Retained EU Law (Revocation and Reform) Bill

Baroness Randerson Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Randerson (LD)]

My Lords, “Take back control” was a tempting offer. EU processes are often slow and frustrating; Brexiteers call them undemocratic but, if anything, they suffer from democracy overload—layers of decision-making subject to repeated democratic checks and balances. On the plus side, so many cooks stirring the broth rarely get the recipe wrong. However, with this Bill, all pretence has been dropped. The DPRRC calls it a “hyper-skeletal” Bill giving “extraordinary powers” to Ministers and, importantly, says:

“Ministers, not Parliament, will be responsible for determining what stays, what goes and what, if anything, is to replace what goes.”


I wish to touch on two issues, the first of which is devolution. The Bill does not just take powers from Parliament; it also takes powers from the devolved Administrations. It un-devolves powers. Clause 2 allows UK Ministers to defer the guillotine until 2026, but Ministers in the DAs, which have previously held powers over many of these areas, are not able to defer the guillotine. I realise it will not worry the Government, but it is almost certain that the Senedd and the Scottish Parliament will not grant legislative consent.

On transport, this massive clearance sale of EU laws creates uncertainty. We do not know which will go and which will stay. The dashboard currently has 424 transport laws. When will the full list be published? Businesses must know where they stand: lack of democracy is compounded by a lack of transparency. How can we be debating a Bill which gives Ministers powers to change or repeal thousands of pieces of legislation, but we do not know how many and we do not know which ones. Clearly, the Department for Transport does not have the capacity to deal with this avalanche. This is the department that got 20 years behind in updating maritime legislation in line with our international treaty commitments. Rail cancellations and delays are at an all-time high, but the department does not have the time to introduce the Williams-Shapps reforms. It cannot find the time for long overdue legislation to regulate e-scooters. Our vehicle manufacturing industry risks terminal decline, but the Government cannot find time to update our vehicle standards legislation to bring it into line with the suite of EU vehicle safety regulations introduced last year. Those regulations save lives, and they help our manufacturers who need our standards to mirror those in the EU, which is their main export market. Over 4,000 pages of this legislation relate to aircraft safety, and I have yet to find anyone in the aviation sector who wants a comma of it changed. But the Government did find time last year to consult on their proposal to reduce our right to claim compensation for cancelled internal flights—an example, I think, of one of our Brexit freedoms.

Three years ago, the Government embarked on creating 32 common frameworks to regulate the way this legislation is dealt with alongside devolved Administrations. It was supposed to take a year; it has taken more three years. Finally, transposing EU law into UK law over a period of years is a reasonable aim; dealing with 4,000 pieces of legislation in 10 months by ministerial diktat is not. Either this Bill is a result of massive incompetence, or this is what totalitarianism looks like.

Retained EU Law (Revocation and Reform) Bill

Baroness Randerson Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Fox (LD)]

It is not in the Bill.

[Baroness Randerson (LD)]

I cannot resist, I am afraid, intervening on this. I was in a Common Frameworks Scrutiny Committee meeting this week when it was indicated that the dashboard was just a tool and, as far as I understood it, did not have a legal status. While I am on my feet, can I ask where and in which bucket the legislation passed by the devolved Administrations is—which are, I believe, at a very much earlier stage in identifying the numbers for the dashboard?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I know that this is of concern to a number of Members in the Committee, but officials from the UK Government are working very closely with those from the devolved Governments in order to identify the REULs that cross over devolved competences. I know that there is a general concern within the devolved Governments that they simply do not have the manpower to look at all these EU laws themselves, so we are helping them in that process. That is an ongoing job of work being done from official to official.

Retained EU Law (Revocation and Reform) Bill

Baroness Randerson Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

Moved by

[Baroness Randerson]

7: Clause 1, page 1, line 4, at beginning insert “Except for the Motor Vehicles (Wearing of Seat Belts by Children in Front Seats) Regulations 1993 (S.I. 1993/31),”
Member’s explanatory statement
This amendment excludes the Motor Vehicles (Wearing of Seat Belts by Children in Front Seats) Regulations 1993 from the sunset in Clause 1. The Regulations protect children from serious injury or death in vehicle accidents.

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[Baroness Randerson (LD)]

My Lords, this group includes four pieces of transport-related retained EU law, simply to illustrate how fundamental it is to our own protection, both physically and as consumers, with compensation and assistance when things go wrong.

There are many regulations from our 40 years of EU membership that I could have chosen because they have reduced death and injury on our roads. In Amendment 7, I focus on the 1993 regulations on the wearing of seat belts in the front seat of cars by children. These regulations were a consolidation of earlier ones that, in 1983 and 1989, had gradually enforced seat-belt wearing for children.

There are also detailed EU-derived regulations on child car seats, specifying designs by height and weight. Children are not just small adults: they are proportioned differently, their bones are not fully formed, their skeletal structure does not protect their internal organs in the same way, and their necks and heads need greater support. Child car seats reduce the chances of a child’s death in an accident by nearly half, in comparison with them wearing a regular adult seat belt.

I hope that the Minister will clarify that the Government have absolutely no intention of reducing car safety standards for children, but this example illustrates that one person’s deregulation is another’s lifesaver. These regulations have been developed over many years. It is 40 years since the introduction of compulsory seat belts, but it was recently possible for our Prime Minister to be so unaware of their importance in saving lives that he was happy to record a video sitting in a moving car without one. Even today, around a quarter of car occupants killed in road accidents are not wearing seat belts. In the case of young men, it is a third of deaths.

Noble Lords cannot take for granted that our Government will want just to maintain existing regulations. We also need to look at the need to upgrade them. The Bill incorporates a fundamental principle that there should be no increase in regulatory burdens. That is clearly at odds with higher safety standards on seat belts and child seats. We received a letter in the last few minutes from the Minister that states quite clearly that the Government’s definition of “no additional regulatory burdens” means that one can upgrade one aspect of a regulation but, overall, within an SI, there can be no increase in administrative burden. As technology moves on, that will be jolly difficult with something such as seat-belt wearing.

Amendment 24 refers to the Road Vehicles (Approval) Regulations 2020. These ensure that new cars, buses and goods vehicles comply with high standards of safety and environmental protection. If these regulations were to be revoked on 31 December, those vehicles would not be able to be registered from 1 January next year, thus stifling the development of new vehicle design and greater efficiency.

The recently published GB type approval scheme would be revoked before its mandatory application date of 1 February next year, wasting two years of government/industry collaboration. The key point here is that the subsequent lack of environmental and safety regulations would immediately strike at the competitiveness of UK vehicle manufacturers and retailers. New entrants to the market would not be required to meet current high standards, and there would be no requirement for further improvement. Will the new GB type approval scheme be considered a new regulatory burden and, hence, revoked before it even starts?

Furthermore, there is now a package of 50 new measures planned for adoption in the EU this summer. To compete internationally, our auto manufacturing industry needs to keep up with the best. Before Brexit, the UK would have adopted that package as a matter of course. What plans do the Government have to mirror those standards in UK law? Everyone using our roads deserves the safest possible vehicle with the lowest possible emissions, and that is what these new EU regulations are about.

Amendments 8 and 9 are a sample of the various regulations that set out consumer law on air travel and holidays, including airlines’ liability requirements in the event of accidents, loss or damage to baggage, and disabled passengers’ rights to assistance. Amendment 8 deals with compensation for cancelled or delayed flights. The importance of these rights was underscored last summer as aviation struggled to recover from the pandemic. Regulation EC 261/2004 establishes common rules on compensation and assistance for passengers. Clearly, common rules are important in an international industry.

Amendment 9 is on the Package Travel and Linked Travel Arrangements Regulations 2018, which modernise previous protections for customers buying package holidays. They broaden the scope to include so-called linked travel arrangements, reflecting the way that many of us now buy our holidays online. Package holidays transformed the international holiday market, opening it up to a much wider customer base, but its success relies on customer confidence that the company offering the package, to which you pay your money, will take responsibility for the whole set of arrangements, pass on your money to hoteliers, purchase the flights and rescue you from disaster when something goes wrong. The volcanic ash cloud of 2010 illustrated the importance of this type of arrangement. In December, Mark Tanzer of ABTA, the largest travel trade body, said that:

“The protections afforded by these regulations are essential to maintaining consumer confidence”


and that the

“sunset deadline … has the potential to destabilise the travel industry.”

I am especially looking forward to examining exactly what the Minister says in response to Amendments 8 and 9, because last year the Department for Transport consulted on plans to reduce customer rights to compensation for internal flights. Can the Minister confirm whether the department is proceeding with this plan? It will, of course, be fully in line with the principles of reducing the regulatory burden that underlie this Bill, but it would damage consumer confidence in domestic airlines.

When I last looked, there were 424 pieces of Department for Transport-related law on the dashboard to be considered by the end of this year. In a world of rapid technological change we should spend our time upgrading our legislation, not retreading the past. The Department for Transport is already puffing along behind the rest of the field, unable to keep up with world leaders.

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[Baroness Neville-Rolfe (Con)]

I do not think it was entirely different. As I recall, in those days we were trying to cut red tape and regulatory burdens being imposed by Brussels. We will come to Clause 15, where I think the regulatory reference appears, in due course.

I would like to make progress, because we have lots of amendments to get through today, and return to Amendment 7, which I think the noble Baroness, Lady Randerson, was sponsoring. To make a general point on motor, in reviewing our retained EU law, the Government will make decisions in the best interests of UK citizens, and the Motor Vehicles (Wearing of Seat Belts by Children in Front Seats) Regulations will be no exception. I agree that this is an essential element of our law, and one that we intend to retain and to assimilate into UK statute.

The seat-belt wearing requirements are crucial to the safety of our roads; we are agreed on that. We know that even though seat-belt use is high, it still represents a disproportionately high impact on the number of deaths and serious injuries on our roads. The noble Baroness gave a figure for those who were killed not wearing seat belts which was very arresting. Therefore, this law is clearly still necessary.

[Baroness Randerson (LD)]

Very much to the point the Minister is making, because seat-belt legislation is 40 years old, there is a bit of a lacuna in the law—which is out of step with other similar road safety law—in that not wearing a seat belt is not something for which you get penalty points. There are strong calls to update the legislation to ensure that you get penalty points for failing to wear your seat belt. Would the noble Baroness judge that this would be considered by the Government as increasing the regulatory burden?

[Baroness Neville-Rolfe (Con)]

Of course, we need to keep things up to date. As part of our consideration of a call for evidence on road traffic offences and their policing, we are considering testing proposals to make not using a seat belt an endorsable offence. Not everything in the world of regulation is being done in this Bill. I hope I can reassure the noble Baroness that work is continuing and is important. The UK was instrumental in the development of these regulations, and they are compatible with our policy objectives that recognise road safety as a key objective for this Government. I am trying to go through these areas and give an appropriate answer. For this reason, rest assured that we have no intention of removing—

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[Baroness Neville-Rolfe (Con)]

I am advised that the interpretive effects are not case law; I thank my noble friend on the Front Bench for that. I do not really want to cause more confusion on this important point. I will reflect on this and perhaps come back on it at the end of this debate or in a debate on a future amendment. I am clear that we have no intention of removing these safety requirements on seat belts. I will reflect on the question asked by the noble Baroness and come back on it as I do not want to cause confusion. There are two issues here: case law and interpretive effects. They are both dealt with in later amendments.

I will move on to Amendment 8. Where Ministers, including Ministers in the devolved Governments, see fit, they will have the power to preserve retained EU law from the sunset. This holds true for the regulations specified in Amendment 8 in the name of the noble Baroness, Lady Randerson. There is no need for a specific exemption for the regulations establishing common rules on compensation and assistance to passengers in the event of denied boarding or the cancellation or long delay of flights. If the Minister decides that preserving these provisions is in citizens’ best interests, that can be achieved by using the powers to preserve the legislation and to restate relevant retained law as appropriate, without carving it out from the Bill as a whole.

Similarly, in relation to Amendment 9, I assure the noble Baroness that the Department for Business and Trade has processes in place to review the Package Travel and Linked Travel Arrangements Regulations 2018 and will provide more details on this in due course.

[Baroness Randerson (LD)]

Can I have clarification, then, on why the Department for Transport consulted on removing or reducing the right to compensation of people flying internally if it was not a firm proposal from that department?

[Baroness Neville-Rolfe (Con)]

I thank the noble Baroness for raising that; I will have to take it up with the Department for Transport and get back to her.

On Amendment 24 in the name of the noble Lord, Lord Fox, the Road Vehicles (Approval) Regulations 2020 are part of the recently created GB type approval scheme. These regulations were made under Section 2(2) of the European Communities Act and therefore fall within the scope of the sunset as EU-derived subordinate legislation; they are essential to ensure that the GB type approval scheme can be enforced. The Department for Transport is committed to ensuring that our vehicle type approval scheme creates high standards of safety for vehicles and road users, is robust and will remain fit for purpose alongside future developments in road vehicles. We are developing an ambitious plan supported by evidence and engagement with our stakeholders to reform the way in which vehicles are regulated, creating an agile system that keeps pace with technological developments and innovation in a dynamic and rapidly evolving landscape.

I hope this provides some reassurance. We do recognise the importance of many of these regulations.

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[Baroness Neville-Rolfe (Con)]

We have debated issues of principle, notably at Second Reading, when noble Lords made some very important points. We are going through the Bill and will get to these various points. I have been trying to focus on individual subject areas and would like to move on to the next, because my noble friend Lord Benyon has been sitting here patiently, ready to talk about the environment. We have noted the tenor of the debate and I thank noble Lords for their contributions.

[Baroness Randerson (LD)]

My Lords, I think this is a case of “follow that”. I thank all noble Lords who have taken part in this debate, starting with my noble friend Lord Fox, who quoted the gem of ministerial gobbledegook about the status of the dashboard; it is an “authoritative catalogue”, not a “comprehensive list”. I have had time to look it up in a thesaurus and I do not want to disappoint the Minister but a catalogue is a “complete list of items”.

The noble Baroness, Lady Thornton, referred to the importance of consumer confidence, which I was attempting to draw attention to in the precise details I included in my amendments.

The noble Lord, Lord Deben, referred to the importance of case law. I greatly regret that the Government have got themselves so far on the back foot with the Bill that there was an attempted ministerial intervention to shut down the debate and force him to draw his comments to a close. This was of course rather ironic, given that we have not been provided with a specialist Transport Minister on the Front Bench to answer on the specific transport issues that I was trying to raise. I have some sympathy with the noble Lord, Lord Deben, in his crisis over his Conservative identity—but that is not my business.

My noble friend Lady Ludford made some important points about identifying what is actually EU law. We will come on to this later, but there are some real doubts about what law is EU law, because it has been incorporated into other aspects of our law.

I sympathise with noble Lords who suggest that the Government should give themselves a break, park the Bill for a few weeks and work out how it will work before they bring it back. I would like it to go altogether, but I am trying to take a reasonable line, from the Government’s point of view.

The noble Lord, Lord Krebs, suggested that the letter we had was a spoof. One reason why the debate has been as it has is that that letter was designed to raise far more questions than provide answers.

The noble Lord, Lord Collins, also referred to the issue of confidence. I assure him, from evidence that came to the Common Frameworks Scrutiny Committee, that it was pretty evident that National Archives did a word search to find the list. It is no good noble Lords shaking their heads; that is how National Archives got to the list.

Retained EU Law (Revocation and Reform) Bill

Baroness Randerson Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will share the deep concerns of Green parties around these islands about the issues that we have been discussing. Like Members from all corners of your Lordships’ House, Green parties would like to see the Bill thrown out altogether, although the proposal of the noble Lord, Lord Cormack, of a pause and a chance to think and understand is, at least, a positive alternative that we should consider. We have heard lots of metaphors—the noble Lord, Lord Wilson, gave us one. I am imagining the fudge, which you have unwisely packed in your suitcase when flying back from a hot place, dripping out all over everything and making a mess everywhere. That is possibly a useful metaphor for where the Bill has put us.

I put on the record a highly unusual and important joint letter written to the Financial Times on 28 November by the Cabinet Secretary for the Constitution from the Scottish Government and the Counsel General and Minister for the Constitution from the Welsh Government. A small part of it said:

“This bill allows UK ministers to take decisions in policy areas that are devolved to the Welsh senedd and the Scottish parliament and to do so without consultation or the need for their consent.”


That is essentially what we have been talking about.

There has been an implicit point in our debate that has not been made explicitly. I will draw particularly on the work of Dr Viviane Gravey from Queen’s University Belfast, who points out that the laws have been transposed into the nations of these islands in different ways, so we have huge diversity. That means that the devolved nations cannot help each other out. A natural situation would be that, with the issues of resources that the noble and learned Lord, Lord Thomas, raised, ideally, people would help each other out and work co-operatively. In most cases, that will not work in this situation because each nation is different.

I will briefly highlight some of the ways in which the nations are different. On Wales, we have not discussed this much but there is a huge impact on the well-being of future generations Act, which has to be considered in the context of the Bill mentioning no increase in “regulatory burden”. That and the well-being of future generations Act are profoundly contradictory, and I do not see any way of resolving that contradiction.

Many people with vastly more knowledge than I—including the noble Baroness, Lady Ritchie, and others—have commented on Northern Ireland. I saw some telling figures. Until autumn, when the caretaker Ministers ceased to hold office, the Department for Infrastructure had identified 500 rules and regulations and the Department of Agriculture and Rural Development had identified 600 rules and regulations—experts describe that as the tip of the iceberg. Given all of the issues that Northern Ireland needs to deal with, dumping that on it as well is simply unacceptable. That is why, in the context of this group, Amendment 29 from the noble Baroness, Lady Humphreys, and others at least takes us to the core of the issues that we need to address.

On Scotland, the noble Baroness, Lady McIntosh of Pickering, covered a great deal of this, but I will mention some conclusions from the Scottish Human Rights Commission, which said that this would create incredible legal uncertainty about human rights and the ability to deliver them, and it would make it difficult to enforce those rights if the Bill goes through in its current form.

The noble Lord, Lord Cormack, made an important point about the tone and direction of travel here. The Windsor agreement is a significant reset in our approach to our relationship with Brussels. The tone and approach have changed in a positive manner. I suggest that we need to see a similar change in tone and approach at Westminster, where, under previous Prime Ministers, we saw an extremely aggressive and unco-operative approach towards the nations of these islands. We need a different tone and approach in this not very united kingdom. Dealing with the Bill—stopping it, pausing it or at least implementing something like Amendment 29—is absolutely essential.

[Baroness Randerson (LD)]

I will refer specifically to Amendment 29, in the names of my noble friend Lady Humphreys and the noble and learned Lord, Lord Hope. The Welsh Government and the Legislation, Justice and Constitution Committee of the Senedd have both examined the Bill closely and they did not like what they saw. They agree with each other that the Senedd’s consent is required for all clauses and schedules, with the exception of Clause 18. However, given the background of a lack of consultation and dialogue, to which several noble Lords referred, we are not likely to get that consent.

The problem is that the Bill does not just infringe on devolved powers—it tramples all over them. The Welsh Government have called it a “power grab”. The injury to devolution throughout the Bill is compounded by the lack of preparation and background information provided by the Government. These issues have been well rehearsed here—the noble Lord, Lord Hannay, referred to them in detail. The Welsh Government and the Senedd committee agree that, for a start, Clause 2 needs to be amended to grant Welsh Ministers similar powers to those granted to UK Ministers to extend the sunset date in relation to devolved matters.

On sunsetting, June 2026—the fallback date—is of maximum practical inconvenience to the devolved Administrations because it coincides with elections. There are two possibilities for how the date was plucked out of the air: one is that it was chosen deliberately to make life difficult for the devolved Administrations, and the other—I agree that this is probably more likely—is that it is an example of the sort of poor, substandard legislation that you write when you do not consult the people affected. It would have been so easy to choose a different date.

The Senedd committee’s report reflects concerns already expressed about deficiencies in the dashboard and emphasises the need for it

“to identify how each piece of retained EU law falls across reserved and devolved competencies.”

Without doubt, it is essential that, when Welsh and Scottish REUL is added to the dashboard, it is clearly identified. So when will this happen? Can it be confirmed that this will happen? If it does not happen, that means that this truly is a Government just for England. It is essential that Wales and Scotland legislation is identified.

The committee’s report also emphasised the pressure of time, both on legislatures and the Governments in Scotland and Wales. It is essential that all REUL that the Government do not intend to save or reform is identified by the end of September and laid before all the legislatures of the UK.

Amendment 49, in my name and that of the noble and learned Lord, Lord Hope, is designed to probe these issues. The Welsh Government have made no secret of the pressure they are under—other noble Lords have referred to that—and the Minister acknowledged in her response to me last week that there was an issue of resources. The simple time pressure is compounded by the lack of coherent information from the Government. It is more difficult to get on and do what you are supposed to be doing if you do not know what that is. What will the Government’s policy be in relation to any failure by a devolved Administration to update their chosen items of REUL and obliterate as required references to EU law? They might choose not to do it, or they might just not have the time to do it. Does that mean that the UK Government will take over the role of the devolved Administrations and take things out of their hands if by mistake or due to lack of resources they cannot get round to it?

As I understand it, the devolved Administrations are also required to search for REUL made by Secretaries of State prior to devolution, which seems tantamount to having to do the job of the UK Government for them. Have I got that right? Can it be clarified, please?

As many noble Lords have said, the state of the dashboard is central to the pressures that I have referred to. The latest count of Welsh REUL on the dashboard is apparently in the teens. I am assured that when they have counted it all it will be in the many hundreds, and the Government have not yet been able to take account of that situation. What estimate do the Government have of how many hundreds of pieces of REUL both Scotland and Wales will have? It will be different numbers, obviously, because law has developed differently, and they have different powers. I noted in an earlier debate that the Government have failed to clarify when or even if we will get a final list, when or even if we will be told what legislation is to be dropped entirely, and when or even if we will be given a definitive list of legislation to be amended. All this is essential not just to us here doing our work but to both the Scottish and Welsh legislatures, and I hope that it will in time be relevant and important to the Northern Ireland Assembly as well when it is up and running.

On Northern Ireland, I do not want to repeat the vital questions asked by the noble Baroness, Lady Ritchie, and my noble friend Lady Ludford, but I emphasise the importance of them. In the past 36 hours or so, I have been trying to get my head around the implications for this Bill of the Windsor Framework by working through a couple of examples—not quite at the level of detail with which the noble and learned Lord, Lord Thomas, did so, but in my own humble way. I think that the Windsor Framework probably requires substantial rewriting of this Bill; it certainly requires substantial reinterpretation—I understand that because it is such a skeletal Bill it might be possible to bend it to the new circumstances, but we need a new interpretation. Please can we at the very least have a major ministerial Statement on the impact of Windsor Framework on REUL which has an impact on the Stormont brake? The three are intertwined. We need more than a letter; we need the opportunity to ask questions and to understand how it will work.

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[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.

Retained EU Law (Revocation and Reform) Bill

Baroness Randerson Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Baroness Randerson (LD)]

My Lords, my noble friends Lord Bruce, Lady Suttie and Lady Humphreys have explained the different approaches and situations of the devolved Administrations, thereby demonstrating the need for a sensitive approach from Ministers. I particularly welcome the reference by the noble Baroness, Lady Ritchie, and my noble friend Lady Suttie to the application of the Bill in Northern Ireland. Because of the situation there, we discuss the Administration far too infrequently, and that issue needs to be addressed.

On Amendment 117, to which I have added my name, I am very grateful to the Minister for his recent letter which specified that any REUL to be extended will need to be specified by its full title or by “specifying a description”. That phrase is not defined in the Bill, which means it is another thing that has been left to the judgment of Ministers; indeed, the Minister’s letter actually uses that phrase, saying that it will be left as “a judgement for Ministers”. It says that this description

“could encompass a description of legislation in scope of the Common Frameworks”

and gives the example of common frameworks relating to food and feed safety. That is extremely helpful information for those of us who have been members of the Common Frameworks Scrutiny Committee for some years.

By logical progression, am I right to assume that Ministers could decide to include all common frameworks in one umbrella description in the Bill, or to provide a list of all the agreed common frameworks? Surely, that is the logical conclusion. There are very good reasons to do that. First, it would end the unnecessary uncertainty caused by the Bill and the economic damage it is doing to industries in Britain. Secondly, there can be no clusters of legislation that have been more thoroughly and comprehensively—and very recently—looked at than those subject to common frameworks. They have been subject to scrutiny by all four nations of the UK and by a wide variety of stakeholders. All those clusters have been deemed by the UK Government and by the Administrations in the devolved nations to be up to date and fit for purpose. The Minister has said that that was the reason why some legislation might need to fall, and we would all understand that, but it does not apply to the legislation subject to common frameworks. If something unforeseen arises, there is a mechanism to resolve disputes.

There is no doubt that this legislation is not fit for purpose. The UK Government have nothing to fear because they have the last word on common frameworks and have led the process of establishing them. So I urge the Minister to table amendments on Report that clarify the future place of common frameworks and that specify which ones will be exempt from the sunset.

I have one other thing to probe. In his letter, the Minister used the example of food safety legislation. The extensive catalogue of this has grown since the 19th century. Back then, lead was put in Red Leicester cheese to make it red, copper was put in butter to make it yellow, and chalk and water were put in milk to make it go further. Even if the food was kept in normal circumstances, those normal circumstances were often so poor that it went off and made people seriously ill or killed them. We have moved on from that to a vast catalogue of food safety legislation, but we are still nowhere near perfection or peak knowledge on food safety. Our understanding improves all the time. Recently, there has been research showing that there are plastic particles in bottled water. That is something that we did not understand a couple of years ago. We do now.

Can the Minister tell us how further regulations on food and upgrading regulations on food will be viewed by the Government? Will it be regarded as an additional burden on business? Will it be regarded as increasing regulatory burdens and therefore be excluded by the Bill? If we are not allowed to update our legislation, surely we will lag behind. We will be the country that still has the substandard plastic bottles, just as we would be the country with cars that are less fuel-efficient and toys that are more dangerous, to take examples from earlier debates.

On Amendments 135 and 143 in the name of the noble and learned Lord, Lord Hope, which I support, I refer to the fourth report of the Procedure and Privileges Committee, which followed up on the Constitution Committee’s report of January 2022. That report recommended that we in the House should give greater prominence to legislative consent Motions. The Procedure and Privileges Committee has now agreed to a very welcome and comprehensive process for reporting the decisions of devolved Administrations on LCMs and situations where the UK Government have not sought consent but the devolved Administrations have given or withheld it. This is significant because, as my noble friend has said, in the last few years there has been a huge erosion of the 1998 decision that the UK Government would not normally legislate in matters within the competence of a devolved parliament without its consent. It used to be the case that the Government went to enormous lengths to take the Sewel convention into account. That has been eroded, to the great detriment of good relationships across the UK. This Bill does nothing to improve relationships.

I fully support those amendments tabled by the noble and learned Lord, Lord Hope, which seek to restore a small part of the devolved powers that have been undermined by the Government in recent years. Those amendments and the recent decisions of the Procedure and Privileges Committee will make it more difficult for us to remain unaware of the views of the devolved Administrations.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will add a brief word on two of the amendments, because I agree with everything that has been said but do not wish to prolong the debate. I wish to say something about Amendments 135 and 143 as, in my view, they go to the spirit of the union. I know that the noble Baroness the Minister has done much to try to ensure that we are governed in a union where there is respect and equal treatment. I thank her very much for that. I also welcome the attitude of the Prime Minister, which is in complete contrast to that of the last but one Prime Minister.

The spirit of the union is encapsulated in both these amendments. First, on Amendment 135, if something is devolved, please get consent. That seems a matter of ordinary courtesy that strengthens the union. It is not a big ask. Secondly, on Amendment 143, why should the Welsh and Scottish Ministers not have the same powers? The answer was given by the noble Lord the Minister to a similar question I raised. Although the Government may not say what they are going to do, I very much hope that they look at these amendments as showing a determination to govern our union in the spirit of co-operation, equality and respect.

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For the reasons outlined, I therefore ask the noble Baroness, Lady Randerson, to withdraw her amendment. I promise to write to the noble Lord, Lord Collins. There were a number of questions there and I think they demand a full response, so I would rather write in due course.

[Baroness Randerson (LD)]

I have listened carefully to the Minister’s response. When I spoke earlier, I said that the letter from the noble Lord, Lord Callanan, was very helpful, but I have not had a specific answer, taking my example of fragments of plastic in bottles of water, as to whether the Government would respond to that requirement for change in food and food safety legislation. Would the Government regard it as a technical advance, which the Minister referred to, or as unduly onerous regulation, which she also referred to? What would happen if, for example, the Welsh Government decided they wanted to go to a higher standard of plastic in water bottles but the UK Government decided they did not want them to go to that higher standard? If the Minister cannot answer that now, could she give us a commitment to write with that worked example and give us an indication of what is unduly onerous EU-based legislation and regulation and what is technical advance?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am happy to write if I do not give a satisfactory answer now. It is up to the relevant department to look at the proposed amendment and consider whether it meets the criteria for the use of the update power. The Government will always maintain the power to increase standards. Any more than that I will take back, and I will write in fuller detail.

Retained EU Law (Revocation and Reform) Bill

Baroness Randerson Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

Given the likely volume of the draft regulations to be scrutinised, together with their likely importance, it seems right that there should be an additional five sitting days in which the committee and outside bodies can make their views known to the House of Commons sifting committee and your Lordships’ House. That is the reason for these two simple amendments to change “10” to “15” in the two places where “10” appears in the Bill. If the Government do not intend to try to marginalise further Parliament’s involvement in the Bill, I can see no reason why they cannot accept this very small and important amendment. I beg to move.

[Baroness Randerson (LD)]

I thank the noble Lord for his excellent introduction. As very much a new girl on the Secondary Legislation Scrutiny Committee now being very ably chaired by the noble Lord, Lord Hunt, I put my name to this amendment because I am convinced by his arguments for this basically very modest and very practical pair of amendments. The arguments are based on experience, as the noble Lord has explained. Earlier today, the Minister indicated that it is the Government’s intention that a substantial number of pieces of legislation will be revoked and reformed and that we are not looking at a situation where there would be some exceptions to carry over.

Given the very tight time constraints—the Minister made it quite clear in an earlier letter to us that even he thought it was ambitious—we can confidently expect that the Secondary Legislation Scrutiny Committee will face something of an avalanche of legislation towards the end of the year. For it to get its thorough job done properly, there needs to be this simple expansion of time available from 10 to 15 days; otherwise, the danger is that the committee will have to act in a way that is precautionary and might well make more comments necessary than if it were given a little longer to consider it. I urge the Minister to take this into account and to accept this amendment at a later stage of the Bill.

[Lord Hunt of Wirral (Con)]

My Lords, in January I had the privilege of being appointed chair of the Secondary Legislation Scrutiny Committee. In that capacity I support these amendments in the name of my noble friend and predecessor Lord Hodgson of Astley Abbotts—a very difficult act to follow, as he has just demonstrated once again. I greatly welcome the participation of the noble Baroness, Lady Randerson, who has already brought a ray of sunshine to the committee in dealing with some difficult and challenging problems.

Supported by our team of brilliant and highly experienced advisers, the committee reports week in, week out on secondary legislation laid before Parliament, covering every conceivable aspect of policy, directing your Lordships’ attention to the most notable instruments and providing valuable information in support of subsequent debates on those instruments.

As we have heard, under the European Union (Withdrawal) Act 2018 the committee was charged with an additional function—the scrutiny of what are called proposed negative instruments laid under a new sifting mechanism. The committee had 10 days to report on these proposed instruments and, to its immense credit and that of its staff, it rose to the considerable challenge of meeting that demanding deadline under the leadership of my noble friend.

As we know from the committee’s recent report on the Bill, however, this was not an easy matter. As the report warned,

“depending on the day of the week on which a proposed negative has been laid, meeting that 10-day deadline could be challenging.”

This Bill makes similar provision for a sifting mechanism. It will apply to the exercise of powers under Clauses 12, 13 and 15. As with the 2018 Act, the Bill does not name the Secondary Legislation Scrutiny Committee as the committee to be charged with this sifting function. That is, of course, a matter for the House.

I know your Lordships will understand that in making the following points I do not mean any discourtesy or to pre-empt any decision of the House. Under the sifting mechanism in the Bill, the reporting period is again 10 days. If that period represented a challenge under the 2018 Act, which involved regulations with the limited purpose of dealing with deficiencies in retained EU law, how much greater will be the potential challenge where regulations under Clause 15, for example, may make “alternative provision” for secondary retained EU law? Such regulations may well require the sifting committee to probe further into the new policy underlying the alternative provision—a point made by the noble Lord, Lord Fox, I understand, and reiterated by my noble friend a few moments ago.

That in turn may include the committee having to solicit further information from departments and consider submissions from outside bodies before it can come to an informed and considered view. I realise that my noble friend the Minister may well be worried that, in giving any concession here, he might open the door for a read-across into other departments, but this is a very special case and I want to make it clear that there is no read-across here.

The capacity of the SLSC to meet a 10-day deadline has been amply demonstrated. The committee would not expect the full 15 days for every proposed negative instrument—far from it. What is being asked for in Amendments 139 and 140 is an extension of the deadline in recognition of the fact that the Bill has the potential for generating more complex and far-reaching policy changes, through instruments subject to the sifting mechanism, than the 2018 Act has. From time to time, there will also be occasions when the longer period is needed if the House is to receive the full benefit of the opportunity for more effective parliamentary scrutiny that the sifting mechanism provides.

I very much hope that my noble friend the Minister and his colleagues will accept the force of the argument and take these considerations seriously. At the end of the day, we all want Parliament better to do its job in the public interest, so I support my noble friend.

Retained EU Law (Revocation and Reform) Bill

Baroness Randerson Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I rise to speak to Amendments 73 and 74, to which I added my name. I will preface my remarks with a brief comment about the attempts by the Government Front Bench to curtail people’s right to ask questions of other Members during speeches this afternoon. That is most unfortunate and particularly ironic in a debate that is pivoting on the issue of the powers of Parliament to scrutinise legislation. I hope that the Government Front Bench will think again about that line of action.

I welcome the Government’s concessions in the Bill, but I still want to remark on the length of time it took them to wake up to the inevitable—the realisation that the Bill was impossible to implement and requires fundamental change. I am deeply grateful to the Minister, the noble Lord, Lord Callanan, for taking that message from this House to the Government. At the same time, having woken up to the need for change, the Government have now given us an impossible timescale in which to consider the 600 pieces of legislation they have identified—we have 48 hours from now. This remains a very flawed Bill, therefore, and represents a major accumulation of power in the hands of the Executive. That is power seized from both this Parliament and, despite important government concessions, the devolved Administrations.

The amendments to which I have added my name are of the most minor nature. Indeed, in Committee the Minister gave us cause to hope that the Government might look positively on such a change. They are minor—an extension from 10 to 15 days for the committees to look at this legislation—but they are nevertheless important because, without that minor change, the sifting of legislation will present a major hurdle.

The noble Lord, Lord Hodgson, referred to the report of the Secondary Legislation Scrutiny Committee in his speech on the first group of amendments. That report was called Losing Control?. I am delighted to now be a member of the Secondary Legislation Scrutiny Committee under the able chairmanship of the noble Lord, Lord Hunt, who is in his place. These minor amendments ask simply for Parliament to be given time to do its job. The Government have accepted that their initial Bill was impractical in its timescale. They now need to accept the lessons of that and, even at this point, to accept this minor change.

This Government have broken new boundaries by producing increasingly skeletal Bills and relying heavily on secondary legislation to flesh out the real meaning of their legislation. SIs are not immune to error. The Home Office recently accumulated a record of having to withdraw one in five of its SIs and remake them. That is not a record of perfect legislation. The Government need to accept that they make mistakes.

We have government by SI now, but the rules and procedures for scrutiny of SIs are locked in the past when primary legislation was much more detailed. If we are to be forced to work this way, procedures must change or there will be major legislative errors. I support the amendments put forward by the noble and learned Lord, Lord Hope, and so ably explained by the noble Lord, Lord Lisvane, as a good, practical way of dealing with the new approach to legislation.

[Baroness Noakes (Con)]

My Lords, I would like to offer a brief comment on Amendment 76 in the name of the noble and learned Lord, Lord Hope of Craighead. Like many Members of your Lordships’ House, I find the way in which we deal with the increasing amount of secondary legislation fundamentally unsatisfactory. I pay tribute to the work done by my noble friends Lord Hodgson of Astley Abbotts and Lord Blencathra and their respective committees last year, and to the important debate held in your Lordships’ House.

We should move towards re-examining how we handle secondary legislation going forward. However, I do not think that the right way forward is to produce one amendment in one Bill and try to say that it answers the problem. I have the greatest respect for the noble Lord, Lord Lisvane, because of his tremendous experience in the other place. But let us not pretend it is easy to find a good solution that will work with both Houses and produce the right degree of additional scrutiny without completely holding up the Government’s secondary legislation programme.

We should take time—I hope the Government will find time—to work between both Houses to find good, practical solutions going forward, but we should not legislate in haste in this Bill. We have secondary legislation procedures that have served us pretty well for a long time. The noble and learned Lord, Lord Hope of Craighead, referred to needing to deal with flaws in secondary legislation. They can already be dealt with; they do not need any special apparatus to do so. The noble Baroness, Lady Randerson, referred to the procedure whereby statutory instruments are withdrawn when flaws are pointed out. That is a part of our existing procedure, and it works perfectly well. Let us not pretend it is so broken that we have to invent a special procedure for the Bill.