Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 25th October 2022
(1 year, 6 months ago)
Commons ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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
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.
Retained EU Law (Revocation and Reform) Bill (First sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 8th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 8 November 2022 - (8 Nov 2022)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
Retained EU Law (Revocation and Reform) Bill (Second sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 8th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 8 November 2022 - (8 Nov 2022)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
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.
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.
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.
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.
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.
Retained EU Law (Revocation and Reform) Bill (Third sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 22nd November 2022
(1 year, 5 months ago)
Public Bill CommitteesRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.”
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—
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.”
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.
Retained EU Law (Revocation and Reform) Bill (Fourth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 22nd November 2022
(1 year, 5 months ago)
Public Bill CommitteesRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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
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.
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).
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.
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.
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.
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?
Brendan O’Hara
I beg to move amendment 32, in clause 2, page 2, line 10, leave out subsection (3).
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)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 24th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 24 November 2022 - (24 Nov 2022)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
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?
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.
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)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 24th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
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
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
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.
Retained EU Law (Revocation and Reform) Bill (Seventh sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 29th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRetained 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
Retained EU Law (Revocation and Reform) Bill (Eighth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 29th November 2022
(1 year, 5 months ago)
Public Bill CommitteesRetained 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 18th January 2023
(1 year, 3 months ago)
Commons ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 6th February 2023
(1 year, 2 months ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 18 January 2023 - (18 Jan 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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 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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 6th February 2023
(1 year, 2 months ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 18 January 2023 - (18 Jan 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 23rd February 2023
(1 year, 2 months ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 89-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (22 Feb 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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.
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
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 23rd February 2023
(1 year, 2 months ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Amendment Paper: HL Bill 89-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (22 Feb 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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.
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 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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 28th February 2023
(1 year, 2 months ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 89-III Third marshalled list for Committee - (28 Feb 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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?
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.
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.
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.
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)
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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 2nd March 2023
(1 year, 2 months ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 89-IV Fourth marshalled list for Committee - (2 Mar 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 2nd March 2023
(1 year, 2 months ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 89-IV Fourth marshalled list for Committee - (2 Mar 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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 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.
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.
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 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.
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).
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 6th March 2023
(1 year, 1 month ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 89-V Fifth marshalled list for Committee - (6 Mar 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Callanan
That the House do now resolve itself into Committee.
Amendment to the Motion
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 .
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—
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.
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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 6th March 2023
(1 year, 1 month ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 89-V Fifth marshalled list for Committee - (6 Mar 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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?
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 8th March 2023
(1 year, 1 month ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 89-V Fifth marshalled list for Committee - (6 Mar 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 8th March 2023
(1 year, 1 month ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 89-V Fifth marshalled list for Committee - (6 Mar 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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).
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 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).
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 15th May 2023
(11 months, 3 weeks ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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.
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.
Lord Callanan
Member’s explanatory statement
This amendment leaves out clause 3 (extension of sunset under clause 1).
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 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.
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 Bellamy
Member’s explanatory statement
This amendment is consequential on the amendment at page 7, line 39.
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
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 15th May 2023
(11 months, 3 weeks ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 17th May 2023
(11 months, 3 weeks ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
Lord Callanan
Member’s explanatory statement
This amendment extends the consequential power in clause 20 to devolved authorities.
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”.
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”.
Lord Callanan
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)
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.
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.
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
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 22nd May 2023
(11 months, 2 weeks ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Amendment Paper: HL Bill 139-I Marshalled list for Third Reading - (19 May 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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.
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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 24th May 2023
(11 months, 2 weeks ago)
Commons ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: Commons Consideration of Lords Amendments as at 24 May 2023 - (24 May 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 6th June 2023
(11 months ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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 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—
Lord Callanan
That this House do not insist on its Amendment 42, to which the Commons have disagreed for their Reason 42A.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 12th June 2023
(10 months, 3 weeks ago)
Commons ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 20th June 2023
(10 months, 2 weeks ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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)
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 Callanan
That this House do not insist on its Amendment 42B, to which the Commons have disagreed for their Reason 42C.
Retained EU Law (Revocation and Reform) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 21st June 2023
(10 months, 2 weeks ago)
Commons ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate 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.
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 26th June 2023
(10 months, 1 week ago)
Lords ChamberRetained EU Law (Revocation and Reform) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 150-I Marshalled list for Consideration of Commons Reasons - (23 Jun 2023)
This text is a record of ministerial contributions to a debate held as part of the Retained EU Law (Revocation and Reform) Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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)
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.