Retained EU Law (Revocation and Reform) Bill

Baroness Bloomfield of Hinton Waldrist Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, this is a complete mess. I have listened very carefully to everything that has been said, and I could not identify a speech with which I disagreed. There are two principal problems with the Government’s approach: first, a lack of respect for the devolved Administrations, and, secondly, a chronic case of overconfidence on the part of Ministers.

It is difficult to know exactly where to start; I have so many notes. Which of these particular criticisms is the most important? I will allow the Minister to decide when she responds. It is clear that the dashboard has not been getting updated properly in partnership with the devolved Administrations. The sunset cannot be extended by devolved Administrations on their own, even if they feel that they cannot deal with the burden of the work imposed on them in time. Can the Minister write to update us on the work being done with the devolved Administrations on the dashboard, because it seems that that really underlies some of the concerns we have? From Wales and Scotland, we are picking up a deep dissatisfaction with how this work has taken place.

The noble Baroness, Lady McIntosh, made the really important point that the Government have had time between the Bill being debated in the other place and arriving here today to finesse their approach, shall we say, but I do not think that much has changed. This is a particular concern, as noble Lords have said, given the commitment made earlier this week by the Prime Minister, when he revealed the Windsor Framework, which we were all very pleased to see. We are very glad that the agreement announced earlier in the week has taken place; we were very concerned about the approach that the Government had taken prior to that, so we welcome it very much. If the measures are not dealt with by the dashboard and they fall, we could end up in a situation where we have divergence, not through a matter of policy or intent by the Government, but as a consequence of inaction and, in effect, by mistake. There may be consequences of that, which perhaps could be more pronounced for Northern Ireland than for elsewhere in the United Kingdom. I was very taken by the way that the noble Lord, Lord Wilson, put this—as there being horrible loose ends. That is a very good way of describing it.

These are very practical concerns and a number of noble Lords, in particular my noble friend Lady Andrews, have highlighted them. Like her, I completely support common frameworks. I remember when we debated them at length as part of the Brexit process. We tabled amendments to strength them, to make sure we had good oversight of them, and that there was proper engagement by the Ministers in the devolved Administrations. I think we did okay on some of that. Obviously, this is still relatively young, and we had all hoped, I think, that that process would become smoother and a little more relaxed, and that there could be more shared decision-making. I am particularly concerned about this, given my ambition—which I think is shared by many Ministers on the Government side, too—to see more devolution in England. So we really want this approach to improve as the years go on; it is not a surprise that there are shaky moments in the early years.

The Bill, perhaps more than any other we have seen, shows a complete disrespect to the devolved Administrations, and this lack of trust and respect is becoming more and more pronounced. There have been some sharp examples in recent months, and we need to get away from them. With this process, there is an opportunity to change our approach and to demonstrate that we want to work differently—and there is a real benefit to be gained from that.

The noble Lord, Lord Hannay, drew our attention to the lack of political engagement, as he put it, with the devolved Administrations, which is deeply concerning. The Minister, the noble Lord, Lord Callanan, as is his habit, is shaking his head from a sedentary position. If what the noble Lord, Lord Hannay, said is not true—as the noble Lord, Lord Callanan, has just suggested—perhaps the Minister could write to us to explain what form that political engagement is taking, what is being discussed and what progress has been made.

Trust matters, and I am afraid that it is in very short supply at the moment. I thank the noble and learned Lord, Lord Thomas, for his speech, because he developed a point that we were trying to make in the debates on previous groups about the risk of things being missed from the dashboard. There were points in our previous discussion where I felt that the Minister was almost saying, “Look, you are worrying unnecessarily—our civil servants know what they are doing, and we will have a very thorough look at this”. The noble and learned Lord described it as legal archaeology; I am a trained archaeologist, and I know very well how easy it is to miss things or to look at a site with a particular priority in mind. You can find very different conclusions looking at something today than you would have done looking at it 20 years ago, because your understanding develops all the time. That is one of the reasons that children are very good at archaeology: they spot absolutely everything.

The point that the noble and learned Lord was making is that things will be missed. Even the Government acknowledge that; they do not claim that the dashboard is comprehensive, or that it ever will be. That was clear from the letter that the Minister, the noble Baroness, Lady Bloomfield, sent us before the last Committee debate. I would not be surprised if she would want to withdraw that letter but, as she has not done so yet, it is the basis for our discussions. It is very clear from that that the dashboard will not be a comprehensive assessment of all retained EU law.

The request from the noble and learned Lord, Lord Thomas, for an explanation of the search methods is very good idea. We were told—with some pride—that one of the search methods was a key word search for “Europe” at the National Archives.

[Baroness Bloomfield of Hinton Waldrist (Con)]

It is one search method.

[Baroness Chapman of Darlington (Lab)]

The Ministers are saying that it is one search method, but that was the example given to us when we probed this at the roundtable meeting. That was the choice made by Ministers’ officials as an example intended to reassure us—but we are not reassured. The suggestion from the noble and learned Lord, Lord Thomas, for a fuller explanation is very good and helpful; it might provide the reassurance that Ministers were attempting to demonstrate earlier in the week.

While discussing the issue of devolution, I shall ask the Minister a question on something I do not quite follow—and Committee stage is about asking questions about things we do not quite follow. Perhaps she might write to me about it, but I draw her attention to paragraph 11(3) of Schedule 4, under Part 3, which describes the process that the Government want Welsh Ministers to undertake when they are tackling regulations. Can she explain this process? It says that Welsh Ministers will have to make a statement of their opinion on a particular measure; they will have to provide

“a draft of the instrument, and … a memorandum setting out the statement and the reasons for the Welsh Ministers’ opinion.”

That seems slightly different to the process we are undertaking here. In principle, there is nothing necessarily wrong with there being a difference, but I would like to understand what that is about and how the Government came to that. Was that something that came out of dialogue with the Welsh Government, or has it grown up through the department? Why is that happening?

There is no way that this will not come back on Report. I would be happy to support any of the amendments tabled in this group. We on these Benches would be very happy to work with noble Lords from across the House on arriving at an amendment that we think would achieve our aims most effectively. I look forward to doing that, but the preference would be that the Government had some further thought on this and brought back their own amendment, which would treat the devolved Administrations with far more respect and deal with the issues of overconfidence and the fact that measures are, likely if not certain, to be missed.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, this has been a very full and comprehensive debate—I did not expect anything less, given the subject matter. Amendments 29, 33, 34, 35, 36, 49, 55 and 147 seek to amend the sunset clause and the territorial scope of the Bill for the devolved Governments. I can but reiterate that the UK Government remain fully committed to the Sewel convention, committed to devolution and committed to working collaboratively and constructively with the devolved Governments. We have been proactively engaging with the devolved Governments, at both ministerial and official level, on the progress of the Bill and the wider retained EU law reform programme. The former Business Secretary engaged with the devolved Governments following the introduction of the Bill and, indeed, I have personally engaged with the Welsh Government to assure them of our respect and willingness to co-operate over legislative matters in general going forward.

In response to the noble Baronesses, Lady Randerson, Lady Hayman and Lady Chapman, I reassure the Committee that we are committed to working with the devolved Governments as we update the dashboard. We have established regular intergovernmental meetings intended to support devolved Government counterparts with the identification of which REUL is devolved or reserved as part of the REUL reform programme. The majority of the powers in the Bill are conferred concurrently on the devolved Governments, including the power to preserve retained EU law. This will enable them to make active decisions about the REUL within the devolved competence and decide which REUL they wish to preserve and assimilate, and which retained EU law they wish to allow to sunset. We remain committed to continuing discussions with the devolved Governments throughout the Bill’s passage over the use of concurrent powers within the Bill to ensure that they work for all parts of the UK. It is our expectation that the department will follow standard procedures regarding consultation and engagement with the devolved Governments during policy development.

I turn to Amendments 34, 35 and 36. These would exempt legislation relating to common frameworks from the sunset, restricting the sunset and preventing it delivering its objective to incentivise genuine reform across the United Kingdom. Among the proposed conditions is a proposal for a process to be agreed between the UK and devolved Governments for retained EU law within the scope of the common frameworks. We believe that common frameworks are integral to managing regulatory divergence in the areas they cover and provide a flexible governance tool for both the UK and devolved Governments. REUL is in scope of the common frameworks. This includes not just REUL operating within devolved competence but that same REUL operating in England. In some cases, this REUL will be UK-wide.

We believe it is simply not necessary to carve out REUL in scope of common frameworks. These are designed to manage divergence, including that which may result from the sunset. Both the UK and devolved Governments agree that, where common frameworks are operating, they are the right mechanism for discussing REUL reform in the areas they cover. To reassure the noble Baroness, Lady Andrews, who raised concerns about regulatory divergence, the Government will continue to work closely with the devolved Governments to manage intra-UK divergence, including through existing collaborative mechanisms, such as the common frameworks programme, which has been developed with the devolved Governments to enable joint working in devolved areas. The Government are committed to following common framework processes where they apply, to allow for a collaborative discussion of REUL reform.

Similar to previous amendments, Amendment 55 seeks to change the sunset date for legislation relating to the common frameworks to the end of 2026. That is likely to include devolved REUL, and also REUL in other UK jurisdictions corresponding to a devolved area. However, this amendment, tabled by the noble and learned Lord, Lord Hope, would amend the extension power in Clause 2, rather than just the sunset in Clause 1. While it is of course not appropriate to change the sunset date through Clause 2 alone, I reiterate that we simply do not believe there is a need to do so for retained EU law in scope of common frameworks. Moreover, pushing back the sunset for this legislation would remove the impetus for devolved Governments and relevant departments to review this legislation. Clause 2 already contains an extension mechanism capable of pushing the sunset back to 2026 for specified instruments or descriptions of legislation. We will work closely with the devolved authorities to ensure that selected legislation, including that within scope of common frameworks, is subject to an extended sunset where appropriate.

[Lord Hope of Craighead (CB)]

My Lords, what the Minister said about common frameworks is very encouraging and I absolutely understand what she has been saying in her description of the system. But is the procedure in Clause 2 capable of, let us say, exempting a particular common framework from the sunset in Clause 1? Does it fall within the formula set out in Clause 2, so that we could take, for example, the common framework on animal health, labelling or the ozone layer, and specify a common framework to be excluded? It would be encouraging if that were the case.

[Baroness Bloomfield of Hinton Waldrist (Con)]

We can, indeed, exclude a specific category of law from the REUL exclusions if it relates to a specific area such as animal health, or a particular category of common framework.

[Baroness Andrews (Lab)]

If that is the case, the logic is that all the common frameworks could be exempt. Is that not the case? If we can exempt one SI on animal welfare, there are 50 SIs on animal welfare; what would stop us exempting the whole of that tranche of SIs?

[Baroness Bloomfield of Hinton Waldrist (Con)]

While we will have the power to exempt, the whole point about the sunset date is to retain the rigour of going through the REUL legislation that we have—but we do still retain the ability, in Clause 2, to exempt certain categories from sunset.

[Baroness Andrews (Lab)]

Does the noble Baroness think that common frameworks will be a specific category?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I thought we were still discussing exemptions. Will the noble Baroness repeat her question?

[Baroness Andrews (Lab)]

I am asking whether there is the power to exempt a whole category, because we have not heard that before. Would not common frameworks, because they are discrete and have an integrity of their own, serving specific purposes, constitute a specific category?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think the answer is, not in their entirety, but a specific category that falls within common frameworks could indeed be excluded.

[Baroness Chapman of Darlington (Lab)]

Will the noble Baroness point us to where in the Bill we can find the definition of a category?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I will have to send that sort of detail out in writing, along with the other letters we are going to be writing in response to other questions.

[Lord Fox (LD)]

I apologise for intervening. I think what I heard is that Clause 2 gives the Government the power to do this; I did not hear from the noble Baroness that the Government have any inclination to actually use that power. Will she explain what criteria the Government would use to actually apply the power that she has just revealed to the Committee?

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

We will bear that in mind, but I cannot give specific criteria: we want to retain the ability to exclude specific pieces of legislation, as I have said, within a specific category.

[Baroness Randerson (LD)]

My Lords—

[Lord Carlile of Berriew (CB)]

My Lords—

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think I have taken enough interventions and I would like to make progress, please.

[Baroness Randerson (LD)]

I just make the point that, by definition, to be included in a common framework, the legislation concerned has been extensively examined by all the Governments concerned in the last couple of years. Therefore, it will not be subject to the sorts of anomalies that the noble Lord, Lord Callanan, referred to in our last debate.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I take the noble Baroness’s point.

[Lord Carlile of Berriew (CB)]

I have tried not to intervene so far, but I listened very carefully to what the noble Baroness has just said: does this mean that, if an application is made to a Minister to extend the sunset for a category or description of legislation, in accordance with Clause 2, and the Minister refuses, it will be “open sesame” for judicial review by those who regard such a decision as disproportionate and could render the whole of this legislation into something that will be litigated in the courts for years to come?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I acknowledge the noble Lord’s intervention but I cannot possibly respond at this stage. We must make progress.

Amendment 29 proposes exempting REUL within the competence of Scotland, Wales and Northern Ireland from the sunset. This would remove the devolved Governments’ incentive to review legislation on their statute books and hinders the sunset’s intention to bring about genuine reform. A sunset is the quickest and most effective way to accelerate the review of REUL on the UK statute book by a specific date in the near future. This will incentivise genuine REUL reform in a way that will work best for all parts of the UK. The territorial scope of the Bill will be UK-wide, and it is constitutionally appropriate that the sunset applies across all parts of the UK. However, the sunset does not affect the devolution settlements, nor is it intended to restrict the competence of either the devolved legislatures or the devolved Governments. Rather, this will enable the devolved Governments to make active—

[Baroness Crawley (Lab)]

The noble Baroness may well be coming to this, and she should tell me if she is. If the sunset brings rigour, as she has said, to the devolved Administrations—and to us, of course—does that mean that the Government accept our arguments about the lack of resources for the devolved Administrations and the lack of capacity of civil servants, because there are so few of them going through all this retained EU law throughout the devolved Administrations?

[Baroness Bloomfield of Hinton Waldrist (Con)]

We do not accept that. We know that there are capacity restraints within the devolved Governments, but the UK Government are also helping them go through the whole body of retained law. That work will progress and is an ongoing project as we go through this year. I may come on to more detail for the noble Baroness.

In relation to the noble Baroness’s specific comments on Northern Ireland, the Windsor Framework has no impact on the Bill. She can also rest assured that we have already committed to making sure that the necessary legislation is in place to uphold the UK’s international obligations—

[Baroness Chapman of Darlington (Lab)]

My Lords—

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think we need to make progress.

[Baroness Chapman of Darlington (Lab)]

The Minister is answering a different question.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I know, but we do need to make progress. This is the 10th intervention, and I am on paragraph 17. I think there is a limit to the number of interventions I need to take—but I will take the noble Baroness’s, because she is on the Front Bench.

[Baroness Chapman of Darlington (Lab)]

I am sorry, but my understanding is that there is not a limit on the number of interventions the Minister can take. Progress would probably be better if we had a better Bill in front of us. She answered a question by saying that the Windsor agreement has no impact on the Bill, but my question was whether the Bill could have an impact on the Windsor agreement, which is a very different thing.

[Baroness Bloomfield of Hinton Waldrist (Con)]

It has no impact on the Windsor agreement. I am assured by my colleagues and my briefing here that it has no impact.

Amendment 49, tabled by the noble Baroness, Lady Randerson, seeks to ensure that the UK Government have a complete understanding of their catalogue of REUL by allowing a Minister of the Crown to request that the devolved Governments identify REUL in areas of devolved competence within the scope of the sunset. While I concur with the sentiment of this amendment, again, the Government do not believe it is necessary but recognise the importance of having a shared and single understanding of reserved and devolved REUL across the UK Government and the devolved Governments.

We have established regular intergovernmental meetings intended to support devolved government counterparts with the identification of which REUL is devolved or reserved, as part of the REUL reform programme. Departments are also actively engaging directly with their devolved government counterparts as part of their business-as-usual engagement on the devolved status of REUL and their plans for REUL reform. On the point about pre-1999 legislation, where the legislation is devolved, the decision should be for devolved government Ministers, just like any other piece of devolved REUL. We will set out in writing the methodology for identifying REUL on the dashboard, as already committed by my noble friend Lady Neville-Rolfe in the session on Tuesday.

Amendment 33, tabled by the noble Baroness, Lady Ritchie of Downpatrick, would exempt from the sunset legislation relating to human rights, equality or environmental protection to the extent that the legislation has effect in Northern Ireland, including legislation within scope of Article 2 of the Northern Ireland protocol. We fully intend to maintain the UK’s leading role in the promotion and protection of human rights, equality, the rule of law and environmental protections. We are proud of our long and diverse history of freedoms and are committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the withdrawal agreement, the Northern Ireland protocol, and the trade and co-operation agreement after the sunset date.

--- Later in debate ---

[Lord Fox (LD)]

It was my noble friend Lady Randerson.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am sorry. I assure the noble Baroness, Lady Randerson, that there was no Machiavellian intent; rather, that date provides a ceiling for the presence of retained EU law on the UK’s statute book and gives adequate time to complete reform of the most ambitious nature in all areas. The 10th anniversary of the referendum vote served this purpose and offers a full-circle moment by which the UK can proudly proclaim that it has regained its sovereignty and has a fully independent domestic statute book—

[Lord Fox (LD)]

My Lords, I am unfamiliar with modern parlance. Could the Minister please define a “full-circle moment”?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think it is just a way of describing the 10-year anniversary of the referendum vote. It is just vernacular—

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

The process is finally complete.

[Baroness Bloomfield of Hinton Waldrist (Con)]

The process is finally complete, as my noble friend suggests.

On impact assessments, properly assessing the impact of government policy is an important principle of good governance, and the Government will continue to be committed to the appraisal of any regulatory changes relating to retained EU law. The nature of this appraisal will depend on the type of changes the departments make and the expected significance of the impacts. Where measures are being revoked, departments will be expected to undertake proportionate analytical appraisal, and we are exploring the appropriate steps we can take to appraise the resulting impacts.

I am fully conscious that a number of other specific points were raised, but I undertake that we will write back, particularly on methodology and definitions. However, for the reasons I have outlined, I ask the noble Baroness, Lady Humphreys, to withdraw her amendment.

[Baroness Humphreys (LD)]

I thank all noble Lords who have taken part in this debate, and offered their support to the devolved Administrations and recognised their very legitimate concerns regarding their devolved settlements.

Many of us might not like the Bill, but in this Committee we have seen this House at its very best. We have heard a number of speeches today that could be described as masterclasses, and it has been a pleasure and an honour to listen to them.

I will not comment on the noble Baroness’s reply other than to say that I appreciated her statement that the Government are committed to the Sewel convention. However, over the last few years, actions have spoken louder than words, so she will forgive me if I do not hold my breath.

I also welcome the commitment from the noble Baroness, Lady Chapman, to work across the House on amendments on Report; we on these Benches commit to that process.

We have been debating this for two hours and five minutes, and if everybody else is like me, lunchtime is calling. Therefore I will just say that the noble Baroness’s response will have given food for thought to those of us in this Chamber today, and we will doubtless want to renew our deliberations on Report. In light of that, I beg leave to withdraw my amendment.