All 6 Baroness Humphreys contributions to the Retained EU Law (Revocation and Reform) Act 2023

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Retained EU Law (Revocation and Reform) Bill

Baroness Humphreys Excerpts
Baroness Humphreys Portrait Baroness Humphreys (LD)
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My Lords, I am grateful to the Delegated Powers and Regulatory Reform Committee, of which I am a very new member, for its report on this Bill and to Senedd Research for its informative legislative consent memoranda and other documents.

As the report from the Delegated Powers and Regulatory Reform Committee highlights, in 2018 the European Union (Withdrawal) Act promised that Parliament and the devolved legislatures would be able to decide which elements of some 3,000 or 4,000 pieces of retained EU law to keep, amend or repeal once the UK had left the EU. This retained EU law Bill cuts across that pledge and makes a mockery of the supposed argument for Brexit that the UK Parliament would be supreme and would be responsible for making our laws once we had left the EU.

The Bill, however, gives unfettered authority to Ministers through secondary legislation, bypassing both the UK Parliament and the Senedd in Wales. Such a blatant attack on the powers of the UK Parliament might be unusual but in Wales we have become rather used to this type of treatment, especially since 2019. Giving evidence to the Welsh Affairs Committee in November, the Welsh First Minister, Mark Drakeford, reflecting on the relationship between the two Governments and the increasing problems around the Sewel convention, said:

“We had engaged relationships with Conservative Governments from 2010 to 2019. We did not agree on many things, of course, but we were always around the table together talking. The exception in this … rule is the period from 2019 to earlier this year.”

The retained EU law Bill is a child of the Brexit Government who came to power in 2019. Since then, emboldened by their majority in the other place and fuelled by a unionism sometimes described as “aggressive”, they have ridden roughshod over the Sewel convention, they have usurped the powers of the Senedd and, in the Bill, they will also blatantly usurp the powers of the UK Parliament.

The Delegated Powers Committee’s report concludes:

“We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether. The shortcomings of this hyper-skeletal Bill justify our approach.”

The Welsh Government go further: I believe they have now recommended that the Senedd withholds consent for the Bill. The Welsh Counsel General and the Scottish Government’s Cabinet Secretary for the Constitution, External Affairs and Culture have published a joint letter in the Financial Times, calling for the Bill to be withdrawn. The devolved Administrations are preparing lists, reviewing thousands of pieces of retained EU law and seeking the Government’s help in ascertaining whether some laws are devolved or reserved, all in what appears to be a state of uncertainty, confusion and chaos.

The Bill allows an extension, to 2026, for the UK Ministers to complete their work, but Ministers in the devolved Administrations are restricted to the 2023 deadline. Welsh Ministers have requested an amendment to address this anomaly, but we still await a response. Will the Minister explain why there has been no response, address the anomaly and assure me that an amendment will be tabled by the Government? If he cannot do the latter, I will happily do so.

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Baroness Humphreys Excerpts
Moved by
29: Clause 1, page 1, line 6, at end insert—
“(1A) Subsection (1) does not apply to an instrument, or a provision of an instrument, that—(a) would be within the legislative competence of—(i) the Scottish Parliament if it were contained in an Act of the Scottish Parliament,(ii) Senedd Cymru if it were contained in an Act of Senedd Cymru, or(iii) the Northern Ireland Assembly if it were contained in an Act of the Northern Ireland Assembly, or(b) could be made in subordinate legislation by—(i) the Scottish Ministers, the First Minister or the Lord Advocate acting alone,(ii) the Welsh Ministers acting alone, or(iii) Ministers of the Northern Ireland Executive.”Member's explanatory statement
This amendment restricts the automatic revocation or “sunsetting” of EU-derived subordinate legislation and retained direct EU legislation under Clause 1 of the Bill so that it does not apply to legislation that is within the legislative competence of each of the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly or Executive.
Baroness Humphreys Portrait Baroness Humphreys (LD)
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I am grateful to the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, for adding their names to this amendment and for their support. I will also refer briefly to Amendment 49, tabled by the noble Baroness and the noble and learned Lord.

Amendment 29 is the first in a series of amendments which will enable your Lordships to explore the position of the devolved Governments on this Bill and to examine their response to it in detail. I will be speaking about the response of the Welsh Government, of course, but I recognise that other devolved Governments will have similar experiences and different problems.

The amendment restricts the sunsetting of EU legislation so that it does not apply to legislation that is within the legislative competence of the devolved Administrations—in essence, protecting the ability of the devolved Administrations to sunset their own retained EU laws. In general, I think it fair to say that the Welsh Government and the Senedd have very serious concerns about many aspects of the Bill, echoing those expressed by many of your Lordships at Second Reading. They have so many concerns that the Counsel General for Wales went so far as to say that the Welsh Government fundamentally oppose the whole intent of the Bill.

The Welsh Government’s position is that retained EU law works well for them in their areas of devolved competence and, again in the words of the Counsel General for Wales, that they had no intention of repealing, revoking or amending retained EU law to an arbitrary deadline, preferring gradually to amend the law as appropriate with evidence-gathering, public consultation and legislative scrutiny in the normal way over time, as with any body of law. Without the certainty that Amendment 29 gives and without an extension to the sunset, which we will debate in a later group, the Bill no longer gives them that option.

Amendment 29 addresses the concerns of the Welsh Government and Senedd Members who fear that the UK Government will attempt to take some responsibility—or just responsibility—for the sunsetting of laws in Wales. In January, the Senedd’s Legislation, Justice and Constitution Committee was very concerned about the position of devolved retained EU law and asked whether the Welsh Government had received reassurance from the UK Government that they will not change or remove devolved retained EU law without the consent of the Senedd. The Counsel General had not received reassurances a month ago. Can the Minister give those reassurances today? Senedd Members are obviously concerned about the impact of the UK Government proposing legislation such as this. They believe that by default it could repeal essential economic, social and environmental protections—protections that the Welsh Government believe are essential for the operation of their policies on behalf of the people of Wales, and that this is unacceptable.

The Welsh Government have said that their prime focus is

“firstly to ensure that we analyse and retain our own EU retained law, that we focus on that law that’s been made within Wales”.

This is the primary reason for putting down this amendment. It is designed to ensure that the legislative competence of the Senedd is recognised and protected, and that responsibility for sunsetting EU-derived subordinate legislation and retained direct EU legislation lies with the Senedd.

My noble friend’s Amendment 49 asks for a progress report on the identification of EU legislation that has been incorporated into law by the devolved Administrations. I will leave my noble friend to deal with the details when she speaks to her amendment, but I will make a brief comment. I did expect this exercise to be a joint venture, with the UK Government assisting or even leading in the identification of the various pieces of legislation that fall under the Bill, but a few difficulties have arisen. This amendment has my full support and I hope the Minister will update the Committee on progress. I beg to move.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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I have added my name to the amendment in the name of the noble Baroness, Lady Humphreys, which has my full support, but I will also speak briefly to two other amendments in this group in my name—Amendments 34 and 55—which have the support of the noble Lord, Lord Murphy.

Everything the noble Baroness said on Wales applies equally to the position in Scotland, which is just as acute and difficult. I will give some figures on the problem we face. If you examine the dashboard and look, for example, at entries that relate to the responsibilities of Defra, which cover a lot of the work done in Wales and Scotland, you will find 1,781 such entries. Mention is made in this clause of legislation relating to Wales and Scotland, but the numbers are tiny compared to those recorded for Defra itself: there are only 30 relating to Scotland and 15 to Wales, and they concern only agriculture among Defra’s much wider responsibilities. So, I detect that the no doubt authoritative information in the dashboard is incomplete, especially for the devolved Administrations, which illustrates the great problem to which these amendments direct our attention.

May I venture to suggest one other problem, which relates to the relationship with the devolved Administrations? In its report of some two years ago, the Constitution Committee indicated, with the support of the Government’s reply, that the watchwords in dealing with the devolved Administrations should be “respect” and “co-operation”, and that, indeed, is what the noble Baroness’s amendment is all about. One of the extraordinary things about the Bill is that there was no sign of any attempt to discuss the sunset date with the devolved Administrations before it was introduced last September. If I am wrong about this, I am sure I will be corrected by the Minister, but all the signs are that the work simply was not done before the sunset date was set. Indeed, before the Bill reached this House, I do not think much work was done otherwise.

I therefore have a particular question for the Minister on something to which this House is entitled to an answer anyway: what is the present state of discussions with these two devolved Administrations about the possibility of a legislative consent agreement? As the Bill stands, it is clear that neither Administration would give its consent, but the Government’s responsibility is to continue discussions with them. We need to know what work is being done, whether work is continuing to achieve agreement and what the disagreements, if any, relate to. We probably all know what they are, but the Minister needs to update the House at some point during Committee. When the matter comes back on Report, we will expect a complete account of the relationship with the devolved Administrations in relation to legislative consent.

The noble Baroness’s Amendment 29 seeks to remove all legislation that is within devolved competence from the automatic sunset. It will then be for the Government to find another date after discussion with the devolved Administrations. As I said when we discussed this on Tuesday, I believe in sunset dates to make sure there is some pressure to get the work done, but it must be a proper date that is discussed with the devolved Administrations so they can reasonably meet it.

Amendment 49, which is supported by my noble friend Lady Finlay of Llandaff, is a probing amendment seeking information that should have been in the Government’s hands long ago. It makes the same point made by the noble Baroness, Lady Humphreys, on the lack of a clear and comprehensive statement. There is a real problem here of finding out what the legislation is dealing with. Direct EU legislation is not difficult to find and, from the work we do in the Common Frameworks Scrutiny Committee, we can identify it readily. The difficulty arises with EU-derived subordinate legislation and UK legislation relating to the subject matter, which has to be sorted out and understood before one gets into identifying what EU-derived legislation needs to be dealt with. This suggests that each SI in these subject areas needs to be examined and studied very carefully to see what legislative power is being exercised.

Once again, I stress that the Committee needs to know what risks the devolved Administrations are being confronted with. We need a full, frank, detailed and honest assessment. We will come back to this matter when we discuss my noble and learned friend Lord Judge’s Amendment 32 in a later group. For these reasons, I support Amendment 29, tabled by the noble Baroness, Lady Humphreys, and Amendment 49, tabled by the noble Baroness, Lady Randerson.

I turn to an entirely different matter that is the subject of Amendments 34 and 55, which deal with sunsetting the common frameworks. Amendment 34 seeks to disapply the sunset to legislation relevant to the policy content of the common frameworks. Amendment 35, tabled by the noble Baroness, Lady McIntosh, is similar. Amendment 55 suggests a different sunset for the common frameworks, at the end of 2026.

The problem that these amendments seek to address is that, as far as I can detect, the Bill seems to ignore and thus undermine the role of the common frameworks, which are designed to be guided by consensus across all four Governments. That is what “common” means in this rather strange formula; the frameworks are common to the four Administrations, which all have a share in this process, which proceeds with discussion and common understanding. They allow for divergence for reasons of policy, as Section 10 of the United Kingdom Internal Market Act recognises, but only where there is agreement among them all. There is a dispute resolution process, but I do not believe that it was designed for the kinds of disagreements that may arise if the procedures in the Bill are applied to them. The Minister needs to consider the position of the common frameworks much more carefully regarding the work that is proposed.

I should give some indication of the ground that the common frameworks cover and their importance to the way in which the United Kingdom’s internal market is being developed, with the willing co-operation of the devolved Administrations. There are 32 common frameworks, extending over the work of seven government departments, ranging from what was BEIS to the Department for Transport. Fourteen of them relate to Defra, as I mentioned earlier, and its equivalents in the devolved Administrations. I will not set out the full list, but they include animal health and welfare, chemicals and pesticides, ozone-depleting substances and fluoridated gases, plant health, air quality, and food labelling and compositional standards. These are extremely important areas of our internal market, which are well settled in the frameworks and should not be disturbed.

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Baroness Bloomfield of Hinton Waldrist Portrait Baroness Bloomfield of Hinton Waldrist (Con)
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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 Portrait Baroness Humphreys (LD)
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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.

Amendment 29 withdrawn.

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Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering (Con)
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My Lords, in moving Amendment 51, I shall speak also to Amendments 53 and 56. I look forward to hearing from others who are speaking to their amendments in this group: the noble Baroness, Lady Humphreys, my noble friend Lady Lawlor, the noble Lords, Lord Whitty and Lord Fox, and the noble and learned Lord, Lord Hope, with whose amendments in this group I have much sympathy.

Amendment 51 is a simple amendment which would leave out “Minister of the Crown” and insert “a relevant national authority”. The point of the amendment is to ensure that any relevant national authority, as defined in Clause 21(1), can extend the sunset referred to in Clause 1.

The reason I move this amendment is that the Bill currently proposes, in Clause 2, that only a Minister of the Crown can make regulations to extend the sunset period. In my view it is inappropriate that Ministers in the devolved Administrations cannot carry out the same function in respect of the retained European Union law that applies in their respective devolved competencies. Limiting this power to a Minister of the Crown appears to be at odds with paragraph 60 of the Explanatory Notes to the Bill:

“The Government also remains committed to respecting the devolution settlements and the Sewel Convention, and has ensured that the Bill will not alter the devolution settlements and will not intrinsically create greater intra-UK divergence.”

The point of this amendment is to assist the Government in this regard. It provides devolved Ministers with the power to extend the sunset deadline. Amendment 53 is merely consequential on this amendment.

Amendment 56 intends to delete Clause 2(4) at line 18 of page 2. Clause 2(1) provides that:

“A Minister of the Crown may by regulations provide that … the reference in section 1(1) to the end of 2023”

should specify a later time. Clause 2(4) provides that the later time cannot be

“later than the end of 23 June 2026”,

which happens to be the 10th anniversary of the date on which the referendum on UK membership of the European Union was held.

In my view and that of the Law Society of Scotland, which helped me draft this amendment, government policy in relation to the applicability of retained EU law should not be made on the basis of symbolism. There is no need to set such a deadline, and I seek to understand why my noble friend the Minister is putting such an arbitrary deadline in the Bill. Were any deadline to be necessary, this should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and consultation with those who will be affected by the variational revocation proposed by the regulations in question. In any event, in the opinion of the Law Society of Scotland, with which I agree, the sunset provision should operate from 31 December 2028 at the earliest. Clearly, the possibility of any extension of a sunset provision should run for a period after that date.

In an earlier debate, the noble Baroness, Lady Jones of Moulsecoomb, and others referred to the political dimensions of parts of the Bill. I ask my noble friend to confirm that it is not purely for political symbolism that the Government have fixed on this deadline.

I also request that the point I raised in the debate on the first group of amendments be now positively responded to. In summing up this group of amendments, can my noble friend tell me how the Government intend to respond to withdrawal of consent by the Scottish Parliament? How do the Government intend to respond to the amendments the Scottish Parliament has published and tabled in this regard? With those few remarks, and looking forward to the other contributions, I beg to move.

Baroness Humphreys Portrait Baroness Humphreys (LD)
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My Lords, I shall speak to Amendment 54 in my name, Amendments 51 and 53 in the name of the noble Baroness, Lady McIntosh of Pickering, and Amendment 58 in the name of the noble and learned Lord, Lord Hope of Craighead, all of which I support. I thank the noble Baroness for explaining her amendment so clearly.

Amendment 51 would ensure that any national authority could extend the sunset and, usefully, points to the definition of “national authority” in Clause 21. Amendment 53 would extend the sunset until the end of 2028. The noble and learned Lord’s amendment would very helpfully give Scottish and Welsh Ministers a power to extend the sunset date for devolved retained EU law, equivalent to that conferred on a Minister of the Crown by Clause 2.

My Amendment 54 continues on from those three amendments by clarifying what provisions would be devolved and would therefore be under the competence of Scottish Ministers, Welsh Ministers or the Ministers of the Northern Ireland Executive for decision, rather than a Secretary of State. I am grateful to both noble Lords for tabling their amendments, which highlight and address the anomaly that has stood out in this Bill: they give the Minister the opportunity to explain fully the reasoning behind the Government’s decision to allow an extension to the sunset beyond the end of this year for the Secretary of State while withholding the availability of such an extension for Ministers in the devolved Administrations.

I should add that the Minister has already dealt with that issue in her response to this morning’s debate but I am afraid that I missed the detail. I shall read Hansard and reserve the right to come back to this issue at a later stage if I need to, but perhaps if she or her noble friend have anything to add then they will do so. I am also grateful to the noble and learned Lord for his Amendment 58, which puts the powers of the Welsh Ministers over devolved retained EU law on a par with that of the Secretary of State.

Why do the devolved Administrations need these amendments? The arbitrary cut-off date of the end of 2023 has no logic other than a political one. The cynic in me believes that the UK Government want to clear the decks before the next election, probably next year, so that they can claim that EU law no longer exists in the UK, no matter the damage which that causes and the complexity of the task.

In an earlier debate I referred to the Welsh Government’s response to the Bill, and I shall use those points again in relation to the debate on these amendments. The Welsh Government feel that the Bill is unnecessary and that the EU laws have worked well for them. Their preference would be to continue with the present laws and amend them gradually over time as the need arises. An extension to the sunset until 2028 would allow them to deal with the process in a more timely and considered manner. The workload for Members of the devolved Administrations and their comparatively small teams of civil servants has already been referred to. They have dealt with a massive amount of UK legislation over the last few years. They have struggled with complex Bills that have provided increasing challenges to their devolved settlements and have led to increasing calls for the codification of the Sewel convention.

My Amendment 54 would clarify what is devolved and, if placed in the Bill, would bring certainty for Welsh Ministers to act on devolved matters without interference. This Bill has added further pressure on the Welsh Government, as Members have already said, and one feels the sense of their being overwhelmed. There are difficult decisions to be made, as they consider whether more civil servants will have to be employed or whether the redirecting of officers to work on the Bill will be sufficient. The latter, of course, has an impact on the legislative programme that the Senedd would wish to implement and the former has an impact on its budget.

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Similarly, Amendment 56ZA from my noble friend Lady Lawlor seeks to change the limitation on the extension date, bringing it forward to 23 June 2024. I greatly admire my noble friend’s ambition. She is even more ambitious than the Government, and I thank her for that. However, the extension mechanism was included in the Bill to allow additional time for the reforms. As I said, I appreciate her ambition to restrict it to 2024, but we do not believe that this will offer sufficient time properly to assess the retained EU law that has been extended, and as such we feel it would water down the purpose of this clause. With respect, I believe that 23 June 2026 is the more pragmatic option, but my noble friend should continue pressing the Government to get on with this.
Baroness Humphreys Portrait Baroness Humphreys (LD)
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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 Portrait Lord Callanan (Con)
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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.

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Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering (Con)
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My Lords, I am delighted that we have reached this group, which concerns restatement powers. The two most radical amendments in this group will probably capture the Committee’s imagination more than my more modest ones; I look forward to hearing from the authors of the amendments on whether Clauses 12 and 13 should stand part of the Bill.

I want to speak briefly to the amendments in my name. Amendment 102 would require

“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them.”

This would require all

“relevant national authorities … to publish the results of the consultation.”

Why is this necessary? Under Clause 12, a relevant national authority

“may by regulations restate, to any extent, any secondary retained EU law.”

Clause 14 states:

“A restatement may use words or concepts that are different from those used in the law being restated”


“may make any change which the relevant national authority considers appropriate for … resolving ambiguities … removing doubts or anomalies … facilitating improvement in the clarity or accessibility of the law (including by omitting anything which is legally unnecessary).”

Given the debates that we have had, this will increase the uncertainty and lack of clarity. I am grateful to the Law Society of Scotland, which proposed Amendment 102. Its purpose is that such changes, which may obviously be considerable, should require to be consulted on.

Amendment 105 would require

“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them. All relevant national authorities are required to publish the results of the consultation.”

I will not rehearse this. It is very similar under Clauses 13 and 14 to what I referred to under Amendment 102. However, as these changes would again be major, they should be consulted on, as is laid out in this amendment. I beseech my noble friend Lord Hamilton of Epsom that, if he is seeking clarity and certainty and wants a short deadline, he must share my concern that the clauses dealt with in this group will have quite the contrary effect to that which he referred to.

Amendment 107 has a similar requirement on a national authority to consult all the national authorities to publish the results of the consultation. Clause 13(8) states that:

“A relevant national authority may by regulations reproduce, to any extent, the effect that anything which was retained EU law by virtue of section 4 or 6(3) or (6) of European Union (Withdrawal) Act 2018 would have, but for sections 3 to 5 of this Act.”

Again, this is a significant regulation-making power which could affect a large number of individuals and businesses. Surely my noble friend and the Government would wish that they and the devolved Administrations consult before making such wide-ranging regulations as those envisaged in this clause. Therefore, under the terms of this amendment, a Minister of the Crown would be obliged to consult a devolved Administration before making regulations concerning devolved matters.

Amendment 108 looks to extend the statutory deadline from 23 June 2026 to 31 December 2028, a mere 18 months,

“within which a restatement of assimilated law or reproduction of sunsetted retained EU rights, powers, liabilities may be made.”

It cannot be right to have such a short deadline giving such wide-ranging powers. Therefore, in my humble submission, the deadline needs to be extended to allow sufficient time for the exercise of going through what the impact on the Government, the devolved Administrations and all the interested parties would be. A better and more realistic deadline, capable of being met, would be 31 December 2028.

Amendment 109 is purely consequential, extending the deadline from the end of 2023 to 31 December 2028. I am delighted to say that Amendment 110 would have a similar effect by leaving out Clause 14(7), which states:

“The provision that may be made by regulations under section 12 or 13 may be made by modifying any enactment.”

That is an extremely broad Henry VIII power to empower Ministers to amend any enactment. It is identified by the Secondary Legislation Scrutiny Committee in its 28th report, Losing Control?, as too broad a power. Therefore, Amendment 110 gives my noble friend and the Government the opportunity to explain why such a broad power is necessary.

I hope that my noble friend will look extremely favourably on this small but perfectly formed group of amendments. With those few remarks, I beg to move.

Baroness Humphreys Portrait Baroness Humphreys (LD)
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My Lords, I will speak to Amendments 103 and 106 in my name. My Amendment 103 is an amendment to Clause 12. It ensures that a legislative consent Motion must be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to restate secondary retained EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.

Amendment 106 is an amendment to Clause 13. It has the same effect as Amendment 103 but refers to the restating of secondary assimilated law, and therefore is exercisable from only 1 January 2024. Both clauses are commented on in the report from the Delegated Powers and Regulatory Reform Committee, which was concerned about the way that they “inappropriately delegate legislative power”. It recommended that they should be removed from the Bill. The committee said that both clauses gave Ministers power to legislate and achieve effects that ought instead to belong to Parliament and be achieved in subject-specific primary legislation. My noble friend Lady Ludford will speak to Clauses 12 and 13 not standing part of the Bill.

Our debate on Amendment 58 last Thursday warranted far more time and attention than we gave it. We saw there that the UK Government appear ready to take over the powers of the devolved nations when they think that they can. I was particularly grateful to the noble Lord, Lord Collins of Highbury, who is in his place, for probing powers over sunsetting and what the noble and learned Lord, Lord Thomas of Cwmgiedd, referred to as the

“equality of treatment between the various Governments of the United Kingdom.”—[Official Report, 2/3/23; col. 467.]

I am sure that we will return to this issue at a later stage of the Bill.

With the UK Government’s attitude to the devolved legislatures in mind, the Delegated Powers and Regulatory Reform Committee’s very significant sentence in the report seems pertinent:

“The powers conferred by clause 12 are open-ended, there being no requirement for consultation, for criteria to be met or for pre-conditions to be satisfied.”

The committee was of course concerned about the powers of Ministers to legislate, to achieve effects that ought instead to belong to Parliament. The powers of the Senedd are implicit in this, and the belonging should also extend to them.

I want to make a few comments about consent, the Sewel convention, and the powers of the Senedd. I was part of the first intake of Members to the Welsh Assembly, as it was then, in 1999. I have watched its powers grow as a result of the votes of the people of Wales in referenda over the years. I welcomed the introduction of the Sewel convention and its assertion that the UK Government would not normally legislate in devolved areas without consent, to protect and defend the powers of Welsh Ministers and the Senedd itself. That welcome was tempered by a concern shared by many others about the definition of “normally”. Our concerns have been justified. Despite assurances from Ministers during the progress of the Bill, recent history has shown that reality is completely different. Over the last three years or so we have been faced with an increasing disregard for the powers of the devolved legislatures, and an attitude which borders on contempt for the legislative consent Motions.

It is now accepted that the Sewel convention is no longer working. Sadly, its operation is seen as the biggest constitutional issue facing Wales. The First Minister has called for the re-establishment of the way in which the convention was respected from 1999 to 2019 and has supported the intergovernmental agreement that will lead to “some work” being done on how the Sewel convention could be strengthened. As he said in his recent appearance before the Commons Welsh Affairs Committee,

“if you cannot repair the Sewel convention, then one of the major underpinning props of the devolution settlement has simply been kicked from under it.”

Retained EU Law (Revocation and Reform) Bill

Baroness Humphreys Excerpts
Lord Bruce of Bennachie Portrait Lord Bruce of Bennachie (LD)
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My Lords, Amendment 117 is in my name and that of my noble friend Lady Randerson. I apologise to noble Lords that I have not spoken on the Bill so far—it is not for want of interest but because of conflicting engagements. I tabled this amendment because, although common frameworks have already been debated in Committee, I and other members of the Common Frameworks Scrutiny Committee remain concerned about the uncertainties attaching to them.

Our committee has been absolutely crucial to the progress of common frameworks, which might have somewhat run into the sand if we had not had such an active committee and energetic chair, making sure that the departments were following through. On many occasions, we pushed departments back more than once to get sufficient detail and to get them to engage in the process, in which they sometimes appeared to show a lack of interest.

I also have to say—this is a slightly more topical issue—that the process among the civil servants has been led, of course, by Sue Gray. With the departure of Sue Gray, it would be good to know who is going to take over that responsibility. I think the committee accepted that she was, in evidence that she has given to us, extremely vigorous in ensuring that at least the civil servants were engaging in it in a serious amount of detail. The commitment of Ministers has been, at best, somewhat variable.

The problem, too, is that different Administrations have had a different direction on common frameworks. In our engagement with Wales, you have an Administration who desperately want devolution to work, and to work effectively, and are frustrated that the UK Government do not appear to be quite as committed to that. In Scotland, of course, the Government do not want devolution to work, do not believe in devolution and try to pretend that Scotland is independent, claiming that any engagement from the UK Government is somehow an interference in Scotland’s sovereign right, which many of us feel fails to understand the common interest that Scotland has with the rest of the UK.

It is a fact that common frameworks have been designed to get all the relevant partners—and I know that my noble friend Lady Randerson is particularly concerned that that includes stakeholders—to be brought together to try to work out how devolution will work in a post-Brexit world, where previously the umbrella of the EU was the framework for operation. Apart from agreeing how the policies would be laid out and setting out in detail a framework, they all also had dispute resolution mechanisms: detailed and systematic mechanisms to ensure that disputes could be resolved and, wherever possible—and to date that has been the case—without even necessarily having the engagement of Ministers.

In many ways, we have been impressed by those processes, which could apply outside common frameworks much more widely. The remaining flaw in all that, of course, is that the ultimate final appeal rests with the UK Minister and, on occasion, it seems that UK Ministers, knowing that to be the fact, are less engaged with the concerns and anxieties of the devolved Administrations—and I would suggest that that really has to stop.

Before this Bill came along, we had the internal market Bill—now Act—which also cut across common frameworks. Fortunately, the noble and learned Lord, Lord Hope, secured an amendment in this House to allow for divergence opt-outs to be agreed, albeit at the discretion of UK Ministers. That has been used in the case of single-use plastics, but I suggest that UK and Scottish Ministers have rather stumbled in relation to the deposit return scheme. The Secretary of State for Scotland, Alister Jack, said that he was minded to reject the scheme, but did so before it was revealed that the responsible Minister in the Scottish Government, Lorna Slater, had not even asked for a departure. I suggest that the Secretary of State was overeager and that she was rather behind the curve—the net result being that we are still in some degree of confusion.

In the leadership contest that is going on north of the border, one candidate has implied that somehow UK Ministers are itching to overturn devolution decisions by Ministers at every twist and turn. I genuinely do not believe that to be the case, but it is genuinely important that the UK Government do not give the impression that that is the case and that they recognise that they have to tread with respect and carefully in trying to ensure agreed and respectful decisions sometimes to differ.

I come to my final point. Having had that Bill, we now have this Bill and a total lack of clarity—apart from the fact that the Bill is totally devoid of clarity in any case—as to how any decisions that Ministers might make could impact on these common frameworks, not all of which have been completed but which, thanks to the committee, have been worked through, painstakingly and in considerable detail, to make sure that devolution can proceed in a constructive, fair-minded way, with proper ways of resolving disputes and taking decisions beforehand.

The purpose of this amendment is to seek clear reassurance that the Government will not proceed with measures under this Bill that cut across common frameworks and, in particular, the dispute resolution mechanisms within those frameworks. It is a very simple proposition and one that I think the Minister ought to be able to accept. I beg to move.

Baroness Humphreys Portrait Baroness Humphreys (LD)
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My Lords, my Amendment 118 brings us, once again, to the issue of devolution, the powers of the devolved legislatures and the protection of those powers by legislative consent Motions.

I have spoken to a number of amendments in Committee and expressed my concerns about the way that confidence in the Sewel convention has been eroded over the last few years and how legislative consent Motions have been degraded and disregarded. At each stage, the Minister has sought to reassure me that my fears for the future of our devolved settlements are unfounded but, as I have said before, our experience often tells us a different story. I have therefore tabled Amendment 118 to Clause 15, seeking to ensure that a legislative consent Motion be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to revoke or replace secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.

Three of your Lordships’ committees have published reports that have included criticism of Clause 15; the issues that they have highlighted are serious and deserve to be debated. The Delegated Powers Committee has recommended that Clause 15 be removed from the Bill because it

“contains an inappropriate delegation of legislative power”.

It says that Clause 15 is

“the most arresting clause in the Bill for its width, novelty and uncertainty.”

Why is this clause arresting? It gives Ministers extraordinarily wide discretion in relation to thousands of secondary EU laws; for example, one option under this clause allows Ministers, as the committee says,

“by regulations to … revoke any secondary REUL and make such alternative provision as Ministers consider appropriate, including with completely different objectives.”

This is, the report says,

“a power to do anything Ministers wish to do”

with retained EU law until 2026.

I appreciate that the Minister has spent time in Committee reassuring me and other noble Lords that the powers of the devolved legislatures are not under threat. I would like to believe that he believes what he says but can he explain, if this clause were to pass, how certain I could be that some other Minister would not use it to make regulations to revoke or replace any piece of secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature?

Ministers will have the power under this part of Clause 15 to do anything, so who or what will stop them acting in devolved areas if they so choose? We received a letter this morning from the noble Baroness the Minister, and I am sure that she or the noble Lord the Minister will summarise the points it contains in their response in relation to these powers.

Retained EU Law (Revocation and Reform) Bill Debate

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Department: Department for Energy Security & Net Zero

Retained EU Law (Revocation and Reform) Bill

Baroness Humphreys Excerpts
Baroness Ritchie of Downpatrick Portrait Baroness Ritchie of Downpatrick (Lab)
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My Lords, I speak to Amendments 41 and 46 in my name. These amendments would ensure that a substantial policy change in human rights, equality and environmental protection in Northern Ireland may not be effected by the exercise of delegated powers. Given the ongoing lack of a functioning Executive and sitting Assembly, this raises serious concerns about the implementation of the Bill in Northern Ireland, and the amendments in my name would add a helpful safeguard in these challenging circumstances. Therefore, to be brief, I ask the Minister to give careful consideration to, and accept, the amendments as a means of ensuring that the devolution settlement in Northern Ireland is protected and that issues of equality and human rights and environmental considerations are all protected, as required under the Good Friday agreement.

Baroness Humphreys Portrait Baroness Humphreys (LD)
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My Lords, I shall speak briefly to amendments in this group tabled by the noble and learned Lord, Lord Hope of Craighead, to which I have added my name, and I thank him for introducing the amendments so clearly and comprehensively.

I am grateful to the noble Lord the Minister—or perhaps to the noble Baroness, Lady Neville-Rolfe—for the concessions the Government have brought to Report. The Bill is in a better state than when we first debated it at Second Reading, and many of the House’s concerns have been addressed, but there remain some significant issues pertaining to the Bill on which I hope that the Minister will look favourably.

The amendments deal with obtaining the consent of the devolved legislatures to the making of regulations that fall within their devolved competence, and equivalence of powers for Ministers where the provisions of regulations again fall within the devolved competence of the legislatures. It is clear that these amendments do not seek additional powers for the devolved legislatures; they merely secure those powers that the legislatures already have—powers devolved to them by this Parliament but which the Bill ignores or chooses to overlook.

One of my main concerns about the Bill in its original form was that it usurped the powers of this Parliament and those of the devolved legislatures, and this view was echoed across the House. In Committee, I was heartened to hear strong and powerful speeches from those on Benches across the House in support of the devolved Administrations and legislatures, and I thank those who spoke for their support.

The noble Baroness, Lady McIntosh of Pickering, reflected my view when she said—and I hope my précis of her comments does her justice—that she might not necessarily support a political party in power in a devolved legislature, but that her focus and support was on the legislature itself. I think that reflects the view of many in this House, and certainly those on these Benches.

In his letter to us, the Minister said that he had listened to the House and, in fairness, he has—to an extent. I hope he is still in listening mode and, as I said earlier, will be able to look favourably on these amendments.

Finally, as this will be my last contribution in debates on the Bill, I express my gratitude to the noble and learned Lord, Lord Hope of Craighead, for the part he has played in its progress and improvement. His leadership, knowledge of constitutional and devolved matters, forensic legal analysis of the Bill, and tenacity have made a massive contribution and have led us to where we are today. We have an improved Bill, and it can be improved further by the Minister accepting the noble and learned Lord’s amendments. In the event of him wishing to press any of them to a vote, he will have the support of these Benches.

Lord Wigley Portrait Lord Wigley (PC)
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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.