Callanan (Con)
I totally understand the point my noble friend makes; I am a passionate believer in the rights of this House and have happily stated on many occasions within government that in many cases we do a much better job of scrutinising legislation than the other House. It sometimes makes life a little uncomfortable for Ministers such as me defending this, but when I talk to some of my colleagues in the Commons, I realise how relatively little time is given to some legislation compared to this House.
I also understand my noble friend’s first point. I reiterate that it is certainly not the Government’s intention to reduce workers’ rights. The House will get tired of hearing me repeat it, but we have higher standards than most of the rest of Europe and we have every intention of maintaining that.
Baroness Andrews (Lab)
My Lords, before the Minister sits down, I should like to ask him one question. He has addressed the issue of the sunset clause in different ways; we have different opinions about that. Why were the Welsh and Scottish Ministers not given the same power to amend the sunset clause? They were not consulted about the Bill and have no powers in this respect.
Lord Callanan (Con)
They certainly have the power to examine, repeal or change EU law within their specific areas of competence.
Baroness Andrews (Lab)
The reason I raise this is because we are talking about the capacity of the Civil Service to do the things the Government are requiring of it. That challenge is infinitely greater for the devolved Administrations. One issue raised by the Bill is the impact the Bill has, deliberately or accidentally, not on the devolution settlement but on the capacity of Wales and Scotland to influence the way in which decisions about whether to retain, remove or amend instruments will be made. It is an extremely important point, and it deserves a serious response.
Lord Callanan (Con)
I thought I had given the noble Baroness a serious response. Within the area of devolved competence, the devolved Administrations have the same rights as the UK Government to amend, repeal or replace retained EU law.
Lord Fox (LD)
My Lords, I am assuming the Minister has now sat down. He touched on the interpretive effects that I raised in the set of amendments, but I do not think the answer was as full as we need. I think there will be other opportunities for the Minister to come back, and I will certainly press them. In the end, my assumption is that it will be up to the courts to decide which cases are in and which are out; it will be up to the courts and the lawyers who are pressing the courts to reinterpret or allow interpretations to continue. We need to know from the Government what is their assessment of the effect of that on this body of law and others across the spectrum we are discussing.
All Governments have to make choices, and the day-to-day push and pull of government can throw up many difficult dilemmas and severely stretch the national bandwidth for decision-making, but with this Bill, the Government are giving themselves 4,000 more choices they did not need to make. In opting to make these choices alone, without debate, discussion or consensus, each of these choices is bound to become a battleground, and each will be down to a Secretary of State—decisions that will call down attention from every corner of civil, legal, commercial and social society. So good luck with that, Minister.
The first amendment in the group illustrates some of the places where these battles will be fought across the country. No matter how close to their chest the Government play this, the arguments will not go away; indeed, the more secrecy and circumspection, the more suspicion will rise. The right reverend Prelate spoke about using the specifics to test the general, and this was an opportunity for the Minister to be more specific so that we could judge the general better. I do not think he has yet achieved that; however, we have six groups in very much in the same vein, so perhaps the Minister can work on his performance. In the meantime, I beg leave to withdraw Amendment 1.
Member's explanatory statement
This amendment excludes the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 from the sunset in Clause 1. These Regulations give part-time workers the right not to be treated less favourably than a comparable full-time worker and fixed-term workers the right to be treated no less favourably than a comparable permanent employee.
Lord Fox (LD)
I move Amendment 2 in my name and those of my noble friend Lord Clement-Jones, the noble Earl, Lord Clancarty, and the noble Baroness, Lady Bennett of Manor Castle.
We talked about some important employment law specifics in the first group, and we have some more in this one. The TUC, unions and employment lawyers have told us that they are particularly concerned about vulnerable workers, who would be hard hit by the potential removal of protections that the Bill can deliver, because a number of important rights originated in EU legislation—I come back to the point of contention between us and the Minister. That is why we have chosen to highlight the importance of the protection of part-time and fixed-term workers in this amendment.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 gave part-time workers the right not to be treated less favourably than a comparable full-time worker with regard to the terms of their contract. Part-time employees should benefit from the same terms and conditions as full-time employees unless the employer can justify that different treatment.
Likewise, the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 established protection for fixed-term workers, giving them the right to be treated no less favourably than a comparable permanent employee, unless, again, the employer can justify a different treatment. The employee can insist that the fixed-term contract be converted into a permanent one in certain circumstances, and they are entitled to be informed of certain permanent vacancies.
Any or all of these rights could be lost under the Bill, with women being particularly likely to be impacted. Some 8.2 million part-time workers in the UK fall into the most at-risk category. Some 72% of part-time UK workers are women, whereas only 40% of full-time UK workers are women. Some 750,000 workers are on fixed-term contracts, of which 56% are women. They would face an uncertain future without protection from the EU-derived Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The provisions of the Bill could see part-time and fixed-term workers treated differently from their peers in areas such as pay, holiday entitlement, pensions, and training and career development.
Not covered by this amendment, but equally vulnerable, are agency workers, of whom there are nearly 750,000 in the UK. Of these, nearly one-third work part-time, with 28,000 on fixed-term contracts, so they also have protection from part-time and fixed-term contract regulations derived from the EU. They also have the Agency Workers Regulations 2010, which could be lost at the end of this year. These provide agency workers with a right to the same basic working and employment conditions as direct employees.
As was said at Second Reading, the outlook is particularly bleak for creative workers in particular. The Government seem to have a poor understanding of what is meant by the creative sector and what the impact would be. In the impact assessment for the Bill, the definition on the dashboard states that 177,000 businesses and 658,000 jobs will be impacted. However, the DCMS definition of “creative industries” accounts for 300,000 businesses and 2.2 million jobs. Which is the correct figure? If the Government cannot work this out, how can we trust them on any aspect of the Bill or how the legislation will affect these people? Where is the audit of exactly which body of employment law is retained EU law and subject to the Bill? The noble Lord, Lord Callanan, seems to think that the figure is zero. If so, what are these regulations doing on the dashboard?
As Creative UK says, the creative industries are characterised by small and
“micro businesses and freelancers undertaking project-based work”.
Although proposed changes to workers’ rights will affect all sectors, the make-up of the creative industries means that the impact of any change on the protection of part-time and fixed-term workers is particularly important for freelance workers in the creative industries.
Of course, it is not just these regulations that are at risk as a result of the Bill: all the precedents and EU case law and principles, such as effectiveness and proportionality, by which these rights have been interpreted, will be swept away, as I outlined in the first group. The Employment Lawyers Association says:
“Abolishing the principle of supremacy, together with abolishing the general principles of EU law and the removal of direct effect means that the settled meaning not only of EU Regulations but also any primary Acts of Parliament (such as, for instance, the Equality Act 2010) will not be the same after 2023.”
I do not apologise for repeating that, because it is extremely important and apposite to our discussions. This will create a legal vacuum and huge uncertainty, not just for employees but for employers. Thousands of SMEs, many without dedicated HR resource, will potentially have to grapple with new laws or new interpretations of existing regulations. Given the sweeping away of European precedent, already overburdened tribunals will be asked to rule afresh on any regulation that is retained, at great expense to employees and employers alike. This is a waste of money and time and a huge opportunity cost. No wonder employers are overwhelmingly in support of keeping the existing regulations and the supporting case law as they are.
The Earl of Clancarty (CB)
My Lords, my name is on Amendment 2, and I support the noble Lord, Lord Fox.
The reaction in Committee to what the noble Lord, Lord Frost, said earlier about the options available shows the degree of trust in any particular legislation being retained. We feel forced into making specific representations on legislation because that trust does not exist, so there will be more testing by specifics.
The creative industries owe the noble Lord, Lord Clement-Jones, in particular, a debt of gratitude for identifying at Second Reading particular legislation which affects, among others, artists and other creative workers, including intellectual property rights. Worryingly, what is being discussed today, including Amendment 2, is just a sample of the relevant legislation, as the noble Lord, Lord Fox, said, and there will be much more that business campaign groups and other concerned parties and individuals have yet to identify as relevant to their own activities. Surely that is dangerous.
These days, the Government prefer not to talk about the EU, but when they do so it is usually in disparaging terms—although I for one live in hope that that will change. However, there is a sense in which we should forget Europe in terms of this legislation, and I say that as a remainer who would like at the very least for us to rejoin the single market as soon as possible, not least because the extent to which free movement across Europe is essential to the arts and creative industries has become abundantly clear. However, this is in practice UK legislation, and in very practical terms the statutory instruments which Amendment 2 refers to affect British workers. That this is domestic legislation is no better exemplified than by the fact that the two SIs which Amendment 2 would retain make express reference to our own workplace: to staff working in the House of Lords and the House of Commons.
To take the House of Lords as an example, as of February 2023, of the 670 employees on contract, currently, 20% are part-time and 11% are on fixed-term contracts, meaning that 31%—almost a third—of staff in the Lords are on contracts other than full time. Frankly, it is outrageous that the Government are considering removing, or risk removing, important protections for the parliamentary staff who work alongside us, let alone removing such protections for anyone else. More generally, however, removal of this legislation will affect many creative workers, as the noble Lord, Lord Fox, said. Some 32% of the creative industries workforce is self-employed, which is double the national average, although the House of Lords appears to be more closely in line with the creative industries as far as fixed-contract and part-time work is concerned.
The creative industries took a big hit with Covid and we remain grateful for the help the Government provided for freelancers, although many still slipped through the net. However, despite that and the current energy crisis, in my view, the longer term will see the further expansion of the gig economy and the creative freelance workforce. In part this is due to the inherent demands these growing industries make—that is an essential point—but for the creative workforce and indeed industry more widely, it is due increasingly to our diversity of preferred modes of working. Some of this social change can be laid at the door of the creative industries.
This is a reality which needs to be both acknowledged and supported, in which case no one should be penalised for choosing one manner of working over another or having to do so through the demands the work makes. All work and workers should be treated equally fairly, without the quantity of work done or the impermanence of a position affecting notions of quality or anything else. It needs to be added that the take-home pay of many creative workers and others working in the gig economy does not, as we know, necessarily reflect the success of those industries overall.
The overall point here is that this legislation is progress from which we should not be retreating but instead building upon, which is why it should be retained. However, if the Government really support the creative industries, they will have no hesitation in excluding this legislation from the sunset. Better still, they should scrap the Bill.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, everybody in this House understands the real and clear evidence out there that women are much more likely to be in low-paid jobs, employed in part-time work and on insecure contracts, whether that is fixed-term, agency or zero hours. Therefore, we know that we have to pay special regard to the Bill’s impact on women and equality. The equality impact assessment for the Bill warns, precisely on this point, that
“the EU law concepts that will be removed by the Bill underpin substantive rights in equality law. While GB equalities legislation is extensive, there is a possibility that the removal of the principle of supremacy of EU law and the sunset of EU-derived legislation may lead to a lowering of protection against discrimination”.
So the risk is very clear, and I have to say that I have not been reassured so far by the Minister’s attempted reassurance on issues such as maternity rights. Many of us fought for those rights—we know exactly what came from EU-derived law and what came from case law, and the way they are entangled with UK law—and there is a risk of pulling the rug from beneath them. My concern is that, even if the intent is not to worsen women’s rights, there appears to be a lack of understanding and expertise that will ensure that they do not just slip off the agenda when the sunset clause kicks in. So I would like to hear precisely how this concern about the disproportionate impact on women of the enabling Bill will be addressed. We have heard that we cannot have a proper impact assessment because it is an enabling Bill—which in itself causes great concern. I would like to hear what measures can be taken to ensure that women do not, yet again, end up losing out.
Baroness Altmann (Con)
My Lords, across my whole career, I have worked with other women and admired the work of trade unions trying to help the employment protections for women in general, mothers with young children or women with other caring responsibilities, by helping them to keep working and to build their economic and financial resilience. This includes parental leave, the protection of pensions in TUPE and the other areas we discussed in the first group, but it also includes the worker protections for part-time workers, which have resulted in improved working conditions and protections for men, disabled workers and minority groups, not just for women. For those reasons, I wholly support Amendment 2.
Quite frankly, the fact that the regulations and laws which are the subject of the Bill derive from the EU seems to be a red herring. As my noble friend the Minister said, this is an enabling Bill, which will allow Ministers to retain, amend or revoke our laws and public safeguards. That these protections originated from the EU is just not the point: in reality, as my noble friend said, we have higher standards, so, had they not been introduced by the EU, the implication must be that we would have introduced them ourselves. In reality, my noble friend is saying that the fact that they were introduced as a result of EU measures, and were not objected to when they were introduced, is because Parliament itself would have chosen to have them. So we should not be here debating the fact that, because they originated in the EU, we have to tear them up or to assume that they are somehow bad. Vast swathes of long-standing and hard-won protections are under threat—
Lord Pearson of Rannoch (Non-Afl)
My Lords, does the noble Baroness agree that they are bad to the extent that they never went through the House of Commons, the House of Lords or any of our democratic procedures? This legislation was imposed on us by Brussels and there was nothing we could do about it, so why are we fussed about removing it?
Baroness Altmann (Con)
I am afraid I absolutely do not agree with the noble Lord on that point. The fact that they came from the EU was because that was the way the law worked at that stage. They were fed into by our own elected representatives there, and the principles being introduced were supported by our Parliament. It is a red herring that they came originally from the EU. Are we saying that we, as a civilised country, would not have had these protections anyway? The idea that this word “regulations” is a negative in some way—and, if it is associated with the EU, it is an even worse negative—is not the point; “regulations” is another word for “protection” or “safeguards”, and we must not forget that.
These hard-won protections are under threat, and our constitutional principles are being undermined—as are, potentially, the rule of law and parliamentary democracy itself. When or if our laws need to be changed, surely that must be approved and debated in Parliament, and not just handed to the Minister of the day, who may have no expertise in the area and who may be under the influence of a lobby group. Giving Parliament no proper say or role in changing the law exposes millions of citizens to harms that our normal constitutional safeguards are there to protect us from.
I fear speaking this way from these Benches and I hope that my noble friend will understand that this is not a direct criticism of this Administration or of this Government. It is a comment and a deeply expressed concern about the potential harms that could result from this legislation and the way in which it is being introduced. The Government may not intend this, but we may have another Prime Minister and a whole new range of Ministers soon. Given recent experience, it is not about whether or not we trust the current Government; it is about the way in which our country operates.
Lord Collins of Highbury (Lab)
My Lords, I shall be relatively brief. These two regulations were covered in my Amendment 40, so it could be argued that I have already addressed them.
I want to focus on the points raised by the noble Lord, Lord Fox, and particularly by my noble friend Lady O’Grady about the impact of these regulations on women. I know that my noble friend was part of this because we were working together on the same campaign, when my noble friend Lady Prosser launched the campaign for part-time and temporary workers’ rights within the Transport and General Workers’ Union going out. We took it to Europe to try to persuade MEPs to support us. It would be good to hear whether the Minister responded positively to the campaign to protect part-time and temporary workers when he was an MEP.
These rights have had the most effect on women. Women often choose to work part time for all kinds of reasons, but there is no reason they should have less pay and poorer conditions as a consequence. I had the same conversations with the noble Baroness, Lady Neville-Rolfe, when she was part of Tesco. Tesco is one of the biggest employers of part-time workers and many women were thus able to support their families.
It comes back to the fundamental issue raised by the noble Baroness, Lady Altmann. Here we have a situation where we risk these regulations simply falling off the shelf because of an arbitrary date for a sunset clause. These are fundamental rights which have changed the lives of women and their families. If they fall off, we will have no say in it. If the Minister changes them and we do not like the changes, all we can do in this Parliament is to say no—which means we do not have the rights at all again. That cannot be right. I hope the Minister can reassure us again on the specifics.
Lord Callanan (Con)
I thank all those who have contributed. I listened with interest to my noble friend Lady Altmann but I am afraid that her points were incorrect. I will not repeat the points that I made on the first group about how UK standards are superior. Those standards were introduced in UK law by Governments of both persuasions and approved by the UK Parliament. I am tired of repeating this point, but they did not, and do not, depend on EU law. My noble friend obviously was not listening to the points that I made on the first group.
Let me respond to the noble Lord, Lord Fox, on Amendment 2. I apologise if I am repeating the same points as I made on the first group. We are essentially covering the same ground as Members opposite seek to probe me on specific regulations. As I said on the first group, it is the Government’s position that there is no need for specific exemptions or exceptions to the sunset clause.
There are something like 4,700 identified pieces of law—I hope that we are not going to go through this debate for all 4,700 of them, although maybe it would suit the Opposition to do just that. The Bill provides the tools to remove or reform retained EU law in secondary legislation, but—and this point is crucial—it also enables the Government to preserve and restate retained EU law. This allows for the preservation of the status quo and no change at all to the policy operation where it has been reviewed and deemed fit for purpose for our benefit here in the UK.
As part of this process, and as the Bill allows, the Government are reviewing all retained EU employment law to ensure that our regulations, including the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, meet the needs of the UK economy. We are doing so on the back of the fact that we already have much superior standards to most other countries in the European Union, and far in excess of what EU law legislates for. I appreciate that there is a principled difference between us on this, but I will keep repeating that point as many times as noble Lords ask me for exemptions.
Let me pick up the point made by the noble Earl, Lord Clancarty. I agree with him that the creative industries have made a substantial and sustained contribution to economic growth and job creation across the UK, growing, on average, at nearly twice the rate of the wider economy. The Government are completely committed to supporting these vital industries.
Let me repeat again that it is up to departments and the devolved Administrations as to what they wish to do with specific pieces of policy. With that, I hope that noble Lords will be content to withdraw or not to press their amendments.
Baroness Altmann (Con)
My Lords, I am struggling to understand my noble friend’s comments. If UK law is already stronger than retained EU law, why do we need to get rid of the retained EU law? What is the problem with retaining it on the statute book and going with our stronger protections?
Lord Callanan (Con)
I am sorry that my noble friend does not seem able to understand this, but the Bill provides the tools to remove or retain EU law. It also enables the Government—I repeat this point again—to preserve and restate retained EU law. If my noble friend had listened to our debate on the first group, she would know that I made the point to the noble Lord, Lord Fox, that there is some retained EU law in this area, and a lot of UK domestic legislation that builds on and intertwines with it. There is also the interpretative effects, which were originally aligned. Therefore, while maintaining the high standards that this Parliament has legislated for, and possibly extending those standards in some areas, it is incumbent on us, in order to tidy up the statute book, to make sure that all our laws work for the best interests of this country.
Lord Callanan (Con)
Let me make the point to my noble friend before I give way to her again. Many of these regulations will indeed be preserved, retained or replaced. If it is the case that the Government come forward with such proposals, those regulations will be consulted on, and debated in the other place and debated here. My noble friend will have the opportunity to comment on them then.
Baroness Altmann (Con)
I thank my noble friend. I am still not quite sure what we can say to women, who currently have hard-won protections in the labour market, about where their future rights and protections will end up. We do not have a list of all the things that are going to be changed; the Government themselves have already said they do not necessarily know all the wider ramifications of this. If those protections are, in the view of a Minister, in need of change, and presumably being weakened, Parliament will have the opportunity to look at them. However, as the noble Lord opposite said, if they do not like them, they lose the whole lot.
Lord Callanan (Con)
My noble friend asks what she can say to women. She can tell them that they have one of the highest minimum wages in Europe as a result of the policies of this Government, that they are entitled to 5.6 weeks of annual leave compared with an EU requirement of four weeks, and that they are entitled to a year of maternity leave in the UK whereas the EU minimum is only 14 weeks—that is what she can say to women workers.
Lord Fox (LD)
My Lords, I believe I owe the Committee an apology. In withdrawing my previous amendment I said there were 4,000 unnecessary decisions facing the Government. I am afraid I was wrong. I have listened to the Minister and I understand now that it is 4,700 unnecessary decisions, on which the Government will be using important legislative and administrative bandwidth. I believe there are better things to be doing than this process, and perhaps in one of his other comments the Minister can explain why all this time is being wasted if, as he says, nothing will change—and that is our point.
When it comes to the question of interpretative effects, it is strike two. The noble Baroness, Lady O’Grady, and indeed the Minister himself, set out this intermingling of UK-derived, EU-derived and case law, and the fact that if we start pulling one piece of string there is a very great chance of it unravelling. The Minister has acknowledged there are interpretative effects, but we need a more detailed assessment of how the Government expect those to pan out as the courts get their teeth into the post-2023 situation. When I ask this in the next group, it might be better if the Minister undertakes to write a very detailed letter—possibly assisted by the department’s lawyers—that explains the legal view on how this is going to work. That is perhaps a way of avoiding me asking the question another few times.
At the end of the previous group, there was a very interesting intervention from the Minister’s own Benches on Clause 15(5), and how changes to the wording of that clause could begin to draw the sting of some of the arguments that we have heard so far and will hear later. The Minister might take to heart the advice that came from his own Benches.
We heard in the debate about the disproportionate effect that the stifling of this legislation could have on women, minorities, the creative industries and a wide group of people. That is why it was important to have this amendment in a separate group. However, given the nature of the debate, I beg leave to withdraw Amendment 2.
Retained EU Law (Revocation and Reform) Bill
Thursday 23rd February 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (22 Feb 2023)
Baroness Brinton
Member's explanatory statement
This amendment excludes the European Qualifications (Health and Social Care Professions) (Amendment etc.) (EU Exit) Regulations 2019 from the sunset in Clause 1.
Baroness Brinton (LD)
I apologise to the Committee for not being able to speak at Second Reading because of another commitment. I attended part of that debate and have read Hansard’s record of it. In this group, I particularly thank the General Medical Council and Food Standards Scotland, as well as many other organisations, for their excellent and helpful briefings.
It is worth noting that, in The Benefits of Brexit, published in January 2022 by this Government, they set out their principles for regulation, including:
“Recognising what works. We will thoroughly analyse our interventions based on the outcomes they produce in the real world and where regulation does not achieve its objectives or does so at unacceptable cost, we will ensure it is revised or removed.”
Like many other Peers, I echo concerns that the Bill contains severe risks to our democracy and laws and even to the role of Parliament. Once again, we have seen that the Bill gives widespread executive powers, and that has an impact for the amendments in this group. Department by department, the number of regulations continues to increase, as the debate at the end of the last group demonstrated, and I suspect it will increase again.
The three amendments in this group relate to health, but each covers completely different areas affected by the REUL Bill. This is because they are on the dashboard; it is all about what is and is not included on the dashboard, and, frankly, it appears to be universally confusing, including to government departments, which is worrying. So, if my questions to the Minister for all three are broadly similar, I suspect that that will be reflected by other noble Lords during the passage of the Bill. I hope that she will forgive me.
Amendment 3 looks at the European qualifications for health and social care professions, as amended by further regulations made in 2020. These govern the way that the UK recognises qualifications obtained in the EEA. As the General Medical Council—GMC—said, this is done in two distinct ways: via amendments that were made to our legislation and by four substantive provisions. The legislation route included a pathway to registration, known as the “relevant European qualification pathway”, which is a streamlined way for doctors with European qualifications to get registrations with us.
We on these Benches laid this probing amendment because of concerns about the scope. Before I come to that, I will make a brief comment on why it is vital that the Government get this right. Today’s Times front page says:
“NHS wants to double medical school places”.
This is because of the current shortfall in doctors—I note the past Government here as well. But training our own doctors does not happen overnight and, when there are shortages, we rely on doctors from overseas, including from the EEA. Getting that speedy recognition of equivalent qualifications right is absolutely vital. Only last month, the Government had to introduce changes to the pathway and process for the recognition of overseas dentists to be registered, as the General Dental Council was held back by the previous UK legislation, meaning that it took months and months to process an initial application. This is all at a time when there is a severe shortage of homegrown UK dentists.
In response to recent shortages, not least the number of EU doctors leaving the UK after Brexit, but also because our own trained doctors are leaving faster than their successors can be trained, this is particularly pertinent at the moment. In 2021, the Government increased medical school places by 1,500 to 9,000 a year and have boasted about it at the Dispatch Box ever since. However, last month the Government told universities to stop training so many doctors. We have a problem. If we do not have access to foreign doctors coming from overseas and the Government are seriously proposing to reduce the number of doctors under training, how will we manage to get ourselves out of the current NHS crisis?
That is the background. Returning to the legislation, the GMC says in its briefing that it is very worried that
“the Government may consider the standstill amendments which operate the REQ pathway as being in scope of the REUL Bill and seek to remove this pathway from the Medical Act at the end of the year.”
It goes on to say at point 9 in its briefing,
“We have exchanged with the Department of Health and Social Care (DHSC) to establish whether the standstill amendments fall within the scope of the REUL Bill and, if so, what this could mean for us and our pathway to registration for holders of EEA qualifications.”
It continues at point 10:
“DHSC have been unable to confirm the position but have intimated that the standstill amendments do fall in scope of the Bill and that an ongoing government review of these regulations will determine whether the Secretary of State grants an extension to the 2023 sunset deadline… This means that, without an explicit government extension granted, the amendments and the pathway would be removed at the end of this year—the Government think this would happen automatically.”
I come back: given the current pressures on the NHS, ending the arrangements for holders of EEA qualifications to register could lead to very severe outcomes for our NHS. I just remind your Lordships that the GMC received over 2,800 applications for registrations from doctors holding EEA or Swiss primary medical qualifications last year.
I think it is understood that the REUL Bill should have no effect on the amendments made to the Medical Act and other regulations but there are four provisions in the standstill regulations which have their own substantive effect as opposed to amending other provisions. Our understanding is that this Bill therefore presents a risk in relation to these provisions because they would be revoked at the end of 2023 unless action was taken to extend that deadline to preserve the effects of the provision.
My questions for the Minister are as follows. First, is what I have said correct that the standstill amendments are in scope, or not? If even the DHSC cannot work it out, there is a major problem.
Lord Hope of Craighead (CB)
My Lords, I wish to raise a point about Amendment 4. It relates to the interaction of this Bill with common frameworks. I believe—though I am open to correction—that EU regulation 1169/2011 is the foundation of a series of statutory instruments made by the United Kingdom Government, the Welsh Assembly and the Scottish Parliament, which all relate to what is called food labelling and compositional standards. That is one of the frameworks on the list of 32 which the Common Frameworks Scrutiny Committee has been scrutinising. My first question is: am I right that this regulation is part of this particular framework? If it is, it raises another question of great importance. What do the Government propose to do about legislation which is part of and built into a common framework?
The word “common” is used in the expression because these frameworks are common to the four Administrations that make up the United Kingdom. This is a method of creating an internal market which is a little more relaxed than that created by the internal market Act. The point is that all four Administrations consult each other about changes that may be needed and about the composition of the frameworks themselves.
I hope that the Minister will be able to say that the Government’s intention is simply to replace the regulation and the SIs that follow behind it so that they become part of assimilated law and lose their connection with EU law. I do not think that replacement would create problems, provided it is accurate. There is concern about Clause 15(3), which talks about alternative provision. If the proposal is to make alternative provision to any legislation which forms part of a common framework, to any extent or for whatever reason, it raises a question as to how it is to be done, while respecting the way in which the framework scheme operates. The essential part of the framework system is consultation between all four parties with a view to seeing whether there is a divergence, and, if there is, whether it can be accommodated by agreement between the parties? Where there is no divergence, one need do nothing about it—but it is all a matter of consultation.
I suppose my question is this: is it proposed to make any alternative provision in relation to this particular framework? If not, or if, as I said before, it is just a matter of replacing it, then I can see very little problem there. Any attempt to reform or make alternative provision raises a question of timing, which goes back to a point raised earlier today about whether the sunset is capable of being met. It is not just a matter of identifying the instruments and deciding what might be done about them; you have to have time to consult the devolved Administrations and secure their agreement. If there is disagreement, there needs to be time to go through a process for the resolution of disputes, which is built into the frameworks. It is a carefully designed system.
If the Government are proposing to maintain the common frameworks—I understood from the noble Lord, Lord Callanan, quite some time ago that that is their intention, which I very much welcome—then it raises questions as to how exactly that process will be handled. I support the noble Baroness, Lady Brinton, on the points that she made, but this is a very specific issue. We will come back to the handling of common frameworks in later groups, but I raise it now because it is very much in point in relation to this specific regulation, which we will examine and see how this is going to be dealt with.
Lord Fox (LD)
My Lords, my noble friend Lady Brinton has done a fantastic job of explaining why these three amendments have been put forward. I was going to apologise to the noble Lord, Lord Davies of Brixton, for stealing his clothes, but I feel less guilty now—he was here just now but has popped out.
I welcome the Minister to her seat; I do not know what she has done to deserve this slot, but I see that the Lord Privy Seal is here to make sure that she turned up. I think that she was here earlier when the noble Lord, Lord Davies, brought up Amendment 45, which would explicitly exempt the financial services industry from the effects of the sunset. I would have thought that, at a time when the health service is under the stress that it is and is stretching every sinew to try to deal with the situation that it finds itself in, this would be a sector to qualify for exemption. I suggest to the Minister that she might like to go back to colleagues and accept an amendment to Amendment 45, which will no doubt come from somewhere, that exempts health service regulations from the sunset arrangement. As we have pointed out, it seems that the precedent has been set by the Government, so let us look at worthy causes for exemption. If the health service is not top of that list, I would like to know what is. That is my modest suggestion to help the Government out on that particular issue. It does not make sense to call into question the qualifications of the doctors we actually have when we are trying to get so many more. Perhaps that is a solution.
My noble friend, in speaking to Amendment 4, mentioned REACH and the UK version of chemicals regulation. I probably should not point it out, but the issue of the non-portability of data was brought up repeatedly by many of us on the Floor of your Lordships’ House and so it should not have come as a surprise. The fact that it is now costing substantially more to do what we were doing anyway also should not be a surprise. It is a lesson that perhaps has not been learned but could be learned.
Amendment 4 relates to EU-derived laws that ensure the safety and standards of food in the UK. Removing them would pose a serious threat to consumers and undermine protections that prevent loss of life, as my noble friend so clearly illustrated. That is why we have put this particular regulation in this group of amendments and suggested it should be exempted from the sunset.
On PPE, I think the performance of PPE speaks for itself.
Lord Kerr of Kinlochard (CB)
I too welcome the Minister to her role. I knew her first as a very distinguished civil servant in the Ministry of Agriculture, Fisheries and Food, so know that she will understand far better than I do what I am now going to touch on.
It seems to me that this Bill has flown under the radar so far, as far as public opinion is concerned. It came through the other place with very little public attention. I do not think many people realise how much of the statute book that is directly relevant to them is in play and will stay in play until some Minister has decided whether it is to be amended, replaced or die. When the public get to know that this is the case, I think they are going to react rather badly. I wonder about the politics of this, late in a Parliament, but that is not my business.
The issue arises first very clearly in relation to Amendment 4, and later in relation Amendment 20. Food safety is a real concern, right across public opinion. The idea that food labelling and safety rules could be in play will have considerable resonance, in a negative sense, across the country. When people were talking in an overexcited way about how we might have a free trade agreement with the United States, I was struck by the issues that really had public resonance, which were those concerning chlorinated chicken and the hormones in beef. As a member of the International Agreements Committee, I am struck that what is of most interest to the public in free trade agreements are food imports and whether their standards will be equivalent to ours.
I learn from the Consumers’ Association that 90% of our food law is retained EU law. Unless the Government accept amendments such as Amendments 4 and 20, in play will be a raft of legislation which is important to people. They take it seriously; they want to know what is in the food they are going to give the kids. It would be in the Government’s interest to look seriously at these amendments and at the sunset clause, which just does not work, as the noble and learned Lord, Lord Hope, said earlier.
Particularly in relation to food safety, people think, “salus populi suprema lex”—I try that on the Minister because she is a great classical scholar—that is what they believe. Therefore, what the rest of us are doing now, along with singularly few on the Government Benches—
the boy stood on the burning deck,
Whence all but he had fled—
will have considerable resonance out there.
Lord Whitty (Lab)
My Lords, I want to follow the noble Lord, Lord Kerr, in intervening on this issue because this is the first consumer protection part of the Bill. I was once a consumer champion—I hope I continue to be so privately—and this amendment and many in the next group relate to food safety. The noble Lord is absolutely right: this is one of the most acutely difficult areas of consumer protection, and labelling in particular has caused a certain amount of controversy. But there is settled law here, and the bulk of it originates from Europe.
There are other areas of consumer law where UK law is better than EU law, but here, our scientists, our food industry and the Europeans have come up with an agreement which goes right across Europe. We have to remember that processed food and fresh food is a very well-traded commodity, probably the biggest trading commodity within the European continent, and we need some commonality. The threat of this being changed is surely a real difficulty for the food industry—although the Minister can answer that—and certainly for consumers. It is difficult enough to follow the labelling and consumer information currently required; if we have different labelling and requirements for things originating in France and in the UK—or for those originating in the Republic of Ireland and in Northern Ireland—we will have huge difficulties.
But there is something more behind this. When the Government presented the European Union (Withdrawal) Act 2018, I think we all accepted that whether we liked Brexit or not, we would have to have a process whereby government looked at whether some of these laws continued. The real difficulty with this legislation is that it does not provide for a steady look at what the highest priority is for government to intervene on over the next few years, in order to see in a broader context whether we ought to change it. There is the threat that every single regulation and law mentioned in these amendments and in subsequent groups will end on 31 December this year without any replacement, whether with consideration or not.
We are on Clause 1, which deals with the sunset. The noble Lord, Lord Kerr, has referred to the relatively sparsely populated Government Benches. I ask Ministers if during their lunch break they have taken note of the points made by the noble Baroness, Lady Altmann, and the noble Lord, Lord Lucas. If they are taken on board, that would reduce the anxiety here and in civil society about this approach. If the sunset clause disappears, and with it the threat of regulations entirely disappearing at the end of this year, we would give the Government credit for being able to make a proper assessment of whether those rules are needed.
Regarding the suggestion of the noble Lord, Lord Lucas, if we had an amendment to Clause 15 which, broadly speaking, said “no regression”, the level of anxiety would again be greatly relieved, at least in relation to some of the regulations we are talking about.
So I hope the Minister took the opportunity of the 50-minute adjournment to think about what his colleagues were saying, and that he will come back to us, either now or subsequently, with an assurance that there will not be the death of all these regulations as of 31 December, and that regression will not occur in relation to any of them, particularly those dealing with food labelling information and the protection of consumers whenever they go to the supermarket.
Baroness Chapman of Darlington (Lab)
My Lords, I support all the amendments in this group. The noble Lords, Lord Fox and Lord Clement-Jones, and the noble Baroness, Lady Brinton, in the way she introduced them, have done a very good job of bringing these important issues to our attention. I want to make a couple of points that have not yet been made about this process. We have had a lot of discussion on process, as we do on Bills that are all about enabling rather than substance. That is inevitably what our debates end up focusing on; we use these issues as a prism to look through. It helps us to realise just how dreadful an approach the Government are choosing to adopt.
As we all said at Second Reading, I do not think anybody objects to the Government looking at retained EU law and asking Parliament to make changes to it. That is what Governments are there to do: to improve the law of the land. We respect this Government’s right to do that. We might not like it, but that is what they are there to do. However, we feel that to do it in this way is just wrong in principle, and the usefulness of these three amendments is that they make that point very well.
When I was looking at Amendment 3, I noticed that in February last year the Government presented an SI dealing with health professional qualifications. They said that it was needed because the measures concerned had been dealt with in a hurry as we left the EU. At that point, in that SI, the word “pharmacist” had been used instead of “dentist”. That is quite an error. I raise this for a couple of reasons. The first, obviously, is to demonstrate that the Government can and do change regulations arising from our exit from the EU as a matter of course. It is a perfectly normal thing for both Houses to do. I myself, and I am sure everybody else in the Chamber today, have had the great honour, privilege and delight of taking part in many SI debates. It is what we do. Even when things are not done in a crazy rush, trying to get hundreds or thousands of these done by Christmas, significant errors are made and things are put into the law of this country that were never intended to be there and should not be there. I also raise this because I wanted to highlight that however brilliant our civil servants are—as I think they are—and however diligent and hard-working they definitely are, errors are made by civil servants too. I am not someone who has described our Civil Service as “broken”, “lazy” or “bloated”, but government Ministers have, very recently; yet they are asking civil servants to undertake this Herculean process. There is a tension there.
Amendment 4 and the issue of food labelling is important; I am not surprised that that is what the majority of the contributions on this group have focused on. There are multiple examples of deaths occurring as a consequence of food labelling not being right. I am very supportive of an examination of our food labelling laws. I am very happy that this could be done by the UK Government—ideally in consultation, at the very least, with the devolved Administrations.
Lord Hope of Craighead (CB)
Before the noble Baroness sits down, I wonder whether she accepts my point about the common framework relating to food labelling and standards, because it does raise a different dimension. In that case, the UK Ministers do not have a free hand if the framework system is to survive. Every change has to be discussed, and preferably agreed, with the devolved Administrations. If there is disagreement, then that has to go through a resolution process, which may ultimately end up with the UK Minister. But it is quite a complicated process, which is designed to make sure that there can be some divergence, but an agreed divergence, across the Administrations, which is in the interests of everybody. So I wonder whether she accepts my point that this is another dimension which really has to be explored, and of course has a bearing on the sunset point.
Baroness Chapman of Darlington (Lab)
I very much accept that. It might be that we want to discuss later in the Bill whether or not any of the issues that devolved Administrations have a view on, or have responsibility for, ought to be dealt with in a different way, because the devolved Administrations, as of today, are deeply concerned about the way that the Government are proceeding. So I very much agree with the noble Lord’s point.
Baroness Meacher (CB)
My Lords, may I just respond to the noble Baroness, Lady Chapman? She said that we just need to know whether the Government want to retain the protections in terms of health, PPE and food labelling, or whether they want to change it or reform it and so on, and that that is all we need to know. It is unbelievable to me that we are having that sort of discussion in this House, rather than requiring it to be very clearly specified in the Bill in relation to these incredibly important issues, and indeed the thousands of other important issues, exactly what the Government’s policies are in terms of retaining, reforming—and, if so, what reform—and the rest of it.
This takes me back to the comments from much earlier made by my noble friend Lord Wilson, when he said that this is lazy government and an unacceptable failure to prepare the policy for this Bill before bringing it. It has already gone through the House of Commons like a flash without any proper discussion. As he would say, there is a reason that we have democracy and the UK Parliament; it is in order for the British people to be consulted, to understand and to be able to anticipate and know what their Government are doing and why. So we are having these debates—as I said earlier, I do not want to repeat myself—but it just takes me back to asking what on earth we are doing, rather than saying, “Government, O Government, please take this Bill back; do the homework, prepare your policies in relation to this Bill and then set out your policies in the Bill; and let us see whether Parliament will pass it.”
Baroness Chapman of Darlington (Lab)
What an extraordinarily old-fashioned way of looking at how to run a country. The idea that the Government Minister would be required to stand here, in front of your Lordships, and explain what the Government intend to do—I have never heard of such a thing.
I think that the noble Lord, Lord Wilson, was absolutely right to say that this is lazy government. It is lazy, but the reason that the Minister is about to stand up and give some sort of platitudes or vague assurances is because the Government do not know what they want to do. We saw this with the Schools Bill and with the Northern Ireland Protocol Bill. I am sure we have seen it with many other Bills which I have not been quite so closely involved with, but this is a pattern—a pattern which I think the public have got ever so slightly wise to. I would sincerely advise the Minister, whom I hold in utmost respect, not to try to fob this Committee off with some kind of vague assurance. We do want specifics, and we do want to know what the Government are planning to do.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, it is actually a great pleasure to join this debate on this important Bill. There are four of us on the Front Bench to listen to concerns expressed today—weighty Front-Benchers. I very much believe in the rights of this House and our work to review legislation, which I have done with many noble Lords over the last 10 years.
I will not repeat everything that my noble friend Lord Callanan has said. But I would say that the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens. We should not forget this, while, of course, maintaining necessary protections. That includes food safety, as the noble Lord, Lord Kerr of Kinlochard, explained so clearly. The noble Lord, Lord Whitty, rightly pointed out that food moves across frontiers, which need to be taken into account, of course, in any review.
Of course, all protections will not disappear. That is not what we are debating. As the noble Baroness said, the Government are here to improve the law of the land and we need to avoid error.
Lord Fox (LD)
I thank the Minister for giving way. She said that not all protections will fall away. Can she tell us which protections will fall away?
Baroness Neville-Rolfe (Con)
I said we would be maintaining the necessary protections. I was debating. People were saying that all protections would disappear; I wanted to make it clear that that was not the case. I am going to talk in a minute about the two or three areas raised by the noble Lord, Lord Fox.
The sunset clause, as we have said already, is not intended to restrict or influence decision-making. It will be for Ministers and devolved Governments to decide what action to take in their specific policy areas.
Even those of us who were remainers and who participated in discussions in the making of European regulations over many years were very frustrated by the bureaucracy and duplication of some regulations, and some of the compromises that we had to make were unwelcome. That was true for Governments over a long period; it was not only a matter of this Government’ concerns.
It is only right, in my view, that retained EU law is reviewed equally across all sectors of the economy and then, if necessary, reformed or preserved. To respond to one of the points made about carve-outs, we do not want to leave any area unreviewed. That includes financial services, but they are being reviewed in the context of another Bill that is going through the House at this time.
We think it is right to review all the areas, including health—
Baroness Chapman of Darlington (Lab)
I am just curious. What decision process resulted in financial services being dealt with in a different way from everything else? It would help us if we could understand that.
Baroness Neville-Rolfe (Con)
As I said, we are determined to have a review and to make the changes that we can, and the two Bills are going through concurrently. A decision was taken—I think rightly—to take advantage of that process.
Baroness Chapman of Darlington (Lab)
We are trying to understand why that is. What is different about financial services and food safety to warrant them being dealt with in such different ways?
Baroness Neville-Rolfe (Con)
I think our overriding concern is to make sure that all the areas are reviewed and that is behind this whole process, including the sunset. Let me move on, if I may, and make a bit of progress.
Baroness Ludford (LD)
I hope the Minister will forgive me but before she moves on, I want to add to the question from the noble Baroness, Lady Chapman. The Financial Services and Markets Bill is not only primary legislation but there has been consultation, proper scrutiny and so on, and listed in the schedule to the Bill are all the measures that are being removed. That is essentially what is being asked for by critics of this Bill. Please will the Minister tell us what the Government are doing with individual measures—the 4,000 or whatever?
Baroness Neville-Rolfe (Con)
We have a process for those measures. Obviously, there is a lot of retained EU law. We are going through it very carefully. Departments are doing that and are working out what should be preserved, what should be amended and where there is duplication. As I said, there is a case for change, and I think that has been accepted on the other Benches. In some cases, there is parallel legislation, such as the Environment Bill, which has brought in new powers.
If I might turn to Amendment 3 in the name of the noble Baroness, Lady Brinton, I think she will be glad to hear that the European qualifications she refers to in the amendment do not, in fact, fall in scope of Clause 1. Therefore, this amendment is not necessary and, indeed, would have no effect. This is because the regulations concerned were made under domestic powers to come into force after the transition period and therefore do not fall within the definition of EU-derived subordinate legislation in scope of the sunset. The sunset captures only regulations made or operated immediately before the transition period for the purpose of implementing an EU obligation.
Turning to Amendment 4, I am sorry to hear about the noble Baroness’s coeliac condition. I remember developing special lines for coeliacs in my time at Tesco, which has been referenced earlier in the debate. We are in the process of reviewing retained EU law. The Government’s aim is to ensure that food law is fit for purpose and that the UK regulatory framework is appropriate for and tailored to the needs of UK consumers and businesses. A specific exemption for these regulations is not appropriate. The Government are in the process of analysing and assessing retained EU law to determine what should be preserved and what should be repealed or amended. That work will determine how we use the powers in the Bill. The UK has world-leading standards of food safety and quality, backed by a rigorous legislative framework. I know because I did the first Bill of this kind, the Food Safety Act 1990. It is only right that we should re-evaluate REUL to ensure that it continues to meet our needs.
I was asked about intention. The Government remain committed to promoting robust food standards nationally and internationally to protect consumer interests, facilitate international trade and ensure that consumers can have confidence in the food they buy.
Baroness McIntosh of Pickering (Con)
I have followed this debate, although I have not yet spoken in it. I would just like to clarify something. Is my understanding correct that Defra, or indeed any other department, could apply to have its own date for sunset clauses? If that is the case, what is the mechanism that would be used in terms of legislation? Also, when the Minister refers to food standards, what is the role of the Food Standards Agency in England and Food Standards Scotland to maintain them, not just for food in this country but to ensure that imported foods meet those standards under the revised legislation?
Baroness Neville-Rolfe (Con)
I will try to answer my noble friend’s question. Defra has a programme looking at all this. It needs to decide what to preserve and what might need to be amended. I think the Bill has some scope for extension from 2023 into 2026. Perhaps I could now move on to Amendment 17 in the name of the noble Lord, Lord Clement-Jones.
Lord Hope of Craighead (CB)
Before the Minister moves to Amendment 17, Amendment 4 raises the issue of common frameworks. I can well understand the Government’s wish to have a fresh look at standards overall, but it is a massive task, and if the Government are adhering to the structure of the common frameworks, that cannot be done without consultation with the devolved Administrations. Are we dealing with common frameworks in the area that Amendment 4 is concerned with and, if so, how do the Government propose to handle it? Are they proposing to adhere to the mechanisms in the common frameworks? If so, can the Government assure us that they can achieve what is necessary before the sunset date?
Baroness Neville-Rolfe (Con)
I was going to respond at the end on common frameworks, partly to say what our hope is, and partly to say that this may well come up under future amendments on the Bill in the next few days. I wanted to be reassuring. Obviously, our ambition is that government departments and devolved government counterparts work together to agree their approaches to individual pieces of REUL. The delegated powers in Bill could then be used to preserve, extend, amend or repeal REUL as required via statutory instrument. Of course, as has been said, the devolved Administrations also have statutory instruments that they need to look at.
Baroness Chapman of Darlington (Lab)
It is interesting to look at the expertise of the people who will be making these decisions. In the case that I referred to earlier, the coroner made some specific recommendations about food labelling and obligations to report anaphylaxis. Will things such as that be taken into account by civil servants when they are looking at what to recommend to Ministers in terms of revocation or rewriting?
Baroness Neville-Rolfe (Con)
Clearly, when civil servants are reviewing the body of law, they will look at individual points that have been raised, not least those that have been raised by this House. That is part of the process of review that takes place. I was seeking to explain that I do not think that REUL reform poses a threat to the common frameworks programme. Carving out retained EU law and the scope of common frameworks from the sunset would effectively remove a key driver of the very regulatory divergence that common frameworks are designed to manage, and which I think are improving matters. The devolved Governments would be able to make active decisions regarding their REUL and decide which REUL to preserve and assimilate or let sunset within their respective areas of competence. We will come back to this issue, no doubt, because I think there are some amendments in a later group. I am very happy to discuss these points further with the noble and learned Lord.
Baroness Chapman of Darlington (Lab)
Before the noble Baroness sits down, I am sorry to keep popping up and down, but it is Committee and that is sort of what this is about anyway. I may have intervened at slightly the wrong point. She was trying to respond to a point about common frameworks, and my question was not really about that. She said in response that there would be an ability for this House to contribute to review and to bring to the Minister’s attention some of the important things we have discovered—from recommendations by a coroner in this case, but there will be many other points that are important too. I do not understand; I do not see how the Bill as proposed really does enable that to happen. She says it does, and I wonder whether she could explain a little bit more fully what she meant by that.
Baroness Neville-Rolfe (Con)
What I meant is that, when Bills are going through and noble Lords raise points, it is my experience, having done many Bills both as a civil servant and as a Minister, that these points are picked up and considered. Specific points were made, and I can certainly give an assurance that those points will be passed on to the departmental teams looking at the matters on food safety.
Lord Fox (LD)
My Lords, coming in on that point—I thank the noble Baroness, Lady Chapman, for starting the process—and bearing in mind that the number of regulations and laws we are discussing today with respect to Clause 1 is a very small percentage of the 4,700 that the Government have on their list, how does the Minister suggest we raise some of the others that we have not put before your Lordships’ House as amendments? I am happy to come up with some more amendments if that is the best way of doing it. If it is not the best way, perhaps a forum—we could call it “Parliament”—could discuss it.
Baroness Neville-Rolfe (Con)
Let me reflect further with the lead Minister on this matter and come back. The point that I was making is that the suggestion that nobody is listened to is not right. We are listening and we are concerned to make sure that necessary protections are extended. That is the intention.
Lord Hannay of Chiswick (CB)
I just say to the noble Baroness on the issue of common frameworks and the devolved Administrations that your Lordships’ European Affairs Committee, in the form of our chair and two other members, went to Cardiff and Edinburgh to take evidence on a completely different matter. Both in Cardiff and in Edinburgh, we were told there was absolute dismay at the way they were not being told what was going on with REUL, and that there seemed to be an unwillingness to recognise that some of legislation had actually been devolved. They were just being told, “Well, it will have gone”. This is quite serious stuff, frankly. I am not expecting the Minister to answer this question now, but will she please say that intensified discussions will go on with the devolved Administrations about the implications of the Bill for them? Otherwise, there is a lot of trouble ahead—and these were not people from opposing parties; they were people from the Minister’s own party as well.
Baroness Neville-Rolfe (Con)
I find it difficult to answer that. My understanding is that there has been extensive dialogue with officials across all these portfolios, as noble Lords would expect: that is how government runs. In my areas of responsibility, which do not include food these days, there is extensive dialogue between departments, and that is very helpful. That has been the process here and will continue to be the process.
Baroness Crawley (Lab)
If there has been extensive dialogue between officials, and presumably organisations that advise the Government, such as Food Standards Scotland, why are they lobbying us about the defects of the Bill?
Baroness Neville-Rolfe (Con)
I have had correspondence with these bodies. Certainly, in my other work I deal with the Food Standards Agency. It is very helpful and it links with government. If I may, I think I will now move on.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, I have a really practical question. Many people around the Committee have expressed the view that Parliament should have proper scrutiny and accountability, but, even on the Government’s own terms, I genuinely do not understand at what point people in the real world get to hear whether the deadline for the sunset has been extended. When it comes to food labels or workers’ rights, I know that the Minister personally understands that manufacturing companies, for example, cannot just turn things around overnight; they have to know what they are doing. This has a real impact in the real world, so how much notice will we be given, if the Government press ahead on these terms, on whether there is going to be an extension of the sunset clause?
Baroness Neville-Rolfe (Con)
There is a process in place. The Minister explained earlier how it is working and that we will be giving more information, as we should. I was trying to reassure the Committee that, in advance of that, discussions are going on at official level, which I am sure will reassure people. There will be a process. Anything significant that needs to change will need to be the subject of a statutory instrument, which will come before the House in the normal way.
I am now going to move on to Amendment 17.
Lord Kerr of Kinlochard (CB)
One of the more entertaining bits of the Minister’s elegant reply was the opening bit, in which she gave us a new rationale for the sunset clause: it was necessary in order to get obscurantist, idle civil servants to actually go through the statute book and decide which bits should go. Is this habit going to catch on? The next time we have a defence review, shall we start with a sunset clause that would remove frigates? I think the noble Lord, Lord West, would be particularly good in that discussion.
The Lord Privy Seal (Lord True) (Con)
My Lords, I remind the noble Lord, who I listen to with great respect, that it is not the custom in this House to address remarks personally as “you” to an individual Minister who is trying to answer. You may certainly make charges—you have made many—against His Majesty’s Government but please let us not personalise our dialogue.
Lord Kerr of Kinlochard (CB)
The rebuke is absolutely correct, and I withdraw my remarks. When I said “you” I meant the Government vicariously, but I may have elided from first referring to the Minister personally into talking about the Government. The Leader is quite right to stamp me down.
I hope that the Government will be able to tell us soon the answer to the question the noble Baroness, Lady O’Grady, has asked. The uncertainty across the country is what will do the most damage.
Baroness Neville-Rolfe (Con)
That is why we have published the dashboard and why we will improve it. It is why we want to get this Bill through, so that the SI process can start in good time for the end of the year. I should say that I know that government departments have been working on this process for a long time. When I was a Minister in the Brexit days, the process of considering what might be done for the future was already under consideration. A lot of thought has been given to this and we need to get on. I would encourage noble Lords to support that.
On Amendment 17, there is no need for a specific exception for regulations on PPE. On intent, we of course remain committed to protecting consumers from unsafe PPE and will continue to ensure that only safe and effective PPE products are being placed on the market now and in the future. Ministers will be using available legislative powers, including those within this Bill, to take the necessary steps ahead of the sunset date to ensure that we meet this commitment.
We have dwelt on this for a long time. I hope noble Lords will feel able to withdraw and not to press their amendments and move on to the next group.
Baroness Brinton (LD)
My Lords, I thank all noble Lords who have contributed to the debate and engaged directly with the Minister. It has been very helpful, not just to these three amendments but to the wider understanding of the Bill. I thank them for it.
I want to pick up the point about the common framework, because it reinforces the point around trying to do complex issues at speed—worse than that, complex issues that not just Parliament but even civil servants are not yet aware of. If more regulations are going to be put on to the dashboard, as the Minister responding to the last group before lunch said, we presumably expect more to emerge. One of the worries is the point at which the dashboard will freeze. Is it on 15 December or 30 December? What happens at that point to scrutiny?
My noble friend Lord Fox asked, only half in jest, whether we will have to go through every single regulation on the dashboard and lay amendments in order to get things discussed. We are doing that now at the end of February. If another 1,000 regulations are added in the middle of the summer, how on earth can we respond through the normal channels of Parliament and through scrutiny? I am really grateful to the Minister who, with her usual professionalism and concern, has tried to respond, but the core message that we have been getting all day in Committee is that there is no time to do this work before the sunset without really poor and unintended consequences.
I come back briefly to the issue of common frameworks. Fairly late on, during the passage of the Health and Care Bill—the noble Baroness, Lady Meacher, may have been one of the signatories to the amendment I am thinking of—we laid an amendment that was supported throughout the House. We were told that, because of time, agreement had been premade with the three devolved nations and therefore we could not have the amendment because it affected the common framework. That is absolutely not democracy. My real concern is that time is galloping by and more and more regulations are emerging.
I want to respond to each of the points that the Minister made. On doctors, I hope that she will read the GMC briefing, particularly the comments I cited about the Department of Health and Social Care being unclear. Although she may be clear, civil servants in that department are not. As long as that is the case, it needs to be clarified.
On food labelling, I am grateful for the reference the Minister made to making sure that Defra picks up its side of this. However, the reason it is mentioned is because there is a fairly large health impact. On our reading of it, there are issues. I do not think she quite answered my specific question on whether the sunset is there for part of it or all of it, or whether all of it is all right.
The same is true for PPE. The specific question I asked was because of the complexity around whether the sunset can override the regulation that has been put in place. I got a different answer to the question, but this is at the core of misunderstandings and is why I made a point about impact assessments and costings when I spoke on each of these issues. Food Standards Scotland, the GMC and the BMA in all their briefings said that they did not find what the Government intend to do at all clear. For the GMC, that is very serious. It is a big regulatory body, and the people it regulates hold people’s lives in their hands; it is important that it understands.
It is not fair to expect the Minister to answer in too much detail on the specific regulations, but the general points have been made time and again. From the health perspective, I completely agree with my noble friend Lord Fox, at the very least because of the condition that our health service finds itself in at the moment. It is really important, and I beg the Minister to consider relaxing the sunset on all health issues, given everything else that the department and the NHS are living with at the moment. In the meantime, I beg leave to withdraw the amendment.
Lord Clement-Jones
Member's explanatory statement
This amendment excludes the Toys (Safety) Regulations 2011 from the sunset in Clause 1. The Regulations control the safety of toys in the UK and include provision for warning labels.
Lord Clement-Jones (LD)
My Lords, I am greatly encouraged by the fact that the Minister believes that these debates on individual regulations are helpful—at least, that is what I heard her to say. This group, like the previous one, concerns a regulation that affects a large number of important product safety laws in the UK that have been fundamental to many consumers.
Amendment 5 deals with product safety laws in the toy industry. The industry has operated for many decades and has ensured, as the British Toy & Hobby Association says, that businesses bring safe toys and games to the market and protect British children who play with them. The BTHA itself has reviewed the retained EU law dashboard, and says that there are at least 40 pieces of law that affect the UK toy industry and relate to product safety. These include the Toys (Safety) Regulations 2011, which are the subject of Amendment 5.
This legislation sets out requirements for businesses to bring safe toys to the market, including things like restrictions on hazardous chemicals and requiring information in the form of markings and warnings to help consumers determine the age suitability of toys or for traceability purposes. I particularly note the age warning for toys for children under three years, which is designed to protect our most vulnerable consumers from hazards such as small parts that could cause choking.
The BTHA told noble Lords that toy safety is the number one priority for its members, and the existing toy safety laws relied upon in the UK today have been developed with the input and scrutiny of the UK toy industry and its toy safety expertise. There is absolutely no clamour for deregulation. In the UK, businesses rely on British standards to show compliance with the toy safety regulations. If the regulations are sunsetted, the current standards would become redundant in the UK, which could risk dangerous toys entering the UK market, undermining legitimate businesses and bringing potential harm to consumers.
There is scope for improvement in safety standards. Under current product safety legislation, online marketplaces are not accountable for the safety of products sold by third parties, which enables non-compliant and unsafe toys to be sold in the UK. In October 2021, the BTHA reported that nearly half of the toys it randomly purchased on online marketplaces could choke, strangle, burn, poison or electrocute children. It said that 224 of the 255 toys it inspected did not comply with British laws. A particular case study that it brought attention to involves magnets: Rebecca McCarthy, who was just 22 months old, was left critically injured after swallowing 14 magnets that were above the legal limit. The magnets had managed to burst through and rupture three parts of Rebecca’s intestines and had to be removed during surgery. Rebecca was lucky to be alive.
A recent report by the National Audit Office found that product safety regulation has not kept pace with trends in online commerce. It noted that online marketplaces were used by about nine in 10 adults, but they were
“not responsible for the safety of goods sold by third parties.”
Is deregulation in this space really being contemplated, or will we let online marketplaces injure our children?
On other forms of product safety, the General Product Safety Regulations 2005, which are the subject of Amendment 16, are also at risk of being sunsetted this year. Sunsetting these regulations will give rise to serious risks for consumers. In this respect, the Bill seems to conflict with the Government’s own policy. In January 2018, the Government established the Office for Product Safety and Standards, and, since then, it has consulted on the UK’s product safety framework. As with toys, this includes, for example, the opportunity to address online marketplaces’ lack of obligations to place only safe products on the market, in a similar way to how obligations apply to traditional retailers.
Which? has regularly found unsafe products offered for sale online, including Christmas tree lights that were a fire and safety hazard and baby carriers that posed a suffocation risk. Noble Lords and the Minister will no doubt have seen headlines about scammers exploiting the energy bill crisis with dangerous electrical goods. Today, Which? published an investigation into unsafe electrical heaters being sold on online marketplaces. Its findings demonstrate that the regulations need to be strengthened, not weakened, to make sure that online marketplaces are abiding by the law. But Clause 15 could prevent the OPSS from improving product safety regulations—particularly by extending the rules to cover online marketplaces—because the clause requires that any replacement regulations do not increase the net burdens on business. Similarly, with consumer protection regulations, there is a real risk that the Bill cuts across what the Government intend to do through the forthcoming digital markets, competition and consumer Bill.
Lord Krebs (CB)
My Lords, it has been a long day of debate and I will invite noble Lords to pause and think about tea—maybe the tea in the Peers’ Dining Room—and about one particular ingredient in their tea: milk. You may have milk in your drink or in the form of butter; you may even have a cream tea with clotted cream on your scone. Whichever of those you have, you make the assumption that the milk and the products derived from the milk are safe—and you are right to make that assumption. But it has not always been like that. Turning the clock back 90 years to the 1930s, an estimated 2,500 people a year in this country died of bovine tuberculosis, mostly contracted from drinking unpasteurised milk. Yet the Parliament of the time concluded that that risk did not justify introducing mandatory pasteurisation. It was not until 1949 that Dr Edith Summerskill, Parliamentary Secretary at the Ministry of Food, finally introduced the pasteurisation Bill. She said that pasteurisation had been prevented by “ignorance, prejudice and selfishness”.
Amendments 30, 39 and 146 are jointly in my name and that of the noble Lord, Lord Rooker, whom I thank. They are designed to prevent ignorance, prejudice and selfishness inadvertently or deliberately making our food less safe and of lower standard than we are used to. There is ignorance, because we do not know the precise number, nature and impact of the rules that are potentially being removed at the end of this year. There is prejudice, because, as the noble Lord, Lord Clement-Jones, said, the plan to sunset is driven by ideology and not logic. There is selfishness, because ideology is trumping the protection of the public. As my noble friend Lord Kerr of Kinlochard said earlier, the reason our food is so safe today is a raft of legislation, 90% of which is derived from the EU. Without proper scrutiny and consideration, these protections could be lost.
Interestingly, the noble Lord, Lord Benyon, in a separate debate on food shortages earlier today, listed food safety as one of the three priorities for the Government. In light of that, I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:
“In the FSA, we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health”.
She also said that the FSA was facing “substantial headwinds” and “real challenges over resources” to scrutinise properly the more than 150 pieces of relevant legislation. According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.
I declare my interests as in the register. As one of the leading retailers said to me yesterday, as soon as protections are lost, the criminals are keen to fill the gap. The noble Lord, Lord Rooker, who was also at one stage chair of the Food Standards Agency, will know as well as I do that the food industry is not totally clean. There are crooks around. This is starkly illustrated by what happened at Dover as a consequence of the lack of post-Brexit border controls. Last October, a 24-hour crackdown on imports from the EU at Dover revealed that 21 out of 22 lorries coming from eastern Europe contained a truly disgusting mixture of rotting raw meat kept at room temperature, mixed with products such as crisps, cheese and cake. This food was destined not for places where you or I shop but for cheap, independent outlets and markets where the most disadvantaged people in this country get their food.
My amendments take three approaches. Amendment 30 refers to the Trade and Co-operation Agreement. Amendment 39 carves out 14 regulations from the sunset clause. I also support Amendment 4, which we have already debated, and Amendments 20 and 38, which are similar or overlapping carve-out amendments. Amendment 146 in my name refers to the Food Safety Act 1990.
I will start with Amendment 30, which simply requires the Government to commit to abide by the Trade and Co-operation Agreement they signed with the European Union a little over two years ago. Surely that is not a big ask. I am sure that many noble Lords know the Trade and Co-operation Agreement off by heart. For those who may like a reminder, I will explain it very briefly. Chapter 3 of the TCA is entitled “Sanitary and Phytosanitary Measures”, usually known as SPS for short. The term “sanitary and phytosanitary” may deserve explanation. Despite its name, it is not to do with the provision of bathroom appliances. The WTO puts it like this:
“How do you ensure that your country’s consumers are being supplied with food that is safe to eat —‘safe’ by the standards you consider appropriate? And at the same time, how can you ensure that strict health and safety regulations are not being used as an excuse for protecting domestic producers? …The Agreement on the Application of Sanitary and Phytosanitary Measures sets out the basic rules for food safety and animal and plant health standards”.
The TCA that we signed with the European Union sets out seven objectives, which include protecting human, animal and plant life or health, enhancing co-operation between the parties in the fight against antimicrobial resistance et cetera, and enhanced co-operation with the relevant international organisations to develop international standards.
This simple amendment asks the Government to continue to adhere to that agreement, whatever it does with sunsetting in the Bill. I very much hope that the noble Baroness will confirm that the Government do intend to adhere to the Trade and Co-operation Agreement. If they do not, I will consider the counterfactual, which would in effect be saying, “I know we signed up in December 2020, but we’ve now changed our minds”. If the Minister cannot confirm that we will abide by the Trade and Co-operation Agreement, what does she think that the food industry, UK consumers and our EU neighbours will see as their response?
I turn to Amendment 39. It lists a series of EU-derived regulations that provide vital protections for food safety and consumer information. We have already discussed some of these, so I shall keep it very short. My list covers food additives, contaminants, health claims and nutritional information. The list is by no means comprehensive—as I have already said, there are more than 150 EU-derived regulations—but it makes the point. As we have heard in earlier debates, these are all things that consumers simply take for granted when they buy food. They would be shocked to hear that the Government might even consider ditching the protections provided by these regulations.
Amendment 146 takes a different approach. It aims to ensure that any changes to food law as a result of this Bill do not alter the protections provided by the Food Safety Act 1990. The Minister explained that she was involved in that Act, so she will be very well aware of what I am talking about. To summarise it, the Act covers all businesses involved in selling food; buying with a view to sell, as intermediates; supplying food; consigning or delivering it; and in preparing, presenting, labelling, storing, transporting, importing or exporting food. It makes it an offence for anyone to sell or process food for sale which is harmful to health.
Lord Rooker (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Krebs. I agree with every point he has made; I want to be complementary, not repetitive.
Amendment 38 gives a short list of main points; at the time I tabled it, I was probably too busy to go through all the reference numbers. I am therefore pleased to support Amendments 30 and 39, which I have signed.
Unlike many of the amendments to the Bill that we have already discussed and will discuss, this group concerns products—products that we create in the UK, import into the UK and export from the UK. I can say with some confidence that, if we deviate from what has been put into UK retained EU law over which the UK has total control, we can forget my third point as we will not be exporting in the future. It is as simple as that.
I have no interests to declare, but I had two years at MAFF from 1997 and four years at the Food Standards Agency—well after the noble Lord, Lord Krebs. As I said at Second Reading, I am a member of the Delegated Powers and Regulatory Reform Committee.
It is not easy to keep up with all the paperwork on this, but I looked at the European Commission notice to stakeholders on the withdrawal of the United Kingdom from EU food law. The version I looked at was from 13 March 2020; I could not find a later one. That was of course just after—about a month—the UK became a third country. We are out; it is a simple as that. We have continued since then with our version of retained EU law. The subject areas are enormous—there are dozens of them, some of which we have touched on today: food labelling and information; identification marks; ingredients; composition; contaminants; residue limits; food contact materials, such as packaging, which is absolutely crucial; food production rules; food of animal origin, as opposed to of non-animal origin, for which there are quite separate rules; and irradiated food. More than a dozen other aspects are covered.
I will not go into detail because, to be honest, I am assuming that the Ministers have come with good will. I do not make any allegations against them today, but I shall want to know what they say about this before we look to what we do on Report. The Bill will be slightly different at the end of Report to what it is today.
UK deviation from our current UK-controlled law has to be out of the question if we are to maintain the competency and safety of food, and the multinational manufacture of food, because there is a lot of food still manufactured partly in this country, partly in Europe and partly back into this country. It has still got to be done. The export of food to the EU and non-EU nations is a very complex process. It is our largest manufacturing sector, so why would we be so stupid as to damage it? It needs constant checking, scrutiny and proportionate regulation and, as the noble Lord, Lord Krebs, touched upon, we need to keep organised crime out of the loop.
Our record in recent years has been good, but it was not always so. We gave the world BSE, and therefore the new variant CJD. Some 220 people died worldwide; 178 of those were in the UK and 28 in France. The last case in cattle was in 2021, and before that, in 2018. I remember I was at MAFF when we inherited this. The scientists told us the tail of BSE would be very, very long, and we have got a case here in 2021. New variant CJD is a terrible condition, and all patients die. The post-mortem instruments cannot be used again because they cannot be sterilised. That is what we were dealing with, and it is what we are still checking on today, to make sure the food is safe. It is crucial that the TSE regulation 999/2001 continues to operate because these are the BSE checks. Our meat exports were banned for more than a decade. Billions of pounds were lost in trade. I remember the day the ban was lifted because I had the privilege of helping to serve Northern Ireland beef to traders in Brussels—Northern Ireland got in quicker than the others and got the beef over there and cooked for traders.
Food safety is not a given.
“In the UK, five people every minute are made sick from eating contaminated food. There are more than 2.4 million foodborne disease related cases per year of which 15,500 receive hospital treatment and an estimated 160 deaths”,
which is equivalent to three a week. That is a quote from page 7 of Food You Can Trust: FSA Strategy 2022-2027, published last year. Last year was the first year that the Food Standards Agency and Food Standards Scotland published a large annual review of food standards across the UK, which was really a bonus. The reference documents, which are well worth reading, are HC229 or SG/2022/34, called Our Food 2021. Time permits only a couple of mentions of the key findings from both food standard agencies:
“The evidence set out in this report suggests that overall food safety standards have largely been maintained during 2021. However, this is a cautious conclusion. The pandemic disrupted regular inspections, sampling and audits across the food system … both organisations recognise there are significant risks ahead. The report highlights two particular areas of concern. Firstly there has been a fall in the level of local authority inspections”
of the more than half a million food businesses. Furthermore,
“progress is being constrained by resource and the availability of qualified professionals”
such as environmental health practitioners. In the Times on Monday, Jenni Russell mentioned that
“Local authorities had cut their sampling for food … by more than half”.
The second concern from the joint FSA-FSS report is
“in relation to the import of food from the EU. To enhance levels of assurance on higher-risk EU food like meat, dairy and eggs, and food and feed that has come to the UK via the EU, it is essential that improved controls are put in place to the timescale that the UK Government has set out (end 2023).”
We are not checking anything; we were supposed to be checking it to the end of last year, and the Government moved the deadline. We took the view, “Well, the EU has got really good systems; we don’t need to check what comes from them, so we can save money at the ports.” How arrogant can you be? It is a pity the noble Lord, Lord Frost, is not here, because this is the kind of thing I level at people that did the sort of job he did.
The report continues:
“The longer the UK operates without assurance from the exporting country that products meet the UK’s high food and feed safety standards, the less confident we”—
the two food standards agencies—
“can be that we can effectively identify … safety incidents.”
These two concerns need answers from Ministers about cutting the regulations.
I have two final points on this important report. Somewhere there is an amendment, although I cannot remember where, calling for this joint report, which is voluntary, to be put on a statutory basis. Regarding the impact of our EU exit on policy-making, the report said that because of the retained EU law policy
“in Great Britain, there have … been few immediate regulatory changes affecting food standards.”
Here is the key sentence:
“The focus across all four nations has been on maintaining continuity and providing clarity for businesses and consumers on processes and expectations.”
Clarity for businesses and consumers is what we need to maintain; if we do not, we are sunk.
It is reassuring that so far, the two bodies have seen
“no evidence of significant exploitation by criminals.”
But in 2021:
“There were 100 successful ‘disruptions’ of criminal activity within the food chain reported by the UK’s two food crime units”,
one covering the Food Standards Agency, and the other covering Food Standards Scotland. One hundred successful disruptions of criminal activity.
The status quo is not perfect, and any change has to be controlled and not be a surprise, but given the cuts to those that protect the system, we are vulnerable. The status quo is a bit of a worry. According to the document The UK’s Enforcement Gap, produced by Unchecked UK for the decade 2009-19, meat hygiene inspectors were cut by 53%, local authority food standards staff were cut by 60%, inspection of eggs was cut by 23%, UK food laboratories were cut from 17 to 9, and local authority food sampling was cut by 59%. We have an enforcement gap recognised by the National Audit Office, which in June 2019 said that local authorities were failing to meet their legal responsibilities to ensure that food business operators complied with the law.
Compared to the 1980s and the early 1990s, we have a large and sustained increase in confidence in food; there is no question about that. There were real problems in the 1980s and 1990s, and I experienced them: I was completely unprepared to be sent to MAFF in 1997. There was a serious problem regarding how to restore confidence in food, and gradually, over the years, through the Food Standards Agency—there is a separate one for Scotland, which it is quite entitled to have—there has been a big increase in confidence in food. Ministers have kept their sticky fingers away from the food safety levers of power, but according to this they are about to put them all over these regulations. That is clearly the implication.
So, we have had a big increase in confidence in food, and it is our biggest manufacturing industry. Why put that at risk by not accepting these amendments to remove food-related regulations from the Bill? It is simple, really. That is quite easy for Ministers to say. The Minister who is going to reply is probably more experienced than most. Having been a senior official in MAFF in the 1990s, she is fully aware of what I have said about BSE and the difficulties—oh, the noble Baroness is shaking her head; another Minister will reply. Well, the noble Baroness, Lady Neville-Rolfe, who replied to the previous group, is fully experienced in the situation with BSE. One half of MAFF was arguing with the other half. One half was protecting consumers; the other was pushing for producers. That was the dilemma, which is why today we have independent bodies such as the Food Standards Agency to deal with those two groups across the UK. It does not make sense for the Government to give the impression—because they have not said anything—that they are going to tear up and remove some of these protections or cut corners in the interests of production.
Baroness Young of Old Scone (Lab)
My Lords, it is a great privilege to follow my noble friend Lord Rooker. I really commend his sentiment of, “If it ain’t broke, don’t fix it”, although I probably disagree with the methodology he would use. The amendment in my name excludes the legislation governing pesticides from the sunset in Clause 1. These regulations are vital, as are the food standards regulations. They provide protection for biodiversity and human health, and they help to support the UK’s food safety and agricultural sustainability processes.
I say at the outset that I do not actually believe that a series of exemptions from the sunset clause fixes the Bill. It is a bonkers process to take an as yet unsized task and set an arbitrary, hard deadline before you know what the size of it is. That was the sort of thing I remember being taught in day one of management school never to do, but we seem to be at that point. The reality of the Bill is that it needs much more radical surgery, and pesticides are one of the examples I want to give of the sort of radical surgery it really needs.
I have tabled this amendment for three reasons. The first is to illustrate how important pesticides are. This is an area where protections are vital, and the Bill jeopardises those. Again, the pesticide issue is just one example of many that other noble Lords have given of the recklessness of the Bill, with its commitment, in my view, to feeding the out-of-control European Research Group, swivel-eyed end of the Conservative Party, irrespective of the impact on the public and environmental safety and to the exclusion of all other drivers. Secondly, pesticides are only one example out of the 1,781 pieces of legislation that Defra has to review before December. Thirdly, I want to touch briefly on how fundamentally rotten the Bill is, with its power grab in favour of the Executive and against Parliament and the interests of the people of this country.
Let me dwell briefly on the pesticides issue. Over the 10-year period from 2000, big strides were made, often significantly led by the UK in Europe, which brought into European law a suite of pesticides legislation that protected human health and biodiversity from harmful exposures to pesticides and ensured that horticultural and agricultural practices reduced their impact on people, animals and biodiversity.
They were vital protections. In the area of pesticides, virtually all our law is European law. The Bill would put all this at risk of being deliberately watered down or accidentally binned. The EU legislation was crafted with significant input from experts, including UK experts, and after wide consultation with organisations representing human and animal health and safety interests and environmental interests. We were in there. Following committee examinations in the European Parliament and parliamentary processes involving MEPs, the legislation was approved by the Council of Ministers, on which we had Ministers. Therefore, we cannot really say that these regulations have been produced by a process that we did not have much control over, because that sounds like scrutiny and political involvement to me. Defra has 1,781 of these to review before December, so in all likelihood that level of scrutiny, consultation and expert advice, to that depth, will be pretty impossible before then, bearing in mind the volume of these regulations.
Going back to the importance of pesticides, they are not called biocides for nothing. The clue is in the title. They are designed to kill life. They can be used safely only with specific safeguards. When I wrote this, I said that this risks Ministers tampering, without let or hindrance, but the “sticky fingers” analogy, from the noble Lord, Lord Rooker, is probably a good one. Secondary legislation is not enough to say that Ministers have got let or hindrance because we all know about the inadequacy of the statutory instrument process.
Additionally, the review process that is under way is a regressive one. Even if it were to find that there is a need for improvement, it cannot do that due to the requirement in the Bill to avoid increasing the regulatory burden. Whatever emerges from the review is almost certain to be limper than what existed before. Apart from workload issues, in terms of the review to meet the deadline, Ministers have not shown themselves to be terrifically trustworthy on pesticides when left to their own devices. Last year, the use of neonicotinoids was approved when all the member states of Europe had banned them—we had gone along with that ban many years ago—in a move which was against the advice of the new pesticides regulator, the Health and Safety Executive. At a time when we are all concerned about the reduction in pollinators that we rely on to secure our food and our biodiversity, Defra approves a biocide that kills bees in droves and has been banned since 2007 due to the impact on human health. Your Lordships can see why I am a little doubtful on trust.
This is also the Defra that in 2018 promised an action plan on pesticides. Five years to 2023 does not sound like a lot of action to me. We are still waiting for that action plan. There has been no plan for increasing the capacity here within the UK to replace that loss of expert EU bodies and the depth of their expert advice. The UK Expert Committee on Pesticides, based here, is purely advisory. Ministers make the final decision. That does not fill me with confidence that this review process will be well handled against huge workloads and a hard deadline. And if your Lordships think that Defra is up against it, try Northern Ireland, which has to go through the same process, with the same volume of legislation, with no Assembly in place, no Ministers in place, and no means of passing any of the secondary legislation. On the basis of the Northern Ireland discussions, this looks set to continue for weeks, if not months, to come. Northern Ireland also has the added attraction of standing with a leg on each of two circus horses, the UK and the EU, that are increasingly diverging in standards and policy.
It is highly likely that the changes to the pesticides and other regimes could break the law. There has already been reference to the EU-UK Trade and Cooperation Agreement, which we signed and which commits:
“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period”.
Diminishing the standards in pesticide protection in any way would break that agreement, in my view, but of course I have forgotten that this Government appear not to care too much about agreements with the EU.
Many noble Lords have said that businesses are not happy about the review process. Businesses constantly tell us—when I was chief executive of the Environment Agency, they told me at breakfast, lunch and dinner—that what they need from a regulator and from regulation is certainty, long lead times and consultation. This review process provides none of these.
I am sure that the Minister—I do love trying to get into the Minister’s head; it is the sort of thing that you do of a weekend—will say that he understands that Defra is already well-advanced with all these reviews. I understand that Defra has buckets; there is one big bucket for legislation that is going to be dumped as of December 2023. There is one small one, probably justifiably small, for regulations that will pass through unamended—if I can say this; I think that in terms of Defra this is a totally valid analogy—like shit off a shovel. But there is another big bucket, which is the bucket where the regulations for review sit. That is still a big bucket, despite many Defra regulations being shed. So the plea I would make to the Minister is that I think that this process—rather than the Bill, which I think is fatally flawed—would be hugely helped if Defra would show us its buckets. Show us your buckets. What is in each, and what is the process for the remaining reviews on those buckets where review is required? It might reassure us; it might not. But it will at least allow parliamentary discussion, public discussion, business discussion and expert discussion on whether the process is going well and how big a mountain we have to climb.
I make no apologies for banging on about pesticide safety, but it is only one example of the risks of this Bill. One down, only another 4,000 to go. I am not going to go into lyrical raptures denouncing the basic unconstitutional nature of the Bill, handing powers to Ministers to act without real let or hindrance, not just this year but until 2026 with the capacity to extend the sunset, and also for ever for that legion of direct EU law which will now be regarded as secondary legislation and therefore be amendable without any real ability of Parliament to make a difference.
I am not a remoaner; I am not against proper review of EU retained and direct law, but I just do not think that this Bill is the proper way to do it. I can see that the noble Lord, Lord Callanan, is smiling—I am definitely not a remoaner. As a very minimum, the Government should remove the sunset. If it was intended to spur on government departments and civil servants to bring out their EU legislation, it has had that effect. It is entirely risky to commit to an end date for a complex process of review, complicated by issues of devolution, particularly in Northern Ireland. The commitment to review all of the legislation at the same time to a very tight deadline breaks every management and good governance rule. The Government should be bringing lists of what legislation is in what bucket, for consultation by Parliament and to allow Parliament to debate these before any revocation or revision is then processed through a proper parliamentary process.
Clause 15, the regulatory burden clause, should be removed, to allow legitimate review to come forward with proper improvement, if necessary, that would allow debate here on whether that is undue regulatory burden. You could either say that that is an amended law or say, “Let’s go back to the drawing board and start again”. I do not mind particularly, but it means that we need to do something more radical than simply having exemptions from the sunset clause.
Baroness McIntosh of Pickering (Con)
My Lords, I thank the noble Lord, Lord Clement-Jones, for introducing this group of amendments. I particularly associate myself with the amendments in the name of the noble Lord, Lord Krebs, supported by the noble Lord, Lord Rooker, for the simple reason that having confidence in our food is essential to the food and farming sector.
I spent five years in the other place chairing the Environment, Food and Rural Affairs Committee and perhaps one of the most difficult inquiries we had was that into the horsemeat scenario. As the noble Lord, Lord Rooker, said in speaking to the amendments before us, Amendments 30, 39 and 146 in particular, it could so easily have been not just a fraud and a scare but another food scandal. Humans could have been infected. I suppose it was a blessing that it was just one type of meat being passed off for a much more expensive type of meat.
I pay tribute to the work the Government did at that time in setting up the independent inquiry led by Professor Chris Elliott and its work to review Britain’s food system. Amendment 30 goes to the heart of the matter. I am not entirely convinced that the food checks we agreed to in the TCA are in place. We were told they are going to be introduced and I have discussed this with the Food Standards Agency; they are meant to be introduced completely this year.
Also this year, we are introducing unitary government in North Yorkshire so are merging the two key departments that look at this—environmental health and another department, the name of which will come back to me. I think the noble Lord, Lord Rooker, was right about the few local authorities that are actually conducting tests into the safety of our food, and whether the food is what it says on the label and is not a fraud.
Amendment 39, while it perhaps does not cover every single scenario as the noble Lord, Lord Krebs, said, goes some way to expressing why it is vital that the European regulations provide the food safety and hygiene to which we have signed up.
In summing up this debate, I hope my noble friend puts our minds at rest as to what that procedure is going to be and gives us an assurance that the noble Lords, Lord Rooker and Lord Krebs, have sought in this small group of amendments that those tests, which have stood the test of time, will continue to be place.
One of the recommendations—I do not know if it was implemented—from the report that looked into the horsemeat fraud in 2013 was that major retailers, and I think my noble friend did work for Tesco for a time, should conduct their own tests on a mandatory basis, not just the voluntary basis as it apparently is at the moment. I hope my noble friend updates us on the Government’s thinking in that regard.
My preference would be that phytosanitary checks take place at our borders. That is what we signed up to, and the food industry hopes that the Government can show that imported food meets the same tests and is as safe to eat as domestic food produced under our very high standards. In addition to them, regular checks should obviously be conducted. I do not know whether my noble friend has an update in response to the figures given by the noble Lord, Lord Rooker, on how many local authorities are actually doing checks that we require of them at this time. Is my noble friend convinced that they have the manpower and funding resources to ensure that this remains a priority? With those few remarks I lend my support to, in particular, Amendments 30, 39 and 146.
Lord Hacking (Lab)
My Lords, I sat through the entirety of the Second Reading debate—I missed only one speaker—and I have sat through today’s Committee, just missing, alas, about five minutes at the beginning of the session after lunch. I have been in receipt, as I am sure most noble Lords have been, of very strong criticism from those outside the House. For example, I had a briefing from Prospect which is central to the matters of this Bill because it covers inspectors from the Health and Safety Executive. It describes this Bill as “reckless, unworkable and undemocratic”. Without reading the reports, there has been severe criticism from the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee.
This has sorrowed me. I am sorry for the Government and am particularly sorry for the two Ministers who have been to the Dispatch Box. Indeed, if there is a third Minister to go to the Dispatch Box—she nods her head—I am sure that I will have sympathy for her. Look at the number of interruptions that the noble Lord, Lord Callanan, received when he was at the Dispatch Box, and it was the same for the noble Baroness, Lady Neville-Rolfe. Look at the blasts that came from the noble Baroness, Lady Meacher, and the noble Lord, Lord Wilson. The Ministers are safe from that at the moment because those noble Lords are no longer in their places, but there are further days in Committee, and I am sure they will come back and that the same blasts will be sent again to our Ministers.
I am sorry for the Government because they have just made a very simple mistake. They have sought to deal with European law the wrong way round. The right way round, as will be advocated later by my noble friend Lord Whitty, is to retain it. This is what happened in the European Union (Withdrawal) Act: it retained all EU law so that, when provisions of certain EU laws need adjustment, then adjust them, change them, scrap them; do what you like with them. That is the right way round. I have already expressed my reasons for being sympathetic to the three Ministers who are sitting on the Government Front Bench.
The sensible thing, having produced a Bill that is simply the wrong way round, is for the Government to withdraw it in a dignified way. I am sure all your Lordships would welcome that and would not seek to affront the Government in their modesty when withdrawing the Bill. It has happened before in my experience. In 1995, the then Conservative Government produced an arbitration Bill, which happened to be in my area of expertise. It was shown to members of the arbitral community, who told the Government that they had got it all wrong and that it was an atrocious Bill. The Government politely withdrew it. Then, under the noble and learned Lord, Lord Saville, a new Bill was brought—not disposing of the Bill, just starting again. The noble and learned Lord produced a report and a draft Bill that was perfect, and the Arbitration Act 1996 has been in operation ever since, to the great benefit of the arbitral community, which is now a very big community.
That is the simple thing to do. If the Government simply and politely withdraw the Bill, we will politely applaud them.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Lord, Lord Hacking, and I entirely agree with his conclusion, even if I might have expressed it in slightly stronger terms. I rise to make the first Green group contribution to Committee. I will speak particularly to Amendment 38 in the names of the noble Lords, Lord Rooker and Lord Krebs, to which I have attached my name, although all the amendments in this group are closely related to food and farming, so to a large extent I will cover all of them. I apologise to the noble Lord, Lord Fox, and others who signed Amendment 2: I also signed it, but unfortunately other business in the House forced me into the other Chamber.
It is interesting to draw parallels between the first two groups, which covered employment law and employment rights, and this group. When we were talking about employment rights, the noble Baroness, Lady O’Grady, along with many others, focused on their having been achieved over decades as a result of public campaigning and effort. We often talk about democracy as meaning things that happen here in this Chamber, and in elections and votes, but democracy at its heart is people campaigning. That is how we have delivered many employment rights and food protection rights, including in respect of pesticides, as the noble Baroness, Lady Young of Old Scone, clearly described. Those protections were not arrived at by people sitting in a chamber; they have come through huge outside campaigns.
Like the noble Lord, Lord Hacking, I have listened to nearly all the debate thus far. We heard, particularly in the early stages, the Minister say, “Trust the intentions of this Government”. I have to contrast that with what we have just heard from the noble Baroness, Lady Neville-Rolfe, who talked about departments thinking boldly and unnecessary regulatory burdens being removed. If that is the message being sent to departments, that would seem to indicate the Government’s intentions. Those intentions have been mentioned by all sides of your Lordships’ House, notably, and with horror, by Cross-Benchers. They cannot be accused of playing party politics and thinking about elections; they are simply horrified by the undemocratic—a word that has been used many times—and reckless, as the noble Baroness, Lady Young, said, approach of this Bill.
The reason I chose to sign Amendment 38, when I could have signed any amendment in this group covering toy, cosmetic and food safety, is the issue of farm antibiotic use, which nobody has focused on yet. There is an interesting parallel to be drawn between antibiotic use and, as many people have referred to, the fact that financial controls have explicitly been excluded from the Bill because “This is all being dealt with elsewhere until we start going forward.” We are now coming towards the end of a crucial—and, I will acknowledge, the Government’s world-leading—antibiotics strategy, which is now going to be reviewed. So, why not exclude antibiotics, if nothing else? If we are looking to exclude the financial sector, why not exclude antibiotics, given that a review process is built into the system that is going to look at antibiotics?
Lord Hannay of Chiswick (CB)
My Lords, I want to pick up on the amendments of the noble Lord, Lord Rooker, and, particularly, my noble friend Lord Krebs, which I support.
The debate so far seems to have illustrated two points which have perhaps not come out fully in Committee so far. One is how much better it would have been had the Government taken a sectoral approach and legislated sector by sector. This is shown by the reference made recently in the debate to the Financial Services Bill going through this House now. That Bill replaces a large amount of European legislation, and it is going through without any problem at all because the Government have taken a careful, considered approach, have consulted all the interests concerned and have come forward with proposals which, broadly, are going to get the approval of both Houses. That sectoral approach would, frankly, work infinitely better than the across-the-board approach being applied now, and to which these amendments seek to make exceptions.
The second area on which our debate on these amendments has thrown a lot of light, and on which the government contributions so far to these debates have not thrown much light, is the potential implications for the trade and co-operation agreement with the European Union. These are extremely far-reaching, as has been made clear by various noble Lords, including my noble friend Lord Krebs. If we diverge substantially from the legislation that we and the European Union had when we signed the trade and co-operation agreement, there will be trouble. There will be negative implications for our trade with the European Union. Trade in the food and agricultural areas which a lot of these amendments are talking about has been one in which Britain’s exports have been rising steadily for 45 years, since we joined the European Union. They could be hampered.
They have already been hampered by the Government’s refusal to sign an SPS agreement with the European Union, which we could do perfectly easily and which would remove quite a lot of the problems and suffering under the Northern Ireland protocol. An SPS agreement would remove the additional bureaucracy and the problems that there have been with our exports, but that would be before there is any divergence at all, because we still have the same legislation as they have on the other side of the channel. However, because we are not prepared to test things either coming in or going out, or to have an agreement which says that we do not need to, our trade has already been damaged quite a bit. That is nothing compared to what will happen if the Government decide to diverge sharply from the legislation that we currently have and are seeking to abolish.
When the Minister replies to the debate, it would be good if she could say what consideration the Government have given to and what impact assessments they have made on the potential for damage to our trade under the trade and co-operation agreement if the European Union should consider that we are diverging to an extent which invalidates what we signed in 2020.
Lord Inglewood (Non-Afl)
My Lords, when I came into this debate, I did not anticipate saying anything, but I wear two hats—one as a farmer and one as a lawyer. I will not put my lawyer’s hat on. I would like to comment on the remarks, which were entirely to the point, of the noble Lords, Lord Rooker and Lord Hannay.
I have been actively involved, in one way or another, in agricultural businesses since the 1970s. I remember the damage, which the noble Lord, Lord Rooker, described, to my livestock business—as an aside, it was subsequently destroyed in the hecatomb of foot and mouth. It goes to the bottom line of farmers’ businesses. As is well known, farmers are under the financial cosh because of all the changes being brought about on environmental payments and support systems, which are really hitting their incomes.
We are told by the Government that one of the desirable consequences of Brexit will be that British agriculture will be able to find markets elsewhere around the globe. In order to do that, there are two essentials. First, the other parties to these transactions must have long-term confidence in the quality and character of the product coming from this country. Secondly, they need to be sure that whatever rules are in place will remain, because these businesses depend on long-term supply agreements. The uncertainty hanging over the agricultural industry as a result of—if I may put it this way—clever-clever intellectual games by politicians and lawyers will damage their business. That is very unfair, not only for its own sake but because it will have a particular effect on those whose businesses are already being damaged by current government policies.
Lord Fox (LD)
My Lords, this has been a very long debate and I think there have been a lot of excellent speeches across the Committee. I was struck by the noble Lord, Lord Hacking, displaying his underlying humanity in expressing concern for the welfare of the Government Front Bench. I was also worried about which of them will receive the Defra buckets; I am hopeful that they will not receive the shovel of the noble Baroness, Lady Young, at the same time.
I shall speak to Amendment 25, which is in my name, and more generally on the issue of safety in the workplace, which is a subject we have yet to discuss today. The noble Lord, Lord Inglewood, talked about harm to business; this is about harm to people at work. My background for more than 30 years was in manufacturing industries, where the potential for harm to employees is very high and the role of employers and regulation in their supply chain is a very important part of making sure that nobody who goes to work comes home damaged that evening, because nobody should be harmed by the work they do.
Amendment 25 deals with asbestos and its safe handling. It would exclude the Control of Asbestos Regulations 2012 from the sunset clause. The regulations create the framework for the management of asbestos. These regulations form the framework for the management of asbestos, with provision ranging from building owners to those removing it or analysing samples which may contain asbestos fibres. Asbestos is a very serious issue in this country. Asbestos is the single greatest cause of work-related deaths in the UK. Asbestos-related diseases currently kill around 5,000 people a year in Great Britain. This is a really important regulation.
First, we should note that the British Occupational Hygiene Society, a leading scientific body in this field and the chartered society for worker health protection, has welcomed the findings of a review by the Health and Safety Executive of the current Control of Asbestos Regulations. The Health and Safety Executive’s review findings highlighted that the regulations were broadly effective and should be retained. In essence, they seem to do the job, although it of course suggested refinements to improve them. However, those bodies have raised the alarm—I am sure your Lordships will not be surprised—that these regulations get thrown into the mix by the Bill. What will happen at the end of this year? Will they be retained, modified or revoked? We need to understand the future of this really important piece of legislation.
Of course, other major regulations protecting health in the workplace are also in danger of falling off the statute book. In 2021-22, 123 workers were killed in work-related accidents, many others received life-changing accidents and many thousands died from work-related ill-health. Lots more needs to be done to ensure that working people, their families and their friends do not suffer the pain and bereavement that workplace accidents can cause.
Can the Government explain why they are proposing that these laws should be put in doubt? That is what this Bill does, in the same way that it does to all the other 4,700 regulations: it puts them into play. For any of these to be moved back, forgotten or revoked will push the country back decades; that is what the automatic expiry of these laws could create.
I am taking the Minister’s advice to make sure that we put on record the laws we are concerned about. I was not going to mention them, but I need to make sure that everybody knows we care about them because, as we know, this is the only forum we may get to talk about them. I shall talk about the so-called “six pack” of laws that forms the core of the country’s workplace safety regime—it was mentioned en passant by the noble Lord, Lord Hendy, when he spoke to the first group. For reference, the “six pack” are: the Management of Health and Safety at Work Regulations, the Manual Handling Operations Regulations, the display screen equipment regulations, the Workplace (Health, Safety, and Welfare) Regulations, the Provision and Use of Work Equipment Regulations and the Personal Protective Equipment at Work Regulations. All of them form the centrepiece of how businesses are regulated on safety.
The best businesses operate above the law; that is how you improve safety. From my own experience of working within these businesses, I know that safety awareness goes beyond these regulations. But this is a minimum standard: it is, almost literally, a safety net, and it has to be retained. There are no grounds for calling into question these laws going forward. As the British Occupational Hygiene Society chief executive, Kevin Bampton, puts it:
“Asbestos, noise, radiation, gas safety and indeed the whole mechanism for management of health in the workplace are listed as retained EU law to be repealed, restated or amended. Most of these standards have been pioneered in the UK. The UK fought the European Commission over decades to retain its unique and effective approach to Health and Safety Management and the REUL Bill is likely to throw this all away”.
That is why I proposed this amendment and why I want to bring workers’ safety to the fore.
Baroness Chapman of Darlington (Lab)
My Lords, I am starting to wish we had degrouped this debate, because there were so many issues that, really, it was two or three debates rolled into one. It would maybe have been a good idea to spend a bit more time on some of the things that were raised. I say that even though we will probably spend the best part of two hours on this group—but I still think that we have skirted over some of the things that we might have wanted to delve into had this been a more sensible process.
We looked at toy safety. I remind noble Lords of where we started this group: the noble Lord, Lord Clement-Jones, spoke to a really good amendment from the noble Lord, Lord Fox, raising some important issues. I was a child in the 1970s, when nothing ever came with a plug attached or anything like that. Now, I do not have to worry about my children: they can have whatever toys they want and put them in their mouths or ears or whatever they want to do, and no one needs to worry too much.
As the noble Lord, Lord Rooker, said with regard to food, the improvement applies across the board, and successive Governments can be quite proud of it. A Tory Government do not come in and say, “We’re going to delete everything that was passed by our predecessor Labour Government because of where it came from”, but that is exactly what we are doing here. We are placing in question sensible measures that I have not heard anybody disagree with—I do not think the Ministers disagree with any of this—so I do not understand quite why we have to leave this question mark over these things.
The General Product Safety Regulations, which we have talked about, are really important. These are things that most consumers just take for granted, and so they should. That is where we would like to keep the situation, but concern is now being raised. Consumer organisations such as Which? and others are starting to say, “Hold on a minute, there’s a potential problem here.” Ministers will say, “This is just scaremongering—it’s causing anxiety where there’s no need for it”, but the Government are declining to take the steps needed to remove that anxiety in a very straightforward way, which they could do if they are right about that and should they wish to do so. I still very much encourage them to take that route.
The issues raised about the level playing field are incredibly important. We are expecting the poor generalist lawyers who draft these SIs to be experts not just in product safety, food manufacturing or asbestos, which are really important issues, but in international trade. They have to understand the TCA, the agreements that we have with Australia, the CPTPP, and how it will all work together if we diverge. We could end up diverging without realising that we have done so, until a court somewhere else decides to ask us about it. This just has disaster written all over it, and for what, if the Government are saying that they do not really want to change anything?
The Food Standards Scotland letter that I think everyone has had is really revealing. It makes some very good points, but the sentence that jumps out is where it says that Food Standards Scotland was invited to give evidence on this Bill that we are looking at. The Scottish Parliament is not looking at the Bill—we are—but Food Standards Scotland was invited to give evidence in the Scottish Parliament about it. When do food standards people get to come here and tell us what they think? We are the people debating the Bill. Where is the engagement and the opportunity for organisations to come in and allow us to benefit?
The noble Baroness, Lady Young, said that what people really want from these types of regulations is certainty, long lead times and consultation, but they have not had any of that from this process. The Minister is meant to be business-friendly and to understand what businesses want. I do not know what has happened to him here, because I have done Bills with him before when he was much more in tune with what business is saying. I am not seeing any of that today, which is a real shame.
Rather than go through all the amendments one by one and say what I think—I support all of them; they have all been very thoughtfully put together and spoken to—maybe we could make life very easy for the Minister. Perhaps she could answer on just one issue: asbestos. That is probably the least controversial thing that I could have picked. Will the Government revoke, retain or amend the regulations around asbestos?
Baroness Bloomfield of Hinton Waldrist (Con)
I will come to that.
I thank noble Lords for their amendments relating to product, food, environmental and consumer protections and safety. While we all commend the sentiment, the Government believe that it is simply not necessary or appropriate to introduce individual carve-outs for specific regulations or policies in the Bill.
I turn first to Amendment 5 in the name of the noble Lord, Lord Fox, which was so ably introduced by the noble Lord, Lord Clement-Jones. I reassure them that the Government remain committed to protecting consumers from unsafe products being placed on the market now and in the future—and this of course includes toys. Our current product safety framework is largely a mix of retained EU law, domestic law and industry standards; as a result, it can be complex and difficult to understand. While the Bill is unlikely to give us the powers needed to implement a new framework, we hope that the powers in it will make it possible to amend or to remove outdated EU-derived regulations and to give us the ability to make some changes to reduce burdens for business.
The Government are finalising for publication a consultation into product safety this year. We will use available legislative powers, including those in the Bill, to take the necessary steps ahead of the sunset date to ensure that we uphold this commitment to consumer protection. This will take account of modern-day hazards and risks, the challenges posed by new supply chains, such as the growth of online marketplaces, new technology and supporting innovation, and net-zero ambitions.
I turn to Amendment 25 tabled by the noble Lord, Lord Fox, relating to the control of asbestos regulations—
Lord Harris of Haringey (Lab)
I am sorry to interrupt the Minister just as she is getting into her flow, but she seems to be moving on to the next amendment. Before doing so, can she tell us whether that consultation, which presumably would allow adequate time for all the relevant bodies to feed into it before the sunset time arises, will actually give us a clear list of what is in, what is out and what is being changed? Will it be there? If so, why can we not have it now?
Baroness Bloomfield of Hinton Waldrist (Con)
I am told by my noble friend, Lord Callanan, that it will include all the appropriate information necessary for a full consultation. I cannot commit to saying whether it will have the full list of all the regulations; it depends on what stage it is at. We will launch it soon, and that will inform noble Lords more about the intention of the Government on product safety.
Amendment 25 tabled by the noble Lord, Lord Fox—
Baroness Crawley (Lab)
I am grateful to the Minister for giving way. I understand, from trading standards, that the government product safety review was due last spring and then expected at the end of 2022, but it has not been published. Do we have a date for it to be published yet?
Baroness Bloomfield of Hinton Waldrist (Con)
I am afraid that I will have to write to the noble Baroness on that; we do not have an answer at this stage. The consultation is a new initiative and will be launched soon.
Amendment 25 tabled by the noble Lord, Lord Fox, relates to the control of asbestos regulations. The noble Lord has provided a good example of an area where we regained the ability to regulate autonomously upon leaving the EU. Both the post-implementation review 2022 and the Work and Pensions Select Committee evidence suggest that further clarity around the categorisation of asbestos works, particularly regarding non-notifiable licenced work, would be beneficial, and the Health and Safety Executive has committed to considering how this could be developed further. HSE will undertake research and engage with stakeholders to consider an evidence base for the introduction of mandatory accreditation for asbestos surveyors. If this is taken forward, it will be as a result of a change to the CAR. Indeed—
Lord Fox (LD)
How does the Bill make that happen, when Clause 15 does not allow an increase in regulatory burden? The Bill does not facilitate what was just stated at the Dispatch Box: it cannot happen as a result of the Bill; indeed, the Bill stops it from happening.
Baroness Bloomfield of Hinton Waldrist (Con)
I did not suggest that it was happening as a result of the Bill; it is happening anyway, and that will inform our decisions on further regulations.
Baroness Chapman of Darlington (Lab)
Minister, this is all news to us. Where will the detail be found on this? Why is a Minister suddenly popping up and saying these things now? The Bill specifically prevents the kind of work she is talking about, because it relates to retained EU law, and retained EU law will be dealt with this way.
We cannot have anything in the Bill which could be interpreted as an additional burden. A burden, as defined by the Bill, includes,
“a sanction (criminal or otherwise) which affects the carrying on of any lawful activity”.
Baroness Bloomfield of Hinton Waldrist (Con)
I do not believe it is a big reveal. It just underscores the sort of work that the Government are undertaking in parallel to inform better their decisions about whether to repeal or revoke EU law. The noble Baroness talks about undue burden. We are talking about the totality of burden on a particular sector. This may well reduce burdens by making more relevant legislation to control asbestos.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, surely the point is that these crucial protections on asbestos could in principle fall off the statute book. They could be lost at the end of this year, whether by accident or design. I want to be clear: this is critical. According to the HSE, asbestos is the single biggest cause of work-related deaths in the UK. Asbestos-related diseases kill 4,500 people every year in England, Scotland and Wales. There are hundreds of buildings where asbestos is still present. As the TUC survey and no doubt many others have shown, this is a critical issue for working people. Frankly, whether or not there is a consultation going on in some other area is neither here nor there. We want to know what will happen to those EU-derived protections now. We want to hear it.
Baroness Bloomfield of Hinton Waldrist (Con)
There is no question of going back on the protections that the existing EU law provides. As you have heard me say, the Health and Safety Executive believes that we can develop this further, and this review is intending to provide more information. I would have thought that would have been of some comfort to noble Lords. I shall continue and try to make progress.
The Health and Safety Executive will undertake research and engage with stakeholders to consider an evidence-based introduction of mandatory accreditation for asbestos surveyors. Indeed, the Health and Safety Executive will use the introduction of this Bill as an opportunity to ensure that our regulatory framework in relation to asbestos continues to operate effectively. This will include considering the current categorisation of asbestos removal work.
Baroness Chapman of Darlington (Lab)
I am sorry, but the Minister just said that the Health and Safety Executive is going to use the introduction of this Bill to conduct a review. This Bill specifically prevents the Health and Safety Executive from what some of us would conclude is improving safety at work, because it talks about not increasing the regulatory burden. How that is defined or interpreted is critical. There is an attempt to define it in the Bill, but it is inadequate. We need some kind of schedule or some explanation from the Government, specifically about asbestos—because this is what we are talking about now—so that we understand what we are being asked to agree to.
Baroness Bloomfield of Hinton Waldrist (Con)
I understand the point the noble Baroness is making. We are not talking about increasing the totality of the regulatory burden. We are talking about making it fitter for UK purposes, which is what the Health and Safety Executive is seeking to undertake.
Lord Kerr of Kinlochard (CB)
I am very interested in what the Minister is saying. This asbestos review sounds like good news. However, given what she has said, there seems now to be an overwhelming case for a government amendment similar to Amendment 45, which takes financial services business out. If the asbestos issue is being explored with a view to improving the existing regulation, it cannot be done under this Bill because this Bill does not allow for improvements—well, it depends how you read Amendment 45 and how you read the Bill. For the asbestos review, which is good news in my view, surely it needs to be exempted from the provisions of this Bill by adding an amendment like Amendment 45.
Baroness Bloomfield of Hinton Waldrist (Con)
We just do not believe that that is the case.
Baroness Bennett of Manor Castle (GP)
I just want to make what I think is an important point here. The Government are talking about the totality of regulations and saying that it does not stop the asbestos regulations becoming stronger. If the total has to be less, what are we going to lose in the protections so that we do not have a higher total? An addition has to mean a subtraction.
Baroness Chapman of Darlington (Lab)
Before the Minister responds—I may be taking advantage here—the Health and Safety Executive is an agency that is able to impose sanctions. However, under this Bill, under whose auspices the Health and Safety Executive will be conducting its review, as the Minister describes it, it will not be able to impose or suggest anything that could be a financial cost, an administrative “inconvenience”, an obstacle to trade and innovation or a sanction. The Minister is chuntering from a sedentary position about totality but the Bill does not say anything about totality. That is their interpretation; it may well not be a court’s interpretation. We need some more information from the Government on this issue.
Baroness Bloomfield of Hinton Waldrist (Con)
I am afraid that the Government’s position is that we simply do not accept that interpretation of the totality. Of the 4,000 pieces of retained EU law, we will be repealing a number of things. We are talking about not increasing the totality of the regulatory burden because some of that will be falling away and may just simply not be appropriate, not just on asbestos but on many other fronts as well.
Lord Fox (LD)
My Lords, I think that we have just introduced a whole other confusion. Clause 15 talks about not increasing the regulatory burden. Is the Minister now proposing that it is the total across all 4,700, which is what she just said? She has an opportunity to correct that and explain what not increasing the regulatory burden really means.
Baroness Bloomfield of Hinton Waldrist (Con)
I think the best thing I can do is commit to giving the noble Lord a definition of “regulatory burden” in writing in due course.
Baroness Young of Old Scone (Lab)
When the Minister writes, can she also give us an indication of how that definition has already been shared with government departments, which are busy reviewing their legislation? They are presumably using some sort of metric—do we weigh the buckets by the pound? Is it the impact on business or is it the public good that is delivered? The Treasury has argued for years about the methodology for judging the benefit—or otherwise—of legislation. I would be interested to know what sort of guidance has been given to government departments.
Baroness Bloomfield of Hinton Waldrist (Con)
We will give as much further clarification as we can.
Lord Krebs (CB)
I am sorry to interrupt the Minister yet again but I was pleased to hear that she has agreed to write to the noble Lord, Lord Fox, to clarify this question, which was asked by the noble Baroness, Lady Chapman of Darlington. Can the Minister include in that letter a couple of worked examples to fix this in our minds? When it is all very abstract—increase a bit here, subtract a bit there—what is the common currency? How do you combine the four or five different criteria for burden into a single unit? I am a scientist so I like to be able to measure things. If she could just give us a couple of worked examples in her letter, that would be great.
Lord Harris of Haringey (Lab)
My Lords, while the Minister is considering her response to that, may I say that the noble Lord, Lord Krebs, has just made an extremely important point? It strikes me that, when you are defining regulatory burden, you need to decide whether the regulatory burden on, for example, one very small group of businesses ranks the same as something that affects every workplace in the country. The calculation becomes vital if the Government are now saying, as seems to be the case, that the regulatory burden has to be looked at in the totality of all these regulations.
Baroness Bloomfield of Hinton Waldrist (Con)
I can commit to reflecting on what other information we can give in respect of the regulatory burden.
To make further progress—no, maybe not.
Baroness Bennett of Manor Castle (GP)
Sorry, I have one very short point. One of the examples that has often been given as irrelevant is the export of Sicilian lemons—they seem to come up quite often. Surely something that is irrelevant should not be counted as any kind of change; it should just be put aside?
Baroness Bloomfield of Hinton Waldrist (Con)
I take the noble Baroness’s point.
I turn now to Amendment 16, tabled by the noble Lord, Lord Clement-Jones. The General Product Safety Regulations 2005 specify a general safety requirement that products placed on the market or supplied by producers and distributors must be safe. As with the previous amendment, I can reassure noble Lords that the Government are committed to protecting consumers from unsafe products, and we will take the necessary steps ahead of the sunset date to ensure that we uphold this commitment.
Turning to Amendment 18, this sentiment also extends to this amendment, protecting consumers from unsafe cosmetic products. We will continue to ensure that cosmetics placed on the market now, and in the future, meet the requirements of the regulations which safeguard public health and enable a fully competitive market.
Amendment 19 would exempt the Consumer Protection from Unfair Trading Regulations 2008, known as the CPRs, from the sunset. The UK has always had high standards of consumer protection and will continue to. This Bill will not change the Government’s commitment to uphold these high standards. The Department of Business and Trade will confirm the plans for consumer protection shortly and will be introducing the Digital Markets, Competition and Consumer Bill as soon as parliamentary time allows.
I turn now to Amendment 20 and the General Food Regulations 2004. In reviewing retained EU law, the Government’s aim is to ensure that food law is fit for purpose and that the UK regulatory framework is appropriate and tailored to the needs of UK consumers and business. The General Food Regulations 2004 prohibit the placing of unsafe food on the market and giving misleading information to consumers, and places obligations on food businesses to ensure the traceability of foods. This Bill will not alter our commitment to maintaining our world-leading food safety and standards.
Regarding Amendment 22, tabled by the noble Baroness, Lady Young, I can reassure the noble Baroness and other noble Lords that my noble friend Lord Benyon will be answering the debate that relates to environment matters on Tuesday, and will perhaps then be able to provide further insights into the interaction of the various Bills mentioned by the noble Baroness. Let me assure her that the United Kingdom upholds strict food safety, health and environmental standards. Our first priority regarding pesticides is to ensure that they will not harm people or pose unacceptable risks to the environment.
His Majesty’s Government has an excellent record on the environment, enshrined in law in our landmark Environment Act. Any decision on preserving, repealing or amending retained EU law will not come at the expense of these high standards, and we are working to publish an updated UK national action plan for the sustainable use of pesticides.
The overall ban on the use of neonicotinoid pesticides remains in place. We continue to work with a wide range of organisations and partners to ensure the best possible outcome for people and our environment. Any decision on preserving, repealing or amending REUL will not come at the expense of these high standards, and additionally we are working to publish the updated UK national action plan for the sustainable use of pesticides in the first half of this year.
Amendment 30, tabled by the noble Lord, Lord Krebs, seeks to exempt REUL relating to food safety, plant and animal health, which is in the scope of a specified section of the TCA from the sunset. Let me remind the Committee that the UK is a world leader in environmental protection, animal welfare and food safety. His Majesty’s Government have an excellent record on the environment; the Food Safety Act is in primary legislation and is therefore exempt from the sunset legislation. Defra is in the process of analysing its retained EU law, and determining what should be preserved, repealed or amended. Let me assure noble Lords that any decision on REUL reform will not come at the expense of our high standards.
The Government are also committed to upholding our international environmental and food obligations, including those under the trade and co-operation agreement with the EU, and I hope that provides the noble Lord, Lord Krebs, with some reassurance.
Baroness Chapman of Darlington (Lab)
In that case, could the Minister confirm that BSE monitoring will be retained as it is?
Baroness Bloomfield of Hinton Waldrist (Con)
That is a question for Defra; I cannot confirm or deny any particular regulations that will be looked at. As the noble Baroness will understand, these things are a matter for Defra.
Lord Rooker (Lab)
Defra is the producer’s department; who is looking after the consumers? That was part of the problem: Defra will look after the producers and will be lobbied by the producers; where is the role for the consumers? Section 1 of the Food Standards Act 1999 says that the Food Standards Agency’s role is to put consumers’ interests above all else in relation to the consumption of food. So what is the role of the FSA? I declare an interest—because I do not trust Ministers—that I have had no discussions with the FSA about this Bill; everything I have used is public, open-source information. I want to know what the FSA’s role is, because Defra is for the producers; who is going to look after the consumers?
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Lord, as a prior chairman of the FSA, will know that the FSA is a part of Defra and represents food standards.
Lord Rooker (Lab)
I beg your pardon. If the Minister is not aware, the FSA is a non-ministerial department, which answers to Parliament through the Department of Health, not through Defra. That is the whole point: to keep the producer away from the consumer’s interests.
Baroness Bloomfield of Hinton Waldrist (Con)
My apologies to the whole Committee for making that obvious mistake. There has been a write-round to all departments on this Bill. The repeal of EU law is being considered by each department in the write-round, and our commitment to not reducing consumer protection remains in place.
Lord Harris of Haringey (Lab)
I feel sorry for the Minister, because I do not doubt her personal commitment to maintaining these high standards. The problem is that the Bill does not give us that assurance and nothing that the Government have published, other than those high, fine words, gives us that assurance. That is why my noble friend Lady Young asked for the three buckets to be published, because that would then enable us to see that the Minister’s words are being reflected in action. It would make her life easier, and that of all her colleagues on the Front Bench, if they simply made it clear what was expected to be retained. The only reason we are in this mess is because the Government have decided to do all this the wrong way round, instead of simply working through regulations as they came up which may or may not need changing.
Baroness Bloomfield of Hinton Waldrist (Con)
I thank the noble Lord for his intervention. Of course it would make all our lives easier, and they will be published in due course. I am not going to go further than that.
Lord Fox (LD)
This is new information. I have yet to hear from the Dispatch Box that this list will be published. I am delighted, but it would be very helpful if the noble Baroness could tell us when the list will be published.
Baroness Bloomfield of Hinton Waldrist (Con)
As the noble Lord will appreciate, it will be published when the work is complete. The work is ongoing within all departments—the noble Baroness looks shocked.
Baroness Brinton (LD)
I come back to the question I asked in the previous group: at what point does the dashboard—this list—get frozen? What happens if it is frozen in the middle of December? This is just impossible. If there is going to be a list and work published, as things emerge and more regulations are added to the list—which I completely understand; I think we would rather see them added to it—we need to understand how it fits in with the impact assessments and with consultation.
Baroness Bloomfield of Hinton Waldrist (Con)
In terms of the dashboard, the vast majority of the work is already done, but there will be bits that will be added or found, most of which will be from old legislation. Most of the relevant work has already been done, but it is still subject to review.
Baroness Young of Old Scone (Lab)
It is good to hear that the dashboard is nearly finished; it has been interesting watching it emerge. Your Lordships will be glad to hear that I have read every single environmental provision in the original documentation that is on that list.
I wonder if the Minister could tell us about what happens when the buckets are published—not the list but the buckets we are sorting into. I do not know if your Lordships have ever watched that telly programme, “Snog Marry Avoid?”—that shows how intellectual I am on a Friday night—but I kind of typify the buckets like that. The “avoid” one is for the ones that we are going to get rid of because nobody really wants them; the “marry” one is for the ones that we all think are wonderful and we are going to just give a straight run through; and the “snog” one is for the ones that we have to spend a bit of time on to find out whether they are really up to it or not. The quicker we can get the buckets published, the better. Will the buckets come out early enough for this Parliament to play a proper role in coming to some conclusions and helping the Government decide whether they have everything in the right bucket? There might be a little desirable treasure tucked away at the bottom of one of the wrong buckets that we all cherish.
Lord Fox (LD)
I am sorry to keep labouring this point, but the Minister keeps introducing new information. In referring to the dashboard, the Minister implied that the dashboard is the list. Nowhere in this legislation is the dashboard referred to. What is the legal status of the dashboard with respect to the sunset?
Baroness Bloomfield of Hinton Waldrist (Con)
The dashboard has all the retained EU law which is subject to the provisions of the Bill; it is a working document.
Baroness Randerson (LD)
I cannot resist, I am afraid, intervening on this. I was in a Common Frameworks Scrutiny Committee meeting this week when it was indicated that the dashboard was just a tool and, as far as I understood it, did not have a legal status. While I am on my feet, can I ask where and in which bucket the legislation passed by the devolved Administrations is—which are, I believe, at a very much earlier stage in identifying the numbers for the dashboard?
Baroness Bloomfield of Hinton Waldrist (Con)
I know that this is of concern to a number of Members in the Committee, but officials from the UK Government are working very closely with those from the devolved Governments in order to identify the REULs that cross over devolved competences. I know that there is a general concern within the devolved Governments that they simply do not have the manpower to look at all these EU laws themselves, so we are helping them in that process. That is an ongoing job of work being done from official to official.
Lord Whitty (Lab)
My Lords, the Minister has rather changed the rules on this. If the dashboard is almost complete and there is an intention to put something next to every thing on the dashboard—perhaps not using my noble friend Lady Young’s terminology but a slightly more bureaucratic one—we need to have that list before we move to any further stage of the Bill, otherwise we do not know what we are talking about. The noble Baroness has explained in relation to asbestos, rightly and thankfully, that those regulations will not be sunsetted. What happens to the other 4,700 regulations? We do not know. We need that list before we take any definitive decisions on the Bill. I hope that government Ministers and the business managers will go away and recognise that, and that we will not move until we know a lot more about where we are going.
Baroness Bloomfield of Hinton Waldrist (Con)
The dashboard is ongoing work. It does not put things into buckets, but just includes all the EU laws that are subject to review. That will be published but it will certainly not have the buckets that I think the noble Baroness, Lady Young, is asking for.
Lord Fox (LD)
There is an outstanding point here. How is the dashboard connected to the Bill? There is no legal connection between the two, so how will the Government connect them? Currently, there is nothing that joins the dashboard to this law.
Baroness Bloomfield of Hinton Waldrist (Con)
I do not accept the noble Lord’s point. The dashboard is just a list of retained EU law that will be subject to the provisions of the Bill but will not be part of the Bill.
Baroness Brinton (LD)
I apologise to the Committee for continuing this point, but the Government have said repeatedly that they do not want to increase the regulatory burden. We have had the debate about what that means, but if we are not going to increase it and the dashboard is part of the tally of what that burden is, how does it get connected back in?
Baroness Bloomfield of Hinton Waldrist (Con)
The dashboard does not have any legal status. It is simply a list of the job of work that all the departments will have to do, reviewing each bit of retained EU law to work out which bucket it will fall into. These are legitimate conversations to have in Committee, so we can go on debating this. I know that your Lordships feel sorry for me up here, but I have two Ministers behind me and the Leader of the House. If there is something that I cannot answer directly—
Lord Collins of Highbury (Lab)
When we started discussion in Committee this afternoon, the issue was it will either be retained or amended or it will simply drop off, and the drop-off bit is in the Bill. That is the connection and that is why this is so important.
We have just heard that the Minister will write to us about asbestos, because there will be a review and it might increase the regulatory burden. She says that it will not increase it because it will be considered as part of a totality, so then we have all the regulations that will be part of it. I know that I have been here only for 10 years, but I have never experienced anything like this. We have a major piece of legislation, we are trying to probe things in Committee to find out what it means, and we are simply not getting answers.
Baroness Bloomfield of Hinton Waldrist (Con)
I have a qualification about the dashboard. The retained EU law dashboard showcases which departments, policy areas and sectors of the economy are most saturated by retained EU law. It will be updated quarterly to document the Government’s progress in amending, repealing or replacing retained EU law that is not right for the UK. It is right that the public are able view where retained EU law sits on the statute book and therefore hold the Government to account. I think that answers—
Baroness Bloomfield of Hinton Waldrist (Con)
It will be a published document.
Baroness Chapman of Darlington (Lab)
I am trying to get this clear in my head. We are not saying buckets, and I am trying not to say “snog, marry, avoid”, but will the dashboard say the status of each measure—retain, revoke—next to it? If that is the case, it will be quite simple for the Minister to answer my question about whether BSE monitoring work has been done, bearing in mind that we are at the end of February.
Baroness Bloomfield of Hinton Waldrist (Con)
The dashboard will be updated with status as each EU law is reviewed.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I have just one simple point to make. Unless we are clear whether the Bill says that the overall regulatory burden must not increase, or specific legislation—
Baroness Bloomfield of Hinton Waldrist (Con)
I have already offered to write on that point.
Baroness O'Grady of Upper Holloway (Lab)
Yes, but a big follow-on from that is that that is where the impact assessment becomes critical. We have been told that we will have individual impact assessments, but that will not help us if we are trying to look at the whole picture. So we do need absolute clarity on that in order to action, in my view, a proper impact assessment for the whole shebang.
Baroness Bloomfield of Hinton Waldrist (Con)
There will be an impact assessment on all new regulations. I will be writing with further detail on impact assessments.
Baroness Young of Old Scone (Lab)
We also seek clarification on something the noble Lord, Lord Callanan, said at Second Reading: that there will be impact reviews, as the Minister has said, of new legislation, which is what we would expect under the normal statutory instrument procedure. But what is not clear is whether there is any impact review of stuff being put in the “avoid” bucket. If stuff is going to be left to go out the door on 31 December, is there going to be any proposition showing our loss or gain on those? If not, why not?
Baroness Bloomfield of Hinton Waldrist (Con)
Not in terms of regulatory review, but those decisions will be taken within departments, and they will be sunsetted.
Lord Fox (LD)
My Lords, it seems that we will know at about one minute to midnight on 31 December, because it will not have been retained or amended; it will simply be revoked.
Baroness Bloomfield of Hinton Waldrist (Con)
With respect, it will be updated.
Lord Harris of Haringey (Lab)
My Lords, the Minister should stop sitting down in the hope that somebody else is going to stand up. She said she envisaged that the dashboard—I think this was a prompt from her noble friend Lord Callanan—would be published on a quarterly basis. We are running towards 31 December this year, so are we talking about publication of the dashboard on 31 March, 30 June, 30 September and then the moment on 31 December when we will know exactly what is in and what is out? Is that what is envisaged?
Baroness Bloomfield of Hinton Waldrist (Con)
I am afraid that I cannot commit to a specific timetable. Perhaps I could include that in my letter. We need to make progress, so I am going to continue.
Turning to Amendment 21, which is concerned with the Control of Substances Hazardous to Health Regulations 2002, the Health and Safety Executive will seek opportunities to reduce business burdens and promote growth, while safeguarding the UK’s high health and safety standards. As I have said a number of times, we are committed to ensuring health and safety legislation continues to be fit for purpose and that our regulatory frameworks operate effectively following the sunset.
I hope I have been able to provide some reassurance to noble Lords. The Bill does indeed provide the tools to allow much-needed reform of retained EU law, but it does not change the Government’s commitment to uphold the highest standards across all the sectors raised in these amendments. There is no need to remove these specific regulations from the scope of Clause 1.
Finally, I reiterate that we are committed to high standards and equally committed to compliance with the trade and co-operation agreement. I kindly ask the noble Lord, Lord Fox, to withdraw his amendment.
Lord Clement-Jones (LD)
Well, my Lords, I am not going to prolong the agony, because it has been pretty agonising and extremely painful. I agree with the noble Lord, Lord Harris: the Minister has been put in the trenches with an extremely rusty musket, if I may say so, and we have not had many satisfactory answers. But this is entirely down to the Government, who have set so many hares running. How many amendments do we have to put down to get assurances from the Minister, however fragile they may be? How many agencies do we have to mention? We have heard mention of so many today that have reviews going, are not being properly consulted or will not have time to deal with whatever is in the bucket. This is a kind of lucky dip—perhaps that is the next thing. If it is not in the bucket, or we have not identified it in the bucket, maybe on 31 December it will be as if it never existed.
The level of uncertainty is extraordinary. With only 10 and a half months to go, the Government seem to be relying on this stately progress of identifying what these regulations are, never mind working out whether or not they should exist. Then, of course, we need clarification, because the Bill certainly is not clear, about the meaning of Clause 15. This is what the food industry, the toy industry and all the product manufacturers are worried about. They want enhancement —I mentioned online safety—of our regulation, which seems to be denied them.
The Minister mentioned a number of reviews going on, but it is like these reviews are happening with somebody with a gun to their head. It seems quite extraordinary that that is the way we are going. Speakers right across the Committee have made some superbly expert speeches today. We have talked about the dangers of divergence from Europe, issues of public trust, problems with business certainty and a lack of lead times in order to adjust to the new regulations.
At the end of this debate, one feels like throwing one’s hands in the hair and saying, “My goodness me. How did the Government get into this situation?” It is totally untenable and they really should scrap the Bill at the earliest opportunity and carry on with some of these reviews without this pressure, which seems to be relentless, where civil servants are scrambling around and devoting a lot of time fruitlessly trying to identify what on earth is retained EU law.
No doubt we will keep returning to this. This is just the tip of the iceberg and I feel very tempted to table another 4,650 amendments. In the meantime, I beg leave to withdraw my amendment.
Baroness Brinton
Member's explanatory statement
This amendment excludes the Artist’s Resale Right Regulations 2006 and 2011 from the sunset in Clause 1. The Regulations protect the royalty rights of artists and their heirs.
Baroness Brinton (LD)
I will move Amendment 6 and speak to Amendments 13 to 15 on behalf of the noble Lord, Lord Clement-Jones. Just to say, both he and I support Amendment 145 in this group from the noble Earl, Lord Lindsay.
We are moving now to the area of intellectual property, where there is a very large potential change of intellectual property rights as a result of the Bill. One of the biggest threats comes from the precedents established by the ECJ being sunsetted at the end of this year. This will create great uncertainty and be an incentive for litigation for the creative and tech industries. This is further aggravated by the fact that there is no simple way to source or identify these judgments, which makes the task of understanding their implications especially difficult.
Currently, EU decisions reached prior to 1 January 2021 are binding on the UK courts, the Court of Appeal and Supreme Court aside. Under the Bill, EU cases will no longer act as binding precedent on all UK courts. While a UK court could still consider EU cases for their persuasive value, the courts will be under a duty to interpret EU cases in accordance with primary UK legislation or, if this is not possible, to disregard them. There is also an opaque duty on the courts to consider the extent to which the retained EU case law restricts the proper development of domestic law. How the courts will interpret this duty is extremely difficult to predict.
The copyright landscape in the UK has been heavily shaped by EU cases, which in many cases have significantly expanded the scope and availability of copyright protection. The most notable recent example is the CJEU decision in Cofemel v G-Star Raw (C-683/17), which redefined the types of works which are subject to copyright protection.
The decision in Cofemel expanded protection to any identifiable work that is the author’s own intellectual creation. This definition has potentially expanded the availability of copyright protection to a plethora of new areas, from programming languages to fabrics and from facial make-up to literary characters. Given that Cofemel arguably contradicts the closed list of the CDPA, the Bill may make it mandatory for the court to disregard it. Businesses that have relied on copyright’s existence in non-traditional works may find their current copyright protection lost.
The recent case of Shazam Productions Ltd v Only Fools the Dining Experience Ltd & Others, 2022, EWHC 1379, also highlights the risk of such a departure. The case concerned whether the characters from the popular sitcom “Only Fools and Horses” could be protected under copyright. The court relied heavily on the definition of “works” in Cofemel to find that literary characters could be protected by working backwards from the EU definition of a “work” to find that characters could fall within the definition of literary works under the CDPA. It is not clear that the court would reach the same decision after the Bill is enacted.
This causes huge uncertainty. What is the Government’s plan in this respect? Will they explicitly retain these precedents? Businesses that depend on intellectual property needs stability and certainty. Is the potential turmoil in IP rights part of the Government’s plan for growth? The IP regulations and case law on the dashboard, which could be sunsetted, encompass a range from databases, computer programs and performing rights to protection for medicines. There are 70 identified pieces of legislation that could be impacted—I promise I will not read them all out tonight. There are 25 related to copyright, 10 to trademarks, 13 to designs, eight to enforcement of IP rights and 14 to patents. A major risk to the creative sector would be from changes affecting copyright. As Creative UK says, intellectual property is the bedrock of the creative industry and the mechanism by which ideas are monetised to make businesses and careers in the industry viable.
Specific copyright-related implications include uncertainty related to database rights, which are the subject of an amendment today. There is considerable uncertainty around the status of the Copyright and Rights in Databases Regulations 1997, which underpin the sui generis database right. On the basis that those regulations fall within the definition of EU-derived subordinate legislation, without any ministerial intervention the legislation will be revoked in so far as it relates to database rights.
At particular risk are artists’ resale rights. ARR entitles artists and their heirs to a small royalty when their work is resold by an art market professional. It ensures that up-and-coming artists, whose early work is often sold for very low prices, benefit as the works increase in value. This is because the law was implemented from EU directive 2001/84/EC. The UK transposed the right via two statutory instruments. The first, in 2006, introduced ARR for living artists, and the second, in 2011, extended the right to the heirs and estates of artists who have died. Visual artists are some of the lowest earning creatives, earning between £5,000 and £10,000 a year. Since ARR was introduced in 2006, DACS has paid more than £100 million to artists and their estates. With the third-largest art market in the world, the UK remains a global powerhouse, demonstrating that ARR and the art market can coexist. Losing ARR would not only strip UK artists of a vital personal and economic right but would jeopardise the UK’s position as a world leader in IP and the creative industries.
ARR is being adopted throughout the world, with countries such as Canada and South Africa looking to introduce legislation. The UK’s trade negotiations have been important in securing reciprocal ARR in Australia, and indeed in encouraging New Zealand to introduce the law. ARR features in UK trade agreements negotiated after Brexit with third countries and therefore it may be that a commitment to ARR falls within the UK’s international obligations that are considered when retaining EU-derived law.
The Earl of Clancarty (CB)
My Lords, I shall speak briefly to Amendment 6 in the name of the noble Lord, Lord Clement-Jones, to which I have added my name. The noble Baroness, Lady Brinton, has said much of what I was going to say about ARR. I support all the other important amendments in this group, but I want to draw attention in particular to the importance of the artist’s resale right and how important it is for UK artists. I am grateful for the briefing from the Design and Artists Copyright Society, the rights management organisation for visual artists in the UK.
The visual arts play an important role in shaping the perception of the UK, and in our soft power. The artist’s resale right is applied when a work is resold through a gallery or auction house, and it is an invaluable source of income for visual artists, as the noble Baroness, Lady Brinton, pointed out. It is the equivalent of royalties for musicians and authors when their work is replayed or reproduced. Earlier, the Minister, the noble Baroness, Lady Neville-Rolfe, talked about duplication, but, crucially, the operation of this right depends on the regulations referred to in this amendment. It does not depend on the EU or other legislation—it depends on these SIs. So, there is particular concern here with these regulations.
I am put in mind of what the noble Lord, Lord Kerr, said earlier about uncertainty. People have talked about what will happen before the deadline on 31 December. I am very concerned about what we will wake up to on 1 January 2024, when businesses and organisations that depend on particular regulations to operate exactly what they do will find that those regulations have disappeared and that they simply cannot work. That is something the Government need to think hard about.
The resale right supports emerging artists as well as established artists. As DACS points out and as the noble Baroness, Lady Brinton, said, the average artist earns between £5,000 and £10,000 a year for their work in this area—a very small amount—and 81% of artists receiving such royalties use their income to pay for living expenses, including studio rent and materials. So these royalties can give a much-needed boost to those artists, which will in turn help to boost the creative economy.
This source of revenue becomes particularly significant, considering the rising costs of materials and increased rents for studio spaces, for estates that support an artist’s legacy by providing revenues to be used for managing the estate and for conservation, all of which contribute ultimately to the UK’s cultural heritage. The amount of royalties paid to artists is less than 1% of UK post-war and contemporary and modem sales, and as research has pointed out, there is no evidence that these royalties act as a deterrent to the UK art market. ARR is recognised by more than 80 countries worldwide and the principle is enshrined within the Berne convention.
ARR has been included in our own trade agreements, as the noble Baroness, Lady Brinton, said, as well as in the withdrawal agreement with the EU, so the removal of this legislation would be inconsistent with the promises we have already made internationally with others. It is vital for the arts and our cultural heritage that this right is protected, and it should be excluded from the sunset clause.
Baroness Crawley (Lab)
My Lords, I shall speak to Amendment 145 in the name of the noble Earl, Lord Lindsay. This amendment, to which my name has been added, has the backing of the Safeguarding Our Standards consumer protection campaign and continues the theme of other exclusion or carve-out amendments in this group, in that it would ensure that the Bill will not apply to any regulations relevant to the Government’s forthcoming digital markets, competition and consumer Bill. Many believe that this DMCC Bill represents the most significant reform of UK competition and consumer protection law in years.
The noble Earl, Lord Lindsay, who cannot be here today, and I work closely together with the Chartered Trading Standards Institute, of which he is president and I am a former president. We thank both CTSI and Which? for their support and advice on this amendment. In the Autumn Statement, the Government committed to bringing forward the DMCC Bill in this Session of Parliament, and it would be good to know from the Minister when that Bill will be published—it is supposed to be imminent. It will provide important reforms to competition and consumer protection law, including providing the Competition and Markets Authority with significant new powers to promote and tackle anti-competition practices and, indeed, updating retained EU law, such as the Consumer Protection from Unfair Trading Regulations 2008, with measures to combat fake reviews and subscription traps. It is likely that businesses around the country will be reviewing their current approach to sales and marketing, given the expected new powers the CMA will impose as far as fines are concerned in relation to consumer law breaches through that Bill.
However, there is a very serious risk that the REUL Bill in front of us today will cut across what the Government are trying to achieve through the digital markets, competition and consumer Bill. That is why we believe that regulations that are in scope of the digital markets, competition and consumer Bill should be excluded from the retained EU law Bill. There is already a precedent for this, as the Financial Services and Markets Bill currently going through Parliament, which has already been talked about today, is excluded from the scope of the retained EU law Bill to avoid the risk of the two different pieces of legislation contradicting one another. We have not yet had a proper answer as to why this precedent is still there. The organisation Which? is, however, on record as arguing that the relevant clauses and schedule in the FSM Bill need to be improved to ensure that decisions about any remaining financial services retained EU law are accompanied by effective consultation as well as parliamentary and stakeholder scrutiny.
I urge the Minister to look carefully at this amendment in light of the need for robust competition and consumer law going forward in a very difficult economic time for many people and businesses.
Lord Callanan (Con)
My Lords, this debate has demonstrated what we already knew: there is retained EU law across all sectors of the economy, some of which is out of date and unfit for purpose. The Government have taken a sensible approach by requiring that this retained EU law is reviewed and updated equally and in the same timeframe. This makes sure that no specific policy areas get left behind. We have had essentially the same debate on all groups—with Opposition Members highlighting certain areas and saying, “This is very important”, and of course we agree with them, then asking for specific carve-outs, which is impossible until we have done the work reviewing it.
We reject Amendment 6. We think it is unnecessary and ask that it be withdrawn. The amendment would see legislation on artists’ resale rights excluded from the sunset provision. However, the UK Government have already committed to ensure that the necessary legislation to uphold the UK’s international obligations after the sunset date will remain in place. This can also be accommodated using the broader powers contained in the Bill. Again, we contend that there is no need for any carve-outs for specific policy areas.
Similarly, I disagree with the noble Lord’s additional Amendments 13 to 15, which would put various copyright computer programs and database regulations outside the scope of the sunset. The Government believe that an effective and efficient intellectual property system—
Baroness Brinton (LD)
I apologise, I was not quite clear about something the Minister said. He made reference to the issues relating to the creative industries being covered by broader powers. Could he help the Committee by explaining what those broader powers are?
Lord Callanan (Con)
There are a number of broader powers in different pieces of legislation. I can get the noble Baroness confirmation in writing, but clearly if it is retained EU law it is also subject to the powers in this Bill.
As I was saying, an effective and efficient intellectual property system is fundamental to the Government’s economic ambition. In common with the rest of the Committee, we continue to support a strong and effective IP system that delivers for all those who rely on it. As part of that, assessing retained EU law on intellectual property as a consequence of this Bill will only help to ensure that this remains the same.
Ministers across government are already working closely with their devolved Government counterparts on their retained EU law plans, taking decisions on whether to preserve, reform or revoke legislation, and developing delivery plans to ensure that all necessary action is taken well before the sunset date. Once this process is complete, the Government will update the House on their intentions for the areas where they will focus on reform.
Finally, I turn to Amendment 145, tabled by the noble Earl, Lord Lindsay. A digital markets, competition and consumer Act is not expected to exist when this Bill receives Royal Assent. As such, it is not possible for this Bill to reference that Act if it does not exist. The powers in the Bill will be used as necessary to ensure that all reforms proposed by a forthcoming digital markets Act will operate as intended. I hope that has provided noble Lords with reassurance and that the noble Lord will feel able to withdraw his amendment and the others will not be moved.
Baroness Wheatcroft (CB)
Forgive me for interrupting at this late stage, but could the Minister tell the Committee how much time he thinks will be necessary to update the House on what is happening to the 4,700—and growing—pieces of legislation?
Lord Callanan (Con)
If the noble Baroness has been listening to the debate so far, she can reference the dashboard with the 4,700 pieces that are listed. As has been said in previous debates—we have been through this at great length now—the dashboard will be updated as the Government’s intentions, once this review has been carried out, become clear.
Baroness Wheatcroft (CB)
The Minister said that, once decisions had been taken, he would update the House on the outcome for the 4,700 pieces of legislation. It was that I was querying.
The Earl of Clancarty (CB)
The Minister mentioned that a decision had been made to continue artists’ resale rights. Where was that original decision made and will it continue in the same form that it is now?
Lord Callanan (Con)
The Government have signalled our general intention and the importance of the IP protection regime, which of course involves artist resale rights. We have stated our intention for that regime to continue, and we will of course update the House as soon as we have more information.
Baroness Brinton (LD)
My Lords, I thank the Minister for his reply. Like other noble Lords, I thank all three Ministers for responding to a Committee that is clearly concerned about what is going on in the Bill. The hour is late, so I will be brief.
The noble Earl, Lord Clancarty, was right to be concerned about the consequences for artists after 1 January next year. I was particularly concerned about the definition of “broader powers”, and I recognise that other noble Lords have made comments or asked questions about what is happening first. The real message from this is that it is a great shame that we are rushing a group of amendments on the creative industries, which are vital to the growth of UK plc. None of the Bill seems to deal with law that is out of date, and that needs to be looked at.
The message for the day from all these groups is that the Government really should consider pausing the Bill. On every amendment we have debated today, there has been concern about the order of information coming out, so that Parliament, stakeholders or consumers can be aware of what is going on. It feels like this is all happening back to front. So I hope that the Government will take that seriously.
Lord Callanan (Con)
I will issue a clarification: it is actually 3,700 pieces of retained EU law, not 4,700, as I inadvertently said.
Baroness Brinton (LD)
I am grateful for that clarification, but it exactly makes the point that every noble Lord made this afternoon.
Baroness Crawley (Lab)
My Lords, I am disappointed in the noble Lord’s response. I cannot see why the Financial Services and Markets Bill can be excluded from the scope of the Bill but not the forthcoming digital markets, competition and consumers Bill. I do not think that the case has been made, but I will not move my amendment when asked.
Baroness Brinton (LD)
To conclude, I feel that a rather large number of amendments from today will return in some form on Report, with possibly thousands more, as my noble friend Lord Fox outlined—
Baroness Brinton (LD)
Even if it is 1,000 fewer, a large number will return. On that basis, I withdraw Amendment 6.
Retained EU Law (Revocation and Reform) Bill
Tuesday 28th February 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-III Third marshalled list for Committee - (28 Feb 2023)
Baroness Randerson
Member’s explanatory statement
This amendment excludes the Motor Vehicles (Wearing of Seat Belts by Children in Front Seats) Regulations 1993 from the sunset in Clause 1. The Regulations protect children from serious injury or death in vehicle accidents.
Baroness Randerson (LD)
My Lords, this group includes four pieces of transport-related retained EU law, simply to illustrate how fundamental it is to our own protection, both physically and as consumers, with compensation and assistance when things go wrong.
There are many regulations from our 40 years of EU membership that I could have chosen because they have reduced death and injury on our roads. In Amendment 7, I focus on the 1993 regulations on the wearing of seat belts in the front seat of cars by children. These regulations were a consolidation of earlier ones that, in 1983 and 1989, had gradually enforced seat-belt wearing for children.
There are also detailed EU-derived regulations on child car seats, specifying designs by height and weight. Children are not just small adults: they are proportioned differently, their bones are not fully formed, their skeletal structure does not protect their internal organs in the same way, and their necks and heads need greater support. Child car seats reduce the chances of a child’s death in an accident by nearly half, in comparison with them wearing a regular adult seat belt.
I hope that the Minister will clarify that the Government have absolutely no intention of reducing car safety standards for children, but this example illustrates that one person’s deregulation is another’s lifesaver. These regulations have been developed over many years. It is 40 years since the introduction of compulsory seat belts, but it was recently possible for our Prime Minister to be so unaware of their importance in saving lives that he was happy to record a video sitting in a moving car without one. Even today, around a quarter of car occupants killed in road accidents are not wearing seat belts. In the case of young men, it is a third of deaths.
Noble Lords cannot take for granted that our Government will want just to maintain existing regulations. We also need to look at the need to upgrade them. The Bill incorporates a fundamental principle that there should be no increase in regulatory burdens. That is clearly at odds with higher safety standards on seat belts and child seats. We received a letter in the last few minutes from the Minister that states quite clearly that the Government’s definition of “no additional regulatory burdens” means that one can upgrade one aspect of a regulation but, overall, within an SI, there can be no increase in administrative burden. As technology moves on, that will be jolly difficult with something such as seat-belt wearing.
Amendment 24 refers to the Road Vehicles (Approval) Regulations 2020. These ensure that new cars, buses and goods vehicles comply with high standards of safety and environmental protection. If these regulations were to be revoked on 31 December, those vehicles would not be able to be registered from 1 January next year, thus stifling the development of new vehicle design and greater efficiency.
The recently published GB type approval scheme would be revoked before its mandatory application date of 1 February next year, wasting two years of government/industry collaboration. The key point here is that the subsequent lack of environmental and safety regulations would immediately strike at the competitiveness of UK vehicle manufacturers and retailers. New entrants to the market would not be required to meet current high standards, and there would be no requirement for further improvement. Will the new GB type approval scheme be considered a new regulatory burden and, hence, revoked before it even starts?
Furthermore, there is now a package of 50 new measures planned for adoption in the EU this summer. To compete internationally, our auto manufacturing industry needs to keep up with the best. Before Brexit, the UK would have adopted that package as a matter of course. What plans do the Government have to mirror those standards in UK law? Everyone using our roads deserves the safest possible vehicle with the lowest possible emissions, and that is what these new EU regulations are about.
Amendments 8 and 9 are a sample of the various regulations that set out consumer law on air travel and holidays, including airlines’ liability requirements in the event of accidents, loss or damage to baggage, and disabled passengers’ rights to assistance. Amendment 8 deals with compensation for cancelled or delayed flights. The importance of these rights was underscored last summer as aviation struggled to recover from the pandemic. Regulation EC 261/2004 establishes common rules on compensation and assistance for passengers. Clearly, common rules are important in an international industry.
Amendment 9 is on the Package Travel and Linked Travel Arrangements Regulations 2018, which modernise previous protections for customers buying package holidays. They broaden the scope to include so-called linked travel arrangements, reflecting the way that many of us now buy our holidays online. Package holidays transformed the international holiday market, opening it up to a much wider customer base, but its success relies on customer confidence that the company offering the package, to which you pay your money, will take responsibility for the whole set of arrangements, pass on your money to hoteliers, purchase the flights and rescue you from disaster when something goes wrong. The volcanic ash cloud of 2010 illustrated the importance of this type of arrangement. In December, Mark Tanzer of ABTA, the largest travel trade body, said that:
“The protections afforded by these regulations are essential to maintaining consumer confidence”
and that the
“sunset deadline … has the potential to destabilise the travel industry.”
I am especially looking forward to examining exactly what the Minister says in response to Amendments 8 and 9, because last year the Department for Transport consulted on plans to reduce customer rights to compensation for internal flights. Can the Minister confirm whether the department is proceeding with this plan? It will, of course, be fully in line with the principles of reducing the regulatory burden that underlie this Bill, but it would damage consumer confidence in domestic airlines.
When I last looked, there were 424 pieces of Department for Transport-related law on the dashboard to be considered by the end of this year. In a world of rapid technological change we should spend our time upgrading our legislation, not retreading the past. The Department for Transport is already puffing along behind the rest of the field, unable to keep up with world leaders.
Lord Fox (LD)
My Lords, I support Amendments 7 to 9 and 24 in this group, signed by me and my noble friend Lady Randerson, who gave an excellent speech setting out very serious points on these issues.
During the last Committee session, a number of serious points were raised. Aside from the unmitigated chaos that sometimes emerged on the Government Front Bench, there were three major, standout learnings. I make no apology for retreading them slightly because they apply to this and some other groups of amendments that we will debate. The Minister himself described British law as a “mishmash” of UK and EU-derived laws that operate together. That point, made by many of your Lordships, is also our point: how can you change one part of the mishmash without it having an effect on everything else?
Many of us raised the element of case law—the legal interpretation of the Minister’s mishmash. Last week highlighted the vital point that even assimilated law, essentially the same as the EU-derived law it replaces, loses the case law that was built around it to date. The Government seem not to have found a way of porting legal interpretations to new, assimilated laws under this Bill. We await further details of the Government’s plans from the Minister, as promised.
As my noble friend said, we got a letter from the noble Baroness, Lady Bloomfield, some moments before we arrived here; some of us were already in here when we received it. It sheds some light on some of the other points that I was going to raise. The first is around the dashboard. There was complete confusion as to the status of this dashboard and when a definitive list of the retained EU law covered by this Bill would be published or available. We now have clarity. The dashboard
“presents an authoritative catalogue of retained EU law, not a comprehensive list of retained EU law.”
Can the Minister explain what an authoritative catalogue is in relation to a comprehensive list?
If, as the Minister describes it, it is “not a comprehensive list”, we are back to square one. When will we get a comprehensive list of all the laws covered by this Bill—and how long before the end of the period when these laws are automatically revoked? At the moment there seems to be no intention to publish an authoritative list, so we will never know some of the laws that are going to be revoked. We suggest that any such list should be tabled in Parliament, and there are a number of amendments coming up that will seek to achieve that change.
The third point that is also addressed in the letter is the status of Clause 15 and how regulatory burden is to be measured. Is it law by law, or will there be some net figure across a group of laws? As my noble friend pointed out, it was suggested from the Front Bench last week that it was going to be all of them, but now we hear that the laws are going to be divided up by SI, and each SI bundle will be allowed to have ups and downs as long as the net total is no more than the Government’s calculation of what a regulatory burden is.
It is still not clear to me how you calculate or rate a regulatory burden. How do you weigh a burden on two people versus a burden on 3,000 or 3 million? How do you rate one burden that saves lives against another that merely enforces a less life-saving regulation? The noble Lord, Lord Callanan, promised a letter about this issue, with worked examples. We look forward to that letter and to those workings. I do not know whether noble Lords remember maths exams where you had to show your workings, but this is definitely a situation where the Government have to show their workings.
There was one further point in the letter regarding the product safety review, which the noble Baroness, Lady Bloomfield, responded to. In a sense, safety is one of the issues in this group. The noble Baroness stated that that review would be published later this spring. That is welcome, although it is about a year later than we were expecting. Can the Minister confirm that that is the case and perhaps give us a clear timetable for how the product safety review might come to your Lordships’ House and then be put into effect, given the nature of the Bill, the regulatory burdens that we have just been talking about and the point that my noble friend Lady Randerson made?
Last week the noble Baroness, Lady Neville-Rolfe, said from the Front Bench:
“I would say that the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens”.—[Official Report, 23/2/23; col. 1821.]
I request to know—I believe there was a request last week as well—what guidance departments are receiving when it comes to regulatory burdens, how they will be calculated and what is expected of them.
As long those these three questions remain open, it is impossible for any Minister to stand at the Dispatch Box and say that the Government will maintain this or that law and this or that regulation. Quite obviously, it is not in the Government’s gift. All retained laws, even the assimilated ones, are open to interpretive change. In any case, we may never have a definitive list of all the laws that will be changed or revoked until it suddenly happens, and we do not yet know what constraints Clause 15 actually puts on the changes and amendments that will happen to those laws that are amended. This uncertainty is as true for this group as it was for the previous ones that we have debated so far.
Given the Minister’s excellent brief, I am not going to focus on specific areas, but I would like to talk about non-compliance. Speaking today, the Lord Privy Seal said, with regard to the Windsor Framework, that
“we will take further steps to avoid regulatory divergence in future”.
Very good—so what further steps to avoid regulatory divergence will there be in this regulation? This specifically points in the exact opposite direction to the direction signalled by the Lord Privy Seal not an hour ago. Could the Minister please explain how those two particular things are squared?
Various UK Ministers have committed to ensure that the operation of the Bill does not jeopardise international and environmental commitments—we will be talking about the environmental ones shortly—but, as a matter of law, these statements provide no real reassurance or protections. One area that I come back to is manufacturing in the automotive sector. I am on the executive of the All-Party Motor Group, so it is something I know something about.
The automotive industry is subject to a large number of sector-specific regulations, as well as many cross-sector business regulations. These are held across several government departments. The critical regulatory framework underpinning the industry and its huge economic contribution must not be put at risk—but that is what could happen, as my noble friend Lady Randerson alluded to. There needs to be a concerted process of detailed work to make sure that we do not accidentally end up in non-compliance, with our industry unable to access external markets because of deliberate or accidental regulatory divergence. That requires of course the Government and the industry to understand the scope, function and potential interdependency of all legislation in scope of the Bill. Can the Minister confirm that those talks will open up with that industry, and indeed other industries where this will become an important factor in whether these businesses can make things in this country and export them to the European Union?
Regulatory reform and development should occur in a managed way, with clearly defined road maps and priorities. Even a potential extension to June 2026 under the Bill is extremely challenging in any timescale to try to do that managed process. It needs proper regulatory reform on a scale that requires industry consultation and real scrutiny. So can the Minister confirm that this is understood and that proper consultation with industry will open up?
Once again, this group of amendments illustrates the complexity that the Bill brings to just one facet of our life and national livelihoods. Once again, it gives the lie to Mr Rees-Mogg’s declaration that this is a technical tidy-up. This is not tidy.
Baroness Thornton (Lab)
My Lords, I pay tribute to the noble Baroness, Lady Randerson, for her expertise in this area. I intend to speak not as an expert in transport at all but as somebody who goes on holiday and flies to places in Europe. I would like to know whether I am going to be able to claim compensation next year if my plane is delayed or my luggage is lost.
As all noble Lords will know, European Union regulation 261/2004 gives us rights to compensation, care, assistance and information in case of cancellation, involuntary denied boarding or delay. Has that continued as a right that we all have as air travellers? It is retained EU law and it continues—this bit is from Google—“for the foreseeable future”, which presumably in this case means October, December or whenever, to give passengers the same rights that they previously had.
Many noble Lords will remember those rights being introduced, because you can get a reasonable amount of money in compensation and it is fairly straightforward to claim it. This
“includes rights created by past EU case law (such as the right to compensation for delay created in the controversial Sturgeon case), which will continue to bind lower UK courts”.
I mention that because it raises the question which the two noble Lords who have already spoken asked: what happened to case law in this case?
I suppose one question is: what does the travel industry have to say about this? ABTA and Which? have certainly said that they are very concerned about it. What do we do when we are booking our holidays in 2024? Thousands of flights and millions of people are affected by this regulation and what happens to it. I know that the Minister will not be able to say whether this is in or out, because the Government are not telling us that. But it is worth saying, as ordinary consumers, that this is a matter of some concern to us.
Lord Deben (Con)
I chose to speak on these amendments because I want to talk about the reality of the Bill, which is best exemplified here, rather than later when we will talk about the environment, when I will talk as chair of the Climate Change Committee.
First, I want to understand how a Conservative Government could produce the Bill. As far as I believe, in the Conservative Party we believe in continuity and evolution rather than revolution. Evolution means that you take what you have and improve it; you do not throw it out hoping that you will have time to put something else in its place. The point that the noble Lord, Lord Fox, made about case law is crucial here. If you do not retain all that you want, you do not retain the case law, so you do not know what it is that you are doing. That is a very un-Conservative thing to find oneself doing.
The second issue, as a Conservative, is that I do not understand the explanation about regulation. As things are defined in this letter many of us have just had, it suggests that all regulation, by its nature, is somehow wrong. We have a regulation which says that you drive on the left-hand side of the road. That is a sensible regulation. It would be a mistake to cast it into doubt. There are many regulations which are essential for civilised life. Indeed, you cannot imagine civilised life without regulation. Conservatives, I thought, believed in civilised life. Therefore, regulation is an essential part of that.
When you come to judge regulation, you do not judge it by its weight or the number of phrases or words; you judge it by how effective and appropriate it is, how much it fits the present, and how it grows out of the past. If you are a Conservative, that is what you do. I believe there are many who think differently, but as a Conservative that is how I think of regulation.
We are now told that the regulation burden must not be increased. I do not mind that—if we define “burden”. It does not seem to be a burden to have to drive on the left-hand side of the road. That seems to be a necessity.
Baroness Bloomfield of Hinton Waldrist (Con)
Perhaps my noble friend could address the amendment he is talking to specifically.
Lord Deben (Con)
I hope the Committee agrees that I am addressing the amendments.
Lord Deben (Con)
I am talking about the left-hand side of the road and the first amendment is about motor vehicles. The second one is dealing with the rules of the compensation system for passengers. I say to my noble friend that this is a series of amendments to draw attention to the fact that the Bill does not follow a sensible programme of defining “burdens”. We have just had a letter about it, and I intend to talk about that letter. The fact of the matter is that this is not a sensible way of defining “burdens”. “Burdens” should be defined by whether they are a burden or not.
I come to the examples here. It is inconceivable that the Government will remove the requirement for a child to wear a seat belt, so why do we have to consider it at all? Why do we not accept that we should keep many of the things that we have? We have now thrown into doubt a whole detailed series of regulations that, if I may say so, will not be changed. But we do not know that, and we do not know which ones will be changed. We are now suggesting that this discussion will be conducted by civil servants and, in the end, Ministers.
Viscount Hailsham (Con)
My noble friend is making a serious point—namely, that we do not know the identity of the regulations that will be in doubt. But the point here is that, if you do not know the identity of the regulations, you cannot consult the stakeholders, which is a very serious deficit.
Lord Deben (Con)
It is a very serious deficit. I will apply it to this amendment, as my noble friend the Whip insisted. I have chosen this amendment because it is so obviously true that the Government will not change that requirement, so why do we throw this into doubt? Why do we say to civil servants that they have to go through all this in a very short period of time, including requirements that we will not change? As chairman of the Climate Change Committee, I am aware that almost all departments are struggling to do what they have to do anyway. If we add this, they will do it rather than what they ought to do—and what I, as chairman, am desperate for Defra, for example, to do—because this has a sunset clause.
Lord Collins of Highbury (Lab)
We talked about the regulations that might fall off after the sunset and those that might be thrown out by a Minister, but the last part of the letter that the noble Lord referred to also says that
“the powers in the Bill could be used to preserve, extend and reform retained EU law”,
and then that:
“Anything preserved will be subject to clauses 3-6 of the Bill which repeal retained EU interpretive effects”.
What does the noble Lord think about that? Even when a Minister says that we will keep a law or regulation, does everything that has built up, in terms of case law, get thrown out?
Lord Deben (Con)
I almost dare not go down that line because it has been suggested that what I have been saying is not applicable to these amendments. I think it is applicable, and we have to talk about this principle if we are to discuss the Bill properly. On what the noble Lord rightly put forward, all this throws everything into doubt, and it is very un-Conservative. I have never known a Conservative proposal to throw aside all the interpretation that has grown up over the years, because that is exactly what life is about: learning through the years. Citing the fact that it happens to be interpretation of European Union laws is to ignore the history. We have been a member of the European Union, and we are no longer; I am sorry about that, but I am one of those who wants to draw a line underneath that and behave sensibly from now on. I do not want this appallingly reactionary approach, which says, “Because it’s got ‘EU’ on it, there’s something wrong with it”. Let us consider it properly and separately.
So if we are not going to get rid of the first point about motor vehicles and seat belts for children, let us therefore have a different way of doing it. Let us decide that we will have a reform of the laws in general and that we will bring before this House proposals for what those changes will be in a timetable which is sensible and which the House can deal with. Therefore, we would not do the last non-Conservative thing, which is so outrageous as to be almost inconceivable: taking the power over law from Parliament and giving it to Ministers. I can think of nothing less Conservative than that.
Let me put it like this: we are not even giving it to these Ministers; we are going to give it to whichever Ministers are there—and they may not be the same lot. All I want to say is that no Conservative in my knowledge of history has ever proposed that the decision on something as important as, for example, children wearing seat belts shall not be our job in this House and in the elected House, but the job of Ministers alone.
Baroness Ludford (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Deben, and I support every word that he said. I too will react to the letter we got minutes before we started this Committee debate—if I am allowed to do so without an intervention from the Government Front Bench. My noble friend Lord Fox referred to how the letter says that the dashboard
“presents an authoritative catalogue of retained EU law, not a comprehensive list of retained EU law”.
So I hope that the Minister, in her response, can give us a precise explanation of the difference between “authoritative catalogue” and “comprehensive list”, because, for my part, I cannot really understand how it can be authoritative if it is not comprehensive.
Viscount Hailsham (Con)
I suggest to the noble Baroness that this is about the Government allowing themselves wriggle room.
Baroness Ludford (LD)
I could not possibly comment on any wriggle room that the Government are giving themselves. However, because there is some justice in what the noble Viscount has said, I still want an explanation on the record from the Minister of how it can be authoritative if it is not comprehensive. Indeed, it cannot be authoritative at the moment because we know that it is still in the process of being added to.
Baroness Ludford (LD)
Yes, indeed, when is a catalogue not a list? It would be really helpful if the Government could explain that.
The noble Lord, Lord Deben, referred to how this is not a Conservative Bill because it is revolutionary. Yesterday, I found myself using the adjective “anarchic”, because the Bill is revolutionary and anarchic; we have an anarchist revolution from a Conservative Government, which is quite an interesting development. Another way of putting it is that it is a complete mess.
Baroness Ludford (LD)
It is a chaotic mess. They are making it up as they go along. We understand that officials are not only still dabbling around desperately trying to find EU law but thinking about what to do with each instrument once they have found it—whether it should be junked, preserved or altered. That is an odd way of putting the cart before the horse. Why was the Bill ever submitted if there was no idea of what was going to happen to EU law? I will add to my adjectives: the Bill is higgledy-piggledy and all over the place.
Finally, I wanted to raise another point for the Minister to answer. I am grateful to George Peretz KC for raising this point. We will come back to Clause 1 in future groups, but it is entirely relevant here to raise it. The definition of EU-derived subordinate legislation that is to be sunsetted in Clause 1(4) is
“any domestic subordinate legislation so far as … it was made under section 2(2)”
or another provision of the
“European Communities Act 1972, or … it was made”
otherwise, in
“implementation of EU obligations”.
But one problem is that sometimes an SI was made partly under Section 2(2) of the ECA and partly on another legal basis. Are those all going to be, whether this list is authoritative or comprehensive, or when it is finally arrived at—
Viscount Hailsham (Con)
There is also the problem of gold plating. I was very familiar with that when I was in the Ministry of Agriculture. Very often, officials did more than was required by the European Union. At that point, one has the interesting question of whether it is EU law or ours.
Baroness Ludford (LD)
Absolutely. George Peretz refers to the bits of an SI that were not made to implement an EU obligation. Do they remain as what he calls “bleeding chunks”, because of the “so far as” caveat? He calls them Frankenstein SIs, which may or may not make any sense as law. If an SI has been partially made to implement an EU obligation, will it be on the catalogue or list or whatever?
In a meeting yesterday I mentioned one problem, and I shall mention it here now. I had a Liberal Democrat colleague in the European Parliament, Chris Davies, who consistently raised the question of what were called in the jargon “correlation tables”. What that meant was traceability—being able to see how EU law was being implemented in all the member states. That had various advantages, and one advantage that it would have now is that we would not have hundreds of civil servants scurrying around Whitehall who should be doing more important work than trying desperately to find out what is retained EU law, because the EU measure being implemented is not cited in the SI or even in primary legislation.
That is one problem that we have now—and I will repeat an example that I have given before, which is something that I know something about. The Extradition Act 2003 implemented the European arrest warrant. You will not find the term “European arrest warrant” in the Act, which just referred to Part 1 and Part 2 countries for extradition. Part 1 was broadly about European arrest warrant countries, but an ordinary person opening up the Extradition Act would not have had a clue that it was implementing the European arrest warrant. So I am afraid that successive Governments have made a rod for the back of the present Government, and all those poor civil servants, and the National Archives and everybody else who is being dragged into this absurd exercise.
There has been a failure for a variety of reasons, one of which is the gold plating. There would be some dusty project in a Whitehall drawer somewhere, and then an EU measure would come along that was a wonderful vehicle for it. They could never justify to Ministers putting it through in a Bill, so they thought, “Aha, nobody will notice. When we implement it through Section 2(2), we’ll blame the EU or we’ll kind of hide it among all this stuff”. So I am afraid that chickens are coming home to roost with regard to the 4,000 or however many thousand measures. We do not know what is in the scope of this Bill. More importantly, all the people out there in the real economy—the businesses, the trade unions, consumer organisations and travel firms—do not know what EU law they are going to be continuing to operate, and that frankly is a disgrace.
Lord Krebs (CB)
My Lords, I return to the by now infamous letter, which I too opened a few minutes ago. As the noble Lord, Lord Fox, said, when we talked about regulatory burden we asked for some worked examples, because it is only when you have the worked example with the actual numbers—maths homework—that you can actually see how it is going to operate. When I opened the letter, I thought for a moment it was a spoof, because it says:
“There is no definition of regulatory burden in the Bill, as … such a definition could unnecessarily constrain departments”.
It also says—this is helpful—that decisions about the regulatory burden
“will take place on a case by case basis and it will be an ‘in the round’ consideration that encompasses the vector of considerations in clause 15(10).”
If that is the worked example then, my God, we need a bit of help. I hope that when we get the real letter, rather than a spoof letter, it will actually tell us how this trade-off between a bit more regulation there and a bit less regulation over here is going to work.
Lord Collins of Highbury (Lab)
My Lords, I think we could debate this for much longer. I do not believe in conspiracy theories but I definitely believe in the cock-up theory of history, and this is certainly one of those cases. When I was thinking about how to respond to the debate, I decided that the subject matter of these amendments is vital, because it is about confidence—the confidence of business, the confidence of consumers—and people knowing what the law will be. And not tomorrow; they want to know what is going to happen next year. These are businesses that rely on planning one or two years ahead, and possibly more. One thing I realised is that we have constantly used Committee to seek clarity and a better understanding of what is behind this.
Take aviation, for example. My noble friend raised a question about booking holidays. We know what the EU regulations provide for, and people have some confidence in that. When we left the EU and we had the Bill that kept retained law on the statute book, the travel industry did not face a cliff edge then; everyone understood that continuity was important.
By the way, I am not a Conservative, as the noble Lord will know. I call myself old-fashioned new Labour, and that is exactly what this is about. Sadly, we have a situation here where I do not think that the Government know what they are doing. I think this should unite us all, across the Benches, whether you are a Brexiteer or a remainer—those are debates we have had in the past. On this legislation, we should all be united about its impact.
Aviation is an important industry, and it has already suffered huge consequences. It relies on the confidence of the people who book their holidays, and they are certainly not getting that. One of the things I did before we came down was to read Aviation Consumer Policy Reform, the consultation that the Department for Transport issued last January. It took it a long time to assess the responses to that consultation, and then we got the summary in July. There has been no idea since July about what the department is going to do about that, although all the indications are that the protection that is being offered through EU regulation will not apply to domestic flights—the sorts of protection that we get. A business or consumer will be thinking, “What does this Bill really mean?” They hear Ministers saying that we will keep the good bits, but when they look at the practice of the Department for Transport they cannot be filled with confidence. It is just crazy.
Let us turn to the letter, because it is really important. I assumed that this Government knew what they were doing when they published this Bill and that each department would have the responsibility for examining the regulations within its responsibility and thinking of the way ahead. That is not the case. What examination is taking place? This letter says that the National Archives is doing a search of what regulations exist. I suspect that it has done a word search and come up with all the regulations with “EU” in their titles. There has been no proper analysis by a department. Can the Minister—he is shaking his head—tell us what departments have properly examined that dashboard? What are its implications? We do not know whether it is an exhaustive list or what it will or will not include, and we are stuck with a timetable that is impossible for departments to meet. We also have that description of how this list and dashboard have come about.
On the regulatory powers, as the noble Lord mentioned, the letter says:
“It will be for the relevant Minister or devolved authority to decide if they are satisfied that the use of the power does not increase the overall regulatory burden in a subject area.”
It is absolutely crazy. I do not understand what that will mean. What are the implications for the transport and aviation industries? Tell us what the implications are. It seems as though, if we keep that benefit of retained EU law, we will lose something else in the aviation industry. Do not book your holiday next year because you do not know what will be protecting you. That is what the Government are saying to the people of this country and it is totally unacceptable.
At the end of the letter, which we got as we started this discussion in Committee, we read about the preserved law and what is retained. As the noble Lord, Lord Deben, said, we have a history of legal regulations that have been interpreted by our courts—no one else—and they have agreed case law that has been established. Now the Government are telling us that they will keep that EU regulation but all that history and continuity that has been built up will be thrown out of the window. It is like year zero. What are we talking about? Is this the way to introduce and maintain laws? This is not the way that this country has done it.
It is absolutely appalling that the Government have produced this Bill without any idea of its consequences. They have not thought it through, and it should be thrown out by all sides.
Lord Kirkhope of Harrogate (Con)
My Lords, I am sorry to intervene at this point. I think everybody on my side knows that I do not like this Bill and that I have amendments later to discuss the general principles that apply to it. Therefore, I am rather disappointed that those who have put forward amendments in Committee on specific exemptions from the sunset clause, such as on package travel and linked travel arrangements and the issues of assistance to passengers denied boarding and cancellation or long delay of flights, et cetera, do not seem to have made a case at all on the specifics of their amendments. Am I wrong, or is it not right that in Committee we deal with specific amendments and make the justification for them, and then deal with the principles when amendments that contain discussion and arguments on the principles come up?
Lord Collins of Highbury (Lab)
I hear the noble Lord, and I just want to clarify that I did speak to the specific amendments, because I was talking about transport and travel. I am particularly concerned about the impact that the Bill will have on the tourism and aviation industry, which has suffered a lot. I was talking about why we need to ensure continuity and stability in a market that has been affected. The problem is that without being very clear that we are going to keep that EU regulation to protect this industry, people cannot have confidence in booking their holidays for next year; some people book it even further in advance than that. That is why I am talking to the specifics here. However, we cannot ignore the fact that when we are talking about the specifics, we have had a letter literally presented to us that throws even more doubt on what the Government are doing. That is why we need to make that general point.
Lord Fox (LD)
Just to add to that, I say to the noble Lord that if he reads back through Hansard, he will see that my noble friend Lady Randerson dealt specifically with all four of those amendments in detail. I believe that that was not a very fair assessment of her contribution.
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
My Lords, I shall start on a slightly different note by sharing in the tributes that have been made to the noble Baroness, Lady Boothroyd. She was a real inspiration for young women like me at the time who were learning to contribute to public life in different ways.
Turning to this group, we have already made it clear during this Committee stage that the Bill is an enabling Bill. The measures in it, including the sunset, will provide for the UK and devolved Governments to review and then preserve, amend or revoke their retained EU law as they see fit. There is no inherent need for policy or legislative exclusions to the sunset in the Bill. To respond to my noble friend Lord Deben, I feel comfortable with what we are doing as a Conservative and as someone, as he knows, who understands regulation. We will be making our legislation more appropriate, updating it where necessary, improving the quality and getting away from gold-plating as appropriate—while maintaining, as I said, necessary protections.
Lord Harris of Haringey (Lab)
Can the Minister explain to us what a sunset enables? Surely it restricts rather than enables.
Baroness Neville-Rolfe (Con)
A sunset gives us an idea of the timing of the measures. It has precedent elsewhere. We have brought forward the Bill, and I think it has great value, because we are now looking across the board at the 3,700 regulations that are the subject of this debate.
Just to finish my point to my noble friend Lord Deben, he will remember from his own time in Brussels, which was extensive, as was mine—we were sometimes there together—that some of the regulations that were made could be improved, with others preserved and extended. To respond to what has been said, each department is carrying out a review of its own regulations and will do so responsibly. The National Archives has come in, if you like, as a cross-check, as it retains the Government’s regulatory records. EU law, as we all know, goes back to the 1970s, so to bring the National Archives in and make sure that we look at its records to add to the list seems to me to have been a very sensible thing to do.
The noble Lord, Lord Collins, is right to say that it can be useful to look at examples and that we should move on to transport and try to clarify things there. As my noble friend Lord Kirkhope said, we should try to tackle specifics, so let me turn to Amendment 7, which I think is in the name of the noble Lord, Lord Clement-Jones, but was spoken to by the noble Baroness, Lady Randerson—no?
Lord Carlile of Berriew (CB)
Before the noble Baroness turns to the specifics, would she deal with the general point that has been made? Does she regret that a letter which can be described only as obfuscatory, tautological gobbledegook was delivered to Members of this House about an hour after this debate started? How can we honourably be expected to digest that letter in particular if this House is treated in that way?
Baroness Neville-Rolfe (Con)
I think my noble friend sent the letter to try to be helpful, following the discussions that were had on the first day of Committee. I hope that others will look at the letter at leisure. I am sure there will be further discussions and debates in Committee, so if I may—
Lord Deben (Con)
My noble friend was kind enough to mention me and our work together in the European Union. We have now read this letter; evidently, we are to do something which we would never have done in the European Union. In other words, we are going to decide what will remain on the basis of whether there is room, in weight, for the legislation on seat belts for children, as compared against other legislation. That is what this letter means. It is not surprising that we have moved into a rather wider explanation, because what my noble friend and I did in the European Union we are now doing totally differently here.
Baroness Neville-Rolfe (Con)
I do not think it was entirely different. As I recall, in those days we were trying to cut red tape and regulatory burdens being imposed by Brussels. We will come to Clause 15, where I think the regulatory reference appears, in due course.
I would like to make progress, because we have lots of amendments to get through today, and return to Amendment 7, which I think the noble Baroness, Lady Randerson, was sponsoring. To make a general point on motor, in reviewing our retained EU law, the Government will make decisions in the best interests of UK citizens, and the Motor Vehicles (Wearing of Seat Belts by Children in Front Seats) Regulations will be no exception. I agree that this is an essential element of our law, and one that we intend to retain and to assimilate into UK statute.
The seat-belt wearing requirements are crucial to the safety of our roads; we are agreed on that. We know that even though seat-belt use is high, it still represents a disproportionately high impact on the number of deaths and serious injuries on our roads. The noble Baroness gave a figure for those who were killed not wearing seat belts which was very arresting. Therefore, this law is clearly still necessary.
Baroness Randerson (LD)
Very much to the point the Minister is making, because seat-belt legislation is 40 years old, there is a bit of a lacuna in the law—which is out of step with other similar road safety law—in that not wearing a seat belt is not something for which you get penalty points. There are strong calls to update the legislation to ensure that you get penalty points for failing to wear your seat belt. Would the noble Baroness judge that this would be considered by the Government as increasing the regulatory burden?
Baroness Neville-Rolfe (Con)
Of course, we need to keep things up to date. As part of our consideration of a call for evidence on road traffic offences and their policing, we are considering testing proposals to make not using a seat belt an endorsable offence. Not everything in the world of regulation is being done in this Bill. I hope I can reassure the noble Baroness that work is continuing and is important. The UK was instrumental in the development of these regulations, and they are compatible with our policy objectives that recognise road safety as a key objective for this Government. I am trying to go through these areas and give an appropriate answer. For this reason, rest assured that we have no intention of removing—
Baroness O'Grady of Upper Holloway (Lab)
The Minister says that it is self-evidently right that we should give that guarantee now that the law on seat belts will be retained, and that she can give a cast-iron guarantee on that today. I genuinely do not understand why she cannot do the same for workers handling asbestos, for example, which seems equally important. On what basis is she making that judgment: that she can give that guarantee, which is very welcome, on seat belts but not on incredibly important health and safety legislation derived from the EU—and, indeed, case law —that workers rely on?
Baroness Meacher (CB)
My Lords, I hope your Lordships will forgive me. I have put my name down to the Clause 1 stand part debate and various other things, but I have a family crisis and I have to go. I just want to make a few brief points a little out of sync.
My noble friend Lady O’Neill—a highly intelligent woman—just said to me that this is the most chaotic debate she has ever heard in this House. This House is being expected to have a serious debate on individual amendments that are terribly important: seat belts for kids, aviation and so on. The problem with the Bill—as pointed out by the noble Lord, Lord Deben, whom I support 100% in what he said—is that there is nothing in it. There is no information in it. There is a wholesale sunset clause and wholesale referral for Ministers to decide what to retain, what to reform and, if so, how, and what to do with each and every policy area covered by this enormous Bill. As for the idea that Clause 1 should stand part, it seems fairly obvious to me that you cannot just sunset all this at the end of the year, but that clause makes way for Clause 15, where the wholesale referral of all matters to Ministers is set down.
I have appealed, and I will just say it once more, and I will not say it again, I promise—forgive me, your Lordships—that I hope the Government will have the self-respect to withdraw the Bill, go away and do the work that needs doing, because an enormous amount of work needs to be done, and then bring back a Bill which can be debated by Parliament. I just want to make again the constitutional point: Ministers have consistently said, during the passage of the Bill in 2018, the memorandum to this Bill and so on, that the purpose of this Bill and what became the 2018 Act was to shift policy-making power from the EU to the UK Parliament, to make the UK Parliament central to our policy-making. The Government have not done what they say they want to do; they have transferred all power to Ministers. I therefore appeal to Ministers to do what they apparently want to do. I do not expect the Labour Party to intervene on this: I feel this is a matter for the Government, and I just say, “Please, Government, do what I think you all know you need to do”.
Baroness Neville-Rolfe (Con)
I think the noble Baronesses for their interventions and understand their depth of feeling. I should explain that this is a framework Bill, and it has been presented as such. The regulatory process will be gone through, and this House will then get a chance to look at the SIs.
Lord Cormack (Con)
I follow up the impassioned speech of the noble Baroness, Lady Meacher. We were given a very good example yesterday of what to do with a lousy Bill. Why cannot we follow that example today?
Baroness Neville-Rolfe (Con)
The noble Baroness, Lady O’Grady, mentioned asbestos as another example, and of course we dealt with that area yesterday: we have been going carefully through in a reassuring manner. I have been trying, in this transport debate, to respond helpfully where I am able to do so. I feel that this is not being appreciated, so I shall try to make some further progress.
Lord Harris of Haringey (Lab)
I assume the Minister is about to move off Amendment 7 and on to Amendment 8. Before that, could she explain to us, in the context of the letter we have received, a point about a single instrument, as referred to in Amendment 7, increasing the regulatory burden? The letter says that,
“it will be possible for a single instrument made under the power … to increase the regulatory burden, so long as this increases offset by a decrease of regulation in the same subject area.”
What is the scale of the subject area in relation to seat belts for children? For example, do all the amendments in this group fall into the same subject area, or are there subdivisions within it? If not, this letter, which was supposed to be helpful, is meaningless.
Baroness Neville-Rolfe (Con)
I think exact groupings of the regulatory area will be a judgment for the relevant Minister. The letter was trying helpfully to point out that there was the possibility of some increase in burdens in some areas, provided there were compensating decreases, because what we are trying to do, following our exit, is to implement regulations that work better for the UK, while maintaining our high standards. People seem to have forgotten that there can be problems with regulations.
Baroness Young of Old Scone (Lab)
I am two sentences behind the Minister in what she says permeating my consciousness, but on this business of the regulatory burden, how will we know and where will the discussion take place about the Ministers weighing up comparative regulatory burden—the apples and pears—and coming to a conclusion about what can be increased, enhanced and improved and what must go as a result? As she said, we will see statutory instruments for changes but, for things that simply drift away, get amalgamated and disappear, where do we see them and how do we judge whether the Minister has come to a good decision about comparative regulatory burden?
Baroness Neville-Rolfe (Con)
To make progress, I should make it clear that Clause 15 is the main clause and that there are a number of amendments on that group, on which we can no doubt have a longer discussion, but I should like to make progress on transport.
Lord Clarke of Nottingham (Con)
I understand the noble Baroness’s impatience, and she has been very generous and helpful. Did I hear her just a few moments ago, in response to an intervention, say that in each and every case, once a ministerial decision has been taken, the statutory instrument being repealed or amended will come to this House—which I assume means it gets the approval of this House and the House of Commons? How does the Bill provide for that in each and every decision, because it seems at the moment to give an enormous amount of ministerial discretion in its text? How can she guarantee that Parliament will have the last say over repeals and amendments in every case?
Baroness Neville-Rolfe (Con)
There is a sifting process. The regulations will come to this House. There will be some that people are entirely happy with, because they will be taking EU law and, perhaps, changing a date that is out of date. There will be others that are to be extended. There will be others where there is substantive change, where it is necessary to have consideration and debate.
Lord Clarke of Nottingham (Con)
So it will not be the negative procedure in every case?
Lord Kerr of Kinlochard (CB)
And there will presumably be some that the Government are going to abolish altogether, in which case, nothing will come to this House: we will never have the chance to express a view.
Baroness Neville-Rolfe (Con)
In fairness, the noble Lord is right: there is the scope for some sunsetting, but the direction of travel has very much been—
Lord Krebs (CB)
I seek clarification. Is it the case that Parliament can or cannot amend an SI?
Baroness Neville-Rolfe (Con)
The Government cannot amend an SI but they can debate one. We will debate these arrangements in our debate on a future group.
Lord Krebs (CB)
The question was whether Parliament can amend an SI, not whether the Government can amend an SI.
Baroness Neville-Rolfe (Con)
I think the Minister confirmed that Parliament cannot amend an SI. We can block an SI.
Lord Lisvane (CB)
My Lords, I direct the Minister’s attention to the Civil Contingencies Act. While she thinks about that, in view of the excoriating criticism levelled by a number of your Lordships’ committees at framework Bills, I also ask her to reflect on the irony of defending this beta-gamma piece of legislation on the grounds that it is a framework Bill?
Baroness Neville-Rolfe (Con)
I think we have heard a number of general points—I just want to maintain the level of humour. I therefore want to move back to transport and try to complete my response on these amendments.
Baroness Chapman of Darlington (Lab)
I agree that we need to get to specifics here and that progress is important, but I think that the Minister actually getting some answers for us is probably more important at this stage. On this issue of case law, specifically around seat belts, the letter from the noble Baroness, Lady Bloomfield, clearly states:
“Anything preserved will be subject to clauses 3-6 of the Bill which repeal retained EU interpretive effects.”
I interpret “interpretive effects” to mean case law. Am I right about that?
On this specific issue, the Minister has helpfully indicated that the Government intend to retain the measures on seat belts, as highlighted by the noble Baroness, Lady Randerson. But there is substantial case law on the wearing of seat belts by children when that can be a mitigating factor, for example when the seat belt is faulty or the vehicle is old. Many measures in relation to seat belts are dealt with by case law. What are the Government going to do about that?
Baroness Neville-Rolfe (Con)
I apologise to the noble Baroness, but in our debates on future clauses we are going to discuss in an orderly way how these interpretive effects are going to be kept, where appropriate. We can probably come back to this.
Baroness Chapman of Darlington (Lab)
I am sorry, but the letter clearly says that the interpretive effects are not going to be kept, hence why we are asking this question now.
Baroness Neville-Rolfe (Con)
Is the noble Baroness talking about supremacy and the general principles?
Baroness Neville-Rolfe (Con)
I am advised that the interpretive effects are not case law; I thank my noble friend on the Front Bench for that. I do not really want to cause more confusion on this important point. I will reflect on this and perhaps come back on it at the end of this debate or in a debate on a future amendment. I am clear that we have no intention of removing these safety requirements on seat belts. I will reflect on the question asked by the noble Baroness and come back on it as I do not want to cause confusion. There are two issues here: case law and interpretive effects. They are both dealt with in later amendments.
I will move on to Amendment 8. Where Ministers, including Ministers in the devolved Governments, see fit, they will have the power to preserve retained EU law from the sunset. This holds true for the regulations specified in Amendment 8 in the name of the noble Baroness, Lady Randerson. There is no need for a specific exemption for the regulations establishing common rules on compensation and assistance to passengers in the event of denied boarding or the cancellation or long delay of flights. If the Minister decides that preserving these provisions is in citizens’ best interests, that can be achieved by using the powers to preserve the legislation and to restate relevant retained law as appropriate, without carving it out from the Bill as a whole.
Similarly, in relation to Amendment 9, I assure the noble Baroness that the Department for Business and Trade has processes in place to review the Package Travel and Linked Travel Arrangements Regulations 2018 and will provide more details on this in due course.
Baroness Randerson (LD)
Can I have clarification, then, on why the Department for Transport consulted on removing or reducing the right to compensation of people flying internally if it was not a firm proposal from that department?
Baroness Neville-Rolfe (Con)
I thank the noble Baroness for raising that; I will have to take it up with the Department for Transport and get back to her.
On Amendment 24 in the name of the noble Lord, Lord Fox, the Road Vehicles (Approval) Regulations 2020 are part of the recently created GB type approval scheme. These regulations were made under Section 2(2) of the European Communities Act and therefore fall within the scope of the sunset as EU-derived subordinate legislation; they are essential to ensure that the GB type approval scheme can be enforced. The Department for Transport is committed to ensuring that our vehicle type approval scheme creates high standards of safety for vehicles and road users, is robust and will remain fit for purpose alongside future developments in road vehicles. We are developing an ambitious plan supported by evidence and engagement with our stakeholders to reform the way in which vehicles are regulated, creating an agile system that keeps pace with technological developments and innovation in a dynamic and rapidly evolving landscape.
I hope this provides some reassurance. We do recognise the importance of many of these regulations.
Lord Fox (LD)
I do not think the Minister was coming on to this point; if she was, I apologise. I asked a specific question about regulatory divergence. The Lord Privy Seal was clear that, going forward, the Government will put in place steps to avoid regulatory divergence with respect to the Windsor Framework. What steps are being put in place in this Bill to avoid regulatory divergence?
Baroness Neville-Rolfe (Con)
I thank the noble Lord. His was a general question; I was not going to seek to reply to it. Obviously, the extent of divergence that we might or might not have depends on different areas.
Baroness Andrews (Lab)
May I suggest an answer to the noble Lord’s question? One way of avoiding regulatory divergence would be to remove every common framework from this Bill because, if common frameworks are included and we lose part of the SIs that underpin them, the invitation to diverge in Wales, Scotland and Northern Ireland will be pretty impressive.
Baroness Neville-Rolfe (Con)
Again, we come back to individual decisions, although we have an amendment on the devolved Administrations later on; I hope we will reach it today. To respond to the noble Lord, Lord Fox, assimilation will be discussed fully in our debates on later groups.
On the comments from the noble Baroness, Lady Ludford, about whether the dashboard is authoritative, I can confirm that it is. This is because it has gone on an extensive, cross-Whitehall process and has been agreed at ministerial level. It is not comprehensive because, as noble Lords will know, the process is still ongoing. We have made a promise to update the dashboard accordingly as we go along; the next update is planned for spring 2023.
Baroness Ludford (LD)
I still do not really understand the difference. How can it be authoritative if it is not comprehensive? That mystery will have to live with me for the rest of the day, I suppose. Can the Minister tell us when the list will be comprehensive? When will the Government say, “The list is now, in our terminology, comprehensive”?
Baroness Neville-Rolfe (Con)
We can confirm that it is authoritative. The version that will come out in the spring—the next version—will be authoritative. The comprehensiveness of it will come when the archives have finished their process and so on. A lot has been made of this point, frankly. The key regulations are on the dashboard; for me, the key thing that matters is what departments do with them.
Viscount Hailsham (Con)
Can my noble friend confirm that there will be consultation?
Baroness Neville-Rolfe (Con)
If we have new regulations then the normal form in departments is to consult on them.
Baroness Wheatcroft (CB)
The Minister says she can confirm that all significant regulations are on the dashboard, because it is authoritative. However, if it is not comprehensive, and work is still going on to see what regulations should be on the dashboard, how can she confirm that all the important regulations are there?
Baroness Neville-Rolfe (Con)
Departments have been looking at these regulations for a number of years. Some time ago, when I was previously a Minister, I was looking at the regulations to see how they might be changed post Brexit. I have tried to explain that we have 3,700 regulations. They have been gone through and most of the regulations are there, but we are also looking with the National Archives to see if there are others. If they are known only to the National Archives, the chances of them being really important is—to express a personal view—probably quite small, but of course I could be proved wrong.
Lord Thomas of Cwmgiedd (CB)
On a technical, legal point, it would be helpful if the Government could set out the methodology that they have used to ensure that everything—whether it be by directive, by tertiary legislation or by any other way—has been identified. A detailed analysis of the methodology would be extremely helpful because we need to know how it has been done to know what level of assurance we can have in it. I have tried it myself and found it quite difficult. I would like to know what has been done. It obviously cannot be done now, but a detailed methodology would be very helpful.
Baroness Neville-Rolfe (Con)
As always, the noble and learned Lord is very helpful. I will think about that and about what we can say about the methodology that has been adopted. It is helpful that he mentioned that it was not the easiest thing for him to find this. That is confirmatory.
Baroness Chapman of Darlington (Lab)
Perhaps I can assist the Minister. We had an informative round table yesterday, convened by the noble Lord, Lord Callanan, where we were told that the methodology involved going to the National Archives and doing a keyword search for “Europe”. The noble Lord, Lord Callanan, shakes his head, but that is what we were told at the meeting. The Minister will forgive us if we do not have the utmost confidence in the process that has been undertaken.
Baroness Neville-Rolfe (Con)
I am sure that they were trying to make a helpful point. We have got to help one another to get through this. I have undertaken to look at what is being done about methodology and the approach that has been adopted in one area. A plethora of wide-ranging points has been raised, including on consultation, which we will come on to in one or two of the later amendments. We have discussed transport. With this in mind, I ask noble Lords not to press their amendments.
Lord Collins of Highbury (Lab)
The Minister raised the question of aviation. It is one of the most serious points here because it is about business confidence, consumer confidence and consumer protection. The problem I have, and which she can take back to the Department for Transport, is this. We had a consultation that started at the beginning of last year on changing levels of compensation. Ideas were thrown up in that about reducing it substantially for domestic aviation. We had a summary of the responses published in July last year, and nothing from the Department for Transport about what its true intentions are. That raises serious issues about what the Government’s intentions are around the EU regulations that protect us all when booking holidays abroad next year. I hope that the Minister can go back to the Department of Transport and ask to be told what the true intentions are. People need to know. The simple fact is that this Bill and these clauses create huge uncertainty for a very vital industry of this country.
Lord Fox (LD)
The presence here of the noble Lord, Lord Benyon, is a good indicator of what we will get in the next group: the appropriate department covering the appropriate amendments. These amendments were not put down yesterday. This is not a letter that you receive from a Minister—we gave warning of these amendments. A Minister from the relevant department, the Department for Transport, should and could have been here to answer the questions, instead of a Minister saying, “It’s not my department. I can’t answer”. I am pleased to welcome the noble Lord for the next group but perhaps, as a lesson going forward, we could have the right Ministers here.
Baroness Andrews (Lab)
We have been searching for some clue as to the criteria for what will be retained and what will be revoked, but we have not had any clarity—hence these hours of debate on safety of seat belts and so on. The Minister used the term “unnecessary” regulations and, in the famous letter, we have the line:
“For example, through removing unnecessary or unsuitable regulations or consolidating multiple regulations into one, it will be possible”,
and so on. Can we have a definition, in writing, of what the Government consider to be an unnecessary or unsuitable regulation? That may give us a clue as to the direction of travel on which regulations will be kept and which will be lost.
Baroness Neville-Rolfe (Con)
I thank the noble Baroness for another general question. On transport, the DfT published the Aviation Consumer Policy Reform consultation in January 2022. I did not labour the Committee with all the material on that, but I am very happy to talk to the noble Lord, Lord Collins, about it separately. It included proposals relating to enforcement of aviation consumer protections, redress for breaches of consumer rights, and reforms to compensation for delays and for damaged wheelchairs and other mobility equipment—which I get postbags about—allowing us to consider what works best for the UK domestically, for consumers and industry. We are considering our responses and will respond to the consultation shortly. This is a concrete review and reform that we can look at. I am sure that we will move things forward in an appropriate way.
With the agreement of the Committee, I ask the noble Baroness to withdraw her amendment.
Lord Kerr of Kinlochard (CB)
I do not think that the Minister gave a substantive answer to the point that I raised. I am happy that there should be no substantive answer now provided that we get one at some stage today. I asked what parliamentary procedure, approval and scrutiny will be available where, having done the sift and the consultation, a Minister decides—perhaps because he is interested in removing obstacles to efficiency, productivity or profitability—that a piece of our law should be abolished? What procedure will enable Parliament to debate that decision? The idea that the gentleman in Whitehall knows best, to coin a phrase, was one that I thoroughly approved of when I worked in Whitehall; I have slightly gone off it now.
Baroness Neville-Rolfe (Con)
It is the gentlemen and ladies in Whitehall and in the European Commission. If I may, rather than prolong this discussion, I will reflect on the point that the noble Lord has made.
Viscount Hailsham (Con)
The noble Baroness could say that the Government will support Amendment 32, which would enable Parliament to have a word in the matter.
Lord Wilson of Dinton (CB)
I have listened to this debate and some important points are still left in the air. I may be slow, but there is an awful lot that I still do not understand, which needs to be resolved. Would it not be better—I have said this before—for the Bill to be withdrawn and for the Government to do the work and then come back and tell us what they want to keep, abolish and amend? If they cannot withdraw the Bill, put it on ice. We have a good precedent for putting Bills on ice. Why do the Government not do the work, rather than trying to grapple with questions that are almost unanswerable?
Baroness Neville-Rolfe (Con)
We will try to answer the questions of your Lordships’ House. I am conscious that the Bill went through the other House very quickly.
Lord Carlile of Berriew (CB)
I do apologise for intervening again, but would it not make sense for us to debate the group starting with Amendment 32 before we debate the granular amendments in the next three groups? That group deals with issues of principle that could resolve the complaints that are being made.
Baroness Neville-Rolfe (Con)
We have debated issues of principle, notably at Second Reading, when noble Lords made some very important points. We are going through the Bill and will get to these various points. I have been trying to focus on individual subject areas and would like to move on to the next, because my noble friend Lord Benyon has been sitting here patiently, ready to talk about the environment. We have noted the tenor of the debate and I thank noble Lords for their contributions.
Baroness Randerson (LD)
My Lords, I think this is a case of “follow that”. I thank all noble Lords who have taken part in this debate, starting with my noble friend Lord Fox, who quoted the gem of ministerial gobbledegook about the status of the dashboard; it is an “authoritative catalogue”, not a “comprehensive list”. I have had time to look it up in a thesaurus and I do not want to disappoint the Minister but a catalogue is a “complete list of items”.
The noble Baroness, Lady Thornton, referred to the importance of consumer confidence, which I was attempting to draw attention to in the precise details I included in my amendments.
The noble Lord, Lord Deben, referred to the importance of case law. I greatly regret that the Government have got themselves so far on the back foot with the Bill that there was an attempted ministerial intervention to shut down the debate and force him to draw his comments to a close. This was of course rather ironic, given that we have not been provided with a specialist Transport Minister on the Front Bench to answer on the specific transport issues that I was trying to raise. I have some sympathy with the noble Lord, Lord Deben, in his crisis over his Conservative identity—but that is not my business.
My noble friend Lady Ludford made some important points about identifying what is actually EU law. We will come on to this later, but there are some real doubts about what law is EU law, because it has been incorporated into other aspects of our law.
I sympathise with noble Lords who suggest that the Government should give themselves a break, park the Bill for a few weeks and work out how it will work before they bring it back. I would like it to go altogether, but I am trying to take a reasonable line, from the Government’s point of view.
The noble Lord, Lord Krebs, suggested that the letter we had was a spoof. One reason why the debate has been as it has is that that letter was designed to raise far more questions than provide answers.
The noble Lord, Lord Collins, also referred to the issue of confidence. I assure him, from evidence that came to the Common Frameworks Scrutiny Committee, that it was pretty evident that National Archives did a word search to find the list. It is no good noble Lords shaking their heads; that is how National Archives got to the list.
Member’s explanatory statement
This amendment excludes the Conservation of Habitats and Species Regulations 2017 from the sunset in Clause 1. The Regulations provide protection for nature and special habitats.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I rise with some trepidation, because I am at a disadvantage from not having been here for day 1 of Committee. I feel that there is an element of Monty Python about this—and now for something completely different.
I will speak to Amendments 10, 11 and 12 in my name and briefly to Amendment 37, in the name of the noble Baroness, Lady Hayman of Ullock, to which I have added my name.
There are an estimated 1,700 pieces of legislation that Defra will have to review by the end of December this year. Some will go into the retained, unamended pile; some will go into the likely to be amended pile; and some will be scrapped or abandoned altogether. This is a mammoth task for Defra.
Environmentalists in the country are extremely unhappy about the lack of detail in the Bill. Members of this Chamber are concerned that, given the short timeframe, some essential pieces of legislation will be lost. There is currently little clarity on which pieces the Government are planning to retain, scrap or amend. On all sides of the Chamber, Peers are seeking to exclude legislation that is vital to the environment of our country from this sunset deadline. The Conservation of Habitats and Species Regulations, the Bathing Waters Regulations and the Water Environment (Water Framework Directive) (England and Wales) Regulations—from Amendments, 10, 11 and 12 respectively—are three such pieces of legislation that must be preserved at all costs.
The habits and species directive is a crucial tool for environmentalists and local authorities attempting to preserve wildlife for future generations. Having sat in planning meetings on major housing developments, I know that it is vital that measures are taken to ensure the protection of habitats of local and nationally scarce species during and after development. The great crested newt, the English dormouse and the various species of bats in England will not survive if their habitat is not considered at an early stage of planning and through implementing developments.
There are developers who will seek to gloss over the presence of rare wildlife, but the wise community-based developer adheres to the planning conditions. If the habitat directive is jettisoned or watered down, biodiversity and wildlife will suffer. Once a species has become extinct or a rare orchid is lost, that is it: there is rarely any coming back. The current law protects them and hundreds of other species, and it is vital that this protection exists into next year and beyond.
There is a danger that we could enter open season for developers. Our biodiversity has already been drastically reduced; it is years since I saw a bullfinch in the wild. We cannot afford any more biodiversity loss. It has to be halted and reversed; otherwise, what were our natural species will suffer the fate of the sabre-toothed tiger and be confined to glass cabinets in museums.
The noble Duke, the Duke of Wellington, recently spoke in the Chamber about the bathing water directive, the inadequate quality of bathing water and the ill health that surfers around our shores suffer due to sewage pollution. We have seen professional surfers leaving our shores to resume their sport in Spain. The loss of the income from those who enjoy surfing or wild swimming is significant for our coastal communities, which are often reliant on the summer tourist trade to get them through the winter.
Closely related to Amendment 11 and the bathing water directive is Amendment 12 on the water framework directive. The quality of water flowing through our waters is essential for biodiversity protection. The River Parrett in Somerset flows through several areas of ecological interest and supports various rare and endangered species. It is a favoured leisure venue for recreation and has a long walking trail from source to sea. Eels and other wildlife can be found along its banks. Chemical pollution is a threat not just to the Parrett but to all rivers. The water framework directive currently provides some protection for this area and the iconic Somerset Levels. It is important to have an integrated approach to the protection of our rivers, waterways and canals. A siloed approach may help to protect specific areas, but other areas could suffer.
It is important that these directives appear in the Bill. In her Amendment 37, the noble Baroness, Lady Hayman of Ullock, has listed those amendments that she believes could be lost in the general Brexit clear-out of legislation, which would have a devastating effect on our way of life and environment. These range from the REACH Enforcement Regulations to the Welfare of Animals (Transport) (England) Order. I look forward to the debate on this important amendment and fully support the noble Baroness, Lady Hayman.
There is currently little information about the costs and impacts of implementing the Bill. The task of filtering 1,700 pieces of legislation is colossal, and many laws could be lost by default. The Minister has indicated that there are some laws that we no longer need and are no longer applicable. It is important that this House knows what these are. Can the Minister say whether Defra is able to provide a list of those laws to be retained unamended, those to be amended and then retained, and those it believes are no longer functional in the UK, as well as the methodology involved? Other noble Lords have raised this issue.
Yesterday, along with the noble Lord, Lord Callanan, the Minister helpfully provided a briefing in which he emphasised his and the Government’s support for the 25-year environment plan and all the strategies and plans that fall under it and support its implementation. No one can doubt the Minister’s desire and enthusiasm for implementing fully the 25-year environment plan, but unfortunately the noble Lord is unlikely still to be a Minister by 2030—perhaps he would have preferred it if I had said 2050. It is not unknown for Governments to give commitments from the Dispatch Box and for later occupants of posts to reverse those commitments. Sadly, one such case was the promise to provide compensation to the Windrush community, which had long campaigned for and very much welcomed the compensation, only to have this promise reversed under the current Home Secretary.
It is not that we do not have confidence in the Minister. Experience has shown the House that, in order to have full confidence that the Government will do what they say, there have to be clauses in the Bill to ensure legal protection. Will the Minister agree to Amendments 10 to 12 and the request for these directives to be in the Bill?
If the sunset deadline of 23 December is not extended for the Conservation of Habitats and Species Regulations, the Bathing Waters Regulations and the Water Environment (Water Framework Directive) (England and Wales) Regulations, I very much fear that the guillotine will fall, quite literally, on the great crested newt, the English dormouse, the blue fritillary butterfly, the water vole and other species. These will then disappear from our landscapes altogether, along with those who used to enjoy surfing and wild swimming. The Bill appears not to be fit for purpose. I beg to move.
Baroness Hayman of Ullock (Lab)
My Lords, I rise to introduce my Amendment 37. I thank the noble Baroness, Lady Bakewell, for her excellent introduction to her amendments and for leading our debate on this important subject.
Amendment 37 sets out a list of the most significant environmental and animal welfare laws that the Bill currently covers. The regulations listed in the 21 proposed new paragraphs (a) to (u) demonstrate the wide range of environmental and animal welfare protection legislation that comes within the scope of the Bill. The noble Baroness, Lady Bakewell, mentioned the habitats directive, the Bathing Waters Regulations and the water framework directive in particular. We support her amendment.
Baroness Parminter (LD)
My Lords, I added my name to a number of amendments in this group. I am sure we do not want to repeat the arguments from previous groups, but the reason why we have put these amendments down is that these regulations are the fundamental building blocks upon which our environmental protection is based, and has been based for the past 50 years. If this Government are serious, as I am sure we all hope they are, about meeting the stringent environmental targets they have set and which we need to restore our nature, then we need these protections in order to take that forward. We will not meet our environmental targets if we do not have these building blocks, which have been correctly identified by my noble friend Lady Bakewell and the noble Baroness, Lady Hayman.
I do not want to repeat arguments already made and I am sure that others will want to flesh out why these particular environmental laws are so important. I just wish to make two points. First, I am sure that the Minister in his summing up will say that we do not need to worry—we do not need to have anything excluded and taken out of the sunset clause—because the intention, the default position, is to retain. We have heard him say that, and we have heard the Secretary of State on this. We have a number of members of the Environment and Climate Change Committee here. The Secretary of State for Defra came to our committee in November and made that very point: that the default position of the department is to retain. However, in her very next sentence she said that there was an opportunity to “do things differently.” She was talking about the water framework directive.
People in this Chamber, and environmentalists, are not against amending regulations. If the scientific evidence changes or the evidence from business shows they are not working or that consumers are not getting what they need, we are not against amending regulations. The trouble is that what was meant by “doing things differently” is what it is in this Bill: it is not a proper process of scientific evidence with the chance for Parliament to be consulted; it is just given to Ministers to do things on a whim.
What I particularly find offensive about that—this is my second point—is that we in this House spent weeks debating the then Environment Bill in 2021. We all agreed that three directives mentioned today—the habitats, REACH and water framework directives—might need amending. The evidence might change, and we all know there are some problems; developers are saying that there are some issues. Nothing is perfect and we are not against change. We signed up to clear processes in that Bill, which is now the Act, for those three pieces of legislation. It set out that there would be a consultative process—an open process with all stakeholders—which would look at how the legislation could be amended. That is completely ignored in this Bill’s process, which is a closed-door process in Defra.
More importantly, Section 112 of the Act says two things about what should happen were the Government to wish to amend the habitats regulations, which, as we all agree, were one of the foundation blocks for our environmental protection. Subsection (8) says:
“Before making regulations under this section the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (7).”
In other words, Parliament gets a chance to see why those regulations are needed and can have a say on them before they become regulations. I beg the forgiveness of the House; we are going back to a point we discussed in the previous group: that Parliament has absolutely no say before the regulations are laid.
The second, more important, thing in my mind, is with regard to amending the habitats directive, which, again, I think any of us would say is great but not perfect. Subsection (7) says:
“The Secretary of State may make regulations under this section only if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations.”
There is a non-regression clause in the Environment Act about the habitats directive.
This Bill is nothing like that; there is nothing about deregulation. My noble friend Lord Fox made the point so well previously in relation to the comment by the noble Lord, Lord True, on the very welcome Statement yesterday about Northern Ireland. If we get deregulation, we will diverge from Europe. With respect to all those people saying that their paints rely on the REACH regulations, and those using all the other directives and laws now being transposed—as the noble Baroness, Lady Hayman, mentioned—if there is deregulation, there will be divergence. They will not be able to sell their products and that will be to their detriment.
This is not just about the environment. Unlike those of us who are passionate about the environment and want to save the red kite, the bittern and the otter—as the habitats directive has directly done for the last 50 years—if some noble Lords are not fussed about the environment, that is fine. But by not exempting these from the sunset clause, if there is divergence, we will stop British businesses being able to do what they need to do and export. This Bill does not have a clause that guarantees that there will not be a lower level of protection for the environment. That is why I oppose it so much and why it is absolutely right for the noble Baroness, Lady Hayman, and my noble friend Lady Bakewell, to say that it should be exempted from the sunset clause.
Lord Krebs (CB)
My Lords, I added my name to Amendment 37 in the name of the noble Baroness, Lady Hayman of Ullock. I wish to say a few words about it and about the other amendments in this group, which I also support. First, I agree with the noble Baroness, Lady Bakewell of Hardington Mandeville, that none of us in this Chamber doubts the commitment of the noble Lord, Lord Benyon, to environmental protection and supporting the cause that we all passionately believe in, and I congratulate him on his commitment to the environment.
However, we are nevertheless worried, for at least three reasons. First, not everybody in the Minister’s party necessarily shares his commitment to the environment. We all think back to a previous Tory Prime Minister, who referred to certain environmental protections as “green crap”. I am sorry if that offends noble Lords’ ears but those were the words that he was reported to have used. We are not sure that everybody will share that commitment.
We are also worried about the number of pieces of legislation that fall under Defra’s umbrella; the figure that I have been given is 1,781. That seems a bit of spurious precision given the earlier debate about the uncertainty in the number; although it was described as a catalogue, it is not actually a catalogue on the dashboard because it is incomplete. As the noble Baroness, Lady Hayman, has said, there is a lot of legislation that Defra has to deal with. Amendment 37 is just about a small sub-sample.
The third point that keeps our worry levels up is the continuing gap between rhetoric and reality. While a lot of warm words are said about environmental protection, the “greenest Government ever” and how we want to leave the environment in a better state than we found it, the reality is in many cases very different. Whether it is the quality of our rivers, sewage in other coastal zones, loss of biodiversity or air equality, in all those areas we are not doing as well on the ground as the rhetoric would lead us to believe. That was clearly brought home in the recent report of the Office for Environmental Protection, the watchdog that is meant to snap at the heels of government.
That is why we need some reassurance that environmental protections will not be lost down the back of the sofa. I will give a couple of examples. One— I thank Greener UK for it—concerns a current application for the Ashdown Business Park in Maresfield, at postcode TN22 2HN. It is on the edge of the Ashdown Forest special protection area and special area of conservation, so is an ecologically important area. The ecological impact assessment says that you would need an appropriate assessment under the habitats directive and the habitats regulations. That is the kind of warning light for the development. However, under the heading of “Current Uncertainty Regarding Planning Applications”, the report goes on to refer to the Levelling-up and Regeneration Bill, saying that, at the same time, the UK government is pressing ahead to remove and replace European Union law on the British statute under its planned retained EU law Bill, currently at the amendment stage within Parliament.
What we are seeing there is concrete evidence that the uncertainty created by the Bill is already having an effect on, potentially, the protection of key habitats in this country that are currently protected under the habitats directive and regulations. That is why it is really important that the Government say, “No, we are not going to change those; no, we are not going to get rid of them. You still have to follow them.”
My second example refers to the fact that environmental protections are not just about tree hugging, red kites and dormice; they are about human health, because our health is intimately connected with that of the environment. The air that we breathe, the water in our rivers and the pesticides that are used on our farms can all impact on our health. We are talking here not about just about the environment but about human health. I am sure that most if not all members of the public would be horrified to think that there was any risk of diluting protections to their health as a result of the Bill.
I want to mention one concrete example that I heard about this morning. I put it in the form of a question to the Minister. He may not be able to answer it today because it is a bit of a curveball, but he may be able to write to us. It concerns environmental noise. The World Health Organization estimates that in Europe 100 million people suffer ill health as a result of environmental noise, and 1 million healthy life years are lost as a result of exposure to environmental noise. I was told this morning that there are EU regulations that require member states to map environmental noise in their country, which we are doing. However, since we left the EU, there is now an additional requirement to map the health impacts of environmental noise, but because we have left we are apparently not doing that. I would like the Minister to confirm or deny that assertion which I heard this morning. That would be a small example of how, as we slide away from EU standards, there is a danger that we will lower our protections for the environment and, importantly, for human health at the same time.
Lord Hope of Craighead (CB)
My Lords, I am very glad that the noble Lord, Lord Benyon, has found time to join us for the debate on this group of amendments. If he will permit me, I would like to take advantage of his presence here to ask him two questions.
The first relates to the dashboard, and I think he was present for at least some of the debate about that. One of the points made by the noble Baroness, Lady Randerson, in concluding was that there is no mention in the Defra section of the dashboard of any legislation relating to Scotland or Wales. She was not entirely right about that; I was looking at the dashboard today and I detected 30 entries that refer to Scotland and 15 to Wales, but they are all in the section of the Defra list that deals with agricultural policy. There are many other areas that Defra covers, but, so far as I can detect, none of the legislation from the devolved Administrations has yet been listed on the dashboard. Is Defra still making efforts to discover from the devolved Administrations whether they have legislation relating to the other areas for which it is responsible? It is very important that we have a complete list, at some point, of the legislation in the different policy areas.
My noble friend Lord Krebs suggested that the figure that he gave, which I think was 1,781, was slightly doubtful. The figure can be arrived at by simple arithmetic because each item in the list is given a number, and you can work down the list. The total list at the moment contains 3,746 items. I made the number of Defra items 1,780—although perhaps my arithmetic was a bit defective—so that is a major part of the list so far, which is why the Minister’s presence here is so important. Completing the list at some point is important, so is the Minister aware of other areas where the devolved Administrations are working to complete the list to include their legislation as well?
The noble Baroness, Lady Hayman of Ullock, suggested the great pressures that Defra officials were under to achieve what they are being asked to achieve, but what she said applies equally to the devolved Administrations. I understand that for Scotland to try to grapple with the Defra area so far as it refers to it, its manpower—or its workforce, I should say, to avoid gender problems—is at most 10% of that which Defra enjoys, and they have pressures of their own. They have work already going on which is under extreme pressure. Now, on top of that, we find that they have to detect where the retained EU law measures are that have to be looked at, so there is an immense problem for them. My supplementary to the dashboard point is: is the noble Lord satisfied that the devolved Administrations can achieve what they need to in order to identify the legislation in the other policy areas, and in a reasonable time to achieve the sunset? My impression at the moment is that they are under such pressure that it is highly unlikely they will be unable to do that.
The second question is rather different and relates to common frameworks. The Minister may be aware that of the 32 common frameworks that the Common Frameworks Scrutiny Committee has been dealing with, under the chairmanship of the noble Baroness, Lady Andrews, 14 are Defra-related. At least some of them seem to deal with areas that are within the list that the noble Baroness, Lady Hayman has concocted—“concocted” is the wrong word; I should say “put together”—including chemicals and pesticides; animal health and welfare; fertilisation regulation, which of course affects water quality; and the whole area of organic farming, agricultural support and so on. Can the Minister identify for us which of the items on the noble Baroness’s list fall within a common framework?
We have amendments later dealing with the need for special treatment of common frameworks because of the way in which they are organised and the system that exists for amendments to frameworks that are achieved by consensus. It is important that we know what we are dealing with. At some point we will have to know which of the various regulations on the Defra list are within common frameworks and which are not. Is it possible for the noble Lord to conduct an exercise to look at his list to identify which are common frameworks-related and which are not? I do not expect him to be able to achieve that today, but it would be extremely helpful to us on the committee chaired by the noble Baroness, Lady Andrews, to know what we are dealing with, particularly with regard to the amendments that we will discuss later on.
Baroness Young of Old Scone (Lab)
My Lords, I declare my interests as chairman, president or vice-president of a broad range of environmental NGOs. I too welcome the presence of the noble Lord, Lord Benyon, and look forward to his responses.
I support Amendment 10, in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville, on excluding the habitats and species regulations from the sunset clause. As the noble Baroness, Lady Parminter, said, the habitats and species regulations are fundamental to protecting sites and biodiversity in this country and environmental protection generally, and cannot be put at risk at any price.
Protected sites under the habitats regulations are the special areas of conservation and special protection areas. They are really the jewels in the crown of nature conservation in this country. They cover a tiny proportion of the land surface, less than 5%. I would be of the view that the jewels in the crown deserve a high level of protection. The regulations have been very effective in reducing loss and damage to protected sites over the last 20 years. It used to be that on average 17% of our protected sites were damaged every year. We are now down to 0.17%, which is admirable.
Those regulations were developed by Brits in the EU. The RSPB, BirdLife International, the WWF and Stanley Johnson, the former Prime Minister’s father, all worked with the Dutch and other member states. This is not unwelcome EU regulation that was forced on us but proper, welcome protections that were crafted by Brits, and rightly so, for those important sites.
Proper protection for that small number of ultimate sites and species is vital, because they make what we care about in the countryside, and what is special in the countryside, safe. If all noble Lords think of the natural and wild places that they cherish, many of them will be special areas for conservation or special protection areas under the habitats regulations.
The Duke of Wellington (CB)
My Lords, I apologise to the House that I was not able to speak at Second Reading as I could not be sure of arriving in time on that day, and that last week I was in Madrid on a parliamentary delegation and therefore missed the first day in Committee. I now wish to speak to Amendments 11 and 12, which I would happily have signed. I repeat the gratitude we all feel to the Minister, the noble Lord, Lord Benyon, for being present today. The previous debate would, I am sure, have been helped enormously by the presence of a Minister from the Department for Transport. However, we do have the noble Lord, Lord Benyon, and we all recognise his commitment to the environment and strong credentials in this area.
I suspect that the debate on this group could have been avoided if, at the very beginning, the noble Lord, Lord Benyon, had simply announced that all these directives would be retained. I was one of those who attended the briefing session yesterday afternoon, where he began by saying that his default position was indeed to retain. If that is true of all the different directives referred to in these amendments—Amendments 10, 11, 12 and 37—there is no need for us to be discussing them this afternoon. However, I fear that may not be the case. If it is the case, it should be in the Bill and then we need not be concerned. If it is not the case, we really must argue very strongly for some adaptation of these directives—and indeed improvements, because the Government have repeatedly said that they wish to improve and not reduce environmental protection.
Specifically on the bathing water regulations, for example, I seem to remember that Britain was rather embarrassed, many years ago, to be told by the EU that the state of our beaches made them some of the worst in Europe. That came from the EU and then public opinion became more interested in the subject, and indeed was very supportive of any attempts to improve the state of our beaches. Yet we find repeatedly —it is still going on—that sewage is discharged into coastal waters on and around our beaches. It is a complete disgrace and I would be worried that repealing the bathing water regulations would, in some way, weaken the determination of the Government to clean up our beaches. I genuinely believe that the Minister does wish to clean them up; therefore, why would we possibly repeal the bathing water regulations?
Similarly, on Amendment 12 about the water frame- work directive, we have had many debates in this House on our aquatic environment. There was a very strong feeling across the whole House that we had to tighten up all the regulations about sewage discharges. That was supported by the public in an extraordinary way. Again, I would be worried—maybe the Minister can reassure me—that repealing the water framework directive could, in an unintended way, weaken the determination of the Government and regulators to put a stop to discharges of sewage on to beaches and into our rivers.
Finally, on Amendment 37 I commend the noble Baroness, Lady Hayman, on drawing up this list; I am sure she did it with expertise and knowledge far greater than my own. Looking at the list, I am very much of the view that there are some important regulations on it. I cannot possibly imagine why we would, for example, repeal the urban wastewater treatment directive. However, I look forward to the Minister telling me that my concerns are unfounded. I therefore hope that, in winding up this section of the debate, the Minister will be able to confirm that all the various directives referred to in this group will be retained or improved.
Baroness Lawlor (Con)
My Lords, I am grateful to noble Lords for raising some of these important subjects, which we must think about very carefully. I do not share the assumption that divergence necessarily is for the worse; it can be for the better. I am not entirely sure that the EU regulations now in place are necessarily the best for the jobs they intend to do.
I will take one example from the many that noble Lords have raised. I share concerns on the protection of wild birds, habitats, wild mammals and clean bathing water, but I ask your Lordships’ Committee whether it is really the case that these regulations work as we all wish they would. In the country with which I am most familiar, our nearest neighbour, I am constantly very disappointed to see the sale of wild birds in cages—and, even worse, some wild mammals—to the pet market.
Where I differ from many in your Lordships’ Committee is that I believe the laws protecting these matters are shaped by the people of this country and the culture. I have no evidence because I have never seen caged wild birds on open sale in pet shops here, but I do not believe that the people of this country would tolerate such a thing. They will be responsible for making the laws of this country. I have every confidence that, where the laws do not work in other countries, such as our neighbours—countries I have a great respect for in many other areas—the people of this country will do well by the wildlife that they believe they are custodians of.
Lord Trees (CB)
My Lords, I am particularly interested in and concerned about several regulations on animal welfare cited in Amendment 37. I seek clarity from His Majesty’s Government on their intentions regarding these. I welcome and thank the Minister, the noble Lord, Lord Benyon, for his presence. I welcome his clarification in the briefing—sadly, I was not able to attend—that retention would be the default position. I am sure he will forgive me for probing and asking for a bit more detail on some of the key regulations.
The first thing I will highlight is REACH, mentioned by the noble Baronesses, Lady Parminter and Lady Hayman, which protects us all from potential toxicity in chemicals to which we might be exposed, and which involves animal testing. I can accept that in some circumstances it may be necessary to use animals, but it must always be justified and we must minimise animal use as much as possible. Will His Majesty’s Government keep the REACH regulations or their equivalent? If so, will they ensure that there is mutual recognition between the UK and the EU of animal testing protocols and data sharing to avoid the duplication of animal testing, which would be seriously detrimental to animal welfare and a serious impediment and financial burden to industry trading in chemicals?
Lord Inglewood (Non-Afl)
My Lords, forgive me declaring my interests in the register—I am personally an environmental sympathiser. I will briefly talk about land. It is obvious, but sometimes overlooked, that every square inch of this country belongs to somebody. Therefore, every square inch of this land has to be managed by somebody. The legislation seriously affects land of all types everywhere, regardless of whether it is owned by the National Trust, the Church of England, a great duke, a pension fund, a small farmer or a speculative builder.
If you are managing land, you need certainty and you need to know the framework within which you are operating. What is proposed in the Bill, as it was described this afternoon, is precisely the opposite: we are looking into a void of not necessarily even uncertainty but a lack of knowledge. If we were talking about the commercial activities in the City of London, it is inconceivable that anyone would seriously suggest that this approach to dealing with this kind of problem was sensible and in the national interest. If you are going to effect change of the kind we are discussing, you need lead times for people to adapt what they are proposing to do—land management is a long-term business—and to therefore get themselves in a position to respond and operate in the world that is coming into effect.
Of course, as the noble Baroness, Lady Lawlor, said, it is not necessarily that we cannot introduce legislation in this country to improve environmental controls and protections—we are and will continue to do so. Indeed, the same will happen on the other side of the channel in the European Union. As an aside, it is worth remembering that a lot of this legislation is part of the single market. If we are to continue to export into the single market—albeit that there may be certain greater formalities through which we have to proceed—and if we manage to tweak our environmental legislation in certain minor respects, we may find that we are excluding a considerable amount of exports for no material advantage to our nation’s economy.
Finally, against this background, the way the mechanism of the sunset clause has been introduced in the Bill has rightly been excoriated by almost every speaker. It is far too short, quite apart from anything else, and it does not provide for any form of parliamentary control or consultation. One of the interesting characteristics of environmental legislation over the last few years and decades has been the value of consultation: you end up with better legislation, which benefits everyone affected.
In simple terms, people in this country who are in control of and managing land need to know the rules of engagement in order to operate the best that they can. The Bill proposes something that does not enable them to do that.
Viscount Stansgate (Lab)
My Lords, this is a very unsatisfactory and frustrating Bill in which to take part. I am sorry that I missed most of the first day of Committee—I was on a committee visit—but I have listened to a great deal of the debate, and I was present in the Chamber on Thursday to hear the remarkably idiosyncratic triage description of my noble friend Lady Young of Old Scone. Like other Members, I listened to some of the exchanges on the previous group, which show that the Bill is being done in the wrong way and should be withdrawn. At the very least, the deadline should be put back several years so that we do not inflict upon ourselves the harm that we are about to.
I point out that the Environment Minister, who is with us today and for whom I believe there is an enormous amount of good will around the Committee, will nevertheless have a very difficult job to persuade the Committee that his department has the sheer capacity to process the large number of regulations that are covered by the Bill.
I will speak strongly in favour of Amendment 37, ably spoken to by my noble friend from the Front Bench. Of course, that list is very good—she said it was not exhaustive, and that is certainly the case. I add my voice to that of the noble Lord, Lord Krebs, who is not in his place but lurking, on the importance of the REACH regulations, for example. For Members who do not know, this is an enormous and substantial body of work that was in fact the largest piece of legislation ever considered by the European Parliament, for a very good reason: it is really important and covers such a wide range of areas. To adapt the phrase used by the noble Lord, Lord Krebs, it is about human health as much as anything else.
I would be happy to vote for Amendment 37 but, to be quite honest, even if I did and it passed, would it be the complete list of all of the environmental protections that we want to see retained? Would it fulfil the Minister’s own commitment, which I am sure that he will make from the Dispatch Box, that the Government remain committed to supporting environmental legislation? The best thing that the Minister can do, apart from withdrawing the Bill, is get up at the Dispatch Box and say, “Amendment 37 is very good and I support it, but it leaves out all of these other measures that I have unearthed by Google-searching the National Archives. If we want to be a Government and Parliament that fully support the environmental legislation that we are so proud of, I would like to add the following range of other matters to the amendment”. We could then perhaps make a better attempt at improving what is, I am afraid, a very bad Bill.
Lord Cormack (Con)
My Lords, I apologise for not being present for very much of the Second Reading— I had other parliamentary duties.
We have had some very wise, brief speeches just now, from the noble Viscount, Lord Stansgate, and my noble friend sitting behind me, who made a very good brief speech. Various things stand out. It is never good to legislate by deadline. When you are dealing with such a vast amount of regulations—some complex, some simple —to say that all of them have to be effectively expunged by the end of the year, apart from some that may be retained, is not a sensible way to behave. It places an enormous burden upon Parliament and places enormous power into the hands of Ministers.
I share the respect and affection that people feel for my noble friend Lord Benyon, whose father and I entered the House of Commons on the same day, way back in 1970, along with my noble friend, Lord Clarke of Nottingham, who is with us this evening. He was an environmentalist par excellence, and I know that his son has inherited his love for the countryside and his determination that it should be properly preserved and used.
Many of the directives listed in Amendment 37 are of great importance. We have to remember—I do not want to cross swords with my noble friend Lady Lawlor, who made one very good point about the selling of caged birds—that we do not have the best record in this country. On loss of species, you have to look only at what were very common birds when I entered the House of Commons, such as the starling and the sparrow and many others. Some of them are hanging on by a thread. The wonderful counterexample of the red kite is not unique, but not many fall into that category. It seems very silly to decide that the Bill has to go through in this form.
We had a very good example yesterday of the Prime Minister realising, after painstaking negotiation, that the protocol Bill, which many of us in this House opposed and were determined not to let through, should be dropped. He achieved more than that Bill would ever have achieved, and not only that but he achieved a wonderful improvement in our relations with our European friends and neighbours, which is a very good example to take.
Lord Kerr of Kinlochard (CB)
I very much agree with the noble Lord. I will simply make two small points at this stage of the debate. The first is about the public resonance of our discussion. In the House of Commons, the Bill went through under the radar; the public did not really notice what was going on. When the public get to hear of the considerations we are discussing, they will pay a huge amount of attention.
The noble Baroness, Lady Young of Old Scone, was quite right to point out that the environmental laws in the European Union were largely there as a result of British initiative. The animal welfare declaration attached to the Maastricht treaty, the Garel-Jones declaration, was there not actually to annoy the Spaniards, as some said; it was there because the postbag that the Major Government got on animal welfare was enormous. I was Permanent Representative when a lot of the environmental laws were going through, and my postbag was packed with demands for more from Britain. When I was working on the constitutional treaty in 2002-03, the biggest single lobbying on Giscard’s convention was done by the Royal Society for the Protection of Birds, which brought about an immense postbag, largely from Britain.
The issues we are discussing are not arcane matters for lawyers and parliamentarians; they are of real concern to real people out there. The Government ought to think hard about that aspect of the Bill. The public resonance has not started yet but, when it does, I do not think it will be about an obstructive House of Lords resisting the will of the House of Commons; it will be about the protection of birds, animal welfare, the habitats directive, and sewage in the rivers and on the beaches.
I turn to my second point. I hope that the noble Lord, Lord Benyon, whom I welcome here, will be able to tell us that the Government have absolutely no intention of taking some of these laws off the statute book or watering them down. If he is able to do that, he would be very wise to encourage his colleagues in the Government to accept these amendments. If the Government have no intention of watering down or eliminating particular categories of law, that should be stated in the Bill. It seems to me that the logic of a reassuring response to the debate from the Minister, whom I hope will give a reassuring response, is that he should end by saying that the amendments will be accepted.
Baroness Altmann (Con)
I join the tributes to my noble friend the Minister—an excellent Minister who is passionate and knowledgeable about his brief. I also thank him for the briefing yesterday. I have no doubt that he was sincere in his reassuring words that the default position will be to retain, and I have no doubt that that is his intention, but this is not the reality of the Bill. As my noble friend said yesterday on REACH, the water framework directive and habitats, the Environment Act set up a clear process for change, and yet now we find that the Bill overrides all that, as the noble Baroness, Lady Parminter, stated.
If a carve-out is possible for financial services, surely this is one of the other areas that must be excluded from the Bill. I am sure that there has been an extensive effort to find all the various regulations involved in protecting the environment and involved in REACH and so on, but the only reassurance we had yesterday was that the department is confident that it has found the vast majority. This is about protecting the public.
We are also told that, if Ministers see fit, or decide that it is in citizens’ best interests, they will make the relevant and necessary changes as they decide. But what if Parliament disagrees? It will have no power. Indeed, as the noble Lord, Lord Kerr, indicated, were the public to be asked themselves, they would disagree. They are not consulted and they have no say; this will be happening by default.
In my view, it is not possible to improve environmental protections without tightening regulations in some way, yet the Bill works against all that. If you want cleaner water in our rivers, as the noble Duke, the Duke of Wellington, so rightly focused on, will you have to have more dirty water in the sea? How will you offset that? Who will decide where regulations must be relaxed to be able to tighten in other areas as we move forward with the intention we clearly have—and rightly so—to improve environmental protections and protections for the public? If it is discovered that a whole family of chemicals or pesticides are more harmful than previously recognised and need to be banned, will other harmful substances have to be allowed into public circulation because we must not tighten regulation?
The Bill seems to be driven by ideology and politics. I have concerns that the sunset is clearly politically driven, and that it cannot be in the national interest. Surely the ideology that regulations can only be weakened cannot apply to something as precious as the environment and all the issues covered by Amendments 10, 11, 12 and 37.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann, and to join in this debate, which is obviously about an absolutely core area for the Green group.
I offer a reassurance to the noble Baroness, Lady Lawlor, who, in this very wide and broad debate round the Committee, was the only one who offered some kind of support for the Government’s position. On protecting wild animals, she said that she wanted to see divergence for the better. Of course, if we threw out the Bill and it disappeared—everyone from the noble Viscount, Lord Stansgate, to many noble Lords opposite, including the noble Lord, Lord Cormack, and the 12 Cross-Bench colleagues I counted who have spoken, indicated either implicitly or explicitly that that was their desire—Defra would have vastly more time to work on improving and strengthening existing regulations. That is what the noble Baroness is wishing for, and the best way to do that would be to get rid of the Bill.
Many noble Lords have talked about this, but I shall just pick up on what the noble Duke, the Duke of Wellington, said about the reassurances that we heard yesterday and the ones that we are expecting today from the noble Lord, Lord Benyon, from the Front Bench. Reassurances are fine, but they must be in the Bill. That in effect in this area is what is done by Amendment 37, in the name of the noble Baroness, Lady Hayman, the noble Lord, Lord Krebs, and the noble Baroness, Lady Bakewell, and to which I have added my name to make it cross-party and non-party. This is an authoritative—if not comprehensive—list of the main areas of Green and animal welfare concern. I associate the Green group with almost everything said by the noble Baronesses, Lady Hayman, Lady Bakewell and Lady Parminter, and the noble Lord, Lord Krebs, but I shall disagree on one point. The noble Baroness, Lady Hayman, said that we have high standards in the UK, and the noble Baroness, Lady Parminter, said that we have stringent targets. I would say that we have a basic inadequate minimum of standards.
To pick up on the point made by the noble Baroness, Lady Altmann, and to expand on it a little, there was much discussion in the last debate that we had to wait until we got to debate Clause 15. But let us look at that letter—I am afraid that I am going back to the famous letter. I have hand-transcribed a paragraph from it, because it is so important. The letter says that the Minister would like to
“clarify that it is possible for additional regulations and higher standards to be introduced through the powers to revoke or replace, so long as the package of reforms contained within each statutory instrument does not increase the overall regulatory burden for that particular subject area”.
The noble Baroness, Lady Altmann, said, “What about new scientific discoveries—say about water?” To be concrete about that, let us think about new scientific discoveries that we have experienced just in the last year or two, such as PFASs, or “forever chemicals”, as they known in shorthand. We are coming to understand just how utterly pervasive and dangerous they are. Does that mean that we are going to give up and let a bit more sewage in, so long as we can do something to block some PFASs? That is what that paragraph in the letter means.
Antimicrobial resistance is something else that I am doing a great deal of work on. I must have a discussion about it with the Minister at some stage. We now increasingly understand that pesticides are having impacts in causing antimicrobial resistance. That is something that the Minister may not yet quite grasp, but it is a really important technical area. We are also starting to understand what the impact of microplastics in our water and soils might be on human health, to pick up on the point that the noble Lord, Lord Krebs, made: we are not just talking about looking after the environment. We are talking about looking after what we actually live in.
I am not sure that even the Benches around me really grasp that our economy and our lives are entirely dependent on the environment. In the UK, we are using our share of the resources of three planets every year—and we have only one planet. So, as the noble Baroness, Lady Parminter, pointed out, we squeezed into the Environment Act—and my recollection is that we had to fight very hard to do this—some non-regression clauses. We absolutely have to strengthen so many things to head us in that one-planet-living direction.
To continue with that focus on biology and thinking of us as human animals in a world on which we are entirely dependent, we have an ecosystem that has developed over decades. We have talked about the importance of case law and how EU and UK approaches have been blended together in regulations. I am still trying to understand what the interpretive effects are, and whether they are or are not reflecting case law. But the model of an ecosystem is perfect for this.
It might surprise the Committee, but I am going to cite a recent article from Current Biology, a peer-reviewed journal, about the Permian-Triassic boundary, a period known as the “Great Dying”. One thing that was found in this period was that one apparently quite insignificant little species had a key role in the ecosystem, and when that died a whole ecosystem fell apart. That works as a metaphor for the risk that we are running with this Bill—however good the list is from the noble Baroness, Lady Hayman. What is missing, what is the keystone, what is the vital bit that makes everything else fall apart? The Government cannot tell us; they can tell us only that they do not know. That is where we are.
The Earl of Caithness (Con)
My Lords, I will speak very briefly. This has been an interesting hour and a half, but the Government have brought it on themselves by not telling us what regulations will be in what bucket. Can my noble friend tell me what Defra regulations are going to be kept, what are going to be amended and what are going to be disposed of? If we had known that, we would have saved an hour and a half.
I want to pick up on something that relates to Amendment 10 on the habitats directive. The noble Baroness, Lady Parminter, said that it was one of the fundamental building blocks and that we would not meet environmental targets without it. But we will not meet environmental targets with the habitats directive. We have had it for 30-odd years and it has been a disaster. Biodiversity and habitats have gone down continually in this country.
That takes me to the point made by my noble friend Lord Inglewood, who is absolutely right. It is not rocket science—it is land management. To get high-quality food to feed an ever-growing population and increase biodiversity, you need habitat and food for the species at the right time, particularly now in these lean winter months.
Lord Krebs (CB)
Because this has cropped up a couple of times, I think it is important that we distinguish between a regulation or a rule and its implementation or enforcement. So, we might say, when housebreaking levels go up, that the laws against housebreaking are completely ineffective. That is not the case: it is the implementation or enforcement of those laws that is ineffective. It is not a critique of the habitats directive; it is a critique of the way we in this country have enforced it, or failed to enforce it.
The Earl of Caithness (Con)
My Lords, that is exactly the point I have been trying to make: it is how we manage the land that is important. We can improve biodiversity in this country and we can produce the food on the same land, working together, because that will give us the right answer—but it is not relying on directives. Where I probably disagree with the noble Lord, Lord Krebs, is that the result of the various directives has been that we have pockets of land that have special protection and we do not join up those pockets: we have barren deserts in between. That is something that I know my noble friend Lord Benyon is working on with the ELM scheme, but that has to complement the directives and we have to get back to a whole-land approach, rather than just a spot approach.
Will my noble friend confirm that future amendments and changes to directives will be done with best science and not emotion? Defra made too many decisions on emotion and not enough on science in the past. Will he confirm, on a point raised by the noble Lord, Lord, Kerr of Kinlochard, on the last group, whether Parliament will have any say on which regulations Defra is going to drop? If Defra mistakenly decides to drop something and we have not had a chance to look at it, we cannot be culpable, but Defra will be, and it is much better that we all look at it.
Lord Jackson of Peterborough (Con)
My Lords, I was not intending to speak, but I was prompted by the challenge from the noble Baroness who represents the Greens, who spoke with great erudition, expertise and passion and is a credit to the House for that. It is important that we look at the general principles. Of course, we are talking about environmental regulations amendments, but I sometimes feel that I am the only sane person in the asylum, frankly. We are a sovereign Parliament, yet we are pushing back on the idea of governing and holding the Executive to account, as if we are not able to do that.
If noble Lords look at the preamble to the Bill, it is not about casting aside these regulations; it is not about traducing those regulations and the Great British tradition of environmental protection and health and safety; it is about modifying, restating, replacing and updating. The fact is that even the EU, when developing regulations, was always developing them on an iterative basis; it did not have the regulations ossified 30 or 40 years ago; it was always developing them—even the REACH regulations that the noble Viscount, Lord Stansgate, mentioned earlier. Therefore, it is exactly the same process that this Government are going to pursue.
The idea that Ministers are not accountable at the Dispatch Box for bringing forward or updating regulations is clearly nonsense: they will always be. I have to disabuse the noble Lord, Lord Kerr, of the idea that this has not been properly debated in the other place. First, it passed Third Reading by 53 votes, and he may not know that there was an enormous campaign from NGOs and charities aimed at wavering Members of Parliament. So the idea that it was sneaked through and disregarded by the greater electorate is absolutely not the case.
There is an idea, too, that we are writing a blank cheque. Having considered the Bill in the other place and here, and having considered other committee reports, including from the Delegated Powers and Regulatory Reform Committee and the Select Committee on the Constitution, there have been hours and hours of debate. To then, when it gets to this House, say “We don’t like the Bill, so let’s just ignore it”, would plunge this House into a very bad place in terms of democratic accountability.
The criticism from the people in this country is that our politicians are not up to the job of governing, and, at the end of the day, that is what we have to do. We have to govern. We have to make a decision. The challenge, as was shown only yesterday in what the Prime Minister brought back in the Windsor agreement, is that we can make Brexit work. It is not ignoble for many Members to take a view that Brexit was a mistake—many Members in this Committee take that view—but, nevertheless, this is a Bill about accountability and keeping that bond of democratic accountability and trust with the electorate. I think some Members of your Lordships’ House need to understand and concede my final point, which is that this Government would be crazy to go into a process of reducing—
Lord Clarke of Nottingham (Con)
I do admire my noble friend’s defence of the impeccable parliamentary democracy which lies behind the Bill, but I think the author of it was Jacob Rees-Mogg, and I think his principal aims were to make sure that all law was British law and none of it was foreign law, for ideological reasons. I think he thought of it as deregulatory, producing lower and, in his opinion, less costly standards, which is why a rule was put into the Bill that it could not actually raise any of our standards. My noble friend’s present passion in defending it does not actually reflect the motives behind the Bill, and yesterday’s triumph was an abandonment of an otherwise similarly absurd approach, epitomised by the Northern Ireland Protocol Bill.
Lord Jackson of Peterborough (Con)
I thank my noble friend for making that point, but mea culpas go both ways. Some of us were saying four years ago that some of those technical solutions could have been tried then, and we were accused of magical thinking. In fact, we were actually right. So just to wind up—because I know the Minister, for whom I have an enormous amount of respect, is staring at me—I think the Bill should go through. It would be offensive to democracy for it not to go through, and I look forward to a position where it gets Royal Assent eventually.
Baroness Jones of Moulsecoomb (GP)
My Lords, this is offensive for democracy if it does go through.
Lord Fox (LD)
Very briefly, the reason we are welcoming the noble Lord, Lord Benyon, is not because we have grown fed up with the noble Lord, Lord Callanan; it is because he is the major shareholder in this Bill as regards the number of amendments. I hope that, as well as dealing with the 24 particular laws that are in this group, he will use his response to explain the process that his department is going to undergo in order to deal with the other 1,757 laws that are not included in this group. I think it will be very important if he is able to do that.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
I am very grateful to noble Lords for what has been a very thorough debate. Before getting into the meat of this, I thought I would just set the scene on why this legislation is important. I entirely agree with the point made by my noble friend Lord Inglewood, and also by somebody from the Benches opposite, about the need for good regulation. Business and the public respect proper, good regulation. They like it because it pushes out the bad actors; it focuses what the Government’s role is; and it gives that crucial word that my noble friend used, clarity, which is what we want to see.
The noble Baroness, Lady Bennett, talked about the economics of these issues. She is absolutely right. The Dasgupta review, the first piece of work into biodiversity, commissioned by a finance department, the Treasury, is something I find quoted at me when I go all around the world, to COPs and other environmental events. It is an extraordinary piece of work, because it shows how nature and biodiversity underpin our economy. We cannot have social stability or economic growth if we do not have a sound environmental and biodiverse nature: that is my starting point.
I was a Minister when we were in the EU. I may have voted differently from my noble friend in the referendum, but I remember regulations coming from Brussels over which we had no say. They were rubber-stamped. Occasionally the European Scrutiny Committee would suggest that they might be debated, and we might have a debate, but by and large most of the regulations—
Baroness Ludford (LD)
I am sorry to interrupt the Minister—I know that everyone wants to get to the dinner break—but what kind of regulations is he talking about? For instance, the general data protection regulation took two years of negotiation. I can think only of tertiary legislation by the Commission, such as on the price of sheepmeat or something that changes daily. On what regulations did we have no say? I was an MEP, and we had co-decision on practically everything of any importance.
Lord Benyon (Con)
I am very happy for the noble Baroness. As a parliamentarian in the UK Parliament, I had no say. However, many of the regulations were very good and we want to retain them.
I am grateful for the words of so many noble Lords. My noble friend Lord Cormack embarrassed and moved me with his nice words, but when such words are said in this House, I know that there is an enormous “but”. I will try to address it.
I count myself an environmentalist. I have been on the boards of different NGOs, I am a member of many and I have campaigned and worked on the environment all my life. I see my role as a Minister as just a small part of that. I would absolutely not be standing here if I thought that we were indulging in some means of trashing the kind of protections that we want to continue and improve in this country. There are opportunities; as my noble friend Lord Caithness said, we have had these regulations but biodiversity continues to decline, as it has done for decades. We now have a commitment to reverse that decline, stop it by 2030 and see it increase as against 2020 data by 2042. No Government will be able to escape that, so the idea that we could get rid of regulations that would make that happen is wrong.
I find at the moment that all roads in Defra lead towards our land use framework. I applaud those Members of this House who wrote a really good report on it, as my noble friend Lord Caithness mentioned. I agree with him that if we are going to get this right and achieve anything on environmental regulation, incentives to farmers through ELMS, our water policy, anything to do with air quality, the health of people and the benefits of nature, mentioned by the noble Lord, Lord Krebs, then we need really to understand how, in a finite piece of territory, we will manage all those requirements and our international commitments, some of which I have already mentioned.
As my noble friend said, the powers in the Bill will empower departments to unleash innovation and propel growth across every area of our economy. The Bill is simply an enabling Act. It is up to departments and the devolved Administrations what they will do on specific pieces of policy.
In Amendment 10, the noble Baroness, Lady Bakewell, has raised the Conservation of Habitats and Species Regulations. I reassure her that the Government remain committed to the ambitious plans set out in the Environment Act, which sets out legally binding targets to halt nature’s decline by 2030. The noble Baroness, Lady Young, said that the habitats directive was the jewel in the crown; she is absolutely right that it has been a huge driver in environmental policy, although not an exclusive one. She raised a point about interpretive effects. Interpretive effects are the general principle of EU supremacy as set out in Section 4 rights and do not relate to case law. However, I absolutely assure her of our commitment to 30 by 30. Our commitment to protect 30% of our land and oceans remains fundamental. We will continue to do that—we would not be able to if we damaged our environment in the ways that some noble Lords have suggested.
Baroness Hayman of Ullock (Lab)
To clarify the point about interpretive effects, I point out that the letter says:
“Anything preserved will be subject to clauses 3-6 of the Bill which repeal retained EU interpretive effects.”
Can the Minister clarify what this actually means in practice? How does it affect case law?
Lord Benyon (Con)
Interpretive effects are not case law; they are the principle of EU supremacy—general principles and Section 4 rights. The general principles of EU law directly affecting rights, which end in—
Baroness Hayman of Ullock (Lab)
Perhaps the noble Lord could write to us with a detailed explanation.
Lord Benyon (Con)
I will certainly do so; I will then be able to read my own writing. As the Secretary of State reiterated in her speech at the launch of the environmental improvement plan on 31 January, Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it. This allows us to keep protections in place, provide certainty to businesses and stakeholders and make reforms tailored to our needs—
Baroness Crawley (Lab)
Is the noble Lord confident that he can ensure that he will be able to retain all the laws that he wants to by 31 December this year?
Lord Benyon (Con)
Absolutely, because if we cannot do so for any reason then we have that power of extension, which we will apply if necessary. I hope that is a real reassurance to noble Lords, because it gives that comfort.
Baroness Crawley (Lab)
Will the noble Lord therefore lobby within his department for using the 2026 date rather than 31 December 2023?
Lord Benyon (Con)
That would be the extension point. We will assess them on a case-by-case basis and apply the extension where we need to, because we want to get this right.
Lord Fox (LD)
That assessment process is part of what I was hoping the Minister could shed some light on. It is an awful lot of assessment, so could he let us know what proportion of his department’s resources are now focused on that process of assessment? Is it 10%, 1%, 30%, 40% or something else? How can he be sure that this assessment gets scrutiny at the right level, both politically and operationally, to make sure that the right decisions are being made?
Lord Benyon (Con)
There is a core team of Defra civil servants co-ordinating this but every policy area is involved, so it is impossible to say precisely how many full-time equivalents are being apportioned to this on a weekly or monthly basis or how many will be over the next six months. However, I assure the noble Lord that this is an absolute priority for my department. We have separated the different areas of REUL to suit Ministers’ areas of responsibility; we are working through them and making sure that we rigorously examine whether we have them in the right frameworks for retaining, removing or any other aspect of this process.
Baroness Hayman of Ullock (Lab)
The Minister says that the sunset can be extended to 2026, but surely we need to know which regulations the department is looking to extend. How do we know that? How is Defra going to go about attending to that? The Treasury managed to take its regulations out; they are exempt. Why does Defra not just do the same and save all the bother?
Lord Benyon (Con)
If we have to extend, that would be the subject of a secondary legislation measure, so this House would be able to review it.
Lord Hope of Craighead (CB)
I am sorry to disturb the noble Lord again. Following on from the noble Baroness’s point, Clause 2(1), to which the noble Lord refers, uses “specified” three times: you have to be able to specify the instrument or the class of instrument and then identify a specified time. It is not designed as a general extension to cope with the possibility that things may be overlooked. It does not deal with that; that is one of the problems. It is fine if you can specify everything and you know exactly what you are dealing with, but it is not a let-out clause of the kind that the noble Lord was perhaps suggesting.
Lord Benyon (Con)
I entirely agree with the noble and learned Lord: it has to be specified. That is the work we are doing, and that is how we will decide whether we need that extension.
Baroness McIntosh of Pickering (Con)
I understand that, but I have not spoken yet. Can I just ask: where is this going to be specified for our greater understanding? My noble friend said that it would be specified; where will it be specified?
Lord Benyon (Con)
In the work we are doing to assess each area of retained EU law, we will make an assessment of whether we are going to need some more time to do it. Your Lordships will be informed of that, and there will be the possibility of accountability being applied to it.
The noble Baroness, Lady Bakewell, also raised bathing waters in Amendment 11. We are committed to protecting and enhancing water quality. It is worth stating that in most places our bathing waters are better than they have ever been. Indeed, in 2022, 72% of our bathing waters met the “excellent” standard, the highest number since new, more stringent standards were introduced in 2015. In total, 93% of bathing waters in England were classified as “good” or “excellent” last year. We recognise that there are always ways that we can improve how we manage and regulate our bathing waters, and we will continue to explore how to take those forward, including through this Bill.
The noble Baroness also referred to the water environment regulations in Amendment 12. We are committed to protecting and enhancing water quality, and the Environment Act has only strengthened regulations since we left the EU. We have set legally binding targets for the water environment which cover pollution from wastewater, agriculture and abandoned metal mines and reducing water demand. In the Environmental Improvement Plan, we committed to restoring 400 miles of river through the first round of landscape recovery projects and establishing 3,000 hectares of new woodlands along England’s rivers. We are also aiming to achieve “good” ecological status in 75% of water bodies, as per the water framework directive regulations. I assure your Lordships that this Government respect the significance of the water framework directive, and retained EU law reforms will not come at the expense of our already high environmental standards.
To address the point that the noble Duke, the Duke of Wellington, raised—I mentioned this yesterday in a meeting, but I will repeat it for the record—hitting the water framework directive standards is an incredibly high bar. The average river in this country is divided into a number of reaches for the purpose of the water framework directive. Each one of those reaches has a range of different measures—which could relate to fish population, chemical pollution, or anything else—that would trigger a failure of that particular reach to achieve the “good” standard that is required under the regulation. It is a policy called “one out, all out”. That is the reason that only 16% of our rivers are achieving “good” ecological status. That is a standard I do not want to see changed by this Government or any future Government. It is one of the most difficult to achieve, as other countries in Europe are also finding. If we were still in the European Union, we could face infraction fines if we failed to hit those targets. The point is that we are retaining those very high standards. We want to see them retained, and we want this Government and future Governments to be held, justifiably, to them.
Lord Clarke of Nottingham (Con)
My Lords, as I expected, the Minister is giving a very satisfactory list of assurances that he has not the slightest intention of lowering any standards. I am quite sure that he is sincere and that the Government actually believe that they are not going to lower any of those standards. I cannot understand what the argument is against ending this whole ridiculous debate by just putting a statement in the Bill which lists key directives—such as the habitats directive and the bathing water directive—and emphasises that they are going to remain totally unchanged, so that if any future Government decided to start deregulating in this area, it would need a proper parliamentary process before they had any chance of doing so. What is the positive argument against putting these undertakings, which are wholly reassuring, in the Bill? The last hour and a half would have been quite unnecessary if that had been done.
Baroness Ludford (LD)
Before the Minister stands up, he will know that one of the continuing problems in this country is not lack of law but the lack of enforcement. That is very obvious in the sewage discharges, and, at the moment, the only reason that the urban wastewater directive is being enforced in London is that the European Commission took infringement proceedings, subsequent to a petition that I took to the European Parliament. That is why we are getting the Thames super sewer. I am sorry for rivers everywhere else, including the Thames in its higher reaches, but we are getting the very expensive Thames super sewer because the European Commission took enforcement proceedings which ended in a judgment in the European Court of Justice. Elsewhere, UK enforcement has been dire.
Lord Benyon (Con)
I thank the noble Baroness and my noble friend for those remarks. We will be providing a clear list of regulations in due course, but we are working through them, and I make no apology: we want to get it right and we have a lot of work to do on that front.
Lord Clarke of Nottingham (Con)
Will it be in on the face of the Bill and put into law, so that we have protection against future Governments setting some rather less high standards?
Lord Benyon (Con)
I just say to my noble friend that the direction of travel of this and future Parliaments that will be elected over the coming years will not be for a reduction of these things. There is a yearning in this country for higher environmental standards. People will not put up with politicians of any party who seek to remove them. We should take comfort that the direction of travel that this Government have taken through the Environment Act, the environmental improvement plan, the 25-year environment plan we are promoting and what we are doing on water is just the starter course. For a main course, we will continue to see environmental standards improve in future.
Lord Clarke of Nottingham (Con)
The argument is that it may not be necessary, because the Minister is confident that we are going in that direction. Why is that an argument against being absolutely reassuring by putting it on the face of the Bill, so that if an extraordinary, strange Government of protest emerged—some President Trump-type Government—they would have to go through the proper parliamentary and legal procedure before disappointing me and my noble friend?
Lord Benyon (Con)
Because if it is in the Bill, you cannot improve it, as has been said in very eloquent terms—
Lord Benyon (Con)
Well, not without going through an exhaustive amendment process. I want to see higher environmental standards in this country. I want us to be able to prove that we have higher environmental standards than the rest of Europe. I am ambitious that regulations should be in the right form, effective and pertaining to this country. Most of these regulations were designed for an environment that goes from the Arctic to the Mediterranean. As I shall come on to talk about, there are measures in it, including on animal welfare, for example—the point the noble Lord, Lord Trees, made. One of them relates to not putting ear tags in bulls that are used for “traditional purposes”—which turns out to be a regulation to exempt Spanish bullfighting bulls from the regulations that apply to other cattle. We do not have bullfighting in this country, so it is not a problem for that to sunset. I am sure my noble friend agrees with me.
Baroness Parminter (LD)
We accept that the Minister is ambitious, but the question I raised was specifically about the Environment Act, where we are clearly being ambitious about the future. We talked about looking to amend regulations in future, including, potentially, the habitats regulation. A specific clause was included in the Bill that there will be a non-regression for environmental standards. Why will he not put that on the face of this Bill?
Lord Benyon (Con)
I will of course reflect on the points made today, and we will consider them all in due course. I do want to make some progress, if possible.
The Duke of Wellington (CB)
I thank the Minister giving way. Forgive me. I think I heard him say a few moments ago that the existing water framework directive was, in one sense, too demanding, because it divided rivers into sections, and any one section not passing ruled out the whole of the river. However, I then thought I heard him say that, nevertheless, we want to have very high targets. Which is it? Are we repealing the water framework directive or are we not?
Lord Benyon (Con)
We are transposing it. I am sorry if I was not clear. I was setting out a very high standard that we have applied to ourselves, retained since we left the European Union and will be committed to in the future. I say that because I want this and future Governments to be held to the highest possible standard. I very much regret if the noble Duke got the impression that I was somehow indicating that those standards were too high. I was applauding the fact that they are high and want to keep them so. If the noble Lord will allow me, I really want to make some progress, because we have spent two hours on this—
Lord Kerr of Kinlochard (CB)
I am most grateful to the Minister, and I admire his excelsior position that we are aiming at higher and higher standards. If he was to follow the advice of the noble Lord, Lord Clarke of Nottingham, and put these exemptions in the Bill, he would have set a floor; he would not have prevented himself from moving up to higher standards over time. However, I am sceptical whether he carries the whole government with “excelsior”—ever upward—because we have Clause 15(5), where there is an absolute ban on amending or replacing any of these Acts in a way that might increase the regulatory burden, and that burden is defined as including putting up the financial cost or creating
“an obstacle to efficiency, productivity or profitability”.
That does not seem to me to fit terribly well with a drive for ever-higher standards.
Lord Benyon (Con)
We can get bogged down in a philosophical debate about what regulation is for. Some people come at it from the direction that it should always stop people doing things that others might define as growth. Other people look on it as assisting legitimate businesses in functioning in a way that disadvantages bad people doing bad things. There needs to be flexibility in legislation to allow the right sort of regulation to encourage good behaviour. You will find that your greatest supporters in doing that are businesses and interests that not only are keen to be seen to be doing the right thing but want to benefit from the fact that we have the right kind of regulation in this country.
I will just finish the point about water. This Government are the first to tackle sewage overflows in the way we have. In the summer we published the most ambitious plan to tackle sewage discharges from storm overflows in water company history. The point made by the noble Baroness, Lady Bakewell, about the River Parrett is entirely understood; the base of that river covers a huge catchment area and agricultural activities over years have seen soils washed away into the river. The problems that have occurred as a result of that are being tackled in a combination of ways: first, through regulation; and, secondly, through incentives in our environmental land management schemes.
The noble Baroness also talked about siloed protections. We now have probably the most united approach to this through the 25-year environment plan, the Environment Act, the environmental improvement plan, what we are doing to encourage tree planting along rivers and many other things. I hope noble Lords agree that our plan will require a huge change in attitude now among the range of people involved in the management of our waterways. With this in mind, I hope that the noble Baroness might not press her amendments.
The noble Lord, Lord Krebs, made a very good intervention. He spoke about the “green crap” point. I was in that Government and in that room; it was not the Prime Minister who said that. I am glad to correct him on that. The Environment Act is not just warm words. I hope that, like me, the noble Lord feels that the hard yards in this Chamber to improve that Bill really made a fundamental piece of legislation, the like of which other countries will look at to see how to make proper environmental legislation.
The noble Lord is right to raise human health, as I said earlier. There is a lot of mapping going on around noise; he will be pleased to know that we include noise levels typically not required by statutory obligations. This will allow for the consideration of health impacts regardless of legal obligations.
I will address noble Lords’ other points. I really want to nail the point about this Bill’s impact on the habitats regulations. We have been clear about the importance of environmental protection across the United Kingdom —not least through the Environment Act, which includes a legally binding target to halt the decline of nature by 2030. We are committed to meeting this target and will not undermine our obligations to the environment in pursuit of growth. Defra published a Green Paper consultation on nature recovery in March last year; the reforms explored in that Green Paper have fed into the Government’s environmental improvement plan, and nothing in this Bill will allow that to be put at risk.
On pesticides, I want to assure noble Lords about REACH; this addresses the point made by the noble Viscount, Lord Stansgate. There are no specific provisions in the Bill relating to UK REACH, so it will have no direct impact on current UK REACH policy. Defra has two key activities under way that aim to improve UK REACH: an alternative transitional registration model to reduce the cost to industry of transitional registrations while keeping high levels of protection. We will extend the transitional REACH deadlines in the meantime to allow time to continue the development of the alternative transitional registration model. Defra and the devolved Administrations are considering ways to improve and better tailor UK REACH to a GB-only setting while keeping the overarching framework of UK REACH in place.
The noble Baroness, Lady Bennett, raised pesticides. The United Kingdom upholds strict food safety, health and environmental standards, and our first priority regarding pesticides is to ensure that they do not harm people or pose an unacceptable risk to the environment. We will not allow the Bill to put that at risk. We will continue to ensure that decisions on the use of pesticides are based on careful scientific assessments of the risks in order to achieve a high level of protection for people and the environment while improving agricultural production.
The UK has an independent national regulator, the Health and Safety Executive, that assesses the risks of pesticides and undertakes the necessary scientific evaluations. If the noble Baroness has specific points on that, I am happy to talk to her at another time. It is necessary to ensure that UK legislation can be updated to reflect future advances in science and technology. Sometimes this debate is very much in net present value terms. Science is fast moving. We want to make sure that science is at the heart of policy-making.
Viscount Stansgate (Lab)
The Minister raises this point about the extension mechanism. Does that mean in effect that the Government’s approach is now to retain, reform, remove or delay a decision? If so, we may be talking about four buckets.
Lord Benyon (Con)
A delay is reform, because it gives more time to get it right. There may be specific technical issues relating to a regulation that require more work to be done than can be allowed in the timeframe of the sunset.
On the marine issues, which the noble Viscount raised, we are committed to 30% of seas being protected. We have very clear policies on restoring fisheries and fish biomass in the sea, and we have provisions through the marine strategy framework and others to see that achieved.
A number of Peers have raised the issue of resources. We are putting huge resources into this. The noble Lord, Lord Fox, is right to raise this, and I understand the concerns. We want to make sure that we understand each and every one of the more than 1,700 areas of retained EU law. Our default position is to retain. Resources for retained EU law legislation will be needed from a range of policy officials, such as analysts and lawyers, to deliver a significant legislative programme. My officials are working closely with BEIS and the Cabinet Office to ensure that Defra has sufficient resources. Our aim will be to ensure that important work unrelated to retained EU law will continue.
Baroness Hayman of Ullock (Lab)
The default position is actually that it falls unless you have this extension. The extension mechanism, as the noble and learned Lord, Lord Hope of Craighead, said, relies on something specific being identified.
It is no criticism whatever of Defra staff, but if they have to identify extra pieces that need to be carried over, this is a huge amount of work. We do not even have a comprehensive list at the moment so it could increase, plus they have to get all the SIs sorted. All that has to be done by the end of this year before the Government can bring in an extension. As I asked the noble Lord earlier, does he really have confidence that Defra has enough staffing resources to achieve all this? I am really concerned about it. I reiterate that this is no criticism of the staff. This is about figures, numbers and cash.
Lord Benyon (Con)
We have got the resources that we need to carry out this work.
Lord Benyon (Con)
Can I just finish this point? Where there are more complicated issues that may require us to spend longer dealing with them, the extension mechanism is there to achieve that. That should be a reassurance that we will not risk, with this challenging timetable, making the wrong decision. If necessary, we can apply the extension mechanism.
Lord Davies of Brixton (Lab)
My Lords, while I am impressed by the resources being put into this effectively useless power, what more productive use could those resources be put to?
Lord Benyon (Con)
Having laboured through many of the details of this, I can assure the noble Lord that it is a good thing for a Government to be doing. We are tackling some areas of law that have no relation to this whatever. They are about fishing arrangements between Denmark and Norway in Svalbard or export policy in olives. There are many areas that we can get rid of, but there are other areas of regulation—this point was made very well earlier—that we would be updating even if we were in the EU. So it is a good thing for the Government to make sure that we have proper regulation that is up to date and tied into our ambitions in the 25-year environment plan, the Environment Act and the environment improvement plan.
Baroness Andrews (Lab)
The noble Lord, Lord Benyon, is a good Minister who is genuinely doing his best, but we have a fundamental contradiction here. He has said that his department’s default position is to retain; the Bill says it is to revoke. What is the Government’s position on this?
Lord Benyon (Con)
As the Secretary of State said at the launch of the environment improvement plan, we will retain by default. Then we will examine every single item and decide which to put back in. Noble Lords will see, when we publish the list, that we have done a good job on this. We remain committed to our ambitious plan set out in the net zero strategy and the Environmental Improvement Plan 2023. They set out the comprehensive action the Government will take to reverse the decline in species abundance, achieve our net-zero goals and deliver cleaner air and water.
Baroness Andrews (Lab)
I am terribly sorry to noble Lords, I really am. We have not heard the expression “retain by default”. Does the Minister sitting beside the noble Lord, Lord Benyon, agree with “retain by default”? We did not hear anything like that in the first day of Committee. This is news to us and it seems to turn the Bill on its head.
Lord Benyon (Con)
I am quoting what Ministers have been saying for some weeks now, so it should not be a great surprise to noble Lords. With that, I hope that noble Lords are prepared to withdraw or not move their amendments.
Lord Hendy (Lab)
Before the noble Lord sits down, could I raise one point on delay? I am trying to visualise a situation in which officials are considering a particular set of regulations—let us not identify them—that are complicated. Therefore, the possibility of delaying a decision on those regulations is under way. We get to 30 December 2023: no statutory instrument has been laid, because they are still considering whether to delay consideration. How is this to be considered “scrutinised by the House”? There will be nothing there to scrutinise—there will be no statutory instrument—and the House will be thinking that this set of regulations will disappear on 31 December.
Lord Lucas (Con)
My Lords, I will give my noble friend the Minister a couple of thoughts to take away.
Lord Lucas (Con)
We are in Committee, and anyone who wants to leave may leave, but I wish to speak. I will say two things. I recommend my Amendment 134A for the Minister’s attention, as a way to get out of some of these difficulties. Secondly, the letter sent to us today misrepresents the effects of Clause 15(5), in that it does not take into account the words “including changes made previously”. I hope that the Minister may be able to rectify that in what he sends to us later.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank all noble Lords who have taken part in this debate. There are far too many and the hour is too late for me to comment on them individually. I am very grateful for the support for the amendments in this group.
The Government want to leave the environment in a better state than they found it. This is no mean task and needs continuous and immediate attention. Removing these regulations from the Bill will not ensure that this happens.
I thank the Minister for his response and his passion for the subject matter. I will study his response in Hansard. I would welcome a dialogue with the Minister on a way forward, and I feel certain that we will return to this issue on Report. In the meantime, I beg leave to withdraw Amendment 10.
Baroness Ludford
Member's explanatory statement
This amendment is connected to Lord Fox’s amendment after Clause 1 “Consultation and reporting”.
Baroness Ludford (LD)
My Lords, Amendment 26 is a paving amendment, so I will speak mainly to the substantive Amendment 48. Much reference was made in the previous two groups to the need for consultation and consideration of various factors and elements before there can be sunsetting. This theme will be taken up; it links to later groups, particularly the fifth group.
Many of us think that this Bill is pretty hopeless. It has been described as revolutionary and, in my case, anarchic, but we are trying to bring some rationalisation and order to the Bill, which is at the moment completely disordered. I referred earlier to it as putting the cart before the horse, in that we have had this Bill in Parliament for several months but no one can say when we are going to get the famous comprehensive list. We understand that officials are still trying to trawl through the regulations so far and decide, with Ministers presumably, into what bucket they should go. You would have thought that all that work on bucket filling would have gone on before the Bill was ever introduced, because surely that is the right way round: you have the policy before you seek the legislative powers to do anything about it. Unfortunately—we all know it is a piece of ideological gesture politics—we have not had that sensible approach. Some of us hope that we will get a sensible approach once the Northern Ireland deal is successfully approved.
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to follow the noble Baroness. My amendments are a little more directly addressed to probing the clarity as regards the date on which the sunset provisions come into effect, while allowing a five-year additional timeline, which is needed for the reasons we have heard over the first two days in Committee.
I speak in support of Amendments 27 and 28. Amendment 28 was drafted by me and I prefer the amendment drafted by the Law Society of Scotland. I am delighted to have the support of the noble and learned Lord, Lord Hope of Craighead, as well in that regard. The amendments probe the Government on providing clarity about and extending the date on which the sunset provisions come into effect. As we now know, Clause 1(1) provides for the revocation of all “EU-derived subordinate legislation” and “retained direct EU legislation” by the end of 2023, although that date is very vague. The Law Society of Scotland expresses its serious concern that the proposed statutory deadline of “the end of 2023” does not appear to allow sufficient time to enable the review of retained European Union law to be completed properly, after due consultation with the devolved Administrations and relevant stakeholders, including UK parliamentary and devolved legislature committees.
The additional time could also be used for a more thoughtful approach to amending or repealing retained European Union law. The choice of date should be made on the application of good legislative practice, including consideration and analysis of the legislation involved, and consultation with those who will be affected by the variation or revocation proposed by the regulations in question. The later date that I set out in Amendment 27 will allow for that process to be completed.
Furthermore, the reference to “the end of 2023” in Clause 1(1), as referred to above, is vague. I therefore suggest that this reference should be defined with greater precision in as
“11:59 pm on 31 December 2028”
following the precedent of the definition of IP completion day found in Section 39(1) of the European Union (Withdrawal Agreement) Act 2020. I hope that, in summing up, my noble friend will approve both the specific reference to the time and date, and the extension of five years.
We heard for the first time officially today—unofficially yesterday in the briefing—that the default position of Defra is to retain all EU law. But, as we discovered, that is not stated in the Bill so, emerging from Amendment 27, I put two options to my noble friend the Minister this evening. The Government should either, in the spirit of openness, publish in an easily accessible format all the retained EU law that is to be retained and, alternatively, that to be revoked; or, as proposed in Amendment 27, they should insert a later, clearer deadline of 2028 to ensure that no instrument lapses by default.
Lord Hope of Craighead (CB)
My Lords, I added my name to Amendment 27, in the name of the noble Baroness, Lady McIntosh of Pickering, and I am grateful to her for putting it down and for what she said.
I am sure the Minister will remember that, when we mentioned time limits and sunsets on Thursday, I agreed with the noble Lord, Lord Hamilton of Epsom, that it was sensible to have a sunset in view of the task set before us. The question is whether the sunset is in the right place. This amendment addresses that issue. The point is that the Government are trying to move too fast without having done the homework in the first place to establish that the sunset is one that they could meet.
Last Thursday, the noble Lord, Lord Wilson of Dinton, said that the Government should “do the work first”. As he put it:
“The right thing to do is for the Government to withdraw the Bill, go away and do the work, and decide what they want to keep, what they want to amend and what they want to abolish, and then tell Parliament so that it can debate and scrutinise what the Government want to do—and it can be a proper process with consultation. That will take longer, but the Government are taking on a very big job with huge complexity and scale.”—[Official Report, 23/2/23; col. 1774.]
I do not suppose the Government will withdraw the Bill, but the fact is—it has been staring us in the face ever since we started these debates—that the job that they are taking on is immensely complex. However hard they try to pretend otherwise, they seem to be making it up as they go along—the figures keep enlarging, indicating that the necessary work was not done at the outset, before the timetable was decided upon.
The Bill had its First Reading in the House of Commons on 22 September 2022. All the signs are that even a reduced or very preliminary version of the information that is now on the dashboard was not yet available. The Government seem to have been playing catch-up ever since they became aware of the questions being asked of them. To introduce a Bill with a sunset clause without having arrived at a clear understanding at the outset of the scale of the task that all four Governments are being asked to undertake is, to say the least, bad planning. The noble Lord, Lord Wilson, said that it was “lazy government”, and one might also say that it is bad government.
Mention was made of Clause 2 and the extension of the sunset clause providing an escape clause, but it is a carefully framed and narrowly drawn provision that requires an understanding of the legislation, or the descriptions of the legislation, that is to be put into the provisions allowed by Clause 2. It has to be specified; it does not allow for a general let-out just because the work has not been done on time and unknown instruments are yet to be discovered—if you have not discovered them, you cannot specify them. So this is not a complete answer to the problem that the very strict and early sunset, set from the outset of the Bill, is trying to solve.
The solution that the noble Baroness has offered, which I agree with, is to extend the sunset to a later date. It is worth mentioning that there is reason to be concerned about the same time limit in Clause 12, which gives power to restate retained EU law, but it is subject to the provision in subsection (7) that
“No regulations may be made under this section after the end of 2023”,
which is exactly the same date that the noble Baroness, Lady McIntosh, directed her amendment at. These two clauses march hand in hand, and if a government amendment is made to Clause 1, as I suggest it should be, one should also be made to Clause 12.
I hope that the Minister will reflect carefully on the sunset clause. An extension of it, even by a year, would provide a much better timetable to which to work, given the enormity of the task being faced. I very much support this amendment, and I hope it will be supported across the Committee.
Lord Hannay of Chiswick (CB)
My Lords, I will speak in support of Amendments 26 and 27. Amendment 26 moved by the noble Baroness, Lady Ludford, is about consultation. You can have your views on the value of consultation, the amount of time taken up by it and so on, but it is a normal practice in legislating in our time. To move away from it, which is what the Government will do with the replacement provisions they may move forward, seems aberrant and contrary to all normal practice.
The trouble is that the two amendments are a bit linked, because if you accept Amendment 26 it is even clearer than it is now—it is clear beyond peradventure—that you are not going to get through all that by the end of this year. I can see why the Government are driven to refusing to commit themselves to consultation, because it simply cannot be done in the time available. In my view, that is an argument in favour of Amendment 27 in the name of the noble Baroness, Lady McIntosh of Pickering. I hope the Government can give some ground on the consultation issue; otherwise, we will probably get some legislative proposals that not only are very hasty but have not been tested by the people to whom they will be applied. That seems entirely contrary to our practice these days in bringing forward legislation.
On Amendment 27, I find it very odd that the Government are clinging to the sunset of the end of 2023. It seems unrealisable—some would say suicidal—and it will bring nothing but discredit on the Government when the chaos that is caused actually supervenes. In any case, whether you think that or not, just reflect on something that the noble Lord, Lord Benyon, said to us in the debate on the last group of amendments. He told us that four teams of officials are working on deciding which of the instruments to be caught by the cut-off should be postponed until 2026 and which should go ahead. If you removed the 2023 sunset, you would save those four teams all their work; all they would need to do is work out what to do by 2026—or, as the noble Baroness suggests, by 2028. I am less sure of that; to my mind, it would be quite sufficient simply to remove 2023 and to leave 2026, as it is in the legislation. That offers a reasonable amount of time to carry out an exercise.
It also demonstrates that those of us tabling or supporting these amendments are not refusing to replace European Union law. Quite the contrary—we understand the basic logic behind what is being done, but we find that the timing is absurd and damaging to our economy. I hope that the Minister will respond positively, both on consultation and on removing the 2023 sunset, even if he does not find 2028 very beguiling.
Baroness Young of Old Scone (Lab)
My Lords, I will speak to my Amendments 46 and 47 to the Minister’s Amendment 45, which no doubt he will speak to soon. My amendments add environmental measures to the Minister’s amendment, which exempts financial services measures. Tabling the amendment was rather a flight of mischief, because I thought that, as imitation is the sincerest form of flattery and since the Minister had tabled a fine amendment to get financial services out of the Bill, perhaps I could just follow his good example. I thank him very much for giving me that good idea.
I am sure that the Minister will say he tabled his amendment because the Financial Services and Markets Bill provided a considered and more sensible approach, which it did—but we perhaps need a considered and more sensible approach for all the important issues covered by EU legislation and caught by this Bill. I am talking not just about environmental issues but about consumer and trading standards and workers’ rights. Do they not justify a more considered and sensible approach, rather than this wholesale gallop towards a self-imposed deadline for a constantly shifting number of pieces of law, as listed on the dashboard, which continues to change and presumably will do so right up to the arbitrary deadline? It is a gallop that is diverting huge amounts of civil servants’ time, and all because a few Conservative MPs are allergic to anything that has “EU” in it.
Baroness Andrews (Lab)
I support the amendment in the name of the noble and learned Lord, Lord Hope, and Amendment 26. The point about consultation is extremely important, especially as it seems obvious that a lot more SIs will not fit easily into the dispose or retain buckets, and arrangements have to be made for that. One thing that has struck me forcefully as we have gone through this process so far is the whole scope of this Bill—the enormous numbers of interrelationships between EU retained law, domestic law and international law, and with the devolved Administrations as well. It is growing more and more complex by the amendment.
Throughout the debate we have heard a lot of different arguments as to why this arbitrary deadline is simply not going to work. Possibly it was understood that it would never work when it was proposed, but it may have been a sort of discipline to focus the mind. Either way, it is disingenuous, and I would have thought that by now the Minister would have had so much weight of evidence that he would find it an honourable position to say that he would be prepared to consider accepting an amendment to extend the sunset clause. I sincerely hope so, as it is very hard to envisage what those 14 civil servants would have been doing otherwise. They might have been tackling, for example, the cleaning of our rivers and many other things.
We now come on to the issue raised by Clause 2. In the famous letter from the noble Baroness, Lady Bloomfield, which I am sure was sent with positive intent, I am named because I asked a question about powers in the Bill. I literally cannot understand the reply in that paragraph, and I would be very grateful if we could have some sort of case study that exemplifies the way in which those powers will actually be used. I know that there are some excellent officials in the department working on this part of the Bill. Can we have a simple exemplar of how that would actually work?
That brings me to Clause 2. Again, all I am seeking at this stage is clarification and simplification of what we can get. When the Minister winds up, can he explain to the Committee the exact circumstances under which Clause 2 would come into effect? The noble and learned Lord, Lord Hope, has raised this issue, and I want to reinforce it. Can he tell the Committee what a specified instrument is likely to be? Does this mean a statutory instrument that has to be amended rather than kept intact or removed? Are there any other categories that might fall into the scope of this clause and, if so, what? We cannot take comfort from the idea that this exists and therefore we will be able to resolve many different problems that will suddenly find themselves being able to be passported into next year and beyond, and therefore we can stop worrying about it.
Finally, I put this question to the Minister at Second Reading: it is a really important question, but I did not get a satisfactory answer. Why is the power to modify the sunset clause not extended to Ministers in Wales and Scotland, particularly when a disproportionate burden of effort is falling on the ministries in those countries? They do not have the capacity and they need some help and some flexibility. I ask the Minister to think again, particularly about Wales, where the effective deadline will be the end of October: it will not even be December. They will be three months short of the deadline with the flexibility that we have. Can I have an answer to that specific question tonight?
Lord Hodgson of Astley Abbotts (Con)
My Lords, I have not participated in Committee before. The Committee will be aware from my speech at Second Reading that I have my concerns about the Bill, but, having sat through substantially all today’s proceedings, I have some sympathy with my noble friends on the Front Bench. They face two irreconcilable requests. We began this afternoon with an urgent need to clarify as soon as possible. I am not picking out the noble Lord, Lord Collins, particularly, but he talked about aviation, holidays and so on, and, of course, if you want to get clarity quickly, you need to resolve quickly, so you have a short deadline.
Then, later, we are now saying, through my noble friend Lady McIntosh, the noble and learned Lord, Lord Hope, and the noble Lords, Lord Hannay and Lord Fox, I think, that actually we want to spin it out, we want to push it out for time for consultation—maybe 26, maybe 28. But we all know Parkinson’s Law, which says that the job expands to fill the time available for its completion. Therefore, those who wish to push it out will have to accept that most of it will come towards the end of that period, life being what it is, and the period of uncertainty, therefore, will be extended. That is the dichotomy that the Committee is not clear about, and I am not surprised that my noble friends on the Front Bench find it quite hard to reconcile those two points of view: I have some sympathy with the position they find themselves in at present.
Baroness Jolly (LD)
My Lords, I start by apologising to the Committee for not speaking at Second Reading. I support Amendment 63, tabled in my name along with those of the noble Baronesses, Lady Finlay of Llandaff and Lady McIntosh of Pickering, and the noble Lord, Lord Hendy, and declare an interest as President of the Royal Society for the Prevention of Accidents, RoSPA.
We tend to think of the United Kingdom as a global beacon for safety. Over the last 50 years, legally enshrined protections have saved more than 125,000 lives and prevented more than 1 million hospitalisations. This has not happened by luck; it has happened because of our role as pioneers in evidence-based research, alongside our international partners. Many of these vital measures are in retained EU law and are on track to be repealed at the end of this year. They include, quite alarmingly, rules on child and adult seat belts—my noble friend Lady Randerson touched on this—hazardous substances and chemical safety standards, and essential product safety.
I want to put flesh on the bones, as did the noble Baroness, Lady Young of Old Scone, and take the example of toys. On average, every year, 100 dangerous toy products are prevented from being supplied in the UK by trading standards. According to data from RoSPA, should the toy safety regulations be revoked, statistics tell us that the UK will go from zero recorded deaths caused by toys to two deaths and 5,000 children being seriously injured and needing to be admitted to hospital every year, the same as we experienced before regulations were put in place in 2002. This is just one example out of hundreds of laws that protect our citizens, including children, on a daily basis, 24 hours a day, 7 days a week, 365 days a year.
I understand the need for this Government to uncouple themselves from the EU as part of Brexit, but this is a very important, very delicate exercise, which must be treated with the utmost care. It is no use “taking back control” if the way this Government choose to use their control is by bypassing proper parliamentary scrutiny and repealing thousands of laws, of which hundreds are life-saving safety laws, without any due process.
That is why I propose this amendment, which will require a health and safety impact assessment for each piece of EU-derived legislation set for revocation not less than 90 days prior to the intended date of revocation. Parliament deserves to see the truth about every law set to be repealed, so that we can make an informed decision about how to proceed. I am sure that plenty of revocations will pose no health and safety risk and that this House will be comfortable repealing many of these laws. However, just as there are things in this list that we do not need, there are also many that we do, and this House must be given the necessary information to be able to distinguish between the two.
The NHS is facing an unprecedented crisis. Hospital emergency departments are more stretched than ever and ambulances are queuing to offload their patients and go to their next emergency. Actively creating the conditions for thousands of people to suffer more accidents and emergencies at a time like this would be absurd. I hope that reason prevails and the Government back this essential amendment.
Lord Whitty (Lab)
My Lords, I came in this afternoon to join the environmental debate, because I knew of the anxieties among those concerned with the environment. They feel that there is a strong possibility that their area of concern will fall without proper consultation, involvement or debate 10 months from today.
Having sat through the environmental debate, I began to feel a strange emotion: I felt very sorry for the Government—for Ministers on the Front Bench and other Ministers here. The inadequate letter we received from the noble Baroness, Lady Bloomfield, shows that they are really not on top of this, and they will not get on top of this in the timescale they have set themselves. We can make all sorts of detailed amendments, but the Government’s main way out of this is to accept the two amendments from the noble Baroness, Lady McIntosh, and extend the period of consideration for retained law so that stakeholders, business, consumers, et cetera, can consider the real implications of the laws and the alternatives, and so that the Government will have the ability to introduce a proper parliamentary process for reviewing the totality of this exercise.
I really think that Ministers will have to think again if they are going to attempt to meet the deadline that they have unnecessarily set themselves. If they give themselves more time, maybe something like this Bill will survive and the process that they started will succeed. If not, I am afraid that I can see nothing but the defeat of this Bill as a whole, and a lot of people continuing to feel great anxiety until that happens. So I appeal to Ministers to recognise reality, accept the amendments from the noble Baroness, Lady McIntosh, and let us move on.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the noble Baroness, Lady Jolly, for the way that she introduced her amendment in this group, to which I have added my name. The beginning of the letter circulated earlier says:
“The Government remains committed to protecting consumers from unsafe products. From toys to cosmetics, these products are essential to our daily lives and ensuring they are safe underpins both consumer confidence and competitive markets”.
Yet we are faced with a large amount of health and safety legislation simply falling, with no real understanding of why. That is why I added my name to the amendment. A lot of aspects of health and safety are complained about by some of the people who have to implement the regulations—they say they are excessive—yet, as has already been said, they save thousands of lives every year. It comes down to the fundamental question of how much value we put on the lives of our citizens.
We started off today discussing child seat belts. The noble Lord, Lord Deben, and the noble Baroness, Lady Randerson, certainly dealt with that topic comprehensively, but I want to touch on seat belts in general. Before the 1980s legislation, when only 40% of people wore seat belts, there were about 500 deaths a year and about 10 times as many hospital admissions to treat serious injuries—so, about 5,000. In 2021, a quarter of the people who died on the roads were not wearing seat belts, despite our existing legislation. It seems that there are approximately 75 deaths every year in the UK from people not wearing seat belts. That is a dramatic decrease, and it is also a dramatic decrease in cost to the nation of managing serious injury.
Lord Hamilton of Epsom (Con)
My Lords, I speak to Amendment 27 in the name of my noble friend Lady McIntosh of Pickering and the noble and learned Lord, Lord Hope. I have always had great reservations about extending the sunset clause by any time at all, and I am quite surprised that nobody has mentioned this. The Bill gives the Government astronomical powers to use secondary legislation not only to amend EU law but to create completely new laws. I have great worries about doing this for any longer than is absolutely necessary. We have to think very carefully about whether we want to extend this period at all.
The noble Lord, Lord Benyon, has said—at least, it has been attributed to him— that, by default, if we cannot think what else we are going to do with these laws, we will keep them. If the Government keep just to the sunset clause of the end of this year, they will have to keep virtually everything—I do not know why anybody has an argument with that—and they can then revise it under primary legislation later if we do not have this extension at all. We have to very seriously think about this.
The real solution to all this is, of course, Amendment 44 in the name of the noble Lord, Lord Carlile, which says that we must have a sifting system to decide what we do with all this legislation. An awful lot of it can go through under secondary legislation, particularly if we are keeping it, but, at the same time, some bits of legislation will make major changes to EU law, and that should be done under primary legislation. If we have that as a sifting system—I am not sure I agree with the mechanism that he suggests, but I agree in principle with his amendment—all this falls by the side, because we then have a system where all this can be dealt with. We can extend the period beyond the end of this year and it can all be dealt with sensibly like that. As long as we are viewing this amendment on its own, I certainly could not support it and would advocate for saying that we should have sudden death at the end of this year, concentrate the minds of everybody and either keep this law or get rid of it, but do not muck about with it for endless years to come.
Lord Hendy (Lab)
I shall speak to Amendment 63, to which I added my name to those of the three noble Baronesses, Lady Jolly, Lady McIntosh and Lady Finlay. Amendment 63 would protect health and safety by requiring a health and safety assessment of each piece of legislation which will, or may be, repealed or revoked by the Bill. I shall confine my comments this evening to a subset of legislation which might have an impact on health and safety, and that is the law relating to health and safety at work. Obviously, I support the arguments so eloquently advanced by the noble Baronesses, but I should like to advance a different argument. It is a matter that has been raised in debates on the Bill a number of times, but in general terms: the EU-UK Trade and Cooperation Agreement. I should like to deal with that specifically in relation to health and safety at work.
I shall read to the Committee the relevant words of the trade and co-operation agreement, beginning with Article 386. It is only a few sentences; no one need fear that I shall keep them here for hours. Article 386.1 states:
“For the purposes of this Chapter, ‘labour and social levels of protection’ means the levels of protection provided overall in a Party’s law and standards in each of the following areas”.
It sets out a number of areas, of which paragraph (b) is
“occupational health and safety standards”.
Article 387.2 states:
“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.”
So the United Kingdom has signed up in a treaty to not weakening or reducing its occupational health and safety standards in a manner which might affect trade or investment. Bearing in mind what the noble Lord, Lord Clarke of Nottingham, said earlier this evening about the objective of the Bill being to reduce costs—one would add, in order to make British industry more competitive—it is clear that this article is engaged.
There is just one more article to which I draw attention, Article 399.5, which says:
“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted”.
There, the commitment of the United Kingdom is the implementation of ILO conventions and European Social Charter provisions ratified by the UK. I can assist on what those are in relation to occupational health and safety; there are only three passages that I need to share with your Lordships. First, there is ILO Convention No. 187, the Promotional Framework for Occupational Safety and Health Convention 2006, which was ratified by the United Kingdom. Article 2 of it states:
“Each Member—
each member state, that is—
“which ratifies this Convention shall promote continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths, by the development, in consultation with the most representative organizations of employers and workers, of a national policy, national system and national programme.”
Article 3 says:
“Each Member shall promote a safe and healthy working environment by formulating a national policy … Each Member shall promote and advance, at all relevant levels, the right of workers to a safe and healthy working environment … In formulating its national policy, each Member, in light of national conditions and practice and in consultation with the most representative organizations of employers and workers, shall promote basic principles such as assessing occupational risks or hazards; combating occupational risks or hazards at source; and developing a national preventative safety and health culture that includes information, consultation and training.”
Article 4 says:
“The national system for occupational safety and health shall include among others … laws and regulations, collective agreements where appropriate, and any other relevant instruments on occupational safety and health”.
The European Social Charter is even clearer. Article 3, which was specifically ratified by the United Kingdom, on
“The right to safe and healthy working conditions”,
states:
“With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Contracting Parties undertake … to issue safety and health regulations … to provide for the enforcement of such regulations by measures of supervision … to consult, as appropriate, employers’ and workers’ organisations on measures intended to improve industrial safety and health.”
It is quite clear that, if the current raft of provisions on health and safety at work, some of which I listed at Second Reading, is revoked or diminished, we will be in breach of the EU-UK Trade and Cooperation Agreement. The only way we can avoid that is by the Government exempting health and safety at work in the same way as they propose to exempt the financial sector through Amendment 45. Will the Minister give that assurance?
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, we have had almost an hour on this topic.
Baroness Bloomfield of Hinton Waldrist (Con)
The Minister must be allowed to speak.
Lord Callanan (Con)
I will start by speaking to government Amendments 31, 41, 45, 52, 138 and 144. Amendments 31, 41 and 144 remove relevant subsections from the Bill as they are now included in the new clause. These are purely for drafting clarity and therefore do not change the policy intent or effect of this Bill in any way.
Lord Davies of Brixton (Lab)
My Lords, I am being denied my right to speak.
Lord Callanan (Con)
The proposed new clause tabled in Amendment 45 sets out clearly and in one place all the exceptions to the sunset in Clause 1. It includes exceptions that were previously located elsewhere in this Bill.
Baroness Chapman of Darlington (Lab)
I was quite happy not to speak in this debate. I did not table an amendment. I would like to have spoken to amendments tabled by the noble Baroness, Lady McIntosh of Pickering, and other noble Lords, but I have denied myself that. Much as I would like to go home, the same as everyone else, I find it quite extraordinary that the Minister is not willing to allow a noble Lord who has sat here since the beginning of this debate and during earlier groups too to make even a couple of short remarks.
Lord Callanan (Con)
They are not short remarks. They are nothing to do with the amendments in question. The noble Lord, Lord Hendy, has just spoken for about 10 minutes on issues that are totally unrelated to the subject in question. On group 1, we discussed all the labour law provisions at great length. They are raising irrelevant points.
Lord Davies of Brixton (Lab)
On the previous day in Committee, I raised the issue and the Minister said explicitly that we could debate it at a later stage on this clause. He is now breaking his word. He explicitly said that we could discuss the issue that I wished to raise.
Lord Callanan (Con)
Okay, let the noble Lord raise his point.
Lord Davies of Brixton (Lab)
I wish to address subsection (1)(a) of the new clause. It is about process rather than the issues. I support the issues that have been raised by my noble friends, but the issue of process is important and comes up under this section.
I was unable to be present at Second Reading because I was taking part in Committee of the Financial Services and Markets Bill, which is directly relevant to this clause, as the Minister well knows, because the clause excludes the European regulations covered by that other Bill. I asked in Committee on that Bill why there was a difference in treatment. Why do we have one Bill for these regulations and another for the other regulations? In that debate, the Minister, the noble Baroness, Lady Penn, said that unlike the approach taken with this Bill, that Bill repeals retained EU law in financial services. She continued:
“The Government will continue to repeal and replace the contents of Schedule 1 until we have an established a comprehensive FSMA model of regulation.”—[Official Report, 25/1/23; col. GC 71.]
The important point is that the Financial Services and Markets Bill had an extensive two-year period of consultation, on the principal legislation and on the regulations. There were two formal consultations; the Bill had 346 pages; there was a Public Bill Committee session of nine meetings, eight oral witnesses, 54 items of written evidence, an Explanatory Memorandum, and extensive debate and discussion.
At Second Reading of this Bill, the Minister said:
“Without the sunset as a default for retained EU law, we risk unsuitable or obsolete EU laws still being on our statute book in 10, 15 or even 20 years’ time.”—[Official Report, 6/2/23; col. 1080.]
What is the difference between the rules under the two Bills? It is not a simple technical issue; it goes to the heart. It is the process being adopted. I want a satisfactory answer from the Minister on what the difference is between the two Bills. The crucial difference is that in the financial services Bill, there is no sunset clause. I could go on at length. In view of the time, I simply ask that question.
Lord Callanan (Con)
I will address the noble Lord’s point at the end of my remarks, after I have moved the government amendments.
I think I had got to the new clause tabled as Amendment 45. The new clause sets out clearly and in one place all the exceptions to the sunset in Clause 1. I will explain the financial services issue at the end.
It includes exceptions that were previously located elsewhere in the Bill but have now been consolidated into the proposed new clause, such as exceptions for instruments specified in regulations—the preservation power—and for relevant financial services law. It also contains a number of amendments that will help departments deliver our ambitious EU law reform programme. The first of these is to ensure that, when a decision is taken to preserve retained EU law, any legislation that is made or has effect under it will also be preserved alongside the parent legislation, without it having to be individually specified in regulations. The parent legislation establishing a regime, for example, would still be reviewed under the programme but, once a decision to keep such a regime is made, it will not be necessary to reassess every single licence, for instance, or decision issued under that regime.
The second of these amendments allows for the preservation of a description of minor instruments, without the requirement to individually identify and specify them. This includes where these instruments are made directly under primary legislation that is not in scope of the sunset. This and the previous amendment remove the need to individually list large numbers of what might not be traditionally considered legislative instruments in order to preserve them.
A third minor amendment would remove any existing “transitional, transitory or saving” provisions from the scope of the sunset. In a number of areas we have already reformed retained EU law and, in some cases, we have made “transitional, transitory or saving” provisions, whereby some aspects of the previous legislation were saved to support implementation of or transition to the new regime. The aim of the Bill is not to undo or revoke retained EU law reform that has already been made. Thus, this amendment will ensure the continued legal operation of retained EU law that has been identified as necessary to serve a particular purpose, often for a time-limited period.
Finally, this proposed new clause introduces new wording to ensure that references to instruments or provisions in preservation SIs apply only so far as the provisions would otherwise sunset. Consequently, this puts beyond doubt that, where an SI references instruments that contain provisions that are not in scope of the sunset, the instrument is still lawfully made within the power.
Ultimately, this new clause provides drafting clarity. It will make the exemptions to the sunset much clearer, gathering them all in one place. It also introduces four minor and technical amendments that I have just explained in detail but that do not change the overall policy. They facilitate departments to preserve legislation more easily, where they deem it appropriate to do so, and respond to many of the points made in the debates on previous groups.
Amendment 138 is also minor and technical, and serves merely to change the reference to Clause 1 in Part 3 of Schedule 4 to a reference to the new clause created by Amendment 45.
Amendment 52 will update the drafting of the new clause, but in Clause 2. It will insert the wording “so far” after “section 1”. In effect, this will ensure that references to specified instruments or provisions in extension SIs apply only to those provisions so far as they are in scope of the sunset, and do not relate to any provisions not in scope of the sunset.
These amendments are all minor drafting clarifications or changes and do not change the scope of the sunset or the policy of the Bill. I hope noble Lords will look at Hansard if they want the details of them.
There are a large number of other amendments that seek to limit the ambitions of the sunset or to insert additional complex processes into the operation of the sunset clause. It is our belief that none of these is appropriate for this Bill and that they are likely only to hamper efforts to realise the opportunities that the Bill presents.
To start with, Amendments 46 and 47 tabled by the noble Baroness, Lady Young, aim to amend government Amendment 45, which I have already discussed. To reiterate, the exceptions within Amendment 45 are only sector-specific in the case of financial services, where the retained EU law in question will be reviewed via the separate legislation to which the noble Lord, Lord Davies, already referred, which is already being planned and implemented. The legislation put forward by the noble Baroness would not be appropriate to remove from the scope of the sunset. We just had a very long debate on the issues with exempting specific environmental legislation from the scope of the sunset, and I hope noble Lords accept that we do not need to repeat that on this group.
I turn to Amendments 26 and 48, tabled by the noble Lord, Lord Fox. The consulting and reporting requirements introduced by these amendments would limit the sunset as a key driver of reform and would therefore narrow the ambition.
A significant minority of retained EU law is also legally inoperable. Removing it from the statute book swiftly is good democratic governance. Requiring the Government to undergo complex and unnecessary parliamentary processes to remove legally inoperable retained EU law that is unnecessary and no longer fit for purpose is not good governance.
Where reforms are being made to retained EU law, the normal processes of consultation will of course be followed where appropriate and the relevant reforming legislation scrutinised as usual. It is not necessary to add additional complexity to the existing legislative process.
Baroness Bennett of Manor Castle (GP)
The Minister referred to Amendment 26 and 48 as additional complex processes. Does he not acknowledge that these would protect the Government from themselves, in that the implementation would ensure that regulations—which might not be on the dashboard, or might be unspecified or, as others have called them, “unknown unknowns”—would not lapse? They would ensure that everything that was going to lapse was identified, because if it had not been identified and had this report, it would not lapse.
Furthermore, the Government are relying entirely on the knowledge of the department. If they have a consultation before anything is removed, that would draw on the knowledge of all of civil society and the expert community to ensure that there is full knowledge before any changes are made.
Lord Callanan (Con)
No, I do not accept that, because the vast majority of the rule that would be allowed to sunset is now legally inoperable and not working. My noble friend Lord Benyon gave some examples earlier of the kinds of measures that we are thinking about. All of the major legislation that everybody is concerned about, and which has been raised at great length, will be subject to the existing provisions. It can be saved if it is appropriate, or it can be allowed to be reformed, in which case there will be the normal processes of consultation and approval of both Houses that everybody has been concerned about.
I turn to Amendment 63 from the noble Baroness, Lady Jolly. Again, it is not necessary to add a lengthy and complex process to every revocation of retained EU law. The Bill already contains appropriate scrutiny mechanisms to ensure good democratic governance.
Amendments 27 and 28 are proposals to push back the sunset date to 2028. Again, we do not think that these amendments are appropriate. I suppose I am grateful to my noble friend Lady McIntosh of Pickering for acknowledging that we actually need a sunset. The principle of it is agreed, but we disagree on whether 2023 will work. I submit that it will. I understand that many noble Lords are concerned about the timelines in the Bill, and that this amendment seeks to push back what is wrongly perceived as a “cliff edge” date. Firstly, the 2023 sunset date was chosen because it is the quickest and most efficient way to enact retained EU law reform. It will allow us to swiftly remove retained EU laws that are no longer appropriate and are not in the best interests of UK businesses and consumers.
Secondly, I reassure the House that this is not a new programme. Work is well under way in each department and has been for over a year. Departments are continuing to draw up plans for every piece of retained EU law in scope of the sunset. Noble Lords heard earlier about Defra’s plans, and departments will provide further detail on their own particular plans in due course. Of course, the Department for Business and Trade will continue working closely with other government departments and the devolved Governments to ensure that all appropriate actions are taken well ahead of the sunset date.
As further reassurance, let me remind the Committee that the extension mechanism in Clause 2 ensures that, should more time be required to review and amend retained EU law, the sunset can be extended for specified pieces of legislation until 23 June 2026. This will give departments plenty of time if there is more complex reform that they want to undertake.
Baroness Ludford (LD)
My Lords, I and everybody else wants me to be brief. I was astonished to hear the Minister describe a considered process of consultation and reporting as complex and unnecessary. I would be interested to hear the response of the CBI to such a characterisation of what is surely a part of good governance: consulting people who are going to be affected and then reporting to Parliament, which should be in the driving seat of this process. Indeed, it was promised that Parliament would be in the driving seat of this process; that is why we were taking back control, we were told. I welcome and agree with the intervention of the noble Baroness, Lady Bennett.
The Minister also said that such consultation would “hamper attainment of our ambitions”. I am afraid the Minister’s slip is showing because that displays the intention of slash and burn. He does not want a considered process of consultation; he just wants to chuck it all out. That is precisely what businesses and other stakeholders fear: that this is window-dressing—a gesture politics Bill which has an ideological motive, rather than one to get good, proper, appropriate regulation.
The Minister mentioned the financial services Bill, and we keep mentioning it because, if we want to change EU law, there are issues around that to do with divergence and so on—but it is “if”. The Prime Minister lauds Northern Ireland being in the single market. Perhaps he would like to give the single market back to us in Great Britain. The advantage for Northern Ireland is being close to EU regulation. Whether or not one wants to diverge, the way to do it is through primary legislation, where you list all the measures you are going to keep and not keep. Businesses, trade unions, charities, campaign groups and so on fear very much that the Government are being cavalier about what they are doing in the Bill and about the substance of regulation which they have grown used to.
I find Amendment 45 quite impossible to understand. The Minister says that it consolidates things elsewhere in the Bill. I suppose it has the advantage of bringing to our attention how peculiar these provisions are:
“any specified instrument or provision of an instrument or anything having effect under the specified instrument or provision … any specified description of minor instruments”.
I really find this quite difficult to understand and I would be grateful if the Minister could write to me, and put a copy of the letter in the Library, to give us some examples of what is being covered here.
I am afraid that the Minister has not really convinced me of why the Government are not prepared to properly consult, properly explain and properly reason what they want to do. That said, I beg leave to withdraw the amendment.
Retained EU Law (Revocation and Reform) Bill
Thursday 2nd March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-IV Fourth marshalled list for Committee - (2 Mar 2023)
Baroness Humphreys
“(1A) Subsection (1) does not apply to an instrument, or a provision of an instrument, that—(a) would be within the legislative competence of—(i) the Scottish Parliament if it were contained in an Act of the Scottish Parliament,(ii) Senedd Cymru if it were contained in an Act of Senedd Cymru, or(iii) the Northern Ireland Assembly if it were contained in an Act of the Northern Ireland Assembly, or(b) could be made in subordinate legislation by—(i) the Scottish Ministers, the First Minister or the Lord Advocate acting alone,(ii) the Welsh Ministers acting alone, or(iii) Ministers of the Northern Ireland Executive.”Member's explanatory statement
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 each of the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly or Executive.
Baroness Humphreys (LD)
I am grateful to the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, for adding their names to this amendment and for their support. I will also refer briefly to Amendment 49, tabled by the noble Baroness and the noble and learned Lord.
Amendment 29 is the first in a series of amendments which will enable your Lordships to explore the position of the devolved Governments on this Bill and to examine their response to it in detail. I will be speaking about the response of the Welsh Government, of course, but I recognise that other devolved Governments will have similar experiences and different problems.
The amendment restricts the sunsetting of EU legislation so that it does not apply to legislation that is within the legislative competence of the devolved Administrations—in essence, protecting the ability of the devolved Administrations to sunset their own retained EU laws. In general, I think it fair to say that the Welsh Government and the Senedd have very serious concerns about many aspects of the Bill, echoing those expressed by many of your Lordships at Second Reading. They have so many concerns that the Counsel General for Wales went so far as to say that the Welsh Government fundamentally oppose the whole intent of the Bill.
The Welsh Government’s position is that retained EU law works well for them in their areas of devolved competence and, again in the words of the Counsel General for Wales, that they had no intention of repealing, revoking or amending retained EU law to an arbitrary deadline, preferring gradually to amend the law as appropriate with evidence-gathering, public consultation and legislative scrutiny in the normal way over time, as with any body of law. Without the certainty that Amendment 29 gives and without an extension to the sunset, which we will debate in a later group, the Bill no longer gives them that option.
Amendment 29 addresses the concerns of the Welsh Government and Senedd Members who fear that the UK Government will attempt to take some responsibility—or just responsibility—for the sunsetting of laws in Wales. In January, the Senedd’s Legislation, Justice and Constitution Committee was very concerned about the position of devolved retained EU law and asked whether the Welsh Government had received reassurance from the UK Government that they will not change or remove devolved retained EU law without the consent of the Senedd. The Counsel General had not received reassurances a month ago. Can the Minister give those reassurances today? Senedd Members are obviously concerned about the impact of the UK Government proposing legislation such as this. They believe that by default it could repeal essential economic, social and environmental protections—protections that the Welsh Government believe are essential for the operation of their policies on behalf of the people of Wales, and that this is unacceptable.
The Welsh Government have said that their prime focus is
“firstly to ensure that we analyse and retain our own EU retained law, that we focus on that law that’s been made within Wales”.
This is the primary reason for putting down this amendment. It is designed to ensure that the legislative competence of the Senedd is recognised and protected, and that responsibility for sunsetting EU-derived subordinate legislation and retained direct EU legislation lies with the Senedd.
My noble friend’s Amendment 49 asks for a progress report on the identification of EU legislation that has been incorporated into law by the devolved Administrations. I will leave my noble friend to deal with the details when she speaks to her amendment, but I will make a brief comment. I did expect this exercise to be a joint venture, with the UK Government assisting or even leading in the identification of the various pieces of legislation that fall under the Bill, but a few difficulties have arisen. This amendment has my full support and I hope the Minister will update the Committee on progress. I beg to move.
Lord Hope of Craighead (CB)
I have added my name to the amendment in the name of the noble Baroness, Lady Humphreys, which has my full support, but I will also speak briefly to two other amendments in this group in my name—Amendments 34 and 55—which have the support of the noble Lord, Lord Murphy.
Everything the noble Baroness said on Wales applies equally to the position in Scotland, which is just as acute and difficult. I will give some figures on the problem we face. If you examine the dashboard and look, for example, at entries that relate to the responsibilities of Defra, which cover a lot of the work done in Wales and Scotland, you will find 1,781 such entries. Mention is made in this clause of legislation relating to Wales and Scotland, but the numbers are tiny compared to those recorded for Defra itself: there are only 30 relating to Scotland and 15 to Wales, and they concern only agriculture among Defra’s much wider responsibilities. So, I detect that the no doubt authoritative information in the dashboard is incomplete, especially for the devolved Administrations, which illustrates the great problem to which these amendments direct our attention.
May I venture to suggest one other problem, which relates to the relationship with the devolved Administrations? In its report of some two years ago, the Constitution Committee indicated, with the support of the Government’s reply, that the watchwords in dealing with the devolved Administrations should be “respect” and “co-operation”, and that, indeed, is what the noble Baroness’s amendment is all about. One of the extraordinary things about the Bill is that there was no sign of any attempt to discuss the sunset date with the devolved Administrations before it was introduced last September. If I am wrong about this, I am sure I will be corrected by the Minister, but all the signs are that the work simply was not done before the sunset date was set. Indeed, before the Bill reached this House, I do not think much work was done otherwise.
I therefore have a particular question for the Minister on something to which this House is entitled to an answer anyway: what is the present state of discussions with these two devolved Administrations about the possibility of a legislative consent agreement? As the Bill stands, it is clear that neither Administration would give its consent, but the Government’s responsibility is to continue discussions with them. We need to know what work is being done, whether work is continuing to achieve agreement and what the disagreements, if any, relate to. We probably all know what they are, but the Minister needs to update the House at some point during Committee. When the matter comes back on Report, we will expect a complete account of the relationship with the devolved Administrations in relation to legislative consent.
The noble Baroness’s Amendment 29 seeks to remove all legislation that is within devolved competence from the automatic sunset. It will then be for the Government to find another date after discussion with the devolved Administrations. As I said when we discussed this on Tuesday, I believe in sunset dates to make sure there is some pressure to get the work done, but it must be a proper date that is discussed with the devolved Administrations so they can reasonably meet it.
Amendment 49, which is supported by my noble friend Lady Finlay of Llandaff, is a probing amendment seeking information that should have been in the Government’s hands long ago. It makes the same point made by the noble Baroness, Lady Humphreys, on the lack of a clear and comprehensive statement. There is a real problem here of finding out what the legislation is dealing with. Direct EU legislation is not difficult to find and, from the work we do in the Common Frameworks Scrutiny Committee, we can identify it readily. The difficulty arises with EU-derived subordinate legislation and UK legislation relating to the subject matter, which has to be sorted out and understood before one gets into identifying what EU-derived legislation needs to be dealt with. This suggests that each SI in these subject areas needs to be examined and studied very carefully to see what legislative power is being exercised.
Once again, I stress that the Committee needs to know what risks the devolved Administrations are being confronted with. We need a full, frank, detailed and honest assessment. We will come back to this matter when we discuss my noble and learned friend Lord Judge’s Amendment 32 in a later group. For these reasons, I support Amendment 29, tabled by the noble Baroness, Lady Humphreys, and Amendment 49, tabled by the noble Baroness, Lady Randerson.
I turn to an entirely different matter that is the subject of Amendments 34 and 55, which deal with sunsetting the common frameworks. Amendment 34 seeks to disapply the sunset to legislation relevant to the policy content of the common frameworks. Amendment 35, tabled by the noble Baroness, Lady McIntosh, is similar. Amendment 55 suggests a different sunset for the common frameworks, at the end of 2026.
The problem that these amendments seek to address is that, as far as I can detect, the Bill seems to ignore and thus undermine the role of the common frameworks, which are designed to be guided by consensus across all four Governments. That is what “common” means in this rather strange formula; the frameworks are common to the four Administrations, which all have a share in this process, which proceeds with discussion and common understanding. They allow for divergence for reasons of policy, as Section 10 of the United Kingdom Internal Market Act recognises, but only where there is agreement among them all. There is a dispute resolution process, but I do not believe that it was designed for the kinds of disagreements that may arise if the procedures in the Bill are applied to them. The Minister needs to consider the position of the common frameworks much more carefully regarding the work that is proposed.
I should give some indication of the ground that the common frameworks cover and their importance to the way in which the United Kingdom’s internal market is being developed, with the willing co-operation of the devolved Administrations. There are 32 common frameworks, extending over the work of seven government departments, ranging from what was BEIS to the Department for Transport. Fourteen of them relate to Defra, as I mentioned earlier, and its equivalents in the devolved Administrations. I will not set out the full list, but they include animal health and welfare, chemicals and pesticides, ozone-depleting substances and fluoridated gases, plant health, air quality, and food labelling and compositional standards. These are extremely important areas of our internal market, which are well settled in the frameworks and should not be disturbed.
Baroness Ritchie of Downpatrick (Lab)
My Lords, like the noble and learned Lord, Lord Hope of Craighead, I serve on the Common Frameworks Scrutiny Committee. We have met with a level of frustration about this Bill and the delay in some of those common frameworks coming forward. They are an important element of devolution and provide for that element of divergence.
I support Amendment 29. I have other amendments in my name and that of the noble Baroness, Lady Suttie, in this group but, in relation to Amendment 29 and the issue of sunsetting, could the Minister indicate how the Government will protect the new Windsor agreement, which underpins devolution in Northern Ireland, from 1 January 2024, given the revocation of retained EU law from that date?
The purpose of Amendment 147 and, in particular, Amendment 33 is to ensure that Northern Ireland is removed from inclusion in this Bill—in fact, Amendment 147 states that—due to the influence and impact of the Protocol on Ireland/Northern Ireland, because I believe that the Windsor agreement of this week is simply an implementation plan of the protocol with mitigations. In this regard, I refer to Article 2 as well as to environmental considerations. Amendment 33 would prevent the automatic revocation or sunsetting of EU-derived subordinate legislation and retained EU legislation that relates to human rights, equality and environmental protections as they affect Northern Ireland. This would include all such legislation that falls within the scope of Article 2 of the protocol.
I and the noble Baroness, Lady Suttie, have spoken to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, which are tasked with statutory oversight of the UK Government’s commitment under Article 2 of the Protocol on Ireland/Northern Ireland to ensure no diminution of certain equality and human rights protections in Northern Ireland as a result of Brexit. These equality and human rights protections relate back to the Good Friday agreement of 10 April 1998. Quite rightly—this is the purpose of these amendments—both commissions are concerned that this commitment has not been properly considered in the development of the Bill and that the proposed sunsetting of EU-derived subordinate legislation and retained direct EU legislation risks a breach of Article 2 unless all relevant legislation is identified and preserved by the set deadlines.
This pressure is exacerbated by the absence of an Executive in Northern Ireland at the moment. Could the Minister provide us with some detail about any work that has been ongoing in relation to that? Both commissions believe that the Bill should be amended to include a clause confirming that the provisions of the Bill are without prejudice to Section 7A of the European Union (Withdrawal) Act 2018. Amendment 142 in our names, which is in another group, refers to this. Both commissions have welcomed assurances by the UK Government of their commitment to Article 2 and their acknowledgment that the commitment is non-controversial. However, a number of concerns have been identified.
I have a couple of questions for the Minister. If cannot respond today, maybe he could come back to me in writing. Could he set out the steps that will be put in place to mitigate the risk of inadvertent failure on the part of the Government or devolved authorities to preserve or restate all relevant EU-derived subordinate legislation in Northern Ireland and retained EU legislation within the scope of Article 2, within the set deadlines in the Bill, in the absence of the Bill being amended to include measures that protect against this risk? Would the Minister also set out in detail—I would be grateful if he could do so in writing—what consideration was given to ensuring compliance with Article 2 in the development of the Bill, including in the identification of the specified legislation?
In relation to Amendment 142, there is a concern that the environment will not be properly protected. There is therefore a need for Northern Ireland to be removed from this. In an area of political instability, where the Executive and Assembly are currently not operating, we need full measures within the legislation to ensure that Northern Ireland is not covered and that it is removed in terms of the environment. Will the Minister specify the steps that he will take on behalf of the Government to do just that?
Baroness McIntosh of Pickering (Con)
My Lords, I will speak to Amendment 35 in my name. I thank Michael Clancy and everyone at the Law Society of Scotland for helping me prepare for this group of amendments and another group of amendments which will follow. A lot of what I will say echoes what has already been argued by the noble and learned Lord, Lord Hope, with much of which I was in agreement.
The effect of Amendment 35 is to ensure that the sunset provision in Clause 1 will not apply to any common framework. I pay tribute to the Common Frameworks Scrutiny Committee and the work it does, not just in relation to this Bill but on other matters as well. One of the most successful methods to manage intra-UK divergence has been the creation of common frameworks, which are defined in the United Kingdom Internal Market Act 2020 as a
“consensus between a Minister of the Crown and one or more devolved administrations as to how devolved or transferred matters previously governed by EU law are to be regulated after IP completion day.”
The Common Frameworks Scrutiny Committee, in its report entitled Common Frameworks: An Unfulfilled Opportunity?, noted that
“the UK Government considers how legislation it brings forward might conflict with relevant common frameworks, impede their successful operation, and affect the health of the Union.”
The Government responded to that conclusion in the report by saying:
“The Retained EU Law … Bill”—
the Bill before us today—
“insofar as it introduces the date for the sunsetting of retained EU law … will impact upon most if not all of the Common Frameworks. The UK Government has committed to the proper use of Common Frameworks and will not seek to make changes to REUL falling within them without following the ministerial-agreed process in each Framework.”
That statement is welcome, but it does not go far enough and it does not welcome the current state of play.
Noble lords may be aware that, last week, the Scottish Parliament voted to withhold its consent for the UK Government’s Retained EU Law (Revocation and Reform) Bill; it did so as a means of calling for the Bill to be withdrawn. Earlier, on 10 February, Angus Robertson, Cabinet Secretary for the Constitution, External Affairs and Culture, sent a letter to the incoming Secretary of State for Business and Trade setting out the concerns of the Scottish Government in this regard and noting that these concerns had been raised previously with the UK Government at the time that the Bill was before the House of Commons. The Government have had ample opportunity to listen to the concerns so eloquently expressed by the noble Baroness, Lady Humphreys, in relation to the Welsh Government, and those raised by the Culture Secretary in the Scottish Parliament, Angus Robertson, and have declined to act on those concerns.
I would like to give my noble friend the opportunity to comment on the amendments that the Scottish Government have set out, one of which closely echoes Amendment 27 which I moved on Tuesday this week. Their option one is to remove the sunset clause in Clause 1 from the Bill entirely. Their option two is to remove devolved areas from the sunset clause in Clause 1. Their option three is to keep the sunset but move it to a later date and enable Scottish Ministers to extend it. Their option four is to enable Scottish Ministers to extend the sunset date in Clause 1.
The UK Government cannot continue in this arbitrary fashion, overriding the wishes of two separate nations, having this week celebrated the very good news regarding the Northern Ireland protocol. This is an opportunity for my noble friend to make good the commitments in the common framework agreements, as echoed in the conclusions of the Common Frameworks Scrutiny Committee, and I urge him to choose one of the options. I argue that my Amendment 27 is the best, but one of these options must be agreed, otherwise we will simply not make any progress with this Bill.
Baroness Andrews (Lab)
I support Amendments 34 and 55 in the name of my noble friend Lord Murphy, who cannot be in his place, and Amendment 35, tabled by the noble Baroness, Lady McIntosh. I declare my interest as chair of the Common Frameworks Scrutiny Committee.
I start by saying how much I support Amendment 29. The noble Baroness made a powerful and explicit speech about the real, practical concerns that are now so evident in the Welsh Senedd, the Legislation, Justice and Constitution Committee, and the Welsh Government. The exam question for the Minister, and for the Front Bench as a whole, is whether they are prepared to legislate without the consent of the Welsh and Scottish Governments. I would very much like an answer to that question at the end of the debate—the Minister is nodding already.
Lord Hannay of Chiswick (CB)
My Lords, I rise to support Amendment 29 in the names of my noble and learned friend Lord Hope and others.
A couple of weeks ago your Lordships’ European Affairs Committee, on which I have the honour to serve, went to Cardiff and Edinburgh to take evidence in the context of our current inquiry into the future of UK-EU relations. During those visits, on which we talked to Members of the Senedd and the Parliament in Edinburgh, the points about this Bill, and above all the points covered by my noble and learned friend’s amendment, were raised forcefully with us by representatives of all parties, including the party that supports the Government, in both Cardiff and Edinburgh. They told us they were completely in the dark about the application of this Bill if it became an Act, and in particular about how it would impact on the areas that my noble and learned friend has drawn attention to, which are devolved and are the responsibility of the Scottish and Welsh Governments. They said they were really worried that this would lead to many unforeseen negative consequences.
They said there had been no contact or discussion at the political level between either the Welsh or Scottish Government and Whitehall about these measures. There had been contact at official level, of course, and in previous parts of the debate on the Bill here, Ministers have said, “Oh, well, there are some jolly good contacts going on at official level and civil servants are talking to each other”. That will not do; it is not enough. There must be a dialogue with the Welsh and Scottish Governments about this issue; it deeply concerns them.
I hope that the Minister, when he comes to reply to the debate on this amendment, will give certain undertakings in that respect. Above all, I hope he will commit and say categorically that if this amendment is not put to a decision today—it is of course axiomatic that it will not be—these contacts at political level with the Welsh and Scottish Governments will take place between today and Report and he will report back to this House what has passed in those contacts. Without that, we are just heading towards greater and completely unnecessary discord. I hope this point can be taken on board. I do not think it a great deal to ask the Minister to commit himself to. Frankly, it is astonishing that it has not happened already.
One of the things that was quite clear from our contacts in both Cardiff and Edinburgh was that this absence of certainty about what is covered by the sunset clause is itself extremely damaging. Nobody has been able to tell them the list of measures that would be affected by the sunset clause. So I hope the Minister can respond positively when he comes to reply to this debate.
Baroness Ludford (LD)
My Lords, I rise to give a few words of support to the amendments in this group, particularly those led by my noble friends Lady Humphreys and Lady Randerson. To pick up the phrase just used by the noble Lord, Lord Hannay, it is astonishing that the Government are proposing to create such discord with this Bill and by their failure to respect the devolved Administrations and include them in the processes of consideration.
As an Englishwoman, though with roots throughout these islands, I am no expert either on the devolution settlement or on common frameworks—very far from it—but our party is a unionist one, which surely means fostering, respecting and supporting the operation of the union.
In paragraph 60 of the Explanatory Notes to the Bill, there is a very clear statement:
“The Government also remains committed to respecting the devolution settlements and the Sewel Convention, and has ensured that the Bill will not alter the devolution settlements”—
that does not appear to be the case—
“and will not intrinsically create greater intra-UK divergence”.
Quite a lot of weight is put on “intrinsically” in that sentence, because it has great potential to create intra-UK divergence and thus seems very contrary to government policy. On Monday we heard the Prime Minister deliver a passionate statement of support for unionism. He passionately said, “I am a unionist”—he also said, “I am a Brexiter”, but I was not so keen on that bit. The Bill does not illustrate that passionate unionism from the Government.
Coming specifically to the effect on Northern Ireland, I fully agreed with the contribution of the noble Baroness, Lady Ritchie. We on these Benches are also extremely concerned about the Bill’s impact on the Northern Ireland protocol, and in particular on Article 2 on the upholding of rights under EU law, including human rights. We hear with great concern the view of the Northern Ireland Human Rights Commission, which argues that the Bill risks the basis of the Good Friday agreement. That cannot be at all overlooked.
I have a few questions in reference to the Windsor Framework that I hope the Minister can answer. First, will the Stormont brake apply to any laws affected by the REUL Bill or only to new legislation? Has the Prime Minister agreed with the EU to retain all EU law affected by this Bill in Northern Ireland as part of the Windsor Framework? If not, will that not undermine the Windsor Framework? Have the Government agreed to amend this Bill as part of the deal done on Monday in the Windsor Framework on the Northern Ireland protocol?
Practically speaking—given that, sadly, there is no sign yet that the Northern Ireland Executive will be up and running soon—who will be making decisions on which EU law is protected from the sunset? The situation in Northern Ireland is of course very delicate. Given that either removing retained EU law or pulling the Stormont brake could trigger a breakdown in trade between Northern Ireland and the Irish Republic, will the Minister commit that that will happen only when there is cross-community support for doing so? That question is perhaps more on the framework.
With regard to the Bill, there are major concerns about the devolution settlements, the common frameworks and, not least arising from the Windsor Framework, the effect specifically on Northern Ireland. I hope that the Minister can cover all those concerns in his response.
Lord Thomas of Cwmgiedd (CB)
My Lords, I am going to return to a subject that I raised the other day with the noble Baroness, Lady Neville-Rolfe, and this follows on from what the noble and learned Lord, Lord Hope, said earlier today. The noble Baroness, Lady Finlay of Llandaff, cannot be in her place today, so I shall say something about Amendment 49. This goes to three questions that I want to ask and the extent of what we do and do not know.
The first issue that arises is the extent of our knowledge of what is EU retained law. Behind the very helpful dashboard there is a spreadsheet. Like most spreadsheets, it is searchable, so it is extremely helpful in that respect. Under column L, one can find the designation “Territorial application”. When you look down it, you find that some are UK-wide, some are GB-wide and some apply to the Isle of Man, but you also find that some instances are “Scotland only” or “Wales only”. I thought I would see which ones related to Wales only, and they are all Defra ones. I may have made a mistake, because I had to do this research on my own, as I do not have a band of civil servants to cross-check it, but one could see that each of those instruments apart from one had been made prior to 1999—that is to say, when Defra, as opposed to the territorial Secretaries of State, would probably have had responsibility. Some of them are very specialist, dealing with the designation of areas with the Llŷn peninsula, for example, or dealing with the Welsh language.
It seems plain to me from examining that schedule that the Government have gone through the Whitehall departments, department by department, and unearthed what they have. I would like to know if that is right, because I could not find anything in the list that dealt with the territorial offices. The first question that arises relates to pre-1999 legislation, prior to devolution coming into effect. Where is it? It must have been made by either the Secretary of State for Scotland, the Secretary of State for Northern Ireland, or departments in Whitehall. Where is all that material? Whose responsibility is it to find it out? That was work done in London by the UK Government at that stage. Of course, the further one goes back, the more difficult it is to find. If it has all been transferred to the respective devolved legislatures, one hopes that nothing got lost on the way, because one knows that the risk in moving papers around is that you lose them. It would be helpful to have some explanation of who is responsible for pre-1999 legislation.
The second part of that question probably arises more in respect of Wales than in the other two devolved nations. Because the Welsh settlement has moved more over the years, whose responsibility is it to find out things that were the responsibility of, say, a London department before it was moved, and where it is now?
The third part of that question is: who is looking at the post-1999 instruments made by the devolved nations? Obviously, that requires substantial resources. I hope that I have understood correctly, from looking at the spreadsheet, that there is nothing on that spreadsheet—and, in consequence, nothing on the screen that is more helpfully looked at by some—that deals with devolved instruments, but it would be very helpful to know that. The fact that the territorial Secretaries of State are not on the spreadsheet shows that there is a potentially very large lacuna. I will come to why that is so important in a moment.
The second question that arises is in relation to consequential amendments made by statutory instruments. We are all familiar with Bills, these days, and statutory instruments that have provision for consequential amendments. Sometimes whole Bills are made-up of consequentials. I looked through the spreadsheet to see whether I could find any statutory instruments where it was clear that there have to be consequential amendments. I could not find any, so I did the exercise the other way around: I put into one of the commercial search engines the number of a directive, and then tried to see what it threw up. I did this in relation to one of the instruments mentioned in the common frameworks—one of the waste directives—and the search engine threw up three categories of result. The first was the possibility of amendment to primary legislation. That is not a problem, because the Bill exempts that, wherever the legislation was made. Secondly, it threw up the instrument itself but, thirdly, it also threw up consequential amendments. I do not entirely understand how consequential amendments are to be dealt with, because they are not in the spreadsheet.
That is extremely important, because the instrument that I happened to pick on contained an awful lot of consequential amendments to other instruments that used the definition in the directive, by reference to the directive itself, of what waste was. If you miss one of those consequential amendments, what is the position? You have got rid of the EU retained law, and there does not seem to be a saving provision in the Act to save measures that people have overlooked. I will come to explain how that arises in a moment. It seems to me that it is only really this House that can look at what is involved and judge the practicality of doing all this by the end of the year, or even by 2026.
The question then turns to resources. What resources are being made available to the devolved Governments? I think it is a matter of common knowledge that Whitehall is pretty tight on resources—or so it is said, and I believe with truth, by many who work for our Civil Service—but one knows that the devolved Governments are in even greater difficulty. So what money and what number of lawyers, research assistants or whoever is being found to help the devolved Governments?
Why does this matter? I have been involved in what I call legal archaeology in a number of instances. The first related to latent damage policies. That is not entirely irrelevant since, when asbestosis came along, because of the way in which policies were written, one had to go and find what had happened prior to the war. There were all sorts of problems with that: floods, fires and—something that of course would not arise in relation to the EU—bomb damage. I have also been involved in this in various islands in the West Indies, where trying to find out what has happened in the period since their independence has actually been very difficult.
Thirdly, and most relevantly, I was personally involved in working on the legislation that resulted from the decision to abolish the office of Lord Chancellor. It is interesting to know that the legislation was first envisaged as abolishing it but was quickly changed to the reform of the office of the Lord Chancellor. Now, why was that? One is not, of course, concerned with the centuries since the creation of that office in pre-Norman, or at least in Norman, times—it is thought to go back over that span of time. However, it was an immense task to find out what the Lord Chancellor had accreted over the years.
In a way, I am sorry that the noble Lord the Leader of the House is not in his place. He would recall that I had a discussion with him in relation to one of the Boundary Commission Bills as to the fact that one piece that was overlooked, I am fairly certain from my own recollection, was about the person who appointed the office of the deputy chairman. It was thought inappropriate that the Lord Chancellor could have a selection over a judge. I raised this as an amendment and it went to ping-pong, but we did not get anywhere. What it shows is that you can overlook things, but of course in that case it did not matter because the now Sir Robert Buckland was there; he could take on the job and discharge the appointment with absolute impartiality.
In this case, once we have abolished something and taken it away, there is nothing there. If the Government really are insistent on any of this, why can we not have some sort of saving clause so that, if some mistake has been made, it can be rectified? It took a very long time—from 2005 to 2019, I think—for the mistake in relation to the appointment of the deputy chairman of the Boundary Commission to be appreciated.
I do not expect the Minister to be able to answer these very detailed questions on methods of search and what is there, which all needs setting out. However, I say three things. First, the House must have this information. We cannot go on in the dark any longer. We need to know the search methods, the limitations and what is excluded.
Lord Deben (Con)
If something does not exist because it has been overlooked, how would case law which refers to it work? As I understand it, that case law is to be abolished, so we cannot actually use any of it. What would happen then?
Lord Thomas of Cwmgiedd (CB)
We will probably come to the whole question of case law in the next set of amendments and I do not want to trespass on anyone else’s thunder. The real difficulty with this provision is, as regards the devolved and other legislatures, that if there is a reference in other legislation to something that someone has overlooked, what actually happens? I do not know the answer but, presumably, there is just a void in the statute. I am sorry that I am unable to answer the noble Lord.
To go back to my three points, we must have, first, a proper and detailed explanation of what the search methods do and do not cover, and how we are to address these problems. Secondly, we must have an assurance that there are enough bodies to do the work. When we know what the problem is and the number of bodies available, we can then judge more accurately—this is very important for the amendments to which we are coming—the amount of time that will be required. Thirdly, what do we do if there is a mistake? I do not believe that infallibility rests in any sense within, and never would be claimed by, any Government these days.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, follow that. Briefly, I seek a specific clarification on the sunset clauses. Can the Minister tell us how it is proposed to resolve an apparent conflict in powers between the Secretary of State and those of devolved Administrations contained in the Bill? The power to extend the sunset deadline in Clause 2(1) is reserved for UK Ministers only. In contrast, the power to remove the sunset entirely in Clause 1(2), and so to keep pieces of retained EU law indefinitely, is granted to both UK and devolved Ministers. UK Ministers and Ministers in the devolved Governments may well diverge on the application of sunset dates, as well as on policy decisions.
I also remind the Minister that the RPC ruled that the Government’s impact assessment cost-benefit analysis of the impact on devolved nations is “weak”. What plans are there to address this inadequacy? I also remind him that since the RPC published its opinion, a further thousand pieces of legislation have been added to the dashboard.
Baroness Crawley (Lab)
My Lords, briefly, within this important group introduced so ably by the noble Baroness, Lady Humphreys, I support in particular Amendments 34 and 55 in the name of the noble and learned Lord, Lord Hope of Craighead, with whom I am delighted to sit on the Common Frameworks Committee—noble Lords will be sick to death of hearing about the common frameworks by the end of this—which is under the marvellous chairmanship of my noble friend Lady Andrews.
As noble Lords will know, common frameworks are a voluntary way of bringing the nations of the UK together and being the building blocks for the new UK internal market post Brexit. The legal underpinning for these frameworks is EU-derived subordinate legislation and retained EU law, the very law threatened by the Bill and its insistence on sunsetting by the end of 2023. Along with other members of the committee, I do not wish to see a large part of our economic relationship with the devolved nations damaged or threatened by having a question mark, even if it is only a question mark and not definitive, hanging over these frameworks.
If we take as a quick example a snapshot of the framework law in the Department for Business and Trade, we do not know what is to become of the European Public Limited-Liability Companies Regulations, or the Statutory Auditors and Third Country Auditors (Amendment) (EU Exit) Regulations 2019, or the late payment of commercial debts regulations of 1998, 2002, 2015—and on and on. This is not exactly law to make your heart sing but it is vital to the smooth running of the UK’s new internal market.
If we take the framework law in the Department for Science, Innovation and Technology, we discover that we have signed up to international conventions through EU retained law, but we are not sure—as we heard in our tutorial from the noble and learned Lord, Lord Thomas—whether the SIs for them are to be included on the now infamous dashboard. Just to make things more uncertain, if that is possible with this Bill, some of this retained law has Northern Ireland aligned directly with EU law and some has not.
In the Department of Health and Social Care, we have secondary legislation on nutrition and health claims, on vitamins and minerals and on foods intended for infants and young children. They are a brave Government, in the words of Sir Humphrey, who would bring uncertainty to such law. The food safety and hygiene provisional common framework is again based on retained EU law and it involves Northern Ireland, Scotland and Wales, as many of them do. It deals with issues raised by noble Lords last week in Committee such as food labelling, food contaminants, flavourings, additives and, very importantly for farmers in the devolved nations, animal feed.
The consumer protection enforcement authorities across the UK need certainty. If they are going to be able to bring perpetrators to book in the future, they need to know that all the legal pages are still in the book. The stand-alone SIs in this framework include everything from EU regulations on curry leaves to the Fukushima power station disaster to rice from China. That is not even to go through all the SIs arising out of them on jam and honey. I will do so if noble Lords would like me to, but I think we do not have the time—there are a lot of them.
Like Mr Micawber, we are hoping, regarding common frameworks, that everything will turn out for the best and all this primary and secondary EU-derived law will, if needed, be retained. But here is the rub: we hope but, as the noble and learned Lords, Lord Thomas and Lord Hope of Craighead, have said, we do not know. We do not know how law in scope is to be retained, reformed and revoked. We do not yet know all the law that is in scope. Perhaps at this very moment the National Archives is hunting for it down the back of the national sofa. We do not know where the DAs are in going through their devolved law to see what needs keeping and letting go. We do not know whether the devolved authorities have the time, the political inclination or the Civil Service resources, as noble Lords have said, for such a sifting exercise and to feed that data onto the dashboard. The Northern Ireland Assembly, as we know, is not even meeting at the moment.
We do not know whether the devolved authorities are mining the National Archives as the UK Government are. We do not know when the dashboard will be complete, or how we will know when it is. We do not know whether the upper limit of the National Archives search is every piece of legislation since the UK joined the EU. Maybe that is a department by department choice, in which case we do not know which departments are going back 40 years and which have decided not to.
Finally, as a Committee we were told in correspondence with Ministers that some retained EU law had been orphaned due to the machinery of government changes. I have no idea what that means—maybe the National Archives does, but we do not. No wonder we are getting urgent lobbying from across every possible UK sector. They want to know what is going on with this Bill and what it means for them. We can only tell them at this stage that we do not know. What a fine mess the right honourable Jacob Rees-Mogg has got us into.
Lord Cormack (Con)
And not for the first time. As the noble Baroness was talking about the dashboard, I could not help but just carry the analogy a little further. How much is hidden in the glove compartment?
This has been a very interesting debate. It was extremely well introduced by the noble Baroness, Lady Humphreys. What I want, above all, is a period of stability for our country. I want to feel that the United Kingdom is more united after these turbulent years than it has been of late. I took great encouragement from that happy photograph of the Prime Minister with the President of the European Union on Monday. I want to feel that we really are beginning to build a proper relationship with our former partners, but our remaining friends and allies. If anything underlines the need for that, it is one word: Ukraine.
I do not know, any more than any of us do, precisely what we are dealing with. The noble Baroness, Lady Humphreys, made that plain in her speech with regard to the devolved Governments. I happened to be one of those who fought quite strongly against devolution, because I thought it would threaten the integrity of the United Kingdom.
Lord Cormack (Con)
My noble friend interjects that I was right. Well, I may have been right, but I lost. We all lost. The fact is that we have devolved Administrations. Two of them are active and I devoutly hope and pray that the third will be active again very soon. It is very important that we make this system work. All we are asking for is for my noble friend Lord Callanan to adopt as his motto “festina lente”—make haste slowly—and make real progress as one does so.
The noble and learned Lord, Lord Thomas of Cwmgiedd, made a very wise speech. He laid out just the sort of complexities that we face. I just hope that this Bill, which I believe to be unnecessary in its present form, and premature, can be paused. I hope it can go into the same compartment that the Northern Ireland Protocol Bill has now gone into. That is what I hope for. I believe passionately—the amendment moved by the noble Baroness, Lady Humphreys, underlines this—that this is going to do harm to our United Kingdom and to our relations with our European friends and former partners. Neither of those things is in the interest of our country or is going to contribute to a stable future for it.
Lord Wilson of Dinton (CB)
My Lords, I am not sure I am wise to rise and speak, but I feel as a matter of honesty I must, in response to my noble and learned friend Lord Thomas, who spoke brilliantly.
Let me confess that I was Cabinet Secretary during devolution legislation and its implementation. I oversaw the implementation of devolution. I can confirm everything that my noble and learned friend said. It was messy behind the scenes. Noble Lords may not remember that the legislation went through Parliament amazingly easily and very fast. A lot of points that are being raised now should have been raised in different ways on that legislation. I was under instructions from the then Prime Minister Mr Blair that my misgivings about whether it would weaken the union—I shared them—should be set aside and we should use devolution as a way of strengthening the union, and implement it with harmony.
I had in place a structure with my colleagues in Wales and Scotland to oversee the effective implementation. There were endless points of the kind that my noble and learned friend raised from before 1999 and on the legislation, which we had to sort out. I had monthly meetings—these went on for years—with my Permanent Secretary colleagues from Wales and Scotland in particular to discuss and go through detailed issues which arose on the legislation on assets, personalities, quangos and everything, some of which were legal and some of which were not. I am pleased to tell noble Lords that I cannot remember them now. It is a blessing. I have tried to shed them, because they were difficult. But what I can say is that we dealt with them in the end with good will, good lawyers and great ingenuity. And we dealt with them—if I can confess it in the privacy of this Chamber—with a certain amount of fudge, because some of them were impossible to deal with without good will and pragmatism.
But I am certain that this Bill has overlooked a great deal. I am afraid that there will be more horrible loose ends for my successors to try to sort out. The amendments that the noble Baroness, Lady Humphreys, my noble and learned friend Lord Hope and others have put down are wise. The Government should allow themselves every scope for sorting things out for years to come, whatever the sunsetting clause says, because there will be awful problems to sort out.
Lord Inglewood (Non-Afl)
My Lords, being a bear of rather little brain, it has taken me quite a long time to digest the extremely helpful and valuable contribution of the noble and learned Lord, Lord Thomas. He approached the issue from the perspective of Scotland, Wales and Northern Ireland, but, given that the United Kingdom is a single market, which is a single integrated entity, what will the consequences be for England of the kind of overlooking that he described? We do not seem to have touched on that.
Baroness Bennett of Manor Castle (GP)
My Lords, I will share the deep concerns of Green parties around these islands about the issues that we have been discussing. Like Members from all corners of your Lordships’ House, Green parties would like to see the Bill thrown out altogether, although the proposal of the noble Lord, Lord Cormack, of a pause and a chance to think and understand is, at least, a positive alternative that we should consider. We have heard lots of metaphors—the noble Lord, Lord Wilson, gave us one. I am imagining the fudge, which you have unwisely packed in your suitcase when flying back from a hot place, dripping out all over everything and making a mess everywhere. That is possibly a useful metaphor for where the Bill has put us.
I put on the record a highly unusual and important joint letter written to the Financial Times on 28 November by the Cabinet Secretary for the Constitution from the Scottish Government and the Counsel General and Minister for the Constitution from the Welsh Government. A small part of it said:
“This bill allows UK ministers to take decisions in policy areas that are devolved to the Welsh senedd and the Scottish parliament and to do so without consultation or the need for their consent.”
That is essentially what we have been talking about.
There has been an implicit point in our debate that has not been made explicitly. I will draw particularly on the work of Dr Viviane Gravey from Queen’s University Belfast, who points out that the laws have been transposed into the nations of these islands in different ways, so we have huge diversity. That means that the devolved nations cannot help each other out. A natural situation would be that, with the issues of resources that the noble and learned Lord, Lord Thomas, raised, ideally, people would help each other out and work co-operatively. In most cases, that will not work in this situation because each nation is different.
I will briefly highlight some of the ways in which the nations are different. On Wales, we have not discussed this much but there is a huge impact on the well-being of future generations Act, which has to be considered in the context of the Bill mentioning no increase in “regulatory burden”. That and the well-being of future generations Act are profoundly contradictory, and I do not see any way of resolving that contradiction.
Many people with vastly more knowledge than I—including the noble Baroness, Lady Ritchie, and others—have commented on Northern Ireland. I saw some telling figures. Until autumn, when the caretaker Ministers ceased to hold office, the Department for Infrastructure had identified 500 rules and regulations and the Department of Agriculture and Rural Development had identified 600 rules and regulations—experts describe that as the tip of the iceberg. Given all of the issues that Northern Ireland needs to deal with, dumping that on it as well is simply unacceptable. That is why, in the context of this group, Amendment 29 from the noble Baroness, Lady Humphreys, and others at least takes us to the core of the issues that we need to address.
On Scotland, the noble Baroness, Lady McIntosh of Pickering, covered a great deal of this, but I will mention some conclusions from the Scottish Human Rights Commission, which said that this would create incredible legal uncertainty about human rights and the ability to deliver them, and it would make it difficult to enforce those rights if the Bill goes through in its current form.
The noble Lord, Lord Cormack, made an important point about the tone and direction of travel here. The Windsor agreement is a significant reset in our approach to our relationship with Brussels. The tone and approach have changed in a positive manner. I suggest that we need to see a similar change in tone and approach at Westminster, where, under previous Prime Ministers, we saw an extremely aggressive and unco-operative approach towards the nations of these islands. We need a different tone and approach in this not very united kingdom. Dealing with the Bill—stopping it, pausing it or at least implementing something like Amendment 29—is absolutely essential.
Baroness Randerson (LD)
I will refer specifically to Amendment 29, in the names of my noble friend Lady Humphreys and the noble and learned Lord, Lord Hope. The Welsh Government and the Legislation, Justice and Constitution Committee of the Senedd have both examined the Bill closely and they did not like what they saw. They agree with each other that the Senedd’s consent is required for all clauses and schedules, with the exception of Clause 18. However, given the background of a lack of consultation and dialogue, to which several noble Lords referred, we are not likely to get that consent.
The problem is that the Bill does not just infringe on devolved powers—it tramples all over them. The Welsh Government have called it a “power grab”. The injury to devolution throughout the Bill is compounded by the lack of preparation and background information provided by the Government. These issues have been well rehearsed here—the noble Lord, Lord Hannay, referred to them in detail. The Welsh Government and the Senedd committee agree that, for a start, Clause 2 needs to be amended to grant Welsh Ministers similar powers to those granted to UK Ministers to extend the sunset date in relation to devolved matters.
On sunsetting, June 2026—the fallback date—is of maximum practical inconvenience to the devolved Administrations because it coincides with elections. There are two possibilities for how the date was plucked out of the air: one is that it was chosen deliberately to make life difficult for the devolved Administrations, and the other—I agree that this is probably more likely—is that it is an example of the sort of poor, substandard legislation that you write when you do not consult the people affected. It would have been so easy to choose a different date.
The Senedd committee’s report reflects concerns already expressed about deficiencies in the dashboard and emphasises the need for it
“to identify how each piece of retained EU law falls across reserved and devolved competencies.”
Without doubt, it is essential that, when Welsh and Scottish REUL is added to the dashboard, it is clearly identified. So when will this happen? Can it be confirmed that this will happen? If it does not happen, that means that this truly is a Government just for England. It is essential that Wales and Scotland legislation is identified.
The committee’s report also emphasised the pressure of time, both on legislatures and the Governments in Scotland and Wales. It is essential that all REUL that the Government do not intend to save or reform is identified by the end of September and laid before all the legislatures of the UK.
Amendment 49, in my name and that of the noble and learned Lord, Lord Hope, is designed to probe these issues. The Welsh Government have made no secret of the pressure they are under—other noble Lords have referred to that—and the Minister acknowledged in her response to me last week that there was an issue of resources. The simple time pressure is compounded by the lack of coherent information from the Government. It is more difficult to get on and do what you are supposed to be doing if you do not know what that is. What will the Government’s policy be in relation to any failure by a devolved Administration to update their chosen items of REUL and obliterate as required references to EU law? They might choose not to do it, or they might just not have the time to do it. Does that mean that the UK Government will take over the role of the devolved Administrations and take things out of their hands if by mistake or due to lack of resources they cannot get round to it?
As I understand it, the devolved Administrations are also required to search for REUL made by Secretaries of State prior to devolution, which seems tantamount to having to do the job of the UK Government for them. Have I got that right? Can it be clarified, please?
As many noble Lords have said, the state of the dashboard is central to the pressures that I have referred to. The latest count of Welsh REUL on the dashboard is apparently in the teens. I am assured that when they have counted it all it will be in the many hundreds, and the Government have not yet been able to take account of that situation. What estimate do the Government have of how many hundreds of pieces of REUL both Scotland and Wales will have? It will be different numbers, obviously, because law has developed differently, and they have different powers. I noted in an earlier debate that the Government have failed to clarify when or even if we will get a final list, when or even if we will be told what legislation is to be dropped entirely, and when or even if we will be given a definitive list of legislation to be amended. All this is essential not just to us here doing our work but to both the Scottish and Welsh legislatures, and I hope that it will in time be relevant and important to the Northern Ireland Assembly as well when it is up and running.
On Northern Ireland, I do not want to repeat the vital questions asked by the noble Baroness, Lady Ritchie, and my noble friend Lady Ludford, but I emphasise the importance of them. In the past 36 hours or so, I have been trying to get my head around the implications for this Bill of the Windsor Framework by working through a couple of examples—not quite at the level of detail with which the noble and learned Lord, Lord Thomas, did so, but in my own humble way. I think that the Windsor Framework probably requires substantial rewriting of this Bill; it certainly requires substantial reinterpretation—I understand that because it is such a skeletal Bill it might be possible to bend it to the new circumstances, but we need a new interpretation. Please can we at the very least have a major ministerial Statement on the impact of Windsor Framework on REUL which has an impact on the Stormont brake? The three are intertwined. We need more than a letter; we need the opportunity to ask questions and to understand how it will work.
Baroness Chapman of Darlington (Lab)
My Lords, this is a complete mess. I have listened very carefully to everything that has been said, and I could not identify a speech with which I disagreed. There are two principal problems with the Government’s approach: first, a lack of respect for the devolved Administrations, and, secondly, a chronic case of overconfidence on the part of Ministers.
It is difficult to know exactly where to start; I have so many notes. Which of these particular criticisms is the most important? I will allow the Minister to decide when she responds. It is clear that the dashboard has not been getting updated properly in partnership with the devolved Administrations. The sunset cannot be extended by devolved Administrations on their own, even if they feel that they cannot deal with the burden of the work imposed on them in time. Can the Minister write to update us on the work being done with the devolved Administrations on the dashboard, because it seems that that really underlies some of the concerns we have? From Wales and Scotland, we are picking up a deep dissatisfaction with how this work has taken place.
The noble Baroness, Lady McIntosh, made the really important point that the Government have had time between the Bill being debated in the other place and arriving here today to finesse their approach, shall we say, but I do not think that much has changed. This is a particular concern, as noble Lords have said, given the commitment made earlier this week by the Prime Minister, when he revealed the Windsor Framework, which we were all very pleased to see. We are very glad that the agreement announced earlier in the week has taken place; we were very concerned about the approach that the Government had taken prior to that, so we welcome it very much. If the measures are not dealt with by the dashboard and they fall, we could end up in a situation where we have divergence, not through a matter of policy or intent by the Government, but as a consequence of inaction and, in effect, by mistake. There may be consequences of that, which perhaps could be more pronounced for Northern Ireland than for elsewhere in the United Kingdom. I was very taken by the way that the noble Lord, Lord Wilson, put this—as there being horrible loose ends. That is a very good way of describing it.
These are very practical concerns and a number of noble Lords, in particular my noble friend Lady Andrews, have highlighted them. Like her, I completely support common frameworks. I remember when we debated them at length as part of the Brexit process. We tabled amendments to strength them, to make sure we had good oversight of them, and that there was proper engagement by the Ministers in the devolved Administrations. I think we did okay on some of that. Obviously, this is still relatively young, and we had all hoped, I think, that that process would become smoother and a little more relaxed, and that there could be more shared decision-making. I am particularly concerned about this, given my ambition—which I think is shared by many Ministers on the Government side, too—to see more devolution in England. So we really want this approach to improve as the years go on; it is not a surprise that there are shaky moments in the early years.
The Bill, perhaps more than any other we have seen, shows a complete disrespect to the devolved Administrations, and this lack of trust and respect is becoming more and more pronounced. There have been some sharp examples in recent months, and we need to get away from them. With this process, there is an opportunity to change our approach and to demonstrate that we want to work differently—and there is a real benefit to be gained from that.
The noble Lord, Lord Hannay, drew our attention to the lack of political engagement, as he put it, with the devolved Administrations, which is deeply concerning. The Minister, the noble Lord, Lord Callanan, as is his habit, is shaking his head from a sedentary position. If what the noble Lord, Lord Hannay, said is not true—as the noble Lord, Lord Callanan, has just suggested—perhaps the Minister could write to us to explain what form that political engagement is taking, what is being discussed and what progress has been made.
Trust matters, and I am afraid that it is in very short supply at the moment. I thank the noble and learned Lord, Lord Thomas, for his speech, because he developed a point that we were trying to make in the debates on previous groups about the risk of things being missed from the dashboard. There were points in our previous discussion where I felt that the Minister was almost saying, “Look, you are worrying unnecessarily—our civil servants know what they are doing, and we will have a very thorough look at this”. The noble and learned Lord described it as legal archaeology; I am a trained archaeologist, and I know very well how easy it is to miss things or to look at a site with a particular priority in mind. You can find very different conclusions looking at something today than you would have done looking at it 20 years ago, because your understanding develops all the time. That is one of the reasons that children are very good at archaeology: they spot absolutely everything.
The point that the noble and learned Lord was making is that things will be missed. Even the Government acknowledge that; they do not claim that the dashboard is comprehensive, or that it ever will be. That was clear from the letter that the Minister, the noble Baroness, Lady Bloomfield, sent us before the last Committee debate. I would not be surprised if she would want to withdraw that letter but, as she has not done so yet, it is the basis for our discussions. It is very clear from that that the dashboard will not be a comprehensive assessment of all retained EU law.
The request from the noble and learned Lord, Lord Thomas, for an explanation of the search methods is very good idea. We were told—with some pride—that one of the search methods was a key word search for “Europe” at the National Archives.
Baroness Bloomfield of Hinton Waldrist (Con)
It is one search method.
Baroness Chapman of Darlington (Lab)
The Ministers are saying that it is one search method, but that was the example given to us when we probed this at the roundtable meeting. That was the choice made by Ministers’ officials as an example intended to reassure us—but we are not reassured. The suggestion from the noble and learned Lord, Lord Thomas, for a fuller explanation is very good and helpful; it might provide the reassurance that Ministers were attempting to demonstrate earlier in the week.
While discussing the issue of devolution, I shall ask the Minister a question on something I do not quite follow—and Committee stage is about asking questions about things we do not quite follow. Perhaps she might write to me about it, but I draw her attention to paragraph 11(3) of Schedule 4, under Part 3, which describes the process that the Government want Welsh Ministers to undertake when they are tackling regulations. Can she explain this process? It says that Welsh Ministers will have to make a statement of their opinion on a particular measure; they will have to provide
“a draft of the instrument, and … a memorandum setting out the statement and the reasons for the Welsh Ministers’ opinion.”
That seems slightly different to the process we are undertaking here. In principle, there is nothing necessarily wrong with there being a difference, but I would like to understand what that is about and how the Government came to that. Was that something that came out of dialogue with the Welsh Government, or has it grown up through the department? Why is that happening?
There is no way that this will not come back on Report. I would be happy to support any of the amendments tabled in this group. We on these Benches would be very happy to work with noble Lords from across the House on arriving at an amendment that we think would achieve our aims most effectively. I look forward to doing that, but the preference would be that the Government had some further thought on this and brought back their own amendment, which would treat the devolved Administrations with far more respect and deal with the issues of overconfidence and the fact that measures are, likely if not certain, to be missed.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, this has been a very full and comprehensive debate—I did not expect anything less, given the subject matter. Amendments 29, 33, 34, 35, 36, 49, 55 and 147 seek to amend the sunset clause and the territorial scope of the Bill for the devolved Governments. I can but reiterate that the UK Government remain fully committed to the Sewel convention, committed to devolution and committed to working collaboratively and constructively with the devolved Governments. We have been proactively engaging with the devolved Governments, at both ministerial and official level, on the progress of the Bill and the wider retained EU law reform programme. The former Business Secretary engaged with the devolved Governments following the introduction of the Bill and, indeed, I have personally engaged with the Welsh Government to assure them of our respect and willingness to co-operate over legislative matters in general going forward.
In response to the noble Baronesses, Lady Randerson, Lady Hayman and Lady Chapman, I reassure the Committee that we are committed to working with the devolved Governments as we update the dashboard. We have established regular intergovernmental meetings intended to support devolved Government counterparts with the identification of which REUL is devolved or reserved as part of the REUL reform programme. The majority of the powers in the Bill are conferred concurrently on the devolved Governments, including the power to preserve retained EU law. This will enable them to make active decisions about the REUL within the devolved competence and decide which REUL they wish to preserve and assimilate, and which retained EU law they wish to allow to sunset. We remain committed to continuing discussions with the devolved Governments throughout the Bill’s passage over the use of concurrent powers within the Bill to ensure that they work for all parts of the UK. It is our expectation that the department will follow standard procedures regarding consultation and engagement with the devolved Governments during policy development.
I turn to Amendments 34, 35 and 36. These would exempt legislation relating to common frameworks from the sunset, restricting the sunset and preventing it delivering its objective to incentivise genuine reform across the United Kingdom. Among the proposed conditions is a proposal for a process to be agreed between the UK and devolved Governments for retained EU law within the scope of the common frameworks. We believe that common frameworks are integral to managing regulatory divergence in the areas they cover and provide a flexible governance tool for both the UK and devolved Governments. REUL is in scope of the common frameworks. This includes not just REUL operating within devolved competence but that same REUL operating in England. In some cases, this REUL will be UK-wide.
We believe it is simply not necessary to carve out REUL in scope of common frameworks. These are designed to manage divergence, including that which may result from the sunset. Both the UK and devolved Governments agree that, where common frameworks are operating, they are the right mechanism for discussing REUL reform in the areas they cover. To reassure the noble Baroness, Lady Andrews, who raised concerns about regulatory divergence, the Government will continue to work closely with the devolved Governments to manage intra-UK divergence, including through existing collaborative mechanisms, such as the common frameworks programme, which has been developed with the devolved Governments to enable joint working in devolved areas. The Government are committed to following common framework processes where they apply, to allow for a collaborative discussion of REUL reform.
Similar to previous amendments, Amendment 55 seeks to change the sunset date for legislation relating to the common frameworks to the end of 2026. That is likely to include devolved REUL, and also REUL in other UK jurisdictions corresponding to a devolved area. However, this amendment, tabled by the noble and learned Lord, Lord Hope, would amend the extension power in Clause 2, rather than just the sunset in Clause 1. While it is of course not appropriate to change the sunset date through Clause 2 alone, I reiterate that we simply do not believe there is a need to do so for retained EU law in scope of common frameworks. Moreover, pushing back the sunset for this legislation would remove the impetus for devolved Governments and relevant departments to review this legislation. Clause 2 already contains an extension mechanism capable of pushing the sunset back to 2026 for specified instruments or descriptions of legislation. We will work closely with the devolved authorities to ensure that selected legislation, including that within scope of common frameworks, is subject to an extended sunset where appropriate.
Lord Hope of Craighead (CB)
My Lords, what the Minister said about common frameworks is very encouraging and I absolutely understand what she has been saying in her description of the system. But is the procedure in Clause 2 capable of, let us say, exempting a particular common framework from the sunset in Clause 1? Does it fall within the formula set out in Clause 2, so that we could take, for example, the common framework on animal health, labelling or the ozone layer, and specify a common framework to be excluded? It would be encouraging if that were the case.
Baroness Bloomfield of Hinton Waldrist (Con)
We can, indeed, exclude a specific category of law from the REUL exclusions if it relates to a specific area such as animal health, or a particular category of common framework.
Baroness Andrews (Lab)
If that is the case, the logic is that all the common frameworks could be exempt. Is that not the case? If we can exempt one SI on animal welfare, there are 50 SIs on animal welfare; what would stop us exempting the whole of that tranche of SIs?
Baroness Bloomfield of Hinton Waldrist (Con)
While we will have the power to exempt, the whole point about the sunset date is to retain the rigour of going through the REUL legislation that we have—but we do still retain the ability, in Clause 2, to exempt certain categories from sunset.
Baroness Andrews (Lab)
Does the noble Baroness think that common frameworks will be a specific category?
Baroness Bloomfield of Hinton Waldrist (Con)
I thought we were still discussing exemptions. Will the noble Baroness repeat her question?
Baroness Andrews (Lab)
I am asking whether there is the power to exempt a whole category, because we have not heard that before. Would not common frameworks, because they are discrete and have an integrity of their own, serving specific purposes, constitute a specific category?
Baroness Bloomfield of Hinton Waldrist (Con)
I think the answer is, not in their entirety, but a specific category that falls within common frameworks could indeed be excluded.
Baroness Chapman of Darlington (Lab)
Will the noble Baroness point us to where in the Bill we can find the definition of a category?
Baroness Bloomfield of Hinton Waldrist (Con)
I will have to send that sort of detail out in writing, along with the other letters we are going to be writing in response to other questions.
Lord Fox (LD)
I apologise for intervening. I think what I heard is that Clause 2 gives the Government the power to do this; I did not hear from the noble Baroness that the Government have any inclination to actually use that power. Will she explain what criteria the Government would use to actually apply the power that she has just revealed to the Committee?
Baroness Bloomfield of Hinton Waldrist (Con)
We will bear that in mind, but I cannot give specific criteria: we want to retain the ability to exclude specific pieces of legislation, as I have said, within a specific category.
Baroness Bloomfield of Hinton Waldrist (Con)
I think I have taken enough interventions and I would like to make progress, please.
Baroness Randerson (LD)
I just make the point that, by definition, to be included in a common framework, the legislation concerned has been extensively examined by all the Governments concerned in the last couple of years. Therefore, it will not be subject to the sorts of anomalies that the noble Lord, Lord Callanan, referred to in our last debate.
Baroness Bloomfield of Hinton Waldrist (Con)
I take the noble Baroness’s point.
Lord Carlile of Berriew (CB)
I have tried not to intervene so far, but I listened very carefully to what the noble Baroness has just said: does this mean that, if an application is made to a Minister to extend the sunset for a category or description of legislation, in accordance with Clause 2, and the Minister refuses, it will be “open sesame” for judicial review by those who regard such a decision as disproportionate and could render the whole of this legislation into something that will be litigated in the courts for years to come?
Baroness Bloomfield of Hinton Waldrist (Con)
I acknowledge the noble Lord’s intervention but I cannot possibly respond at this stage. We must make progress.
Amendment 29 proposes exempting REUL within the competence of Scotland, Wales and Northern Ireland from the sunset. This would remove the devolved Governments’ incentive to review legislation on their statute books and hinders the sunset’s intention to bring about genuine reform. A sunset is the quickest and most effective way to accelerate the review of REUL on the UK statute book by a specific date in the near future. This will incentivise genuine REUL reform in a way that will work best for all parts of the UK. The territorial scope of the Bill will be UK-wide, and it is constitutionally appropriate that the sunset applies across all parts of the UK. However, the sunset does not affect the devolution settlements, nor is it intended to restrict the competence of either the devolved legislatures or the devolved Governments. Rather, this will enable the devolved Governments to make active—
Baroness Crawley (Lab)
The noble Baroness may well be coming to this, and she should tell me if she is. If the sunset brings rigour, as she has said, to the devolved Administrations—and to us, of course—does that mean that the Government accept our arguments about the lack of resources for the devolved Administrations and the lack of capacity of civil servants, because there are so few of them going through all this retained EU law throughout the devolved Administrations?
Baroness Bloomfield of Hinton Waldrist (Con)
We do not accept that. We know that there are capacity restraints within the devolved Governments, but the UK Government are also helping them go through the whole body of retained law. That work will progress and is an ongoing project as we go through this year. I may come on to more detail for the noble Baroness.
In relation to the noble Baroness’s specific comments on Northern Ireland, the Windsor Framework has no impact on the Bill. She can also rest assured that we have already committed to making sure that the necessary legislation is in place to uphold the UK’s international obligations—
Baroness Bloomfield of Hinton Waldrist (Con)
I think we need to make progress.
Baroness Chapman of Darlington (Lab)
The Minister is answering a different question.
Baroness Bloomfield of Hinton Waldrist (Con)
I know, but we do need to make progress. This is the 10th intervention, and I am on paragraph 17. I think there is a limit to the number of interventions I need to take—but I will take the noble Baroness’s, because she is on the Front Bench.
Baroness Chapman of Darlington (Lab)
I am sorry, but my understanding is that there is not a limit on the number of interventions the Minister can take. Progress would probably be better if we had a better Bill in front of us. She answered a question by saying that the Windsor agreement has no impact on the Bill, but my question was whether the Bill could have an impact on the Windsor agreement, which is a very different thing.
Baroness Bloomfield of Hinton Waldrist (Con)
It has no impact on the Windsor agreement. I am assured by my colleagues and my briefing here that it has no impact.
Amendment 49, tabled by the noble Baroness, Lady Randerson, seeks to ensure that the UK Government have a complete understanding of their catalogue of REUL by allowing a Minister of the Crown to request that the devolved Governments identify REUL in areas of devolved competence within the scope of the sunset. While I concur with the sentiment of this amendment, again, the Government do not believe it is necessary but recognise the importance of having a shared and single understanding of reserved and devolved REUL across the UK Government and the devolved Governments.
We have established regular intergovernmental meetings intended to support devolved government counterparts with the identification of which REUL is devolved or reserved, as part of the REUL reform programme. Departments are also actively engaging directly with their devolved government counterparts as part of their business-as-usual engagement on the devolved status of REUL and their plans for REUL reform. On the point about pre-1999 legislation, where the legislation is devolved, the decision should be for devolved government Ministers, just like any other piece of devolved REUL. We will set out in writing the methodology for identifying REUL on the dashboard, as already committed by my noble friend Lady Neville-Rolfe in the session on Tuesday.
Amendment 33, tabled by the noble Baroness, Lady Ritchie of Downpatrick, would exempt from the sunset legislation relating to human rights, equality or environmental protection to the extent that the legislation has effect in Northern Ireland, including legislation within scope of Article 2 of the Northern Ireland protocol. We fully intend to maintain the UK’s leading role in the promotion and protection of human rights, equality, the rule of law and environmental protections. We are proud of our long and diverse history of freedoms and are committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the withdrawal agreement, the Northern Ireland protocol, and the trade and co-operation agreement after the sunset date.
Baroness Bloomfield of Hinton Waldrist (Con)
I am sorry. I assure the noble Baroness, Lady Randerson, that there was no Machiavellian intent; rather, that date provides a ceiling for the presence of retained EU law on the UK’s statute book and gives adequate time to complete reform of the most ambitious nature in all areas. The 10th anniversary of the referendum vote served this purpose and offers a full-circle moment by which the UK can proudly proclaim that it has regained its sovereignty and has a fully independent domestic statute book—
Lord Fox (LD)
My Lords, I am unfamiliar with modern parlance. Could the Minister please define a “full-circle moment”?
Baroness Bloomfield of Hinton Waldrist (Con)
I think it is just a way of describing the 10-year anniversary of the referendum vote. It is just vernacular—
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
The process is finally complete.
Baroness Bloomfield of Hinton Waldrist (Con)
The process is finally complete, as my noble friend suggests.
On impact assessments, properly assessing the impact of government policy is an important principle of good governance, and the Government will continue to be committed to the appraisal of any regulatory changes relating to retained EU law. The nature of this appraisal will depend on the type of changes the departments make and the expected significance of the impacts. Where measures are being revoked, departments will be expected to undertake proportionate analytical appraisal, and we are exploring the appropriate steps we can take to appraise the resulting impacts.
I am fully conscious that a number of other specific points were raised, but I undertake that we will write back, particularly on methodology and definitions. However, for the reasons I have outlined, I ask the noble Baroness, Lady Humphreys, to withdraw her amendment.
Baroness Humphreys (LD)
I thank all noble Lords who have taken part in this debate, and offered their support to the devolved Administrations and recognised their very legitimate concerns regarding their devolved settlements.
Many of us might not like the Bill, but in this Committee we have seen this House at its very best. We have heard a number of speeches today that could be described as masterclasses, and it has been a pleasure and an honour to listen to them.
I will not comment on the noble Baroness’s reply other than to say that I appreciated her statement that the Government are committed to the Sewel convention. However, over the last few years, actions have spoken louder than words, so she will forgive me if I do not hold my breath.
I also welcome the commitment from the noble Baroness, Lady Chapman, to work across the House on amendments on Report; we on these Benches commit to that process.
We have been debating this for two hours and five minutes, and if everybody else is like me, lunchtime is calling. Therefore I will just say that the noble Baroness’s response will have given food for thought to those of us in this Chamber today, and we will doubtless want to renew our deliberations on Report. In light of that, I beg leave to withdraw my amendment.
Lord Callanan
Member's explanatory statement
This amendment removes a power to except things from the sunset. The power is contained in new Clause (Exceptions to sunset under section 1).
Retained EU Law (Revocation and Reform) Bill
Thursday 2nd March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-IV Fourth marshalled list for Committee - (2 Mar 2023)
Lord Judge
“(2) Subsection (1) does not apply—(a) to an instrument, or a provision of an instrument, that is specified in regulations made by a relevant national authority,(b) where an instrument, or a provision of an instrument, is being replaced, restated or reproduced, until one month after the replacement instrument has been laid before both Houses of Parliament, or(c) where an instrument, or a provision of an instrument, is not being replaced, restated or reproduced, until one month after a Minister of the Crown has made a statement to that effect in each House of Parliament.(2A) Where subsection (2)(b) or (c) applies to an instrument, or a provision of an instrument, and both Houses of Parliament resolve prior to the date in subsection (1) that the instrument be retained, then the Government must make regulations under subsection (2)(a) specifying that instrument.”Member's explanatory statement
This amendment would require the Government to set out in advance what they propose will happen to each instrument covered by the sunset Clause, giving Parliament the ability to scrutinise these decisions. It would also allow Parliament to overrule the Executive and choose to retain specified instruments if both Houses agree.
Lord Judge (CB)
My Lords, I feel like Henry V before the siege of Harfleur. Looking around, I see:
“greyhounds in the slips,
Straining upon the start”.
Just like those poor chaps outside Harfleur, I suspect your Lordships all want it to be over quickly, and that is my intention.
This amendment is very simple. It is my answer to the letter I received from the Government about the Bill which I read out to the Chamber at Second Reading. It does not seek to preserve a single law, in any of the 4,000 pieces of material we are looking at, which Parliament wishes to revoke. Equally, it does not seek to revoke a single law which Parliament wishes to retain. It has nothing to do with that. Its objective is to ask that Parliament has a chance to look at what is proposed and to examine those proposals, not for a very long time, so that Parliament and not the Executive can decide.
If this amendment, or any of the amendments in this group, had reflected the statute in draft—the Bill, in other words—most of the arguments we have had over however long it has been would have been quite unnecessary. Maybe an amendment of this kind would have achieved that; I am not particularly supporting my own but all the amendments in this group.
Let us just go back. Probably the most persuasive argument against joining the Common Market in 1972 was that it gifted power over our legislative processes to an institution which was not wholly elected here and was not answerable exclusively to the electorate in the United Kingdom. That argument was rejected and lost, and the result is that, through the processes which we supported, we have been subject to laws directly enforceable here in the United Kingdom, created by a system of directions from the Common Market—now the European Union—which were converted into unchallengeable statutory instruments. As we now know, there are something like 4,000 still extant.
Given the time available, I will not explain what a pernicious effect all that had on the way in which statutory instruments have taken over primary legislation. But, importantly—I am stating the obvious, yet it is overlooked from time to time—what we call EU retained law is British law. It is our law; it came from an outside source and was introduced here to be enforced here, through our statutory and parliamentary system, but it is our law.
I cannot begin to imagine how the country as a whole would react if, instead of being able to dismiss it as EU retained law, we were able to look at this problem: we are going to give the Government the power to revoke all the laws relating to the environment and to employment—all the issues argued about in this House. Having done that, we will give them the power to bring in new ones, changing the way in which they operate. If we did not have this disguise of “EU retained”, I venture to suggest that no Government would be doing what this Government are doing about this particular group of laws. Until we appreciate that we are dealing with our law, which is subject to this Bill, we are not facing the reality of it.
Let us go to the most powerful argument in favour of Brexit: legislative processes should be returned to Parliament. Of course, that is the answer to “What happened when we entered the Common Market?” We will change it and go back to where we were. I do not think that “Taking back control” was just a happy slogan; it reflected a true constitutional principle. However—this is the heart of the amendment—it did not follow that this power should be given to a Minister of the Crown. It is as simple as that. The objective was not for the Executive to take back control; it was for Parliament to take back control. If we are going to honour the whole basis on which taking back control was designed to work, and was seen and appreciated to be going to work, we have to do what is required and return this power to Parliament.
The idea that we will suddenly cease to have secondary legislation is nonsense; we need secondary legislation. However, for these issues, we need proper examination and proper scrutiny. The proposal in this amendment is that we should have it. It does not propose—and could not, as I emphasised earlier—the survival of a single EU law. It could not, unless Parliament agreed. That is the objective of the amendment.
I understood the argument at Second Reading that this Bill does no more than was done to us by the EU, so why should this power that was given to the Common Market not be exercised by a Minister of the Crown? In effect, the argument was that we should just obey what we are told. However, those who advanced that argument had believed it to be wrong—a mistake and a constitutional aberration. If you believe that, surely the mistake that was made in 1972 should not be repeated here in 2023. I beg to move.
Lord Lisvane (CB)
My Lords, I will speak to Amendment 141A in my name, which has cross-party support, for which I am most grateful. Noble Lords in all parts of the Committee have been fiercely critical of the cut-off date. However, even if the present draconian date is replaced with something a little saner, the task of assessing and taking decisions on so many instruments will be huge.
My amendment, like several others in this group, as the noble and learned Lord, Lord Judge, has remarked, is designed to give Parliament a say in that process. As many noble Lords on both sides of the issue acknowledge, some of these instruments will be of no great significance. But there will be many of much greater weight, whose survival, whether in their original or an amended form, will be of huge importance to our fellow citizens. There will of course be instruments, as the noble Lord, Lord Deben, pointed out in his lapidary intervention on the first day of Committee, whose survival unamended will be almost a matter of course because we would not want to get rid of them—nobody would.
In this group, Amendments 43, 50, 62A and of course the amendment we are now specifically debating seek to give an active role to Parliament in an otherwise Executive-dominated process. My amendment goes a little further in providing for a substantial parliamentary assessment—including whether there has been adequate consultation—and for a process of suggested amendment, as part of what one might call this triaging activity. It does not deal with the unannounced repeal, which is a real problem. It could easily be adapted to do precisely that on Report, if that were acceptable. Of course, the amendment of the noble and learned Lord, Lord Judge, does that.
Lord Beith (LD)
My Lords, as well as producing a helpful amendment, the noble Lord, Lord Lisvane, produced a helpful phrase: “unannounced repeal”. That neatly gives a focus to what we are talking about: the washing down the plughole of things that have not been announced or discussed, without the involvement of any parliamentary process specific to them, beyond the Bill itself.
I support the amendment of the noble and learned Lord, Lord Judge. In all the discussions when he and I were members of the Constitution Committee of this House and we considered the EU withdrawal Bill, I do not remember anyone saying, “What will happen is that we’ll set a very short timetable, and everything will have to be dealt with by extra-parliamentary processes during that short period”. We had many discussions with senior judges and others, and the assumption was that law would be moved over—or assimilated, to use the Government’s preferred phrase—into UK law and then dealt with as time and necessity required. Some things would be changed quite quickly because they needed to be updated, but others were doing no harm and could be dealt with later. My feeling was that obsolete or irrelevant things would best be dealt with by something like the Law Commission process, which goes through legislation, identifies what does not need to be on the statute book any more and brings in legislation that deals with it. There were perfectly good procedures available to us by which we could have done that. Instead, we have this fierce timetable.
I therefore support the aims of Amendment 141A, which would create a sifting process, just as I support the aims of Amendment 32. As I said, Amendment 32 is significant because it deals with the unannounced repeals. It is bad enough having inadequate parliamentary processes to discuss those measures which will replace or modify retained European law; I think we all know how limited and inadequate the processes are. Although I agree with the noble Lord, Lord Lisvane, that amendable statutory instruments are a difficult route to go down, there are a few occasions when it happens—but it is really quite difficult. That suggests again that primary legislation should be the vehicle for making significant changes which we probably would never have made by secondary legislation if we had been doing it ourselves rather than being part of a European process. I say in passing, however, that occasionally discussions about how this European legislation was created slightly ignore co-decision in the work of the European Parliament, which is surprising given that the Minister was himself a Member of the European Parliament.
However, I am as worried about the unannounced repeals section—that is, those things which will disappear or effectively be taken off the statute book simply by the decision of a Minister. The noble and learned Lord, Lord Judge, likes to talk about Henry VIII powers. The nearest parallel I can find for what is being done is the Declaration of Indulgence of 1672, with the crucial difference that that declaration had a very noble purpose: to provide a degree of religious freedom to Catholics and dissenters. It is still not a very desirable process, because basically it was His Majesty’s Ministers saying, “We’re never going to get it through this Parliament, so we will just do it.” That is how the Declaration of Indulgence worked. I think that we have better procedures available to us now and that we should use them, and the Executive should not seek to legislate or dispense with legislation. That is a particularly dangerous precedent. If the Executive can dispense with legislation that they do not like without any action by Parliament, we are in very dangerous waters. Of course, they do not have to do anything; they just have to leave it to the sunset—the sun will set surely as it always does. In this case, the sunset takes with it legislation which they identify as stuff they do not want but which Parliament might wish to keep, might wish to reinforce its view on or might wish to have modified but should have the opportunity to consider and decide on. The purpose of Amendment 32 is to ensure that Parliament cannot be ignored in this process.
My final point arises from the helpful comments of the noble Lord, Lord Benyon, in the House on 26 February—no, it was last night.
Lord Beith (LD)
Was it Tuesday? The dates of this Bill are becoming a blur in my mind.
The noble Lord, Lord Benyon, said:
“Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it”.—[Official Report, 28/2/23; col. 205.]
He repeated that later in the proceedings, and I think we were all pleased to hear it, particularly as it related to environmental legislation, public health and other important things. It was a very significant thing he said, but it is not how the Bill is constructed; the Bill is constructed to make it so easy to repeal the legislation that a Minister does not really have to do anything other than not put it in the box marked “reform” or “reintroduce”. I would like to feel that the attitude taken by one Defra Minister will not only be supported and reinforced by the Leader of the House and others on the Front Bench but might start to colour the attitude of other government departments as they see how undesirable it is for law to be removed or dispensed with at the whim of Ministers or simply because everything goes that way unless selected otherwise. This is not an acceptable way to proceed.
Lord Carlile of Berriew (CB)
My Lords, I will speak to my Amendment 44. I am grateful for the explicit support of the noble Lord, Lord Kirkhope, who apologises for having had to leave for an engagement in the north.
About three weeks ago, I stepped from the golden sands of the Cross Benches into my first meeting of the Delegated Powers and Regulatory Reform Committee. I pay tribute to the noble Lord, Lord McLoughlin, for his objective and clear chairing of that committee, which I found very helpful as a newcomer. The first meeting that I attended took me straight into constitutional quicksand, rather than golden sands, in which I was looking at provisions which seemed to do the exact opposite of what we were told was the purpose of Brexit. The report of the Select Committee, which I recommend strongly to noble Lords, is clear that much of the Bill is nothing else than a dilution of parliamentary scrutiny and, therefore, a dilution of parliamentary democracy itself.
I hope that this debate will not develop into a discussion about whether we should have Brexited or whether we should remain, because that is not my intention at all. For me, this is a debate about what Brexit is intended to achieve and whether we are achieving it in a way that is consistent with parliamentary practice—a key part of our constitution. As I recall, the slogans of Brexit were undeniable. I overheard one about “bringing our democracy home”. However, the Bill actually sends our democracy from this building to the intellectual suburbs, where it will not be part of our law-making process. My Amendment 44, which is a probing amendment, is an attempt to show how easily a solution can be reached which does not dilute our democracy. To devise Amendment 44, I reached into my metaphorical bathroom cupboard and pulled from it the sharpest, but non-existent, instrument: what somebody else called Occam’s razor. That is the principle by which you look at a complicated problem and see if there is a series of simple solutions; you usually find that they are much the best way of solving that problem.
I respectfully suggest to your Lordships that we should set up an independent body led by a judicial figure, preferably a serving Court of Appeal judge—as leads, for example, the Law Commission, although this would be a different kind of commission from the Law Commission. With colleagues and staff, that body would consider the questioned laws in real time on the basis of the demands of time placed by this legislation. It would produce reports with recommendations, including for modification, and those recommendations would be placed before—yes—Parliament for the approval or otherwise of both Houses. Thus, we would sustain parliamentary democracy entirely by this simple process; it is Occam’s razor at work. Ministers would of course play their part; they would take part in the discussions with the commission, would be able to suggest changes and objections, and would be free to make representations to both the commission and Parliament—but Parliament would decide.
I have seen an opinion of Sir Jeffrey Jowell KCMG KC on the Bill, on the instructions of a number of respected NGOs. I do not simply use Sir Jeffrey as an argument ad maiorem; he is a most distinguished and authoritative figure of the law on constitutional matters. I will quote some of what he said in that opinion:
“The claim that the Bill promotes sovereignty is hollow, as it is an exceptional example of Parliament relinquishing its key responsibilities … Insofar as the Bill may be justified by some procedures being in place for the scrutiny of Statutory Instruments by Parliament, this rings equally hollow, since those procedures provide no opportunity to amend the secondary legislation and in practice have rarely been effective in halting its passage … The Bill also offends the rule of law which requires our law to be accessible, clear and predictable.”
Those citations, and there are many more in his opinion, really tell the story about the Bill and what is at its centre. My draft new clause may be the right or wrong template—I do not mind whether my amendment or some other amendment passes—but we have to try to agree something that sustains parliamentary sovereignty, which the Bill does not. Let us not sully Brexit by the criticism that is available at the moment that it has diluted and damaged our democracy at home.
Lord Whitty (Lab)
My Lords, I have two amendments in this group, of which Amendment 62A is the key one. It covers much the same ground as that of the noble Lord, Lord Lisvane. It would bring this whole process back under parliamentary scrutiny by establishing a Joint Committee of both Houses which would do the review that we understand is currently taking a lot of the time of civil servants in Whitehall: their work would be absolutely germane to the work of this committee. My Joint Committee is similar to that proposed by the noble Lord, Lord Lisvane; the only substantive difference is that my amendments in this group are actually remnants of a rather more ambitious original intention—namely, to delete all the first three clauses of the Bill and establish, right from the beginning, that this was a parliamentary process, not a process by the Executive alone. I still think there is merit in attaching this concept right at the beginning, before we go into more detail.
The other amendments in this group all attempt to bring some control back to Parliament. My noble friend Lady Chapman and the noble and learned Lord, Lord Judge, wish to clarify what laws fall into which groups; then we would have a process for dealing with them systematically—through the Joint Committee, in my view, in the first instance, and then being brought back, with that Joint Committee’s recommendations, to Parliament. Of course, it is not intended that that would preclude any other initiative by the Government. If the Government wish to do this more urgently, they have every right to bring legislation, either in the form of an Act or a statutory instrument, in the normal way. The Government have raised the issue of reviewing the totality of anything that has any smell of Europe about it but, if that is what they intend, let us do it in a parliamentary way.
I just want to recall two episodes of history which might perhaps remind those who oppose departing from the Government’s view of this. The first is relatively recent. In 2018, when we were still in bitter post-Brexit arguments, many of us nevertheless accepted that we had to clarify the position of European-derived law in this House and in Parliament as a whole. We accepted the suggestion of the Government that they would make clear that EU law that had been accepted during the 50 years of our membership of the European Union and its predecessors would be part of UK law. We did not realise at the time that it was not quite the same as the rest of EU law. The reasons we accepted it were, first, that we needed some stability, for business and other elements of society, immediately following the completion of Brexit; and, secondly, that the Government needed a bit of time to consider how they would deal with that law—whether they wanted to change it, amend it or revoke it. We never contemplated, at that time, that we would have a process that completely departed from normal practice in Parliament and effectively put so much power into the hands of Ministers. That power, if it were through a statutory instrument, would be subject to only minimal scrutiny—but perhaps more importantly, and equally or rather more worryingly to parties outside, is that a whole chunk of what was European law, and is now deemed to be retained EU law, could actually fall in less than 10 months’ time, without any discussion whatever in this House or another place. That also needs to be dealt with at this stage. We need to delete the sunset clause for the end of this year and, if people think it is necessary to have an eventual sunset clause, then let us accept what the noble Baroness, Lady McIntosh, was arguing in our last sitting.
The other episode of history is perhaps a bit more esoteric, but it might appeal to some on the Conservative Back Benches and the Brexiteer press, if I can put it that way, who claim that we have escaped the tyranny and domination of Brussels. There are plenty of precedents in history for this. When all the countries of the British Empire attained their independence from the old Commonwealth—the old dominions in Canada, Australia and New Zealand, more than a century ago, and even the establishment of the Irish Free State, right through to the countries of Africa and the Caribbean—part of that independent settlement, except where it was surrounded by war, was always that the rules which applied during the colonial period would continue to apply until the new independent judiciary and legislature changed them in Jamaica or the Irish Free State, for example. That remained the case in almost every country which gained independence from the British Empire. Those that did not follow this precept—Zimbabwe, for example—are usually crucified by the right wing in this country for doing so.
In most cases, there was a peaceful transfer of power, as there has been a peaceful transfer of power from Brussels back to this Parliament. We should follow the example of the Macmillans and the others who gave independence to all those countries. Even with the establishment of the Irish Free State, as I said, you still get Irish lawyers in the Irish courts quoting case law from Victorian times. This issue has an implication for case law as well, which we will come to at a later stage.
I hope that whatever the Government do in relation to this debate, they will see all the different proposals in this group and elsewhere and bring back on Report a proposition of their own which restores the systematic assessment of EU retained law to Parliament—with decisions resting with Parliament, not in the hands of Ministers—and prevents it from disappearing as the bells chime on New Year’s Eve later this year.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I have put my name to two amendments in this group: Amendment 32 tabled by the noble and learned Lord, Lord Judge, and Amendment 141A tabled by the noble Lord, Lord Lisvane. I have done so because, if the Government were to accept them, they would significantly enhance the ability of Parliament to scrutinise the legislation arising out of this Bill more effectively. They would do so by introducing for the first time the beginnings of a triaging system, which would enable the House to focus its efforts on those probably relatively fewer bits of legislation that really matter and ignore the rather larger number that do not.
My noble friend on the Front Bench has taken a lot of “incoming” over the past couple of days. I have some sympathy with the conflicting advice he has been given. If I were to distil what he has been criticised for, I would say that the concerns about the Bill relate to uncertainty about the Government’s approach to specific policy areas on the one hand, and the lack of parliamentary involvement on the other. These two amendments—and indeed some others in this group—would go a long way to answering those criticisms and concerns. I hope my noble friend will listen carefully to the arguments being put forward, because he might catch the sound of the cavalry arriving to bring some help to his rather beleaguered post.
We have heard a magisterial speech from the noble and learned Lord, Lord Judge, on Amendment 32. I am not a lawyer, and in such circumstances, to try to add to a speech made by a past Lord Chief Justice would indeed invite an accusation of hubris. Therefore I hope that Members of the Committee will come with me, if not into the weeds then into the grass—the long grass—and explore on a more practical level what I believe these amendments will achieve, how important they are in ensuring that Parliament is not taken for granted, and how they will lead to a greater level of public acceptance of the implications of particular policy choices, so reducing disconnect between the governors and the governed. Finally, in consequence of all this, I will explain why I hope my noble friend on the Front Bench and the Government will give very serious consideration to what the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, have proposed.
I want to draw on my experience of the past three years as chairman of the Secondary Legislation Scrutiny Committee. During that time I have seen the sands of power and influence trickling through Parliament’s fingers, which has meant that the Government have gained more power at the expense of Parliament. This has long roots here. It probably began with the Blair Government, who had a very substantial majority and thought they could use secondary legislation to push stuff through quickly. It has had twists along the way with things such as the pandemic, where emergency legislation has been used for purposes for which it was not originally intended. However, the real game-changer has of course been, as we all know, the emergence of skeleton Bills—framework Bills—of which what we are discussing today is a classic example.
It is worth pausing momentarily to think about what my noble friend is going to say on why this group of amendments should not be accepted. I think the first thing the Government will claim is that, if they were to be accepted, it would be likely to lead to the government machinery being gummed up by additional legislative time taken. I reject that—it is not true. In the 600 or 700 instruments that the SLSC looks at every year, between two-thirds and three-quarters are entirely uncontroversial—they are essentially technical—and I am firmly of the view that no lesser a proportion of the regulations that will come from the Bill will fall under the same category. They will essentially be technical and uncontroversial and will not give rise to controversy, which means that your Lordships’ House and the Government will have a much smaller population of instruments on which to focus their attention.
The second thing that I think the Government will allege is of course that both Houses give their consent to each regulation. We have all heard the noble Lord, Lord Krebs, who is not in his place today, on the question of amendability, and the noble Lord who just spoke referred to that as well. Technically, we know it is true, but the consent is the equivalent of having a pistol at your forehead which will fire bullets marked “constitutional crisis” and “the Strathclyde review”. In those circumstances, I argue that the consent is grudging at best.
What is really valuable about these amendments and indeed the others is that for the first time we can begin to concentrate on what really matters. This is by any standards an immensely complex Bill, and the actions taken under it will set the course for this country for many years. This House—indeed, Parliament as a whole—is entitled to know what the Government is thinking, not just in broad statements of principle but in their detailed application, which is, after all, what really matters to every citizen. If my noble friend and the Government are concerned about the generally adverse reaction to the Bill, I gently remind them that sunshine will be the best answer and these two amendments represent sunshine.
I am not against the Bill—I voted to leave the European Union and I believe it was the right thing to do—but I am also a democrat, and I voted to bring back powers to the United Kingdom. Although this is happening, sadly, as my noble friend Lord Young of Cookham memorably pointed out at Second Reading, those powers have been sent to the wrong address. If I may continue with his analogy, I regard these two amendments as attempts to redirect the repatriation of powers to their proper destination, and that is why I support them.
Baroness Chapman of Darlington (Lab)
My Lords, I follow the speech of the noble Lord, Lord Hodgson, which was incredibly helpful and really got to the heart of what this group of amendments seeks to do. I could support any one of them; they all try to do a similar thing in slightly different ways.
The amendment I have tabled, with the support of the noble Lord, Lord Fox, seeks to deal with perhaps the most dangerous element of the way the Government are approaching this task, in that it would prevent what the noble Lord, Lord Lisvane, described as the unannounced revocation of law. Things happening by accident is what we are increasingly concerned about, especially given the contribution of the noble and learned Lord, Lord Thomas, about the inadequacies of the way the Government may be—we hope to find out more about what they are doing—endeavouring to identify all the retained EU law.
There are many concerns about the Bill, which colleagues have described in detail in this debate, but there are three which stood out to me above some of the others when I first read the Bill. The first is the total lack of clarity about which laws are going to be revoked. The second is the regulatory cliff edge which means that all retained law will be revoked by default—no matter what the noble Lord, Lord Benyon, said—at the end of this year. The third is the complete lack of parliamentary accountability and consent in the process. This amendment addresses those three concerns. Clearly, other concerns are addressed by other amendments, which I also support.
Amendment 43 is as simple as we could craft it. It is based on common-sense principles that I believe noble Lords from all sides can agree: that if the Government want to revoke a law, they should be able to, but they should be able to tell Parliament which law it is that they want to remove. The removal of the law should be an active choice, not a passive default, and should require Parliament’s consent. There is nothing in this amendment that prevents the Government achieving their stated aim of dealing with all retained EU law. Our amendment requires simply that, if the Government wish to revoke a retained piece of EU law, they must proactively submit to Parliament a list of the specific items they wish to revoke. We are not stopping anything happening; we just want this to be done in a much safer way. Both Houses would then need to vote to approve that list. Law which is not specifically revoked is retained. That is it.
As was said at Second Reading, it is perfectly reasonable for the Government to review law that has been retained from our long period as a member of the European Union. We have no argument with this. We might not like what the Government want to do and the decisions that they might make, but we do not argue with the Government’s intention to examine this class of law—although it is just UK law. It is a bit like, I suppose, if the Labour Party were to win an election and say, “Do you know what? We did not like the way that last Government behaved. We’re going to sunset everything they did and hope for the best”. I should say that that will not be in our manifesto; I say it just to highlight the insanity of the way this Government are going about this.
The amendment does not frustrate the fundamental process. It would require the Government to follow a very reasonable, proportionate approach. It could be done in a timely way—I know time is important to the Minister, who wants this to be done quickly, and this could be done relatively quickly. Through this amendment, we would have a very simple but democratic mechanism for changing EU law. It would ensure that the process of reviewing retained law does not cause as much uncertainty as the Government’s regulatory cliff edge is generating today. It would mean that important decisions about workers’ rights, environmental standards and consumer protections cannot happen by default, or worse, by accident. It would restore Parliament’s proper, sovereign role.
I know some have objected to the processes that created these EU laws in the first place. The Minister is one of them, I think, and I respect that view. He has said that he regarded that process as distant and undemocratic. I do not agree but he is entitled to hold that view. However, it is really difficult to take those complaints seriously when the Government are choosing to support the nonsensical, undemocratic Executive power grab that this Bill, as currently drafted, represents. It is reckless.
Your Lordships’ House, or the Government, should amend the Bill with a simple, straightforward process that sits much better within our constitutional traditions. My amendment is a common-sense amendment that respects the sovereignty of this Parliament, and I commend it. However, I would be very happy to work with noble Lords from all sides—indeed, I look forward to it—on coming together should the Government choose not to take the recommendation embodied by this group of amendments. We would be neglectful if we allowed this Bill to proceed any further without the safeguards that the amendments in this group would provide.
Lord Fox (LD)
My Lords, I will speak to Amendments 42, 43 and 50 and the Clause 1 stand part debate, to which I have added my name.
What was clear from last week’s debate—we have alluded to it a number of times since then—is that the Government have absolutely no intention of providing a comprehensive list of retained EU law under the jurisdiction of this Bill. It is clear that the decisions taken by departments to retain, amend or revoke will be announced unilaterally via the dashboard. In the case of revoking, it is an act of either commission or omission—we will not know until we see it on the dashboard. However, if there is no list then we will not even know that something has been revoked. The former—the lack of a list—informs the latter: the fact that we will not know whether laws have been revoked or otherwise.
That is why this set of amendments, in the number of forms that we have seen, is so important. Through Amendment 32, we have heard from the noble and learned Lord, Lord Judge, my noble friend Lord Beith, the noble Lord, Lord Hodgson, and the noble Baroness, Lady Taylor, how the Government should set out in advance what they are seeking to do and give Parliament a chance to overrule the Executive and choose to retain specific named instruments, rather than waiting for the automatic disposal of these laws. The noble Lords, Lord Carlile and Lord Kirkhope, in Amendment 44, and the noble Lord, Lord Lisvane, in Amendment 141A, set out other ways of seeking to achieve a similar end. The point has been made that there are a number of ways of doing this.
It was a pleasure to hear the noble Baroness, Lady Chapman, set out Amendment 43, to which I have added my name; I was happy to do so because, in the amendment, she sets out very ably a process by which Parliament can retain its control over what is going on in this law. It would avoid the really important issue, to which I and other Peers have already alluded, of the unknown repeal of laws—that is, the accidental revocation or deliberate obfuscation of revocation that may happen as a result of this law. This is a well-drafted amendment that we would be very happy to see go forward.
Amendment 42, in my name and that of my noble friend Lady Ludford, complements what we have heard already about a process of consultation, about how these laws and regulations should be consulted on. It sets out four objectives for the consultation. The first is to consider whether the legislation under review is fit for purpose. It may not be. Ministers have talked about reindeer and whatnot. I am sure that we do not really need those but there cannot be many of the 4,000 or so laws that refer to reindeer. Let us assume that that the majority of them are addressing areas of concern to the greater public. Are they fit for purpose?
The second objective is to consider whether alternative regulation would achieve different or preferable goals. The third objective is to consider whether alternative regulation would provide greater benefits to consumers, workers, businesses, the environment, animal welfare, and public safety, to name a few. The fourth objective is to consider whether alternative regulation would provide greater legal certainty, and there is a great deal of legal uncertainty coming the way of this Bill if it stays as it is. I cannot see why this approach is unreasonable, and I am sure that the Minister will agree with me and adopt this straightaway.
Much has been said about sunsetting. Some speakers on the Government Benches have set out their view that without sunsetting, departments would somehow be dragging their heels. The Minister, the noble Baroness, Lady Neville-Rolfe, said last week to your Lordships that
“the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens.”—[Official Report, 23/2/15; col. 1820.]
Just before lunch, we heard the Minister, the noble Baroness, Lady Bloomfield, say that the sunset’s purpose is to “incentivise genuine reform”. These confirm that the purpose of the sunset is, in the Government’s view, to get civil servants to get on with it. That may be so, but what is it that are they getting on with, or that the Government would have them get on with? I suggest that they are injecting the largest single slug of legislative uncertainty into national life that any of us can remember. I say to my noble friend Lord Beith that I am afraid that I do not go back to the 1600s, when it last happened—
Baroness Hayman of Ullock (Lab)
Neither does the noble Lord, Lord Beith!
Lord Fox (LD)
I beg my noble friend’s pardon. Perhaps there is a reason why the departments might favour a slower, stepwise and consultative approach. We have also tabled an amendment that opposes Clause 1 standing part of the Bill. That is to give time to have that stepwise, considered and consultative approach, as many of us believe it should be. It removes the sunset altogether and it gives us time. Clearly, this element of the Bill, if not the others, was the product of the imagination of the Conservative MP for North East Somerset. This Bill is a legacy from his short-lived time in BEIS and, like almost everything produced in that thankfully brief period of administration, it delivers chaos and an unworkable Bill. The Government Front Bench might appreciate our help in removing this very difficult thing, for what will become a very difficult effort.
Finally in this group, my noble friend Lady Ludford and I have tabled Amendment 50, which seeks to deliver a super-affirmative process. I should point out that the dash comes between “super” and “affirmative”; it is the affirmation that is super, not the process. The process is for revoking EU-derived subordinate legislation or retained direct EU legislation. It was referred to by the noble Lord, Lord Lisvane, earlier. Once again, this is about parliamentary scrutiny. The amendment seeks to address the huge democratic shortcomings of this Bill, as outlined by the Delegated Powers and Regulatory Reform Committee. In the “Bypassing Parliament” section of its report, the committee observes:
“The Bill gives to Ministers (rather than Parliament) the power to decide, in relation to a considerable amount of REUL, what is to be … revoked and not replaced … revoked and replaced with something broadly similar … revoked and replaced with something very different, or … retained.”
That is, in a nutshell, what we are discussing. The committee also noted:
“Parliament will not know, at the time it grants the powers, what the Government intend to do with those powers.”
I will not dwell on this amendment to create the super-affirmative process, except to highlight a couple of features. The first, under proposed new subsection (2), is:
“For each instrument that is proposed to be revoked, a Minister of the Crown must lay before Parliament … a draft of the regulations; and … a document which explains the draft regulations.”
As the noble Lord, Lord Lisvane, said, there is a period of 30 days for this process.
Lord Hamilton of Epsom (Con)
My Lords, I am absolutely amazed that the noble Lord, Lord Fox, has such faith in the bureaucrats of this country such that, if you do not give them deadlines, they will still keep to the timescale. It is remarkable when you think that one of the tasks of all our departments is to review their legislation to see whether it is still current. At intervals, Ministers have said that they will produce only one new law in return for two revoked, but nothing ever happens. This is one of the inadequacies of the system in which we live, but we will let that pass.
I listened to the remarks of the noble and learned Lord, Lord Judge, with great attention, as I always do. But this is the first time I actually agreed with most of them. Unlike the noble and learned Lord, I campaigned to leave the EU. I did not actually stand on people’s doorsteps and say, “We have a wonderful scheme here. We have a drastically undemocratic system of people living in Europe dictating the laws that we should have in this land. But we are not going to restore parliamentary democracy; we are going to hand over all this power to the Executive.” If I had said that on doorsteps, and people like me who wanted to leave the EU had put that argument forward widely, it is quite possible that we would not have left the EU at all.
I am spoiled for choice with the amendments I could back in this group, but I very much support the noble Lord, Lord Whitty, and his Amendment 62A. I think that we need a sifting committee and the all-party one that he advocates is very much one that I would support.
I have been told that at least 40% of our retained EU legislation will be put back on the statute book unchanged. I suspect that that is a rather low estimate and will rise, particularly given what my noble friend Lord Benyon said about retention being the default position. There will not be much controversy about that and the committee of the noble Lord, Lord Whitty, could decide to do that by secondary legislation.
We then come to EU law that is completely irrelevant to this country. Isolated cases have been brought up, such as reindeer between Denmark and Sweden, and fishing in waters nowhere near the United Kingdom, as my noble friend Lord Benyon mentioned. We have also got the export of lemons. I do not think we are going to be doing a lot of that in the future—though with global warming, you never know, do you? Then we have got olive oil; I do not quite see us growing that number of olive trees in the near future, but it is obviously very important to the southern countries of the EU. All of that can certainly be binned, and I would not have thought that there would be any controversy about that whatever.
I suspect that the other amount of law that the Government are thinking of getting rid of, which is more difficult, is the area where there is already legislation in the United Kingdom which does this job better than the EU legislation. That is something which will have to be argued out, which is why I think the role of this cross-party committee could be critical.
We then come to other regulations which need very minor amendments. As we know, one person’s minor amendment is somebody else’s major amendment, so I would be more than happy that the committee viewed that legislation as well. If it was happy that the amendments were very minor—just changing dates and things of that sort—they could allow that through statutory instruments and secondary legislation. What is much more concerning is the ability that the Government seem to be giving themselves to scrap an EU law and introduce a completely new one. This is not what we voted for when we voted to leave the EU and is an extraordinary transfer of power. That is where I hoped that this committee would come in and say, “No, this must be dealt with by primary legislation.”
To sum up, I would be more than happy to back an amendment similar, if not identical, to that of the noble Lord, Lord Whitty. I will campaign among all the people I know to actually support it as well—and I think that I possibly represent one or two of the people who left the EU. If we do that, we might get an overwhelming majority which might make this Government change their mind.
Lord Kerr of Kinlochard (CB)
I am very glad that I gave way to the noble Lord, Lord Hamilton. I hope that the Government will reflect on such criticism coming from such a quarter. The noble Lord, Lord Hamilton, and I disagreed violently over Brexit, but the criticisms that he is making now, much more clearly than I could, are the criticisms that I want to make now. So the opposition to the Bill does not come under the remainer/leaver axis—it comes under the “good Government” axis.
There are just two points that I want to raise. I support the amendments in this group, particularly the amendments in the name of the noble and learned Lord, Lord Judge, the noble Lord, Lord Fox, and the noble Baroness, Lady Chapman, Amendments 39, 42 and 43. The first point I want to make is about unannounced repeal—the point made by the noble Lord, Lord Beith—although it is unannounced and undiscussed repeal that really bothers me. The other is about default.
On unannounced and undiscussed repeal, when we were last in Committee, on Tuesday, I asked what Parliamentary procedure would be available when a Minister decides that a piece of our law should be abolished. What procedure will enable Parliament to debate that decision? The Minister replying to the debate said that she would reflect on the point that I had made. I have not yet heard an answer, but it seems to me rather a significant point. Here we have a situation which I believe is improper in constitutional terms—and it is certainly absurd in practical terms that laws should disappear by administrative fiat, privately. I do not know how courts will be expected to apply that, and I do not know how citizens are expected to behave in relation to the law, if changes in the law have been made by administrative fiat, privately. I think it is constitutionally improper that that should happen without the opportunity for some discussion in this this place and the other place. I think it is important to address the question that has been raised by the noble Lord, Lord Beith, and I hope we are about to hear an answer.
Baroness Chapman of Darlington (Lab)
The noble Lord’s speech is quite intriguing. I have a question for him, although I do not know whether he will be able to answer it here and now. Is he suggesting that, if a piece of law were to be revoked because it was not included on the dashboard and had not been discovered through the search process, and that piece of law is later identified by a citizen and relied on in order to take a case to a court, that court would then have to determine whether that piece of law was retained EU law? What effect would that have on the deliberations of that court at that point?
Lord Kerr of Kinlochard (CB)
That is exactly the point I was going to address under my second heading, “default”. As I read the Bill, those laws that are not identified in time automatically vanish. As I read the Bill, when the clock strikes midnight at the end of the year, anything that has been omitted but is still the law of the land on 31 December is not the law of the land on 1 January. That is bizarre. I think the Government have to accept something to deal with that problem. It is dealt with in Amendments 39 and 42. It is not quite dealt with in Amendment 43, but that amendment could easily be expanded to deal with it. It seems to me that, when they respond to this debate, the Government need to tell us what the answer to that question is as well as, I hope, telling us the answer to the question I asked on Tuesday.
Lord Bach (Lab)
My Lords, I apologise to the Committee for having not spoken at Second Reading, but I am keen to support the principle behind this group of amendments, and I am pleased to have put my name to Amendment 141A, tabled by the noble Lord, Lord Lisvane. At an earlier stage of this Bill, the noble Lord, Lord Lisvane, described it as a beta-gamma piece of legislation. I think he was being a bit kind. Omega strikes me as being more suitable. I agree with what the noble Lord, Lord Deben, said at an earlier stage as well, although I obviously say that from a different political view. He wanted to understand how a Conservative Government could produce this Bill. I cannot understand how any Government could produce this Bill, Conservative or otherwise.
However, the Bill is with us and at the very least it needs amending severely. All the amendments are in different ways saying very much the same thing: give Parliament its proper role in deciding what legislation should be repealed or replaced. I do not understand how a Government who only this week have, perhaps rightly, boasted of their democratic credentials in terms of an important announcement can produce a piece of legislation like this that just gives power to the Executive and, frankly, bypasses Parliament. If it was not so serious, you would think this was a toytown Bill and a toytown piece of legislation. It is really not worthy of any British Government, which is why I very much support the principle behind these amendments and hope even more that the Government will see the good sense in them.
Lord Deben (Con)
My Lords, I rise not least to celebrate the fact that I agree so strongly with my noble friend Lord Hamilton. We are as one, and it does not matter what we thought when it came to the referendum. Everybody knows that I am a passionate remainer, but I am one of those who draws a line under that because I want to get on, with Britain, which I believe we have to. I want to do that in the British way and, surprisingly enough, in the Conservative way. That means three very simple things, and these amendments enable us to do them.
Lord Wilson of Dinton (CB)
My Lords, as the former Permanent Secretary to the noble Lord, Lord Deben, I would like to tell your Lordships that that is how he was as Secretary of State. I am so proud of the speech that he made, because I agree with it all. I also agree very much with the noble and learned Lord’s amendment.
I think the noble Lord, Lord Hamilton, should begin to be a little concerned that former civil servants and diplomats are beginning to mobilise behind him, because I agree with virtually everything that he said, which should be unnerving—except for one point. I want to focus on the idea of “incentivising” the Civil Service. The view that I have expressed already is that the work should have been done in government before the legislation was introduced, and that is still my view. We are discussing an administrative task, not a legislative one. I know that the noble Lord knows how to incentivise the Civil Service, because in the 1980s, when I worked for Mrs Thatcher, he used to sit in the Cabinet Room behind her listening to her “incentivising” her Ministers and civil servants. Although I cannot see him right now, he jolly well knows how it is done.
What we should have is the Bill being paused or withdrawn. The Prime Minister should assemble all the Permanent Secretaries, together with the heads of the Civil Service, and the Minister of State at the Cabinet Office, who is sitting on the Front Bench. Then he should say to them, “I want this sorted out by the end of, say, June”—the noble Lord, Lord Hamilton, described this accurately. After they report back, the Government should then introduce in Parliament whatever legislation is needed to implement it. We would then have something to discuss, rather than operating in a policy void as now.
By all means, let us accept one of these amendments—I would go for that of the noble and learned Lord, Lord Judge—but let us recognise that this is an administrative task. It should have been handled properly, in an administrative way, before Parliament had to spend time on it.
Lord Hacking (Lab)
My Lords, it is a great delight to follow the noble Lord, Lord Wilson of Dinton, with whom I have university connections, and even more of a delight to follow the noble Lord, Lord Deben, with whom I used to joust in the Cambridge Union more years ago than I can remember. He was persuasive then and he is persuasive now.
Before I speak to the two proposals I have put my name to, I will just refer to what my noble friend Lord Whitty said about the devolution of laws when the Empire, or the Commonwealth, was broken up. He was entirely accurate in what he said to your Lordships. I raise this point because I remember particularly that, several years ago, I was defending an accused who had been convicted in the courts of Jamaica. He was attempting to appeal to the Privy Council in London and I was his counsel. We had to refer back to the relevant laws in Jamaica and, in doing so, to go back to a homicide Act of 1926 and to a Court of Appeal presided over by Lord Reading. That was disastrous to my client’s case. I am very happy to tell your Lordships two things: first, that my client was relieved of the death penalty which hung over his head when I took on his defence and, secondly, that in Jamaica they paid swift attention to those out-of-date laws, so that Lord Reading’s pronouncement is no longer binding in Jamaica. That is the process which one would expect to happen if we adopted EU law, as I say we should; then if something uncomfortable comes to our attention, it is dealt with in a fair and swift way.
The two proposals that I have put my name to are Amendment 42 and the opposition to Clause 1 standing part of the Bill. I will also speak to my noble friend Lord Whitty’s Amendment 44A. I would like to address the parliamentary consequences of any of those amendments being voted in on Report. Given the large opposition that has been put to a number of provisions in the Bill, which is exactly what these three proposals are doing, the high chances are that they will succeed in Divisions on Report. The consequence of that, which we should take strongly in mind, is that it would kill the Bill because all three start from the premise that Clause 1 should be left out. I think the amendment of the noble and learned Lord, Lord Judge, has a different introduction, so let us just refer to those three and their consequences.
Lord Hannay of Chiswick (CB)
My Lords, I support Amendment 32 in the name of my noble and learned friend Lord Judge, and Amendments 42, 43, 44 and 141A.
I will make two very short points because so many of the points have been made more eloquently by previous speakers. First, the amendments we are discussing are not substitutes for removing the cut-off at the end of 2023. They are complementary to it for two reasons. The processes quite rightly being proposed could not all be got through in the time available before the end of this year; you also solve the cart and horses problem by removing the 2023 date. I hope we will not forget that when we come back to all this on Report, and we will see these two things as complementary.
Secondly, the arguments about the EU-based legislation that is completely immaterial to us—on reindeers, lemon exports and so on—are completely irrelevant. If you go back through the last 500 years of statutes past, the statute book is full of things that are completely irrelevant to the way we live now, and which are not enforced or implemented in any way. We do not seem to lose any sleep over it. Let us not lose any sleep over the reindeers or they will not bring the Christmas stocking with them.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have not signed any amendments in this group—I was not asked, and I was not quick enough to get my name down. All of the issues have been covered absolutely amazingly by other noble Lords, so I will restrict myself to talking about the politics. The politics of this particular Bill are extremely interesting. I support all the amendments in the first group, simply because they are sensible and practical, and I like practical outcomes. But, at the same time, we ought to throw the whole clause out, and I do not see any option to do that. We want a democracy when we have finished voting on the Bill and, if it goes through as it is, we will not have one.
I will ask two political questions. First, why do we have the Bill at all? Quite honestly, it is terrible piece of legislation that is absolutely outrageous. In the 10 years I have been here, I have almost never had a glimmer of sympathy for the Government. But, having seen the Bill, I do: it is like the last gasp of a dying creature, and that dying creature is the popular Tory party of 2019, when it actually had some credibility and popularity, as I said. That has seeped and ebbed away, to the point that it is now in the most extraordinary position and putting forward legislation like this. It is an ideological monstrosity that caters to the worst parts of the right wing of the Tory party, and it will not have support.
I think the Conservative Party expects to run out into the streets and say, “We did it—we got rid of all EU law. Brexit has finally happened”. But, of course, that is simply not true: a lot of this is not EU law but British law. I am sure that the Minister himself had a hand in producing some of it, as a Member of the European Parliament. For anyone who has been in the European Parliament to say that this is pure EU law is complete nonsense. I do not want to accuse the Minister of telling lies, but it is nonsense. So why is it here? Is it here because the Conservative Party wants to get some sort of popularity or something? Why is it here? It is not a worthwhile Bill; it is a ludicrous Bill to bring here. There has been so much learned opposition, but still the Government insist on pushing it through.
My second political question is: what happens afterwards? Of course, it is all very well to put this through, but what happens when Labour is in government? Will the Conservative Party really be happy that Labour has these powers and can just whip out a piece of legislation and give Ministers all these powers? It is not a democracy when you give so much power to Ministers. That is not what Brexit was about—and I say that as somebody who voted for Brexit. I say to the noble Lord, Lord Deben, that he is perhaps a rejoiner now, not a remoaner—sorry, I mean remainer. It is perhaps time we understood that the damage has been done and this just creates more damage. It is time to drop the Bill. We will not have a democracy if it goes through.
Baroness Ludford (LD)
My Lords, I am pleased that everybody who has spoken in this debate is pulling in the same direction, which is an effort to rescue the Government from themselves. It is not only former diplomats and civil servants, in the words of the noble Lord, Lord Wilson, who applaud the remarks of the noble Lord, Lord Hamilton of Epsom; I am afraid to say to the noble Lord, Lord Hamilton, that it is also Liberal Democrats as well, which might be even more upsetting to him. But we are all, at least partially, on the same page as the noble Lord, Lord Hamilton of Epsom, and I do hope that we will be able to rally round a single powerful amendment for Report, based on elements of all of the laudable amendments in this group.
What has been brought out in the debate are the contradictions and hypocrisy of criticising the EU legislative process—which I happen to believe was democratic, but I will leave that there. But, even if you do not, introducing rule by executive diktat does not seem a very intelligent response to your criticism of EU lawmaking.
I think it was the noble Lord, Lord Carlile, who cited the report of the Constitution Committee; I think we are all grateful not only to that committee but to the Delegated Powers and secondary legislation committees—we have with us the former chair of the SLSC, the noble Lord, Lord Hodgson, who supervised the work for that committee’s report on this Bill before he stepped down. The DPRRC not only described the Bill, as we have frequently said, as “hyper-skeletal” but noted that approach taken by the Government
“contradicts pledges by the Government since 2018 that Parliament would be the agent of substantive policy change in these areas”.
Instead, they have made the Bill
“a blank cheque placed in the hands of Ministers”.
That is our objection. The Government would be wise to go back and think about what they are doing in this Bill. We are trying to put some order and reasonableness into the way it is being done. We are having to do a lot of the work that should have been done before the Bill was introduced. All the amendments, whether the one led by the noble and learned Lord, Lord Judge, and supported by my noble friend Lord Beith, or those led by my noble friend Lord Fox, the noble Baroness, Lady Chapman, and the noble Lord, Lord Lisvane, in one way or another seek to avoid the deletion of unidentified law unintentionally and to allow Parliament rather than Ministers control in a considered, explained, transparent and accountable way. Seriously, what is not to like about those two objectives?
We heard some nice phrases in the debate. It was said that we wanted to avoid the “unannounced repeal” of legislation, which was translated perhaps in a rather more blunt, northern way, if I may say so to my noble friend Lord Beith, as “washing stuff down the plughole”. We heard about a “circular economy” of the law from the noble Lord, Lord Deben. I might recycle that—oh, dear—at some point. The noble Lord, Lord Kerr, described the processes in the Bill as “bizarre” and “constitutionally improper”. Several amendments, including Amendment 42, led by my noble friend Lord Fox, seek to avoid the default loss of laws that our citizens will not even know they have lost—various speakers, including the noble Lord, Lord Kerr, mentioned the effect of that.
So we are trying to establish default retention and to build in specification of objectives for any revocation. A lot of the amendments are sister amendments to those debated on Tuesday in an earlier group—we had Amendment 48 on consultation and reporting. All of them aim to introduce a reasonable, considered, parliamentary way of doing things which will not surprise all the businesses, unions, consumers, employees and so on, who will not know what on earth is going on.
I realise that Amendment 50, which proposes a super-affirmative process for revocation, may offend the reservations of the noble Lord, Lord Lisvane, and my noble friend Lord Beith about amendable SIs, but I am sure that, with the skill of both those very experienced parliamentarians, we will be able to think of a better way of drafting everything. But I think that all the aims that we have debated in this group are worth pursuing.
Lord Hacking (Lab)
I interject to make a point that perhaps I did not get over clearly enough earlier. In moving Amendment 42, we would be doing nothing but trying to help the Government and help good governance.
Baroness Crawley (Lab)
My Lords, very briefly, I support this group of important amendments. In particular, I support Amendment 43 in the names of my noble friend Lady Chapman of Darlington and the noble Lord, Lord Fox. Through it, only legislation identified and approved by Parliament could be revoked, and that is the responsible, democratic and considered way to proceed.
Amendment 43 would put responsibility for a timetable of revocation back with Parliament, so that the Government cannot claim that it is an open-ended approach. It also begins to answer the very important questions around the complete lack of executive accountability raised by our Delegated Powers and Regulatory Reform Committee and Secondary Legislation Scrutiny Committee. So many sectors and people are affected by the Bill and do not want Parliament to be taken for granted, as the noble Lord, Lord Hodgson of Astley Abbotts, put it.
I will concentrate for half a minute on consumer protection. As the vice-president of the Chartered Trading Standards Institute, I will reflect some of the fears raised with me over the past weeks and months.
Baroness Crawley (Lab)
The Minister is heckling me from a sedentary position.
Lord Callanan (Con)
We discussed consumer protections in an earlier group. The noble Baroness may have made the same points then. I do not see the point of repeating the same arguments yet again. If she has some points to make on the amendments we are discussing today, perhaps she would like to make them.
Baroness Crawley (Lab)
The Minister has not heard what points I make; I do not know how he can say I am making the same points. The Bill affects sectors right across the UK—people, businesses, trade unions and consumers—and that is why I am raising this. I think the Minister should not have intervened. It is Committee and I have every right to make a minute’s worth of comment.
Viscount Stansgate (Lab)
My Lords, this has been a very educational debate. On Monday this week, two groups of sixth-formers came to visit me here and we discussed things upstairs in Committee Room 1, chosen specifically because of its judicial resonance. They are studying for their A-level exams and the question they put to me was about Parliament’s role in scrutinising the Executive: how effective is it? They were very sharp and on the ball, and they wanted to know and to have examples. But when it comes to the Bill we are discussing today, I could not possibly say that this is a good example of Parliament’s ability to scrutinise the Executive. This Government, we know, claim that their major policy success was to take back control—but in my view it was never to take back control to the Executive but to Parliament. I am heartened by the speeches of the noble Lords, Lord Hamilton and Lord Hodgson, because I see reflected in both of them a wish to see Parliament as the centre of decision-making in Britain—the Executive are a part of it but Parliament is the heart of it.
We have a number of amendments before us, Amendments 32, 141A, 43, 44, 62A and so on, and each in its own way has a contribution to make. I would be minded to support them all because, whatever happens as a result of the debates we have on the Bill, everybody knows we need proper parliamentary scrutiny of what is about to happen—we do not even know what is going to happen to the vast range of legislation to be covered by the Bill.
History will not regard this Government well if future students of politics, of the kind I talked to on Monday, reach the conclusion that Parliament has lost its ability to scrutinise the Executive. In finishing, I quote one Member’s explanatory statement for one of the amendments we are discussing today: it seeks to give
“Parliament the ability to scrutinise these decisions. It would also allow Parliament to overrule the Executive”.
That is exactly what parliamentary democracy is supposed to be about.
Baroness Chapman of Darlington (Lab)
I shall be very brief, because I can see we are testing the Minister’s patience. He perhaps needs to indulge in some breathing exercises or something—maybe yoga, I do not know. We are not deliberately detaining Ministers here; we are trying to do our jobs thoroughly.
I quite rudely interrupted the noble Lord, Lord Kerr, earlier, in my enthusiasm to understand the point he was trying to make. He needed no help from me in making his case, but I do not want the point to get lost when the Minister responds. The noble Lord asked a really important question about what is going to happen if a piece of law is lost because the search process did not identify it. How will a court know that it should not be adjudicating based on that piece of law? How will a citizen know that a piece of law is no longer applicable because it was lost as a result of this process? This is such an important point that has not come up before this group of amendments. It will be very difficult for us to engage positively with subsequent groups without having a full, comprehensive answer to the question of the noble Lord, Lord Kerr. I do not want that to get lost in what I am sure is going to be a comprehensive and enlightening response from the Minister.
Lord Callanan (Con)
I thank the noble Baroness for her suggestion of doing some breathing exercises. I apologise to the noble Baroness, Lady Crawley, if I was maybe a bit short, but I was seeking to make the point that we had a debate on consumer protection policies on an earlier day in Committee, and I thought she was about to repeat the points that had been made. I am trying to get the House to focus on the amendments we are discussing, because we are making very slow progress. Be that as it may, I realise that noble Lords want to make their general points as well.
Yet again, we have had a lively debate. I and other Ministers have listened closely to the points that noble Lords have made; I hope I will satisfy the noble Baroness, Lady Ludford, in that I will not be dismissive of them. It is my job to set out the Government’s position on the amendments we are discussing. I am not dismissing noble Lords’ concerns at all, but I suspect that we will have a difference of opinion. Nevertheless, let me give it a go.
I start with Amendment 32 in the name of the noble and learned Lord, Lord Judge, relating to the operation of the sunset clause and additional layers of scrutiny. It is similar to Amendment 50 in the name of the noble Lord, Lord Fox, which would in effect ensure that retained EU law remains on the statute book unless specified by regulations which have gone through a super-affirmative procedure. In essence, this amendment would block—I think he knows this—the UK from conducting the economic reforms we want to see to drive much-needed growth. Our position is that making it harder to remove regulations—I understand why noble Lords want to do that—would hamper the UK’s growth, be detrimental to the UK and fundamentally undermine the aims of the Bill. I understand that many noble Lords want fundamentally to undermine the aims of the Bill, but this is not something that the Government can accept.
I agree with noble Lords; it is of course right that we ensure that any reforms to retained EU law receive proper scrutiny. That is why we have already ensured that the Bill contains robust mechanisms that will enable the appropriate level of scrutiny of any amendments to retained EU law made by the powers included in the Bill. This includes a sifting procedure that will apply to regulations under Clauses 12, 13 and 15 to ensure that Parliament can assess the suitability of the procedures being used for statutory instruments.
Once the Bill—I hope—receives Royal Assent, work on reform will continue in individual departments. They will prioritise some of the work they are already doing in areas of retained EU law reform and lay all the appropriate statutory instruments. The process will include, as appropriate, designing policy and services, conducting all the necessary stakeholder consultations, drafting the necessary impact assessments and supporting any individuals who may be impacted by any such reform.
Amendments 42 and 43 propose to remove the sunset entirely and replace it with systems individually to revoke each piece of retained EU law, with specifications for unnecessary parliamentary approval or limitations that mean that legislation can be revoked only in line with a fairly cumbersome and, in my view, needlessly complex list of criteria. Again, I do not expect noble Lords to agree with me on this, but the Government’s position is that the sunset is an integral part of the Bill’s policy. It ensures that we are proactively choosing to preserve EU laws only when they are in the best interests of the United Kingdom. However, I appreciate that the public should know how much legislation is derived from the EU and the progress the Government are making to reform it. For that reason, we have published the dashboard containing this list of government retained EU law, about which there has been much discussion.
This dashboard will also document the Government’s progress on reforming retained EU law and will be updated regularly to reflect plans and actions taken. We intend to be clear and transparent throughout the process and when exercising the powers in the Bill, if they are approved by Parliament. In our view, introducing another burdensome process that does not efficiently allow us to remove inoperable and outdated legislation is not good practice.
Amendment 44, tabled by the noble Lord, Lord Carlile, would entirely undermine the ambition of the Bill by replacing the sunset with a full-time commission that would consider retained EU law over—I think it is fair to say—a much longer period. Considering that work to review and take action on retained EU law before the sunset date is already well under way across all departments and is being done by those who already have the expertise in these policy areas, I submit to the noble Lord that this alternative is entirely unnecessary. It would be little more than a talking shop at a time when the UK should be focused on this sensible reform which will help the economy to grow.
Lord Krebs (CB)
Can the Minister provide us with the documentary evidence that this Bill will support growth?
Lord Callanan (Con)
It is a long-established principle that removing and reforming unnecessary and outdated regulation will help the economy to grow. I certainly believe that; the noble Lord might disagree with me but that is my position.
Lord Krebs (CB)
My question was whether he could bring evidence before the House—not an assertion but evidence.
Lord Callanan (Con)
Ultimately, this is a political point. The most successful economies in the world are those which have relatively low levels of regulation. The noble Lord and I may have a political difference, but I am sure that we can all propose lots of different examples from think tanks and studies for our different political positions.
Baroness O’Grady of Upper Holloway (Lab)
Can the Minister explain exactly what will be retained and what will not? He said that work was under way in departments and implied that stakeholder consultation would be a critical part of that. Can he confirm whether there has been any consultation with trade unions on, for example, the working time directive? Although there has been discussion about active removal of legislation, there is real concern that vital protections will be actively allowed to fall off that cliff edge, such as the working time directive. Has there been any consultation with key stakeholders so far? Which particular pieces of legislation will be allowed to fall off as opposed to just falling off by accident? Currently, employers and unions certainly do not know.
Lord Callanan (Con)
I know that the noble Baroness feels passionately about labour regulations. We had an extensive debate about this in the first grouping, on labour law. I am happy to go through the issues with her again if she wishes but she knows that the Government’s position is that UK workers’ rights on maternity provision, holiday pay, the minimum wage and so on substantially exceed the basic standards in EU law and those in many other EU countries. Our commitment to workers’ rights is substantial, as I said to the noble Baroness when we discussed this at great length the other day. The department is currently reviewing labour law in the context of maintaining high standards on workers’ rights. When that work is complete, if any new statutory instruments are brought forward, the normal process of consultation will apply. I am sure that that will result in consultations with the trade unions as well.
Lord Hope of Craighead (CB)
I am not quite sure that the Minister has grasped the point of the noble Baroness. She is asking about legislation that will disappear. The problem with this is that it may involve legislation that requires people to spend money or conduct some other activity; they will not know that it has disappeared and will go on spending the money, and there is no way to get it back again. The noble Baroness raises quite a serious point about the lack of knowledge and the difficulty of things disappearing without their being identified before the disappearance happens.
Lord Callanan (Con)
I know that many noble Lords want to make the point that, somehow, major pieces of retained EU law will suddenly just accidentally disappear from the statute book. We have conducted a very authoritative process of assessing what is retained EU law and what is not, and we are very satisfied that departments know exactly the legislation for which they are responsible.
It is not entirely clear—this goes back to a point that the noble Baroness, Lady Ludford, made the other day, with which I agree—because successive Governments over the years have used different processes to assimilate what was an EU obligation into UK law. Even if departments know what law they are responsible for, they do not necessarily know the process by which it was introduced, or whether that law was as a result of an EU obligation or not. The Government introduced earlier amendments to remove any legal risk of an SI being quashed if it contained a provision preserved as REUL that later turned out not to be one. Our advice to departments is that where they are not sure, it should be preserved.
Lord Callanan (Con)
Can I explain this point please, and then I will take the intervention from the noble Lord?
We are satisfied that departments know the law for which they are responsible. They do not yet know whether it is a retained EU law—in other words, whether it was done in respect of an EU obligation or not. The default position that we are suggesting is that it should be retained if they are not sure, but we have tabled an SI to put that position beyond doubt. I will take one more intervention on this.
Lord Fox (LD)
I apologise for my enthusiasm causing a truncation of the Minister’s response. Does he at least understand, if he does not accept, that as long as the Government resist suggestions such as come through in these amendments, whereby a list of the laws that are covered by the Bill is laid before Parliament and officially and definitively made available—not a catalogue, as we have been promised but a definitive and complete list, of the sort of laws that not only the noble Baroness but all of us feel passionately about—we are bound to be fuelled by distrust?
Baroness Ludford (LD)
Before the Minister replies, I add that what the Minister is saying now directly contradicts the letter we had the other day from the noble Baroness, Lady Bloomfield, which we discussed. The distinction is made by the Government between an authoritative catalogue and a comprehensive list. The Government admit that the dashboard is not comprehensive, so how can each department possibly know all the EU law it is responsible for? As anyone can, I can give examples—and I am grateful to the organisation Justice, of which I should declare I am a vice-president, for giving two examples of direct effect treaty articles and directive clauses which are not on the dashboard, which cites only 28 in that category. That is Article 157 of the treaty and a clause of the habitats directive. They are not on the dashboard, so how are we meant to believe that departments know exactly what law they are dealing with?
Lord Callanan (Con)
I just explained that point in my earlier answer. The noble Baroness can look at Hansard and come back to me if she is not satisfied with that explanation.
To go back to the intervention from the noble Lord, Lord Fox, let us accept for the purposes of making his point that, as he said, huge swathes of vital REUL will somehow accidentally disappear. The Government do not accept that; we think it is extremely unlikely. However, I understand the point he makes. I refer him to the answer that my noble friend Lady Neville-Rolfe gave to a similar question yesterday. We understand the point that noble Lords are making, we will reflect on that issue and, if necessary, come back to it. Without making any promises, we will reflect on whether that is possible. Obviously, being a member of the Government, I trust them, but I accept that other noble Lords may not have the same faith in what we are doing. It is essentially intended to be a constructive process.
Moving on, Amendment 44A seeks to omit the sunset from the Bill and allow the repeal, revocation or amendment of retained EU law to be carried out only via primary legislation. Currently we are unable to keep retained direct EU legislation up to date with new advances, precisely because of that problem—because some of it is regarded as primary legislation. For those who still wish us to reflect EU law, we cannot even update it in line with any EU changes or new advances because, if we decided to do so, we would need to do it through primary legislation, and parliamentary time does not allow for that. This is creating more legal and business uncertainty, as regulations become more and more out of date and burdensome. The Bill is therefore designed to rectify this issue. This amendment, however, would instead maintain the status quo, which we do not believe is either helpful or beneficial to anyone. Again, I understand that, if people wanted to undermine the fundamental purpose of the Bill, they would support that amendment.
Lord Deben (Con)
Does my noble friend accept that that is an argument against democracy? Evidently, because it is difficult, we are going to change the law without asking Parliament. My noble friend has made an argument against democracy; that is what we are arguing about.
Lord Callanan (Con)
I am afraid that the noble Lord is talking nonsense, as he often does, on this regulation.
Lord Callanan (Con)
Let me explain the position. We are downgrading the status, if it needs to be changed through primary legislation—if it was introduced by the EU, through what I would submit was a relatively undemocratic process, in that Parliament had no say on it in the first place—so that if we wish to change the law, it will be changed through secondary legislation, which, as my noble friend very well knows, Parliament will of course get a say on. There are approximately 3,700 pieces of secondary retained EU law. Some of these are inoperable, outdated or not the best fit for our economy. Amending secondary retained EU legislation through sector-specific primary legislation, where it cannot be amended by existing delegated powers, would take decades and would not allow the UK to seize the opportunities of Brexit swiftly. Let me give the Committee an example to help noble Lords understand how long it would take to change all these pieces of law through primary legislation. The Procurement Bill was introduced in May 2022 and addresses only four pieces of retained EU law but contains more than 350 separate EU regulations.
Amendment 62A would replace the repeal of Section 4 with a committee providing advice to Parliament on actions over a five-year period. This would unnecessarily delay the actions being taken by this Bill to bring clarity to the complex legal effects that currently apply to business and citizens in this country. The amendment may be seeking to effect a broader replacement of the Bill’s sunset of retained EU law, although the amendment concerns Clause 3 only. The arguments on the sunset have already been addressed, although I highlight again that, in our view, a sunset is the quickest and most efficient way to achieve much-needed reform and planning for future regulatory changes. I therefore hope that the noble Lord, Lord Whitty, will agree not to press his amendment.
Finally, I will move on to Amendment 141A in the name of the noble Lord, Lord Lisvane. The amendment would impose a set of criteria with which Ministers must comply to exercise the powers to revoke or replace. These criteria would result in legislation that is made under the powers being subject to the super-affirmative procedure. The purpose of this Bill is to ensure that we have in place the right regulations that we think are the right fit for the whole of the United Kingdom. It is our view that it is only right that unduly burdensome and outdated regulations can be revoked or replaced with regulations that are proportionate. Requiring that the powers are subject to additional scrutiny is not appropriate, in our view, and requiring that legislation be subject to further scrutiny through the super-affirmative procedure would not be an effective use of parliamentary time and would result in delaying departmental delivery plans for REUL reform. This would place additional pressure on parliamentary time and could delay the Bill in delivering its objective of bringing about REUL reform. For that reason, the Government cannot accept this amendment.
In summary, Clause 1 is the backbone of this Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law that remains, in my view, a far too prominent feature of the UK’s statute book.
Lord Kerr of Kinlochard (CB)
I think I understood from what the Minister said a few moments ago that I will not get an answer to the question I posed on Tuesday. This time I think he said that he understood the point and would reflect on it. I do not quite know what that means but it is certainly an advance on Tuesday’s position, when the Government were just going to reflect. If we have now reached understanding the point, then we are on the right track.
The point about default is whether we are risking a situation where the courts next year, and in the following years, will have to rule in cases on whether a newly discovered piece of law was retained EU law and therefore died at the end of this year or was not retained EU law and is therefore still in effect. Is it sensible that the default is that the Act is dead? Would not a more sensible default position be that the currently undiscovered but in due course discovered Act remains in force until it is repealed, amended or prolonged? I just do not understand why that uncertainty must be introduced.
Lord Callanan (Con)
For the purposes of clarification, I was merely repeating a similar point to the one made by my noble friend Lady Neville-Rolfe. We will reflect on whether it is possible to publish a comprehensive list of laws that might sunset.
I return to the point I made earlier: we are satisfied that the department has identified all the laws for which it is responsible. Lawyers are currently going through it all and our advice to them is that if they are not sure whether or not a law is retained EU law, they should default to preserving it if they think it is important. I hope that answers the noble Lord’s point.
As I was saying, Clause 1 is the backbone of the Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law. The amendments tabled by noble Lords would add unnecessary time and complex burdens to this process, which, of course, may be the purpose of many of them.
Baroness Chapman of Darlington (Lab)
I do not think the Minister referred to my Amendment 43. Can he do that before he sits down?
Lord Callanan (Con)
Can somebody remind me what Amendment 43 is, please? I thought it was in my notes.
Baroness Chapman of Darlington (Lab)
Amendment 43 puts a safety net around measures that may be lost because they were not identified by the Government. The situation that the noble Lord, Lord Kerr, identified sounds horrific. You would be in a situation where the Government have, through this Bill, decided that something is revoked but nobody has told anybody that it is revoked. The Government have not even told themselves that it is revoked, so is it revoked? My amendment would help deal with that. The Minister might be attracted to at least considering that.
Lord Callanan (Con)
I think I referred to that in an earlier part of my speech. I addressed Amendments 42 and 43, but it all comes back to this central point of the so-called accidental sunsetting that noble Lords have raised. The noble Baroness’s amendments propose to remove the sunset entirely and replace it with systems to individually revoke each piece of EU law. I did refer to that earlier, but I will look back at what I said and if I did not refer to that directly, I will write to her. The Government think that the sunset is appropriate. I entirely accept that many Members of this House do not, but the elected House of Commons certainly did, by large majorities.
I think that I have covered most of the points now. Noble Lords might not like the answers very much but that is the Government’s position.
Baroness Butler-Sloss (CB)
One issue that I have not understood the Minister to have dealt with is the issue raised by the noble Lord, Lord Deben, on democracy.
Lord Callanan (Con)
I think the noble Lord, Lord Deben, and I had a political difference on that point. He seems to think that secondary legislation is somehow undemocratic. If those making this complaint were to look back through Hansard to see whether they made the same complaint about the way that the law was introduced into UK law in the first place, I would have a little more sympathy with their argument. This is an essentially political disagreement about which is the most appropriate way to proceed. The Government have been elected with a big majority. One of the backbones of our programme was to get Brexit done.
Lord Callanan (Con)
I think I have already taken two interventions from the noble Lord, Lord Fox, but I will take one more.
Lord Fox (LD)
I thank the Minister; I appreciate it. I thought he dealt with the democracy issue, to some extent, and cited that it was inconvenient to have to have primary law. The Minister used the Procurement Bill as his paradigm. Sitting next to him is the Lord Privy Seal, who, in a previous guise, brought forward the Procurement Bill—along with the 350-plus government amendments that accompanied it, because it was so badly drafted. If that Bill is a paradigm for anything, it is a paradigm for this Bill and the poor drafting of legislation.
Lord Callanan (Con)
I do not think I ever used the word “inconvenient”, but reforming all this by primary legislation, whatever view you take of it, would take many years, if not decades.
Lord Callanan (Con)
I have given the Government’s response to these amendments and, if noble Lords will forgive me, I will not take any more interventions. The points being made do not address individual amendments; they are general debating points, many of which were dealt with at Second Reading.
Lord Callanan (Con)
I will take the intervention from the noble Lord, Lord Beith.
The Lord Privy Seal (Lord True) (Con)
My Lords, if it would help the Committee, I understand that this is an extremely controversial Bill for many Members of your Lordships’ House. A good deal of time is being taken over it, which is your Lordships’ pleasure. On the question of interruptions, this is Committee and Members are free to speak more than once, but we make good progress if we allow all noble Lords to develop and complete an argument.
While the Companion says:
“A member of the House who is speaking may be interrupted with a brief question for clarification”—
not a speech—it also says:
“Giving way accords with the traditions and customary courtesy of the House.”
I think that is absolutely correct. The Companion continues:
“It is, however, recognised that a member may justifiably refuse to give way”.
It gives various circumstances, including
“in the middle of an argument, or to repeated interruption”.
The Committee must allow the Minister latitude to complete his argument. If a noble Lord has a new concrete point to put forward to the Committee afterwards, that is reasonable. I also remind the Committee that the Companion says:
“Lengthy or frequent interventions should not be made, even with the consent of the member speaking.”
Lord Beith (LD)
My Lords, I do not make lengthy or frequent interventions, but I welcome the Leader of the House giving your Lordships some guidance on this subject, which is helpful from time to time.
I raised a point that the Minister has not covered on the position of Defra, which clearly does not take the view that its corpus of material must be changed urgently. The noble Lord, Lord Benyon, said:
“Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it.”—[Official Report, 28/2/23; col. 205.]
Will the Minister comment on that?
Lord Callanan (Con)
I listened to my noble friend Lord Benyon’s earlier statements and they are entirely in accordance with the provisions of the Bill. It is for Defra’s Secretary of State and Ministers to take a position on what they want to do with Defra’s large body of retained EU law. They are examining it closely. I think my noble friend said that the Defra Secretary of State said her position is that most of it is appropriate and she wants to retain it. If the Bill is passed, she can use the powers granted to her and other Ministers by the Bill to achieve that aim. I do not see any inconsistency at all.
Lord Hacking (Lab)
My Lords, I have one question before the Minister sits down. He said twice that Clause 1 is the backbone of the Bill. Can we take it that, if Clause 1 is removed, the Minister will withdraw the Bill altogether?
Lord Callanan (Con)
Let us wait to see what happens, but the Government are committed to the Bill. As I said, it had a big majority in the elected House, so I hope noble Lords think carefully before they remove key elements of it. It is up to the House what it does with the amendments tabled.
Lord Lucas (Con)
My Lords, I am sad that the Government have chosen not to address the points made by this Committee concerning democracy and the proper role of this House in reviewing legislation, and are stepping away from the conversation that has been offered by the Opposition. I see this as a Bill which is headed for the Parliament Act—I cannot see any other option being offered by the Government. I hope that they will step away from that; I think that we can achieve a better result if all sides looked at how the role of this House can be properly fulfilled with this sort of legislation. I think that is really important for this House and for democracy, and therefore I personally very much hope that the noble and learned Lord, Lord Judge, will persist with his amendment—not today, obviously.
Lord Callanan (Con)
With that one final intervention, let me say to my noble friend that he knows I greatly respect his view. I think the Government’s record, certainly on all legislation that I have been responsible for taking through this House, shows that the Government always listen carefully. The Lord Privy Seal will agree that I am always very frank with the advice that I give to colleagues within Government about what is possible within the Government’s legislative sphere. We always listen very carefully to what the House has to say. The Government want to get their business through, obviously. We will reflect, as we have done, on amendments that are passed and proposed in this House, and will of course seek an alternative opinion from the House of Commons if amendments are passed. But I think that our record shows that, on some very controversial pieces of legislation, the Government listen to what the House has to say.
Lord Judge (CB)
I wonder if anybody else wants to make an intervention?
Well, tempers have got slightly frayed, have they not? But can I just feel inspired by the thought that it is either the noble Lord, Lord Hamilton of Epsom, or the noble and learned Lord, Lord Judge, who has had a conversion on the road to Damascus? I would like to have a cup of tea to discuss which one of us it was, and also, more importantly, to examine the suggestion that he made at Second Reading about how we should examine this Bill which, if I may say so, I regard as a very serious suggestion which may help to implement the proposals in the amendments in this group.
I am disappointed that the Minister said, and obviously believes, that the purpose of this group of amendments is to undermine the aims of the Bill. That is not the aim of those of us who signed up to Amendment 32, nor I think is it the aim of anybody who has put his or her name down to any amendments in this group. We want the way in which we create laws to be better organised and given to Parliament for control. The Minister’s argument is that parliamentary control arrives through all the various methods that we have for looking at statutory instruments and controlling them. I am sorry to go back to something that noble Lords have all heard me go on about, but the last time that the Commons rejected a statutory instrument was in 1979. It may be a consequence of having gone into the Common Market in the first place, because the 1972 provision was that we had to accept whatever came from the Common Market and introduce it into our own legal system. We did so, as the noble Lord, Lord Deben, pointed out, by putting it into a statutory instrument.
Maybe it is a human fact that, if you have a whole raft of statutory instruments which you cannot amend, because the law does not allow you to amend them, you get rather bored at the idea of trying to amend laws created by your own Parliament. But whatever the reason, the idea that we are suddenly going to wake up, after 50 years of somnolence, to the idea that Parliament is suddenly going to start having effective control over statutory instruments, is—I mean this with great respect, but I am still going to say it—a bit of a fairy tale. It is a fairy tale because it is like the story of Sleeping Beauty. There she is, fast asleep, year after year, and suddenly along comes a handsome prince who brings her back to life with a kiss. I do not see any ministerial princes in relation to this issue whose kisses would bring anyone to life, and I respectfully suggest that the proposal in the Bill would involve giving Sleeping Beauty another sleeping pill, to keep her asleep for another 50 years.
Lord Butler of Brockwell (CB)
Before my noble friend sits down, does he agree that those parts of the law that will lapse under the sunset clause will result in the law being changed without even a statutory instrument?
Lord Judge (CB)
Undoubtedly that is right, and that is why Amendment 32 specifically deals with that issue in paragraph (c). For the time being, I beg leave to withdraw the amendment.
Lord Callanan
Member's explanatory statement
See the statement relating to the Minister’s amendment at Clause 1, page 1, line 7.
Lord Callanan
“Exceptions to sunset under section 1(1) Section 1(1) does not apply (so far as it would otherwise apply) to—(a) relevant financial services law; (b) any specified instrument or provision of an instrument or anything having effect under the specified instrument or provision;(c) any specified description of minor instruments;(d) transitional, transitory or saving provision.(2) In this section—“minor instrument” means an instrument other than any Order in Council, order, rules, regulations, scheme, warrant or byelaw;“relevant financial services law” means—(a) anything referred to in Schedule 1 to the Financial Services and Markets Act 2022, ignoring any regulations made under section 1(5) of that Act;(b) any rules made by the Financial Conduct Authority, the Prudential Regulation Authority or the Bank of England;(c) any generally applicable requirements (within the meaning of Part 5 of the Financial Services (Banking Reform) Act 2013), or directions of general application, imposed by the Payment Systems Regulator;“specified” means specified in regulations made by a relevant national authority;“transitional, transitory or saving provision” includes any EU-derived subordinate legislation (within the meaning of section 1) or retained direct EU legislation so far as it continues to have effect or a particular effect, despite a revocation or amendment, by virtue of transitional, transitory or saving provision other than section 1B or 2 of the European Union (Withdrawal) Act 2018.(3) Any reference in subsection (1) or in regulations under this section to a thing is, unless otherwise stated, to the thing as it subsists immediately before the time when the revocation under section 1(1) would otherwise apply in relation to it.”Member's explanatory statement
This new clause contains new exceptions to the Clause 1 sunset (subsection (1)(c) and (d)). It also contains existing exceptions to that sunset, which are currently in subsection (2) of Clause 1 and subsection (5) of Clause 22. The exception which is currently in subsection (2) of Clause 1 is extended to include anything having effect under a specified instrument or provision.
Member's explanatory statement
This amendment ensures that any relevant national authority (as defined in clause 21(1)) can extend the sunset referred to in Clause 1.
Baroness McIntosh of Pickering (Con)
My Lords, in moving Amendment 51, I shall speak also to Amendments 53 and 56. I look forward to hearing from others who are speaking to their amendments in this group: the noble Baroness, Lady Humphreys, my noble friend Lady Lawlor, the noble Lords, Lord Whitty and Lord Fox, and the noble and learned Lord, Lord Hope, with whose amendments in this group I have much sympathy.
Amendment 51 is a simple amendment which would leave out “Minister of the Crown” and insert “a relevant national authority”. The point of the amendment is to ensure that any relevant national authority, as defined in Clause 21(1), can extend the sunset referred to in Clause 1.
The reason I move this amendment is that the Bill currently proposes, in Clause 2, that only a Minister of the Crown can make regulations to extend the sunset period. In my view it is inappropriate that Ministers in the devolved Administrations cannot carry out the same function in respect of the retained European Union law that applies in their respective devolved competencies. Limiting this power to a Minister of the Crown appears to be at odds with paragraph 60 of the Explanatory Notes to the Bill:
“The Government also remains committed to respecting the devolution settlements and the Sewel Convention, and has ensured that the Bill will not alter the devolution settlements and will not intrinsically create greater intra-UK divergence.”
The point of this amendment is to assist the Government in this regard. It provides devolved Ministers with the power to extend the sunset deadline. Amendment 53 is merely consequential on this amendment.
Amendment 56 intends to delete Clause 2(4) at line 18 of page 2. Clause 2(1) provides that:
“A Minister of the Crown may by regulations provide that … the reference in section 1(1) to the end of 2023”
should specify a later time. Clause 2(4) provides that the later time cannot be
“later than the end of 23 June 2026”,
which happens to be the 10th anniversary of the date on which the referendum on UK membership of the European Union was held.
In my view and that of the Law Society of Scotland, which helped me draft this amendment, government policy in relation to the applicability of retained EU law should not be made on the basis of symbolism. There is no need to set such a deadline, and I seek to understand why my noble friend the Minister is putting such an arbitrary deadline in the Bill. Were any deadline to be necessary, this should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and consultation with those who will be affected by the variational revocation proposed by the regulations in question. In any event, in the opinion of the Law Society of Scotland, with which I agree, the sunset provision should operate from 31 December 2028 at the earliest. Clearly, the possibility of any extension of a sunset provision should run for a period after that date.
In an earlier debate, the noble Baroness, Lady Jones of Moulsecoomb, and others referred to the political dimensions of parts of the Bill. I ask my noble friend to confirm that it is not purely for political symbolism that the Government have fixed on this deadline.
I also request that the point I raised in the debate on the first group of amendments be now positively responded to. In summing up this group of amendments, can my noble friend tell me how the Government intend to respond to withdrawal of consent by the Scottish Parliament? How do the Government intend to respond to the amendments the Scottish Parliament has published and tabled in this regard? With those few remarks, and looking forward to the other contributions, I beg to move.
Baroness Humphreys (LD)
My Lords, I shall speak to Amendment 54 in my name, Amendments 51 and 53 in the name of the noble Baroness, Lady McIntosh of Pickering, and Amendment 58 in the name of the noble and learned Lord, Lord Hope of Craighead, all of which I support. I thank the noble Baroness for explaining her amendment so clearly.
Amendment 51 would ensure that any national authority could extend the sunset and, usefully, points to the definition of “national authority” in Clause 21. Amendment 53 would extend the sunset until the end of 2028. The noble and learned Lord’s amendment would very helpfully give Scottish and Welsh Ministers a power to extend the sunset date for devolved retained EU law, equivalent to that conferred on a Minister of the Crown by Clause 2.
My Amendment 54 continues on from those three amendments by clarifying what provisions would be devolved and would therefore be under the competence of Scottish Ministers, Welsh Ministers or the Ministers of the Northern Ireland Executive for decision, rather than a Secretary of State. I am grateful to both noble Lords for tabling their amendments, which highlight and address the anomaly that has stood out in this Bill: they give the Minister the opportunity to explain fully the reasoning behind the Government’s decision to allow an extension to the sunset beyond the end of this year for the Secretary of State while withholding the availability of such an extension for Ministers in the devolved Administrations.
I should add that the Minister has already dealt with that issue in her response to this morning’s debate but I am afraid that I missed the detail. I shall read Hansard and reserve the right to come back to this issue at a later stage if I need to, but perhaps if she or her noble friend have anything to add then they will do so. I am also grateful to the noble and learned Lord for his Amendment 58, which puts the powers of the Welsh Ministers over devolved retained EU law on a par with that of the Secretary of State.
Why do the devolved Administrations need these amendments? The arbitrary cut-off date of the end of 2023 has no logic other than a political one. The cynic in me believes that the UK Government want to clear the decks before the next election, probably next year, so that they can claim that EU law no longer exists in the UK, no matter the damage which that causes and the complexity of the task.
In an earlier debate I referred to the Welsh Government’s response to the Bill, and I shall use those points again in relation to the debate on these amendments. The Welsh Government feel that the Bill is unnecessary and that the EU laws have worked well for them. Their preference would be to continue with the present laws and amend them gradually over time as the need arises. An extension to the sunset until 2028 would allow them to deal with the process in a more timely and considered manner. The workload for Members of the devolved Administrations and their comparatively small teams of civil servants has already been referred to. They have dealt with a massive amount of UK legislation over the last few years. They have struggled with complex Bills that have provided increasing challenges to their devolved settlements and have led to increasing calls for the codification of the Sewel convention.
My Amendment 54 would clarify what is devolved and, if placed in the Bill, would bring certainty for Welsh Ministers to act on devolved matters without interference. This Bill has added further pressure on the Welsh Government, as Members have already said, and one feels the sense of their being overwhelmed. There are difficult decisions to be made, as they consider whether more civil servants will have to be employed or whether the redirecting of officers to work on the Bill will be sufficient. The latter, of course, has an impact on the legislative programme that the Senedd would wish to implement and the former has an impact on its budget.
Baroness Lawlor (Con)
My Lords, I am pleased to follow my noble friend Lady McIntosh of Pickering and the noble Baroness, Lady Humphreys, to whom I have listened with great interest. My Amendment 56ZA is to bring forward the extension date in Clause 2(4) to the end of 2024. There are political and practical reasons for doing so.
Politically, a general election must be held by 12 December 2024. It is important that the Government elected in 2019 not only honour their commitments to deal with inherited EU law but bring forward the extension date to coincide with, or be within striking distance of, the end of this Parliament. This is not a matter of ideology, as has been suggested by some noble Lords in respect of the sunsetting of legislation, but of working within the normal political timetable: a Government are elected, they set about implementing their programme and, when the time comes, they go to the country for the people to judge. That is how this democracy functions.
When people vote, they take a punt on the party they vote for and they vote for it to govern, for general or specific reasons. Political theorists may, and do, disagree about the extent to which voters’ knowledge of detailed programmes or their expectations are at play, but there is little argument among them that people vote for a party to become a Government, and to enact the programme or the cause with which they are identified. The current Government have, sadly, lost much time in restoring UK law; now they are finally moving to do so.
Far from being disparaged for following what is called ideology, the Government should be encouraged to honour the promise on which they were elected. They are doing so in this Bill, by providing for the sunset of EU-derived subordinate legislation and some retained direct EU law, and doing so within the current Parliament, despite the pandemic. However, they should also ensure that, even in those cases where an extension is envisaged, that extension falls within striking distance of the parliamentary timetable.
Practically, it is sensible to have the extension date as close as possible to the sunset date. Indeed, given the rapid and efficient work of civil servants, who have continued to prepare for and publish on the dashboard identified pieces of legislation, we now have sight of thousands of rules which formed part of the corpus of EU law—the acquis. Our officials are familiar with and understand these matters. I understand that some departments have been working on it for almost five years. They are well equipped to move to the next stage. It is better this happens by, or near, the end of this Parliament for the benefit of good government, for the certainty it brings to all concerned, and for the effective and efficient working of government, and that it happens without the interruption of a Dissolution, or the distraction for officials of having to prepare the program for an incoming Government. I have confidence that the UK will do a better job in protecting the many legitimate concerns which have been raised by your Lordships.
Moving swiftly will give certainty to all involved, irrespective of the vagaries of political life. In addition, there is the constitutional question, to which many noble Lords have continued to refer—probably most of the noble Lords who have spoken in Committee. This has also been raised in the two recent reports from the Secondary Legislation Scrutiny Committee and the Constitution Committee, both of which illuminate a range of complex matters and considerations. I am most grateful to both committees for doing so.
None the less, I disagree with the implied role that Parliament—the legislature—should play in the matters addressed in this Bill. I urge the Government to capitalise on the work of departments for the dashboard and submit the list to Parliament, indicating which will be adopted into or adapted for UK law, and which will go. That would bring reassurance and make for greater transparency. It may also help noble Lords to engage in the sifting process, on which they will be paramount. However, there is a danger of seeing legislative scrutiny as an end in itself rather than as a means to holding the Executive to account. That has not changed. If the Government fail to command a majority in Parliament, their days are numbered.
For over a century, there has been debate about the relative significance of the relationship between the people of this country and their Government, on the one hand, and that with their Parliaments, on the other. Dicey alluded to this in 1910, as did Lord Hailsham and Tony Benn in 1978, and that debate has continued, having been given a tremendous boost by the referendum. My view is that, on the matter of retained EU law covered by this Bill, the Executive have direct authority to act. They were given it in December 2019 by the electorate, who made clear that they preferred to deal with the Executive, the Government, who appealed to them directly over the legislature, which had appeared to ignore the decision of the referendum more than three years earlier or to obstruct its execution.
On all three grounds therefore—political, practical and constitutional—not only do I support the Bill’s approach but, for the reasons given, I ask my noble friend the Minister to accept that there are also grounds for moving more rapidly to advance the extension date in Clause 2 to within striking distance of the lifetime of this Parliament.
Lord Hamilton of Epsom (Con)
My Lords, I support my noble friend in her amendment. I take the view, as the Committee well knows, that if you give the bureaucracy longer to implement all of this, it will use the time. Therefore, the shorter the time we can make it, the better.
I ask my noble friend the Minister whether he considers the fact that the sunset clause is operating at the end of this year as almost the sole reason we now know roughly how many bit of retained EU legislation there are. If the sunset clause had not been in there, I do not believe that the bureaucracy of this country—pace the noble Lord, Lord Wilson—would have come up with the answer at all.
Lord Whitty (Lab)
My Lords, I have Amendment 56A in this group. Noble Lords have probably gathered by now that I profoundly hope that the Bill never reaches the statute book. However, if it does, we need to know what the heck we are talking about. My Amendment 56A requires the Government, within three months of the passage of the Bill into law, to ensure that all of us here and those whom they are going to consult out there—the businesses, consumers, workers and everyone else whom the Bill may affect—know what we are talking about; namely, by providing a definitive dashboard at that point, preferably with an indication of how the Government intend to deal with different bits of the dashboard. But, in any case, it requires that they provide a “definitive list”. If we do not have that, no one will know how we will behave, whatever the deadline.
I support the deadline proposed by the noble Baroness, Lady McIntosh, which is reasonable, given that we are talking about 4,000 pieces of legislation, at the last count. I do not agree with the deadline in the Bill or with extending it by only one year, as the noble Baroness, Lady Lawlor, suggested. The key point of my amendment is that the world needs to know what the Bill means, what it is about and, preferably, how the Government will deal with it. I do not think that the word “dashboard” has appeared in many pieces of legislation, but we need something based on the dashboard as it is currently. Noble Lords who have tried to use it will have found it rather difficult and certainly not yet definitive. So we are giving the civil servants—I can go along with the noble Lord, Lord Hamilton, on this to some extent—three months from the passage of the Bill to produce a definitive list of what we are talking about, and we need that.
Lord Thomas of Cwmgiedd (CB)
My Lords, I rise because neither the noble and learned Lord, Lord Hope, nor the noble Baroness, Lady Finlay, can be in their place to speak to Amendment 58. In one sense, it is neutral and designed to achieve what I hope would not be the subject of controversy: equality of treatment between the various Governments of the United Kingdom.
I have asked myself the question: why can Government Ministers have the power to extend the date—it does not matter what the date is—but that is denied to the Welsh and the Scots? There is one possible answer, and I have been so encouraged by what the Minister said today about his certainty in the infallibility of civil servants and lawyers and that nothing has been lost. But he obviously has—or might appear to have—even greater confidence in the Welsh Ministers and civil servants, because he believes that they can find everything out this year, and it is only the rather slower civil servants and lawyers in Whitehall who need longer. For reasons I tried to explain this morning, I do not believe that that can be the answer, but I may be wrong.
It is rather unpleasant to have to say this, but the second possible reason is that the Ministers in Wales and Scotland need to be incentivised by putting a gun to their head. You normally do not do that to people you want to work with to achieve a stronger union. Worse, is it that the Government do not trust them? Is that the way to build a union? Alternatively, is it that they want the Welsh and Scottish Ministers who run into difficulties because they have not been provided with the resources—I pointed out this morning that it is pretty clear that none of what the Welsh Ministers will have to deal with is on the dashboard—to come cap in hand to Whitehall to ask for dispensation? They might have overlooked the fact that where that leads to is disastrous for a union in terms of judicial review. You do not build strong unions by litigating, as one can see in other countries.
I am therefore at a complete loss to understand why the Government will not accord to the Scottish and Welsh Ministers the power they obviously think is necessary for themselves to have. I would hope that the amendment in the name of the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay of Llandaff, would be uncontroversial, because it would be the clearest sign of the new attitude being taken by the present Government under the new Prime Minister, who has spoken warmly of the union. What better statement of the intent to treat them as equals and to treat them properly in this respect could there be than the Minister saying that this is an amendment that he readily accepts?
Baroness Ludford (LD)
My Lords, I support the amendment led by and spoken to by my noble friend Lady Humphreys. I also support the amendment to which the noble and learned Lord, Lord Thomas of Cwmgiedd, just spoke. As I said on an earlier group, these Benches fully support respect for a union which is built on trust, which is what we feel is lacking here. I also want to speak to Amendment 136, in the name of my noble friend Lord Fox, who had to be absent for the moment.
Baroness Ludford (LD)
Oh, has he come back? I am not doing too well. I am getting tired; I expect we all are.
Amendment 136 would give Parliament some power over the use of the delay to sunset powers in Clause 2(1), where powers are conferred to delay the sunsetting under Clause 1. Clause 2(1) allows Ministers by regulations to postpone the date when any retained EU law, unless expressly saved, is automatically revoked. However, as our Delegated Powers Committee has said:
“Use of this power is apt to be highly significant but is subject only to the negative procedure.”
As is well known, Parliament hardly ever overturns government proposals in a negative procedure—I believe that the last time it happened in the House of Commons was in 1979; I am subject to correction there, but it is not exactly every day. The power for Ministers in Clause 2(1) is not constrained by any requirement for consultation, any criteria to be met or any preconditions to be satisfied. We do not even know from the Bill, because no indication is given, whether the postponement would be exceptional or the general rule—we have no idea what the Government’s intentions are for delaying sunsetting. The DPRRC reminds us that the delegated powers memorandum states that
“the power is not intended for wide usage”,
but how do we know? How can we know? The memorandum also says
“Ministers have confirmed that they do not intend on allowing the usage of this power without collective agreement”.
We might think, “Oh, whose agreement does that mean? Does it mean consultation with businesses, unions, et cetera? Does it mean some kind of consensus?” No, says the DPRCC,
“this is merely a statement of the doctrine of collective ministerial responsibility rather than an effective constraint on the power contained in clause 2(1)”.
We might get excited by that phrase, but “collective agreement” just means collective ministerial responsibility.
The power in Clause 2(1), combined with the scale of the task of determining which pieces of retained EU law are to be retained, revoked or amended, gives rise, in the words of the DPRRC, to
“significant uncertainty as to what the sunset date will be”.
It concludes:
“Given the importance of the power, we consider that its use merits affirmative procedure scrutiny.”
In the light of our debates today, the way that Parliament is just being cut out of this whole exercise is totally at odds with the claims made during the referendum that it would be put back in control and in the driving seat. Two years later, the EU withdrawal Act was accompanied by lots of promises about how Parliament would be the one to decide when to revoke, retain or amend retained EU law.
The point of Amendment 136 is its continuity with, in particular, the amendments we debated in the last group and on Tuesday, which set out that Parliament cannot be ignored in this process—which it will be, in effect, if there is only a negative procedure. I hope that the Government will agree that Parliament should be in the driving seat on the question of whether to delay the sunset.
Lord Kerr of Kinlochard (CB)
My Lords, I support the amendment from the noble Baroness, Lady McIntosh, but I am afraid that I do not agree with the amendment in the name of the noble Baroness, Lady Lawlor. I also support the amendment tabled by the noble Lord, Lord Whitty, and that in the names of the noble Lord, Lord Fox, and the noble Baronesses, Lady Ludford and Lady Chapman.
I will make two points. First, I need to resume my adulatory exchanges with the noble Lord, Lord Hamilton. He is quite right that the Government are very bad at sifting the law and getting rid of old bits that are not needed any more. However, he is quite wrong to blame the Civil Service for that. The reason the Government spend very little time on thinning the statute book is that Ministers have innumerable ideas for increasing its size, and they do not wish civil servants to do anything other than carry out their wishes. It is rather like the Law Commission; it writes wonderful reports recommending simplification, but nothing happens with them. It is clear to civil servants which bits of the law, for which they are responsible, should be taken away, but they have to spend their time writing new laws, many of which are completely unnecessary and have the purpose of sending a message or setting a legally binding target in the distant future—as if a Government could bind their successor.
Secondly, there is something in the argument by the noble Lord, Lord Hamilton, that setting an early sunset date concentrates the mind. This is the Dr Johnson argument that
“when a man knows he is to be hanged in a fortnight, it concentrates his mind”.
The problem is that we are dealing with the real world and real laws, and, by moving so fast, we will make terrible mistakes.
I believe that it is right to go for something such as the amendment tabled by the noble Baroness, Lady McIntosh, but we need to bear in mind that, while it is necessary, it is not sufficient—it does not put the Bill right. The discussion we had on the last group of amendments, for example, needs to be reflected in major changes to the Bill. That requirement would be in no way reduced by the Government accepting her amendment and extending the sunset clause. This is a necessary change, but not a sufficient one.
Lord Collins of Highbury (Lab)
My Lords, in this Committee, as the Minister has constantly been reacting to, we seem to keep going over the same old ground. The good thing about Committee is that it is not about saying whether you support something or not; the most important part of this stage of our proceedings is to probe and better understand what the policy objectives are behind any particular legislative change. I want to focus on that.
I hear the argument from the noble Lord, Lord Hamilton, about the sunset clause—he has made it at every stage in Committee—being an incentive. However, I agree with my noble friend that, at the end of the day, as I think the noble Lord appreciates, we do not have a complete list. We do not know what we are talking about. Until we do, we should not be making changes to the law. That is the key to this: how does this country make its laws and how do we change our laws? It is Parliament that does that, not the Executive. The Executive might control the way we consider the proposals for changing it, but it is fundamentally a matter for Parliament.
I will pick up the point made by the noble and learned Lord, Lord Thomas. He is absolutely right: it is about how the policy objective will impact on people’s perception of how we build and maintain our union of the United Kingdom. That is really important. There has been a consistency among Governments in the settlement that we have had. The noble Baroness, Lady Ludford, referred to the EU withdrawal Act. The question is, post referendum, how we deal with laws that we have had for the last 50 years. I think it is incumbent on the Government to be very clear about what that Act said. It did not just talk about Parliament. What it said is quoted in the Delegated Powers and Regulatory Reform Committee’s report:
“Parliament (and, within devolved competence, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once the UK has left the EU.”
What is wrong with that principle? What is wrong with that legislation, which this Parliament agreed? Why are we considering something different? Why are we considering a truncated skeleton Bill that gives the power to the Secretary of State?
That is why the amendments of the noble Baroness, Lady McIntosh of Pickering, are so important. She is absolutely right to raise this—not as a question of whether we support the principle, but we should ask why there has been a policy change. Why do the Government no longer think that the principles established in the 2018 Act should apply? We need to know, because, as I think the noble and learned Lord, Lord Thomas, said, it brings into question whether it is about trust, competency or resources. All these things need to be answered, and we have not had any answers so far. The Minister should give us some reassurance about that and not simply say that it is an exercise of trying to improve efficiency, because, for many people, the laws of the land protect them at work, at home and on the road. As my noble friend Lady O’Grady said, there are key provisions that we need to understand will continue to protect the people of our union.
Lord Callanan (Con)
If the noble Lord, Lord Collins, will forgive me, I do not propose to go back over previous discussions about the dashboard, sunsetting of laws, et cetera. He knows our position, and I am well aware of the Opposition’s, so if he will forgive me I will concentrate on the amendments in this group, which are all related to Clause 2, on the extension mechanism.
Baroness Humphreys (LD)
I appreciate that the noble Lord has been talking about the extension to 2026, but he has not explained why that is not available to the Welsh Government or the other devolved nations. Can he clarify that for me?
Lord Callanan (Con)
If the noble Baroness has some patience, I will come on to those amendments shortly.
Turning to Amendments 51, 54, 57 and 58, the power exercisable under Clause 2 will allow Ministers of the Crown to extend the sunset for specified legislation, both in reserved and devolved areas, up to 23 June 2026. This includes areas of devolved competence, and we could act on behalf of devolved Ministers if they wish to request that. Clause 2 allows for the extension of a “description of legislation”, and conferring the power on devolved Governments would, in our view, introduce additional legal complexity. Descriptions of retained EU law may cover a mix of both reserved and devolved policy areas, and this could result in retained EU law in similar areas expiring at different times in different jurisdictions in the UK, across both reserved and devolved areas. We feel that this could create additional legal uncertainty.
Devolved Ministers will of course still be able to legislate to preserve, restate or reform their retained EU law using all the other powers in the Bill. As I said, the UK Government are of course committed to working closely with the devolved Governments on all aspects of the retained EU law revoke and reform programme, including the exercising of this extension power where appropriate.
Regarding the question on the devolved Administrations, which a number of Members raised in considering earlier clauses, I met with the devolved Ministers on behalf of my previous BEIS department a few weeks ago and we discussed a number of legislative areas of concern to them, including—the noble Baroness, Lady O’Grady, will be pleased to know—the MSL Bill, and they did not raise the REUL Bill. I am not saying that means they do not have any concerns—clearly, both the Senedd and the Scottish Parliament are concerned —but when they had the opportunity to raise it with me in a formal meeting designed to discuss legislation, they declined to do so.
Amendment 53 tabled by my noble friend would, I assume, be intended to operate in tandem with amendments to Clause 1 that propose a change in the sunset date. This will be debated in other amendment groupings and, as I have already said, proposing to change the sunset date through the extension power alone would not be appropriate.
Amendment 56A in the name of the noble Lord, Lord Whitty, would require the Government to publish a dashboard of all EU law which remains in force and which has not been superseded by domestic legislation within three months of the Bill being passed. I am sure the noble Lord knows what I am going to say to this: I draw his attention to the public dashboard of retained EU law that the Government published in June last year, and about which we have already had extensive discussions.
Without wishing to annoy the noble Baroness, Lady Ludford, again, that dashboard is an authoritative assessment of the various types—I am worried she will reach for her thesaurus yet again and start quoting definitions at me—of retained EU law across all government departments. It is split over 400 policy areas and 21 sectors of the economy and is categorised accordingly. The dashboard was updated in January, as we have said, and we are committed to updating it regularly through 2023; the next update is planned for spring of this year. Departments are continuing their work on retained EU law, aided—again, I risk provoking the noble Baroness, Lady Chapman—by the National Archives, and we anticipate an increase in the volume of retained EU law in the next publication.
Lord Thomas of Cwmgiedd (CB)
The Minister is very keen on timetables and dates. As we know, spring is movable. Can we have a firm date? If the Minister wants to hold people to timetables, he ought to have a timetable to produce a firm list. Could he please go back and ask the lawyers, in whom he has such great trust, when they can produce a list and a comprehensive explanation? I am sorry to press the Minister on this but he cannot expect everyone else to have a timetable and not adopt one himself.
Lord Callanan (Con)
I am not sure I want to go on the public record saying that I have great faith in lawyers, given some of the debates we have had in this House. I explained the position on the dashboard in the previous grouping. I know that many Members want to categorise this as a device by which huge swathes of essential legislation will be allowed to sunset. I have explained on three different groupings now—I will not go back there again—that we will update the dashboard as often as we can. Where possible, this will also reflect the ownership of retained EU law across the new departments created by the Prime Minister in the machinery of government changes earlier last month.
Finally, on Amendment 136, this power is subject to the negative procedure, which is the appropriate level of parliamentary scrutiny for a power that only maintains the status quo and cannot enact any policy changes. The power is intended as a failsafe in case the reform of retained EU law is delayed by the parliamentary process or extenuating circumstances. I therefore do not believe that the listed amendments are necessary or appropriate for the Bill and hope that the noble Baroness will be able to withdraw her amendment.
Lord Collins of Highbury (Lab)
I seek clarification about the amendments of the noble Baroness, Lady McIntosh, and the noble and learned Lord, Lord Hope, on the power that Secretaries of State have on extension, and so on. The Minister said that it would be if the devolved Administrations request it. Does that mean that the request will be granted? This affects the settlement we have on devolution and our union. As he says, for everything for which they have responsibility they will change, amend or keep it, but if they want an extension on the sunset, they have to request it. Does that mean that, if they request it, it could be refused?
Lord Callanan (Con)
I thought I had explained this in my earlier statements. I am saying that the power to extend rests with UK Ministers. Many of these areas of law cut across both UK-wide and devolved competence. We have said, as the noble Lord, Lord Collins, acknowledged, that there is a power for them to just restate that law, to continue it, if they wish to do so. We would want any extension to be discussed between the Administrations. As I said, there are regular meetings between both officials and Ministers to discuss these areas, so it is certainly something we would consider. I am not giving the noble Lord an absolute assurance; I am saying it is something we would consider.
Lord Collins of Highbury
I think it is a fundamental question. If they have the power to maintain and amend, specifically something that is totally the competency of either the Scottish Parliament or the Welsh Senedd, and if they simply want the same power as the Secretary of State on a matter that is within their competency—I am not talking about those grey areas where you might say, “You’d best request”—is the Minister satisfied in saying that they must request it? That means there is the power to refuse, and I think that brings into question trust and confidence in our devolved institutions.
Lord Callanan (Con)
I do not agree with the noble Lord’s characterisation. If they wish, it is perfectly possible for them, before the sunset date, to renew that legislation. The extension mechanism is of course something that we will discuss with them as appropriate.
Baroness McIntosh of Pickering (Con)
I have to say that that is a little disappointing as a summing-up. I take responsibility for not giving proper hearing to the amendments in the name of the noble and learned Lord, Lord Hope—I had not realised he had slipped away, and I had promised to speak to them, so I am very grateful to the noble and learned Lord, Lord Thomas, for speaking to Amendment 58.
In summing up, my noble friend did not refer to the fact that the Scottish Parliament have removed their consent from the Bill—news which reached us only a week ago. My noble friend did not respond on what the Government’s approach will be to the amendments. That would help us in our deliberations.
I am extremely grateful to the noble Lord, Lord Collins, for probing as eloquently as he has, because that is the purpose of Committee. It would be helpful to know at this stage how the Government intend to respond to the amendments from the Scottish Parliament, though they are not before us today but in a different procedure.
Obviously, I prefer my deadline to that of my noble friend, but I am very grateful to her for tabling the amendment for debate. Equally, the noble Baroness, Lady Humphreys, spoke very eloquently about the position in Wales.
I am slightly at a loss here. I have been a UK parliamentarian for a while now but I was born in Scotland, and it grieves me that the UK Government do not appear to be making proper commitments in what was the internal market Bill and other Acts that we have passed, not just the Bill before us today. I feel that the Government’s work is cut out for them on this group of amendments.
I am sure that we will wish to return to these issues at a later stage but, for the moment, I beg leave to withdraw Amendment 51.
Lord Callanan
Member’s explanatory statement
This amendment ensures that regulations under subsection (1) may specify an instrument or description of legislation in cases where it is not clear whether the sunset applies in relation to the instrument or description. The effect of doing so would be to extend the sunset date so far as the instrument or description of legislation is subject to the sunset.
Member’s explanatory statement
This is a consequential amendment which provides clarity about the time the sunset provisions under clause 3 come into effect.
Baroness McIntosh of Pickering (Con)
My Lords, this is obviously a long group of amendments. In moving Amendment 59, I will speak briefly to Amendment 76 in the name of the noble and learned Lord, Lord Hope.
In Amendment 59, we have a chance to look at Clause 3, on the sunset of retained EU rights, powers and liabilities. Again, the particular purpose of this amendment is to take the sunset clause in relation to the retained EU rights, powers and liabilities contained in the Bill and extend it to 31 December 2028; this reflects earlier debates that we have had.
The context of this group of amendments is to consider how EU law will be assimilated into UK law, and what the procedures and timescales for this will be. Amendments 60, 61, 64, 70 to 72, 74, 75 and 100 have a similar theme in this regard. I know my noble friend on the Front Bench thinks that he has heard these debates before, but take Amendment 60 as an example. The reason why this amendment is important is that it seeks to delete Clause 3(2), which declares that any retained EU law sunsetted by subsection (1)
“is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed).”
In the view of the Law Society of Scotland—I am grateful again to Michael Clancy for helping me prepare for today’s debate—this is
“an unnecessary provision and adds nothing to the interpretation of the clause. Accordingly it should be deleted.”
As noble Lords will realise, it is ultimately the role of lawyers to apply the law that we will, in time, pass in this Bill.
Amendment 61 provides the ability for the sunset of retained EU rights, powers and liabilities to be extended to a later time by a relevant national authority. As presently drafted, Clause 3 provides for a sunset of retained EU rights, powers and liabilities et cetera at the end of 2023. However, there is no provision to extend this sunset such as applies in relation to Clause 1. Amendment 61 makes provision for a relevant national authority to be able to make regulations to provide for such an extension.
Amendment 64 is a consequential amendment which provides clarity about the time when the sunset of the principle of the supremacy of EU law comes into effect. As we heard in debates, the principle of the supremacy of EU law was developed by the Court of Justice of the European Union and provides that, when there is a conflict between national and EU law, EU law will prevail. It is key to the EU legal order and ensures consistent application across the EU. In Retained EU Law: A Practical Guide, Duhs and Rao comment on the application of the principle. They note the comment by the House of Lords Constitution Committee that it is impossible to see in what sense the principle of supremacy of EU law could meaningfully apply in the UK once the UK has left the EU. They go on to explain that it is retained because one of the stated aims of the European Union withdrawal Act is to incorporate EU law into domestic law. To incorporate EU law into the domestic statute book while retaining the principle would imbalance the statute book. Therefore, it is logically consistent that, when retained EU law is being abolished, the principle should also be disapplied. However, the Law Society of Scotland, with which I agree, questions whether the abolition of this principle will not affect the interpretation of EU law when it becomes assimilated. Therefore, is this not a factor to be taken into account when considering how to assimilate that law? In earlier debates, the noble Lord, Lord Fox, pursued this with some eloquence in relation to earlier clauses. Amendment 64 relates to Clause 4. Providing a later sunset date of 31 December 2028, as I seek to do in Amendment 64, will allow for a thorough analysis of the consequences of the removal of the principle in relation to the interpretation of assimilated law.
I also support the proposal that Clause 5 stand part of this Bill. Unfortunately, the noble Lord, Lord Fox, and others, got there ahead of me, but I am delighted to lend my support. Clause 5 amends various sections of the EU withdrawal Act so that retained general principles of EU law are no longer part of UK law from the end of 2023. This clause will achieve the Government’s policy of removing retained principles of EU law. However, will not the abolition of these general principles affect the interpretation of EU law when it becomes assimilated? Should this not be taken into account when considering how to assimilate that law? The Government should therefore justify the necessity for Clause 5.
Amendment 70 looks again to extending to 31 December 2028 with regard to Clause 6. It is a consequential amendment providing clarity on precisely how and when retained EU law will be known as assimilated law. The reference to the end of 2023 in Clause 6(1) is vague, and therefore the greater precision set out in this amendment follows the precedent within the definition of IP completion day found in Section 39(1) of the European Union (Withdrawal Agreement) Act 2020. The additional time should be used for a more thoughtful approach to amending by renaming retained EU law. The choice of date should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and to permit consultation with those who will be affected by the variation proposed by the regulations under Clause 19. This later date will allow for that process to be completed.
Amendment 71 is a consequential amendment, again extending the deadline for a different provision in Clause 6 to 31 December 2028, when it will become known as assimilated law. Equally, Amendment 72 has equal effect on a later provision in Clause 6. Amendment 75 again looks to extend a later part of Clause 6 to 31 December 2028. Amendment 100 is fairly self-explanatory. It is a consequential amendment to] the other amendments in this group to leave out Clause 8(4).
Before I move Amendment 59, I would like to speak to Amendment 76 in the name of the noble and learned Lord, Lord Hope, who has unfortunately had to leave and can no longer be with us. Amendment 76, supported by the noble Baroness, Lady Finlay of Llandaff,
“gives the Scottish and Welsh Ministers a power, equivalent to the power of Ministers of the Crown in Clause 6(6), to amend legislation in consequence of the change in terminology from ‘retained EU law’ to ‘assimilated law’ made by Clause 6.”
That goes to the point made by the noble and learned Lord, Lord Thomas, in the previous group that it is important to have equality of governance across the UK between Ministers of the Crown and Ministers from devolved Governments.
With those few remarks, I hope that my noble friend will give a fair wind to the arguments that I have made to extend the sunset in those various clauses and looks favourably on the amendment in the name of the noble and learned Lord, Lord Hope, as well. I beg to move.
The Deputy Chairman of Committees (Baroness Barker) (LD)
Your Lordships should know that, if Amendment 59 is agreed, I cannot call Amendments 61 or 67 for reasons of pre-emption.
Lord Whitty (Lab)
My Lords, I have three amendments in this group, Amendments 61A, 61B and 61C. I first apologise to the Committee: at the rate things are going, I may not be here by the end of the group. No discourtesy is intended. I hope to be here, but it depends on the length of your Lordships’ speeches.
These three amendments seek to exempt from the sunset in Clause 3 various categories of retained European law. These categories and why they are so important were extensively debated earlier in Committee, but they also need to be excluded from this part of the Bill. These areas relate to employment, environment, food and transport safety, and I pick them out for two reasons. First, these are the areas on which noble Lords have received most representations from organisations, businesses and others anxious about whether key areas of retained law will fall on 31 December.
Secondly, and maybe this has more appeal to the Government, each of those three areas has profound implications for international relations. They are either traded issues, such as food, issues which are clearly covered, for example by the trade agreement with the EU that we will not lessen standards, or else areas which are very complicated in their origins. I take for example transport safety, and aviation and shipping safety in particular. They are partially British laws, partially EU laws and partially international laws coming from the ICAO and various conventions. Unravelling that in any way which diminishes the effect of those laws will have very significant implications for international travel and transport, and organisations which operate in those fields.
Baroness Ludford (LD)
My Lords, I would like to speak to Amendment 62, on which I welcome the support of the noble Lord, Lord Anderson of Ipswich. I will also mention Amendment 67, which is about Ministers being able to extend the sunset for the matters covered by Clauses 3 to 5, which at the moment is lacking. There are such powers for Clause 1, but there are not similar powers for the very important matters covered by Clauses 3 to 5. Amendment 137 is a consequential amendment and introduces our familiar theme of the affirmative procedure.
I want to concentrate on Amendment 62, because it is about removing
“the automatic deletion by the sunset clause of the rights, powers, liabilities etc currently recognised and available in domestic law by virtue of section 4 of the”
European Union (Withdrawal) Act. The amendment calls for no abolition until these rights, powers and liabilities et cetera have been identified, and subjected to consultation and to a report laid before the relevant legislature—Parliament or the devolved ones—detailing the consequences of abolition. We do not have a huge amount of time, so I will not laboriously go through the text of the amendment, which is before noble Lords, but they will recognise the structure of it. On these Benches, there is a pattern to the amendments that we have tabled—Amendments 48, 42 and others which escape my memory at the moment—which are all about this considered way of making decisions.
The point about Amendment 62 is that it reflects one of our consistent objections. When I say “our”, I think I can say that right across the House, at Second Reading and in three days of Committee, there is a concern that it would be almost impossible to know what domestic law would actually look like after the end of this year. This offends key principles of the rule of law, including the requirement of legal certainty, human rights protection and other matters. The risk that this amendment is designed to address is that retained EU law will be revoked unknowingly; it is particularly prevalent for Clause 3 as the dashboard is far from comprehensive on this non-legislative form of law.
These rights encompassed by Clause 3 were originally recognised domestically by Section 2(1) of the European Communities Act and were retained by Section 4 of the EUWA. However, the potential effect of Clause 3 is arguably more serious than that of Clause 1. This is because identifying retained EU law to be deleted by Clause 3 is even more difficult than for Clause 1. We have been extensively through the difficulties of identifying retained legislation. Clause 3 is not a cataloguing of legal instruments. It requires legal research, often into case law of UK courts and the ECJ, to identify which EU treaty or directive articles have been found to contain directly enforceable EU rights and obligations. There may be further rights which are so obviously directly effective that they have never been litigated, and that provides a further challenge to identifying them before the deadline.
The Government have hardly started. Of the 3,800 pieces of REUL identified so far on the dashboard, only 28 rights, powers et cetera caught by the Clause 3 sunset have been identified, and there is no power to extend the Clause 3 deadline if Ministers run out of time. The noble Baroness, Lady McIntosh, has amendments to that effect, as we do in Amendment 67. To delete all those which are not saved by Ministers by the end of this year is reckless and unnecessary, so I am sorry but I am going to take a little bit of time. Unfortunately this group comes at the end of the day, and we are all tired and we all want to get home, but these are really important matters.
I have two examples which have not yet been identified on the famous dashboard so have not been subject to any consultations with affected individuals, organisations or businesses and could have a very severe impact if they are deleted by Clause 3. The first example is Article 157 of the Treaty on the Functioning of the European Union, the TFEU. This goes much further than the right to equal pay under the Equality Act 2010 because it is less restrictive with regard to comparators. For example, under Article 157, a woman teacher can compare herself to a man employed by a different education authority. They do not need to have the same employer. That type of comparison is not possible under the Equality Act. It requires comparison with a man employed by the same employer—it is usually a man; it could be the other way round but, let us face it, it is a normally a woman claiming equal pay with a man—so it has had a pretty revolutionary impact on the ability of women to get equal pay. However, Article 157 is not on the REUL dashboard as a directly effective right, so it would be repealed as a directly enforceable right by Clause 3 at the end of the year and women’s equal pay protections will be severely weakened as a result. Frankly, every woman in this country should be bombarding the Government with that fact. The Government have told us recently everything they say they are doing for women. I welcome anything that they are doing, but this drives a coach and horses through those claims.
The second example is Article 6 of the habitats directive. We have heard quite a bit about that directive, which is about the conservation of natural habitats and fauna and flora. One of the obligations in that directive has been found to be directly enforceable. It is the obligation of the competent authority, in our case the Environment Agency, in special areas of conservation and sites of international importance to habitats and species to
“take appropriate steps to avoid … the deterioration of natural habitats and the habitats of species”
et cetera.
This is a proactive and preventive obligation. It is not enough to react to deterioration once it has happened; it requires anticipatory protections to prevent deterioration and disturbance of habitats and species. That obligation has not been fully transposed into our domestic legislation. There remains in domestic law only a weaker duty on the Environment Agency to have regard to the habitats directive, which has been found not to impose a direction obligation, as article 6 of the EU directive does. So neither the habitats directive nor the case law on it appear on the REUL dashboard.
I hope that in his reply the Minister can address those two specific examples, which are not airy-fairy but very practical and significant. As things stand, this obligation will fall off the radar at the end of the year and the requirements on competent authorities to protect special areas of conservation proactively will be weakened. I must confess that I would like to have the noble Lord, Lord Benyon, here and to hear what he thinks of that.
Lastly, I recall that among the matters that Amendment 62 would require consideration of is the effect on our obligations under the trade and co-operation agreement and the protocol on Northern Ireland. That is a consistent point that we need to make from these Benches.
Lord Anderson of Ipswich (CB)
My Lords, I have signed Amendment 62 from the noble Baroness, Lady Ludford, and I take this opportunity to say a few words about Clauses 3 to 5 more generally.
I spoke at Second Reading and, although I have not so far burdened your Lordships by speaking in Committee, I have watched much of the first two days’ proceedings with what I can describe only as horrified fascination. Reference has been made today to the recklessness of the Bill. I hope to explain as briefly as I can that this recklessness is not confined to Clauses 1 and 2 but reflected just as strongly in Clause 3, as the noble Baroness just said, and indeed in Clauses 4 and 5.
The Prime Minister does not strike me as a reckless man. We do not know his view of the Bill but perhaps we can take something from the fact that when he was Chancellor, he was careful to ensure that the rules for which he was responsible were excluded from its ambit.
A constant theme of the committee debates on EU-derived legislation was what I think of as the warning lights on the dashboard: a catalogue of retained EU law that is not comprehensive, a hole of uncertain size where devolved legislation should be and, however much Ministers may wish to reverse the presumption of revocation, its application by default to any provisions that have fallen down what has been referred to as the back of the national sofa.
Clause 3 has attracted only a small fraction of the public attention devoted to Clauses 1 and 2 but is, if anything, even more productive of uncertainty. So far as I can work out, that uncertainty comes in three varieties.
The first uncertainty derives from the fact that, as the noble Baroness, Lady Ludford, said, no definitive list exists of the rights, powers and liabilities referred to in Clause 3 or, in all probability, is even capable of being prepared. The rights, powers and liabilities referred to include all those provisions of EU treaties that are sufficiently clear, precise and unconditional to confer rights directly on individuals, together with directly effective rights from EU agreements with third countries and directly effective rights in EU directives, subject to qualifications. All those rights had been preserved by Section 4 of the EU withdrawal Act in the interests of legal continuity. All are now to be removed in a single big bang moment at the end of the year, with no provision equivalent to Clause 2 for extending that sunset to a later date, as highlighted in the amendments of the noble Baroness, Lady McIntosh. These measures do not bear the brand “direct effect” on their foreheads; no one has ever made a full list of them. It is quite certain that the 28 directly effective rights listed in the dashboard, one of them repealed, can be only a tiny proportion of the total. No one has counted them, consulted on them or assessed the impact of their imminent removal.
Baroness Ritchie of Downpatrick (Lab)
My Lords, this has been a very interesting debate so far. I want to speak to Clause 3 standing part and Amendment 142, which is in my name and that of the noble Baroness, Lady Suttie. We are both of the firm view not only that the Bill should be withdrawn but, in particular, that it should be amended to remove Clause 3 or to retain Section 4 of the European Union (Withdrawal Act) 2018 to the extent that it preserves retained EU law which gives effect to human rights, equality and environmental protections in Northern Ireland, including all legislation that falls within the scope of protocol Article 2. The noble Baroness, Lady Ludford, has already referred to that point.
Why is that the case? Undoubtedly, Clause 3 removes an additional layer of protection for human rights and equality provisions in domestic law. For example, in research undertaken for the Northern Ireland Human Rights Commission, rights under the EU trafficking directive, which the commission has identified as falling within the scope of protocol Article 2, were identified as being safeguarded in UK law by Section 4 of the European Union (Withdrawal Act) 2018. The repeal of Section 4 of that Act would have no bearing on enduring obligations under protocol Article 2 but it would create a risk of confusion in this regard. I do not think your Lordships can afford to tolerate that fact.
A complex, inaccessible and confusing statute book could lead to an inadvertent breach of these obligations, particularly for organisations that have statutory duties conferred on them by the UK Government to look into Article 2 provisions as they relate back to the Good Friday agreement. Moreover, where there are measures that protect equality and human rights which were retained EU law by virtue of Section 4 of the 2018 Act and which are outside the scope of protocol Article 2, these safeguards will fall unless otherwise preserved, resulting in a loss of rights.
In this regard, I have three questions for the Minister. I ask him for an assurance—perhaps in writing—that the provisions of the Bill are without prejudice to Section 7A of the European Union (Withdrawal Act) 2018, in the absence of this clarification being included in the Bill; and that the UK Government or the devolved authority will, before the Bill takes effect, establish a comprehensive notification process for the law that is to be sunsetted, extended or preserved. In the case of Northern Ireland, we do not have institutions at the moment. What consideration was given by the Government to compliance with Article 2 of the protocol in the development of the Bill? It seems clear to me that one hand does not know what the other hand is doing according to legislation.
Amendment 142 seeks conformity with Section 7A of the EU withdrawal Act which gives domestic effect to the UK-EU withdrawal agreement. The Minister, when responding, needs to demonstrate to your Lordships’ Committee how the Bill will be in compliance with Article 2 of the protocol. Unfortunately, the Explanatory Memorandum does not show how this will happen.
The Minister also needs to demonstrate how the Government can seek consent from Northern Ireland with the lack of an Executive and Assembly. How will the process of reviewing, revoking, replacing or restating retained EU law by 2023—some nine and a half months down the road—be carried out in Northern Ireland? Those special considerations must be taken into account. Therefore, Clause 3 should not stand part of the Bill.
Lord Hannay of Chiswick (CB)
My Lords, I would like briefly to refer to this group of amendments, particularly to the aspects which seek to give the Government some flexibility as they go along this road. I am not wishing to address the cut-off dates, because that has been liberally described and debated already in earlier amendments, but the points that the noble Lord, Lord Whitty, made.
I am sorry to see that the noble Lord, Lord Callanan, is leaving the Chamber as I was about to address a question to him. I will address it to his colleague instead. I wanted to get on to the ground covered by the noble Lord, Lord Whitty. He talked about the possibility that some of the actions the Government wish to take will cut across our obligations under the trade and co-operation agreement or other international agreements and treaties, and will put the Government of the day in a very awkward and difficult position. Flexibility would give them a way of handling that.
I know that the author of this Bill wanted, like Ulysses, to stop his ears with wax and tie himself to the mast—the only difference being that he would not be on the boat when it hit the rocks. Other than that, that was what he was trying to do, and I do not think that is a sensible thing to do. Some flexibility, as suggested by some of these amendments, would be better. I say that because, until the events of Monday this week and the announcement of the Windsor Framework, one could imagine that the Government would have just said too bad, or words that are not repeatable in this Committee used by the former Prime Minister. However, I do not think that is the situation we are in now. We are in a situation where the Prime Minister and the Government have said that they wish to move in the direction of greater co-operation and flexibility, working with the EU. But here they are, stopping their ears with wax, tying themselves to the mast and making it very difficult to do that.
Here are my questions. It is no secret that the ambassadors of member states and of the Commission are deeply disturbed by this Bill. Anyone who has had any contact with them will know that. Could the Government say if they have received any representations about this Bill from any of the member states or the Commission? If so, what was the nature of those representations and what has their response been? I know the Minister does not much like being interrupted when he is winding up, so I hope he will answer that question because it will save me the trouble of interrupting him. His colleague, the noble Baroness, Lady Neville-Rolfe, will no doubt tell him what the question was. I would be grateful to hear the answer.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will speak briefly in support of Amendment 76, as the noble Baroness, Lady Finlay of Llandaff, cannot be in her place. I made all the arguments in relation to Amendment 58, and I do not intend to repeat them. I await with great interest the ingenious answer that will come out this time for treating the nations with inequality.
I will take one minute to support Amendment 62 most strongly. So far, we have been dealing with known knowns: we know that there is legislation. There is a bit of the known that needs due diligence, but that falls within the same category, and we should get there on legislation. But I will not be satisfied about that until I see how it has been searched for. However, in this area, we move into the known unknowns. The Bill shows a profound misunderstanding of the genius of the common law and the huge benefit of it and our way of doing things in this country. We are like magpies: we take good things from places and adapt them.
Lord Fox (LD)
My Lords, I will speak to the two amendments in my name. It is late, and I will try to keep this as short as possible, first addressing Amendment 67. Amendment 62, in the names of my noble friend Lady Ludford and the noble Lord, Lord Anderson, focuses on much of the same ground as Amendment 67, and there has been a lot of wise discussion in that area. I support their points but do not need to echo them. However, I add that Clause 3 has the effect of sunsetting retained EU rights, powers, liabilities, et cetera. Unlike Clause 1, the Bill does not allow the Clause 3 deadline to be extended, which increases the likelihood of accidental deletions. Why is that extension not advanced for Clause 3?
I will focus on the proposal that Clause 5 should not stand part of the Bill. This is intended to probe the effect of abolishing the general principles of EU law—we briefly heard from the noble Lord, Lord Anderson, on that process, and the noble Baroness, Lady McIntosh, also alluded to this. I remind your Lordships that we have established that much EU law is, as the Minister described it, a “mishmash” of interwoven UK and EU-derived law. I think that that is what the noble Lord, Lord Anderson, called, rather more alarmingly, the “interpenetration” of law. Until now, the general principles of EU law have been used by lawyers, court and tribunals in the UK to interpret the EU part of that mishmash. These general principles include legal certainty, equal treatment, proportionality, non-retroactivity, effectiveness, equivalence and respect for fundamental rights, among others—like the noble Lord, Lord Anderson, I was unable to find a definitive list.
A further example of a general principle of EU law is the Marleasing principle. Looking at experienced lawyers opposite, I feel I am probably entering terrible territory by even mentioning this. But my understanding is that the application of this principle means that, if no national law at all has been passed to comply with a directive, it was held that having national legislation passed specifically in the name of the directive was not necessary. In any case, the Bill does away with this, so there may be some lasting effect. So this amendment probes the practical effect of abolishing direct-effect supremacy, and the general principles of EU law, taken together.
As we know, the UK regulations set out the letter of a law, the bare bones. However, in spite of the excellent work done in this Chamber to achieve clarity in those laws, there is often uncertainty—noble Lords will find that hard to believe—as to what the words actually mean.
Where the regulations give effect to a directive, such as the working time directive, the courts use the directive to help them understand the meaning of the regulations. Directives, unlike UK law, set out their purpose and their aims. Those aims help a court or tribunal to interpret the regulation. My understanding is that during the process of assimilation, new assimilated law loses contact with the EU directive and the EU-derived part of the law in that mishmash. It loses the basis for ongoing interpretation.
I can understand, post Brexit, why on the face of it the Government wish to sweep away all mention of EU law and EU directives—I get that. However, the meaning and understanding of the regulations, as we now have them—the Minister’s mishmash—has taken years and many different appeal cases, and much individual expense, to give the level of understanding of the law and the regulation that we now enjoy.
For example, litigation began in 2001 over whether workers were able to carry over their annual leave when they were too sick to take it. This was finally settled many cases later by Plumb in 2015—14 years later—with a carryover right. This is not unusual. Common law incrementally decides issues before a settled understanding emerges. The default of the Bill is to sweep away all this accrued understanding or at least put it in question and not provide any clear statement of what the law will be going forward.
If the Government do not want to change the settled meaning of UK law as it is interpreted today, my understanding is that they would need to audit all the conforming interpretations that have affected regulations from court decisions and translate those court decisions into the body of the new or replacement regulations. Is that what the Minister intends? If so, that intention should be inserted in the Bill. However, I suspect this is not the plan. In that case, even if all the regulations were preserved in assimilated law, the abolition of direct application, supremacy and general principles will result in the UK waking up on 1 January 2024 to a new year with large swathes of law that no lawyer will be able accurately to predict or advise on, causing great uncertainty—the sort of uncertainty that the noble and learned Lord, Lord Thomas, alluded to.
A colleague said to me as I was trying to explain this, “Surely no judge would want to throw out all that case law.” That is where we come to the interrelation of Clause 7. However, we will not know what the judges decide until a case has been brought. Let us not forget that there are thousands of laws here, which could mean thousands of potential tests. We will not know how the test will end until a judge rules on it—probably more than once, as experience shows.
Can the Minister explain why there is no plan to port the interpretation and case of the laws that we have within the mishmash into the assimilated law as we go forward? If there are plans, could he explain what they are?
Lord Hacking (Lab)
It is quite clear from what the noble Lord said to the Committee that he is in favour of Amendment 62. It seems to me that, as a result of what he has said, he must be opposed to Clause 3 standing part of the Bill. I wonder whether he could confirm that.
Lord Fox (LD)
Yes, absolutely. I made the point about Clause 3 missing out on the sunset laws. That is clearly part of my dissatisfaction. I also said that I supported, but did not echo, the wise words on Amendment 62. In the interests of brevity, I was trying not to cover everything.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, also in the interests of brevity, I will just say that there is real fear and concern that we will end up with a massive mishmash of legal confusion in this area. That concern is very real in the world of work, in particular in areas such as equality—not least in equal pay for work of equal value and protection for insecure workers, where so many advances have depended on EU-derived legislation and case law. Previous judgments will no longer be binding, and issues will have to go through the judicial system again. As Michael Ford KC wrote in the Financial Times:
“Workers and employers will be back at square one. The whole lengthy and expensive process of appeals will have to be repeated. Even the most enthusiastic lawyer views such a … task with dismay.”
Having to argue those key points again will be costly and cause delays. Frankly, that usually benefits those with the biggest wallets.
The Bill hands huge powers to, and puts enormous pressure on, the Court of Appeal and the Supreme Court, which have been instructed to depart from case law informed by EU law if they consider it right to do so. Of course, the chances are that there will be an avalanche of requests from lower courts or tribunals making references to higher courts about departing from retained EU case law. The result will be workers and employers spending more time in court—in a system that already has huge delays—in a desperate attempt to find out what the law now means.
Lord Hendy (Lab)
I will make a short point about Amendment 61A, tabled by my noble friend Lord Whitty. In the amendment, he seeks to exclude from the effect of Clause 3 employment rights and health and safety at work. At the end of Tuesday, I sought to demonstrate that health and safety at work was a protected area which could not be repealed or amended under the Bill because of the protection given by the trade and co-operation agreement, which my noble friend and the noble Lord, Lord Hannay, mentioned this evening. I will explain why it covers some but not all employment rights.
There are two ways in which it operates. The first is via Article 387, which requires that a party, including the UK,
“shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.”
Indeed, Article 387.4 requires that:
“The Parties shall continue to strive to increase their respective labour and social levels of protection”.
On Tuesday, I pointed out that labour and social levels of protection are defined by Article 386, which includes not only
“occupational health and safety standards”
but
“fundamental rights at work … fair working conditions and employment standards … information and consultation rights at company level; or … restructuring of undertakings.”
It is quite apparent that many of the EU laws on employment are protected by that definition.
The other way in which some employment rights are protected is by Article 399.5:
“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted.”
I will not reiterate the many ILO conventions which protect employment rights at work, but Members of the Committee may not be so familiar with the European Social Charter. I will not read the text of the relevant provisions, but I will just mention that Article 2 protects the right to just conditions of work; Article 3 protects the right to safe and healthy working conditions; Article 4 protects the right to a fair remuneration; Article 7 concerns the right of children and young persons to protection; and Article 8 concerns the right of employed women to protection. There are other provisions as well.
For these reasons, it appears to me that my noble friend Lord Whitty is right to seek protection for employment rights, or at least some employment rights, that are covered within those two ambits, as well as health and safety at work.
Baroness Chapman of Darlington (Lab)
My Lords, I thought the Bill was bad, but this debate has been quite shocking. I really do not think the Government know what they are doing with these clauses. I do not think that, when the Bill was initially proposed while the Government were having their moment of madness last autumn, we thought that something like Clause 3 would be before Parliament in March the following year. Reckless does not quite cover it; it is as if the Government got completely drunk and now we have a hell of a hangover to deal with.
It is clear from the debate we had earlier in the week, and from the letter, that the Government have not appreciated what the impact of this clause will be. It would be very helpful if we could have a statement or a letter from the Government explaining exactly what they intend to happen as a consequence of this clause, because, listening to the debate, I think that things will emerge that Ministers have not fully taken into account. I thank the noble Baroness, Lady Ludford, most sincerely for her Amendment 62; it is at least an attempt to put some safeguards around what could be about to happen. I am particularly concerned by the high-handed and nonchalant way in which Ministers are dealing with the issue of Northern Ireland. I have seen no evidence at all that the Government have appreciated the impact that what they are about to do could have on the agreement that they have only just entered into with the EU.
I have not read the full text of the agreement—I do not pretend to have done—but I have read the political declaration. It seems very clear that, underpinning the political declaration of the Windsor Framework, limited divergence will be permitted between the EU and the UK, to maintain the soft border arrangements on the island of Ireland. That is clearly what is intended by the political declaration; I expect that is why the noble Lord, Lord Frost, is so upset about it and does not seem to want to support it. That limited divergence is put at risk by the measures in the Bill.
The Minister earlier today did not want to engage with that. She said she was absolutely certain that I was wrong. I think that I am right and she is wrong. I would like a letter from the Minister for the Library explaining why the Government are so sure of themselves on that issue, because these are incredibly important questions; we cannot just be expected to skirt over them and take flippant assurances from the Benches opposite. Clearly, the consequences of Clause 3 and the following clauses may have dramatic impacts. They create great uncertainty. I just do not understand how Ministers can be so sure or even expect us to engage sensibly in this discussion, given what we have just heard.
My noble friend Lady Ritchie’s comments and her amendment are incredibly important. I hope the Government will reflect seriously on this debate. How can the Government think that the rights, liabilities and powers in Clause 3 will ever be reflected properly in the dashboard process? How is that supposed to work? Unless it works, how on earth are judges or citizens expected to make decisions, or employers expected to know what their responsibilities and duties are, if we go ahead with this clause?
Ministers will no doubt say that we are worrying unnecessarily and are taking too much time—that it is 7.05 pm. I do not care that it is 7.05 pm; these issues are just so important. I ask the Minister, please, not to treat this House in the high-handed way that Ministers do on occasion. It is not just him; I am sure others do too. These are critical questions that we are asking. If he cannot answer adequately today, please can he commit to going away and coming back with something more substantial? I can tell him now: this clause does not leave this House and go back to the other end given the debate that we have just heard. The mood of the Committee seems to be one of not wanting this to go forward. We are going to face this on Report.
I will be asked by my Chief Whip to prioritise votes and make sure that we do not have too many. I think that is going to be quite a challenge given what we have heard today, so the more the Government can themselves reflect and consider what has been said—particularly on the issues around Northern Ireland—the better. They must show us that they have done some proper thinking about that and appreciate the consequences of the Bill in relation to the agreement that was made only on Monday. That is the only way in which we can move forward.
I apologise for taking up a little more of the Minister’s time, but I am very patient, and I will sit here until he has given us the assurances we need. He can expect some interventions—irritating though he finds them—if he attempts not to answer the questions raised by noble Lords as part of this discussion.
Lord Callanan (Con)
I am very happy to stay as long and late as the House requires. I was very happy to stay later the other night as well, but I believe it is the noble Baroness’s party that said it wanted to go home early and that we therefore needed to finish.
Lord Collins of Highbury (Lab)
There is no need for these sorts of insults; we have agreed times.
Lord Callanan (Con)
Hang on a second—I made that point because the noble Baroness, Lady Chapman, said that I was being dismissive of her points and that it was 7.05 pm and that I wanted to go. I have relayed that I am very happy to stay as long as the House requires, but I believe it was the Labour Party that said it wanted to finish early the other night, and at 7 pm tonight.
Lord Callanan (Con)
Anyway, let us move on to the issues.
Let me first introduce government Amendments 65 and 66, which work together to remove a cross-reference in this Bill to Section 183A of the Data Protection Act 2018. This new Section 183A is due to be inserted into the Data Protection Act by the Data Protection and Digital Information Bill. Since the DPDI Bill is not anticipated to receive Royal Assent in this parliamentary Session, new Section 183A will not exist when this Bill receives Royal Assent. As such, noble Lords will understand that, for practical reasons, it is necessary to remove the cross-reference. Let me reassure the House that the Government are committed to maintaining high data protection standards and a functioning data protection regime. At this stage, we are minded to use the DPDI Bill to insert the reference to Section 183A of the Data Protection Act into Section 5(A3) of the European Union (Withdrawal) Act 2018.
Amendments 73, 77, 78, 79 and 80 are to Clause 6 of and Schedule 1 to the Bill. These amendments are consequential to the Bill policy in Clause 6 which establishes “assimilated law” as a new body of law from the end of 2023. These changes are required to end the special status of retained EU law. Amendments 73 and 77 rename two further terms related to retained EU law, so that from the end of 2023 they will be renamed as terms related to “assimilated law”. The consequential Amendments 78, 79 and 80 make textual amendments to individual references in priority pieces of primary legislation which support the interpretation of retained EU law on the statute book, so that from the end of 2023 the identified references to retained EU law and related terms will be changed to references to “assimilated law” and related terms. These amendments are being tabled now purely for purposes of legal clarity and legal accessibility.
Turning to the non-government amendments, I start with Clause 3, which, as noble Lords have observed, repeals Section 4 of the European Union (Withdrawal) Act. Amendments to this clause seek to delay that repeal and thus a core part of the Government’s ambitious programme of retained EU law reform.
The matters saved by Section 4 consist largely of rights, obligations and remedies which overlap with rights already well established by domestic law. In our view, these overlaps can cause confusion, so we should no longer perpetuate this situation. Work is already well under way across departments to identify the implications of the repeal of Section 4 of the 2018 Act, and the Bill provides adequate powers to codify and safeguard relevant rights in domestic statute as needed.
Indeed, as Sir Stephen Laws, ex-First Parliamentary Counsel, said:
“The ideal for the law is that all law can be found from easily accessible sources and relied on to mean what it says without being qualified by complex, obscure or general glosses, or involving complex historical research to find out whether it is valid. The Bill, by removing everything that is subject to those disadvantages—because the ideal is not the situation at the moment for retained EU law—is an important step towards securing that the ideal is achieved, by forcing the decisions to be made about how this law can be properly integrated into UK law quickly. Things will only get worse if that does not happen.”
That will not mean the blanket removal of rights. Rather, combined with other measures in our Bill, it will result in the codification of rights in specific policy areas. This clarification will provide certainty for businesses and citizens in this country.
On Amendment 59 in the name of my noble friend Lady McIntosh, although I appreciate the concerns about the ambitious timetable we have set, I can assure her that the retained EU law reform programme is well under way and will ensure that the necessary legislation is in place by the sunset deadline.
Turning to Amendment 60, removing just Clause 3(2), as the amendment aims to do, would reduce legal certainty. We consider that this amendment is intended to operate in conjunction with Amendment 61, which seeks to delay the repeal of Section 4, so let me turn to that amendment.
We do not believe it is necessary to delay the repeal of Section 4. Where required, the Government will use the powers in the Bill to codify specific rights clearly and accessibly in domestic statute, and work is indeed under way to do so. These powers are also conferred on the devolved Governments, with whom we will of course continue to work closely to ensure that the most efficient and appropriate approach to exercising powers is taken in a way that provides certainty for all parts of our United Kingdom.
Amendments 61A, 61B and 61C in the name of the noble Lord, Lord Whitty—I know he is no longer in his place but he apologised for having to leave, so I will address his points—relate to policy-specific carve-outs from the measures in Clause 3 and from the sunset clauses more broadly. We have already discussed carve-outs extensively in previous groupings, and I do wish to rehash the same arguments. However, I reiterate that the Government do not see the need for carve-outs in individual departments, policy areas or sectors.
The intention of the proposed new clause under Amendment 62, put forward by the noble Baroness, Lady Ludford, is to leave matters saved by Section 4 of the 2018 Act on our statute book for longer—perhaps in some cases indefinitely. The noble Baroness mentioned in particular Article 157 of the Treaty on the Functioning of the European Union, which is on equal work for equal pay. Equal pay already exists in UK statute. However, we recognise that here, the expression of the EU-based right can be slightly wider than its expression in UK legislation. That is why we have put powers in the Bill to codify the policy intent of these interpretive effects, such as Section 4 rights, where we need to. It would be for the Government Equalities Office and other government departments to decide whether to use the restatement powers in Clauses 12 and 13 to codify those principles.
The noble Baroness also mentioned Article 6—
Lord Anderson of Ipswich (CB)
I am grateful to the Minister. Of course, if you are going to use those codification powers, you have to know what you are codifying. I think he said a moment ago that work is under way to identify the rights, powers, liabilities, et cetera which are saved by Section 4 of the European Union (Withdrawal) Act. Only 28 of those rights, powers and liabilities have so far found their way into the dashboard. How many have now been identified now, and when does the Minister anticipate that the work will be complete?
Lord Callanan (Con)
As I said, the work is under way at the moment across all the rights codified in those sections. As the noble Lord said in his speech, this is a complicated area of law. I do not want to get into a complicated legal argument, so it is perhaps best if I seek advice from the lawyers and write to him, as he suggested, on the legal technicalities of that area.
Lord Anderson of Ipswich (CB)
I think I must have failed to get across, when I addressed the Committee earlier, that we are not here dealing with legal technicalities but with massive uncertainties at the very heart of the Bill, uncertainties that relate not to legislation but belong to legal principle. I tried to help by saying how I thought Clauses 3 to 5 related to Clause 7. If I was right about that, the task of applying any European authority under Clause 7 becomes astonishingly difficult, because a court has to read every one and see whether it contains general principles, direct effects or supremacy before it can even decide whether it is going to apply it or not. I hope I did not leave the Minister with the impression that these are legal technicalities, and I hope that, if he writes to the Committee about this, we will have a full explanation of how Clauses 3 to 5 and Clause 7 are intended to relate to each other.
Lord Callanan (Con)
I will talk to the lawyers and attempt to get the noble Lord an answer to his concerns.
The noble Baroness, Lady Ludford, mentioned the habitats directive. I am slightly loath to go back there, after the long discussion with my noble friend Lord Benyon on Tuesday, but let me restate again for the benefit of the record that the Government have been clear about the importance of environmental protection across the UK, not least through the Environment Act, which includes a legally binding target to halt the decline of nature by 2030. As I emphasised earlier in the debate, we are committed to meeting this target and we will of course not undermine our obligations to the environment.
Baroness Ludford (LD)
I apologise to the Minister, but that is not the point I was asking about. I am no expert on the habitats directive, but a specific clause has been interpreted in case law as imposing a preventive, proactive duty—in our case, on the Environment Agency. Will that be retained?
Lord Callanan (Con)
Case law is being retained. Case law is not being abolished, it will still exist, and courts will still be able to take account of it. Removing the complex and opaque legal gloss associated with Section 4 of the 2018 Act will improve the clarity of our domestic law. It would be, in our view, inappropriate, to leave these provisions on our statute book, and we wish to end them as soon as reasonably practicable. We consequently also oppose Amendment 137, which specifies that any regulation made under the power conferred by Amendment 62 would be subject to the draft affirmative procedure.
Lord Fox (LD)
I think the Minister is departing from Clause 3. This sounds like small beer compared to some of the issues that colleagues have raised, but I asked a specific question about the difference in approach to the extension of sunsetting between Clauses 1 and 3, and I hoped the Minister would address that—if he was intending to.
Lord Callanan (Con)
I have some more remarks on Clause 3. Let me come to the end of them and, if the noble Lord does not feel that he has got an answer, we can talk about that further then.
I was going to move on to the point of the noble Baroness, Lady Ritchie, who tabled notice of her intention to oppose Clause 3 stand part of the Bill. For the reasons set out, the repeal of Section 4 of the 2018 Act is, in our view, a crucial part of the Government’s agenda to take back control of our statute book and improve legal clarity. I completely agree with the points made by the noble Baroness, Lady Chapman, about the Windsor Framework. We do not think this Bill has any effect on the agreements made. Of course, we will examine the text of that very closely, but it goes without saying that the Government are completely committed to the agreement and we would not wish to do anything in either this or future legislation to impinge on what I view as a fantastic agreement.
Moving on, Clause 4 abolishes the principle of the supremacy of EU law. I do not think that I have any notes to address the points made by the noble Lord, Lord Fox, so let me say that we will include that in the general write-around about—well, I will not refer to them as legal technicalities because the noble Lord, Lord Anderson, will tell me that they are extremely important legal principles. I will seek legal advice and get a proper answer for the Committee.
Lord Anderson of Ipswich (CB)
The Committee heard from a former Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, that these principles go to the heart of how common law is applied in this country. I do not think that that is a legal technicality.
Lord Callanan (Con)
I acknowledge the noble Lord’s point but I will get him a proper answer from the lawyers.
Baroness Chapman of Darlington (Lab)
When the Minister gets us that proper answer, I would be grateful if he could explain—I do not understand this, but I do not know whether others do; perhaps some noble and learned Lords understand it—the difference between the “interpretive effects” that were mentioned in the letter from the noble Baroness, Lady Bloomfield, and case law. What is the impact of that difference? The noble Baroness’s letter clearly states that the Bill will
“repeal retained EU interpretive effects.”
I am not clear what that means; I wonder whether the Minister could include that in his letter.
Lord Callanan (Con)
I would be happy to include it in the letter. I hesitate to give what I think is a legal definition in front of so many noble and learned Lords but I am told that interpretive effects are not case law. As I understand them, the interpretive effects are the general principles of EU law that have been used to apply to the interpretation of retained EU law because it was EU-originated. We wish to abolish interpretive effects, but that does not impinge on the case law, which of course remains.
Moving on, Clause 4 abolishes the principle of the supremacy of EU law for the end of 2023 in so far as it still applies to pre-2021 legislation. Amendment 64 would delay the abolition of the retained principle of EU supremacy until the end of 2028. There is cross-party support for the end of supremacy. In the House of Commons, Justin Madders MP—he is a spokesman for the Labour Party, I believe—said:
“Overall, we agree that there has to be an end to EU supremacy in UK law”.—[Official Report, Commons, Public Bill Committee, 24/11/22; col. 186.]
If left unreformed, supremacy would remain a constitutional anachronism on our statute book. We believe that it is simply incompatible with our status as an independent, sovereign nation, and we therefore wish to end it as soon as we can.
Baroness Chapman of Darlington (Lab)
Can I just explain Justin’s comments? The Minister has provoked me. Clearly, the shadow Minister was talking about a sane, considered process by which this matter is dealt with, not the lunacy that the Minister is trying to promote today.
Lord Callanan (Con)
I do not think he said that; he said that there has to be an end to EU supremacy in UK law. While we are all swapping letters, perhaps the Labour Party might want to write us a letter to clarify what he meant. I am not being serious, of course; it is not the Labour Party’s job to do that.
Amendment 142 in the name of the noble Baroness, Lady Ritchie, seeks to clarify that this Bill does not disturb Section 7A of the European Union (Withdrawal) Act 2018. That section makes the rights and obligations in the withdrawal agreement available in domestic law. It also provides that domestic legislation must be read and given effect subject to those rights and obligations. I can reassure the noble Baroness that this Bill will not disturb Section 7A of the 2018 Act. I can also assure her that the Bill provides powers to restate rights and obligations required for Article 2 of the Northern Ireland protocol as needed. The Government will ensure that all necessary legislation is in place by the Bill’s sunset date to uphold all the commitments made under Article 2.
Amendment 100, tabled by my noble friend Lady McIntosh, would remove the sunset date for the compatibility power in Clause 8. It is not necessary to have a power to specify legislative hierarchies beyond 23 June 2026, by which time the Government will have exercised the power as needed.
I move on to Clause 5. I understand that the noble Lord, Lord Fox, has given notice of his intention to oppose the question that Clause 5 stand part of the Bill. General principles of EU law were developed in CJEU case law, with which EU institutions and member states must comply. I submit that it is clearly no longer suitable for our status as an independent nation outside the EU—however much the Liberal Democrats wish that not to be the case—for these specific principles to continue forming part of UK law. The powers in the Bill allow the Government to codify clearly any necessary effects to bring clarity to our domestic statute book.
Baroness Ludford (LD)
I am sorry to interrupt the Minister but that remark was gratuitous. The point is about legal certainty. It is not about whether we as a party, or anybody else, would have wanted to remain in the EU—it is clear that we would. It is about whether the law will be clear, and whether the judges will be able to operate it, and whether businesses, unions and whoever will know what they are supposed to be doing. That is the point that we have been trying to make over four days on this Bill. Brexit is irrelevant to this discussion, and I do not believe I have used the word once in these proceedings. What is important is whether the law will be able to be operated with certainty, clarity and predictability.
Lord Callanan (Con)
That is fair enough; it was a slightly gratuitous point. I actually agree with the noble Baroness—we want the law to be as clear and accessible as possible. That is why we do not believe that the general principles of EU law, which of course were developed by the CJEU for use primarily by EU institutions and member states, should be relevant to the UK now that we are an independent nation, whatever our differences of opinion might have been on that.
Lord Fox (LD)
I think I failed to explain why I think that they are relevant. They are relevant because of the EU retained law part of the Minister’s mishmash, which gets assimilated into UK law. The interpretation of that EU part, which is now UK law, somehow loses the basis upon which the interpretation was made. I explained that I understood why the Government wanted to do this, but the fact that they become separated is an issue. I suggested a way for those interpretations to be ported across, specifically and explicitly for each one. If that is not the way it will be done and the Minister says that somehow this is going to happen, then at some point in this debate we need to understand. If it is not in the letter, then it needs to be later in this debate.
Lord Callanan (Con)
I made the point earlier that, when departments are reviewing their legislation and any modifications they might need to make to statutory instruments, they will of course want to take account of the fact that the general principles of EU law will no longer apply in the UK and make any modifications that would be required.
I move on to the somewhat related point raised by the noble Baroness, Lady O’Grady. Let me be clear that retained case law—this comes back to the point made by the noble Baroness, Lady Chapman—is not and cannot be directly sunsetted, as it consists of judges’ judgments, which are essentially statements of historical fact. Where general principles and other interpretive effects are removed by the Bill in Clauses 3 to 5, it would be expected that courts would continue to consider relevant case law where it is clear from the restatement that that is the intention.
Amendment 67 would introduce an extension power for the removal of general principles of EU law, as well as the abolition of supremacy and the repeal of Section 4 of the 2018 Act, as I have already set out. Removing these complex legal glosses will, in my view, satisfy the noble Baroness, Lady Ludford, and improve the clarity of our domestic law. It is imperative that we end them as soon as is reasonably practicable.
Baroness Chapman of Darlington (Lab)
The Minister has made a number of commitments about providing letters and further information to the Committee, for which we are grateful. We are due to sit for an additional day on Monday. I do not think it is reasonable to ask the Committee to conclude its deliberations on the Bill without sight of the further information that the Minister has promised, so will he commit that we will receive it in good time before we start consideration on Monday—not two minutes before the Committee starts, but in adequate time for us to consider it before we begin? It would not be right for us to be asked to conclude Committee without it.
Lord Callanan (Con)
I am not going to give an absolute commitment, but I will talk to the lawyers. On the famous letter from my noble friend Lady Bloomfield, I actually pushed officials to try to assimilate the contents of the letter and get it out to the Committee as quickly as possible, because I thought noble Lords would want to see it before we considered the Bill on a further day. They worked very late into the evening to get the letter out, after going through all the necessary approvals that the Government need to go through. Given some of the criticisms, I wish I had not bothered. Nevertheless, I still think it was helpful to noble Lords and will do my best to get them the letter to which the noble Baroness referred.
Baroness McIntosh of Pickering (Con)
My Lords, this has been an excellent debate. It reflects not least the concerns of the legal practitioners, who will be left to interpret the status of the laws. But what concerns me is that the Minister and the department are perhaps in denial about the level of concern that has been expressed not just in the Committee this afternoon but in those examples from various sectors that we have heard today. This has been a beneficial session in probing where we can reach agreement before Report to help the Government get the Bill through. I know that my noble friend cares very deeply and passionately about that.
The Committee accepts that the supremacy of EU law will go but my noble friend needs to consider whether the abolition of this principle will affect the interpretation of EU law when it comes to being assimilated. Is that not a factor to take into account in how we assimilate that law? I leave my noble friend and the Committee with that thought.
However, I believe that we have established some ground rules during this debate, so that we can regroup before Report. I, among others, look forward to receiving the letter from my noble friend and, at this stage, beg leave to withdraw my amendment.
Lord Callanan
Member's explanatory statement
This amendment leaves out a reference to section 183A of the Data Protection Act 2018 (inserted by clause 43 of the Data Protection and Digital Information Bill) from section 5(A3) of the European Union (Withdrawal) Act 2018 (inserted by Clause 4 of the Bill).
Member's explanatory statement
This amendment is consequential on the Minister’s amendment to Clause 4, page 3, line 2.
Retained EU Law (Revocation and Reform) Bill
Monday 6th March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-V Fifth marshalled list for Committee - (6 Mar 2023)
Lord Callanan
That the House do now resolve itself into Committee.
Amendment to the Motion
Lord Kennedy of Southwark
At end insert “and that it be an instruction to the Committee that no new amendment shall be considered today after 10.00pm”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, following the tabling of my amendment on Friday, there has been positive discussion in the usual channels, and I am pleased to say: not moved.
Baroness Ludford
“Conditions for bringing section 3, 4 or 5 into force(1) None of sections 3, 4 or 5 may be brought into force unless all the following conditions have been satisfied.(2) The first condition is that a Minister of the Crown has, after consulting organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, that section on a draft of a report, laid that report before Parliament setting out, with reasons, the Minister’s view as to the likely advantages and disadvantages of bringing that section into force, setting out in particular the effect of that section on –(a) the rights of and protections for consumers, workers and businesses, and protections of the environment and animal welfare, (b) legal certainty, and the clarity and predictability of the law,(c) the operation of the Trade and Cooperation Agreement between the United Kingdom and the EU, and UK exports of goods and services to the European Economic Area, and(d) the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.(3) In relation to section 4, the report must take into account any regulation made or likely to be made by a relevant national authority under section 8(1).(4) The second condition is that a period of 60 days has passed since the report was laid before Parliament, with no account taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.(5) The third condition is that, after the end of that period, both Houses of Parliament have approved a resolution that that section come into force.(6) If both Houses of Parliament have approved a resolution that that section should not come into force unless it is amended in a way set out in that resolution, then the Minister may by regulations amend that section accordingly, and that section may not be brought into force until that amendment has been made.”Member’s explanatory statement
This new Clause requires Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles. It also includes opportunity for Parliamentary approval and timeframes for laying reports before both Houses.
Baroness Ludford (LD)
My Lords, in moving Amendment 68 I will speak to Amendments 69 and 69A in the name of the noble Baroness, Lady Chapman. I will take a little while; I know we want to make progress today, but these amendments are on legally very significant issues in relation to Clauses 3 to 5. Last Thursday, we discussed the fact that, unlike the sunset under Clause 1, there is no saving provision for Clauses 3 to 5, such as appears in Clauses 1(2). We moved an amendment to try to change that, and perhaps the Government will accept it.
I heard a Conservative MP on “Any Questions?” this weekend assert that Brexit meant bringing democracy back. I think that noble Lords across the Committee who have taken part in the four days of proceedings so far on the Bill would agree that it does not bring democracy back. Instead, it reinforces the executive diktat that, unfortunately, we have become rather used to.
The effect of these amendments, beginning with Amendment 68, would be to require
“Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles”
of EU law. I presume that the Government have conducted such an analysis before bringing into force such wide-ranging changes. In the words of the Bar Council,
“it would be extraordinarily irresponsible were that not done”.
We would like to see a sharing of that analysis; it needs to
“be consulted on, made public, and put before Parliament. The new clause … gives Parliament the chance, in the light of such an analysis, to prevent the bringing into force of those sections or to propose amendments”.
The fact is that the effect and scope of Clauses 3 to 5 are extremely unclear.
On legal certainty, the principles of the interpretation of EU law are ones with which UK lawyers and courts are, by now, very familiar; they are well settled as principles of the interpretation of UK statues as well. Removing those principles is likely to generate uncertainty and unintended consequences, in particular because quite a lot of those topics will have been the subject of considerable EU case law and removing them will create instability. The Government have not explained what the consequences of the removal of those principles will be on the various rules and protections concerned. I am very grateful to the Bar Council for its briefing, and, again, in its words:
“It is not a good idea to legislate when you have no idea what the consequence of that legislation will be.”
However, I am afraid that that is where we seem to be.
Under these clauses, there will be a retrospective effect to alter the position of domestic legislation, which could not have been foreseen by the domestic legislator at the time. That appears to be a very dubious thing to do. The rationale for retaining, for instance, the principle of the supremacy of EU law—a much misunderstood term; lawyers describe it better as a hierarchical rule—is legal certainty, because individuals and businesses will have taken decisions, sometimes far-reaching and involving significant investment, based on the law as it was. Removing that principle to give priority to any subsequent domestic legislation would mean that it would be impossible to say whether the consequence of removing the principle in any particular case would reduce the clarity of the law or change its effect. Even if it does not do those things, it will at least reduce certainty and lead to unpredicted—and perhaps undesirable or unjust—consequences.
Lord Kirkhope of Harrogate (Con)
My Lords, I have not contributed at all in this Committee and I am going to say only a very few words, which I hope I can keep as simple as possible. I very much support Amendment 69A here, because I think it is particularly relevant. I hope it is of help to my noble friend the Minister, who last week dismissed out of hand Amendment 44, to which I had added my name. I hope he will understand that I am trying to be helpful in supporting this. With the legal uncertainty that we seem to have here, it is terribly important that the Government, and indeed Ministers, protect themselves in some way.
The suggestion last week was that we should have a commission set up for the purposes of looking at these proposals and at what effect they might have, and move them to parliamentary scrutiny in the appropriate manner. Now we have a proposal in subsection 2 of the proposed new clause introduced by Amendment 69A that would make it a condition that
“a Minister of the Crown has asked the Law Commission”,
as it is presently constituted,
“to report on the effect of … this Act on legal certainty, and the clarity and predictability of the law.”
I am sure I do not need to remind my noble friend of the importance of certainty, and how important it is in the law to have that. We do not have so many comparisons here. I use the term “void for uncertainty” in relation to legislation. For instance, in the United States, all legislation that is “void for vagueness”, as is the term, cannot proceed. In the European Union, it is quite clear that there has to be clear certainty in the imposition of laws on the people who have to obey and follow them. Here we have a situation where we have nothing of the sort. It is important, therefore, that the Government find a way in which they can, if necessary, protect themselves; otherwise, we are going to get in due course a considerable amount of legal interest, as the noble Baroness, Lady Ludford, just referred to. Whether that is through judicial review or other means, it will be so complex and convoluted that, while it might please some lawyers, other lawyers such as myself, of a rather more modest disposition, would find it quite appalling to see this happen. I ask my noble friend perhaps not to dismiss this amendment quite as easily as he dismissed Amendment 44.
Throughout the proceedings I have watched so far in Committee, there have been many references to the democracy which is necessary—and that the Government wish to pursue—compared with the lack of democracy that the Government allege in the European Union. As a Member of the European Parliament—as my noble friend the Minister was too, although for a shorter period—I think it is very difficult to make out a good case for a lack of democracy in the work that was done by me and my other colleagues from Britain in the European Parliament. This is particularly the case in recent years where the European Parliament has had co-decision and a right to block legislation from the Commission. The proposals of the Government at the moment—if they are not put to some form of independent assessment—would leave us with a situation where the secondary legislation lacks every single shred of evidence of democracy. Therefore, I ask my noble friend to seriously consider conceding Amendment 69A when he comes to respond.
Baroness Wheatcroft (CB)
My Lords, I will speak briefly to both Amendments 68 and 69. This Bill, as others have said, creates huge uncertainty for business at a time when business is struggling to cope with so many uncertainties that are outside the control of the Government. But the Government do have control of this. Both amendments require the Government to report on the likely advantages and disadvantages of taking the action they propose. What could be more reasonable? What member of society would expect the Government not to have weighed up the advantages and disadvantages of taking any particular action? How on earth can it be justified to go ahead and do away with protections and rights bestowed by European law, without actually having done some consultation as to what the results are likely to be? There might be disadvantages but, unless the work is done, who knows what advantages will be thrown away. What justification can there possibly be for taking such rash and foolhardy action?
Amendment 68 also requires a resolution in Parliament as to whether such action should go ahead. It is all about bringing back control to Parliament. Why would the Government—who are so keen on bringing back control to the UK—not wish to give Parliament the say on whether EU retained rights and protections should remain? Why should consumers not have the protection of a vote in Parliament? Perhaps the Minister could tell us why he does not want to know what the advantages and disadvantages of legislating would be and does not want consumers to have their rights taken into account.
Baroness Butler-Sloss (CB)
My Lords, I support the three amendments, but I do not intend to speak on them. I just wanted to support and admire what the noble Lord, Lord Kirkhope, had said about the European Parliament. It was about time it was said.
Baroness Brinton (LD)
My Lords, I will add one very brief point as well—following on from my noble friend Lady Ludford when she introduced Amendment 68 and 69A—which is the background in the report of the Delegated Powers and Regulatory Reform Committee, which has been referred to consistently during the preceding three days of Committee. It makes the important point:
“The approach taken in the Bill gives rise to significant legal uncertainty … There is no certainty about the sunset provision itself because Ministers can extend it under the delegated power in clause 2.”
The point about these two amendments is that they set out a framework including, at the end, a very high bar that both Houses of Parliament must agree the same recommendation to go back to the Minister, which would then ensure that the Minister acted on it. It is not just for debate in Parliament, as usually happens with secondary legislation; it is making sure that there is the evidence about the background—which other noble Lords have spoken about—but then both Houses must approve the same recommendations.
I echo the questions that other noble Lords have asked. I hope that the Minister can explain to us why this safety net, as set out by the various stages in these amendments, would not be enough to reassure Ministers that we are helping them to do the job they need to do in this extremely complex matter.
Lord Kerr of Kinlochard (CB)
I am not a lawyer—that will become very apparent from what I am going to say—but I support Amendments 68, 69 and 69A. I am puzzled that the Government say that their aim is to introduce legal clarity. I think back to 50 years ago and Lord Denning’s great speech about EU law coming inextricably up the estuaries and rivers. He did not think that we should join the European Community. He made a remarkable speech, which was correct: over 50 years, EU law has come up the rivers and estuaries. How do you desalinate the common law of England? It grows organically. Which bits do you prune? How do you know which nutrients were of European origin and which were of domestic origin? How do you go about this task? Fortunately, it seems that we are not going to be allowed any role in this, because it is going to be done by a Minister with the stroke of a pen. Surely that cannot be right.
The wonderful letter we got from the Minister at noon today explains what we are doing now in the following terms:
“Retained case law is not being sunset”—
I would have said “sunsetted”, but still.
“However, the repeal of section 4, and the removal of supremacy and general principles by clauses 3 to 5 will mean that after the end of 2023 the effects of these features of EU law would not be expected to be read in to relevant retained case law, when our domestic courts are interpreting and applying assimilated law. However, where there is a restatement of case law concerning the application of principles being removed by clauses 3 to 5 of the Bill … it would be expected that courts would continue to consider relevant case law where it is clear from the restatement that that is the intention.”
If I were the court, I would have no idea how to interpret that. What am I supposed to do? I am supposed to work out what the Minister’s intention was from his restatement. Did he intend that I should still look at that EU law, or not? If I am not to look at it, what am I supposed to look at? Fifty years have passed. Does all that salinated law—all these precedents—have to be ignored? I find it quite hard to believe.
The letter explains:
“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … when they are interpreting and applying assimilated law. Instead, we expect them to apply domestic principles of interpretation.”
What are “domestic principles of interpretation”? We have 50 years of precedent and case law. Is that domestic? I say, yes, it is—but, of course, it is salinated. EU law did affect the development of UK law. So, the reports that are called for in these amendments are absolutely necessary. I feel reluctant to impose on the Law Commission the heavy load that Amendment 69A would place on it. I have great sympathy with the noble Lord, Lord Kirkhope, and I would have preferred his solution to the matter.
I have one other mild grievance with the letter that arrived at noon from Lord Gobbledy of Gook—sorry, the noble Lord, Lord Callanan. It answered a lot of points raised in this debate over the past three days, but not mine. I have now asked four times what the procedure is for getting rid of pieces of EU law—our law—that are to be disapplied and abolished altogether. What we get in reply are examples: we hear about olives, lemons, and navigation in the Skagerrak. I agree with that; no doubt there are several pieces of law that have never been relevant and have no relevance now, and that none of us will miss much. However, there could be others that a Secretary of State might wish to abolish but some of us might take a different view on. For example, if Mr Rees-Mogg were still in charge of this exercise, one could imagine that his might be quite a liberal interpretation of the power to extinguish. What procedure is to be followed? People have to know whether or not laws exist, so there must be some sort of publication. The Minister cannot do this absolutely in private.
Secondly, I would have thought that there would have to be some sort of legal instrument. I do not see how you can pare the statute book without doing so in a clearly legally established and recognisable way. Thirdly, it seems to me that there must be some role for Parliament in that exercise. I cannot see what it is and we have not been told. My questions for the Minister are these: what procedure is going to be used; how will the users of the law know that it has been used; and what role will Parliament have in making the decision?
Lord Collins of Highbury (Lab)
My Lords, I too am extremely grateful to the Minister for his letter; I actually got it on Friday. I certainly welcome it. One of the sentences in the letter that struck me—it hit me in the face, as it were—was in the paragraph at the bottom of the second page:
“The Government is intent on bringing clarity to the statute book, and for citizens and businesses so that they are clear as to the rights that they rely on”.
That is the fundamental issue here; it is certainly the one that I want to concentrate on in our debate on this group. By the way, I am not going to repeat the points about the potential impact as we have had lots of discussion about that.
We are dealing here with known unknowns, if you like. As the noble Lord, Lord Kerr, just said, it is about the idea that we do not know quite what impact the case law and common law that has developed over 50 years has had. Of course we had a very detailed discussion on Clause 1, but Clause 3 is potentially even more serious because it deals not with specific regulations that might be identified on the dashboard—it is now approaching 4,000 pieces of legislation—but with areas where we are not sure whether the legislation is EU-derived, are not sure about the impact of EU law on them, and where decisions will undoubtedly have a huge impact.
These amendments are trying to assist the Government in how to ensure a proper process for identifying these things before anything falls off a cliff edge ahead of this date, and how to ensure proper parliamentary scrutiny. It is a reasonable question in relation to process. This is not about trying to frustrate the Government, as noble Lords have already commented. It is about how we assist the Government in avoiding chaos.
Certainly, this clause requires more than simply cataloguing instruments. It requires us to look into how courts have interpreted decisions and what impacts that will have. Whether it is the Law Commission or another body, the Government must ensure that proper time is allocated to research this so that, coming back to the letter, we have certainty, because businesses require certainty. We have had that debate. Workers require certainty as to their rights. Consumers require certainty. All those things have been impacted by decisions through common law.
Nobody disputes that there may be EU rights, powers, liabilities, obligations, restrictions, remedies and procedures that we could do better without. There is no doubt about that, but let us have a proper procedure for determining it. It cannot be right that we simply have a cliff edge with a dashboard that the Minister repeatedly refers to that does not even quantify them. I think there are 28 in the dashboard that you can consider impacted by Clause 3 out of the 4,000. There are clearly lots more examples.
I am attracted to Amendment 69A signed by my noble friend Lady Chapman, the noble Baroness, Lady Ludford, and the noble Lord, Lord Fox. It provides a clear structure and timetable for us to work through that will ensure a transparent way of dealing with people’s rights. That is the most important element of these groups of amendments. Let us not frustrate what the Government want, but let us do this in a proper way that does not lead to the confusion and chaos which undoubtedly Clause 3 would.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
I thank all Peers who have contributed to the debate. I was getting a bit concerned about the subject of my famous correspondence with the House, but I took on board the observations of the noble Baroness, Lady Chapman, at the end of the last day in Committee, about wanting to see the letter in advance. I am pleased that the noble Lord, Lord Collins, got his on Friday afternoon; I approved it in draft on Friday afternoon. I am sorry that the noble Lord, Lord Kerr, did not get his until noon today. I received it on my parliamentary email at 10 am, so perhaps his email is a bit slow. I did attempt to get it out as early as possible because I suspected that it might come up and I knew that noble Lords would want to read it before the debate. I am sorry that the noble Lord thinks that it is gobbledegook, but that is lawyers for you.
The amendments in this group are Amendment 68 tabled by the noble Baroness, Lady Ludford, and the noble Lord, Lord Fox, Amendment 69 tabled by the noble Baroness, Lady Chapman, and Amendment 69A tabled by all three noble Lords. These would set unnecessary conditions on the commencement of Clauses 3, 4 and 5. Let me start by drawing noble Lords’ attention to why we are making the changes in these clauses. Each of the clauses is vital to the Government’s programme of reforming retained EU law.
Lord Kerr of Kinlochard (CB)
I am grateful to the Minister for giving way. Before he sits down, I refer him to the second paragraph on page 2 of his letter—for which I was grateful, joking apart:
“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … Instead, we expect them to apply domestic principles of interpretation”.
What are these domestic principles?
Lord Callanan (Con)
They are the domestic principles of interpretation that have been used by the courts since time immemorial: the normal procedures they use to apply their scrutiny of UK law. That is the point we are making. It is important that the general principles of EU law, which were introduced into UK law with our accession and which have applied to retained—[Interruption.] Will the noble Lord let me finish making my point before he intervenes again?
Lord Kerr of Kinlochard (CB)
In time immemorial, we were not members of the European Union. Is the Minister saying that we all should go back to pre-1972, and that anything that happened when Denning salt water was coming up the estuaries—anything that happened in the last 50 years—is to be ignored by the courts?
Lord Callanan (Con)
No, I am not saying that at all. Case law is not abolished: courts will still be able to take case law into account. We will use the power of restatement where necessary. Departments will look at whether the general principle of EU law, which we are abolishing with this legislation, affects the particular statutes that they are retaining, and they will adjust them accordingly so that the same policy effect is maintained. Of course I am not suggesting that we go back on what was agreed. The principles of case law will remain.
Lord Kerr of Kinlochard (CB)
We are talking about the courts and cases. Surely the courts will have to look at the domestic principles of interpretation which they are going to apply. Will they be given any guidance?
Lord Callanan (Con)
The courts will use the same principles they have used for the interpretation of UK statute for many hundreds of years.
Lord Collins of Highbury (Lab)
Workers will want to know precisely which of their rights will be impacted by this clause. Of the current numbers, can the Minister identify how many regulations in the dashboard will be impacted by Clauses 3 to 5?
Lord Callanan (Con)
We will keep the dashboard updated as work progresses. As the noble Lord knows, we had this debate in the first grouping on workers’ rights. We are proud of our record and have given a commitment that the UK will not go back on our excellent principle of workers’ rights, which are far in excess of that guaranteed by European law. I see that the noble Baroness, Lady O’Grady, is smiling.
We have had this debate on the issue of the dashboard, which noble Lords have raised on many occasions, but let me restate the Government’s position. We are happy that departments know what legislation they are responsible for. Their lawyers are still going through it to determine which is or is not retained EU law, but we have introduced technical amendments to make it clear that, by default, if they are not sure, they should retain that law. No detriment or challenge could be made if they did that.
Lord Kirkhope of Harrogate (Con)
I have just realised that my noble friend referred a moment ago to this Parliament’s lack of involvement in EU matters or legislation. He and others here are always putting forward that Ministers of this Government are accountable to Parliament—although, we sometimes argue, not sufficiently. Of course, they make up the Council of Ministers, which they attend in order to approve all European legislation. He surely therefore recognises that Parliament is almost directly linked to European legislation, but he says that there is no UK parliamentary input. I just wanted to correct that point.
Lord Callanan (Con)
It is slightly off the point, but I hope the noble Lord is not trying to argue that the UK Parliament is President in the Council of Ministers.
Lord Collins of Highbury (Lab)
My Lords, the point that I want to probe a bit more is the known unknowns. We do not really know what will be impacted. I will read from the noble Lord’s letter:
“A comprehensive review of all retained EU law on the UK statute book began in September 2021, and work is well underway by departments to assess line by line, the desired policy intent and effects of retained EU law on the statute book and to ensure that REUL that needs to be preserved, is preserved”.
What and who decides the policy intent? The Bill does not tell us anything. That is the biggest concern and why these amendments try to assist the Government by providing a process where we can have greater transparency. The noble Lord is unable to give an answer at this stage of the game, and we are not far away from the cliff edge that we have all been talking about. He cannot tell me what the dashboard numbers are. Can he tell us the policy intent identified in his letter?
Lord Callanan (Con)
The reference in that is to the policy intent of the particular piece of retained EU law. The point we are making is that if the abolition of the principles of EU law, the supremacy and interpretive effects, changes the policy intent of that particular piece that is worth retaining then of course it will be changed using the powers in the Bill—the powers of restatement, which we will debate later—to preserve the original policy intent, as would have been approved by Parliament, if Parliament had any role in approving that in the first place.
Baroness Brinton (LD)
This takes us back to the Delegated Powers and Regulatory Reform Committee report, which specifically made the point that there is not,
“an indication of which legal or policy areas the Government think should be retained, amended or revoked”.
It says absolutely specifically:
“The Government need to explain how they propose to use the powers in the Bill. They also need to explain what is behind the headlong rush and the impending and arbitrary end-of-year deadline”.
With the greatest of respect to the noble Lord, the letter does not say that. I think noble Lords would agree that we have not had that explanation over the last three days in Committee either.
Lord Callanan (Con)
I am sorry if the noble Baroness believes that. We have debated the principle of the sunset. I accept that she presumably has a different position from mine, but I have stated the Government’s position on numerous occasions. The dashboard will continue to be updated as departments come to decisions on what they want to do with their stock of retained EU law.
Baroness Ludford (LD)
My Lords, while it is in my mind, I am not sure the Minister answered my noble friend Lady Brinton’s question, which was, in citing the Delegated Powers Committee report, to ask what was the policy intention and to point out that the Bill is a blank sheet of paper as far as that is concerned. That is what is completely worrying us, because of its effect on the real world and the lack of any parliamentary grip on this process.
For him to say that Amendment 69A would involve the Law Commission in Government policy misrepresents the amendment—no doubt inadvertently—which talks about asking the Law Commission to report on,
“the effect of sections 3, 4 and 5 … on legal certainty, and the clarity and predictability of the law.”
That is surely within the purview of the Law Commission. That would not involve the Law Commission in policy. I fear that the Minister misrepresented Amendment 69A, perhaps in his enthusiasm.
Lord Callanan
“Retained EU law governing the CAP direct payment schemes Retained direct EU CAP legislation | Assimilated law governing the CAP direct payment schemes Assimilated direct CAP legislation” |
This amendment renames bodies of law relating to direct payments to farmers as regards times after the end of 2023.
Lord Callanan
““retained EU law governing the CAP direct payment schemes” and “retained direct EU CAP legislation” have the meaning given by section 2 of the Direct Payments to Farmers (Legislative Continuity) Act 2020 (as it has effect on the day on which this Act is passed).”Member’s explanatory statement
This amendment is consequential on the Minister’s amendment to Clause 6, page 4, line 15 .
Member's explanatory statement
This amendment restores discretion to the higher court.
Baroness McIntosh of Pickering (Con)
I thank my noble friend the Minister for the letter which we received during the course of this morning. I am slightly concerned that he did not reply to the question on the fact that the Scottish Parliament has withheld its consent, or tell us the Government’s response to that, nor to the amendments that the Scottish Parliament has laid on the table. I would be grateful if at some point that could be addressed.
In speaking to the amendments in my name in this group, I will speak also to those tabled by the noble and learned Lord, Lord Hope, which I have also signed. I would like to say a general word about Clause 7, on the role of the courts. I am grateful to the Law Society of Scotland for preparing me on the amendments that I have tabled today. This clause deals with Section 6 of the European Union (Withdrawal) Act, which dealt with the interpretation of REUL and the application of retained case law by domestic courts.
The amendments tabled to Clause 7 are quite complicated and convoluted. I would hazard to say that it is difficult to understand the effect of the amended provisions. Therefore, the amendments that I have put forward should make it clearer that, if Clause 7 simply substituted a new Section 6 of the European Union (Withdrawal) Act, the new Section 6B, which Clause 7(8) proposes to insert into the European Union (Withdrawal) Act, would provide that UK or devolved law officers could make a reference to the Supreme Court, the High Court of Justiciary or the appropriate relevant appeal court, as defined by proposed new Section 6A and the circumstances set out therein.
Even though new Section 6B(7) provides that any decision by the court to which reference is made does not affect the outcome of the proceedings, the view of the Law Society of Scotland, which I share, is that it is contrary to the interests of justice that the law officers can be empowered to make a reference in a civil case that has been concluded and where there has been either no appeal or the appeal itself has been concluded. This contravention of the principle of finality and interference by the state in civil litigation needs to be explained and justified by the Government; I urge my noble friend the Minister in summing up to take the opportunity to do so.
I understand that the innovation would apply only on a point of law on retained case law, thus diluting the unity of civil law. Further, any such power of reference would not be comparable, for instance, to the role of the Attorney-General or the Lord Advocate in criminal proceedings. Such law officers have a direct interest and an integral role to play in all such proceedings, including instituting appeals or references on points of law. Law officers do not currently have that role in civil proceedings and it remains to be seen why they should have it in respect of one particular category of civil case law. Again, I seek clarification from my noble friend.
New Section 6B(2) identifies the law officers who can make a reference. The Lord Advocate’s power to make a reference is limited to where the point of law relates to the meaning or effect of relevant Scotland legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or a matter of law on reserved matters. Again, the Law Society questions whether it is appropriate that any UK law officer other than the Advocate-General for Scotland should be able to make a reference to the High Court of Justiciary or a relevant appeal court, which is the Scottish court, on a matter of legislation. I refer to Taylor Clark Leisure plc v the Commissioners for Her Majesty’s Revenue in 2015.
New Section 6C provides that each UK law officer and devolved law officer is entitled to notice of proceedings. The Lord Advocate’s power to intervene is limited to where the argument relates to the meaning or effect of relevant Scottish legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or to the law on reserved matters. Again, I question whether it is appropriate that any UK law officer other than the Advocate-General for Scotland will be able to intervene on a matter of Scottish legislation before the High Court of Justiciary or a relevant court of appeal, which is the Scottish court. I hope the Minister will take the opportunity to clarify those points.
On Amendment 81, Clause 7(3) as currently drafted introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors when deciding whether to depart from any retained EU case law. It is the view of the Law Society of Scotland, and I share that view, that the courts must be able to exercise discretion when deciding such matters, and that a statutory obligation to consider these matters is an unjustifiable intrusion on judicial independence. I therefore hope the Minister and the Government will accept leaving out “must” and replacing it with “may” in Clause 7 in that regard.
Amendment 82 would delete new subsection (5)(a) that Clause 7 currently inserts into Section 6 of the European Union (Withdrawal) Act. Again, as currently drafted, Clause 7(3) introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors in deciding whether to depart from any retained EU case law. One of those factors is contained in new subsection (5)(a):
“the fact that decisions of a foreign court are not (unless otherwise provided) binding”.
In the view of the Law Society of Scotland, judges are well aware that decisions of foreign courts are not, unless otherwise provided, binding. Therefore, in the society’s view, and I share that view, it is unnecessary to prescribe that the judiciary take the matter into account, and I recommend on behalf of the Law Society of Scotland that this provision be deleted from Clause 7.
Amendment 84 would delete “proper”. The reason for that is that the courts must be able to exercise discretion in deciding such matters as set out in Clause 7(3) when deciding to have regard to certain factors to depart from any retained EU case law. Creating a statutory obligation on the courts to consider how retained EU law constrains the proper development of domestic law imposes an unachievable objective on the judiciary by requiring judges to assess what the development of the law might be and to determine whether that development will be “proper”. That is essentially a matter of policy, which is the province of government rather than the judiciary.
I would like to briefly refer to the points raised in Amendments 95 to 99 in this group from the noble and learned Lord, Lord Hope of Craighead, as well as Amendment 99A, which go to the heart of the role and function of the Lord Advocate and the particular arrangement that pertains to what Scots law should be in this regard. I omitted Amendment 94, which, again, is a consequential and probing amendment seeking to delete new Section 6B. I look forward to hearing from other noble Lords who will speak to amendments in the group, but with those few remarks, I beg to move Amendment 81.
Baroness Butler-Sloss (CB)
My Lords, I agree with what has just been said by the noble Baroness, Lady McIntosh, and I speak only with reference to the Court of Appeal of England and Wales, of which I was a member for about nine years. We regularly considered cases from all over the world—the High Court of Australia, the Supreme Court of the United States, the Hong Kong Court of Final Appeal, or any court that had similar law to the law of England and Wales. We considered them, but none of them was, or is today, binding. It is absolutely unnecessary to put this in, and I have to say I find it offensive to judges who have treated these cases in the way I have just explained for many years. I was on the Bench for 35 years, and I looked at these cases many times. I would be offended to be told I could not apply them as part of English law, because I knew that from my childhood, for goodness’ sake.
Viscount Hailsham (Con)
My Lords, I am going to speak briefly about Amendments 83, 84, 87, 87A and 87B. I do so as a jobbing barrister, with some diffidence, because I note that the noble and learned Lords who have put their names to these amendments have not yet spoken. Indeed, I do not think they are in the Chamber. I am against the provisions in the Bill, and I am going to outline my reasons.
When drafting legislation, we need to ensure clarity. Laws need to be clear, unambiguous and capable of being understood by members of the public, otherwise compliance is impossible. Furthermore, to ensure justice, advisers need a degree of certainty and predictability as to what the law is or is likely to be when they have to advise on it, otherwise, as I say, justice will not happen. When one applies those criteria to the provisions in the Bill, one becomes profoundly uneasy. The phrase found in new paragraph (b) in Clause 7(3), “any changes of circumstances”, is astonishingly broad. It would apply to any change of circumstance without any regard to degree or nature.
The same sort of criticism applies to new paragraph (c), on
“the extent to which the retained EU case law restricts the proper development of domestic law.”
But what do we mean by “proper development” of domestic law? Who is to judge what is proper? Are we to contemplate judge-made or statute law, which are extraordinarily different? Does this concept not drag judges into political and perhaps partisan areas? A determination by a judge on what the law ought to be is, in many senses, to intrude into a political decision that judges would be well advised to avoid.
Precisely the same criticisms apply to the word “influenced” in new paragraph (a) in Clause 7(4), to which Amendment 87 applies. They also apply to the phrase “would depart”, to which Amendment 87A applies. Giving practical interpretation or advice on the meaning of these words is almost impossible, which inevitably impacts on compliance by individuals and the doing of justice by the courts. For the reasons that I have briefly outlined, these proposed provisions, as presently incorporated in the Bill, are profoundly objectionable and should not feature in this legislation—but, in conclusion, I say that this applies to the entirety of the Bill.
Lord Etherton (CB)
My Lords, as a result of the lack of time to address the amendments to Clause 7 last Thursday, the noble and learned Lords, Lord Judge, Lord Hope and Lord Thomas of Cwmgiedd, are not able to speak to the amendments to Clause 7 in their names. As your Lordships will see, I have been asked to do so on their behalf. These are Amendments 83, 87, 87A, 87B, 90, 91 and 93. I will also support Amendments 85 and 88 in the name of the noble Baroness, Lady Ludford. A number of these amendments are quite technical so, rather than weary the House with detailed observations on each of them, I will take a broad approach, in the hope that the Minister will permit a meeting when the others can be elaborated further.
Broadly speaking, the amendments fall into two parts, the first of which comprises amendments to the provisions in Clause 7(3) and (4), about the circumstances in which the court may depart from retained EU case law and retained domestic case law—these are Amendments 83 to 89. The second group concerns the procedure on references of points of law arising from retained law in lower courts or tribunals—this is in Clause 7(8). Like many of the earlier provisions of the Bill that were discussed, the issue of legal certainty runs through the first group of amendments. They either involve removing provisions that create uncertainty, or invite the insertion of new provisions to bolster certainty and predictability. The noble Viscount, Lord Hailsham, referred to one of the most egregious of these tests: that of
“any changes of circumstances which are relevant to the retained EU … law”—
this is in Clause 7(3), which inserts new Section 6(5)(b) into the 2018 Act. I also cite another test:
“any changes of circumstances which are relevant to the retained domestic case law”—
this is in Clause 7(4), which inserts new Section 6(5ZA)(b) into the 2018 Act. These are too wide, too uncertain and, above all, subjective.
Looking at the issue from a slightly different perspective from those that have been debated in the past, I will concentrate, in broad terms, on the position of UK plc. Legal certainty is critical to the position of the courts of this country as one of the most important litigation centres in the world. The United Kingdom attracts international disputes of huge value and complexity because of the intellectual standard of the judges in our higher courts, the absence of corruption in the judiciary and, critically, the predictability and certainty of our legal principles.
This is true not only of general business cases but of particular specialist areas, such as intellectual property. These cases contribute very large amounts to our GDP through the engagement of lawyers, bankers, accountants, experts and other relevant disciplines. In its report, published on 7 December 2022, TheCityUK stated:
“Legal services contributed £30.7 billion to the UK economy in 2021”,
posting a trade surplus of £5.4 billion, and:
“Parties from 75 countries used the Commercial Courts in 2021/22”.
It continued:
“The UK is the largest legal services market in Europe (valued at £41 billion in 2021) and is second only to the US globally.”
Unpredictability and uncertainty in the law and dispute resolution put this pre-eminence at risk. As a country, we cannot afford to allow that to happen.
In large international cases, the claimants usually have a choice of places in which to litigate. The idea that existing law can be departed from because of any changes in circumstances which the court may consider relevant—which could include, for example, the political manifesto or aspirations of the Government of the day or some new government policy—would greatly undermine the attractiveness of this jurisdiction.
I will illustrate this briefly by reference to what, in the case of many major businesses, is one of their most important assets: their intellectual property. Our trademark law is derived entirely from EU law. Our Trade Marks Act 1994 gives effect to an EU directive. Since its enactment, the case law has been determined partly by EU case law, especially where there has been a preliminary reference to the Court of Justice of the European Union or an appeal to the Court of Justice of the European Union from the EU Intellectual Property Office, and partly by our domestic law in interpreting and applying the 1994 Act. In fact, there is a huge body of EU law relevant to trademarks; it therefore falls squarely within Clause 7 of the Bill and the amendments to the 2018 Act introducing the “any change of circumstances” test.
Large international companies, such as Sony, Nokia, Eli Lilly or Pfizer, to name but a few, which conduct their business in many countries across the world, generally have a choice as to the country in which they wish to bring their proceedings. Although, strictly speaking, each country can only make decisions limited to its territorial boundaries, a decision in any one of the major IP litigation centres, such as France, Germany, the Netherlands or the United Kingdom, will be accepted as determinative everywhere. The fact is that, if there is a broad, unlimited “change of circumstances” principle for departing from the existing law, one of the parties to the litigation will almost always invoke it. If they do so, and do so successfully, there is absolutely no certainty as to what would replace the existing law. All this would fatally undermine the certainty of our law and be a huge disincentive to litigating in this country when another is available.
The same is equally true of design law and registered designs. In this country, that law, set out in the Registered Designs Act 1949, has been substantially rewritten, particularly in relation to what is a registrable design, to give effect to an EU directive. This is also true of large parts of our law relating to copyright. The word “influenced” in the proposed new Section 6(5ZA)(a)—see Amendment 87—has been referred to earlier in today’s debates. It would, in some trademark, design and copyright cases, be difficult now to disentangle which parts of the law have been influenced by EU law and which are purely domestic in origin.
In the area of patent law, the same position applies in relation to supplementary protection certificates, which operate to extend the patent in certain circumstances. Litigation in these areas of the law can be of huge value and economic significance.
Lord Hodgson of Astley Abbotts (Con)
The Committee will be aware that I am not a fan of this Bill because it marginalises Parliament. Therefore, I was pleased to be able to put my name to and speak to the group of amendments beginning with Amendment 32, moved by the noble and learned Lord, Lord Judge, and also spoken to by the noble Lord, Lord Lisvane.
I have to say, as I said the other evening, that I sometimes find that we seem to be facing in all directions. I mentioned before about how one group of people were concerned to get clarity as soon as possible and therefore wanted to foreshorten the sunset clause. There were others who wanted to have time for consultation to bring people along and therefore lengthen the sunset clause. I never quite heard a serious reconciliation of those points of view.
I have to say that on this group of amendments, I have the same concern. I recognise that I am putting my head into not one legal lion’s mouth but several simultaneously, and I do so with due care, not being a lawyer. First, I note the emphasis on the importance attributed to certainty, clarity and predictability. That comes up in Amendment 85, in the names of the noble Lord, Lord Anderson, the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Ludford. It is referred to again in Amendments 86, 88 and 89. I get that: even I, as a non-lawyer, can see that certainty, clarity and predictability are quite important.
Then I look at some of the other amendments—Amendments 81, 90 and 92—and I see that we are changing “must” to “may”. As a non-lawyer, I feel that “must” to “may” does not increase predictability and clarity. Then, in Amendment 91, we have
“ought to be considered at that time”.
That seems to me, from the point of view of clarity and predictability, to run in completely the opposite direction. Where we had, in paragraph 4, on page 7, “a court must”, it is now “a court may”, and to the end of that is added
“and ought to be considered at that time”.
I am happy to be corrected because I am not a lawyer, but as a non-lawyer this seems to me to be running in both directions, and not to have the sort of clarity, predictability and certainty that I can quite understand. It seems to muddy waters that a previous series of amendments had sought to clarify.
Baroness Ludford (LD)
My Lords, I shall speak to Amendments 85 and 88, as a co-signatory of both those amendments, led by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot be here today. He has been kind enough to share his thinking with me.
Baroness Ludford (LD)
And his notes, indeed, although any use I make of them is entirely down to me.
I want to start by reflecting that in the last group, the noble Lord, Lord Callanan, who is no longer in his place, rather airily dismissed a question from the noble Lord, Lord Kerr, who was seeking to find out what “domestic principles of interpretation” means. The noble Lord, Lord Callanan, said, “Oh, it is quite clear: the courts know what ‘domestic principles of interpretation’ means”. Fine, we rely on the courts, as we do. I think it is an answer to the noble Lord, Lord Hodgson: the courts know what they are doing, so if we use the word “may”, that is predictability, because the courts generally follow precedent and know what they are doing. If we tell them they “must” do something, that actually constrains them in a rather awkward and unpredictable way. That is my understanding, anyway. I found the contribution of the noble and learned Lord, Lord Etherton, masterful.
The Minister told us in discussing the last group that the courts know what they are doing, but in Clause 7 they are told what to do by the Government. As I think the noble and learned Lord, Lord Etherton, said, the drafting appeared to lack any litigation or judicial experience. The noble and learned Baroness, Lady Butler-Sloss, pointed out—I cannot remember her exact words, but I interpret what she said—that she found it rather impertinent of the Government. I may be over-reading what I heard, but the courts know what they are doing and the Government come along and are prescriptive about what they are allowed to do. Arguably, Clause 7 is unnecessary, but the amendments seek at least to improve it. By the way, I am grateful to the Law Society of Scotland for pointing out that the amendments to Clause 7 are pretty complicated and convoluted, and it might have been better just to provide an alternative text to substitute a new Section 6 of the EU withdrawal Act, rather than making pages of amendments.
The fact is that the higher appeal courts are already not bound by retained EU case law and can depart from it if it is right to do so. This test is well established, having been set out in the House of Lords Practice Statement in 1966. As the noble and learned Lord, Lord Etherton, said, the Court of Appeal comprehensively considered the power to depart from retained EU case law in the case of TuneIn Inc v Warner Music UK. It considered various factors but decided not to depart from retained EU case law. You would get another impression from government explanations and commentary.
The courts in this case, and in other scenarios, have made comprehensive analyses and have given balanced reasons why and when the courts should or should not overturn settled case law. One of the things cited in that Court of Appeal case was the need to balance the need not to
“unduly restrict the proper development of the law”
with
“too rigid adherence to precedent.”
They are conducting that balancing exercise, but they drew particular attention to the special need for certainty in the law. Therefore, they gave legal certainty a particular value which must not be overlooked.
Lord Hodgson of Astley Abbotts (Con)
I am listening carefully to what the noble Baroness is saying, but it has nothing to do with “predictable”. Everything she is saying about the way the law works is unpredictable because it depends on how the courts interpret it at the time. The idea that we are putting the emphasis on predictability in these amendments seems to me to be inaccurate.
Baroness Ludford (LD)
I trust the courts; clearly, the noble Lord does not. I believe that the courts do know what they are doing, and that we have an extremely experienced and valuable judiciary. That is why, as the noble and learned Lord, Lord Etherton, pointed out, lots of people come here to use the UK courts, particularly in London. The Government do not seem to have given any consideration to the fact that they are undermining the extremely valuable legal services that London sells to the world. They did not give consideration to service industries during Brexit generally, but this one brings in a lot of money for the UK economy and is being totally undermined, not least by this Bill.
Legal certainty was given a particular value by the Court of Appeal, but the Bill overlooks it, as many noble Lords have said, and detracts from the courts’ ability to do their job. In the notes from the noble Lord, Lord Anderson—which, as the noble Viscount, Lord Hailsham, pointed out, I do have—he points out that Amendments 85 and 88 in his name are very moderate. Amendment 85 leaves intact the power of the courts to depart from retained EU case law, and Amendment 88 would retain domestic case law. They even leave intact the three factors the Government wish them to have regard to. The noble Lord says that he is persuaded, having seen Amendments 83, 84 and 87, that those factors—if they are to be kept—really need to be amended, as suggested by the noble Baroness, Lady McIntosh, and the noble and learned Lords, Lord Hope, Lord Judge and Lord Thomas. The factors specified in the clause at present each militate in favour of departing from existing law. It seems to have been concluded that the judges require a powerful shove in the direction of the unknown. That is another seam of this Bill: we are jumping off a cliff edge and into a void.
All this is the antithesis, as has been said several times—the noble Lord, Lord Deben, who was interrupted at one point by the Government Front Bench, said how un-Conservative this Bill is. It requires leaps into voids and unknowns and off cliffs—
Viscount Hailsham (Con)
The noble Baroness is entirely right about the leap into the unknown. Does this not emphasise the point that members of the public cannot understand what the law is? That prejudices compliance and the ability of advisers to give good advice.
Baroness Ludford (LD)
The noble Viscount is absolutely right, and I agreed with every word of his earlier contribution.
What the amendments do, instead having of a one-way impetus to the judges, is to introduce some balance to the exercise. Both these amendments would introduce two factors—they are repeated for the two scenarios—which might incline the judge in favour of caution:
“the consequences of disturbing a settled understanding of the law”
and
“the importance of legal certainty, clarity and predictability”.
The amendments give the judges more space for their judgment, which is—I am quoting the notes of the noble Lord, Lord Anderson—“after all what judges are for”. What is the point of having judges if all they have to do is read the Retained EU Law (Revocation and Reform) Bill? Good luck with that.
Then the noble Lord, Lord Anderson, says of the quotation and reference in the Explanatory Notes to the Court of Appeal case of TuneIn Inc v Warner Music Ltd that “this, I am afraid, is disingenuous and I do hope the Minister will not repeat it from the Dispatch Box”. I am looking at the Minister—the noble and learned Lord, Lord Bellamy—and hoping that he does not do that, because TuneIn was a case in which the Court of Appeal decided not to depart from the jurisprudence of the CJEU for a number of reasons which were carefully enumerated. One decisive factor was that to
“return to the drawing board and start all over again … would create considerable legal uncertainty”.
So, the judges are stressing continuity, predictability, being able to weigh up factors and not being constrained. I say to the noble Lord, Lord Hodgson, with respect, that he has got this wrong: if you say that the judges must do something and allow them to take into account only certain factors, it does not allow them to exercise their training and judgment. That is what we pay them for: to continue the law to provide the predictability that we need.
I finish by conveying that the noble Lord, Lord Anderson, wanted to register his strong support for Amendments 90 to 93 in the names of the noble and learned Lords, Lord Hope, Lord Judge and Lord Thomas. The noble Lord, Lord Anderson, said: “They know a thing or two about the pressures of business in the highest courts, and this Bill is going to create a tsunami of business for lawyers. A sturdy floodgate is needed if those courts are not to be swamped, and these amendments provide one.” I respectfully recommend these amendments to the Committee.
Lord Whitty (Lab)
My Lords, your Lordships may have noticed that there is a rather cruder amendment in my name towards the end of this group: Amendment 99A. I am not a lawyer, but much of my life in politics and trade unionism and as a consumer champion has been defined by decisions of the British courts—some of the most important of which have been influenced by European law or by the judgments of the European courts. The advances we have made on equalities, employment rights, a number of consumer items and the environment, and indeed on issues such as intellectual property and digital protection and so forth, have been in large part—not entirely; I will not overstate the case—affected by European law, now called retained EU law, or the European courts’ own judgments which have been followed by the British courts.
In the exchange between the noble Lord, Lord Callanan—he is not here at the moment; I welcome the noble and learned Lord, Lord Bellamy—and the noble Lord, Lord Krebs, the noble Lord, Lord Callanan, said that the courts will go on interpreting cases as they have done from time immemorial. However, from time immemorial, the courts have interpreted the law on the basis of what is on the statute book at that time. They continue to do so until that law is changed by this Parliament. The implications of parts of Clause 7 are that that will no longer be the case; that the courts will need to have less regard to the types of cases that arose because they were influenced, at least in part, by European law; and that European decisions will not need to be held in the same regard in future. That is the purpose of Clause 7, which is why my amendment would delete it.
I largely agree with the noble Baroness, Lady Ludford, that it could be rewritten—we do need some guidance on case law—but this is taking it in entirely the wrong direction and destabilising what has, from time immemorial, been the basic role of the British courts in interpreting legislation. If the Government and Parliament change the law, that changes it; some of those cases no longer have the same effect as they do at the moment. However, if we take Clause 7 as it stands, we are undermining a number of improvements in the conditions of our people and, at the same time, undermining the credibility, consistency and historical role of our courts. I therefore suggest to the Government that they should remove this clause. If the Bill proceeds—noble Lords know that I am not in favour of it—the Government could come back with a rather more sensible Clause 7. However, as it presently stands, it is one that we ought to oppose root and branch.
The role of our legal system is being undermined by a political doctrine that has yet to find its way into the legislation and the statutory law of our land. That is a dangerous road that we should not go down; I therefore suggest that we remove Clause 7 and think again.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have no legal training, so I going to rely on noble and learned Lords to tell me whether I have understood this whole section properly. It seems a bit odd.
In contrast to the first clauses of this Bill, which have been designed by the Government to take power away from Parliament—all the decision-making process and scrutiny—Clause 7 seems designed to outsource the task of making sense of the huge legal mess in the Bill. It is wrong on many levels but, in particular, it calls on judges to make political decisions that Parliament ought to take instead. The Bill is potentially going to create a huge legal mess; it does not seem fair for the Government to outsource this issue. That is worrying enough on its own, but it is all the more worrying because of the way in which this Government have demonised lawyers and judges over the past two or three years. They have been scapegoated at every twist and turn of the Brexit process. It has been a nightmare to see people who clearly have our best interests at heart being demonised in this way.
Clause 7 seems to have a very specific purpose. Forgive me if my language is oversimplified but, quite honestly, the Government are making a huge legal mess and are going to ask other people—judges, lawyers and the courts—to sort it out for them so that those people will take the blame when it all falls apart. Can the Minister explain whether I have understood it properly?
Baroness Chapman of Darlington (Lab)
My Lords, I have been looking forward to this group of amendments because I thought that this might be the moment when we got to the nuts and bolts of how this is all going to work. It is a real pleasure to see the noble and learned Lord, Lord Bellamy, in his place for this group. We welcome him and hope that he can provide some clarity on the Government’s intentions here. I have tabled a couple of amendments but all the amendments in this group attempt a similar thing, which is to neuter Clause 7 to some extent and, should Clause 7 persist, to balance out some of the instruction to courts.
There are some very helpful amendments, particularly those tabled by the noble Lord, Lord Anderson, which have been referred to by others. What troubles me most about this is that we are endangering the legal certainty, clarity and predictability that are so important. The problem is that retained law will now be reinterpreted. Law can now be given a fresh interpretation so that laws which are still in force as of 31 December 2023 might mean something different from what they meant when they were passed and from how courts have interpreted them if they have been considered by the courts previously. They will mean something else after the end of this year.
From the citizen’s point of view, a major requirement of law is that they know what the law means. If we pass this Bill, that requirement no longer applies to this section of law—in respect of huge swathes of important regulations, from environment and employment to product safety and consumer protections. I will not go into all the examples that we have been talking about on previous days, but the Minister will know what I am trying to get across to him. We just do not know what the effect of this will be. It is impossible to tell from the Bill as it is drafted. The Government cannot possibly know either. They cannot know today, when they are asking us to consider this legislation, the effect that applying different canons of construction will have on thousands of pages of regulation. No Government could think that the best way to remove EU law is to replace it with law the meaning of which is yet unknown. That was my understanding of this, and I am grateful to my noble and learned friend Lord Falconer of Thoroton, who took time yesterday to talk to me about this, to ensure that I was getting this right. This is the situation as he sees it as well. It is quite extraordinary.
I note the remarks of the noble Baroness, Lady McIntosh, on the coherence of civil law, which no one else has referred to. I had not considered this before listening to her speech. She made an important point there. Her points about Clause 7 in relation to the operation in Scotland are also important and it would be very useful if the Minister could respond to those specifically.
We have had some great experience brought to this group, not least by the noble and learned Baroness, Lady Butler-Sloss. It would be wise of the Minister to respect that contribution, which I am sure he will. The noble Viscount, Lord Hailsham, asked: who will judge what is proper? This gets to the heart of this clause and why we are concerned about it. Who will decide, and by what criteria? Clause 7(4) says:
“A higher court may depart from its own retained domestic case law if it considers it right to do so having regard to”,
before going on to list other things.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
I thank all noble Lords who have tabled amendments in this group. I will start with some general comments and observations on Clause 7 and thereby deal also with Amendment 99A, tabled by the noble Lord, Lord Whitty, which would remove Clause 7 altogether.
In short, Clause 7 gives higher UK courts greater flexibility to depart from retained EU case law than is currently the case. I emphasise first that we are talking about appeal decisions. First-instance courts continue to be bound and that is an important part of any answer to the points raised about legal certainty. Currently, the Supreme Court or the High Court of Justiciary in Scotland, and other higher courts, must apply the same tests that they would apply if departing from their own previous case law.
Clause 7 lowers the bar somewhat. It provides that, in deciding whether to depart, the court must have regard to, among other things, the principle that decisions of a foreign court are not, generally speaking, binding in UK courts; any change of circumstances relevant; and the extent to which retained EU case law restricts the proper development of domestic law. I will come to the point made by the noble and learned Baroness, Lady Butler-Sloss, and to the questions of change of circumstances and the word “proper”, in a moment.
That is a lower bar than is currently the case. It does not necessarily imply a cliff edge or any floodgates; it is looking ahead. We do not know what circumstances will arise as the next 20 or 30 years pass, how things will change and whether existing retained EU case law should be followed. The clause essentially says that it is for the higher UK courts to determine how that case law should develop and that it is not the case that previous EU case law can be changed only if the ECJ says yes. Without such a mechanism it is difficult to credibly say that one has withdrawn from the EU, so, in the Government’s view, some such mechanism is needed.
That is the first and general point. The second is that much, but not all, retained EU law is highly influenced by a context that is no longer relevant to the UK: for example, the need to promote among the 27—previously 28—member states the free movement of persons, goods, services and capital, and to protect the single market. All of that is reflected in the case law. There is also the common agricultural policy; the quite different institutional structures of the EU, notably the role of the Commission; the, if I may say so, laconic nature of much EU legislation; and the inevitable challenge of finding a common denominator among so many different legal traditions, languages and national backgrounds while, internally, working entirely in French.
One can pay the highest tribute to the way that the CJEU has navigated these difficulties over the years, and I readily do. But it does not follow that case law developed in those circumstances is necessarily suitable for the UK in the future, particularly in a fast-changing world with such things as the digital economy, artificial intelligence, climate change, genetic science, data protection and so forth. These present novel challenges all the time. In the Government’s view, the UK’s higher courts should be fully equipped to deal with them without being constrained by EU jurisprudence if they feel that they should depart therefrom.
Thirdly, if your Lordships will forgive me saying so, we have in this country a pearl beyond price: the common law. It has nurtured and protected us for centuries and has successfully taken root all over the world. By some measures, it is the world’s most widely used legal system. I was asked whether I would refer to the Warner Music case, which is referred to in the Explanatory Notes. The only reference I will make to that case is that made by the Master of the Rolls, the right honourable Sir Geoffrey Vos, who observed that the CJEU is “very far” from being a common law court. In other words, it is a quite different animal from the courts that we traditionally have in this country. We could spend much time philosophising but, in my humble experience, the continental legal tradition places emphasis on identifying abstract legal principles from which a solution may be deduced, while the common law starts from the other end, as it were, with the facts of a particular case and how those facts relate to other decided cases and the legislation in question. The art of distinguishing cases and building a legal system via a mosaic of interrelated cases has been perfected over the centuries by the judges of this country and other common law jurisdictions.
A very experienced solicitor working in a deprived part of north London said to me, when he heard that I had some previous association with the EU, “Don’t let them weaken the common law.” The common law is a people’s law. It comes up from the bottom; it does not come down from the top. In the Government’s view, it is very important that we never underestimate, underplay or weaken the great common law tradition that we have in this country.
That forms an essential part of the background to this clause, which is essentially to enable our judges to use the best of the common law traditions to take us forward. The Government are not saying that any one approach is better than another, only that the common law is in our DNA. Clause 7 will reinforce the common law tradition and allow it to flourish.
That being the essential rationale, I turn to the various amendments suggested to modify the new tests as set out in the Bill. I will first comment on the theme of legal certainty. The common law, as it has developed, has always been fully aware of the need to preserve legal certainty, but that has not inhibited the proper development of the law as the needs arise—I will come to that in a moment. It is always a question of balance. If one bakes in or gives priority to legal certainty one would never change anything. Legal certainty will of course remain an important circumstance, as it was in the Warner Music case—no doubt judges will have regard to it; it will be up to them—but we cannot say that legal certainty means that we have to slavishly follow old EU jurisprudence until the cows come home just because of legal certainty. We have to find a balance. That is one factor among others, but not necessarily a dominant factor.
I turn to the specific amendments. Amendment 81 was moved by my noble friend Lady McIntosh. I am not completely sure that we have in this group all the amendments to which she originally referred in her speech, but we will sort that out through the usual channels, if we may. Amendment 81 would reduce the “must” have regard to “may” have regard. In the Government’s view, this would again tend to bake in the existing situation and enable the courts to ignore changes of circumstances, and to not allow or to continue in a state of undue deference to the Court of Justice in Luxembourg.
I say “undue”, by which I mean that some deference is clearly highly necessary. In particular, as the noble and learned Lord, Lord Etherton, said, parts of our law where the statute is essentially an EU creation may well be different situations from other parts of the law. I agree, although I am bound to say, on the legal certainty and accessibility of case law to the general public points, that I very much doubt whether any member of the public, having fought through the 25 often conflicting decisions of the Court of Justice of the European Union on the question of communication to the public, which is the subject matter of the Warner Music case, would be much the wiser when it came to working out what the law was. However, that is another matter.
Viscount Hailsham (Con)
It also clearly extends to statute-based law. Is that not a case for bringing the courts into expressing a view as to what is essentially the function of Parliament?
Lord Bellamy (Con)
My Lords, the courts are always astute. They sort of intuitively know where they have to stop and where Parliament has to take over. That is a process that has been honed and refined for the past 100 years at least, but it does not prevent the courts moulding, refining and developing the common law. There comes a point where you cannot go further, but quite often in a court you can, especially when you have existing jurisprudence. It is quite early on in the development of a new technology. In the Warner case, we were talking about hyperlinks, graphic interfaces and all sorts of high-technology things with which I am sure your Lordships are extremely familiar, but it is a new area of law, and the courts, generally speaking, work with that until they find that they have gone as far as they can as a court and then Parliament takes over. With respect, I would not completely accept the observation of my noble friend Lord Hailsham that this is usurping Parliament.
Lord Kerr of Kinlochard (CB)
I think I understand the Minister’s argument about “proper” in new paragraph (c) in Clause 7(3), but is the wording of this not prejudicial because it assumes that retained EU law restricts the proper development of domestic law? It does not say that the court should consider whether and to what extent retained EU law restricts the proper development of domestic law. It says that it should consider the extent to which it does, assuming that it does. Would it not be better to go for non-prejudicial language, as well as, I hope, including the balancing language in Amendments 83, 85 and 88?
Lord Bellamy (Con)
As far as I know, this is not intended to be prejudicial, but it presupposes a case where there is a tenable argument and it is put to the court that a retained EU law has that effect. Then the court will decide whether it does and what would be the proper development going forward. Taking that intervention on the hoof as it were, I am not sure at first sight that one is convinced that it would be better to change the wording. Let me reflect further.
Baroness Chapman of Darlington (Lab)
I am looking at the same clause as the noble Lord, Lord Kerr. He asked about new subsection (5) (c). I shall ask the Minister about new subsection (5ZA)(a), in which the courts are being asked to consider
“the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart.”
If we are not encouraging courts to depart, why would we be asking them to consider the extent? That seems to raise a question, given what the Minister has just said.
Lord Bellamy (Con)
If I may say so to the noble Baroness, I think this is just a drafting point. The extent may well be nil. There is no particular reason to suppose that the retained EU case law in a particular case is restricting the proper development of domestic law. That was the situation, as it turned out, in the Warner music case, although at least one learned justice in that case very pointedly left open the possibility of further developments in a fast-moving technology.
Baroness Chapman of Darlington (Lab)
I was not referring to the proper development of domestic law on this occasion. At the top of page 6, we seem to be asking courts to consider the extent to which EU case law “determined or influenced” in and of itself rather than about the “proper development” which is in new subjection (5)(c). I wonder whether that is, to use the language used by the noble Lord, Lord Kerr, prejudicial or leading the court.
Lord Bellamy (Con)
I think I can take it not much further than the answer that I have just given—that the extent may well turn out to be nil.
Baroness Chapman of Darlington (Lab)
But why are we asking courts to ask themselves that question?
Lord Bellamy (Con)
The answer is that the courts will not raise these questions of their own motion. These points will be raised by a party to the proceedings. Then the party to the proceedings will argue that this retained domestic law is influenced by EU case law and is now having—or may have in five or 10 years’ time—a restrictive effect that is holding up the common law. Those are the kinds of circumstances that it envisages, I think.
Baroness Chapman of Darlington (Lab)
I think the Minister was about to sit down, but he kindly invited me to respond so I will. I think that is the problem. He must surely understand that we anticipate this leading to an enormous amount of uncertainty—if that alone is something a party in the court is able to point judges towards and say that, because the case law came from the EU, in and of itself that is a reason to ask for a decision to be made in a different way.
Lord Bellamy (Con)
Respectfully, as I said a moment ago, I do not accept that this will lead to a great deal of uncertainty. It is binding on the courts of first instance. No one is going to take this to appeal unless there is a real point to be argued. If there is a real point to be argued, it is right that that our courts of appeal and higher courts should consider that point.
Perhaps we have had sufficient exchanges on this topic and I ought to move on as best I can. Finding my place in the notes, I think I have not answered the concerns raised about what we mean by “changes of circumstances” and how we manage that. Again, this is a matter that the common-law courts are very well equipped to deal with and they can decide for themselves whether there has been any relevant change of circumstances or, in particular, whether the change of circumstance is relevant.
I would not have thought that a change of government or a change in the political wind is a relevant change of circumstance. What you need is some circumstance that makes it either difficult to operate, or less than ideal to be bound by, a particular judgment of the European Court of Justice that may have been made many years ago. It may now be completely out of date or may have failed to take account of various factors that the court feels should be taken account of. Very often in a common-law system, when you look at a case and at previous decisions, you see that the particular point had not in fact been decided and you are therefore free to decide it yourself. That is much more difficult to do in a European system, which purports to lay down perfectly general principles.
If I may trespass on your Lordships’ kindness for a moment, it is often quite interesting to look at the summary of a European Court judgment, which in English terms would be referred to as the “headnote” of the case. It extracts principles from the judgment. The equivalent headnote in an English case says: these are the facts, and this is what the decision was on these facts. That encapsulates a difference of approach, thought and philosophy as to how you develop the legal system.
As I said a moment ago, I am not saying that it is better or worse; it is just different. Historically, we in this country belong to a huge family across the world that uses this technique, whether in the United States, Canada, Australia, India—very prominently—or otherwise. The Government are simply saying that we should not forget that we have a great legal tradition and we do not have to, as it were, slavishly follow the latest emanation from those very hard-working, very able, but not necessarily relevant to us, judgments and judges in Luxembourg.
Baroness McIntosh of Pickering (Con)
I have listened very carefully, and there is a fundamental flaw in my noble friend’s argument as it relates to Scotland. Scotland has a mixed legal system. I am a non-practising member of the Faculty of Advocates. I chose to go and practise EU law because every reference was either passed down to London or you could practise EU law in Brussels; there were very few opportunities to practise at the Scottish Bar. But my noble friend must accept that the Scottish system—which, I would hazard a guess, has many advantages over the English system—is based on Roman law. It is based on a system of codified law, and what distinguishes it fundamentally from what he has just described about the common-law system is that it is a mixed legal system. I wonder whether he would like to address this in his remarks, given the comments that I made in relation to the amendments that I spoke to—Amendments 81, 82, 84 and 94—and mindful of the fact that I am approaching this from a mixed civil and common-law system.
Lord Bellamy (Con)
I thank my noble friend Lady McIntosh for that intervention, and I stand corrected. She is completely right that Scotland is a mixed system, although I venture to suggest much influenced—if I may use that controversial word for a moment—by the common law. As I said a moment ago, Scottish judges have been, frankly, the best common lawyers anyone has ever known. They happen all to be called Reid but that is a coincidence.
Of course, I accept the comment, although I beg to differ as to whether any different conclusion follows. Essentially, the “may”, “must” and other amendments that the noble Baroness has proposed are independent of the exact legal approach one is talking about. It may well be that, in a Scottish situation, there would be a greater willingness not to disturb retained case law than in an English situation. I do not know; maybe these things will come up to the Supreme Court and someone will say “That is what we are going to do”. Maybe the Scottish tradition will prevail; that is perfectly likely. With respect, the Government do not feel that that changes the general thrust of Clause 7.
That was changes of circumstances. The next question is on this word “influence”—whether it has been influenced or determined by European law. I think “influenced” is included simply to give a sufficient degree of flexibility and to avoid deciding what might be quite a difficult point: whether European law was in fact determinative of a particular point or just part of the general context. Very often, it is part of the general context and the influence of the European element on the final outcome.
On that point—I am not sure we picked it up entirely; I may be speaking out of turn—I shall, if I may, at least attempt a reply to the noble Lord, Lord Kerr, on the question of principles of interpretation. I think it is relevant to the influence point. It arises in the context of legislation. Many here will know better than me, but the essential difference, as I understand it, is that traditional common law, including the Scottish approach, is a highly textual interpretation: what the meaning of the words is. The European Court’s general approach is a teleological interpretation of the general idea of where the statute is going. Very often, because of the laconic and sometimes completely deficient nature of European legislation, that court is much more prepared to fill in the gaps in the legislation than an English court would be. It is along those general lines; I am sure we can elaborate further as necessary later in these proceedings. So that is the influence point.
I think I have dealt with adding in the factors of settled understanding, legal certainty and so forth. The Government do not support that approach because it would simply bake in the status quo; that is the Government’s essential position. Legal certainty is inevitably something the courts will consider. They considered it in the Warner Music case because they were dealing with an international treaty and there was a desire not to disturb the law—albeit that the law was a right old muddle, as far as one can see, if I may put it colloquially just for a moment. In that case, it was not actually very seriously argued that we should depart from EU law; it was a perfunctory argument that took place in a few minutes at the end of the day, so it was a bit of a non-event.
Baroness Ludford (LD)
I apologise if I am interrupting the Minister before he has finished; I think he is replying to Amendments 85 and 88, although he did not specifically refer to them. He dismisses the need for the factors introduced in those amendments because he says the courts can have regard to them anyway. Why have the Government prescribed several elements themselves if the courts can have regard to them? Our whole argument is that the courts can have regard to factors they want to have regard to. The impetus behind Amendments 85 and 88 was that the Government were being partial and pushing in a certain direction for the three elements they will allow the courts to consider—the argument for adding the extra elements, the consequences of disturbing the settled understanding of the law and the importance of legal certainty, clarity and predictability—and to try to re-establish the balance that the authors of the amendments felt was lacking.
If I may say so, I find the Minister’s reply so far extremely puzzling. He has, correctly, given a paean of praise to our courts and the common law, saying that they have perfected the art of creating this mosaic—
Lord Harlech (Con)
I ask the noble Baroness to put her question to the Minister.
Baroness Ludford (LD)
Yes, I am getting to it. I want an explanation. I said the Minister’s reply was “puzzling” but, if I may say so, I want to say “contradictory” and “does not add up”. I want to press the Minister to clarify what he has said. I find it really quite irritating that Ministers keep interrupting us when we are trying to say something. The fact is that the Minister has praised our common-law courts and said they have not been inhibited in the proper development of the law and so on, but now he wants—
The Lord Privy Seal (Lord True)
My Lords, at the previous stage I reminded the House, I thought courteously, of chapter 4.29 of the Companion, where it is made perfectly clear that lengthy and frequent interventions are not desirable, whether or not the Minister accepts them. This is Committee. The noble Baroness can return with a reasoned response to what the Minister has said, but I think it is to the advantage of the House generally in our debates to hear the Minister’s arguments and then respond in a proper Committee manner. If I may, the noble Baroness’s intervention seemed to me to be getting into the category of “lengthy”.
Lord Harris of Haringey (Lab)
Before the Leader of the House sits down, perhaps he could just clarify that point. I have always understood that Committee stage in this House is about having a conversation so that the House as a whole can understand the nature of the arguments. With all due respect to the noble Baroness, Lady Ludford, with whom I often disagree, I think she is trying to get some elucidation, and I am sure that the noble Lord, Lord Bellamy, will answer fully in a moment.
The Lord Privy Seal (Lord True)
I say to the noble Lord that the answer is precisely so; it is a conversation, but that conversation is conducted politely one to another. It is perfectly correct and reasonable for the House to ask a question for elucidation in the course of a Minister’s remarks, but a lengthier intervention criticising the Minister’s argument follows naturally in the Committee conversation afterwards.
Baroness Ludford (LD)
If I may be permitted to finish, I have now had three interventions from the Government Front Bench, which of course have lengthened this intervention. I ask the Minister please to explain how his paean of praise to our courts and their ability to develop the common law without inhibition accords with the constraints and straitjackets the Bill is putting on the courts he is praising.
Lord Bellamy (Con)
My Lords, the Government’s position is that this is not a straitjacket. The courts are required to look at three things: the fact that the retained EU case law is made by a different court, whether there has been a relevant change of circumstances, and how the proper development of the common law should continue in future.
As to why we have not included other considerations—notably, legal certainty—the Government’s position, which noble Lords may or may not agree with but this is the explanation, is that once you write down the importance of legal certainty, that is potentially a recipe for passively doing nothing and continuing to be a rule taker for 20 years to come. That is not the consequence of withdrawing from the EU. The courts can continue to look at it, but that is the reason why the Government have drafted Clause 7 as it is.
I hope I have dealt with most of the issues raised about Clause 7 one way or another. There is the reference procedure, and noble Lords, and noble and learned Lords, have made the point that higher courts always have the discretion whether to take a case, and they should be able to decline it. I completely understand that point. The Government had thought that the ability of those superior courts—the higher courts or the Supreme Court—to decide whether what they were being asked to do was relevant and whether the point raised was of general public importance was sufficient protection and would enable them to decline to hear the case if that were so. I must say that the circumstances in which a lower court actually gets as far as making a reference and identifying a point of public importance that a superior court feels it should not hear seem to me, if I may say so, somewhat remote, but we can have another look at the drafting if there is a need for further reassurance. I cannot commit to changing it, but I can commit to looking at it and discussing it with the relevant persons.
Lord Etherton (CB)
My Lords, will the Minister please reply to the point I made? The situation may be such, as we know from bitter experience, that you can identify an important point of law in a case but, unless it is dispositive of the whole of it, it will lead to further expense and time. That may apply equally to this point of law as to any other. There is no special feature regarding points of law relating to retained law, as opposed to points of law in any case.
Lord Bellamy (Con)
That might raise the question of whether indeed it was relevant. You could say, “That’s not relevant here because it’s not dispositive”, or “It’s only one point among several”. However, I say to the noble and learned Lord that the Government will have another look at this. There is no point in having provisions that are not satisfactory in this regard.
That takes me to the law officer reference and intervention powers. On the essential points made by my noble friend Lady McIntosh about the position of the Lord Advocate, I hope she will bear with me. My understanding of the exact position of the Lord Advocate is probably not as good as hers and that of other noble Lords in the Committee. Essentially, the law officer reference power provides another mechanism for resolving these various points, and it gives the UK law officers and the relevant officers of the devolved Governments a statutory right to be considered and so forth. It does not extend the Lord Advocate’s powers to anything outside the devolved competence of the Scottish Government, any more than it does for the Counsel General for Wales or the Attorney-General for Northern Ireland. The Government’s view on this point is that the other law officers in the devolved Governments should be involved in matters that affect the devolved Governments and not matters that are retained UK law. That is the Government’s position.
Lord Harris of Haringey (Lab)
The Minister does not have to be sorry. The noble Viscount, Lord Hailsham, was only coughing.
Lord Bellamy (Con)
I am sorry. I am rather nervous when noble Lords come at me from all directions, especially the noble Viscount, Lord Hailsham.
Lord Bellamy (Con)
That is quite all right.
This is the logic of the approach. It is a cross-UK approach and not a Scotland-specific approach. It does not seem appropriate that the previous functions of the Lord Advocate, so far as they have been retained, should change.
Lord Bellamy (Con)
I am sorry. I was saying that this is a structure that gives the UK law officers power in relation to UK competence and the devolved Governments power in relation to their competence. That is the structure of it all.
Amendment 101, on the question of incompatibility orders, is described as a probing amendment. Again, this has precedence in other parts of the statute book. The Judicial Review and Courts Act 2022 has a similar power. If there is a point of incompatibility, the courts are given a power to manage that; it would probably mean deferring making an order for six months until the Government could fix it, as did the Court of Appeal in the Open Rights Group v The Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport: we have found a problem, and we are going to give you time to come up with solution, whether it is legislative or otherwise. In that particular case, the power was said by the Court of Appeal to derive from EU powers, but this is giving the court power under domestic legislation. I hope it is a sensible process for making the compatibility mechanisms work properly if incompatibility is found, which is likely to be a fairly rare event. I hope I have covered most points, if not all.
Lord Kerr of Kinlochard (CB)
I am very grateful to the Minister for the skill with which he is trying to explain to a layman like me abstruse points of law. Could he give us a worked example, please? I was struck by what the noble and learned Lord, Lord Etherton, said about the potential cost to the country of a loss of clarity. Take his example of the copyright law of the United Kingdom, which, he said, was virtually exclusively based on EU law. What changes of circumstances do the Government envisage that the courts should be considering when they consider cases that are tried under the present British copyright law? The only change of circumstances I can think of is if the Government were to pass new legislation on copyright. I do not think that is the plan, but if they do not, what are the courts supposed to do? What change of circumstances would they have to consider?
Lord Bellamy (Con)
My Lords, fortunately, I think I was asked by the noble Lord, Lord Kerr, for only one example, and so I will just give one because it is getting quite late. The example is changes in technology, which are moving very quickly. The Warner case, which has now been mentioned several times, was a case in which a radio station in the US put some music in a hyperlink on its website. Consumers in the UK could click on the link on that website, and the question was whether the UK copyright holders could get a royalty on that even though the UK user was accessing it in the United States—it does not matter if it is the United States, Taiwan or anywhere else. In that kind of area, the technology is moving very quickly. The existing EU decisions are not entirely consistent, and it can be easily envisaged that in some future situation, where some technology that we do not yet understand or know of has come into being, a UK court might take a different view and distinguish previous EU jurisprudence. That sort of situation is more than likely to happen at some stage.
Baroness McIntosh of Pickering (Con)
My Lords, it has been a lengthy and thorough debate, and I fear it has not gone quite as smoothly as my noble and learned friend the Minister would have wished. I am pleased he has conceded that Scots rule approaches this from a different angle. The noble and learned Lord, Lord Hope, has not been able to be present today, and I do not think my noble and learned friend has entirely answered the concerns of either the Royal Society of Scotland or the noble and learned Lord. In particular, my noble and learned friend has not addressed the question of why there is no corresponding restraint on the powers of any other UK law officer—for example, the England or Wales law officer—but only on the Scotland law officer. I would like to understand, perhaps at a meeting before Report, why that is the case. It is quite serious.
My noble and learned friend spoke at length about why retained EU law is historic now, but we are in a situation where court cases may arise. For example, the chemical industry here is going to be covered by the fledgling UK REACH programme, but the industry would also hope to export to the EU and so will have to meet the terms of the EU REACH programme. Does my noble and learned friend not accept that there will be cases that relate to this?
I fear that Clause 7 is an exam question seeking to show that, on appeal, there will be no reliance on retained EU law going forward. I think that was the wrong question to put, as has been adequately set out to such an extent that a distinguished former President of the Family Division, the noble and learned Baroness, Lady Butler-Sloss, said it is offensive to treat judges in this way, as did my noble friend Lord Hailsham, in slightly less graphic language.
I am grateful to the noble and learned Lord, Lord Etherton, for speaking to the amendments in the name of the noble and learned Lord, Lord Hope. I believe that work is not complete on this chapter but, with the promise of a meeting before Report, I beg leave to withdraw my amendment.
Baroness Ludford (LD)
My Lords, I will move the Motion, in the name of my noble friend Lord Fox, that Clause 10 do not stand part of the Bill. I am relying on the persuasive report of the Delegated Powers and Regulatory Reform Committee, which points out that the powers in Clause 10 to amend retained direct EU legislation affect over 50% of retained EU law, because 50% is retained direct EU legislation. At present, much of this can be amended only by primary legislation or Henry VIII powers. So Clause 10 in fact downgrades the status of retained direct EU legislation.
The DPRRC quotes the delegated powers memorandum from the Government, which says that they are doing this so that such law
“can be amended by ordinary powers to amend secondary legislation”
to “save parliamentary time”. As the committee remarks, perhaps somewhat caustically,
“the argument based on saving parliamentary time is unpersuasive. It should be for Parliament to say what is the best use of its time.”
So it seems a little forward of the Government to make that assertion on behalf of Parliament.
However, as the committee points out, retained direct EU legislation
“has a special status because much of it is of considerable significance in policy terms”.
Therefore, it is necessary for Parliament to keep control of which elements of the law to keep, amend or repeal. The committee says:
“Clause 10 … is an unacceptable interference with the position in the European Union (Withdrawal) Act 2018 that substantial policy changes should be for Parliament to decide in primary legislation rather than for Ministers to decide in secondary legislation.”
We have made that point repeatedly during the proceedings on the Bill. The Government broke a pledge. When the EU withdrawal Act went through, we were repeatedly assured that it would be for Parliament to make decisions about what retained EU law to amend and how to do so. But then the Bill comes along, and they do not even admit that this is a complete switch of approach and a grabbing back of powers for the Executive—but that is what it is.
Baroness McIntosh of Pickering (Con)
My Lords, I will speak to Amendments 104, 115, 116, 122, 124 and 125 in my name, and in support of Amendment 141 in the name of the noble and learned Lord, Lord Hope. Amendment 104 again substitutes the end of 31 December 2028 in place of 2023, as the statutory deadline, to enable more means for the Government or any of the devolved Administrations to consult, to analyse the results of such a consultation and to prepare legislation. This would also enable Parliament or the devolved legislatures to consider and pass the legislation. By the time the Bill receives Royal Assent, there simply would not be enough time, given the parliamentary recesses in place, to conclude such an exercise. So, in my humble submission, the deadline needs to be extended to allow time for proper legislative practice to be completed.
Amendment 115—
Lord Hamilton of Epsom (Con)
Before my noble friend proceeds to the next amendment, she has gone on about the uncertainty created by revising this legislation, but surely the longer the period you create to consider all of that, the more uncertainty you cause.
Baroness McIntosh of Pickering (Con)
I would agree with my noble friend if we knew which bits of REUL were being repealed, which were being revoked and which were being reformed—but, as we speak, we do not. As we know, many devolved measures are simply not on the dashboard at the moment, which makes that time even more unacceptable.
Amendment 115 requires a “relevant national authority” or “Minister of the Crown” to consult those who may be affected by regulations under Clause 15(2) before making them. All relevant national authorities will be required to publish the results of this consultation. The idea is to oblige the Minister of the Crown to consult the devolved Administrations before making regulations that concern them.
Amendment 116 makes similar provisions under Clause 15(3), so the same comments apply there. Amendment 122 also extends the statutory deadline from 23 June 2026 to a similar deadline of 31 December 2028, allowing more time than permitted under the present deadline to ensure that all legislation which will be encapsulated will be covered through a consultation, and to allow time for consulting and analysing the results of such a provision. Amendments 124 and 125 are simply consequential to that.
I do not know if the noble Baroness, Lady Meacher, will speak to Amendment 141 in the name of the noble and learned Lord, Lord Hope, but I conclude by saying that I support his amendment, to which the noble Baroness, Lady Humphreys, has added her name. I welcome the fact that the
“amendment modifies the powers conferred on Ministers of the Crown when making regulations in devolved areas under this Schedule so that the power may only be exercised with the consent of the Scottish or Welsh Ministers.”
I hope that my noble friend the Minister, when summing up, will look favourably on those amendments in this group.
Baroness Meacher (CB)
My Lords, I will follow the words of the noble Baroness, Lady Ludford. I have added my name to the question on whether Clause 10 should stand part of the Bill. As noble Lords know, my view is that the Government really have a responsibility to withdraw the entire Bill; they should take it away and have civil servants work up all the policy developments that are assumed in it. As it stands, decisions on all these policy areas will simply be left to Ministers to make through delegated legislation; that is not acceptable at all. I was strongly supported by my noble friends Lord Wilson and Lord Lisvane and many others when I made this point in an earlier debate.
Clause 10 transfers powers wholesale from the EU to Ministers, who will then decide which regulations to propose. It includes extensive amendments to Part 1 of Schedule 8 to the European Union (Withdrawal) Act 2018. In omitting sub-paragraphs (1) to (5) of paragraph 4, the Government are further reducing the power of the UK Parliament with respect to retained EU legislation, and, as the noble Baroness, Lady Ludford, said, with particular respect to retained direct EU law. The Government justify that on the basis that retained direct EU law did not have as much parliamentary scrutiny as other parts of retained EU law, but that was because the UK was bound to comply with retained direct EU law under the treaty of Rome. We are now not in the EU—we are in an entirely different situation—and the UK Parliament needs to take over responsibility for this area of law, which represents at least 50% of retained EU law.
As noble Lords know, we parliamentarians cannot amend secondary legislation. It would be extremely difficult in this context for Parliament to reject the secondary legislation involved, and therefore Parliament will have no option, in my view, but to accept the delegated powers we are talking about here. Surely this is entirely unacceptable. Ministers’ regulations across a vast range of policies will affect the entire UK population very considerably.
Clause 10 radically changes the European Union (Withdrawal) Act 2018, affecting a huge transfer of powers from Parliament to Ministers. This is in conflict with stated government policy and the Government’s Explanatory Memorandum to the Bill. Clause 10 should not stand part of the Bill.
Baroness Brinton (LD)
My Lords, it is an honour to follow the noble Baroness, Lady Meacher; I agree with everything she said. I also very much agree with the previous speakers, including my noble friend Lady Ludford.
I will make a point in response to the points made by the noble Lord, Lord Hamilton, when he questioned the noble Baroness, Lady McIntosh, on whether her amendments would delay the process and whether that would be a problem. The fundamental problem we have is set out very clearly by the Delegated Powers and Regulatory Reform Committee in paragraph 35 of its 25th report, which quotes from the RDEUL memorandum:
“Overall, the change in status will make it possible to amend or repeal a greater amount of RDEUL using secondary legislation, which will enhance the ability for amending RDEUL more quickly without the need for primary legislation. This is a more proportionate status for RDEUL, as when made it was not subject to the same degree of UK Parliamentary scrutiny as an Act of Parliament or even domestic secondary legislation.”
However, the committee goes on to say that
“RDEUL has a special status because much of it is of considerable significance in policy terms.”
Once again, we have spent most of the last three Committee days discussing issues relating to policy and asking for clarification on when that will be nailed down and understood and when Parliament can look at it before final decisions about the Bill are made.
I return to the question I asked on the first day of Committee: at what point will the dashboard be frozen? After it is frozen, how long will it be before it comes into law? Will it be 31 July, October or 30 December? How do Ministers respond to the issue that Parliament will have to give up a significant role in key policy terms, which is normally part of primary legislation, and which would be moved into secondary legislation under this clause? At the moment, we still do not have an answer as to when Parliament will be able to look at the detail of the dashboard to make decisions on it.
Lord Hamilton of Epsom (Con)
Before the noble Baroness finishes her remarks, I would be grateful if she could answer my question: if you delay the implementation of considering this legislation, do you not create greater uncertainty?
Baroness Brinton (LD)
It is fairly straightforward. Those of us with extreme concerns about the Bill do not want a Bill passed where time after time people, especially the wider public, realise that regulations have been sunsetted without their understanding of the consequences—and without our own Parliament’s understanding of the consequences. Frankly, that is the one delay that really should be put in place, because we do not know what is going to happen.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have tried to follow and to listen to as much of the discussions on the Bill as possible, and I confess that some of the legal arguments happening earlier were beyond me. I will raise a couple of points, the first of which is in relation to the delay. I said at Second Reading, and I maintain the point now, that the Bill has been a long time coming. The public perceive the debate about how we deal with taking control of our own laws, as the UK having left the EU, not in the sense that it has been rushed through, but rather that it has been sluggish and blocked, and that any attempts to try to force through that break from the European Union have been obstructed by people who did not approve of the decision taken in 2016.
I am very sensitive to the perfectly reasonable criticisms made throughout the arguments I have heard. The Minister must give some reassurance that there are no unintended consequences of the Bill and that important laws are not lost that the Government do not intend to lose—those they will lose by accident, as it has been described. That is of some concern. Reassurances that they are in control are not that reassuring when we look at the parlous state of the way everything else is falling apart at the moment. So I have reservations myself; I wanted to clarify that. But saying that we should delay things until 2028 will be seen, understandably, as quite simply putting off the task, and that does not work at all.
Baroness Ludford (LD)
I just wanted to say to the noble Baroness—and I probably will not go into lawmaking in the EU, as the noble Baroness was an MEP herself—that to say that lawmaking in Brussels is not democratic is, to my mind, ridiculous.
I particularly want to address her assertion that objections to this Bill are mired in politics. Had she been here, as I have, through the entire four days—now nearly four and a half—on this Bill, she would know that across the House the objections have been because it is an Executive power grab. Almost no reference has been made to the Brexit referendum or the policy of Brexit. It is about the way that the Bill is constructed and the power that the Government are concentrating in themselves. It is a question of the rights of Parliament and the type of governance we are objecting to. It is not political in that sense. The objections to this Bill are constitutional.
Baroness Fox of Buckley (Non-Afl)
I appreciate that I have not been in the Chamber for all of that time, although I have been here a fair few hours, one way and another, and I have read everything that was said in previous discussions. I do not feel as though I am just wandering in to make this point.
I have also talked to people outside this House about their understanding of this discussion and I am trying to draw attention to that—
Baroness Fox of Buckley (Non-Afl)
I have got more questions flying at me today.
Baroness Brinton (LD)
I am very grateful to the noble Baroness, Lady Meacher, for giving way for my question to the noble Baroness, Lady Fox. If the noble Baroness, Lady Fox, is not concerned about Clause 10, does that mean that she disagrees with the very clear comments from the Delegated Powers Committee? It sees it as a power grab and thinks it is a completely inappropriate use of secondary legislation.
Baroness Fox of Buckley (Non-Afl)
I am concerned about aspects of this Bill from a delegated powers point of view, as I have been on a range of Bills that we have had in this House. Maybe it is because, as in the previous intervention, it was made clear to me that there is a disagreement about what democracy is. I do not think that while we were in the European Union that was a democratic, accountable form of lawmaking. I did not make that point. That point has just been made back to me. I am saying that although I understand that the arguments put forward say that they are not replaying a lot of discussions from the past, I think that argument has been implicit in a lot of the discussions. That was certainly what I heard at Second Reading and I have picked it up.
I am also making the point that if there was a genuine enthusiasm from this House about how we can take the opportunity of having left the European Union to now study and look at all of those laws, there might be less cynicism outside this House. That was my point.
I also was making a different point about timing. I have not heard from this House, either while I have been in it or before I got in it and was watching it from the outside, an enthusiasm to rush things through, as soon as we voted in 2016, to say, “Let’s take all the laws. Let’s look at the EU retained laws. Let’s now make a decision about what we do with these laws.” People did not want to do that because they did not accept the decision. Now, people are saying that it is too rushed and that there is a danger that this will come over—as it is doing—as an attempt at blocking taking back control.
As to the delegated powers and the power grab, I am afraid that that is something I have broadly been worried about from this Government, not just with this Bill. I have spoken on it many a time.
Lord Krebs (CB)
My Lords, I will speak to Amendments 129 and 131 in this group in my name and those of the noble Lord, Lord Rooker, and my noble friend Lady Boycott, who, I am sorry to say, are not in their places. These two amendments are about transparency, accountability, and scrutiny, so, in a way, they follow neatly from some of the points the noble Baroness, Lady Fox, was making a few moments ago.
Transparency, accountability and scrutiny are surely not contentious concepts so I hope that the Government would agree and therefore sign up to these amendments. Amendment 129, very simply, would require the Government to seek advice from the Food Standards Agency and Food Standards Scotland as to whether any proposed changes to the regulations will reduce food safety or other consumer protections in relation to food.
Noble Lords will recall that the Food Standards Agency is the non-ministerial department in England, Wales and Northern Ireland with responsibility for food safety and consumer protection in relation to food. It would surely be bizarre beyond belief not to consult the relevant department and its Scottish counterpart before making any changes to retained EU law. The importance of this underlined by referring back to a previous debate in Committee. I quote from Hansard. I said on 23 February that
“I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:
‘In the FSA, we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health’.”
I then said:
“According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.”—[Official Report, 23/2/23; col. 1832.]
I will now quote the Minister’s reply because she did indeed deny it by saying:
“Let me assure noble Lords that any decision on REUL reform will not come at the expense of our high standards.”
She added that
“our commitment to not reducing consumer protection remains in place.”—[Official Report, 23/2/23; cols. 1856-57.]
Here you have it in black and white. The head of the relevant government department, Professor Susan Jebb, says that we cannot sunset EU-derived laws without sacrificing consumer safety and other protections. The Minister told this House on 23 February that, in effect, that is a load of rubbish. Who would you believe? I know where my trust lies. It is with the department that has the responsibility and accountability for and expertise in protecting consumers’ interests in relation to food. There could not be a clearer demonstration of why Amendment 129 is essential
Lest this be thought to be some sort of political point, I want to say that when I was chairman of the Food Standards Agency, with a Government of a different political complexion, Ministers were keen to rush to reassure the public on issues to do with food safety, whether it was BSE or foot and mouth disease, and I really had to stand up against pressure from Ministers and say, “No, we can’t provide reassurance on safety”. If this amendment is accepted, it will ensure that the proper expertise, lines of accountability and scrutiny are in place to review any proposed changes in food law.
I turn now to Amendment 131, which is about transparency. As the noble Lord, Lord Rooker, reminded noble Lords earlier in Committee, the Food Standards Agency and Food Standards Scotland published their first annual report on food safety and standards across the UK, entitled Our Food 2021, in June. Here is a quotation from the introduction:
“At a time when the UK is taking on new responsibilities for food following our departure from the European Union … consumers need strong watchdogs looking out for whether standards are being protected. This report—the first in a series to be published annually—will help us do so by providing an objective, data-driven assessment of the safety and standards of food over time.
Why us? Because the Food Standards Agency … and Food Standards Scotland … are together responsible for food standards across the whole of the UK—this is an important, long-term collaboration between our two organisations that should provide greater transparency and accountability for food quality across the four nations. This, in turn, will help us work with food businesses, local authorities and other partners to address any emerging threats or vulnerabilities.”
Amendment 131 simply seeks to put this annual report, or a slightly modified version of it, on a statutory basis. It will tell the public, businesses, the Government and others whether, as result of changes to our laws, food standards and safety are being compromised. How on earth could one object to this transparency?
As the noble Lord, Lord Rooker, reminded us the other day in Committee, transparency is one of the keys to trust. It has taken years of work by the Food Standards Agency to rebuild public trust in the UK food system after the disasters of the 1990s, including BSE and salmonella in eggs. Indeed, that is why all parties supported the creation of the Food Standards Agency, so it could be a department that puts consumers’ interests first and rebuilds trust in our food system. Why would the Government wish to squander those gains now? I therefore look forward to the Minister warmly welcoming both my amendments, and to assuring us that the FSA and FSS will have the necessary resources to fulfil the duties that are implied by them. These are very modest changes to the Bill, aimed at improving it, and I hope that, if the Minister does not welcome them, he will at least agree to meet me and others to discuss the implications of not accepting them.
Lord Hamilton of Epsom (Con)
Will the noble Lord explain why the Government would want to compromise the health of the consuming public of this country and undermine our food exports abroad?
Lord Krebs (CB)
That is an extremely good question and I thank the noble Lord for asking it. That is precisely what I would say too. Therefore, if the Government do not want to risk undermining public safety or public confidence in our food businesses, and therefore our food exports, they should accept these amendments. After all, the chairman of the FSA could not have said it more clearly, and I shall just repeat it once more:
“we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health.”
It is not me who is saying this; it is the head of the government department with this responsibility.
Lord Collins of Highbury (Lab)
My Lords, I will not detain the Committee for long. Obviously, my noble friend and the Front Bench team oppose Clause 10 standing part of the Bill, for very good reasons, as outlined by the Delegated Powers Committee. I shall just address the noble Lord, Lord Hamilton, on this point: no one disputes that what the country and the Government wanted was a transition. They voted for a transition, returning to Parliament the powers to make laws. That was actually what was contained in the 2018 withdrawal Act, and we now have a policy change: it will no longer be the responsibility of Parliament to revoke, retain or advise; it will be a government Minister.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, we have ensured that the Bill contains robust scrutiny mechanisms that will enable the appropriate scrutiny of any amendments or repeals of retained EU law made by the powers included in the Bill. The debate touched on two different things: we need to differentiate between the effects of Clause 10 and the application of pre-existing delegated powers contained in other Acts of Parliament, and the delegated powers included in the Bill.
Because of the points that have been made, I want just to touch on the scrutiny mechanisms. These include a sifting procedure that will apply to regulations proposed to be made under the power to restate and the powers to revoke or replace. This will afford additional scrutiny to the use of the power while retaining the flexibility of using the negative procedure where there are good reasons for doing so. We recognise the significant role Parliament has played in scrutinising instruments subject to sifting procedures previously and are committed to ensuring the appropriate scrutiny under the delegated powers in the Bill. Indeed, the Leader of the House of Commons has written to the chair of the European Statutory Instruments Committee proposing that the committee take on the role of sifting committee in the House of Commons to determine where the negative procedure may apply.
I wanted to give that background because there are these two different aspects to the debate, but I turn first to the clause stand part motion introduced by the noble Baroness, Lady Ludford, and supported by the noble Baroness, Lady Meacher. Clause 10 must stand part of the Bill because it provides the answers to two fundamental questions. First, is it right that technical regulations should be treated as equivalent to an Act of Parliament? Secondly, are this Government happy with the risk of these regulations sitting stagnant on the statute book? The answer to both, as we have argued all along, is no. Clause 10 modifies powers in other statutes to allow them to be used to amend or retain direct EU legislation and directly effective rights. Over 50% of retained EU law currently identified on the REUL dashboard—I agree with the noble Baroness on that figure—is retained direct EU legislation. It is comprised mainly of EU regulations in which the UK Parliament had no real say. This legislation often does not reflect the UK’s priorities or objectives—to drive growth, for example. We are currently forced to treat some retained direct EU legislation as equivalent to an Act of Parliament when amending it. This is not appropriate; it does not fit with this Government’s vision of REUL reform following the Brexit process, to which the noble Baroness, Lady Fox, referred.
I understand the concerns of the Delegated Powers and Regulatory Reform Committee, but we do need to think of the opportunity that Brexit affords, while maintaining necessary protections. In doing so, we must ensure that parliamentary time is used appropriately. Furthermore, relying purely on primary legislation to amend these technical regulations to meet the UK’s needs would take decades. It is of critical importance that we ensure that these mostly technical regulations do not remain static and can be updated, amended and reformed in response to events and new knowledge, using appropriate delegated powers. Without the measures in Clause 10, thousands of regulations will become stagnant and will be unable to stay up to date, react to new information or implement new international agreements without requiring an Act of Parliament.
I will now move on to a set of amendments relating to the delegated powers, starting with amendments—
Lord Kerr of Kinlochard (CB)
Before the Minister leaves the question of allowing Clause 10 to stand part, I am surprised at her disagreement with the Delegated Powers and Regulatory Reform Committee—a dangerously radical body containing wild revolutionaries such as the noble Lords, Lord Janvrin and Lord Goodlad, and the noble Earl, Lord Lindsay. Their view was clearly set out in their report: that Clause 10
“effects a significant transfer of power to Ministers”,
contrary to what was set out in the European Union (Withdrawal) Act 2018. The Act said it would be for Parliament to decide changes in primary legislation, rather than for Ministers to do so in secondary legislation.
I understand the argument the Minister is making, but it is not one likely to find much support across the House. We think we have a role in deciding what should be on the statute book; it is not simply for the Executive. I can see the point made by the noble Lord, Lord Hamilton—yet another dangerous radical—that it will take time so there will be, in a sense, continuing uncertainty. This is why I support an extension of the sunset deadlines—although that is not a sufficient cure, I think it is a necessary one for the Bill. But the noble Lord has to recognise that there is huge uncertainty now for economic operators across the country: they do not know which laws are to be amended, which are to be retained and which are to be extinguished. Once we know, perhaps it would be sensible to discuss how long it will take to make the necessary changes.
Lord Hamilton of Epsom (Con)
Surely the thing that concerns businesses is how legislation is going to be amended, not whether it is or not.
Baroness Neville-Rolfe (Con)
I thank the noble Lords for their interventions. I did say that I understood the concerns of the Committee. I was trying to explain that, in this particular case, we need to go forward with the arrangements we have because of the situation the EU law of 2018 has left us in and the need to tidy up the statute book, which, otherwise, would take decades to do.
Amendments 115 and 116 in the name of my noble friend Lady McIntosh of Pickering would insert a requirement to consult any interested persons or relevant devolved Governments before any secondary retained EU law could be revoked or replaced. Amendment 115 would require that no regulations may be made under Clause 15(2) unless Ministers comply with a set of conditions, including a requirement to consult any interested persons in relevant devolved Governments before any REUL can be revoked or replaced. Amendment 116 would insert the same consultation requirements regarding regulations made under Clause 15(3). These amendments would hinder the efficient removal of outdated and unnecessary burdens and regulations and their replacement with regulations that are more fit for purpose.
Furthermore, we have sought, as I have explained, to ensure that the Bill contains robust scrutiny mechanisms, including for the powers to revoke or replace. In particular, the sifting procedure will apply to those regulations proposed to be made under the negative procedure. The sifting procedure largely corresponds with the procedure under the EUWA and the European Union (Future Relationship) Act 2020. In both cases, sifting has been effectively used to ensure proportionate parliamentary scrutiny of legislation regarding EU exit. We are scheduled to debate the sifting procedure in more detail on Wednesday, and obviously I look forward to that debate. In addition, it is our expectation that the departments concerned will follow standard procedures regarding consultation and engagement with the devolved Governments during policy development, so I do not consider adding a requirement to consult on the face of the Bill to be appropriate or necessary.
Amendment 128, tabled by the noble Baroness, Lady Ludford, would create a new clause introducing additional restrictions on the use of powers under Clauses 15 and 16. Among the proposed extensive conditions is a requirement that Ministers provide a report outlining an assessment of the potential impact of proposed new regulations. This would include the difference between current and proposed new regulations for protections for consumers, workers, businesses, the environment, animal welfare, any changes to the regulatory burden, and whether the UK’s international commitments to the trade and co-operation agreement and the Northern Ireland protocol continue to be met. Such conditions are unnecessary. The Bill has been drafted to ensure that legislation made under these powers is subject to scrutiny procedures that are proportionate to the scope of the powers. It is our expectation that departments will follow the standard procedures for consultation and impact assessment where it is undertaken. Adding these conditions would significantly delay the process of REUL reform, impact departments’ delivery plans and could prevent departments maximising the use of the powers in Clauses 15 and 16.
Before coming to the sunsets, I turn to Amendment 129, tabled by the noble Lord, Lord Krebs, which seeks to add a clause to the Bill introducing additional restrictions for food standards legislation. It is only right to have powers in the Bill which will help put the UK statute book on a sustainable footing. The powers will facilitate the much-needed review and reform of outdated retained EU law that not is fit for the UK, and they will ensure that we can capitalise on the benefits of Brexit. As I have said, the powers to amend are not intended to undermine the UK’s already high food standards. I say again that this Government are committed to promoting robust food standards nationally and internationally, so that we can continue to protect consumer interests, facilitate trade and ensure that consumers can have confidence in the food they buy. I also value the work of the food standards agencies, for all the reasons the noble Lord, Lord Krebs, has outlined, but that is not a reason to amend this general Bill.
To respond to the noble Lord, Lord Krebs, the Hansard that he referred to reflects the position that retained EU law that needs to be kept will be preserved. The FSA is saying publicly that retained EU law on food standards should be preserved. It is for the relevant department—the Department of Health—and the devolved nations to decide whether retained EU law in their area should be preserved. Therefore, I humbly suggest that the two statements are not in conflict.
Lord Krebs (CB)
To wind back a few sentences, the Minister quite rightly said that the Department of Health would be responsible ultimately for changes in the law that affect food safety and standards. However, my amendment was not questioning that issue; it was questioning where the Department of Health is going to get its expert advice from. I did not hear the Minister say that the Department of Health would not propose any changes unless the Food Standards Agency and Food Standards Scotland had agreed that they would not compromise consumer protections in relation to food, whether it is to do with safety information or health. Could she therefore confirm whether that is the Government’s intention?
Baroness Neville-Rolfe (Con)
I am sure the Ministers responsible at the Department of Health and in the devolved nations will consult the Food Standards Agency. In the work I do with the Department of Health which involves food, the Food Standards Agency is an incredibly important part of the decision-making process.
Lord Collins of Highbury (Lab)
The noble Baroness should not therefore have a problem in saying that they will consult it. Can we not have a commitment from the Government that they will do so? That is all.
Baroness Neville-Rolfe (Con)
As I said, I am sure that the Health Ministers will consult the Food Standards Agency. The food standards agencies have been set up for this purpose. If you are making changes to legislation, of course there will be consultation. I am not the Health Minister, so I cannot make a declaration of that kind, but I have already said that I will pass on to the Health Minister the discussions we are having on food safety.
Lord Hacking (Lab)
I think the question my noble friend was asking was what the Government’s position is—that is the answer we need.
Baroness Neville-Rolfe (Con)
I have given my answer. I have been very clear about the importance we attach to food safety from both a government point of view and my own historic point of view, which I hope adds some credibility. I do not think I have a lot further to say, apart from the fact that officials are working with the Food Standards Agency day and night on these areas.
Amendment 132, tabled by the noble Baroness, Lady Chapman of Darlington, proposes that a Minister of the Crown should publish a report 30 days before the powers can be exercised. The report would have to include a list of criteria which relevant national authorities would need to take into account when exercising the powers under Clauses 12 to 17 of the Bill. The delegated powers within the Bill will enable Ministers to make active decisions regarding their respective retained EU law. It is only right to have such powers; they will help to put the UK statute book on a sustainable footing within a reasonable timeframe and facilitate the much-needed review and reform of retained EU law to ensure that we can capitalise on the benefits of UK autonomy. Furthermore, the Bill has been drafted to ensure that legislation made under the delegated powers is subject to scrutiny procedures proportionate to the scope of the powers. I therefore do not consider that publishing a report setting out criteria which Ministers must take into account when using the powers within the Bill is necessary given the scrutiny already provided for.
I turn now to Amendment 141 in the name of the noble and learned Lord, Lord Hope of Craighead; I am sorry he is not here today. The amendment would impose a requirement to seek consent from a Scottish or Welsh Minister where a Minister of the Crown intends to exercise a power in the Bill separately on legislation which is in an area of Scottish or Welsh devolved competence. First, I assure your Lordships that the Government are committed to respecting the devolution settlements and the Sewel convention. Indeed, none of the provisions within the Bill, including the powers, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments.
I recognise that the extension power is not conferred on the devolved Governments. However, we are keen to ensure that the provisions within the Bill, including the powers, work for all parts of the UK. That is why the majority of the powers will be conferred concurrently on the devolved Governments: to enable them to make active decisions regarding their retained EU law. As such, introducing a requirement for a Minister of the Crown to seek legislative consent when using the powers on legislation within areas of devolved legislative competence is not necessary.
Baroness Chapman of Darlington (Lab)
We keep being told that there is not going to be consultation or legislative consent, and that the Food Standards Agency would of course be mindful of what the Government have to say. We are being asked to take all these things on trust, but it is not as though the Government have an impeccable record on these things. Can the noble Baroness not appreciate that what the Committee is trying to get at is to understand how these determinations will come about? We are looking for some sort of signal from the Government that there will be openness and a willingness to involve, and an attempt to do more than what is absolutely strictly necessary within the letter of the Bill that she is referring to. Were she to endeavour to give us that reassurance or explain how that would be done, she might find a little—not a lot—more sympathy for the position she is taking.
Baroness Neville-Rolfe (Con)
I understand. I am very grateful to the noble Baroness for trying to help to move things forward; we are certainly keen to do that. Clearly, this enabling Bill is going through Parliament ahead of the some of the work that has been going on around the dashboard and the individual governmental plans, which is perhaps a pity. I think my noble friend the Minister said that he would try to make more information available as that became possible. Indeed, we have given an extra couple of days for debates in Committee. Progress is being made all the time in departments on their plans. We have these two processes—
Lord Hannay of Chiswick (CB)
As the noble Baroness, Lady Chapman, said, the Minister has turned down every single amendment in this group, whether it is for more consultation or for the Food Standards Agency to have a proper say. Every time, she has simply said, “That would take decades”. I am not sure whether an impact assessment has been done to work out what lies behind that phrase; I suspect it is just a throwaway phrase which is meant to cast dust in our eyes. However, it is not terribly convincing, because not a single amendment on the Marshalled List suggests putting the cut-off date beyond 2028, as the amendments in the name of the noble Baroness, Lady McIntosh, suggest. Nobody is suggesting a period of decades. What those of us who support these amendments are suggesting is that the Government should follow the normal procedure, which we have always had in this country before, of consultation and legislation. Could we please not dismiss everything by saying that it would take decades?
Baroness Neville-Rolfe (Con)
I think I said “decades” once. This is of course a bit different from the normal laws that we debate and put through this Parliament, because it is dealing with retained EU law, and we think that there is a need for special arrangements. Equally, there is also a need for your Lordships to understand what our plans are. This is Committee; it is quite conventional at this stage to explain the problems with amendments, which I have obviously been doing.
Picking up on what has just been said, perhaps I should move on to the final issue in this group, which is timing. Amendment 104, in the name of my noble friend Lady McIntosh of Pickering, relates to Clause 12 and seeks to change the date on which the power to restate under Clause 12 is capable of acting on retained EU law from the sunset date—the end of 2023—extending it to 2028. The existing power to restate under Clause 13, which is exercisable up to 2026, provides an adequate opportunity for the reform of retained EU law and assimilated law while providing a deadline to ensure that retained EU law does not languish on our statute book indefinitely.
I turn to Amendment 108A in the name of my noble friend Lady Lawlor. Although she did not speak to it on this occasion, I am glad that one of her early interventions as a Member of this House has been on this important Bill. Her amendment seeks to bring forward the date on which the power to restate assimilated law expires to the end of 2024. This power already puts a protection in place after the sunset by allowing departments to reproduce the effects of retained case law and EU-derived principles of interpretation in relation to specific provisions of restated assimilated law, which sunset at the end of 2023 up to 23 June 2026.
Although I understand where my noble friend is coming from, I believe that it is necessary to make the power to restate assimilated law available for a sufficient window of time following the sunset date to ensure that the Government can mitigate any unintended consequences associated with the sunset in 2023. While we expect the power to be used only in exceptional cases, it would be irresponsible for the Government not to have a protection in place. Bringing forward the expiration date of the power to restate assimilated law to the end of 2024 would provide a limited time window for departments to use this power and could result in provisions not being restated that are necessary to maintain the desired policy effect.
Amendments 122 and 122A are also on timing. Amendment 122 in the name of my noble friend Lady McIntosh of Pickering would change the date on which the powers to revoke or replace are capable of acting on REUL and post-sunset secondary assimilated law, extending it to 2028. Exercising the powers to revoke or replace will allow the Government to seize our new regulatory autonomy and ensure that REUL can be tailored to meet the UK’s needs in a timely manner. We need to complete that important process.
The powers to revoke or replace are important, cross-cutting enablers. They will allow the Government to overhaul EU laws in secondary legislation across the many different sectors of the economy where, if left, many pieces of REUL risk becoming fixed features of the statute book that are ill suited to the UK. As my noble friend Lord Hamilton said, extending the date to 2028 would also add to uncertainty. The noble Baroness, Lady Fox, was right to remind us that some of the public think that the process of EU reform is sluggish, but I think that 2026 gives us ample time.
Lastly, I turn to Amendments 124 and 125 in the name of my noble friend Lady McIntosh of Pickering. In broad terms, they would change the dates that enable the power to act upon assimilated law. I will not go through the detail of why these amendments do not work because I have already explained it quite clearly. The powers to revoke or replace are already capable of acting on assimilated law for an additional two and a half years after the sunset, which is adequate time to complete REUL reform and provide greater legal certainty UK-wide.
I am sorry to have spoken at length but there were a lot of amendments in this group. I hope this has provided noble Lords with some reassurance on the powers in the Bill, their timeframes and the way in which scrutiny will work, as I tried to set out at the beginning of my speech. With this in mind, I ask noble Lords to withdraw or not press their amendments.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
The Question is that Clause 10 stand part of the Bill.
Baroness Ludford (LD)
I believe I have a right to reply; I have been corrected so many times today that I do not know what my rights are nowadays.
The Minister seems to believe that robust parliamentary scrutiny is enshrined in a sifting, negative procedure power. I do not agree, I am afraid. Parliament is being sidelined in this Bill. Indeed, I wonder when this radical, revolutionary, un-Conservative Government will seek to abolish Parliament.
On the assertion that the UK Parliament had no real say in EU law, that is the nature of the organisation. Law is made at the level at which it is considered, obviously. However—I made this point at Second Reading—some Parliaments in the EU, notably the Danish one, kept their Ministers on a tight leash. Ministers went to the Council of Ministers from the UK Parliament; if they did not represent the views of the UK Parliament, we have to look at them and their record. The UK Parliament could have done the kind of scrutiny and accountability exercises that the Danish Parliament notably did; if it did not do so, that is the fault not of the EU but of the UK Parliament.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
I apologise to the noble Baroness for what happened earlier.
“(1A) Before making regulations under subsection (1) a relevant national authority must consult with any person who may be affected by the proposed regulations.(1B) If a Minister of the Crown proposes to make regulations under subsection (1) which concern devolved matters the Minister must, before making the regulations, consult with the relevant national authority.(1C) A relevant national authority and, where subsection (1B) applies, a Minister of the Crown must publish the results of any consultation conducted under this section.”Member’s explanatory statement
This amendment requires a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them. All relevant national authorities are required to publish the results of the consultation.
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted that we have reached this group, which concerns restatement powers. The two most radical amendments in this group will probably capture the Committee’s imagination more than my more modest ones; I look forward to hearing from the authors of the amendments on whether Clauses 12 and 13 should stand part of the Bill.
I want to speak briefly to the amendments in my name. Amendment 102 would require
“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them.”
This would require all
“relevant national authorities … to publish the results of the consultation.”
Why is this necessary? Under Clause 12, a relevant national authority
“may by regulations restate, to any extent, any secondary retained EU law.”
Clause 14 states:
“A restatement may use words or concepts that are different from those used in the law being restated”
and
“may make any change which the relevant national authority considers appropriate for … resolving ambiguities … removing doubts or anomalies … facilitating improvement in the clarity or accessibility of the law (including by omitting anything which is legally unnecessary).”
Given the debates that we have had, this will increase the uncertainty and lack of clarity. I am grateful to the Law Society of Scotland, which proposed Amendment 102. Its purpose is that such changes, which may obviously be considerable, should require to be consulted on.
Amendment 105 would require
“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them. All relevant national authorities are required to publish the results of the consultation.”
I will not rehearse this. It is very similar under Clauses 13 and 14 to what I referred to under Amendment 102. However, as these changes would again be major, they should be consulted on, as is laid out in this amendment. I beseech my noble friend Lord Hamilton of Epsom that, if he is seeking clarity and certainty and wants a short deadline, he must share my concern that the clauses dealt with in this group will have quite the contrary effect to that which he referred to.
Amendment 107 has a similar requirement on a national authority to consult all the national authorities to publish the results of the consultation. Clause 13(8) states that:
“A relevant national authority may by regulations reproduce, to any extent, the effect that anything which was retained EU law by virtue of section 4 or 6(3) or (6) of European Union (Withdrawal) Act 2018 would have, but for sections 3 to 5 of this Act.”
Again, this is a significant regulation-making power which could affect a large number of individuals and businesses. Surely my noble friend and the Government would wish that they and the devolved Administrations consult before making such wide-ranging regulations as those envisaged in this clause. Therefore, under the terms of this amendment, a Minister of the Crown would be obliged to consult a devolved Administration before making regulations concerning devolved matters.
Amendment 108 looks to extend the statutory deadline from 23 June 2026 to 31 December 2028, a mere 18 months,
“within which a restatement of assimilated law or reproduction of sunsetted retained EU rights, powers, liabilities may be made.”
It cannot be right to have such a short deadline giving such wide-ranging powers. Therefore, in my humble submission, the deadline needs to be extended to allow sufficient time for the exercise of going through what the impact on the Government, the devolved Administrations and all the interested parties would be. A better and more realistic deadline, capable of being met, would be 31 December 2028.
Amendment 109 is purely consequential, extending the deadline from the end of 2023 to 31 December 2028. I am delighted to say that Amendment 110 would have a similar effect by leaving out Clause 14(7), which states:
“The provision that may be made by regulations under section 12 or 13 may be made by modifying any enactment.”
That is an extremely broad Henry VIII power to empower Ministers to amend any enactment. It is identified by the Secondary Legislation Scrutiny Committee in its 28th report, Losing Control?, as too broad a power. Therefore, Amendment 110 gives my noble friend and the Government the opportunity to explain why such a broad power is necessary.
I hope that my noble friend will look extremely favourably on this small but perfectly formed group of amendments. With those few remarks, I beg to move.
Baroness Humphreys (LD)
My Lords, I will speak to Amendments 103 and 106 in my name. My Amendment 103 is an amendment to Clause 12. It ensures that a legislative consent Motion must be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to restate secondary retained EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.
Amendment 106 is an amendment to Clause 13. It has the same effect as Amendment 103 but refers to the restating of secondary assimilated law, and therefore is exercisable from only 1 January 2024. Both clauses are commented on in the report from the Delegated Powers and Regulatory Reform Committee, which was concerned about the way that they “inappropriately delegate legislative power”. It recommended that they should be removed from the Bill. The committee said that both clauses gave Ministers power to legislate and achieve effects that ought instead to belong to Parliament and be achieved in subject-specific primary legislation. My noble friend Lady Ludford will speak to Clauses 12 and 13 not standing part of the Bill.
Our debate on Amendment 58 last Thursday warranted far more time and attention than we gave it. We saw there that the UK Government appear ready to take over the powers of the devolved nations when they think that they can. I was particularly grateful to the noble Lord, Lord Collins of Highbury, who is in his place, for probing powers over sunsetting and what the noble and learned Lord, Lord Thomas of Cwmgiedd, referred to as the
“equality of treatment between the various Governments of the United Kingdom.”—[Official Report, 2/3/23; col. 467.]
I am sure that we will return to this issue at a later stage of the Bill.
With the UK Government’s attitude to the devolved legislatures in mind, the Delegated Powers and Regulatory Reform Committee’s very significant sentence in the report seems pertinent:
“The powers conferred by clause 12 are open-ended, there being no requirement for consultation, for criteria to be met or for pre-conditions to be satisfied.”
The committee was of course concerned about the powers of Ministers to legislate, to achieve effects that ought instead to belong to Parliament. The powers of the Senedd are implicit in this, and the belonging should also extend to them.
I want to make a few comments about consent, the Sewel convention, and the powers of the Senedd. I was part of the first intake of Members to the Welsh Assembly, as it was then, in 1999. I have watched its powers grow as a result of the votes of the people of Wales in referenda over the years. I welcomed the introduction of the Sewel convention and its assertion that the UK Government would not normally legislate in devolved areas without consent, to protect and defend the powers of Welsh Ministers and the Senedd itself. That welcome was tempered by a concern shared by many others about the definition of “normally”. Our concerns have been justified. Despite assurances from Ministers during the progress of the Bill, recent history has shown that reality is completely different. Over the last three years or so we have been faced with an increasing disregard for the powers of the devolved legislatures, and an attitude which borders on contempt for the legislative consent Motions.
It is now accepted that the Sewel convention is no longer working. Sadly, its operation is seen as the biggest constitutional issue facing Wales. The First Minister has called for the re-establishment of the way in which the convention was respected from 1999 to 2019 and has supported the intergovernmental agreement that will lead to “some work” being done on how the Sewel convention could be strengthened. As he said in his recent appearance before the Commons Welsh Affairs Committee,
“if you cannot repair the Sewel convention, then one of the major underpinning props of the devolution settlement has simply been kicked from under it.”
Retained EU Law (Revocation and Reform) Bill
Monday 6th March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-V Fifth marshalled list for Committee - (6 Mar 2023)
Baroness Ludford (LD)
My Lords, I will speak to the proposal that Clause 12 should not stand part, which is in my name and those of my noble friend Lord Fox and the noble Baroness, Lady Chapman. I will also speak to the proposal that Clause 13 should not stand part, and to Amendment 111, which would require consultation, reasoning, et cetera for proposed restatement regulations.
My noble friend Lady Humphreys quoted the powerful view of the Delegated Powers Committee that Clauses 12 and 13 should be removed from the Bill because they inappropriately delegate legislative powers and appropriate powers that ought to belong to Parliament and be achieved subject to specific primary legislation. That committee brought to our attention, or reminded us of, the delegated powers memorandum, which says:
“This power cannot substantively change the policy effect of legislation.”
The DPRRC says:
“We doubt whether this is correct. Where there is ambiguity—
allowing Ministers to make changes to resolve ambiguities is one of three factors that a restatement is supposedly able to address—
“as to whether policy A or policy B is intended and the legislative restatement emphatically resolves in favour of policy A, the restatement has … made a firm policy choice”.
That view of our committee makes sense. It invited us to ask the Government to explain why none of the law that can be restated under the powers in Clause 12 would instead merit being restated in primary legislation. I hope the Minister will do so in his response.
The committee also draws attention to the powers that Ministers have, I think in Clause 14(6), to reproduce the effects of the supremacy of EU law, the retained general principles of EU law and retained EU case law, to ensure that the restatement has the same practical outcome that existed previously. These three elements are the ones that are otherwise abolished by the Bill; we debated that today in relation to Clauses 3 to 5. So the Government want to bring back, under Clause 14(6), the power for Ministers to reproduce the effects of the things they are abolishing, to ensure that the restatement has the same practical outcome that existed previously.
The DPRRC comments:
“This power may give rise to significant policy questions”,
but they are given to Ministers to answer rather than Parliament. I add to that a suggestion that it will also create legal confusion, because, on the one hand, you have abolished these three elements—supremacy, general principles and retained rights—yet, on the other, Ministers can bring them back. I have not quite worked out how that is supposed to work.
My noble friend Lady Humphreys quoted the fact that the powers in Clause 12 are completely “open-ended”, with
“no requirement for consultation … criteria … or … pre-conditions”.
That explains our Amendment 111, which again seeks to repeat the elements we constantly introduce.
The other thing that Clauses 12 and 13 give to Ministers, in restating REUL in secondary legislation, is the power to use different words or concepts from the original instrument and to make any change considered appropriate. That is rather worrying, and requires the Minister to explain what is meant by “restatement” if the restated law will be different in concept from the original law. To what extent can different words be used before the restatement changes into a new and distinct law? It is no longer a restatement; because different words and concepts have been used, it becomes, in effect, a new and distinct law. When does it morph into a new law, having started off as a restatement? There is quite some confusion on that.
Finally, if I have understood correctly the email from, and blog of, the distinguished legal commentator Joshua Rozenberg, it appears that he has been highlighting the fact that the pensions of some 11,000 serving or former part-time judges were going to be abolished because they relied on EU law. But apparently the Deputy Prime Minister, the Secretary of State for Justice, announced that he was going to save these pensions and that there was no intention to grab them back from affected judges.
I presume that this is the first announcement we have had of what is to be preserved under the Bill. Perhaps the Minister could confirm that. Obviously, I think it is a good thing. I do not think that judges’ pensions, any more than former MEPs’ pensions, should be whipped away. I suspect the Minister might agree on that point. That is a good thing, but we are still fighting for confirmation on things such as water safety, air quality, product safety, employment rights and everything else. When are we going to hear about what is going to be preserved from those other areas of deep concern? I am very pleased for judges, and indeed gratified, but it seems quite odd that we have had an announcement about that but we do not know whether anything else is going to be preserved. Perhaps the Minister could enlighten us in his reply.
Lord Hacking (Lab)
My Lords, I support Clauses 12 and 13 no longer standing part of the Bill. Opposition to those clauses has been led by the noble Lord, Lord Fox, and the noble Baroness, Lady Ludford. I support them on the very simple premise that the Government are attempting to sweep all legislation, including primary legislation which creeps up on secondary legislation; in other words, the secondary legislation has been adopted as primary legislation.
Before I go further—and I think I have attempted to do this already—I would like to put right the misconception that the EU law coming into our country was all under the carpet, that it was not considered and endorsed by Parliament. I suppose the Government have not put it quite so colourfully, but they could well say, on that basis, “What’s all the fuss about? The EU legislation arrived under the parliamentary carpet, why are you making all this fuss now?”
I want to correct that misconception. I sat for a number of years on the EC Committee and then the EU Committee in the 1980s and 1990s. I must have had about 10 to 12 years sitting on those committees—it was the same committee but it was renamed when the EC renamed itself the European Union. When I was on that committee, we had very alert clerks and very good relations with Brussels. The result was that when a regulation that caused concern was being considered by the Commission, with great co-operation from the Commission we were shown the draft of that regulation, really in its final form, before it was introduced as a regulation. We would examine it. It happened on a number of occasions; I cannot count the number. Your Lordships’ European Committee considered in detail the regulation, took evidence, wrote a report and sent that report back to Brussels.
I do not want to fancy ourselves too much, but the House of Lords European Committee had a great reputation in Brussels. Of all the parliaments in the union, we were the most constructive. I suppose I have to include whatever the other place was doing. With our good relationship with the Commission, when the Commission read our report it was influenced and changed the drafting of that particular regulation.
Of course, of the many regulations that were brought through when we were in the European Union, I am referring to only a few, but it is an example of how we were involved in the creation of regulations in an influential way.
Baroness Chapman of Darlington (Lab)
My Lords, I am grateful to the noble Baroness, Lady Ludford, in particular, for her speech. She said a lot of the things that I was going to say, and noble Lords should all be grateful to her, because she has saved them listening to me. We agree that we have real problems with Clauses 12 to 14. Our concerns about Clauses 12 and 13 are mainly about the extent of the powers that are going to be held by Ministers for national authorities, and the lack of consultation. I also want to mention Amendment 103 in the name of the noble Baroness, Lady Humphreys, because it seems appropriate, on the face of it, for the devolved Administrations to have rather more involvement than these clauses, as currently drafted, seem to allow for.
In Clause 12, it would be good to get a bit more clarity from Ministers on this issue of restatement. I am not entirely clear what is meant by restatement. It is rewriting, I think, because if it were not some sort of rewriting, it would just be “retain”; we would not be having another category called “restate”. Can the Minister define what is meant by “restate”? Obviously, it means that the language can be changed, which could change the meaning, the scope, the power of the law. It could be altered, maybe inadvertently or perhaps intentionally; so who is going to check that the restatement has the effect that Ministers would want, that the devolved Administration would want, that those who are subject to the law would want, or that Parliament would want? I understand if it is about wanting to bring different pieces of law together, perhaps, or to resolve some sort of ambiguity, but how is the Minister going to determine that something is ambiguous? If it is ambiguous, by definition that must mean that there is more than one way of interpreting this piece of law; if there was not, it would not be ambiguous. So how are they going to determine what the right answer to that should be?
The DPRRC is very helpful and clear about this. Apart from anything else, it says that both Clause 12 and Clause 13 should be removed from the Bill—we think it is completely right—because they “inappropriately” delegate legislative power and give
“Ministers powers to legislate to achieve effects that ought instead to belong to Parliament and be achieved in … primary legislation.”
But they also refer to restatement, as the noble Baroness, Lady Ludford, drew to our attention. We are concerned that that could take the Government somewhere they perhaps do not intend to go. Given the pressures on time, which we have already discussed at length—do not worry, Minister, I am not going to go through all of that again—restatement could have a different outcome from that intended. That is before we even get to the powers to revoke, which in some ways might be more concerning. That is a real problem for the Government, and it would be good to know whether they have recognised that potential issue and if so, what measures they have put in place to help prevent any undesirable outcomes that may arise.
I will leave it at that because we will probably come on to similar arguments in the next group. We are very concerned. We do not generally have clause stand part debates, but we are very worried about these two clauses in particular.
Lord Callanan (Con)
I thank all noble Lords who have spoken, and I will do my best to assuage the concerns of the noble Baroness, Lady Chapman. The main objective of this Bill is to end REUL as a legal category, as we have said many times. We view the powers to restate as critical to ensuring that the Bill delivers this vital objective, while at the same time ensuring that UK legislation is clear, accessible and improves legal certainty.
I will start by addressing the amendment in the name of the noble Lord, Lord Fox, which the noble Baroness, Lady Ludford, spoke to. Clause 12 is critical in ensuring that the UK and, crucially for the noble Baroness, Lady Humphreys, who I do not think is in the Chamber any more, devolved Ministers—
Lord Callanan (Con)
Oh, she is! I apologise to the noble Baroness. She was sat somewhere else earlier.
My point is that devolved Ministers would also have this power and are able to clarify, consolidate, codify and restate any secondary retained EU law to preserve the effect of the current law, while removing it from the category of retained EU law. Removing this power will remove the ability of departments to restate retained EU law to preserve the effects of retained EU-derived principles of interpretation in order to maintain the existing policy effect where it is considered appropriate for the UK in a post-Brexit setting.
The noble Baroness, Lady Ludford, queried whether restatements were just bringing back principles removed by the Bill. I can understand why she might think that, but other parts of the Bill are clear that supremacy and general principles are being abolished and Section 4 of the EU withdrawal Act is being reprieved. These principles or rights will not be recreated in general terms; rather, this power is limited to restating specific individual effects of these principles in particular case law. Indeed, this power will, I submit, provide greater legal certainty to the UK statute book by enabling Ministers—both UK and devolved Ministers—to restate REUL and codify the effects of retained EU case law or EU-derived interpretive effects in a clear and more accessible way.
On the query from the noble Baroness, Lady Chapman, the general legal definition of “restate” is to articulate the principles of REUL for a specific area of law—which is in fact what these powers do. I submit that there is no need to remove this clause from the Bill.
Turning to Amendment 102, tabled by my noble friend Lady McIntosh, I assure her that we have sought to ensure that the Bill contains robust scrutiny mechanisms, including for the power to restate under Clause 12. The noble Baroness, Lady Ludford, cited the comments from the Delegated Powers and Regulatory Reform Committee. I reassure her that the restatement power—I think this also goes to the heart of the query from the noble Baroness, Lady Chapman—can be used only to retain a current policy effect of specific individual implications of interpretive effects or retained case law; that is, it maintains the policy status quo, so there would be no changes to the underlying policy.
Regarding consultations, our expectation is that departments will follow the standard procedures with the devolved Governments during policy development. The UK Government are, as always, committed to respecting the devolution settlements and the Sewel convention. Indeed, as I said earlier, the majority of the powers in the Bill—including the powers to restate under Clauses 12 and 13—are indeed conferred concurrently on the devolved Governments. We will of course continue discussions with the devolved Governments moving forward to ensure that the most efficient and appropriate approach to REUL can be taken in a way that provides certainty for all parts of our nation. Therefore, we do not consider that adding a requirement to consult on the face of the Bill is necessary.
Amendment 103 would prevent the power to restate from being able to operate fully on devolved REUL. It is pivotal that there are no impediments or delays in delivering this much-needed REUL reform. I recognise the points that the noble Baroness, Lady Humphreys, made. Indeed, she may have concerns about the potential impacts of the power to restate within areas of devolved competence. However, I will endeavour to convince her that her concerns are unfounded. None of the provisions in the Bill, including the power to restate REUL, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments.
I turn now to amendments relating to Clause 13 and the powers to restate assimilated law, starting with the Clause 13 stand part notice; the noble Lord, Lord Fox, cannot be here, so the noble Baroness, Lady Ludford, spoke to it. Clause 13 is critical to ensuring that the Government are able to reproduce the effects of retained case law and EU-derived principles on the body of law that was REUL and becomes assimilated law at the end of 2023. This is essential to ensure that a consistent approach to the UK statute book can be taken following the sunset by enabling Ministers to exercise this power on former retained EU law that has not been revoked by the sunset and which remains on the UK statute book as assimilated law.
On Amendment 105, I reiterate that this Government recognise the importance of ensuring that legislation undergoes the appropriate level of scrutiny and consultation, and we are committed to working collaboratively and constructively with the devolved Administrations. Therefore, we do not consider it appropriate or necessary to add a requirement to consult to the Bill, because doing so would limit the ability of departments to use the power before it sunsets on 26 June 2026.
Amendment 106, tabled by the noble Baroness, Lady Humphreys, would require legislative consent to be sought from the devolved legislatures before a UK Minister makes regulations under the power to restate assimilated law in areas of devolved competence. I reassure the House again that none of the provisions in the Bill, including the power to restate assimilated law, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments. The majority of the powers in the Bill, as I have said, will be conferred concurrently on the devolved Governments. This will enable them to make active decisions regarding their retained EU law or assimilated law within their areas of devolved competence, and it will provide them with greater flexibility to decide how to regulate those areas currently governed by REUL within their competence.
I will move on to Amendment 107. As I have said, we are committed to devolution and to working collaboratively and constructively. We are committed to continuing discussions with the devolved Governments moving forward to ensure that the most efficient and appropriate REUL can be taken to every situation in a way that provides certainty for all parts of the UK.
Baroness McIntosh of Pickering (Con)
My Lords, this has been a good debate. There is a body of opinion which is strongly opposed to the three clauses subject to the clause stand part notices, two of which are in this group.
I will express my personal disappointment. I am grateful to my noble friend for the replies that he gave, as far as they went, but I was told earlier by my noble friend Lady Bloomfield sotto voce that I could expect a reply on what the Government’s response is to the Scottish Parliament having withheld its consent. I thought that this was the group in which we would hear that. It echoes entirely the concerns about legislative consent Motions from the Welsh Assembly expressed by the noble Baroness, Lady Humphreys. Both the Scottish Parliament and the Welsh Assembly are concerned that their views are not being heard. I place that on the record.
I have no reason to doubt that my noble friend is right that there will be consultations. One of the Law Society of Scotland’s concerns, which I share, is that it is becoming an increasing habit of this Government to hold consultations over sometimes a 12-week period, and sometimes substantially less, and not publish the results in detail. For legislation such as this it is extremely helpful to know a little more detail. They would be published online anyway, so it is not as though people have to print it off at vast expense. The Government should not be afraid of publishing the results.
For the moment, without prejudicing what might happen at a later stage of the Bill, I beg leave to withdraw my amendment.
“(1A) Before making regulations under subsection (1) a relevant national authority must consult with any person who may be affected by the proposed regulations.(1B) If a Minister of the Crown proposes to make regulations under subsection (1) which concern devolved matters the Minister must before making the regulations consult with the relevant national authority.(1C) A relevant national authority and, where subsection (1B) applies, a Minister of the Crown must publish the results of any consultation conducted under subsection (1A) or (1B).”Member's explanatory statement
This amendment requires a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations under subsection 15(1) before making them. All relevant national authorities are required to publish the results of the consultation.
Baroness Chapman of Darlington (Lab)
My Lords, I am happy to briefly introduce Amendment 112 on behalf of the noble Baroness, Lady McIntosh. It is a pleasure and I thank her for inviting me to do so. Amendment 112 would require a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations under Clause 15(1) before making them. All relevant national authorities would be required to publish the results of the consultation.
We have been discussing Clause 15 on and off since we started. It is about the power to revoke and has caused a great deal of interest among noble Lords as we have gone through this. We have tabled Amendment 113, which would remove some important measures from the scope of Clause 15. We went for what we thought were the least controversial topics imaginable, so we have the Cocoa and Chocolate Products (England) Regulations 2003, some regulations on toy safety, regulations on the control of asbestos—which we discussed at length on day one—and the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005.
What we are trying to get at here is this issue of desired policy effect. Repeatedly, we have been assured by Ministers that we have nothing to worry about; every time we raise a particular measure, we are told, “No, that’s all fine; we are going to keep that one.” If that were the case, then an amendment such as Amendment 113 would pose no threat to Ministers because they would be able to back up their assurances with something within the Bill that would mean something.
Not anticipating that that is about to happen, I thought that I should explain a little further why we are quite so concerned about this. Clause 15(2) talks about the right of the relevant national authority to
“revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives.”
It is quite a broad power to be able to revoke a law and replace it with something else that the national authority thinks is appropriate—never mind what anybody else, this House or the other place might think. Achieving similar objectives is all very well, but the Bill does not say that the replacement law must have the same effect, which is very different. The DPRRC draws our attention to this as well. In fact, the committee says:
“Clause 15 is the most arresting clause in the Bill for its width, novelty and uncertainty,”
which is pretty strong language for this kind of report. This is something that we will definitely want to come back to at a future stage.
I find Clause 15(3) to be the most concerning thing. It states:
“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision”,
but it does not say what the desired policy effect would have to be. The Government do not set out anywhere what their policy outcomes are intended to be, so we cannot challenge the Government by saying that their replacement law is or is not going to meet their policy objective.
We have touched before on the issues raised by Clause 15(5). Ministers know that we are very worried about the last part of that subsection, which says that any changes must
“not increase the regulatory burden”.
A law can be revoked and replaced, but the regulatory burden must not be increased. When we have touched on this previously, we have been told that our understanding is not quite correct, because we were talking about categories of law and the burden must be the same in total across a category of law; a particular measure may result, on its own, in an increase in burden. The “burden” is defined as a financial cost; an administrative inconvenience; an obstacle to trade; an obstacle to efficiency, productivity or profitability; or a sanction, criminal or otherwise. That seemed very odd to us. We are not clear what a “category of law” is and, as far as I can see, it is not stated anywhere in the Bill. This would seem an appropriate set of amendments where the Minister might further explain exactly what is intended.
Lord Clement-Jones (LD)
My Lords, I will speak to Amendments 114 and 120 in the name of my noble friend Lord Fox, who, as the Committee knows, is unable to be with us today, sadly. I will also speak to the clause stand part notice.
As the noble Baroness, Lady Chapman, said, this clause is fundamental to discussion of the Bill. She referred to the DPRRC report and, if we thought that it was scathing about Clauses 12 and 13, as the noble Baroness rightly said, it is extremely concerned about Clause 15. Not only was there the phrase that she mentioned, but its conclusions were pretty damning, at the end of the day. It said:
“Clause 15 contains an inappropriate delegation of legislative power and should be removed from the Bill. It gives Ministers an extraordinarily wide discretion to revoke and replace secondary REUL merely where Ministers regard it as appropriate to do so. Clause 15 contravenes the commitment given at the time of the 2018 Act, a commitment that was enshrined in section 8 of the 2018 Act, that substantial policy changes to REUL should be for Parliament in primary legislation rather than for Ministers in secondary legislation … We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether.”
This is a very strong recommendation from the DPRRC, whose conclusions we always take extremely seriously in this House. The noble Baroness also referred to the difference between effects and objectives. That was the purpose of Amendment 114.
I really want to speak about some of the impacts of Clause 15(5), also mentioned by the noble Baroness. During our extensive debate on Clause 1, on Thursday 23 February, I mentioned the potential sunsetting of product and consumer safety regulations as an example of the extreme danger posed by the Bill and that, far from there being a need to deregulate, there is in fact scope for improvement in safety standards, particularly regarding online transactions.
Under current product safety legislation, online marketplaces are not accountable for the safety of products being sold by third parties, which enables non-compliant and unsafe toys to be sold in the UK. I went on to give some examples of products, particularly one involving magnets and a young girl called Rebecca McCarthy, who was left critically injured after swallowing 14 magnets that were above the legal limit. I referred also to the fact that Which? has regularly found unsafe products offered for sale in online marketplaces, including Christmas tree lights that were a fire and safety hazard, baby carriers that posed a suffocation risk and electric blankets that were so poorly made that they risked giving electric shocks.
I mentioned a recent report by the National Audit Office that found that product safety regulations had not kept pace with the trends in online commerce; it noted that online marketplaces were used by about nine in 10 adults but were not responsible for the safety of goods sold by third parties. I also pointed out that the Office for Product Safety and Standards had been consulting on the UK’s product safety framework, in particular addressing the lack of obligations on online marketplaces to place only safe products on the market, in a similar way to how obligations apply to traditional retailers.
A number of noble Lords, including the noble Baroness, Lady Thornton, mentioned the review at the time. Of course, that makes the ambit of Clause 15, the subject of this debate, particularly relevant: not only is sunsetting available under the Bill but there is the right to revoke until 2026, as we see in the clause.
We can debate changes to Clause 15, such as those contained in Amendments 114 and 120, but it is the whole clause that creates the damage. In her letter of 28 February, the noble Baroness, Lady Bloomfield, refers to the review of the Office for Product Safety and Standards and seeks to reassure us about the ambit of Clause 15. I recognise that this letter has not had universal acclaim. I think that perhaps one of the kindest comments was made by the noble Lord, Lord Carlile of Berriew, who said it was
“a letter which can be described only as obfuscatory, tautological gobbledegook”.—[Official Report, 28/2/23; col. 169.]
If that is the kindest thing that we can say, we have more to discuss.
In the letter, the noble Baroness explicitly says that
“it is possible for additional regulations and higher standards to be introduced through the powers to revoke or replace, so long as”—
this is the crucial bit—
“the package of reforms contained within each statutory instrument does not increase the overall regulatory burden for that particular subject area”.
My bafflement is equal to that of the noble Baroness, Lady Chapman. The letter continues:
“For example, through removing unnecessary or unsuitable regulations or consolidating multiple regulations into one, it will be possible to add new regulations with higher standards provided that the overall regulatory burden is not increased Therefore, it will be possible for a single instrument made under the power in clause 15 to increase the regulatory burden, so long as this increase is offset by a decrease of regulation in the same subject area”.
Here is the rub:
“It will be for the relevant Minister or devolved authority to decide if they are satisfied that the use of the power does not increase the overall regulatory burden in a subject area”.
So it is for the Minister to decide—itself hugely objectional, as discussed on the third day of Committee—but let me set the Minister a hypothetical if he is to decide in this area. If the product safety review recommends that we need a major increase in product safety regulation to cover products sold on online marketplaces, how on earth is that going be balanced by a decrease in regulation within the same package of reforms so that it does not fall foul of Clause 15(5), especially given the definition of burden under subsection (10), which is pretty extraordinary in itself and which I am not going to quote? What would the Minister suggest? Some heavy deregulation on toy safety perhaps, or for baby carriers?
This clause is nonsense and potentially extremely dangerous nonsense. However, in the debate on Amendment 16, the noble Baroness tried to reassure us that the Government are committed to protecting consumers from unsafe products. How on earth could and should something as desirable as product safety for internet-purchased products need to be balanced by deregulation on product safety elsewhere?
It begs the question of how wide the package is within which the Minister will make a judgment. This is the nub of what the noble Baroness was hoping to elicit at some stage—I hope she does. How wide is the package within which the Minister will make a judgment? Is it across the whole of what we described in the debate on the first day as “a bucket”? If so, what is the potential size of a bucket, dear Liza? This is especially relevant as the Minister’s letter says the search is still on for retained EU law. It is the hunting of the Snark, clearly.
Finally, the DPRRC made it clear that we should delete Clause 15. I have a particular objection to subsection (5). I very much hope that, if we have a satisfactory debate today, we will move on to Report and delete Clause 15 at that stage.
Lord Hannay of Chiswick (CB)
My Lords, I support the opposition to Clause 15 standing part. Other noble Lords have explained potently why it should not. It is the epicentre of taking back power to the Executive and not to Parliament. It is at the heart of the debate we have been having for three days—it is now the fourth day and the fifth is to come. If Clause 15 stands part, the taking back of control to the Executive and not to Parliament will have been consecrated by Parliament, and that would be a terrible error.
The clause contains a bizarre reference to the overall regulatory burden not being increased. This is a phrase in legislation without a metric. There is no description whatever of how this will be judged. I can perfectly well see a Minister from the Front Bench, whenever an attempt is made to change a government proposal, nodding his head sadly and saying, “Ah, yes, I’m afraid you can’t do that, because the regulatory burden will be increased”. It is just a catch-all, kill-all argument yet again for the Executive to have absolute authority. Those are the reasons why I argue that Clause 15 should not stand part.
Baroness Thornton (Lab)
My Lords, I rise to speak to Amendment 118A in my name. I thank my noble friend Lady Chapman for her kind words about my modest amendment, and other noble Lords. From the discussion at Second Reading when my noble friend Lady Crawley referred to human rights and equality, and from earlier in Committee, it became clear to me that it is necessary to provide protection for human rights and equality and their infrastructure in the UK in the Bill.
I actually have been on the dashboard. I went to have a look to see whether I could gain some knowledge and possibly reassurance about the consequences of the Bill. I spent an hour or so putting questions about a variety of issues; of course, human rights and equalities are not a government department so I had to work out how to identify them across the variety of departments concerned. Digging into workers’ rights, I found descriptions of all kinds, many of which have been mentioned in the Committee over the past few days—maternity rights, trade union rights, and so on—but what I could not find out was what might be retained, what might be changed and what might be abandoned, so clearly I either need to spend more time communing with the dashboard or perhaps the criticism levelled at it in earlier debates has been borne out.
As a result, like other noble Lords I decided that the only safe solution was to require, as the noble Lord, Lord Krebs, proposed earlier today for the Food Standards Agency, that any proposed change, revocation or alternative provision should require an opinion from the EHRC on its impact on equalities and human rights before the powers can be used. Parliament gave the EHRC powers to advise on the equality and human rights implications of laws and proposed laws and to publish information and advice, including to Parliament, on any matter relating to equality and human rights. The breadth of law within the scope of the Bill is considerable and has considerable implications for equality and human rights. They include, but are not limited to, parental leave, annual leave, rights for part-time workers, maximum hours for heavy goods vehicle drivers, and other employment rights. The Bill could also impact on laws on minimum rights for refugees and disabled people’s access to rail and air transport.
So rather than going into detail about all the things that might be affected by this, I thought it would be worth putting on the record five concerns that the EHRC has about the Bill and why this amendment is important. These are:
“Uncertainty about the Government’s policy intentions and potential effects on equality and human rights protections … lack of parliamentary scrutiny of potential changes … limited time available before the proposed ‘sunset’ date … Legal uncertainty resulting from the Bill … implications for devolution and the Union”,
which are immense. So it seems to me that this amendment should help the Government. It is a logical answer to those concerns, and I hope that the Minister might see it in that light.
Lord Lucas (Con)
My Lords, I am much more a supporter of this bit of Bill than some, but even I am astonished by Clause 15(5), which seems to introduce uncertainty and immense delays in the process without offering any great benefit. After all, what we are talking about here is essentially declaratory legislation. It is the Government saying, “We are not going to increase the burden of regulation by what we do under this Bill”. It is a political promise. It will, by and large—unless the Government chose to commit suicide, which is always possible—be delivered before the next election, so there is no benefit to be gained from this declaration. The Government will do it anyway and they will make the changes they wish to make, but the Bill introduces huge uncertainties.
I go back to my previous intervention when I queried the letter that we got as a result of the first day in Committee, which I think misinterpreted the way this subsection works. It is clear to me that, in deciding whether you are allowed to deregulate, you have to look at all the previous regulations made under this section within that subject area and decide whether your particular regulation plus all those adds up to something deregulatory.
It is going to get challenged in judicial review. If you give a water company a couple of hundred million quid fine for dumping turds in the Thames, you will find that its lawyers look at opportunities. Through this section we have introduced so much vagueness, such widespread uncertainty, that whether the regulation is in any way valid can be questioned at enormous length—including, as the noble Baroness, Lady Chapman, says: what is the subject area? Has the Minister got it right? Should it have been narrower? Should it have been larger? What is the right way of measuring these things, of all the things that can be taken into account in regulatory burden? Have they been weighed correctly?
It is total apples and pears mathematics anyway. How on earth do you summon these things to produce a single-digit answer? There is no formula in here as to how you can weigh an obstacle to trade and innovation against an administrative inconvenience. There is no way you can use this clause to arrive at a safe answer. The Government will never know—because of Clause 15(5)—whether any legislation that they have passed through Clause 15 is valid. It will be open to endless challenge. Because of that, in deciding whether to bring forward regulations under this clause, civil servants will have to go through the most enormously detailed and tiresome exercise to discover whether they will be able to make this balance work. That must add hugely to the delays.
I entirely appreciate what my noble friend on the Front Bench said on our previous day in Committee: that the Government want to get on with this and that he has his suspicions—which I hope do not embrace me—that there are people who do not want him to get on with it quite as quickly as he would like. I want these things to happen with speed and accuracy but the work that will have to go in to satisfy Clause 15(5) is huge, and an enormous diversion of effort away from the purposes of this Bill.
As the noble Lord, Lord Clement-Jones, pointed out, the only way of avoiding it is to introduce some whacking bit of deregulation smack in the middle of the most important subject areas, such as—let us take the environment since that is something I am heavily involved in—some enormous bit of environmental deregulation; then you know that you are safe because the rest of it cannot add up to excessive regulation.
We have been promised that that is not going to happen, in any segment of the Bill, so that is not open to the Government. They will have to weigh these little changes, pluses and minuses, in detail, every single time—to achieve what? As I said, to achieve nothing, because all of this is totally in the Government’s control. They can choose whether a particular instrument increases or decreases the regulatory burden and they will do it all within their term in office. There is absolutely no net benefit at the end of the day for all the work, difficulty and uncertainty of this, except that it will reduce the chances that my noble friend will achieve what he says are his objectives.
Of course, I am well used to getting things wrong in this House, and it may well be that I have here. In that case, I have Amendment 134, which mimics Clause 15(5) and says, “If you’re going to do this and we’re going to have declaratory legislation, then let’s do it for the environment”. Let us put in this Bill the promises the Government have made in front of us in this Committee about their environmental legislation, and then we can all be comfortable and spend the rest of the decade challenging their interpretation of that.
Lord Hacking (Lab)
My Lords, I want to draw attention to two paragraphs in Clause 15 to which there has not been any reference in our Committee. Indeed, I do not think there has been any reference to them since Second Reading, but concern was certainly raised then about Clause 15(4)(c) and (d), and it is those that I now want to address.
We should remind ourselves that immense powers are vested in the Minister under Clause 15. Subsection (1) allows them to
“revoke any secondary retained EU law without replacing it”,
while subsection (2) allows them to
“revoke any secondary retained EU law and replace it with such provision as the relevant national authority”—
that is, the relevant Minister—
“considers to be appropriate and to achieve the same or similar objectives.”
That is a power, without reference to Parliament, resting entirely in the hands of the Minister.
I now turn, more precisely, to Clause 15(4)(c) and (d). I shall read those paragraphs out to your Lordships. When replacing revoked secondary EU law, the Minister has the power to
“create a criminal offence that corresponds or is similar to a criminal offence created by secondary retained EU law revoked by the regulations”,
and, in paragraph (d), to
“provide for the imposition of monetary penalties in cases that correspond or are similar to cases in which secondary retained EU law revoked by the regulations enables monetary penalties to be imposed”.
It has been a cardinal feature of our law that the creation of criminal offences and the penalties that arise from the breach of those offences rest entirely in primary legislation. If, hidden under some carpet, there have been EU regulations that create a criminal offence or monetary penalties, then I am ashamed and embarrassed. But for the Government now to seek powers to replace them—again, without putting that before Parliament—is another wrong. My simple contention to your Lordships is that two wrongs do not make a right.
The Earl of Lindsay (Con)
My Lords, I shall speak to Amendments 121 and 123 in my name and that of the noble Baroness, Lady Crawley. At Second Reading I welcomed the opportunity created by the Bill to review, improve and update a wide-ranging tranche of important legislation. However, I expressed some concerns about process, and one of those is the constraint that I believe Clause 15 imposes on improving and updating existing legislation. That constraint is also a concern to the Chartered Trading Standards Institute and Which?, among others. Here I should declare an interest as the president of the CTSI, my predecessor in that role being the noble Baroness, Lady Crawley.
The principal constraint I am referring to has been well articulated by the noble Baroness, Lady Chapman, the noble Lord, Lord Clement-Jones, and others: Clause 15(5) —namely, the proposed requirement that any changes to retained EU law should have an overall effect of not increasing the regulatory burden. I say immediately that I am a long-term advocate of better regulation. Over the years, I have served on the better regulation commission and various other bodies advising government on what better regulation looks like and the framework for its development and oversight. I fundamentally believe that regulation should be avoided wherever there is an effective alternative and that, when there is no alternative, it should be designed so that it achieves its desired effect with the least possible burden.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I would also like to speak in support of the amendments on the definition of regulatory burden, because the truth is that throughout our history, one person’s burden has also possibly been somebody else’s vital protection. This is particularly true in respect of employment rights.
It was good to hear the Minister talking positively about the living wage, which started life as the national minimum wage. As somebody who campaigned for it, I vividly remember huge opposition and resistance to the introduction of a national minimum wage, precisely on the grounds that it would be a burden on employers, cost too much and so on. Of course, today, it is now seen as one of the most successful policy innovations this country has ever delivered. I might add that it has been delivered on the advice of one of our few remaining tripartite bodies to make recommendations to government—the Low Pay Commission.
I am also particularly concerned about this clause’s impact on equality. Equal rights for part-time workers, which we also campaigned for, meant that, for the first time, millions of women in particular had access to occupational pension schemes. Without doubt, some might describe that as an administrative burden and an added cost for employers. I would argue that driving up labour standards is good for productivity, protects the decent employer against the bad and is ultimately good for our country. We want a country where people can work and retire with dignity. This clause is really unhelpful: the definition of “burdens” is unhelpful and does not appear to consider the impact on ordinary working people at all. It would be wise to drop it.
Baroness Ludford (LD)
My Lords, we have heard some excellent contributions in this debate, not least the latest one from the noble Baroness, Lady O’Grady, and those of the noble Lord, Lord Lucas, and the noble Earl, Lord Lindsay. My noble friend Lord Clement-Jones made an extremely powerful case on product safety in online marketplaces. In the course of his contribution, he, like others, tested or tried to probe what “subject area” means—the Bill says, “a particular subject area”. I am afraid we are rather used to this, but the letter that we received from the Minister simply repeated that and did not explain it. It said:
“it will be possible for a single instrument made under … clause 15 to increase the regulatory burden, so long as this increase is offset by a decrease of regulation in the same subject area.”
But it did not enlighten us about the scope of a subject area, because that is a very subjective definition.
The noble Lord, Lord Lucas, said that if civil servants were considering one new measure they would have to look at all of the past measures. I suggest that they would have to look at all of the anticipated future measures as well and be Mystic Meg, because they need to know what is coming down the track to take any kind of view of what a single instrument might do to the weighting of the scales in the balance and amount of regulation. It is a bit of a lottery whether any single measure will fall foul of the overall regulatory burden test.
I note that the Minister’s letter admitted that
“There is no definition of regulatory burden in the Bill, as the Government considered that such a definition could unnecessarily constrain departments given the considerable variety in what is covered in regulations across Government.”
This is not the first time that we have been told that we must not unnecessarily constrain departments—which means unnecessarily constrain Ministers. So consultation, analysis, publication of the results of consultation and the role of Parliament all have to fall by the wayside because we must not unnecessarily—that is a loaded word—constrain departments: that is, constrain Ministers. The Government are acting in a very arrogant and high-handed way. They are getting too big for their boots by saying that nothing should be allowed to constrain ministerial powers. I am quite fed up with it.
So we are not getting any satisfactory explanation of how Clause 15 will be applied, and we cannot have any confidence, given the factors in Clause 15(5), that it will not lead to a de facto lowering of standards. That is the whole thrust of what has been talked about, and the whole rhetoric around the Bill, which started as the Brexit freedoms Bill, so it is very difficult to trust the assurances we have had that Ministers do not intend to lower standards.
During an evidence session with the House of Lords Environment and Climate Change Committee, the Secretary of State for Defra referred to the goal of the Environment Agency
“to change quite a lot of the water framework directive”.
That immediately makes one somewhat worried. It may well be that we need a sensible approach to looking at the water framework—and even my favourite one, the urban waste water treatment directive—but it is well known, and a source of great public concern given the state of our rivers and seas because of the discharge of raw sewage, that tackling the dire state of our waters will not be possible without substantial investment, which would trigger both a financial cost and the profitability limbs of Clause 15(5). So how will Clause 15 be a route through which the Government deliver improved environmental outcomes? There is a simple contradiction at the heart of all this.
The noble Lord, Lord Benyon, has told the Committee several times that the Government are committed to maintaining high environmental standards and that they want to see standards improve in future, but the whole thrust of Clause 15, particularly subsection (5), pulls in the opposite direction. You can just see water companies coming along and saying, if we require them to improve our pipes—which are bursting all the time, not least in my neck of the woods in Islington—and to stop raw sewage discharges by having better treatment facilities, that it will reduce their profits, which are of course being creamed off, with no benefit to consumers and citizens. So it is clear that the thrust of all this is towards a lowering of standards, and it is really impossible to believe the opposite of the case.
Finally, I will speak to the weakness of the “same or similar objectives” test. The reason for us wanting to replace “objectives” with “effects” is because you could have a law which might have the same or similar objectives of protecting consumers, but which will achieve the objectives in ways which are controversially different. I will leave noble Lords with the example of parental leave. The noble Baroness, Lady O’Grady, talked about various employment areas, and one of those rights is to parental leave. If Ministers wanted to have replacement regulations under Clause 15, they could argue that they could decide to give employers the right to refuse leave rather than just postponing it, as they are able to do in narrow circumstances where the operation of the business would be unduly disrupted. The Government could say, “Oh, well, we would be pursuing a similar objective of creating provision for parental leave while protecting businesses from being disrupted”. But if you gave employers the right to refuse leave—pursuing the similar objective because it is about parental leave—you would be driving a coach and horses through the parental leave rights.
Clause 15 is riddled with weaknesses and dangers; it is a “Here be dragons” clause, and it should be removed. It cannot be improved, and it should be taken out of the Bill.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, this has been a good debate, probing our powers to revoke or replace, which are important cross-cutting enablers of the REUL reform in the Bill. They will allow the Government to overhaul retained EU laws in secondary legislation across many sectors of the economy, as we have heard, and replace them with domestic laws that are tailored to and beneficial for the UK.
It would make sense to begin with the debate on the clause stand part notice, which was introduced by the noble Lord, Lord Clement-Jones, and supported by the noble Lord, Lord Hannay, and explain why we believe that Clause 15 must stand part of the Bill. Retained EU law no longer aligns with EU law, nor does it keep pace with the evolving needs of the UK’s citizens or businesses. That is why reform is needed. Although the Government recognise the importance of ensuring that delegated powers are appropriately limited and have the necessary safeguards in place, we judge the powers under Clause 15 to be necessary in order to deliver this reform. I am afraid we do not agree with the DPRRC recommendation to remove Clause 15 from the Bill.
At present, the problem is that there is a distinct lack of subordinate legislation-making powers to remove retained EU law from the statute book. This is an oddity. It results from our EU membership and it is appropriate to take a power which covers the gap. Removing Clause 15 would significantly damage the UK’s legislative dynamism and potentially hinder the UK’s ability to regulate adequately. There must be scope for reform over the next two to three years if we are to deliver post-Brexit benefits.
I note that the noble Baroness, Lady Chapman, raised concerns in particular around Clause 15(3). We recognise that the power under Clause 15(3) is a broad one, but we want to ensure that departments have the necessary tools to create a regulatory environment which is the right fit for the UK. In addition, Clause 15(3) may still provide only “alternative provision” to the retained EU law or assimilated law being replaced. Any replacement legislation must therefore cover similar ground to the retained EU law or the assimilated law it replaces. Therefore, the power cannot be used to create new regulations in wholly unrelated policy areas, for example. Moreover, I add that nothing in this legislation prevents the Government introducing sector-specific primary legislation where that is considered necessary and appropriate for that subject area, as exemplified by the Procurement Bill, the Agriculture Bill and the Environment Bill in recent times.
I turn to Amendment 112, introduced by the noble Baroness, Lady Chapman, and tabled by the noble Baroness, Lady Mcintosh of Pickering. Although the latter has gone home, I listened to this with care. The amendment would hinder the removal of regulations that have been identified as outdated and unsuitable for UK citizens and businesses, which we do not think would be efficient lawmaking. As I touched on before, we do not consider adding to the Bill a requirement to consult to be appropriate or necessary. Equally, I understand the concerns that have been raised.
I turn to Amendment 113, tabled by the noble Baroness, Lady Chapman. Honourable Members—sorry, noble Lords: exempting regulations and judgments on customer protections, which range from aviation to pensions and, indeed, to toy safety, which the noble Lord, Lord Clement-Jones, spoke to, from this power would obviously reduce the scope for reform that the Bill sets out to deliver in an orderly manner. There is simply no need for any carve-outs for individual departments or specific policy areas or sectors. Doing that would prevent the UK Government carrying out the necessary work to overhaul secondary retained EU law, which sits across so many different sectors of the economy.
I think my noble and learned friend Lord Bellamy talked about tides and how EU law had become entrenched in UK law. Where protections are necessary, these will be kept, but there is an opportunity to improve and in some places simplify laws passed over many years in Brussels.
Turning to Amendment 114, introduced by the noble Lord, Lord Clement-Jones, Clause 15(2) has already been restricted such that any replacement legislation must be appropriate and must
“achieve the same or similar objectives”
as the legislation it is replacing. This amendment seeks to further restrict that subsection. The use of the word “effects” instead of “objectives” would further restrict the functionality of this limb of the power and prevent departments undertaking reforms that would adjust the existing policy to better fit the UK context. It is important that we ensure departments are able to amend their legislation to better fit that UK context, so this is an important clause.
Amendments 120 and 121, tabled by my noble friend Lord Lindsay, both seek to amend the limitation on Clause 15 that states that the replacement legislation must not add to the overall regulatory burden—so allowing extra burdens. In seeking to remove Clause 15(5) and (6), both amendments would increase the scope of the powers and enable them to be used to introduce additional regulation. Consequently, they would create a wider power than the Government have proposed or intended. As such, these subsections are a necessary check on our powers. Comments have been made that Clause 15(5) and (6) mean that regulation made under these powers could be challenged by the courts. That is of course correct, and like any delegated legislation, an entirely appropriate check.
We recognise that it will not always be a scientific test precisely to establish what the value of regulatory burdens are, or to balance one burden against another. That is why we have sought to ensure an appropriate level of discretion for Ministers in the interpretation of Clause 15(5) and (6). When doing so, the Minister is required to act reasonably and to take into account relevant factors. This strikes the right balance between limiting the scope of the powers and providing Ministers with a pragmatic degree of discretion in deciding whether the regulatory burden test has been met. The restriction to the powers to revoke or replace set out in Clause 15(5) and (6) will help the UK to establish a more UK-specific regulatory approach in order to go further and seize the opportunities of Brexit.
We have sought to ensure that the powers to revoke or replace cannot be used to add to the overall regulatory burden for a particular subject area. However, it will be for the relevant authority to decide. I thought I would share with noble Lords a hypothetical example from my own experience. There may be instances where there are multiple reporting requirements for businesses across a number of regulations in a similar area. Through consolidating these reporting requirements in a single regulation—aligning dates, for example—it can be administratively easier for businesses to comply with the regulations, and it may be possible thus to lower the regulatory burden while maintaining exactly the same standards and, indeed, possibly providing better enforcement. I hope that example reassures my noble friend Lord Lindsay, who I know does so much to try to tackle overburdensome regulation.
In responding to the interesting point made by the noble Lord, Lord, Hacking, about the ability of the powers under Clause 15 to create a criminal offence and provide for monetary penalties, I hope I can be reassuring. Any offences or penalties must correspond to, or be similar to, those which the revoked provisions provided. In that sense, the power does not provide licence to create wholly new offences or penalties, but rather allows like-for-like replacements for what already exists: for example, similar conditions for the commission of an offence and similar penalties. Furthermore, any instruments made under Clause 15(3) will be subject to the affirmative procedure, as well as any instruments made under Clause 15(2) which recreate a delegated power or create a criminal offence present in retained EU law.
To conclude, it is right—
Lord Clement-Jones (LD)
My Lords, I wanted to interrupt the Minister before she got much further because I was much struck by her phrase “damaging legislative dynamism”. What would be more dynamic than changing retained EU law in product safety so that it covered online marketplaces? If that is legislative dynamism—very desirable legislative dynamism—what would prevent it? Well, Clause 15(5) would prevent it. How could it be possibly balanced against any other form of deregulation, however much discretion the Minister had? That would be around the edges. Can the Minister answer the hypothetical that I put in my speech?
Baroness Neville-Rolfe (Con)
There is a balance here. What we have got are powers that allow us to make changes, such as the example that I gave, which will improve the state of regulation. There may be a bit of an extra burden at the margins, but if you are bringing regulation into a new area, which I think is what we are talking about, in my opinion—and I am not an expert in this particular area—that might be a case for primary legislation. Of course, we are about to have further primary legislation in the digital area in the coming months.
Lord Hacking (Lab)
I thank the Minister very much indeed for sitting down. The Minister did not quite answer my cardinal point that it is well-established in our law that all criminal offences, and all penalties arising out of those criminal offences, are part of primary law, not secondary law. That means that, if there are EU regulations that are creating criminal offences and penalties, they are no more right than the current proposal that Ministers will now do it. Both are wrong.
Baroness Neville-Rolfe (Con)
The point I was making is that we are not creating new offences with these provisions. I will look further at Hansard, but I think that what I said was right and not a cause for concern—obviously, there were penalties attached to Section 2(2) and so on, in my experience.
I need to move on. Amendment 121A was tabled in the name of the noble Lord, Lord Whitty. As I made clear in relation to the previous amendments, the restrictions to the powers set out in subsections (5) and (6), combined with a non-exhaustive list under subsection (10), will help the UK to establish a more nimble and innovative approach to seize Brexit opportunities. Furthermore, the ability for the powers to act on assimilated law after the sunset date will enable the Government to have sufficient time to undertake necessary reform. However, the Government agree with the principle that adequate limitation should be in place on the exercise of powers. We have sought to ensure the powers are restricted in their use and are available only in a time-limited window—this ends on 23 June 2026.
In the same spirit, Amendment 123, tabled by the noble Earl, Lord Lindsay, seeks to remove the non-exhaustive list in Clause 15(10). Let me again assure the Committee that the requirement not to add to the overall regulatory burden has been drafted in a manner which will allow the relevant national authority to determine how best to achieve the desirable policy outcome.
I turn to Amendment 134A, in the name of my noble friend Lord Lucas and pick up on the comments of the noble Baroness, Lady Ludford. Honourable Members—sorry, I should say noble Lords. I think I need to pay 50p for any such mistakes; I am sorry about that. As outlined by my noble friend Lord Benyon on day two of Committee, the Bill will not alter our commitments to the environment. The Minister made it clear in his speech that the default position of Defra is to retain EU laws. This will allow us to keep protections in place, providing certainty to businesses and stakeholders, and to make reforms tailored to our needs. The Government also recently announced the environment improvement plan, on 31 January 2023, which sets out comprehensive action that the Government will take to reverse the decline in species abundance, achieve our net-zero goals, and deliver cleaner air and water. I hope this will help reassure the Committee that the Government will not be trashing the kind of protections that we want to continue and improve. There will also be a further opportunity to discuss the environment in a later grouping on Wednesday.
Lastly, I turn to Amendment 118A—it was the last amendment to be tabled so I have come to it last—for which I thank the noble Baroness, Lady Thornton. Her proposed criteria include a requirement to share the draft instrument with the Equality and Human Rights Commission, and for the commission to provide an assessment setting out the potential legal impact on human rights and equalities, including in relation to the Equality Act 2010 and the Human Rights Act 1998. As such, no replacement provision could be made under Clause 15(2) and (3) unless the Equality and Human Rights Commission had confirmed that there was no negative impact as a result of the proposed draft instrument.
We fully intend to maintain the UK’s leading role in the promotion and protection of human rights and the rule of law. We have a long, proud and diverse history of freedoms and we will ensure that our international human rights obligations continue to be met. The powers to revoke or replace are important cross-cutting enablers of retained EU law reform in the Bill. Clause 15 has been purposefully drafted to be broad in scope, and we have sought to ensure that there are important safeguards in place. This amendment would restrict the ability for the powers under Clause 15 to be used to undertake important REUL reform, so we do not believe that it is necessary.
Baroness Thornton (Lab)
Could the Minister write to tell me what the safeguards she is referring to are? She probably does not want to explain them at this time of night, but I cannot see anything in the Bill that tells us what safeguards there are. Perhaps she could write and tell the House what they are.
Baroness Neville-Rolfe (Con)
I think the safeguards were in relation to the clause as a whole, but I will certainly write to the noble Baroness. This has been an important discussion, but for now I ask the noble Baroness, Lady Chapman, to withdraw the amendment.
Lord Lucas (Con)
My Lords, the Government are taking huge powers in the Bill to abolish EU legislation and are asking us to believe the promises they have made; for instance, on environmental law, that they will not decrease environmental protection. I entirely accept those promises. This is a well-run Government who are capable of controlling what they do and living up to their promises. In that case, what is the problem with just saying, “And we’re not going to increase the regulatory burden”? We would say, “Okay, we believe you; we don’t need you to have a power to stop yourselves doing that”. What kind of Government need to legislate to stop themselves behaving well?
Baroness Chapman of Darlington (Lab)
This clause has got to the guts of the Bill. It is a real mistake for the Government to be quite so certain in their position on this and to not give even the slightest indication that they want to consider some of the suggestions made by noble Lords in this debate. I think the Government may come to regret batting things back without really taking on board the very serious and well-considered points that have been made. This is certainly something we will return to on Report.
I have worked on a lot of Bills—not as many as others in this place—but never one where nobody has turned up to support their Front Bench on the Government side on anything.
Baroness Chapman of Darlington (Lab)
Even the support there has been has been heavily caveated, and it has hardly been what you could describe as overwhelming and unquestioning support. I would say it has been very questioning support. I think that noble Lords on all sides are looking for a bit more from the Government on this clause in particular, but the same applies to most of the groups we have debated on all four days. Your Lordships might say that I rush to criticise the Government sometimes; I do not think I do. Other people are much more reluctant to do so, but their criticism is there none the less. I genuinely think that Ministers ought to reflect on this.
We are very disappointed with the failure of the Government to engage with the DPRRC on any of its findings and to recognise that the power in Clause 15(3) is very wide. This issue about categories or subject areas and that the regulations must be “similar”—whatever that means—is going to have to be looked at again. If we need to force the Government to do that through votes in this place, we would be very happy to work with noble Lords on all sides to work out the best way to do that.
The Minister said a couple of times that there would be no carve-outs but there is a carve-out for financial services and it looks like judges are getting one for their pensions. It is interesting to think about how the Government set priorities for themselves when these issues are being exempted but the environment and consumer protection are not. It is no wonder that noble Lords are a little reluctant to take all this on trust. Whatever the noble Lord, Lord Benyon, says—I am sure he is a Minister who says everything with the utmost sincerity—there is no default position for Defra of retention. That is not possible in this Bill. It is a real shame that a basic understanding of what is going on here seems to be being overlooked, perhaps wilfully, from time to time.
We are disappointed. We are going to come back to this issue. I urge Ministers to have some further thoughts and deliberations, and perhaps come back with something a bit more sensible on Report.
Retained EU Law (Revocation and Reform) Bill
Wednesday 8th March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-V Fifth marshalled list for Committee - (6 Mar 2023)
Lord Bruce of Bennachie
“(3A) Regulations under subsections (2) or (3) may not be made if they apply to an instrument, or a provision of an instrument, which is subject to an agreed Common Framework unless it has been subject to the full process agreed between His Majesty’s Government and the devolved administrations for that instrument.”Member's explanatory statement
This amendment is to probe the application of Common Framework Agreements to retained EU law.
Lord Bruce of Bennachie (LD)
My Lords, Amendment 117 is in my name and that of my noble friend Lady Randerson. I apologise to noble Lords that I have not spoken on the Bill so far—it is not for want of interest but because of conflicting engagements. I tabled this amendment because, although common frameworks have already been debated in Committee, I and other members of the Common Frameworks Scrutiny Committee remain concerned about the uncertainties attaching to them.
Our committee has been absolutely crucial to the progress of common frameworks, which might have somewhat run into the sand if we had not had such an active committee and energetic chair, making sure that the departments were following through. On many occasions, we pushed departments back more than once to get sufficient detail and to get them to engage in the process, in which they sometimes appeared to show a lack of interest.
I also have to say—this is a slightly more topical issue—that the process among the civil servants has been led, of course, by Sue Gray. With the departure of Sue Gray, it would be good to know who is going to take over that responsibility. I think the committee accepted that she was, in evidence that she has given to us, extremely vigorous in ensuring that at least the civil servants were engaging in it in a serious amount of detail. The commitment of Ministers has been, at best, somewhat variable.
The problem, too, is that different Administrations have had a different direction on common frameworks. In our engagement with Wales, you have an Administration who desperately want devolution to work, and to work effectively, and are frustrated that the UK Government do not appear to be quite as committed to that. In Scotland, of course, the Government do not want devolution to work, do not believe in devolution and try to pretend that Scotland is independent, claiming that any engagement from the UK Government is somehow an interference in Scotland’s sovereign right, which many of us feel fails to understand the common interest that Scotland has with the rest of the UK.
It is a fact that common frameworks have been designed to get all the relevant partners—and I know that my noble friend Lady Randerson is particularly concerned that that includes stakeholders—to be brought together to try to work out how devolution will work in a post-Brexit world, where previously the umbrella of the EU was the framework for operation. Apart from agreeing how the policies would be laid out and setting out in detail a framework, they all also had dispute resolution mechanisms: detailed and systematic mechanisms to ensure that disputes could be resolved and, wherever possible—and to date that has been the case—without even necessarily having the engagement of Ministers.
In many ways, we have been impressed by those processes, which could apply outside common frameworks much more widely. The remaining flaw in all that, of course, is that the ultimate final appeal rests with the UK Minister and, on occasion, it seems that UK Ministers, knowing that to be the fact, are less engaged with the concerns and anxieties of the devolved Administrations—and I would suggest that that really has to stop.
Before this Bill came along, we had the internal market Bill—now Act—which also cut across common frameworks. Fortunately, the noble and learned Lord, Lord Hope, secured an amendment in this House to allow for divergence opt-outs to be agreed, albeit at the discretion of UK Ministers. That has been used in the case of single-use plastics, but I suggest that UK and Scottish Ministers have rather stumbled in relation to the deposit return scheme. The Secretary of State for Scotland, Alister Jack, said that he was minded to reject the scheme, but did so before it was revealed that the responsible Minister in the Scottish Government, Lorna Slater, had not even asked for a departure. I suggest that the Secretary of State was overeager and that she was rather behind the curve—the net result being that we are still in some degree of confusion.
In the leadership contest that is going on north of the border, one candidate has implied that somehow UK Ministers are itching to overturn devolution decisions by Ministers at every twist and turn. I genuinely do not believe that to be the case, but it is genuinely important that the UK Government do not give the impression that that is the case and that they recognise that they have to tread with respect and carefully in trying to ensure agreed and respectful decisions sometimes to differ.
I come to my final point. Having had that Bill, we now have this Bill and a total lack of clarity—apart from the fact that the Bill is totally devoid of clarity in any case—as to how any decisions that Ministers might make could impact on these common frameworks, not all of which have been completed but which, thanks to the committee, have been worked through, painstakingly and in considerable detail, to make sure that devolution can proceed in a constructive, fair-minded way, with proper ways of resolving disputes and taking decisions beforehand.
The purpose of this amendment is to seek clear reassurance that the Government will not proceed with measures under this Bill that cut across common frameworks and, in particular, the dispute resolution mechanisms within those frameworks. It is a very simple proposition and one that I think the Minister ought to be able to accept. I beg to move.
Baroness Humphreys (LD)
My Lords, my Amendment 118 brings us, once again, to the issue of devolution, the powers of the devolved legislatures and the protection of those powers by legislative consent Motions.
I have spoken to a number of amendments in Committee and expressed my concerns about the way that confidence in the Sewel convention has been eroded over the last few years and how legislative consent Motions have been degraded and disregarded. At each stage, the Minister has sought to reassure me that my fears for the future of our devolved settlements are unfounded but, as I have said before, our experience often tells us a different story. I have therefore tabled Amendment 118 to Clause 15, seeking to ensure that a legislative consent Motion be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to revoke or replace secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.
Three of your Lordships’ committees have published reports that have included criticism of Clause 15; the issues that they have highlighted are serious and deserve to be debated. The Delegated Powers Committee has recommended that Clause 15 be removed from the Bill because it
“contains an inappropriate delegation of legislative power”.
It says that Clause 15 is
“the most arresting clause in the Bill for its width, novelty and uncertainty.”
Why is this clause arresting? It gives Ministers extraordinarily wide discretion in relation to thousands of secondary EU laws; for example, one option under this clause allows Ministers, as the committee says,
“by regulations to … revoke any secondary REUL and make such alternative provision as Ministers consider appropriate, including with completely different objectives.”
This is, the report says,
“a power to do anything Ministers wish to do”
with retained EU law until 2026.
I appreciate that the Minister has spent time in Committee reassuring me and other noble Lords that the powers of the devolved legislatures are not under threat. I would like to believe that he believes what he says but can he explain, if this clause were to pass, how certain I could be that some other Minister would not use it to make regulations to revoke or replace any piece of secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature?
Ministers will have the power under this part of Clause 15 to do anything, so who or what will stop them acting in devolved areas if they so choose? We received a letter this morning from the noble Baroness the Minister, and I am sure that she or the noble Lord the Minister will summarise the points it contains in their response in relation to these powers.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I will speak in support of the two amendments I submitted, along with the noble Baroness, Lady Suttie. Amendments 119 and 127 would ensure that substantial policy change with regards to human rights, equality or environmental protection in Northern Ireland may not be effected or take place via the exercise of delegated powers.
Last Thursday, I referred to the importance of protocol Article 2, which deals specifically with equality and human rights considerations in Northern Ireland. I have had several conversations, as has the noble Baroness, Lady Suttie, with the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. They are concerned by the breadth of delegated powers provided under the Bill and the potential for the inadvertent breach of protocol Article 2 or the wider diminution of human rights, equality and environmental considerations via ministerial action, or inaction, in the absence of detailed parliamentary scrutiny. I ask the Minister whether that will be the case. What mitigations will be in place to ensure the protection of protocol Article 2?
The tight deadlines of the restatement of REUL by the end of 2023 and assimilated law by 2026, and the scale of the task to be achieved in that time, create a risk of gaps in legislative coverage. It may also contribute to further uncertainty and a potential breach of Article 2 if REUL essential to the no diminution commitment is not preserved or restated with set deadlines. A general convention on this principle was enunciated by the Constitution Committee, which reported in 2018 that
“we have identified a number of recurring problems with delegated powers. We have observed an increasing and constitutionally objectionable trend for the Government to seek wide delegated powers, that would permit the determination as well as the implementation of policy.”
That begs the comment that not much has changed in five years.
The Bill gives effect to a significant body of policy relating to human rights and equality, including employment legislation and EU regulations providing for the rights of disabled people, much of which will fall unless preserved or restated by Ministers. Under Clause 15(1), to which Amendment 119 refers, Ministers may revoke secondary REUL without replacing it, creating potential policy change with limited scrutiny. In addition to being given powers in subsection (2) to replace secondary REUL with provisions with the same or similar objectives, Ministers are also given significant additional powers to replace REUL with alternative provisions in subsection (3), which is of particular concern.
Problems will emerge in exercising these powers, as Ministers are not under a duty to consult on the REUL that is being replaced. Even though the powers granted are time-limited, both the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission believe that they are too widely drawn and will provide insufficient scrutiny, potentially leading to conflict with obligations under Article 2. Our Amendment 119 to Clause 15 would curtail the powers to revoke or replace secondary retained EU law affecting human rights or equality protections in Northern Ireland to ensure continuing adherence to the UK constitutional convention of providing for policy change via primary legislation, with technical and operational detail addressed in subordinate legislation.
Ministers need to engage with stakeholders, including both commissions, and human rights and equality organisations before using delegated powers to replace REUL. Will the Minister give an assurance that that will happen? I know that the noble Baroness, Lady Suttie, will refer to this issue, but will the Minister undertake to meet representatives of both commissions in Northern Ireland to discuss this issue further and help assuage their concerns?
Our Amendment 127, relating to Clause 16, provides for powers to be granted to Ministers to modify and amend REUL and restate or assimilate law or provisions replacing REUL as they consider appropriate to take account of changes in technology or developments in scientific understanding. The use of this power is subject only to the negative procedure, so changes made under it may not require active parliamentary approval. This power will not be time-limited. Our Amendment 127 seeks to ensure that the delegated power to modify legislation may be used for dealing with minor and technical matters only.
I have two questions for the Minister. First, will he meet with both commissions? Secondly, can he provide assurances today that the delegated powers in the Bill to modify legislation will be used to deal with minor and technical matters only, and that any substantive policy change to the law in Northern Ireland, including to human rights and equality law, will be made via the primary legislative process?
We must not forget that both commissions were set up under statute to manage Article 2 of the protocol, which deals specifically with equality and human rights and goes back to the Good Friday agreement. Can the Minister set out what consideration was given to ensuring compliance with Article 2 in the development of this Bill, and ensure that there will be no detrimental impact on the precious commodity of devolution in Northern Ireland or our special arrangements in Northern Ireland under the protocol and the Windsor Framework?
Baroness Suttie (LD)
My Lords, I rise to speak briefly to Amendments 119 and 127, to which I have added my name. Like my noble friend Lord Bruce, I apologise to the Committee: for a variety of reasons I was unable to attend the previous debates on devolution. The noble Baroness, Lady Ritchie of Downpatrick, has given detailed background to these amendments and made a powerful set of arguments in favour of them. I just want to re-emphasise a couple of the points she made.
As the noble Baroness said, these two amendments would ensure that no significant policy changes relating to human rights, equality or environmental protection in Northern Ireland could be implemented through the use of delegated powers. As it stands, the Bill does not give enough consideration to the very particular set of circumstances faced by Northern Ireland. There are multiple layers of existing international commitments through the Good Friday/Belfast agreement, the Northern Ireland protocol and now the Windsor Framework, and it is not entirely clear to me how all these commitments will fit in with the Bill and which will take precedence.
The Minister will be aware that, as the noble Baroness, Lady Ritchie, set out clearly, the Northern Ireland Human Rights Commission has expressed strong concerns about the sheer number and scope of delegated powers provided for in the Bill and the potential impact of the protocol on Article 2, which guarantees “no diminution” of certain human rights and equality protections. As the noble Baroness spelled out, the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland are deeply concerned that the Bill as drafted may accidentally or otherwise result in breaches of Article 2 of the protocol. Article 2 touches on a range of equality and employment rights protections that could be unpicked, not least because it is open to a certain degree of interpretation.
These concerns about the potential impact on Northern Ireland are exacerbated by the continuing absence of an Assembly or Executive in Northern Ireland. A functioning Executive and Assembly would have provided an additional layer of oversight and scrutiny in safeguarding Article 2 of the protocol. As a result of the lack of a Northern Ireland Executive, the Northern Ireland Civil Service is already extremely stretched. The Bill will almost certainly impose an extra set of burdens on it, not least given the unrealistic timescales involved.
I strongly support the request from the noble Baroness, Lady Ritchie, that the Minister meet representatives of the Northern Ireland Human Rights Commission in order to hear at first hand their very real concerns. I look forward to hearing the Minister’s response.
Baroness Randerson (LD)
My Lords, my noble friends Lord Bruce, Lady Suttie and Lady Humphreys have explained the different approaches and situations of the devolved Administrations, thereby demonstrating the need for a sensitive approach from Ministers. I particularly welcome the reference by the noble Baroness, Lady Ritchie, and my noble friend Lady Suttie to the application of the Bill in Northern Ireland. Because of the situation there, we discuss the Administration far too infrequently, and that issue needs to be addressed.
On Amendment 117, to which I have added my name, I am very grateful to the Minister for his recent letter which specified that any REUL to be extended will need to be specified by its full title or by “specifying a description”. That phrase is not defined in the Bill, which means it is another thing that has been left to the judgment of Ministers; indeed, the Minister’s letter actually uses that phrase, saying that it will be left as “a judgement for Ministers”. It says that this description
“could encompass a description of legislation in scope of the Common Frameworks”
and gives the example of common frameworks relating to food and feed safety. That is extremely helpful information for those of us who have been members of the Common Frameworks Scrutiny Committee for some years.
By logical progression, am I right to assume that Ministers could decide to include all common frameworks in one umbrella description in the Bill, or to provide a list of all the agreed common frameworks? Surely, that is the logical conclusion. There are very good reasons to do that. First, it would end the unnecessary uncertainty caused by the Bill and the economic damage it is doing to industries in Britain. Secondly, there can be no clusters of legislation that have been more thoroughly and comprehensively—and very recently—looked at than those subject to common frameworks. They have been subject to scrutiny by all four nations of the UK and by a wide variety of stakeholders. All those clusters have been deemed by the UK Government and by the Administrations in the devolved nations to be up to date and fit for purpose. The Minister has said that that was the reason why some legislation might need to fall, and we would all understand that, but it does not apply to the legislation subject to common frameworks. If something unforeseen arises, there is a mechanism to resolve disputes.
There is no doubt that this legislation is not fit for purpose. The UK Government have nothing to fear because they have the last word on common frameworks and have led the process of establishing them. So I urge the Minister to table amendments on Report that clarify the future place of common frameworks and that specify which ones will be exempt from the sunset.
I have one other thing to probe. In his letter, the Minister used the example of food safety legislation. The extensive catalogue of this has grown since the 19th century. Back then, lead was put in Red Leicester cheese to make it red, copper was put in butter to make it yellow, and chalk and water were put in milk to make it go further. Even if the food was kept in normal circumstances, those normal circumstances were often so poor that it went off and made people seriously ill or killed them. We have moved on from that to a vast catalogue of food safety legislation, but we are still nowhere near perfection or peak knowledge on food safety. Our understanding improves all the time. Recently, there has been research showing that there are plastic particles in bottled water. That is something that we did not understand a couple of years ago. We do now.
Can the Minister tell us how further regulations on food and upgrading regulations on food will be viewed by the Government? Will it be regarded as an additional burden on business? Will it be regarded as increasing regulatory burdens and therefore be excluded by the Bill? If we are not allowed to update our legislation, surely we will lag behind. We will be the country that still has the substandard plastic bottles, just as we would be the country with cars that are less fuel-efficient and toys that are more dangerous, to take examples from earlier debates.
On Amendments 135 and 143 in the name of the noble and learned Lord, Lord Hope, which I support, I refer to the fourth report of the Procedure and Privileges Committee, which followed up on the Constitution Committee’s report of January 2022. That report recommended that we in the House should give greater prominence to legislative consent Motions. The Procedure and Privileges Committee has now agreed to a very welcome and comprehensive process for reporting the decisions of devolved Administrations on LCMs and situations where the UK Government have not sought consent but the devolved Administrations have given or withheld it. This is significant because, as my noble friend has said, in the last few years there has been a huge erosion of the 1998 decision that the UK Government would not normally legislate in matters within the competence of a devolved parliament without its consent. It used to be the case that the Government went to enormous lengths to take the Sewel convention into account. That has been eroded, to the great detriment of good relationships across the UK. This Bill does nothing to improve relationships.
I fully support those amendments tabled by the noble and learned Lord, Lord Hope, which seek to restore a small part of the devolved powers that have been undermined by the Government in recent years. Those amendments and the recent decisions of the Procedure and Privileges Committee will make it more difficult for us to remain unaware of the views of the devolved Administrations.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will add a brief word on two of the amendments, because I agree with everything that has been said but do not wish to prolong the debate. I wish to say something about Amendments 135 and 143 as, in my view, they go to the spirit of the union. I know that the noble Baroness the Minister has done much to try to ensure that we are governed in a union where there is respect and equal treatment. I thank her very much for that. I also welcome the attitude of the Prime Minister, which is in complete contrast to that of the last but one Prime Minister.
The spirit of the union is encapsulated in both these amendments. First, on Amendment 135, if something is devolved, please get consent. That seems a matter of ordinary courtesy that strengthens the union. It is not a big ask. Secondly, on Amendment 143, why should the Welsh and Scottish Ministers not have the same powers? The answer was given by the noble Lord the Minister to a similar question I raised. Although the Government may not say what they are going to do, I very much hope that they look at these amendments as showing a determination to govern our union in the spirit of co-operation, equality and respect.
Baroness Crawley (Lab)
My Lords, I support this group of amendments, particularly, as a member of the Common Frameworks Scrutiny Committee, Amendment 117, which tries to tease out the application of common framework agreements to retained EU law and how they will be impacted by the Bill. These frameworks work right across the devolved Administrations, as noble Lords have said, and are underpinned by retained EU law. As my noble friend Lady Andrews has said during Committee, that underpinning is a cat’s-cradle of hundreds if not thousands of complicated and interrelated SIs. How much instability will the Bill, and its obvious legal uncertainties, bring to the common framework agreements between the devolved Administrations?
The noble Baroness, Lady Neville-Rolfe, wrote to the noble and learned Lord, Lord Thomas—and to all of us, in fact—to answer several questions. We appreciate that. One of the questions was on methodology. What competence do the UK Government have to affect the methodology of seeking retained EU law within the devolved Administrations?
Lord Dodds of Duncairn (DUP)
I rise briefly to follow the noble Baronesses, Lady Ritchie and Lady Suttie, on Amendments 119 and 127. I thank them for casting a spotlight on the situation for Northern Ireland, which is now more complicated than ever. As was said by the noble Baroness, Lady Suttie, there is a danger of a change inadvertently being made.
In the Minister’s response, could she clarify the situation pertaining to the law in Northern Ireland? We have laws that will be affected by this legislation, as it will disapply whole swathes. As the noble Baroness mentioned, this will pose a great burden on the Civil Service and could lead to a situation at the end of the year when it is not clear who is responsible for making change. If the Assembly is not restored, it is likely to lead to Ministers here having to step in, in a considerable number of areas.
I do not expect a full answer in this Chamber today, but at some point it would be helpful for the Minister to write to us, and place a copy of that letter in the Library, to set out which laws pertaining to Northern Ireland are affected by this legislation and which are exempted because of the necessity that they remain to give effect to the provisions of the withdrawal Acts or to implement the Northern Ireland protocol. Which laws then apply directly to Northern Ireland as a result of annexe 2 to the protocol—the 300 areas of law?
Then we have the body of laws which have been applied —hundreds of regulations—under the dynamic alignment since the 300 areas of law became statutory law in Northern Ireland: perhaps we could have a list of those. Then, perhaps—and I say this more in hope than expectation—we might get a list of the laws, said to comprise 1,700 pages, which will be disapplied as a result of the Windsor Framework.
Lord Collins of Highbury (Lab)
My Lords, I do not want to prolong the Committee, so I will not repeat many of the contributions that have been made today. But I do want to pick up the point of the noble and learned Lord, Lord Thomas, because when he raised this in a previous clause on a previous Committee day, I also asked a supplementary question. The reply I got from the Minister—I was seeking an assurance—was that
“there is a power for them to just restate that law, to continue it, if they wish to do so. We would want any extension to be discussed between the Administrations”—[Official Report, 2/3/23; col. 473.]
Well, the simple question is this: why, on an issue of law that is the sole competency of the devolved Administrations, do they not have the same power as the Secretary of State? I think it is a fundamental question. The noble Lord, Lord Callanan, said:
“I do not agree with the noble Lord’s characterisation. If they wish, it is perfectly possible for them, before the sunset date, to renew that legislation. The extension mechanism is of course something that we will discuss with them as appropriate”—[Official Report, 2/3/23; col. 473.]
If the noble Baroness, in responding to this, cannot give a clear answer to what I believe is a clear question, I hope she will write to us, because I cannot see any reason why we would undermine the authority of the devolved parliaments in this way.
I will also, because it has come up in terms of the implications of divergence, repeat the question that the noble Lord, Lord Moylan, raised in another debate. He said that there were “profound implications” for paragraph 52 of the framework, which states that
“the Office of the Internal Market (OIM) will specifically monitor any impacts for Northern Ireland arising from relevant future regulatory changes”.
The noble Lord, Lord Moylan, asked
“what the purpose of that is, and what weight the Government are going to give to the results of such monitoring?”—[Official Report, 7/3/23; col. 689.]
Of course, when you read the framework, you also see that that is mirrored in terms of a response by the EU. So I hope the Minister will be able to answer these questions: what are the implications? Has this been thought through? What assurances were given to the EU by the Prime Minister? Those are important questions for us to consider.
I appreciate my noble friend Lady Ritchie’s amendments. In looking at them, I thought that I would not only take on board the comments made in letters from the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland but would read the commissions’ annual reports, which the Government would obviously have. Of course, the overarching recommendation of the commissions’ most recent 2022 annual report is that
“in the development of any laws or policies the UK Government and NI Executive consider the extent to which any change engages Protocol Article 2 and ensure that there is no diminution to the rights and safeguards which fall within its scope”.
I hope the Minister will address that specific recommendation in relation to this Bill.
On the divergence of rights on the island of Ireland, the commissions recommended that
“the UK Government and the NI Executive ensure North-South equivalence, by keeping pace with changes to equality and human rights law, arising as a result of EU laws introduced on or after 1 January 2021, that enhance protections. This should include rights introduced as a result of EU laws that do not amend or replace the Protocol Annex 1 Directives.”
What consideration have the Government given to that particular recommendation, bearing in mind that Article 2 is a firm foundation of the relationship on all sides on the island of Ireland?
I conclude by saying that, on retained EU law, the commissions recommended that
“no change to retained EU law be made which would weaken Protocol Article 2, its enforceability or oversight mechanisms”.
Again, can the Minister tell us what assessment the Government made of that recommendation when drawing up the Bill? The commissions also recommended that,
“when making any change to retained EU law, the relevant UK or NI Minister confirms that an assessment for compliance with the commitment in Protocol Article 2 has been undertaken and that there is no diminution of the rights, safeguards and equality of opportunity as set out in the relevant part of the Belfast (Good Friday) Agreement as a result of the UK leaving the EU”.
Has that assessment taken place? What are the implications for the powers outlined in both the clauses under consideration in this group? If the Minister is unable to answer today and give a full account of these particular recommendations, I would be grateful if she could write and put a copy of her letter in the Library for everyone to see.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I am grateful to all noble Lords who have contributed to this important debate. Amendments 117 to 119, 127, 135 and 143 seek to amend the way in which the powers operate in areas of devolved competence. I should say at the outset in response to the query about Sue Gray leaving her post, it is really not my place to comment on Civil Service appointments, but the work that her team does will not stop just because she has moved on. There was a competent team around her, and I am sure more announcements will be made in due course.
Amendment 117 exempts legislation relating to common frameworks from the powers under Clause 15(2) and (3) to replace revoked REUL unless relevant instruments or provisions have been subject to the full process between the UK Government and the devolved Administrations. This would prevent the powers being able to operate on these instruments to create replacement provision unless a process agreed between the UK Government and the devolved Governments is followed. Common frameworks are integral to managing regulatory divergence in the areas they cover and provide a flexible governance tool for the UK Government and the devolved Governments. I reassure the noble Lord, Lord Bruce of Bennachie, that the UK Government value the committee’s work and regard it as essential to ensure that the common frameworks are as good as they can be, including by helping to ensure the functioning of the UK internal market.
Retained EU law is in scope of the common frame- works. This includes not just REUL operating within devolved competence but that same REUL operating in England. In some cases, this REUL will be UK-wide. This is a point I have made in earlier debates on this subject.
The Government believe that it is simply not necessary to carve out REUL in scope of common frameworks from the powers to revoke or replace. Common frame- works are purposely designed to manage any potential divergence which may result from the Government’s use of the powers in the Bill. When using the powers in the Bill, we will use common frameworks to engage with the devolved Governments on decision-making across the UK. The UK Government and the devolved Governments agree that where common frameworks are operating they are the right mechanism for discussing REUL reform in the areas they cover.
To respond to the question asked by the noble Baroness, Lady Randerson, about extending the sunset applicable to REUL within the scope of common frameworks, it will be possible to extend REUL within the scope of common frameworks as the Clause 2 power enables extending the sunset for specified instruments or descriptions of legislation. In response to her queries around exemptions for food, there is simply no need to have specific exemptions or carve-out areas in the Bill. As I outlined earlier, the common frameworks are purposely designed to manage any potential divergence which may result from the Government’s use of the powers in the Bill.
Amendments 119 and 127, tabled by the noble Baroness, Lady Ritchie of Downpatrick, would restrict the use of the powers to revoke or replace and the power to update by requiring that any new regulations must not bring about substantial policy change for regulations relating to human rights, equality or environmental protection with effect in Northern Ireland. First, I emphasise that the Government recognise the unique challenges that Northern Ireland departments are facing in delivering plans for the reform of retained EU law in the continued absence of the Northern Ireland Executive and Assembly. Our officials are working closely with the Northern Ireland Civil Service and the UK Government are committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations.
Responding to the noble Baroness’s point about Article 2, as outlined by my noble friend Lord Callanan in the debate on assimilation last Thursday, I can assure the noble Baroness that the Bill provides powers to restate rights and obligations required for Article 2 of the Northern Ireland protocol as needed. The Government will ensure that all necessary legislation is in place by the sunset date to uphold commitments made under Article 2. Departments will take into account the assessment of whether a restatement would meet the Article 2 non- diminution right when reviewing their retained EU law.
I turn to the delegated powers in the Bill. The Bill sets out the circumstances under which the powers can be used appropriately. The powers to revoke or replace are important, cross-cutting enablers of REUL reform in the Bill and will allow the Government to overhaul EU laws and secondary legislation, while the power to update is intended to facilitate technical updates to keep pace with scientific and technological developments over time. The REUL dashboard has identified more than 3,700 pieces of retained EU law, many of which are unduly burdensome and not fit for purpose. It is therefore necessary to have broad, forward-leaning powers capable of acting on wide-ranging REUL across different policy areas. Furthermore, we fully intend to maintain the UK’s leading role in the promotion and protection of human rights and equality, and environmental protections. We are proud of our long and diverse history of freedoms and are committed to ensuring that the UK’s international human rights obligations continue to be met.
The provisions within the Bill, including the powers, are not intended to undermine these hard-won human rights or equality legislation, nor our world-leading environmental protections, which this Government have also committed to uphold. The UK is a world leader in environmental protection, and we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes.
Baroness Randerson (LD)
I have listened carefully to the Minister’s response. When I spoke earlier, I said that the letter from the noble Lord, Lord Callanan, was very helpful, but I have not had a specific answer, taking my example of fragments of plastic in bottles of water, as to whether the Government would respond to that requirement for change in food and food safety legislation. Would the Government regard it as a technical advance, which the Minister referred to, or as unduly onerous regulation, which she also referred to? What would happen if, for example, the Welsh Government decided they wanted to go to a higher standard of plastic in water bottles but the UK Government decided they did not want them to go to that higher standard? If the Minister cannot answer that now, could she give us a commitment to write with that worked example and give us an indication of what is unduly onerous EU-based legislation and regulation and what is technical advance?
Baroness Bloomfield of Hinton Waldrist (Con)
I am happy to write if I do not give a satisfactory answer now. It is up to the relevant department to look at the proposed amendment and consider whether it meets the criteria for the use of the update power. The Government will always maintain the power to increase standards. Any more than that I will take back, and I will write in fuller detail.
Lord Collins of Highbury (Lab)
Can the Minister inform the House what the criteria are?
Baroness Bloomfield of Hinton Waldrist (Con)
If the noble Lord is talking about the Clause 15 power, that gives discretion to Ministers. It is the criteria for the use of the update power, which is at the discretion of Ministers.
Baroness Bloomfield of Hinton Waldrist (Con)
I think the noble Baroness was talking about adding to the burden of legislation, which is Clause 15.
Baroness Ritchie of Downpatrick (Lab)
On a different point, I thank the Minister for the assurances that she has provided us with in relation to Article 2 of the protocol, but could she also indicate whether she is prepared, if required, to meet both commissions? I understand that one commission is responsible to the Northern Ireland Executive and the other directly to the UK Government. Would that be possible? Maybe in the fullness of time, if the Minister wants to reflect on that request, she could provide us with an answer in writing.
Baroness Bloomfield of Hinton Waldrist (Con)
Certainly, more relevant Ministers will be meeting all the time, as well as officials, to discuss these issues, and they are probably the best and most appropriate channels of communication.
Lord Bruce of Bennachie (LD)
My Lords, this has been an interesting debate covering a number of topics. I welcome the Minister’s assurances, which I accept in good faith, about wanting to work constructively with the devolved Administrations. However, I am sure she will recognise that there are still a lot of questions hanging in the air.
To take the point made by the noble Lord, Lord Dodds, if the Government know that there are 3,700 pieces of legislation then they ought to be able to tell us what they are. The impression one gets is that the Government claim they know exactly what they are doing but are not prepared to tell anyone else what it is. We need to get a little further down the road on that.
The Minister said that some of the laws were no longer fit for purpose, and we need to know which those are; others need to be updated, and we need to know which those are; and others are UK-wide. Well, the devolved Administrations still need to know which they are, because, clearly, they have an impact throughout the United Kingdom.
This debate has been useful, but there are still issues that we need to press the Government on. In the meantime, I beg leave to withdraw the amendment.
Baroness Parminter
“Powers to revoke or replace: application to environmental law(1) This section applies in respect of provision which may be made by a relevant national authority under section 15 where the provision is in respect of secondary retained EU law which is environmental law. (2) No provision to which this section applies may be made in relation to an element of the environment unless the relevant national authority considers that the provision, taken together with other secondary retained EU law relating to the element of the environment, will contribute to a significant improvement in environmental protection.(3) The relevant national authority must ensure that any provision made under section 15 does not—(a) reduce the level of environmental protection arising from the EU retained law to which the provision relates,(b) conflict with—(i) the relevant international environmental agreements,(ii) the relevant international environmental principles, and(c) otherwise undermine the implementation of the policy statement on environmental principles as set out in section 17 of the Environment Act 2021 before the duty to have regard to the statement is brought into force.(4) Prior to making any provision to which this section applies, the relevant national authority must—(a) seek advice from persons who are independent of the authority and have relevant expertise,(b) seek advice from, as appropriate, the Office for Environmental Protection, Environmental Standards Scotland, a devolved environmental governance body or another person exercising similar functions, and(c) publish a report setting out—(i) how the provision does not reduce the level of environmental protection in accordance with subsection (3),(ii) how the provision will contribute to a significant improvement in environmental protection in accordance with subsection (2), and(iii) how the authority has taken into account the advice from the persons referred to in paragraphs (a) and (b) of this subsection.(5) In this section—the“relevant international environmental agreements” means—(a) the UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus, 25 June 1998);(b) the Council of Europe's Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979);(c) the UN Convention on Biodiversity (Rio, 1992);(d) the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979);(e) the Convention for the Protection of the Marine Environment of the North-East Atlantic (1992);(f) the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar, 1971);the“relevant international environmental principles” means—(a) the integration principle;(b) the precautionary principle;(c) the prevention principle;(d) the rectification at source principle;(e) the polluter pays principle.”Member's explanatory statement
This new clause creates additional conditions to be satisfied before the powers set out in clause 15 can be exercised where the subject matter of their exercise concerns environmental law. It would set out in legislation the commitments Government has made not to reduce environmental standards through exercise of the powers in clause 15 of REUL which are not (currently) reflected in clause 15 or elsewhere.
Baroness Parminter (LD)
My Lords, Amendment 126 is in my name and that of the noble Lord, Lord Krebs, who sadly cannot be with us this afternoon, the noble Lord, Lord Randall of Uxbridge, and the noble Baroness, Lady Bennett of Manor Castle. We will touch on some of the issues in Clause 15, although this new clause is to go after it. I make no apology for that because when we talk about this Bill, as my noble friend Lord Fox so rightly said when we last debated the environmental impacts, Defra is the largest shareholder. The wide-ranging powers of the Minister to revoke or repeal environmental legislation will have a massive impact on the 1,781 pieces of legislation—probably more by the end of this month, because the dashboard will have been updated—that are under Defra’s auspices.
We obviously debated at some length in previous sessions the wide-ranging powers in the regulatory burdens which are the overriding framework for Ministers when they are considering how they take forward those powers, but one issue has not been discussed very much, if at all, so far in the context of those regulatory burdens which have particular relevance to the environment. It is the requirement that those regulatory burdens do not allow for any taxation to be increased. As the Government will know, the Dasgupta report, which they commissioned, made it clear that, as it stands, the economic benefits which the environment brings to this country are not adequately reflected in the economic models that we have. The full externalities need to be built in to our economic models and the Government need to take them very seriously.
To their credit, when it comes to environmental taxation, this Government have made through secondary legislation, which is what we are talking about, several new taxes. Those are working extremely well, delivering for both the environment and the Exchequer. The first of those, which was delivered under the coalition Government, was of course the popular levy on plastic bags, which delivers for the environment and to which the general public seem to have taken extremely well. It is delivering incredibly well but, as I say, that was made through secondary legislation.
Recently, the noble Baroness, Lady Hayman of Ullock, and I, along with others, discussed an SI which was about the new and extended producer responsibilities. It was about having levies on producers to tackle some of the major problems of waste that we have in our country. Again, businesses are comfortable with those taxes, which will raise revenue that can then be spent on communicating with the general public about the wider impacts on the environment. By secondary legislation, this Government have already accepted that environmental taxes can have a valuable role to play, yet by saying that there can be no financial costs levied Clause 15 is ruling that route out.
I argue strongly that, in the environmental context, to deny Ministers that flexibility to raise financial revenues, which are welcomed by a number of businesses—including the ones we debated recently in Grand Committee on the extended producer responsibility—is an incredibly retrograde step. It is great to see the Minister, the noble Lord, Lord Benyon, here in his place again to defend this area. I am sure that in summing up, he will say, “The noble Baroness doesn’t need to worry, because, of course, you can introduce regulatory burdens as long as there is a compensation in a particular subject area”. I think those were the terms used. Having sat through debates in the Chamber and read what the noble Baroness, Lady Neville-Rolfe, said in Hansard from Monday night’s debate—and having read about four times the letter from the noble Baroness, Lady Bloomfield—I am still no clearer about what “subject area” means.
I have been thinking about this. If, for example, the Government were to amend the water framework directive, which has regulatory burdens on businesses, farmers and landowners, and say, “It’s okay—we can find another regulation and you can increase the burdens on that, because we have made compensatory cuts to somebody else”, does it have to be exactly the same people? Does it have to be landowners, companies and farmers, or can we say that it just has to be in Defra? In which case, the regulatory burdens might be on very different people; it may not be the same businesses that have had the regulatory burdens in one area or another.
Baroness Hayman of Ullock (Lab)
My Lords, my Amendment 130 in this group would ensure that the powers to amend the important pieces of retained EU environment law do not reduce the level of environmental protection that is provided for in them. As we heard in the previous debate, there is a huge risk to the laws on the environment and animal welfare protections. I brought a list of wildlife protections that are at risk—there are so many, and that is just on wildlife—to give noble Lords an idea of the number of regulations and the complexity of what we are talking about.
My amendment would also specify that, when exercising these powers, authorities
“must have regard to … the conservation and enhancement of biodiversity … improving water quality … protecting people and the environment from hazardous chemicals”.
I thank the noble Lord, Lord Krebs—who is not in his place today—and the noble Baronesses, Lady Bakewell and Lady Bennett of Manor Castle, for their support for this amendment.
On Report of the Bill in the Commons, Minister Ghani said:
“The Department for Environment, Food and Rural Affairs has committed to maintain or enhance standards”.—[Official Report, Commons, 18/1/23; col. 395.]
But we should compare that with Clause 15, which, as the noble Baroness, Lady Parminter, said, we have to touch on when looking at these amendments. Clause 15 has been described by some as a “do whatever you like” provision, because it gives Ministers extremely wide powers to revoke or replace retained EU law and to lay the replacement legislation either with
“such provision as the relevant national authority considers to be appropriate … to achieve the same or similar objectives”
or with
“such alternative provision as the relevant national authority considers appropriate”.
Unfortunately, the reason why we are so concerned is that this is so subjective. The judgment is on what is appropriate, which is accompanied by a very limited link to the objectives in the original legislation, leaving an open door for sensible, long-standing protections to be replaced by regulations with entirely different divergent aims and outcomes. Without the amendment that I have laid, and the amendment proposed by the noble Baroness, Lady Parminter, the power allows for replacement legislation to change both the content and objectives of the law. That is without any kind of scrutiny or consultation; it is further deregulation without oversight.
As I mentioned during last week’s debate on the environment in this Bill, the running total of laws affected by REUL in Defra is suggested to be 1,781—by far the largest share of any Whitehall department. That highlights the hugely significant implications of the Bill for environmental law-making. The Defra body of REUL also contains many regulations that are of significant public interest, aiming to protect every single element of our natural environment and, as was mentioned last week, many aspects of human health—we must not forget that.
We have also heard about how the laws being debated in the REUL discussions are bound together in a complex way, with significant case law attached to them. That is why there is such a profound risk when you try to disentangle it in the manner proposed by the Bill, but also because of the speed at which it is being proposed, and the lack of scrutiny, consultation and oversight. That has been discussed at length in both Houses, and I would hope that Ministers have taken note.
The problem is that Clause 15 substantially exacerbates these concerns because of its unfettered nature and because of the burdens test in Clause 15(5), which the noble Baroness, Lady Parminter, talked about. She referred particularly to issues around revenue and taxation. As I say, we support everything that she said on that matter. She also referenced the letter to all Peers from the noble Baroness, Lady Bloomfield, on the burdens test. I think that noble Lords felt that it raised more questions than it answered; there was no explanation of how a department such as Defra, which has so many laws covering a large number of subject areas, is going to apply the in-the-round consideration that was in the letter. Perhaps the Minister could explain how that is going to be managed.
I shall give some examples. If Defra Ministers wanted to make changes to one nature regulation that increased one of the regulatory burdens specified in the non-exhaustive list, would that mean that they would have to bring forward changes to another nature regulation that decreased burdens to balance the books? What is meant by “category” and how is that implied when looking at the different regulations that come under Defra? Does the removal of redundant or superfluous laws, as the Minister talked about in the last debate on the environment, count as a removal of burdens, even if they were not active components on our statute book? Parliament is being asked to agree to Clause 15 without a satisfactory explanation of how it is going to be practically applied. Furthermore, with regard to the stipulation in Clause 15(5), there is no confidence that the power will not lead to a de facto lowering of standards, which is the opposite of what Ministers repeatedly say they want to achieve.
My Amendment 130 focuses on regulations that have been earmarked as priorities for review and on which the Government already have amending powers. For example, during the evidence session with the House of Lords Environment and Climate Change Committee, the Defra Secretary of State referred to the goal of the Environment Agency to change quite a lot of the water framework directive. What does she mean by that? Perhaps the Minister could expand.
We support a sensible, consultative approach to strengthening regulations that underpin the water frame- work and other directives. However, tackling the dire state of our water bodies will not be possible without substantial investment. That would trigger both the financial cost and profitability limbs of Clause 15(5). Can the Minister explain how Clause 15 can then be a route through which the Government are able to deliver the improved environmental outcomes that they keep promising? To me, it is the opposite; it is a blockage.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Baronesses, Lady Parminter and Lady Hayman, and to speak to Amendments 126 and 130, which they have already so ably introduced and to which I have attached my name, both of which have the fullest and broadest possible range of support across parties and non-parties in your Lordships’ House. I essentially agree with everything the noble Baronesses said, although I would perhaps give the Government rather less praise for what I would say are the extremely limited measures on polluter pays they have so far delivered than the noble Baroness, Lady Parminter, did.
First, on Amendment 126, Clause 15 has been described as the “Ministers can do whatever they like” part of the Bill. I note that the Peers for the Planet briefing, among others—I should declare my position on the advisory board of Peers for the Planet—says that the direction of travel of the Bill is deregulatory. We are hearing one set of rhetoric, but ultimately, what we are talking about is the law and what will be written into it. That is what will hold sway, not fine words we might hear about a desire for higher standards. It is important also to stress that both amendments deal with environmental issues, but these are also very acutely human health issues: look at the current parlous state of public health in the UK. We really cannot afford to be going backwards in any such areas.
Amendment 126 tries to address the fact that there are no non-regression clauses in the Bill. This is trying to bring in a non-regression clause in one area. I would like a non-regression clause to apply to every category, whatever a category is, that the Bill might identify, but I will stick with the things that are identified in these two amendments, at least as some kind of starting point. When we come to Amendment 130, it is clear—and we had long and hard fights in your Lordships’ House, as I recollect, in the Environment Act 2021—that we need non-regression clauses, and there is also the power to amend what we are now calling retained EU legislation, so it is there in primary legislation; the power already exists, with rules applying to it.
I am not a lawyer and I am not sure whether the lawyers present in the Committee can explain to me how we can have non-regression clauses applying to a set of regulations in one Bill while another Bill has no non-regression clauses. It depends which Bill you use as to whether regression or non-regression is going to apply. Let me guess which law the Government are likely to want to use. Let us have a guess, shall we?
I turn to Amendment 126, and I am seeking to add to rather than repeat what the other noble Baronesses have said. I want to focus on ensuring that we do not conflict with relevant international environmental agreements. I am actually not sure about that, with the way this is currently written—and indeed this is a fast-moving area. Of course, since this amendment was written, we have finally had, after 20 years of negotiation, very excitingly, the agreement on the high seas treaty. That is a real step forward. We also have a mandate for negotiating a UN treaty on plastic pollution. This is where a significant amount of environmental action is happening. We can surely have something in the Bill to say, “We will comply with the international agreements that we have signed up to”, and, indeed, in many cases that we claim to be, and in some cases are, leading.
It might be said that we do not need to do that, but if it is not a problem for the Government, why cannot we write it in anyway? Many noble Lords will have just picked up the Illegal Migration Bill, on the front of which is a statement from the Home Secretary:
“I am unable to make a statement that, in my view, the provisions … are compatible with the Convention rights, but the Government … wishes the House to proceed”.
I truly believe that we need a statement written into this Bill—perhaps every Bill—that we will comply with international obligations that we have signed up to.
Finally, I turn to the non-regression elements in both amendments and the paragraph in the famous letter about overall regulatory burden and what a “category” is. It might reasonably be thought that regulations applying to plastics are a category, so I will explore a practical example of what these amendments could stop. In the last week or so, some extremely disturbing research has come out on the impacts of microplastics; in particular, the newly identified disease of plasticosis. It has been found in the digestive tracts of flesh-footed shearwaters—that is only one seabird, but the experts tell us that there is no biological reason why what is happening to it is not happening to all of us as we ingest what research suggests is up to 5 grams of plastic a week, depending on your diet.
The disease has been given that name because it is like silicosis and asbestosis: it is an inorganic material causing irritation to biological tissues. This is really serious. A few days ago, the Times quoted Dr Luisa Campagnolo, an expert in histology and embryology, as telling the American Association for the Advancement of Science that
“we should not drink bottled water in plastic bottles.”
That is what someone who is looking at the damage being done to tissues is saying.
Let us imagine that the science gets stronger in the next year or two—we can see the direction in which it is heading—and we want to bring in an SI to end all use of plastic bottles for food materials and drinks. What could be the conceivable counteracting release of regulation to achieve a balance of no greater regulatory burden? What in the area of plastics would you have to abolish to balance that? These amendments attempt to deal with issues such as that.
Baroness Young of Old Scone (Lab)
My Lords, I support these two amendments and congratulate the noble Baronesses, Lady Parminter and Lady Hayman of Ullock, on the way in which they introduced them. It is slightly ironic that the Government have just published their Environmental Improvement Plan, yet we do not have any sentiment of improvement in this Bill. In fact, we have a distinct deregulatory flavour with this emphasis on not increasing burdens.
In a way, I will miss this Committee, because we have been getting these wonderful letters from Ministers over the last few days. I thank the hot and cold running supply of Ministers wheeled in for this Bill for their correspondence on the issues we have raised on the various days of Committee. I confess that today’s letter from the noble Baroness, Lady Neville-Rolfe, on the safeguards around Clause 15 did not leave me any the wiser on the definition of “alternative provision”, but perhaps most germane to these amendments was the letter of 28 February from the noble Baroness, Lady Bloomfield, on the definition of “regulatory burden”. It left us all, as many noble Lords have said, confused about how not increasing the overall regulatory burden will be assessed—other than, as the Minister has just told us, that it will be up to Ministers to decide whether they are satisfied that the use of the power does not increase the overall regulatory burden in a subject area. I am sure that case law will have to prevail.
Lord Lilley (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Young, with whom I share the honour of serving on the Environment and Climate Change Committee, under the excellent chairmanship of the noble Baroness, Lady Parminter, whose amendment I wish to address. However, before I do, I say that I do not think that anybody in this Chamber wants to tear up necessary environmental protections that maintain the standard and beauty of our environment. Certainly I do not, and I do not think that the Government have any such intention.
However, some of us want to change those regulations in a way which would improve them and make them less onerous and less burdensome. I fear that the amendment tabled by the noble Baroness, Lady Parminter, would prevent that, because it says in proposed new subsection (2):
“No provision to which this section applies may be made … unless … the provision … will contribute to a significant improvement in environmental protection.”
Therefore, no change may be made unless there is some improvement—even to a regulation which could be made less onerous but where there is no scope for improving the standard of environmental protection or where any additional environmental protection would be unnecessary and not cost effective. This could freeze the whole thing.
If the noble Baroness, Lady Parminter, interprets her amendment in a way that she did not in her speech, that improvement can be making a law less onerous, then that would be an excellent and wonderful thing, because there is considerable scope for making environmental protection less onerous than it is now. Current rules can be cripplingly expensive, mind-bogglingly complex and hugely time-consuming. Moreover, those failings can prevent environmentally desirable developments.
My eyes were opened and the scales fell from them when I read an article by Sam Dumitriu—you only have to Google it and you will find it. He points out that the proposed Norfolk Boreas offshore wind farm, which is necessary and desirable for environmental reasons, as I am sure all noble Lords would agree, to reduce our emissions, needed to produce 1,961 documents just to get approval, with a total of 13,275 pages. That is more words than the entire works of Tolstoy and all seven volumes of In Search of Lost Time. That probably could be streamlined and made easier without undermining the protection of the bit of sea where that windfarm is proposed to be.
Let us take Sizewell C nuclear plant. Some people object to nuclear plants, but those who want to reduce carbon emissions think that they are a very necessary part of our energy mix. It will be built alongside an existing nuclear plant, so you would think that most of the environmental obstacles had been overcome. It is desirable to reduce CO2, but it had to produce environmental applications running to 44,260 pages, most of which referred not to land but to any impact that it might have on the sea and maritime areas nearby.
It is difficult to put a cost on, because the people who have had to go through these processes are in the private sector, but a freedom of information request by New Civil Engineer magazine revealed that the highways agency, when applying to build a 23-kilometre road, had to produce 30,000 pages of environmental application, costing £267 million. I am sure that the noble Baroness, Lady Bennett of Manor Castle, does not want any extra roads, and I respect that, but I think that she would agree that if you are not going to build the road, then just stop it, save £267 million and spend it on something worth while rather than on a process of applying for environmental protection which is just mind-bogglingly expensive.
For each of those cases, I do not know how much regulation was imposed on us by the EU and how much by our own volition. From listening to noble Lords and noble Baronesses who have spoken in these debates, almost all assume that all environmental protection of a worthwhile and onerous kind comes from the EU. I would be grateful if the Minister, not necessarily in the reply to this debate but subsequently, can tell us to what extent EU law is feeding into these hugely onerous, costly and time-consuming things that prevent us doing what is necessary for the environment and would help us to meet net zero.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, my noble friend Lady Parminter clearly set out the arguments for Amendment 126, which I fully support. The noble Baroness, Lady Hayman of Ullock, ably introduced her Amendment 130, to which I have added my name. I will speak briefly to that amendment.
The Minister, the noble Lord, Lord Benyon, made it clear that he is personally committed to ensuring that environmental standards are maintained, that biosecurity is improved, and that the Government leave the environment in a better state than they found it. However, this commitment and aim are not shared by all in the current Government.
The Bill is worded in such a way as to provide a very large degree of what can be called “wriggle room”. We have debated in Clause 15 the meaning of “appropriate” and how this will be interpreted by both officials and Ministers when it comes to individual pieces of legislation.
Clause 15 allows Ministers to amend important retained EU environmental law on nature, water and chemicals, ensuring that there is no reduction in environmental protection. This has to be achieved without extra bureaucracy, taxes or burdens being incurred. My noble friend Lady Parminter has spoken on this issue.
In evidence to the Lords Environment and Climate Change Committee, the Secretary of State referred to the Environment Agency’s wish
“to change quite a lot of the water framework directive”.
The quality of our water has featured in our debates more often than many of us would care to mention. To be informed that a lot of changes are likely to come to the water framework directive without any indication of what they may be is extremely worrying for many in this Chamber. The noble Baroness, Lady Hayman of Ullock, also raised this.
Amendment 130 would insert a new clause whose aim is to maintain environmental standards across a range of regulations and directives, which the country has taken for granted and which have protected the health of the population, our environment, wildlife and the marine environment over the years. Proposed new subsection (4) lists those laws that we believe are essential to keep. Others are also important, as the noble Baroness, Lady Hayman of Ullock, also raised, but those five are vital and should be included in the Bill. There is consensus on this across the Committee.
We have debated these issues on previous days in Committee without the Minister giving any comfort. On this occasion, we are all looking for the Minister to realise that the vital issue of protecting the environment and the population is not going to trickle away. Unless he wants to see a flood of opposition from all quarters, both inside and outside Parliament, he will accept the amendment before we come to Report. I look forward to his agreement.
Lord Inglewood (Non-Afl)
My Lords, I have been listening to this debate with interest. Obviously, it relates to environmental standards, but is also about the way in which the legislation that deals with environmental standards is cast. I am sure we are all agreed that some of the things that the noble Lord, Lord Lilley, described could be substantially mitigated, to the benefit of everybody.
Having said that, what we see with the two amendments we are considering is the introduction of legal certainty into the legislation. That, it seems to me, is actually quite important because, as has been described on previous days in Committee, the underlying rationale behind the kind of approach being adopted by the Government is what I might describe as the operation of a compensatory principle. This, it seems to me, is a very attractive notion. But how is it going to work? In particular, as has been debated previously, what is the currency you use to determine whether or not something is compensation? It has to be equivalent, it seems to me. That is the basic meaning of the word in the English language.
Then there has been discussion about “Well, it’ll be done on the whim of a civil servant or a Minister”. But I do not think this is going to be the end of the story—this is what my concern is—because any change that comes about will produce winners and losers. Wherever there are winners and losers, not least in this area of policy, the law gets dragged in. I can see that the whole scheme on which this particular approach has been adopted is going to lead to an absolute abundance of applications for judicial review, because any change that is made on the basis of this compensatory principle is going to have a winner and a loser, and is going to be the hinge on which the legislation depends. I would be very interested to know the views of the Front Bench on this, because I can see that what sounds superficially like a siren song of easy administration may well end up providing an absolute bonanza for lawyers. I suppose that, as one myself, I should declare an interest.
Baroness Ludford (LD)
My Lords, I want to say a few brief words before the Minister replies; this is prompted by the words of the noble Baroness, Lady Bloomfield, in summing up on the last group, and the letter we received today from the noble Baroness, Lady Neville-Rolfe. My noble friends, in moving and speaking to the amendments in their names, and other noble Lords from other Benches, have highlighted the objective of the amendments, which is to get pledges to uphold environmental protections, including those in international instruments.
In the last group, the Minister gave as an example a pledge to uphold human rights. We are shortly to have a Statement on the well-named Illegal Migration Bill, in which the Home Secretary has said that this is 50% likely to breach the European Convention on Human Rights. If that is the standard by which we judge the Government’s intentions in upholding international law, I do not think it is terribly encouraging.
We debated on Monday the definition of a subject area in the light of the letter from the noble Baroness, Lady Bloomfield. I think we have done so again today. Does it mean water quality? Is it the whole of environmental law? Is it the whole of what Defra does? None of us has the foggiest idea. The same puzzle arises over the term “objectives”. The letter from the noble Baroness, Lady Neville-Rolfe, tells us that
“the individual limbs of the power”
in Clause 15
“are also restricted. Subsection (2) is limited such that any replacement legislation must be appropriate and must fulfil same or similar objectives as the retained EU law or assimilated law that it is replacing.”
That is, of course, the wording in the Bill. She goes on:
“This limits the functionality of this limb of the power to essentially adjusting policy to better fit the UK context”.
Apparently, this is
“rather than radically departing or introducing legislation in ways that are controversially different from the existing legislation.”
So now we have “appropriate”, we have the “same or similar objectives”, we have “subject area”, and now we have a pledge to essentially adjust policy to better fit the UK context. I am afraid that this does not assuage concerns because I, for one, do not have the foggiest idea what restraints or constraints there will be on the Government in their adjustment of policy. They are proposing to adjust policy on refugees, with a 50% likelihood of breaching the European Convention on Human Rightsm as well as, in the opinion of these Benches, totally breaching the refugee convention. I am afraid that the Minister has his work cut out to convince us—certainly these Benches—of the Government's good intentions in the environmental area.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I seek two things this evening: first, to get through this group without having to write any more billets-doux to noble Lords, because I think they have had quite enough. I will be able to explain, I hope, what we are trying to do to satisfy noble Lords. The other is to leave them, if I did not in the previous group that I responded to, with the absolute certainty that we want to see our environment enhanced, and that existing protections continue to function in a way that works at a time when we are tackling the biggest crisis mankind has faced. My noble friend Lord Lilley raised points about the bureaucracy of trying to do the right thing—that if we want to create a wind farm, the delays in doing that are prohibitive. We need to do things quickly, because there is an urgency about what we are trying to do. There is an urgency in trying to reverse the decline of species, which is more than just a crisis. As Dasgupta said, it is more than just an environmental crisis; it is an economic one as well.
The noble Baroness, Lady Parminter, mentioned my noble friend Lord Randall, who is in hospital. I sent him a message earlier and he replied; he is on the mend and we wish him well.
Amendments 126 and 130 seek to add conditions on and restrictions to the use of the powers contained in the Bill. Amendment 126 would place conditions on UK Ministers or devolved authorities when using the powers under Clause 15 to revoke or replace retained environmental EU law. In particular, this amendment would prevent any provision being made before all the conditions specified in the amendment had been fulfilled. This would add significant delay and negatively impact how we review and reform retained environmental law.
The Government have been clear that we will uphold our environmental protections and our commitments, both domestic and international. The UK is a world leader in environmental protection. In reviewing our retained EU law, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. We remain committed to our ambitious plans, set out in the net zero strategy, the Environment Act and the Environmental Improvement Plan 2023, which detailed comprehensive action this Government will take to reverse the decline in species abundance by 2030, achieve our net zero goals, and deliver cleaner air and water. This includes creating and restoring at least 500,000 hectares of new wildlife habitats, delivering a clean and plentiful supply of water for people and nature into the future, keeping councils accountable to improve air quality faster, incentivising farmers to adopt nature-friendly practices, and boosting green growth and creating new jobs. This Bill will not alter that.
Baroness Hayman of Ullock (Lab)
Defra’s approach is not the same as saying “retain by default”: is that what the Minister said “retain by default” meant when he talked about it last week? I really think we need to be clear.
Lord Benyon (Con)
Our position, as announced by the Secretary of State at the launch of the environmental improvement plan, is that we will retain by default provisions for environmental protection. Where we think there is any element of doubt, we will retain. If it needs to go, it can.
I can give the noble Baroness some examples of areas of law that we will remove. We will remove around half of fisheries rules, as they are no longer relevant. They have either expired or relate to areas that we do not fish—for example, access to the Skagerrak, off Norway, for vessels with the flags of Denmark, Norway and Sweden. We do not need that on our statute book. We will remove the Landfill (Maximum Landfill Amount) Regulations 2011 because they set targets up to 2020, which has happened, for the landfilling of biodegradable waste. They have been achieved.
To remove unnecessary burdens, for example, we will remove some of the CITES-implementing legislation, which lays down specific rules for the design of applications and permits on the protection of wild flora and fauna, including prescriptive rules on the weight of paper that must be used for such documents. Removing these regulations will eliminate unnecessary restrictions and allow the UK to pursue a digital regime. When they were written, there was no digital regime; we can now do that. Commission regulation 644/2005 of 25 April 2005 allows for the removal and non-application of ear tags for bovines kept for cultural and historical purposes—in this context, bullfighting. It is a derogation that we have not used in the UK and will not be using, so we no longer need to have it.
Baroness Hayman of Ullock (Lab)
Apologies for intervening again, but is the Minister saying that the Bill retains by default, or just that Defra’s approach is to retain by default? Those are two very different things. The letter we recently had from the noble Baroness, Lady Neville-Rolfe, talked about how
“the internal methodology for identifying such retained EU law was for each department to decide, given their expertise and institutional knowledge”.
It would be useful to understand how that will work within Defra.
Lord Benyon (Con)
Yes, that is Defra’s approach; that is what we are doing in respect of this legislation. Doing that allows us to keep protections in place, provide certainty to businesses and stakeholders, and make reforms tailored to our needs while removing irrelevant and redundant pieces of legislation, such as the ones I recently mentioned.
The noble Baroness, Lady Parminter, and other noble Lords asked about the justification for Clause 15(5). The UK’s high standards were never dependent on our membership of the EU. We can deliver on the promise of Brexit without abandoning our high standards. The powers to revoke or replace will provide the Government with the opportunity to amend retained EU law and will limit those reforms that do not add to the overall regulatory burden. This is about ensuring that we have a regulatory environment that is the right fit for the UK and not for an environment, as I said last week, that goes from the Arctic to the Mediterranean, and which can fit our overall regulatory regime. Our intention is to revoke any retained law that is not fit for purpose and replace it with laws that are more tailored to the UK and reflect our new regulatory freedoms.
The noble Baroness mentioned taxation. This Bill does not affect the raising and collection of taxes; that is a matter for the Finance Act.
On no regression, the Levelling-up and Regeneration Bill is clear that the Government cannot use the powers in that Bill to reduce the overall level of environmental protection, and includes a clause setting out this commitment to non-regression. As stated on the face of the Levelling-up and Regeneration Bill, the Secretary of State may make regulations only if satisfied that they
“will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.
So any changes to environmental regulation will need to support these goals, as well as our international commitments, including those with the EU.
The noble Baroness, Lady Young, referred to the Bill as somehow weakening our resolve or our ability to deliver on our international commitments. I can be absolutely clear on this: there has never been a more determined effort to deliver for international biodiversity and the international climate, as well as domestically.
Lord Benyon (Con)
If the noble Baroness will allow me: Britain is revered in many of the fora that I have attended, whether COPs or other UN events, for the leadership we have taken on this. We cannot do it internationally unless we do it domestically as well. That is why our 30 by 30 commitment is so important and why we will achieve proper management of our marine protected areas by the end of next year, which will deliver precisely on the 30 by 30 commitment for the marine environment.
Lord Benyon (Con)
The noble Baroness, Lady Parminter, was before the noble Baroness.
Baroness Parminter (LD)
Indeed. I do not wish to contradict the Minister, but I am going to. On reading my copy of the Bill, Clause 15(4)(f) states that the burden “may not … impose taxation”. It states that you cannot include new taxation if you are looking to introduce a new piece of legislation. That is pretty clear.
Lord Benyon (Con)
That is because taxation is a matter for the Finance Bill—for the Treasury. This Bill does not relate to that. It is a negative. This does not affect taxation.
Baroness Parminter (LD)
Okay, but it goes on to say in Clause 15(10)(a) that the burden includes, among other things, “a financial cost”. A financial cost can be a levy, which is taxation.
Lord Benyon (Con)
Forgive me, I think that is dancing on the head of a pin. Taxation is not a matter for this piece of legislation.
Baroness Young of Old Scone (Lab)
I was going to ask the noble Lord something else, but I support what the noble Baroness, Lady Parminter, said.
It is kind of fruitless if we ping-pong across, with Ministers generally saying that we are right behind current levels of environmental protection, international commitments and all that. I wonder whether we could try a little test case on the habitats regulations, which we have made some changes to already through the Environment Act, and a number of changes to them are already embedded in the levelling-up Bill. Some bits of those regulations are left for which I do not know what the Government’s intentions are. Inevitably, for something such as protected areas and our commitment to 30 by 30, not having a clear view from government as to how the habitats regulations will fare in this review process, which is under way through two separate pieces of legislation already, is a bit of a worry when we have to sort that out before the end of the year.
Perhaps we could use the habs regs as a test case and ask the Minister to map out for us what has been sorted in the Environment Act, what will be sorted if we approve it in the levelling-up Bill and what is going to happen to the remainder of the provisions of the habs regs before they fall off a cliff at the end of this year. That would give us a lot more confidence in some of the assertions—which we absolutely accept the Minister is making in good faith—about not diminishing standards and not welshing on or diminishing our ability to respond to our international obligations.
Lord Benyon (Con)
I totally respect the noble Baroness for her commitment on these issues. I know she would not want legislation that sealed the habitats regulations in aspic for ever, because the environment changes and demands change and Parliament has to reflect that occasionally regulations need amending. We may well want to raise the standards of those regulations.
Baroness Young of Old Scone (Lab)
If I can correct the Minister on that, this retained EU legislation Bill has a hard edge. As of the end of December, if nothing else has been done it does not set it in aspic but sets it eight feet under.
Lord Benyon (Con)
If we maintain it as is, it will not fall at the end of the year. If we want to reform it, it will be in the form of an SI, as before, so noble Lords will have a chance to debate it. The noble Baroness seems to be presupposing that somehow we are just going to allow it to sunset, and we will not.
I will make a bit of progress, if I can. We want to positively—I think this answers the noble Baroness’s point—tailor our legislation to our new status as an independent nation. This is why we do not consider the proposed conditions for such regulations necessary.
Amendment 130 seeks to add a new clause to the Bill relating to environmental standards. This amendment would introduce a new clause requiring Ministers to meet the additional conditions set out within it. It would also specify that, when exercising these powers, the relevant national authority must have regard to the conservation and enhancement of biodiversity, the improvement of water quality, and the protection of people and the environment from hazardous chemicals. I recognise that the noble Baroness, Lady Hayman, may have concerns about the powers within the Bill and the impact their use may have on regulations related to environmental standards. I reassure her that such concerns are unfounded.
A number of noble Lords talked about the water framework directive. I shall relate very quickly an experience I had when I came into government with the Liberal Democrats in the coalition. I visited a river that was feeding into the Wye—a river that is often raised in this House for its condition. I visited a mill-house. Its owners said that they had been there for eight years. They pointed at some farm buildings about half a mile away and said, “When we came here we couldn’t see those farm buildings. Two metres of top soil has been lost in the eight years we have been here.” I asked where it was now and they showed me the millpond round the other side of the house which was full of the delicious red soil that comes from that area. I said, “How could this have happened?” The farmer who had allowed it to happen was receiving money from the basic payment scheme, and probably from the countryside stewardship scheme, but no one had visited, or if they had visited they had not raised this issue. The river authority—or whoever was in charge of the quality of the rivers; it was the Environment Agency at the time—had not raised the issue.
That was 12 years ago. Since then, we have produced measures which would require that farmer, if they wanted to continue to get public money, to have soil conditions that would prevent that kind of erosion, and the management of that river would require much higher standards. The water framework directive, which has some very high standards and high bars which we talked about last time, was being ignored, and one of the great rivers of our country was being ruined.
Let us not pretend that everything was perfect in the past. We have got a long way to go to improve our rivers, and it is the determination of this Government to write a new form of the water framework directive which will continue the high standards that we seek for our rivers.
Baroness Ludford (LD)
In his reply, the Minister has several times implied that it was the fault of EU law, but surely it was a problem of UK implementation and enforcement. I know I am a broken record in this respect but I have, at various times, referred to the Thames super sewer. Left to their own devices, the UK Government were not going to stop the discharge, in even minimal rainfall, of raw sewage through 36 combined sewage overflows into the River Thames as it goes through London. It was only infringement proceedings by the European Commission that led to this result. The standards that we have are not the EU’s fault; it is the UK Government and the agencies that have not done their job.
Lord Benyon (Con)
I never said that. I was the Minister who made the sewer that is being put in place happen. I know all about the urban waste water treatment directive, and it is a very good directive indeed. It is cleaning up a lot of rivers and will ensure that we have more investment such as we are seeing in the Thames. There may be cases where there has been poor implementation, and there may be cases where there has been very good European regulation which we want to see retained. There may be areas where we can see an improvement which reflects a local dynamic in our environment.
We cannot talk about this in a binary sense. There is some very good EU law which we want to see continue, there are some areas in which it is no longer necessary, and there are some areas in which with a few tweaks it can be improved. Among the proposed conditions in the amendment is a requirement to publish a statement setting out how such environmental standards have been met. Such conditions are already being met under the Environment Act 2021. The Act has established a robust legal framework to deliver environmental benefits and hold Governments, both now and in the future, to account in delivering them. Crucially, the Act also established the Office for Environmental Protection, an independent body to scrutinise government delivery and progress on environmental ambitions. In addition, we have a statutory duty, through the Environment Act, to report annually to Parliament on progress against the environment improvement plan and to undertake a significant improvement test every five years.
To reiterate the point on REACH, which the noble Baroness, Lady Hayman, raised, we recognise there may be concerns about the future of REACH regulation. That is why we have deliberately built protections into the provisions of the Environment Act. The Secretary of State must publish a statement to explain how any proposal is consistent with the basic aim and scope of REACH. There must be consultation before we can make any changes. We have also excluded more than 20 provisions to protect the fundamental principles of REACH, including the no dating, no market principle, using animal testing only as a last resort, and the public transparency of the system.
Finally, I want to clarify a response made to the noble Baroness, Lady Chapman, the last time I addressed the Committee on the Bill’s removal of interpretive effects. The removal of interpretive effects by the Bill refers to measures in Clauses 3 to 5 which repeal rights, powers and liabilities saved by Section 4 of the European Union (Withdrawal) Act 2018. They abolish the principle of the supremacy of EU law and general principles of EU law as aids to interpretation of the UK statute book. Retained case law is not being sunsetted.
Further detail on interpretive effects was set out by the noble Lord, Lord Callanan, in his letter circulated before the Committee on 6 March. We will shortly publish a list for noble Lords, so they will have plenty of time and opportunity to review the regulations we intend to allow to expire at the end of the year and those we wish to retain.
The Government are committed to upholding the environmental protections. I hope I have reassured noble Lords, and I therefore ask them not to press these amendments.
Baroness Bennett of Manor Castle (GP)
The Minister speaks for Defra and assures the Committee that the Government are entirely committed to progressing environmental standards and will follow international law. Why is there any problem putting a non-regression clause and an agreement to follow international law in the Bill if that is what the Government plan to do anyway? Further to that, can the Minister assure me 100% that before the next general election there will be no change of direction in the Government, change in Prime Minister or change in ministerial personnel?
Lord Benyon (Con)
I wish I could. I am very content with the current lot, and I hope they continue. I do not really understand the first point that the noble Baroness made. The Bill is quite explicit about where this stands in law. We want a proper regulatory regime underpinned by law; that is why we are having this debate.
Baroness Parminter (LD)
My Lords, I thank noble Lords who have participated in the debate. I thank the Minister, who has had the decency again to come and speak to us. Given how critical the environmental laws are to the Bill, it is important that he is here and we are grateful for that, although it may not always seem it. It is therefore disappointing that I can say with a degree of certainty that he has not reassured Members about the issues we are concerned about. In a reasonable way, these two important amendments sought to work with the Bill to allay some of our environmental concerns.
I do not understand how the Minister did not quite understand what the noble Baroness, Lady Bennett of Manor Castle, was saying. We accept what the Government are saying through the Minister, but if they want to deliver the commitments for our environment and, in principle, not regress, why not put it in the Bill? That would give us—and, just as critically, the public—the reassurance that we need.
I do not often quote in the Chamber, but this issue is not going away. On Sunday, David Attenborough starts a series called “Wild Isles”. For five weeks he will encourage the British public to find out what is so special about our country and what they can do to protect it. Sir David said this week:
“Though rich in places Britain as a whole is one of the most nature depleted countries in the world. Never has there been a more important time to invest in our own wildlife—to try and set an example for the rest of the world and restore our once wild isles for future generations.”
For five weeks the British public will get that message and, in the same way as when they heard the plastics message, they will ask what they can do to protect their environment and what their Government are doing. They will see this cuckoo of a Bill, sired by someone who was prepared to trash our environment as well as our economy and, unless it has the significant safeguards we have talked about, it could predate on the environment they care about so much. The Government might choose to ignore us today, but they will not be able to ignore the British public. I withdraw the amendment.
Baroness McIntosh of Pickering (Con)
I am grateful for this opportunity to speak to this little group, which is intended as probing amendments that look to the power to update and the transitional part of the Bill.
The aim of Clause 16 is to provide that the national authority will have the power to update by regulations
“any secondary retained EU law, or … any provision made by virtue of section 12, 13 or 15 … to take account of … changes in technology, or … developments in scientific understanding.”
I am honing in on whether Clause 16 should stand part because I believe that the reasons for updating these regulations should also reflect other conditions, such as changes in society or economics. The rationale for making amendments in Clause 16, as currently drafted, is unduly narrow. I therefore urge the Government to consult on this clause and rethink this provision to reflect the wide scope of changes that would necessitate amendment of the law in future.
I take this opportunity to ask my noble friend, when she comes to sum up this small group, what the consultation was on this clause prior to the drafting of the Bill. I would like to understand further the thinking behind why this clause is currently so narrowly drafted.
In turning to Amendments 133 and 134, I raise a request yet again—I think this is my third or fourth attempt. It goes to the heart of not just amendments in my name but of others in the names of the noble Baroness, Lady Humphreys, and the noble and learned Lord, Lord Hope. I have still not heard an answer from any noble friend to the question: what is the Government’s view of the Scottish Parliament’s decision to withhold consent? It is vital that we get an answer to that question before we leave Committee, which is at the end of today. My noble friend Lady Bloomfield said to me that I would have an answer. This is the last possible moment for me to get an answer to that question, and I think it very important. It relates not just to Clauses 16 and 19 but to other clauses that have been extremely contentious and led to fairly lengthy debates. I hope my noble friend Lady Neville-Rolfe will respond on that vital question.
Amendment 133 would replace “appropriate” with “necessary”. As currently drafted, Clause 19(1) provides that:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act.”
Given that Clause 19(2) allows such regulations to amend any Act, including this Bill, it is my view—and that of the Law Society of Scotland, which helped me draft this small group—that the Minister should be permitted to amend those regulations only where it is necessary to do so. This applies a more objective standard to the amendment of the regulations. If my noble friend is not minded to support my amendment to replace “appropriate” with “necessary”, can she explain in which circumstances the Government would consider the provision to be appropriate for the purposes of Clause 19(1) and (2)?
Amendment 134 would require a Minister of the Crown to consult the other relevant national authorities and interested persons before making regulations under Clause 19. In particular, Clause 19(1) has been identified as providing a Henry VIII power that empowers a Minister of the Crown by regulation to make such provision as the Minister considers appropriate in consequence of this Act. Given that Clause 19(2) would allow such regulations to amend any Act, including this Bill, it is the view of the Law Society of Scotland that the Minister should be required to consult the bodies referred to—the devolved Administrations. I share that view.
Lord Fox (LD)
My Lords, we are indebted to the noble Baroness, Lady McIntosh, for again bringing forward some detail and being a conduit for the important work that the Law Society of Scotland provides to a number of different Bill Committees on which I have found myself. I am not going to speak to the clause stand part debate or her first amendment, but I shall speak briefly on Amendment 134. She herself linked it to the first group that we spoke about today. In the words read out by the noble Baroness, Lady Bloomfield, in response to that group, I failed to recognise the description of the relationship that currently exists between the Government in Westminster and the devolved authorities when discussing this Bill. A picture appeared to be painted of some quite progressive and happy discussions, which is not my impression of what is actually going on. The noble Baroness’s Amendment 134 is another way of trying to link back to the devolved authorities. It is clear at the moment that the devolved authorities are very sore about how they are being treated by the Bill, so any measures that reach back to them are important. That is why we on these Benches particularly support Amendment 134.
Baroness Chapman of Darlington (Lab)
My Lords, I agree with what the noble Lord, Lord Fox, said about the helpfulness of the noble Baroness, Lady McIntosh, in tabling these amendments. It is curious that, in this clause, changes in technology and developments in scientific understanding are allowed to be taken account of but other factors are not. I would have thought, given the Windsor Framework, that we ought to be taking account of developments in the economies of our trading partners and their regulatory developments, because under that framework they are going to have an impact on what we are able to do in the UK and our approach to regulation and divergence. That is becoming increasingly clear, which is why we are seeing questions such as that asked by the noble Lord, Lord Moylan, of the noble Lord, Lord Caine, yesterday at Oral Questions. We do not yet have a sense that the Government are on top of this. It is as if they have done this Bill and then done something somewhere else, and no one has asked about how those two things will overlap.
When I first saw this clause, I thought, “This is a real problem because Ministers are going to get too much power to do things without accountability, rather like the discussions we have had before”, but actually even more questions are raised about the privileging of technology and scientific understanding ahead of anything else. It would be good to understand where that has come from and what Ministers had in mind when they included it in the Bill. Might they come to regret not making clear that this is not an exhaustive list, or something like that, as they have in other clauses? We are not clear what is meant by the phrase
“considers appropriate to take account of”,
so perhaps some examples might be in order.
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
Amendments 133 and 134, tabled by my noble friend Lady McIntosh of Pickering, relate to the power to make consequential provision in Clause 19. I will also address the intention to oppose Clause 16 that she has tabled, regarding the power to update. I reiterate my intention that Clause 16 should stand part of the Bill. As she has indicated, her intention to oppose it is probably partly probing in nature.
The power to update within the clause, as it says, is intended to enable scientific or technological updates to retained EU law, assimilated law, and legislation made using the powers to restate and the powers to revoke or replace in the Bill. This power is intended to provide Ministers and devolved authorities with the ability to update relevant existing legislation in line with its policy intent, rather than provide for fundamental policy change.
The Government considered a number of relevant criteria for the power to update and settled on scientific advancement and technical change as the most appropriate. Adding extra provisions on trade or economics would be very wide-ranging, whereas the need to update narrowly on tech makes sense. I shall give the Committee a hypothetical example. Medical devices regulations set out a list of equipment that is safe to use. As new medical technology is developed, this power could be used to update the list of permitted devices to include the new technology.
During our EU membership, EU law was frequently updated by the European institutions—I remember sitting in management committee when I was a civil servant—but we now lack the powers to do so ourselves for retained EU law. We cannot allow this body of law to stagnate on our statute book. To resolve this, a Minister or devolved authority may make updates to such legislation to take into account changes in technology or developments in scientific understanding, as appropriate. That ensures that legislation which sits on the UK statute book is able to keep pace with scientific and technological developments and will enable the UK to continue to uphold our high standards. Without such a power, there is a risk that legislation would stagnate and become outdated on the UK statute book. For example, there could be significant developments in technology that we need to be able to respond to quickly and in an agile way in order for the UK to keep pace with such developments and remain competitive. I therefore ask that the clause remain part of the Bill.
Amendments 133 and 134 both seek to place restrictions on the consequential power within Clause 19. Amendment 133 would limit a Minister of the Crown to make only those changes deemed necessary in consequence of the Bill, while Amendment 134 would place a requirement on the Minister of the Crown to consult any interested persons and relevant devolved Governments before using the power to make consequential amendments. The Minister of the Crown would also be required to publish the results of any consultations.
On Amendment 133, I reassure the Committee that the inclusion of a consequential power is standard practice for a Bill where minor additional changes to legislation may be required as a consequence of the changes brought forward by the Bill. To take another example, consequential amendments will need to be made to rename retained EU as “assimilated law” in existing legislation. Were Amendment 133 to pass, it would limit the power to only those amendments deemed necessary. That would lead to a number of problems. In particular, it is not clear whether any consequential provision would ever be truly necessary, as it would be possible to leave the statute book with an erroneous provision and it would likely be interpreted as modified by the Bill.
Turning to Amendment 134, I have already explained that this power is a standard consequential power. The power is not conferred standardly on the devolved Governments, as it is normally exercised by UK Ministers. Should this amendment be passed, it would hinder the ability to make consequential amendments to legislation, which may be necessary to ensure that our UK statute book continues to function effectively. Indeed, it is our expectation that the use of the consequential power, as in other primary legislation, will be interpreted narrowly and limited to making only those amendments that are genuinely consequential and result from changes in the Bill. For these reasons that I have outlined, I ask my noble friend not to press her amendments.
My noble friend also raised the question of devolved nations and of the Scottish Parliament’s consent. We will come to back to that; we understand the concerns raised. I apologise for not being here at the beginning of proceedings, as I had a meeting with the Welsh Government. I know that it has been difficult for everyone because of the extra—but important—days that we have had to debate the Bill.
Baroness Chapman of Darlington (Lab)
Can the Minister commit to write to me about an issue that I have raised a few times on different groups? It is about how the Bill relates to the Windsor Framework and how the Government see that evolving.
Baroness Neville-Rolfe (Con)
I certainly undertake to write. There are some uncertainties, as the noble Baroness will understand, so I will update her as much as I can. It is important and we need to be as clear as we can be before Report.
Baroness McIntosh of Pickering (Con)
I think the whole Committee would probably like to have sight of that letter, if we may. It goes to the heart of what the noble Lord, Lord Dodds, asked earlier today, because we are still very unclear as to the level of withdrawal of EU laws in connection with the Windsor agreement.
I have the highest regard and the greatest affection for my noble friend, but I have to say that I find it extraordinary that we are about to leave Committee and we still have not heard what the government response is to a very serious issue of the Scottish Parliament having announced that it is withholding its consent to the Bill. The Committee will have to form a view on that—I am sure the whole House would like to form a view on it—as we now proceed to Report. I am extremely disappointed that, having given my noble friends three or four goes, it is kind of like, “We don’t really care what the Scottish and Welsh Governments, or the Northern Irish people, think, because we’re an English Parliament and we are going to proceed”. I am afraid that is the impression I am left with.
Baroness Neville-Rolfe (Con)
We are the UK Parliament. I have said that we will come back to the House on these devolved issues. It may not be possible to do that today, but I thank my noble friend.
Baroness McIntosh of Pickering (Con)
Is my noble friend able to say when? Could we have a meeting before Report? It would be helpful to know whether my noble friend will commit to such a meeting. I will take that as a yes.
Baroness Neville-Rolfe (Con)
I have committed to write. Whether or not there is a meeting, we will certainly be in communication.
Baroness McIntosh of Pickering (Con)
I am grateful. My noble friend will have soaked up the atmosphere, including in the responses from the two Front Benches opposite, as to the strength of feeling throughout the Bill’s proceedings as to how it would appear that there has not been formal consultation to the extent that the devolved nations would have wished. One has already registered that it has withheld its consent, which obviously calls into question what the next stage will be with the Scottish Parliament in that regard. It has amendments on the table that have not yet been tabled, so we will see what happens there.
I am disappointed that my noble friend was unable to explain—in response to not just my questions but those from the noble Baroness, Lady Chapman of Darlington, as well—why it is only science and technology. Are we including food science in this, or science as it relates to chemicals with regard to UK REACH and EU REACH? I am afraid that more questions have probably been raised during the debate on these small groups of amendments, so personally I would like to return to this at a later stage of the Bill. I am grateful for the opportunity to have debated the amendments this afternoon and, for the moment, I will not press my amendments.
Retained EU Law (Revocation and Reform) Bill
Wednesday 8th March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-V Fifth marshalled list for Committee - (6 Mar 2023)
Member’s explanatory statement
This amendment would remove the disapplication under the Bill of section 28 of the Small Business, Enterprise and Employment Act 2015 (duty to review regulatory provisions in secondary legislation) to the powers to make regulations under the Bill, and add a requirement to publish a review within three years, following the concerns expressed by the Secondary Legislation Scrutiny Committee in paragraphs 65 and 66 of its 28th Report ‘Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill.’
Lord Hodgson of Astley Abbotts (Con)
My Lords, I will move Amendment 134ZA and speak to Amendment 134B.
We have had pretty extensive debates over the past four days in Committee about how we need to improve the parliamentary involvement of both Houses on this framework, skeleton Bill. These two amendments shift the Committee’s attention to the existing scrutiny procedures which, while generally regarded as inadequate, do at least provide some level of scrutiny, and therefore hold the Government to account. However, even with these existing procedures, the Government are, as I shall explain, behaving increasingly casually and often ignoring existing statutory obligations.
Amendment 134B concerns impact assessments, which are required to be produced at the same time as the relevant regulation is published. Amendment 134ZA is concerned with post-implementation reviews. Together, they implement two of the recommendations made in the Secondary Legislation Scrutiny Committee’s report, Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill.
I will deal first with Amendment 134B, concerning impact assessments. This requires an impact assessment to be laid simultaneously—an important word—with the laying of each regulation. Impact assessments were introduced by the Small Business, Enterprise and Employment Act 2015—I think my noble friend Lady Neville-Rolfe was the Minister at the time. The impact assessments are to be produced whenever the impact of a particular regulation exceeds £5 million.
A good impact assessment should inform policy development and evolve with it. This enables both Houses of Parliament to see and evaluate the various methods for dealing with a particular policy issue that the Government have thought about and then explains why a particular selection was made to give the policy effect. No less important, publishing an impact assessment in a timely manner gives people outside Parliament who will be particularly affected by a proposal a chance to make their views known. This narrows the gap between the governors and the governed, which some people feel has grown in recent years. As people often say, law that has been consulted on is often better law and is nearly always better-accepted law, because people feel that they have a chance to make their views known.
I will give two examples of the sorts of issues that are affected by how the Government have been rather casual about impact assessments. The Misuse of Drugs (Amendment) (Revocation) (England, Wales and Scotland) Regulations 2022 may sound a dull title, but in this the Home Office was going to revoke the ability to license a chemical because it could also be used as a drug. The Home Office believed that there were only 65 firms that used it and would be affected by it. When they produced the impact assessment, they found that there were about 7,500. Therefore, the effect of the impact assessment was to make sure that those 7,500 firms were not deleteriously affected.
My noble friend the Minister will no doubt say that this shows that the system is working—to which I would reply that it is effective when the impact assessment is provided. Too often, impact assessments are produced too late to be effective or, in some cases, not produced at all. Let me give an example of each, briefly: first, on an impact assessment being too late to be effective.
The Committee will recall that a big decision was made about whether we should require care home staff to be compulsorily vaccinated. There was considerable concern about how many members of staff would resign as a result, either because they had religious beliefs against vaccination or because they were young women concerned about the impact on their fertility. When the regulation was published, no impact assessment was provided at all, so the SLSC asked the Minister to give evidence and explain why. The regulation having been published in late June, he came to see the committee in July and, after what I like to think was a fairly thorough grilling, he agreed and undertook to bring forward an impact assessment. He did, but he brought it forward in November. By then, everybody had been vaccinated or had not been, and the reason for producing the impact assessment was completely vitiated.
As an example of the latter—no impact assessment at all—a Minister from the Department for Transport told the SLSC, during an evidence session on the draft Motor Vehicles (Driving Licences) (Amendment) Regulations:
“It did not cause delay because the regulations went through without the impact assessment.”
In the committee’s report, titled Losing Impact: Why the Government’s Impact Assessment System is Failing Parliament and the Public, there are 20 or 30 examples. I have given just a couple to show the extent and prevalence of the problem.
Each department has a Minister responsible for making sure that SIs and their attached impact assessments are produced properly and to time. Each of those Ministers reports to a Minister at the centre. Until two or three weeks ago, my noble friend Lord Callanan was that luckless Minister trying to corral this herd of cats. He gave evidence to the committee and he said that he was keen to prioritise, and I do not doubt that at all, and that
“because we have no statutory means of enforcing the writ of impact assessments, we are relying on peer pressure to encourage and cajole departments to do it”.
I hope that my noble friends Lord Callanan and Lady Neville-Rolfe—she is going to reply—are pleased to see Amendment 134B riding to their rescue by inserting the words “at the same time” into the clause. It says that
“under this Act … laid before Parliament, the instrument, or draft instrument, must be accompanied at the same time by a regulatory impact assessment”;
in other words, no impact assessment, no regulation. By any measure, the level of parliamentary scrutiny of the outcome of the Bill is low. If the Government avoid producing IAs at the right moment, promptly, it will be another nail in the coffin of scrutiny. That was my amendment on impact assessments.
My Amendment 134ZA concerns post-implementation reviews—PIRs. I have long since lost count of the number of times I have sat in committees or in the Chamber and heard Members of your Lordships’ House say that post-legislative scrutiny is a really important way of holding the Government to account. It measures performance against promises; it provides a Bill’s institutional memory, as to what worked and what did not; and it enables those outside Parliament to understand the effect, deleterious or otherwise, of any particular regulation. In essence, PIRs are post-legislative scrutiny for regulations.
Sections 28 to 32 of the Small Business, Enterprise and Employment Act, to which I have already referred, require that any regulatory provision that passes the impact assessment test—the £5 million threshold—should be reviewed five years after commencement and every five years thereafter. Despite this being a statutory provision, it is something that we are very far from being able to rely on. We took evidence from Christopher Carr of the Better Regulation Executive. He suggested that between only 25% and 40% of regulations that required PIRs were getting them. In fairness to my noble friend, he wrote to say that he thought the figure was 72%, so I put that on the record.
However, with Clause 20(5) the Government are writing off the PIR system. It has gone. I strongly believe that this is a mistake. PIRs, properly conducted and publicised, play a very important role in monitoring, and so improving, government performance. If they play an important role in general, they do a great deal more in the particular circumstances of this Bill, because all parties, even the Government, recognise that we are entering terra incognita—unknown territory—with the provisions of the Bill. It is impossible to foretell how these decisions, inevitably taken quickly under the pressure of the 31 December deadline, will work out in practice. It must surely be sensible for the Government and Parliament to have in place a formal process to review the real-life results. This amendment simply restores the requirement for there to be a PIR, undertaken and published for each regulation, three years after the regulation comes into force.
To conclude, an age ago—actually a week ago, but it feels like an age ago—in my remarks on Amendment 32, I said that during my three years as chairman of the SLSC
“I have seen the sands of power and influence trickling through Parliament’s fingers”,—[Official Report, 2/3/23; col. 433.]
weakening Parliament’s relative power against the Executive, the Government. This is yet another example of mission creep on behalf of the Government. It is wrong in principle and in practice, and I hope the Government think again. I beg to move.
Lord Fox (LD)
My Lords, I thank the noble Lord, Lord Hodgson, for his very comprehensive review of two important amendments. It is a shame that we have got to the last sands of the Bill here. I am not going to add to what he has said, particularly on Amendment 134B, but I have a question that formed when I read the Bill in the first place: why is Clause 20(5) in the Bill; in other words, why did the Government actively choose to disapply this process? What made them think that they want to do this?
If I were a conspiracy theorist, I would say, with all the assurances that we have had that most things would stay the same and therefore not require the treatment that the noble Lord just described, this would not be an onerous task. However, if there was wide-scale revocation of regulations—including those that go beyond tagging the ears of fighting bulls, reindeer and all the others we are told about—that have an effect in the United Kingdom today, and if there is reformation, another word for change, a great deal of reviews would be required for those regulations to continue. Why was it decided to include Clause 20(5) in the legislation as drafted?
Lord Collins of Highbury (Lab)
My Lords, it is always a great pleasure to support the noble Lord, Lord Hodgson. It has been a frequent occurrence on my part because of his excellent work on the committee that he chaired; there have been some excellent reports that I think have done a great service to this House. I am not going to repeat the points he has made; he has done an excellent introduction. I just want to seek clarification from the Minister in relation to his response to the committee.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
I thank all three speakers. I first thank my noble friend Lord Hodgson; I know he takes this subject extremely seriously, as do I. It was a pleasure, albeit a gruelling experience, to give evidence to his committee. He knows my personal commitment on impact assessments is substantial; I do believe that they are important. As he said, I did have responsibility for it before the machinery of government changes, and I did my best working with the Regulatory Policy Committee to impress on other government departments the importance of producing impact assessments for some quite major pieces of legislation. Some Secretaries of State have chosen not to. My noble friend Lady Neville-Rolfe, talking from a sedentary position here, has just said, “I hope you produced one for the Procurement Bill”.
So, let me address the points that my noble friend has made on Amendments 134ZA and 134B. I hope to explain to my noble friend why we are taking the actions that we are. Starting with Amendment 134ZA, my noble friend’s amendment seeks to reintroduce a duty to insert review provisions in secondary legislation by removing the Bill’s proposed exemption to Section 28 of the Small Business, Enterprise and Employment Act 2015—which, as my noble friend said, was produced by my noble friend Lady Neville-Rolfe. It is amazing how these things come around.
It is correct that the Government should commit to review any new regulatory provisions that may arise from the use of powers in this Bill, including by secondary legislation. However, if we were to reintroduce Section 28, there are concerns that at a future date there will be a huge surge in the volume of reviews requiring assessment in a fairly limited window of time, which would put tremendous pressure on the Civil Service and independent resources. The amendment also calls for a requirement for a review within 3 years. This is in fact more frequent than the current review process of five years. It is my submission that, for some policies, a review at this point would be based on too small a data sample to make a meaningful judgment.
Finally, many of the relevant instruments are in an existing review cycle that is due to be undertaken within the next three years. I hope my noble friend will accept that forcing a further regulatory review would create duplicate or conflicting review cycles. Therefore, for new regulatory provisions introduced under this Bill, we are proposing a bespoke approach to our REUL analysis. Where applicable, such as when retained EU law is being amended significantly via a statutory instrument, departments may be subject to additional independent scrutiny. If the expected economic impact of REUL changes is of £5 million or more, departments will be expected to submit the impact assessment for independent scrutiny by the Regulatory Policy Committee, as in general happens now.
Where measures are being sunset, departments will undertake proportionate analytical appraisal. Each department will be expected to produce an aggregate analysis of REUL that it is choosing to sunset. This aggregate analysis will be published by departments. Each department’s aggregate analysis will be divided into groupings, such as “inoperable” or “defunct”. No doubt the noble Lord, Lord Fox, will study my noble friend Lord Benyon’s famous examples with great interest for the impact on the fighting bulls of the West Country.
Should the total impact of any grouping exceed the de minimis threshold of plus or minus £5 million, which is the limit used, then the department should submit an impact assessment to the RPC for independent scrutiny. This approach balances efficiency by requiring reviews only where necessary, alongside delivering an ambitious programme of REUL reforms which we hope will deliver real economic benefit for UK businesses and citizens.
My noble friend’s other amendment, Amendment 134B, seeks to introduce a duty for departments to conduct a regulatory impact assessment when they lay a statutory instrument or a draft of a statutory instrument containing regulations via the powers in this Bill. To address the question raised by the noble Lord, Lord Fox, properly assessing the impact of government policy is an important principle of good governance, and this Government will continue to be committed to the appraisal of any regulatory changes relating to retained EU law. The nature of the appraisal will depend on the type of changes that departments make and the expected significance of the impacts.
Where applicable, such as when retained EU law is a regulatory provision and is being amended significantly via a statutory instrument, departments will be expected to put their measures through the Government’s systems for regulatory scrutiny, which is the better regulation framework. Where measures are being revoked, departments will be expected to undertake proportionate analytical appraisal. We are currently exploring the appropriate steps we can take to appraise the resulting impacts. Furthermore, the Government have, as the Committee knows, published an impact assessment relating to the Bill as a whole. The noble Baroness, Lady Chapman, referred to it extensively. In addition, an internal exercise is under way between departments and the Ministry of Justice to appraise potential impacts on the justice system from the Bill.
However, given that proper and proportionate cost-benefit analysis will be undertaken by departments in relation to amendments to retained EU law, and efforts are under way to understand potential impacts of sunsetting, I hope my noble friend will agree that there is no need to include in the Bill the amendment that he has proposed. I hope I have been able to reassure him and that he will feel able to withdraw his amendment.
Lord Hodgson of Astley Abbotts (Con)
I am grateful to the Minister, to the Opposition Front Bench for its support, and to the noble Lord, Lord Fox, for his inquiries. Clearly, my interviewing of my noble friend at the committee was not gruelling enough in the light of the answers he has given me, but never mind. I accept the three to five years issue.
Then I get quite excited, because I hear about a bespoke approach. That sounds quite good, but then we hear “proportionate” and “only where necessary”. So we will set up something that we all would agree is great—even my successor as chairman of the SLSC, my noble friend Lord Hunt—but then we have so many escape clauses. Although I would not say that it is not worth the paper it is written on, I would say words to that effect. However, it is late. I will read carefully what my noble friend the Minister said, reflect on it, and then decide what further action needs to be taken. I beg leave to withdraw the amendment.
Lord Callanan
Member’s explanatory statement
This amendment is consequential on the Minister’s amendments at Clause 1, page 1, line 7 and After Clause 1. It also makes procedural provision in relation to subsection (1)(c) of new Clause (Exceptions to sunset under section 1).
Member’s explanatory statement
This amendment, together with amendment 140, would extend the period available to committees of the two Houses to discharge the sifting function provided for under the Bill, as recommended by the Secondary Legislation Scrutiny Committee in paragraph 59 of its 28th Report “Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill”.
Lord Hodgson of Astley Abbotts (Con)
My Lords, the horse is running to the stables, so I will not speak for a moment longer than is necessary. I shall speak also to Amendment 140. I am grateful to the noble Baroness, Lady Randerson, for putting her name to these two amendments, and the noble Lord, Lord Hutton, who is not here, for also supporting them. They are concerned with ensuring that a proper amount of time is allowed so that both Houses of Parliament can scrutinise the proposed use of the serious powers given to Ministers under Part 3 of Schedule 4. They again follow recommendations made in the SLSC’s report on the Bill.
The powers are listed in paragraph 7(2) of Schedule 4, and it is worth while noting what they are. They are powers in Clauses 8, 12 and 13 to amend, repeal or revoke primary legislation; powers in Clause 15(2) to make subordinate legislation; powers in Clause 16 to update legislation; and last but not least, powers to create a criminal offence in Clause 15(2). We are talking not about parking tickets but about things that are serious.
The exercise of these powers is under the negative procedure, so unless somebody objects it goes through on a nod; it is not debated at all. However, the Minister has to lay a draft of the proposed regulation explaining why he or she thinks the negative procedure should apply, and either House has an opportunity to recommend that the matters concerned are of sufficient importance to warrant an upgrade to the affirmative procedure, which, in turn, would at least allow the regulations to be debated.
Each House will have a committee charged with assessing whether there should be such an upgrade. The procedure follows that established for the European Union (Withdrawal) Act 2108, where the SLSC came to act as sifting committee of your Lordships’ House. Experience under the 2018 Act shows that the two Houses of Parliament generally ran on parallel tracks. Of the 329 proposed negatives under the Act, 50—15%—were recommended for upgrade by your Lordships’ House, and 57—17%—were recommended for upgrade by the House of Commons, and the Government invariably accepted the recommendations from either or both Houses.
Baroness Randerson (LD)
I thank the noble Lord for his excellent introduction. As very much a new girl on the Secondary Legislation Scrutiny Committee now being very ably chaired by the noble Lord, Lord Hunt, I put my name to this amendment because I am convinced by his arguments for this basically very modest and very practical pair of amendments. The arguments are based on experience, as the noble Lord has explained. Earlier today, the Minister indicated that it is the Government’s intention that a substantial number of pieces of legislation will be revoked and reformed and that we are not looking at a situation where there would be some exceptions to carry over.
Given the very tight time constraints—the Minister made it quite clear in an earlier letter to us that even he thought it was ambitious—we can confidently expect that the Secondary Legislation Scrutiny Committee will face something of an avalanche of legislation towards the end of the year. For it to get its thorough job done properly, there needs to be this simple expansion of time available from 10 to 15 days; otherwise, the danger is that the committee will have to act in a way that is precautionary and might well make more comments necessary than if it were given a little longer to consider it. I urge the Minister to take this into account and to accept this amendment at a later stage of the Bill.
Lord Hunt of Wirral (Con)
My Lords, in January I had the privilege of being appointed chair of the Secondary Legislation Scrutiny Committee. In that capacity I support these amendments in the name of my noble friend and predecessor Lord Hodgson of Astley Abbotts—a very difficult act to follow, as he has just demonstrated once again. I greatly welcome the participation of the noble Baroness, Lady Randerson, who has already brought a ray of sunshine to the committee in dealing with some difficult and challenging problems.
Supported by our team of brilliant and highly experienced advisers, the committee reports week in, week out on secondary legislation laid before Parliament, covering every conceivable aspect of policy, directing your Lordships’ attention to the most notable instruments and providing valuable information in support of subsequent debates on those instruments.
As we have heard, under the European Union (Withdrawal) Act 2018 the committee was charged with an additional function—the scrutiny of what are called proposed negative instruments laid under a new sifting mechanism. The committee had 10 days to report on these proposed instruments and, to its immense credit and that of its staff, it rose to the considerable challenge of meeting that demanding deadline under the leadership of my noble friend.
As we know from the committee’s recent report on the Bill, however, this was not an easy matter. As the report warned,
“depending on the day of the week on which a proposed negative has been laid, meeting that 10-day deadline could be challenging.”
This Bill makes similar provision for a sifting mechanism. It will apply to the exercise of powers under Clauses 12, 13 and 15. As with the 2018 Act, the Bill does not name the Secondary Legislation Scrutiny Committee as the committee to be charged with this sifting function. That is, of course, a matter for the House.
I know your Lordships will understand that in making the following points I do not mean any discourtesy or to pre-empt any decision of the House. Under the sifting mechanism in the Bill, the reporting period is again 10 days. If that period represented a challenge under the 2018 Act, which involved regulations with the limited purpose of dealing with deficiencies in retained EU law, how much greater will be the potential challenge where regulations under Clause 15, for example, may make “alternative provision” for secondary retained EU law? Such regulations may well require the sifting committee to probe further into the new policy underlying the alternative provision—a point made by the noble Lord, Lord Fox, I understand, and reiterated by my noble friend a few moments ago.
That in turn may include the committee having to solicit further information from departments and consider submissions from outside bodies before it can come to an informed and considered view. I realise that my noble friend the Minister may well be worried that, in giving any concession here, he might open the door for a read-across into other departments, but this is a very special case and I want to make it clear that there is no read-across here.
The capacity of the SLSC to meet a 10-day deadline has been amply demonstrated. The committee would not expect the full 15 days for every proposed negative instrument—far from it. What is being asked for in Amendments 139 and 140 is an extension of the deadline in recognition of the fact that the Bill has the potential for generating more complex and far-reaching policy changes, through instruments subject to the sifting mechanism, than the 2018 Act has. From time to time, there will also be occasions when the longer period is needed if the House is to receive the full benefit of the opportunity for more effective parliamentary scrutiny that the sifting mechanism provides.
I very much hope that my noble friend the Minister and his colleagues will accept the force of the argument and take these considerations seriously. At the end of the day, we all want Parliament better to do its job in the public interest, so I support my noble friend.
Baroness Chapman of Darlington (Lab)
My Lords, there is not really much to add, so I will not say very much. I notice that the noble Lord, Lord Fox, has denied himself the opportunity to speak on this last group, which is—
Baroness Chapman of Darlington (Lab)
Uncharacteristic but very welcome—I hope he does not take that the wrong way.
We support this measure, for the reasons that have been very well laid out about giving stakeholders a chance to get involved. We do not think that accepting one of these amendments or something like them would affect the Government’s ability to fulfil their objectives.
The noble Baroness, Lady Randerson, made some good points about the argument regarding practicality, based on experiences laid out very well in the committee report. I thought her concerns about the unintended consequence of sticking with 10 days—that it might actually make the process slower because more things would get referred—were strong. Her point about the need to probe policy that may come about as a result of the SIs coming from this Bill has persuaded us as well.
I would have thought this was something on which the Government could accept a change and bring something back on Report. If they do not, we will be happy to work with noble Lords on all sides to try to table something ourselves. I think this may perhaps be an occasion where the Government could show willing, and listen and respond positively.
Lord Callanan (Con)
I thank the speakers. We have finally reached the last grouping, which is a source of considerable relief.
Amendments 139 and 140, tabled and ably moved by my noble friend Lord Hodgson, both propose introducing further scrutiny procedures for legislation made under powers within Clauses 12, 13 and 15. Both amendments would essentially do the same thing: they propose extending the period of time after which legislation is made under these clauses and is subject to scrutiny from the House of Commons and the House of Lords as part of the sifting procedure. Specifically, they seek to extend the time limit within which both Houses can make recommendations on the appropriate procedure used for the instrument laid as part of the sifting procedure.
As drafted, the relevant committees of the Lords and the Commons have 10 sitting days, as both my noble friends and others said, to make recommendations on the appropriate procedure after an instrument has been laid. This is actually in line with the level of sifting under the EU withdrawal Act. I note my noble friend’s comments that it was not enough time, but I was impressed by the incredible work that the committee did during that time and I do not recall it being a particular issue.
Lord Hodgson of Astley Abbotts (Con)
I am grateful for all the support for this amendment. The noble Baroness, Lady Randerson, raised the issue of the precautionary principle: if in doubt, upgrade it if we do not have enough time to think about it. I think that is very important. My noble friend Lord Hunt rightly pointed out that it will depend on what committee does it. It might choose not to use the SLSC, but the 15 days would apply, whichever committee it was taken to, so I do not think it is taking anything for granted. I thank the noble Baroness, Lady Chapman, again for her support from the Labour Front Bench.
I say to my noble friend the Minister that, when you spend a lot of time on the Back Benches pushing hard on a door, if suddenly the door is opened you fly forward, all out of control. I am very grateful to him for agreeing to take this away and think about it. I am sure that, with his persuasive powers and his commitment, which he has given to the SLSC in the past, about the proper level of scrutiny through assessments and so on, he will be able to persuade the business managers, the Bill team and whoever else has to be persuaded that this amendment should be made. I am very grateful to him for concluding Committee on an upbeat tick, and with that I beg leave to withdraw my amendment.
Lord Callanan
Member's explanatory statement
This amendment removes an exception from the Clause 1 sunset. The exception is contained in new clause (Exceptions to sunset under section 1).
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, if Amendment 144 is agreed, I cannot call Amendments 145 or 146 for reasons of pre-emption.
Retained EU Law (Revocation and Reform) Bill
Monday 15th May 2023
(11 months, 2 weeks ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-II Second marshalled list for Report - (15 May 2023)
16:57 - Division on Amendment 2 - Ayes: 245 / Noes: 154 - Amendment 2 agreed.
18:44 - Division on Amendment 15 - Ayes: 222 / Noes: 154 - Amendment 15 agreed.
Lord Callanan
“(1) Legislation listed in Schedule (Sunset of subordinate legislation and retained direct EU legislation) is revoked at the end of 2023, to the extent specified there.(1A) In that Schedule—(a) Part 1 lists subordinate legislation;(b) Part 2 lists retained direct EU legislation.”Member's explanatory statement
This amendment provides that the legislation to be revoked by Clause 1 is the legislation listed in the Minister’s new Schedule.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, we have listened to the concerns of this House and today we are tabling a number of amendments to modify the first three clauses of the Bill.
Amendment 1 provides that the sunset in Clause 1 will be updated with a revocation schedule. This schedule will list retained EU law that will be revoked on 31 December this year. The revocation schedule includes around 600 pieces of legislation provided from departments across government and spans a huge number of policy areas. This will provide the legal clarity and certainty that many Members called for in Committee. The revocation schedule will provide certainty by listing exactly which pieces of REUL will be revoked at the end of the year. One of the main advantages of the schedule is the ability to efficiently and cleanly remove superfluous legislation without taking up disproportionate amounts of parliamentary time. It will thus allow us to remove legislation inherited from the EU that the UK no longer requires in an efficient and transparent way by the end of the year.
Retained EU law not included in the schedule will still be stripped of EU interpretive effects after 31 December 2023 and therefore assimilated into domestic legislation as per Clauses 4 to 7. This means we will still be removing the effects of general principles of EU law as an aid to interpretation, ceasing the application of supremacy and repealing directly effective EU rights so that they no longer have any effect in relation to these provisions. Consequently, nothing on our domestic statute book will be considered as retained EU law and the special status of retained EU law in the UK will come to an end.
Amendment 5 serves to remove subsections (3) and (4) of Clause 1 and insert a power for a relevant national authority to exclude legislation from revocation. This amendment ensures that we retain a limited preservation power in the Bill to enable Ministers and devolved authorities to preserve specific retained EU law so far as it would otherwise be revoked under Clause 1. The devolved authorities will therefore be able to exercise this power to preserve legislation so far as it is within their devolved competence. This power will be time-limited; it cannot be used beyond 31 October this year. These amendments set out the operation and principle of the schedule’s approach. I look forward to discussing the content of the schedule in our debates on Wednesday.
Amendment 68 provides that the preservation power inserted by Amendment 5 will be subject to the draft affirmative procedure. In effect, this means that any preservation SI laid would need to be actively supported by both Houses of Parliament. This will ensure that, should a piece of legislation need to be preserved from the schedule list, this could be done only if there was broad approval across both Houses, avoiding the risk that this power is overused or not properly scrutinised if enacted.
Amendment 13 removes Clause 3, which contains the sunset extension power. Following the removal of the sunset in Clause 1 and the introduction of a revocation schedule, an extension power to the sunset is no longer needed and, by extension, neither is the clause as a whole.
I turn to the other amendment that I am supporting, which was tabled by the noble Baroness, Lady Chapman. I had every intention of laying this very amendment given Amendment 1, but the noble Baroness beat me to the punch on this occasion with her Amendment 9, which removes Clause 2 from the Bill. This clause contains all exceptions to the sunset. Much like Amendment 13, this is a consequential amendment; Clause 2 will no longer be needed given the introduction of a revocation schedule. Removing redundant clauses to enable the effective operation of the Government’s schedule makes sense. As such, I agree with this amendment and will support it. I beg to move.
Amendment 2 (to Amendment 1)
Lord Hope of Craighead
“(1B) Subsection (1) will only take effect if—(a) the legislation listed in Schedule (Sunset of subordinate legislation and retained direct EU legislation) has been referred to a Joint Committee of both Houses, and(b) a period of at least 30 days has elapsed after that referral, not including any period during which Parliament is dissolved or prorogued or either House is adjourned for more than four days.(1C) If the Joint Committee, after considering any legislation included in this Schedule, finds that the revocation of any item of legislation represents a substantial change to current UK law, a Minister of the Crown must arrange for the revocation of such legislation to be debated on the floor of each House and voted on before the date in subsection (1).(1D) If the revocation of any legislation is not approved by both Houses before the date in subsection (1), it is retained.”Member's explanatory statement
This amendment to the amendment in the name of Lord Callanan provides for the Schedule of retained EU law which is to be revoked to be referred to a Joint Committee of both Houses for sifting so that, in the case of those which represent a significant change from the preceding retained EU law, Parliament will be enabled to differ from the Executive and express its own view as to their contents.
Lord Hope of Craighead (CB)
My Lords, I think it will start our debate if I speak to Amendment 2 at this stage. That amendment, of course, is in my name and the names of the noble Lords, Lord Hamilton of Epsom and Lord Hodgson of Astley Abbotts.
I do not need to take up time by speaking to Amendments 10, 11 and 12 in this group—which are also in my name, and to which the noble Lord, Lord Murphy of Torfaen, and the noble Baronesses, Lady Randerson and Lady Humphreys, have added their names. The issues raised in Amendments 10 and 12 are no longer live in view of the removal of the sunset provision from Clause 1 and the Government’s proposal that Clause 3 should be deleted. This is also the case regarding the need to postpone the sunset date in the case of legislation relevant to common frameworks, which Amendment 11 seeks to do—although others of your Lordships may have something to say about this. Amendment 4 relates to a provision which the Government are proposing to remove from the Bill, so I do not need to say anything about that either. That leaves me with Amendment 2, to which I do wish to speak.
I am sure that I am not alone in welcoming government Amendments 1, 5, 12 and 68. This really is a victory for common sense. It was obvious to many of us in this House, especially those in touch with the devolved Administrations, that the scheme laid down in the Bill was never going to work within the time given to it. I reject the suggestion that the reason this is now being acknowledged is because of a failure of effort by civil servants. The fact is that however hard to civil servants tried, there was a real problem about getting the job done across all parts of the United Kingdom. There was always going to be a risk that work under the pressure of time would give rise to errors. Any error in this field, such as the removal of regulations that require or authorise the spending of money, could have grave consequences that could be hard to reverse. Care is needed, and that takes time. The devolved Administrations are in a particular difficulty. Their post-devolution regulations are not and cannot be listed on the dashboard; their legislative timetables are not equipped for the task within the timescale. That is the reality.
The Secretary of State deserves to be commended for the steps she has taken, but there remains a very significant gap which my amendments in this group—and in groups 3 and 6—are designed to address. This is that there is no provision for parliamentary scrutiny in the proper sense of those words. It is the greatest of ironies that taking back control over our laws—which is what Brexit was all about—has resulted in handing back this control to Ministers and civil servants, and not to Parliament. The parliamentary scrutiny over what they are doing is not there, other than in the most superficial way, as our power over delegated legislation is so limited. This has been described as an unprecedented transfer from Parliament to the Executive.
I think that all of us who were present at Second Reading can recall how strongly my noble and learned friend Lord Judge—whose absence I regret—felt about this subject. I am sure he would not object to my reminding your Lordships of what he said. It was short and to the point; it directed attention to what he thought was really happening. With his tongue firmly in his cheek, he said that he had received a letter by special messenger called “Restoring Parliamentary control”. It went over the key provisions of this Bill, one by one, and ended with this assertion:
“By agreeing to all these separate surrenders, Parliament will have taken back control. We trust you agree”.—[Official Report, 6/2/23; col. 1001.]
My Amendment 2 is based on amendments that were put down for Committee by my noble and learned friend Lord Judge, and my noble friend Lord Lisvane, who I am glad to see in his place. They provide for the referral of the list in the schedule to a Joint Committee of both Houses. In the event that the committee finds that the revocation of any item of legislation represents a substantial change of the law, it provides for that revocation to be debated on the Floor of each House and voted on.
Viscount Hailsham (Con)
The trigger point in the amendment is quite a narrow one: “substantial change”. Has the noble and learned Lord contemplated enlarging the power of the committee to require it to be put to the House if there was other substantial reason?
Lord Hope of Craighead (CB)
My Lords, “substantial change” probably accommodates what the noble Lord was thinking about. I am following a formula which the noble Lord, Lord Lisvane, thought was appropriate, bearing in mind that there are limits to the extent to which this House can lay down procedures for the other place.
Baroness McIntosh of Pickering (Con)
My Lords, I will speak to my Amendment 8. Before I do so, and in the interest of brevity, I entirely associate myself with the words of the noble and learned Lord, Lord Hope, because he encapsulated many of the ongoing concerns of the amendments in this group.
To a large extent Amendment 8 is redundant now that I support the amendments to delete Clause 2 that are consequential on the government amendments—I take the opportunity to congratulate my noble friend Lord Callanan and indeed the Secretary of State on having the good sense to table the amendments which the Government are moving in this group.
On government Amendment 1 and the others my noble friend referred to, can he say on what basis the secondary legislation and retained direct EU legislation contained in Schedule 1 have been chosen and what consultation the Government have undertaken to determine the contents of that list?
Briefly on my Amendment 8, I am grateful to the Law Society of Scotland for helping me draft the amendment and for the briefing I received from it in that regard. What the amendment has identified remains an issue with one category of legislation that is not covered by other amendments in the group. The purpose of Amendment 8 was to ensure that any retained EU law which is not identified as such until after the sunset date is excepted from the sunset provisions in Clause 1. The review of REUL was announced by my noble friend Lord Frost, looking at the UK Government retained EU law dashboard from Tableau Public, as referred to at paragraph 13 of the Explanatory Notes, which states that the Government are now
“in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens”.
I support entirely the opportunity given to us today to do that.
However, the Bill intends to go further to facilitate the review and provides that it should be carried out by the end of 2023. Given that we now know there are almost 5,000 pieces of retained EU law, as identified in the EU law dashboard, the Government must confirm whether the most recent Explanatory Note is correct or whether they expect the number to rise again.
I refer to the briefing I received from the FSA—the Food Standards Agency—which itemised in an extremely helpful tableau the reasons why it supports those pieces of legislation included in Schedule 1. However, the FSA says:
“We have had long-standing ambitions to reform the food and feed regulatory system and we welcome the opportunity to focus our attention on this. We recognise that meaningful reform must include consultation with the food industry, consumers and stakeholders, and I look forward to working with you”.
So the question I put to my noble friend is: have the Government allowed sufficient time to ensure that the consultation that the Food Standards Agency wishes to conduct will be permitted to take place by the time Royal Assent is achieved?
My final question to the Minister is: if such a category comes to light within the three categories that have been identified as forming the retained EU law that forms the subject of the Bill after the Bill leaves this place and obtains Royal Assent, what opportunities are there to revisit that to ensure that that category is included the sunset clause, or can we assume that it will continue in existence in its current form, as currently on the statute book?
Lord Lisvane (CB)
My Lords, I thank the noble and learned Lord, Lord Hope, for his kind reference to what I said in Committee and subsequently. In order to set the mind of the noble Viscount at rest, I suggest that the wording relating to the Joint Committee in Amendment 2 is entirely correct.
It is a very bad idea to try to regulate parliamentary proceedings by means of statute, and it very often ends in tears or worse. In this case, should Amendment 2 survive into the final version of the Bill presented for assent, it will be for the Houses to set up a Joint Committee. That Joint Committee, following the ancient practice that the interpretation of the orders of reference of the committee are a matter for that committee, will take a view on what constitutes “substantial”, so there will be a certain amount of flexibility available at that point. It will also not be justiciable, because the operation of Article 9 of the Bill of Rights would prevent a court second-guessing what the committee decided.
Viscount Hailsham (Con)
I thank the noble Lord for giving way, and I hate to cross swords with him on this matter, but the trigger point of “substantial change” is quite narrow. My noble friend Lady McIntosh spoke about lack of consultation, or inadequate consultation. That might surely be a reason for using the trigger power.
Lord Lisvane (CB)
I absolutely agree and, as the noble Viscount has made clear, a number of things could be interpreted as of sufficient gravity to trigger, we hope, the powers in the Bill, then the Act, and it would be for the Joint Committee to decide—as a number of committees of your Lordships’ House already decide—that the lack of consultation is a serious flaw in the bringing forward of proposals for, for example, delegated legislation. So I hope I have set the noble Viscount’s mind at rest, but I am happy to talk to him outside the Chamber if further reassurance is required.
Lord Pearson of Rannoch (Non-Afl)
My Lords, I ask noble Lords who support Amendment 2 how it is that they now wish to involve Parliament and our democracy in getting rid of these laws when they were perfectly happy to see them imposed in a wholly anti-democratic process. I describe it as such because all the laws which the Government now wisely wish to cancel were proposed in secret in the European Commission. Their national interest was then negotiated in secret in the Committee of Permanent Representatives, after which they were signed off in the European Council and Parliament, which could not change them. Our Select Committees could indeed scrutinise a tiny sample of them, or even recommend them for debate in the Commons or Lords, but, once those debates, which could not change them, had taken place, they became our law. So why do the proposers and friends of Amendment 2 now wish to subject the process of their abolition to our democratic processes? And, talking of which, what do they say about the fact that the Bill has already been through the Commons?
Baroness Meacher (CB)
My Lords, I want to make a single point. In his opening remarks, the Minister referred to the affirmative procedure as though it is a perfectly satisfactory way of dealing with these very substantial ministerial powers to deal with retained European law. As a former member of the Delegated Powers Committee, I want to say that that is absolutely not the case. Under the affirmative procedure, Parliament has no power to amend any proposals coming from Ministers. It is therefore absolutely essential that this House approves Amendment 2 in the names of the noble and learned Lord, Lord Hope, and others. I very much hope that it does so.
Lord Pearson of Rannoch (Non-Afl)
My Lords, I am sure that the House will approve Amendment 2. I am not sure that the noble Baroness grasped the point I was trying to make, so, if I may, I will finish it.
I accept that the Government were in danger of biting off more than they could chew with their original proposals but those now seem eminently achievable, especially if our civil servants rise to the occasion in identifying the EU laws that we might want to retain—very few, I submit, so the effort should not exhaust them too much. But perhaps the Daily Telegraph was right in its headline on 10 May, which read:
“Whitehall ‘blob’ thwarts bonfire of Brexit laws”.
I support the whole Government wholeheartedly in their endeavours.
Baroness Altmann (Con)
May I clarify something? In his initial remarks, the noble Lord suggested that the problems he believes this Bill is designed to address stem from the fact that laws were imposed on this country. Whether or not one agrees with that statement, his proposal is that laws were imposed on this country without parliamentary scrutiny, and therefore without democratic accountability. If one accepts that that is the case, how is it then right to perpetuate that wrong by trying to get rid of those laws through a process that is itself without parliamentary scrutiny? The amendments are trying to impose parliamentary scrutiny; indeed, one of the reasons for our departure from the EU was to take back control to our Parliament, which is what these amendments seek to do.
Baroness Andrews (Lab)
My Lords, in following on from what the noble Lord, Lord Pearson, said, let me say that we had that debate at Second Reading; it was exhaustive and the noble Lord’s argument was, I think, properly demolished.
I welcome the Government’s amendment. The Minister will know that I have been a fairly regular critic of the Government. I am afraid that I have to quote back to him now a letter that he kindly wrote on 5 April to the Common Frameworks Scrutiny Committee—I declare my interest as chair of that committee—because it will illustrate the scale and speed at which the Government have moved here. We had asked a raft of detailed questions and sought further clarity. This is what the Minister said,
“the sunset clause is the backbone of the Bill. It lays the groundwork for an ambitious and efficient overhaul of all REUL. The sunset date is the quickest and most effective way to end REUL as a legal category and will incentivise genuine … reform in a way that works best for the whole of the UK”.
That really does illustrate how far the Government have moved on this. The Bill has lost its backbone—but we must remember that it was described as “hyper-skeletal” by one of our scrutiny committees, so there was not much backbone to be lost.
I think we all welcome the fact that, if the Government have had the courage and common sense to renege on this issue, it will not be much of a loss. Most importantly, they have removed the critical risk that we reiterated time and again throughout Committee. They have not removed all the risk, not by any means—we need much more clarity on the processes going forward and on the use to which ministerial powers may be put, which will come in later amendments—but the risk of chaotic, accidental, fatal mistakes being made and not being able to be recovered has been removed.
Regulations designed to protect people from harm and protect their rights were threatened with going over a cliff edge. I pick up the point of the noble and learned Lord, Lord Hope, that among those that might be lost is the web of interrelated regulations that enable common frameworks to function across the whole of the UK, balancing our need for harmony across the union with the necessity of divergence.
One of the good outcomes of the Bill is that those of us who laboured for three years in the vineyard of common frameworks, which were very far apart in the landscape, will finally have our moment in the sun when it is recognised how important they are for the future and health of the union. That has come about through the Bill with the hundreds of regulations that underpin the common frameworks.
I have some questions on this point—
Baroness Fox of Buckley (Non-Afl)
My Lords, I have one clarification for the noble Baroness. The point was made that this is not a Second Reading, but it has also been recognised that the amendments to the original Bill are substantial. The difficulty I have is how we hold this Bill to account when it is different from the Bill that we were holding to account. In many ways, it has been gutted, and we have had four days to assess it. I am not suggesting lots of Second Reading speeches; I simply wanted to reflect, as the noble Baroness already has, that this is a big change to the Bill. How do we deal with that in this discussion?
The Earl of Courtown (Con)
I apologise for interrupting the noble Baroness, but I remind the whole House that, as we are on Report, there cannot be any interruptions apart from material descriptions of various features.
Baroness Andrews (Lab)
I am grateful to the noble Lord. It is a measure of the speed with which the Bill has gone through every stage that these questions should be raised in the first place, but I leave it to the Government to reply.
I also wish to pick up the point made by the noble Lord, Lord Pearson, about whose fault it is that this process has been so slow. I was appalled by the comments of a previous leader of the House of Commons; I thought he traduced civil servants who cannot answer for themselves. In our committee, we have seen these officials working day and night, against the clock, to make some sense of a process which has simply not been sensible. To suggest that they have somehow been subversive, deliberately slow or incompetent is a real slur on the professionalism of officials and of the Civil Service. I hope that every Member of this House agrees with that.
My question to the Minister is this. I am grateful for what has been achieved, but I look at that list of 600 and am reminded of the 600 people going into the valley of death, bravely being sacrificed. There are some in this list that refer to common frameworks—for example, safety of food and emissions. There is no apparent reason why they are in there and I do not know how many there are. On behalf of our committee, I would like a list which tells us—
Baroness Andrews (Lab)
I am out of date already. That is excellent; I am very grateful and withdraw my question. I am delighted the Government have been so responsive.
My final point is on parliamentary control. I will certainly be supporting the amendment in the name of the noble and learned Lord, Lord Hope. It identifies two key risks. The Government have agreed in principle to a sifting mechanism, and it makes no sense for this batch of amendments to be left out of that sifting mechanism for the very reasons which the noble and learned Lord put and which I am now putting to the House: there are still elements of this list which require explanation, transparency and understanding. I would like the opportunity to see that process in place, as it affects these first regulations. This is a modest proposal and it is perfectly reasonable that the Government should do that.
There is also the much larger and more powerful question of parliamentary control. We have had very dramatic language from the two scrutiny committees of the House and we debated this at length in Committee. The case has been partially conceded, but by no means wholly. It once again reveals the limitations we face with secondary legislation and the way that primary legislation has been stripped out. It is essential that this batch goes before the sifting committee, in good faith, so that we can test the process and see whether it works and is fit for purpose for the more complex ones that will come later. I agree with the amendment.
Lord Hamilton of Epsom (Con)
My Lords, I shall speak to the amendments to which I have added my name, Amendments 2 and 4. Like my noble friend the Minister, we campaigned to leave the EU and we found that people decided to leave for a number of different reasons. One of those reasons was the resentment people felt that laws were being passed in Europe and delivered to us here, and we had no say on them whatever. I very much echo the words of my noble friend Lady Altmann.
We scrutinised this legislation. I was on an EU scrutiny committee and we wrote a number of reports, some of which were somewhat hostile about the legislation going through, and of course, they made absolutely no difference whatever. Therefore, if we had said to the people on the doorstep who were concerned that they had no say on much of the legislation coming on to our statute book, and over which Parliament had no say, “Well, we have a great plan: we are going to bypass Parliament almost completely”—
Lord Kerr of Kinlochard (CB)
I greatly enjoyed serving jointly with the noble Lord on the EU Select Committee. I point out that I was woken up three times on a Sunday evening by Delors asking me what the House of Lords European Union Select Committee had meant by a particular report on a particular piece of legislation. These reports were not a waste of time.
Lord Hamilton of Epsom (Con)
I slightly wonder what effect they had on the statute book. The legislation went through, nothing was amended, nothing was voted down—it could not be, under the EU accession treaty—so, if you do not achieve any change in the legislation, I am not sure you can claim any great credit for having done anything to it. So I do not really accept that. This is one of the problems, and people did find it very frustrating that they had no say over what EU legislation went through.
We have passed over the making of our legislation from an unelected Commission in the EU to the Executive. Who are the Executive? The Executive are made up of Ministers, and civil servants who, in my view, will have much more influence over what happens to this legislation than Ministers will. The Civil Service used to be regarded as a Rolls-Royce. I am not absolutely sure that definition would apply today; it looks rather like an old banger in need of a serious MOT. Let us face it, the Civil Service has not done well in trying to locate retained EU law. It was given endless opportunities to dig this stuff out, and what happened? Virtually nothing, until panic set in when this Bill was being debated.
It is the job of departments to know what legislation they have. This applies not only to EU law but to all law, and one has been given the impression over the past few months that they have absolutely no idea whatever what is on the statute book. Are these the right people to whom to pass all responsibility for EU law, without Parliament having any say? The answer is of course no. Parliament has to regain control of the legislative process. We have to make sure that Parliament decides what happens to this legislation, and that is why I am supporting Amendments 2 and 4 and subsequent amendments. I hope your Lordships will follow me through the Division Lobby.
Lord Carlile of Berriew (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Hamilton, in what he said. My only passing thought is to award my noble friend, for his intervention, the “name-dropping of the week” prize.
I am not enthusiastic about disagreeing with the Minister, the noble Lord, Lord Callanan, because I know from listening to him many times that he is a great supporter of the rights of your Lordships’ House to amend legislation, scrutinise what is before us and ensure that its powers are not somehow elided with those of the other place. However, this did bring me back to something that happened earlier in my life. For a period, I had one of those unusual characters, a senior clerk of great wisdom, in my barristers’ chambers. When I was a Member of the other place, he used to say to me as I left chambers, “You’re off to do your bit for democracy, are you?” That was a sort of pessimistic adieu as I left the office. When I became a Member of your Lordships’ House, he used to issue me with the optimistic adieu, “So you’re off to save democracy, are you?” That seems very apposite in relation to this debate. Indeed, what that great senior clerk, now sadly deceased, used to say to me really gives the answer to the extraordinary statement of the noble Lord, Lord Pearson, which we heard expressed by others in another debate just last week: that if the House of Commons decides to pass something, we should just roll over and take it as we lie in that supine position. That, of course, is not what we do in your Lordships’ House.
I ask the noble Lord, Lord Callanan, what is to be lost by accepting Amendment 2? Even if it is a bit of an ad maiorem argument, what particular attention has he paid to the fact that my very distinguished noble and learned friends Lord Hope, who has moved Amendment 2 today, and Lord Judge—who unfortunately is unwell; otherwise, he would have been in a similar position today—have been the great movers behind this attempt to introduce an element of parliamentary scrutiny that has been drafted with great critical faculty, as opposed to requiring us to look at a long list and treat it as though it had some special wisdom in itself? For those reasons, if my noble and learned friend asks for the opinion of this House on Amendment 2, I—and I am sure many others who take a perhaps legalistic, but proportionately legalistic, viewpoint—will support him in the Lobby.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I will speak briefly to Amendment 14 in my name, to which the noble Baronesses, Lady Hayman of Ullock and Lady Altmann, and the noble Duke, the Duke of Wellington, have added their names.
I broadly welcome the government amendments tabled on 10 May but continue to be concerned about the ongoing lack of parliamentary scrutiny. While it is welcome that the Bathing Water Regulations 2013 and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 are not listed in the Government’s extensive list of statutory instruments to be deleted this year, this does not indicate whether at some future point these two SIs will not be brought forward for deletion without any parliamentary scrutiny.
Several Members of your Lordships’ House have spoken passionately and repeatedly about the need to improve water quality across all areas, especially, as we approach the warmer weather, through the Bathing Water Regulations. The noble Duke, the Duke of Wellington, has raised the issue of British surfers being forced to leave the country to pursue their sport in Spain due to the appalling level of pollution in and around our coastal waters caused by sewage overflows. While this subject is extremely important, I do not intend to expand the debate, given that both your Lordships and the Minister have heard all the arguments and evidence on previous occasions. That evidence has not changed. However, I am looking for a firm assurance from the Minister that both these statutory instruments will be retained on the statute book. This will ensure that our children and others can feel a degree of confidence when they swim in our coastal waters and inland lakes that they will not be damaged by an unpleasant environment and that their health will be preserved. I look forward to a positive response, and hope that I and others can be satisfied that the Government support the view of those for whom this is a vital issue.
Viscount Hailsham (Con)
My Lords, I have a very brief observation about Amendment 2, which I support and seems to have this other great advantage. Statutory instruments are largely drawn by officials and are not subject to great scrutiny by Ministers. That is my experience. Indeed, if noble Lords look at the schedule they will see a large number of statutory instruments. I very much doubt that Ministers have crawled over them in detail. If the trigger is exercised in accordance with the provisions of Amendment 2, Ministers will have to become engaged. It is much more likely at that point that you would get a proper response to the concerns expressed by the committee. That is an additional advantage that I would pray in aid.
Baroness Jones of Moulsecoomb (GP)
My Lords, in case anyone is thinking of voting against Amendment 2—even the Minister—it is worth remembering that Jacob Rees-Mogg said today that this Government gerrymandered the ID vote because they want to corrupt the voting system here in Britain. They wanted a government advantage from the voter ID and they found that they did not have it. We cannot trust this Government on any level on any issue, so Amendment 2 is vital.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I put my name to this amendment from the noble and learned Lord, Lord Hope. I will address the question—or possibly accusation—from the noble Lord, Lord Pearson, head-on: I voted for Brexit, because I support policies designed to give the UK more freedom to operate in the world without the inhibitions that came with our membership of the European Union.
One of the reasons for my voting for Brexit was that I wanted to make some attempt to reduce what I saw as the marginalisation of the UK Parliament—that it was, under the system then prevailing, more or less reduced to a cipher, as my noble friend Lord Hamilton pointed out. My noble friend the Minister has made some significant changes. I, like other Members of the House, thank him for that. A lot has happened in the last few days and it might be that I have not understood fully what he is proposing and its implications, but as I read it at present it does not seem significantly to enhance Parliament’s power.
I have one more reason why the House needs to be extremely careful about this matter. We are entering a brave new world in which, for better or for worse, we have greater control over our legislative process. This Bill could create a dangerous precedent as to how, in this brave new world, the Executive feel able to treat the legislature—the two Houses of Parliament.
For the rest of my remarks, I will briefly probe a little deeper the thinking behind the Government’s approach and the level of parliamentary scrutiny of and involvement in the Bill. One of my last tasks before I handed over the chairmanship of the Secondary Legislation Scrutiny Committee to my noble friend Lord Hunt of Wirral at the end of January was to sign off the committee’s report on this Bill, which the House may recall was entitled Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. The Government are required to provide a response to the recommendations made in reports from your Lordships’ House, and they have done so. I am extremely grateful to my noble friend and his officials for the extensive and detailed 10-page reply. However, it is dated 10 May—last Wednesday—so again, if I have not been able to absorb the full implications of what he is saying, I stand ready to be corrected when he comes to reply.
There are two specific points that I would like to draw to the House’s attention. The first is in paragraph 31 of our report and touches on the point made by the noble Baroness, Lady Andrews. We lay out a reason as to why, even if
“a definitive list of the relevant law were eventually compiled in time”,
the House would be insufficiently informed unless something was said about the “individual piece” of legislation; to produce a list is not the same.
The Government’s response was:
“The Schedule approach means that a definitive list of REUL to be sunset has, in fact, been compiled. This Schedule is subject to parliamentary debate and approval”.
My concern is that the House approving the schedule—the long list of 600 or so SIs—is affording only the most tangential level of parliamentary involvement and approval. Do I assume that in giving my approval to the schedule I am automatically endorsing every one of the constituent SIs, or do the Government intend to bring forward an explanatory note on the reason for including each individual regulation on the schedule, many of which I agree are probably quite trivial, to be considered by both Houses? Without this, Parliament has no real understanding of what it is approving, and it is this uncertainty that makes the amendment moved by the noble and learned Lord, Lord Hope, so important.
My second and final point relates to the recommendation made in paragraph 33. Our report said:
“It is generally acknowledged that the scrutiny of secondary legislation falls very far short of the scrutiny afforded primary legislation. Downgrading the status of direct principal retained EU legislation so that it can be amended by ‘ordinary powers to amend secondary legislation’ … means therefore a corresponding downgrading of effective parliamentary scrutiny. Suggesting that this will have the advantage of saving parliamentary time does not make the Government’s justification for this change any more persuasive. It is a matter for Parliament to decide how it should use its time”.
The Government’s response is:
“The Government disagrees that the scrutiny of secondary legislation falls short of the scrutiny of primary legislation. The scrutiny procedures for secondary legislation are long standing and are endorsed by Parliament during the passage of legislation”.
I find this continuing government assertion that the scrutiny of secondary legislation is equivalent to that of primary legislation astonishing—jaw-dropping, to be frank. My noble friend’s letter says that the scrutiny procedures for secondary legislation are long-standing, and he is right, but those long-standing procedures were designed for an earlier age when Governments used secondary legislation for what it says on the tin: to deal with issues of secondary importance and avoid gumming up the legislative machine. But successive Governments have used secondary legislation to pass into law—law that applies to every one of us—decisions too important to be left to secondary procedures with their “take it or leave it” unamendable approach. As I have said before, if the Government want to take a little they have to give a little, and so far the Government appear unable or unwilling to do this.
My concluding remarks are these: Parliament will stop this continuing shift in the balance of power towards the Executive and away from the legislature only by constantly explaining how fundamental to the health of our system of government it is, no matter how difficult, embarrassing or controversial it may be to do so. That is why it is essential that the House supports the amendment moved by the noble and learned Lord, Lord Hope.
Baroness Lawlor (Con)
My Lords, I thank my noble friend the Minister for explaining so fully his amendment to the Bill. I am slightly saddened on two counts. First, I wish the list he provided in the schedule was a little more ambitious and extensive in the number of regulations and rules included. Secondly, I am saddened by the response of some Members of your Lordships’ House.
I particularly oppose Amendment 2. The idea that there is an initial committee is hardly more than camouflage, because the committee is charged with putting any but the most negligible changes to both Houses.
The subsequent requirement in the amendment that a majority of both Houses has to approve the removal gives, in effect, the power of veto to an unelected Chamber, in a way that goes contrary to the constitutional arrangements of a democratic country whose voters explicitly chose withdrawal from the EU and its laws, at the referendum and again in 2019. They voted overwhelmingly for a government pledge to carry out that mandate. The Executive have a mandate—a direct mandate—from the electorate to end EU law. That mandate must be respected, and must be respected by this House.
A much more extensive arrangement was put to the House of Commons, which passed at Second Reading by over 60 votes. I am very concerned that this House will, yet again, obstruct the will of the people, expressed in 2016—
Baroness Lawlor (Con)
I am sorry, my Lords, but it was clearly expressed, and it was expressed again in 2019. A mandate was given to the Executive to remove EU laws; it was not given to this Chamber to hold it up.
Lord Hendy (Lab)
My Lords, I doubt very much whether the will of the people was to remove the rights of working people. I doubt very much whether those who voted for Brexit voted to remove the rights and entitlements that they had inherited from EU law.
I too support the amendment in the name of the noble and learned Lord, Lord Hope. Last Wednesday, 10 May, to which the noble Lord, Lord Hodgson of Astley Abbotts, referred a moment ago, was a busy day for the Government. On that day, in the other place, the Secretary of State for Business and Trade made a Written Statement about this Bill, pointing out that amendments would be tabled to it. At the end of the Statement, she said:
“As part of this drive for deregulation, today I can announce that we will make improvements to employment law which could help save businesses around £1 billion a year, while safeguarding the rights of workers”.—[Official Report, Commons, 10/5/23; col. 16WS.]
And she gave some indication of what those changes might be.
On that same day, the Department for Business and Trade also published a booklet called Smarter Regulation to Grow the Economy. From the last couple of pages of that we learn what is in the Government’s mind: first, the requirement under the working time regulations to keep records of hours worked is to be removed. How businesses and their workers will be able to ensure compliance with the remainder of the regulations was not explained. Secondly, eight days of UK holiday are to be added to the 20 days of EU holiday for workers; but, it appears, this may result in economic loss, as the days allowed by the EU are paid on a different, higher basis than the UK days. Thirdly, rolled up-holiday pay—a technicality of employment law—is to be permitted, but the effect is to remove what was introduced as a protection for workers. Fourthly, the obligation to consult over redundancies is to be removed for small businesses.
Those changes are not very great, although they may be significant for some. In the vast number of amendments to this Bill that have been tabled—in particular, the 600 pieces of EU-derived legislation identified by the Government for removal or partial removal—I have looked at where those weakened employment rights are to be found. They are not there. The reason they are not there is that they will be introduced by statutory instrument after the Bill has become law.
We in Parliament need the chance to scrutinise what will otherwise be a constant stream of statutory instruments removing and weakening workers’ employment rights and health and safety at work rights. That is why I support the important amendment from the noble and learned Lord, Lord Hope.
Baroness Noakes (Con)
My Lords, as a committed Brexiteer I was a strong supporter of this Bill, and it will not surprise noble Lords that my initial reaction to last week’s announcement of the amendments that my noble friend has so ably just introduced was a big disappointment. It would have been a marvellous achievement had we achieved by the end of this year an understanding of what to do with retained EU law—in terms of retaining it, modifying it or repealing it—but in my heart of hearts I never actually thought we would get to that position, so I completely accept on pragmatic grounds that what my noble friend has brought forward today is the right thing to do, and I fully support that.
I completely understand what lies behind the sentiments expressed by the noble and learned Lord, Lord Hope, in his amendment, supported by other noble Lords who have spoken, but I think that noble Lords have missed the big picture here. There were problems with the existing Bill, such as not knowing exactly which bits of retained EU law were going to be included, because that number seemed to have a shape-shifting quality and it was very unsatisfactory for parliamentarians to legislate with a lack of certainty. It was also troubling that large swathes of law could have just disappeared from the statute book without any parliamentary intervention whatever. In addition, there was the possibility of a tsunami of statutory instruments modifying EU law by the end of the year, which would have put our procedures under great strain, whatever sifting or other mechanisms were put in place to ameliorate it. So the Government have made significant changes with the amendments that my noble friend has brought forward today. If the noble Lords put it in that context, they will see that the Government have been very responsive to the issues that have been raised by noble Lords during the passage of the Bill, and I hope they will not let the best be the enemy of the good with the amendments that they have tabled.
With the absence of the sunsetting, we have another problem: how do we know that we are ever going to finish the task of examining, and deciding what to do with, retained EU law? We have 600 laws in the new schedule, but we know nothing about what is going to happen to the other pieces of retained EU law. That is why I have tabled an amendment, which we will not reach until Wednesday, asking for some form of reporting by the Government so that at least we keep under scrutiny the nature of that process. I hope that between now and our next Report day—
Lord Hope of Craighead (CB)
My Lords, there are references—for example, in Clause 16—to a sunsetting date, so there are parts of the Bill that retain sunsetting and it has not entirely been departed from. I see the value of sunsetting and I am in favour of reforming our rules book, but it would be a mistake to think that we were taking the brake off completely; that is not the way the Bill is constructed.
Baroness Noakes (Con)
With the greatest respect to the noble and learned Lord, I think the main substance of sunsetting has been removed by the amendments put forward by my noble friend because we do not reach a cliff edge at the end of this year, or such a later date as might have been put in place, for the whole of retained EU law to disappear if it had not been dealt with. That is the issue that I was referring to.
Perhaps I could just complete what I was saying. I hope that between now and our next day on Report we can have some constructive dialogue with my noble friend the Minister about how we can have some kind of process, information sources, or whatever, to ensure that what we have lost with these amendments—which is ensuring that we deal with the whole of retained EU law—can be salvaged.
Viscount Stansgate (Lab)
My Lords, it is not my intention to detain the House for long, because I think the House wants to move to a decision, but I will make one point about what might be described as the big picture. Today’s debate takes its place in the long history of debates about Europe and will be interesting to read afterwards. However, about a couple of weeks ago—I forget exactly how long ago it was—we had a short debate in this Chamber on the state of parliamentary democracy. The noble Baroness, Lady Neville-Rolfe, replied to it as the Minister. We did not have enough time, but it was a useful debate to have. I suggest to the House only that the sense expressed during that debate, that over a long period Parliament has lost power to the Executive and that what we need is to reclaim power for Parliament over the Executive, is best encapsulated by Amendment 2 in the name of the noble and learned Lord, Lord Hope. I very much hope that the House passes it.
Baroness Jolly (LD)
My Lords, I will speak briefly in support of Amendment 16, tabled in my name alongside those of the noble Baroness, Lady Finlay of Llandaff. and the noble Lords, Lord Clarke of Nottingham and Lord Collins of Highbury. I declare an interest as president of the Royal Society for the Prevention of Accidents, RoSPA. I am sure I speak on behalf of many Peers from across the House in expressing relief at the U-turn. It is testament to the House, as well as to organisations such as RoSPA, that swathes of life-saving health and safety legislation are saved from the REUL bonfire.
Health and safety impacts every area of our lives and it is not limited to certain sectors. I hope the debate around the specifics of the Bill has shone a light on the need for a holistic approach when addressing these issues. The House will have heard me say before that the UK is a global beacon for safety. Thanks to the Minister’s amendment, I am hugely reassured and say that this continues to be the case.
Baroness Finlay of Llandaff (CB)
My Lords, very briefly, I too added my name to Amendment 16, so well introduced by the noble Baroness, Lady Jolly. I simply remind the House that, when we remove legislation and regulations, it can have unintended consequences. There is evidence that accidents happen. For example, if we abandon working time directives and regulations, when people are overtired their accidents can be fatal—and there have been fatal accidents. Let us not lose sight of the clear evidence of harms when regulations are no longer in place, because lost lives cannot be reclaimed or replaced. The amendment proposed by the noble and learned Lord, Lord Hope, provides a check mechanism for Parliament to look at regulations and allow scrutiny before things are abandoned. Therefore, although I do not anticipate Amendment 16 being pressed to a vote, I strongly support Amendment 2.
Lord Jackson of Peterborough (Con)
My Lords, I will speak—briefly, I hope—to the Government’s Amendment 1. I direct your Lordships back to the comments of the noble Baroness, Lady Fox, who is absolutely right: this Bill, in its current position on the Order Paper, is substantially different from the Bill that was considered by the House of Commons and at Second Reading by this House. If we are to properly scrutinise and analyse the Bill, and have proper oversight of it, we have to be cognisant of that fact.
Notwithstanding the comments of my noble friend the Deputy Chief Whip, where else are we going to acknowledge the very substantial and significant change that has come as a result of the Government’s announcement last week? It is a reasonable point to make. If this were any other Bill—any other potentially epoch-making primary legislation—your Lordships would be up in arms about the fact that we are rushing through on Report the Government’s amendment to Clause 1, which effectively rips up the Government’s policy on the Bill.
I defer to no one in my admiration for my noble friend Lord Callanan, the Minister. I worked with him in DExEU in the run-up to Article 50 and the TCA. He is one of the most gifted Minsters. He has obviously had a very difficult time in your Lordships’ House, putting a viewpoint that has not always been universally popular.
However, the wider context is very important, as put forward by my noble friend Lady Noakes. The Prime Minister did say that in his first 100 days as PM we would review or repeal post-Brexit EU laws. Indeed, that bastion of blue in tooth and claw Conservatism, the Independent newspaper, described the government retreat as a course of action that
“turns the logic of the bill on its head”.
I do not underestimate the task that we as a Government—or this House and the Government—gave to civil servants. In fact, the agency Thomson Reuters estimated in 2017 that 52,741 laws were introduced in the UK as a result of EU legislation between 1990 and 2017. Many of them of course were worthwhile and much needed, but many were about protecting boondoggle schemes, market distortions, oligopolistic behaviour and were designed to ossify market dominance, restrict the need for innovation and lock out more agile and dynamic competitors.
Notwithstanding that, I welcome the Government’s sincere endeavours to both review the regulations and to deregulate more broadly. But we have seen that 52,000 shrink to 600. Most EU laws will remain on the statute book, seven and a half years after in the EU referendum we decided to take back control and trust our own elected politicians rather than a foreign legal entity—in this case the European Court of Justice.
Ministers pray in aid the capacity and capability—or not—of civil servants to scrutinise, prioritise and audit so much of our retained corpus of EU law. But I saw, in my role as a special adviser in the run-up to the TCA and the Article 50 process, that with firm and principled political direction and drive, so much more could have been achieved with vision rather than capitulation.
In fairness, it is not solely the responsibility of this Administration. I concede in all fairness—it would be churlish not to—that the previous Johnson Administration could and should have legislated for a Bill in 2021 rather than last autumn. The Government have resiled from a well-understood political commitment, which voters supported with a strong mandate, and which passed, as my noble friend Lady Lawlor said, in January in the Commons.
No one ever voted for these proposals. The Government have picked a side: big business, senior civil servants, special interests, well-remunerated lobbyists and the ex-Mandarin cohorts ably represented in this House. Leave was the biggest vote in British electoral history, but that counts for nothing as opposed to the pearl-clutching vapours of big business, self-interest and shareholder value dressed up as defending parliamentary sovereignty and concern for “significant uncertainty”. Whither the vision of self-government, independence, democratic renewal and sovereignty of June 2016? Instead, we have the cold pragmatism and cynicism of a technocratic elite.
This has not been handled well by the Government. I refer in particular to the lack of proper scrutiny by the European Scrutiny Committee in the other place, and the failure of the Minister to properly attend to those issues.
I will finish by making reference to Schedule 1. We are offered the mere scraps from the table with the new schedule. It is not so much a bonfire of regulations but a damp, fizzing Catherine wheel. There is no fundamental interest in that schedule in the governance of our country.
Lord Jackson of Peterborough (Con)
I will have my say; plenty of people have had a say on the other side.
The disillusionment of people who supported Brexit in good faith is bad for democracy. People are beginning to ask, “Does democracy work?”
Lord Hacking (Lab)
My Lords, I will move the House away from the Bay of Biscay and back to this Bill. I tabled Amendment 7, that Clause 1 should not be retained, but I will not move it in view of the radical changes that the Government have brought to the Bill. I therefore easily support the noble and learned Lord, Lord Hope, on his Amendment 2. However, I do so with a substantial caveat: that whatever decisions are made by way of advice from the Joint Committee. We must remember that the Joint Committee’s central role is to decide whether the item of legislation before it will bring about a substantial change to current UK law, although the Joint Committee will also bring other considerations.
Important as that is, this is only part of our duty; indeed, our duty is to the whole of the Bill and to the whole of the new schedule before Schedule 1. The Minister referred to 600 specified pieces of EU law, which are represented in the long list represented in the long list before Schedule 1. I have done the arithmetic—even though my arithmetic has never been quite perfect—and the total is 928. We have a responsibility for every one of those 928 EU measures.
I ask your Lordships to concentrate on our wider responsibility, such as whether there is a need to revoke a particular piece of legislation. Is it causing any harm? There are a number of other tests which your Lordships should apply, but which will not fall under the remit of the Joint Committee. I draw noble Lords’ attention to the six sets of Habitat (Salt-Marsh) Regulations stretching over pages 24 and 25 of the Marshalled List. The question, for which we have a responsibility to answer, is: are they defective? If so, how?
Lord Hacking (Lab)
I got a prompt from beneath me that we are discussing this on Wednesday. I will not go into further detail; I just wanted to bring your Lordships’ attention to one example out of the 928 EU measures which fall under the new schedule before Schedule 1. The same test could easily be applied to the Civil Aviation (Safety of Third Country Aircraft) Regulations, which is on line 177 of page 27 of the Marshalled List. We have wider responsibilities, and we should exercise our influence over them during the passage of the Bill.
Lord Kerr of Kinlochard (CB)
My Lords, I am happy to follow the noble Lord, Lord Hacking, and I agree with both his points. I have the strong impression, having read through the list of titles, that the great bulk of the legislation to be eradicated, listed on the 57 pages of the new schedule, is in fact defunct and can perfectly reasonably be removed. That is the impression that I get—but that is from reading the titles. I cannot remember the details even of the particular pieces of law that I was involved in drafting, and there are a few of them here. We have a duty to establish a sensible procedure. It could be that there are unintended consequences. I strongly support Amendment 1, the government amendment, but a necessary corollary to that amendment is that we must pass Amendments 2 and 4.
Lord McLoughlin (Con)
My Lords, I very much welcome the changes that the Government have brought forward, but I also think that the amendment moved by the noble and learned Lord, Lord Hope, is one that the Government should very seriously consider, and I shall support it later on this evening—and I shall support it for a simple reason. The question as to whether or not we leave the European Union has been settled. I was on a different side to my noble friend Lord Hamilton—I believed that we should remain in—but I accept that that debate has gone and that I lost it. We now have to move on, and we must find a way in which to give the House of Commons and the House of Lords a say over the legislation that is going to replace it.
The sad story of this Bill so far is that we were told that there were 3,000 pieces of legislation, then it was 4,000 pieces—and we now have 900 pieces that can be got rid of very quickly. One thing that is changing dramatically is how a lot of detailed changes have to be made at pace, and it is not always going to be the case that there will be time for primary legislation going through both Houses of Parliament. That is why we need to adapt ourselves to a very different mode of doing regulations. Some of the regulations are technical and the House will not necessarily want to take a particular view but, when they are of a more practical nature, I think that there should be a Joint Committee of both Houses that says to the Government: “Hold on, let’s discuss this”. That is what happened when we had the initial withdrawal Bill and, in a way, the proposals that have been put forward today are mirror images of those particular ways forward.
The changes that the Minister has brought forward, which are very welcome, came very late in the day, and nobody really knew what was happening until late last week—and we are debating them here this afternoon. So I very much hope that the amendment proposed by the noble and learned Lord, Lord Hope, will give the Government time to reflect and see that they have nothing to fear from a Joint Committee of both Houses looking at these matters. After all, if the Government have a majority, it will probably have one on that committee as well—and that is a sensible way forward, giving that parliamentary accountability that we all wish to see.
Baroness Fox of Buckley (Non-Afl)
My Lords, I would like to focus my probing on Amendment 1—
Lord Davies of Gower (Con)
My Lords, the noble Baroness has spoken once in this debate, and the good book says that it is one opportunity at Report.
Baroness Fox of Buckley (Non-Afl)
I think that I have been encouraged to go ahead. Is that appropriate?
Lord Lilley (Con)
My Lords, very briefly, the case for what we are doing was put best by the noble Lord, Lord King, former Governor of the Bank of England. He said that there was a case for remaining in the EU to retain some influence, albeit small, over European legislation and there was a case for leaving to enable us to revise EU laws. There was no case for leaving and not using our opportunity to revise those laws.
A paradox arose in previous stages whereby those who, apparently with no problems at all, had allowed laws to be passed with little or no say by Parliament for 44 years became, overnight, welcome champions of full parliamentary process. Those on the pro-Brexit side of the campaign found themselves in the difficult position of arguing for rather streamlined and inadequate processes of parliamentary scrutiny, partly because there was a trade-off: there was a case for taking more time to maximise the thoroughness of scrutiny and a case for seeking speedy completion of the process to minimise uncertainty.
Amendment 2 gives us the opportunity for a degree of more thorough parliamentary scrutiny, which I think both sides welcome, but I would like an assurance from the Government that it will not prolong uncertainty for too long. The fewer the measures in the schedule, the more measures are outside it and could be liable to a process of reform or even removal over a longer period, therefore prolonging uncertainty. I would like to know before Wednesday why the some 2,000 laws that the Civil Service did not know existed have not been put in the schedule. If no one knew that they were there, what harm can there be in removing at least some of them?
More seriously, part of the process of this Bill is surely to enable us to transform legislation that we retain on the statute book into a more common-law process, more suited to Britain and our procedures. I would like some assurance that that will happen and an explanation of why, given that in most common-law countries there is little or no product legislation—they must be of merchandisable quality, safe and not harmful, but the law does not specify how or why they are made, in the way that the EU rules that we inherited do, largely for protectionist reasons—there is no removal of product legislation in this schedule. Surely it would be possible and bring us into line with much of the world.
Lord Fox (LD)
My Lords, this has been a very extensive debate. The noble Lord, Lord Jackson, mentioned churlishness in a different context; it would be very churlish for these Benches not to welcome the government amendments in this group and the fact that the Minister has co-signed Amendment 9 in my name and that of the noble Baroness, Lady Chapman.
We owe the Minister a debt of gratitude. All through the grinding Committee, he stuck poker-faced to the party line, but then it seems he sprang into action; he took the spirit of what he heard in your Lordships’ House and, using his not inconsiderable powers of persuasion on the Secretary of State, he ensured that the whole government position flipped by 180 degrees. We need to thank him for listening to your Lordships in Committee.
We heard some concern about what is in the new schedule, which we will debate on Wednesday. Some of us received at 2.40 pm some explanation as to why particular regulations were put in. Clearly, that was late—we should have had it a lot earlier—but Amendment 2 takes the place of our having to work through the night on that spreadsheet. Should the noble and learned Lord, Lord Hope, seek the opinion of the House, we on these Benches will support him. Part of the road can be travelled with this group, as long as the noble and learned Lord’s amendment is included.
Baroness Chapman of Darlington (Lab)
My Lords, it has been a bit of a saga getting to where we are, but it is incredibly welcome that Ministers have tabled the amendments before us today. This means that we do not need to debate my Amendment 6, which would have had a similar effect to the Government’s amendments. I also welcome the Government’s acceptance of my Amendment 9, which deletes Clause 2.
Lord Callanan (Con)
I thank all noble Lords who have contributed to this debate. I find myself standing here bathed in sunlight; I am not sure whether that is a sign.
Lord Callanan (Con)
I do not require the noble Lord’s advice on this.
I will start with Amendment 2 from the noble and learned Lord, Lord Hope, which requires that legislation listed in the revocation schedule be referred to a Joint Committee of both Houses and be considered by the committee for a period of at least 30 sitting days. Should the Joint Committee consider that the revocation of the legislation listed would substantially alter UK law, a Minister of the Crown must ensure that the revocation be debated and voted on by both Houses prior to 31 December.
I start by reassuring noble Lords that it is the Government’s view that this amendment is unnecessary. Every piece of retained EU law in the schedule has been thoroughly reviewed, and will be reviewed and debated alongside Amendment 64, which has been tabled. I am confident that the changes to Clause 1 that we have introduced have alleviated the substantial concerns raised by Members across this House during the passage of the Bill and provided the legal clarity and certainty that has been called for.
Although I know that a number of noble Lords have not yet had the chance to see it, today we have published an extensive schedule explainer—again, responding to the concerns that many Members have raised; officials have been working hard on this all weekend—which explains, line by line, why each of the, in total, 587 pieces of legislation has been deemed suitable for inclusion on the schedule. That has been sent to every Member in advance of the debate on Wednesday. I hope that this will alleviate the concerns raised in this debate, including by my noble friend Lord Hodgson and the noble Lord, Lord Kerr, and other noble Lords, about the amount of information that has now been made publicly available.
In addition, the preservation power in Clause 1 will enable relevant national authorities to preserve legislation on the revocation schedule where they deem it necessary and where the relevant procedures and timescales have been adhered to. This provides a proportionate safeguard against unforeseen consequences of legislation listed on the schedule being revoked. The purpose of our amendment is to provide that legal certainty and clarity as efficiently as possible. To require yet further referrals and debates, and approvals to the list which can be scrutinised during the Bill’s passage, is unnecessary.
On Amendment 4, I have introduced changes to the Bill that I hope will reassure the noble and learned Lord, Lord Hope of Craighead—I think they have done—that his proposed changes to the functioning of the Bill are not necessary. Indeed, the revocation schedule I have laid guarantees that only a set amount of retained EU law will be revoked, which is clearly set out in the Bill. This is very similar to the mechanism proposed in this amendment that would see instruments or provisions expressly listed in a ministerial Statement. However, for a number of reasons, I believe that my proposed revocation schedule is better equipped to deliver this amendment’s desired outcome.
For similar reasons I am opposed to Amendment 6. This amendment would introduce changes to Clause 1 that are reflective of those already introduced by the Government. Indeed, the revocation schedule in Amendments 1 and 5 seeks to accomplish similar goals to Amendment 6 but in a more comprehensive way. This amendment would require a list to be compiled in order to be revoked and would open the door for multiple such lists being laid over the coming months. Again, the proposed revocation schedule is already drafted, has been vetted and is ready, and I believe it is a more appropriate solution. Finally, the amendment has unclear timelines and does not offer as much certainty as the revocation schedule, which is clear about when the revocation of pieces of retained EU law would occur and works in step with other timings in the Bill, such as the expiry of the powers on 23 June 2026.
I was going to refer to the amendment in the name of the noble Lord, Lord Hacking, but he said that he will not press it.
Amendment 8 attempts to exempt any pieces of legislation from the sunset should they be identified after the end of 2023. As I already outlined, this amendment is now unnecessary.
Amendments 10, 11 and 12 all concern the devolved Administrations and their preservation power in what was Clause 3. However, given that under my proposal Clauses 1 and 2 have been removed from the Bill and a revocation schedule has replaced the sunset, these three amendments are defunct and we ask that they are not pressed.
Amendment 16 seeks to oblige the Secretary of State to publish a health and safety impact assessment for any retained EU law which is to be revoked, at least 90 days before the revocation. All legislation listed on the revocation schedule has been considered by the relevant departments and checked by the relevant teams. As such, a health and safety impact assessment is not needed, given the depth of the work that has already been carried out.
We have introduced this Bill to help us realise the opportunities of Brexit. I reassure my noble friend Lord Jackson and other noble Lords that the Government remain committed to a reform programme. Legislation that has been identified on this schedule had already been identified and would have been allowed to sunset anyway. We are still committed to making the opportunities of the reform programme, and we retain the ambition and fundamental purpose behind this work.
I hope that the noble and learned Lord will feel able to withdraw his amendment and that other noble Lords will not press theirs and will support the government amendments.
Baroness McIntosh of Pickering (Con)
Before my noble friend sits down, will he respond to my question about sufficient consultation time being allowed? The Food Standards Agency has accepted all the legislation that relates to it which falls in the revocation schedule to which my noble friend referred, subject to sufficient time for consultation. Can my noble friend say, hand on heart, that, by the time the Bill is concluded, there will be enough time for consultation before the schedule applies?
Lord Callanan (Con)
I have seen the letter from the Food Standards Agency to which my noble friend refers. The schedule is published and we have now published the explainer, so people can see what is on it. The vast majority of legislation published on the schedule is unnecessary and redundant, and can be safely revoked.
Baroness Bakewell of Hardington Mandeville (LD)
Before the Minister sits down, I listened very carefully but I did not hear what he had to say about Amendment 14 and the reassurances I was seeking.
Lord Callanan (Con)
Can the noble Baroness remind me what her Amendment 14 is about, please?
Lord Callanan (Con)
The directives she seeks an explanation on are not listed on the revocation schedule. Therefore, they continue to be in operation. They will be subject to a reform programme, but that is a question she will need to direct towards the Secretary of State at Defra.
Lord Hope of Craighead (CB)
My Lords, I have listened very carefully to what the Minister said. I have not seen the additional information which has apparently been circulated to some Members of this House, and I think many Members have no idea what it contains. That makes my point for me: proper parliamentary scrutiny is essential. That is what my amendment is all about and, with great respect to the Minister, I do not think he has really answered that point of principle. Having moved Amendment 2, I wish to test the opinion of the House.
Baroness McIntosh of Pickering (Con)
My Lords, this amendment relates to the remaining sunsetting clauses. It is important to state at the outset that, as the noble and learned Lord, Lord Hope, said in moving his Amendment 2, a number of sunset clauses revert. I also take the opportunity to seek clarification regarding something my noble friend Lord Callanan said, as Minister in charge of the Bill: that under Amendment 14, all existing water directives and regulations will remain in place. I press him for an assurance that all those statutory instruments, regulations, assimilated law, retained EU law—whatever we are going to call them—that relate to Defra, which I understand are the bulk of all the retained law that was passed following the EU withdrawal agreement, will by default remain on the statute book. Is that going to happen automatically, or is my noble friend saying that statutory instruments will have to be put forward by Defra, following the passage of the Bill, on which we will subsequently vote? I would like my noble friend to address at the outset of his concluding remarks on this little group of amendments what exactly the legal position is, for our better understanding.
In preparing the amendments in this group, Amendments 3, 36, 38, 42, 43 and 44, I am immensely grateful to Michael Clancy and the Law Society of Scotland, who share the concerns that I have about the remaining sunset clauses and the impact they will have in this regard, as they relate to the Bill going forward. The purpose of Amendment 3 is to give greater clarity about the extension, and to extend the date from that proposed in the Bill, the end of 2023, to 11:59 pm on 31 December 2028. There is serious concern about the proposed statutory deadline being the end of 2023 as, for reasons that pertain also to the debate we had on the first group, it does not appear to allow sufficient time to enable a review of all the remaining European law to be completed properly, following what I would deem to be proper consultation with the devolved Administrations and all the relevant interested parties, including the UK parliamentary and devolved legislation committees.
I would argue that the additional time is needed to enable a more thoughtful and comprehensive approach to amending or repealing the remaining REUL under the Bill. I believe that the choice of date should be made on the application of good legislative practice, including considered analysis of the legislation involved and consultation with those who will be affected by the variation or revocation proposed by the regulations in question. Therefore, the later date I have set out in Amendment 3 would allow that to happen. It would enable better law to be passed, and I believe that Parliament is here to make good laws, not laws to which we have to return later. I hope my noble friend will look favourably on that. Does he believe in all honesty that there is sufficient time for this?
In his reply to me when I tabled a similar amendment in Committee, my noble friend stated that it would not be a cliff edge:
“Firstly, the 2023 sunset date was chosen because it is the quickest and most efficient way to enact retained EU law reform. It will allow us to swiftly remove retained EU laws that are no longer appropriate and are not in the best interests of UK businesses and consumers”.—[Official Report, 28/2/23; col. 232.]
Having dispensed with the sunset clause in the government amendments we have adopted or are about to adopt, there is a good argument for pushing back the sunset clause, as I set out in Amendment 3.
Lord Hacking (Lab)
My Lords, as the Minister will recognise, the noble Baroness, Lady McIntosh, has taken a close part in all our discussions throughout the Bill’s passage. She has been wholly consistent in arguing that we, or the country, should be given more time to fully process its contents. I hope my Front Bench will support her.
Lord Hamilton of Epsom (Con)
My Lords, I wish I could support my noble friend but I am afraid I cannot. She shows a total misunderstanding of the way in which bureaucratic minds work: if you extend a deadline, they do nothing until they are approaching it. All that happens is that you prolong the whole thing. Let us face it, we would not be considering the whole business of how many laws we should be retaining or binning if there had not been a sunset clause in the original drafting of the Bill. That concentrated minds in Whitehall and got them to start finding out how much legislation they have. I think some of them were quite surprised how much there was. I certainly cannot support this amendment.
Baroness Butler-Sloss (CB)
I welcome that 500 of the regulations will be dealt with on Wednesday with a view to them being revoked, but what worries me is that there must be at least another 3,000. What will happen to them? At what point, if ever, will this House have an opportunity to comment on them?
Lord Callanan (Con)
Thank you; I did not get up because I thought the Opposition Front Bench was going to speak. I reject Amendments 3, 36, 38 and 42 to 44, tabled by my noble friend Lady McIntosh.
I will deal with the point raised by the noble and learned Baroness, Lady Butler-Sloss, and give an explanation to my noble friend Lord Hamilton. A notion seems to be springing up that the Government and departments somehow did not know what legislation they actually had responsibility for. They knew very well what legislation they had; what was sometimes unclear was whether that legislation was as a result of an EU obligation and therefore was retained EU law. This was because, over the 40-odd years of our membership, different Governments had different policies. Only a small part of EU legislation was introduced through the so-called Section 2(2) pipeline of the European Communities Act. If it is those regulations, that is very obvious—people know where that has come from—but Governments often did not want to say that legislation was introduced as a result of an EU obligation. It was therefore introduced under various instruments, under either domestic legislation or normal domestic secondary legislation. Therefore, the difficulty that departments faced was identifying what was an EU obligation. It is not that they did not know what legislation they were responsible for, were somehow finding legislation down the back of the sofa or anything else. That has been the issue: the definition of what was retained EU law. I hope that explanation is helpful.
Amendment 3 seeks to change the sunset date, pushing it back to the end of 2028. Given the amendments to the Bill that we have already discussed and the significant changes to the operation of the sunset, I hope my noble friend recognises that it is therefore not necessary to also change the sunset date. The current scope of the sunset in Clause 1 will no longer be relevant, as it will be replaced with a schedule to the Bill. The schedule will list retained EU law that departments have identified for removal. This is the only legislation that will be revoked on 31 December 2023.
Similarly, Amendments 36 and 38 seek to change the date of the powers to restate under Clauses 13 and 14. Amendment 36 would mean that Clause 13 was capable of acting on retained EU law until 31 December 2028. Pieces of retained EU law that are not included in the revocation schedule will, of course, not be revoked on 31 December 2023, but they will be stripped of their EU interpretative effects and assimilated in domestic legislation.
Consequently, those pieces of legislation will no longer be retained EU law. They will be assimilated law as part of the normal law of the United Kingdom, and the status of retained EU law on the UK statute book will come to an end. There will be no more REUL after 31 December. As retained EU law will end as a legal category at the end of this year, it is right that this power, which is capable of acting only on REUL, expires then. I am not clear why my noble friend wants to extend the sunset date of a power that will no longer be required.
Amendment 38 seeks to change the date on which the power to restate assimilated law under Clause 14 will expire from 23 June 2026 to 31 December 2028. It is in my view entirely right and appropriate that this power should be available for a time-limited window up to 23 June 2026. This is consistent with the powers to revoke or replace in Clause 16. I am confident that the time window currently set out in Clause 14 will provide sufficient time for the power to be exercised on all the necessary legislation.
Amendment 42 changes the date on which the powers to revoke or replace within Clause 16 are capable of acting on REUL from 23 June 2026 to 31 December 2028. Similarly, Amendment 43 changes the date that the powers to revoke or replace can act on assimilated law to 31 December 2028. Amendment 44 changes the date in Clause 16(11) from the end of 2023 to the end of 2028 so that the references to retained EU law in Clause 16(8) can be read as a reference to assimilated law until 31 December 2028. Again, this group of amendments is no longer necessary due to the revocation schedule. There is more than adequate time for the use of the powers on assimilated law within the timescales provided for in the Bill. The powers to revoke or replace will enable UK and devolved Ministers to remove those regulations that are no longer fit for purpose and replace them with regulations that are more tailored to the UK within a timely manner, and the Government are committed to achieving these much-needed reforms by 2026. That is why the powers are restricted in their use and available only for a time-limited window, up to 23 June 2026. I hope that, with the explanations I have been able to provide, my noble friend will withdraw her amendment.
Lord Hacking (Lab)
Before the Minister sits down, can he explain assimilated law? The present position—it is clearly shown in the schedule—is that either the European provision turns up as a statutory instrument or it is referred to precisely by the regulation number of the EEC or EU regulations. How are we going to find this assimilated law?
Lord Callanan (Con)
The noble Lord is confusing two things. The schedule is the retained EU law that we are proposing to allow to be revoked on 31 December this year. Assimilated law will be that retained EU law, stripped of its interpretive effects, that will remain on the statute book. We will end the special category of retained EU law that has existed because of our membership of the European Union. The noble Lord is confusing two things. The items listed in the schedule will disappear, and the rest, which is not revoked, will become assimilated law. The powers that remain can act on that law to change or modify it. That will be subject to approval by Parliament through the normal process.
Lord Hacking (Lab)
How do we identify the assimilated law on our statute book?
Lord Callanan (Con)
The dashboard lists all the pieces of retained EU law that have been identified; the schedule lists those that are being revoked.
Baroness McIntosh of Pickering (Con)
My Lords, while I am extremely grateful to my noble friend, I think he has made a bit of an own goal because I think it is still the case that the dashboard is simply not comprehensive. My concern, and I think that of the noble Lord, Lord Hacking, the noble and learned Baroness, Lady Butler-Sloss, and others, is that there are a number of items of EU law that are simply not on the dashboard. As we speak today, I am unclear about what the legal status of the dashboard is.
What I do take comfort from, based on what I understand my noble friend to have said, is that, if, for example, there is a piece of Defra retained EU law that does not appear in the revocation schedule on which we are going to vote, it will remain on the statute book and, even more importantly, it cannot be amended. So it can neither be revoked nor amended. If that is not the case, I would ask my noble friend to rise to the Dispatch Box and explain where I am wrong.
Lord Callanan (Con)
I have explained this, but I will do so again. The powers to modify, change or update the assimilated law remain in the proposals. Obviously, the measures that are in the schedule will be revoked, but there are powers to modify, or restate. To take an example, interpretive effects are being abolished and, in some pieces of legislation, that will require minor changes to that legislation, to update it, because of the removal of interpretive effects. The policy intent will stay the same, but it is possible that some minor changes will be required, which is why the Government need this power. So the noble Baroness is partially correct to say that existing measures that are not being revoked will become part of assimilated law; but the Government do have the power to modify or change them.
Baroness McIntosh of Pickering (Con)
My Lords, I am not sure that that is entirely clear, but I have pressed the point as much as I can at this stage. I beg leave to withdraw my amendment.
Lord Callanan
“(3) Subsection (1) does not apply to anything specified in regulations made by a relevant national authority.(4) No regulations may be made under subsection (3) after 31 October 2023.”Member’s explanatory statement
This amendment leaves out subsections (3) and (4), in consequence of the Minister’s amendment at page 1, line 4, and inserts a power for a relevant national authority to exclude legislation listed in the Schedule from revocation under this Clause.
Member’s explanatory statement
This is related to the amendment in the name of Baroness Chapman of Darlington to replace Clause 1.
Lord Callanan
Member’s explanatory statement
This amendment leaves out clause 3 (extension of sunset under clause 1).
Lord Hope of Craighead
“Revocation of retained EU rights, powers, liabilities etc(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures retained by section 4 of the European Union (Withdrawal) Act 2018 are revoked at the end of 2023 in accordance with subsections (2) to (4).(2) A responsible Minister of a relevant national authority may make a statement before the end of October 2023 to, as the case may be, each House of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, identifying any rights, powers, liabilities, obligations, restrictions, remedies or procedures that the relevant national authority has decided not to restate, reproduce or replace before the end of 2023 and that it wishes to be revoked at the end of 2023.(3) If both Houses of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, as the case may be, resolve that a right, power, liability, obligation, restriction, remedy or procedure identified in the statement referred to in subsection (2) be retained, it is not to be revoked under subsection (4) at the end of 2023.(4) If, and to the extent that, no such resolution referred to in subsection (3) has been made before the end of 2023, the rights, powers, liabilities, obligations, restrictions, remedies and procedures identified in the statement referred to in subsection (2) are revoked with effect from the end of 2023.(5) Any right, power, liability, obligation, restriction, remedy or procedure that is revoked by virtue of this section is not recognised or available in domestic law at or after the end of 2023 (and, accordingly, is not to be enforced, allowed or followed).”Member’s explanatory statement
The purpose of this amendment, which is modelled on the amendment to Clause 1 in the name of Lord Hope of Craighead, is to enable Parliament and the devolved legislatures, not the Executive, to have the final decision as to whether or not rights, powers, liabilities &c. retained by section 4 of the EU (Withdrawal) Act 2018 should be revoked at the end of 2023.
Lord Hope of Craighead (CB)
My Lords, I will speak to two amendments in this group: Amendment 15, which I am moving, and Amendment 76, which comes later in the Marshalled List; I shall explain what that is about. One or two ancillary amendments—Amendments 69, 73 and 74—are related to Amendment 76.
This group seeks to develop further the application to this Bill of the principle of parliamentary sovereignty. Amendment 15 is in the name of the noble Lord, Anderson of Ipswich. I added my name to it, as did the noble Lords, Lord Hamilton and Lord McLoughlin. The noble Lord, Lord Anderson, is not here today, so I am moving Amendment 15 on his behalf.
Amendment 15 is directed to Clause 4, which is headed “Sunset of retained EU rights, powers, liabilities etc”. I say to the noble Baroness, Lady Noakes, that this is an example of a sunset that is still in the Bill and which we are not disputing should remain in the Bill. It provides, first, that
“Section 4 of the European Union (Withdrawal) Act 2018 … is repealed at the end of 2023”.
It then provides that
“anything which, immediately before the end of 2023, is retained EU law by virtue of that section is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed)”.
The purpose of Amendment 15 is to provide a mechanism for parliamentary scrutiny of subsection (2). There could be a great deal of law hidden behind the clause which we cannot understand or see. Therefore, it should be fully investigated by the relevant committee. The mechanism that we propose in Amendment 15 is that the law that would be affected by Clause 4(2) must be identified by the making of a Statement to Parliament before the end of October, which would then provide a basis for the matter to be debated in both Houses. The purpose of the amendment is simply to close a gap that might otherwise remain in the need for effective scrutiny.
I shall not take up time by reading out the whole of Amendment 15 as your Lordships can see what is there, but the explanatory statement says that it is modelled on the amendment to Clause 1, in my name, which has just been agreed by your Lordships,
“to enable Parliament and the devolved legislatures, not the Executive, to have the final decision as to whether or not rights, powers, liabilities … should be revoked at the end of 2023”.
I think that is all I need to say about Amendment 15. I do not want to take up further time by adding more to what I have said.
Amendment 76 in my name, along with—as I have said—those of the noble Lords, Lord Hamilton, Lord McLoughlin, and Lord Anderson, is very important because it is directed to the very heart of the Bill; this lies beyond the schedule that we will be looking at and beyond Clause 4, to which I have just been referring. It is directed to Clauses 13, 14 and 16.
I remind your Lordships that Clause 13 is headed “Power to restate retained EU law”. Clause 14 is headed “Power to restate assimilated law or reproduce sunsetted retained EU rights, powers, liabilities etc”, and Clause 16 is described as “Powers to revoke or replace”. These are extremely important powers that, as the Bill stands, are to be exercised by statutory instrument, not subject to parliamentary scrutiny, which is what we are seeking to do.
I do not wish to go over the arguments that we have debated so fully today, beyond emphasising that these are very far-reaching powers that will result in a complete rewriting of much of the law that we have kept on our departure from the EU. We do not dispute the need to do that—there has been a good deal of reference already today to the importance and indeed necessity of carrying out these exercises—but our point is that that cannot be left entirely to Ministers and civil servants without proper parliamentary scrutiny.
Amendment 76 is once again based on an amendment proposed by the noble Lord, Lord Lisvane, in Committee. It would provide for any instruments made under these three clauses to be referred to a Joint Committee of both Houses for scrutiny. Again, if that committee found that the regulations represented a substantial change to the preceding EU law or that sufficient public consultation had not been carried out, a Minister of the Crown would have to arrange for the instrument to be debated on the Floor of each House. It is contemplated that the Houses may agree to amendments, whether or not proposed by the Joint Committee.
Of course, the Minister may come up with a better scheme for subjecting those regulations to effective public scrutiny, but this is the best that, with the assistance of the noble Lord, Lord Lisvane, we have been able to devise. We have tried to keep the procedure as quick and simple as possible without disturbing the sunsetting provisions in the clauses and we are reasonably sure, on the advice of the noble Lord, that our proposal will meet these requirements.
Viscount Hailsham (Con)
Could the noble and learned Lord deal more fully with the amendment provision? It is a most interesting provision because hitherto my understanding has always been that statutory instruments cannot be amended. What is proposed in new paragraph 8A(3) in Amendment 76 is a power to amend a statutory instrument. I would like to know—
Lord Harlech (Con)
My Lords, could I ask my noble friend to turn around and address the House?
Viscount Hailsham (Con)
I am so sorry. Being rather deaf, I have to listen to what the noble and learned Lord is saying by turning towards him. I apologise. I would like to know—[Laughter] I am doing it again. I would like to know what the procedure is. Is it precedented, or is it a new concept that the House is being asked to contemplate—namely, the power to amend statutory instruments?
Lord Hope of Craighead (CB)
My Lords, the amendment, which I invite the noble Viscount to look at more closely, is carefully worded. All we say is that if any amendments to the regulations are agreed to—we have to be extremely careful in our proposal because we cannot direct what a Joint Committee of both Houses is going to do, which is a matter for it—we suggest that the committee may feel it appropriate to recommend that amendments should be laid. That is a matter for the Joint Committee. We are not giving a power ourselves but handing it over to the Joint Committee, which I think the noble Lord, Lord Lisvane, will confirm.
Viscount Hailsham (Con)
I am sorry to press the noble and learned Lord—while looking straight at your Lordships’ House—but is the concept that there will then be on the Order Paper proposed amendments to the statutory instrument, or will there be an informal recommendation by the Select Committee? Those are not the same things. I would be very pleased if they were a power to amend statutory instruments, and I would really like to know what procedure is contemplated.
Lord Lisvane (CB)
It is with a certain amount of trepidation that I seek to answer the question. The noble and learned Lord, Lord Hope, will correct me if I am wrong, but as I understand it the idea is that the amendments—which might come from the Joint Committee or from another source, as foreseen in sub-paragraph (3) in the amendment—would come forward and could be to put to either House or both Houses as Motions that a certain order should be laid in a form so amended. If that Motion was agreed to—it is a sidestep procedurally because it is not acting on the text of the order itself—and the will of either House was that there should be such amendments then it would be for Ministers to re-lay the order, taking those amendments and the decision of the House or Houses into account.
Lord Hope of Craighead (CB)
I am extremely grateful to the noble Lord for his explanation. I think the noble Viscount will appreciate that we have to deal with this very carefully. On the other hand, I think he will agree that, given the nature of the task being carried out, it would be extremely unfortunate if a flaw were spotted and nothing could be done about it. We are trying to suggest a mechanism by which something that is agreed by the Joint Committee, and indeed by both Houses as necessary, should be capable of being done. I hope I may leave it at that. This is a carefully drafted amendment that is doing its best to address an extremely important and, in some respects, quite delicate task.
When the time comes, if necessary, I shall seek the opinion of the House on Amendment 76. For the time being, because we have before us Amendment 15, that will be my position too, if necessary, when Amendment 15 is called.
Lord Hodgson of Astley Abbotts (Con)
My Lords, we have had two significant amendments proposed by the noble and learned Lord. I have Amendments 73 and 74 in this group, which are small and technical but significant in the way in which they try to enhance the scrutiny provisions that underlie the noble and learned Lord’s two amendments, which I entirely support. I will not repeat my reasons because I would be largely rehearsing the arguments that I made an hour and a half ago.
It is generally anticipated, though not certain, that the Secondary Legislation Scrutiny Committee will be one of the bodies appointed to carry out some scrutiny of the regulations, as and when this particular part of the Bill comes into force. The Bill as drafted envisages a period of 10 working days for a report to be produced by the SLSC that would then come before the House, and the House would make its mind up about its view of that report on the instrument. The Government use the example—the dreaded precedent—of the 10-day period provided under the European Union (Withdrawal) Act 2018. In the SLSC report that I referred to earlier, we proposed that the period should be extended from 10 days to 15. We said in paragraph 58:
“We know from our own experience in scrutinising proposed negatives under the 2018 Act that, depending on the day of the week on which a proposed negative has been laid, meeting that 10-day deadline could be challenging”.
Under the Bill, the regulations to be scrutinised are of an entirely different level of policy implication, importance and significance. This view and the proposal for a five-day extension—by no means a huge length of time—have been endorsed by the Hansard Society, which Members of the House will be aware is an academic expert in matters of parliamentary procedure.
In Committee on this Bill on 8 March, at col. 876, my noble friend, having heard the debate on these amendments, was kind enough to offer to go away and reflect. I have no doubt that he did his level best, but I fear that he was rebuffed because the Government said in their response to the SLSC report of 10 May:
“Having considered this carefully and in particular how the existing 10 day sifting practice works, the Government remains of the view that a 10 day sifting period is sufficient for SIs laid using the powers in the Retained EU Law Bill … The retained EU Law programme is a similar challenge”—
to 2018—
“but it is no more complex or demanding”.
I have just two points on that. First, to describe this Bill as no more complex and demanding, compared to that of 2018, is, I am afraid, plain wrong. It is a much more significant piece of legislation than the 2018 Act. Secondly, the members of the SLSC do not come to this view ex cathedra. We think about it, but we also talk and take into account the views of the highly experienced and dedicated staff, who produce excellent reports which come before your Lordships’ House every week.
To conclude, I suppose I could just about have got my mind around my noble friend’s view that it should be 10 days after all when we were under the cosh of the 31 December drop-dead end date. We do not have that now, so the time pressure that was otherwise going to be imposed has now been released and reviewed. I urge my noble friend to go back to the chateau behind the lines and ask the general commanding to think again. If the Government do not think again, it will be yet another example of how they appear intent on marginalising Parliament at every single opportunity.
Viscount Hailsham (Con)
My Lords, if I might briefly comment on the suggestion of the noble and learned Lord, Lord Hope, about amendments—
Lord Harlech (Con)
My Lords, the guidance in the Companion states that, on Report, Members are asked to make their reflections once.
Viscount Hailsham (Con)
But I asked a question; I did not make a speech before. The question is one that I want to emphasise now.
Time and time again, this House has had to address the ability of Parliament to amend statutory instruments. The explanation given by the noble and learned Lord, and by the noble Lord, Lord Lisvane, makes it plain that on the question of amendments, we have to rely entirely on the good faith and discretion of the Minister. What in fact was being said by the noble Lord, Lord Lisvane—I am grateful to him—is that the House, by a Motion, can express a view but the ability to change the statutory instrument depends on—
Baroness Williams of Trafford (Con)
My Lords, I think my noble friend is actually making a statement.
Viscount Hailsham (Con)
I am making a speech, not a statement. I do not think I know the difference between the two. I was making a contribution in the debate.
What the noble and learned Lord and the noble Lord have demonstrated is that the ability to amend statutory instruments is dependent upon the discretion of the Secretary of State. I have long taken the view, and I hope your Lordships would agree that, especially when you have so many statutory instruments, this House should be able to amend them—
Baroness Williams of Trafford (Con)
My noble friend is making a statement. He is not asking a question, and we should let others get on with their one speech.
Baroness Ludford (LD)
My Lords, these are rather strange goings-on.
From these Benches, we support all the amendments in this group and I thank the noble and learned Lord, Lord Hope, for introducing them. If he chooses to test the opinion of this House, we will support him on Amendment 15 and, later, on Amendment 76.
Rather like group 5, which we will come to later and is about the powers of courts, this group is about trying to introduce some legal stability and certainty into what has been a bumpy process for this Bill. One could say that the Bill is no way to run a whelk-stall. As my noble friend Lord Fox said, we did get some explanations for the measures to be revoked in the schedule, but it was only just before—or just after—we started to debate Clause 1, and we only got the amendments to the Bill four days ago. It has been a bit of a rollercoaster, and any effort to introduce some certainty and predictability is to be welcomed.
I will speak exclusively to Amendment 15, which is very important. The Government may be retaining a lot more EU law, but they have insisted—indeed, the Minister keeps repeating that they are proud of this—on playing fast and loose with the way that retained EU law will be interpreted, such as ending the much misrepresented supremacy of EU law and the general principles which guide it, as well as EU rights, which this amendment is particularly about. It is quite a mystery as to how the retained law is to be interpreted.
No one, least of all the Government, knows what the impact of this abolition will have on legal certainty and continuity. Mr Jacob Rees-Mogg’s flippant response that “life is uncertain” was typically unhelpful. Can the Minister tell us what assessment the Government have made of the loss of any interpretive effects in the measures to be revoked? What effect will abolishing any interpretive effects in the revoked list have on laws which are retained and assimilated? Are the Government going to put interpretative effects back into SIs on amended, restated, retained and assimilated law, and how will that work? I hesitate to say that it could come back by the backdoor because, quite honestly, any retention could well be helpful to lawyers, the courts and so on. At the moment, we just do not know and are in considerable uncertainty about what the Government’s regulatory intentions are.
We know from Clause 16, which we will come to later, that the Government do not want to increase regulatory burdens. Some of us are a little wary of their definition of burden. According to the smarter regulation document of last week and the consultation on employment law, which I think came out on Friday, it includes the burden of recording working hours, which is odd, and calculating holiday pay. All of that could have a considerable impact on quite a lot of people.
The Government also want regulators to have a growth duty, to
“prioritise growth alongside … their core functions, such as protecting consumers or our natural environment”.
Indeed, they have cited Ofwat, Ofgem and Ofcom in this context. Some of us are a bit concerned that, particularly in the water industry, regulators have already given too much leeway to water companies’ growth, particularly in dividends and bosses’ pay—though perhaps not so much in sewage treatment capacity. There is quite a lot of concern about how all these regulatory intentions, which we are finding in statements and consultation documents, fit the professed commitment to maintain higher standards—I think the noble Lord, Lord Hendy, mentioned this earlier. But if higher standards are kept, particularly those which derive from EU law, how are they going to be interpreted? Some clarity from the Government would be very desirable this afternoon.
Lord Hamilton of Epsom (Con)
My Lords, I added my name to Amendments 15 and 76. Amendment 76 is in the name of the noble and learned Lord, Lord Hope. This, of course, is what puts meat on the bones of the whole business of restoring parliamentary sovereignty. It is very important that we get back the sovereignty of Parliament, and this is a great opportunity to do it.
There has been a steady erosion, as my noble friend Lord Hodgson has commented, in which statutory instruments are being used to a greater extent. This merely moves power from Parliament to the bureaucracy of this country. This is not a situation that any of us should welcome. If we want to restore our democracy, we should have a Joint Committee of both Houses to look at this legislation. It is very important that we concentrate on the future of this country and of our Parliament and start to restore some of its influence in the world today.
Baroness Randerson (LD)
My Lords, I rise to speak to Amendments 73 and 74, to which I added my name. I will preface my remarks with a brief comment about the attempts by the Government Front Bench to curtail people’s right to ask questions of other Members during speeches this afternoon. That is most unfortunate and particularly ironic in a debate that is pivoting on the issue of the powers of Parliament to scrutinise legislation. I hope that the Government Front Bench will think again about that line of action.
I welcome the Government’s concessions in the Bill, but I still want to remark on the length of time it took them to wake up to the inevitable—the realisation that the Bill was impossible to implement and requires fundamental change. I am deeply grateful to the Minister, the noble Lord, Lord Callanan, for taking that message from this House to the Government. At the same time, having woken up to the need for change, the Government have now given us an impossible timescale in which to consider the 600 pieces of legislation they have identified—we have 48 hours from now. This remains a very flawed Bill, therefore, and represents a major accumulation of power in the hands of the Executive. That is power seized from both this Parliament and, despite important government concessions, the devolved Administrations.
The amendments to which I have added my name are of the most minor nature. Indeed, in Committee the Minister gave us cause to hope that the Government might look positively on such a change. They are minor—an extension from 10 to 15 days for the committees to look at this legislation—but they are nevertheless important because, without that minor change, the sifting of legislation will present a major hurdle.
The noble Lord, Lord Hodgson, referred to the report of the Secondary Legislation Scrutiny Committee in his speech on the first group of amendments. That report was called Losing Control?. I am delighted to now be a member of the Secondary Legislation Scrutiny Committee under the able chairmanship of the noble Lord, Lord Hunt, who is in his place. These minor amendments ask simply for Parliament to be given time to do its job. The Government have accepted that their initial Bill was impractical in its timescale. They now need to accept the lessons of that and, even at this point, to accept this minor change.
This Government have broken new boundaries by producing increasingly skeletal Bills and relying heavily on secondary legislation to flesh out the real meaning of their legislation. SIs are not immune to error. The Home Office recently accumulated a record of having to withdraw one in five of its SIs and remake them. That is not a record of perfect legislation. The Government need to accept that they make mistakes.
We have government by SI now, but the rules and procedures for scrutiny of SIs are locked in the past when primary legislation was much more detailed. If we are to be forced to work this way, procedures must change or there will be major legislative errors. I support the amendments put forward by the noble and learned Lord, Lord Hope, and so ably explained by the noble Lord, Lord Lisvane, as a good, practical way of dealing with the new approach to legislation.
Baroness Noakes (Con)
My Lords, I would like to offer a brief comment on Amendment 76 in the name of the noble and learned Lord, Lord Hope of Craighead. Like many Members of your Lordships’ House, I find the way in which we deal with the increasing amount of secondary legislation fundamentally unsatisfactory. I pay tribute to the work done by my noble friends Lord Hodgson of Astley Abbotts and Lord Blencathra and their respective committees last year, and to the important debate held in your Lordships’ House.
We should move towards re-examining how we handle secondary legislation going forward. However, I do not think that the right way forward is to produce one amendment in one Bill and try to say that it answers the problem. I have the greatest respect for the noble Lord, Lord Lisvane, because of his tremendous experience in the other place. But let us not pretend it is easy to find a good solution that will work with both Houses and produce the right degree of additional scrutiny without completely holding up the Government’s secondary legislation programme.
We should take time—I hope the Government will find time—to work between both Houses to find good, practical solutions going forward, but we should not legislate in haste in this Bill. We have secondary legislation procedures that have served us pretty well for a long time. The noble and learned Lord, Lord Hope of Craighead, referred to needing to deal with flaws in secondary legislation. They can already be dealt with; they do not need any special apparatus to do so. The noble Baroness, Lady Randerson, referred to the procedure whereby statutory instruments are withdrawn when flaws are pointed out. That is a part of our existing procedure, and it works perfectly well. Let us not pretend it is so broken that we have to invent a special procedure for the Bill.
Lord McLoughlin (Con)
My Lords, my name appears on Amendments 15 and 76, spoken to by the noble and learned Lord, Lord Hope. Following what my noble friend Lady Noakes has just said, I say: if not now, when?
It is clear from this debate so far that we sometimes feel that somehow all this European legislation was forced on us and we never wanted it. The simple fact is that we would have had to legislate for a lot of it ourselves. Actually, what happened was that sometimes it was gold-plated—not by Europe but by us. One thing we must be careful not to see happen now is future regulations coming forward and being gold-plated without Ministers necessarily realising what has possibly happened.
I have been fortunate in serving as a Secretary of State. I must admit: I cannot say that, when officials came to me and said that we would take something through on delegated powers, I said, “Well, I must really examine every last word of that particular piece of legislation”.
Lord McLoughlin (Con)
Yes, of course, shame—absolutely a shame. I completely accept what my noble friend is saying. It is a shame and a disgrace, but sometimes you get such a number of regulations coming forward that you might just let them believe what you are saying because you know you are not going to have to defend it in Parliament. That is something that I think my noble friend Lord Hamilton said a few moments ago. It will make a Government more responsive if they feel they have to defend it on the Floor of either the House of Commons or your Lordships’ House.
That is why we have had several debates, including, as my noble friend Lady Noakes said, the earlier debate as a result of the Delegated Powers Committee—which I now chair following my noble friend Lord Blencathra—and the committee chaired by my noble friend Lord Hodgson. It is a way to make sure that the Government are more accountable to the elected House as well as to your Lordships’ House, where we can also sometimes ask, “Has A or B been thought of?”. That is very much why I hope the Government will consider this in due course. As I said, the overall changes made to the Bill already are very welcome, but the number of changes, and the speed with which they have been made, makes us question, rightly, how well thought out the Bill was in the first instance.
Lord Kerr of Kinlochard (CB)
It is a pleasure to follow the noble Lord, Lord McLoughlin. His historical point is completely correct: the period of maximum EU legislation was during the delivery of the single market programme, which was based on the Cockfield White Paper and the agreement between Prime Minister Thatcher and President Delors. That legislation came through mainly in the early 1990s, and some of it is in the schedule—it has probably been overtaken by something else. It is simply not true that it was all imposed on us.
I support Amendment 76, which is essential. I can explain my reasoning by reminding the House of what Clause 16 says. It is a bit presidential; one might almost say “dictatorial”. Clause 16(2) says:
“A relevant national authority may by regulations revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives”.
In the phrase “considers to be appropriate”, “appropriate” is a very presidential word rather than a parliamentary word. Okay, there is still the saving caveat that it has
“to achieve the same or similar objectives”,
but here comes Clause 16(3), which uses almost exactly the same wording:
“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.
Here there is no saving caveat about achieving the same or similar objectives, so under Clause 16 the Executive may, by regulations, do whatever they well choose. That seems to me to make it absolutely essential to have the parliamentary scrutiny for Clauses 13, 14 and 16 that would be delivered by the amendment in the name of the noble and learned Lord, Lord Hope.
Baroness Fox of Buckley (Non-Afl)
My Lords, the noble Lord, Lord McLoughlin, is certainly correct that no legislation was forced on the UK by the EU. Indeed, many Ministers from all parties were happy to take advantage of laws made in Brussels, which they sometimes even suggested, by coming back to the UK and reading out the legal text from the EU Commission—and then, if there was any objection, they blamed the EU. But what was removed from that equation was the scrutiny and accountability of the electorate. They were the people who were told that they could not change the law; it was ring-fenced away from them. That is what voters rejected in 2016.
I will be clear on what this Bill is all about by quoting the European Commission, because I know that so many noble Lords trust it and not me. In October 2021 the EU Commission stated, in relation to a dispute with Poland:
“EU law has primacy over national law, including constitutional provisions … All rulings by the European Court of Justice are binding on all Member States’ authorities, including national courts”.
That is no longer the case for the UK, and we are now trying to untangle how we deal with that.
In relation to the Bill, it is, in my opinion, not the case that Brexit was an act of reclaiming sovereignty, a blueprint for saying exactly what laws we would keep or retain, or a means of just getting rid of EU law as an end in itself, as it were. Rather, it was about putting the responsibility for choosing which laws to prioritise, reform or even improve in the hands of the Government and Parliament, who are answerable to the British people—the electorate. I have listened carefully to a lot of the very thoughtful amendments put forward to try to ensure that too much power is not put in the hands of the Executive or Whitehall, as opposed to an accountable Parliament, but I get anxious about how the arguments are posed sometimes, so I will query some of the amendments in this group.
Baroness Fox of Buckley (Non-Afl)
Indeed, so that is true. For once noble Lords are agreeing with me: this House is not representative of the feelings of the British public. Therefore, the Joint Committees of Parliament, which include many from this House, who are hostile to what the British public voted to do in the past—
Baroness Fox of Buckley (Non-Afl)
I am simply asking whether that is the solution to resolving the problems that we face in terms of our disentanglement from the European Union’s lawmaking.
Lord Hamilton of Epsom (Con)
Before the noble Baroness sits down, could she tell us, then, what Bill is the ideal Bill to bring an end to the constant use of statutory instruments?
Baroness Williams of Trafford (Con)
My Lords, I apologise for intervening again, but the rules found in the Companion are very clear about speaking once on Report.
Baroness Lawlor (Con)
My Lords, Amendment 15 is modelled on the amendment proposed earlier to Clause 1. As noble Lords who have put the amendment have said, this is to enable Parliament, not the Executive, to have the final decision. It may seem strange that I oppose that, but I do oppose it, because it makes the assumption that, in general, EU rights, powers and liabilities should remain after our withdrawal, unless a specific decision is taken in each case to remove them. On the contrary, the decision at the referendum, confirmed in 2019, was to leave the EU and leave behind its rights, powers and liabilities. Moreover, the House of Commons has voted in favour of Clauses 4(1) and 4(2).
Rather than a defence of parliamentary power, about which noble Lords have spoken very eloquently, this will or may appear a rear-guard action to retain binding links with the EU system of law, despite the decision. To repeat again what I said on the amendment to Clause 1, a direct mandate was given to the Executive to end that legal system, and it is not for this House to obstruct that mandate any longer.
Lord Hunt of Wirral (Con)
My Lords, I shall say a brief word. Having taken over from my noble friend Lord Hodgson of Astley Abbotts of chair of the Secondary Legislation Scrutiny Committee, I would like to support his words and the words of my colleague, the noble Baroness, Lady Randerson, with regard to Amendments 73 and 74.
As we have heard, under the European Union (Withdrawal) Act 2018 the committee was charged with an additional function—the scrutiny of what are called proposed negative instruments laid under the new sifting mechanism. The committee had 10 days to report on those proposed instruments and, to the immense credit of the committee and of the talent of the staff concerned, it rose to that considerable challenge of meeting a demanding deadline under the leadership of my noble friend. But this was not an easy matter. In its report on the Bill, the committee warned that the task of sifting would be even more challenging under this Bill because of the potential significance and complexity of the instruments to be sifted.
During the debate in Committee, in which I participated in support of my noble friend, the Minister gave us some hope that he understood the persuasiveness of the case for extending the scrutiny period. Sadly, that was not to be, and the Government in their response to the committee’s report on the Bill said that they did not accept the need for the period to be extended. This is very disappointing indeed. As I said in Committee, the committee would not expect to use the full 15 days for every proposed negative instrument—far from it. What is being asked for is an extension of the deadline in recognition of the fact that the Bill has the potential for generating more complex and far-reaching policy changes through instruments subject to the sifting mechanism than the 2018 Act has.
I warned my noble friend the Minister that when he got back to the department, after his warm words in support of my noble friend and other noble Lords who participated, people would tell him that it was impossible, because it would set a terrible precedent—and I think that that is probably what happened. I would ask him just to think again, because I do not think that it sets a precedent at all; it is a unique occasion. If the Government are to demonstrate their support for effective parliamentary scrutiny—and, in particular, effective use of the sifting mechanism—I would urge him to think again and accept these amendments.
Lord Fox (LD)
My Lords, this has again been a lively debate. The Government’s concession on Amendment 1 ensures that the bulk of retained EU law will remain on the statute book as assimilated law at least for a while, but there are no moves in the Government’s amendments to change the Bill’s proposal for the Executive to sunset retained EU rights, powers and liabilities. Amendment 15, proposed by the noble Lord, Lord Anderson, and moved by the noble and learned Lord, Lord Hope, would ensure that it is Parliament rather than the Executive that will have the final say over whether those rights, powers and liabilities should be revoked at the end of the year. That is very important and that is why we will support that amendment, if it is put to the vote.
I turn to Amendment 76. Speaking in the Commons last week, after the Government had announced their plans in the press and, latterly, to the Commons, the Secretary of State said that
“the Bill provides business certainty and legal certainty”.
It does not provide either of those. Despite the U-turn on sunsetting, the Bill still retains those powers that will enable Ministers to amend retained EU law, now assimilated law, by statutory instrument when they deem it to be appropriate. As the Secretary of State also said last week:
“Most importantly, it gives us the space to focus on the reform programme”.—[Official Report, Commons, 11/5/23; col. 447.]
So all the thousands of pieces of legislation that are assimilated automatically by this amended Bill can be revoked or reformed with almost no opportunity for debate or amendment in this crucial legislation.
As we have heard, this represents a huge gathering of power to the Executive. Amendment 76 from the noble and learned Lord, Lord Hope, ensures that any SIs the Government propose to make using this power are referred to a Joint Committee of both Houses for scrutiny. If the Joint Committee finds that a significant change to the law is proposed, then the SI must be debated on the Floor of each House. This is what Parliament is here to do. There is also a provision to ensure that amendments to such SIs can be agreed by both Houses. We had a lively debate in three corners of the House about that. When the time comes, these Benches will support this amendment.
Lord Hannan of Kingsclere (Con)
My Lords, I am very struck by the change in tone in this House. For years, we were told that the EU was an association of nations and that it was some abstruse, recondite obsession of Eurosceptics to claim otherwise; now we are told that it is a massive Jenga set and that, if we take anything out, the whole structure will come tumbling down because it is so deeply embedded in our domestic law. For years, we were told that we had extraordinary Rolls-Royce civil servants and that we were the best country at implementing everything; now it is suddenly beyond them to repeal the same things within a reasonable deadline. For years, we were told that parliamentary sovereignty was a 19th-century hang-up of interest only to eccentrics; suddenly—I welcome this—it has become a deep concern on both sides of the Chamber.
In accepting the previous debates in this House, the Government have done their best to reach a balance. They must implement the decision and have done so in a way that takes account of the objections raised on all sides by your Lordships. They deserve rather more recognition than they are getting this afternoon.
Lord Collins of Highbury (Lab)
My Lords, to pick up that point, we have heard in every debate a recognition that the Government have moved, which has been very important and welcome.
Some people want to continue a debate about Brexit. These amendments are not about that. That is why I totally support the noble Lords, Lord Hamilton and Lord Hodgson, who have previously participated in debates in this House on the nature of secondary legislation and how it has increased, and how it empowers the Executive. This is a unique situation; we have established the principle in the first group but, if we are to make changes—revise, reform and revoke—how will we ensure that the people with the responsibility to legislate have the responsibility properly to scrutinise and amend if necessary? People jump up and down and ask whether this is the right place to have a debate about secondary legislation. I am not too bothered about that. I am concerned about outcomes. Parliament should have the opportunity properly to scrutinise the changes and powers in this legislation. The noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Hope, have offered us a process in this Bill for those changes to be made.
The noble Lord, Lord Hodgson, has pushed me on numerous occasions, particularly when we debated his committee’s report, on whether a future Government would adopt this for statutory instruments. I cannot make that commitment, but I know that, if we adopt Amendment 76, it will establish a practice that people might see is beneficial for future arrangements. We can have a win-win situation. This debate is not about Brexit. It is about who has responsibility to legislate in this country. It is not the Government; it is our duty. That is why we should support Amendments 76 and 15.
Lord Callanan (Con)
My Lords, Amendment 15 tabled by the noble Lord, Lord Anderson, and moved by the noble and learned Lord, Lord Hope, effectively seeks to delay a vital part of the Government’s retained EU law reform programme whereby EU rights, obligations and remedies saved by Section 4 of the European Union (Withdrawal) Act 2018 will cease to apply in the UK after 31 December 2023. The matters saved by Section 4 consist largely of rights, obligations and remedies developed in the case law of the Court of Justice of the European Union. Many of these overlap with rights already well established by domestic law in this country, and those overlaps can cause confusion.
Where the UK and devolved Governments consider that there is a need to codify any specific rights that may otherwise cease to apply, this can be done under the Bill’s powers. These codified rights will be placed on a sustainable UK footing, providing certainty and therefore safeguarding and enhancing them in domestic statute. The Bill is ending the current situation whereby citizens must rely in some cases on an unclear category of law and complex legal glosses to enforce their rights. Sadly, the proposed amendment seeks to perpetuate this situation, which the Government consider unacceptable. I hope the noble and learned Lord will withdraw his amendment.
Amendments 69, 76, 73 and 74 relate to Schedule 4 and parliamentary scrutiny. Amendments 73 and 74, tabled by my noble friend Lord Hodgson of Astley Abbotts, relate to the sifting procedure and seek to extend the period during which committees of this House and the House of Commons can make a recommendation about the relevant scrutiny procedure for regulations made under Clauses 13, 14 and 16. Specifically, these amendments seek to change the time limit under which both Houses can make recommendations on the appropriate procedure to be used when an instrument is laid and subject to the sifting procedure.
As the provision is drafted, relevant committees of this House and the Commons have a period of 10 sitting days to make recommendations on the appropriate scrutiny procedures. This starts on the first day on which both Houses are sitting after the instrument has been laid. If the period of 10 sitting days does not cover the same dates for both Houses, the end date of the relevant period will be the later of the two dates. Amendment 73 extends the number of sitting days in the period from 10 to 15 for the House of Commons, while Amendment 74 does the same for this House.
As I have been reminded by a number of noble Lords, particularly my noble friends Lord Hodgson and Lord Hunt, I committed in Committee to review the 10-day scrutiny period for sifting. I engaged in extensive discussions not just in the department but with the business managers about whether a 10-day sifting period was sufficient. As my noble friend Lord Hodgson intimated, I was not successful in persuading them. The Government’s position remains that a 10-day sifting procedure is sufficient for SIs laid under the powers in the Bill.
It is also worth pointing out that we had that debate under the old provisions of the Bill. Under the new schedule approach, the total volume of statutory instruments to be delivered via the reform programme has been significantly reduced. My noble friend’s concern that there was not enough time to consider them properly will have been to some extent allayed, given the previously very large volume of SIs.
From previous experience, the 10-day period worked quite well during the programme of SIs for EU exit and is in line with the sifting procedures and legislation introduced under the European Union (Withdrawal) Act. I have some confidence that it will continue to work well in this scenario. Therefore, I am afraid the Government do not consider it necessary to extend the time limit within which an instrument is scrutinised as part of the sifting procedure.
I turn now to Amendments 69 and 76 from the noble and learned Lord, Lord Hope. These amendments put a somewhat novel scrutiny procedure in place for the powers under Clauses 13, 14 and 16. Specifically, Amendment 69 removes the requirement for certain regulations made under those clauses to be subject to the affirmative procedure. In consequence of this, Ministers would be left with a choice between the negative or affirmative procedures, with the former subject to the sifting procedure.
Amendment 76 imposes this novel and untested scrutiny requirement on regulations made. This takes the form of an enhanced sifting procedure—not dissimilar to the super-affirmative procedure—under which Parliament may make amendments to a proposed instrument. The Government believe that the purpose of this Bill is to ensure that we have the right regulations in place which are right for the whole of the UK. The House can be assured that the Government will ensure that any significant retained EU law reforms will receive the appropriate level of scrutiny by the relevant legislatures and will be subject to all of the usual processes for consultation and impact assessment. However, we also believe that we have to ensure that the limited amount of parliamentary time that is available is used most appropriately and most effectively. Requiring that the powers be subject to additional scrutiny is neither appropriate nor necessary in this case.
The sifting procedure that we suggested was purposely drafted as a safeguarding measure for these powers. The sifting procedure will give the UK Parliament the opportunity to take an active role in the development of this legislation. It is a tried and tested method of parliamentary scrutiny which delivers—in my view—good results for everyone and does draw on the expertise of our various parliamentary committees. Requiring that legislation to be subject to novel, untried, untested and onerous scrutiny, such as this enhanced sifting mechanism would—in my view—not be an effective use of parliamentary time. It would result in delaying departments delivering their REUL reform programmes and would delay the Bill in delivering its objective of bringing about much-needed REUL reform. For all those reasons, the Government cannot support Amendments 69, 76, 73 and 74.
Lord Hope of Craighead (CB)
My Lords, I am very grateful to all noble Lords who have spoken in the course of this debate. I do not want to go over the arguments again. On the criticisms the Minister has made about my two amendments, I have only two points to make.
First, I think he said that the purpose of Amendment 15 was to delay the process that Clause 4 is talking about. That is simply not true. We have kept within the timetable that Clause 4 itself lays down. As I made clear, the aim throughout our amendments is to try to achieve what is required as quickly as possible. The sunset date in Clause 4 remains, according to our amendment. So, to say that we are delaying anything is, with great respect, not the case.
Secondly, to describe Amendment 76 as novel and untested is not a criticism that meets the situation. We are dealing with an entirely new situation where we are having to redesign an enormous quantity of EU law which we have inherited. Of course, the system we have devised is new because we are dealing with something we have never encountered before. That itself is no answer to the point that we were making throughout: parliamentary scrutiny is essential. The noble Lord, Lord Kerr, drew attention to provisions in Clause 16 which absolutely emphasise the essential nature of that. So I move Amendment 15 and, if it is not agreed to, I wish to test the opinion of the House.
Lord Hope of Craighead
“(6A) The Scottish Ministers may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).(6B) The Welsh Ministers may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).(6C) A Northern Ireland department may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).”Member's explanatory statement
This amendment gives the Scottish and Welsh Ministers and a Northern Ireland Department a power, equivalent to the power of Ministers of the Crown in Clause 7(6), to amend legislation in consequence of the change in terminology from ‘retained EU law’ to ‘assimilated law’ made by Clause 7.
Lord Hope of Craighead (CB)
I am sorry; it falls to me to introduce this group—again.
This is about devolution. One of the concerns about the Bill as drafted is that it does not pay proper attention to the devolution settlements as regards Scotland, Wales and Northern Ireland, and to the key principle of respect and co-operation that underpins those settlements. I have several amendments in this group to which I wish to speak, as briefly as possible: Amendments 17, 35, 37, 39, 72A and 75.
Amendment 17 seeks to extend the regulation-making power under Clause 20 that is referred to in Clause 7 to Ministers in each of the three devolved Administrations. I seek clarification from the Minister as to whether this point is already met by government Amendments 57 to 60, which, among other things, extend the power in Clause 20 to make regulations to the devolved Authorities. If that is the case, I am very grateful and may not press this amendment.
Amendments 35, 37 and 39 seek to ensure that the consent of the relevant devolved legislatures is sought before a Minister of the Crown can make regulations under Clauses 13, 14 and 16 where the provisions fall within devolved competence. The principle that lies behind these amendments is very simple: respect and co-operation is key to the effective operation of the devolution settlements, and that is what these amendments seek to give effect to.
Amendment 75, to which Amendment 72A is related, seeks to apply the same principle to the powers given to a Minister of the Crown acting alone under Part 3 of Schedule 4. These powers should be exercised in devolved areas, only with the consent of Scottish or Welsh Ministers or a Northern Ireland department, as the case may be. These amendments are not intended to delay matters; they simply seek to obtain the proper respect for the devolved Administrations which is the essence of the devolved settlements.
I am open to correction; it may be that the government amendments meet what I am seeking. However, if they do not go far enough, I invite the Minister to give further thought to my amendments. I beg to move.
Baroness Finlay of Llandaff (CB)
My Lords, I have added my name to Amendment 39, and I am most grateful to my noble and learned friend Lord Hope for the way in which he has introduced this group.
The problem, basically, is that Westminster seems to be trying to make laws that cover devolved matters, which cuts across the democratic mandate of devolved Ministers and legislatures. The consent process has to be in the Bill, and I can see that Amendment 75 would be speedier than Amendment 39, to which I have put my name. I very much hope that the Government will be able to tell us that they accept Amendment 75 or that their amendments will do exactly what that amendment states, as that will be a faster process, from Minister to Minister, rather than having to go through the whole process of debate. However, I do not think that agreements behind the scenes and reassurances that this will be sorted out later will be adequate.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I speak to Amendments 41 and 46 in my name. These amendments would ensure that a substantial policy change in human rights, equality and environmental protection in Northern Ireland may not be effected by the exercise of delegated powers. Given the ongoing lack of a functioning Executive and sitting Assembly, this raises serious concerns about the implementation of the Bill in Northern Ireland, and the amendments in my name would add a helpful safeguard in these challenging circumstances. Therefore, to be brief, I ask the Minister to give careful consideration to, and accept, the amendments as a means of ensuring that the devolution settlement in Northern Ireland is protected and that issues of equality and human rights and environmental considerations are all protected, as required under the Good Friday agreement.
Baroness Humphreys (LD)
My Lords, I shall speak briefly to amendments in this group tabled by the noble and learned Lord, Lord Hope of Craighead, to which I have added my name, and I thank him for introducing the amendments so clearly and comprehensively.
I am grateful to the noble Lord the Minister—or perhaps to the noble Baroness, Lady Neville-Rolfe—for the concessions the Government have brought to Report. The Bill is in a better state than when we first debated it at Second Reading, and many of the House’s concerns have been addressed, but there remain some significant issues pertaining to the Bill on which I hope that the Minister will look favourably.
The amendments deal with obtaining the consent of the devolved legislatures to the making of regulations that fall within their devolved competence, and equivalence of powers for Ministers where the provisions of regulations again fall within the devolved competence of the legislatures. It is clear that these amendments do not seek additional powers for the devolved legislatures; they merely secure those powers that the legislatures already have—powers devolved to them by this Parliament but which the Bill ignores or chooses to overlook.
One of my main concerns about the Bill in its original form was that it usurped the powers of this Parliament and those of the devolved legislatures, and this view was echoed across the House. In Committee, I was heartened to hear strong and powerful speeches from those on Benches across the House in support of the devolved Administrations and legislatures, and I thank those who spoke for their support.
The noble Baroness, Lady McIntosh of Pickering, reflected my view when she said—and I hope my précis of her comments does her justice—that she might not necessarily support a political party in power in a devolved legislature, but that her focus and support was on the legislature itself. I think that reflects the view of many in this House, and certainly those on these Benches.
In his letter to us, the Minister said that he had listened to the House and, in fairness, he has—to an extent. I hope he is still in listening mode and, as I said earlier, will be able to look favourably on these amendments.
Finally, as this will be my last contribution in debates on the Bill, I express my gratitude to the noble and learned Lord, Lord Hope of Craighead, for the part he has played in its progress and improvement. His leadership, knowledge of constitutional and devolved matters, forensic legal analysis of the Bill, and tenacity have made a massive contribution and have led us to where we are today. We have an improved Bill, and it can be improved further by the Minister accepting the noble and learned Lord’s amendments. In the event of him wishing to press any of them to a vote, he will have the support of these Benches.
Lord Wigley (PC)
My Lords, not having taken part in earlier stages, I will say no more than a sentence to thank the noble and learned Lord, Lord Hope, for proposing this amendment and to agree with the previous speakers about devolved powers.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, I too thank the noble and learned Lord, Lord Hope of Craighead, the noble Baroness, Lady Ritchie of Downpatrick, and other noble Lords who have contributed to this debate, to all the extensive and useful debates we had in Committee, and—this is important—for the useful engagement that has taken place on the devolutionary aspects of the Bill.
The Government have listened carefully to the concerns raised both in the debates in Parliament and by the devolved Governments and have tabled the government amendments in this group in response. Amendments 52 and 53 extend the power to make consequential provision under Clause 20 for the devolved authorities. Amendment 58 extends the power to make transitional, transitory and savings provisions under Clause 23 to the devolved authorities. These amendments will make the consequential power and the power to make transitional, transitory and savings provisions concurrent powers. This will enable UK Ministers and the devolved Governments—or both acting jointly—to exercise the powers in devolved areas.
The remaining government amendments, Amendments 54, 55, 56, 57, 59, 60, 65, 66, 67, 70, 71, 72 and 77, are consequential. They will remove the requirement for the devolved Governments to request the UK Government to make such changes on their behalf. Furthermore, these amendments will align these powers with the other powers in the Bill, which are also conferred concurrently on the devolved Governments.
I hope that noble Lords will agree that this is a meaningful change to the Bill that demonstrates the UK Government’s commitment to working collaboratively with the devolved Governments—which we talked about in Committee—and ensuring that the Bill works for all parts of the UK. Amendment 71 is a further technical amendment that I think everybody is happy with.
Amendment 17, tabled by the noble and learned Lord, Lord Hope of Craighead, is to Clause 7. As we have now extended the power to make consequential provision under Clause 20 on devolved authorities, he is right that it is no longer necessary.
I turn to Amendments 35, 37, 39 and 75, which relate to powers under Clauses 13, 14 and 16 and Schedule 4. Amendment 35 requires that the power to restate REUL cannot be used to restate it in areas of devolved competence unless the relevant parliament has provided legislative consent for the retained EU law to be restated. Amendments 37 and 39 place similar requirements on the power to restate under Clause 14, and on the powers to revoke or replace under Clause 16.
In essence, these amendments would carve out regulation within areas of devolved competence in the absence of legislative consent. As has been said, Amendment 75 similarly seeks to impose a requirement for a Minister of the Crown to seek legislative consent when using the powers on legislation within areas of devolved legislative competence. These amendments are unnecessary. The UK Government are committed to ensuring that the provisions in the Bill, including its powers, are consistent with the devolution settlements and work for all parts of the UK. Indeed, the majority of the powers in the Bill are conferred concurrently on the devolved Governments, which will enable them to make active decisions regarding their retained EU law.
It is not necessary to limit the use of the powers within areas of devolved legislative competence by requiring UK Ministers to obtain legislative consent. Rest assured, the concurrent nature of the powers is not intended to affect the devolution settlements, nor to influence decision-making in devolved Governments. Rather, it is intended to reduce additional resource pressure on the devolved Governments by enabling the UK Government to legislate on behalf of a devolved Government where they do not intend to take a different position.
Let me move on and address Amendments 41 and 46, eloquently spoken to by the noble Baroness, Lady Ritchie of Downpatrick. Her amendments would restrict the exercise of the powers to revoke or replace and the power to update. They require that any replacement instruments could not effect substantial policy change relating to human rights, equality or environmental protection that has effect in Northern Ireland. The Government intend to maintain the UK’s leading role in the promotion and protection of human rights, equality, the rule of law and environmental protections. We are proud of our long and diverse history of freedoms. The Government do not intend to undermine our hard-won human rights, equality and environmental legislation through the exercise of these powers. I should perhaps add that we are committed to ensuring the UK’s compliance with our international obligations, such as our human rights obligations. I therefore do not judge that the proposed restrictions to this clause are necessary.
Amendment 61 in the name of the noble and learned Lord, Lord Hope of Craighead, is no longer necessary in the light of the amendments that the Government have tabled in relation to Clause 23.
Finally, I turn to the noble and learned Lord’s latest amendment, Amendment 72A. It relates to Amendment 76, which we discussed in the previous grouping and which seeks to insert a new paragraph in Schedule 4 to the Bill. As Amendment 76 has fallen away, this amendment is now redundant.
Let me say that we have come a long way on this part of the Bill, as has been acknowledged on all sides. For all the reasons I have outlined, I ask that these amendments be withdrawn or not pressed.
Lord Hope of Craighead (CB)
My Lords, I am grateful to all noble Lords who spoke in this debate; I am particularly grateful to the noble Baroness, Lady Humphreys, for her very kind words.
I listened carefully to what the Minister said. I am grateful for her assurance that Amendment 17 is not required; that was my impression, so it is nice to have confirmation of that from her.
As far as the other amendments are concerned, I take the point that increasing pressure on resources is something that we should try to avoid. I see the value of joint working, which is really what the Minister described to us in her reply. I recognise that the Government have gone a long way in their amendments in this group, for which I am extremely grateful; I am sure that all others who care about devolution would say the same.
I will not press the amendments, but I hope that the message is still powerfully in the mind of the Government that continued co-operation and easing of the pressures round about to achieve a consensus across the board is the way to proceed if we possibly can. I think that the signs behind the scenes are that that can be achieved. I am grateful for that. For that reason, I beg leave to withdraw my amendment.
Lord Hope of Craighead
Member's explanatory statement
Inserted paragraph (b), which this amendment seeks to remove, could undermine legal certainty and risk bringing the judiciary into the political arena.
Lord Hope of Craighead (CB)
My Lords, this is an entirely different group. Amendment 18 deals with the provisions relating to the role of the courts in reforming our law in the light of our withdrawal from the European Union.
This group contains various amendments in my name, which fall into two parts. Both relate to the provisions of Clause 8, which is designed to deal with the subject matter that I just mentioned. The first part—Amendments 18 to 29—is concerned with the role that the courts will play in reforming our domestic case law as we depart from retained EU case law. The second part—Amendments 30 to 34—is concerned with the role of the Lord Advocate in the making of references to the courts on points of law regarding retained case law. The noble Lord, Lord Anderson, has kindly added his name to my amendments in the first group but, for reasons that I can well understand, he has not gone that far in relation to my amendments about the Lord Advocate.
I can be very brief about the first group because the Minister has now added his name to two of my amendments in it, for which I am grateful; these are Amendments 24 and 27. He has also added two consequential amendments of his own.
My amendments were designed to do two things. The first was to simplify the work of the courts in this potentially difficult area and preserve legal certainty. The second was to give the courts a discretion to decline to accept a reference by a lower court or tribunal on retained case law in place of the obligation to do so, which is what the Bill currently provides. The obligation was an obstacle to efficiency in the running of the courts. It never made sense for the senior courts to be so encumbered by worthless or unnecessary references as to be unable to conduct their business in the way they would wish to do.
I am very pleased that the Government have now accepted that the senior courts should have that discretion and that, in the Bill as currently drafted, “must” should be changed to “may”. It means that good sense has prevailed and that the courts will not have to accept a reference on points that have already been decided or would be better dealt with under another reference that is already pending or one that has no reasonable prospect of success. That is extremely helpful; I know that, for his part, the President of the UK Supreme Court is also grateful to Ministers for making that concession.
The Minister has not gone as far as I would have liked on my other amendments, but I am not going to look a gift horse in the mouth, if I can put it that way, so I will not press those amendments.
As for the second group, relating to the role of the Lord Advocate, the Lord Advocate has written to the Secretary of State more than once to explain her concerns, which I have tried to capture in my amendments. She is seeking parity with the UK law officers in the exercise of the functions to which this clause refers. Her point is that her role is not thought to be a political one in furtherance of Scottish government policy; nor should it be thought that she exercises her role collectively with the Scottish Ministers. She values her independence, which is crucial to the position that she occupies as the senior law officer in Scotland.
I do not think that it would assist the House if I were to develop these arguments further now, but I would be grateful if the Minister would undertake to ask the Secretary of State to look at this issue once again, one more time, so that a proper balance can be achieved. I beg to move.
Baroness Ludford (LD)
My Lords, I will be brief. I lend the support of these Benches to the important amendments from the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Anderson of Ipswich. They might seem perhaps a little specialised, but they are extremely important. There might not be any intention to press any of these amendments to a vote, but I do hope that the Government will see their way to taking on board more than they have already in the two amendments from the noble Lord, Lord Callanan.
These amendments are about trying to remove threats to legal certainty and therefore to increase legal certainty, respecting the courts and their ability to run their business efficiently and removing the peril of the court being asked to venture into political and policy matters. We know about the flak to which the courts have been exposed—including, it has to be said, not being defended by the person in government who should have defended them.
It therefore seems perverse that the Bill, as drafted, would increase the likelihood of the courts being exposed to being hanged, drawn and quartered, as we have seen on the front pages of certain newspapers at various times. So there is a desire to get more predictability and certainty into the law, and more discretion for the courts to run themselves as they see fit and not have to do things that would get them into shark-infested waters. So, even though it seems that these important amendments will not be determined by the House today, I hope that the Government will reflect before Third Reading and see the wisdom behind them.
Baroness McIntosh of Pickering (Con)
I am sorry to speak out of turn, but I entirely support all the amendments in this group. In particular, I endorse the plea of the noble and learned Lord, Lord Hope, on the status of the Lord Advocate. Could the Minister clarify, either at this opportunity or at a later stage of the Bill, the points that the noble and learned Lord made, because it would not be acceptable for the Lord Advocate to be treated differently from any other law officer in the land?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, in view of the fact that the most important and contentious amendment to the Bill, which has been moved by the noble and learned Lord, Lord Hope, is fully agreed and accepted by the Government, and that other amendments are not being moved—although I will deal with the Lord Advocate point—with your Lordships’ permission, I will take this quite shortly, especially having regard to the clock. But that in no way underestimates the importance of the issues we are debating.
First, the Government are extremely grateful to the judiciary and other stakeholders for drawing our attention to the issue of “may” rather than “must”. I am extremely grateful for the dignified and discreet way in which those matters have been resolved to everyone’s satisfaction. The central point that the courts should have the relevant discretion is accepted and, as I say, the Government are pleased to adopt the amendments of the noble and learned Lord, Lord Hope.
As to the remaining amendments in the group, the Government share the desire of the House that the role of the courts should be as simple as possible. We do not consider that the way the Bill is currently drafted drags the courts into some kind of political controversy. I am not able to give the noble Baroness, Lady Ludford, the undertaking she seeks that we shall further consider those amendments. Of course, nothing is ever ruled out, but it would be wrong for me to say that it is currently the Government’s intention to propose further amendments to the Bill. I can go into this in more detail one by one and perhaps, if the noble Baroness has a moment, I can explain the Government’s position bilaterally. I am very much in the hands of the House but, as these amendments are not actually being moved, I do not feel that it is right to take up time explaining why the Government take the position that we do. However, the Government’s door is always open to discuss particular points with any noble Lord.
I simply say that the tradition of common law has enabled the law to evolve over centuries, while preserving a reasonable degree of predictability. That technique is well known in the United Kingdom and I have no doubt that it will continue to be honed and progressed in the future.
As to the specific amendments on the powers of the Lord Advocate, I confess to some diffidence in the face of the pre-eminence of the noble and learned Lord, Lord Hope, on Scots law and other matters. At present, the Government do not feel that we should accept the proposed amendments. Amendments 30, 32, 33 and 34 would allow the Lord Advocate to intervene in any case, irrespective of whether the issue was a devolved matter under Scottish legislation or a reserved matter in which the relevant competence is exclusively that of the United Kingdom. That is our understanding of the effect of the amendments. The Government’s position is simply that that change would be constitutionally inappropriate. In our view, references and interventions by the Lord Advocate, a Minister in the Scottish Government, are quite properly restricted to legislative matters within the devolved competence of the Scottish Government. That is the Government’s position on that broad issue.
Finally, Amendment 31 would none the less give the Lord Advocate intervention powers not only in Scottish legislation, which is what the Act is about, but also for certain retained functions of the Lord Advocate. Here I very much bow to others’ more detailed knowledge of what exactly these retained functions are. The Government’s understanding is that they relate mainly to the prosecutorial functions, since it is the Lord Advocate who is ultimately responsible for criminal prosecutions in Scotland. The nearest analogy outside Scotland is arguably to the DPP for England and Wales or the DPP for Northern Ireland.
The Government therefore respectfully oppose this amendment since, first, no similar powers are conferred on the DPPs in England, Wales or Northern Ireland. Secondly, the devolved powers to intervene in relation to the devolved law officers are limited to legislation, as exhaustively defined in the case of Scotland, Wales and Northern Ireland, and there does not seem to be any clear reason for treating Scotland differently from the other devolved Administrations.
Thirdly, and again the Government are open to correction, it is difficult to see how, in practice, the amendment might bite in any practical way. Fourthly, any blurring of the line beyond the scope of devolved legislation, as defined in the Bill, is not shown, in the Government’s view, to be sufficiently justified and would be outside the scheme of the Act. So, essentially for those reasons, the Government will not be able to accept the amendments in relation to the Lord Advocate and I respectfully ask the noble and learned Lord, Lord Hope, not to press his amendments in that regard.
Lord Hope of Craighead (CB)
My Lords, I am very grateful to the Minister for his careful reply. On the point that we are agreed upon, the change of the word “must” to “may” may seem a very minor change, but words matter a great deal and it is a very significant change indeed. That is why I express gratitude to the Minister and, on his behalf, the gratitude of the president of the court for accepting that change, because it makes a great deal of difference to the court and the way in which it can organise its business. It can be relied upon, I think, to exercise its functions under the Bill to the fullest degree in seeking to achieve the aim, which is, as speedily as possible, a return to our own system of law from what we have inherited from the European Union.
As for the retained functions of the Lord Advocate, the word “retained” is really referring to pre-devolution functions. The Minister is quite right that the principal function of the Lord Advocate before devolution, which is retained, is the right to continue the whole responsibility of conducting criminal prosecutions in Scotland. There is something that he has missed out: it is perhaps not very significant, but investigation of deaths is also a function of the Lord Advocate which is retained.
I think all I can say is that I appreciate the thought that has been given to the Lord Advocate’s request. Of course, she is disappointed that the view has been taken that everything she is asking for cannot be given to her and we will just have to see how the system works out. Of course, it is all a matter of making references to the court. No doubt, in the course of argument, things may be presented which the court can consider if they are on the fringes of what is described in the Bill, or the Act as it becomes.
Words matter: again, the court will look at the reference and see whether it is something that it can accommodate within the wording of the legislation. So, I am grateful to the Minister for his careful reply and the thought that has been given to it and I will not press those amendments. For the reasons I have given, I beg leave to withdraw Amendment 18.
Lord Hope of Craighead
Member’s explanatory statement
This amendment seeks to preserve the court’s discretion to refuse to accept a reference, which is a necessary safeguard against abuse.
Lord Bellamy
Member’s explanatory statement
This amendment is consequential on the amendment at page 7, line 39.
Lord Hope of Craighead
Member’s explanatory statement
This amendment seeks to preserve the court’s discretion to refuse to accept a reference, which is a necessary safeguard against abuse.
Lord Bellamy
Member’s explanatory statement
This amendment is consequential on the amendment at page 8, line 3.
Retained EU Law (Revocation and Reform) Bill
Monday 15th May 2023
(11 months, 2 weeks ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-II Second marshalled list for Report - (15 May 2023)
21:20 - Division on Amendment 48 - Ayes: 142 / Noes: 132 - Amendment 48 agreed.
21:48 - Division on Amendment 50 - Ayes: 130 / Noes: 131 - Amendment 50 disagreed.
Lord Hope of Craighead
“(3A) The power of a relevant national authority to make regulations under subsections (1), (2) and (3) is subject to the provisions of Part 3 of Schedule 4.”Member’s explanatory statement
The purpose of this amendment is to enable Parliament and the devolved legislatures to overrule the Executive and express their own view as to the contents of regulations that are to be made under this section.
Lord Hope of Craighead (CB)
My Lords, this quite short group of amendments is concerned with Clause 16. It is a very worrying clause, for various reasons. My amendment seeks to tie the power of the relevant national authority to exercise the regulation-making power under this clause to the provisions of Part 3 of Schedule 4.
My Amendment 76, which we have already discussed, relates to Part 3 of Schedule 4. The point is to make sure that the regulation-making power is subject to parliamentary scrutiny. That is true not only of the UK Parliament; it applies also to the Senedd in Wales and the Northern Ireland Assembly. The Scottish decision has been that the power should remain with Ministers, and that is a matter that can be left to them.
The really important point is to make sure that the regulation power is subject to Amendment 76, which I am seeking to make on Wednesday. I do not think I need to say any more about this because the more important amendment is Clause 16 stand part. I am sure that the noble Baroness, Lady Chapman, will make clear the position regarding the defects in the clause that gave rise to her amendment. She will do that far better than me so I shall simply leave it at that. I beg to move.
Lord Lucas (Con)
My Lords, I have Amendment 41A in this group. We discussed this issue in Committee. I said, “If the Government want to go down the route of keeping in Clause 16(5), why don’t they promise the same about the environment?” After all, the Government made the same set of promises regarding environmental legislation—that they would not do anything to damage the protection that the current regulations offered—while here in Clause 16(5) they are saying they will not do anything to increase the regulatory burden.
The Government wisely said they did not want to put in the Bill the promise that they would not damage environmental regulation. I had rather hoped that meant they would take out Clause 16(5), because to my mind that subsection offers nothing but uncertainty. How is it to be interpreted by the courts if the Government propose to use the clause and someone challenges its use in the courts, saying, “This subsection says ‘in relation to a particular subject area’. Has that been reasonably chosen and correctly defined? What is the overall effect of the changes?”? They will have to look at every piece of legislation that has passed in relation to that particular subject area. How are they to be weighed up? There is no mechanism here providing for them to be weighed.
The courts are going to be asked how one bit of legislation should be weighed against another with regard to the changes that it makes and the regulatory burden. How do you weigh one bit of regulatory burden against another if one bit of regulation imposes something on one group and the next regulation imposes something on another? How do you weigh those two things together? It seems to be asking the absolute impossible. It means that any bit of legislation passed under Clause 16 will be open to all sorts of challenges in the courts, and there will be no way of knowing what the outcome will be, because nothing in this subsection, or elsewhere in the clause, tells you how to parse it. So I hope the Government will see the good sense they had when they chose not to adopt my suggestion of doing this for environmental legislation and take Clause 16(5) and (6) out of the Bill.
Baroness Bennett of Manor Castle (GP)
My Lords, I agree with the entirety of Amendment 41A from the noble Lord, Lord Lucas, while agreeing with only half his reasoning. I entirely agree that, as we discussed at length in Committee, this is essentially impossible to calculate and creates a great deal of legal uncertainty. Where I disagree with him is that I would very much like to have seen non-regression clauses for the environment, public health, workers’ rights and a whole range of other things in the Bill.
Practically, what we are doing with the clause at the moment, if it is implemented, is creating a guaranteed regression of workers’ rights, food standards and environmental standards. If we do not have regulation of business, we will certainly see at least some cowboy businesses taking advantage of a reduction in regulation. That of course will not be in the interests of businesses that want to do the right thing on the environment, public health or workers’ rights.
I spent a great deal of time during the passage of the Environment Act and the Agriculture Act arguing for non-regression clauses. What the Government are currently giving us is a guaranteed regression clause, and that really should not be acceptable.
Lord Fox (LD)
My Lords, as the proposer of Amendment 45, which is also in the names of the noble Baroness, Lady Chapman, and the noble Lord, Lord Hacking, I feel a terrible weight resting on my shoulders as a result of the preface from the noble and learned Lord, Lord Hope, because this is the amendment that seeks to remove Clause 16 and I fear that I am not going to reach the billing that he gave us.
Over the course of this session, we have heard numerous arguments about the way in which the Bill more and more removes Parliament from the process of revocation and reform. I am not going to rehearse all those arguments again, because your Lordships have heard them both on Report and in Committee. Clause 16 is one of the key parts of the machinery in the Bill to govern how retained EU law can be reformed. There is an argument for removing the clause altogether, but I have bowed to the spirit of scrutiny rather than total oblivion and, as such, I do not intend to move the amendment.
As we have already heard in advance from the noble Lord, Lord Lucas, the provision that causes most concern is Clause 16(5), which mandates the nature of any reform of REUL to be deregulation—and deregulation only. The point the noble Lord made is about how we measure the sum of regulation. There was all sorts of debate in Committee. Is it the total of the changes across a group of amendments or a section of amendments? Is it each amendment by itself? These questions were never satisfactorily answered in Committee, so perhaps during Report the Minister can tell us how the amount of regulation will be measured. In other words, can one increase in regulation be balanced by two decreases in regulation through adjacent provisions, for example? We have not had answers to that.
Essentially, the spirit of the Bill is that there can be no increase in the “burden”—according to the Bill—caused by this reformed retained EU law. Clause 16(10) defines burden, with its paragraph (b) including “administrative inconvenience”, but one person’s administrative inconvenience is another’s life-saving safety measure. It depends on which direction you look at it. Clause 16(10)(d) includes
“an obstacle to efficiency, productivity or profitability”
as a burden. Again, what may seem an obstacle to one group may be existentially important to another.
As I said, I am not aiming to push this amendment to a vote. We are seeing amendments that are putting some safeguards in place. The noble Lord mentioned Amendment 76, which we anticipate. I am anticipating Amendment 48 in the name of the noble Lord, Lord Krebs, where we will talk about non-regression, and Amendment 50, which will come up shortly. These are other important pieces to put in place to try to draw the majority of the sting from Clause 16.
Lord Hacking (Lab)
Clause 16 has always been the most offensive clause in the Bill because it was giving excessive power to the Executive and no power to Parliament. But on the horse, if I may put it that way, of the amendments of the noble and learned Lord, Lord Hope, who really has provided enormous assistance to us during the passage of the Bill, and knowing therefore that the assimilated law to which we are now directed will also be subject to the provisions to which he has already succeeded—twice over now—in getting the acceptance of the House, we are protected. Because of our protection under the noble and learned Lord’s amendments, I am happy with this amendment not being moved. I joined the noble Lord, Lord Fox, and my noble friend Lady Chapman of Darlington in signing it but, on the basis only of the work that the noble and learned Lord, Lord Hope, has provided, I am prepared to join the noble Lord, Lord Fox, in not moving this amendment.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, I am grateful for the comments that have been made. It might make sense if I start with Amendment 45, tabled by the noble Lord, Lord Fox, which would remove this clause from the Bill altogether. I am very glad that he will not move it; I think that is the right approach.
The powers to revoke or replace are needed to enable the Government to overhaul EU laws in secondary legislation across different sectors of the economy. We know that some of them are outdated or unduly burdensome. Better and simpler regulation, perhaps with less complex bureaucracy, can increase productivity growth, which has been slow and a huge problem for our economy. It can also help enterprise and assist SMEs, which suffer more than anyone else from red tape.
We worked together in this House on the Procurement Bill, which was an important step in getting rid of retained EU law and helping small business. We can do so much more without losing necessary protections. I speak as someone who has worked in business; businesses are always being blamed for liking regulation, but there are changes that we can make.
The REUL dashboard has identified over 4,800 pieces of retained EU law across 16 departments. Some will be repealed by the revocation schedule, as we have heard today; others reflect—I think this is important—international obligations, which will remain in place. There are many areas where reform can be beneficial and bring about the post-Brexit boost that we have promised. However, the Government’s retained EU law substance review in 2021 highlighted a distinct lack of subordinate legislation-making powers to remove retained EU law from the UK statute book, because in the past we have relied on Brussels for regulatory powers to drive change. It is now vital that we have a power capable of acting on wide-ranging retained EU law across different policy areas.
Lord Hope of Craighead (CB)
My Lords, I am grateful to the Minister, as I am sure are others who have spoken in this debate, for her careful reply to the points that have been made. There is no doubt that the wording of Clause 16 gives rise to concern, particularly the width of subsections (2) and (3), and, according to the points made by the noble Lord, Lord Lucas, subsection (5). One cannot rule out the possibility of judicial challenge because, while primary legislation is not justiciable, delegated legislation is. I find it difficult to predict what a court would make of subsection (5) for the reasons that the noble Lord, Lord Lucas, has given.
As for subsections (2) and (3), my Amendment 76 would remove much of the concerns. What I was offering was a package. In a way, Amendment 76 remains: it will still be there whatever happens to Amendment 40; the protection we are seeking to provide will be available there. Without taking up more of your Lordships’ time, I thank the Minister for her reply and seek leave to withdraw Amendment 40.
The Earl of Caithness
“(3) In subsection (1)(b), developments in scientific understanding must be identified based upon regular reviews of the scientific evidence.(4) When undertaking a review of scientific evidence referred to in subsection (3), the relevant national authority must consider the methodological quality of the evidence, in terms of the extent to which all aspects of a study's design, data collection protocols and statistical analysis can be shown to protect against systematic bias, non-systematic bias, and inferential error.(5) Where regulations under subsection (1) constitute environmental law, the review of scientific evidence must also consider whether the evidence takes a sufficiently wide view of the ecological impacts.”Member’s explanatory statement
This amendment is to ensure that future regulations will be based on a proper assessment of the best science available.
The Earl of Caithness (Con)
My Lords, we move from powers to revoke or replace to powers to update. I am very grateful for the support that I have got from the noble Baronesses, Lady Willis of Summertown and Lady Bennett of Manor Castle, on this amendment. I express the apologies of the noble Baroness, Lady Willis, who was in your Lordships’ House earlier this afternoon but has had to go back to Oxford. She did very well to come up here for the time that she did, given the timetabling of the debate today.
There has been increasing concern that aspects of environmental policy have been and are being formulated based on evidence that is questionable in its methodology and therefore reliability. Our amendment seeks to remedy that by ensuring that future regulations will be based on a proper assessment of the best scientific evidence—and not only that, but the evidence needs to be assessed using standardised approaches to ensure robust outcomes.
Our proposed new subsection (3) would require regular reviews of the scientific evidence. There has been a lot of specious talk about the Government resiling on European standards on environmental laws, as if they were an unimprovable factor as enacted. Much more worrying, surely, is the automatic adherence to what is law without question, setting more concrete rules that damage the environment.
Back in 2004, a Cabinet Office paper stated that
“policy-makers need to understand the value of evidence, become more informed as to what evidence is available … and critically be able to appraise it”.
Indeed, the noble Lord, Lord Krebs, who I am delighted to see in his place, in one of our debates on the Genetic Technology (Precision Breeding) Bill, stated that
“scientists do not absolutely agree on everything”.
He went on to say that
“when there is a centre of gravity of opinion, there are always outliers. Sometimes those outliers turn out to be right and there are transformations”.—[Official Report, 25/1/23; cols. 221-23.]
A good example of a recent transformation are the outcomes of interim results from a 20-year study by York University into moorland management, which the Government must take note of and study carefully. Policy must reflect broader approaches to conservation and be a living entity that can change as our knowledge of both ecological processes and individual contexts changes.
There is another point to make, which is that research must be allowed to continue. Recently, I read an example where the precautionary principle was being used as a reason to block research. The Game & Wildlife Conservation Trust wished to undertake research to provide more evidence but was refused permission to burn very tiny experimental plots on EU-designated sites because Natural England could not give consent, as the current habitat directive gives no exemption for experimental work or any sort of de minimis rules. In my view, the argument is both circular and not proportionate. Does my noble friend the Minister—I am delighted to see my noble friend Lord Benyon answering this debate—believe that there should be a presumption that scientific research is permitted? If not, how do we reduce the scientific uncertainty about sites or issues in question, and how can the Government legislate properly?
Proposed new subsection (4) asks that the quality of the scientific evidence is considered and based on standard principles. Not all scientific evidence is the same in quality or validity, and therefore reliability, which is important if directly impacting on decision-making. A standardised protocol would give confidence to all stakeholders involved, including the authors, and prevent unreliable evidence being given due weight, resulting in unintended impacts and wasted effort. For example, Natural England guidance on how to systematically review evidence recommends categorising the different types of study from 1, the strongest scientific studies based on meta-analysis and randomised control trials, to 4—the weakest, as based on expert opinion. This and its evidence standard underpin its approach of putting the best available science at the core of its decision-making. Will that approach be followed throughout government?
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
My Lords, I must inform that House that, if Amendment 48 is agreed to, I will not be able to call Amendment 49 due to pre-emption.
Lord Krebs (CB)
My Lords, I will speak to the cross-party Amendment 48 in my name and those of the noble Baronesses, Lady Parminter and Lady Hayman of Ullock, and the noble Lord, Lord Duncan of Springbank. As always, it is a great pleasure to follow the noble Earl, Lord Caithness; he gave me a namecheck in his speech which I hope to add to my CV, so that for my next job application I can say, “As quoted by the noble Earl, Lord Caithness”.
I support in large part what he said about the importance of rigorous scientific evidence to underpin policy—he referred to the environment, but I would say more broadly. I will add a note of caution from my personal experience. As many noble Lords will know, I was responsible for instigating the randomised badger culling trials, the so-called “Krebs trials”, which were meant definitively to determine whether killing badgers was a good way of controlling bovine tuberculosis. The trial was probably the largest ecological experiment ever done in this country; it did produce results, but it did not settle the arguments or the policy. So science has an important role to play, and I support the noble Earl’s amendment, but we must recognise that political decisions come in as well.
I turn now to Amendment 48. I want to keep it brief so I will say what it is not and what it is. It is not an attempt to block any change. It is also not an alternative to the earlier proposals that came from my noble and learned friend Lord Hope of Craighead to involve Parliament in future decisions. It is not either of those. It supports the Government in their declared ambitions for the environment and for food. In doing so, it also ensures that the Government make good decisions rather than bad decisions. The amendment is about protecting the environment and consumer interests in relation to food.
These two areas—food and environment—are crucial to the REUL Bill, as between them they account for approximately half of the 4,900 regulations that come under REUL according to the current dashboard. At its board meeting in December 2022, the Food Standards Agency noted 800 items related to food and feed. The REUL dashboard reports about 1,700 items related to Defra, most of which concern environmental protection. These two areas are also crucial because of public concern. You have to think only of sewage in rivers, outbreaks of food-borne illness or GM foods to realise that these areas—environment and food—resonate with the public. These two areas also attracted a great deal of debate from your Lordships in Committee.
The amendment that I have proposed has three elements: first, non-regression—which we have already heard about from the noble Lord, Lord Lucas, and the noble Baroness, Lady Bennett of Manor Castle. Any future changes, according to Amendment 48, should not reduce or water down current levels of environmental protection or food safety standards. Nor should they contravene any international agreements to which the UK has committed.
My second point is expert input. This resonates with the amendment in the name of the noble Earl, Lord Caithness. Regulations should not be changed without consulting the relevant experts. These should include the Office for Environmental Protection, the Food Standards Agency and their cognate bodies in Scotland.
The third element is transparency. The amendment would require the Government to publish a report showing how any changes do not reduce environmental or food protections and what advice was received from the experts consulted. As a further transparency measure, the amendment also requires the Food Standards Agency, together with Food Standards Scotland, to report on the impact of any changes resulting from the implementation of this Bill on food safety and other consumer interests in relation to food.
The proposals in these three areas—non-regression, expert advice and transparency—are totally in line with the Government’s own commitments. They have said over and over again that they do not want to weaken environmental protection or compromise food safety and standards. The noble Lord, Lord Benyon, who I am delighted to see is going to respond to this grouping, has himself said that on more than one occasion in your Lordships’ House. This amendment simply formalises these commitments in the Bill. As we heard earlier, Clauses 13, 14, 16 and 17 leave Ministers a great deal of discretionary power. While, of course, we totally trust current Ministers to keep their word, who knows who will be in charge in future? This amendment will ensure that, in the future, Governments will build on the good work that has been done up to now and the promises that have been made.
Outside this House, who supports this amendment? Let me give noble Lords some examples. I asked the Food and Drink Federation whether it supported the food parts of this amendment. The FDF, with more than 1,000 members ranging from global brands to innovative start-ups, represents the UK’s largest manufacturing sector. It says in writing that it is happy to be quoted as supporting this amendment. If the Government wish to be business friendly—and I have heard that said—here is a good place to start: accept an amendment that has the weight of nearly half a million jobs behind it.
Equally, non-regression of environmental protections is supported by the Government’s statutory advisers, the Office for Environmental Protection and the Climate Change Committee, which both said in recent written statements that it is important that the REUL Bill includes a non-regression clause.
The amendment applies to the whole of the UK, and in that context it is noteworthy that the Scottish Government have also written to express their support for Amendment 48.
I hope that in this brief introduction I have said enough to convince your Lordships that this amendment is sensible, proportionate and fully supportive of the Government’s declared commitments on the environment and food. Indeed, I cannot see why on earth the Government would not accept it, and I very much look forward to the Minister agreeing with me. However, if that agreement is not forthcoming, and recognising from Committee that there was widespread support from across the House for the areas of environmental and food protections, I will wish to test the opinion of the House.
Lord Whitty (Lab)
My Lords, I have the third amendment in this group, Amendment 49. Colleagues will have detected that there is a considerable overlap with the amendment in the name of the noble Lord, Lord Krebs, and I was proposing to withdraw my amendment formally in favour of his. He has moved that very ably, and therefore I need not repeat most of the arguments he made.
It is very important, now we have the Joint Committee procedure and all the other changes that the amendments in the name of the noble and learned Lord, Lord Hope, have built into the Bill, that we give some guidance as to how they are to proceed. In relation to issues of the environment and food, the amendment in the name of the noble Lord, Lord Krebs, would make it clear how in part they are to receive guidance on carrying out that function.
I will add just one point to the considerations your Lordships have already heard from the noble Lord, Lord Krebs. These areas are very important for our trade agreements. Environmental standards increasingly appear in our trade agreements, particularly with the EU but with other countries as well. Therefore, any regression of those standards needs to be clear not just from an environmental but from a trade point of view. It is absolutely clear that this must be the case for food. We have an important food manufacturing and agricultural industry, which needs to ensure that the standards to which it produces are the same as or equivalent to those of our trading partners. If that is not the case, some of our best trade agreements will be precarious. The references to international standards and international bodies of advice are very important for the proposed Joint Committee to follow. I therefore hope that those considerations can be taken into account by the House and that the Government will accept the amendment in the name of the noble Lord, Lord Krebs.
Lord Lucas (Con)
My Lords, I am very uncertain how the wording of this amendment works. Is a regulation the whole package of regulations that is submitted to this House or each individual regulation? If a regulation makes changes so that an old provision is swept away and the new one replaces it, that sweeping away of an old provision is a diminution, but there does not appear to be a mechanism for balancing it with the better regulation that follows. If a regulation benefits one species but hurts another, how is that dealt with here? If we protect badgers more so that there are fewer hedgehogs, I do not see how the wording works. Most of all, it seems that if the Government want to keep Clause 16(5) they must want this too, so I shall support the noble Lord, Lord Krebs.
Baroness Parminter (LD)
It is a great pleasure to follow the noble Lord, Lord Lucas, because that is exactly the point I was going to begin on. If you are to keep Clause 16(5), you absolutely need to have this. As my noble friend Lord Fox says, the importance of this amendment is that it takes the sting out of Clause 16. If we want to protect the environment for the future, and our food standards, as was so well articulated by the noble Lord, Lord Krebs, this amendment is absolutely fundamental.
I do not want to add much more to what the noble Lord said, because he introduced it so expertly, but we on these Benches would add one other reason why we support it. It is critical that the public have confidence in environmental legislation, particularly at a time like now. If they see the Government not prepared to sign up to a non-regression clause—which is, as has been said, what the Minister says they want—they will be left with questions. We need them to be reassured that our environment is in the best possible hands, and the only way the Government can prove that in the Bill is to allow this non-regression clause.
Lord Duncan of Springbank (Con)
My Lords, I realise that the hour is late and I do not intend to detain your Lordships long. I speak to Amendment 48. It is a cross-party amendment and this morning, when I began to consider this, I typed up some notes, which I have—but I do not have my glasses and I typed in a font far too small. I feel I am now a speaking metaphor for what the amendment represents. We have to be careful that we are looking not just at the fuzziness of the whole issue but at the detail. The noble Lord, Lord Krebs, ably set out why it is important.
This is a non-regression amendment. We are where we are right now, and we are content with that—if anything, we should be going further, but let there be no step backwards. The important statements in this amendment are very clear: let us accept what we are able to achieve, look at the international standards by which we must be judged and consider how to do that correctly.
I am pleased to see the Minister before us. It is not my intention or desire to vote against the Government, but these things occasionally happen. I think he can give us some words of comfort this evening about how we might help us to be able to understand the non-regression element of each of the matters we have touched on so far.
I will speak no further, other than simply to say that the amendment establishes and stabilises what we are about. We are a nation with clear ambition in this area, and we have done good work. Let us not let that be lost; let us not regress.
Baroness Bennett of Manor Castle (GP)
My Lords, having attached my name to Amendment 47 in the name of the noble Earl, Lord Caithness, and the noble Baroness, Lady Willis, I shall make just a couple of points on that. I stress Amendment 48, to which the Green group would have attached our names had there been space, and the point made by the noble Lord, Lord Krebs, that this is writing into the Bill what the Government tell us again and again, as they have for years, they want to achieve. It is simply delivering the Government’s expressed desire.
I want to make just three points on Amendment 47. There is some important terminology, with which I suspect the noble Baroness, Lady Willis, may have had something to do. That refers to the methodological quality of the evidence. There is increasing awareness in the scientific community of the need to look at the problem of publication bias: the probability that a scientific study is published is not independent of its results. That is just one way in which we have real problems with the methodology of what has been published and the Government have considered in the past, to which the amendment is to some degree addressed.
Proposed new subsection (5) mentions
“a sufficiently wide view of the ecological impacts”.
I will take a case study of this. Scientists are increasingly concerned about the combined cocktail impact of pesticides, plastics and pharmaceuticals together in the environment. I point the Minister to a European report by the CHEM Trust, Chemical Cocktails: The Neglected Threat of Toxic Mixtures and How to Fix It and, independently occurring, a launch this month in the UK of a report from the Wildlife and Countryside Link with the Rivers Trust and UK Youth for Nature, Chemical Cocktails: How Can We Reduce the Toxic Burden on Our Rivers? The scientific view taking that overall wide ecological view is increasingly being recognised as crucial, and massively understudied.
The final point I want to make is that Amendment 47 is reflective of something that I am increasingly finding: groups of scientists—including established scientists whom you might expect that have a very good route into the Government—are coming to me and saying, “Please advise us on how we can get through to the Government to make sure that our scientific advice and discoveries are acted on”. There is real feeling in the scientific community that there has been a breakdown in communication and consideration from the Government in terms of the current science. This amendment seeks to address those issues.
Baroness Hayman of Ullock (Lab)
My Lords, I shall be very brief. I just want to give particular support to Amendment 48, to which I have added my name. We cannot allow the Bill to weaken environmental and food safety standards. We know that Defra has by far the largest share of affected regulations of any department, so the Bill really will have significant implications for environment and food safety law-making unless it is done well.
I will not repeat the reasons why we need these amendments, but what has come across very clearly is the fact that there is widespread and strong support for the environmental non-regression principle.
Importantly, Amendment 48 would give transparency but also legal substance to the warm words of the Minister, as the noble Lord, Lord Krebs, mentioned. On day 2 of Committee, the Minister said that the Government are committed to maintaining high environmental standards and that he wanted
“to see … standards improve in future”.—[Official Report, 28/2/23; col. 208.]
I absolutely believe that is the case but, as a matter of law, the Bill provides no assurances or protections and cannot bind the hands of future Ministers. It is absolutely critical that these assurances and protections are in place in the Bill because, without a non-regression principle in law, they simply are not there.
On that basis, if the noble Earl, Lord Caithness, wishes to test the opinion of the House, he will have our support.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I am grateful for a really interesting debate. Before I begin to address the amendments in this grouping, I say that I know that there was some discussion earlier today regarding Defra’s plans for water quality, particularly the Bathing Water Regulations and the water framework directive. I take this opportunity to reassure noble Lords that neither of these pieces of REUL is on the schedule to this Bill and Defra has no intention of repealing either of these pieces of important legislation. The noble Baroness, Lady Bakewell of Hardington Mandeville, raised this issue, and I absolutely give them that assurance.
Under this Government, we have only strengthened our legislation on water quality. In April, we published our new integrated plan for water, which marks a step change in how we manage our waters. It looks at both water quality and water resources together. We completely understand people’s concerns about our rivers, lakes and seas and the pressures that they face. This plan is our response. In the plan, we set out how we will streamline our water policy and legal framework; this includes the water framework directive 2017. We consider that there are opportunities to improve the regulatory system through reviewing the implementation of the water environment regulations 2017 in order to improve water outcomes on the ground while retaining our goal to restore 75% of water bodies to good ecological status.
I turn to Amendment 47, moved by my noble friend Lord Caithness. This amendment would introduce specific statutory requirements on Ministers when deciding what updates may be appropriate under the power to update in Clause 17 in the light of scientific developments. The amendment would also require that, where Ministers intend to exercise the power on legislation relating to environmental law, the review of scientific evidence must consider whether the evidence accounts for the ecological impacts. I say this to my noble friend: the power has purposely been drafted in this way both to allow for broad technical updates and to ensure that it captures the wide range of REUL across a variety of policy areas. We cannot predict the nature of scientific developments or technological changes to which REUL may be subject, nor the changes that might be appropriate in those instances in future.
I totally agree with my noble friend’s point about outliers. As he said, we had this debate during the passage of the Genetic Technology (Precision Breeding) Bill. I constantly challenge the scientific advice that I receive in Defra to make sure that we are not creating the opposite of diversity or a sort of monogamous view of scientific progress. Outliers are the best challenge to that occasional tendency to be too absorbed in one particular group of views. This has been very eloquently described by notable international conservationists such as Allan Savory. That ability to have only research that is peer-reviewed sometimes requires those commissioning science to look more broadly. That is what we try to do, and I assure my noble friend that his points are well received. However, I gently suggest that placing statutory requirements on Ministers in the use of this power, including the requirement for scientific updates to be based on the latest evidence, is simply not necessary.
First, public bodies are already under public law duties to act reasonably and to consider relevant factors in decision-making. Secondly, Ministers will need to be reasonable and consider the relevant scientific evidence when evaluating whether updates, and what updates, may be appropriate. Provided a Minister acts reasonably and considers the relevant factors, it is ultimately for them to decide what is considered an appropriate amendment in light of a change in technology or development in scientific understanding.
The UK is a world leader in environmental protection and, in reviewing our REUL, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. Furthermore, this Government have been clear throughout the passage of the Bill that we will uphold our environmental protections. We remain committed to our ambitious plans set out in the net zero strategy, the Environment Act and the Environmental Improvement Plan 2023, which sets out the comprehensive action we will take to reverse the tragic decline in species abundance, achieve our net-zero goals and deliver cleaner air and water. The provisions in the Bill will not alter that. I therefore suggest that the requirements of this amendment are not necessary.
The proposed new clauses in Amendments 48 and 49, tabled by the noble Lords, Lord Krebs and Lord Whitty, respectively, establish a number of conditions relating to environmental protections and food standards that Ministers must meet when intending to use the powers under Clauses 13, 14, 16 and 17. They include satisfying a range of conditions in the amendments so that environmental and consumer protections relating to food safety and labelling will be maintained and that the proposed new regulations do not conflict with a specific list of existing international environmental agreements. They also introduce a new procedural requirement which Ministers must meet to be eligible to exercise the powers. This includes seeking advice from relevant stakeholders and publishing a report addressing specific points concerning environmental and consumer protections for the new regulations.
Amendment 48 seeks to insert a new subsection into Section 4 of the Food Standards Act 1999, introducing a requirement for the Food Standards Agency to include in its annual report an assessment of the impact of the delegated powers on areas of concern to consumers relating to food, under that section of that Act. These new and broad-ranging provisions would have a severe impact on the Government’s ability to use the Bill to legislate and deliver on our environmental and food goals, due to the resource-intensive nature of the conditions proposed.
Moreover, the list of relevant international obligations set out in the amendment is far from comprehensive and would become rapidly outdated in the context of ever-evolving international legislation. The delegated powers in the Bill are not intended to undermine the UK’s already high food standards, nor will they impact the UK’s status as a world leader in environmental protection. Indeed, this Government are committed to promoting robust food standards nationally and internationally, so we can continue to protect consumer interests, facilitate international trade—a very good point made by the noble Lord, Lord Whitty—and ensure that consumers can have confidence in the food they buy. The UK has world-leading standards of food safety and quality, backed by a rigorous and effective legislative framework.
Under the Food Standards Act 1999, the FSA already has as its core statutory function the objective of protecting public health from risks that may arise in connection with the consumption of food, including risks caused by the way it is produced or supplied, and protecting the interests of consumers in relation to food. The Bill and the powers in it do not change that. Accordingly, the FSA would already have to consider the effect on public health of any legislation that it would ask the relevant Minister in its sponsor department, the Department of Health and Social Care, to make in relation to food before that legislation would have effect. Alongside this, Defra maintains a well-established set of relationships with the agrifood sector, broadly aimed at upholding the sustainability, productivity and resilience of the sector. This includes representation, from farm to fork, of around 150 major food and drink companies and trade associations, as well as a range of industry CEOs and senior figures, to discuss strategic opportunities and challenges facing the agrifood chain.
We also want to ensure that, in reviewing our REUL, environment legislation is fit for purpose and able to drive our positive environmental outcomes. I take the point very eloquently made by the noble Baroness, Lady Hayman, but this is much more than warm words: we have written into law our environmental protections, our ambitions for reversing the decline of species and, in very strict food legislation, on the health of food.
The REUL that we are revoking as part of the schedule to the Bill is obsolete, expired, duplicated or no longer relevant to the UK. It is not required to uphold environmental protection. For example, around half of fisheries REUL can be removed as it is no longer relevant, has expired or relates to areas we do not fish in. For example, I am sure all noble Lords will agree that REUL setting fishing opportunities for anchovy in the Bay of Biscay for the 2011-12 fishing season, which has now expired and is no longer applicable in the UK, is pointless to have on our statute book. Therefore, the proposed conditions on food standards and environmental protections are simply unnecessary. The reforms these powers will enable are vital to allow the UK to drive genuine reform and seize the opportunities our new status allows.
I enjoyed being on the same side as the noble Lord, Lord Krebs, on previous legislation. I hope that my attempt at honeyed words might have got him onside, but we will have to see how that goes. There are two reasons, by and large, why Governments resist these kinds of amendments: first, they are not necessary—there is already law to provide for the measures the amendments seek—and secondly, they are too burdensome. For these two amendments, I submit, both those factors come into effect: they are not necessary and they are too burdensome, so I ask that they not be pressed.
The Earl of Caithness (Con)
My Lords, I am extremely grateful to all noble Lords who took part on my amendment, and those from the noble Lords, Lord Krebs and Lord Whitty, because we have had a very useful debate. I strongly agree with the noble Baroness, Lady Parminter, that the public must have confidence in our environmental laws. That is the basis of how we should go forward, and I think the Minister tried hard to reassure us that that was the case. I need to read exactly what he said; he said some helpful things in reply to my amendment. I just wish that the other Ministers in Defra took exactly the same view as he did with regard not only to regulations but new legislation. However, I am grateful for what he said, and I beg leave to withdraw my amendment.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, if Amendment 48 is agreed to, I cannot call Amendment 49 for reasons of pre-emption.
Amendment 48
Lord Krebs
“Environmental protection and food standards(1) Regulations may not be made by a relevant national authority under section 13, 14, 16 or 17 unless the relevant national authority is satisfied that the regulations do not—(a) reduce the level of environmental protection arising from the EU retained law to which the provision relates;(b) reduce the level of protection of consumers in relation to the safety, composition or labelling of food arising from the EU retained law to which the provision relates;(c) conflict with any relevant international environmental agreements to which the United Kingdom is party.(2) Prior to making any provision to which this section applies, the relevant national authority must—(a) seek advice from persons who are independent of the authority and have relevant expertise,(b) seek advice from, as appropriate, the Office for Environmental Protection, Environmental Standards Scotland, a devolved environmental governance body or another person exercising similar functions, the Food Standards Agency and Food Standards Scotland, and(c) publish a report setting out—(i) how the provision does not reduce the level of environmental or consumer protection in accordance with subsection (1), and(ii) how the authority has taken into account the advice from the persons referred to in paragraphs (a) and (b) of this subsection.(3) In section 4 (annual and other reports) of the Food Standards Act 1999, after subsection (1) insert—“(1A) The report prepared under subsection (1) must include a detailed assessment, drawn up after seeking advice from such other persons or bodies with relevant expertise as the Agency considers appropriate, of the impact of the implementation of sections 13, 14, 16 and 17 of the Retained EU Law (Revocation and Reform) Act 2023 in the areas of food safety, composition, and labelling and other relevant areas of concern to consumers related to food.”(4) In this section “relevant international environmental agreements” means—(a) the UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus, 25 June 1998);(b) the Council of Europe’s Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979);(c) the UN Convention on Biodiversity (Rio, 1992);(d) the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979);(e) the Convention for the Protection of the Marine Environment of the North-East Atlantic (1992);(f) the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar, 1971).”Member's explanatory statement
This new Clause creates additional conditions to be satisfied before the powers in Clauses 13, 14, 16 or 17 can be exercised where the subject matter of their exercise concerns law relating to environmental protection or food standards. It would also require the Government to seek the advice of the relevant independent expert statutory bodies, and the Food Standards Agency to include in its annual report to Parliament an assessment of the impact of the implementation of these provisions in areas of concern to consumers related to food.
Lord Collins of Highbury
“Workers’ protection and employment rights(1) Regulations may not be made by a relevant national authority under section 13, 14, 16 or 17 unless the relevant national authority is satisfied that the regulations do not—(a) reduce the level of protection for workers arising from the EU retained law to which the provision relates;(b) conflict with any relevant international labour agreements to which the United Kingdom is party.(2) Prior to making any provision to which this section applies, the relevant national authority must—(a) seek advice from persons who are independent of the authority and have relevant expertise,(b) seek advice from, as appropriate, the Advisory, Conciliation and Arbitration Service and relevant trade unions, and(c) publish a report setting out—(i) how the provision does not reduce the level of protection for workers in accordance with subsection (1), and(ii) how the authority has taken into account the advice from the persons referred to in paragraphs (a) and (b) of this subsection.(3) In this section “relevant international labour agreements” means—(a) the EU-UK Trade and Cooperation Agreement,(b) any Convention of the International Labour Organization ratified by the United Kingdom, and(c) any provision of the European Social Charter 1961 accepted by the United Kingdom.”Member’s explanatory statement
This new Clause creates additional conditions to be satisfied before the powers in Clauses 13, 14, 16 or 17 can be exercised where the subject matter of their exercise concerns law relating to protection of workers. It would also require the Government to seek the advice of the relevant independent expert statutory bodies.
Lord Collins of Highbury (Lab)
My Lords, I will not detain the House too long. In this amendment we have tried to reflect the structure that we have just agreed in relation to the environment. This is not about blocking change. The Minister said that we are in danger of creating immutable legislation. That is not the case. We are in a unique situation here in terms of regulations that are going to be changed in a way that does not have the same sort of parliamentary scrutiny as primary legislation. That is the difference. It is unique, and therefore it needs a proper, unique response to it in terms of the three elements on which the noble Lord, Lord Krebs, focused.
The first of course is non-regression. We should understand the ambitions of this Government in relation to workers’ rights. I have heard from Ministers throughout this Bill and also in other debates that they are committed to defend and extend workers’ rights. I think we need that ambition to be translated into proper processes and procedures in relation to the unique circumstances where regulations can be removed, revoked or revised simply by Ministers producing statutory instruments.
The other element, which again the noble Lord, Lord Krebs pointed out in relation to the environment, is proper consultation. If changes are envisaged, how do we consult the appropriate bodies? We have a government agency that has huge experience in terms of regulations and codes of practice that ought to be properly consulted in relation to any changes, and of course we have stakeholders in terms of employers and unions. And by the way, this is not a debate about whether one should support workers or employers. Everyone wants proper standards. Employers themselves want proper standards. When we come to the international agreements that this Government have signed up to, in particular trade agreements, that level playing field is going to be a really important element in maintaining those agreements and extending them, so there is a very strong economic case for supporting this amendment.
We also need to ensure that trust and confidence are put back into the system. We hear Ministers suggesting that somehow regulations are a burden on employers, but sometimes those burdens are the thing that can provide and guarantee the level playing field that we have argued for and supported.
We talk about the ambition of this Government but we are still waiting for the long-awaited employment Bill, which I hope at some stage we will see brought forward. This is about ensuring that we do not turn the clock back—that we maintain the proper standards. As a shadow spokesman for foreign affairs, I work with government Ministers in defending and advancing the rights of workers across the globe. We are the strongest advocate of that, so the one thing that we should not do is turn our backs on workers at this moment in time. If Brexit is to mean anything, it should be about putting rights back into this Parliament and making sure that workers are not at the end of the queue but very much at the front. I beg to move.
Lord Hendy (Lab)
My Lords, I support Amendment 50, as well as Amendment 51, which bears my name. Amendment 51 is an elaboration of Amendment 50, so I will speak only to Amendment 50. I endorse everything that my noble friend Lord Collins has said. The object of Amendment 50 is, as it states in proposed new subsection (1)(a), to prevent the reduction of
“the level of protection for workers”.
As my noble friend said, this is not simply to protect workers but to protect good employers from being undercut by bad employers. It speaks of the level of protection for workers, in respect not just of employment rights but of health and safety at work rights.
In spite of the warm words of the Government and the promises of an employment Bill over the last three or four years, there is a suspicion that the Government will try to take advantage of Brexit to undermine and water down workers’ rights. That fear is not helped by the fact that, last week, on 10 May, as I mentioned earlier today, the Department for Business and Trade published its booklet, Smarter Regulation to Grow the Economy. This contains no less than four proposals to water down the Working Time Regulations and Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, which guarantees the right of workers to be consulted when collective redundancies are proposed.
The proposals to water down those rights are not contained in the Bill, as they could have been among the 928 proposals in the schedule. They are yet to come, in the form of statutory instruments that we have not seen, cannot examine and, when it comes to it—notwithstanding the excellent amendments from the noble and learned Lord, Lord Hope, earlier on—may have difficulty in seeking to amend. The purpose of Amendment 50, and indeed Amendment 51, is to ensure that workers’ rights are not watered down and that the obligations contained in Articles 387(2) and 399(5) of the trade and co-operation agreement, against regression, are honoured.
Lord Fox (LD)
My Lords, my name is on both of these amendments and I am happy to support them both. The proposers will be pleased to know that I do not intend to speak for long, because I have heard two excellent speeches that set out the reasons why supporting these amendments is important.
The noble Lord, Lord Hendy, talked about the danger of back-door watering down of legislation. It may not be this Government; once this is in statute, it could be any Government going forward. We do not necessarily have to distrust the people we see before us—I personally do not—but we do not know who in future will be able to use these measures.
If the Government want to water down workers’ conditions, that should be done through primary legislation, straight up, and negotiated and scrutinised properly. It should not be put through the backdoor, which could happen here. Throughout the process of the Bill, the noble Lord, Lord Callanan, has said over and over again that it is not the Government’s intention to water down workers’ rights. By supporting Amendment 50, the Government can make sure that they are absolutely as good as their word.
Lord Hannan of Kingsclere (Con)
My Lords, one of the worst objections that I had when I was a Member of the European Parliament was to the doctrine of the occupied field—the idea that you could never withdraw from a field in which you had once legislated. So the acquis communautaire can only ever grow; it could go only in in one direction. You could call it a ratchet, a one-way street or, as its supporters did, a bicycle that has to go forward, but the objection was fundamentally the same: it lifted certain issues out of the democratic field and made them immune to the political process.
For what it is worth, I have never had much time for the idea that our workers’ rights come from the EU—the EU did not travel back in time and pass Barbara Castle’s Equal Pay Act 1970 or Neville Chamberlain’s Holidays with Pay Act 1938—but, whatever view you take of it, these are precisely the sorts of issues that ought to be determined by our national democratic mechanisms and procedures. You can take the view, as the noble Lords, Lord Collins and Lord Hendy, did, that this is wonderful, helps employers and all the rest of it, which is a perfectly respectable position, or you can take the view that there comes a point where too many workers’ rights means fewer workers—but surely that is a debate that ought to be had here and in another place, not something that is effectively made invulnerable to the ballot box.
Baroness Neville-Rolfe (Con)
It is nice to be popular so that we can all go home. I thank the noble Lord, Lord Collins, for his Amendment 50, and I am glad to be debating with him again.
The amendment would place a number of conditions relating to workers’ rights that UK Ministers or devolved authorities would have to meet when intending to use the powers under Clauses 13, 14, 16 and 17 on retained EU law. That includes satisfying themselves that workers’ protections and employment rights would be maintained and that proposed new regulations would not conflict with existing international labour agreements.
The new clause would also introduce a new procedural requirement that Ministers would have to follow in order to be eligible to exercise the power. That includes seeking advice from relevant stakeholders, including ACAS and relevant trade unions, as well as publishing a report addressing specific points around workers’ rights and employment protections for the new regulations. The new clause would significantly delay and impact opportunities to review and reform any retained EU law, which might have an impact on working regulations.
I should say straightaway, as my noble friend Lord Callanan already has, that this Government have no intention of abandoning our strong record on workers’ rights, and nor are the delegated powers intended to undermine the UK’s high standards on workers’ rights.
Our high standards were never dependent on our membership of the EU. Indeed, the UK provides for stronger protections for workers. We have one of the highest minimum wages in Europe. Moreover, UK workers are entitled to 5.6 weeks of annual leave compared with the EU requirement of four weeks, and we provide a year of maternity leave while the EU minimum maternity leave is just 14 weeks. Furthermore, on 10 May the Secretary of State committed to strengthening employment law, saving businesses around £1 billion a year from the reform of certain EU labour laws while safeguarding the rights of workers. These proposals do not remove rights or change entitlements but instead remove unnecessary bureaucracy in the way that these rights or entitlements operate, allowing business to benefit from the additional freedoms that we have through Brexit. The proposed conditions on workers’ rights in the amendment are unnecessary, frankly, and would lead to a parallel call for provisions in other important regulatory areas to be excluded from vital reforms, thus undermining the whole purpose of Clause 16, which I stress is time limited.
Lord Collins of Highbury (Lab)
My Lords, the simple fact is that we should legislate through this Parliament and not through the mechanism that this Bill provides for. That is why we need these guarantees. I beg to test the opinion of the House.
Retained EU Law (Revocation and Reform) Bill
Wednesday 17th May 2023
(11 months, 2 weeks ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-II Second marshalled list for Report - (15 May 2023)
18:17 - Division on Amendment 76 - Ayes: 231 / Noes: 167 - Amendment 76 agreed.
Baroness Noakes
“Report on retained EU law(1) Within 6 months from the day that this Act is passed, and every 12 months thereafter, the Secretary of State must prepare a report setting out the following in respect of each item of EU derived subordinate legislation or retained direct EU legislation which has not been revoked by section 1—(a) whether and to what extent it remains in force, including the effect of any modifications made whether under powers in this Act or otherwise;(b) details of any plans to modify, repeal or replace it.(2) Any reports prepared under subsection (1) must be laid before each House of Parliament.(3) This section ceases to have effect after a report showing that all items of EU derived subordinate legislation or retained direct EU legislation have been modified, repealed or replaced.”
Baroness Noakes (Con)
My Lords, I am grateful to my noble friends Lord Jackson of Peterborough, Lord Frost and Lady Lawlor for adding their names to Amendment 51A.
The Government have made very significant changes to the Bill, with the new schedule revoking around 600 pieces of retained EU law, in place of the previous plan to revoke all extant EU law, broadly, at the end of this year. As I said on Monday, I welcome this pragmatic approach, but it has created a new need for visibility of progress in dealing with the total population of retained EU law, and my Amendment 51A tries to give that visibility.
Specifically, my amendment introduces a new clause which calls for the Secretary of State to prepare a report within six months of the Bill passing and every 12 months thereafter. That report should show the status of all items of retained EU law, other than those being revoked by the Bill, together with the Government’s plans for dealing with them. Subsection (2) of the new clause proposed by my amendment requires the reports to be laid before Parliament, and subsection (3) says that the reports should continue until all the items of retained EU law have been dealt with.
Last week, the Secretary of State for Business and Trade assured the other place that the revocation of the 600 bits of EU law in the new schedule was not the limit of the Government’s ambition, and I would certainly like to believe that. My fear is that once the Bill is passed, government departments will heave a sigh of relief and move on to things that are more interesting than working out what to do with their retained EU law.
Legislation cannot make the government machine complete the task, but it can provide for transparency, and I see this as having two benefits. First, the Secretary of State for Business and Trade will have a tool at her disposal to keep the pressure up on her Cabinet colleagues to do their part. Secondly, and perhaps as importantly, Parliament will have information which it can use to hold the Executive to account.
I was already concerned about how to monitor progress on dealing with retained EU financial services legislation. That legislation has been carved out of the Bill and is dealt with in the separate Financial Services and Markets Bill. In the other place last week, the Secretary of State for Business and Trade claimed that 500 pieces of retained EU law will be repealed by the Financial Services and Markets Bill by the end of this year. Unfortunately, this is not true. Schedule 1 to that Bill contains long lists of financial services laws which are identified for repeal, but repeal will be activated only when the Treasury decides to do so, and it will certainly not be by the end of this year. The Treasury has been clear that the process will take “a number of years”, and it has no plan or timetable to complete the work. I already have some amendments ready for Report on the Financial Services and Markets Bill next month.
Given the initial drafting of the Bill, I thought that the Treasury’s approach to retained EU law was going to be the exception, but it now appears to be the new normal. What happens to retained EU law and when it will be determined by the various government departments is not clear at the moment. I want to ensure that progress on dealing with retained EU law across the whole of government is kept in sharp focus.
I drafted this amendment in haste once the Government had tabled their own amendments to the Bill last week. I am fairly sure that the Minister’s lawyers will be able to tear it apart, but I hope he will see it as an opportunity to create a transparency and oversight mechanism that will complement the Government’s new approach to retained EU law. I beg to move.
Lord Jackson of Peterborough (Con)
My Lords, it is a pleasure to follow my noble friend Lady Noakes on this issue, and I am delighted to have had the opportunity to support her by adding my name to the amendment. Noble Lords will remember that during the passage of the EU withdrawal Bill there was a great deal of discussion about whether this House sought to gain for itself executive powers—that is, to become the Government in directing government policy with respect to the withdrawal Act and exiting from the European Union, rather than performing its proper constitutional role, which we all concede is effective scrutiny and oversight.
This amendment is a helpful compromise in seeking to direct Ministers, the Government and the Civil Service to a place where we can all agree. I am sure that noble Lords who earlier this week supported Amendments 2 and 4 and spoke to Amendment 76, which I gather later today we are likely to divide on, will welcome this amendment—you need congestion charging on the road to Damascus, because the traffic is quite heavy at the moment. Those who were happy to turn a blind eye to the huge corpus of EU legislation from 1973 to 2020 are now praying in aid the importance of scrutiny and oversight. That being so, this is a good vehicle to give effect to that, particularly the need for periodic reviews of the Government’s progress on the dashboard.
As I made clear when I spoke earlier in the week, people are watching how this House and the Government ensure that the decision they made in 2016 is given proper effect. While I understand that this House cannot instruct the Government, this is a good way of achieving compromise. I expect a majority on all sides of the House to give my noble friend’s amendment their strong and emphatic support, and I fully expect, since the Minister has an opportunity so to do, an amendment to be laid at Third Reading that consolidates this amendment. If that is possible, I think there will be a strong consensus as the Bill goes forward. In the meantime, I strongly support the amendment and I hope noble Lords will give it their support.
Baroness Lawlor (Con)
I have added my name to my noble friend Lady Noakes’s Amendment 51A, and I would like to follow on from what she has said. It is important that the legislative momentum for sunsetting, removing or revoking EU legislation be kept up. The reporting requirement on the Government will, as she said, keep up the momentum and help the Government and indeed Parliament to keep track of what has gone, what is yet to go and how further regulations, if any, will be modified.
There is a very good reason for doing this, and it relates to cost. Ultimately, it is people who bear the costs, either through what they pay for goods and services or through their taxes for government compliance costs in dealing, as now, with two systems of law: EU retained law and our own common law.
I hope the reporting requirement will enable us all to know where we are going and help us keep track of getting rid of that which the Government have pledged to get rid of or modify where necessary. That is very important in the interests of efficiency, for everyone, not just businesses. It is also important for transparency. Not only does regular reporting help the momentum; it will make for fairness so that we are all clear about the rules. I hope it will mean greater prosperity, which we need to encourage. In my view, we need to move back more thoroughly to our common-law system, and that is something on which I hope to touch when we consider the next group of amendments.
Lord Frost (Con)
My Lords, I support Amendment 51A, to which I have added my name. There is perhaps little to add to what has been said in support of the amendment, other than to recall that the corpus of retained EU law that will be covered by it remains a corpus of law—however normalised, we must hope, by the Bill—that was brought on to the UK statute book in a distinct and different way that did not always enjoy full discussion in this Parliament, as we have said many times. It is logical and reasonable to keep that corpus of law under particular review under this distinct process, so that it can be kept in view of this House and of Parliament. The original purpose of the Bill as introduced by the Government—to review, reform, perhaps revoke and perhaps continue with the legislation—can be kept fully in mind and implemented. To me, that is the logic behind the amendment, and I hope the Government will be able to take that on board.
Baroness Fox of Buckley (Non-Afl)
My Lords, I support this amendment, whose intention is well thought through, whatever the lawyers say. I shall say why.
When consideration was being given to what had driven the changes that the Government themselves brought in with the removal of the sunset provision in Clause 1, some credence was given to the words of Jacob Rees-Mogg, who had originally introduced the Bill, and who stated that this was an admission of administrative failure and the inability of Whitehall to do the necessary work. I am no fan of blaming “the blob” for everything. The reason why I support this amendment is that it allows the general public, let alone Parliament, to see what work is being done when and where. That is why transparency matters: so that you cannot just blame things going on behind the scenes.
The Secretary of State for Business, Kemi Badenoch, suggested that the previous demands on the Bill, with its cliff-edge, had caused so much concern that civil servants were choosing to reduce legal risk by preserving EU laws, rather than prioritising meaningful reform. Now that the Government have changed this, we need to be aware that we are having meaningful reform and, again, to see it. Otherwise, I worry that we will have simply put off making decisions about how to deal with this situation.
My final reason is that in this House on many occasions noble Lords have, in good faith, worried that the whole removal of retained EU law was a plot to undermine workers’ rights, women’s rights and everyone’s rights. I have never been as cynical about it as that and have always believed that those rights were fought for domestically and we do not need to be concerned. But I hope that everybody in the House might support this amendment because it should reassure. It gives us now the opportunity to say what is retained, what is removed and what is reformed—rather than, as it were, gossiping behind the scenes with almost a conspiratorial atmosphere of what is really going on—and that we simply are enacting now what was voted for in 2016 and everyone can see what is happening. Reporting it in full will be very helpful.
Lord Carlile of Berriew (CB)
My Lords, I do not have an objection in principle to this amendment. Indeed, it sets out a requirement for information which I would suspect in about six months’ time several normal legal websites will carry on a search inserting words such as “What is still in force of EU legislation?” But I am troubled by the implication that this is a substitute for the two amendments that this House passed two days ago and for Amendment 76. I think it would be misleading for any Division or determination on this amendment to be based on that premise.
Lord Shinkwin (Con)
My Lords, I thank my noble friend Lady Noakes for tabling what seems to be an eminently sensible amendment. My noble friend mentioned visibility, and with visibility comes transparency. This would seem to be entirely consistent with His Majesty’s Government’s laudable commitment to transparency. I join with others in hoping very much that my noble friend the Minister will look kindly upon it.
Baroness Altmann (Con)
My Lords, in principle I do not have an objection to the amendment that has been tabled by my noble friend Lady Noakes, supported by my other noble friends. The problem I have is in practice rather than in principle. How should Parliament and civil servants be spending their time, and do we trust that what is happening in terms of reviewing retained EU law will be done in the interests of parliamentary sovereignty and the interests of the public? There just seems to be underlying this whole Bill an ideological aversion to any EU-derived regulations. They are automatically considered to be harmful to the public, and that cannot be the case when we are potentially talking about legislation, regulations, public protections and legal rulings which have been relied on by the public and business since 1973.
I congratulate my right honourable friend the Secretary of State and my noble friend’s department for the common-sense change of approach involved in the amendments to this Bill. If I could be assured that Amendment 51A would not divert parliamentary and Civil Service time away from the important changes that are needed in the post-Brexit environment, then in principle I understand the logic and can accept it.
Viscount Hailsham (Con)
My Lords, may I just support what my noble friend has said? The task contemplated by Amendment 51A is immense, and I would have thought there were better uses of the Civil Service’s time.
Lord Hope of Craighead (CB)
My Lords, the amendment makes no reference to the devolved Administrations, and they have a considerable burden themselves to bear. I hope the Minister has been very careful to have regard to the interests of the devolved Administrations and will consider their position when he decides what to make of this amendment.
Lord Fox (LD)
My Lords, first I would like to associate myself with those last two comments and those of the noble Lord, Lord Carlile. This amendment should not in any way be conflated with the amendments that we have passed and, I hope, we will pass later today. Rising to speak to this amendment rather feels like gate-crashing someone else’s private argument. I beg your pardon, but I am going to continue.
In normal circumstances, if there was anyone I would send out to reduce bureaucracy, it would be the noble Baroness, Lady Noakes. Sadly, she seems to have broken from her norm with this amendment—perhaps she has been egged on or even corrupted by the co-signatories of this amendment. However, it does seem like it is one fight too many for the Government, and I understand that to some extent the Minister will be conceding on this. No doubt in the Government’s estimation this is perhaps a bone that can be thrown to one part of their own party without actually causing too many problems for the rest of the Bill—so good luck to the Minister on that one.
To what end will we have this list? I am a little curious as to what we will be listing. The noble Baroness, Lady Lawlor, raised this to some extent. I think it would be helpful for your Lordships if the Minister could confirm at what point in the process of this Bill retained EU law that is not revoked by the schedule becomes assimilated law. In other words, when will this happen? When in the process of this Bill do Clauses 4, 5 and 6 cause these laws to slough off the links they have with the ECJ and all those interpretations based on EU values, which noble Lords opposite object to? At what point are these laws rendered just as susceptible to British common law as any other law on the statute? It would be helpful to know the dates when those things will happen because, once that has happened, it seems there will no longer be any retained EU law: it will be assimilated law formerly known as retained EU law.
An intriguing vision visited me when I was pondering this. In the popular motion picture “Blade Runner”, the hero, Harrison Ford, is tasked with rooting out and eliminating replicants. As I am sure the noble Baroness, Lady Noakes, will remember from when she queued to enter the cinema, the replicants are essentially synthetic humans, indistinguishable from and which function as real humans—hence, they are rather hard to find. In a sense, the noble Baroness, Lady Noakes, is seeking to brand these laws in order that they do not become indistinguishable replicants once they enter the canon of British law. Of course, that is her point; she has to maintain a difference between these laws in order to continue to have a conflict. This is, of course, a conflict between and among her parliamentary colleagues rather than the rest of us.
If, instead of focusing on where these laws came from, they focused on what they do, the whole process would be more worth while. Some of this assimilated law will need revoking or reforming, but similarly so do swathes of laws that were directly made by this Parliament. The invaluable time spent on the process in the amendment tabled by the noble Baroness, Lady Noakes—her annual census of the replicants perhaps—would be better spent actually doing the sort of things we need to do to make regulations smarter, as was noted by noble Lords just now.
The noble Baroness, Lady Noakes, mentioned the Financial Services and Markets Bill. She may be dissatisfied with what is going on there, but that seems to be a model of how this process should go. If you take a sector, the job of Parliament is to assess all of the relevant laws pertinent to that particular sector. Some of them will need retaining; some of them will need revoking; some will need reforming, and there will be a need for new laws. At the end of it, Parliament will have gone through the whole process—irrespective of where those laws came from. It is not about where they came from; it is about what they do. This is unnecessary and it is essentially an irrelevant piece of legislation designed to create an argument within the party opposite.
It is the sort of clause that the noble Baroness, Lady Noakes, would normally come down on like a ton of bricks. It is a list that the noble Baroness, Lady Noakes, and her colleagues on this amendment can use to fuel a fight with other members of the Conservative Party and nothing more—so good luck with that.
Baroness Chapman of Darlington (Lab)
My Lords, I was surprised when I saw this amendment. I have now spent 13 years in opposition in this and the other place, tabling such amendments at just about every opportunity. When you know that the Government are not going to do what you want them to do, one of the things left to you is to ask the Government to report annually or six-monthly to both Houses on whatever the issue might be. I have done this on everything from women’s justice to food standards to access to medicines. It is an in your back pocket kind of amendment—the sort that Ministers usually bat away quite easily. They talk about the cost and how much Civil Service time would be taken up in preparation. They do not want to use up valuable parliamentary time to debate these things, nor to distract Ministers with these sorts of fripperies.
On this occasion, it seems that the Government have decided that they can afford the time, money and resources to compile this list—to keep the argument alive for some people within the Conservative Party. What has happened to the noble Lords, Lord Frost and Lord Jackson? The tigers of Brexit are being bought off by an annual report to both Houses of Parliament. This is the sort of thing that the Opposition would have settled for at any point. There they are, taking this at what is meant to be the climax of their Brexit mission. I am quite disappointed that this is all the noble Lords have sought to achieve at the end of all this. They must be quite disappointed, although at least they get to have their report each year, to raise things and to ask why this or that regulation has not yet been dealt with. This is not going to be a red-letter day in my diary but, if it keeps the flame burning for others, then so be it.
I have to ask the Minister the same questions that he would ask me if the roles were reversed. Who will be compiling this list of regulations? How much time will they be spending on it? What is the cost? Will there be an opportunity to debate this report in Parliament each year? What format will this take, or will it go to a Select Committee? I wonder about the Government’s priorities. They find time to undertake this task when mortgages are soaring, inflation is still high, people are dying waiting for treatment, unable to see their GP and are pulling their own teeth out. This is what is going on in the country and yet the Government make this a priority.
I understand that the Government intend to accept this amendment, despite everything they have managed to do. They have completely rewritten their Bill. They have shown a little bit of backbone in doing that. I give credit where it is due. Now, at the 11th hour, they think that this is going to get them over the final hurdle. I am disappointed in the Minister for falling at the final fence. I am particularly disappointed in the noble Lords, Lord Frost and Lord Jackson, for settling quite so easily. There we are. I do not think we will bother to oppose the Government on this. Given everything else that has been going on, it does not seem worth the time of the Chamber to do so. This was quite a surprising, last-minute event in the process of this Bill.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, I thank the noble Baroness, Lady Chapman, for what must be the most cynical speech I have heard on this Bill so far. We have seen just how committed the Opposition are to any kind of serious reform. They were perfectly to accept all this legislation which was imposed by the European Union through the various processes—before the noble Baroness, Lady Ludford, corrects me. Now Labour is not interested in any kind of reform of it. It is perfectly happy to live with it. It shows the true colours of the Opposition.
Nevertheless, I am of course pleased to say that the Government have already reformed or revoked more than 1,000 pieces of retained EU law. But I agree with the contributions of my noble friends Lady Noakes, Lord Jackson, Lady Lawlor, Lord Frost and Lord Shinkwin—but this should not be the limit of our ambition. The answer to the noble Baroness, Lady Chapman, is that the retained EU law is already listed in the famous schedule, and, if she accesses this internet thingy, she can get a list of all the remaining retained EU law. Departments will continue to review all the retained EU law that has not already been revoked, reformed or planned for revocation this year, to identify further opportunities for reform. We want to do this because we want to reduce the burdens on business, generate more jobs and unlock the potential for economic growth. Again, we can see where the Opposition’s true priorities are in that agenda.
Baroness Noakes (Con)
My Lords, I thank all noble Lords who have spoken in this debate, particularly my noble friends who have supported the amendment. I was surprised at the tone of the comments from the Peers on the Benches opposite, both of whom resorted to ad hominem attacks. The noble Lord, Lord Fox, focused on me, and the noble Baroness on the Labour Benches focused on what she called the “tigers” on my Bench—I am sure that they will wear that badge very proudly.
My noble friend the Minister understands why this is an important thing to put on the statute book, particularly to show our commitment to driving forward reform to support growth and competition in our economy and to get rid of the regulatory burdens holding our economy back. I was pleased to hear that my noble friend accepted the principle of my amendment, and it does not surprise me that he could not accept its wording. I thank him for that acceptance; I look forward to working with him and hope that we may reach some conclusion to this before the Bill is returned to the other place. For now, I beg leave to withdraw my amendment.
Lord Callanan
Member’s explanatory statement
This amendment extends the consequential power in clause 20 to devolved authorities.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 22, line 9.
Lord Callanan
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 24, line 14 to leave out “Minister of the Crown” and insert “relevant national authority”.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 24, line 14 to leave out “Minister of the Crown” and insert “relevant national authority”.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 24, line 14 to leave out “Minister of the Crown” and insert “relevant national authority”.
Lord Callanan
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 24, line 14 to leave out “Minister of the Crown” and insert “relevant national authority”.
Member’s explanatory statement
This amendment extends the power to make transitional, transitory or saving provision to devolved authorities.
Member’s explanatory statement
This amendment is consequential on the Minister’s other amendment at page 24, line 14.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 24, line 14 to leave out “Minister of the Crown” and insert “relevant national authority”.
Member’s explanatory statement
This amendment and the Minister’s other amendment to Clause 24 ensure that any amendment, repeal or revocation made by the Bill has the same extent within the United Kingdom as the provision to which it relates.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, government Amendments 62 and 63 to Clause 24 provide a clarification, setting out that any amendments, repeals or revocations in the Bill have the same territorial extent as the provisions they are acting on. The Bill is intended to apply UK-wide. The purpose of Clause 24 is to set out the territorial extent of the Bill, which covers England and Wales, Scotland and Northern Ireland.
The purpose of government Amendments 62 and 63 is to set out in unambiguous terms that, while the Bill extends to the whole of the UK, any amendments, revocations and repeals by the Bill extend so far as the provision they are acting on. The amendments are minor and technical in nature and will not alter the policy of the Bill. I beg to move.
“(1A) Any amendment, repeal or revocation made by this Act has the same extent within the United Kingdom as the provision to which it relates.”Member’s explanatory statement
See the statement about the Minister’s other amendment to Clause 24.
Lord Callanan
Title | Extent of revocation |
|---|---|
European Communities (Privileges of the Joint European Torus) Order 1978 (S.I. 1978/1033) | The whole Order |
Rules of the Supreme Court (Amendment No. 4) 1978 (S.I. 1978/1066) | The whole Rules |
Agriculture and Horticulture Development Regulations 1980 (S.I. 1980/1298) | The whole Regulations |
Food (Revision of Penalties) Regulations 1982 (S.I. 1982/1727) | The whole Regulations |
Food (Revision of Penalties) Regulations 1985 (S.I. 1985/67) | The whole Regulations |
Agriculture Improvement Scheme 1985 (S.I. 1985/1029) | The whole Scheme |
Insolvency (ECSC Levy Debts) Regulations 1987 (S.I. 1987/2093) | Regulations 3 and 4 |
Farm Business Non-Capital Grant Scheme 1988 (S.I. 1988/1125) | The whole Scheme |
Loading and Unloading of Fishing Vessels Regulations 1988 (S.I. 1988/1656) | The whole Regulations |
Agriculture Improvement (Variation) (No. 2) Scheme 1988 (S.I. 1988/1983) | The whole Scheme |
Farm and Conservation Grant Scheme 1989 (S.I. 1989/128) | The whole Scheme |
Control of Industrial Air Pollution (Registration of Works) Regulations 1989 (S.I. 1989/318) | The whole Regulations |
Farm and Conservation Grant (Variation) Scheme 1991 (S.I. 1991/1338) | The whole Scheme |
Temporary Set-Aside Regulations 1991 (S.I. 1991/1847) | The whole Regulations |
Provision of Confidential Statistical Information to the Statistical Office of the European Communities (Restriction on Disclosure) Regulations 1991 (S.I. 1991/2779) | The whole Regulations |
Community Drivers’ Hours (Passenger and Goods Vehicles) (Temporary Exception) Regulations 1993 (S.I. 1993/67) | The whole Regulations |
Habitat (Water Fringe) Regulations 1994 (S.I. 1994/1291) | The whole Regulations |
Habitat (Former Set-Aside Land) Regulations 1994 (S.I. 1994/1292) | The whole Regulations |
Habitat (Salt-Marsh) Regulations 1994 (S.I. 1994/1293) | The whole Regulations |
Petroleum (Production) (Seaward Areas) (Amendment) Regulations 1995 (S.I. 1995/1435) | The whole Regulations |
Export Refunds (Administrative Penalties) (Rate of Interest) Regulations 1995 (S.I. 1995/2861) | The whole Regulations |
Habitat (Salt-Marsh) (Amendment) Regulations 1995 (S.I. 1995/2871) | The whole Regulations |
Habitat (Salt-Marsh) (Correction to Amendment) Regulations 1995 (S.I. 1995/2891) | The whole Regulations |
Community Drivers’ Hours (Passenger and Goods Vehicles) (Temporary Exception) Regulations 1996 (S.I. 1996/239) | The whole Regulations |
Habitat (Former Set-Aside Land) (Amendment) Regulations 1996 (S.I. 1996/1478) | The whole Regulations |
Habitat (Salt-Marsh) (Amendment) Regulations 1996 (S.I. 1996/1479) | The whole Regulations |
Habitat (Water Fringe) (Amendment) Regulations 1996 (S.I. 1996/1480) | The whole Regulations |
Rural Development Grants (Agriculture) (Amendment) Regulations 1996 (S.I. 1996/2394) | The whole Regulations |
Environmentally Sensitive Areas (England) Designation Orders (Amendment) Regulations 1996 (S.I. 1996/3104) | The whole Regulations |
Habitat (Water Fringe) (Amendment) (No. 2) Regulations 1996 (S.I. 1996/3106) | The whole Regulations |
Habitat (Former Set-Aside Land) (Amendment) (No. 2) Regulations 1996 (S.I. 1996/3107) | The whole Regulations |
Habitat (Salt-Marsh) (Amendment) (No. 2) Regulations 1996 (S.I. 1996/3108) | The whole Regulations |
Environmentally Sensitive Areas (England) Designation Orders (Revocation of Specified Provisions) Regulations 1997 (S.I. 1997/1456) | The whole Regulations |
Environmentally Sensitive Areas (England) Designation Orders (Revocation of Specified Provisions) Regulations 1998 (S.I. 1998/1295) | The whole Regulations |
Environmentally Sensitive Areas (England) Designation Orders (Revocation of Specified Provisions) Regulations 1999 (S.I. 1999/2231) | The whole Regulations |
Indonesia (Supply, Sale, Export and Shipment of Equipment) (Penalties and Licences) Regulations 1999 (S.I. 1999/2822) | The whole Regulations |
Habitat (Water Fringe) (Amendment) Regulations 1999 (S.I. 1999/3160) | The whole Regulations |
Habitat (Salt-Marsh) (Amendment) Regulations 1999 (S.I. 1999/3161) | The whole Regulations |
Meat (Enhanced Enforcement Powers) (England) Regulations 2000 (S.I. 2000/225) | The whole Regulations |
Meat (Disease Control) (England) Regulations 2000 (S.I. 2000/2215) | The whole Regulations |
Community Drivers’ Hours (Passenger and Goods Vehicles) (Temporary Exception) Regulations 2000 (S.I. 2000/2483) | The whole Regulations |
Community Drivers’ Hours (Passenger and Goods Vehicles) (Temporary Exception) (Amendment) Regulations 2000 (S.I. 2000/2658) | The whole Regulations |
Environmentally Sensitive Areas (Stage I) Designation Order 2000 (S.I. 2000/3049) | The whole Order |
Environmentally Sensitive Areas (Stage II) Designation Order 2000 (S.I. 2000/3050) | The whole Order |
Environmentally Sensitive Areas (Stage III) Designation Order 2000 (S.I. 2000/3051) | The whole Order |
Environmentally Sensitive Areas (Stage IV) Designation Order 2000 (S.I. 2000/3052) | The whole Order |
Community Drivers’ Hours (Foot-and-Mouth Disease) (Temporary Exception) Regulations 2001 (S.I. 2001/628) | The whole Regulations |
Community Drivers’ Hours (Foot-and-Mouth Disease) (Temporary Exception) (No. 2) Regulations 2001 (S.I. 2001/1293) | The whole Regulations |
Community Drivers’ Hours (Foot-and-Mouth Disease) (Temporary Exception) (No. 2) (Amendment) Regulations 2001 (S.I. 2001/1822) | The whole Regulations |
Community Drivers’ Hours (Foot-and-Mouth Disease) (Temporary Exception) (No. 2) (Amendment No. 2) Regulations 2001 (S.I. 2001/2358) | The whole Regulations |
Community Drivers’ Hours (Foot-and-Mouth Disease) (Temporary Exception) (No. 2) (Amendment No. 3) Regulations 2001 (S.I. 2001/2741) | The whole Regulations |
Community Drivers’ Hours (Foot-and-Mouth Disease) (Temporary Exception) (No. 2) (Amendment No. 4) Regulations 2001 (S.I. 2001/2959) | The whole Regulations |
Environmentally Sensitive Areas (Stage II) Designation (Amendment) Order 2001 (S.I. 2001/3195) | The whole Order |
Environmentally Sensitive Areas (Stage III) Designation (Amendment) Order 2001 (S.I. 2001/3196) | The whole Order |
Environmentally Sensitive Areas (Stage IV) Designation (Amendment) Order 2001 (S.I. 2001/3197) | The whole Order |
Community Drivers’ Hours (Foot-and-Mouth Disease) (Temporary Exception) (No. 2) (Amendment No. 5) Regulations 2001 (S.I. 2001/3260) | The whole Regulations |
Community Drivers’ Hours (Foot-and-Mouth Disease) (Temporary Exception) (No. 2) (Amendment No. 6) Regulations 2001 (S.I. 2001/3508) | The whole Regulations |
Environmentally Sensitive Areas (Stage II) Designation (Amendment) (No. 2) Order 2001 (S.I. 2001/3774) | The whole Order |
Countryside Stewardship (Amendment) Regulations 2001 (S.I. 2001/3991) | The whole Regulations |
Road Vehicles (Testing) (Disclosure of Information) (Great Britain) Regulations 2002 (S.I. 2002/2426) | The whole Regulations |
Architects’ Qualifications (EC Recognition) Order 2002 (S.I. 2002/2842) | Article 6 |
Community Design (Fees) Regulations 2002 (S.I. 2002/2942) | The whole Regulations |
Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 (S.I. 2003/164) | The whole Regulations |
Advanced Television Services Regulations 2003 (S.I. 2003/1901) | Regulations 4 and 6 |
Reporting of Savings Income Information Regulations 2003 (S.I. 2003/3297) | The whole Regulations |
Countryside Stewardship (Amendment) Regulations 2004 (S.I. 2004/114) | The whole Regulations |
Environmentally Sensitive Areas (Stages I-IV) Designation (Amendment) Order 2004 (S.I. 2004/115) | The whole Regulations |
Foreign Satellite Service Proscription Order 2005 (S.I. 2005/220) | The whole Order |
Tax Information Exchange Agreement (Taxes on Income) (Jersey) Order 2005 (S.I. 2005/1261) | The whole Order |
Tax Information Exchange Agreement (Taxes on Income) (Guernsey) Order 2005 (S.I. 2005/1262) | The whole Order |
Tax Information Exchange Agreement (Taxes on Income) (Isle of Man) Order 2005 (S.I. 2005/1263) | The whole Order |
Tax Information Exchange Agreement (Taxes on Income) (Virgin Islands) Order 2005 (S.I. 2005/1457) | The whole Order |
Tax Information Exchange Agreement (Taxes on Income) (Aruba) Order 2005 (S.I. 2005/1458) | The whole Order |
Tax Information Exchange Agreement (Taxes on Income) (Montserrat) Order 2005 (S.I. 2005/1459) | The whole Order |
Tax Information Exchange Agreement (Taxes on Income) (Netherlands Antilles) Order 2005 (S.I. 2005/1460) | The whole Order |
Community Drivers’ Hours and Working Time (Road Tankers) (Temporary Exception) Regulations 2006 (S.I. 2006/17) | The whole Regulations |
Community Drivers’ Hours and Working Time (Road Tankers) (Temporary Exception) (Amendment) Regulations 2006 (S.I. 2006/244) | The whole Regulations |
Civil Aviation (Safety of Third Country Aircraft) Regulations 2006 (S.I. 2006/1384) | The whole Regulations |
Tax Information Exchange Agreement (Taxes on Income) (Gibraltar) Order 2006 (S.I. 2006/1453) | The whole Order |
Water Resources (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2006 (S.I. 2006/3124) | The whole Regulations |
Road Tolling (Interoperability of Electronic Road User Charging and Road Tolling Systems) Regulations 2007 (S.I. 2007/58) | The whole Regulations |
Guarantees of Origin of Electricity Produced from High-efficiency Cogeneration Regulations 2007 (S.I. 2007/292) | The whole Regulations |
Asylum (Procedures) Regulations 2007 (S.I. 2007/3187) | Regulations 4 and 6 |
Architects (Recognition of European Qualifications etc and Saving and Transitional Provision) Regulations 2008 (S.I. 2008/1331) | Regulations 3 to 5, 6(1)(b), (2) and (3), 7, 8, 12 to 19 and 22 to 25 and the Schedule |
Artist’s Resale Right (Amendment) Regulations 2009 (S.I. 2009/2792) | The whole Regulations |
Flood Risk Regulations 2009 (S.I. 2009/3042) | The whole Regulations |
Food Enzymes Regulations 2009 (S.I. 2009/3235) | Regulation 10 |
Food Additives (England) Regulations 2009 (S.I. 2009/3238) | The whole Regulations |
Hill Farm Allowance Regulations 2010 (S.I. 2010/167) | The whole Regulations |
Natural Mineral Water, Spring Water and Bottled Drinking Water (England) (Amendment) (No.2) Regulations 2010 (S.I. 2010/896) | The whole Regulations |
Flood Risk (Cross Border Areas) Regulations 2010 (S.I. 2010/1102) | Regulations 2 to 25 |
Local Land Charges (Amendment) Rules 2010 (S.I. 2010/1812) | The whole Rules |
Foodstuffs Suitable for People Intolerant to Gluten (England) Regulations 2010 (S.I. 2010/2281) | The whole Regulations |
Flavourings in Food (England) Regulations 2010 (S.I. 2010/2817) | The whole Regulations |
Uplands Transitional Payment Regulations 2011 (S.I. 2011/135) | The whole Regulations |
Promotion of the Use of Energy from Renewable Sources Regulations 2011 (S.I. 2011/243) | The whole Regulations |
Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (S.I. 2011/1484) | In Schedule 7, paragraphs 2(5), 9, 16(5)(a) and 24 |
Architects (Recognition of European Qualifications) Regulations 2011 (S.I. 2011/2008) | The whole Regulations |
Merchant Shipping (Flag State Directive) Regulations 2011 (S.I. 2011/2667) | The whole Regulations |
Uplands Transitional Payment Regulations 2012 (S.I. 2012/114) | The whole Regulations |
Wireless Telegraphy (Control of Interference from Apparatus) (The London Olympic Games and Paralympic Games) Regulations 2012 (SI 2012/1519) | The whole Regulations |
European Administrative Co-Operation (Taxation) Regulations 2012 (SI 2012/3062) | The whole Regulations |
Motor Fuel (Road Vehicle and Mobile Machinery) Greenhouse Gas Emissions Reporting Regulations 2012 (SI 2012/3030) | The whole Regulations |
Uplands Transitional Payment Regulations 2013 (S.I. 2013/109) | The whole Regulations |
Environmental Permitting (England and Wales) (Amendment) Regulations 2013 (S.I. 2013/390) | The whole Regulations |
Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2013 (S.I. 2013/766) | The whole Regulations |
Energy Efficiency (Eligible Buildings) Regulations 2013 (S.I. 2013/3220) | The whole Regulations |
Architects Act 1997 (Amendments etc) Order 2014 (S.I. 2014/4) | Article 2(a) |
Uplands Transitional Payment Regulations 2014 (S.I. 2014/112) | The whole Regulations |
Energy Efficiency (Building Renovation and Reporting) Regulations 2014 (S.I. 2014/952) | The whole Regulations |
Energy Efficiency (Encouragement, Assessment and Information) Regulations 2014 (S.I. 2014/1403) | The whole Regulations |
Posted Workers (Enforcement of Employment Rights) Regulations 2016 (S.I. 2016/539) | The whole Regulations |
Architects Act 1997 (Amendment) Order 2016 (S.I. 2016/1088) | The whole Order |
Water Resources (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2017 (S.I. 2017/583) | The whole Regulations |
National Emission Ceilings Regulations 2018 (S.I. 2018/129) | Regulations 9 and 10 |
Renewable Transport Fuels and Greenhouse Gas Emissions Regulations 2018 (S.I. 2018/374) | Part 4 |
European Union (Definition of Treaties) (Comprehensive and Enhanced Partnership Agreement) (Armenia) Order 2018 (S.I. 2018/1063) | The whole Order |
European Union (Definition of Treaties) (Association Agreement) (Central America) Order 2018 (S.I. 2018/1065) | The whole Order |
European Union (Definition of Treaties) (Strategic Partnership Agreement) (Canada) Order 2018 (S.I. 2018/1066) | The whole Order |
European Union (Definition of Treaties) (Framework Agreement) (Australia) Order 2018 (S.I. 2018/1067) | The whole Order |
European Union (Definition of Treaties) (Political Dialogue and Cooperation Agreement) (Cuba) Order 2018 (S.I. 2018/1068 | The whole Order |
European Union (Definition of Treaties) (Enhanced Partnership and Cooperation Agreement) (Kazakhstan) Order 2018 (S.I. 2018/1069) | The whole Order |
European Union (Definition of Treaties) (Partnership Agreement on Relations and Cooperation) (New Zealand) Order 2018 (S.I. 2018/1070) | The whole Order |
European Union (Definition of Treaties) (Partnership and Cooperation Agreement) (Turkmenistan) Order 2018 (S.I. 2018/1071) | The whole Order |
Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123) | Regulation 3 |
Port Services Regulations 2019 (S.I. 2019/575) | The whole Regulations |
Architects Act 1997 (Swiss Qualifications) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/810) | Regulation 2 |
Intra-EU Communications (EU Regulation) Regulations 2019 (S.I. 2019/980) | The whole Regulations |
Wireless Telegraphy (Mobile Repeater) (Exemption) (Amendment) Regulations 2019 (S.I. 2019/1450) | The whole Regulations |
Posted Workers (Agency Workers) Regulations 2020 (S.I. 2020/384) | The whole Regulations |
Title | Extent of Revocation |
|---|---|
Regulation (EEC) No 706/73 of the Council of 12 March 1973 concerning the Community arrangements applicable to the Channel Islands and the Isle of Man for trade in agricultural products | The whole Regulation |
Regulation (EEC) No 859/73 of the Commission of 30 March 1973 fixing the export levies on olive oil | The whole Regulation |
Commission Regulation (EEC) No 1361/76 of 14 June 1976 laying down certain detailed rules for applying the export refund on rice and on mixtures of rice | The whole Regulation |
Commission Regulation (EEC) No 1842/81 of 3 July 1981 laying down detailed rules for implementing Regulation (EEC) No 1188/81 relating to general rules for granting refunds adjusted in the case of cereals exported in the form of certain spirituous beverages | The whole Regulation |
Commission Regulation (EEC) No 3423/81 of 30 November 1981 on communication by the Member States of data concerning exports of cereal and rice products as food aid | The whole Regulation |
Council Regulation (EEC) No 56/83 of 16 December 1982 concerning the implementation of the Agreement on the international carriage of passengers by road by means of occasional coach and bus services (ASOR) | The whole Regulation |
Commission Regulation (EEC) No 2003/84 of 12 July 1984 fixing the export refunds on cereals and on wheat or rye flour, groats and meal | The whole Regulation |
Council Regulation (EEC) No 1899/85 of 8 July 1985 establishing a minimum mesh size for nets used when fishing for capelin in that part of the zone of the Convention on future multilateral cooperation in the north-east Atlantic fisheries which extends beyond the maritime waters falling within the fisheries jurisdiction of Contracting Parties to the Convention | The whole Regulation |
Commission Regulation (EEC) No 3716/85 of 27 December 1985 laying down certain technical and control measures relating to the fishing activities in Spanish waters of vessels flying the flag of another Member State except Portugal | The whole Regulation |
Commission Regulation (EEC) No 3719/85 of 27 December 1985 laying down certain technical measures and control measures relating to the fishing activities in Portuguese waters of vessels flying the flag of another Member State except Spain | The whole Regulation |
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff | The whole Regulation |
Commission Regulation (EEC) No 3556/87 of 26 November 1987 laying down additional detailed rules for the application of the system of advance-fixing certificates in the case of certain cereal sector products exported in the form of pasta falling within heading No 19.03 of the Common Customs Tariff | The whole Regulation |
Commission Regulation (EEC) No 3846/87 of 17 December 1987 establishing an agricultural product nomenclature for export refunds | The whole Regulation |
Council Regulation (EEC) No 1096/88 of 25 April 1988 establishing a Community scheme to encourage the cessation of farming | The whole Regulation |
Commission Regulation (EEC) No 120/89 of 19 January 1989 laying down common detailed rules for the application of export levies and charges on agricultural products | The whole Regulation |
Commission Regulation (EEC) No 205/92 of 30 January 1992 fixing the import levies on cereals and on wheat or rye flour, groats and meal | The whole Regulation |
Commission Regulation (EEC) No 338/92 of 12 February 1992 laying down detailed rules for the application of Council Regulation (EEC) No 3763/91 with regard to the Community quota for the import of 8 000 tonnes of wheat bran falling within CN code 2302 30 originating in the ACP States into the French overseas department of Réunion | The whole Regulation |
Commission Regulation (EC) No 3330/94 of 21 December 1994 on the tariff classification of certain poultry cuts and amending Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff | The whole Regulation |
Council Decision of 22 December 1994 on the extension of the legal protection of topographies of semiconductor products to persons Decision from a Member of the World Trade Organization (94/824/EC) | The whole Regulation |
Commission Regulation (EC) No 1439/95 of 26 June 1995 laying down detailed rules for the application of Council (EEC) No 3013/89 as regards the import and export of products in the sheepmeat and goatmeat sector | The whole Regulation |
Commission Regulation (EC) No 1484/95 of 28 June 1995 laying down detailed rules for implementing the system of additional import duties and fixing representative prices in the poultrymeat and egg sectors and for egg albumin, and repealing Regulation No 163/67/EEC | The whole Regulation |
Council Decision of 18 September 1995 on the accession of the Community to the Agreement for the establishment of the Indian Ocean Tuna Commission (95/399/EC) | The whole Decision |
Commission Regulation (EC) No 2810/95 of 5 December 1995 on the tariff classification of pig carcases and half-carcases and amending Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff | The whole Regulation |
Council Decision of 29 March 1996 concerning the signing and provisional application of the International Tropical Timber Agreement 1994 on behalf of the European Community (96/493/EC) | The whole Decision |
Commission Decision of 22 April 1998 concerning the placing on the market of genetically modified maize (Zea mays L. line MON 810), pursuant to Council Directive 90/220/EEC (98/294/EC) | The whole Decision |
Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council on biocidal products | The whole Regulation |
Commission Regulation (EC) No 2056/2001 of 19 October 2001 establishing additional technical measures for the recovery of the stocks of cod in the North Sea and to the west of Scotland | The whole Regulation |
Commission Regulation (EC) No 2298/2001 of 26 November 2001 laying down detailed rules for the export of products supplied as food aid | The whole Regulation |
Council Decision of 3 October 2002 establishing pursuant to Directive 2001/18/EC of the European Parliament and of the Council the summary information format relating to the placing on the market of genetically modified organisms as or in products (2002/812/EC) | The whole Decision |
Council Decision of 3 October 2002 establishing, pursuant to Directive 2001/18/EC of the European Parliament and of the Council, the summary notification information format for notifications concerning the deliberate release into the environment of genetically modified organisms for purposes other than for placing on the market (2002/813/EC) | The whole Decision |
Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs | The whole Regulation |
Commission Regulation (EC) No 2004/2002 of 8 November 2002 relating to the procedure for determining the meat and fat content of certain pigmeat products | The whole Regulation |
Commission Regulation (EC) No 2246/2002 of 16 December 2002 on the fees payable to the Office for Harmonization in the Internal Regulation Market (Trade Marks and Designs) in respect of the registration of Community designs | The whole Regulation |
Commission Regulation (EC) No 33/2003 of 9 January 2003 on the issue of import licences for high- quality fresh, chilled or frozen beef and veal | The whole Regulation |
Commission Decision of 23 February 2004 laying down detailed arrangements for the operation of the registers for recording information on genetic modifications in GMOs, provided for in Directive 2001/18/EC of the European Parliament and of the Council (2004/204/EC) | Articles 5 and 6 |
Commission Decision of 19 March 2004 concerning guidance for implementation of Directive 2002/3/EC of the European Parliament and of the Council relating to ozone in ambient air (2004/279/EC) | The whole Decision |
Commission Regulation (EC) No 2002/2004 of 22 November 2004 on the issuing of system A3 export licences in the fruit and vegetables sector (tomatoes, oranges, lemons, table grapes and apples) | The whole Regulation |
Commission Decision of 18 April 2005 on the extension of the limited recognition of ‘RINAVE — Registro Internacional Naval, SA’ (2005/311/EC) | The whole Decision |
Commission Decision of 4 May 2005 establishing a questionnaire for reporting on the application of Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (2005/381/EC) | The whole Decision |
Council Regulation (EC) No 919/2005 of 13 June 2005 amending Regulation (EC) No 827/2004 as regards the prohibition of imports of Atlantic bigeye tuna from Cambodia, Equatorial Guinea and Sierra Leone, and repealing Regulation (EC) No 826/2004 prohibiting imports of blue-fin tuna from Equatorial Guinea and Sierra Leone and Regulation (EC) No 828/2004 prohibiting imports of swordfish from Sierra Leone | The whole Regulation |
Commission Decision of 21 June 2005 establishing a network group for the exchange and coordination of information concerning coexistence of genetically modified, conventional and organic crops (2005/463/EC) | The whole Decision |
Commission Regulation (EC) No 1993/2005 of 7 December 2005 on the adjustment of the export refunds on malt under Article 15(4) of Regulation Council Regulation (EC) No 1784/2003 | The whole Regulation |
Commission Regulation (EC) No 952/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards the management of the Community market in sugar and the quota system | The whole Regulation |
Commission Regulation (EC) No 967/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards sugar production in excess of the quota | The whole Regulation |
Commission Regulation (EC) No 951/2006 of 30 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 318/2006 as regards trade with third countries in the sugar sector | The whole Regulation |
Commission Decision of 29 September 2006 granting Community limited recognition to the Polish Register of Shipping (2006/660/EC) | The whole Decision |
Commission Regulation (EC) No 1643/2006 of 7 November 2006 laying down detailed rules for the application of granting of assistance for the export of beef and veal products which may benefit from a special import treatment in a third country | The whole Regulation |
Commission Regulation (EC) No 1670/2006 of 10 November 2006 laying down certain detailed rules for the application of Council Regulation (EC) No 1784/2003 as regards the fixing and granting of adjusted refunds in respect of cereals exported in the form of certain spirit drinks | The whole Regulation |
Commission Regulation (EC) No 1731/2006 of 23 November 2006 on special detailed rules for the application of export refunds in the case of certain preserved beef and veal products | The whole Regulation |
Commission Regulation (EC) No 1741/2006 of 24 November 2006 laying down the conditions for granting the special export refund on boned meat of adult male bovine animals placed under the customs warehousing procedure prior to export | The whole Regulation |
Commission Regulation (EC) No 88/2007 of 12 December 2006 laying down special detailed rules for the application of the system of export refunds on cereals exported in the form of pasta products falling within CN codes 19021100 and 190219 | The whole Regulation |
Commission Decision of 20 December 2006 concerning the extension of the deadline for placing on the market of biocidal products containing certain active substances not examined during the ten-year work programme referred to in Article 16(2) of Directive 98/8/EC (2007/70/EC) | The whole Decision |
Council Regulation (EC) No 41/2007 of 21 December 2006 fixing for 2007 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required | The whole Regulation |
Commission Regulation (EC) No 433/2007 of 20 April 2007 laying down the conditions for granting special export refunds for beef and veal | The whole Regulation |
Commission Regulation (EC) No 504/2007 of 8 May 2007 laying down detailed rules for the application of the arrangements for additional import duties in the milk and milk products sector | The whole Regulation |
Commission Decision of 23 May 2007 concerning the placing on the market, in accordance with Directive 2001/18/EC of the European Parliament and of the Council, of a carnation (2007/364/EC) | The whole Decision |
Council Decision of 7 June 2007 authorising Member States to ratify, in the interests of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation (2007/431/EC) | The whole Decision |
Council Regulation (EC) No 643/2007 of 11 June 2007 amending (EC) No 41/2007 as concerns the recovery plan for bluefin tuna recommended by the International Commission for the Conservation of Atlantic Tunas | The whole Regulation |
Commission Decision of 17 July 2007 on establishing the European High Level Group on Nuclear Safety and Waste Management (2007/530/Euratom) | The whole Decision |
Commission Regulation (EC) No 877/2007 of 24 July 2007 amending Regulation (EC) No 2246/2002 concerning the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) following the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs | The whole Regulation |
Commission Decision of 2 October 2007 establishing a common format for the submission of data and information pursuant to Regulation (EC) No 850/2004 of the European Parliament and of the Council concerning persistent organic pollutants (2007/639/EC) | The whole Decision |
Commission Regulation (EC) No 1359/2007 of 21 November 2007 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals | The whole Regulation |
Commission Decision of 29 November 2007 setting a new deadline for the submission of dossiers for certain substances to be examined under the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC (2007/794/EC) | The whole Decision |
Commission Regulation (EC) No 1454/2007 of 10 December 2007 laying down common rules for establishing a tender procedure for fixing export refunds for certain agricultural products | The whole Regulation |
Council Regulation (EC) No 40/2008 of 16 January 2008 fixing for 2008 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required | The whole Regulation |
Commission Decision of 1 April 2008 establishing a specific control and inspection programme related to the recovery of bluefin tuna in the Eastern Atlantic and the Mediterranean (2008/323/EC) | The whole Decision |
Commission Decision of 8 May 2008 setting a new deadline for the submission of dossiers for certain substances to be examined under the 10-year work programme referred to in Article 16(2) of Directive98/8/EC of the European Parliament and of the Council (2008/423/EC) | The whole Decision |
Commission Regulation (EC) No 508/2008 of 6 June 2008 on the definition, applicable to the granting of export refunds, of hulled grains and pearled grains of cereals | The whole Regulation |
Commission Regulation (EC) No 536/2008 of 13 June 2008 giving effect to Article 6(3) and Article 7 of Regulation (EC) No 782/2003 of the European Parliament and of the Council on the prohibition of organotin compounds on ships and amending that Regulation | The whole Regulation |
Commission Regulation (EC) No 903/2008 of 17 September 2008 on special conditions for granting export refunds on certain pigmeat products | The whole Regulation |
Commission Regulation (EC) No 1041/2008 of 23 October 2008 laying down certain detailed rules for granting of assistance for the export of beef and veal which may benefit from a special import treatment in Canada | The whole Regulation |
Commission Decision of 31 October 2008 setting a new deadline for the submission of dossiers for certain substances to be examined under the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC (2008/831/EC) | The whole Decision |
Commission Decision of 12 November 2008 on a temporary derogation from the rules of origin laid down in Annex II to Council Regulation (EC) No 1528/2007 to take account of the special situation of Kenya with regard to tuna loins (2008/886/EC) | The whole Decision |
Commission Decision of 20 November 2008 defining a format for the submission of the information by Member States in accordance with Article 7(4)(b)(iii) of the Regulation (EC) No 850/2004 of the European Parliament and of the Council (2009/63/EC) | The whole Decision |
Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 | Annex VIII |
Commission Regulation (EC) No 147/2009 of 20 February 2009 on defining the destination zones for exports refunds, export levies and certain export licences for cereals and rice | The whole Regulation |
Commission Decision of 16 March 2009 concerning the placing on the market, in accordance with Directive 2001/18/EC of the European Parliament and of the Council, of a carnation (2009/244/EC) | The whole Decision |
Commission Regulation (EC) No 296/2009 of 8 April 2009 on detailed rules for administrative assistance with the exportation of certain cheeses subject to quota restrictions that qualifies for special treatment on importation into the United States of America | The whole Regulation |
Commission Decision of 8 April 2009 setting a new deadline for the submission of dossiers for certain substances to be examined under the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council (2009/321/EC) | The whole Decision |
Commission Regulation (EC) No 335/2009 of 23 April 2009 fixing the maximum export refund for skimmed milk powder in the framework of the standing invitation to tender provided for in Regulation (EC) No 619/2008 | The whole Regulation |
Commission Regulation (EC) No 388/2009 of 12 May 2009 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the import and export system for products processed from cereals and rice | The whole Regulation |
Commission Decision of 8 June 2009 on the detailed interpretation of the aviation activities listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council (2009/450/EC) | The whole Decision |
Commission Regulation (EC) No 612/2009 of 7 July 2009 on laying down common detailed rules for the application of the system of export refunds on agricultural products | The whole Regulation |
Council Regulation (EC) No 754/2009 of 27 July 2009 excluding certain groups of vessels from the fishing effort regime laid down in Chapter III of Regulation (EC) No 1342/2008 | The whole Regulation |
Commission Regulation (EC) No 748/2009 of 5 August 2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Decision of 30 September 2009 extending without limitations the Community recognition of the Polish Register of Shipping (2009/728/EC) | The whole Decision |
Commission Decision of 18 December 2009 designating the Community Fisheries Control Agency as the body to carry out certain tasks under Council Regulation (EC) No 1005/2008 (2009/988/EU) | The whole Decision |
Council Regulation (EU) No 53/2010 of 14 January 2010 fixing for 2010 the fishing opportunities for certain fish stocks and groups of Regulation fish stocks, applicable in EU waters and, for EU vessels, in waters where catch limitations are required and amending (EC) No 1359/2008, (EC) No 754/2009, (EC) No 1226/2009 and (EC) No 1287/2009 | The whole Regulations |
Commission Regulation (EU) No 82/2010 of 28 January 2010 amending Regulation (EC) No 748/2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Decision of 9 February 2010 setting a new deadline for the submission of a dossier for terbutryn to be examined under the 10-year work programme referred to in Article 16(2) of Directive98/8/EC of the European Parliament and of the Council (2010/77/EU) | The whole Decision |
Commission Decision of 9 February 2010 setting a new deadline for the submission of dossiers for certain substances to be examined under the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council (2010/84/EU) | The whole Decision |
Commission Regulation (EU) No 192/2010 of 5 March 2010 fixing the import duties applicable to semi-milled and wholly milled rice from 6 March 2010 | The whole Regulation |
Commission Regulation (EU) No 234/2010 of 19 March 2010 laying down certain detailed rules for the application of Council Regulation (EC) No 1234/2007 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals | The whole Regulation |
Commission Regulation (EU) No 237/2010 of 22 March 2010 laying down detailed rules for the application of Council Regulation (EC) No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks | The whole Regulation |
Commission Decision of 14 April 2010 amending Directive 2009/42/EC of the European Parliament and of the Council on statistical returns in respect of carriage of goods and passengers by sea (2010/216/EU) | The whole Decision |
Council Decision of 17 May 2010 on the signing of a Voluntary Partnership Agreement between the European Union and the Republic of the Congo on forest law enforcement, governance and trade in timber and derived products to the European Union (FLEGT) (2010/615/EU) | The whole Decision |
Commission Decision of 21 May 2010 on the establishment of a Register for Biocidal Products (2010/296/EU) | The whole Decision |
Council Regulation (EU) No 621/2010 of 3 June 2010 concerning the allocation of the fishing opportunities under the Fisheries Partnership Agreement between the European Union and Solomon Islands | The whole Regulation |
Council Decision of 3 June 2010 on the signing, on behalf of the European Union, and provisional application of the Understanding between the European Union and the Republic of Chile concerning the conservation of swordfish stocks in the South-Eastern Pacific Ocean (2010/343/EC) | The whole Decision |
Council Decision of 3 June 2010 on the signing, on behalf of the European Union, and on provisional application of the Fisheries Partnership Agreement between the European Union and Solomon Islands (2010/397/EU) | The whole Decision |
Council Decision of 7 June 2010 authorising Member States to ratify, in the interests of the European Union, the Work in Fishing Convention, 2007, of the International Labour Organisation (Convention No 188) (2010/321/EU) | The whole Decision |
Council Decision of 24 June 2010 on the signing, on behalf of the European Union, of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (2011/189/EU) | The whole Decision |
Commission Decision of 28 June 2010 on the recognition of Israel as regards education, training and certification of seafarers for the recognition of certificates of competency (2010/361/EU) | The whole Decision |
Commission Decision of 28 June 2010 on the recognition of Algeria as regards education, training and certification of seafarers for the recognition of certificates of competency (2010/363/EU) | The whole Decision |
Commission Regulation (EU) No 581/2010 of 1 July 2010 on the maximum periods for the downloading of relevant data from vehicle units and from driver cards | The whole Regulation |
Council Regulation (EU) No 685/2010 of 26 July 2010 establishing the fishing opportunities for anchovy in the Bay of Biscay for the 2010/11 fishing season and amending Regulation (EU) No 53/2010 | The whole Regulation |
Commission Regulation (EU) No 817/2010 of 16 September 2010 laying down detailed rules pursuant to Council Regulation (EC) No 1234/2007 as regards requirements for the granting of export refunds related to the welfare of live bovine animals during transport | The whole Regulation |
Council Decision of 27 September 2010 on the signing of a Voluntary Partnership Agreement between the European Union and the Republic of Cameroon on forest law enforcement, governance and trade in timber and derived products to the European Union (FLEGT) (2011/200/EU) | The whole Decision |
Commission Decision of 22 October 2010 adjusting the Union-wide quantity of allowances to be issued under the Union Scheme for Decision 2013 and repealing 2010/384/EU (2010/634/EU) | The whole Decision |
Commission Decision of 3 November 2010 laying down criteria and measures for the financing of commercial demonstration projects that aim at the environmentally safe capture and geological storage of CO2 as well as demonstration projects of innovative renewable energy technologies under the scheme for greenhouse gas emission allowance trading within the Community established by Directive2003/87/EC of the European Parliament and of the Council (2010/670/EU) | The whole Decision |
Commission Regulation (EU) No 1031/2010 of 12 November 2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the European Parliament and of the Council establishing a system for greenhouse gas emission allowances trading within the Community | The whole Regulation |
Commission Decision of 22 November 2010 on the recognition of Sri Lanka as regards education, training and certification of seafarers for the recognition of certificates of competency (2010/704/EU) | The whole Decision |
Commission Decision of 22 November 2010 on the withdrawal of the recognition of Georgia as regards education, training and certification of seafarers for the recognition of certificates of competency (2010/705/EU) | The whole Decision |
Regulation (EU) No 1090/2010 of the European Parliament and of the Council of 24 November 2010 amending Directive 2009/42/EC on statistical returns in respect of carriage of goods and passengers by sea | The whole Regulation |
Council Regulation (EU) No 1124/2010 of 29 November 2010 fixing for 2011 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea | The whole Regulation |
Council Decision of 6 December 2010 on the conclusion of a Fisheries The whole Partnership Agreement between the European Union and Solomon Decision Islands (2010/763/EU) | The whole Decision |
Council Regulation (EU) No 156/2011 of 13 December 2010 concerning the allocation of the fishing opportunities under the Protocol to the Partnership Agreement between the European Community and the Federated States of Micronesia on fishing in the Federated States of Micronesia | The whole Regulation |
Commission Regulation (EU) No 1178/2010 of 13 December 2010 laying down detailed rules for implementing the system of export licences in the egg sector | The whole Regulation |
Council Regulation (EU) No 1225/2010 of 13 December 2010 fixing for 2011 and 2012 the fishing opportunities for EU vessels for fish stocks of certain deep-sea fish species | The whole Regulation |
Council Regulation (EU) No 1256/2010 of 17 December 2010 fixing the fishing opportunities for certain fish stocks applicable in the Black Sea for 2011 | The whole Regulation |
Council Regulation (EU) No 1263/2010 of 20 December 2010 Protocol setting out the fishing opportunities and the financial concerning the allocation of the fishing opportunities under the contribution provided for by the Fisheries Partnership Agreement 790 between the European Community and the Republic of Seychelles | The whole Regulation |
Council Regulation (EU) No 57/2011 of 18 January 2011 fixing for 2011 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in EU waters and, for EU vessels, in certain non-EU waters | The whole Regulation |
Commission Regulation (EU) No 115/2011 of 2 February 2011 amending Regulation (EC) No 748/2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Regulation (EU) No 90/2011 of 3 February 2011 laying down detailed rules for implementing the system of export licences in the poultrymeat sector | The whole Regulation |
Council Regulation (EU) No 501/2011 of 24 February 2011 on the allocation of fishing opportunities under the Protocol to the Fisheries Partnership Agreement between the European Community and the Democratic Republic of São Tomé and Príncipe | The whole Regulation |
Commission Decision of 7 March 2011 on historical aviation emissions pursuant to Article 3c(4) of Directive 2003/87/EC of the Decision European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community (2011/149/EU) | The whole Decision |
Commission Decision of 29 March 2011 establishing a specific control and inspection programme related to the recovery of bluefin tuna in the eastern Atlantic and the Mediterranean | The whole Decision |
Commission Regulation (EU) No 394/2011 of 20 April 2011 amending Regulation (EC) No 748/2009 on the list of aircraft operators that performed an aviation activity listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council on or after 1 January 2006 specifying the administering Member State for each aircraft operator as regards the expansion of the Union emission trading scheme to EEA-EFTA countries | The whole Regulation |
Commission Decision of 27 April 2011 on the recognition of Tunisia as regards education, training and certification of seafarers for the recognition of certificates of competency (2011/259/EU) | The whole Decision |
Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (2011/278/EU) | The whole Decision |
Commission Regulation (EU) No 550/2011 of 7 June 2011 on determining, pursuant to Directive 2003/87/EC of the European Parliament and of the Council, certain restrictions applicable to the use of international credits from projects involving industrial gases | The whole Regulation |
Council Regulation (EU) No 660/2011 of 9 June 2011 concerning the allocation of fishing opportunities under the Protocol agreed between the European Union and the Republic of Cape Verde setting out the fishing opportunities and the financial contribution provided for in the Fisheries Partnership Agreement between the two parties currently in force | The whole Regulation |
Commission Decision of 28 June 2011 on the recognition of Ecuador pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for the training and certification of seafarers (2011/385/EU) | The whole Decision |
Commission Decision of 30 June 2011 on the Union-wide quantity of allowances referred to in Article 3e(3)(a) to (d) of Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowances trading within the Community (2011/389/EU) | The whole Decision |
Commission Implementing Decision of 13 July 2011 adopting guidelines for reporting by the Member States under Directive 2010/40/EU of the European Parliament and of the Council (2011/453/EU) | The whole Decision |
Council Regulation (EU) No 716/2011 of 19 July 2011 establishing the fishing opportunities for anchovy in the Bay of Biscay for the 2011/2012 fishing season | The whole Regulation |
Commission Implementing Decision on the recognition of Azerbaijan pursuant to Directive 2008/106/EC of 25 August 2011 of the European Parliament and of the Council as regards the systems for the training and certification of seafarers (2011/517/EU) | The whole Decision |
Commission Decision of 26 September 2011 on benchmarks to allocate greenhouse gas emission allowances free of charge to aircraft operators pursuant to Article 3e of Directive 2003/87/EC of the European Parliament and of the Council (2011/638/EU) | The whole Decision |
Council Decision of 3 October 2011 on the approval, on behalf of the European Union, of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (2012/130/EU) | The whole Decision |
Council Decision of 10 October 2011 on the conclusion of the Protocol agreed between the European Union and the Republic of Cape Verde setting out the fishing opportunities and the financial contribution provided for in the Fisheries Partnership Agreement between the two parties currently in force (2011/679/EU) | The whole Decision |
Council Regulation (EU) No 1385/2011 of 14 November 2011 on the allocation of the fishing opportunities under the Protocol agreed between the European Union and the Republic of Guinea-Bissau setting out fishing opportunities and the financial contribution provided for in the Fisheries Partnership Agreement between the two parties currently in force | The whole Regulation |
Commission Decision of 18 November 2011 establishing rules and calculation methods for verifying compliance with the targets set in Article 11(2) of Directive 2008/98/EC of the European Parliament and of the Council (2011/753/EU) | The whole Decision |
Commission Regulation (EU) No 1210/2011 of 23 November 2011 amending Regulation (EU) No 1031/2010 in particular to determine the volume of greenhouse gas emission allowances to be auctioned prior to 2013 | The whole Regulation |
Council Regulation (EU) No 1256/2011 of 30 November 2011 fixing for 2012 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea and amending Regulation (EU) No 1124/2010 | The whole Regulation |
Commission Implementing Decision of 7 December 2011 on the recognition of Cape Verde pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for the training and certification of seafarers (2011/821/EU) | The whole Decision |
Commission Implementing Decision of 7 December 2011 on the recognition of Bangladesh pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for the training and certification of seafarers (2011/822/EU) | The whole Decision |
Commission Regulation (EU) No 1286/2011 of 9 December 2011 adopting a common methodology for investigating marine casualties and incidents developed pursuant to Article 5(4) of Directive 2009/18/EC of the European Parliament and of the Council | The whole Regulation |
Council Decision of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana (2012/19/EU) | The whole Decision |
Council Regulation (EU) No 5/2012 of 19 December 2011 fixing for2012 the fishing opportunities for certain fish stocks and groups of Regulation fish stocks applicable in the Black Sea | The whole Regulation |
Council Decision of 20 December 2011 repealing Council Decision 2011/491/EU on the signing, on behalf of the European Union, and the provisional application of the Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial compensation provided for in the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (2012/15/EU) | The whole Decision |
Council Regulation (EU) No 43/2012 of 17 January 2012 fixing for 2012 the fishing opportunities available to EU vessels for certain fish stocks and groups of fish stocks which are not subject to international negotiations or agreements | The whole Regulation |
Council Regulation (EU) No 44/2012 of 17 January 2012 fixing for 2012 the fishing opportunities available in EU waters and, to EU vessels, in certain non-EU waters for certain fish stocks and groups of fish stocks which are subject to international negotiations or agreements | The whole Regulation |
Council Regulation (EU) No 134/2012 of 23 January 2012 concerning the allocation of fishing opportunities under the Protocol to the Fisheries Partnership Agreement between the European Community and the Republic of Mozambique | The whole Regulation |
Commission Implementing Decision of 2 February 2012 on the recognition of the RINA SpA (Italian Register of Shipping) as a classification society for inland waterway vessels (2012/64/EU) | The whole Decision |
Commission Implementing Decision of 2 February 2012 on the recognition of the Russian Maritime Register of Shipping as a classification society for inland waterway vessels (2012/65/EU) | The whole Decision |
Commission Implementing Decision of 2 February 2012 on the recognition of the Polski Rejestr Statków S.A. (Polish Register of Shipping) as a classification society for inland waterway vessels (2012/66/EU) | The whole Decision |
Commission Regulation (EU) No 100/2012 of 3 February 2012 amending Regulation (EC) No 748/2009 on the list of aircraft operators that performed an aviation activity listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council on or after 1 January 2006 specifying the administering Member State for each aircraft operator also taking into consideration the expansion of the Union emission trading scheme to EEA-EFTA countries | The whole Regulation |
Commission Delegated Decision of 3 February 2012 amending Directive 2009/42/EC of the European Parliament and of the Council on statistical returns in respect of carriage of goods and passengers by sea (2012/186/EU) | The whole Decision |
Commission Implementing Decision of 9 February 2012 on the recognition of Ghana pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for the training and certification of seafarers (2012/75/EU) | The whole Decision |
Commission Implementing Decision of 9 February 2012 on the recognition of Uruguay pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for the training and certification of seafarers (2012/76/EU) | The whole Decision |
Commission Implementing Decision of 10 February 2012 laying down rules concerning the transitional national plans referred to in Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions (2012/115/EU) | The whole Decision |
Council Decision of 28 February 2012 on the conclusion of the Protocol agreed between the European Union and the Republic of Guinea-Bissau setting out fishing opportunities and the financial contribution provided for in the Fisheries Partnership Agreement between the two parties currently in force (2012/145/EU) | The whole Decision |
Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Regulation Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights | The whole Regulation |
Commission Implementing Decision of 2 May 2012 amending 2011/207/EU establishing a specific control and inspection programme related to the recovery of bluefin tuna in the eastern Atlantic and the Mediterranean (2012/246/EU) | The whole Decision |
Commission Implementing Regulation (EU) No 481/2012 of 7 June 2012 laying down rules for the management of a tariff quota for high-quality beef | The whole Regulation |
Council Decision of 12 June 2012 on the conclusion of the Protocol setting out the fishing opportunities and the financial contribution provided for by the Fisheries Partnership Agreement between the European Community and the Republic of Mozambique (2012/306/EU) | The whole Decision |
Council Regulation (EU) No 972/2012 of 16 July 2012 establishing the deadline in the event of underutilisation of fishing opportunities Regulation under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other hand | The whole Regulation |
Council Decision of 16 July 2012 on the signing, on behalf of the European Union, and the provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community on the one hand and the Government of Denmark and the Home Rule Government of Greenland, on the other hand (2012/653/EU) | The whole Decision |
Council Regulation (EU) No 694/2012 of 27 July 2012 establishing the fishing opportunities for anchovy in the Bay of Biscay for the 2012/13 fishing season | The whole Regulation |
Commission Decision of 17 August 2012 amending Decisions 2010/2/EU and 2011/278/EU as regards the sectors and subsectors which are deemed to be exposed to a significant risk of carbon leakage (2012/498/EU) | The whole Decision |
Commission Decision of 20 August 2012 setting a new deadline for the submission of dossiers for certain substances to be examined under the 14-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council (2012/483/EU) | The whole Decision |
Commission Regulation (EU) No 784/2012 of 30 August 2012 amending Regulation (EU) No 1031/2010 to list an auction platform to be appointed by Germany and correcting Article 59(7) thereof | The whole Regulation |
Commission Implementing Decision of 17 September 2012 on the recognition of Egypt pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for the training and certification of seafarers (2012/505/EU) | The whole Decision |
Council Regulation (EU) No 998/2012 of 9 October 2012 on the allocation of fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community, on the one hand, and the Republic of Kiribati, on the other | The whole Regulation |
Council Regulation (EU) No 999/2012 of 9 October 2012 on the allocation of fishing opportunities under the Protocol to the Fisheries Partnership Agreement between the European Union and the Republic of Mauritius | The whole Regulation |
Council Decision of 9 October 2012 on the signing, on behalf of the European Union, and provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community, on the one hand, and the Republic of Kiribati, on the other (2012/669/EU) | The whole Decision |
Council Decision of 9 October 2012 on the signing, on behalf of the European Union, of the Fisheries Partnership Agreement between the European Union and the Republic of Mauritius (2012/670/EU) | The whole Decision |
Commission Regulation (EU) No 1042/2012 of 7 November 2012 amending Regulation (EU) No 1031/2010 to list an auction platform to be appointed by the United Kingdom | The whole Regulation |
Commission Decision of 15 November 2012 on notifying the third countries that the Commission considers as possible of being identified as non-cooperating third countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (2012/C 354/01) | The whole Decision |
Council Regulation (EU) No 1088/2012 of 20 November 2012 fixing for 2013 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea | The whole Regulation |
Council Regulation (EU) No 1258/2012 of 28 November 2012 on the allocation of the fishing opportunities under the Protocol agreed between the European Union and the Republic of Madagascar setting out fishing opportunities and the financial contribution provided for in the Fisheries Partnership Agreement between the two parties currently in force | The whole Regulation |
Council Regulation (EU) No 1259/2012 of 3 December 2012 on the allocation of the fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Islamic Republic of Mauritania for a period of two years, and amending Regulation (EC) No 1801/2006 | The whole Regulation |
Commission Implementing Decision of 13 December 2012 on the recognition of the Hashemite Kingdom of Jordan pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for the training and certification of seafarers (2012/783/EU) | The whole Decision |
Council Regulation (EU) No 1261/2012 of 20 December 2012 fixing for 2013 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Black Sea | The whole Regulation |
Council Regulation (EU) No 1262/2012 of 20 December 2012 fixing for 2013 and 2014 the fishing opportunities for EU vessels for certain deep-sea fish stocks | The whole Regulation |
Regulation (EU) No 100/2013 of the European Parliament and of the Council of 15 January 2013 amending Regulation (EC) No 1406/2002 establishing a European Maritime Safety Agency | The whole Regulation |
Council Regulation (EU) No 39/2013 of 21 January 2013 fixing for 2013 the fishing opportunities available to EU vessels for certain fish stocks and groups of fish stocks which are not subject to international negotiations or agreements | The whole Regulation |
Council Regulation (EU) No 40/2013 of 21 January 2013 fixing for 2013 the fishing opportunities available in EU waters and, to EU vessels, in certain non-EU waters for certain fish stocks and groups of fish stocks which are subject to international negotiations or agreements | The whole Regulation |
Commission Regulation (EU) No 109/2013 of 29 January 2013 amending Regulation (EC) No 748/2009 on the list of aircraft operators that performed an aviation activity listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council on or after 1 January 2006 specifying the administering Member State for each aircraft operator also taking into consideration the expansion of the Union emission trading scheme to EEA-EFTA countries | The whole Regulation |
Decision No 377/2013/EU of the European Parliament and of the Council of 24 April 2013 derogating temporarily from Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community | The whole Decision |
Council Regulation (EU) No 591/2013 of 29 May 2013 on the allocation of the fishing opportunities under the Protocol setting out fishing opportunities and the financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Republic of Côte d’Ivoire (2013-18) | The whole Regulation |
Commission Implementing Regulation (EU) No 564/2013 of 18 June 2013 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation (EU) No 528/2012 of the European Parliament and of the Council concerning the making available on the market and use of biocidal products | The whole Regulation |
Council Regulation (EU) No 897/2013 of 22 July 2013 on the allocation of the fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Gabonese Republic | The whole Regulation |
Council Regulation (EU) No 713/2013 of 23 July 2013 establishing the fishing opportunities for anchovy in the Bay of Biscay for the 2013/14 fishing season | The whole Regulation |
Commission Implementing Decision of 13 August 2013 amending Decision 2011/207/EU establishing a specific control and inspection programme related to the recovery of bluefin tuna in the eastern Atlantic and the Mediterranean (2013/432/EU) | The whole Decision |
Commission Regulation (EU) No 815/2013 of 27 August 2013 amending Regulation (EC) No 748/2009 on the list of aircraft operators that performed an aviation activity listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council on or after 1 January 2006 specifying the administering Member State for each aircraft operator to take into consideration the accession of Croatia to the European Union | The whole Regulation |
Commission Decision of 5 September 2013 on the standard capacity utilisation factor pursuant to Article 18(2) of Decision 2011/278/EU (2013/447/EU) | The whole Decision |
Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (2013/448/EU) | The whole Decision |
Council Decision of 23 September 2013 on the signing, on behalf of the European Union, of the Voluntary Partnership Agreement between the European Union and the Republic of Indonesia on forest law enforcement, governance and trade in timber products to the European Union (2013/486/EU) | The whole Decision |
Commission Regulation (EU) No 1123/2013 of 8 November 2013 on determining international credit entitlements pursuant to Directive 2003/87/EC of the European Parliament and of the Council | The whole Regulation |
Commission Regulation (EU) No 1143/2013 of 13 November 2013 amending Regulation (EU) No 1031/2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowances trading within the Community in particular to list an auction platform to be appointed by Germany | The whole Regulation |
Commission Implementing Decision of 26 November 2013 identifying the third countries that the Commission considers as non-cooperating third countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (2013/C 346/02) | The whole Decision |
Council Regulation (EU) No 1180/2013 of 19 November 2013 fixing for 2014 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea | The whole Regulation |
Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the Regulation development of the trans-European transport network and repealing No 661/2010/EU | The whole Decision |
Commission Implementing Decision of 13 December 2013 amending the recognition of Det Norske Veritas pursuant to Regulation (EC) No 391/2009 of the European Parliament and of the Council on common rules and standards for ship inspection and survey organisations (2013/765/EU) | The whole Decision |
Council Regulation (EU) No 1390/2013 of 16 December 2013 on the allocation of fishing opportunities under the Protocol agreed between the European Union and the Union of the Comoros setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement currently in force between the two parties | The whole Regulation |
Council Regulation (EU) No 11/2014 of 16 December 2013 concerning the allocation of fishing opportunities under the Protocol setting out the fishing opportunities and the financial contribution provided for by the Fisheries Partnership Agreement between the European Union and the Republic of Seychelles | The whole Regulation |
Decision No 1359/2013/EU of the European Parliament and of the Council of 17 December 2013 amending Directive 2003/87/EC clarifying provisions on the timing of auctions of greenhouse gas allowances | The whole Decision |
Commission Decision of 18 December 2013 amending Decisions 2010/2/EU and 2011/278/EU as regards the sectors and subsectors which are deemed to be exposed to a significant risk of carbon leakage (2014/9/EU) | The whole Decision |
Commission Implementing Regulation (EU) No 1373/2013 of 19 December 2013 laying down detailed rules for implementing the system of export licences in the pigmeat sector | The whole Regulation |
Commission Implementing Decision of 19 December 2013 on the recognition of Georgia pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for training and certification of seafarers (2013/794/EU) | The whole Decision |
Council Regulation (EU) No 24/2014 of 10 January 2014 fixing for 2014 the fishing opportunities for certain fish stocks and groups of fish stocks in the Black Sea | The whole Regulation |
Commission Delegated Regulation (EU) No 473/2014 of 17 January 2014 amending Regulation (EU) No 1315/2013 of the European Parliament and of the Council as regards supplementing Annex III thereto with new indicative maps | The whole Regulation |
Council Regulation (EU) No 43/2014 of 20 January 2014 fixing for 2014 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, to Union vessels, in certain non-Union waters | The whole Regulation |
Commission Regulation (EU) No 100/2014 of 5 February 2014 amending Regulation (EC) No 748/2009 on the list of aircraft operators that performed an aviation activity listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Decision of 13 February 2014 concerning the placing on the market for essential use of biocidal products containing copper (2014/85/EU) | The whole Decision |
Commission Regulation (EU) No 176/2014 of 25 February 2014 amending Regulation (EU) No 1031/2010 in particular to determine the volumes of greenhouse gas emission allowances to be auctioned in 2013-20 | The whole Regulation |
Regulation (EU) No 249/2014 of the European Parliament and of the Council of 26 February 2014 repealing Council Regulation (EC) No 827/2004 prohibiting imports of Atlantic bigeye tuna (Thunnus obesus) originating in Bolivia, Cambodia, Equatorial Guinea, Georgia and Sierra Leone and repealing Regulation (EC) No 1036/2001 | The whole Regulation |
Commission Implementing Decision of 18 March 2014 on the organisation of a temporary experiment providing for certain derogations for the marketing of populations of the plant species wheat, barley, oats and maize pursuant to Council Directive 66/402/EEC (2014/150/EU) | The whole Decision |
Commission Implementing Decision of 21 March 2014 amending Decision 2005/381/EC as regards the questionnaire for reporting on the application of Directive 2003/87/EC of the European Parliament and of the Council (2014/166/EU) | The whole Decision |
Regulation (EU) No 377/2014 of the European Parliament and of the Council of 3 April 2014 establishing the Copernicus Programme and repealing Regulation (EU) No 911/2010 | The whole Regulation |
Council Decision of 14 April 2014 on the conclusion of the Voluntary The whole Partnership Agreement between the European Union and the Republic of Indonesia on forest law enforcement, governance and trade in timber products to the European Union (2014/284/EU) | The whole Decision |
Regulation (EU) No 421/2014 of the European Parliament and of the Council of 16 April 2014 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in view of the implementation by 2020 of an international agreement applying a single global market-based measure to international aviation emissions | The whole Regulation |
Regulation (EU) No 510/2014 of the European Parliament and of the Council of 16 April 2014 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products and repealing Council Regulations (EC) No 1216/2009 and (EC) No 614/2009 | The whole Regulation |
Commission Implementing Decision of 14 May 2014 granting EU recognition to the Croatian Register of Shipping pursuant to Regulation (EC) No 391/2009 of the European Parliament and of the Council on common rules and standards for ship inspection and survey organisations (2014/281/EU) | The whole Decision |
Decision No 573/2014/EU of the European Parliament and of the Council of 15 May 2014 on enhanced cooperation between Public Employment Services (PES) | The whole Decision |
Council Regulation (EU) No 607/2014 of 19 May 2014 on the allocation of fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Democratic Republic of São Tomé and Príncipe | The whole Regulation |
Commission Decision of 10 June 2014 on notifying the Third Countries that the Commission considers as possible of being identified as non-cooperating Third Countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (2014/C 185/02) | The whole Decision |
Commission Decision of 10 June 2014 on notifying a Third Country that the Commission considers as possible of being identified as non-cooperating Third Countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (2014/C 185/03) | The whole Decision |
Commission Implementing Decision of 23 June 2014 on additional historical aviation emissions and additional aviation allowances to take into consideration the accession of Croatia to the European Union (2014/389/EU) | The whole Decision |
Commission Decision of 24 June 2014 concerning the placing on the market for essential use of biocidal products containing copper (2014/395/EU) | The whole Decision |
Commission Implementing Regulation (EU) No 705/2014 of 25 June 2014 fixing the import duty applicable to broken rice | The whole Regulation |
Commission Implementing Decision of 25 June 2014 regarding restrictions of authorisations of biocidal products containing IPBC notified by Germany in accordance with Directive 98/8/EC of the European Parliament and of the Council (2014/402/EU) | The whole Decision |
Commission Decision of 10 July 2014 concerning the placing on the market for essential use of biocidal products containing copper (2014/459/EU) | The whole Decision |
Council Decision of 23 July 2014 on the signing, on behalf of the Union, and provisional application of the Agreement between the European Union and the Kingdom of Norway on reciprocal access to fishing in the Skagerrak for vessels flying the flag of Denmark, Norway and Sweden (2014/505/EU) | The whole Decision |
Commission Delegated Regulation (EU) No 1078/2014 of 7 August 2014 amending Annex I to Regulation (EU) No 649/2012 of the European Parliament and of the Council concerning the export and import of hazardous chemicals | The whole Regulation |
Council Regulation (EU) No 1118/2014 of 8 October 2014 concerning the allocation of fishing opportunities under the Implementation Protocol to the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of Senegal | The whole Regulation |
Commission Delegated Regulation (EU) 2015/242 of 9 October 2014 laying down detailed rules on the functioning of the Advisory Councils under the Common Fisheries Policy | The whole Regulation |
Council Regulation (EU) No 1210/2014 of 16 October 2014 on the allocation of the fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau | The whole Regulation |
Regulation (EU) No 1144/2014 of the European Parliament and of the Council of 22 October 2014 on information provision and promotion measures concerning agricultural products implemented in the internal market and in third countries and repealing Council Regulation (EC) No 3/2008 | The whole Regulation |
Commission Decision of 27 October 2014 determining, pursuant to Directive 2003/87/EC of the European Parliament and of the Council, a list of sectors and subsectors which are deemed to be exposed to a significant risk of carbon leakage, for the period 2015 to 2019 (2014/746/EU) | The whole Decision |
Commission Implementing Decision of 29 October 2014 concerning restrictions of the authorisations of biocidal products containing IPBC and propiconazole notified by Germany in accordance with Directive 98/8/EC of the European Parliament and of the Council (2014/756/EU) | The whole Decision |
Commission Implementing Decision of 29 October 2014 concerning restrictions of the authorisation of a biocidal product containing IPBC notified by Germany in accordance with Directive 98/8/EC of the European Parliament and of the Council (2014/757/EU) | The whole Decision |
Commission Implementing Decision of 30 October 2014 establishing the type, format and frequency of information to be made available by the Member States on integrated emission management techniques applied in mineral oil and gas refineries, pursuant to Directive 2010/75/EU of the European Parliament and of the Council (2014/768/EU) | The whole Decision |
Commission Implementing Regulation (EU) No 1206/2014 of 7 November 2014 fixing the import duties in the cereals sector applicable from 8 November 2014 | The whole Regulation |
Council Regulation (EU) No 1221/2014 of 10 November 2014 fixing for 2015 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea and amending Regulations (EU) No 43/2014 and (EU) No 1180/2013 | The whole Regulation |
Commission Decision of 12 December 2014 notifying a third country that the Commission considers as possible of being identified as non-cooperating third country pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (2014/C 447/09) | The whole Decision |
Commission Decision of 12 December 2014 notifying a third country that the Commission considers as possible of being identified as non-cooperating third country pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (2014/C 447/10) | The whole Decision |
Commission Decision of 12 December 2014 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (2014/C 447/11) | The whole Decision |
Commission Decision of 12 December 2014 notifying a third country that the Commission considers as possible of being identified as non-cooperating third country pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (2014/C 453/04) | The whole Decision |
Council Regulation (EU) No 1350/2014 of 15 December 2014 concerning the allocation of the fishing opportunities under the Protocol setting out the fishing opportunities and the financial contribution provided for by the Fisheries Partnership Agreement between the Republic of Madagascar and the European Community | The whole Regulation |
Council Regulation (EU) No 1367/2014 of 15 December 2014 fixing for 2015 and 2016 the fishing opportunities for Union fishing vessels for certain deep-sea fish stocks | The whole Regulation |
Council Regulation (EU) No 1385/2014 of 15 December 2014 on the allocation of fishing opportunities under the Protocol between the European Union and the Republic of Cape Verde setting out the fishing opportunities and the financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Republic of Cape Verde | The whole Regulation |
Commission Implementing Decision of 17 December 2014 on the recognition of Japan pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for training and certification of seafarers (notified under document C(2014) 9590) (2014/935/EU) | The whole Decision |
Council Regulation (EU) 2015/104 of 19 January 2015 fixing for 2015 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union vessels, in certain non-Union waters, amending Regulation (EU) No 43/2014 and repealing Regulation (EU) No 779/2014 | The whole Regulation |
Council Regulation (EU) 2015/106 of 19 January 2015 fixing for 2015 the fishing opportunities for certain fish stocks and groups of fish stocks in the Black Sea | The whole Regulation |
Commission Decision (EU) 2015/191 of 5 February 2015 amending Decision 2010/670/EU as regards the extension of certain time limits laid down in Article 9 and Article 11(1) of that Decision | The whole Decision |
Commission Regulation (EU) 2015/180 of 9 February 2015 on amending Regulation (EC) No 748/2009 on the list of aircraft operators that performed an aviation activity listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Council Implementing Decision (EU) 2015/356 of 2 March 2015 authorising the United Kingdom to apply differentiated levels of taxation to motor fuels in certain geographical areas, in accordance with Article 19 of Directive 2003/96/EC | The whole Decision |
Council Decision (EU) 2015/633 of 20 April 2015 on the submission, on behalf of the European Union, of a proposal for the listing of additional chemicals in Annex A to the Stockholm Convention on Persistent Organic Pollutants | The whole Decision |
Council Decision (EU) 2015/627 of 20 April 2015 on the position to be taken, on behalf of the European Union, at the seventh meeting of the Conference of the Parties to the Stockholm Convention on Persistent Organic Pollutants as regards the proposals for amendments to Annexes A, B and C | The whole Decision |
Council Decision (EU) 2015/1497 of 20 April 2015 on the signing, on behalf of the European Union, and provisional application of the Agreement in the form of an Exchange of Letters between the European Union and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) concerning the membership of the Union in the Extended Commission of the Convention for the Conservation of Southern Bluefin Tuna | The whole Decision |
Council Decision (EU) 2015/674 of 20 April 2015 on the acceptance, on behalf of the European Union, of the amended Agreement for the establishment of the General Fisheries Commission for the Mediterranean | The whole Decision |
Commission Decision of 21 April 2015 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (2015/C 142/06) | The whole Decision |
Commission Delegated Regulation (EU) 2015/1829 of 23 April 2015 supplementing Regulation (EU) No 1144/2014 of the European Parliament and of the Council on information provision and promotion measures concerning agricultural products implemented in the internal market and in third countries | The whole Regulation |
Commission Implementing Decision (EU) 2015/692 of 24 April 2015 concerning the placing on the market, in accordance with Directive 2001/18/EC of the European Parliament and of the Council, of a carnation (Dianthus caryophyllus L., line 25958) genetically modified for flower colour | The whole Decision |
Commission Implementing Decision (EU) 2015/694 of 24 April 2015 concerning the placing on the market, in accordance with Directive 2001/18/EC of the European Parliament and of the Council, of a carnation (Dianthus caryophyllus L., line 26407) genetically modified for flower colour | The whole Decision |
Commission Delegated Regulation (EU) 2015/1538 of 23 June 2015 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to import licence applications, release for free circulation and proof of refining of sugar products of CN code 1701 under preferential agreements, for the marketing years 2015/16 and 2016/17 and amending Commission Regulations (EC) No 376/2008 and (EC) No 891/2009 | The whole Regulation |
Commission Decision (EU) 2015/1158 of 8 July 2015 on the position to be taken by the Commission, on behalf of the European Union, in the Joint Implementation Committee set up by the Voluntary Partnership Agreement between the European Union and the Republic of Indonesia on Forest Law Enforcement, Governance and Trade in timber products into the European Union as regards the amendments to the Annexes I, II, and V of the Voluntary Partnership Agreement between the European Union and the Republic of Indonesia | The whole Decision |
Council Decision (EU) 2015/1565 of 14 September 2015 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana | The whole Decision |
Commission Implementing Regulation (EU) 2015/1550 of 17 September 2015 laying down rules for the application of Regulation (EU) No 1308/2013 of the European Parliament and of the Council as regards the import and refining of sugar products of CN code 1701 under preferential agreements, for the marketing years 2015/2016 and 2016/2017 | The whole Regulation |
Commission Implementing Decision (EU) 2015/1737 of 28 September 2015 postponing the expiry date of approval of bromadiolone, chlorophacinone and coumatetralyl for use in biocidal products for product-type 14 | The whole Decision |
Commission Delegated Regulation (EU) 2015/2229 of 29 September 2015 amending Annex I to Regulation (EU) No 649/2012 of the European Parliament and of the Council concerning the export and import of hazardous chemicals | The whole Regulation |
Commission Implementing Regulation (EU) 2015/1742 of 29 September 2015 fixing the representative prices and additional import duties applicable to molasses in the sugar sector from 1 October 2015 | The whole Regulation |
Commission Implementing Decision (EU) 2015/1751 of 29 September 2015 on the terms and conditions of the authorisation of a biocidal product containing bromadiolone referred by the United Kingdom in accordance with Article 36 of Regulation (EU) No 528/2012 of the European Parliament and of the Council | The whole Decision |
Commission Decision of 1 October 2015 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (2015/C 324/07) | The whole Decision |
Commission Decision of 1 October 2015 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (2015/C 324/10) | The whole Decision |
Decision (EU) 2015/1814 of the European Parliament and of the Council of 6 October 2015 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading scheme and amending Directive 2003/87/EC | The whole Decision |
Commission Implementing Regulation (EU) 2015/1831 of 7 October 2015 laying down rules for application of Regulation (EU) No 1144/2014 of the European Parliament and of the Council on information provision and promotion measures concerning agricultural products implemented in the internal market and in the third countries | The whole Regulation |
Commission Implementing Regulation (EU) 2015/1897 of 21 October 2015 amending Commission Regulation (EC) No 2056/2001 as regards the landing obligation | The whole Regulation |
Council Regulation (EU) 2015/2192 of 10 November 2015 on the allocation of the fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania for a period of four years | The whole Regulation |
Council Regulation (EU) 2015/2313 of 30 November 2015 concerning the allocation of fishing opportunities under the Implementation Protocol to the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of Liberia | The whole Regulation |
Council Decision (EU) 2015/2437 of 14 December 2015 on the conclusion, on behalf of the European Union, of the Agreement in the form of an Exchange of Letters between the European Union and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) concerning the membership of the Union in the Extended Commission of the Convention for the Conservation of Southern Bluefin Tuna | The whole Decision |
Council Regulation (EU) 2016/73 of 18 January 2016 fixing for 2016 the fishing opportunities for certain fish stocks in the Black Sea | The whole Regulation |
Council Regulation (EU) 2016/72 of 22 January 2016 fixing for 2016 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters, and amending Regulation (EU) 2015/104 | The whole Regulation |
Commission Delegated Regulation (EU) 2016/758 of 4 February 2016 amending Regulation (EU) No 1315/2013 of the European Parliament and of the Council as regards adapting Annex III thereto | The whole Regulation |
Commission Implementing Decision (EU) 2016/209 of 12 February 2016 on a standardisation request to the European standardisation organisations as regards IntelligentTransportSystems (ITS) in urban areas in support of Directive 2010/40/EU of the European Parliament and of the Council on the framework for the deployment of Intelligent Transport Systems in the field of road transport and for interfaces with other modes of transport | The whole Decision |
Commission Regulation (EU) 2016/282 of 26 February 2016 amending Regulation (EC) No 748/2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (C/2016/2254) | The whole Decision |
Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (C/2016/2255) | The whole decision |
Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (C/2016/2256) | The whole Decision |
Council Regulation (EU) 2016/777 of 29 April 2016 concerning the allocation of fishing opportunities under the Implementation Protocol to the Sustainable Fisheries Partnership Agreement between the European Union and the Government of the Cook Islands | The whole Regulation |
Commission Implementing Decision (EU) 2016/775 of 18 May 2016 on the benchmark to allocate greenhouse gas emission allowances free of charge to aircraft operators pursuant to Article 3f(5) of Directive 2003/87/EC of the European Parliament and of the Council | The whole Decision |
Council Decision (EU) 2016/1062 of 24 May 2016 on the conclusion on behalf of the EU of the Sustainable Fisheries Partnership Agreement between the EU and the Republic of Liberia and the Implementation Protocol | The whole Decision |
Regulation (EU) 2016/1012 of the European Parliament and of the Council of 8 June 2016 on zootechnical and genealogical conditions for the breeding, trade in and entry into the Union of purebred breeding animals, hybrid breeding pigs and the germinal products thereof and amending Regulation (EU) No 652/2014, Council Directives 89/608/EEC and 90/425/EEC and repealing certain acts in the area of animal breeding | Article 64(3) |
Commission Implementing Decision (EU) 2016/1115 of 7 July 2016 establishing a format for the submission by the European Chemicals Agency of information concerning the operation of the procedures pursuant to Regulation (EU) No 649/2012 of the European Parliament and of the Council concerning the export and import of hazardous chemicals | The whole Decision |
Commission Implementing Decision (EU) 2016/1175 of 15 July 2016 on the terms and conditions of the authorisation of a biocidal product containing spinosad referred by the United Kingdom in accordance with Article 36 of Regulation (EU) No 528/2012 of the European Parliament and of the Council | The whole Decision |
Commission Implementing Decision (EU) 2016/1327 of 1 August 2016 granting EU recognition to the Indian Register of Shipping in accordance with Regulation (EC) No 391/2009 of the European Parliament and of the Council on common rules and standards for ship inspection and survey organisations | The whole Decision |
Commission Implementing Regulation (EU) 2016/1380 of 16 August 2016 on a derogation from Article 55(2)(a) of Delegated Regulation (EU) 2015/2446 as regards the rules of origin applicable to regional cumulation for tuna originating in Ecuador | The whole Regulation |
Commission Delegated Regulation (EU) 2017/117 of 5 September 2016 establishing fisheries conservation measures for the protection of the marine environment in the Baltic Sea and repealing Delegated Regulation (EU) 2015/1778 | The whole Regulation |
Commission Delegated Regulation (EU) 2017/86 of 20 October 2016 establishing a discard plan for certain demersal fisheries in the Mediterranean Sea | The whole Regulation |
Council Regulation (EU) 2016/1903 of 28 October 2016 fixing for 2017 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea and amending Regulation (EU) 2016/72 | The whole Regulation |
Commission Decision of 13 November 2006 on avoiding double counting of greenhouse gas emission reductions under the Community emissions trading scheme for project activities under the Kyoto Protocol pursuant to Directive 2003/87/EC of the European Parliament and of the Council (2006/780/EC) | The whole Decision |
Commission Implementing Regulation (EU) 2016/2043 of 22 November 2016 establishing the standard import values for determining the entry price of certain fruit and vegetables | The whole Regulation |
Commission Implementing Decision (EU) 2016/2050 of 22 November 2016 as regards the placing on the market of a genetically modified carnation (Dianthus caryophyllus L., line SHD-27531-4) | The whole Decision |
Regulation (EU) 2016/2094 of the European Parliament and of the Council of 23 November 2016 amending Council Regulation (EC) No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks | The whole Regulation |
Commission Decision of 23 November 2006 amending Decision 2005/381/EC establishing a questionnaire for reporting on the application of Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (2006/803/EC) | The whole Decision |
Commission Delegated Regulation (EU) 2017/849 of 7 December 2016 amending Regulation (EU) No 1315/2013 of the European Parliament and of the Council as regards the maps in Annex I and the list in Annex II to that Regulation | The whole Regulation |
Council Regulation (EU) 2016/2372 of 19 December 2016 fixing for 2017 the fishing opportunities for certain fish stocks and groups of fish stocks in the Black Sea | The whole Regulation |
Council Decision (EU) 2017/3 of 19 December 2016 on the conclusion of the Agreement between the European Union and the Kingdom of Norway on reciprocal access to fishing in the Skagerrak for vessels flying the flag of Denmark, Norway and Sweden | The whole Decision |
Council Regulation (EU) 2017/127 of 20 January 2017 fixing for 2017 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters | The whole Regulation |
Commission Decision (EU) 2017/126 of 24 January 2017 amending Decision 2013/448/EU as regards the establishment of a uniform cross-sectoral correction factor in accordance with Article 10a of Directive 2003/87/EC of the European Parliament and of the Council | The whole Decision |
Regulation (EU) 2017/352 of the European Parliament and of the Council of 15 February 2017 establishing a framework for the provision of port services and common rules on the financial transparency of ports | The whole Regulation |
Commission Regulation (EU) 2017/294 of 20 February 2017 amending Regulation (EC) No 748/2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Implementing Decision (EU) 2017/547 of 21 March 2017 on the organisation of a temporary experiment under Council Directive 2002/56/EC as regards seed potato tubers derived from true potato seed | The whole Decision |
Commission Decision of 23 May 2017 notifying the Republic of Liberia of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (C/2017/3174) | The whole Decision |
Council Decision (EU) 2017/418 of 28 February 2017 on the conclusion on behalf of the European Union of the Sustainable Fisheries Partnership Agreement between the European Union and the Government of the Cook Islands and the Implementation Protocol thereto | The whole Decision |
Commission Implementing Decision (EU) 2017/727 of 23 March 2017 on the recognition of Montenegro pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for training and certification of seafarers | The whole Decision |
Council Regulation (EU) 2017/595 of 27 March 2017 amending Regulation (EU) 2017/127 as regards certain fishing opportunities | The whole Regulation |
Council Regulation (EU) 2017/719 of 7 April 2017 amending Regulation (EU) 2015/2192 on the allocation of the fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania for a period of four years | The whole Regulation |
Council Decision (EU) 2017/758 of 25 April 2017 on the position to be adopted, on behalf of the European Union, at the eighth meeting of the Conference of the Parties to the Stockholm Convention on Persistent Organic Pollutants, as regards the proposals for amendments to Annexes A, B and C | The whole Decision |
Commission Implementing Decision (EU) 2017/1239 of 6 July 2017 on the recognition of Ethiopia pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for training and certification of seafarers | The whole Decision |
Commission Implementing Decision (EU) 2017/1412 of 1 August 2017 on the recognition of Fiji pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for training and certification of seafarers | The whole Decision |
Council Implementing Decision (EU) 2017/1767 of 25 September 2017 authorising the United Kingdom to apply reduced levels of taxation to motor fuels consumed on the islands of the Inner and Outer Hebrides, the Northern Isles, the islands in the Clyde, and the Isles of Scilly, in accordance with Article 19 of Directive 2003/96/EC | The whole Decision |
Commission Regulation (EU) 2017/1902 of 18 October 2017 amending Commission Regulation (EU) No 1031/2010 to align the auctioning of allowances with Decision (EU) 2015/1814 of the European Parliament and of the Council and to list an auction platform to be appointed by the United Kingdom | The whole Regulation |
Council Regulation (EU) 2018/76 of 23 October 2017 on the allocation of fishing opportunities under the Protocol setting out the fishing opportunities and the financial contribution provided for by the Fisheries Partnership Agreement between the European Union and the Republic of Mauritius | The whole Regulation |
Commission Delegated Regulation (EU) 2018/161 of 23 October 2017 establishing a de minimis exemption to the landing obligation for certain small pelagic fisheries in the Mediterranean Sea | The whole Regulation |
Council Decision (EU) 2017/1960 of 23 October 2017 on the signing, on behalf of the Union, and provisional application of the Protocol setting out the fishing opportunities and the financial contribution provided for by the Fisheries Partnership Agreement between the European Union and the Republic of Mauritius | The whole Decision |
Commission Decision of 23 October 2017 notifying the Socialist Republic of Vietnam of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (C/2017/6941) | The whole Decision |
Council Regulation (EU) 2017/1970 of 27 October 2017 fixing for 2018 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea and amending Regulation (EU) 2017/127 | The whole Regulation |
Commission Decision (EU) 2017/2172 of 20 November 2017 amending Decision 2010/670/EU as regards the deployment of non-disbursed revenues from the first round of calls for proposals | The whole Decision |
Commission Delegated Regulation (EU) 2018/211 of 21 November 2017 establishing a discard plan as regards salmon in the Baltic Sea | The whole Regulation |
Commission Delegated Regulation (EU) 2018/172 of 28 November 2017 amending Annexes I and V to Regulation (EU) No 649/2012 of the European Parliament and of the Council concerning the export and import of hazardous chemicals | The whole Regulation |
Council Regulation (EU) 2017/2360 of 11 December 2017 fixing for 2018 the fishing opportunities for certain fish stocks and groups of fish stocks in the Black Sea | The whole Regulation |
Decision (EU) 2017/2380 of the European Parliament and of the Council of 12 December 2017 amending Directive 2010/40/EU as regards the period for adopting delegated acts | The whole Decision |
Regulation (EU) 2017/2392 of the European Parliament and of the Council of 13 December 2017 amending Directive 2003/87/EC to continue current limitations of scope for aviation activities and to prepare to implement a global market-based measure from 2021 | The whole Regulation |
Commission Implementing Decision (EU) 2017/2334 of 14 December 2017 postponing the expiry date of approval of creosote for use in biocidal products of product-type 8 | The whole Decision |
Commission Regulation (EU) 2018/336 of 8 March 2018 amending Regulation (EC) No 748/2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Implementing Decision (EU) 2018/501 of 22 March 2018 on the recognition of the Sultanate of Oman pursuant to Directive 2008/106/EC of the European Parliament and of the Council as regards the systems for training and certification of seafarers | The whole Decision |
Council Regulation (EU) 2018/511 of 23 March 2018 amending Regulation (EU) 2018/120 as regards certain fishing opportunities | The whole Regulation |
Council Decision (EU) 2018/754 of 14 May 2018 on the conclusion of the Protocol setting out the fishing opportunities and the financial contribution provided for by the Fisheries Partnership Agreement between the European Union and the Republic of Mauritius | The whole Decision |
Council Decision (EU) 2018/757 of 14 May 2018 denouncing the Partnership Agreement in the fisheries sector between the European Community and the Union of the Comoros | The whole Decision |
Council Decision (EU) 2018/893 of 18 June 2018 on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning the amendment of Annex XI (Electronic communication, audiovisual services and information society) and Protocol 37 containing the list provided for in Article 101 to the EEA Agreement (General Data Protection Regulation) | The whole Decision |
Council Regulation (EU) 2018/915 of 25 June 2018 amending Regulation (EU) 2018/120 as regards certain fishing opportunities | The whole Regulation |
Regulation (EU) 2018/975 of the European Parliament and of the Council of 4 July 2018 laying down management, conservation and control measures applicable in the South Pacific Regional Fisheries Management Organisation (SPRFMO) Convention Area | The whole Regulation |
Council Decision (EU) 2018/1069 of 26 July 2018 on the signing, on behalf of the Union, and provisional application of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Union and the Republic of Cote d’Ivoire (2018-2024) | The whole Decision |
Council Regulation (EU) 2018/1095 of 26 July 2018 on the allocation of fishing opportunities under the Protocol on the implementation of the Fisheries Partnership Agreement between the European Union and the Republic of Cote d'Ivoire (2018-2024) | The whole Regulation |
Council Regulation (EU) 2018/1070 of 26 July 2018 amending Regulation (EU) 2017/1970 fixing for 2018 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea | The whole Regulation |
Council Decision (EU) 2018/1257 of 18 September 2018 on the signing, on behalf of the European Union, of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean | The whole Decision |
Commission Implementing Decision (EU) 2018/1479 of 3 October 2018 postponing the expiry date of approval of sulfuryl fluoride for use in biocidal products of product-type 8 | The whole Decision |
Commission Implementing Decision (EU) 2018/1522 of 11 October 2018 laying down a common format for national air pollution control programmes under Directive (EU) 2016/2284 of the European Parliament and of the Council on the reduction of national emissions of certain atmospheric pollutants | The whole Decision |
Regulation (EU) 2018/1672 of the European Parliament and of the Council of 23 October 2018 on controls on cash entering or leaving the Union and repealing Regulation (EC) No 1889/2005 | The whole Regulation |
Council Regulation (EU) 2018/1628 of 30 October 2018 fixing for 2019 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea and amending Regulation (EU) 2018/120 as regards certain fishing opportunities in other waters | The whole Regulation |
Commission Delegated Regulation (EU) 2019/7 of 30 October 2018 amending Regulation (EU) No 1031/2010 as regards the auctioning of 50 million unallocated allowances from the market stability reserve for the innovation fund and to list an auction platform to be appointed by Germany | The whole Regulation |
Commission Delegated Regulation (EU) 2019/254 of 9 November 2018 on the adaptation of Annex III to Regulation (EU) No 1315/2013 of the European Parliament and of the Council on Union guidelines for the development of the trans-European transport network | The whole Regulation |
Council Regulation (EU) 2019/440 of 29 November 2018 on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco and the Implementation Protocol thereto | The whole Regulation |
Commission Delegated Regulation (EU) 2019/330 of 11 December 2018 amending Annexes I and V to Regulation (EU) No 649/2012 of the European Parliament and of the Council concerning the export and import of hazardous chemicals | The whole Regulation |
Council Regulation (EU) 2018/2058 of 17 December 2018 fixing for 2019 the fishing opportunities for certain fish stocks and groups of fish stocks in the Black Sea | The whole Regulation |
Commission Implementing Decision (EU) 2018/2023 of 17 December 2018 on amending Implementing Decision (EU) 2017/1984 determining, pursuant to Regulation (EU) No 517/ 2014 of the European Parliament and of the Council on fluorinated greenhouse gases, reference values as regards reference values for the period from 30 March 2019 to 31 December 2020 for producers or importers established within the United Kingdom, which have lawfully placed on the market hydrofluorocarbons from 1 January 2015, as reported under that Regulation | The whole Decision |
Commission Delegated Regulation (EU) 2019/758 of 31 January 2019 supplementing Directive (EU) 2015/849 of the European Parliament and of the Council with regard to regulatory technical standards for the minimum action and the type of additional measures credit and financial institutions must take to mitigate money laundering and terrorist financing risk in certain third countries | The whole Regulation |
Commission Regulation (EU) 2019/225 of 6 February 2019 amending Regulation (EC) No 748/2009 as regards the aircraft operators for which the United Kingdom is specified as administering Member State | The whole Regulation |
Commission Regulation (EU) 2019/226 of 6 February 2019 amending Regulation (EC) No 748/2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Delegated Regulation (EU) 2019/856 of 26 February 2019 supplementing Directive 2003/87/EC of the European Parliament and of the Council with regard to the operation of the Innovation Fund | The whole Regulation |
Council Decision (EU) 2019/385 of 4 March 2019 on the conclusion of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Union and the Republic of Cote d’Ivoire (2018-2024) | The whole Decision |
Council Decision (EU) 2019/407 of 4 March 2019 on the conclusion, on behalf of the European Union, of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean | The whole Decision |
Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement | The whole Decision |
Council Decision (EU) 2019/448 of 18 March 2019 on the submission, on behalf of the European Union, of a proposal for the listing of methoxychlor in Annex A to the Stockholm Convention on Persistent Organic Pollutants | The whole Decision |
Commission Implementing Regulation (EU) 2019/533 of 28 March 2019 concerning a coordinated multiannual control programme of die Union for 2020,2021 and 2022 to ensure compliance with maximum residue levels of pesticides and to assess the consumer exposure to pesticide residues in and on food of plant and animal origin | The whole Regulation |
Council Decision (EU) 2019/682 of 9 April 2019 authorising Member States to ratify, in the interest of the European Union, the Protocol amending the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data | The whole Decision |
Council Decision (EU) 2019/683 of 9 April 2019 authorising Member States to become parties, in the interest of the European Union, to the Council of Europe Convention on an Integrated Safety, Security and Service Approach at Football Matches and Other Sports Events (CETS No 218) | The whole Decision |
Council Decision (EU) 2019/639 of 15 April 2019 on the position to be taken on behalf of the European Union at the ninth meeting of the Conference of the Parties as regards amendments to Annexes A and B to the Stockholm Convention on Persistent Organic Pollutants | The whole Decision |
Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and amending Regulation (EU) 2018/1726 | The whole Regulation |
Council Decision (EU) 2019/812 of 14 May 2019 on the position to be taken on behalf of the European Union in the Inter-American Tropical Tuna Commission (IATTC) and the Meeting of the Parties to the Agreement on the International Dolphin Conservation Programme, and repealing the Decision of 12 June 2014 on the position to be adopted, on behalf of the Union, in the IATTC | The whole Decision |
Council Decision (EU) 2019/824 of 14 May 2019 on the position to be taken on behalf of the European Union in the Extended Commission of the Convention for the Conservation of Southern Bluefin Tuna (CCSBT), and repealing the Decision of 12 June 2014 on the position to be adopted, on behalf of the Union, in the CCSBT | The whole Decision |
Council Decision (EU) 2019/858 of 14 May 2019 on the position to be taken on behalf of the European Union in the Meeting of the Parties of the Southern Indian Ocean Fisheries Agreement (SIOFA), and repealing the Decision of 12 June 2017 establishing the position to be adopted, on behalf of the Union, in the Meeting of the Parties of the SIOFA | The whole Decision |
Council Decision (EU) 2019/859 of 14 May 2019 on the position to be taken on behalf of the European Union in the South Pacific Regional Fisheries Management Organisation (SPRFMO), and repealing the Decision of 12 June 2017 establishing the position to be adopted, on behalf of the Union, in the SPRFMO | The whole Decision |
Council Decision (EU) 2019/860 of 14 May 2019 on the position to be taken on behalf of the European Union in the Indian Ocean Tuna Commission (IOTC), and repealing the Decision of 19 May 2014 on the position to be adopted, on behalf of the Union, in the IOTC | The whole Decision |
Council Decision (EU) 2019/861 of 14 May 2019 on the position to be taken on behalf of the European Union in the South East Atlantic Fisheries Organisation (SEAFO), and repealing the Decision of 12 June 2014 on the position to be adopted, on behalf of the Union, in the SEAFO | The whole Decision |
Council Decision (EU) 2019/862 of 14 May 2019 on the position to be taken on behalf of the European Union in the Western and Central Pacific Fisheries Commission (WCPFC), and repealing the Decision of 12 June 2014 on the position to be adopted, on behalf of the Union, for the Conservation and Management of Highly Migratory Fish Stocks in the WCPFC | The whole Decision |
Council Decision (EU) 2019/863 of 14 May 2019 on the position to be taken on behalf of the European Union in the Northwest Atlantic Fisheries Organisation (NAFO), and repealing the Decision of 26 May 2014 on the position to be adopted, on behalf of the Union, in the NAFO | The whole Decision |
Council Decision (EU) 2019/864 of 14 May 2019 on the position to be taken on behalf of the European Union in the North Atlantic Salmon Conservation Organization (NASCO), and repealing the Decision of 26 May 2014 on the position to be adopted, on behalf of the Union, in the NASCO | The whole Decision |
Council Decision (EU) 2019/865 of 14 May 2019 on the position to be taken on behalf of the European Union in the North-East Atlantic Fisheries Commission (NEAFC), and repealing the Decision of 26 May 2014 on the position to be adopted, on behalf of the Union, in the NEAFC | The whole Decision |
Council Decision (EU) 2019/866 of 14 May 2019 on the position to be taken on behalf of the EU in the annual Conference of the Parties to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, and repealing the Decision of 12 June 2017 establishing the position to be adopted on behalf of the Union in that annual Conference | The whole Decision |
Council Decision (EU) 2019/867 of 14 May 2019 on the position to be taken on behalf of the European Union in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), and repealing the Decision of 24 June 2014 on the position to be adopted, on behalf of the Union, in the CCAMLR | The whole Decision |
Council Decision (EU) 2019/868 of 14 May 2019 on the position to be taken on behalf of the European Union in the International Commission for the Conservation of Atlantic Tunas (ICCAT), and repealing the Decision of 8 July 2014 on the position to be adopted, on behalf of the Union, in the ICCAT | The whole Decision |
Council Decision (EU) 2019/869 of 14 May 2019 on the position to be taken on behalf of the European Union in the General Fisheries Commission for the Mediterranean (GFCM), and repealing the Decision of 19 May 2014 on the position to be adopted, on behalf of the Union, in the GFCM | The whole Decision |
Council Decision (EU) 2019/951 of 17 May 2019 on the signing, on behalf of the European Union, and provisional application of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Cape Verde (2019-2024) | The whole Decision |
Regulation (EU) 2019/ 818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 | The whole Regulation |
Regulation (EU) 2019/941 of the European Parliament and of the Council of 5 June 2019 on risk-preparedness in the electricity sector and repealing Directive 2005/89/EC | The whole Regulation |
Council Decision (EU) 2019/1088 of 6 June 2019 on the signing, on behalf of the European Union, and provisional application of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau (2019-2024) | The whole Decision |
Council Regulation (EU) 2019/1089 of 6 June 2019 on the allocation of fishing opportunities under the Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau (2019-2024) | The whole Regulation |
Commission Implementing Decision (EU) 2019/994 of 17 June 2019 postponing the expiry date of approval of etofenprox for use in biocidal products of product-type 8 | The whole Decision |
Commission Implementing Decision (EU) 2019/1030 of 21 June 2019 postponing the expiry date of approval of indoxacarb for use in biocidal products of product-type 18 | The whole Decision |
Council Decision (EU) 2019/1332 of 25 June 2019 on the signing, on behalf of the Union, and provisional application of the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of The Gambia and of the Protocol on the implementation of that Partnership Agreement | The whole Decision |
Council Regulation (EU) 2019/1333 of 25 June 2019 on the allocation of fishing opportunities under the Protocol on the implementation of the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of The Gambia | The whole Regulation |
Council Regulation (EU) 2019/1097 of 26 June 2019 amending Regulation (EU) 2019/124 as regards certain fishing opportunities | The whole Regulation |
Commission Delegated Regulation (EU) 2019/1701 of 23 July 2019 amending Annexes l and V to Regulation (EU) No 649/2012 of the European Parliament and of the Council concerning the export and import of hazardous chemicals | The whole Regulation |
Commission Implementing Decision (EU) 2019/1300 of 26 July 2019 as regards the placing on the market of a genetically modified carnation (Dianthus caryophyllus L., line FLO-40685-2) | The whole Decision |
Commission Implementing Decision (EU) 2019/1345 of 2 August 2019 amending Decision 2006/771/EC updating harmonised technical conditions in the area of radio spectrum use for short-range devices | The whole Decision |
Commission Delegated Regulation (EU) 2019/1868 of 28 August 2019 amending Regulation (EU) No 1031/2010 to align the auctioning of allowances with the EU ETS rules for the period 2021 to 2030 and with the classification of allowances as financial instruments pursuant to Directive 2014/65/EU of the European Parliament and of the Council | The whole Regulation |
Council Decision (EU) 2019/1563 of 16 September 2019 on the position to be taken on behalf of the European Union within the Western Central Atlantic Fishery Commission (WECAFC) | The whole Decision |
Council Decision (EU) 2019/1570 of 16 September 2019 on the position to be taken on behalf of the European Union within the Fishery Committee for the Eastern Central Atlantic (CECAF) | The whole Decision |
Council Decision (EU) 2019/2218 of 24 October 2019 on the signing on behalf of the EU and provisional application of the Protocol on the implementation of the Fisheries Partnership Agreement between the Democratic Republic of Sao Tomé and Principe and the European Community | The whole Decision |
Council Regulation (EU) 2019/2219 of 24 October 2019 on the allocation of fishing opportunities under the Protocol on the implementation of the Fisheries Partnership Agreement between the Democratic Republic of Sao Tomé and Principe and the European Community | The whole Regulation |
Council Regulation (EU) 2019/1838 of 30 October 2019 fixing for 2020 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea and amending Regulation (EU) 2019/124 as regards certain fishing opportunities in other waters | The whole Regulation |
Commission Decision of 30 October 2019 notifying the Republic of Ecuador of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing. (C/2019/7244) | The whole Decision |
Council Decision (EU) 2019/1918 of 8 November 2019 on the signing, on behalf of the European Union, and provisional application of the Agreement in the form of an Exchange of Letters between the European Union and the Islamic Republic of Mauritania on an extension to the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania, expiring on 15 November 2019 | The whole Decision |
Council Regulation (EU) 2019/1919 of 8 November 2019 on the allocation of the fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania | The whole Regulation |
Council Decision (EU) 2019/1925 of 14 November 2019 on the signing, on behalf of the Union, and provisional application of the Protocol on the implementation of the Agreement on a Sustainable Fisheries Partnership between the European Union and the Republic of Senegal | The whole Decision |
Council Regulation (EU) 2019/1926 of 14 November 2019 on the allocation of fishing opportunities under the Protocol on the implementation of the Agreement on a Sustainable Fisheries Partnership between the European Union and the Republic of Senegal | The whole Regulation |
Council Decision (EU) 2019/2025 of 18 November 2019 on the signing on behalf of the EU and the provisional application of the Protocol to amend the International Convention for the Conservation of Atlantic Tunas | The whole Decision |
Commission Implementing Decision (EU) 2019/1950 of 25 November 2019 postponing the expiry date of approval of K-HDO for use in biocidal products of product-type 8 | The whole Decision |
Commission Implementing Decision (EU) 2019/1951 of 25 November 2019 postponing the expiry date of approval of tebuconazole for use in biocidal products of product-type 8 | The whole Decision |
Commission Implementing Decision (EU) 2019/1969 of 26 November 2019 postponing the expiry date of approval of IPBC for use in biocidal products of product-type 8 | The whole Decision |
Decision (EU) 2019/2071 of the European Parliament and of the Council of 5 December 2019 appointing the European Data Protection Supervisor | The whole Decision |
Commission Decision of 12 December 2019 on notifying the Republic of Panama of the possibility of being identified as a non-cooperating third country in fighting illegal/ unreported and unregulated fishing (C/2019/8868) | The whole Decision |
Council Regulation (EU) 2019/2236 of 16 December 2019 fixing for 2020 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Mediterranean and Black Seas | The whole Regulation |
Commission Delegated Regulation (EU) 2020/760 of 17 December 2019 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council as regards the rules for the administration of import and export tariff quotas subject to licences and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council as regards the lodging of securities in the administration of tariff quotas | The whole Regulation |
Commission Implementing Regulation (EU) 2020/761 of 17 December 2019 laying down rules for the application of Regulations (EU) No 1306/2013/ (EU) No 1308/2013 and (EU) No 510/2014 of the European Parliament and of the Council as regards the management system of tariff quotas with licences | The whole Regulation |
Commission Implementing Decision (EU) 2020/27 of 13 January 2020 postponing the expiry date of approval of propiconazole for use in biocidal products of product-type 8 | The whole Decision |
Council Regulation (EU) 2020/271 of 20 February 2020 on the allocation of the fishing opportunities under the Protocol on the implementation of the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of Seychelles (2020-2026) | The whole Regulation |
Council Decision (EU) 2020/272 of 20 February 2020 on the signing on behalf of the EU and provisional application of the Sustainable Fisheries Partnership Agreement between the EU and the Republic of Seychelles and its implementing protocol (2020 - 2026) | The whole Decision |
Council Decision (EU) 2020/392 of 5 March 2020 on the conclusion of the Sustainable Fisheries Partnership Agreement between the EU and the Republic of Gambia and of the Protocol on the implementation of that Partnership Agreement | The whole Decision |
Commission Implementing Regulation (EU) 2020/466 of 30 March 2020 on temporary measures to contain risks to human, animal and plant health and animal welfare during certain serious disruptions of Member States’ control systems due to coronavirus disease (COVID-19) | The whole Regulation |
Commission Regulation (EU) 2020/535 of 8 April 2020 amending Regulation (EC) No 748/2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC on or after 1 January 2006 specifying the administering Member State for each aircraft operator | The whole Regulation |
Commission Delegated Regulation (EU) 2020/1068 of 15 May 2020 amending Annexes I and V to Regulation (EU) No 649/2012 of the European Parliament and of the Council concerning the export and import of hazardous chemicals | The whole Regulation |
Commission Delegated Decision (EU) 2020/1071 of 18 May 2020 amending Directive 2003/87/EC of the European Parliament and of the Council, as regards die exclusion of incoming flights from Switzerland from the EU emissions trading system | The whole Decision |
Commission Implementing Regulation (EU) 2020/714 of 28 May 2020 amending Implementing Regulation (EU) 2020/466 as regards the use of electronic documentation for the performance of official controls and other official activities and the period of application of temporary measures | The whole Regulation |
Council Decision (EU) 2020/742 of 29 May 2020 on the conclusion of the Agreement in the form of an Exchange of Letters between the European Union and the Islamic Republic of Mauritania concerning the extension of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania, expiring on 15 November 2019 | The whole Decision |
Council Decision (EU) 2020/765 of 29 May 2020 on the conclusion, on behalf of the European Union, of the Protocol to amend the International Convention for the Conservation of Atlantic Tunas | The whole Decision |
Council Decision (EU) 2020/983 of 7 July 2020 on the conclusion of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Cape Verde (2019 - 2024) | The whole Decision |
Council Decision (EU) 2020/984 of 7 July 2020 on the conclusion of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau (2019-2024) | The whole Decision |
Council Decision (EU) 2020/985 of 7 July 2020 on the conclusion of the Protocol on. the implementation of the Fisheries Partnership Agreement between the Democratic Republic of Sao Tome and Principe and the European Community | The whole Decision |
Commission Implementing Regulation (EU) 2020/977 of 7 July 2020 derogating from Regulations (EC) No 889/2008 and (EC) No 1235/2008 as regards controls on the production of organic products due to the COVID-19 pandemic | The whole Regulation |
Commission Implementing Regulation (EU) 2020/1001 of 9 July 2020 laying down detailed rules for the application of Directive 2003/87/EC of the European Parliament and of the Council as regards the operation of the Modernisation Fund supporting investments to modernise the energy systems and to improve energy efficiency of certain Member States | The whole Regulation |
Commission Delegated Regulation (EU) 2020/1987 of 14 July 2020 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council and Regulation (EU) No 1306/2013 of the European Parliament and of the Council as regards the lodging and release of securities in the administration of tariff quotas based on the chronological order of the submission of applications | The whole Regulation |
Commission Implementing Decision (EU) 2020/1037 of 15 July 2020 postponing file expiry date of approval of acrolein for use in biocidal products of product-type 12 | The whole Decision |
Commission Implementing Decision (EU) 2020/1038 of 15 July 2020 postponing the expiry date of approval of creosote for use in biocidal products of product-type 8 | The whole Decision |
Commission Implementing Regulation (EU) 2020/1087 of 23 July 2020 amending Implementing Regulation (EU) 2020/466 as regards the performance of official controls and other official activities by specifically authorised natural persons, the performance of analyses, testing or diagnoses and the period of application of temporary measures | The whole Regulation |
Commission Delegated Regulation (EU) 2020/2012 of 5 August 2020 amending Delegated Regulation (EU) 2018/161 establishing a de minimis exemption to the landing obligation for certain small pelagic fisheries in the Mediterranean Sea, as regards its period of application | The whole Regulation |
Council Decision (EU) 2020/1325 of 21 September 2020 on the position to be taken on behalf of the European Union in the framework of the Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries as regards the application for accession to that Convention submitted by the United Kingdom, and repealing Decision (EU) 2019/510 | The whole Decision |
Commission Implementing Regulation (EU) 2020/1341 of 28 September 2020 amending Implementing Regulation (EU) 2020/466 as regards the period of application of temporary measures | The whole Regulation |
Council Regulation (EU) 2020/1485 of 12 October 2020 amending Regulation (EU) 2019/2236 fixing for 2020 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Mediterranean and Black Seas | The whole Regulation |
Council Decision (EU) 2020/1517 of 19 October 2020 on the position to be taken on behalf of the European Union in the Council of the North Atlantic Salmon Conservation Organisation established by the Convention for the Conservation of Salmon in the North Atlantic Ocean as regards the application for accession to that Convention submitted by the United Kingdom and repealing Decision (EU) 2019/937 | The whole Decision |
Council Decision (EU) 2020/1582 of 23 October on the position to be taken on behalf of the EU at the meetings of the Parties to the Agreement to prevent unregulated high seas fisheries in the Central Arctic Ocean | The whole Decision |
Council Decision (EU) 2019/1918 of 8 November 2019 on the signing, on behalf of the Union, and provisional application of the Agreement in the form of an Exchange of Letters between the European Union and the Islamic Republic of Mauritania on an extension to the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania, expiring on 15 November 2020 | The whole Decision |
Commission Implementing Decision (EU) 2020/1604 of 23 October 2020 determining, pursuant to Regulation (EU) No 517/ 2014 of the European Parliament and of the Council on fluorinated greenhouse gases, reference values for the period 1 January 2021 to 31 December 2023 for each producer or importer which has lawfully placed hydrofluorocarbons on the market in the Union from 1 January 2015, as reported under that Regulation | The whole Decision |
Commission Implementing Regulation (EU) 2020/1988 of 11 November 2020 laying down rules for the application of Regulations (EU) No 1308/2013 and (EU) No 510/2014 of the European Parliament and of the Council as regards the administration of import tariff quotas in accordance with the ‘first come, first served’ principle | The whole Regulation |
Commission Decision (EU) 2020/1722 of 16 November 2020 on the Union-wide quantity of allowances to be issued under the EU Emissions Trading System for 2021 | The whole Decision |
Decision (EU) 2020/1782 of the European Parliament and of the Council of 25 November 2020 amending Decision No 573/2014/EU on enhanced cooperation between Public Employment Services (PES) | The whole Decision |
Commission Implementing Regulation (EU) 2020/1812 of 1 December 2020 laying down rules on the online data exchange and the notification of EU type-approvals under Regulation (EU) 2018/858 of the European Parliament and of the Council | The whole Regulation |
Council Decision (EU) 2020/2022 of 4 December 2020 on the position to be adopted on behalf of the European Union within the EEA Joint Committee concerning an amendment to Annex IV (Energy) to the EEA Agreement | The whole Decision |
Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses | The whole Regulation |
Commission Implementing Decision (EU) 2020/2124 of 9 December 2020 not granting a Union authorisation for the biocidal product family ‘Contec Hydrogen Peroxide’ | The whole Decision |
Commission Decision (EU) 2020/2166 of 17 December 2020 on the determination of the Member States’ auction shares during the period 2021-2030 of the EU Emissions Trading System | The whole Decision |
Commission Implementing Decision (EU) 2020/2239 of 23 December 2020 concerning the extension of the action taken by the United Kingdom Health and Safety Executive permitting the making available on the market and use of hand disinfection products following the WHO-recommended Formulation 2 in accordance with Regulation (EU) No 528/2012 of the European Parliament and of the Council | The whole Decision” |
Lord Callanan (Con)
My Lords, Amendment 64 introduces a new schedule to the Bill that will serve as the revocation schedule. The amendment, in effect, introduces the pieces of legislation due to be revoked by the Bill, as trailed in the amendments in my name, which we discussed on Report on Monday. There are 587 pieces of legislation on the revocation schedule. Each instrument has been included following a thorough review by officials and Ministers. For clarity, it is split into two parts, the first covering EU-derived subordinate legislation and the second encompassing retained direct EU legislation.
I will now speak to a few of the specific entries in which noble Lords have expressed some interest. Amendment 64A would remove Regulations 9 and 10 of the National Emission Ceilings Regulations 2018 (S.I. 2018/129), which are no longer in force. Similarly, Amendment 64B would remove the Commission Implementing Decision (EU) 2018/1522, which is no longer in force, from the revocation schedule, thereby preserving it in domestic law.
The relevant regulations and implementing decision relate to the preparation of a national air pollution control plan, which was required by the national emission ceilings directive. As such, these two pieces of legislation are intertwined, and therefore I will speak to them together.
The NAPCP is a common format required of all EU member states to set out the policies and measures being considered to meet the national emission ceilings targets. The current format of the NAPCP is long, complicated, resource intensive and duplicative. Removal of the regulations relating to the NAPCP will allow us to move away from the overly burdensome system that we inherited from the EU. A large majority of the information in the NAPCP is reflected in individual national strategies and more accessible documents, including the Environmental Improvement Plan for England. Removing the NAPCP would therefore remove this duplication in the public domain, streamline communications on the air pollution policy with existing national strategies and better focus on what will actually help to clean up our air.
As we are appealing only Regulations 9 and 10 of the National Emission Ceilings Regulations, the rest of these provisions will remain in force, including the national emission reduction targets, which are set for five key pollutants, and the requirements to publish UK-wide emissions inventories and projections. With that explanation, I hope that the noble Baroness, Lady Hayman, will not move her amendments.
Amendment 64ZA would remove the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003, which are no longer in force, from the revocation schedule. These regulations were intended to complete the implementation of the environmental impact assessment directive for certain agricultural water resources projects. The regulations impose procedural environmental impact assessment requirements on water resources management projects for agriculture, including agricultural irrigation projects and water abstraction projects that are not accepted under Section 27 of the Water Resources Act 1991 and that are not subject to environmental impact assessment under other regulations.
When these regulations were made in 2003, it was considered that there might be a potential gap in our environmental assessment of agricultural water management projects. This was because a project might well proceed and not be linked to land use, the planning processes or the need for environmental assessment. Moreover, it might not be linked to the need for environmental assessment linked to the requirement to obtain water abstraction or impounding licence from the Environment Agency in accordance with the Water Resources Act 1991. In fact, this gap in regulation was never realised in practice and was filled when we removed water abstraction licence exemptions from all forms of irrigation from 1 January 2018 by commencing provisions in the Water Act 2003. Accordingly, therefore, Defra officials do not consider that there are any other types of agricultural water management projects for which an environmental assessment is required that are not already covered by abstraction and impounding licences or other EIA regulation and would be a relevant project under regulations. Therefore, these regulations are no longer required, which is why they are proposed for revocation. In addition, we understand that no environmental impact assessments have been made under the regulations since 2003. Therefore, I hope that the noble Baroness, Lady Bakewell, will not move her amendment.
Amendment 64ZB would remove the Foodstuffs Suitable for People Intolerant to Gluten (England) Regulations 2010, which are no longer in force, from the revocation schedule. This has been raised a number of times by the noble Baroness, Lady Brinton, who has been in contact with the FSA on this issue. We have also been working closely with the FSA, which has assured us that it has carefully examined the eight pieces of legislation that it has put on the schedule, and that removing them will not impact on the safety or standards of UK food. The regulations referenced in Amendment 64ZB provided for the execution and enforcement in England of Commission regulation (EC) 41/2009 concerning the composition and labelling of foodstuffs suitable for people intolerant to gluten, in particular as regards the use of the terms “very low gluten” or “gluten-free”. However, the Commission decision was repealed by the EU in 2016 and replaced by EU regulation 828/2014. As such, the regulations that are proposed to be revoked via the schedule are, in fact, legally inoperable. With that information, I hope that the noble Baroness will not move her amendment, as it would be a retrograde step to keep on the statute book laws that are, in fact, legally inoperable.
Amendment 64ZA (to Amendment 64)
Member's explanatory statement
This amendment is to leave out the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 (S.I. 2003/164).
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for his introduction to this group of amendments, and I rise to speak to Amendment 64ZA in my name and that of my noble friend Lady Parminter. This relates to the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations (SI 2003/164). However, I shall return to this shortly.
I begin by welcoming the Government’s change of heart over the sunset clause and the tabling of the government amendments that we have before us today. However, it is extremely regrettable that these amendments were not tabled in Committee so that a proper debate could have taken place. Now we are on Report, where each contributor is permitted to speak only once on each group of amendments, which means covering a number of regulations in one go.
The noble Lord, Lord Benyon, who is sadly not in his place this afternoon, has previously given assurances to the effect that there were a number of redundant laws on the statute book that needed deleting. Having been through the Government’s list several times and seen the significant number relating to Defra, I can agree with the noble Lord, Lord Benyon, that there are indeed a large number of superfluous laws we no longer need. A good example of such laws is those covered in lines 104 to 121 and 128 to 133, which relate to eight sets of regulations dealing with temporary exceptions to drivers’ hours during the foot and mouth crisis of 2001. While those restrictions were needed during that crisis, they are certainly not needed now. We have seen through the Covid epidemic that passing emergency legislation to suit a particular crisis, while uncomfortable, does work; we do not need to keep obsolete legislation on the statute book, but others need to be retained.
There are also a very large number of regulations dealing with the fishing industry. While it is not necessary to retain regulations which deal with fishing in New Zealand, Mauritius or Mozambique, for example, there are several references to anchovies in the Baltic Sea. Anchovies, as well as being a delicious snack for humans, are also at the bottom of the food chain, with a large number of fish species depending on them as a significant food source. It is, therefore, important to have regulations in place that ensure that anchovy fish stocks are sufficiently high enough not to damage the stock of other species.
There are also regulations relating to POPs—persistent organic pollutants. However, given that we are on Report, it is simply not realistic to put down probing amendments around a number of concerns that your Lordships may have over some other issues.
I return to Amendment 64ZA, which is by way of being a probing amendment. The Minister has given a very full introduction. The water resources regulations of 2003 and the related amending regulations are included in the Government’s list to be removed under this Bill. These regulations were put in place to carry out environmental impact assessments for certain water abstraction applications for the agriculture industry. It is important for the farming and horticulture industries to have access to water in order to thrive. That was particularly so during last summer’s drought. Water is a valuable resource and must be treated as such. These abstractions might have been likely to have significant effects on the environment by virtue of their nature, size or location. The regulations provided for the publication of the assessment and for the assessment to be considered when determining the application, which could affect the outcome.
The removal of these regulations will leave such abstractions without the requirement for an environmental impact assessment. Instead, applications will be dealt with through the abstraction licensing regime. The EIA requirements applied to abstractions were previously exempt, but they have recently been brought into the licensing regime. It is important for the Government to provide reassurance that the environmental impacts of such abstractions, either alone or in combination, can be sufficiently assessed under the licensing regime and the related catchment abstraction licensing strategy—CALS—process, given that there is no general requirement for an EIA to be conducted within that regime. We are, therefore, strongly recommending that the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 are removed from the REUL Bill revocation schedule. If this is not accepted, can the Minister urgently give clear information as to why these regulations are proposed for revocation? I beg to move.
Baroness Brinton (LD)
My Lords, I echo my noble friend Lady Bakewell of Hardington Mandeville’s thanks to the Minister for his introduction to this group and also for arranging the meeting with the Bill team last Friday and for the very helpful discussions that we were able to have there. As he knows, we have been asking for data relating to the SIs to be sunsetted right from the start of the Bill’s passage, and I thank the Minister and his team for circulating the spreadsheet, which arrived earlier yesterday.
My amendment follows the concerns expressed by the noble Baroness, Lady McIntosh of Pickering, in Monday’s debate, at cols. 19 and 20. She asked about identifying retained EU law, and my concerns relate to the holes in the existing and sunsetting of the regulations. I have tabled Amendment 64ZB, having raised concerns at the meeting with the Bill team about this one SI in the list of 600, mainly because there was not much time to do detailed work on others. It is found in the proposed new schedule, at lines 209-10, entitled Foodstuffs Suitable for People Intolerant to Gluten (England) Regulations 2010—please forgive me if I just refer to such foodstuffs as “gluten” hereafter.
As a coeliac of five decades, as well as having had an interest in health matters for some time, I spent a very large part of Thursday and Friday trying to track back current and former regulations relating to foodstuffs that are suitable for people who are intolerant to gluten and their labelling—it is vital to ensure that people with coeliac disease and intolerances can keep themselves safe. I have to say that I found it almost impossible to do so. Key words were not used consistently and there was no golden thread anywhere to help navigate this. On Thursday afternoon, I approached the Food Standards Agency and Coeliac UK. Both responded swiftly and were extremely helpful. The Government’s spreadsheet that I referred to earlier says, at item 94, that this SI is redundant because
“These Regulations are inoperable. It enforced EU Regulation 41/2009, which was repealed by the EU in 2016 (and replaced by EU Regulation 828/2014, which is being preserved). The equivalent domestic enforcement legislation in Wales, Scotland and NI was revoked and replaced in 2016”.
Unfortunately, this is not entirely correct.
In the helpful briefings from the FSA and Coeliac UK, it transpires that in 2016 there was a consultation to put EU Regulation 828/2014 into a UK regulation to replace SI 2010/2281. This is important because the EU directive sets the composition levels and the labelling rules for gluten-free foodstuffs. However, since that consultation, there has been total silence from the Government about introducing an SI to replace the one listed in the proposed new schedule at lines 209-10. Both the FSA and Coeliac UK told me they have been relying on a workaround, outside of the regulations, found in other legislation, including general food law and the Food Safety Act 1990. These relate to enforcement, not to detailed composition and labelling laws, which are found in EU Regulation 828/2014. Coeliac UK and the FSA have both told me, in briefings that I forwarded to the Minister and his team, that the workaround relies not only on general food law and the Food Safety Act but on the underpinning powers of EU Regulation 1169/2001. However, this regulation mentions gluten only once, on page 51, in Annexe II, paragraph 1, whereas EU Regulation 828/2014 is all about foodstuffs containing gluten and their appropriate labelling.
The FSA and Coeliac UK are both clear that a statutory instrument for England is required to allow direct enforcement of EU Regulation 828/2014, and this will follow in due course. Indeed, the Bill team confirmed this to me in an email yesterday. While I note there is a workaround, I am bemused that such an important matter that relies on the detail of EU Regulation 828/2014 has not yet been brought before Parliament in an SI. Why has there been a seven-year delay to lay that relevant SI since the Government’s own 2016 consultation? I also asked the Minister in an email when we can expect to see this laid, and the reply was that there is a commitment to progress
“at the earliest possible time”
but no possible date. With the greatest respect to the Minister and the Government, it is not down to the FSA, which is constantly referred to as being in charge of the legislative process. It is not.
The email from the Minister also said that this legislation
“remains in force and will be preserved as part of the Retained EU law process”.
But it is not enforced because there is not a regulation. It goes on to say:
“Although there are no direct enforcing regulations in England, there are sufficient powers”—
the ones I referred to. However, as I have said, that does not cover the detail of the relevant recent 2014 regulation.
It may feel to some people that I am dancing on the head of a pin. But those who are intolerant to gluten rely very particularly on the EU directive that covers the composition and labelling of items, and therefore how they are sold, which assures people that they can eat them safely. My broader concerns are how many of the other 599 sunset SIs have similar holes in the legislation.
I note that some MPs have referred to the “blob” and others being at fault for not moving quickly enough. I think that the detail I have just recounted shows that the history of SIs has not been well listed over many years, and it is complex. The government spreadsheet, circulated earlier on, is clearly not aware of it. The government website on nutrition is also not aware of it. The nutrition legislation information sheet, at paragraph 5.8, unfortunately does not refer to the need for this new directive.
Will the Minister assure me that there has been a full tracking of all elements of each SI that is proposed to be removed? If it is discovered that there are holes, such as the one I have just described, what will the Government do, under the terms of this Bill, to ensure that there are no legislative problems in the future?
The Secondary Legislation Scrutiny Committee was very clear that one of the main problems that Parliament has to face, both our House and the other place, is how on earth we can continue with our effective parliamentary scrutiny, given the very broad sweep of secondary legislation that may be made under the provisions of the Bill. This is absolutely one of those cornerstone regulations where we need to ensure that the directive is visible in legislation—it is not.
Baroness Hayman of Ullock (Lab)
My Lords, I thank the Minister for his introduction and the noble Baronesses for introducing their amendments as well. I have the final two amendments in this group: Amendments 64A and 64B. These amendments address our concerns about the proposed revoking of the National Emission Ceilings Regulations 2018, particularly Regulations 9 and 10, and of the Commission Implementing Decision 2018, which lays down a common format for national air pollution control programmes. The Government have justified this revocation by saying that
“we will be removing some items of REUL relating to the National Air Pollution Control Plan (NAPCP). The current format … is long, complicated, resource intensive and duplicative, and does nothing to improve the quality of the air we breathe. By revoking this item, we can better focus on what will actually help clean up our air, such as by delivering on the ambitious air quality targets we have set in statute through the Environmental Act”.
I would like to explain why we believe they should not be revoked.
The National Emission Ceilings Regulations deal with emissions of ammonia fine particulate matter, sulphur dioxide, NOx and other serious pollutants. These emissions are the inputs which mix in the atmosphere to become concentrations or outputs, which are measured for health and regulatory purposes relative to the WHO’s air quality guidelines. The Environment Act 2021 and the air quality strategy of 2023 focus largely on concentrations. The environmental improvement plan of 2023 proposes just vague measures to reduce emissions without providing a robust mechanism to review, plan, consult and implement plans when new breaches of emission ceilings occur.
Regulations 9 and 10, which the Government seek to abolish, provide for the preparation and implementation of a national air pollution programme to limit those harmful emissions in accordance with national emission reduction commitments and, importantly, for full public consultation. Removing the obligation to draw up and implement a national air pollution control plan strips away any clear duty on the Government to show how they will reduce emissions in line with their legally binding emissions targets. To succeed in this, we need rules that require the Government to control emissions of harmful pollutants at their source. Without such measures, all their plans and targets are empty gestures.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful for the kind words from the noble Baroness, Lady Brinton. I was not going to speak, but I would like to echo the remarks she made and repeat my concern, shared by other noble Lords, that there is not going to be sufficient time for a consultation on the directives relating to gluten, flooding and other issues. The Food Standards Agency agrees with all the directives in the proposed new schedule but is concerned that, by the time the Bill receives Royal Assent, there will be a perilously short period in which to conclude the required consultations.
I echo the concerns raised by the noble Baroness, Lady Hayman of Ullock, regarding the Flood Risk Regulations 2009, at page 10, line 197 of the proposed new schedule. I stand to be corrected by my noble friend the Minister, but it is my understanding that this is not a transposition of EU law but an entirely UK measure. I would like to know, for greater clarification and understanding, why these regulations are included in the proposed new schedule.
I echo also the concerns of the noble Baroness, Lady Bakewell of Hardington Mandeville. I think we all accept that in the 1980s, the UK was known as the dirty man, or woman, of Europe, and it took a female Prime Minister, Baroness Thatcher—then Margaret Thatcher—to take the plunge and implement all the EU directives and regulations. These have moved on, and since we have left the European Union the water framework directive and others—most recently, the urban wastewater directive—are going through a further transposition. Obviously, they will no longer apply to UK water companies. I realise it is a different department but I hope Defra, along with my noble friend, will look favourably on some of the requirements set out therein, which may actually benefit the UK’s environment: bathing waters, drinking water and especially wastewater.
I seek clarification from my noble friend of something he said, as I do not think he answered the concerns I expressed on Monday. He was very clear that we are dropping the interpretative effects of retained EU law, but I would like to press him in this regard because the indirect effect of EU law is also sometimes referred to as the “consistent interpretation” of EU law. I hope that a company in this country seeking to export or conduct its business in an EU country—selling insurance policies, for example—will not be disbarred from doing so because we are not interpreting the law in the same way as EU countries. I realise that my noble friend was very clear on this point, but can he ensure that there will be no discrimination in this regard against UK companies trying to do their business and trade in an EU country?
Lord Hope of Craighead (CB)
My Lords, the amendments moved by the noble Baronesses leave me feeling very uneasy—not because I doubt the validity of the points they have raised, but because I am concerned about things that may have been missed out. The fact is that we have been presented on Report with an enormously long proposed schedule and a spreadsheet and, frankly, this is no way for parliamentary scrutiny to be conducted in the Chamber. It is a different matter in Committee, where we can have things on tables in front of us, but it is quite impossible to go through the proposed schedule in this Chamber with the respect and detail that it deserves on Report. That is my concern.
I confess that I have not had the time or resources to go through the whole of the proposed new schedule. I have spotted, as has been noted, a number of things that quite obviously have to be discarded. That is not in doubt. However, it is the things that need to be examined carefully in detail in order to see mistakes of the kind that these amendments draw attention to that trouble me very greatly. I just express my great concern about the process we are undertaking, which, in my respectful submission, cannot really be described as parliamentary scrutiny.
Baroness Butler-Sloss (CB)
My Lords, with two grandchildren who are gluten-free, I strongly support and share the concerns of the noble Baroness, Lady Brinton. Perhaps more fundamental are the points that the noble and learned Lord, Lord Hope, has just raised. Throughout this process, I have become increasingly concerned about what may be left out or partially changed. Speaking as a former lawyer, what is going to happen when these matters come to court, as we said in Committee? We discussed what would be said when these matters come to court and someone relying on a regulation finds that it no longer exists, or that it has been changed without anyone having any idea that it had happened. As the noble and learned Lord said, this is absolutely not the way to deal with retained EU law.
Baroness Foster of Oxton (Con)
My Lords, I had not intended to intervene at all—it has been a fascinating debate, and excellent amendments have been put down—but I am just curious. As I have mentioned before, a number of us were in the European Parliament for many years. We left the European Union—Brexit occurred—in 2016. We are seven years on from that. The Civil Service knew after the vote that we were going to leave the European Union. Clearly, this was massively complex, as we had had 50 years of regulations and directives, but here we are in 2023.
The points that noble Lords have raised on particular issues are extremely important, and I fully support their concerns. However, the way I read it, I would have thought, going back at least four or five years, that civil servants in these vast government departments would have been sitting down at that time, without being told, and looking at the legislation that was pertinent in their departments, and looking at what would be okay or what we intended to keep hold of, which would not be a priority or need to be changed. They would then have been able to see what might be a priority or concern and flag up that legislation to the Ministers concerned. I do not know whether anything like that has happened. I am listening to these debates, and it seems not to have happened at all, because we are now in 2023 and discussing, as we say, critical legislation which we are concerned about. It appears that this is being highlighted only because we are talking about the Bill.
I say to my noble friend: I am concerned about whether this will be carried through efficiently and whether the right amount of scrutiny will take place. We are in an extremely concerning situation. We should think of the number of hours that your Lordships debated this issue in this House—I was not here; I was actually in Brussels—and the fact that people knew about it. It is not a state secret, yet we still do not know which pieces of legislation we really need to keep or not. That was the work of the civil servants, and perhaps the lawyers too, in those departments, but we are in this situation now.
I hope my noble friend the Minister can reassure us about the point raised in the amendment about scrutiny now and how transparency regarding this legislation will evolve in future. There will be some that we will retain. I dealt with aviation and aerospace, and a lot of the legislation I dealt with—which was primary—had an international dimension. We complied with the international treaties, and that sort of legislation, and that in areas such as maritime, would not need to be changed. However, there are others which need to be brought into line with the situation the UK is now in, where Parliament is sovereign in determining what we must do. We in this House and the other place are responsible for making sure that any changes or updates that are made, or any sunset clauses that are brought in, are relevant, because the whole job now is to work for the benefit of the citizens of this country and for businesses—for everyone—and to make sure that this is done as efficiently as possible.
As I say, I had not intended to say very much, but this is important. All departments and everyone working in them—not just the Ministers—need to get behind all this and get moving. The people of the United Kingdom are in a very difficult position: we are post Covid, there is Ukraine, we have great challenges, and we need everything done as efficiently as possible.
Baroness Crawley (Lab)
My Lords, I too was in the European Parliament many years ago. With the greatest respect to the noble Baroness, she will know that this policy—this Bill—is government-driven, not Civil Service-driven, so we should not keep blaming the Civil Service for the mess we are in. It is driven through government policy.
Baroness Jones of Moulsecoomb (GP)
Over the past few weeks we have heard again and again this sort of criticism of the Civil Service. It is hardly appropriate for the Government Benches to criticise the Civil Service when we have Ministers who should be deciding on the next thing to do. You cannot expect civil servants to pre-emptively work on things without Ministers’ permission. Please can we just stop that. It is outrageous that the Government constantly blame other people and not themselves. Please remember that.
Baroness Jones of Moulsecoomb (GP)
No, I will not let the noble Baroness intervene. She spoke at length.
I spoke yesterday evening on a regret Motion on magistrates’ courts sentencing and afterwards I was told by the Minister very politely—clearly, it was not the Minister sitting with us now—that I had spoken completely off topic. Therefore, I am hoping to be a bit better today.
This group is full of very good amendments; I support them all, and they have all been very well introduced. I am concerned in particular about air and water. In their whole 13 years the Government have done barely anything to clean up our air, and now they are expecting us to wait decades to clean up our water as well. I simply do not understand why they cannot take these basic requirements for human life seriously. I personally would be happy to vote on all these amendments, and probably thousands of others as well.
The Government have to make a clear commitment that they are not going backwards on clean air—although we do not have clean air yet—and that they are not going back on any regulations about cleaning up our air and water. I expect the Minister to make a clear commitment on that today. It is absolutely crucial. None of the things we are throwing out today will actually matter. I was assured earlier that the Government are not being “evil” in throwing out these particular ones and that they are in fact probably fairly benign, but I am not terribly confident about that. I therefore hope that the Minister can explain that they are not going backwards. Of course, I support Amendment 76.
Lord Hacking (Lab)
My Lords, I will not get into the debate with the noble Baroness, Lady Foster. The fate of the Bill and how it is here has been correctly described by my two noble friends.
I endorse particularly what the noble and learned Lord, Lord Hope, said a few minutes ago. He said that this is an impossible task on Report and that it surely should not have been inflicted upon us. Indeed, the Bill should never have been inflicted upon us. A sensible course, which was the earlier position of the Government, was to let all EU legislation lie where it lay, and if there were a problem with any of it, to bring it to the forefront and deal with it. However, that is all history. What we are having to deal with now are the amendments that the noble Lord, Lord Callanan, has introduced into Schedule 1.
I took the trouble—there was not much time to do so—to read through all 111 pages of the explanatory spreadsheet as best I could. There was an immediate difficulty about that, because the regulations are not listed in the same order as they are in the Bill. That was an unnecessary complication when trying to check through. I noted that, time and again, the explanation, the “reason for revocation”, to use the exact words, reads that this regulation
“is no longer in operation, or is no longer relevant to the UK”.
That description and justification of these 928—in my arithmetic—regulations appear time and again. It must have occurred 100 times as I read it, and possibly 200, and the latter figure is the likely one. The big question is: if this has all been properly researched, is the particular regulation
“no longer in operation, or … no longer relevant to the UK”?
It must be one or the other.
My particular reason for looking through the spreadsheet was to look at what is happening to two sets of regulations, both of which I referred to on our first day on Report. I refer to the Habitat (Salt-Marsh) Regulations and the Civil Aviation (Safety of Third Country Aircraft) Regulations 2006. I could not find the latter regulation at all. I do not know where it was, but I could not see it when going through the 111 pages. The Habitat (Salt-Marsh) Regulations appeared a number of times on a number of pages, all separate and quite disconnected from the original order. I did that because I thought they were rather important environmentally. The first time they appear, they are described as being
“on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside”.
I thought that was central and something we should be thinking about. Yet, time and again, a feeble and inadequate “reason for revocation” was given.
I have to say frankly to your Lordships that this is a futile exercise, an exercise we should not have been asked to carry out, and I greatly regret that we are.
Lord Wilson of Dinton (CB)
My Lords, as a former head of the Civil Service, I feel bound to say that the criticisms of the Civil Service which have been made are ill-judged and grossly unfair. The Civil Service will ride out these criticisms—it has a thick skin, it will put its head down and go on doing its duty—but there is a serious worry underneath this debate.
It took us 10, 15 or 20 years to join the Common Market/European Union. It was only reaching the Home Office when I became Permanent Secretary in 1994. It will take us 10, 15 or 20 years to leave the European Union. Brexit, whatever your views on it, was undertaken without a proper appraisal of what it entailed—the work and the consequences—and we are living with it with this Bill. It is the most terrible experiment with government and an enormous learning experience for the Government. It will not be done quickly, and what will slow it down is not the Civil Service but the huge volume of work involved in it.
We are dealing with 50 years of complex, detailed regulation that has been put together in consultation with vested interests and public authorities and reaches into every household in the country. I tell Ministers on the Front Bench that there are things buried in these 500-and-whatever-it-is regulations that will embarrass them, will have unforeseen consequences and will go wrong. We are in an impossible position. We cannot look at this schedule in the detail required. It is not the fault of the Civil Service but the responsibility of the Government. The consequences of it will be severe and will take years. History will write this up. It will read these debates and think about the moral involved, which is, “Do the work before you implement the policy”. I will sit down now, but I wanted to defend the Civil Service. It is not its fault that this is such a terrible and deeply worrying mess.
Lord Hamilton of Epsom (Con)
My Lords, I support my noble friend Lady Foster and I do not totally agree with the noble Lord, Lord Wilson. My right honourable friend Jacob Rees-Mogg made it clear that he wanted all EU legislation dug out of departments and revealed by the Civil Service. Very little happened. I thought it was the job of the Civil Service to obey the instructions of Ministers.
Lord Reid of Cardowan (Lab)
I commend to those on the other side who share the view of the noble Lord, Lord Hamilton, an article this morning by the Conservative Peer, the noble Lord, Lord Finkelstein. It is in the Times and it is worth reading. It is about the tendency to set impossible demands and then to blame the failure to achieve them on the blob. It is the finest article I have read on this tendency and, in terms of education, I think it would be well worth some people on the other side reading their noble colleague’s comments.
All I can say, and I held office in nine departments of state, is that there were occasions when I would have liked to ask civil servants to give me a plan to double expenditure on the Armed Forces, to build 500,000 houses, to make everyone happy. Noble Lords will not be surprised to know that I did not ask them so to do, not because I thought they were a blob and would resist it but because I knew it was an impossible demand I was placing on them. In all nine departments, when I made some challenging demands, the civil servants responded—but I would not ask them to do something that was impossible, or to take a course of action for which the work had not been done in advance, or where I disregarded the consequentials, the downstream incidentals, that I had not thought about. The Government did all three of those things with Brexit, and they are now paying the price.
Baroness Fox of Buckley (Non-Afl)
My Lords, the other day when we were debating the Bill, a number of people stood up, largely on this side of the House, and said that it was inappropriate to make Second Reading speeches or grand speeches about politics and that this was not about Brexit. I tried to say that maybe the Bill was a new Bill and we should be able to regardless, and I was told off for that.
What we have just seen demonstrates to me why we have a difficulty, both in this House and in the country, when it comes to what people feel about the Bill that we are discussing and the general political situation that we are in. It is true that I do not blame the blob. However, I blame many of the people in the House of Lords, among others, who tried to say that when the decision was made in 2016, regardless of what you thought of it, the British public had got it wrong. They slowed down the process and did everything to obstruct what needed to be done to extricate the United Kingdom’s law, which it had been decided to take back control of, from the European Union.
Baroness Fox of Buckley (Non-Afl)
“Shut up”?—well done. I am just saying: let us get on with the Bill seriously rather than keeping on blaming each other. That was my point in the first place. Drop the smug tone.
Baroness Bloomfield of Hinton Waldrist (Con)
Perhaps I can remind the House that we have been incredibly patient but noble Lords should stick to debating the amendments rather than general points. Perhaps we can get on and make some progress.
Baroness Lawlor (Con)
My Lords, I shall speak to Amendment 64 and the other amendments in this group. I am grateful to my noble friend the Minister for the amendment, which, as far as I can count, includes around 120 pieces of subordinate legislation. I welcome it on the grounds of principle and practice.
In practice, it is important to end the limbo between two legal systems for cost, compliance and otherwise. Moreover, there are other good reasons for doing so. The uncertainty of the EU’s codified arrangements, adopted or absorbed into our own laws, results in two overlapping systems that add cost and compliance burdens to all concerned and, I am afraid, often lack clarity. I hesitate to mention such arrangements in your Lordships’ House, given the presence of so many eminent members of the judiciary, but perhaps I might do so as an ordinary person who has had to have recourse to both systems of law.
In my experience, our law is clear; it gives people the power to seek a remedy where another party breaks the law to our disadvantage. Under the European system, of which I have also had experience, despite its code-based arrangements and its precautionary principle, which seeks to cover every eventuality, not only does it sometimes fail to do so but there is often no remedy available to people or small businesses if a wrong is done to them. There are just more codes, more compliance, more directives and more consultations with the lawyers to be paid for, and little in the end to be done other than put up with it and hope it will be righted in due course.
For this reason, I welcome the sentiment behind the noble Baronesses’ proposals in their carve-out amendments on the National Emission Ceilings Regulations and the Water Resources (Environmental Impact Assessment) Regulations. I am very sympathetic to their aims and have spoken on that in earlier debates. However, I am sceptical as to whether this is the best way of achieving such aims. I believe it is important to respect our own laws and have greater confidence that the principles on which they rest will reflect the interests of the people in whose name they are made. This country is second to none generally in its commitment to caring for its environment and, having heard noble Lords talk about chairing the Woodland Trust and so on, it is clear that there is huge voluntary support for protecting our environment. I believe our own laws will reflect that interest and we really must get on with giving them a chance.
In the Environment Act 2021 and its impact assessment of December 2019, the principle is clear that the polluter pays. Yes, precautions must be taken and problems righted at source, but the polluter pays principle means that instead of victims, others are having to suffer the consequences. Rather than the polluter being penalised, other people would have to suffer the consequences and pay the price, and I think that our system will be clear and fairer.
I am not sure, either, that the EU regulations covering emissions are necessarily effective. I draw on the historic case of the Volkswagen emissions scandal, when there were clear directives from 2008—updated in 2012—covering the emissions from cars. These were neglected or not enforced, and the knowledge that that was happening went right up to the Government. I am confident in our own system of law, and I think it does work.
I hate to disagree with such a distinguished civil servant as the noble Lord, Lord Wilson, but I am not going to take sides on the question of who is to blame for non-rapidity. I worked with the head of the German hospital division in the decade after the unification of Germany. The country was unified at the stroke of a pen, so it can be done. I only know about the health system there, not all the other areas such as the economy, where historic problems were inherited.
I welcome the commitment to revoke the legislation listed. I hope the noble Baronesses will put their trust in our own laws and give their energies to an aim which I share. It is important for a more effective system and for clarity and efficiency, so that people, businesses, charities and government departments know where they stand.
Lord Fox (LD)
My Lords, I dare say that the Conservative Party could use the experience the noble Baroness, Lady Lawlor, has in unifying Germany to perhaps unify itself.
This has been a rancorous debate and before I join in, I have a bit of housekeeping to do with the Minister. When he was still trying to push 5,000 laws over a cliff edge at the end of last year, on a number of occasions he used examples to illustrate the intrinsically trivial nature of all 5,000. One of the examples he used was legislation referring to reindeers and another was legislation referring to olive trees. I have studied the list, alongside the noble Lord, Lord Hacking, and I find no mention of reindeers or olive trees. Can I assume that those laws will remain on the statute book—or did they not in fact exist in the first place?
As we heard from my noble friends Lady Bakewell and Lady Brinton, we on these Benches really welcome the Government’s 180 degree U-turn. However, the breathless nature of that U-turn brought with it problems. We are debating those problems now because, in choosing not to eliminate 5,000 anonymous regulations—in essence, regulations that we did not need to know about—and in having to choose the regulations that will be revoked, the Government have had to publish this schedule very late and, even later, give us guidance on the decision-making process that went into putting those regulations on that list.
My noble friend Lady Brinton’s experience in trying to track a legacy of statutory instruments and regulations that did not get properly documented, in a way that was easy to follow, completely illustrates what the Civil Service was seeking to do 5,000 times—and many of those cases were even more complex, I dare say, than the case my noble friend Lady Brinton dealt with. In order to do that, the first thing the Civil Service had to do was to find those regulations and laws.
When the noble Lord, Lord Hamilton, talked about it being the Civil Service’s role to dig up these regulations, he was not far from the truth. Many of these regulations were located at the bottom of a salt mine in an archive—I am not joking—in the north-west of this country. They had to don their safety gear and go underground to seek out these regulations. That is the level of digging-out that had to happen in order to do this.
That is why it is extraordinarily unfair to then put the blame on people who do not have a voice and are not able to answer back. They are lucky to have the noble Lord, Lord Wilson, to stand up for them, but it is bullying behaviour to bully people who do not have a voice. To my namesake, the noble Baroness, Lady Fox, and others, I say that “the blob” is an entirely derogatory term. These are people who do a job, and to roll them up and call them a blob is deeply offensive and against those people’s welfare.
The noble and learned Lord, Lord Hope, set up exactly the problem we have here. I have hope in “Hope’s amendments”—that we can at least regain some control. I remind noble Lords that we also passed a non-regression amendment that should deal with some of these issues. It is, as the noble and learned Lord said, not an ideal situation.
I look forward to the Minister’s response on the specifics, but deep in the heart of this whole process is a problem. The problem is that the Government set out to do something in too short a time, when they did not even know how big the job was in the first place. When they found out, they drew back. Now, they are trying to blame other people. The Government have no one but themselves to blame for the mess over which they are now officiating.
Baroness Chapman of Darlington (Lab)
My Lords, the final debate on this Bill has highlighted just what a shambolic process this has been. We were glad to receive the explainer that the Government produced to accompany the new schedule, which is what we are supposed to be arguing about now in this group. But it was late, badly formatted and, as we have heard, not easily usable by some colleagues.
What we are experiencing this afternoon is the frustration that we have all felt with that element of the process and with this Bill since its introduction. At the climax of the process, we find ourselves just as confused and concerned as at the outset. There has not been adequate time to examine the contents of the schedule. Noble Lords have had to use this Report debate to try to get answers from Ministers on some of the specifics. This is exactly what we thought would happen. It is why we supported the amendment from the noble and learned Lord, Lord Hope, on Monday, and why we will support his Amendment 76. We have debated it already. It will be voted on immediately after this group. We need the safeguards that these amendments provide. Given the way in which this Bill has been handled, the Government need these safeguards too.
Lord Callanan (Con)
My Lords, I thank the House for yet another fascinating debate, only a small part of which had anything to do with the amendments we were discussing.
I will make an observation before we get into debating the amendments. I have had the privilege of being in government since 2017—for six years in three different departments. I have worked with some excellent officials, who have provided me with nothing but unstinting support. As an example, we tabled this schedule late last week—in response, I might say, to concerns expressed in this House, in an attempt by me, as the Minister, and the Government to allay the concerns that many in this House had expressed about legislation being repealed by accident. That was never our intention. It would never have happened. These regulations would have been revoked anyway but we thought it would be helpful and for the benefit of the House to set them out.
A number of Members then asked for further details about the individual regulations. Officials across government, in the Bill team and elsewhere, worked tirelessly all weekend to get the explainer to this schedule done so as to answer the concerns of Members. They worked very hard and are a credit to the Civil Service. Let me be clear, the responsibility lies with Ministers. Civil servants produced the advice, but I approved the revocation schedule for my department, DESNZ—the Department for Energy Security and Net Zero. Other Ministers approved it in their departments. Responsibility is clearly at a political level, and I will have nothing said against the Civil Service. Certainly, the Bill team worked incredibly hard all weekend, as they have done throughout the production of this Bill.
I turn to the amendments under discussion. As I said, we published the explainer to give an extensive line-by-line explanation that provides a clear justification, for the benefit of Members, for each entry on that schedule. I outlined the rationale for including the regulations flagged up by the noble Baroness, Lady Hayman of Ullock, in my opening speech. I hope that she does not want me to repeat those points on the national air pollution control plan and the national emissions ceiling directive, which are no longer in force. These depend on one another. The current format of the NAPCP is long, complicated, resource-intensive and duplicative. Removal of these particular regulations will allow us to move away from the overly burdensome system that we inherited.
Similarly, in my opener, I explained why Amendment 64ZA, from the noble Baroness, Lady Bakewell, is also duplicative, given other active environmental impact assessment regulations. No environmental impact assessment regulations have been made under those particular regulations since 2003. It is no longer necessary to have this on our statute book.
On Amendment 64ZB, I spoke to the specifics of the food-labelling regulations referenced, but I reassure the noble Baroness, Lady Brinton, that the laws to be revoked within the FSA’s remit have generally been superseded by new legislation and no longer need to remain on the statute book. Even the EU has revoked the regulations. Some have already had their operative provisions revoked, and others exist to amend or enforce legislation that has itself already been revoked.
The noble Baroness also raised enforcement. We provided additional details to her by email, but, as she knows, Commission Implementing Regulation (EU) 828/2014 laid down harmonised requirements for the provision of information to consumers on the absence or reduced presence of gluten in food, by setting out the conditions under which foods may be labelled “gluten-free” or “very low gluten”. That particular regulation remains in force and will be preserved as part of the retained EU law process. Sufficient powers are already in place under general food law to enforce the definitions. The chair of the Food Standards Agency wrote to us last week to confirm this position and to reinforce that removing them will help to make the body of law on food safety and standards clearer, while being entirely consistent with the principles agreed by the FSA board.
Baroness Brinton (LD)
I am grateful for the Minister’s response. I forwarded to him and his officials the response that I received from both the FSA and Coeliac UK, which said that this was a temporary arrangement, until 828/2014 could be introduced as a regulation under UK legislation; in other words, it is still needed. So I repeat my question: the Government consulted in 2016, and it is now seven years on, so when will that regulation be shown to the House?
Lord Callanan (Con)
I will pass the noble Baroness’s comments on to Defra, which will write to her again, but she has already received replies to her concerns in emails and she has spoken to Bill team officials about this. As I said, the FSA has said that it is entirely happy that this regulation should be revoked.
Lord Kerr of Kinlochard (CB)
I wonder whether I can help the Minister. I support what he said today, and I congratulate him on how he started and what he said about the Civil Service. But I wonder whether he might want to think, before Third Reading, about the addition of an emergency brake. I share the worries of the noble and learned Lord, Lord Hope: supposing it turns out that something is needed and that, before the deadline—before they disappear—a real case is established, could the Government not give themselves the power, by statutory instrument, to leave a particular regulation off the schedule, or to amend the schedule by statutory instrument before the deadline, simply to remove a regulation that it turns out is there in error? I do not ask for an instant reaction, but perhaps the Minister might like to think about this before Third Reading.
Lord Callanan (Con)
We are on Report. We do not need to wait until the next stage; I can tell the noble Lord now that there is a power in the amendments to allow exactly that. He does not need to have any further concerns about it.
In response to the noble Baroness, Lady Jones, I say that the UK remains committed to international agreements on air pollution, to which we are an independent signatory. We set new, legally binding targets under the Environment Act and the environmental improvement plan to halt and to reverse nature’s decline. The stretching targets mean that any reform to retained EU law must deliver positive environmental outcomes, and nothing in this schedule alters those commitments. I hope that reassures the noble Baroness.
In response to the noble Lord, Lord Fox, and his famous salt mine example, I am sorry to tell him that he is wrong. The National Archives found its pieces of retained EU law in its EU legislation database, which is now online. The noble Lord might want to consult the internet next time, rather than crawling down his salt mine. One of my officials said that she would have loved to have gone down a salt mine—it would have been a very interesting experience—but she did not need to.
Lord Callanan (Con)
I can absolutely assure him: she would have been delighted to go down a salt mine. I will not name her, but she messaged me to say that she was very keen to do so. Perhaps the noble Lord would want to arrange it for her.
The noble Lord also mentioned several regulations which are good examples of EU-inherited provisions that we may no longer need. He may not realise it, but some regulations perform multiple functions—we want to revoke some and to keep or reform others. To update and improve the regulations, we of course need to keep them for now, so that we can make those changes.
I had a feeling that the noble Lord might ask me about the famous reindeer regulation. Indeed, Regulation 1308/2013 of the European Parliament and of the Council includes provisions on reindeer, which we want to revoke because, the last time I looked, there were not many in the United Kingdom for which we need to have responsibility—perhaps even the noble Lord could agree with that. But there are other aspects of the regulation that we want to keep; therefore, in due course, there will be a reform programme which will alter that regulation. Of course, the House will get to see that through a statutory instrument at the time. I have no doubt that the noble Lord will want to engage with the Defra Minister in a meaningful debate on how important it is for the Liberal Democrats to preserve the preservation of reindeer in Lapland.
Finally, I turn to the issue of interpretative effects. My noble friend Lady McIntosh asked again for clarity on the Government’s intention. I assure her that the Government’s intentions have not changed in this regard. As she will be aware, the House agreed to Amendment 15 in the name of the noble Lord, Lord Anderson, on Monday, which seeks to replace the sunset of Section 4 of the EU withdrawal Act at the end of each year with a requirement for the Secretary of State to make a statement on the Section 4 rights and obligations which will be sunsetted at the end of this year. The House can be assured that the Government will address that.
Clauses 5 and 6, which relate to the ending of the principle of supremacy, including the principle of consistent interpretation or indirect effect and ending the application of general principles of EU law, will stand part of the Bill, as agreed by the House.
Baroness Hayman of Ullock (Lab)
Before the noble Lord sits down, I remind him that I asked a number of questions about areas other than air pollution—for example, on flooding. I wonder if the Minister could look through Hansard and write to me with a response to those questions before we reach Third Reading.
Lord Callanan (Con)
I will certainly look again at the noble Baroness’s questions.
Baroness Bakewell of Hardington Mandeville (LD)
I thank the Minister for his response and the noble Baroness, Lady Hayman of Ullock, for her support. I thank all noble Lords who took part in this very lively debate, particularly the noble and learned Lord, Lord Hope, whose concerns I share completely.
In the time available, it has been impossible for most of us to go into detail on the schedule to the extent that my noble friend Lady Brinton did, and I commend her for her efforts in that respect. The Minister will have realised from the debate that there is concern across the House at the lack of opportunity to scrutinise these regulations. I do not share the comments of the noble Baroness, Lady Foster of Oxton, that this is all the fault of the Civil Service.
The Civil Service is under pressure, and occasionally mistakes do occur, but the dire situation we are in now is not its fault: it is the fault of the way in which the Government have gone about this piece of legislation, and I admire the Minister for his acceptance of that responsibility. The number of Defra’s instruments in the Marshalled List before us is overwhelming. I thank my noble friend Lord Fox for his very stirring summing up, which I cannot hope to match. The Minister set out his case at the start of the debate, and it is regrettable that he is not prepared to move on these issues. In the interests of time, and in the face of that, I beg leave to withdraw my amendment.
Lord Callanan
Member's explanatory statement
This amendment is consequential on the Minister’s amendments at page 24, line 14.
Member's explanatory statement
This amendment is consequential on the Minister’s amendment to leave out Clause 3 and the Minister’s amendment (at page 22, line 9) to extend the power to make regulations under clause 20 to the devolved authorities.
Member's explanatory statement
This amendment is consequential on the Minister’s amendments at page 24, line 14.
“(za) regulations under section 1;”Member's explanatory statement
This amendment provides for the power under Clause 1 (inserted by the Minister’s amendment at page 1, line 10) to be subject to the draft affirmative procedure.
Lord Callanan
“(e) regulations under section 20 which amend, repeal or revoke primary legislation.”Member's explanatory statement
This amendment makes procedural provision in light of the Minister’s amendment at page 22, line 9 which extends the consequential power in clause 20 to devolved authorities.
Member's explanatory statement
This amendment is consequential on the amendment to leave out clause 2.
“(d) regulations under section 20 which are not within sub-paragraph (2)(e).”Member's explanatory statement
This amendment make procedural provision in light of the Minister’s amendment at page 22, line 9 which extends the consequential power in clause 20 to devolved authorities.
Lord Hope of Craighead
“8A “(1) A Minister of the Crown may not make a statutory instrument containing regulations under sections 13, 14 and 16 unless— (a) a document containing a proposal for those regulations has been laid before each House of Parliament,(b) the document has been referred to a Joint Committee of both Houses, and(c) a period of at least 40 days has elapsed after that referral, not including any period during which Parliament is dissolved or prorogued or either House is adjourned for more than four days.(2) If the Joint Committee, after considering any regulations laid under this paragraph, finds that—(a) the regulations represent a substantial change to the preceding retained EU law, or(b) the Government have not carried out sufficient public consultation lasting at least six weeks before laying the draft before Parliament,a Minister of the Crown must arrange for the instrument to be debated on the floor of each House and voted on before the period in sub-paragraph (1)(c) elapses.(3) If any amendments to the regulations, whether or not proposed by the Joint Committee, are agreed by both Houses of Parliament the regulations must be made in the form so amended.(4) If one House agrees amendments to the regulations under sub-paragraph (3) the Minister may not make the relevant statutory instrument until the other House has debated and voted on a motion to agree or disagree with those amendments.”Member's explanatory statement
This amendment provides for instruments made under clauses 13, 14 and 16 to be referred to a Joint Committee of both Houses for sifting so that, in the case of those which represent a significant change from the preceding retained EU law, Parliament will be enabled to differ from the Executive and express its own view as to their contents.
Lord Hope of Craighead (CB)
This amendment is about parliamentary scrutiny; it was very fully debated last Monday. If it is not agreed, I will seek to test the opinion of the House. I beg to move.
Lord Callanan
“Transitional, transitory or saving provision
19 This Part of this Schedule does not apply in relation to regulations under section 23(4).”Member’s explanatory statement
This amendment is consequential on the Minister’s amendments at page 24, line 14.
Retained EU Law (Revocation and Reform) Bill
Monday 22nd May 2023
(11 months, 1 week ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 139-I Marshalled list for Third Reading - (19 May 2023)
The Lord Privy Seal (Lord True)
My Lords, I have it in command from His Majesty the King to acquaint the House that His Majesty, having been informed of the purport of the Retained EU Law (Revocation and Reform) Bill, has consented to place his interest, so far as it is affected by Bill, at the disposal of Parliament for the purposes of the Bill.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, I am disappointed to inform the House that both the Scottish Parliament and the Senedd Cymru have voted to withhold consent for the REUL Bill.
Lord Callanan (Con)
I am sure we are all shocked to hear that. We acknowledge the concerns of both Parliaments regarding the Bill and the potential impacts on devolved areas. However, it is right and constitutionally appropriate that the REUL Bill applies UK-wide. This will ensure that the benefits of Brexit can be realised by citizens and businesses throughout the whole United Kingdom. The Government therefore intend to proceed with the Bill without their consent. As noble Lords will be aware, the ongoing absence of the Northern Ireland Executive and the Assembly means that it has not been possible to seek legislative consent from the Northern Ireland Assembly on this Bill.
I reassure the House that it was never our intention to proceed with the Bill without consent in place. Our preference would have been to secure legislative consent Motions from the devolved legislatures. The Government have sought to engage proactively with the devolved Administrations on the REUL Bill since March last year. We have listened to their concerns and sought to make meaningful changes to the Bill in response. This includes the amendment to the sunset and the conferral of the powers to make consequential and transitional, transitory and savings provisions to the devolved authorities and devolved Ministers.
The decisions of the Scottish Parliament and the Senedd, while regrettable, will never mark the end of our engagement with the devolved Administrations on retained EU law. We remain committed to supporting sustained engagement with them on the REUL Bill and the REUL reform programme going forward.
Amendment 1
Baroness Noakes
“Retained EU law dashboard and report(1) The Secretary of State must within the period of 30 days beginning with the day after the end of each reporting period—(a) update the retained EU law dashboard;(b) publish and lay before Parliament a report on the revocation and reform of retained EU law.(2) The report must—(a) provide a summary of the data on the retained EU law dashboard (as updated under subsection (1)(a));(b) set out the progress that has been made in revoking and reforming retained EU law during the reporting period to which the report relates;(c) set out His Majesty’s Government’s plans to revoke and reform retained EU law in subsequent reporting periods.(3) The reporting periods are—(a) the period beginning with the day on which this Act is passed and ending with 23 December 2023; (b) the period of 12 months beginning with 24 December 2023;(c) the period of 12 months beginning with 24 December 2024;(d) the period of 6 months beginning with 24 December 2025.(4) If the Secretary of State does not meet the requirements in subsection (1) in relation to a reporting period, the Secretary of State must—(a) explain why in a statement made in writing, and(b) publish the statement and lay it before Parliament.(5) In this section—“retained EU law dashboard” means the database on retained EU law maintained and made publicly available by the Secretary of State;“revoke” has the same meaning as in section 14.(6) In subsection (2), “reform” includes “replace”.(7) In relation to the report under subsection (1)(b) in respect of the period ending with 23 June 2026, ignore subsection (2)(c).”Member's explanatory statement
This new Clause requires the Secretary of State to update the retained EU law dashboard and report on the revocation and reform of retained EU law in periods up to 23 June 2026.
Baroness Noakes (Con)
My Lords, Amendment 1 introduces a new clause after Clause 17. Amendments 2 and 3 in this group are consequential.
I am grateful to my noble friend Lord Callanan for adding his name to the amendments and I am even more grateful to my noble friend’s officials, who have produced these amendments at great speed in response to the less elegant amendment which I moved on Report last week. It is a great privilege to be given the opportunity to table these amendments in my name.
The underlying concept behind these amendments is transparency about the progress that the Government are making in dealing with retained EU law. This Bill now revokes only a portion of that law, but it will remain an important task for the Government to decide what to do with the rest of the laws on our statute book and ensure that they support the needs of the UK economy and our citizens. It represents a once in a generation opportunity to achieve significant regulatory reform.
Amendment 1 builds on the retained EU law dashboard, which pulls together all retained EU law and shows progress in reforming that law. While some have criticised the dashboard because the number of items of retained EU law continues to increase, the core information that it contains, including visual representation of progress, has been a great achievement. Subsection (1) of the proposed new clause places an obligation on the Secretary of State to update the dashboard. It also requires the Secretary of State to publish and lay before Parliament reports on the revocation and reform of EU law.
These reports will do three things: they will summarise the dashboard; they will set out progress that has been made in revoking and reforming retained EU law; and, importantly, they will set out the Government’s plans for revocation or reform. Information on the Government’s plans does not currently get reported in a comprehensive way, and so this should be a valuable data source both for parliamentarians and for those outside Parliament. The first report will be for the period up to 23 December this year, and there will be three more reports, the first two covering the years to 23 December 2024 and 23 December 2025 and a final one for the six months until 23 June 2026. The end date is, of course, the 10th anniversary of the great referendum vote and coincides with the final expiry of the powers in this Bill to reinstate or revoke EU law.
I know that noble Lords support effective accountability of the Executive to Parliament, and I believe that this new clause will improve Parliament’s ability to oversee how well the Government are delivering on their Brexit promises. I very much hope that by the time of the final report, 23 June 2026, if not earlier, the Government will have demonstrated that all retained EU law has been dealt with, whether by a positive decision to keep it intact or by revocation or reform. Last week the noble Baroness, Lady Chapman, and the noble Lord, Lord Fox, were less than enthusiastic about my amendment on Report. It is perhaps wishful thinking to think that this new and improved version will result in a change of heart, but none the less I commend it to them. I beg to move.
Lord Hope of Craighead (CB)
My Lords, this amendment, which I fully understand, places a lot of emphasis on the capacity of the retained EU dashboard, but there are some important deficiencies in its capacity, the most important of which is that it does not contain any post-devolution legislation. That can be demonstrated by looking at the schedule that has just been introduced into the Bill. There is not a single item of post-devolution material on it.
When the Common Frameworks Scrutiny Committee, of which I am a member, invited some officials who work on the dashboard to address us and explain how it works, we asked them whether there was any post-devolution retained EU law on the dashboard. They told us that there was not, that devolution material was not there. We asked whether it was the intention that it should include post-devolution material and they said that it was not and that it was not designed to do that.
So there is a question I would like to ask, and I think it is fair to ask the Minister, about what the position truly is on this. I do not think he has ever fully acknowledged, at least in this Chamber, the fact that the dashboard does not contain post-devolution material at all. Is it intended that the dashboard should be updated, as is the obligation in the amendment, to include post-devolution material? If so, when will that be done and is it clear that the devolved Administrations are able to do that in time to meet the first deadline, which is the end of this year? They have a great deal to do already with the amount of work which is required of them by the Bill, and to have to work on updating the dashboard as well might be beyond their resources. This is a very important issue. I am not trying to undermine the amendment, but I want to understand its capacity to do what the noble Baroness, Lady Noakes, told us it is intended to do.
Baroness McIntosh of Pickering (Con)
I re-echo and endorse entirely the comments of the noble and learned Lord, Lord Hope. I also echo the regrets that the Scottish Parliament and Welsh Assembly have withheld their consent. Quite a broad area of retained EU law will remain by default on the statute books, which I welcome. However, following the comments of my right honourable friend the Environment Secretary over the weekend—particularly those relating to retained EU law and the wine sector—there remains a huge lack of clarity which, regrettably, the amendments in the name of my noble friend Lady Noakes and my noble friend the Minister do not address.
The fact that Defra will be able to revoke and amend large swathes of retained EU law—probably the bulk of outstanding retained EU law, as this relates to the Department of Environment, Food and Rural Affairs—poses great uncertainty for practitioners as well as the businesses that they are trying to advise. So I echo the question put by the noble and learned Lord, Lord Hope, which I too have asked on a number of occasions, as to the up-to-dateness and comprehensiveness—particularly as regards devolved legislation—of the dashboard. Also, regarding the legal status of the dashboard, is it just a signpost or does it have greater significance than that?
I am sure that my noble friend will share my concern as a Minister in his department that there is, regrettably, a great lack of clarity for practitioners and business going forward as the Bill leaves the House today.
Lord Pannick (CB)
The noble Baroness, Lady Noakes, introduced Amendment 1 by saying that it is designed to promote transparency and accountability. Who could possibly disagree with those objectives? They are vital to this Bill. It seems to me that subsection (1) is modest in its requirements: the updating of the dashboard and the publication of a report. My question to the noble Baroness and, indeed, the Minister is: why, then, is it thought necessary to include in Amendment 1 subsection (4), which provides that:
“If the Secretary of State does not meet the requirements”—
that is the basic requirements—in subsection (1), then certain consequences follow?
It is, I would suggest, very unusual to include in an important provision of a Bill a set of obligations on Ministers but then recognise in another clause of the same provision that they may well not satisfy the important requirements that the noble Baroness rightly suggests should be imposed on them. Should we understand from this that the Minister contemplates that there is a real possibility that Ministers do not intend to comply with the very obligations that this amendment imposes? If they are going to comply with these obligations, surely we do not need subsection (4).
Baroness Jones of Moulsecoomb (GP)
My Lords, I am afraid that a few amendments will not improve this Bill. It is a disastrous Bill, and not because of the laws that are being taken out this time—those few hundred do not seem significant. The big problem is the power grab by Ministers; that is really quite unnerving. I wonder what will happen when the Labour Party forms a Government. Will the Conservative Opposition go into trauma every time a Minister decides something?
When I voted for Brexit and taking back control, I did not mean taking back control for a small number of Ministers, who may or may not have their own ideas of what democracy is or what is appropriate for the people of Britain. The fact is that this is a bad Bill. It gives powers to Ministers that they ought never to have, and now, of course, it raises problems with the devolved authorities.
Lord Fox (LD)
My Lords, I congratulate the noble Baroness, Lady Noakes, on persuading the Minister—though I am not sure how much persuasion was required—to incorporate the spirit of her amendment, and I congratulate the Minister on making it more elegant. The noble Baroness, Lady Noakes, has invited me to like it; I will do my best, but I do not think I will manage that.
The most interesting thing about the amendment, in my view, is not what happens to the list but what is on the list. The nature of the Bill has been turned on its head. At one point, being on the list was essential to try to avoid being revoked. Now, being on the list makes a law a target to be revoked. So we are in a world that has revolved 180 degrees; we have passed through the looking-glass.
I have two questions for the Minister, and I ask the noble Baroness, Lady Noakes, to excuse me but I suspect it is the Minister who can answer them. First, to pick up on the point made by the noble and learned Lord, Lord Hope, which I was also going to make, is it the Minister’s understanding that no post-devolution legislation will now get put on to the list? We do not have legislative consent from the devolved authorities. They are apparently the authorities that would put post-devolution legislation on the list—if they had access to the database, although there is some question over whether they do. Can we assume that there will be no post-devolution legislation on the list?
Secondly, when will the list be fixed for these purposes? Is work still under way in all the departments of government in order to add new things to the dashboard, or is that it?
Baroness Chapman of Darlington (Lab)
My Lords, the noble Baroness, Lady Noakes, commented that we were rather less than enthusiastic when we discussed this issue last week. I can see why we have got to the position where this amendment has been agreed between the noble Baroness and the Government, and I am very happy for her that she feels satisfied with the movement that the Government have made in getting here. I am afraid that the concerns we have had throughout this process are a long way from being satisfied by the amendment. We do not oppose it particularly, but we are not particularly in favour of it. It does not really do all that much to the substance of what we have been disagreeing about during the passage of the Bill. However, if it helps with some internal political management on the government Benches, that is something that the Minister is entitled to attempt to do.
Lord Callanan (Con)
Well, my Lords, if the Opposition are not enthusiastic about my noble friend’s amendment, I am.
Before I address the amendment, I shall deal with some of the points that Members have raised. First, on the point made by the noble and learned Lord, Lord Hope, the noble Lord, Lord Fox, and my noble friend Lady McIntosh about post-devolution rule, that is rule for the devolved Administrations. The reality is that they have not wanted to add anything to the dashboard, and of course we are in no position—and do not wish to force them—to do so. If they wish to add some of their rule to the dashboard then they can, but for now it is just rule made by Her Majesty’s Government. It of course contains UK government legislation that has been made post devolution—just not the rule made by the devolved Administrations.
To answer my noble friend Lady McIntosh’s point, the dashboard has no legal status as such; it is just a list of retained EU law.
Moving on to the main points about my noble friend Lady Noakes’s amendment, the Government have already reformed or revoked over 1,000 pieces of retained EU law, but that is not the limit of our ambition. Departments will continue to review the rule that is not already revoked, reformed or planned for revocation this year in order to identify further opportunities for reform, and we are committed to reducing the burdens on businesses and unlocking the economic growth that will flow from that. As a down payment on our commitment to deliver meaningful reform, the 10 May policy paper Smarter Regulation to Grow the Economy set out our intention to reform regulations and remove burdens on businesses.
We announced changes that will reduce disproportionate EU-derived reporting requirements and could save businesses around £1billion a year. This will just be the first in a series of announcements that the Government will be making in the coming months on reforming regulation in order to drive growth. In addition to the revocation schedule, the powers in the Bill will still enable us to revoke, replace or reform any outdated EU laws that remain on our statute book right through until 2026. This new approach will provide the space for longer-term and more ambitious reforms and the Government intend to do just that. It will also mean that fewer statutory instruments will be required to preserve EU laws that are deemed appropriate or necessary to maintain.
The Brexit Opportunities Unit, spearheaded by the Secretary of State for Business and Trade, has been pivotal in driving the development and delivery of the Retained EU Law (Revocation and Reform) Bill and the wider associated retained EU law reform programme. These efforts are being supported by specialist legal expertise from outside government. Parliament will be able to easily monitor government progress on REUL reform, as we update the dashboard every quarter. That answers the point made by the noble Lord, Lord Fox: we will continue to update the dashboard.
Baroness Jones of Moulsecoomb (GP)
Did I understand the Minister correctly? Has he just boasted that there will be less parliamentary scrutiny and that we can look it up online?
Lord Callanan (Con)
You can look up progress online, but of course there will be parliamentary scrutiny. If we propose to make any changes to retained EU law using the powers in the Bill, they will come to Parliament in the normal process of the examination of secondary legislation.
The Brexit Opportunities Unit drove the aforementioned 10 May regulatory reform announcement, setting out a long-term plan to reform UK regulation over the coming months. Furthermore, we have committed to future announcements on how we will reform regulations to reduce the cost of living, deliver choice to consumers, establish trailblazing regulation to catalyse innovation and make the UK a science superpower, and remove obstacles to building world-class infrastructure.
However, it is crucial that Parliament and the public are able to hold the Government’s feet to the fire and ensure that our momentum continues with regard to the retained EU law reform programme. I am therefore delighted to support Amendments 1, 2 and 3, tabled by my noble friend Lady Noakes, to which I have added my name. These amendments insert a new clause into the Bill requiring the Secretary of State to update the retained EU law dashboard and to report on the revocation and reform of retained EU law in periods up to 23 June 2026, at which point, of course, the main powers in the Bill will sunset, and the vast majority of retained EU law reform will have been completed. The reports will summarise the REUL dashboard data, provide an update on whether and how REUL on the dashboard has been revoked and reformed, and detail future plans for further revocation and reform.
I thank in particular my noble friend Lady Noakes for her collegiate engagement in preparing the amendments that she has tabled today. I also extend my thanks to my noble friends Lord Frost, Lord Jackson and Lady Lawlor for their valuable engagement on this matter. These amendments will hold the Government to account in providing the additional transparency both Parliament and the public need to scrutinise the Government’s progress and future plans on retained EU law reform. I therefore hope the House will join me in supporting these amendments.
Lord Carlile of Berriew (CB)
I am grateful to the Minister for giving way. He has just told us that these amendments will hold Parliament to account. If Parliament is not satisfied with the account it is given under these amendments, what advice would he give to Parliament as to how Ministers can be prevented from carrying out what they have tried to do?
Lord Callanan (Con)
Well, they will hold the Government to account. Of course, Parliament is able to hold the Government to account in many different ways, but particularly, with the reform programme, there would be an extensive programme of statutory instruments. Parliament would be able to debate and accept those instruments or not, as it usually does.
Baroness Noakes (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I thank my noble friend Lord Callanan in particular for answering the points raised on devolution. I do not think he answered the points raised by the noble Lord, Lord Pannick, on subsection (4), which is a useful addition because it means that if a report is not laid, we get another opportunity to be told that it has not been laid, and thereby to trigger any accountability mechanisms. I regard it as an important additional subsection, and I shall certainly be using it as a precedent in amendments to other Bills in future.
Baroness Noakes
Member’s explanatory statement
This amendment is consequential upon Baroness Noakes’ new Clause.
Baroness Noakes
“(3A) In section (Retained EU law dashboard and report) (retained EU law dashboard and report), for “retained EU” (in each place it appears, including the heading) substitute “assimilated”.”Member’s explanatory statement
This amendment is consequential upon Baroness Noakes’ new Clause.
Lord Callanan (Con)
My Lords, this Bill is crucial in ensuring, as I said earlier, that we can seize the regulatory reform opportunities of Brexit. It is the next step in reasserting the sovereignty of Parliament and untangling the United Kingdom from nearly 50 years of EU membership. Through the Bill we will improve legal certainty, removing confusion from our statute book where EU principles of interpretation overlap with those of UK domestic principles. This fulfils an important constitutional objective: that our law is clear and accessible, so that citizens can understand it and regulate their conduct accordingly.
There is a long list of people whom I wish to thank for their help on the Bill. Let me start with my noble friend Lady Bloomfield of Hinton Waldrist. Sadly, my noble friend is leaving the Front Bench and she will be missed by us all. My chances of getting to the Chamber on time are greatly reduced without the hurry-up texts from my noble friend Lady Bloomfield, who has kept me right many times in this Chamber and when we have debated statutory instruments in the Grand Committee. I am hugely grateful for all the help and support that she has given to me; I am sure other members of the Front Bench feel the same. She will be a great loss to the Government.
Let me also thank my noble friends Lady Neville-Rolfe and Lord Benyon, and my noble and learned friend Lord Bellamy, for their support during the Bill’s passage. I fear I would have continuously sat on this Bench for a great many days in addition to those when I did without their help and support, which has been greatly appreciated.
Let me also give my thanks to the Bill team. All the Bill teams I have worked with have worked extremely well and tirelessly, but I can tell the House that this Bill team in particular has gone above and beyond the call of duty. I said this when there were some frankly ill-considered remarks about the Civil Service while we were on Report, but many of them really did work all weekend to get the explainer out for the benefit of noble Lords when we were discussing the schedule. Their assistance has been great and their legal advice superb. If there were legal errors in anything that I said, I can assure noble Lords that it was not their fault. The fault was entirely mine, as they did a great job in trying to explain some of these complicated concepts.
I also thank members of the Opposition, including the noble Baroness, Lady Chapman, the noble and learned Lord, Lord Hope, my noble friend Lord Hodgson—who is of course not a member of the Opposition but is on our own Benches and played a big role in the Bill—and the noble Lord, Lord Fox, among many others who contributed to its passage. We did not always agree on many parts of it, of course; I apologise if, from my point of view, I sometimes expressed a little bit of irritation with some of the speeches that were made. Nevertheless, I do accept that it is the job of the House to scrutinise the Government, to look at our legislation closely and to propose amendments. If we could perhaps have a bit more constructive opposition sometimes, I would appreciate it.
Lord Callanan (Con)
Nevertheless, the contributions are appreciated.
The Government have of course sought to address the concerns raised, notably around the sunset and courts provisions. We listened to the points made in the House and addressed those concerns via the amendments that we brought forward on Report. I hope that the House recognises how significant a move this was from the Government and takes that movement in the spirit in which it was intended. We really did try to alter the Bill to take account of many of the concerns that were addressed.
The House has also made its views known on some other areas of the Bill on which the Government do not agree, including the reform and repeal powers we believe are crucial to the ambitions we have in this space. Our work in producing the retained EU law dashboard highlighted that there are many defunct laws on our statute book relating to activities that the UK does not conduct, such as my famous example of regulating reindeer herdsmen in Lapland. Now that we have taken back control of our statute book, it is appropriate to update it by amending, repealing or replacing REUL that is no longer fit for the UK.
I do not think there is much argument on all sides of the House about the list of measures we have produced that deserve to be repealed. This will allow us to create new pro-growth, high-standard regulatory frameworks that give businesses the opportunities and confidence to innovate, invest and ultimately to create jobs. This Bill delivers, in addition to providing clarity and certainty. It provides the powers for the Government to make legislative changes that will benefit all of us in the United Kingdom. With that, I beg to move that the Bill do now pass.
Lord Fox (LD)
My Lords, I thank the Minister for his speech. His answer to the question asked by the noble Lord, Lord Carlile, indicates why what I will call the Hope-Hamilton amendments are so important. I hope it is clear to the Minister that your Lordships’ House considers these to be very important and that they should be retained rather than reversed when they head to the other place.
Any Commons reversal of Amendment 48 will be seen as a show of intention by the Conservative Party on environmental legislation. Again, it would not be wise, given the very good reassurance we have had from the noble Lords, Lord Benyon and Lord Callanan, on retaining that legislation. Pushing out Amendment 48 would be moving things in the opposite direction.
Overall, the work of this House has achieved a major change and a U-turn. As I said before, it has achieved a reverse in the polarity of this Bill, and noble Lords should be very proud of that. It has been a fraught debate at times. I owe a mea culpa to the noble Baroness, Lady Fox. In the hubbub I misrepresented her use of the term “blob”, and I am happy to put the record straight—so apologies there. During that debate there was also a to and fro, which was very important. The Minister is right to say that that is the role of this House.
I thank the Ministers—the noble Baronesses, Lady Bloomfield and Lady Neville-Rolfe, and the noble Lords, Lord Benyon and Lord Bellamy—for their hard work in trying to bring us along; they have not often or always succeeded, of course. The Bill team, when we have met, have always been very helpful and courteous; they are a credit to their service. I hope that, for those of the team who want to visit the Cheshire salt mines, I have in some way helped them head that direction.
His Majesty’s Opposition have been a pleasure to work with: I thank the noble Baroness, Lady Chapman, the noble Lord, Lord Collins, and of course the team in their Whips’ Office. Many Cross-Benchers and other noble Lords across the House have participated fully. It would be difficult to mention them all, but for his virtuoso display during Report, the noble and learned Lord, Lord Hope, deserves the full gratitude of your Lordships’ House.
Quite a few Liberal Democrats have participated in the Bill, not least those who were mobilised over the weekend to try to review 600 laws and work out what they did. I am not going to name them all, but I thank them for their support. I will name my noble friend Lady Ludford, who unfortunately cannot be here; she has been able company for me on the Front Bench. Finally, I thank Elizabeth Plummer in our Whips’ Office, whose grasp of this Bill has been beyond compare.
Baroness Chapman of Darlington (Lab)
My Lords, we have never argued with the Government’s right to want to find a way to assimilate fully some EU-derived pieces of legislation and to revoke or restate others. We have never had cause to fall out over the Government’s stated aims, but the Bill has been the definition of using a sledgehammer to crack a nut. I am quite sure that Ministers regret having attempted to undertake this task in this particular way. I am also very sure that the Minister is glad to see the back of the Bill, having sat through hour upon hour of deliberation in this place.
The Bill was designed to appeal to a group of people with a certain perspective, and as we have said repeatedly—I say it again—that is not the right way to initiate legislation; the Government have learned that lesson very publicly. It is slightly surprising to hear the Government say that they wish the opposition to the Bill had been more constructive, given that we were pleased to see the Government accept the substance, if not the letter, of our amendment on the sunset, which we tabled at the beginning of Committee. The Government moved substantially on that issue; we recognise and welcome that, and we give them credit for it.
We thank all noble lords who have contributed to our deliberations on the Bill. The noble Lords, Lord Hamilton and Lord Hodgson of Astley Abbotts, and, in particular, the noble and learned Lord, Lord Hope, deserve our thanks and recognition for the work they have done to improve parliamentary scrutiny and oversight. These amendments are vital to the Bill, and I hope the Government welcome them and will support them in the other place. I do not believe that anyone thinks the new amendments tabled today are adequate responses to the concerns we have raised, so we hope that our concerns are protected as the Bill proceeds.
Having said that, I very much thank the Minister for his constant patience, charm and warmth across the Dispatch Box—it is never in doubt—and I look forward to many such exchanges in the future. I also acknowledge the sterling work the noble Baroness, Lady Bloomfield, has done throughout the passage of the Bill. I echo what the Minister said about wishing her well in the coming months; I hope she has a wonderful summer. We value very much the work she has undertaken on the Bill. I also thank the noble Baroness, Lady Neville-Rolfe, the noble Lord, Lord Benyon, and the noble and learned Lord, Lord Bellamy, who were all corralled in as part of the support act on the Bill; they all did their best, did they not?
On these Benches, I especially thank my noble friend Lord Collins, who has been an absolute star; he has supported everything we have tried to do on these Benches throughout and has made some fantastic contributions. I also thank my noble friend Lady Hayman, who brought her experience and expertise on the environment to our deliberations; we have benefited hugely from her contributions.
I also thank the Opposition Bill team. Milton Brown, Tom Raines and Dan Stevens provided expert advice and have been extremely helpful in helping us prepare amendments. I thank both the Government Whips’ Office and my own Whips’ Office.
We are glad that the Bill leaves this place in slightly better shape than when it arrived. We hope the Government are able to receive in good grace the amendments we have made and will retain them, and that we do not need to consider the Bill further.
Retained EU Law (Revocation and Reform) Bill
Wednesday 24th May 2023
(11 months, 1 week ago)
Commons ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 24 May 2023 - (24 May 2023)
The Solicitor General (Michael Tomlinson)
I beg to move, That this House disagrees with Lords amendment 6.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss:
Lords amendment 1, and Government amendment (a) to Lords amendment 1.
Lords amendment 16, and Government amendments (a) and (b) to Lords amendment 16.
Lords amendment 15, and Government motion to disagree.
Lords amendment 42, and Government motion to disagree.
Lords amendments 2 to 5, 7 to 14, 17 to 41 and 43.
The Solicitor General
It is a great pleasure to open this debate on their lordships’ amendments to the Retained EU Law (Revocation and Reform) Bill, which is a vital part of the Government’s agenda to regulate in a smarter, innovation-friendly way that will grow the UK economy. We have already taken advantage of many of the opportunities that leaving the European Union has created, and Brexit offers us the opportunity to rethink, from first principles, how and when we regulate. Of course, this includes ridding the statute book of unnecessary and burdensome retained EU laws through a process of revoke and reform, while always applying the same rigorous scrutiny to wider regulations that have accumulated over time, to ensure they are fit for purpose and of benefit to the UK.
Mr John Baron (Basildon and Billericay) (Con)
Does the Solicitor General believe the Government’s approach is not only sound but robust in ensuring that we examine each piece of EU legislation before discarding it? Secondly, does he agree that, through forthcoming legislation, we will have gotten rid of more than half of retained EU law by the end of the year?
The Solicitor General
I am very grateful to my hon. Friend for intervening so early in this debate to make two very important points. He is absolutely right, and I will turn to the detail of his points but, on the substance, he is 100% correct. As I develop my points, I hope he will agree even more with our approach.
Caroline Lucas (Brighton, Pavilion) (Green)
The Government are trying to get rid of Lords amendment 15, which reinstates the principle of non-regression. Can the Solicitor General explain what is so burdensome about agreeing to a non-regression clause, given that the Government keep saying they have no intention of weakening our environmental and food standards? If that really is the case, why on earth would he be against the principle of non-regression? Is it because, actually, the Government probably have ideas about weakening some of our standards?
The Solicitor General
The hon. Lady intervenes at a very early stage in the debate. I have not even concluded my preamble, let alone turned to the individual amendments, which I will, of course, address. She will not be surprised to hear that I disagree with her, and I hope she will bear with me and listen as a I develop my points in respect to Lords amendment 15.
This Bill is not specifically about cutting burdens to benefit business. We are doing this because ensuring that markets function properly will benefit each and every one of our constituents as consumers and citizens of this country. We must ask which regulations have worked, which require scrapping and which can be reformed. Smarter regulation leads to improved growth and a stronger economy.
Theresa Villiers (Chipping Barnet) (Con)
I expressed my reservations about the sunset clause from the outset, as the practicalities of meeting such a tight deadline were always going to be difficult. I understand why the Government are where they are on this, but I hope my hon. and learned Friend will assure the House that, even with the removal of the deadline provided by the previous sunset clause, we will see the Government working hard to deliver the kind of regulatory review, reform and improvement of retained EU law that he talks about, because he is right that it is crucial to economic success.
The Solicitor General
I pay tribute to my right hon. Friend for her work in this area over a long number of years. I hope her work continues and that we can encourage her to suggest regulations that need scrapping or reforming and, frankly, those that have worked and that we need to hold on to. When I come to the Government amendments, I hope she will be reassured that our approach adopts exactly what she has envisaged.
I turn to the amendments. It is clear that we are fully taking back control of our laws and ending the supremacy and special status afforded to retained EU law by the end of 2023. We are ending the inappropriate entrenchment of EU law concepts in domestic statute. For centuries, our legal systems have developed through common law and case law principles. Indeed, the UK is home to perhaps the most respected legal jurisdictions in the world, not least thanks to our strong judiciary and, crucially, our world-renowned common-law legal system, which is clear, fair, predictable and based on precedent.
Patrick Grady (Glasgow North) (SNP)
It is great to see that so many Ministers have taken an interest in this Bill during its passage. The Government and this place were already supposed to have the power to do everything the Solicitor General outlines, by taking back control from Brussels. Everything he says could be done through primary legislation, without needing the sweeping powers the Bill grants, much as my Glasgow North constituents welcome the removal of the cliff edge, about which the Solicitor General’s predecessors were repeatedly warned at previous stages.
The Solicitor General
I am grateful for the hon. Gentleman’s intervention, but the fact is that this framework Bill will end the supremacy and special status of retained EU law. The reason why so many Conservative Members are sitting on the Government Benches today is because we welcome the fact that the supremacy and special status afforded to retained EU law will end with the passage of this Bill.
John Redwood
The list of repeals will make life better and make us more prosperous, but why are we not making a big increase to the VAT threshold, now we are free to do so, so we can liberate and expand many more of our small businesses?
The Solicitor General
I am grateful to my right hon. Friend for his intervention. He has spent a lifetime working on these issues and I look forward to his continuing contribution to this debate. The fact is that by having a schedule, we can set out incredibly clearly what laws will be sunset and when—I will turn to that point in a moment—and we provide certainty. Importantly, it does not prevent our making further reforms in due course, and I will address that point in a few minutes.
Amendment 1 is an amended version of an initial Government amendment. The Government tabled that amendment on Report in the Lords to remove the automatic nature of the sunset clause, as we have heard. This approach will provide legal certainty on which EU laws will fall away at the end of the year and will ensure that Parliament, Ministers and officials are freed to focus on more reform of retained EU law and to do this faster. Let me respond further to my right hon. Friend by saying that that is the great advantage of this approach: we are not going to be upstairs in Delegated Legislation Committees between now and the end of the year. Instead, we will be able to focus important time looking at where we want to make real and proper reforms. The goal of this Bill—to enable revocation and reform, and to end the supremacy and special status of retained EU law—remains fully intact.
The Solicitor General
I will give way to the hon. Lady first and then of course I will give way to my hon. Friend.
Stella Creasy
I hope I may be defending the rights of the hon. Member for Stone (Sir William Cash) and the right hon. Member for Wokingham (John Redwood) here. The Minister has just said how wonderful it will be that we will not be in these SI Committees. Is it not the case that Members of this House with strong feelings about any of this legislation will be reduced to pleading, through question sessions such as this, trying to catch a Minister in the Lobby or lobbying one of those backroom civil servants, to try to amend the SIs that are being put forward? This piece of legislation might set out what the Government plan to revoke at this point in time, but there will still not be any scrutiny in this Chamber or any opportunity for an MP to put forward proposals to challenge them. That is not taking back control—it is giving it away.
The Solicitor General
I disagree entirely with the hon. Lady. I know that she is an assiduous Member of this House; I have served on many Bill Committees with her and know how seriously she takes her work and this role. I know that she would not be unwilling, and indeed neither would I, to sit upstairs on SI Committees, but that should be only if it is necessary. If it is not necessary, and if all we are doing is, in effect, retaining the status quo, it is much better to free up parliamentary time, and the time of Ministers and officials, to look at where real reform can be made.
Sir William Cash
I simply ask the Solicitor General whether he would be good enough to give an assurance to the European Scrutiny Committee, in the light of recent events, on its interaction with the Bill and its outcome and operation.
The Solicitor General
My hon. Friend pre-empts me, because I will be turning to the important role of the European Scrutiny Committee. I know he will forgive me, because it is important to take this in the proper order and so I will come to that point in due course.
Simon Hoare
I thank my hon. and learned Friend and neighbour for giving way. A lot of our constituents want to get behind the Government’s strategy. They want to have the confidence that it is going to be done in a calm, measured and sensible way. In recent times, more radically siren voices have suggested the “Singaporisation” of life and everybody just getting on, with no regulations and bonfires of this, that and the other. This has slightly scared the horses. Will he therefore, from the Dispatch Box, give comfort to a large number of people in this country who understand the job that needs to be done but want the assurance that it will be done in the calm, timely and reflective way that he has set out? That message—that change of tone and approach—has not quite been articulated strongly enough by Ministers and therefore has not been understood clearly enough by constituents.
The Solicitor General
I am grateful to my hon. Friend for his intervention and, as ever, for his assiduous attention to these matters. He is right in what he says, so let me give an example and, I hope, the assurance that he is seeking. Importantly, the default approach of the Department for Environment, Food and Rural Affairs will be to retain the substance of retained EU law unless there is good reason to either repeal or reform it. Such an approach not only allows us to keep protections in place, but provides certainty to businesses and stakeholders. He will know and appreciate that our high standards were never dependent solely on our membership of the EU. I will turn back to that theme in due course.
The Solicitor General
I will not give way at the moment. I am going to make some progress, because I am conscious that a number of people want to speak in the debate. As I was saying, all retained EU law in the schedule will be revoked on 31 December 2023.
There is a clear additional advantage to a schedule, and this was a point I made earlier to the hon. Member for Walthamstow (Stella Creasy): rather than using precious parliamentary time passing SIs to save laws that no one would ever let sunset, it is right to be clear in a schedule what retained EU law will revoked, while letting the rest be reformed. Instead of our focusing on passing significant numbers of SIs just to preserve the status quo, the schedule will allow the Government to get on with reforming and revoking regulations that are not fit for purpose for the UK.
Sir Robert Buckland (South Swindon) (Con)
My hon. and learned Friend is bringing me a lot of déjà vu, as one of his predecessors who dealt with EU withdrawal and retained EU law. There will be more on that later, but I want to ask him about the point he has just made. Was there not a danger that, in confusing haste with speed, we were going to end up with a cut-and-paste operation, where civil servants were just going to replicate existing SIs and leave them on the statute book to be reformed at some undefined date in the future? Is his approach guaranteed to avoid that unhappy set of circumstances from coming about?
The Solicitor General
I am grateful to my predecessor, who has indeed spent many hours at this Dispatch Box debating legislation such as this over the past years. He is absolutely right in what he says; this approach allows the Government to get on with reforming and revoking, rather than having the cut-and-paste to which he referred.
We want to expand both the scrutiny and the breadth of experience that we are drawing on when it comes to revocation and reform. My hon. Friend the Member for Stone (Sir William Cash) anticipated this point, and I thank him for the work done by him and his Committee, a number of whose members are in the Chamber today. Indeed, I used to be a member of that Committee and the Government look forward to engaging with it. I am pleased to give him a commitment that we will present a report to the European Scrutiny Committee on a six-monthly basis on the progress and plans the Government are making on the repeal of retained EU law. Any retained EU law not included in the schedule will be stripped of EU interpretative effects after 31 December 2023. I repeat that it is important to expand both the scrutiny and breadth of experience, as the Secretary of State for Business and Trade has said from this Dispatch Box and elsewhere. This is vital, and it means that we will still be removing the effects of general principles of EU law as an aid to interpretation, ceasing the application of supremacy and repealing directly effective EU rights so that they no longer have any effect in relation to those provisions.
Caroline Lucas
The Solicitor General keeps talking about getting rid of laws that are burdensome or unnecessary, but caught up in the revocation schedule, among many other things, are the National Emission Ceilings Regulations 2018, which require the Government to prepare and implement, review and—critically—consult on a programme to tackle air pollution at source. The Government say that they do not need to do that via that legislation, and that they will do it instead via environmental improvement plans, yet those plans are vague and do not include public consultation. Given all the regulations caught up in the 600 that he is trying to get rid of, how can he be sure that he will not throw the baby out with the bathwater? On air pollution, he absolutely is doing that. We are not even meeting our existing air pollution targets, yet we risk watering down or junking targets that we ought to be abiding by.
The Solicitor General
I think I am grateful to the hon. Lady. I will come back to this point in due course, but she will have seen that there is an explainer for each and every one of the 587 regulations in the revocation schedule, and it is clear that in the vast majority of cases they are simply redundant and not needed. It seems that she has already had a complete answer to her point from the Government. I will come back in due course to our Environment Act 2021 and develop further the point that I am making.
Turning back to Lords amendment 1, nothing on our domestic statute book will be considered retained EU law and have the special status of retained EU law; that will come to an end by the end of the year. In my respectful submission, the further amendment to Lords amendment 1 passed in the other place is unprecedented, unnecessary and unacceptable. We must be able to use this primary legislation to revoke unneeded and unwanted legislation; it is not necessary to invent a new procedure simply to review a revocation schedule.
Sir Robert Neill (Bromley and Chislehurst) (Con)
I welcome my hon. and learned Friend’s tone and approach, as I welcome the Government’s getting rid of the sunset clause and putting in place the revocation schedule, which is so obviously the right thing to do.
My hon. and learned Friend says that the further amendment contained in Lords amendment 1 is unprecedented, unnecessary and undesirable, but was not the objective of that further amendment, which was tabled by Lord Hope, who is a very distinguished lawyer, along with Lords Hamilton of Epsom and Hodgson of Astley Abbotts, both of whom are friends who I know to have been lifelong Brexiteers, to ensure that the measure was not used to make substantial change to our law, rather than to get rid of redundant legislation or make technical changes, which we all agree should not go to a Delegated Legislation Committee? What will be the Government’s alternative mechanism to ensure that we do not get substantial change to the law without proper debate and scrutiny?
The Solicitor General
My hon. Friend the Chair of the Justice Committee makes important points, and I hope that I can reassure him on some of them in my next two paragraphs. To answer his very last point, Members’ presence here in the Chamber right now, raising the sorts of points that he has raised, is part of the scrutiny process. In my respectful submission, the further amendment to Lords amendment 1 made in the other place actually undermines legal certainty. I draw his attention to the fact that there is already a proportionate safeguard—namely, a limited preservation power—in the preferred clause.
My hon. Friend mentioned the noble Lord Hope. I agreed with at least this part of Lord Hope’s speech:
“A quick reading of the schedule suggests that many of the items listed in it are things we can well do without.”—[Official Report, House of Lords, 15 May 2023; Vol. 830, c. 19.]
In fact, a longer look confirms the position. I must therefore ask the House to return Lords amendment 1 to the other place, as amended by Government amendment (a).
I turn to Lords amendment 16 on the reporting duty, which was tabled by my noble Friend Baroness Noakes, supported by my noble Friends Lord Jackson of Peterborough, Lord Frost and Baroness Lawlor. We have of course listened to the concerns raised, and I assure the House that the Government have not moved one inch from their bold ambitions. We remain committed to securing swift and significant reform that brings tangible benefits to the UK economy.
That is why I ask the House not only to agree with the reporting amendment sent to us by the other place, but to improve it. Our amendment (b) would increase the frequency of reporting to every six months. We know that accountability to this House and the other place is the best way of ensuring that the Government keep progressing their priorities and that my right hon. Friend the Member for Wokingham (John Redwood) and others are reassured.
I am delighted to support the amendment of my hon. Friend the Member for Stone, amendment (a) to Lords amendment 16, which will ensure that the Government report to both Houses not just on reform progress, but on what retained EU law will be reformed and what will be revoked. In the spirit of the amendment, I am pleased to say that the Government have already reformed and revoked more than 1,000 pieces of retained EU law—this comes back to the point that my hon. Friend the Member for Basildon and Billericay (Mr Baron) made at the outset—including more than 450 pieces that we have repealed, replaced or let expire, and 650 more that we have amended. Again, we can follow all this thanks to my right hon. Friend the Member for North East Somerset and his dashboard.
Upon our exit from the EU, a number of Departments proactively revoked or amended regulations that contained deficiencies as a result of the UK’s exit from the EU. DEFRA has already reformed key areas of retained EU law through flagship legislation such as the Environment Act, the Agriculture Act 2020 and the Fisheries Act 2020.
The Solicitor General
I am delighted that the Attorney General says that so loudly from a sedentary position, because she took at least some of those measures through this House. I am grateful to her for that. The revocation schedule will build on that and facilitate reform in key sectors.
This is far from the limit of the Government’s ambitions. Across Whitehall, Departments will continue to review the retained EU law not already revoked or reformed, and we are committed to reducing burdens on business and unlocking economic growth.
Bim Afolami (Hitchin and Harpenden) (Con)
I refer Members to my entry in the Register of Members’ Financial Interests: I chair the Regulatory Reform Group. The Solicitor General is making a very good case not just for the approach in this narrow area of EU law, but for the need to integrate that with a broader programme of improvement to the regulatory system. Will he give his view of the proposals by the Regulatory Reform Group on the importance of improving our regulatory system to improve accountability and responsiveness from regulators, as they have a lot of duties under primary legislation?
The Solicitor General
I pay tribute to my hon. Friend for all his work in this area. He will have heard the Secretary of State’s call for greater scrutiny and for a breadth of experience, which she is determined to draw upon. I am sure that she will draw upon my hon. Friend’s experience too. He is right. We are committed to reducing burdens on business and unlocking economic growth. I ask all right hon. and hon. Members to support amendments (a) and (b) to Lords amendment 16.
Lords amendment 6 undermines a fundamental plank of the Bill—namely, ending the special status of retained EU law on our statute book by repealing section 4 of the European Union (Withdrawal) Act 2018. The matters saved by section 4 consist largely of retained rights, obligations and remedies developed in the case law of the Court of Justice of the European Union. The vast majority of those rights overlap with rights that we already have. Those overlaps can cause confusion and legal uncertainty. By not repealing section 4, and instead replacing it with unclear parliamentary procedures, the Lords amendment would create the very legal uncertainty that was previously criticised.
This is the point: the Bill should end the situation where, to understand and enforce their rights, citizens must decipher the implications of a high-level legal principle giving effect to an ill-defined right or set of rights. Lords amendment 6 does the exact opposite.
The Solicitor General
The hon. Gentleman, I know, will forgive me because I have been a very long time and I must make some progress. It perpetuates a situation that is unacceptable to the Government and, I would hope, unacceptable to the House.
Sir Robert Neill
May I press the Solicitor General to give way on that point?
Sir Robert Neill
The Solicitor General says it is unacceptable to the Government, and I understand the points he makes, but can he help on one point that was raised in the upper House? Contrary to the Government’s belief, there is a risk of legal uncertainty because, while the Government rightly have a revocation list of legislation, there is not a revocation list of rights that may be in another form. Therefore, the concern was raised about the risk of deleting almost unidentified law unintentionally. I am sure the Solicitor General has an answer to that and I would like to hear it, but at the moment I do not see why the Government are so exercised about this new clause—again, proposed by people who are both distinguished in the law and firm Brexiters.
The Solicitor General
As my hon. Friend knows, I pay enormous deference to those experienced in the law—not least to him, as long-standing Chairman of the Justice Committee—but he heard my response: the Government’s concern is that Lords amendment 6 would replace clause 3 with unclear parliamentary procedures and, in my submission, create the very legal uncertainties that have been previously criticised. That is why I suggest that it is should be unacceptable not just to the Government, but to the House as well, and that the amendment proposed would actually muddy the waters.
The Solicitor General
Having given way to my hon. Friend the Chair of the Select Committee, of course I give way to the hon. Gentleman.
Patrick Grady
I think I can help the Minister out here, because from everything he has just described, it appears that what the Government are trying to achieve is that, instead of its being called “retained EU law”, it will now just be called “the law”.
The Solicitor General
I sort of agree—although that is a little bit of a facetious way to put it from the hon. Gentleman, but there it is. To deliver clarity, to remove the principle of supremacy in international law, the House must remove this amendment and restore the original clause to the Bill.
Sir William Cash
On the question of legal certainty, does my hon. and learned Friend not agree that it would be almost impossible to imagine how uncertain it would be if we had two sets of statute books, one of which was post Brexit and the other of which was the retained law as passed by the European Union over all those years? The method of interpretation—the difference between the purposive method and our own method—is absolutely crucial to this, does he not agree?
The Solicitor General
I do agree with my hon. Friend, who is absolutely right. That is the whole purpose of this Bill and the reason we are ending the supremacy of retained EU law.
I turn now to Lords amendment 15, which sets out a number of conditions relating to environmental protections and food standards that the Minister must meet when intending to use the powers of this Bill. That is unnecessary. Ministers have made it clear repeatedly at every stage of this Bill’s passage in both Houses that we will not lower environmental protections or standards.
Equally, the delegated powers in the Bill are not intended to undermine the UK’s already high standards on food, nor will they do so; indeed, this Government are committed to promoting robust food standards nationally and internationally. Rather, we can use these powers to simplify and improve regulation, making it simpler and administratively easier to comply with, without lowering standards. Those reforms, among others, are vital to allowing the UK to drive genuine reform and to seize the opportunities of Brexit.
The Solicitor General
No, I will not. I have given way twice to the hon. Lady and I am going to make progress.
However, we recognise the need to protect environmental and food standards. Therefore, I would like to be clear once again in confirming, as many Ministers have done before me, that this Government are fully committed to upholding environmental standards and food protections. It is worth noting that the Department for Environment, Food and Rural Affairs has already reformed retained EU law in key areas, through flagship legislation: I have already mentioned two pieces of that—the Fisheries Act 2020 and the Agriculture Act 2020. Our environmental standards are world leading. We have passed legislation designed for our own domestic environment and it is right that we have done so.
The Solicitor General
I have given way to my hon. Friend once, but not twice, so I will give way to him again.
Simon Hoare
One can never give way too many times to a neighbour. My hon. and learned Friend is making an important point. My constituency is hugely agricultural, and so is much of his, so food standards and animal welfare are important to many of our constituents. We have put on the statute book the Agriculture Act, the Environment Act 2021 and other things. Does he agree that, while there has been suspicion on this issue, we should take great confidence from the announcement made by our right hon. Friend the Prime Minister and others that, when it comes to trade deals, the lessons raised by our right hon. Friend the Member for Camborne and Redruth (George Eustice) have been learned, and therefore issues of animal welfare and standards will be at the heart of future free trade agreements, rather than an optional extra?
The Solicitor General
I am grateful again to my hon. Friend; I am glad I gave way to him twice and did not leave him there, asking without receiving an answer. I can simply repeat the assurances that Ministers have given—ad nauseam, dare I say—that our environmental standards are world leading and will continue to be so. In reviewing its retained EU law, DEFRA’s aim is to ensure that environmental law is fit for purpose and is able to drive improved environmental outcomes. In light of that, I ask the House to reject amendment 15.
I turn now to Lords amendment 42—I think this is the last one, if I have counted correctly. This amendment inserted a new paragraph into schedule 4 and would require a novel procedure to apply to the use of the powers contained in the Bill. I repeat that the procedures are novel and untested. This Government do not accept the principle that Parliament should be able to amend statutory instruments.
In addition, the procedure would have significant implications for both parliamentary time and the ability of Government to deliver their business. It would bring significant delay to the clarification of our statute books through restatement, and delay much-needed regulatory reform. There is already provision for scrutiny measures within the Bill. All those powers will already be subject either to the affirmative procedure, meaning they must be debated in and approved by both Houses, or to the findings of a sifting Committee in each House. That is a sufficient safeguard.
The Solicitor General
I will not. The sifting procedure will provide additional scrutiny of the powers, while retaining the flexibility of using the negative procedure when there are good reasons for doing so. I therefore ask the House to reject this amendment. I have set out the Government’s position today—
Stella Creasy
On a point of order, Madam Deputy Speaker, the Solicitor General just suggested that amendable SIs was a novel procedure—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. Stop. That is not a point of order. The hon. Lady has tried to intervene on the Minister. The Minister has already taken her intervention and he is not taking another. It is not a point of order for the Chair. The hon. Lady should not abuse the procedures of the House in this way. I call the Minister.
The Solicitor General
Thank you, Madam Deputy Speaker. I fear I have tried your patience for too long, so I will seek to conclude. I know a number of other right hon. and hon. Members want to catch your eye and I will allow them to do so.
I have set out the Government’s position. It is one that prioritises a clear statute book, that ensures that we have regulation that is fit for purpose and that works for the United Kingdom. I invite all hon. Members to support the Government’s motions today.
Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)
Well, now. From the outset the Opposition have made it clear that we believe this Bill to be unnecessary, unrealistic and undesirable, and everything that has happened in the other place since we last saw it here has only reaffirmed what was painfully obvious. This is an inherently flawed piece of legislation, from a fatally wounded Government unable to deal in reality.
I reiterate what I said on Second Reading: this Bill has nothing whatsoever to do with Brexit. We have left the European Union. That is a fact. This is about the good governance of the UK, and whether it is Parliament or Government that should have the power to control significant changes to the law. On the Opposition Benches, we recognise that there are undoubtedly areas where we as a country will choose to take a different regulatory approach now that we are no longer pooling some of those decisions across the other member states of the European Union. However, where we choose to do that, the correct approach is to bring to this place a set of positive proposals and have them accepted or rejected in the usual fashion. Not only is that the better approach, but it is the Government’s approach to, for instance, financial regulation in the form of the Financial Services and Markets Bill, which the Labour party broadly supported. The Solicitor General gave additional examples of that approach in his opening remarks. Indeed, if any Member has a positive agenda to promote, let them bring that positive set of proposals to this place.
What the Government suggested initially was nothing short of legislative vandalism, taking a machete to the law in a way that risked our hard-won rights, when what was needed was a scalpel. For the Government to try to remove via a sunset clause vast swathes of law, which they themselves could not even adequately list or quantify, was always ridiculous. To create so much uncertainty—especially after the fiasco of the mini-Budget, when the Conservatives crashed the British economy—was bad enough, but also risking so many core rights and protections, in the form of employment law, the environment and consumer rights, was fundamentally unworkable. Britain’s businesses, trade unions, civic society and campaigners united to oppose such a reckless and unnecessary approach, and I, for one, commend them for their work.
As all colleagues are now aware, the Government have finally reckoned with reality. Today, we are presented with the inevitable decision by the Secretary of State to completely abandon the Government’s initial approach and accept how wrong they were. It appears to be a decision so humiliating that the Secretary of State is not prepared to face the Chamber. The Government’s amendment, through which they seek to perform a U-turn so swift that it is more of more of a handbrake turn, will change the Bill fundamentally. I thought that the Solicitor General put a very brave face on it, but people will rightly ask why, if his statements are correct, this was not the Government’s approach to begin with.
The change to the sunset clause is not the limit of the good work done in the House of Lords. In the other place, they have sought to protect the role of Parliament and of our constituents in deciding our future trajectory. They have correctly made it clear that no one voted to take back control only for decisions to be made in the back rooms of Whitehall. Lords amendment 1, which was tabled by Lord Hope of Craighead and the Conservative peers Lord Hamilton and Lord Hodgson, would ensure that a joint committee goes through the laws that the Government are proposing to drop, with any objections triggering a vote in Parliament. I urge all colleagues who wish for their constituents’ voice to be strengthened in this process to support the amendment.
Lords amendment 6 would ensure that many of the rights secured by EU case law
decisions cannot be reversed without Parliament’s say so. Crucially, the amendment also respects the role that the devolved Administrations should be playing in that process, allowing them to have the final decision on revoking any rights, powers or liabilities, where relevant.
British consumers and farmers rightly want our world-class standards to be strengthened, not weakened, as a result of leaving the EU. We will therefore support Lords amendment 15 to stop a regression on food and environmental regulations. I heard the Minister’s defence of the Government’s position in pushing back on the amendment, but, in light of the widespread concern of many constituents about, for instance, the huge increase in sewage in UK waterways under the Conservative Government, it is particularly important to support it.
Vicky Ford (Chelmsford) (Con)
I am listening carefully to the hon. Gentleman. Many of my constituents are also concerned about the rise in food prices. Does he agree that we need to be careful that our legislation does not push food prices up unnecessarily, and that, although we need to ensure that food standards are maintained, we should not add extra bureaucracy, because that comes out of our constituents’ pockets when they pay at the supermarket?
Jonathan Reynolds
I absolutely agree. If the right hon. Lady has positive proposals that she wishes to bring forward to amend the law, and if she is making the case that UK food standards are currently onerous to the point of adding expense to her constituents and mine, I will listen to that case—I might not agree with her, but I will listen to it. If that is the case that she is making, surely it is incumbent on her to bring forward such proposals, and reveal which regulations would be necessary to change that and where she thinks the law is going wrong. I accept, and I think the Government accept, that the major driver of food-price inflation has been the war in Ukraine. That is a reasonable point. [Interruption.] I can hear some chuntering on the Government Benches. Many of us recognise that point. When the Government see inflation rise, they claim—reasonably—that international factors are the drivers of that, but when some of that peaks, supply chains change and inflation comes down, the Government often seek to claim the credit for that, which, I think she will agree, is unreasonable. But I accept her point. I hope that that clarifies for her how I believe the law in that area should be approached.
Finally, rather than allowing future pieces of retained EU law that the Government wish to restate, revoke, replace or update to be slipped in by the back door via statutory instrument, Lords amendment 42 would give Parliament the proper role that it deserves in such matters.
Stella Creasy
Does my hon. Friend agree that the Minister may wish to use different wording or perhaps even correct the record? He suggested that such powers would be novel, but amendable SIs were in fact part of the Census Act 1920, which is over 100 years old, and were most notably present in section 27 of the Civil Contingencies Act 2004. The idea that we might actually involve those who were brought to this place to make legislation in amending it is not a new one. This law removes that idea. Does my hon. Friend agree that the Minister may do well to read his constitutional history before he dismisses it so easily?
Jonathan Reynolds
I welcome my hon. Friend’s intervention. I will take her word for it on the Civil Contingencies Act, about which I fear she may have a level of expertise that exceeds mine. To be frank, I thought that the Minister’s whole defence of that area was somewhat questionable. Much of what we are talking about is a relatively novel set of procedures that relate to the unique situation that we find ourselves in. Indeed, the Government’s whole approach is based on the uniqueness of the need to have a position on retained EU law following the mechanisms that we chose to adopt as a country when we left the European Union. I thought that that was a somewhat weak defence. If my hon. Friend has information contrary to what the Minister said on the record, I am sure that he will seek to amend that and put forward the correct form of affairs—perhaps if he receives wisdom on the Front Bench at some point in the next four hours.
Our colleagues in the House of Lords have, through all their amendments, sought fundamentally and in good faith to make sense of what was an embarrassing set of proposals whose only aim appeared to be to pacify the hardliners on the Government Back Benches. I appreciate that those Members do not look happy today.
Jonathan Reynolds
I imagine that that is because they feel that they are being led by the grand old Duke of York. He was happy to march them up to the top of the hill, promising in his leadership video a bonfire of all retained EU law, but of course, he has had to march them all back down again. Now, they are neither up nor down. On that point, I will give way to the hon. Member for Stone (Sir William Cash).
Sir William Cash
It is a disappointment according to the hon. Gentleman, but I have to say that I am extremely glad that the supremacy of EU law is going, I am extremely glad that the deregulation is remaining, and I am also very glad that my amendment has been selected for discussion so that we can have a proper list and do the job properly.
Jonathan Reynolds
I am delighted that the hon. Gentleman is happy. Maybe that means one fewer letter towards the 54 that the Prime Minister needs to think about for the duration of the day.
This Bill was always a farce designed to appease the constant, constant, constant Conservative melodrama. It has neither set forward a positive vision of a post-Brexit Britain, nor appeased most of the Government’s Back Benchers, with the exception of the hon. Member for Stone. This country is desperately in need of a Government who can provide clarity, consistency and stability for businesses to invest and pull us out of the low-growth, high-tax quagmire of the last 13 years. Equally, the UK’s workers deserve to see fulfilled the promise that the UK’s post-Brexit employment framework would mean no reduction in rights and protections.
The legislation revealed a Government with fundamentally the wrong approach—they could not even correctly diagnose the problem, let alone provide solutions. It would have been better for them simply to abandon the Bill altogether. However, by inserting the Government’s amendment, and then supporting the excellent work of their lordships in the other place, we can get it to a substantially better place than the chaos that was proposed before. On behalf of Britain’s businesses and workers, I urge all colleagues to do so.
Sir William Cash
I will speak to my very short amendment to the very short new clause in Lords amendment 16, on the retained EU law dashboard and report. The new clause requires the Government to report on their plan to revoke and reform, while my amendment seeks for that report to include a list of EU provisions to be revoked or reformed. In other words, it adds to the benefits of the new clause and to the Government’s proposals. The new clause was adopted as a Government amendment in the House of Lords a couple of days ago.
I am very grateful to colleagues who signed my amendment, and I know that many more want to do so. I am also glad that the Secretary of State has agreed—no doubt having received some good advice from my hon. and learned Friend the Solicitor General and others, unnamed—to put her name to the amendment. That means, I am glad to say, that it is now Government amendment (a). Procedurally, that is a very great prize, because if the amendment had not received Government support it would almost certainly not have been selected for debate and we would not have been able to vote on it. I mention that as a matter of significance. I am deeply grateful to my hon. and learned Friend for attending meetings with me and for the dedicated way in which he goes about his job.
We need to make sure that this new structure actually works so that we can put the painful recent past behind us and get on with the job in hand of getting rid of EU supremacy and insisting on the freedom to deregulate. We also need to get to the bottom of which laws should be reformed or revoked. That process is in hand, but it is moving far too slowly and not being done with the degree of experience and skill that needs to be applied to it.
I am also very glad to report that, after a few refusals—but I do not want to dwell on that—the Secretary of State will appear before the European Scrutiny Committee in the week beginning 5 June. That is a very important step forward.
John Redwood
I am grateful to my hon. Friend for all the work he does, and I am glad that the Secretary of State will at last appear before Parliament on this crucial change of policy. Has he had any assurances that the many ideas that I and others have put to the Government on repeal and improvement of EU law will be not only read but implemented? What is the delay?
Sir William Cash
I agree very much with and share the sentiment expressed by my right hon. Friend. We need to move forward and have a proper list and the opportunity to examine the manner in which that list is prepared. The important matters to which he specifically refers include economic freedoms and the ability to reduce taxation where necessary. If they are not on that new list, there will be a lot of people asking for them to be included. That is the next step. It has unfortunately taken a long time to get to this point, but I think that we are now beginning to get there.
The new clause prescribes arrangements for Parliament to be properly informed as to the need for a full and hopefully, at last, accurate and relevant list of retained EU law along the lines of economic freedom and competitiveness and many other things. I and many colleagues, including those on the European Scrutiny Committee, have been severely pressing, for a long time, for a full and accurate list. We have invited the Secretary of State to come before our Committee many times without success, but she is now coming, and we are glad of it. We asked for progress in relation to all EU retained law. We did not get it, but we are now going to.
I also proposed to the Secretary of State that there needs to be an experienced tsar, or commander in chief, of the operations, because by the sound of it there has been something of a problem inside the civil service and it has led to difficulty in getting the job done. This person would need to know and understand the process of European scrutiny, what to do and how to go about it. I have written to other Ministers as well, and explained to them that there are archives in Kew that will be part of the list, not to mention individual Government departmental archives, parliamentary counsel office archives and, of course, our own very special European Scrutiny Committee archives, which date back to 1973 and are extremely comprehensive, including the explanatory notes that were produced to my Committee as individual regulations and laws were being negotiated. They also explained the Government’s position on particular points, but I will come on to that in a moment.
When I hear people suggest that they have not had the time to do all this and get the job done properly, I despair at their lack of drive, energy, commitment and, perhaps, unawareness of the Conservative manifesto. The new clause will provide an obligatory framework for the completion of the task.
It was profoundly disturbing to look at the schedule attached to the new Bill. It restructures the Bill in radical ways, but this debate is not the time to go into the history of all that. We have had a lot of discussion about it, so I am not going to do so. This Bill, as it has come from the House of Lords, is a mixture of the good, the bad and the ugly. The good is the ending of the supremacy of EU law and methods of interpretation, and also the provisions relating to deregulation. The ugly lies in the reformed structure and the manner in which we only heard about that at very short notice on 10 May. But, as I have said, we now have to move on. The bad lies in the amendments by the House of Lords, which if passed would have profound consequences undermining our national interest. We also need a coherent statute book. We cannot have two statute books, with one dealing with laws passed during our time in the European Union, pre Brexit, and the other dealing with laws passed afterwards. That would be most peculiar, and it would not work. It would be incoherent and create great legal uncertainty.
The new clause that the Government have adopted requires the Secretary of State to update, within specified periods, the EU law dashboard and publish a report on the revocation and reform of retained EU law. This report must provide a summary of the dashboard, set out progress already made in revoking and reforming, and set out the Government’s plans to revoke and reform those laws. In effect, it sets obligations and a timetable.
It is always interesting to know what people’s “plans” are, but having a plan does not mean that we know what is in it before we see it, and nor does it mean that it will ever happen. What does matter is that it is listed, and that is the point of my amendment. The list can be examined to see what modifications or revocations are required under clause 14. Only then can we decide their relevance in the national interest. It also makes the Secretary of State properly accountable to do the job properly within the framework of our parliamentary and scrutiny procedures, including my Committee; I am grateful to my hon. and learned Friend the Solicitor General for the assurance he has given on the Floor of the House to work with my Committee. It also creates a deadline and pressure to get on with the job.
I have written separately to the Government not only about the tsar but about the efficient delivery by external sources, in a comprehensive manner, by May next year. That is doable, but it requires political will, and diligence on the part of the civil service. That is why my amendment states that the plan must specifically include in a list those provisions of retained EU law that the Government intend to revoke or reform. On the face of it, this is a simple amendment, but it carries with it the need to do the job properly. I assure the House that the European Scrutiny Committee will examine the content of that list and its implications with an eagle eye. It is an enormous shame—in fact, I would almost call it a disgrace—that the current schedule to the Bill consists of what could politely be described as junk, with very few exceptions. I have been through the list; actually, I did so during the Eurovision song contest. I turned to my wife and said, “I really cannot tell which is worse: this schedule or the Eurovision song contest.”
Bim Afolami
I defer to my hon. Friend’s knowledge and judgment on what he is speaking about, but may I press him on this particular aspect of the Bill? Of course, a lot of regulations may seem redundant or trivial, and he has named a couple, but part of an improved regulatory system is cleaning up regulations that may be redundant or trivial, in addition to doing the work properly of making sure that when we do get rid of things and reform them, we do so for the right reasons for the entire regulatory system. The Secretary of State has proposed that by the end of this year, we are likely to have removed roughly 2,000 of the total 5,000 regulations; the remaining 3,000 will be done in a proper way, looking strategically at our whole regulatory system. Does my hon. Friend not accept that that is a reasonable approach for the Government to take, bearing in mind the position that we are in at this time?
Sir William Cash
I think it is perfectly reasonable to do it now, because it has not been done before: that is where the problem lies. I would also slightly correct my hon. Friend regarding the relevance of, for example, fishery arrangements between the EU and the Government of the Cook Islands—they are administered by New Zealand, I believe. Such arrangements have nothing at all to do with us, and could not conceivably be included in a list that was intended to demonstrate relevant revocation and reform of these laws.
Expunging EU laws from our statute book frees our voters, our businesses, our Parliament, our sovereignty and our democracy from their subjugation to the EU for 50 years. Those laws were made and engineered by the European Union, the European Commission and the Council of Ministers behind closed doors by qualified majority voting—without even a transcript, as I have said so many times—but usually came about by way of consensus. The veto was promised and guaranteed in the 1971 White Paper, which hon. Members can look up for themselves, but it was whittled away. When EU laws came to be discussed behind those doors, we generally ended up with consensus; they certainly were not our own laws passed by our own Parliament. That operation has been described by a famous economist as “regulatory collusion”.
The making of all those laws, as I said earlier, was accompanied by an explanatory memorandum, which is a useful reference point for determining what mattered at the time. Not one single piece of EU legislation was ever rejected or amended during the entire course of our membership. Interestingly, one of the five provisions that I have mentioned that are relevant to this debate is the port services directive, which was opposed by every single one of the port employers, by every single one of the trade unions, and by the Government. What could they do about it? Nothing. That is the point, and that almost summarises the reasons for the exercise that has been conducted under the Bill.
John Redwood
Does my hon. Friend recall that—certainly when I was single market Minister some years ago—quite often we did not want the regulation or law at all, but the Government then decided that it did not look good because we did not have a veto to enforce our wish, and we ended up trying to negotiate the version that was least damaging? Why is it that collective memory has forgotten all this, and why do people only recall the laws they want to keep? Why can they not recall the laws we never wanted?
Sir William Cash
Fortunately, the collective memory includes me, because I was first put on the European Scrutiny Committee in 1985. I have been on it ever since, and I have been Chair for 10 years. However, I totally agree with my right hon. Friend. The question of whether these laws mattered and whether they were going to go by consensus was driven by the fact that the people sitting around the table knew beforehand whether there was going to be a majority vote, and whether they would lose. As it was a dead certainty that the UK was going to lose, they entered into that consensus.
The real objective of the European Union in all this was to harmonise laws across Europe, creating a fundamental shift to European integration. That is one of the reasons why I tabled a sovereignty clause to the Single European Act 1986, which eventually found its way on to the statute book in 2020. Essentially, all these laws lack the kind of democratic legitimacy that we would expect in our traditional, constitutional, common-law system. We must therefore judge the laws that are now in the list, as set out in my amendment. Where they are capable of being modified, let them be modified, but as I have said, many of them were passed by majority vote and were certainly not in the UK’s national interest. Indeed, the chief negotiator for our entry to the EU under Edward Heath, Sir Con O’Neill, stated of his own failure to understand the system that
“I am sorry to say we probably also thought that it was not fundamentally important.”
Tragically, it was important, and the thousands of laws that now need to be reformed and revoked were the product of his and the then Government’s failure, and those who persisted in it until we left the European Union.
Sadly, for decades after our entry to the EU, the passing of laws in the European Council of Ministers continued to churn out thousands that did not have democratic legitimacy, and which we now have to modify or revoke. I am glad that the noble Lord, Lord Callanan, said on Monday that
“it is crucial that Parliament and the public are able to hold the Government’s feet to the fire and ensure that our momentum continues”.—[Official Report, House of Lords, 22 May 2023; Vol. 830, c. 609.]
It is also important that the Brexit Opportunities Unit has discussions with the European Scrutiny Committee about methods and co-ordination, including the tsar I have mentioned alongside a team of external experts. Resources will be needed, yes, but the need is absolutely vital. I am therefore glad that the Government and the Secretary of State have agreed to adopt the amendment that stands in my name and those of many colleagues. I believe that the clause, when amended by this and other amendments, will be one of the main levers for making a success of this entire operation.
Alyn Smith (Stirling) (SNP)
It is a mixed pleasure to speak in this debate for the Scottish National party, it is safe to say, but it is a pleasure to follow the hon. Member for Stone (Sir William Cash). Much as we disagree on some things, I did not realise we were both Eurovision fans; perhaps we can organise a viewing party next year, as I have an outfit he would look fabulous in. [Interruption.] It will not be a kilt, I assure the hon. Gentleman.
I will speak to amendments 6, 1, 15 and 42. I referred light-heartedly to the hon. Gentleman, and it is possible to have differences of opinion; indeed, I hope I have demonstrated that I respect differences of opinion, but this Bill goes to a matter of deep, fundamental difference of philosophy and worldview. I am very proud to be part of the most pro-European party in this Parliament. I am a committed European as much as I am a committed independence supporter for Scotland. I think Scotland’s best future is back into the European Union. We did not view the EU as a prison to leave; we did not view EU legislation as an imposition to be fought against. I was a member of the European Parliament for 16 years; I passed many of these laws and the description we heard about unelected bureaucrats and things done behind closed doors is not my honest and true experience of how it works. However, I respect different views, much as I think they may be coming from entirely different philosophical points.
We do not like this Bill; I have been open about that. We think it is unnecessary and does not deliver what was promised. We have heard much about the need for a dynamic regulatory regime for the UK, and I agree, but there is plenty of redundant domestic law on the statute book as well. I will come on to the matter of retained EU law, but the deletion of redundant law is something Parliament should be doing on a daily basis and it is not that much of an achievement—and it does damn all to make the competitive position of the UK any better in any significant way at all.
The following point was made eloquently by my hon. Friend the Member for Glasgow North (Patrick Grady), who has had to go to a Committee, I believe: by virtue of leaving the EU, retained EU law does not have a meaningfully special place in our statute book. It is open to this Parliament to amend, repeal, revoke or change, or whatever else it wants to do, any piece of domestic legislation wherever derived from. So this Bill seems to be answering a question that has not been asked.
Sir William Cash
I think I heard the hon. Gentleman say that that was possible. While we were in the European Union, it was impossible because of section 2 of the European Communities Act 1972, which the hon. Gentleman, as a very good lawyer, might look at. It makes it absolutely clear that we would accept all European law, however made, in the Council of Ministers, and also, for that matter, all European case law; it is there in section 3.
Alyn Smith
I will choose my words: the hon. Member is right in what he says, but he misses the point that we have left the EU and that did not apply from that point onwards. What he says was correct about two years ago, but what I am saying is correct now. It is open to this Parliament to revoke any piece of legislation wherever it came from. This Bill is borne of malice rather than being a constructive blueprint for the UK’s future.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
The hon. Gentleman has just correctly said it is open to this Parliament to repeal any European law; that is exactly what this Bill does. It is not malice; it is just using the power we took back.
Alyn Smith
Can anybody explain to me what additional power, focus or agenda this Bill gives to the power that exists already by this Parliament being sovereign—that is not my worldview, but it is the worldview of many Members? I do not see this as necessary.
Stella Creasy
I thank the hon. Member for letting me take up his challenge about additional powers: the Bill gives the Government the ability to ignore the rather inconvenient matter of Members of Parliament and any views or concerns they might have by removing powers. Indeed, the Prime Minister himself talked about an elected Government taking decisions on law rather than this Chamber. Instead of removing powers, it adds them to Government to bypass this Chamber and our democracy. I hope that helps the hon. Gentleman.
Alyn Smith
It helps me get to the second page of my speech, as I was going to say that not only is the Bill unnecessary, but it is bad law. It is open in the normal way for Government to amend legislation, but that would be subject to the normal scrutiny. Another reason why we dislike the Bill is that it bypasses that scrutiny.
Sir Jeremy Wright (Kenilworth and Southam) (Con)
I understand the hon. Gentleman’s point that this House can repeal any legislation it wishes, but we are discussing amendments that have come to us from the other place, not the principles of the Bill. Those amendments, including some that he is speaking to, add friction to the process of this House doing its normal work of passing subsequent legislation that may change the reality of previous legislation. If the hon. Gentleman is in favour of the House going about its normal business, would it not be right to reject the amendments he is referring to?
Alyn Smith
Finally, we have a substantive point about the Bill. I want this House to give the normal legislative scrutiny to subsequent changes to the law, wherever they come from. This Bill hands considerable extra power to the Government to do that over retained EU law, without that scrutiny. We support the measures on the devolved Administrations and the future sifting committee not because they bring more friction to the process, but because they insert back into the system some safeguards that the Bill would otherwise bypass. I think that is a legitimate position.
I have said we do not like the Bill or what it does. We are concerned that vast swathes of rights that people have come to rely on—on environmental standards, labour standards and much else besides—are open to deletion without that scrutiny. We do not like the way it proposes to do it. Even with the amendments, the Bill hands far too much power to the Government to delete provisions we all rely on, particularly in relation to the devolved settlement.
If colleagues are not aware that the Scottish Parliament has in the last couple of hours withheld legislative consent to this Bill, they should be. It is not consenting to this legislation. The Parliament of Scotland has done that; it is not an SNP thing. That is not to say that it will not be ridden over, but I suggest that those who were concerned about the democratic deficit in Brussels need to turn their minds to the democratic deficit that exists in the UK, because it is utterly unsustainable and will cause us all problems.
The fact that Holyrood has in the last hour refused legislative consent to this Bill gives us our lead, so we will oppose the Bill. Having said that, we are dug in as a serious party of Government to try and make it better. I accept the arithmetical reality of this House, so we will try to make it better by supporting a number of amendments, including the Government’s. We will support their amendment, Lords amendment 1, on the removal of the sunset clause; we think that is the acceptance of reality. We are not doing it with much praise for the Government, but we will support them in that aim.
Lords amendment 6 to clause 3 respects the devolution settlement. It makes it explicit that any legislative instrument scheduled for deletion in an area of devolved competence, whether in Scotland, Northern Ireland or Wales, should be deleted only with the consent of the relevant domestic Minister in Edinburgh, Cardiff or Belfast.
Sir Jeremy Wright
I am genuinely just seeking to understand the hon. Gentleman’s position on Lords amendment 6. The amendment does not define whether we are talking about devolved or retained competences. Is it his view that amendment 6 ought to apply to both?
Alyn Smith
That is a fair point. My interpretation of the amendment is that it should be in the devolved areas; otherwise, I do not think it makes any logical sense. I do not think members of the devolved Administrations should be able to withhold consent to other areas being passed. That is a reasonable position that I think we can agree on, and I invite colleagues to do so.
Simon Hoare
I agree with the hon. Gentleman’s reading that the amendment leads to withholding consent only in devolved areas, but somebody else could argue perfectly legitimately that it would cover everything. Because it is opaque and open to interpretation, there is a risk of one opinion saying X and another saying Y. The point raised by the former Attorney General, my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright), is key: because it is not clear—whether by accident or design, I am unsure—it does not merit support.
Alyn Smith
The hon. Gentleman makes an interesting point. I have to say that I do not agree with him. The intention of the amendment is clearly about protecting the devolved settlement. It does do that, and that is certainly the SNP’s interpretation of it. We do not have Members in the Lords, but if there was scope for redrafting that provision, we would be open to it. Our position, however, is that it defends the devolved settlement. I do not think there is any serious risk to any other provision.
Sir Robert Buckland
I am delighted to engage with the hon. Gentleman, and he is engaging closely on an important detail. The governing provision is section 4 of the European Union (Withdrawal) Act 2018, which in effect deals with the generic issues under section 2(1) of the European Communities Act 1972. There is no specific reference in there to devolved matters. Does that not reinforce the point being made by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) about the danger of this Lords amendment 6 not being as precise or as clear as it ought to be?
Alyn Smith
In a spirit of intellectual honesty, I will take that point on board. I hope their lordships will, too, because I suspect that this is not the end of the discussion. For today, we will support the amendment to make it clear that we want to defend the devolved settlement from a power grab. I suspect we will come back to this matter, and I am genuinely grateful for those constructive points.
Lords amendment 15, on non-regression from existing environmental standards, takes the statements of UK Government Ministers and various members of the leave campaign at face value that we will not revoke or pull back from our very high environmental standards, some of which derive from EU law and some of which do not. If we are not going to dilute them and there is no intention from those on the Treasury Bench to do so, let us bang that into the Bill and make it explicit.
Lords amendment 42 is an attempt to improve scrutiny, and I come back to the thoughtful points that were made about the possibility that it might introduce friction into the Bill. I would counter that by saying that the Bill goes around the normal legislative scrutiny by which we would deal with these things. I accept that the amendment is an innovative idea, but it is merited, and those on the Treasury Bench should take it as showing the scale of disquiet about the potential for a power grab with the Bill. We will support that amendment.
I will close; I was hoping to be briefer than I have been. We do not like this Bill. We do not like what it is trying to do or how it is trying to do it. From our perspective, it is not in Scotland’s interests, and it is not in Scotland’s name either, with Holyrood having refused consent. I urge colleagues to match their talk of democratic deficits through their actions. If by their actions they prove my party right today, Scotland has a different path to choose if we are serious about democracy in these islands. My party has a clear vision of Scotland’s best future; I do not see a clear vision of any future in this legislation. Scotland has a better choice to make.
Sir Jeremy Wright
I will focus on Lords amendment 1, Government amendment (a) to Lords amendment 1 and Lords amendment 42.
Before I do, I want to close the loop on Lords amendment 6. It is a pleasure to follow the hon. Member for Stirling (Alyn Smith), who made an interesting set of observations. As he would expect, I do not agree with all of them, but if I may say so, he is engaging in this debate in exactly the way we ought to when considering matters this complex and important.
Just to finish the thought, the hon. Gentleman is right to say that their lordships may want to consider the matter further, as of course may we. I suspect that the noble Lord Hope, who I think drafted the clause in Lords amendment 6—that gives me considerable hesitation in criticising it in any way, because it is unlikely he has got much wrong—is intending a deal of weight to be put on the phrase
“as the case may be”.
Subsections (2) and (3) refer to a
“responsible Minister of a relevant national authority”
and to
“both Houses of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, as the case may be”.
I suspect Lord Hope would say that that indicates that in the case of retained law, the body would be the House of Commons and the House of Lords, and in the case of devolved competencies, it would be the relevant devolved body. Before we sign up fully to the wording of the amendment as it stands, we should have clarity about that, because it is an important point in the hon. Gentleman’s argument about the reinforcement of the devolution settlement.
We do not want to subtly change the devolution settlement by accident. I suspect that the hon. Gentleman would be quite happy to change the devolution settlement either by accident or by design, and perhaps not so subtly, but in the context of the Bill, we had better be clear what we are talking about. For that reason, I certainly will not support Lords amendment 6 at this stage, though I will listen carefully to what their lordships have to say when they clarify the point.
There seem to be similar points to make in relation to Lords amendment 1, Government amendment (a) to Lords amendment 1 and Lords amendment 42. Were we to support amendment (a), it would restate, because the Government have already made their position clear, their new approach that rather than repeal a whole swathe of EU-origin retained law in effect by default, it would be better to list specifically those things that it is intended should be repealed by a certain point, such as the end of this year, unless further action is taken before that point. That is a much more sensible approach, although I will say it was somewhat inevitable, as others have said.
It was always inconceivable that the Government would be able to manage the process of considering properly all the retained EU law in scope of the Bill before the deadline of the end of this year. Therefore, the Government have done the eminently sensible thing and should be congratulated on doing so. I will certainly support Government amendment (a) to Lords amendment 1, because it regularises the position in a much more reasonable way.
The irony is that I rather suspect proceeding in the way originally intended would have led to the retention of far more retained EU law than will be the case under the Government’s revised approach. In fear of losing something vital, it is highly likely that the Government would have had to roll over—by default and before the deadline—a good portion of legislation, just to be sure they had not missed something. This approach is much more sensible and will rather better support the intentions of those who supported our departure from the European Union than the approach originally intended.
If the rest of Lords amendment 1 were passed by this House—not just the part that amendment (a) retains—we would introduce exactly the friction that I mentioned earlier when intervening on the hon. Member for Stirling. It would introduce a Joint Committee process and then debates and votes on the Floor of both Houses. I appreciate that, depending on which side of the argument someone is, they may regard those as additional safeguards or additional procedural friction, but it appears to me that it is more the latter than the former. That process is far more than is likely to have been done in the consideration of any of these laws when they were originally brought into British law. When that happened—my hon. Friend the Member for Stone (Sir William Cash) is the world expert on this—we would have seen that, despite their EU origin, the level of scrutiny and attention those laws got from Parliament was far lower than the level proposed in the amendment.
Sir William Cash
To respond briefly to my right hon. and learned Friend on this issue, I am afraid that the idea of a Joint Committee is just not a workable proposition. This is not the kind of forum to deal with the issues at stake and, if I may say so, for that reason alone it is impossible to accept Lords amendment 1. It just would not work.
Sir Jeremy Wright
Well, I entirely agree with my hon. Friend. I think this is probably not the appropriate mechanism, as he says, but it would also duplicate to a large extent what his Committee already does. So I do not think it is an attractive mechanism, as he says.
Of course, those who propose this amendment and those who speak for it today may say to me, “Look, it would only be in the case of substantial changes that some, at least, of these additional procedures would apply”, but it seems to me there are two points to make about that. First, it would be the Joint Committee’s assessment of what is a substantial change to the law, not anybody else’s. Secondly, we would, would we not, have to get into what the word “substantial” means in that context. If we were to say that a Joint Committee should be established to determine initially whether there is a substantial change of the law in prospect, it would have to determine that and it would have to decide what substantial means. Does it mean, for example, that a large number of laws are consequentially affected when a change is made, or does it mean that a few laws would be affected but in a very significant way? I think it is important, if we want to do this, that we are very clear about the definitions that we apply, because just as other Members of this place are worried about the level of authority to be devolved to Ministers, there would be a significant level of authority to be devolved to a Joint Committee, and if we were not clear about the basis on which it was to exercise our authority, we may run into difficulty.
Stella Creasy
Obviously, we already have Joint Committees and models of how a Joint Committee could work. We have the Joint Committee on Human Rights and the Joint Committee on Statutory Instruments, so we have a model for that way of working. However, is the right hon. and learned Member not making the argument that we in this Chamber need to signal our agreement about what is missing from this process? I notice he is making an argument about the lack of scrutiny from Europe, and we may disagree on that, but surely two wrongs do not make a right. The argument we are making today is that we need to improve this process, and that when there are changes—and we must set out more clearly what “substantial” means—this Chamber wishes to work with the other Chamber in bringing back parliamentary sovereignty to this process.
Sir Jeremy Wright
I understand the points the hon. Lady is making, and I will take them in reverse order. On the point I made about the difference in the scrutiny that these laws may have on the way out, as it were, compared with the scrutiny they would have on the way in, I accept that two wrongs do not make a right. However, it would be odd, if nothing else, to take the view that we should give the vast bulk of laws—some of which, as I think we have agreed across this Chamber, do not require a huge amount of scrutiny, because they are technical and somewhat inevitable changes as a result of leaving the European Union—a process involving greater scrutiny and greater friction, as I would choose to describe it, than the process that was used to bring them in in the first place.
On the hon. Lady’s point about a Joint Committee, I accept that there are Joint Committees, but the role of the Joint Committee on Human Rights, for example, is very different from the role that Lords amendment 1 sets out for a Joint Committee in this context. If we set up Joint Committees as scrutiny bodies, that is one thing, but if we are devolving authority to a Joint Committee to make judgments about what is and is not a substantial change to UK law, it seems to me that we ought at the very least to understand what substantial means in that context. Again, I am afraid that we can only decide on the basis of the wording we have in front of us, but the wording we have in front of us seems to me to require some greater clarification before anyone ought to support it.
Sir Robert Neill
My right hon. and learned Friend is making a characteristically powerful and persuasive case. Taking on board his point about the—to use my inelegant criminal lawyer’s phrase—rather clunky nature of the mechanism, or the friction that he rightly refers to, would he concede that something potentially needs to be done to fill the gap identified by the noble Lord Hope of Craighead in the other place, which is that simply setting out in the Bill a list of laws to be revoked does not of itself guarantee adequate scrutiny of those laws? Does he think there is some scope that the Government may wish to offer by way of assurance at some time as to the level of scrutiny that could be given, without resorting to the system currently set out in Lords amendment 1, which may cause that needless friction or, to use my term, be needlessly clunky, but may equally give this House a proper safeguard about its proper scrutiny role?
Sir Jeremy Wright
I am grateful to my hon. Friend, and for his reassurance, I do not think that either he or criminal lawyers are in any way inelegant. However, I think there is certainly something to be said for greater and better scrutiny, and we should always in this place be looking for ways to improve the scrutiny we offer. As he knows, my concern about Lords amendment 6 is that I do not think we yet have sufficient clarity about whether it achieves the objectives it sets out to achieve without also causing some fallout in other respects. I do not close my mind to the way in which it seeks to do its work, but I am concerned that we need extra clarity before we could conceivably support it.
I want to say something about the benefits as I see them of the Government’s new approach and why they will help with some of the legitimate concerns expressed in the debate. The benefit of the Government setting out, as they have in the schedule, the measures they propose will lapse at the end of the year unless further intervention is taken is that that allows all Members of the House to pay attention to that list and reach their own conclusions—early—about whether they think there is anything troubling in it, exactly as my hon. Friend the Member for Stone described that he and his colleagues have done. That is a better and more conducive way to good scrutiny than the one previously seen. It helps to offer the necessary reassurance that we will not simply stumble into a position where we lose from our statute book good and valuable things that happen to have their origins in the European Union. Parliament will not be caught by surprise by anything that the Government seek to do in that way.
It is important to remember that if the Government seek to make a change to our law, they will have to do so through the normal routines of passing legislation. True, that may be through secondary legislation, but that is still a way in which Parliament scrutinises legislation and has done so for a long time under Governments of multiple colours. There is nothing particularly radical in the Government proposing to take a measure through Delegated Legislation Committees that it seeks to use to make a change in the law.
I return to friction. It seems to me that the friction that is sought to be added to the processes we use is undesirable. That is partly because it is unnecessary—the reassurance that the Government can offer by the new course they seek to take is adequate—and partly because we must see this specific discussion in the context of the broader discussion that has happened about our membership of the European Union. In the interests of full disclosure, I should make it clear to the House that in the 2016 referendum I did not vote to leave the European Union, and I urged my constituents not to do so, either—in some cases, they paid little attention—but I accept, and have accepted consistently since, that the decision was none the less taken that we should leave the European Union, and certain things flow inexorably from that. It must be right that if we leave the European Union, we also leave European Union law behind us. That should not be in a rush or in a flurry of activity that might cause us to throw the baby out with the bathwater, but inevitably that is what should happen.
Dame Andrea Leadsom (South Northamptonshire) (Con)
I apologise to the House for being late to the debate; I was in a Select Committee meeting. I want to put on the record how, as somebody who did vote to leave the European Union and urged my constituents to do so, I entirely agree with my right hon. and learned Friend that we need clarity. What does he therefore think about Government amendment (b), to which I have put my name, which calls on the Government frequently—on a quarterly basis—to put forward further ideas for retained law that is unhelpful or unnecessary and could be revoked or reformed?
Sir Jeremy Wright
I am grateful to my right hon. Friend and support the amendment. It is sensible, because the public have an expectation here, and we should not forget that. They believe that, having had a vote some time ago—in 2016—to leave the European Union, we would do exactly that. For them, that includes European Union law no longer holding sway in this country. My hon. Friend the Member for Stone talked about the disadvantage of having two sets of law—pre-Brexit and post-Brexit—that the courts must look at separately forevermore, and that disadvantage is considerable. Despite the fact that I did not vote for Brexit, the consequence of it is that we absolutely must have a Bill of this nature, and we must have the measures that flow from it.
I fear that the public will spot that if that extra friction is unnecessary—I believe it is—it is a consequence only of seeking to delay the point at which Brexit has meaningful impact. I do not think it is good for our democracy or for the contract we made with the electorate, which is that if we offered them the chance to decide this question, the political classes would honour their judgment—and that is what we must do. From that, it follows—it seems to me, at least—that the Bill is necessary and that amendments that seek subtly to undo its effect are profoundly undesirable and should not be supported.
Olivia Blake (Sheffield, Hallam) (Lab)
I wish I could say I was happy to be called in this debate, but the truth is that I do not believe we should be having it at all. I am not sure that if I tried, I could design a worse way of withdrawing from a legal framework. Not content with crashing the economy, the world being literally on fire, and our food prices and energy bills being so high that people are no longer able to afford to eat or heat in many parts of the country, Ministers now want to waste our time and energy driving us off this regulatory cliff. I wonder how many civil servants have been drafted in and redeployed to deal with the legal consequences of the sunset clause—I am pleased the Government have now dropped it—which was ridiculous and absolutely unworkable. Despite the recent climbdown on what the Bill will cover, the truth is that it still hands power to Ministers to rewrite, revoke and replace hundreds of our vital laws on substantive issues.
Without the Lords amendments, the Bill places our rights at work, our environmental protections and hard-won equal rights on a cliff edge. From working with my constituents on the Hallam citizens’ climate manifesto, our vision for climate action locally and nationally, I know the importance and appetite for democracy, especially around protecting our natural environment. Our response to the climate and nature emergency must be led by communities across the country who already feel the impacts of the climate crisis. That is why I have been working with campaigners to bring forward the Climate and Ecology Bill as a 10-minute rule Bill. It would enable us to reach the goals we need to protect us from a 1.5°C increase in global temperature. We need to bring about a democratic transition. We urgently need to protect our precious natural environment and expand our democracy when talking about these issues, not curtail it.
The Retained EU Law (Revocation and Reform) Bill will do the exact opposite, concentrating power even further into the hands of a few Ministers. That should concern everyone in the House who claims to represent their constituents. The truth is that the Government do not value our natural environment. Just look at the key pieces of environmental law that were missing from the dashboard, or the way it treats the people who work every day to protect it at the Environment Agency.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I do not mind you touching on the fact that you do not like the Bill at all, but you really should be speaking to some of the amendments. That would be really useful.
Olivia Blake
Lords amendment 15 stops regression on environmental standards and it is really important that it stands tonight. At the exact moment when we should be strengthening regulation to protect nature and biodiversity, the Bill does the complete opposite. I remember the debates on the Environment Bill and how we were repeatedly assured that there would be no regression on environmental standards. Without Lords amendment 15, the Bill will put all that at risk. The Government have refused to legislate to provide any guarantee that they will be protected.
George Eustice (Camborne and Redruth) (Con)
The hon. Lady is right to mention the Environment Act 2021, but is it not the case that the Act, which came after leaving the European Union, actually gives us all the powers we need to improve our environment and sets a whole new framework of targets that makes the legacy EU ones redundant?
Olivia Blake
I am not sure I totally agree. When I asked officials about the number of laws affected without the sunset clause, they could not give me an answer on even the number that would be affected. There is a lot more that underpins all the regulatory frameworks we work under when we are protecting our environment. I accept that the Act passed after we left the EU, but I do not believe that we are protected at the moment and that is why Lords amendment 15 is so important. If we do not act tonight to ensure we have those safeguards in place for our environmental protections, we will be undoing a lot of the good work that may have been done by the Environment Act.
However, the nature emergency is not the only one that the Bill will potentially make worse. For over a decade we have seen a decline in workers’ pay and conditions, and we have seen a cost of living crisis. People have rightly had enough, which is why we have seen rather a lot of strike action recently. Rather than address the root cause and improve pay and conditions in the workplace, the Bill puts basic workers’ rights, equality rights and paternal leave rights in the firing line.
Mr Rees-Mogg
The Bill spells potential disaster for the environment and for working people. It sets out exactly what is wrong with the way we write and pass laws. For that reason, I will vote against it. I support the Lords amendments to stop the power grab, and Lords amendments 15, 6 and 42 to protect our vital environmental regulations. The Bill should not condense power into the hands of Ministers. We should have a say in this place about what laws we want to throw on the scrapheap.
May I begin by congratulating my hon. and learned Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) on the exceptional elegance with which he put forward the case this afternoon? I understand now why members of his profession take silk, because it was certainly a silken performance. I reiterate my thanks to and admiration for the Bill team, which I mentioned on Second Reading. I think my hon. and learned Friend would agree that he has worked with one of the finest Bill teams with which Parliament has had the pleasure of bringing forward legislation in recent years. The team was completely on top of a difficult subject from a very early stage.
Those are not all the nice things I will say at this stage, but I will say how much I regret the Government’s amendment in the House of Lords to reverse the whole basis of what the Bill is trying to achieve. The Bill aimed to achieve a balance whereby EU law would go rather than stay. Now, the balance is that EU law will stay rather than go. There are 587 laws in the new schedule that are going. There is no way that my hon. and learned Friend can think that they are serious—they are trivialities of remaining EU law that have been dusted off and found to make a reasonable number.
When the Secretary of State told people she was thinking of taking this approach, she indicated that there might be some important repeals in that list. There is virtually nothing of any importance in that list. Fishing, as far as countries with which we do not have particular relations is concerned, is utterly trivial, with details on anchovies—all sorts of things that do not matter have been put in the schedule. That is a failure by His Majesty’s Government. They ought to have been looking at which things we could put in it that people already know need to be repealed.
I would elucidate that point by saying that over the last couple of days, we have heard that the Government have come to the conclusion that things can be done to help the wine industry. Dare I say, those were known a year ago? They are not novel. DEFRA has been sitting on them for that year. It could have brought them forward and included them in the revocations in the Bill to give us something solid and practical that would have been beneficial in the next few weeks, rather than something that merely deals with old hat, the passé, the gone and the mainly forgotten.
Simon Hoare
May I begin by wishing my right hon. Friend a very happy birthday?
I have a huge amount of sympathy, as I think most Members do, with the argument that a lot of that stuff could have been done. But last year, post covid, we had Ukraine and a huge amount of political instability in this place, with changes of Ministers more often than most people change their socks—sometimes within a couple of weeks. The idea of trying to get the job done in that atmosphere and environment of huge change, instability and uncertainty, undermines his point that it was a wasted year.
Mr Rees-Mogg
I am rather worried about the air fresheners that my hon. Friend must need in his household if he changes his socks only once a fortnight. I am afraid that the Government’s argument that “We cannot do it because we have not put the effort into it” is particularly weak. With ministerial drive—and it has to be said, with some very good civil servants in some of these areas—it is possible to get things done. A £4 million contract has been given to a law firm to help take the Bill further and faster. I think that “We can’t do it, it’s all far too difficult” is a worse argument than saying “We do not want to do it” in the first place, which may be closer to the truth.
Simon Hoare
Either I was not clear or my right hon. Friend is deliberately misinterpreting my point, because that was not the point I was making. It is not that it could not be done, but that there was a reason why it was not done, and that was the chaos and confusion of last year. Those are two entirely different things.
Mr Rees-Mogg
The point my hon. Friend misses is that there is still some time between now and the end of the year. This work could be pushed through if there were the desire to do it.
This Bill is a tremendous missed opportunity. It is a missed opportunity not because of Brexit per se. It is not a missed opportunity because those of us who voted for Brexit expected the will of the British people—expressed in 2016 and 2019—to be pushed forward, although that is important. It is not a missed opportunity because the unelected House has decided to try and block a Brexit-related reform, as it has consistently done. Interestingly, the amendments passed in the unelected House are all designed to frustrate the progress of the Bill and its operation, and are, by and large, although not exclusively, supported—lo and behold—by people who never wanted Brexit in the first place. It is noticeable that the overwhelming majority of people in this House who do not want the full revocation of EU laws always opposed Brexit. However, it is not about that. The missed opportunity is in not achieving supply-side reforms that would get growth for the UK economy.
We had the Prime Minister at the Dispatch Box this morning—the Leader of the Opposition missed a trick here—saying how marvellous it was that the IMF had said the UK economy would grow by 0.4%. Now, I happen to think that the IMF is absolutely useless and that its forecasts are valueless—it gets them wrong the whole time—but the idea that 0.4% economic growth is a success, when inflation has only just come out of double digits, is not factually accurate. This Bill was the opportunity to get growth, but instead we are changing laws on anchovies. That seems to me to be pretty fishy, because there are other things that we could have done. That is the point.
The challenge that has been put down—it was put down by the Secretary of State herself—is what people like me would do instead. Well, there are a whole swathe of laws that it would be a good idea to remove. If we look at the EU’s basis for regulating, it takes a process approach rather than an outcome approach. This Bill was an opportunity, even with a cut-and-paste scheme, to move from a process approach to an outcome approach.
What am I talking about? I am talking about product specification regulations, of which there are dozens. No country does that; only the EU specifies products in that way. We are now keeping all those regulations, whereas we should have been getting rid of them and saying that what we want are safe products, which encourages competition and innovation and encourages us to import goods at lower cost from places other than the EU.
We should have been looking at the absolutely lunatic emissions trading scheme that we have. We heard from the hon. Member for Sheffield, Hallam (Olivia Blake), and Sheffield is famous for its steel. However, we have made life for steel producers in this country completely impossible. Why have we done this? Because we have very high energy costs and a mad ETS that then tries to wind round some subsidy to help lower producers’ costs. If we just had lower energy costs in the first place and got rid of the ETS, which came out of the European Union, we would do better. Where could we have done that? We were going to do it in the Bill until a Lords amendment was so unwisely brought forward.
There are also the working time regulations. It might be possible to say that some people in this Chamber, when dozing off while listening to speeches that are intolerably dull, are in fact working—it seems heroic that our Doorkeepers never doze off, considering some of the things they have to listen to. However, under the working time directive, hours when people are asleep count as work. That is an enormous burden on the NHS; it has been calculated that the working time directive costs the NHS £3 billion. We could have dealt with that in the revocations under this Bill, had the Government not lost their nerve.
What about new opportunities in food and the regulations that stop us having novel foods? You may not wish to eat novel foods, Mr Deputy Speaker. I do not wish to eat novel foods. However, if there is a market for them, surely the UK should be regulating in a way that opens it up. We had a Bill in front of us that, unamended, would have allowed us to deal with novel foods swiftly by getting rid of EU regulations.
George Eustice
I am grateful to my right hon. Friend, because he has made many references to the Department in which I was once Secretary of State. I have a great deal of sympathy for the argument he is advancing, and I do understand that he wanted to ensure that the concrete did not set around these EU regulations so that they just stayed in place. However, as he will know, I was a bit more sceptical than he was about the idea of a sunset clause.
In a Department such as DEFRA where 80% of the legislation is legacy EU law, there would be three broad categories. The first would be the trivial regulations involving olive oil labelling and so on, whose removal would require considerable effort but would not help business. The second category would be regulations that were a bit contentious; we would probably not want to do anything about them. The third would be the big things such as the habitats directive, which ought to be addressed, but everyone would say, “It is too difficult to do it just now.” I think it right to prioritise the bad law that needs attention, rather than getting bogged down in some of the more trivial laws when it would probably cost businesses more to remove them than to leave them in place.
Mr Rees-Mogg
It must be said that my right hon. Friend was an excellent Secretary of State who was enormously co-operative with me, when I was in the relevant role, in trying to get DEFRA to be positive about this at a time when, as he rightly says, it was carrying a huge burden of work.
The problem is that we cannot shy away from the difficult decisions. That is what government is about, as in the old cliché “To govern is to choose.” Nature Britain, or Natural Britain, or whatever it is called, has prevented 160,000 houses from being built because of the nutrients rules resulting from a decision made by the European Court of Justice in 2018. It is all very well for Opposition Members to say that we should keep every environmental rule we have ever had, but I want my constituents to have houses, and I want other people’s constituents to have houses. We should be making those choices and putting the case to govern. That, I am afraid, is at the heart of this: a lack of decisiveness, of drive, of backbone to get things done.
I agree with my right hon. Friend that there would have been some things that were difficult. That is why the Bill contained provisions to roll things over and to say, “If you can make a good case for why this must stay, it will stay”, but the default was that it would be removed. I have mentioned the nutrients problem, and the habitats regulations are another example of rules that stop us doing things that are environmentally friendly and would benefit the environment because there may be some habitat nearby. I had to delay a decision on using waste to provide energy because of the common seal. Well, the very name of the common seal demonstrates that it is common, and that we should not be worrying about it too much when we could do something that would be enormously environmentally beneficial. The habitats directive is too dirigiste, too continental in its approach to regulating how we operate and how our economy runs.
I have already mentioned novel foods, but what about the other advantages for a modern, knowledge-based economy? What about clinical trials? I cannot tell you, Mr Deputy Speaker, how pleased I am to see my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) lurking by the Chair, because he produced a brilliant report explaining how some of these things could be done. Why have they not been done? Did the Bill not offer a perfect opportunity for us to do them? Instead, people are appealing against rules relating to anchovies, and that really seems to me not to be the Gentleman’s Relish that we would desire. This is a loss of opportunities—an opportunity for economic growth, and also an opportunity to move away from the civil code approach to law to the common-law approach, which is fundamental.
We see this in other emerging legislation. I hope you will forgive me, Mr Deputy Speaker, for a brief digression. The monstrous Energy Bill is all about regulating rather than allowing. What the repeal would have done, had it gone through, was to allow rather than regulate. This is based on the principle that wise bureaucrats—I praised civil servants earlier—really understand how business can best operate, if only people will follow the rules of those bureaucrats. What we want, according to our tradition, is an approach that says it is legal to do something unless it is specifically dangerous.
Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
The taskforce on innovation, growth and regulatory reform report produced over 100 recommendations for the Government, but the big case it made was for moving regulation making from what is essentially a coded base and returning it to a common law basis, which—exactly as my right hon. Friend was about to say—is, “It’s okay unless it turns out that it is damaging.” That is how our courts work, and it is the best practice in the world. That is why we should have made that progress.
Mr Rees-Mogg
My right hon. Friend is right. That is what the Bill did until it was gutted and the key part of it was removed so that the basis is now to retain a law unless it is specifically removed, rather than removing it unless it is specifically retained.
Unfortunately that approach is getting worse. In October we will apply rules on goods coming into this country from the EU that are safe, adding costs to consumers in an inflationary era, which is what these regulations continually do. The fundamental problem—the suspicion that we can see people beginning to think about—is that of the 587 rules that are being repealed, hardly a single one changes alignment with the European Union. Is there, hidden away in the bowels of Government, some decision that we will in fact remain aligned with the European Union, possibly because of the Windsor protocol? Otherwise, why are we not repealing all those strange and unimportant things? Apparently we cannot get a dog bone from a butcher because of EU rules. Why has that not gone? Why have we not been allowed to bring back imperial measures, which have been promised for years? They are not the biggest reward of Brexit, but why are we doing these little bits and pieces in the 587 that are there? Why are we not making the changes that would have made our wine industry more successful and economic?
Unfortunately, the Bill is a great lost opportunity. The reason—the excuse—given is not that it is impossible or that we do not want supply-side reforms but the inertia of officialdom. Whether that is ministerial inertia or other inertia, it is ultimately the politicians who must take the responsibility. I am afraid that a lot of responsibility has been abdicated in these amendments.
Layla Moran (Oxford West and Abingdon) (LD)
It is a pleasure to follow the right hon. Member for North East Somerset (Mr Rees-Mogg). We agree on nothing but he makes his points very well. It is a help as I will be able to tell my constituents that, in front of the architect of the Bill, I made the case for why the approach was entirely wrong, and I shall do so. His speech reminds us that it was the plan all along to make food standards poorer, to attack the environment—not only to build houses, as in his case, but for other reasons too. At the time, the Government said, “Oh no, we’ll never make standards poorer”. Released from his ministerial role, however, the right hon. Gentleman is clear about the things that he wanted to do. Why on earth, he asks, do we not want to change alignment? The reason is that it is bad for the economy, and I will focus on that in my response to the amendments.
I disagree with the motion to dismiss Lords amendments 15 and 42. I agree with the statements made on Lords amendments 1 and 6. There was a useful exchange earlier in which Members clarified the specifics of the amendment tabled by Lord Hope. On the principle of taking back control, the Minister said that we had taken back control, but that begs the question: who does “we” refer to? That is still one of the biggest reasons why a huge number of my constituents care about the Bill.
It is worth reminding ourselves that Second Reading fell on the first day of the current Prime Minister’s premiership, the day when he promised to govern with “integrity, professionalism and accountability.” It is fair to say that promise has been utterly broken, especially given the behaviour of some of his Cabinet colleagues. He also promised to review and repeal all EU law within his first 100 days and, with the completely gutted Bill before us, we see that promise has been broken, too. It is a completely different Bill and a different proposition from how it began. Some of us are happy about that, and some are not, but I am pleased that it is a different approach.
When the Bill was first introduced, I and others felt it was ideologically driven, particularly the cliff-edge provisions that would have ended up in chaos. I said at the time that the provisions were “corrosive” and “unnecessary”. What we need now, above all else—post-pandemic and amid the war in Ukraine and the cost of living crisis—is calm. Members have spoken about throwing the baby out with the bathwater, which is exactly what this Bill would have done. It would have been a chaotic slash-and-burn approach, and I am pleased the Government have come to their senses.
I thank my Liberal Democrat colleagues in the other place for their work. Their exposure of the Bill’s potential damage through the reams of amendments they tabled has effected change. In particular, the Government have rightly made an amendment to eliminate the cliff edge for thousands of laws, to many of which we did not know whether the Bill would apply, which I have always found hugely bizarre.
I would hope that every Member in the Chamber believes in securing vital standards on, for example, sewage, although I find myself questioning whether every Member, indeed, does. It beggars belief that those standards were ever under threat, not least because of the result of the local elections, which were fought on such issues.
In introducing this Bill, what exactly was the Government’s problem with the Bathing Water Regulations 2013 and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, which never went far enough—we would have gone much further—but would have protected our hard-fought bathing water status in Oxford. The fact there had to be a fight, taking up so much parliamentary time, is one reason why we felt the Bill took entirely the wrong approach.
More than 400 constituents have written to me about the Bill, and they are rightly concerned about what it might still do—I will come to the “still” point in a moment—to workers’ rights and environmental protections. One constituent said:
“I don’t understand how the government can promise to improve our environment at the same time as setting out a law that could lead to basic protections getting weaker.”
I could not agree more.
The Berkshire, Buckinghamshire and Oxfordshire Wildlife Trust wrote to me about the Bill just this week and, although it welcomes, as we all do, some of the concessions that have been made, it is still concerned:
“We are in a nature and climate emergency. It is essential that the current level of legal protection is upheld and not weakened.”
There is still more work to do, and these Lords amendments, which the Liberal Democrats support, go some way to achieve that. Although many crucial standards and safeguards have been saved, thanks to the Government’s U-turn, the truth is that the Bill will hand Ministers, not Parliament, the power to meddle with them at a later date via secondary legislation, which means we need to remain vigilant on workers’ rights, sewage and the natural environment.
Should the next election result in anywhere near what the polls suggest, with the shoe ending up on the other foot, would Conservative Members trust the next Government always to get it right? Casting no aspersions, I do not, because I believe in parliamentary democracy. Even ideas with which I might agree benefit from scrutiny, a bit of prodding and other people’s experience, not least the experience of our constituents. That is why we support Lords amendment 42, which would ensure that if Ministers want to make changes to law in the future, a Joint Committee would be involved. I have heard those who have said that that is not the right mechanism, but do they disagree with the principle I have just put forward? If that is not the right mechanism, what is? I ask them to find one. We need a mechanism by which this House can bring our experience and scrutiny to bear, and, unfortunately, if it is not just a Joint Committee, it simply does not exist.
The Liberal Democrats also support Lords amendment 15, which provides a double lock on regulations that protect the environment or ensure our food is safe. It was put forward by my constituent Lord Krebs of Wytham, an eminent Cross Bencher who was the first chairman of the British Food Standards Agency. He will have constructed this provision thoughtfully and knowledgeably. For those regulations that will not be scrapped by the Bill, the amendment will ensure that Ministers cannot meddle with them in any way to lower standards. At the Dispatch Box, they consistently say—
Alex Sobel (Leeds North West) (Lab/Co-op)
I served on the Bill Committee. The hon. Lady referred to the Bathing Water Regulations, a set of environmental regulations from which the right hon. Member for South West Norfolk (Elizabeth Truss), then a DEFRA Minister, tried to get an exemption for the UK. The talk from Conservative Members about these things being a “floor” needs to be carefully scrutinised. I agree that we need to legislate. In the Bill Committee, there was a refusal to accept our proposals, which is why we need to ensure that the amendment is in place, especially with the sunset provision moved.
Layla Moran
I thank the hon. Gentleman for that intervention and I entirely agree with the point he makes. I understand the point that some of the regulations need to fall away as they are technocratic, but the ones I am referring to are not those and yet they are getting caught up in the approach that the Bill takes. This is just not good law, so I urge Government Members to stand up for our environment and food standards, and reject the Government’s attempts to remove the amendment. Without it, the mechanism for us, as Back Benchers, to be able to influence a Government—it could be a Labour Government or something else, but it does not matter—is not there. We need to have it. Some 600 laws are still scheduled for revocation at the end of the year, without any specific deliberation or input from Parliament. The Bill still grants significant powers to Ministers to rewrite any item of retained EU law, including those now exempt from the sunset. Provisions that would create considerable legal uncertainty also remain.
Even though the total number of laws being revoked has fallen significantly, I continue to put forward the idea that this Bill remains a gross abuse of Executive power. Parliament is the seat of our democracy. Parliament should have its say, and I urge the Government, through these amendments, to consider their entire approach and put Parliament in charge. When they said they would take back control, I am sorry but I do not think they meant themselves.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
We have 10 people left and if everybody does about 10 minutes, as Layla did, we should get everybody in.
Simon Baynes (Clwyd South) (Con)
On Lords amendment 1, as a strong supporter of Brexit, I am pleased that the Government have already revoked or reformed more than 1,000 EU laws since our exit from the EU. In addition to the list of 587 laws the Government propose to revoke directly through the Bill, the Financial Services and Markets Bill and the Procurement Bill will revoke about a further 500 pieces of retained EU law. That means that more than 2,000 revocations and reforms are already completed or under way.
Overall, the Government are committed to lightening the regulatory burden on businesses and helping to spur economic growth, and the Edinburgh reforms of UK financial services include more than 30 regulatory reforms to unlock investment and boost growth in towns and cities across the UK. It is important, however, that the Government make sure that the process of revocation is done in a way that maximises our competitive advantage. We need to remove any unnecessary regulations we inherited from Brussels over the last 50 years, and to do so as soon as possible. The Bill gives us the unique opportunity to look again at regulations and decide whether they are right for our economy, whether we can remove them, or whether we can reform and improve them to help spur economic growth.
Stella Creasy
This piece of legislation and the Government’s approach to these amendments are a masterclass in misdirection. Members across the House have been talking about the sunset clauses, but the honest truth is that if they are going to burn somebody’s house down, it does not matter whether they do it at the end of this year or give themselves the matches to be able to do it next year; they are still going to burn down the house. This legislation, as it is still currently drafted, gives Ministers those powers. It does not take back control from Brussels, but gives it to No. 10 and the Executive.
I am sorry that the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright) is not in his seat, because in responding to the amendments, I want to set out a few very clear issues that I am sure Conservative Members will be thinking about having heard my initial comments. While I might be the chair of the Labour Movement for Europe, I know that Brexit has happened and I know we need this piece of legislation. However, I am a democrat as well as an internationalist, and my concern is the way this legislation drives a sledgehammer through this place and through British democracy.
Let us not look at these amendments through the prism of whether we voted in a particular way in 2016, or even how we voted in the various long-drawn-out Lobby nights we had up until 2019. Let us look at what is before us: the question of how to deal with retained EU law. I am sorry the hon. Member for Stone (Sir William Cash) is not in his place, because I like to think that in his mind it is like Japanese knotweed and must be rooted out at every opportunity. Whether we agree with that or not, if we are democrats, we believe that the final decision on those changes that affect our constituents should be made in this Chamber, by us, the people who were elected by our constituents to represent them in those decisions. This Bill removes that basic principle.
If the hon. Member for Stone wishes to argue that this piece of legislation somehow promotes Brexit, I have a timeshare to sell him, because it is not taking back control; it is doing the reverse. I listened to the argument he made about Lords amendment 16, that somehow bringing a list to his Committee as opposed to the Committee that will actually be looking at the legislation is somehow a win for him. I wanted gently to ask him what he will do if a law he believes should be deleted is not on that list. Will he complain bitterly? He tried that with the Secretary of State, and look where that got us.
There is a basic rule in life, “Fool me once, shame on you; fool me again, shame on me.” I wish the hon. Gentleman would listen to that. Everyone in this country has been fooled by Brexit. The British economy has been fooled by Brexit. Oddly enough, Brexit has not brought the benefits that we were told it would. We have seen exports collapsing, food prices increasing, our children sitting in coaches at the border for hours on end and businesses saying that trade with Europe is now almost impossible because of the amount of paperwork that they have to deal with.
This Bill kills the idea that Brexit was somehow about taking back control and kills the claims that were made—claims that the Government, under the last but one Prime Minister, were still making in 2022—that somehow Brexit was
“returning democratic accountability to our own institutions”,
and that it had restored
“democratic control over our lawmaking”,
and given
“the power to make and scrutinise the laws that apply to us back to our Parliament.”
The Bill does the opposite.
The Government have already shown in their approach to this piece of legislation why it would be so dangerous to pass it without the amendments. Ministers have refused to appear before Committees; they have failed to respond to questions; they have been evasive about how they might use the powers—but they have already decided how they will use them. We have already seen in this place what has happened to the use of statutory instruments, which is why our colleagues in the other place are so concerned—colleagues who are passionate defenders of Brexit. The Government have used statutory instruments to push through unpopular changes on student loan charges and welfare reform, and the entirety of the covid regulations that many in this place objected to. This Bill is that process on acid. It will apply to 5,000 areas of regulation.
George Eustice
Is the hon. Lady not missing an important point? The tertiary legislation that came down from the European Union was largely put in place using section 2(2) of the European Communities Act 1972, and that provision could even, with no scrutiny at all, amend domestic legislation—Acts of Parliament; primary legislation—made in this House. The bulk would be either implementing Acts that came from the European Union or delegated Acts, about which there was no real democratic process—not even within the European Union. Where was her voice when section 2(2) of the European Communities Act was running riot with the laws made in this House?
Stella Creasy
I was lobbying our elected representatives in the European Union—our Members of the European Parliament—to challenge that. I am sad that the right hon. Gentleman was not in his place when I had this very discussion with the right hon. and learned Member for Kenilworth and Southam. Two wrongs do not make a right. Those who claimed that they wanted to wrest back control from Brussels cannot then give it away to “the blob” in Downing Street, but that is exactly what will happen.
Anybody who has sat on a statutory instrument Committee knows full well that they are the Henry Ford of democracy. MPs are chosen by Whips to sit on those Committees, like it or lump it. A Member may have concerns about the statutory instrument before the Committee, and although the Minister nods approvingly and talks about writing to them afterwards, the legislation still goes through. The most a Member might be able to do is rail against the dying of the light. The Bill will extend that process.
The right hon. Member for Camborne and Redruth (George Eustice) talks about what it will apply to: not just to EU delegated legislation, but to all legislation that gives effect to it. That is a massive power grab by the Government. The amendment tabled by colleagues across the Commons and the Lords represent not anger about the outcome of Brexit but concern for the future of democracy. That is why I urge colleagues, no matter what side they were on in that debate, to proceed with caution and look at what the House of Lords is trying to do in this process. In the light of how willingly the Government have used SIs to bypass this Chamber when they have had such powers—as with covid, for example—it is not unreasonable to be concerned about how much more that process could happen.
Sammy Wilson (East Antrim) (DUP)
In the unfortunate event that the hon. Lady’s party wins the next election, would Ministers from her party be prepared to hand all those powers back to Parliament, or would they exercise them in the way intended in the Bill?
Stella Creasy
As a Back Bencher who expects to continue being a Back-Bencher under whatever Government, I want power to be in this place—I believe that that is good. Giving Ministers unfettered power without appropriate checks and balances is a bit like giving a 17-year-old the keys to a Porsche and asking them just to polish it: it always ends in a democratic car crash. That is what we see before us.
The right hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who is also no longer in his place, was at least honest about how he would like the Government to use those powers: to bring back chlorinated chicken, remove paid holidays and destroy the habitat directive. I do not know what he has against seals, but clearly he believes that we should be able to build houses on them. Wherever we stand on those debates, surely it is right that, if our constituents come to us about those issues, we have levers that allow us to represent their concerns, beyond trying desperately to grab a Minister during votes— there might only be one or two left if the legislation goes through—to ask them to think again.
The democratic powers that each of us was elected to exercise were our ability to table amendments, to scrutinise and to hold Governments of any colour to account. That is what the amendments would do. After all, we have already seen in how Ministers are proceeding with the powers that they believe the Bill will give them how little respect they have for their colleagues.
Stella Creasy
I am very conscious of time, so I will give way briefly, but I hope the right hon. Gentleman understands that I want to make progress.
George Eustice
Another point that the hon. Lady is missing is that there is already a lot of domestic legislation in these areas. Seals have been mentioned twice, but the Conservation of Seals Act 1970 is what gives seals protection in this country, not any legacy EU directive.
Mr Deputy Speaker (Mr Nigel Evans)
Stella Creasy is the last Opposition speaker, so I will give her a little latitude.
Stella Creasy
Perhaps the right hon. Member for Camborne and Redruth will tell the right hon. Member for North East Somerset that his ambitions to build on top of seal habitats may have to wait a little longer.
Stella Creasy
That’s it—apologies. The hon. Member for Bromley and Chislehurst (Sir Robert Neill) talked about unintentional deletions. Again, that is absolutely right. The Bill is not just about direct EU regulations; it is also about direct effect cases. It is a piece of case law that protects our constituents’ right to 50% of their pension pot that is being deleted without any parliamentary scrutiny of the process. That is the challenge.
According to the dashboard, those pieces of direct effect law that Lords amendment 6 would require the Government to set out, in the same way they have set out the EU regulations that they are going to delete, make up just 0.5% of retained EU law. It should not be difficult to at least tell us what case law is going to be deleted. For example, they are going to delete the direct comparator law that protects people in discrimination cases, so when our constituents come to us because they have been victims of discrimination in the workplace, basic protections that we might encourage them to look at and talk to their lawyers about will no longer exist. Again, they will ask us, “What did you do to make sure that this piece of law, whether or not it was a good idea, was scrutinised properly?” Amendment 6 would at least allow us to point to the place where it was deleted.
Lords amendment 15 is about Ministers who keep telling us that they do not want to water down any environmental regulations, whatever their colleagues who clearly have a vendetta against seals may think. It is simply a way of holding them to account, and this goes to the broader issue: whether or not Members agree with the habitats directive—whether or not they think there is room for change—surely it should be this place that deals with it, through a clear process.
I would wager that across the House, we would probably want to retain many of these pieces of legislation—again, I go back to airline safety and seatbelt rules. I am pleased that the Government have already said that they are going to retain those rules. Lords amendment 42 and other Lords amendments would pull together a Committee of both Houses that would do the sifting. It could simply say, “Yes, fine. Press on with using an SI Committee, those 15 people who have been hand-picked by the Whips, to nod it through and crack on with it.” However, where there is change—where Ministers are doing something for which we will be held to account by our constituents—it would bring in amendable SIs. It worries me that Ministers do not know that amendable SIs already exist in our constitution. The Hansard Society has supported that proposal. No statutory instrument has been voted down in this place since 1979, so it is simply not the case that using an SI Committee, whether under the negative or the affirmative procedure, would be democracy.
Brexiteers and remainers alike have supported the Lords amendments, because they recognise that taking back control ought to be about us doing our job. If Ministers and MPs vote down the amendments tonight, we will be voting ourselves out of a role. It may not take effect yet, but our constituents will not forgive us for removing their voices from this place. I urge Government Members, wherever they were on that debate, to at least abstain and indicate to Members in the House of Lords that there is a willingness to look at these processes and get them right. All of us who value democracy will be the stronger for it.
Vicky Ford (Chelmsford) (Con)
I wish to speak about the Government amendments and amendment 15. As colleagues will know, I spent many years as a British Member of the European Parliament, representing UK constituents. During that time, I served on the industry, research and energy committee, the economic affairs committee and the environment committee, and I chaired the single market committee. As such, I have had the opportunity to see how EU legislation can play an important role, especially in areas such as food safety, workers’ rights, consumer protection and the environment.
However, when I spoke on Third Reading, I also reminded people that I am very aware that EU legislation is not always perfect in all regards. The UK did play a key part in negotiating much EU law, but not every single element of EU law fitted perfectly to the needs of the UK. Indeed, due to the need to get a consensus across the 28 member states, we sometimes needed to have a one-size-fits-all and lowest common denominator approach. Therefore, I have always agreed with the principle of the Bill: that all of Whitehall needs to look again at EU retained law and ensure that it fits our needs.
On Third Reading, I also made the point that businesses and others need certainty, and I asked for businesses to get advance notice of which laws will drop away by the end of the year. I also urged Ministers to not be fearful of taking the time that was needed to get this right, so I am very glad that the Government have tabled the amendments that they have, which will set out a schedule of exactly which laws are to drop away by the end of this year and remove the sunset clause.
I also pointed out on Third Reading that unnecessary regulation can produce additional costs, which are often passed on to consumers. Amendment 15 deals with important issues such as food safety and the environment, but I have listened carefully to what has been said by Ministers in the other place and Government Members: that the way in which the amendment is drafted would add bureaucracy and delay in the making of new laws, and create legal uncertainty. That would add costs to the process, which would be borne by either the taxpayer or the consumer. At a time when our constituents are particularly concerned about the cost of their food bills, we need to be aware of that.
By voting against amendment 15 tonight, it is not the fact that I and others on the Conservative Benches do not care about the environment or food safety. I am very proud to be a founder member of the Conservative Environment Network, a caucus that brings together over 150 Members on these Benches and in the other place, and I am very proud to have stood on a Conservative manifesto that promised to introduce the most ambitious environmental programme of any country in the world. I am thankful to Ministers for saying throughout the passage of the Bill that the Government will not weaken environmental protection. None the less, some of our constituents have concerns.
The hon. Member for Walthamstow (Stella Creasy) just said this Bill will destroy the habitats directive. She has no evidence for that. The habitats directive has been a very important piece of legislation for many decades in trying to protect species. It was introduced in Europe by a Conservative MEP, who happens to be the father of a recent Conservative Prime Minister. However, species decline has continued across Europe despite that directive. We now have the opportunity to have a more outcome-focused, tailored approach to UK needs, and I gently say to Ministers that to reassure our constituents who care about biodiversity, it would be helpful for them as soon as possible to give more clarity about how they intend to reform the EU habitats directive—I know that a DEFRA consultation is going on at present.
The UK Government have gone much further than the EU in protecting habitats. In particular, we have been the first country in the world to commit to a legal deadline to halt species decline, and we have said we will do that by 2030. The landmark Environment Act 2021 also includes a new biodiversity net gain obligation for all new developments.
In my constituency, there is a new development of 342 dwellings. It is near the river in an area of wet grassland with hedges and copses. It is important habitat for many species including migrant birds, dragonflies, aquatic mammals and amphibians, and areas of higher ground in the undeveloped land are key refuges for small mammals and reptiles to escape to when the river floods. Because of the net biodiversity gain obligation, the planners and developers had worked with ecologists to introduce plans for new reedbeds, native trees and ponds, reinforcing hedges, increasing the woodland cover and making provision for bird and bat boxes and so forth. I did not think that was enough, because I was contacted by a constituent who is an ornithologist who has been watching this land for a long time. Because of the net gain initiative, the developers and their ecologists met my local ornithologist, and as a result the grass strip is going to be enhanced along the corridor where the barn owls hunt; the cycle path will be moved away to create a buffer from the trees where the nightingales nest; and the watercourse corridor will include scrapes for the water voles. All these are very important species: the nightingale and the water vole are red-listed species in the UK.
None of that action would have been taken if we had just relied on the habitats directive. This much more focused, devil-in-the-detail approach that we need to protect our nature and biodiversity is happening because of what this Conservative Government have introduced by putting that net gain responsibility on our developers.
I have a funny feeling that when we on this side of the House walk through the Lobby tonight to vote against amendment 15, those opposite will try to say that the Conservatives do not care about nature, species and the environment, but the actions of this Government show that that could not be further from the truth.
Gareth Bacon (Orpington) (Con)
I rise to speak about this critically important Bill and the merits of the Government amendments, supported by my right hon. Friend the Secretary of State, to Lords amendments 1 and 16. I will touch later on amendments 6 and 15.
Dean Russell (Watford) (Con)
On that point, would my hon. Friend agree with amendment (b) to Lords amendment 16, which I have supported, which will have regular reporting—more regular than those in the other place wanted? That is essential to making sure that we see the momentum and the change as it is coming and ultimately that we are holding the Government’s feet to the fire to deliver on what we promised the nation when they voted for Brexit?
Gareth Bacon
I entirely agree with my hon. Friend on that point. That amendment is critical, because anything else would give ammunition to those who have never truly accepted the result of the 2016 referendum and have fought against it thereafter.
We have to be honest. Given the timescales, there was a danger that certain laws we might have wished to keep might have been unintentionally revoked. I was a member of the Public Bill Committee, and that was certainly the centrepiece of the Opposition’s attack on the Bill. Claims were made by the hon. Member for Walthamstow (Stella Creasy) that the Bill would end bank holidays and rip up maternity rights and protections for children. The hon. Member for Ellesmere Port and Neston (Justin Madders), who is not in his place, suggested that employment rights would be scrapped. Clearly that was never the Government’s intention, but some have pointed out that that sort of thinking created a perverse incentive and resulted in a race in Whitehall to focus on retaining laws before the December deadline, rather than identifying which we should remove.
The changes made by the Secretary of State are intended to avoid that situation, and we should fully support her now. The amended Bill will still abolish the principle of the supremacy of EU law, fulfilling a manifesto commitment. It removes the principles of EU law from the UK’s domestic law and gives courts the power to diverge from EU case law. As a result of the amendment tabled by my hon. Friend the Member for Stone (Sir William Cash), supported by my hon. Friend the Member for Watford, which has been accepted by the Government, the Government will publish the future provisions that they aim to revoke or reform in the subsequent reporting period. All of that is hugely important, because it means we will be able to continue our work to ensure that the laws on our statute book are best suited to our national interest, having kick-started the process immediately and avoided further delay. That is exactly what Brexit was about: making those elected to represent British people, who sit on these Benches, and not in some grey building in Brussels, accountable for their decisions.
Some of the other amendments passed by the other place, such as amendments 6 and 15, are not really aimed at increasing scrutiny or protecting environmental standards, as has been claimed. Instead they are of a piece with much of the gameplaying that took place in Parliament after the referendum and prior to the 2019 election. They are intended simply to delay and obfuscate, and the Government are right to reject them. Taking all of this into account, I think the Secretary of State is correct to say that it would have been impossible to push ahead with the promise to revoke retained EU laws as originally planned. With these changes, I believe that she has pre-empted attempts to derail the Bill and ensured that we are back on the right track.
This revised Bill not only ends the supremacy of EU law, but sets up further progress to continue the Brexit project without imperilling it. That is why I will be voting to support the Government today, and I hope that all Brexiteers, and indeed all Members, will as well.
Simon Hoare
It is a pleasure to follow my hon. Friend the Member for Orpington (Gareth Bacon), who made a characteristically calm and thoughtful speech. I will endeavour to follow his example, although I do not make that a pledge.
In my opening remarks, I want to respond to two points. One of them was made by my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who is a long-standing friend. The decision by this country to leave the European Union—I voted to remain—has been taken and is now accepted politically, and I do wish that he would not, as one or two others do, stir the pot with suspicions that, somewhere deep in the bowels of Whitehall, some malicious Minister or somebody in the civil service, in some think-tank or whatever is plotting to steal the prize of leaving the European Union from the hands of those who campaigned for it. I think that is totally specious as an argument. It alarms some people, introduces distrust into the motivations of those in this place, whether they are on the Back Benches or the Front Bench, and is entirely unhelpful.
I also want to make a point to the hon. Member for Walthamstow (Stella Creasy), who argued her case with the characteristic passion that she brings to all these things. The point I would make is that she believes—and I will come on to the belief in a moment—that the Government, and I paraphrase, want a sort of race to the bottom or some sort of democratic sleight of hand. I just politely say to the hon. Lady, for whom I have a huge amount of personal regard, that if that is case, the Government would not have ditched the sunset clause, but would just have carried on with the arbitrary date of the end of this year. I suggest that we should all take comfort from the fact that the foolishness of the sunset clause has been ditched, which indicates in very clear, transparent terms the way the Government wish to go about this process.
Sammy Wilson
Regardless of the process of how these laws will be changed, does the hon. Member not accept that any Government who wanted to tear up all the protections of the environment and all the protections of employment rights would be out of their minds, because they have to face the electorate at some stage, and that is the ultimate democratic test of these issues?
Simon Hoare
I do not know who is going to sit down first out of shock, but I fundamentally agree with the right hon. Gentleman, and I have to say that that is possibly a first. He is absolutely right that that would be political suicide. On any casual analysis or audit of our inboxes or mailbags, or of people coming to our surgeries or stopping us in the street, he is absolutely right. People are not pressing for a race to the bottom, and they are not talking about a degradation of environmental standards. He is absolutely right, and any party that advocated that would quite rightly be consigned to the electoral dustbin. There would be no recycling of that party; it would be totally incinerated, and rightly so. He is right to make that point.
Stella Creasy
Does the hon. Member recognise that the way the Bill is currently drafted, with or without the sunset clause, still transfers a direct power to Ministers to use statutory instruments to make legislative changes to those 5,000 laws? Doing so might be electoral suicide, but it is possible, and the sunset clause is not what would stop it; it is just the date at which it would happen. That is the distinction we are making. Nobody is saying what might or might not happen; the point is the democratic deficit this will create.
Simon Hoare
There is more that unites the hon. Lady with my right hon. Friend the Member for North East Somerset, because they are both tilting at windmills that do not exist. Any Government might do something—of course they might. I will come to the main thrust of what I want to say, but me deal with “anybody might.” Anybody who passes a driving test and owns a car might lose control of the vehicle and might run somebody down. Anybody who buys rat poison might give it to their cat and kill the cat, so do we not sell rat poison? Surely the hon. Lady is not suggesting that because, reductio ad absurdum, people might do something, we should not allow things. With the usual checks and balances of this place, in a bicameral system and with a transparent free media and an independent court system, surely to goodness we have not reached that nadir of political trust in this place between Back Benchers—whether on the governing side or on the Opposition Benches—and the intentions of His Majesty’s Government, from whichever party that might happen to be made up.
Dean Russell
Not only is there an absence of evidence; there is actually proof that the Government are on the side of workers. In the past year, we have brought in extensions on flexible working, maternity rights and carers’ rights. Even my own Employment (Allocation of Tips) Act 2023 ensures that workers keep 100% of their tips. There is an absurdity on the extremes of the argument that somehow the Government are not on the side of workers and want to rip up rules when they are actually strengthening them. As has been alluded to, the Government are trying to cut through the red tape and not put bureaucracy in the way so that business and workers’ rights are better suited for the workplace. We are making sure that we are on their side.
Simon Hoare
My hon. Friend—[Interruption.]. Yes, I will give him a tip. He makes a similar point to the right hon. Member for East Antrim (Sammy Wilson). That is, in essence, which party worth its salt, seeking some form of re-election, will knock on doors and attend church and parish meetings to say, “The great thing that we’ve achieved—the great jewel in our crown—is that we’ve removed your holiday entitlement and your statutory sick pay. Please vote for us, because that’s just the start. You wait until we’ve finished—we are going to have boys up chimneys and limbs lying on the factory floor because we will repeal the Factories Act”? Where does that end? It is utter nonsense.
The direction of travel in the mindset of this country, like, I would suggest, in most advanced civilised democracies, is for a more protective system for the individual, a safer working environment and a cleaner, greener environment. The idea that any party with a sensible prospectus for government would try to fly in the face of that and buck the trend in the interests that it might be quite interesting to see a four-year-old shoved up a chimney with a brush, is for the birds. But, unfortunately, there are one or two people out in the country who will believe that, and this place does no service to our constituents by setting those entirely spurious, false, bogus and misleading ideas in the public mind. It might make a Facebook click, and it might make some sort of Twitter advert with somebody saying something or another, but it is not serious politics, and it demeans this place.
But—[Interruption.] This is a but, because I want to deal with this seriously.
Simon Hoare
It might be hyperbolic, but it is not rude. I say to the hon. Lady and others—this is a point that Government Members must face up to—that, as I said in an intervention on my right hon. Friend the Member for North East Somerset, I have, as many do, huge sympathy with the idea that this great canon of work should have been far more progressed than it has been, but for reasons that we do not need to dwell upon, I am afraid that last year, in terms of delivering political process, was a wasted year. We all know, understand and have some frustration with that, but we are where we are. The decision that the Government bravely and sensibly took was to say that the arbitrary date that previously—but still, I suggest, theoretically and unrealistically—we thought was in grasp for this huge and important piece of work, now is not. When the facts change the circumstances must change. This is not a U-turn: this is the Government saying that the important work of reviewing to check on appropriateness —whether something is appropriate or inappropriate, or should be upgraded or changed to bring it into a UK arena—will still be done, but it will be done in a more sensible timeframe to ensure that we get it right.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
The Minister will be called no later than 5.52 pm for a 10-minute wind up.
Bim Afolami (Hitchin and Harpenden) (Con)
It is such a pleasure to follow a wonderful speech from my hon. Friend the Member for North Dorset (Simon Hoare). I was roused to get up when he mentioned Trumpian Singaporisation liberalising, and I thought, “That sounds like me and I must now rise!”
It is clear that we are not, at this moment, where we would have loved to have been a couple of years ago. My hon. Friend mentioned, and it has been alluded to by many others, that due to various political events over the last 12 months or so, we have not made as much progress on this agenda as we would have liked. I say to some Members on my own side that of course it would have been better if this process had moved faster, but we are where we are.
When faced with such a scenario, the Government have a choice. They could either say that political machismo demands we keep going down a route, even if we fear that that route, by 31 December, may lead to some or a lot of negative outcomes, or they could take a grown-up approach—the sort of approach that in a sensible debate Opposition Members would much more readily accept and highlight explicitly—which is that we will do what we can now, remove the sunset clause and, in an orderly way, make sure that we get this right. I remember the advert from when I was a child that said a dog is for life, not just for Christmas. The laws passed in this House are for life. We intend to get this right for the long term. That is why, fundamentally, the Government’s approach of repealing roughly about 2,000 laws by the end of this year, with a further 3,000 to be done in a sensible, structured and strategic way, will improve our regulatory system. Mr Deputy Speaker, I should have mentioned, as the chair of the Regulatory Reform Group, my entry in the Register of Members’ Financial Interests.
Sammy Wilson
Although there may be arguments for removing the sunset clause, there is a real fear that without it the Government could have, for various reasons, fallen back on the promises that they made to review all the laws. That is why the amendment is so important, because there will be a continuous review and picture of where the Government are going, and people can ensure that the foot is not lifted off the pedal.
Bim Afolami
The hon. Gentleman is entirely right. It is a good example of our parliamentary democracy working well that there has been dialogue, both open and private, between Members of this House and the Government to get to a right point on amendments; to say that we will support the Government in broad terms, but that there is a need and a desire for more reporting and explicit signalling of where the Government are going. We must ensure that Whitehall as a whole continues with this agenda and does not feel that it has got the Bill done and will just leave it all for years to come. I understand exactly what he says.
Let me remark on the Lords amendments. I would say that I am impatient. I do not know if that is common to all politicians, but I am a very impatient person.
Bim Afolami
I thank my hon. Friend for confirming that to the House. I have talked a lot in the last few months about strengthening and improving our regulatory system, and getting more scrutiny for our regulators when they take decisions, and more ability for the House to scrutinise the decisions taken in our name. I am impatient that we are not doing more of that, faster. But I also recognise that we need to do that in a way that looks not just at the EU law—my hon. Friend the Member for Stone (Sir William Cash) talked earlier about the danger of having one set of EU regulations and the rest of law in another set. It is so important that, as we deal with European-derived law, we incorporate it into our full body of law in a strategically sensible way that improves our regulatory system—not just a cut and paste job, as may have happened.
I fear that a lot of the Lords amendments are about finding ways to delay the process that the Government have rightly strategically and politically committed to. My hon. Friend the Member for Orpington (Gareth Bacon) made that point very well and I will not repeat it.
I would like to talk a little about Lords amendment 15, which relates to various environmental issues. I have many problems with it—first, the notion that it is always clear whether one is reducing or increasing what the amendment claims to be the “level of environmental protection” or level of “protection of consumers”. That is very hard to do. It deliberately adds a huge amount of delay and bureaucracy to the entire process and it elevates the Office of Environmental Protection, which, if I remember rightly—I am sure that someone will correct me if not—is meant to be an advisory body, not a body to impose regulations on this House or anywhere else. It is elevating the Office for Environmental Protection to do a job that it was not designed to do. That is a good example of the sort of regulatory creep that we continually see and that I campaign and fight against in this House. The amendment is very dangerous for that reason.
My right hon. Friend the Member for Chelmsford (Vicky Ford) and my hon. Friend the Member for North Dorset spoke accurately and amusingly about the political insanity of weakening things that the public want and that are completely contrary to the broad direction of our policy. Biodiversity net gain, the Environment Act 2021, the Agriculture Act 2020 and the Fisheries Act 2020 are all the things that we have done as a Government over the last few years. It would be insane to go back on all the things that we have done in relation to particular regulations. The Bill is not a clear and present danger to our environment.
Let me finish by saying that I have a feeling, like my right hon. Friend the Member for Chelmsford, that the amendment is not really about what it says on the tin. It is really about trying to create wedge points that can be used to generate emails by 38 Degrees, or to create Facebook ads or clips to somehow suggest that Conservative Members are not in favour of environmental protection. That is dangerous, and the House should not be used in that way. I have seen this practice grow in my time in Parliament, particularly among Labour and the Liberal Democrats. We should not allow the House to be a place where people put down motions to—incorrectly—embarrass Members by suggesting they are not in favour of something they are in favour of. I make that point before I sit down, and I will support the Government in all the Divisions today.
Royal Assent
Mr Deputy Speaker (Mr Nigel Evans)
I have to notify the House, in accordance with the Royal Assent Act 1967, that the King has signified his Royal Assent to the following Acts:
Protection from Redundancy (Pregnancy and Family Leave) Act 2023
Carer’s Leave Act 2023
Electricity Transmission (Compensation) Act 2023
Neonatal Care (Leave and Pay) Act 2023
Northern Ireland (Interim Arrangements) Act 2023.
Retained EU Law (Revocation and Reform) Bill
Tuesday 6th June 2023
(10 months, 3 weeks ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 143-I Marshalled list for Consideration of Commons Reasons and Amendments - (5 Jun 2023)
16:34 - Division on Motion C1 - Ayes: 244 / Noes: 190 - Motion C1 agreed.
16:46 - Division on Motion E1 - Ayes: 257 / Noes: 182 - Motion E1 agreed.
Lord Callanan
That this House do agree with the Commons in their Amendment 1A.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, in moving Motion A, I will also speak to the other Motions in this group. It feels very recent that we had Third Reading on the Bill, as the other place has returned it remarkably quickly.
Motion A covers this House’s Amendment 1. The original amendment was to require a Joint Committee to consider the revocation list and to arrange debates in both Houses with respect to anything that represented a change to the law before the legislation on it could be revoked. I thank the noble Lords who sponsored this amendment for not pushing it again today.
Motions B and B1 cover the Commons disagreement to Lords Amendment 6. I sympathise with the amendment proposed by the noble Lord, Lord Anderson, in lieu of Amendment 6 on its intent to help establish legal clarity. Indeed, one of the main purposes of the Bill is to simplify the statute book. However, in my view, such an amendment is not necessary. The amendment seeks to clarify that the new clause “Retained EU law dashboard and report”, inserted by Lords Amendment 16, will include those rights, powers and liabilities referred to in Section 4 of the European Union (Withdrawal) Act 2018. I am happy to reassure the noble Lord, Lord Anderson, today that the Government intend to ensure that rights, powers, and liabilities referred to in Section 4 of the 2018 Act will be included in future dashboard updates and accompanying reporting. The Government will include those rights, powers and liabilities that they have explicitly codified or intend to codify, as well as those they have decided not to codify because they are no longer fit for purpose. I hope that this provides the necessary clarity around which matters, originally retained under Section 4 of the 2018 Act, will be codified into domestic law. I thank the noble Lord for his valuable and collegiate engagement on this matter. I hope that this commitment provides him with the reassurance he is looking for and that he therefore will not press his Motion.
Turning to the Motion to amend the drafting of what was Amendment 16, I know that many noble Lords have strong views on Amendment 16 and the Motions concerning it. The other place inserted further measures to strengthen the reporting requirements and to ensure that the Government inform Parliament of their progress on using the powers in the Bill and their forthcoming plans on a more frequent basis. The Motion in my name therefore simply tidies that drafting and, on that basis, I hope that the House is able to support it.
Finally, I call on the House to reject the amendment proposed by the noble Lord, Lord Anderson. The Government recognise the significant role that Parliament has played in scrutinising instruments and are committed to ensuring the appropriate scrutiny under the delegated powers in the Bill, including any instruments made under the powers to revoke or replace. This amendment would impose a novel and untested scrutiny procedure on regulations proposed to be made using the powers to revoke or replace. This novel approach is, in our view, simply unnecessary.
The Government will ensure that any significant retained EU law reforms will receive the appropriate level of scrutiny by the relevant legislatures and are subject to all the usual processes for consultation and impact assessment. However, it is important that we ensure that the limited amount of parliamentary time available is used appropriately and effectively.
The existing sifting procedures in the Bill have been purposely drafted as a safeguarding measure for these powers and already contain adequate scrutiny. They allow for additional scrutiny for the exercise of the power to revoke or replace, while retaining the flexibility of using the negative procedure where there are good reasons to do so—for example, in repealing redundant rules that no longer have any purpose on the UK statute book.
In addition, in certain situations, notably the use of subsection (3), the affirmative procedure continues to be required. The existing procedure will give the UK Parliament the opportunity to take an active role in the development of this legislation. It is a tried and tested method of parliamentary scrutiny which, in my view, delivers good results for everyone and draws on the experience of our parliamentary committees. We will, of course, respect the judgment of the sifting committees relevant to the Bill, in the same way as we did for the EU withdrawal Act. Therefore, I do not consider the proposed amendments to be necessary. I hope this provides the House with sufficient reassurance on this matter.
Lord Anderson of Ipswich (CB)
My Lords, I will speak to Motions B1 and E1 in my name in this group. Having heard the Minister, I can be brief on Motion B1, which concerns a sometimes-neglected part of the Bill. Clause 3 is headed “Revocation of retained EU rights, powers, liabilities etc”. That clause is unaffected by the Government’s concession on the sunset and continues to provide for all directly affected provisions of EU law—whether they are found in the treaty, in directives, or in international agreements—to be revoked at the end of the year. My concern in tabling this amendment has been to know precisely what is being revoked and what will be proposed by way of replacement.
To that end, Motion B1, which builds on the helpful amendment originally proposed by the noble Baroness, Lady Noakes, seeks a guarantee that the directly affected provisions will be fully included in dashboard updates, as they have not been to date, and that the Government will give us clear warning in advance of those which they intend to carry over into our law and those which they may have decided not to carry over.
Unpicking provisions so deeply embedded in our law will not be a simple business. I declare an interest as a lawyer who sometimes needs to advise in this area. Such a commitment will be helpful to anyone who needs to understand what our law provides and how it is intended to be changed. I am grateful to the Minister and the Bill team for their constructive engagement on this issue, and for the clear commitments that he has just offered. In the circumstances, I am confident that I do not need to trouble the House with a Division on this issue.
Motion E1 is of a constitutional nature and concerns what, to some of us, has always been the most troubling feature of the Bill. It is nothing to do with the dashboard, direct effect or even the end-of-year sunset. It is rather the delegated superpower, headed “Powers to revoke or replace”, which currently appears as Clause 14. I remind the House of its most remarkable feature, subsection (3), which states:
“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.
That power will last until June 2026, which even we in the ivory tower of these Benches understand is some time after the next general election. It allows the Government to make regulations that Parliament cannot amend or, in practice, block, even when those regulations have quite different objectives from the laws that they replace, as the Bill makes clear.
Viscount Hailsham (Con)
My Lords, I will very briefly support what the noble Lord, Lord Anderson, said. I agree with all of his detailed arguments, which were extraordinarily well put.
I will focus on two general points. First, in principle, I am very much in favour of increasing the control of Parliament over the legislative powers exercised by the Government. That is increasingly the case because Governments of all stripes are increasingly using secondary legislation to make very substantial changes to our laws. I want to see much greater parliamentary control.
Secondly, and differently, this issue goes to the amending power included in subsection (3) of the proposed new clause—I am very much in favour of that. For the many years I have been in Parliament, I have been deeply troubled by our inability to amend secondary legislation. What is being proposed by the noble Lord, Lord Anderson, is a mechanism; it may be rather a tricky one to use, but I hope it will be a precedent. It is one that I strongly support, because it is important for this House and the House of Commons to be able to amend statutory instruments. So if the noble Lord moves his amendment to a Division, I shall support it.
Baroness Butler-Sloss (CB)
My Lords, I too strongly support what the noble Lord, Lord Anderson, and the noble Viscount, Lord Hailsham, said. I cannot resist telling the House that I am chairman of the Ecclesiastical Committee, and some years ago the most reverend Primate the Archbishop of Canterbury was discussing a measure that was coming through our hands before going to Parliament, which had a clause that would allow the General Synod to make almost any changes to any law in England. We pointed out gently that it would not get through Parliament. Dear, oh dear, what are we talking about today? I would not have been quite as gung-ho about what could not happen in Parliament if I had come across this Bill and, I have to say, the Illegal Migration Bill.
The point that the noble and learned Lord, Lord Judge, was making about delegated powers—I remember that speech very well—is one that I am delighted the noble Lord, Lord Anderson, has taken up. The noble and learned Lord, Lord Judge, was saying that there will come a point when we will actually vote against secondary legislation—and maybe the time is just beginning to come. If we end up with having no power in Parliament, in either House, to decide whether laws that are different from those we have can be argued in either Chamber, what is the point of us being here? Consequently, I do feel that the House should support the noble Lord, Lord Anderson.
Baroness Ludford (LD)
My Lords, I thank the noble Lord, Lord Anderson, for the work he has done on Motion B1 with the listing of powers, rights and liabilities. I note that he will not press his amendment because he has got it to the point of getting a pledge from the Government.
Perhaps I might ask the Minister what the timescale is for putting these on the dashboard, because they are not currently on the dashboard. The last time they were searchable on the dashboard, only 28 rights, powers and liabilities were listed. They did not include, for instance, Article 157 of the Treaty on the Functioning of the European Union, which, as all noble Lords know, concerns the right to equal pay for equal work; it goes further than the Equality Act 2010 and is an absolutely crucial instrument for equal pay. They also did not include Article 6.2 of the habitats directive, which imposes an obligation to take appropriate steps to avoid the deterioration of habitats. Those are two examples of key rights and powers that need to be on the dashboard, and there must be many more. Can the Minister tell us how many he thinks will be listed and by when?
Lord Lisvane (CB)
My Lords, I am delighted to support Motion E1 in the name of my noble friend Lord Anderson of Ipswich. At a time when there is increasing concern about the balance between Parliament and the Executive, I was rather surprised that the elected House rejected the idea of a Joint Committee to sift proposals, which might well be of disadvantage to their constituents. I was also surprised—perhaps “saddened” might be the better word—that the Government saw fit to take that view of the amendment in the Commons. This Motion, as my noble friend outlined, returns to the charge, but provides a Commons-only Select Committee—a sifting committee—rather than a Joint Committee.
There has been much talk about amendable SIs. It may be part of the Government’s case, or be seen by the Government as strengthening their case, to portray them as a whole new category of legislative procedure, where SIs become like mini-Bills, with all the complications that would ensue.
Much as I appreciate the noble Viscount’s wish that these would be broad, sunlit uplands, I do not think that this is the case in this instance. As far as I am aware, there are only two examples of statute providing for amendable SIs, via Section 1(2) of the Census Act 1920 and Section 27(3) of the Civil Contingencies Act 2004. SIs under either of those Acts are truly amendable because, if an amendment is approved, it becomes immediately effective.
What this Motion proposes is a little different; it is much closer to the super-affirmative procedure applied to legislative reform and regulatory reform orders, which does not seem to have frightened the horses in either House. There is a difference, yes, because in that super-affirmative procedure it is a matter of discretion as to whether the Minister accepts the advice of the sifting committee as to amendments that might be made. Commons Standing Orders 141 and 142 provide for that difference of opinion between the Minister and the sifting committee. The Motion before your Lordships would remove that ministerial discretion—but I find it hard to see how allowing the two Houses to take the decision would be such a dreadful thing, unless of course the Government see it as infringing upon the prerogative of the Executive, which would confirm the worst fears of many.
Whatever one’s views on the issue, it is very important to keep a sense of proportion. I cannot imagine the heavy weaponry that is implied by some in this Motion being deployed at all often. The Government, if they had any sense, would want to reach agreement with a sifting committee rather than seeking the adversarial outcome of a vote on the Floor of the House. In any event, what would be so wrong about accepting the view of an all-party committee which had identified in a government proposal hazards for business, the environment, civil liberties or any of the other fields in which Parliament is supposed to be the guardian of our citizens’ interests?
The Minister criticised the proposal on the basis that it was novel and untested. If one is going to improve the effectiveness of Parliament, there will from time to time be procedures that are novel. If it were not the case, we would be living the rest of our lives encased in a sort of parliamentary aspic. He also said that it was untested. In a parliamentary environment, you cannot have a novel procedure unless it is untested so, with great respect to the Minister, I would dismiss that criticism.
I conclude with a short look ahead, as the noble Lord, Lord Anderson, invited your Lordships to do, to the further stages that might ensue. There is an urban myth to the effect that two exchanges is the limit. I had some involvement with the Corporate Manslaughter and Corporate Homicide Bill in 2007, and on that occasion there were seven exchanges between the two Houses. Other Bills have demonstrated more than two exchanges on a number of occasions. On something that raises an issue of constitutional principle—and I borrow the description of the noble Lord, Lord Anderson, in speaking to his Motion—it would be right if the Commons were invited on several occasions to consider whether it had got this right after all.
Lord Hamilton of Epsom (Con)
I congratulate the noble Lord, Lord Anderson, as did the noble Baroness, Lady Ludford, on the work that he has put into this. As he knows, I supported the original amendment and put my name to it, and I congratulate him on all the work that he has done since. I totally sympathise with all the sentiments that everybody has expressed. It is most regrettable—and I say this as somebody who campaigned to leave the EU—that we took the very undemocratically imposed EU law given to both Houses of Parliament, which we could neither amend nor reject, and now we are replacing that by giving that power to the Executive through statutory instruments under the negative procedure, which means that we cannot amend them or do anything about them at all. I do not think that that was what people voted for when they voted to leave the EU; I think that they wanted to restore parliamentary sovereignty, and this does not do it.
Having said all that, we are a revising Chamber; we asked the Commons to think again; they have thought again. It is a matter of regret to me that I have not even persuaded my leave colleagues in this House to support the amendment, let alone in the other place, and I do not think it is our job to play endless ping-pong. The House of Commons is elected; it has spoken, and I think we should go along with what it says.
Baroness Jones of Moulsecoomb (GP)
My Lords, I strongly support this Motion and I disagree with the noble Lord who has just spoken, because it is our job not to let things through that are actually dangerous or damaging for our constitution and for the British people. I think the Bill has a huge number of flaws. I know the Minister to be an honourable man and I am sure he believes what he is saying, but the point is that he cannot tell us that this Motion is not necessary and he cannot say he gives us all the reassurance: how do we know he is going to be in post within a few weeks?
And of course, then we have the next Government. One of the things that staggers me about the Bill is just how much power the current Government are giving into the hands of the next Government, which could of course be a Labour Government. Surely, when the next Government come into power, those opposite will bitterly resent the powers they have put into the Bill. Personally, I think it is a dereliction of MPs’ duties as legislators to allow this to happen, so I thoroughly support the Motion in the name of the noble Lord, Lord Anderson. I think we have to be very responsible here and say, no, we will not let this pass.
Lord Cormack (Con)
My Lords, “Do not take to yourself powers that you would not wish your opponents to have” is the substance of the noble Baroness’s speech, and I agree with that. I greatly admired the speech made by my noble friend Lord Hamilton at Second Reading. I admired his courage in putting his name to the amendment and I totally respect his view that one has to consider and judge how long ping-pong should go on. So, there is no disagreement between us on this issue, even though we were on opposite sides in the Brexit argument.
But I come down very strongly in favour of the points made by the noble Lord, Lord Lisvane, who, remember, is a very distinguished former clerk of the House of Commons and understands these procedural matters perhaps more than any of us. The noble Lord, Lord Anderson, called in aid the noble and learned Lord, Lord Judge, and we do indeed all miss his presence today and wish him a speedy return to full health and to vigorous debating in this Chamber. He has, perhaps above all of us, talked of the danger of Parliament becoming the creature of the Executive. That is to turn our constitution on its head, and it is something that none of us should be complicit in.
We do have a duty in this House, if we think the other place has got it wrong, to say, “Please reconsider”, and it is not in any way an aggressive use of our limited powers if we think their rethink, which did not take very long, has not been adequate. Therefore, I believe it would be entirely consistent with our relationship with the other place, and with our duty to Parliament, of which we are the second House, to say to our friends and neighbours along the Corridor, “We think you have got this wrong: you are giving power to the Executive which no Executive, be it Labour or Conservative, should have”. I do not want them to have it if they come into government, and I do not think it is right that we should have it. For those reasons, I shall support the noble Lord, Lord Anderson.
Lord Jackson of Peterborough (Con)
My Lords, I oppose the Motion in the name of the noble Lord, Lord Anderson of Ipswich. For what it is worth, I support the new iteration of Amendment 16, to which I put my name on Report, in Motion D.
I very much respect the noble Lord, Lord Lisvane, and indeed my noble friend Lord Cormack, but I think we are missing the bigger picture here. We are effectively asking the other place to invalidate a Bill, for reasons I will develop shortly, which it passed by 53 votes when the will of that House was last tested. As I have said before in this House, I think there is a danger of legislative overreach—of assuming powers and of imposing responsibilities and obligations on the elected House, fettering its discretion and, by so doing, interfering in its rights and obligations. Notwithstanding what my noble friend Lord Cormack said, yes, it is our duty and responsibility to ask the other place to think again, but we have already done that. It has thought again and debated the issue. I have to agree with my noble friend the Minister. He is far too polite to describe the approach outlined by the noble Lord as it truly is: extremely radical. He described it as a “novel” approach.
Let us think about what this Motion would mean in practice. If we are in the business of improving governance by scrutiny and oversight, unless we vote for a fatal Motion to kill the Bill—which is very unlikely, because the Opposition Front Bench would not support such a move—surely the logical corollary is that we want to improve it. The perverse application of the noble Lord’s amendment would result in quite the opposite. The opportunities to revoke and, importantly, to reform the caucus of EU retained legislation would be slowed. There would be a process of delay and obfuscation, and it would not be effective government. In fact, it would be a betrayal of the responsibilities and duties we have as the upper House in scrutiny and oversight. Indeed, even above that, the Motion would invalidate the very raison d’être of the Bill, which has to exist. The noble Lord’s amendment is too rigid. It is instructive, and it would assume the powers of Ministers. In some respects, it would make this House itself part of the Executive in a way that Amendment 16 did not, which was much more permissive, declaratory and flexible in seeking to get to the same objectives.
For those reasons of legislative overreach, inadequate scrutiny and oversight, and delay and obfuscation if we were to go down the path of this Motion, I respectfully ask your Lordships’ House to reject it and support the Government.
Lord Inglewood (Non-Afl)
My Lords, having sat quietly listening to the debate, which has focused on all kinds of minutiae over the past few weeks, I cannot help but conclude, taking an overview, that if we look at the history of Parliament we see that for hundreds of years it has had a tense relationship with the Executive. Over that period, it has developed a framework within which, in the interests of the British people as a whole, the Executive exercise their powers. We have had civil wars over it; people have died in that cause. Now we are being asked, it seems to me, to put that process into reverse. We are being asked that Parliament should move in the opposite direction and return to a system of governance where the Executive have ever more increasing control over everyone’s lives. I do not think that is the way we in this Parliament should respond to those kinds of circumstances, and it is my personal view that to do so is craven.
Baroness Altmann (Con)
My Lords, from my perspective, the way in which the noble Lord, Lord Anderson, moved and explained his Motion was extraordinarily powerful. My summation is that this is an existential issue—we are way down a slippery slope. I respect the views of the elected Chamber. Had we been subject to a general election or a referendum which asked the British people whether they wanted control given to an Executive, consisting of a number of Ministers, or to each of their elected Members of Parliament equally, and the British people had supported the idea that we become an elected dictatorship of some kind, that would be a different matter. However, I do not believe that that has been put to the British people. I believe that the constitutional safeguards which this House represents, and which are there to protect ordinary citizens, need to be better safeguarded. I will therefore support Motion B1.
Viscount Stansgate (Lab)
My Lords, I was not intending to speak so I shall be brief. This House is not elected—we know that—but that is not to say that it does not have a role, which it does. We heard a speech just a moment ago suggesting that ping-pong, the stage in which we are at the moment, is a game that should have just one exchange and leave it at that. There is no urgency about the time that it might take to ask the elected Chamber to think again. I am in favour of allowing the other place to think again. When you consider the wider history—we have just had reference made to it, quite rightly—we are going to allow a Bill of such magnitude to go through, shifting the balance of power between the Executive and the legislature in such a way, that people later on will look back and wonder why on earth the House did not express some degree of steadfastness in its view that the Government should think again. I shall vote for the amendment for that reason.
Lord Fox (LD)
My Lords, this has been a fascinating debate, and I will not prolong it much. On Motion B1, the noble Lord, Lord Anderson, and indeed the noble and learned Lord, Lord Hope, who is unable to be here today, deserve, as they have already received, great congratulations. The Minister also should be commended on his flexibility in assuring and reassuring us that we will get the information we need. I hope the Minister can either talk to my noble friend’s question as to the timing and mechanics of keeping the dashboard up to date or give us a detailed letter at some point to let us know how that would happen; that would be helpful.
The substantive debate is around Motion E1. Again, the noble Lord, Lord Anderson, outlined with great detail and clarity the mechanics of how his amendment would work. He made it very clear that the debate in the Commons on the previous amendment has been taken on board very thoroughly in the formulation of this further amendment.
The noble Lord, Lord Jackson, used the word “invalidate” twice, but if he looks at this amendment again he will find that it does not invalidate anything around the purpose and intent of the Bill. What it would do is bring Parliament back into the frame, which is what the majority of your Lordships have been talking about today. That is important. Clause 15 takes very wide powers to revoke and replace retained EU regulation, and as the noble Lord, Lord Anderson, said, the level of this regulation is not normal bits-and-pieces regulation but is essentially primary law. It is not appropriate for statutory instruments to be used to not just change but completely replace primary law without a substantial role for Parliament.
The Minister talked about parliamentary scrutiny being at an appropriate level. It is clear that your Lordships have set out that we do not consider the current level to be appropriate, which is why this amendment is very important. The Government see it as a slippery slope, and will use that argument, but clearly, the exceptional nature of this situation means that it is not so.
Baroness Chapman of Darlington (Lab)
My Lords, I want to speak briefly to Motion E1 and to start by thanking the noble Lord, Lord Anderson, for his work on this amendment and throughout consideration of the Bill. Noble Lords will be aware that the amendment differs from the one we debated in Committee and on Report. They will also know that, since the Bill was first published, we have been concerned that it gives Ministers far too much power without reference to Parliament. Clause 15 was especially difficult for parliamentarians to accept, given the extraordinarily wide-ranging powers to rewrite regulations which, in effect, could have similar power to primary legislation. This point was made by the noble Lord, Lord Anderson, but it is worth repeating.
Motion E1 allows for a committee to consider regulations when they are rewritten by Ministers and, where necessary, to refer them to the House for consideration. This is a more modest suggestion than that proposed and agreed by this House at Report. As we have heard, a not dissimilar process was used for the Civil Contingencies Act 2004 and, as the noble Lord, Lord Lisvane, informed us, the Census Act.
Our view is that this approach is proportionate, not obstructive of the Government’s intentions and should be acceptable to them. We are concerned that the Commons has so far continued to push back on parliamentary scrutiny and views the procedure proposed by this House as inappropriate, but we hope that the newly constructed amendment proposed by the noble Lord, Lord Anderson, will be welcomed by the Government and the other place.
The Commons has expressed a view, but we are returning to it a compromise. We on these Benches consider it to be the appropriate, reasonable and responsible thing to do. Following the question of the noble Lord, Lord Jackson, about whether we are imposing ourselves on the other place, I note that it adjourned a couple of hours ago and seems to have adequate time in its schedule to consider a rather modest suggestion from this House.
Lord Callanan (Con)
My Lords, once again, we have had a full, worthy debate on the Bill. I will keep my response brief, as many of these points are well worn and we have largely covered them in opening the debate.
I say to the House that this is not just an ordinary legislative amendment; it is about the procedures of Parliament. It is not even about the procedures of this House; it is about the procedures of the other place. The amendment seeks for this House to say to the House of Commons, “We think that you should set up by legislation an entirely untested and novel way of conducting your scrutiny of secondary legislation”, when the House of Commons has already said it does not wish to do that and does not think it appropriate. It is entirely inappropriate for us to do that when we have already heard the answer once.
The Bill is vital, and now that we have taken back control of our statute book, it is essential to update and modernise by amending, repealing or replacing those rules and regulations that are no longer fit or were never fit for the UK. This will allow us to create a new pro-growth, high-standards regulatory framework to give businesses the confidence to innovate, invest and create jobs. It will provide legal certainty and clarity across the statute book, ensuring we have consistent rules of interpretation across the UK body of law.
Let me mention briefly some of the points raised in the debate. On Motions B and B1, I thank the noble Lord, Lord Anderson, for his speech. I hope that the House will move forward with Motion B.
Let me reply briefly to the question from the noble Baroness, Lady Ludford, on the timescale for this work. We will add Section 4 rights to the dashboard as identified at least as frequently as every six months, as per the reporting requirement clause that is already in the Bill.
With regards to Motion E1, as I have already said, the Government listened to the views of this House on a number of issues in the Bill. We have already modified the schedule massively to take account of the many concerns that were addressed. I have to say, I consider it an unfair characterisation that the Government have ignored this House—far from it. It is much to the contrary.
On the Motion itself, I can only stress to the House that we believe this proposed novel scrutiny procedure to be unnecessary. The House of Commons has said that it also believes it to be unnecessary. With the reporting requirements already in the Bill and the proven sifting committee procedure that we have already agreed, Parliament will have strong provisions to scrutinise any legislation that is brought forward under this Bill. In the Government’s view, the appropriate balance between the need for scrutiny and the need for reform has been struck. I therefore hope that noble Lords will not push forward this amendment.
Lord Callanan
That this House do not insist on its Amendment 6, to which the Commons have disagreed for their Reason 6A.
Lord Callanan
That this House do not insist on its Amendment 15, to which the Commons have disagreed for their Reason 15A.
Lord Callanan (Con)
My Lords, in moving Motion C, I will also speak to Motion C1, both of which relate to Lords Amendment 15.
We have had myriad discussions on environmental protections during the passage of the REUL Bill. I can only stress once again that the Government have no intention of lowering environmental standards, nor of breaching their international obligations. This not only makes the restrictions that this amendment places on the usage of the reforming powers with regard to the environment unnecessary; it also risks delaying or even preventing reform where it would be beneficial to do so. Indeed, as drafted, this amendment may in fact also make it more difficult for departments to ensure that the policy effect of environmental regulations can be maintained at the end of the year through exercising the restatement power. By doing so, it could actively undermine the purpose that it seeks to achieve.
As I and Ministers in the other place have set out previously, the Government are fully committed to upholding environmental standards. Defra has already reformed retained EU law in a number of key areas through flagship legislation, such as the Fisheries Act 2020 and the Agriculture Act 2020. In addition, since leaving the EU, the Government have also passed the landmark Environment Act 2021 and published strategies including the Environmental Improvement Plan 2023. Any changes to legislation will need to support these ambitions as well as be consistent with our international obligations. Furthermore, Defra has in many areas already reformed its retained EU law to streamline and update it without diminishing—in fact, strengthening in some cases—our levels of environmental protection.
We are very clear that this sets a direction of travel on environmental regulation that makes this amendment unnecessary and, as I said, the amendment may make it more difficult to reach the ambition on environmental protections that I am sure is shared widely across the House. I therefore ask the House to support Motion C and the noble Lord, Lord Krebs, to withdraw his Motion C1.
Motion C1 (as an amendment to Motion C)
Lord Krebs
At end insert “, and do propose Amendment 15B in lieu—
“Environmental protection (1) Regulations may not be made by a relevant national authority under section 12, 13, 15 or 16 unless the relevant national authority is satisfied that the regulations do not— (a) reduce the level of environmental protection arising from the retained EU law to which the provision relates; (b) conflict with any relevant international environmental agreements to which the United Kingdom is party. (2) Prior to making any provision to which this section applies, the relevant national authority must— (a) seek advice from persons who are independent of the authority and have relevant expertise, and (b) publish a report setting out— (i) how the provision does not reduce the level of environmental protection in accordance with subsection (1), and (ii) how the authority has taken into account the advice from the persons referred to in paragraph (a) of this subsection. (3) In this section “relevant international environmental agreements” includes but is not limited to— (a) the UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus, 25 June 1998); (b) the Council of Europe’s Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979); (c) the UN Convention on Biological Diversity (Rio, 1992); (d) the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979); (e) the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR, 1992); (f) the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar, 1971).””
Lord Krebs (CB)
My Lords, my proposed new clause represents a simplified and shortened version of the amendment passed by your Lordships’ House on Report on 15 May. Before I explain the simplification, I want to thank the noble Baroness, Lady Neville-Rolfe, and officials from the Bill team for their helpful discussion—although I am disappointed that we did not manage to reach a compromise, which I had hoped we would be able to do.
I will briefly recap the purpose of the amendment and explain the differences between my new proposal and the previous version. The core purpose remains the same: to ensure that any changes to EU laws do not dilute environmental protection or contravene relevant international environmental agreements, to ensure that expert advice is sought and to ensure transparency by requiring the publication of an explanation of how any changes do not reduce environmental protection and how expert advice supports this assertion.
The principles embodied in the amendment—non-regression, expert advice and transparency—are so non-controversial that I am at a loss to understand why the Government find them unacceptable. The new amendment differs from the version on Report in three principal ways. First, it leaves out food standards and is concerned exclusively with environmental protection. I would have preferred to leave food in, but the chair of the Food Standards Agency said it was unnecessary, and I defer to her advice. Secondly, the requirement to consult experts is less prescriptive than in the earlier version and is modelled on the wording in Sections 112(7) and 4(1) of the Environment Act 2021. Thirdly, acknowledging a point made on Report by the noble Lord, Lord Benyon, the new version of the amendment recognises that the list of international environmental agreements is not exhaustive; they are simply examples.
What are the Government’s arguments against the amendments? On Report the noble Lord, Lord Benyon, for whom I have the highest regard, said that my amendment was “burdensome” and “unnecessary”. As my noble friend Lord Kerr of Kinlochard pointed out to me, it is difficult for the amendment to be both at once. If it is unnecessary because it happens anyway, it cannot be burdensome. If it is imposing an extra burden on Ministers by introducing further steps required before changing the law, that may well be a good and necessary thing.
In explaining in the other place why the amendment should be rejected, the Solicitor-General said:
“Ministers have made it clear repeatedly at every stage of this Bill’s passage in both Houses that we will not lower environmental protections or standards”.—[Official Report, Commons, 24/5/23; col. 328.]
The Minister made essentially the same point a few moments ago. The question for me is whether the assertions that Ministers have made are matched by the reality. If they are not, surely there is a case for securing an extra layer of guarantee in the Bill.
What does the Government’s own statutory watchdog, the Office for Environmental Protection, say about current environmental standards? Are the Government living up to their promises? The 2023 statutory report from the Office for Environmental Protection, Progress in Improving the Natural Environment in England, 2021/2022, makes for grim reading. It says:
“We have little good news to report … We assessed 32 trends across the breadth of the natural environment; nine trends were improving, eleven were static, and eight were deteriorating … We assessed 23 environmental targets and found none where Government’s progress was demonstrably on track … Overall, we do not think the current pace and scale of action will deliver the changes necessary to improve the environment in England significantly, as required by the Environment Act 2021”.
It is no use saying, “We already have an Environment Act, and therefore the amendment is unnecessary”, because the Government’s own watchdog is saying that action is not matching the rhetoric. We are not on track to meet the targets in the Environment Act. While I have the highest confidence in the noble Lord, Lord Benyon, as an Environment Minister and in his commitment to the environment, the OEP’s report shows that, more widely, the Government are failing miserably to protect our environment.
Furthermore, this is about the longer term. As was said in a previous debate, even if present Ministers may be committed to not diluting environmental standards, how do we know what future Administrations might decide to do? In its briefing for this debate, the Law Society said:
“It is imperative that business and the public can be certain that following the revocation of the EU laws, environmental protections and standards are upheld. Uncertainty is not only detrimental to the UK’s transition to net zero but also this country’s status as an attractive place to do business. Unless these standards are protected in law, we are concerned that future administrations could roll back on our commitments, thus creating uncertainty”.
In my view, there is thus an indisputable case to add a clause that would help to ensure that future changes to retained EU law do not further harm our already badly damaged natural environment. I will listen carefully to the Minister’s reply but, at the moment, my intention is to test the opinion of the House. I beg to move.
Baroness Jones of Moulsecoomb (GP)
I support Motion C1. It is interesting, because all the constitutional arguments we heard earlier apply equally to this Motion. It gives Ministers the powers to delete or rewrite thousands of laws almost without any parliamentary scrutiny.
There is a vast ecosystem of about 1,600 environmental laws that are threatened by this Bill. These laws protect humans, animals and the broader environment. The Minister stood up and—forgive me for using this word —boasted about the Government’s credentials on environmental issues. I am sorry to inform him that, among the environmental lobby within the UK and worldwide, this Government have zero credibility on environmental issues. I am very happy to list them if necessary.
I accept that some of these laws are probably defunct or could be improved; that would be acceptable. What would be unacceptable is for the Government to weaken or delete laws that we need and that protect us and our environment. Although this is a constitutional issue, it is also about life. Forgive me if I am a bit emotional about this, but this is about the health of people and the planet. Without the planet, we do not exist. If we do not support our bees, we do not exist. If we do not think about our food standards, we will cease to exist. So it is incredibly important that this Motion is agreed to. We have to say to the Commons that it has got this dreadfully wrong.
Lord Hamilton of Epsom (Con)
My Lords, on Report I had a bit of a spat with the noble Lord, Lord Krebs, on this issue. It strikes me that it would be very odd if the Government wanted to put the health of their citizens at risk by not adopting these measures, so I am sure that they will. On top of that, not adhering to high food standards would completely undermine our exports to other countries. I do not quite see the point of this amendment and I will certainly vote against it.
Lord Fox (LD)
My Lords, the debate on this amendment has been somewhat shorter. It would be easier to support the amendment from the noble Lord, Lord Krebs, were it not for the very explicit reference to regulatory burden. It is very clear in the Bill as it is now that the regulatory burden cannot increase. It is not clear how it is measured, whether as a particular regulation, a range of regulations or an entire statute book of regulations. But, in total, financial costs cannot go up; administrative inconvenience cannot go up; obstacles to trade or innovation cannot go up; obstacles to efficiency, productivity or profitability cannot go up; and a sanction that affects the carrying out of a lawful activity cannot go up.
It is in that context—the context of the Bill—that those of us who have heard the very reassuring words of the noble Lord, Lord Benyon, whom we all respect in this House, are caused to be suspicious. When the Government kick back so hard and so thoroughly on what I think the noble Lord, Lord Krebs, very rightly characterised as a modest amendment, we become more suspicious yet. The very fact that the Government are resisting this amendment is the reason we need it.
Lord Deben (Con)
My Lords, I wonder whether we could reflect on the House of Commons Select Committee’s report on the state of things at the moment in Defra. One of my worries is whether the Government are in a position, frankly, to understand just where we are on this. After all, it turns out from that very powerful Select Committee report that Defra actually transacted 14 million transactions manually because its systems do not actually cover what needs to be done. In those circumstances, I am not sure that any of us can be sure that the Government can assess where they are on these matters, because of the difficulties which they have with not funding satisfactorily the department which is supposed to deal with this, or any of its agencies such as the Environment Agency and Natural England. In those circumstances, I very much hope that the Minister will be kind enough to help me on this, in his usual charming way—
Lord Deben (Con)
I say that to try to make sure it continues to be a good-natured debate. There is no doubt that many people who are not antagonistic to the Government do not want to rely on the excellence of the present Minister, but want to make sure that future Ministers do this job as he, I am sure, would hope to do it himself. Therefore, the question here is: given that we have doubts about the efficacy of the department most responsible for it—not because of our own concerns but because of the House of Commons Select Committee—and given that he will surely want other Ministers to follow him in the attitudes which he has displayed, would it not be more sensible to put this into the law, as indeed the Law Society itself has suggested? I think I am right in saying that every exterior independent body, including the Government’s own watchdog on this matter, agrees. I remind the House of my own interests, as declared in the register of interests: not only the things I do outside but also my chairmanship of the Climate Change Committee. I just feel that the world would be more assured that the kind of attitudes which we have heard from the noble Lord, Lord Benyon, for example, will be the attitudes enforced in the future. That is all we are asking, and I do not quite understand why that is unreasonable.
Baroness Lawlor (Con)
My Lords, I listened with great interest throughout Committee to the noble Lord, Lord Krebs, and his very reasonable and constructive proposals for protecting our environment. But it is time to move on to UK law, which is more transparent and will save the taxpayer the cost of having to pay for a dual system of EU and UK law. Yes, we are already committed by international obligation to our international treaties, but it is ironic that many of the problems which we hear considered have arisen under this dual system of arrangements. I am afraid that I will not support the noble Lord’s amendment. I hope the Government will get on with it, and we will move to restoring UK law over this vital environmental sector so we can all have the protections we need for the environment and hold the Government to account.
Baroness Hayman of Ullock (Lab)
I thank the noble Lord, Lord Krebs, for bringing this amendment forward and assure him of our full support. We heard from him that, in response to comments made by Ministers on Report, the amendment has been altered to focus on enshrining a legal commitment to maintain existing levels of environmental protection, and that he has taken into account much of what was said during that debate.
One of the things that we debated is how much of the Bill has significant implications for environmental law and for many regulations of significant public interest protecting our natural environment and many aspects of our health so, as the noble Lord, Lord Krebs, said in his introduction, and others have said, it has been pretty disconcerting to hear the Government describe commitments to maintain existing levels of environmental protection as burdensome. I find that quite shocking. We know that there is wide-ranging support for an environmental non-regression principle. Amendment 15 would give legal substance to what Ministers have been saying they want to achieve. In fact, in his introduction, the Minister said that the Government are committed to maintaining high environmental standards; the noble Lord, Lord Benyon, said that; and the Minister in the other place, Trudy Harrison, said that. However, as a matter of law, just because somebody says something provides no assurances or protections and, however welcome it is, it cannot bind the hands of any future Ministers, as the noble Lord, Lord Deben, has just said.
The noble Baroness, Lady Jones, mentioned concerns that some regulations that we need may well be lost. I want very briefly to give an example, which is the intention to remove some items relating to the national air pollution control programme—the NAPCP. Removing the obligation to draw up and implement the programme strips away any clear duty on the Government to show how they will reduce emissions in line with their legally binding emissions targets. The Government say that by repealing this item they can better focus on what will help clear the air, such as delivering on the targets set in the Environment Act. In this debate, the Government repeatedly cite the existence of the Environment Act as the reason why such amendments are not necessary, and no doubt the Minister will repeat that shortly. However, if we look at Regulation 10 of the National Emissions Ceilings Regulations 2018 and the associated implementing decision, we see that the Government are clearly required to consult the public as part of the process of preparing and revising the NAPCP. This is in stark contrast with the approach they took with the revised environmental improvement plan earlier this year where there was no public consultation, very limited stakeholder engagement and limited transparency over which stakeholders were contacted—yet the Minister in his introduction held the EIP up as something to which we should aspire. Given that there is currently no provision in the Environment Act to require any public consultation in relation to future revisions of the EIP, how will the Government ensure that the public do not lose their ability to contribute and to have their say?
I also want to look at some of the powers in the Environment Act and how they are constructed. For example, it includes a non-regression commitment in respect of one piece of REUL, the habitats regulations. This empowers the Secretary of State to make regulations to amend part of the habitats regulations
“only if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations”.
So I consider it relevant in today’s debate to look at why the Government opted to include this non-regression safeguard in law.
Lord Callanan (Con)
My Lords, I can keep my response brief. I have lost track of the number of times during the passage of the Bill that we have had this debate. We had it in Committee, on Report and we are having it now—and of course it was repeated in the House of Commons. The House of Commons has heard the assurances of the Government. I suspect that nothing else I can say will change most Members’ minds but, for the benefit of the noble Lord, Lord Krebs, I will repeat the arguments again.
The noble Lord’s Motion proposes to insert additional measures into the Bill on environmental protections. I appreciate the sentiment, and we recognise the importance of maintaining our environmental standards, but the Government do not believe this amendment to be necessary. The UK is a world leader in environmental protection, despite what the noble Baroness, Lady Jones, wants to tell us, and we will continue to uphold our environmental protections. Furthermore, in a debate in the other place, the House of Commons rejected essentially a similar amendment by a majority of 77.
We are committed to our environmental protections. Nothing in this Bill changes that commitment. As I referenced in my opening speech, we have substantive concerns that this amendment, in the way that it is worded, would actually make it more difficult to uphold those environmental commitments. I hope that, if the Motion is moved to a vote, the House will reject it.
Lord Krebs (CB)
I thank all noble Lords who have taken part in this short debate, and I thank the Minister for his response. I will not speak for very long but I want to make three specific comments in response to particular points that have been made.
The noble Lord, Lord Hamilton, referred to food standards. I remind noble Lords that this version of the amendment does not include food, so the noble Lord can relax in his seat and not worry about food.
The noble Baroness, Lady Lawlor, seemed to imply that the amendment would somehow fossilise existing regulations in relation to the environment. It is not about fossilising existing regulations; it is about allowing change and improvement as long as they do not dilute environmental protection and as long as they are made in consultation with, and on the advice of, experts, and that that advice is published. This is not trying to freeze things in 2023 at all. I hope that provides reassurance.
As a final point, in response to the Minister, who repeated the oft-quoted mantra that the UK is “world-leading” in environmental protection, I remind him of what I read out less than half an hour ago from the Government’s own watchdog. It makes grim reading. We are failing on all the targets that the OEP looked at. We are not world-leading; we are struggling. This simple and modest amendment aims to put further legal protections around what the Government claim they are doing anyway; it is simple, modest and straight- forward.
I would not like to be the one going home to explain to my children and grandchildren that I stood up and voted against protecting our environment. I hope that other noble Lords feel the same—that those who have children or grandchildren and are thinking of the future would want to protect the environment on their behalf. Therefore, I wish to ask the House to agree to Motion C1.
Lord Callanan
That this House do disagree with the Commons in their Amendment 16A, do agree with the Commons in their Amendment 16B, and do propose Amendment 16C as an amendment to Lords Amendment 16 in lieu of Commons Amendment 16A—
“(b) each subsequent period of 6 months, subject to subsection (3A). (3A) The last reporting period ends with 23 June 2026.”
“(2A) The plans that must be set out under subsection (2)(c) must include a list of the provisions of retained EU law which His Majesty’s Government intends to revoke or reform.”
Lord Callanan
That this House do not insist on its Amendment 42, to which the Commons have disagreed for their Reason 42A.
Lord Anderson of Ipswich
At end insert “, and do propose Amendment 42B in lieu—
“Parliamentary scrutiny (1) A Minister of the Crown may not make regulations under section 15 unless— (a) a document containing a proposal for those regulations has been laid before each House of Parliament, (b) the document has been referred to, and considered by, a Committee of the House of Commons (‘the Committee’), and (c) a period of at least 30 days has elapsed after that referral, not including any period during which Parliament is dissolved or prorogued or either House is adjourned for more than four days. (2) If the Committee determines that special attention should be drawn to the regulations in question, a Minister of the Crown must arrange for the instrument to be debated on the floor of each House and voted on before the period in subsection (1)(c) elapses. (3) If any amendments to the regulations, whether or not proposed by the Committee, are agreed by both Houses of Parliament, the regulations must be made in the form so amended.(4) If one House agrees amendments to the regulations under subsection (3), the regulations may not be made until the other House has debated and voted on a motion to agree or disagree with those amendments.””
Lord Anderson of Ipswich (CB)
My Lords, it has all been said. This is a Motion on parliamentary scrutiny. I beg to move Motion E1.
Retained EU Law (Revocation and Reform) Bill
Monday 12th June 2023
(10 months, 3 weeks ago)
Commons ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 12 June 2023 - (12 Jun 2023)
16:39 - The House divided: - Ayes: 269 / Noes: 204 - Question accordingly agreed to.
16:54 - The House divided: - Ayes: 269 / Noes: 202 - Question accordingly agreed to.
The Solicitor General (Michael Tomlinson)
I beg to move, That this House disagrees with Lords amendment 15B.
Mr Speaker
With this it will be convenient to discuss the following:
Government motion not to insist on amendment 16A, and Lords amendment 16C in lieu.
Lords amendment 42B, and Government motion to disagree.
The Solicitor General
It is an honour once again to open a debate on this landmark legislation, which we are now very close to passing. We are fully taking back control of our laws, and we are ending the supremacy and special status afforded to retained EU law.
As you explained so clearly a few moments ago, Mr Speaker, there are three motions before the House this afternoon. Let me first speak briefly about the reporting requirements in Lords amendment 16C—and let me also be the first to congratulate from the Dispatch Box my hon. Friend the Member for Stone (Sir William Cash) on being made a Companion of Honour. I thank him for the work that he did on this amendment, alongside Baroness Noakes. It is, of course, important that we continue to update Parliament on our progress in reforming retained EU law, and that is exactly what we as a Government are committed to doing with clause 16. I can reassure my hon. Friend that Lords amendment 16C is only a drafting tweak and the substance is exactly the same as what was tabled by him and supported by so many other Conservative Members, and I ask the House to agree to this final tweak.
Let me now turn to the parts of the Bill on which we have not managed to reach agreement with those in the other place. I will begin with Lords Amendment 42B. I am sure that many Members present will have followed their lordships’ debate closely. However, the Government have not just followed the debate; leading from the front, my right hon. Friend the Secretary of State for Business and Trade has worked to find solutions on the sunset provision to resolve concerns about references to higher courts. As I have already mentioned, we are committed to updating Parliament regularly on the progress of reforms.
It is clear that we have accommodated many of their lordships’ wishes, but I respectfully suggest that now is not the time for their lordships to insist on a novel and untested method of parliamentary scrutiny on the reform powers in the Bill. It has been asserted that the Lords amendment has a precedent in the Civil Contingencies Act 2004, but in fact those powers have never been used. Let me be clear: it is not the Government’s intention for the powers in the Bill to languish on the statute book. My right hon. Friend the Secretary of State has already made the first announcement on regulatory reform and how we intend to reduce burdens for businesses and spur economic growth, and that is only the beginning of our ambition.
Caroline Lucas (Brighton, Pavilion) (Green)
Will the Solicitor General give way?
Mr Speaker
Order. May I just say that I was very sorry to hear the news that the hon. Lady will not be standing in the next general election?
Caroline Lucas
Thank you very much, Mr Speaker.
May I put it to the Minister that it is a bit odd to object to something simply because it will be a novel procedure? Everything is novel once. If we are to improve the effectiveness of Parliament, surely some novel procedures are precisely what we need.
The Solicitor General
May I express exactly the same sentiments as you, Mr Speaker? I know that the hon. Lady’s campaigns will continue outside the Chamber, and I know that she will have plenty to offer between now and the election in any event, not least during this debate. However, I disagree with what she has said, not just because the procedures are novel, although they are. I followed the debate in the Lords very closely, and it is fair to say that it is accepted that these are new measures, but they are also unnecessary, and this is why.
The amendment would unreasonably and unnecessarily delay our important reforms. It would introduce what my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) termed “extra friction” during our previous consideration of Lords amendments. He was right to say that, and right to say that the amendment would delay the meaningful reforms that can now be achieved as a result of Brexit. I do not believe that the public would accept those delays, and nor, in my view, should we.
Stella Creasy (Walthamstow) (Lab/Co-op)
Will the Solicitor General give way?
The Solicitor General
I will give way to the hon. Lady, because that will give her an opportunity to apologise for getting the Government’s position on pension reforms so wrong.
Stella Creasy
I hope that the Solicitor General will speak to his colleagues in the Department for Business and Trade, who made it clear in Committee on, I believe, 22 November that they were intending to abolish the Bauer and Hampshire judgments. Perhaps he will ask his colleagues to amend that, rather than suggest that I was misleading the House.
I also note—and it is welcome—that the Solicitor General now accepts that there is a parliamentary precedent for amendable statutory instruments. He talks about “friction”. Another way of describing that would be Members of Parliament holding the Government to account if they come up with proposals that their constituents do not like. When Ministers were in front of the European Scrutiny Committee, they seemed to think that it was an impertinence for MPs to have concerns and questions about what might be on the list of measures to be deleted. Is this another name for what we are calling parliamentary sovereignty?
The Solicitor General
No, not at all; the hon. Lady is wrong, I am afraid. I will come in a moment to the detail of the parliamentary scrutiny that is already inbuilt in the Bill and the schedule to the Bill. The hon. Lady’s comments over the weekend about pension reform were also wrong, and that is important because people will have been scared by what she said. The Hampshire case clarified that all scheme members should receive at least 50% of their expected benefits in the event of the employer’s insolvency. The Secretary of State has been crystal clear on this and we have announced our intention to retain the Hampshire judgment beyond the sunset clause. The hon. Lady was wrong on that and she is wrong on the provisions in the Bill. I will explain why in a few moments.
Mr Toby Perkins (Chesterfield) (Lab)
I am one of the relatively few Labour Members of Parliament whose constituents voted by a majority to leave, and the issue of parliamentary scrutiny was often raised during the referendum. I have had a number of them get in touch to tell me how disappointed they are that we are now not going to be getting the parliamentary scrutiny that we were promised as one of the benefits of Brexit.
The Solicitor General
I am sorry to say that the hon. Gentleman is wrong, and I will explain why in a few moments, but I am grateful for his intervention because it means that I can re-emphasise the point that demanding this additional scrutiny is not a comfortable position for Labour Members to hold because they had no concerns about the lack of scrutiny during our EU membership.
This amendment is not only novel and untested; it is unnecessary because there are already measures within the Bill. We have already made provision for a sifting Committee and Members will recall the speech from my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones), the Chairman of the European Union Statutory Instruments Committee, who clearly set out the important work that he and his Committee do. He described it as dry, but it is important work that he and his Committee do upstairs to scrutinise this legislation. That provision continues in the body of this Bill.
This will allow a specified Committee in each House to recommend the affirmative procedure for the more substantive powers in the Bill. In this way, either House will be able to ensure that there are active votes on the reforms that this Government bring forward under the Bill. This is significantly more scrutiny than the EU law had when it was first introduced. It is tried and tested. My hon. Friend the Member for Harrogate and Knaresborough chairs that Committee ably and I would like to thank him and all hon. Members who serve on the Committee for their work.
Mr Perkins
With the greatest respect, under the previous arrangement we had Members of the European Parliament doing that scrutiny. It is not really comparable to say that nothing has changed and this is somehow more. Because we have got rid of our representatives in the European Parliament, it is all the more important that these matters are considered, but for the Minister to say, “There is a Committee that deals with this. None of you will hear about it, but none the less its work is important” sounds exactly like the sort of thing that my constituents thought we were getting away from.
The Solicitor General
I am sorry that the hon. Gentleman was not in the Chamber for the exchange when my hon. Friend the Member for Harrogate and Knaresborough gently pointed out that Labour Members had not taken up their places on the EUSI Committee. As Chairman of the Committee, he rightly encouraged Labour Members to take up their places on that Committee and I would add to that encouragement.
The Solicitor General
I will give way but I am conscious that a number people want to speak, so I will then make some progress.
Sir William Cash
With the greatest respect, I just want to say through the Minister to the hon. Member for Chesterfield (Mr Perkins) that, although the European Parliament does its job, the laws are actually made by the Council of Ministers behind closed doors, by qualified majority vote and without even a transcript in Hansard. That is not a basis on which one could make any assumption that we would ever agree to them. It was always done by consensus.
The Solicitor General
Mr Speaker, you were absolutely right to encourage me to take that intervention, and I am grateful to my hon. Friend the Member for Stone (Sir William Cash). I pay tribute to him for all his work in this House. His announcement over the weekend came as a great sadness, shock and surprise. I know that he has a lot of work to do between now and the next election, and I look forward to these debates in the future. Thank you for encouraging me to take his intervention, Mr Speaker.
Lords amendment 42B is both unnecessary and potentially detrimental to this country’s environmental standards. We have made a commitment at every stage of this Bill that we will not lower environmental protections, and that we will ensure the continued implementation of our international obligations. Indeed, I am reminded of the rare moment of agreement between my hon. Friend the Member for North Dorset (Simon Hoare) and the right hon. Member for East Antrim (Sammy Wilson) during our last outing. They found common accord, and they are both right that there is simply no reason or incentive for the Government not to uphold our high environmental standards, of which we are rightly proud. It is simply not necessary for this commitment to be on the face of the Bill, especially not in a way that would make it more difficult to achieve any meaningful reforms that benefit the UK.
I will not try your patience, Mr Speaker, by listing all the Government’s post-Brexit achievements, but some of the steps we are taking go above and beyond EU law. [Hon. Members: “What are they?”] The Opposition are encouraging me to do so, and who am I to say no?
The Solicitor General
I am keeping a very careful eye on timings and on your indication, Mr Speaker. I will not abuse your patience, but let me list some of the important measures passed by this Government. Our environmental standards are now world leading, thanks to the Agriculture Act 2020, the Fisheries Act 2020 and the landmark Environment Act 2021, which will deliver the most ambitious environmental programme anywhere.
Furthermore, Lords amendment 42B is not just unnecessary but may even endanger our environmental standards. The amendment would make it harder to retain the effect of existing regulations, as it applies to restatements of retained EU law. [Interruption.] It is very timely that the Secretary of State for Environment, Food and Rural Affairs arrives in the Chamber just as I am championing all the steps that she and her predecessors have taken to protect and lead the world through our environmental standards.
Lords amendment 42B would add friction. It is unnecessary and potentially self-defeating. The Government want to ensure that we capitalise on the UK’s competitive advantages now that we are no longer restrained by our membership of the EU. I invite the House to support the motions in the name of the Secretary of State for Business and Trade.
Justin Madders (Ellesmere Port and Neston) (Lab)
Here we are again. It has been nearly nine months since the Bill was introduced, during which time five different members of the Government have spoken in support of the Bill from the Front Bench, most of them making one appearance before never being seen again. I congratulate the Solicitor General on making it back for a second appearance.
Although, of course, the question of retained EU law needs to be addressed, our main contention is that the way in which the Bill attempted to do that was reckless, unnecessary and undemocratic. To some extent, we have seen an end to that kamikaze approach, which is of course welcome, although it does not mean that all our concerns have been dealt with.
Mr Perkins
The point that my hon. Friend makes light-heartedly is actually very relevant. The truth is that we have seen chaos on the Government Benches. We have seen Ministers speak extremely boldly about the Bill’s powers, only to water them down when they come face to face with reality. Does not the farcical way in which this Government have conducted their affairs give people real concern, including about what is in this Bill?
Justin Madders
I am grateful for that intervention. I note that, again, the Secretary of State for Business and Trade is not here to defend the Bill in its current form. We have consistently been told by businesses throughout the Bill’s passage that it is so chaotic that nobody can possibly plan ahead. How can any business prepare for the future if it cannot understand what the rules will be six months hence, never mind 12 or 18 months into the future.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
Many of my Slough constituents are concerned, because they feel that non-regression, upholding international treaties and consulting experts should be wholly uncontroversial. Does my hon. Friend feel that, with the Government’s approach, we will merely have more watering down of our high environmental standards, and that such watering down must be blocked at every opportunity?
Justin Madders
I thank my hon. Friend for that intervention, as he sets out what this amendment is attempting to secure, which is a bit of security.
I shall make some progress, as I am aware that a number of people wish to speak. As we have heard, Lords amendment 15B seeks to introduce conditions on some of the powers in sections 12, 13,15 and 16 relating to the environment. As my hon. Friend says, it stipulates that any regulations made may not
“reduce the level of environmental protections”
or
“conflict with any…international environmental agreements to which the United Kingdom is party”.
It also sets requirements on consultation. Given that the Government are supposedly committed to maintaining the highest environmental standards, one might think that those conditions are uncontroversial; they are the actions I would expect any Government committed to maintaining high standards would want to undertake. That view is shared by a range of experts, including, but certainly not limited to, the Government’s own watchdog, the Office for Environmental Protection. Its written evidence submission endorsed all three of those suggested conditions, with its chair, Glenys Stacey, remarking:
“Worryingly, the Bill does not offer any safety net, there is no requirement to maintain existing levels of environmental protection.”
The Government are not listening to their own watchdog and have instead chosen to refer to those conditions as “burdensome” and “unnecessary”. I have yet to hear any rational explanation as to how the conditions in the Lords amendment can be both of those things at the same time; if these steps are, as the Government tell us, things that they would be doing in any event, how can they possibly be an additional burden as well? When we are met with illogical and unconvincing arguments such as that, we are right to be concerned. I note the assurances given at the Dispatch Box on this and previous occasions, but, as we have seen with this Bill in particular, Ministers come and go, and if we were to rely on everything said at the Dispatch Box as having the same weight as actual legislation, Acts of Parliament might be half the length that they are. There is a reason we do not do that.
Of course, we can all imagine what might be said by the public if the worst was to happen and environmental standards were to slip as a result of this Bill. We would say to our constituents, “But we were promised this wouldn’t happen” and our constituents could point to the 40 hospitals not having been built, Northern Powerhouse Rail not having been started, the ditching of the Animal Welfare (Kept Animals) Bill or any number of other broken promises, and they would call us naive at best. So we are right to insist that these protections stay in the Bill.
Lords amendment 42B tackles one of the most controversial clauses, the one that the Hansard Society referred to in its written evidence as the “do anything we want” powers for Ministers. The Hansard Society is not prone to exaggeration and its comments have merit. As we know, clause 15 empowers Ministers to revoke regulations and not replace them; replace them with another measure which they consider appropriate
“to achieve the same or similar objectives”;
or
“make such alternative provision as the…national authority considers appropriate”.
In the face of such untrammelled concentrations of power in the Executive, Lords amendment 42B seeks to put a democratic check on the use of those powers. Actually requiring a Minister who wishes to use these powers to set out their proposals before each House is entry-level transparency that should have been part of the procedure to start with. Allowing a Committee of this House to consider them seems a fairly uncontroversial suggestion, even if some people now think that Committees cannot act in a bipartisan way. Of course, giving a Committee the power to request a debate on the Floor of the House will be reliant on its making the judgment that such a debate is necessary, but this does secure a degree of scrutiny over ministerial decisions. It also hands at least some power back to Parliament, which was, of course, for some, what Brexit was all about.
Stella Creasy
Does the debate about the Bauer and Hampshire judgments not make the case that my hon. Friend is making? I hope Mr Speaker will forgive me here, but the Minister said that I was wrong and that is perhaps unparliamentary. Let me read into the record what the shadow Minister and I heard in Committee. The Minister of State, Department for Business and Trade, the hon. Member for Wealden (Ms Ghani) said:
“the Department for Work and Pensions does not intend to implement the Bauer judgment through the benefits system…The Hampshire judgment is a clear example of where an EU judgment conflicts with the United Kingdom Government’s policies. Removing the effects of the judgment will help to restore the system to the way it was intended to be.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 168-69.]
If Ministers are changing their minds now about using the powers in this Bill to revoke these protections for the pensions of our constituents, it is only because they have been caught out doing it and using the powers in this Bill. Does this not make the case—
Mr Speaker
Order. I am not going to have this private debate carrying on. You have put it on the record and the Minister has put it on the record, but people can be accidentally wrong. I do not need a lecture on what is wrong and what is not. In the end, you have put the case, and we have a lot of people who want to speak in the debate, including yourself.
Justin Madders
I remember that exchange very well, not least because it was on my 50th birthday. It certainly shows the importance of having proper scrutiny and transparency about ministerial decisions, which has been one of our main critiques of this bill throughout. I remind hon. Members that it was said in 2016 that we needed to reassert parliamentary sovereignty and that that was what taking back control was all about. However, I said in Committee, “we” does not mean
“Ministers sitting in rooms on their own, answerable to nobody, and under no requirement to explain their actions”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 126.]
“We” means this place.
I know that the oft-repeated and erroneous argument, which we have heard again today, that those laws were passed without proper democratic involvement in the first place has been offered as a reason why we should not follow such a process now. To make a pithy comment on that, two wrongs do not make a right. I would have expected those who were shouting the loudest about our sovereignty back in 2016 to be with us today.
The lack of transparency and desire to bypass scrutiny that are the hallmark of this Bill demonstrate a lack of confidence from the Government in their own programme. It is clear that either they do not know, or they do not want to tell us what they intend to do with the powers conferred by the Bill. Even the addition of a schedule listing regulations to be revoked does not really offer any clues about how the Government plan to approach the bulk of retained EU law.
In her recent appearance before the European Scrutiny Committee, the Secretary of State for Business and Trade referred to that list as merely containing regulations
“that are redundant, rather than things that are holding us back”,
meaning that we still do not know what the substantive changes will be. Maybe one day we will find out what exactly it is that has been holding us back.
If the Government cannot tell us what they intend to do with the powers they hand themselves under this Bill, and they clearly do not want the light of scrutiny shone on their intentions, it is even more important that this amendment is passed. It also suggests that this Government are not confident about what the public or indeed Parliament will have to say when their intentions become clear. That is why as many safeguards and as much transparency as possible should be injected into this Bill.
In closing, I refer again to the evidence given by the Secretary of State to the European Scrutiny Committee, because if anything sums up the shambolic approach to this Bill by the Government it is her comment:
“The retained EU law Bill became a process of retaining EU law. That is not what we wanted.”
I do not know whether to laugh or cry at such comments. What I can say for sure is that, if anything sums up just what a tired, out-of-touch and broken Government we have, that is it.
Sir William Cash
I have a strange sense of déjà vu about the speech I have just heard from the hon. Member for Ellesmere Port and Neston (Justin Madders). I am afraid that he does not quite get it. I have made the same point with regard to the hon. Member for Chesterfield (Mr Perkins); the fact that I happen to rather like him, and always have done—I come from Sheffield—does not alter the fact that I fundamentally disagree with him.
The way the House of Lords has dealt with these amendments demonstrates that the Lords are determined to try, by hook or by crook, to obstruct the House of Commons, which is the democratic Chamber in these matters as far as the electorate is concerned, in pursuance not only of the referendum on leaving the European Union, but also of the Bill as a whole—which I do support, as it has moved forward. I had some reservations in the past, but we have made a lot of progress.
I congratulate the Minister very much on his calm common sense and the way he has approached the subject. I also agree with the tweet he referred to. Parliamentary counsel are rather like holy priests, if I may say so, and they have their own particular way of wanting to deal with something. I would not want in any way to criticise the way they have gone about this, because it comes to exactly the same thing that I proposed when the Government adopted my own amendment.
Coming to the question of parliamentary scrutiny, the new clause introduced by Lords amendment 42B places a prohibition on the making of regulations under section 15, unless
“a document containing a proposal for those regulations has been laid before each House of Parliament”.
It goes on to say that the document is to be
“referred to, and considered by, a Committee of the House of Commons”.
That sounds suspiciously as if it might fall within the remit of the European Scrutiny Committee. If it does not, that creates a problem with our Standing Orders for a start. It is not defined, so what on earth that Committee will do, and how it relates to the functions of the European Scrutiny Committee and/or to any other Committee of the House of Commons, is so completely vague and impossible to understand. That, in itself, condemns that new clause.
The amendment goes on to say:
“a period of at least 30 days has elapsed after that referral”.
When it turns to the next question, it says:
“If the Committee—
the Committee of the House of Commons—
determines that special attention should be drawn to the regulations in question, a Minister of the Crown must arrange for the instrument to be debated on the floor of each House”.
They “must”; there is no option on that.
Suddenly, we move into a completely new dimension for each House. If the Committee—my own Committee, were it to be the Committee in question—makes a decision about special attention, that is then thrown to the mercy of each House of Parliament. We know from everything that we have heard over the last few weeks on the Bill that there is an intransigence—a stubbornness, if I may say so politely—from our noble Friends in the House of Lords in the face of any attempt to get rid of retained EU law in the way in which we are proposing, through revoking or reforming it.
By taking that particular course in the clause, all the Lords are doing is saying, “We want to take back control. We want to put this whole procedure into a cul-de-sac that will be effectively controlled.” I would go so far as to say that, by the sounds of it, the House of Lords will try, to use that hallowed expression, to “take back control.” They will try to take back control of this to the House of Lords. That is what this is all about, and we are not so stupid that we will fall for this one, let me assure the House.
Let me come to the question of regulations and statutory instruments, and the way in which they areb made. I have spent a lot of time on that, as I have said before. I am most grateful to you and others, Mr Speaker, for referring to the fact that I will retire from the House of Commons at the next election, but I have a lot of work to do between now and then. This debate is part of that, by seeing the Bill brought to a conclusion through its elimination of the supremacy of EU law and the opportunity to diverge and create economic growth and competitiveness. All these matters are part of that.
I find it really astonishing that the Lords do not seem to understand—it is as if they are trying to take us for fools, which I can assure the House we are not. I have sat on the European Scrutiny Committee since way back in 1985. Day in, day out, every single week, regulations and statutory instruments were brought in to implement decisions made behind closed doors in the Council of Ministers, as I said to the hon. Member for Chesterfield. Those decisions were made by majority vote of the other countries—there used to be fewer but then the number went up to 27—and without even a transcript. I challenge any Labour or SNP Member to get up and say that they think that is a very good idea, and that they would love to tell their constituents that they should be governed in that way, with all their laws for made for 50 years by that method of completely closet operation and without a transcript. It is unbelievable.
What are we doing here other than having a debate in this Chamber? I challenge Opposition Members to go out and say to their constituents: “We want to have you governed in that manner, behind closed doors and without a transcript.”
Sir William Cash
It is no good the shadow Minister shaking his head, because he will not ask that question and nor will the hon. Member for Chesterfield, because their constituents would very quickly turn around and tell them to get lost.
Justin Madders
I just point out to the hon. Gentleman that my constituents would wonder why we are rehashing the arguments from 2016 when we have this Bill before us today.
Sir William Cash
I am so delighted that the hon. Gentleman asks that question. It is very simple: we had a general election that gave us a massive majority on the basis of getting Brexit done—and this gets Brexit done. We are doing exactly what so many of his constituents voted for, even though, I am sure, he got a reasonable majority. There are people who are now not in this House and were driven out because they did not respect the views of the people in that referendum. That is a very simple and straightforward answer to his point.
Hywel Williams (Arfon) (PC)
The hon. Gentleman is referring to processes in the past in Brussels, but the Lords amendment suggests that a Committee should examine such matters. I believe that in this place Committees meet in public.
Sir William Cash
With respect to the question of how the laws are made in the first place, that is what I am saying. The reason the Bill is so important is the need to overtake and, effectively, deal with the mistakes made in the past, over that 40 or 50-year period, whereby the laws were made in the way that I have described—and they were. They were done by consensus, because everybody knew before they walked into the room that the majority vote would work against them. I have spent a lot of time scrutinising such things—I was going to say a lifetime, and I almost have—and all that I can say is that nobody would seriously doubt that that is how the system operated at that time.
We are talking about these laws because we want to revoke or modify them. We are not going to get rid of all of them—we will modify some and revoke others, and that will be by a simple test. That test will not be whether or not it was decided by 27 other countries to which we were subjugated by law—[Interruption.] We did that in the European Communities Act 1972, which was a great mistake. We have moved to a situation as the result of a general election in this country, the result of which is that we are allowed to make our own laws here in this House on behalf of our constituents. I think that is a very reasonable position. It is not only reasonable but absolutely essential, because it is about democracy and sovereignty and self-government. That is what the people decided in the referendum.
Stella Creasy
And I thank the hon. Gentleman for it. I note his comments, although I also note that the legislation already provides for a Committee to look at the statutory instruments generated by the Bill. That is not a novel procedure. He says that it will be this House that determines matters, but it will only be this House reflecting what Ministers bring to us in a Delegated Legislation Committee, will it not? Unless Lords amendment 42B is passed, MPs will not be able to influence the content of an SI. The hon. Gentleman says that he did not like that in the European Parliament, so why does he want to take back control to Downing Street rather than to this Chamber with a process whereby, when changes are substantial, MPs have influence over them?
Sir William Cash
First, I did not say the European Parliament; I actually said the European Council of Ministers. There is a big difference and I am sure that she understands that, because that is where the law making is done. Secondly, with great respect, it is a bit disingenuous to suggest that this will all be decided by the Committee. I think it would be my Committee that would do this, but if we leave that aside the real point is that the amendment goes on to say that even if that Committee
“determines that special attention should be drawn to the regulations in question, a Minister of the Crown must arrange for the instrument to be debated on the floor of each House and voted on”.
That is the point. In other words, the lock is created by the House of Lords—
Sir William Cash
Of course it is. If I may say so to the hon. Lady, with the greatest of respect, that is the intention that lies behind it. I know that she is quite obsessive about this point, but, with the greatest respect, she does not seem to quite understand how it is— [Interruption.] I am trying to be factual about this. The fact is that when the original regulations were made, they were made as statutory instruments implementing the laws made in the way I have just described, behind closed doors and so on.
Those regulations came in that way and it is perfectly legitimate, in the light of the fact that those laws were not made in the manner in which we would traditionally expect them to be made and, constitutionally, should be required to have them made, which is by this House, these Members of Parliament—including current Opposition Members of Parliament if they are in government—and for those decisions to be taken democratically on behalf of our electorate, who happened to say that they wanted to leave the European Union and endorsed it with a general election in 2019. The position is perfectly clear: what we are doing in this Bill is not only completely legitimate, but constitutionally correct. That is a big difference. Robin Cook once said to me, “Legitimacy is one thing, Bill; constitutionally, it is quite another matter.” That is not a constitutional way of doing things. What came into this Parliament and affected the voters of this country for 40 or 50 years was done in a manner that was completely, totally and utterly objectionable in democratic terms, because those laws were not made by our voters and our Members of Parliament representing those electors in this House.
I will simply say that I am not going to buy into this at all. I think I have probably made myself pretty clear but, having said that, I recognise the way in which the Minister has handled the Bill. I am extremely impressed and grateful to him for not only his comments, but the fact that he has handled the Bill so well.
Mr Deputy Speaker (Mr Nigel Evans)
Congratulations on your latest recognition, Sir Bill.
The debate finishes at 4.39 pm, and Members can see how much interest there is. Alyn Smith is next, and I have to put the question at 4.39 pm, irrespective. All I would ask now is for some time discipline, in order to get as many views in as we possibly can. I call Alyn Smith.
Alyn Smith (Stirling) (SNP)
Thank you, Mr Deputy Speaker. I would be perfectly happy to summarise the Bill in one word, if you would allow me some unparliamentary language, but I will be brief.
The SNP’s position on the Bill is well rehearsed. We regret this piece of legislation. We do not think it is necessary. We do not like what it is trying to achieve, because we think targeting laws on the basis of where they came from, rather than what they do or how effective they are, is a poor way of doing it. We also are not interested in fighting old battles, but the Bill is all about fighting old battles—that is where it has come from.
I will focus only on amendments 15B, 16C and 42B. During the Bill’s passage, we of course saw the gutting of its major provision—the sunset clause—so it is not as bad as it might have been, but we think it remains a significant blank cheque for Ministers, with insufficient scrutiny. Ministers want as much power as possible, with as little scrutiny as possible. Ministers in any Parliament want that, but I think it is perfectly legitimate for the House here to demand greater scrutiny than we have seen.
We on the SNP Benches are particularly concerned—it staggers me that this has not been mentioned throughout the debate—that the Scottish Parliament and the Welsh Senedd have not consented to the Bill. I have much respect for a number of people on the Government Benches, but I would gently say that, if one wants to talk about a precious Union, it is quite important to observe it. We have yet to hear a proper answer to that point. We have had various reassurances, but we are not going to see sufficient protection in the Bill. We are concerned that this Bill, when it becomes an Act, is going to be used to undermine the devolution settlement that was endorsed by the people of Scotland and the people of Wales. We think that is a poor way of making law.
On amendment 15B, which deals with environmental standards, I found much to agree with in how the Labour spokesperson, the hon. Member for Ellesmere Port and Neston (Justin Madders), presented it. We are taking the Ministers at face value that we do not want to see a regression from international standards—the standards that we have. Let us put that in the Bill. We think that is a proportionate and workable thing to do, and I do not see how it would fetter the Government to any great extent. We are glad to see a bit of a compromise on amendment 16C, although I have to say that it is pretty weak beer when it comes to clarity on the EU law dashboard and its operation. We will not stand in its way.
On amendment 42B, which would provide for greater parliamentary scrutiny of future revocations of EU law, I think it is workable. I urge Members on the Government Benches to think hard about the fact that enough people in the House of Lords and in this place think it is necessary, as part of the Bill, which gives Ministers a lot of power, to find a new way of scrutiny. I accept the point that it is a novel way of doing things, but we think that is proportionate, and I think history will vindicate us on that view.
Mr Deputy Speaker, we regret the Bill. We are not about fighting old battles, but we do not think this is the way to go. Sadly, I think we will see that the Bill is a bad piece of legislation. There are ways of making it better, which we will support, but the Scottish Parliament have not consented to the Bill. Government Members should be in no doubt that the Bill will be passed against the interests of Scotland.
Mr Deputy Speaker (Mr Nigel Evans)
Alyn, thank you for your co-operation—I appreciate it. Whoever is on their feet at 4.37 pm I will ask to resume their seat, because I am going to give the Minister two minutes to respond to contributions.
Sir Robert Buckland (South Swindon) (Con)
It is a pleasure to follow the hon. Member for Stirling (Alyn Smith). His remarks are always couched in a pithy and clear way, but I disagree fundamentally with his point about a legislative consent motion. It is entirely within the rights of the devolved Administrations and their Parliaments to consent or not, but the very fact that a consent has not been granted should not be regarded as either legally or politically fatal to a Bill that clearly deals with the competences that lie here at Westminster.
I am afraid that the characterisation of the hon. Gentleman and the nationalists—the SNP and nationalist parties elsewhere—that this is a power grab away from Cardiff and Edinburgh in favour of Westminster is a complete misreading of the situation. These powers lay in Brussels, at the European level, and they are coming back to the next level of Government. That is not in any way some sort of reverse grab away from the devolved Administrations. It cannot be, and it does not follow. I speak not only using my experience as a lawyer, but as a former territorial Secretary of State. That characterisation has to be resisted at every turn.
I will now deal with the three particular issues that we have before us today.
Sir Oliver Heald (North East Hertfordshire) (Con)
Before my right hon. and learned Friend departs from his remarks in response to the hon. Member for Stirling (Alyn Smith) about Scotland, does he agree that, if laws are passed in Europe, they are a compromise representing the interests of 27 different countries? There is an opportunity for some smart deregulation, and that would be as beneficial to Scotland as to any other part of the UK.
Sir Robert Buckland
I entirely agree with my right hon. and learned Friend. At the risk of invoking the ire of my hon. Friend the Member for Stone (Sir William Cash), the new Companion of Honour, it is right to say that, although consensus was indeed the means by which regulations were agreed by the Council of Ministers, it usually involved the UK and its assent to that consensus. I know that is not quite the narrative that he agrees with, but we risk fighting the old battles that he and I were on either side of.
Sir Robert Buckland
No, we are not going to do that today, but I will end on this basis: my hon. Friend knows I am right.
In my next breath, I want to violently agree with my hon. Friend about his work on the dashboard and the amendment that we now have to make a particular tweak to Lords amendment 16. I entirely support the new clause under Lords amendment 16. The dashboard has been a source of much concern in recent months, which was then reflected by the Secretary of State’s wise decision to change course. That dashboard has to be authoritative, so I am glad to see it in law, but it now needs to work. We need to make sure that it is populated, that the National Archives is very much part of it, that we are not given any more surprises and—my hon. and learned Friend the Minister will get this—that we do not end up with repeal by accident, which is bad for the rule of law, bad for certainty and bad for investment. We all agree on that.
To deal in short order with Lords amendment 15, with the best will in the world, on one level, it seems to be a sincere attempt to reflect the legitimate aspirations of the British people about food and environmental standards. Frankly, they are the aspirations of the British Government, too. It is not right to say that at any time, any Minister on the Treasury Bench under this Government has said that they want to use the Bill as an attempt to railroad the undermining of strict environmental protection and food standards. One therefore has to ask: what is the purpose of this particular amendment? Some of its purpose I am afraid is nakedly political. It seeks to make a political point that imputes to this Government a motive that they just do not have. In addition, it is beset by problems. The particular way in which it is structured, and the requirements for consultation in particular, seem to me to be a litigator’s paradise.
Jim Shannon (Strangford) (DUP)
On the point about the environment and how important it is, the right hon. and learned Gentleman will have got the same circular as the rest of us. It states:
“Many of the laws that could be weakened using the powers contained in the Bill as currently drafted are vital to nature’s recovery. They help improve the quality of our rivers and coasts, keep dangerous chemical use at bay, and protect some of our rarest and most important habitats and species.”
Does he believe that the Minister is going to deliver on that? I think he will, but does the right hon. and learned Gentleman think that as well?
Sir Robert Buckland
Well, answer that! I entirely agree with the hon. Member. There is no evidence at all that this Government seek to take a different course from their stated aim of protecting world-leading environmental protection and food standards. Therefore, we have to ask what the purpose of Lords amendment 15 is. It seems to me that many parts to the amendment would give rise to a significant amount of litigation. I do not think that is at all what the drafters of the amendment want, and it certainly does not help with regard to clarity of the law.
That brings me to new Lords amendment 16C, which, with absolute candour, seems to me to be a step back by their lordships from the previous iteration of that amendment. It is now narrowed down just to clause 15. I understand the concerns that the noble Lords have about the use of the power in clause 15 because it is, on the face of it, a dramatic power that the Government would have. On one level, the power of revocation seems to me to be welcome. I note within it particular caveats about the creation of new functions, particularly the creation of criminal offences. There has been a long-established convention about the use of such powers, and we all have a concern about the creation of criminal offences that are more serious than ones they seek to replace or, indeed, are serious new offences. I note the taxation and public authority restrictions as well, so a lot of the normal restrictions are built into the provision, which are welcome.
What the noble Lords are asking for is more reassurance about the process. I do not criticise them at all for that, because it does not seem unreasonable to me that there should be at least some process, particularly when new regulations are being created. I would gently press the Minister to consider that discrete point. It may well be, in response to anything that I or other hon. Members say, that he has an opportunity to enlarge on that. It does seem to me not unreasonable to ask for that further check and balance. I do not think it is the sort of unwelcome additional bureaucracy that perhaps he and others are concerned about. Fundamentally, we have a duty as parliamentarians to protect the role of this place in particular in the scrutiny of the passage of important new regulations, whatever form they may take.
If we take Brexit out of this and take the temperature right down, I do not think that is an unreasonable point at all. I do not accept the characterisation that a number of noble Lords are embarking upon some mission here to frustrate the approach that the Government are taking in the Bill. It is a Bill I have supported, and a Bill I have said is absolutely necessary as a special mechanism to deal with retained EU law. We all agreed that this was a particular area of law that needed to be held in suspense and then looked at carefully in its individual parts. Lords amendment 16C does seem to me to reflect that and respect that. The other two matters I have dealt with, and I am more than satisfied with the Minister’s response to that, but I do press him on that particular aspect and that particular amendment. I will not trouble the House any further.
Stella Creasy
Getting any detail out of this Government about what they intend to use the powers in the Bill for has been like pulling hens’ teeth. Even now, with the Bill before us today, about to be passed imminently, we still do not know the full effect it will have. I will make a few brief comments.
The right hon. and learned Member for South Swindon (Sir Robert Buckland) talked about the Government’s recognition that we need to know not just the regulations but the direct effect cases that are being deleted. In the other place last week, the Government said they
“will add Section 4 rights to the dashboard as identified at least as frequently as every six months, as per the reporting requirement clause that is already in the Bill.”—[Official Report, House of Lords, 6 June 2023; Vol. 830, c. 1263.]
Nothing has changed since last week, so we still do not know what legal judgments the Government intend to delete—legal judgments that cover multiple rights including employment rights and environmental standards.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am sure the hon. Lady knows what she did; please withdraw any accusation of dishonesty.
Stella Creasy
Of course I withdraw that; I meant to say “open”. I want the hon. Member for Stone to be open, but he has not even bothered to have the courtesy to read Lords amendment 42B. If he had, his objection to the idea of a Statutory Instrument Committee looking at these amendments—[Interruption.] Well, I am sure he has made complaints to the Government, who have already written to the other European statutory instruments scrutiny Committee to say they will be doing exactly that. He opposes the idea of a report about what impact a statutory instrument might have. In any other language that is called an impact assessment; we get them on all sorts of pieces of legislation, but not on this.
Stella Creasy
I have listened to the hon. Gentleman. I listened to him tell us at length about the European Union, but he has failed to tell us why he is opposing an amendment that gives this Chamber primacy over what happens when legislation changes. As the right hon. and learned Member for South Swindon says, it matters.
The hon. Member for Stone opposes the Lords being able to come back with SI amendments. Actually, this House would be able to override them under Lords amendment 42B. If he had bothered to have the courtesy to look at what the Lords had said, and bothered to listen to a former parliamentary Clerk of the House who helped draft it—not a great remainer by any means, but somebody who cares passionately about parliamentary democracy—he would recognise that this is about trying to make the process better. He would recognise that our constituents deserve better than a simple email saying, “We have no idea what’s being deleted and we could not stop it anyway,” because that is the point about SI Committees.
I am done with being lectured that this is somehow about Brexit and that those of us who have concerns about parliamentary democracy in 2023 should look at the 1972 Act, because I can see what could happen in 2024 and 2025, and my constituents deserve better than this. We cannot have a legislative process that simply says we have to trust the chaps and chapesses who are Ministers and in Downing Street to do the decent thing. If the hon. Gentleman had sat in his own Committee and listened to Ministers dismiss his own concerns, he would know the folly of such a position.
Conservative Members will vote down these amendments yet again, and they will go back to their constituents and tell them not to worry, but the truth is that they should be worried because we do not know what rights will be affected. As far as I can see, given that Ministers committed to abolishing them, the only reason why the Bauer and Hampshire judgments are now being kept is because they have been caught red-handed using a Bill to override something they know our constituents would want us as MPs to speak up about. We must never let anybody on the Conservative Benches or who said they were speaking up for democracy through Brexit tell us ever again that Brexit was about taking back control. It is taking back control to Downing Street, not this place, and our constituents deserve to know that truth.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
We will squeeze one more in, but please resume your seat at 4.37 pm. I call Sarah Olney.
Sarah Olney (Richmond Park) (LD)
We welcome these amendments. Despite the Government’s screeching U-turn, the Liberal Democrats are still extremely concerned that this legislation could see around 600 EU-era laws slated for removal by the end of this year alone, with a further 4,000 potentially being scrapped by 2026, each removed without any consultation or vote in Parliament. This brazen attitude poses risks to hard-fought gains in workers’ rights such as holiday pay, agency worker rights, data protection rights, and protection from downgraded terms and conditions when businesses are transferred.
Further, my Liberal Democrat colleagues and I are extremely concerned about the risk that environmental protections for our rivers and natural habitats could be softened should the Government choose to block Lords amendment 15B. The amendment seeks to ensure that the Government could not reduce levels of environmental protection. As the hon. Member for Stirling (Alyn Smith) said, if that is the Government’s intention, why not say so in the Bill? The amendment also seeks to ensure that UK law cannot conflict with relevant international environmental agreements to which we are party. That is extremely concerning to my constituents in Richmond Park.
Thames Water has proposed an extraction scheme to replace water from the river near Ham and Petersham with treated sewage effluent. Should environmental protections that govern water quality be weakened in any way—that may happen should Lords amendment 15B not be agreed to—such schemes would be subject to less scrutiny, which could lead to irreversible damage to the waterways that we all enjoy.
I also speak in favour of Lords amendment 42B, which, if supported by the House, would ensure a debate on the Floor of both Houses on any change proposed by the Government to any legislation under the Bill. That solution would prevent any undemocratic power grab by the Government by ensuring that no arbitrary and binding decisions over the laws that affect us all can be made without following a proper and thorough legislative process.
I urge all colleagues across the House to join the Liberal Democrats in supporting both amendments that we will vote on. In doing so, we will be voting to protect thousands of crucial protections for our environment, food standards and working conditions and to prevent an undemocratic power grab by this Conservative Government.
Caroline Lucas
Thank you, Mr Deputy Speaker.
Lords amendment 42B is a critical amendment to rein in what is quite simply an Executive power grab, with the Bill handing Ministers enormous powers to review legislation with little to no scrutiny and replace it with provisions that they consider to be “appropriate”. I think we can all agree that that word is open to wildly different interpretations.
Government Members should remember that the Bill will give powers not just to this Government but to any future Government, which they may not agree with. Indeed, a legal opinion on the likely constitutional, legal and practical effects of the Bill found that Ministers would be given
“largely unfettered…discretion for…substantive policy changes.”
Lords amendment 42B really matters.
Lords amendment 15B is about ensuring that we have safeguards for environmental protections. If the Government really are serious about saying that they want to protect the environment, why would they not put that into statute and on the face of the Bill?
The Solicitor General
Thank you, Mr Deputy Speaker. With the leave of the House, it is a pleasure to respond, not least to the warm welcome afforded to me by the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders). He missed the previous exchange when my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) noted that Solicitors General both took us into Europe with the 1972 Act and took us out of Europe with the 2018 Act, so there is a certain symmetry to a Solicitor General being at the Dispatch Box for the close of these proceedings.
May I reassure my right hon. and learned Friend on some of his remarks? Not least, he is right that his name was on the Bill when he was Secretary of State for Wales. I am grateful to him for his contributions. I hope to reassure him that parliamentary scrutiny is already well provided for and that the existing sifting procedure is there and set out in schedule 5.
I am sorry to say that the hon. Member for Walthamstow (Stella Creasy) is wrong. The Secretary of State has been clear and explicit that we are retaining those 50% protections. I am grateful to my hon. Friend the Member for Stone (Sir William Cash), and I agree with him. He was absolutely right in his comments about the Office of the Parliamentary Counsel, and about parliamentary counsel being the high priests of parliamentary drafting. He was also right that the Bill will eliminate the supremacy of EU law.
There have been repeated comments about our commitments to the environment and the world-leading standards and environmental protections that we have. It is crucial that we bring this most important Bill to Royal Assent as quickly as possible. We must capitalise on our competitive advantages now that we are no longer restrained by membership of the EU.
I add my thanks to the members of the Bill Committee, who, as has been mentioned, were certainly the finest. We must make the view of the House as clear as possible and avoid any further delay.
Mr Deputy Speaker
Just to direct the House, I am anticipating two Divisions. I hope to be helpful in indicating which amendments are being voted on—we will see.
Retained EU Law (Revocation and Reform) Bill
Tuesday 20th June 2023
(10 months, 1 week ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 145-I Marshalled list for Consideration of Commons Reasons - (19 Jun 2023)
16:04 - Division on Motion A1 - Ayes: 232 / Noes: 187 - Motion A1 agreed.
16:16 - Division on Motion B1 - Ayes: 241 / Noes: 181 - Motion B1 agreed.
Lord Callanan
That this House do not insist on its Amendment 15B, to which the Commons have disagreed for their Reason 15C.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, with the leave of the House, at the same time as moving Motion A I will speak to Motion B.
The retained EU law Bill has once again returned to this House from the other place. I am pleased to say that the other place has accepted the final drafting change to Amendment 16, so that matter is now closed. This amendment significantly adds to the scrutiny that Parliament can conduct on this Bill.
However, the House of Commons has now been very clear, for the second time, that it is firm in its position on the remaining two amendments. Noble Lords asked the Commons to think again, and it has reached exactly the same conclusion. Indeed, the Solicitor-General noted the many ways in which the Government have already moved on the Bill to reflect the thoughts and concerns of this House. Therefore, today I propose Motions to accept the Commons position on the Bill and accede to the wishes of the elected House.
With regard to the other Motions in front of us today, Amendment 42D looks to be loosely based on one of the scrutiny provisions of the Legislative and Regulatory Reform Act 2006. However, its use in that Act relates to the legislative reform order power, which is much broader. It can act on any piece of legislation, including Acts of Parliament, whereas the revoke and replace power in this Bill can operate only on secondary retained EU law—in other words, retained EU law that is not primary legislation. We have taken steps to make clear what this retained EU law is by publishing and updating the retained EU law dashboard, and we will be reporting regularly to Parliament on our intentions to reform it. This will allow Parliament a substantial amount of time to scrutinise and report on reforming legislation, if Parliament wishes to do so. As such, these powers are clearly not comparable in terms of scope.
Furthermore, the legislative reform order process is not time-limited. It is still ongoing and available after 17 years, whereas this power will expire three years and three days from today. This is crucial when you consider how long parliamentary processes can take. Amendment 42D envisages up to 60 sitting days for Parliament to consider and debate proposals for statutory instruments, and potentially time after that for further scrutiny before the SIs can be made. We have supported and encouraged the initiative, which started in this House, to maximise transparency around the Government’s plans for retained EU law reform via regular reports to Parliament. In our view, this additional 60-day pre-scrutiny period is simply not required.
Therefore, the Government cannot accept a requirement that would place such a significant time restraint on the usage of the power. Doing so would substantially reduce the time available for the power to be used, which is clearly not an appropriate balance between scrutiny and reform. The clause currently provides for this balance in a much more sustainable way; the third limb of the power already requires the affirmative procedure by default, and the second limb is automatically pushed to the affirmative procedure under specific circumstances. For all other circumstances, the sifting committee exists to recommend upgrading the scrutiny procedure, if Parliament judges it necessary. For all these reasons, the Government cannot accept the amendment.
On Motion A1, of the noble Lord, Lord Krebs, I am once again clear that Amendment 15D is unnecessary. I and many other Ministers have committed to uphold our environmental protections. Equally, the consultation part of the amendment is also irrelevant, as the Government remain committed to consulting on major policy changes, in line with usual practice. We take Dispatch Box commitments very seriously as a Government and will not shirk away from the commitments we have already made during the passage of this Bill.
This amendment is therefore unnecessary. The Government are clear that we have set a strong direction of travel on environmental regulation with our actions across this Parliament, and nothing in this Bill will change that. I therefore ask noble Lords to support Motions A and B on the Order Paper today. I beg to move.
Motion A1 (as an amendment to Motion A)
“Environmental protection
(1) Regulations may be made by a relevant national authority under section 12, 13, 15 or 16 only if the relevant national authority is satisfied that the regulations do not reduce the level of environmental protection arising from the EU retained law to which the provision relates.
(2) Prior to making any provision to which this section applies, the relevant national authority must seek advice from persons who are independent of the authority and have relevant expertise.””
Lord Krebs (CB)
My Lords, I will be brief, because we have debated this many times before. I will simply explain why I found it necessary to come back yet again with an amendment on environmental protection.
In the previous round of ping-pong, on 6 June, the Minister, in urging your Lordships to reject a previous version of my amendment, said:
“we have substantive concerns that this amendment, in the way that it is worded, would actually make it more difficult to uphold those environmental commitments”. [Official Report, 6/6/23; col. 1271.]
When I heard this, I was puzzled. It appeared that the Minister was saying that the problem was with the wording of the amendment, rather than the substance. I wondered which bit of the wording would make it more difficult for the Government to ensure that their policies do not lower standards of environmental protection.
Was it the non-regression element, requiring the Government to commit to not lowering standards if and when retained EU law is changed? Was it the requirement to consult relevant experts before making changes? We know from the past record that, when experts were not consulted, mistakes were made. Back in 2019, when Defra removed a protection under EU law relating to endocrine-disrupting pesticides, and it was pointed out that it had made a mistake, Defra quickly corrected its mistake and re-introduced the regulation. Was it the requirement for transparency—the need to publish the reasons for any change, and the advice received? Or was it, fourthly, the requirement to comply with international environmental treaties to which the UK is a signatory?
None of these four requirements seems to me to stand in the way of the policies designed to protect the environment, so I decided to try to find out. I requested a meeting with Ministers to help me understand how a change to the wording of the amendment would achieve my objective of ensuring that environmental standards are not lowered, without making it more difficult to achieve this end. However, I regret to say that Ministers were not prepared to discuss this with me or to come up with an alternative form of words. Therefore, I have redrafted the amendment to make it even simpler than before, in the hope that I have succeeded in overcoming the objection the Minister raised last time around.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am going to take the liberty of speaking on this amendment because the last time I spoke on an amendment tabled by the noble Lord, Lord Krebs, he said that he liked me speaking because I made him look more reasonable, so I will do my best now. The Minister said that the Commons is very clear on this. I would like to make a couple of points. First, I very much doubt whether any of them knew what they were voting on, because they do whatever the Whips tell them. Secondly, if it is so obvious that the Government are going to do this, why not just accept the amendment? Given that this has been brought back twice, it is clearly something this House cares very much about. Lastly, if the other end is stupid, it is our job to make it clear that it is being stupid and that we think this is a very important amendment to make to the Bill. Obviously, the Greens will be voting for it.
Baroness Parminter (LD)
I rise briefly to add our Benches’ support, if the noble Lord, Lord Krebs, pushes this to a vote. His amendment is a canary in a coal mine—perhaps a Cumbrian coal mine. You put a canary down a coal mine when you want to test whether essential resources that you rely on are about to be lost, to be snuffed out. This is what this is. It is about not just the essential protections for our much-depleted nature, but the essential protections that we as humans rely on: water, air quality and all the ecosystem services that nature provides.
I use that analogy for another purpose, as well. You do not see the canary in the coal mine, but if you talk to the general public about puffins and other wildlife, and all the things they care for when they see them on TV programmes, they know that they want them protected, and they want the Government to act. But we are here at the coalface, mining through the amendments, and we can see the damage that this will do to the protections for people and the animals and wildlife they care for. We are here to bring that canary to the surface. We should do that and press the matter again.
Lord Hope of Craighead (CB)
My Lords, Motion B1, in my name, raises an issue that has been of great concern to many in this House from the outset in our examination of the Bill: parliamentary sovereignty. The clause that causes particular concern, and to which my Motion is addressed, is Clause 15, headed “Powers to revoke or replace”. All the powers that it contains are exercisable by statutory instrument alone, with no provision for active or meaningful scrutiny by either House. That amounts to what the noble Lord, Lord Anderson, described when the issue was before us two weeks ago—without any exaggeration, I think—as a delegated superpower.
It is worth taking a moment to think about the key words that are used to describe the extent of the powers conferred on a relevant authority by this clause. For our purposes, the relevant authority is a Minister of the Crown. Clause 15(2) states that the Minister
“may by regulations revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives”.
Clause 15(3) states that the Minister
“may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.
The subsection (2) power extends not just to achieving the same objectives but to achieving objectives that the Minister considers to be similar. The decision as to whether they are similar or appropriate, about which there may reasonably be more than one view, is left entirely to the Minister.
Subsection (3) goes even further: it extends to the making of such alternative provision as the Minister considers appropriate. There is no limit here to the objectives that are to be achieved. They do not need to be similar—there is no limit to that extent—so they could be different from those of the secondary retained EU law that is being revoked. Again, there could reasonably be more than one view as to whether the alternative provision, whatever it may happen to be, was appropriate.
It is worth reflecting for a moment on the subject matter of what is open to revocation and replacement in the exercise of these powers. This is not simple, routine stuff for which delegated legislation is unquestionably appropriate. It extends to, among other things, major instruments of policy. It extends to fundamental rules relating to public health, trade and the environment, which were handed down to us by the EU and with which we have lived for several decades. It includes, for example, agricultural support, blood safety, fisheries management, food composition standards, nutrition, resources and waste, and the control of ozone-depleting and radioactive substances. Those are just some examples.
Your Lordships might consider it rather strange, given the nature and extent of what is involved, that neither House of Parliament can play any kind of active role in the scrutiny of these regulations. It really is a take-it-or-leave-it system dictated to Parliament by the Executive. The objections to this, which I need not repeat, have been set out many times, and that is what my amendment seeks to address.
I recognise that the previous amendments, which were moved first by me and later by the noble Lord, Lord Anderson, proposed a system that the Minister was right to describe as novel and untested. What I am now proposing is based on a system, as the Minister has pointed out, known as the super-affirmative procedure, which was enacted by Section 18 of the Legislative and Regulatory Reform Act 2006. I shall explain briefly what this involves.
It applies only to regulations made under Clause 15. It proposes a Commons committee—not a Joint Committee, as previously suggested—to sift regulations made under the clause in the light of an explanation by the Minister as to why the regulation is considered appropriate. If, but only if, the committee reports that there are any regulations to which special attention should be drawn, the Minister must arrange for them to be debated on the Floor of each House. The Minister must then have regard to any resolution of either House and may, but is not required to, propose a revised proposal in the light of what has been resolved. The procedure for approval in both Houses thereafter is the affirmative procedure. Finally, the committee may recommend that the Minister’s proposal should not be proceeded with, but the House of Commons has the last word, as it can reject that recommendation. If it does that, the regulations may be laid.
This is a relatively light-touch procedure, which gives Parliament some measure of oversight of what has been proposed. I offer it as a compromise, in the hope that the Minister, despite the remarks he made at the outset of this debate, will feel able to give it serious consideration. At the heart of it all is an issue of principle, which is of basic concern to this House and the other on their entitlement to take an active part in the major exercise proposed. It is in that spirit that I propose to test the opinion of the House, if necessary, when the time comes.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I would like to detain the House for no more than a minute on this issue. I have spoken about it many times in the past.
I support what the noble and learned Lord, Lord Hope, has said on the principle of what we are looking at. It is very important we remember that my noble friend the Minister said, as a defence of the government position, that the House would have a chance to look at these instruments by means of the affirmative procedure —unamendable, as we know—and that it would have the appropriate back-up information. One of the things that has moved on from the days of just framework Bills is the increasing reluctance of the Government to produce the back-up information—impact assessments and Explanatory Memoranda—in time for the House to do its job properly. The spat we had last week about the Public Order Act regulations was the result of this very question of overcasual behaviour.
My noble friend will say that of course we will have absolutely similar treatment—this is the Government’s argument—for affirmative resolutions as we do for primary legislation. I have the greatest respect for my noble friend on the Front Bench—for his patience, courtesy and diligence—but how he can say that with a straight face absolutely beats me. I am sure that the noble and learned Lord, Lord Hope, has done a very important service for Parliament—this House and the other House—in bringing back this issue for us to consider today.
But then we get to the politics—and politics does come into this. The reality is that the reforms that the noble and learned Lord, Lord Hope, many other Members of your Lordships’ House and I would like to see come about will take place only if they are led by the House of Commons. If that does not happen, the Government will immediately say that this is the unelected House trying to tell the elected House how to do its job. That, I am afraid, will be game over. That is why I voted against the fatal amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb. The House would be unwise, within one day of the Commons having passed a resolution, to immediately pass a fatal amendment.
The brutal truth is that we have been unable to get Members of Parliament in the House of Commons in sufficient numbers to understand what we are driving at: that it is not to do with EU law but is about parliamentary sovereignty, as the noble and learned Lord has said. There are stirrings there but they are only stirrings.
The case before us is further complicated by the fact that this is all going into the Brexit meat-grinder. In the debate in the House of Commons on 12 June, Sir William Cash MP said:
“The way the House of Lords has dealt with these amendments demonstrates that the Lords are determined to try, by hook or by crook, to obstruct the House of Commons, which is the democratic Chamber in these matters as far as the electorate is concerned”.
Later in the same speech he said:
“We know from everything that we have heard over the last few weeks on the Bill that there is an intransigence—a stubbornness, if I may say so politely—from our noble Friends in the House of Lords in the face of any attempt to get rid of retained EU law in the way in which we are proposing”.—[Official Report, Commons, 12/6/23; col. 34.]
Lord Pannick (CB)
My Lords, the noble Lord, Lord Hodgson, makes a very strong case that the House of Commons is dealing with this as a matter of politics rather than of principle. I draw precisely the opposite conclusion to that of the noble Lord: it is precisely for that reason that we should send the matter back. We should emphasise, as the noble and learned Lord, Lord Hope, did, that this is a matter of constitutional principle. It is not a matter of whether you support Brexit or you do not support it. It is not a matter of politics, and we should respectfully invite the other House to focus on what we see as the real constitutional issues that lie behind the Motion proposed by the noble and learned Lord, Lord Hope.
Baroness Meacher (CB)
My Lords, I support the amendments tabled by the noble Lord, Lord Krebs, and the noble and learned Lord, Lord Hope, but in doing so I want to put on record, as a former member of the Delegated Powers Committee, my objection to the Government’s rejection of Amendments 42 and 42B, which proposed a very reasonable process, enabling both Houses of Parliament to debate, vote and make amendments to regulations, but only if those regulations involved a substantial change to the law. The Government’s reaction to Amendments 42 and 42B is yet another example of their determination to bypass Parliament as far as possible and enable substantial law changes to be made by Ministers through delegated powers without the ability of Parliament to make any amendments.
The new amendment tabled by the noble and learned Lord, Lord Hope, is very modest indeed: it applies only to draft Clause 15 regulations, the broadest delegated powers in the Bill. Also, although Parliament will be able to recommend amendments to the regulations, it does not enable Parliament to amend those regulations, only to accept or reject them. Justice takes the view that the amendment tabled by the noble and learned Lord, Lord Hope, is a proportionate and necessary compromise, and should be supported.
Baroness Altmann (Con)
My Lords, I apologise to my noble friends on these Benches, particularly my noble friend Lord Hodgson. I have the opposite conclusion from the one at which he arrived. My noble friend suggests that it could be game over if we vote once again to ask the Commons to think again. As far as I can see, if we agree to this, it could be game over for us anyway. The Government’s arguments are that if we do not accept their position, these changes will delay the repeal of retained EU law and have also argued that sufficient scrutiny measures are already in place. We know that is not the case.
Giving almighty powers to Ministers to bypass Parliament upends the norms that have governed our country and given us the international reputation we have built. The possibility of allowing any Minister to revoke secondary legislation, just because it happens to emanate originally from the EU, confuses the issue of leaving the European Union with the issue of parliamentary democracy. A Minister could make, change or repeal laws or rules that they consider appropriate, according to this legislation, regardless of Parliament’s view and regardless of whether that Minister even has any expertise in the areas so well outlined by the noble and learned Lord, Lord Hope, such as public health, agriculture, fisheries and blood safety.
The noble and learned Lord’s amendment gives the House of Commons the last word. This is an existential issue beyond politics, and I urge noble Lords to think beyond this Parliament too. If we set this precedent now for this Government, presumably nothing can stop that precedent being used against these Benches, or in some other unacceptable manner, in the future. That could happen if we give up the idea that Parliament must make the rules, rather than Ministers.
Baroness Butler-Sloss (CB)
My Lords, over the years I have sat in this House, I have become increasingly concerned about the powers which have been taken by successive Governments, particularly this Government, to the detriment of both Houses of Parliament. It seems extraordinary to me that the House of Commons has not yet appeared to realise the extent to which it, quite apart from us, is being marginalised. This is a very concerning matter. It goes, as my noble friend Lord Pannick said, far beyond the politics; this is a constitutional issue about the rights and powers of both Houses. This is just one example—the latest and one of the most disturbing—which this House has seen over a number of years.
I support both amendments, but particularly the amendment of my noble and learned friend Lord Hope. We really have to remind the House of Commons, the other place, what is happening to it as well as to us.
Lord Hamilton of Epsom (Con)
My Lords, I totally agree with the sentiments of the noble Baroness, Lady Meacher, my noble friend Lady Altmann, and the noble and learned Baroness, Lady Butler-Sloss. However, at the end of the day, the House of Commons is the elected House, and it has the right, as the elected House, to be wrong. I am afraid we have to accept that.
If we go on throwing this back, saying it should think again—and the House of Commons thinks again and comes up with yet another quite substantial majority in favour of the status quo—all we are doing is antagonising the other place unnecessarily. I cannot understand why the other place is giving away the powers that it is—in the way that it seems happy to let the Executive take over everything—but that is what it has decided to do. It is the elected House and we should live with it.
Lord Fox (LD)
My Lords, it is an honour to follow so many wise speeches. I am not going to attempt to lengthen this debate or trump that wisdom. In the various iterations of this discussion, we have benefited from having either the noble and learned Lord, Lord Hope, or the noble Lord, Lord Anderson; today, we have both of them in their places. Although I associate myself with my noble friend Lady Parminter’s comments regarding the amendment in the name of the noble Lord, Lord Krebs, I will speak to the amendment in the name of the noble and learned Lord, Lord Hope.
I want to make just two points. First, the objection in the Commons largely and often dwelt on the unprecedented nature of the amendment that was being brought to them by your Lordships last time. In this case, the noble and learned Lord, Lord Hope, has dealt with that issue. This is not an unprecedented situation. It speaks a little to the point made by the noble Lord, Lord Hamilton: it is not that we are bringing back the same amendment, rewritten in different ways. Your Lordships are being asked to re-present a different proposition to the one that was presented last time. The Leader of the House can shake his head but, if he reads the amendments, he will see that they are fundamentally different; I am sure that he knows that in his heart. We are asking your Lordships not to be stubborn, in the words of William Cash, but to offer the Commons a different alternative. Stubbornness is doing the same thing over and over again. This is not the same thing; it is markedly different.
The other point that I want to address, which no one else has addressed, is the one made by the Minister about how much time this would take. I accept that it may take time, but we have to look at what we are doing. First, we are doing important things that Parliament should retain an ambit over. Secondly, the things that we are dealing with are things that we have lived with for many years—indeed, decades. This is not a burning platform; it is stuff that already exists. We are co-existing with it. It is not something that has a blue light on and must be rushed down the road as fast as possible. The argument about time does not count, in my view.
It is clear from what I and my colleagues have said that we support this amendment and will certainly vote for it when the noble and learned Lord, Lord Hope, presses it.
Baroness Chapman of Darlington (Lab)
My Lords, I will speak briefly because I agree with everything that the noble Lord, Lord Fox, just said. We are grateful to the Minister for what he said in his introduction to this debate and to all noble Lords who have contributed and engaged with this Bill since the beginning. However, we on these Benches think that the Government should join us in insisting on Lords Amendments 15B and 42D, as they now are. We agree with noble Lords that their amendments in lieu are sensible compromises and remain deeply concerned by the potential for the protection of our environment, in particular, to be watered down without such protection on the face of the Bill. It seems slightly odd that the Government have compromised on the fundamental purpose and shape of this Bill in removing the sunset, which was a huge thing for them to do. It is strange that they are now determined to hold out on these two relatively minor outstanding issues, which are about improved scrutiny and environmental protection.
The proposal from the noble and learned Lord, Lord Hope, is a proportionate and necessary compromise. The noble Lord, Lord Krebs, is correct to highlight the inadequacy of the verbal commitment offered by the Minister, which obviously may not stand the test of time. These are important principles. Should the noble and learned Lord and the noble Lord wish to test the opinion of the House, we on these Benches will support them.
Lord Callanan (Con)
My Lords, we have had this debate numerous times now, so the House will be delighted to know that I can keep my response fairly brief. I have responded to all the points made previously because noble Lords have repeated many of the points that they made in earlier debates.
Interestingly, the one person who did not repeat the points that he made in earlier debates was the noble Lord, Lord Fox; I was surprised to hear him say that he will support the Anderson/Hope amendment because, in the previous round, in response to a similar point about endless ping-pong made by my noble friend Lord Hamilton, the noble Lord, Lord Fox, said:
“I respectfully suggest that we are not proposing”
endless ping-pong but that
“we are proposing one more ping and one more pong”.—[Official Report, 6/6/23; col. 1262.]
Unlike some of the sceptics behind me, I have faith in what the Liberal Democrats say. I am absolutely certain that, because that is what the noble Lord, Lord Fox, said last time, he will join us in the Lobby this evening. We have hope yet; I am sure that the Liberal Democrats would not want to go back on their word.
Lord Krebs (CB)
My Lords, I thank the noble Lords who have contributed to the debate on my amendment, as well as on the amendment of my noble and learned friend Lord Hope of Craighead. A key word that was mentioned in the contribution by the noble Baroness, Lady Chapman of Darlington, was “compromise”. When my amendment passed at the last round of ping-pong, I asked Ministers whether we could talk about it and try to find a compromise wording that would satisfy the Government and the majority of Members of this House who supported the previous amendment; but no compromise was forthcoming. I thought that when you have a disagreement among reasonable adults, you talk it through and try to reach a compromise. That is not what the Government are trying to do, so I am left with little option but to test the opinion of the House.
I would also briefly like to thank the noble Baroness, Lady Jones of Moulsecoomb, for fulfilling her duty of making me look reasonable, so I thank her for that. I also thank the noble Baroness, Lady Parminter, for reminding us of the important fact that protecting our environment is of huge public concern. I am sure there will be noble Lords who will want to vote against my amendment, and I would like them to ask themselves whether they would be prepared to stand up in front of a television camera and explain to David Attenborough why they think it is not necessary for this Government to maintain our current standards of environmental protections. I wish to test the opinion of the House.
Lord Callanan
That this House do not insist on its Amendment 42B, to which the Commons have disagreed for their Reason 42C.
Lord Hope of Craighead
At end insert “, and do propose Amendment 42D in lieu—
“Parliamentary scrutiny
(1) This section applies to all regulations proposed to be made under section 15 by a Minister of the Crown which revoke any secondary retained EU law and –
(a) replace it with such provision to achieve the same or similar objectives, or
(b) make such alternative provision,
as a Minister of the Crown considers to be appropriate.
(2) Regulations referred to in subsection (1) may not be made (under the applicable provisions of paragraphs 7 and 8 of Schedule 4) unless a document containing a proposal for those regulations has been referred to a Committee of the House of Commons, together with a statement by the Minister of the Crown which explains why the Minister considers the replacement or the alternative provision proposed, as the case may be, is appropriate, and the other requirements of this section have been met.
(3) If the Committee reports that special attention should be drawn to the proposed regulations in question, then subsections (4) to (8) apply.
(4) A Minister of the Crown must arrange for the proposal for the regulations to be debated on the floor of each House within the relevant period referred to in subsection (5).
(5) The relevant period is a period of 60 days beginning with the day on which the proposal and the corresponding statement were referred to the Committee, not including any period during which Parliament is dissolved or prorogued or either House is adjourned for more than four days.
(6) The Minister making the regulations must have regard to any resolution of either House and to any recommendations by the Committee made during the relevant period.
(7) If, after the expiry of the relevant period, the Minister making the regulations wishes to make an instrument in the terms of the proposal (under the applicable provisions of paragraphs 7 and 8 of Schedule 4), the Minister may do so only if the proposal for those regulations is approved by a resolution of each House of Parliament.
(8) If, after the expiry of the relevant period, the Minister making the regulations wishes to make an instrument in the terms of a revised version of the proposal (under the applicable provisions of paragraphs 7 and 8 of Schedule 4), the Minister must lay before Parliament a document containing the revised proposal for the regulations together with a statement of the changes proposed and may make an instrument in the terms of the revised proposal only if the revised proposal is approved by a resolution of each House of Parliament.
(9) The Committee may, at any time before the regulations are laid in draft or made (under the applicable provisions of paragraphs 7 and 8 of Schedule 4), recommend that they should not be proceeded with.
(10) Where a recommendation is made by the Committee under subsection (9), the regulations may not be laid in draft or made unless the recommendation is rejected by a resolution of the House of Commons.””
Lord Hope of Craighead (CB)
My Lords, I am grateful to all noble Lords who spoke to my Motion B1. I have only one comment to make, which is that the noble Lord attributed to me a state of knowledge that I simply do not recognise. It is not my intention to frustrate the intentions of the Government in any way; my amendment is all about the issue of principle to which the noble Lord, Lord Pannick, referred—it is a crucial instrument. That being the point, I beg to test the opinion of the House.
Retained EU Law (Revocation and Reform) Bill
Wednesday 21st June 2023
(10 months, 1 week ago)
Commons ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 21 June 2023 - (21 Jun 2023)
14:59 - The House divided: - Ayes: 277 / Noes: 208 - Question accordingly agreed to.
15:13 - The House divided: - Ayes: 275 / Noes: 209 - Question accordingly agreed to.
The Solicitor General (Michael Tomlinson)
I beg to move, That this House disagrees with Lords amendment 15D.
Mr Deputy Speaker (Mr Nigel Evans)
With this it will be convenient to discuss Lords amendment 42D, and Government motion to disagree.
The Solicitor General
This House has been asked these questions before and twice this House has said no, with an overwhelming majority. We are asked to consider, for a third time, two amendments, neither of which is radically different from the amendments we have already rejected. It will come as no surprise to anyone in this Chamber that I invite the House, once again, to disagree with the Lords amendments.
The Solicitor General
Because the hon. Gentleman asks with a smile every single time, of course I will give way.
Patrick Grady
I congratulate the Solicitor General on his consistency at the Dispatch Box, which was lacking throughout most of the rest of the Bill’s progress, as the hon. Member for Ellesmere Port and Neston (Justin Madders), the Labour Front Bencher, said last time we were here. The selection list says:
“Environmental protection; Parliamentary scrutiny
Govt motion to disagree…Govt motion to disagree”.
That sums it up, doesn’t it? The Government disagree with enhanced environmental protection and they disagree with enhanced parliamentary scrutiny. That was the whole point of Brexit for the Government, wasn’t it?
The Solicitor General
I am delighted to have given way to the hon. Gentleman, not least because I like him a lot and because of his smile, but also because of his warm welcome for the Government’s position. I entirely disagree with him; he is wrong. On the last occasion he intervened, he did not hear the whole debate. I invite him to do so this time because, when he does, he will see precisely what the Government’s position is.
I make it clear that we are not rejecting these amendments out of hand. As I stressed in our last debate on the Bill, and as acknowledged by Baroness Chapman in the other place, we have listened to their lordships’ views. We have worked collaboratively on a number of issues and made fundamental changes to the Bill. There has also been significant collegiate working on the reporting requirements that will provide robust scrutiny. Parliament will be able to examine the Government’s plans for reform up to six months ahead of the legislation being tabled, thanks to the regular reporting brought in by that amendment.
Lords amendment 42D is based on the process contained in the Legislative and Regulatory Reform Act 2006, which is a very different beast from a very different Bill designed for a completely incomparable power. A legislative reform order is capable of operating on any statute, including Acts of Parliament, whereas the relevant regulation-making power here is limited to secondary retained EU law, which is not primary legislation.
Further, I respectfully disagree with the noble Lord Hope when, in the other place, he described the process in his amendment as “light touch”, not least because of the fundamental issue of time, which is crucial when we consider how long parliamentary processes can take. Lords amendment 42D envisages up to 60 sitting days for Parliament to consider and debate proposals for statutory instruments, and potentially time after that for further scrutiny before an SI can be made. By adding such significant time for additional scrutiny, this amendment would place in doubt the effective use of the repeal and replace powers before they expire.
Perhaps that is the intention. This is the additional friction that was so neatly alighted upon by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) during one of our previous debates. Additional, deliberate friction, as my noble Friend Lord Callanan said in the other place
“is not about additional parliamentary scrutiny; this is actually about stopping Parliament acting in this area.”—[Official Report, House of Lords, 20 June 2023; Vol. 831, c. 117.]
It is perhaps worth noting that, since 2008, only 35 LROs have been brought forward.
Sir William Cash (Stone) (Con)
My hon. and learned Friend is making some excellent points. He has just referred to Parliament as a whole but, in this particular context, a difficulty arises in subsections (6) to (8), which confer a power on the House of Lords to, let us be honest, effectively block proposals if it decides so to do. That is an inherent objection.
The Solicitor General
I am grateful to my hon. Friend. Knowing him, he will develop those points in due course. He agrees with what my noble Friend Lord Callanan said in the other place, that this is not about additional scrutiny so much as about preventing Parliament from acting.
It is right to say that Lords amendment 42D has been given serious consideration, as were other iterations previously before this House. It is disappointing and hardly conducive to constructive conversation or detailed debate to resort to insulting hon. and right hon. Members, as unfortunately happened in their lordships’ House yesterday. Apart from my noble Friend Lord Callanan, their lordships have not grappled with the provisions already in the Bill for a sifting committee, the detail of which is found in schedule 5, and which will result in significantly more scrutiny than EU law had when it was first introduced into our law.
On Lords amendment 15D, I have little to add to what has been said many times. We have repeatedly made commitments, at every stage of parliamentary passage, that we will not lower environmental protections. Our environmental standards are first class: the Agriculture Act 2020, the Fisheries Act 2020 and the landmark and world-leading Environment Act 2021.
The Labour party has a choice, both in this House and in the other place. Will it choose to frustrate this necessary post-Brexit legislation, this natural next step that was always going to have to happen? Will it continue to delay the delivery of the significant opportunities that await us? The Government want to get on with the job. Enough is enough.
Justin Madders (Ellesmere Port and Neston) (Lab)
We are back once again, and maybe it will be third time lucky, although it does not sound like it will be. The House will no doubt be familiar with our position, that the Bill, as originally drafted, was reckless, unnecessary and undemocratic. The Government talked about a bonfire of regulations when the Bill first came before the House, but I would instead describe it as a scorched earth policy that made for a good headline but completely failed to grasp the scale and complexity of the task before us. That the approach has been at least partially reversed is of course welcome, but concerns remain. The Lords amendments before us will deal to some extent with some of the outstanding issues, and we therefore intend to support them.
I turn, first, to Lords amendment 15D. I pay tribute to Lord Krebs for showing maximum flexibility in trying to find something that will gain Government support. I fear that it sounds as though his efforts will be in vain, because although he has taken the approach that the Government’s problem with his previous amendment was its wording rather than its substance—on the basis of the Government’s claim not to want to water down environmental protections—I think he was hoping that reasoned argument and compromise might see a resolution to this endless game of ping-pong. The sad reality is that he has been looking for reason where none exists.
Margaret Greenwood (Wirral West) (Lab)
My hon. Friend is making an important point. A number of constituents have written to me in recent weeks to set out their concerns and point out that we are in a climate emergency. They believe it is essential that the current level of protection for the environment is not weakened. In addition, they are concerned as we have a responsibility to not just ourselves, but future generations. Does he agree on that?
Justin Madders
I thank my hon. Friend for her intervention. I agree with it, which is why we are continuing to support the Lords on this amendment.
The Minister has referred to the conditions of previous iterations of this amendment as both “burdensome” and “unnecessary”. It is of course complete nonsense that something can be both of those things at the same time. A burden would be an additional requirement, but the Government also consider such amendments unnecessary. That implies that these are things they intend to do in any case, yet in their eyes they somehow remain a burden. I am sorry to say that I have yet to alight on any rational explanation for that stance, and poor Lord Krebs has stripped away his amendment to the bare minimum now in the futile search for common ground. His new version of the amendment has just two elements, instead of the four in the previous version. The remaining ones are non-regression on environmental protections and consultation with relevant experts; he has dropped the requirements for compliance with international obligations and transparency in reporting on expert advice. I would have thought that the two dropped conditions ought not to have been considered too troublesome for a Government committed to maintaining environmental protections, but we are where we are.
The Lords amendment therefore simply puts in the Bill what the Government say they intend to do in any event, yet the objections remain. We should be mindful of what the Government’s own watchdog, the Office for Environmental Protection, said in its evidence on this Bill, which was that it
“does not offer any safety net, there is no requirement to maintain existing levels of environmental protection.”
I find myself both bemused and alarmed by the Government’s intransigence on this issue. When they are not listening to their own watchdog and instead present arguments that disintegrate on the barest of examinations, it is right that we should continue to press for this amendment. If everything that was said at the Dispatch Box became law, we would not need legislation, but I am afraid the longer this goes on and the more unreasonable the objections become, the stronger the case becomes for putting in the Bill the protections the Government say they want to see.
The confidence that the public have in this place has been severely tested in recent years. If our democracy is to work, and if we want people to engage and participate in the democratic process, what a Government say has to be honoured and has to be seen through, otherwise we risk forever losing trust in the political process. Once that trust has died, it cannot be brought back to life by magic or by good intentions. So I say to Conservative Members: think very carefully about how you vote on this Lords amendment. If they trust the Government to keep their word and can find a way to reconcile that blind faith with the Government’s refusal to put those promises in law, they should vote down the amendment. But if that word is broken, they should not ever expect anyone to trust the Conservative party to stick to its promises on the environment or any other matter, ever again.
Lords Amendment 42D tackles one of the most controversial clauses in the Bill, clause 15, which the Hansard Society called the
“‘do anything we want’ powers for Ministers.”
I remind Members that the Hansard Society is a body whose opinion ought to mean something. It describes clause 15 as that because, as has been extensively covered previously, it empowers Ministers to revoke regulations and not replace them; replace them with another measure that they consider
“appropriate…to achieve the same or similar objectives”;
or to “make such alternative provision” as they consider “appropriate”. Those are extremely broad powers covering broad areas of policy.
If this Bill has taught us anything, it is that the reach of EU regulations permeates every aspect of life and covers many important issues that most people would expect Parliament to have a say over: consumer rights; public health; the environment; and, of course, employment rights. These regulations cover many things that many people would want to see protected, and many more things that nobody said would be removed or watered down back in 2016.
I pay tribute to Lord Hope for trying to find a compromise that the Government can accept. I fear that, as with Lord Krebs, his efforts will be in vain. In short, this latest amendment would see a Committee of this place sift regulations made under the clause, following an explanation by the relevant Minister as to why that particular regulation is required or desirable. It should be noted that Lord Hope made it clear in the other place that this Committee would be a Commons one only; how ironic that an unelected Lord is the one pushing an amendment to give the elected Commons more say in how our laws are decided, and that the Commons is resisting this move. Perhaps he, at least, understands what taking back control was meant to be about.
The Lords amendment further provides that once the Committee has considered the Minister’s explanation, it can, if it wishes—it is not required to—draw special attention to the regulations in question, following which the Minister must arrange for them to be debated on the Floor of each House. The Minister must then have regard to any resolution of either House and may, but is not required to, amend their proposal in the light of what has been resolved. The Committee can also recommend that the proposal should not be proceeded with, but, in the true spirit of taking back control, this House will get the final say on that. Is this not what the true spirit of Brexit was really about: the democratically elected Members of this House asserting influence and passing our laws?
I am sure that we will hear, once again, the fallacious arguments that because these laws were passed in the first place without proper democratic involvement, that means, by some twisted logic, that it is fine now to hand all the power over these laws to Ministers, without any reference to Parliament. Those arguments do not wash because they come from a place that says that anything that originates from the EU is bad and we therefore do not need it. Tell that to the millions of people enjoying paid holidays for the first time, to the disabled passengers who were given priority on transport for the first time and to the millions of people who have kept their job because of TUPE protections. I do not believe anyone who voted to leave the EU voted to dispense with those rights. If it is the Government’s intention to change any of those protections, or the thousands of others that our citizens enjoy, it is only right that this place has a say in that.
I am afraid the lack of transparency that this Bill represents, and the sidelining of genuine scrutiny, show up all those arguments that were made back in 2016 about sovereignty for what they are: a fig leaf for a select few to shape and determine the future of this country without reference to Parliament, and certainly without reference to the people they are supposed to represent. Democracy in the 21st century does not die in one swift act, but erodes over time, bit by bit. This Bill is another example of that, and until this Government restore basic democratic principles, we will do all we can to oppose it.
Sir William Cash
I have read with great interest the record of the proceedings yesterday in the House of Lords, noting some extremely wise and democratically well judged comments by those such as Lord Hodgson of Astley Abbotts and Lord Hamilton of Epsom. I note, however, that Lord Clarke of Nottingham, with whom I have crossed swords a few times in the past, to say the least, was conspicuous in his support of Lordusb Hope of Craighead’s amendment, as were a number of others I do not have time to mention, although their appearance in the Division list was entirely predictable.
I wish to add that the wise words of the Lord Hodgson and Lord Hamilton reflect not only a question of parliamentary sovereignty in relation to the elected House, but the elected will of the people, both in the referendum in 2016, the anniversary of which is almost upon us, and in the general election of December 2019, where there was a massive majority to get Brexit done. It is therefore also a manifesto commitment, clear and unequivocal, which invokes the Salisbury doctrine. The Government have stood firm in these proceedings; I was extremely glad to hear my hon. and learned Friend the Solicitor General yet again showing the degree of diligence and determination that is necessary, and I know he will continue to do so in this matter of retained EU law. I also speak as Chairman of the European Scrutiny Committee, whose report was unequivocal on the subject. I am glad to say that the Government supported the amendment I proposed, which is part of this exchange between the Lords and the Commons.
Lord Hope of Craighead and Lord Pannick are on the same page with regard to what they term a “constitutional principle”. I note the judicial and legal enthusiasm for the amendment they have put forward, which demonstrates the issue of parliamentary sovereignty. Indeed, Lord Hodgson rightly referred to “parliamentary sovereignty” when he read out what I had said in the House of Commons on the subject the other day, about the Lords’ “intransigence” in this matter. The amendment is a matter of democracy, as well as constitutional principle, because it involves the elected House and its majority view.
Alyn Smith (Stirling) (SNP)
Here we are again—plus ça change, plus c’est la même chose. I always remember that nobody ever criticised a speech for being too short, and I think I can excel myself this afternoon.
Our position, like the Government’s, has not changed in relation to the Bill. We think the Bill is unnecessary. Retained EU law became law when we left the European Union. The special status that we have heard so much about does not, I believe, stand any sort of academic analysis. It is open to the Government to retain, repeal or change any measure on the statute book without this provision. We think this provision augments the powers of the Executive in relation to this body of law, not on the basis of what the law does, how effective it is or how up to date it is, but on the basis of where it came from. That is a poor premise.
I find myself in the strange position of backing the Lords amendments. The SNP does not send Members to the House of Lords because we have issues with the democratic legitimacy of the place, but I am glad of their work on this. Where I say this is a bad Bill, and where I fear it will be bad law, I would also put on record my appreciation of the very hard-working Clerks and others who have got it to where it is today. I disagree with the politics of this, not their work.
On amendments 15D and 42D, the environmental non-regression clause, that is taking Ministers at face value. If Ministers do not want to regress, then let us put that on the face of the Bill, which would reassure an awful lot of people.
Scrutiny measures are foreseen within the Bill. We acknowledge that, but we do not think they are enough. This is a new set of powers for the Government and I think it needs a new set of scrutiny powers for this place and for the House of Lords, to make sure that there are brakes on what they might do with those powers so given.
The legislative consent motions have been denied by the Holyrood Parliament and the Welsh Senedd. That should give any Unionist in this place cause for concern about the Bill, both in the way it is being taken forward and the attitude that it shows to the devolved settlement. So we are against the Bill and we are backing the Lords amendments to make the Bill a little less bad. I am weary of our entrenched position and a dialogue of the death, so I draw my remarks to a close.
Sir Robert Buckland (South Swindon) (Con)
In another attempt to recreate complete déjà vu, I follow the hon. Member for Stirling (Alyn Smith) again, as I did some weeks ago. I will not repeat the point I made to him about his remarks on devolution, in an otherwise beautifully constructed speech, with which I respectfully completely disagree.
We are left with two issues. The first issue can be dealt with fairly swiftly. I do not see the need to put on the face of primary legislation a non-regression clause. The Government have been crystal clear about their approach to environmental standards and I know from my own inbox experiences, and from those of many other right hon. and hon. Members, that the British public just will not have a regression from high environmental or food safety standards. They are the sort of standards where we have led global opinion about regulation. With respect to Lord Krebs, I do not see the need for that amendment.
However, I will press the Solicitor General, my hon. and learned Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), on amendment 42D. While I accept that in its detail there might be some further work, I think 60 days is a long time. In effect, that would mean 60 working days, so if one started in late July, the matter may not be resolved until October or November. I can see that is an issue, but I pray in aid what the noble Lords said about the need to disaggregate this issue from the issue of Brexit. It does not matter about the source of the law or where it comes from; this is a question of the ability of this place—Parliament—to scrutinise the operations and decisions of the Executive.
I am always interested to listen to the careful words of my hon. Friend the Member for Stone (Sir William Cash). I thought that his exposition of Lord Hope’s position on parliamentary sovereignty was a fair one. He and I actually agree quite strongly about parliamentary sovereignty and the need to avoid the trend in the noughties—before the current Supreme Court—to downplay the role of parliamentary sovereignty to suggest that, somehow, we have moved on from the age of Dicey, and the role is no longer unqualified. I think he and I agree on that—we are both defenders of sovereignty—but to pray in aid an argument about ceding powers of the judiciary is rather odd bearing in mind the context of the amendment. The amendment is all about giving more power to this place and, indirectly, I accept, to the other place.
Sir William Cash
I made a very careful distinction. I appreciate the point that my right hon. and learned Friend is trying to make, and accept, of course, that Lord Hope of Craighead is a very distinguished judge and a member of the Supreme Court. I thought that it might just be relevant to draw attention to the fact that, in the context of parliamentary sovereignty, Lord Bingham used some quite trenchant words with regard to the judgments that he had observed both from Lady Hale and from Lord Hope. That was all.
Sir Robert Buckland
I entirely agree with my hon. Friend’s analysis. I think that we are on the same side on this. I have always been extremely vigilant in observing, scrutinising, criticising and making my own comments in lectures outside this place about the dangers of going down that road and of not understanding that, far from being mutually contradictory, the rule of law and parliamentary sovereignty are both sides of the same coin. If we do not have strong parliamentary sovereignty, the rule of law itself is undermined. The rule of law is a political concept rather than the law itself, and, I think, that that is sometimes misunderstood. It is the duty of Conservatives, from my hon. Friend right through to me, to remind this place and other places about the importance of these principles. We agree on that, but that is not the precise context of this amendment. The amendment is legitimately and properly seeking to make sure that this place has a role in the scrutiny of the revocation of legislation.
I do not accept the arguments that there is an attempt, certainly by the mover of this amendment or of some of the others who spoke in the debate, to try to frustrate the purpose of this important Bill, which I support. We are at a stage now where, with the greatest respect to my hon. Friend, we should not concern ourselves with the Salisbury Acts, because the Lords have given us a Second and Third Reading, and that convention relates to the commanding heights of a Bill, but we are now down to the dirty detail, and that is what we are talking about. Therefore, it is important that we lean into this process in as sensible a way as possible to see whether there is a potential compromise—either by a reduction in the number of days, which I would agree with, or, indeed, by looking again at the precise role of the other place with regard to the approval or otherwise of any regulation. That is what I would be seeking to do if I were in my hon. Friend’s place, because I detect that there is, if not a head of steam, a determination by the noble Lords to press the Government on this particular issue.
As I have said before, if we start to take the “B” word out of this issue and look at it on the basis of parliamentary scrutiny, then perhaps we can take the heat out of the debate and have something far more considered and reasonable.
Sir William Cash
My right hon. and learned Friend may be just ducking an issue, which is that, actually, it is not about the “B” word or Brexit as such; it is about parliamentary democracy and sovereignty, the general election and the referendum as well. We are talking about a massive amount of law. I am glad to note that the Government accepted my proposal that we should examine the list and have a proper list. However, having said that, I am afraid that I do not agree with my right hon. and learned Friend. He is doing his best to find a compromise, but I do not think that a compromise is legitimate in these circumstances.
Sir Robert Buckland
I listened with care to my hon. Friend. Although he and I are on other sides of the argument, we have always had, I think, a very strong mutual regard for each other’s position and the way in which we put our arguments. I am afraid that I do not agree. It is absolutely right to pray in aid the democratic decisions that have been made by the British people and this House, but we are also here, I think, as guardians of this place. It is important to note that, when we created retained EU law, which he and I were heavily involved with, we said at the time, either explicitly or implicitly, that we would, in good order, look carefully at the body of retained EU law, and that we would get rid of what we do not need—I am absolutely up for that, as it would be good, tidy law-making and doing service to the statute book—but at the same time we would retain what we regard as important safeguards or regulations that underpin particular activities. That is good for the rule of law and good for certainty, and we should remember that. I do not think that the bulldozer approach is the right one; the scalpel surely should be applied to these regulations, so that we get it right.
Therefore, in closing, I ask my hon. and learned Friend the Solicitor General to consider carefully whether, through further amendment and change, we can strike the right balance between the need to fulfil the objectives of this important Bill and to make sure that this place is not lost in the rush to revoke or amend regulations. There may be a time, even with sunsetting, that we will no longer be the party of government and we need to remember that we should be here to defend the position of this House irrespective of who might sit on the Treasury Bench. On that note, I urge my hon. and learned Friend to think again about amendment 42D, but, otherwise, I am in full support of his remarks.
Stella Creasy (Walthamstow) (Lab/Co-op)
It is a pleasure to follow the right hon. and learned Member for South Swindon (Sir Robert Buckland). I have much sympathy for him and his attempts to speak to deaf ears.
We are back dealing with the renegade masters of this Government and their ill behaviour—the arrogance they have yet again expressed towards the concept of parliamentary scrutiny. People watching these proceedings —few, I am sure, on a lovely Wednesday sunny afternoon—will understand what is being said: “Our way, or no way at all.” The amendments are a reasonable way of trying to address the loss of parliamentary scrutiny—the ministerial power grab—that this Bill represents.
It is seven years since we were told that Brexit was all about taking back control; seven years that we have been waiting for any kind of benefit at all; and seven years in which our constituents have certainly seen the damage that has been done. The only benefit that the Bill will bring is to Downing Street. It takes back power not to the people, but to the Prime Minister. That is why thousands of people have been writing to their MPs, begging and pleading them to look at the damage that the Bill would do to the powers in this place and to their voice in that process. Following the logic of the hon. Member for Stone (Sir William Cash), we could call anything Brexit. He wants to say, “Well, we had a referendum, so this piece of legislation, as it is currently written, must go through this place unamended.” Well, I would quite like all the money that we were promised for the NHS also to go through this place, but we cannot always get what we want. My constituents are concerned about democracy; that is why people writing to us; that is why there is a concern about the process that the Bill would set up. The powers that it gives, that continue way beyond any sunset date at the end of this year, are over consumer rights, environmental standards and employment rights.
Let us be honest: in a week when the reputation of Parliament could not get much lower, any attempt to restore the ability of a Member of Parliament to represent their constituents, propose amendments or participate in scrutiny—not just shout at Ministers about something that they will pass without challenge—cannot be a bad thing. I welcome their lordships having stood up for the role we could play. We have seen a week in which some MPs would rather have gone to watch the cricket than come to Westminster to do their job, but some of us still think that there is a job worth turning up for and that we should do that job.
Stella Creasy
I know that the right hon. and learned Gentleman agrees. I have never seen him at the cricket. I will gladly give way.
Sir Robert Buckland
Some of us, including my hon. Friend the Member for Stone (Sir William Cash), love cricket, but we can do both, and that is why we are here.
Stella Creasy
In fairness to the hon. Member for Stone, I recognise that he was here on Monday and is here today. On the powers of this Bill, he is like the Earl of Lucan—leading his cavalry into the charge of the Light Brigade—because he has already seen the arrogance of Ministers in responding to his concerns. I will never understand why he is giving away the power that he has as a Back-Bench MP to challenge for things—things that I might disagree with, but that, in a democracy, I would stand up for his right to argue for—but he is doing that today and he has done so consistently because he thinks this Bill is Brexit. It is not.
This Bill is a complete break-up of our parliamentary system, because it gives Ministers powers over 4,000 areas of legislation, using statutory instrument Committees with hand-picked groups of MPs to wave through any changes that Ministers want to make. And what has the hon. Gentleman got out of the process? He has got a list of the things that are not going to be deleted that he would like to see deleted. What a glorious victory that is. Little wonder the Earl of Cardigan would be looking at him—
Stella Creasy
With the greatest respect, I have listened at length to the hon. Gentleman and I am conscious of time. I simply recognise the parallel with the charge of the Light Brigade in that, at first, the cavalry was lauded, and only later did we see the damage and destruction and only then did the British people hold them accountable. It will be the same when he argues against the very principle of ping-pong, which is about scrutiny.
The hon. Gentleman matches the arrogance of the Minister, who first of all challenged the proposals put forward by the Lords on the basis that they were a novel process—they were not; they were based and rooted in parliamentary expertise from a former parliamentary Clerk, who had plenty of experience of the different mechanisms of scrutiny that can be brought to bear—and now complains that the Lords, having listened to the debate in this place and tried to find a compromise, have come forward with another proposal. That is not good enough for him either.
Yet, all along, the Minister wants to claim that the Government have listened, while the Government have failed to table a single alternative proposal or to make a single suggestion to reassure those of us concerned that, if we give up 4,000 areas of legislation to Ministers to use SI Committees, we may as well all go home, because we will be bystanders to the parliamentary process. It is sheer arrogance to suggest that scrutiny is additional friction; it is called asking questions. Even Back-Bench Conservative MPs would think that that is a good idea, because it is a mistake to think any Government get it right all the time. That is why we have scrutiny and a process of trying and testing legislation.
“Computer says no” speaks to the real truth behind Brexit and behind this legislation, which is that the Government never intended to listen to the British people at all, because they never intended to give powers to the people who represent them. That is why it is an insult to democracy to see all this. Constituents across the country will be deeply concerned about a Bill that will allow the Government to revoke or water down legislation without any scrutiny at all, beyond possibly waving it through a five-minute Committee sitting.
People are concerned about environmental standards, which Lord Krebs is trying so hard to protect, and which the Government say they will protect—yet they will not write that down. That should be very telling, because we shall see that that becomes a developers’ charter. We shall see, for example, people trying to develop Holton Heath, which I am sure the Minister is well aware of, a site of protected heathland in his own constituency. Development was refused for that site on the basis of the special protection areas and special areas of conservation—both regulations that will be abolished under the Bill, unless the Government write them back in.
That development attempt was rebuffed, but the Minister’s constituents can have no confidence that development will not be proposed on that site again if we lose those pieces of legislation. The fact that Ministers will not write in the Bill that that absolutely will not happen, and the fact that we have not had that clarity over those pieces of legislation, should give his constituents pause. It would certainly give my constituents concerns about somebody seeking to develop the Walthamstow wetlands, for example.
The proposals before us today reflect the Lords listening and trying to find a way forward. They are talking about a non-binding form of legislative scrutiny, whereby the Commons could suggest amendments to a statutory instrument. The Government could even refuse to accept those amendments, but it would be a process of scrutiny and accountability—the mildest form we have seen—and yet, still, computer says no.
The Minister might think it is acceptable to be this arrogant about the concept of parliamentary sovereignty. Conservative Members might shake their heads and say, “The good chaps and chapesses of this Government could not possibly do anything wrong. Of course they will be sensitive to the electorate.” I am not sure the electorate think that that is the case. If the only opportunity for challenge and scrutiny is at a referendum or election, our capacity to make good laws—the whole point of this place—is gone.
I am sure, based on what he just said, that the hon. Member for Stone will now be leading the campaign for the abolition of the House of Lords—or at least for an elected House of Lords. Certainly I presume he will not take up a seat in the other place when he leaves the Commons. But that is the point, is it not? Our time here might be fleeting but, if we start unpicking the strands of parliamentary scrutiny, the processes that exist and our capacity to speak up for our constituents when their rights are affected, the damage will be everlasting.
The Minister might dismiss people such as me, still looking for those elusive benefits of Brexit seven years on, but he cannot dismiss the concerns of thousands of constituents. I hope he will finally engage in a serious process with the Members of the House of Lords and stop dismissing them, because they come with the very best of intentions. If we are absent at work and not doing our job of defending democracy, somebody else must do so. I hope that this House will support Lords amendments 15D and 42D, because our environment and our parliamentary democracy deserve better.
The Solicitor General
With the leave of the House, I thank all right hon., right hon. and learned and hon. Members for their contributions to this debate. I was going to say I need not go into the fine details but, as my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) mentioned the “dirty detail”, perhaps I can touch on one or two of them.
I thank the shadow Minister for his engagement, as always, and for giving a welcome to the change of approach—although not a full welcome, of course—during today’s debate. I am grateful to him for his words. I thank my hon. Friend the Member for Stone (Sir William Cash) for reminding us about parliamentary sovereignty and the wise words of Lord Bingham. I know that his words will be studied carefully. I always enjoy listening to the hon. Member for Stirling (Alyn Smith) during the course of these debates; he is right that he is consistent, as the Government have been consistent throughout the process.
I disagree fundamentally with what the hon. Member for Walthamstow (Stella Creasy) says. She reminds us of the charge of the Light Brigade, which my right hon. and learned Friend the Member for South Swindon first introduced to the debates on this Bill some two debates ago. She mentioned friction and made a complaint about Back Benchers, but the suggestion of friction came from a Back Bencher, as I mentioned in my opening speech.
The hon. Lady says there is a failure to listen, but I disagree. There is a lot of listening and there is a disagreement. It is not the same. One can listen and one can still disagree; I disagree, having listened to what she says. One thing I am grateful to her for, though, is bringing cricket into this debate. That is always a welcome subject of distraction, so I am grateful to her for that and I look forward to reading it back.
If I may engage directly with my right hon. and learned Friend the Member for South Swindon, I am grateful to him for his words. I agree with him that the example he gave, of 60 sitting days starting in July, is a significant period of time. I am afraid he and I will not agree entirely on that, and he will not be surprised by that. I encourage him to look at schedule 5 and the sifting Committee. I know he understands the point and he heard my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones), who explained two debates ago the detailed work that his European Statutory Instruments Committee does. He diligently gets on with that work—he described it as dry work, but it is important work and I know he will continue that work with his Committee.
I was delighted to see agreement between my hon. Friend the Member for Stone and my right hon. and learned Friend the Member for South Swindon; it was similar to the agreement between my hon. Friend and neighbour the Member for North Dorset (Simon Hoare) and the right hon. Member for East Antrim (Sammy Wilson)—a rare moment, but an enjoyable one nonetheless. I simply repeat to my right hon. and learned Friend the Member for South Swindon that our concern with the approach is that, by adding such a significant amount of time, the amendment would place in doubt the effective use of the repeal and replace powers before they expire, and that is an important part of the Government’s programme for smarter regulation.
It is vital that we bring this most important Bill to Royal Assent as quickly as possible. This House has made its view clear twice before and I ask that it makes its view clear for a third time. I encourage their lordships to take note of the strong view from this House and the fact that the will of this House should be respected.
Question put, That this House disagrees with Lords amendment 15D.
Retained EU Law (Revocation and Reform) Bill
Monday 26th June 2023
(10 months, 1 week ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 150-I Marshalled list for Consideration of Commons Reasons - (23 Jun 2023)
Lord Callanan
That this House do not insist on its Amendment 15D, to which the Commons have disagreed for their Reason 15E.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, with the leave of the House, I will also speak to Motion B. The House will be pleased to know that I can be brief again today. We have extensively debated these issues on a number of occasions.
The reality is that the House of Commons has considered this Bill once more and has come to the same conclusions as previously, again with significant majorities. This is now the third time that it has made its will clear. It is the elected House and has been firm in its position. We have to take that into account, along with its democratic legitimacy.
I welcome that the noble and learned Lord, Lord Hope, recognises our constitutional position. I hope that the noble Lord, Lord Krebs, will be able to do the same. The other place would find it extremely difficult to understand if, on the amendment of the noble Lord, this unelected House sent a Bill back to it yet again.
Noble Lords have seen that the Government have moved on a number of issues during the passage of the Bill, both on Report and subsequently. Crucially, we have provided transparency on our plans on what retained EU law we intend to revoke this year—I remind the House that this was a key demand from this House during the Bill’s passage—by publishing a schedule of retained EU law that is to be removed from our statute book by the end of 2023. This addressed the concerns raised by many noble Lords and, of course, provided greater legal certainty.
We have been clear throughout the passage of the Bill that the Government will not row back on our world-leading environmental protections. In reviewing our retained EU law, we want environmental law to be fit for purpose for the UK’s unique environment and able to drive improved environmental outcomes, as we have set out in our Environment Act targets, while ensuring that regulators can act efficiently. Any changes to environmental regulations across government will be driven with those goals in mind.
In addition, I emphasise that it is standard practice to consult on major policy changes for the environment. It is right that Secretaries of State may exercise discretion when it comes to consultation. Any such discretion must be exercised in accordance with the law and guided by the consultation principles published by the Government. Those principles ensure an efficient and proportionate burden on government, while facilitating meaningful consultation.
Furthermore, it is worth noting the new legal framework created by the Environment Act 2021, our ambitious environmental plans created under it and the legally binding targets set under Sections 1 to 3 of that Act. This is the context in which the REUL Bill and its regulation-making powers will operate.
Moreover, from 1 November there will also be a legal duty on Ministers to have due regard to the environmental principles policy statement when making policies using the Bill’s powers. This Government use expert advice, including that of many independent experts, when making provisions that relate to the environment.
The UK continues to play a leading role on the international stage, driving increased ambition in environmental international law. Most recently, at the 15th meeting of the Conference of the Parties to the Convention on Biological Diversity, UK leadership was instrumental in securing global agreement to stretching targets to halt and reverse biodiversity loss. We will remain a world leader on the environment. Nothing in this Bill alters that fact.
Let me now turn to Amendment 42F. I thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, for their dedication on this amendment. I am sure I speak for us all in this House when I say that parliamentary scrutiny is, and always will be, the pivotal foundation of our democracy. Their commitment and expertise on this matter is, of course, admirable. As I have said throughout the passage of the Bill, the Government recognise the significant role that Parliament has played in scrutinising instruments, including throughout the EU exit process. I firmly believe that UK citizens voted to leave the EU to re-establish the sovereignty of our UK Parliament. At its heart, the Bill seeks to do exactly that. It is for this reason that we have included the process of sifting committees for the powers to revoke or replace, among others in the Bill.
To further reassure the House, let me put it beyond any doubt. On each and every occasion to date, we have always followed the sifting committee’s recommendations. We will continue to adopt the same practice of following the recommendations that the sifting committee makes to upgrade the scrutiny procedure attached to instruments made under the powers in this Bill. Where the committee considers that a statutory instrument should be subject to the affirmative procedure, we will ensure that it is laid in draft before Parliament so that it can be debated in both Houses. This will ensure that Members are able to debate all reforms which the committee considers merit the highest level of scrutiny, to ensure that Members have the opportunity to properly scrutinise those reforms and that Ministers are aware of their arguments, ideas and recommendations. It will of course be at the Minister’s discretion, but where significant reforms are planned on which there is particular interest from the House, Ministers will be able to publish draft instruments, alongside any relevant statements and consultation responses, ahead of laying those statutory instruments.
In addition, I can commit today that, where the Government are making significant reforms to retain EU law, using the replace limbs of the powers in Clause 14, we will follow the usual protocols on public consultation. These will be run in the usual way, as is already a ministerial duty. I reassure the House that the results of such consultation will be made available to Members of both Houses in the established manner.
Finally, as noble Lords will know, we have committed in this Bill to publish a report on retained EU law reform and the use of the powers to Parliament every six months. In this report we will provide Parliament with a six-month forward-look at major reforms which will utilise the powers under Clause 14. This will provide Parliament ample time to ask the Government questions on these reforms through the normal procedures of Parliamentary Questions and correspondence. It will also provide the relevant Select Committees with the time to initiate inquiries on reforms where they deem it necessary and to provide the Government with recommendations, which as usual we will respond to.
Taken together, these measures will allow parliamentarians, both in this House and the other place, an additional opportunity to review our reform plans ahead of any debates. They will provide an opportunity and time for this House, as well as the general public and UK businesses, to let their views on reforms be known. After all, this is the fundamental benefit of Brexit: we will ensure that our statute book reflects the best interests of the UK, rather than some of the compromises of all EU member states. This will allow our citizens, our businesses and, importantly, our parliamentarians to make their voices heard in this important reform process.
I hope that I have sufficiently reassured the House of the Government’s intentions, and that both noble Lords now feel able not to press their Motions and to allow this Bill to progress to Royal Assent. This is an important piece of legislation. Let me repeat once again that the Government have already made significant amendments in the light of many of your Lordships’ concerns. Frankly, it is now time that the Bill reached the statute book. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Krebs
At end insert “, and do propose Amendment 15F in lieu—
“Environmental protection
(1) Regulations may be made by a relevant national authority under section 15 only if the relevant national authority is satisfied that the regulations do not reduce the level of environmental protection arising from the EU retained law to which the provision relates.
(2) Prior to making any provision to which this section applies, the relevant national authority must seek advice from persons who are independent of the authority and have relevant expertise.””.
Lord Krebs (CB)
My Lords, the debates we have had on the various amendments that I have put forward to ensure environmental protection remind me of the train journey from Oxford to London in recent months, due to disruption of the Paddington line. The journey takes longer than you would have wished and you do not end up at the destination that you had hoped to end up at.
This is the fourth time that my amendment has been debated, including on Report, and each time I have made concessions. I have reduced the scope of the amendment and this time I have made a further concession. The Government are still unwilling to accept the amendment, which is a source of disappointment to me. However, I did have a positive meeting with the noble Lord, Lord Benyon, and the noble Baroness, Lady Neville-Rolfe, last week, when we talked about points that could be made from the Dispatch Box that would provide a level of reassurance. For example, my amendment refers to the need to take independent advice before changing any rules that protect the environment—and the noble Lord, Lord Callanan, indeed said that in his speech a few moments ago. He made reference to the environmental principles, which is a very positive step—although I note that the principles do not come into effect until later this year, so there will be a gap between the approval of this law, assuming it goes through, and the application of the environmental principles. There is a short window of worry there.
Baroness McIntosh of Pickering (Con)
My Lords, I echo some of the concerns expressed by the noble Lord, Lord Krebs. In moving the amendment, my noble friend the Minister referred to the amendments from the Commons, completely overlooking the fact that there is no legislative consent. Scottish and Welsh legislative consent has been withheld, and I understand that the Government have not yet heard from Northern Ireland. I think that he referred to the fact that we have now moved on and do not have to rely on the other member states to pass our environmental laws, but I would feel more comfortable if the four nations agreed on what the environmental principles should be. I would be very pleased to hear from my noble friend what he believes the situation currently is.
I have just one word of caution. I fear that environmental protections are not as secure as perhaps we might be led to believe by this Government. We have just had brought into effect two ground-breaking free trade agreements with Australia and New Zealand, both of which have set lower standards for imported meat and foodstuffs, which do not meet the same requirements of animal welfare and environmental protection such as our home producers have to meet. That is another source of concern.
Perhaps my overriding concern is that we have seen already—despite the fact that they said that they would not do this—that the Government have overturned primary legislation through secondary legislation in the form of a statutory instrument in the past two weeks.
I have outstanding concerns on these amendments, but I respect the fact that our power is limited to scrutiny in this Chamber. I believe that the Bill is in a better place than when it was first introduced to this House, but I have concerns about what will happen when it leaves this place.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise briefly to express great concern about the lack of any offer on non-regression. I am going to bring this back to the absolute physical reality of the UK and the England that we are in today. In the other place, the Science, Innovation and Technology Committee has started an inquiry into the impact of insect decline on food security. If anyone wants to see the practical reality of this, I invite them to go out the back of the Foreign Office today, where a wonderful wildflower meadow has been created—they should go and look at it and ask where the insects are, because there are practically no insects there.
We have insect decline and a decline in our plants. Non-native plants now outnumber native plants in the UK: that is the state of the UK today. We have, right now, a huge, category 4 marine heatwave, which is going to have a huge impact on our marine world. It is very clear that the protections for the environment that we have now are vastly not enough, yet we are not promising even to maintain them. I ask everyone in this House to consider what people in the future will think when they look at today’s debate.
Lord Hope of Craighead (CB)
My Lords, I think it is appropriate that I speak to Motion B1 in my name, on the issue of parliamentary scrutiny. That issue remains as important this afternoon as it has been since the Bill first arrived in this House and the noble and learned Lord, Lord Judge, addressed us, with his usual skill, as to the importance of the issue. I have been doing my best to secure its place in the Bill at every stage, but each attempt has been rejected, either as novel and untested, which happened twice, or as incompatible with the system that the Bill lays down, on the last occasion. I regret very much that I have not been able to devise any other way of achieving that object that would be acceptable to the Government.
However, I did find two words, buried in a long and rather complicated paragraph in Schedule 5, which I think may at least open the door to something which is worth looking at more carefully, and that is the subject of my amendment. I am particularly grateful to the noble Lord, Lord Callanan, for being prepared to speak to me so that I could explain the purpose of my amendment and ask him whether he would be prepared to make a statement, in effect, giving me, in his words, what I was asking for in my amendment: words of explanation about these two words and reassurance about how the Government propose to respect the need for Parliament to be kept properly informed and consulted at each stage as the process of revocation proceeds.
The two words I am talking about, by way of explanation, are to be found in paragraph 6 of Schedule 5, which sets out an elaborate screening process in a case where a Minister is of the view that these statutory instruments should be subject to the negative procedure. The protection lies in the hands of screening committees of both Houses, which can take the view that the instrument should be subject to the affirmative procedure. If that is done, the Minister has the opportunity to give an explanation and perhaps try to persuade the committees to change their mind.
The important point for my purposes is to be found in sub-paragraph (12) and the words:
“Nothing in this paragraph prevents a Minister of the Crown from deciding at any time before a statutory instrument containing regulations under section 11, 12 or 14 is made that another procedure should apply in relation to the instrument”.
It is the words “another procedure” that caught my attention, because there is no further explanation in the schedule as to what that other procedure might be, except that in the following sub-paragraph there is a declaration that the statutory procedure for laying regulations in draft under the 1946 Act is not to apply, so we cannot have the statutory procedure of the 40-day period; that has been ruled out. My question to the Minister is: what is this other procedure that is available? The Minister has been very good in explaining in considerable detail what he builds into these words. In effect, he is providing me with exactly what my amendment is asking for. I welcome very much the clarity of his statement and we will of course bear it very closely in mind as the process proceeds.
My concern has always been that we are moving into the unknown. We have been told many times that the dashboard contains information. The dashboard sets out a list of names of the instruments, but it does not tell us, at least at the moment, what is to be done with them. That is the importance of the statement that the Minister has made today, because we need to be told, as everything proceeds, what is going on and what is planned and be able to express our views as to whether the proposals are acceptable or sensible or otherwise. I thank the Minister for his statement and I also express my warm thanks to all noble Lords who have supported me throughout my campaign and enabled me to maintain my campaign to the point I have reached today, but in the light of what the Minister has very kindly said, I am not intending to press my amendment.
Lord Hacking (Lab)
My Lords, I thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, for their persistence on these issues that they have brought before the House. I hear with a little disappointment that the noble and learned Lord does not intend to press further with his amendment in its current form. From their efforts, it is absolutely clear that this House strongly holds that, if the Bill is to become law, it must contain proper parliamentary scrutiny over the treatment of all EU legislation, whether that treatment is to revoke, amend or approve it. There are in the region of 4,000 regulations that need to be considered.
I remind the House of the Divisions that have resulted from these efforts. There have been three Divisions on Report and two more in our jousts with the Commons during so-called ping-pong. On each occasion, we have replied not to the Government as a whole or to the House of Commons as a whole, but to a small caucus of Government Ministers and parliamentary draftsmen. I ask noble Lords to look at the substantial numbers in the House—up to 400 Members and sometimes more—who voted on all five of these amendments. For example, on 6 June no fewer than 439 Members voted and on 20 June no fewer than 422. The majorities on each occasion ran between 91 and 60 votes.
The question is what happens now. Sadly, although most understandably, it appears that the noble and learned Lord, Lord Hope, and, I imagine, the noble Lord, Lord Anderson, are saying that this is the time to give up. This could bring the Parliament Acts into consideration. I will not go into them, but I have examined their application very carefully. I have also had good conversations with the noble Lord, Lord Fox—he need not look so startled; he must remember them—about their relevance. The serious difficulty with the Parliament Acts is that, if we held our ground, the House of Commons would have to present this Bill in its original form to the House of Lords. As the noble and learned Lord wisely commented to me, “Oh really?” I took that plainly as a riposte for us not to involve them. The question of the Parliament Acts must now arise on another occasion, which may not be far off.
Lord Fox (LD)
My Lords, for the record, my advice was to not apply the Parliament Acts.
The substantive point of this debate is to look at the two amendments and, in particular, to listen and understand what the Minister has said in response to those amendments. I am grateful for the interpretations of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Krebs.
I turn first to the amendment in the name of the noble Lord, Lord Krebs. It is clear that your Lordships have repeatedly expressed their concern about potential regression, especially around environmental rules. We have heard fulsome and completely true undertakings from the noble Lords, Lord Callanan and Lord Benyon, and others from the Dispatch Box in seeking to allay your Lordships’ fears. However, not every ministry and every Secretary of State has been represented. We only have to look at what happened over the weekend, when a Government Minister from the Department for Levelling Up took aim at pollution rules with a view to development issues, to know that there are potential problems around this. My noble friend Lady Parminter talked about canaries in coalmines; that was a canary. We have to hope and trust that the undertakings made by the noble Lords, Lord Callanan and Lord Benyon, are applied right across His Majesty’s Government. It is clear that, after repeated discussions, we will not be voting on this today.
I turn to the amendment in the name of the noble and learned Lord, Lord Hope. Your Lordships should thank not just the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, but the noble Lords, Lord Hamilton and Lord Hodgson, who have identified the issue of parliamentary sovereignty and worked hard to try to resolve it. The Minister himself spoke about the number of times this has come back. If it had not come back this time, the Minister would not have given the undertaking he just gave from the Dispatch Box which satisfied the noble and learned Lord, Lord Hope. The fact that it satisfied the noble and learned Lord means that it satisfies me.
We have been through a long journey but I do not think this journey has been in any way frivolous. It has been worthwhile, and it has exacted, as the Minister set out, many changes to the Bill. Your Lordships need to be proud of the work they have done on this Bill.
Baroness Chapman of Darlington (Lab)
My Lords, we agree with Amendments 15F and 42F from the noble Lord, Lord Krebs, and the noble and learned Lord, Lord Hope. We are sorry that the Government take the attitude they do to the involvement of Parliament in the scrutiny of retained law, especially as this House has been proved right on these issues. This House has given the Government good advice that they have largely ended up taking.
The amendment in lieu in the name of the noble and learned Lord, Lord Hope, simply asks that the Minister considers how regulations might best be dealt with. We note the assurances from the Minister; they have been, as the noble Lord, Lord Fox, rightly pointed out, hard-won. We thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, in particular for the sterling work they have done over many months to get as far as we have.
The amendment in the name of the noble Lord, Lord Krebs, would protect law on environmental standards. We think there are clear and obvious reasons to want to do this, not least because we want to see the environment protected. It is worth adding that the Government’s failure to support this point as fully as they could have done still leaves further uncertainty for business and potential investors about the exact nature of the framework that they would have to comply with. We are sorry about the approach the Government have taken.
We are very grateful to our Cross-Bench colleagues in particular for the work that they have put in. The Bill is in a much better place now than it was when we first encountered it—noble Lords will remember the sunset clause and the lengthy arguments we had over that. The Government did listen in the end, though initially with some reluctance. I hope that in time Ministers will see that that was the right decision. We have got to a better place this afternoon.
Lord Callanan (Con)
My Lords, I thank everyone who contributed to today’s debate. I will respond to some of the points that have been made. First, we take Dispatch Box commitments extremely seriously. I reiterate that this Government will not row back on our world-leading environmental protections, as I mentioned in my opening remarks.
To respond directly to the point made by the noble Lords, Lord Krebs and Lord Fox, and the noble Baroness, Lady Bennett, on this issue of non-regression, the fundamental problem is that nobody know what non-regression actually means. We all think we do, but putting it in primary legislation invites every change to environmental regulations to be challenged, as they inevitably would be, in the courts. The courts would then be asked to take a view on whether a particular change was regression or not. In effect, we would be transferring the legislative process from Parliament to the courts, on every individual regulation. Although we are content to say that we will not row back on environmental protections, that is the reason we are unwilling to see such a phrase placed in primary legislation. I am sure some of the environmental lobbyists and their lawyers would be very happy about all the work it would generate for them if we were to do so, but this is not the way to make legislation. We have to be clear about what we mean in Parliament. As I have said before, any regulation would have to be approved by this House and the other place, which is the appropriate place for these things to be decided. Great though the courts in this country are, it is not their job to legislate.
On the question raised by the noble and learned Lord, Lord Hope, paragraph (6)(12) of Schedule 5 to the Bill clarifies that the provisions of paragraph (6), which sets out processes relating to an instrument proposed as a negative instrument and subject to sifting, would not prevent a Minister deciding that another scrutiny procedure should apply to a particular instrument any time before that instrument is made. In deciding which other procedure should apply, the provisions of the Bill give a Minister a choice between the negative and the draft affirmative procedure, and in practice would give a Minister the ability to upgrade the scrutiny procedure from the negative to the draft affirmative procedure. The sifting committees already have the ability to recommend that regulations which the Government are proposing to make via the negative procedure are of such importance in their content that they should be upgraded to the affirmative procedure, which would then allow them to be debated as normal in both Houses. As I have set out today, and I am happy to repeat it again, on each and every occasion to date we have followed the sifting committee’s recommendations, and we will continue to do so if utilising the powers under this Bill.
We have debated these matters long and hard on many different occasions, as the noble Baroness, Lady Chapman, acknowledged. We have listened to the House; we have amended the Bill quite considerably in response to some of the concerns raised by noble Lords. This House has done its job in scrutinising the Bill. This House has asked the House of Commons to think again on a number of different occasions. It has thought again and it has responded. It is now time to let this Bill pass to Royal Assent.
Lord Krebs (CB)
My Lords, I thank all noble Lords who have taken part in this short debate today, and also on the previous occasions when we have debated these two amendments. I do not want to highlight any particular contribution, although I thank the noble Lord, Lord Fox, for introducing cricket last week and canaries this week; sport and birds are two of my favourite occupations, so I thank him very much for that. I thank the Minister for his patience throughout the many hours of debate, with its recursive nature that meant we kept coming back to the same arguments.
I do not totally buy what the Minister has just said about non-regression handing this over to the courts, and that the environmental groups would have a field day. Such groups could equally have a field day over the words that the Minister himself used about maintaining our high environmental standards. Surely the Bill could have defined what non-regression means in this context.
I do not buy the argument and I remain disappointed. Luckily for me, when I became head of an Oxford college 15 or so years ago, somebody bought me a book on how to deal with disappointment; that has come in very handy this afternoon so I am not going to throw a wobbly. In accepting the Government’s response, I think they will be aware, of course, that it is not just Members of your Lordships’ House who will be watching carefully to ensure that environmental standards are upheld; it is the wider public. We have only to look at the number of people who belong to organisations with an environmental interest, such as the National Trust and the Royal Society for the Protection of Birds, to realise that a very powerful force is out there.
There will be scrutiny of what the Government do. They will be held to account on “non-regression” or “maintaining high environmental standards”. I am sure that Ministers in this Administration and any future Administration will be fully aware of the public concern about the state of our environment, which was so eloquently illustrated by the noble Baroness, Lady Bennett of Manor Castle, a few minutes ago. Nevertheless, at this point, I beg leave to withdraw Motion A1.
Lord Callanan
That this House do not insist on its Amendment 42D, to which the Commons have disagreed for their Reason 42E.
Royal Assent
Thursday 29th June 2023
(10 months ago)
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