Retained EU Law (Revocation and Reform) Bill

Baroness Ludford Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Deben (Con)]

I almost dare not go down that line because it has been suggested that what I have been saying is not applicable to these amendments. I think it is applicable, and we have to talk about this principle if we are to discuss the Bill properly. On what the noble Lord rightly put forward, all this throws everything into doubt, and it is very un-Conservative. I have never known a Conservative proposal to throw aside all the interpretation that has grown up over the years, because that is exactly what life is about: learning through the years. Citing the fact that it happens to be interpretation of European Union laws is to ignore the history. We have been a member of the European Union, and we are no longer; I am sorry about that, but I am one of those who wants to draw a line underneath that and behave sensibly from now on. I do not want this appallingly reactionary approach, which says, “Because it’s got ‘EU’ on it, there’s something wrong with it”. Let us consider it properly and separately.

So if we are not going to get rid of the first point about motor vehicles and seat belts for children, let us therefore have a different way of doing it. Let us decide that we will have a reform of the laws in general and that we will bring before this House proposals for what those changes will be in a timetable which is sensible and which the House can deal with. Therefore, we would not do the last non-Conservative thing, which is so outrageous as to be almost inconceivable: taking the power over law from Parliament and giving it to Ministers. I can think of nothing less Conservative than that.

Let me put it like this: we are not even giving it to these Ministers; we are going to give it to whichever Ministers are there—and they may not be the same lot. All I want to say is that no Conservative in my knowledge of history has ever proposed that the decision on something as important as, for example, children wearing seat belts shall not be our job in this House and in the elected House, but the job of Ministers alone.

[Baroness Ludford (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Deben, and I support every word that he said. I too will react to the letter we got minutes before we started this Committee debate—if I am allowed to do so without an intervention from the Government Front Bench. My noble friend Lord Fox referred to how the letter says that the dashboard

“presents an authoritative catalogue of retained EU law, not a comprehensive list of retained EU law”.

So I hope that the Minister, in her response, can give us a precise explanation of the difference between “authoritative catalogue” and “comprehensive list”, because, for my part, I cannot really understand how it can be authoritative if it is not comprehensive.

[Viscount Hailsham (Con)]

I suggest to the noble Baroness that this is about the Government allowing themselves wriggle room.

[Baroness Ludford (LD)]

I could not possibly comment on any wriggle room that the Government are giving themselves. However, because there is some justice in what the noble Viscount has said, I still want an explanation on the record from the Minister of how it can be authoritative if it is not comprehensive. Indeed, it cannot be authoritative at the moment because we know that it is still in the process of being added to.

[Lord Fox (LD)]

When is a catalogue not a list?

[Baroness Ludford (LD)]

Yes, indeed, when is a catalogue not a list? It would be really helpful if the Government could explain that.

The noble Lord, Lord Deben, referred to how this is not a Conservative Bill because it is revolutionary. Yesterday, I found myself using the adjective “anarchic”, because the Bill is revolutionary and anarchic; we have an anarchist revolution from a Conservative Government, which is quite an interesting development. Another way of putting it is that it is a complete mess.

[Lord Fox (LD)]

Chaos.

[Baroness Ludford (LD)]

It is a chaotic mess. They are making it up as they go along. We understand that officials are not only still dabbling around desperately trying to find EU law but thinking about what to do with each instrument once they have found it—whether it should be junked, preserved or altered. That is an odd way of putting the cart before the horse. Why was the Bill ever submitted if there was no idea of what was going to happen to EU law? I will add to my adjectives: the Bill is higgledy-piggledy and all over the place.

Finally, I wanted to raise another point for the Minister to answer. I am grateful to George Peretz KC for raising this point. We will come back to Clause 1 in future groups, but it is entirely relevant here to raise it. The definition of EU-derived subordinate legislation that is to be sunsetted in Clause 1(4) is

“any domestic subordinate legislation so far as … it was made under section 2(2)”

or another provision of the

“European Communities Act 1972, or … it was made”

otherwise, in

“implementation of EU obligations”.

But one problem is that sometimes an SI was made partly under Section 2(2) of the ECA and partly on another legal basis. Are those all going to be, whether this list is authoritative or comprehensive, or when it is finally arrived at—

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[Baroness Ludford (LD)]

Absolutely. George Peretz refers to the bits of an SI that were not made to implement an EU obligation. Do they remain as what he calls “bleeding chunks”, because of the “so far as” caveat? He calls them Frankenstein SIs, which may or may not make any sense as law. If an SI has been partially made to implement an EU obligation, will it be on the catalogue or list or whatever?

In a meeting yesterday I mentioned one problem, and I shall mention it here now. I had a Liberal Democrat colleague in the European Parliament, Chris Davies, who consistently raised the question of what were called in the jargon “correlation tables”. What that meant was traceability—being able to see how EU law was being implemented in all the member states. That had various advantages, and one advantage that it would have now is that we would not have hundreds of civil servants scurrying around Whitehall who should be doing more important work than trying desperately to find out what is retained EU law, because the EU measure being implemented is not cited in the SI or even in primary legislation.

That is one problem that we have now—and I will repeat an example that I have given before, which is something that I know something about. The Extradition Act 2003 implemented the European arrest warrant. You will not find the term “European arrest warrant” in the Act, which just referred to Part 1 and Part 2 countries for extradition. Part 1 was broadly about European arrest warrant countries, but an ordinary person opening up the Extradition Act would not have had a clue that it was implementing the European arrest warrant. So I am afraid that successive Governments have made a rod for the back of the present Government, and all those poor civil servants, and the National Archives and everybody else who is being dragged into this absurd exercise.

There has been a failure for a variety of reasons, one of which is the gold plating. There would be some dusty project in a Whitehall drawer somewhere, and then an EU measure would come along that was a wonderful vehicle for it. They could never justify to Ministers putting it through in a Bill, so they thought, “Aha, nobody will notice. When we implement it through Section 2(2), we’ll blame the EU or we’ll kind of hide it among all this stuff”. So I am afraid that chickens are coming home to roost with regard to the 4,000 or however many thousand measures. We do not know what is in the scope of this Bill. More importantly, all the people out there in the real economy—the businesses, the trade unions, consumer organisations and travel firms—do not know what EU law they are going to be continuing to operate, and that frankly is a disgrace.

[Lord Krebs (CB)]

My Lords, I return to the by now infamous letter, which I too opened a few minutes ago. As the noble Lord, Lord Fox, said, when we talked about regulatory burden we asked for some worked examples, because it is only when you have the worked example with the actual numbers—maths homework—that you can actually see how it is going to operate. When I opened the letter, I thought for a moment it was a spoof, because it says:

“There is no definition of regulatory burden in the Bill, as … such a definition could unnecessarily constrain departments”.


It also says—this is helpful—that decisions about the regulatory burden

“will take place on a case by case basis and it will be an ‘in the round’ consideration that encompasses the vector of considerations in clause 15(10).”

If that is the worked example then, my God, we need a bit of help. I hope that when we get the real letter, rather than a spoof letter, it will actually tell us how this trade-off between a bit more regulation there and a bit less regulation over here is going to work.

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[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.

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[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.

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[Lord Clarke of Nottingham (Con)]

My Lords, as I expected, the Minister is giving a very satisfactory list of assurances that he has not the slightest intention of lowering any standards. I am quite sure that he is sincere and that the Government actually believe that they are not going to lower any of those standards. I cannot understand what the argument is against ending this whole ridiculous debate by just putting a statement in the Bill which lists key directives—such as the habitats directive and the bathing water directive—and emphasises that they are going to remain totally unchanged, so that if any future Government decided to start deregulating in this area, it would need a proper parliamentary process before they had any chance of doing so. What is the positive argument against putting these undertakings, which are wholly reassuring, in the Bill? The last hour and a half would have been quite unnecessary if that had been done.

[Baroness Ludford (LD)]

Before the Minister stands up, he will know that one of the continuing problems in this country is not lack of law but the lack of enforcement. That is very obvious in the sewage discharges, and, at the moment, the only reason that the urban wastewater directive is being enforced in London is that the European Commission took infringement proceedings, subsequent to a petition that I took to the European Parliament. That is why we are getting the Thames super sewer. I am sorry for rivers everywhere else, including the Thames in its higher reaches, but we are getting the very expensive Thames super sewer because the European Commission took enforcement proceedings which ended in a judgment in the European Court of Justice. Elsewhere, UK enforcement has been dire.

[Lord Benyon (Con)]

I thank the noble Baroness and my noble friend for those remarks. We will be providing a clear list of regulations in due course, but we are working through them, and I make no apology: we want to get it right and we have a lot of work to do on that front.

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Moved by

[Baroness Ludford]

26: Clause 1, page 1, line 4, at beginning insert “Subject to section (Consultation and reporting),”
Member's explanatory statement
This amendment is connected to Lord Fox’s amendment after Clause 1 “Consultation and reporting”.

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[Baroness Ludford (LD)]

My Lords, Amendment 26 is a paving amendment, so I will speak mainly to the substantive Amendment 48. Much reference was made in the previous two groups to the need for consultation and consideration of various factors and elements before there can be sunsetting. This theme will be taken up; it links to later groups, particularly the fifth group.

Many of us think that this Bill is pretty hopeless. It has been described as revolutionary and, in my case, anarchic, but we are trying to bring some rationalisation and order to the Bill, which is at the moment completely disordered. I referred earlier to it as putting the cart before the horse, in that we have had this Bill in Parliament for several months but no one can say when we are going to get the famous comprehensive list. We understand that officials are still trying to trawl through the regulations so far and decide, with Ministers presumably, into what bucket they should go. You would have thought that all that work on bucket filling would have gone on before the Bill was ever introduced, because surely that is the right way round: you have the policy before you seek the legislative powers to do anything about it. Unfortunately—we all know it is a piece of ideological gesture politics—we have not had that sensible approach. Some of us hope that we will get a sensible approach once the Northern Ireland deal is successfully approved.

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[Baroness Ludford (LD)]

My Lords, I and everybody else wants me to be brief. I was astonished to hear the Minister describe a considered process of consultation and reporting as complex and unnecessary. I would be interested to hear the response of the CBI to such a characterisation of what is surely a part of good governance: consulting people who are going to be affected and then reporting to Parliament, which should be in the driving seat of this process. Indeed, it was promised that Parliament would be in the driving seat of this process; that is why we were taking back control, we were told. I welcome and agree with the intervention of the noble Baroness, Lady Bennett.

The Minister also said that such consultation would “hamper attainment of our ambitions”. I am afraid the Minister’s slip is showing because that displays the intention of slash and burn. He does not want a considered process of consultation; he just wants to chuck it all out. That is precisely what businesses and other stakeholders fear: that this is window-dressing—a gesture politics Bill which has an ideological motive, rather than one to get good, proper, appropriate regulation.

The Minister mentioned the financial services Bill, and we keep mentioning it because, if we want to change EU law, there are issues around that to do with divergence and so on—but it is “if”. The Prime Minister lauds Northern Ireland being in the single market. Perhaps he would like to give the single market back to us in Great Britain. The advantage for Northern Ireland is being close to EU regulation. Whether or not one wants to diverge, the way to do it is through primary legislation, where you list all the measures you are going to keep and not keep. Businesses, trade unions, charities, campaign groups and so on fear very much that the Government are being cavalier about what they are doing in the Bill and about the substance of regulation which they have grown used to.

I find Amendment 45 quite impossible to understand. The Minister says that it consolidates things elsewhere in the Bill. I suppose it has the advantage of bringing to our attention how peculiar these provisions are:

“any specified instrument or provision of an instrument or anything having effect under the specified instrument or provision … any specified description of minor instruments”.

I really find this quite difficult to understand and I would be grateful if the Minister could write to me, and put a copy of the letter in the Library, to give us some examples of what is being covered here.

I am afraid that the Minister has not really convinced me of why the Government are not prepared to properly consult, properly explain and properly reason what they want to do. That said, I beg leave to withdraw the amendment.

Amendment 26 withdrawn.