Brexit: Legislating for the United Kingdom’s Withdrawal from the European Union

Baroness Hayter of Kentish Town Excerpts

Thursday 30th March 2017 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for repeating the Statement, which introduces one of three broad areas of scrutiny facing this House over the coming 18 months. The other elements are the array of primary legislation—anywhere between seven and 15 Bills covering agriculture, customs, immigration and all their associated SIs. Alongside this will be our scrutiny of the Government’s negotiation with the EU 27, culminating in a vote in this House on the final deal.

Today’s foreshadowed Bill is, in one way, the easiest of those three tasks, as it takes existing EU law and incorporates it into domestic law. However, we have heard the Secretary of State for International Trade arguing:

“To restore Britain’s competitiveness we must begin by deregulating the labour market”.


Meanwhile, the Foreign Secretary wants to use the “opportunity” to axe needless regulations that have “accreted” since Britain joined the EU. How do those comments chime with the Prime Minister’s introduction to the White Paper—and, indeed, the Government’s long-standing promise—which states:

“The same rules and laws will apply on the day after exit as on the day before”?


Will the Minister confirm that it is the Prime Minister who is the boss and that, despite the words of others, there is no intention to follow their madcap ideas within the repeal Bill?

Despite its aim of simply converting existing rules into UK law, the Bill will be, in the words of our Delegated Powers and Regulatory Reform Committee,

“a wholly exceptional piece of primary legislation”,

with implications for,

“the fundamental issue of the balance between the Executive and Parliament”.

We are pleased that the Secretary of State confirmed that delegated powers introduced by the Bill will be subject to time limits, but a number of concerns remain. At paragraph 3.21, the Government believe that current statutory instrument procedures in this House are sufficient for the task. We have our doubts—so will the Minister give serious consideration to our recommendations? They are: that an explanatory memo be published alongside each statutory instrument; that there will be early consultation with outside stakeholders; that there will be provision of a comprehensive delegated powers memorandum for Parliament when the Bill appears; that there will be provision of draft regulations, so that scrutiny can commence before the Bill is enacted, in view of the sheer scale and complexity of the secondary legislation; and, given that delegated legislation is unamendable, that there will be consideration of a strengthened scrutiny procedure to help ensure that Parliament retains some control over significant statutory instruments, including some “triage” of the various proposals. Everyone in this Chamber knows that our committees do excellent work on this, but it is clear that some form of extra capacity will be needed if we are to scrutinise the vast array of statutory instruments that are to come.

Many EU regulations are monitored or enforced by the Commission, the Court of Justice or another EU body. The question, therefore, is how the Government will ensure that the new regulations, once domesticated into UK law, will still be monitored and enforced. There is little point in entrenching EU rights and protections if the Government do not also make sure that they are enforceable. As converting EU acquis into domestic law will have significant implications for the devolution settlements, which were all premised on our continued membership of the EU, can the Minister tell the House about their plans for dealing with repatriation in areas of devolved competence, including London? In particular, can he provide assurance that consultation will improve?

Just yesterday, the First Minister in Wales confirmed that he had not seen the Article 50 letter in advance and had not been invited to contribute to its drafting. He described that as,

“unacceptable … the culmination of a deeply frustrating process in which the devolved Administrations have been persistently treated with a lack of respect”.

Today, again, he said on the White Paper:

“We are disappointed we were not given opportunity to contribute to its production, despite assurances that we would be”.


Is this the level of co-operation that the Government think is satisfactory?

Although lacking in certain respects, today’s White Paper provides some clarity. Labour has insisted that our withdrawal from the EU must not lead to a reduction in workplace rights or environmental and consumer protections. These must be retained with no qualifications, limitations or sunset clauses. The White Paper, although I have not had time to read every detail, seems to accept this entirely, and even sets out some welcome examples. However, given the comments by the Foreign and International Trade Secretaries, and the former chairman of the Conservative Party, there are dangers ahead.

If we are to do our job properly, we will need the resources and structures to deal with the avalanche of secondary legislation and a way of ensuring that delegated powers are limited, used only when it is vital and not misused. The Minister knows that the House stands ready to do what is needed, but we will need rather more detail and assurance before we can be sure that the Bill is fit for purpose. The Government stress the importance of sovereignty. For us, this means parliamentary sovereignty, not an unacceptable power grab by the Government. We will be watching you.