Retained EU Law (Revocation and Reform) Bill

Lord Hodgson of Astley Abbotts Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I rise to speak with mixed emotions on this piece of legislation. On the one hand, I voted to leave, and I have had no reason in my mind to change that view. I think the world order based on the individual nation state, which emerged after the Treaty of Westphalia in 1648, has still some time to run. It may come to an end, but the nation state remains the basic building block, and that is why I voted to leave. As a result of that, my noble friend will be pleased to hear that I enthusiastically support the purposes behind this Bill—the “untangling” I think was the phrase he used in his opening remarks. But I am also a democrat, and I believe very strongly in maintaining an appropriate balance of power between the Government and Parliament.

Members of your Lordships’ House will be aware that, until Tuesday a week ago, I was for three and a half years chair of the Secondary Legislation Scrutiny Committee, and some of our work has been very kindly referred to already this afternoon. During that three-and-a-half-year period, I am afraid I saw the Government begin to accrete powers at the expense of Parliament in various ways, but specifically by the use of what I call framework or skeleton Bills, in which only the broadest sense of the direction of policy travel is given, and all the detail is given in secondary legislation. Of course, we know that secondary legislation has a much lower level of scrutiny and, in particular, that it cannot be amended. Over the past year, the SLSC has produced a number of reports detailing this. Government by Diktat has been referred to already. My last task as chairman was to sign off the report we made on this Bill, which we titled Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. From that, it will be seen that I am not entirely happy with the position we now find ourselves in.

There are three things my noble friend could usefully think about to try to bridge the gap with those who would wish to support the principle and yet have some difficulty with the practice. The first would be the establishment of a proper triaging process to distinguish what is serious from what is trivial. Of the 600 or 700 regulations the SLSC looks at every year, probably more than two-thirds are quite uncontroversial, and I dare say the same will be true when we come to consider the 4,000 or so EU regulations that will come before us. There is no need, in my view, to get the vapours about that. But we definitely need a better procedure to examine that small number of regulations that carry significant policy implications. The procedure should, in my view, at the very least carry the opportunity for Parliament to ask the Government to think again.

I have two further quick suggestions in my last 45 seconds. First, I hope the Government will undertake to produce impact assessments for all the regulations they intend to change. It is important, because good impact assessments are not just about the money; they are how we learn about the thinking that went on, how the Government reached the decision they did and why certain policy options were adopted and others were not. Finally, we need a statutory undertaking to undertake post-implementation reviews—PIRs—on all regulations. PIRs show what happens when hope meets reality, and it is an important part of good governance that Governments should learn from past mistakes. It will be exceptionally important that we do that as we enter this new phase in our way of governing ourselves. I hope my noble friend can consider those as a way of meeting some of the concerns around the House without losing his particular objective.

Retained EU Law (Revocation and Reform) Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have not participated in Committee before. The Committee will be aware from my speech at Second Reading that I have my concerns about the Bill, but, having sat through substantially all today’s proceedings, I have some sympathy with my noble friends on the Front Bench. They face two irreconcilable requests. We began this afternoon with an urgent need to clarify as soon as possible. I am not picking out the noble Lord, Lord Collins, particularly, but he talked about aviation, holidays and so on, and, of course, if you want to get clarity quickly, you need to resolve quickly, so you have a short deadline.

Then, later, we are now saying, through my noble friend Lady McIntosh, the noble and learned Lord, Lord Hope, and the noble Lords, Lord Hannay and Lord Fox, I think, that actually we want to spin it out, we want to push it out for time for consultation—maybe 26, maybe 28. But we all know Parkinson’s Law, which says that the job expands to fill the time available for its completion. Therefore, those who wish to push it out will have to accept that most of it will come towards the end of that period, life being what it is, and the period of uncertainty, therefore, will be extended. That is the dichotomy that the Committee is not clear about, and I am not surprised that my noble friends on the Front Bench find it quite hard to reconcile those two points of view: I have some sympathy with the position they find themselves in at present.

[Baroness Jolly (LD)]

My Lords, I start by apologising to the Committee for not speaking at Second Reading. I support Amendment 63, tabled in my name along with those of the noble Baronesses, Lady Finlay of Llandaff and Lady McIntosh of Pickering, and the noble Lord, Lord Hendy, and declare an interest as President of the Royal Society for the Prevention of Accidents, RoSPA.

We tend to think of the United Kingdom as a global beacon for safety. Over the last 50 years, legally enshrined protections have saved more than 125,000 lives and prevented more than 1 million hospitalisations. This has not happened by luck; it has happened because of our role as pioneers in evidence-based research, alongside our international partners. Many of these vital measures are in retained EU law and are on track to be repealed at the end of this year. They include, quite alarmingly, rules on child and adult seat belts—my noble friend Lady Randerson touched on this—hazardous substances and chemical safety standards, and essential product safety.

I want to put flesh on the bones, as did the noble Baroness, Lady Young of Old Scone, and take the example of toys. On average, every year, 100 dangerous toy products are prevented from being supplied in the UK by trading standards. According to data from RoSPA, should the toy safety regulations be revoked, statistics tell us that the UK will go from zero recorded deaths caused by toys to two deaths and 5,000 children being seriously injured and needing to be admitted to hospital every year, the same as we experienced before regulations were put in place in 2002. This is just one example out of hundreds of laws that protect our citizens, including children, on a daily basis, 24 hours a day, 7 days a week, 365 days a year.

I understand the need for this Government to uncouple themselves from the EU as part of Brexit, but this is a very important, very delicate exercise, which must be treated with the utmost care. It is no use “taking back control” if the way this Government choose to use their control is by bypassing proper parliamentary scrutiny and repealing thousands of laws, of which hundreds are life-saving safety laws, without any due process.

That is why I propose this amendment, which will require a health and safety impact assessment for each piece of EU-derived legislation set for revocation not less than 90 days prior to the intended date of revocation. Parliament deserves to see the truth about every law set to be repealed, so that we can make an informed decision about how to proceed. I am sure that plenty of revocations will pose no health and safety risk and that this House will be comfortable repealing many of these laws. However, just as there are things in this list that we do not need, there are also many that we do, and this House must be given the necessary information to be able to distinguish between the two.

The NHS is facing an unprecedented crisis. Hospital emergency departments are more stretched than ever and ambulances are queuing to offload their patients and go to their next emergency. Actively creating the conditions for thousands of people to suffer more accidents and emergencies at a time like this would be absurd. I hope that reason prevails and the Government back this essential amendment.

Retained EU Law (Revocation and Reform) Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Whitty (Lab)]

My Lords, I have two amendments in this group, of which Amendment 62A is the key one. It covers much the same ground as that of the noble Lord, Lord Lisvane. It would bring this whole process back under parliamentary scrutiny by establishing a Joint Committee of both Houses which would do the review that we understand is currently taking a lot of the time of civil servants in Whitehall: their work would be absolutely germane to the work of this committee. My Joint Committee is similar to that proposed by the noble Lord, Lord Lisvane; the only substantive difference is that my amendments in this group are actually remnants of a rather more ambitious original intention—namely, to delete all the first three clauses of the Bill and establish, right from the beginning, that this was a parliamentary process, not a process by the Executive alone. I still think there is merit in attaching this concept right at the beginning, before we go into more detail.

The other amendments in this group all attempt to bring some control back to Parliament. My noble friend Lady Chapman and the noble and learned Lord, Lord Judge, wish to clarify what laws fall into which groups; then we would have a process for dealing with them systematically—through the Joint Committee, in my view, in the first instance, and then being brought back, with that Joint Committee’s recommendations, to Parliament. Of course, it is not intended that that would preclude any other initiative by the Government. If the Government wish to do this more urgently, they have every right to bring legislation, either in the form of an Act or a statutory instrument, in the normal way. The Government have raised the issue of reviewing the totality of anything that has any smell of Europe about it but, if that is what they intend, let us do it in a parliamentary way.

I just want to recall two episodes of history which might perhaps remind those who oppose departing from the Government’s view of this. The first is relatively recent. In 2018, when we were still in bitter post-Brexit arguments, many of us nevertheless accepted that we had to clarify the position of European-derived law in this House and in Parliament as a whole. We accepted the suggestion of the Government that they would make clear that EU law that had been accepted during the 50 years of our membership of the European Union and its predecessors would be part of UK law. We did not realise at the time that it was not quite the same as the rest of EU law. The reasons we accepted it were, first, that we needed some stability, for business and other elements of society, immediately following the completion of Brexit; and, secondly, that the Government needed a bit of time to consider how they would deal with that law—whether they wanted to change it, amend it or revoke it. We never contemplated, at that time, that we would have a process that completely departed from normal practice in Parliament and effectively put so much power into the hands of Ministers. That power, if it were through a statutory instrument, would be subject to only minimal scrutiny—but perhaps more importantly, and equally or rather more worryingly to parties outside, is that a whole chunk of what was European law, and is now deemed to be retained EU law, could actually fall in less than 10 months’ time, without any discussion whatever in this House or another place. That also needs to be dealt with at this stage. We need to delete the sunset clause for the end of this year and, if people think it is necessary to have an eventual sunset clause, then let us accept what the noble Baroness, Lady McIntosh, was arguing in our last sitting.

The other episode of history is perhaps a bit more esoteric, but it might appeal to some on the Conservative Back Benches and the Brexiteer press, if I can put it that way, who claim that we have escaped the tyranny and domination of Brussels. There are plenty of precedents in history for this. When all the countries of the British Empire attained their independence from the old Commonwealth—the old dominions in Canada, Australia and New Zealand, more than a century ago, and even the establishment of the Irish Free State, right through to the countries of Africa and the Caribbean—part of that independent settlement, except where it was surrounded by war, was always that the rules which applied during the colonial period would continue to apply until the new independent judiciary and legislature changed them in Jamaica or the Irish Free State, for example. That remained the case in almost every country which gained independence from the British Empire. Those that did not follow this precept—Zimbabwe, for example—are usually crucified by the right wing in this country for doing so.

In most cases, there was a peaceful transfer of power, as there has been a peaceful transfer of power from Brussels back to this Parliament. We should follow the example of the Macmillans and the others who gave independence to all those countries. Even with the establishment of the Irish Free State, as I said, you still get Irish lawyers in the Irish courts quoting case law from Victorian times. This issue has an implication for case law as well, which we will come to at a later stage.

I hope that whatever the Government do in relation to this debate, they will see all the different proposals in this group and elsewhere and bring back on Report a proposition of their own which restores the systematic assessment of EU retained law to Parliament—with decisions resting with Parliament, not in the hands of Ministers—and prevents it from disappearing as the bells chime on New Year’s Eve later this year.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have put my name to two amendments in this group: Amendment 32 tabled by the noble and learned Lord, Lord Judge, and Amendment 141A tabled by the noble Lord, Lord Lisvane. I have done so because, if the Government were to accept them, they would significantly enhance the ability of Parliament to scrutinise the legislation arising out of this Bill more effectively. They would do so by introducing for the first time the beginnings of a triaging system, which would enable the House to focus its efforts on those probably relatively fewer bits of legislation that really matter and ignore the rather larger number that do not.

My noble friend on the Front Bench has taken a lot of “incoming” over the past couple of days. I have some sympathy with the conflicting advice he has been given. If I were to distil what he has been criticised for, I would say that the concerns about the Bill relate to uncertainty about the Government’s approach to specific policy areas on the one hand, and the lack of parliamentary involvement on the other. These two amendments—and indeed some others in this group—would go a long way to answering those criticisms and concerns. I hope my noble friend will listen carefully to the arguments being put forward, because he might catch the sound of the cavalry arriving to bring some help to his rather beleaguered post.

We have heard a magisterial speech from the noble and learned Lord, Lord Judge, on Amendment 32. I am not a lawyer, and in such circumstances, to try to add to a speech made by a past Lord Chief Justice would indeed invite an accusation of hubris. Therefore I hope that Members of the Committee will come with me, if not into the weeds then into the grass—the long grass—and explore on a more practical level what I believe these amendments will achieve, how important they are in ensuring that Parliament is not taken for granted, and how they will lead to a greater level of public acceptance of the implications of particular policy choices, so reducing disconnect between the governors and the governed. Finally, in consequence of all this, I will explain why I hope my noble friend on the Front Bench and the Government will give very serious consideration to what the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, have proposed.

I want to draw on my experience of the past three years as chairman of the Secondary Legislation Scrutiny Committee. During that time I have seen the sands of power and influence trickling through Parliament’s fingers, which has meant that the Government have gained more power at the expense of Parliament. This has long roots here. It probably began with the Blair Government, who had a very substantial majority and thought they could use secondary legislation to push stuff through quickly. It has had twists along the way with things such as the pandemic, where emergency legislation has been used for purposes for which it was not originally intended. However, the real game-changer has of course been, as we all know, the emergence of skeleton Bills—framework Bills—of which what we are discussing today is a classic example.

It is worth pausing momentarily to think about what my noble friend is going to say on why this group of amendments should not be accepted. I think the first thing the Government will claim is that, if they were to be accepted, it would be likely to lead to the government machinery being gummed up by additional legislative time taken. I reject that—it is not true. In the 600 or 700 instruments that the SLSC looks at every year, between two-thirds and three-quarters are entirely uncontroversial—they are essentially technical—and I am firmly of the view that no lesser a proportion of the regulations that will come from the Bill will fall under the same category. They will essentially be technical and uncontroversial and will not give rise to controversy, which means that your Lordships’ House and the Government will have a much smaller population of instruments on which to focus their attention.

The second thing that I think the Government will allege is of course that both Houses give their consent to each regulation. We have all heard the noble Lord, Lord Krebs, who is not in his place today, on the question of amendability, and the noble Lord who just spoke referred to that as well. Technically, we know it is true, but the consent is the equivalent of having a pistol at your forehead which will fire bullets marked “constitutional crisis” and “the Strathclyde review”. In those circumstances, I argue that the consent is grudging at best.

What is really valuable about these amendments and indeed the others is that for the first time we can begin to concentrate on what really matters. This is by any standards an immensely complex Bill, and the actions taken under it will set the course for this country for many years. This House—indeed, Parliament as a whole—is entitled to know what the Government is thinking, not just in broad statements of principle but in their detailed application, which is, after all, what really matters to every citizen. If my noble friend and the Government are concerned about the generally adverse reaction to the Bill, I gently remind them that sunshine will be the best answer and these two amendments represent sunshine.

I am not against the Bill—I voted to leave the European Union and I believe it was the right thing to do—but I am also a democrat, and I voted to bring back powers to the United Kingdom. Although this is happening, sadly, as my noble friend Lord Young of Cookham memorably pointed out at Second Reading, those powers have been sent to the wrong address. If I may continue with his analogy, I regard these two amendments as attempts to redirect the repatriation of powers to their proper destination, and that is why I support them.

Retained EU Law (Revocation and Reform) Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

As I have said, I hope the Minister will agree to a meeting in which these and other related points can be further explained and explored.

[Lord Hodgson of Astley Abbotts (Con)]

The Committee will be aware that I am not a fan of this Bill because it marginalises Parliament. Therefore, I was pleased to be able to put my name to and speak to the group of amendments beginning with Amendment 32, moved by the noble and learned Lord, Lord Judge, and also spoken to by the noble Lord, Lord Lisvane.

I have to say, as I said the other evening, that I sometimes find that we seem to be facing in all directions. I mentioned before about how one group of people were concerned to get clarity as soon as possible and therefore wanted to foreshorten the sunset clause. There were others who wanted to have time for consultation to bring people along and therefore lengthen the sunset clause. I never quite heard a serious reconciliation of those points of view.

I have to say that on this group of amendments, I have the same concern. I recognise that I am putting my head into not one legal lion’s mouth but several simultaneously, and I do so with due care, not being a lawyer. First, I note the emphasis on the importance attributed to certainty, clarity and predictability. That comes up in Amendment 85, in the names of the noble Lord, Lord Anderson, the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Ludford. It is referred to again in Amendments 86, 88 and 89. I get that: even I, as a non-lawyer, can see that certainty, clarity and predictability are quite important.

Then I look at some of the other amendments—Amendments 81, 90 and 92—and I see that we are changing “must” to “may”. As a non-lawyer, I feel that “must” to “may” does not increase predictability and clarity. Then, in Amendment 91, we have

“ought to be considered at that time”.

That seems to me, from the point of view of clarity and predictability, to run in completely the opposite direction. Where we had, in paragraph 4, on page 7, “a court must”, it is now “a court may”, and to the end of that is added

“and ought to be considered at that time”.

I am happy to be corrected because I am not a lawyer, but as a non-lawyer this seems to me to be running in both directions, and not to have the sort of clarity, predictability and certainty that I can quite understand. It seems to muddy waters that a previous series of amendments had sought to clarify.

[Baroness Ludford (LD)]

My Lords, I shall speak to Amendments 85 and 88, as a co-signatory of both those amendments, led by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot be here today. He has been kind enough to share his thinking with me.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

I am listening carefully to what the noble Baroness is saying, but it has nothing to do with “predictable”. Everything she is saying about the way the law works is unpredictable because it depends on how the courts interpret it at the time. The idea that we are putting the emphasis on predictability in these amendments seems to me to be inaccurate.

[Baroness Ludford (LD)]

I trust the courts; clearly, the noble Lord does not. I believe that the courts do know what they are doing, and that we have an extremely experienced and valuable judiciary. That is why, as the noble and learned Lord, Lord Etherton, pointed out, lots of people come here to use the UK courts, particularly in London. The Government do not seem to have given any consideration to the fact that they are undermining the extremely valuable legal services that London sells to the world. They did not give consideration to service industries during Brexit generally, but this one brings in a lot of money for the UK economy and is being totally undermined, not least by this Bill.

Legal certainty was given a particular value by the Court of Appeal, but the Bill overlooks it, as many noble Lords have said, and detracts from the courts’ ability to do their job. In the notes from the noble Lord, Lord Anderson—which, as the noble Viscount, Lord Hailsham, pointed out, I do have—he points out that Amendments 85 and 88 in his name are very moderate. Amendment 85 leaves intact the power of the courts to depart from retained EU case law, and Amendment 88 would retain domestic case law. They even leave intact the three factors the Government wish them to have regard to. The noble Lord says that he is persuaded, having seen Amendments 83, 84 and 87, that those factors—if they are to be kept—really need to be amended, as suggested by the noble Baroness, Lady McIntosh, and the noble and learned Lords, Lord Hope, Lord Judge and Lord Thomas. The factors specified in the clause at present each militate in favour of departing from existing law. It seems to have been concluded that the judges require a powerful shove in the direction of the unknown. That is another seam of this Bill: we are jumping off a cliff edge and into a void.

All this is the antithesis, as has been said several times—the noble Lord, Lord Deben, who was interrupted at one point by the Government Front Bench, said how un-Conservative this Bill is. It requires leaps into voids and unknowns and off cliffs—

Retained EU Law (Revocation and Reform) Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

134ZA: Clause 20, page 22, line 8, leave out “does not apply in relation to any power to make regulations under this Act” and insert “has effect in relation to any power to make regulations under this Act as if in subsection (2)(a) of that section, after “section 30)”, there were inserted “which must require that a report setting out the conclusions of the review is published within the period of three years beginning with the day on which the regulatory provision comes into force””
Member’s explanatory statement
This amendment would remove the disapplication under the Bill of section 28 of the Small Business, Enterprise and Employment Act 2015 (duty to review regulatory provisions in secondary legislation) to the powers to make regulations under the Bill, and add a requirement to publish a review within three years, following the concerns expressed by the Secondary Legislation Scrutiny Committee in paragraphs 65 and 66 of its 28th Report ‘Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill.’

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I will move Amendment 134ZA and speak to Amendment 134B.

We have had pretty extensive debates over the past four days in Committee about how we need to improve the parliamentary involvement of both Houses on this framework, skeleton Bill. These two amendments shift the Committee’s attention to the existing scrutiny procedures which, while generally regarded as inadequate, do at least provide some level of scrutiny, and therefore hold the Government to account. However, even with these existing procedures, the Government are, as I shall explain, behaving increasingly casually and often ignoring existing statutory obligations.

Amendment 134B concerns impact assessments, which are required to be produced at the same time as the relevant regulation is published. Amendment 134ZA is concerned with post-implementation reviews. Together, they implement two of the recommendations made in the Secondary Legislation Scrutiny Committee’s report, Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill.

I will deal first with Amendment 134B, concerning impact assessments. This requires an impact assessment to be laid simultaneously—an important word—with the laying of each regulation. Impact assessments were introduced by the Small Business, Enterprise and Employment Act 2015—I think my noble friend Lady Neville-Rolfe was the Minister at the time. The impact assessments are to be produced whenever the impact of a particular regulation exceeds £5 million.

A good impact assessment should inform policy development and evolve with it. This enables both Houses of Parliament to see and evaluate the various methods for dealing with a particular policy issue that the Government have thought about and then explains why a particular selection was made to give the policy effect. No less important, publishing an impact assessment in a timely manner gives people outside Parliament who will be particularly affected by a proposal a chance to make their views known. This narrows the gap between the governors and the governed, which some people feel has grown in recent years. As people often say, law that has been consulted on is often better law and is nearly always better-accepted law, because people feel that they have a chance to make their views known.

I will give two examples of the sorts of issues that are affected by how the Government have been rather casual about impact assessments. The Misuse of Drugs (Amendment) (Revocation) (England, Wales and Scotland) Regulations 2022 may sound a dull title, but in this the Home Office was going to revoke the ability to license a chemical because it could also be used as a drug. The Home Office believed that there were only 65 firms that used it and would be affected by it. When they produced the impact assessment, they found that there were about 7,500. Therefore, the effect of the impact assessment was to make sure that those 7,500 firms were not deleteriously affected.

My noble friend the Minister will no doubt say that this shows that the system is working—to which I would reply that it is effective when the impact assessment is provided. Too often, impact assessments are produced too late to be effective or, in some cases, not produced at all. Let me give an example of each, briefly: first, on an impact assessment being too late to be effective.

The Committee will recall that a big decision was made about whether we should require care home staff to be compulsorily vaccinated. There was considerable concern about how many members of staff would resign as a result, either because they had religious beliefs against vaccination or because they were young women concerned about the impact on their fertility. When the regulation was published, no impact assessment was provided at all, so the SLSC asked the Minister to give evidence and explain why. The regulation having been published in late June, he came to see the committee in July and, after what I like to think was a fairly thorough grilling, he agreed and undertook to bring forward an impact assessment. He did, but he brought it forward in November. By then, everybody had been vaccinated or had not been, and the reason for producing the impact assessment was completely vitiated.

As an example of the latter—no impact assessment at all—a Minister from the Department for Transport told the SLSC, during an evidence session on the draft Motor Vehicles (Driving Licences) (Amendment) Regulations:

“It did not cause delay because the regulations went through without the impact assessment.”


In the committee’s report, titled Losing Impact: Why the Government’s Impact Assessment System is Failing Parliament and the Public, there are 20 or 30 examples. I have given just a couple to show the extent and prevalence of the problem.

Each department has a Minister responsible for making sure that SIs and their attached impact assessments are produced properly and to time. Each of those Ministers reports to a Minister at the centre. Until two or three weeks ago, my noble friend Lord Callanan was that luckless Minister trying to corral this herd of cats. He gave evidence to the committee and he said that he was keen to prioritise, and I do not doubt that at all, and that

“because we have no statutory means of enforcing the writ of impact assessments, we are relying on peer pressure to encourage and cajole departments to do it”.

I hope that my noble friends Lord Callanan and Lady Neville-Rolfe—she is going to reply—are pleased to see Amendment 134B riding to their rescue by inserting the words “at the same time” into the clause. It says that

“under this Act … laid before Parliament, the instrument, or draft instrument, must be accompanied at the same time by a regulatory impact assessment”;

in other words, no impact assessment, no regulation. By any measure, the level of parliamentary scrutiny of the outcome of the Bill is low. If the Government avoid producing IAs at the right moment, promptly, it will be another nail in the coffin of scrutiny. That was my amendment on impact assessments.

My Amendment 134ZA concerns post-implementation reviews—PIRs. I have long since lost count of the number of times I have sat in committees or in the Chamber and heard Members of your Lordships’ House say that post-legislative scrutiny is a really important way of holding the Government to account. It measures performance against promises; it provides a Bill’s institutional memory, as to what worked and what did not; and it enables those outside Parliament to understand the effect, deleterious or otherwise, of any particular regulation. In essence, PIRs are post-legislative scrutiny for regulations.

Sections 28 to 32 of the Small Business, Enterprise and Employment Act, to which I have already referred, require that any regulatory provision that passes the impact assessment test—the £5 million threshold—should be reviewed five years after commencement and every five years thereafter. Despite this being a statutory provision, it is something that we are very far from being able to rely on. We took evidence from Christopher Carr of the Better Regulation Executive. He suggested that between only 25% and 40% of regulations that required PIRs were getting them. In fairness to my noble friend, he wrote to say that he thought the figure was 72%, so I put that on the record.

However, with Clause 20(5) the Government are writing off the PIR system. It has gone. I strongly believe that this is a mistake. PIRs, properly conducted and publicised, play a very important role in monitoring, and so improving, government performance. If they play an important role in general, they do a great deal more in the particular circumstances of this Bill, because all parties, even the Government, recognise that we are entering terra incognita—unknown territory—with the provisions of the Bill. It is impossible to foretell how these decisions, inevitably taken quickly under the pressure of the 31 December deadline, will work out in practice. It must surely be sensible for the Government and Parliament to have in place a formal process to review the real-life results. This amendment simply restores the requirement for there to be a PIR, undertaken and published for each regulation, three years after the regulation comes into force.

To conclude, an age ago—actually a week ago, but it feels like an age ago—in my remarks on Amendment 32, I said that during my three years as chairman of the SLSC

“I have seen the sands of power and influence trickling through Parliament’s fingers”,—[Official Report, 2/3/23; col. 433.]

weakening Parliament’s relative power against the Executive, the Government. This is yet another example of mission creep on behalf of the Government. It is wrong in principle and in practice, and I hope the Government think again. I beg to move.

[Lord Fox (LD)]

My Lords, I thank the noble Lord, Lord Hodgson, for his very comprehensive review of two important amendments. It is a shame that we have got to the last sands of the Bill here. I am not going to add to what he has said, particularly on Amendment 134B, but I have a question that formed when I read the Bill in the first place: why is Clause 20(5) in the Bill; in other words, why did the Government actively choose to disapply this process? What made them think that they want to do this?

If I were a conspiracy theorist, I would say, with all the assurances that we have had that most things would stay the same and therefore not require the treatment that the noble Lord just described, this would not be an onerous task. However, if there was wide-scale revocation of regulations—including those that go beyond tagging the ears of fighting bulls, reindeer and all the others we are told about—that have an effect in the United Kingdom today, and if there is reformation, another word for change, a great deal of reviews would be required for those regulations to continue. Why was it decided to include Clause 20(5) in the legislation as drafted?

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

I thank all three speakers. I first thank my noble friend Lord Hodgson; I know he takes this subject extremely seriously, as do I. It was a pleasure, albeit a gruelling experience, to give evidence to his committee. He knows my personal commitment on impact assessments is substantial; I do believe that they are important. As he said, I did have responsibility for it before the machinery of government changes, and I did my best working with the Regulatory Policy Committee to impress on other government departments the importance of producing impact assessments for some quite major pieces of legislation. Some Secretaries of State have chosen not to. My noble friend Lady Neville-Rolfe, talking from a sedentary position here, has just said, “I hope you produced one for the Procurement Bill”.

So, let me address the points that my noble friend has made on Amendments 134ZA and 134B. I hope to explain to my noble friend why we are taking the actions that we are. Starting with Amendment 134ZA, my noble friend’s amendment seeks to reintroduce a duty to insert review provisions in secondary legislation by removing the Bill’s proposed exemption to Section 28 of the Small Business, Enterprise and Employment Act 2015—which, as my noble friend said, was produced by my noble friend Lady Neville-Rolfe. It is amazing how these things come around.

It is correct that the Government should commit to review any new regulatory provisions that may arise from the use of powers in this Bill, including by secondary legislation. However, if we were to reintroduce Section 28, there are concerns that at a future date there will be a huge surge in the volume of reviews requiring assessment in a fairly limited window of time, which would put tremendous pressure on the Civil Service and independent resources. The amendment also calls for a requirement for a review within 3 years. This is in fact more frequent than the current review process of five years. It is my submission that, for some policies, a review at this point would be based on too small a data sample to make a meaningful judgment.

Finally, many of the relevant instruments are in an existing review cycle that is due to be undertaken within the next three years. I hope my noble friend will accept that forcing a further regulatory review would create duplicate or conflicting review cycles. Therefore, for new regulatory provisions introduced under this Bill, we are proposing a bespoke approach to our REUL analysis. Where applicable, such as when retained EU law is being amended significantly via a statutory instrument, departments may be subject to additional independent scrutiny. If the expected economic impact of REUL changes is of £5 million or more, departments will be expected to submit the impact assessment for independent scrutiny by the Regulatory Policy Committee, as in general happens now.

Where measures are being sunset, departments will undertake proportionate analytical appraisal. Each department will be expected to produce an aggregate analysis of REUL that it is choosing to sunset. This aggregate analysis will be published by departments. Each department’s aggregate analysis will be divided into groupings, such as “inoperable” or “defunct”. No doubt the noble Lord, Lord Fox, will study my noble friend Lord Benyon’s famous examples with great interest for the impact on the fighting bulls of the West Country.

Should the total impact of any grouping exceed the de minimis threshold of plus or minus £5 million, which is the limit used, then the department should submit an impact assessment to the RPC for independent scrutiny. This approach balances efficiency by requiring reviews only where necessary, alongside delivering an ambitious programme of REUL reforms which we hope will deliver real economic benefit for UK businesses and citizens.

My noble friend’s other amendment, Amendment 134B, seeks to introduce a duty for departments to conduct a regulatory impact assessment when they lay a statutory instrument or a draft of a statutory instrument containing regulations via the powers in this Bill. To address the question raised by the noble Lord, Lord Fox, properly assessing the impact of government policy is an important principle of good governance, and this Government will continue to be committed to the appraisal of any regulatory changes relating to retained EU law. The nature of the appraisal will depend on the type of changes that departments make and the expected significance of the impacts.

Where applicable, such as when retained EU law is a regulatory provision and is being amended significantly via a statutory instrument, departments will be expected to put their measures through the Government’s systems for regulatory scrutiny, which is the better regulation framework. Where measures are being revoked, departments will be expected to undertake proportionate analytical appraisal. We are currently exploring the appropriate steps we can take to appraise the resulting impacts. Furthermore, the Government have, as the Committee knows, published an impact assessment relating to the Bill as a whole. The noble Baroness, Lady Chapman, referred to it extensively. In addition, an internal exercise is under way between departments and the Ministry of Justice to appraise potential impacts on the justice system from the Bill.

However, given that proper and proportionate cost-benefit analysis will be undertaken by departments in relation to amendments to retained EU law, and efforts are under way to understand potential impacts of sunsetting, I hope my noble friend will agree that there is no need to include in the Bill the amendment that he has proposed. I hope I have been able to reassure him and that he will feel able to withdraw his amendment.

[Lord Hodgson of Astley Abbotts (Con)]

I am grateful to the Minister, to the Opposition Front Bench for its support, and to the noble Lord, Lord Fox, for his inquiries. Clearly, my interviewing of my noble friend at the committee was not gruelling enough in the light of the answers he has given me, but never mind. I accept the three to five years issue.

Then I get quite excited, because I hear about a bespoke approach. That sounds quite good, but then we hear “proportionate” and “only where necessary”. So we will set up something that we all would agree is great—even my successor as chairman of the SLSC, my noble friend Lord Hunt—but then we have so many escape clauses. Although I would not say that it is not worth the paper it is written on, I would say words to that effect. However, it is late. I will read carefully what my noble friend the Minister said, reflect on it, and then decide what further action needs to be taken. I beg leave to withdraw the amendment.

Amendment 134ZA withdrawn.

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Moved by

[Lord Hodgson of Astley Abbotts]

139: Schedule 4, page 39, line 17, leave out “10” and insert “15”
Member’s explanatory statement
This amendment, together with amendment 140, would extend the period available to committees of the two Houses to discharge the sifting function provided for under the Bill, as recommended by the Secondary Legislation Scrutiny Committee in paragraph 59 of its 28th Report “Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill”.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the horse is running to the stables, so I will not speak for a moment longer than is necessary. I shall speak also to Amendment 140. I am grateful to the noble Baroness, Lady Randerson, for putting her name to these two amendments, and the noble Lord, Lord Hutton, who is not here, for also supporting them. They are concerned with ensuring that a proper amount of time is allowed so that both Houses of Parliament can scrutinise the proposed use of the serious powers given to Ministers under Part 3 of Schedule 4. They again follow recommendations made in the SLSC’s report on the Bill.

The powers are listed in paragraph 7(2) of Schedule 4, and it is worth while noting what they are. They are powers in Clauses 8, 12 and 13 to amend, repeal or revoke primary legislation; powers in Clause 15(2) to make subordinate legislation; powers in Clause 16 to update legislation; and last but not least, powers to create a criminal offence in Clause 15(2). We are talking not about parking tickets but about things that are serious.

The exercise of these powers is under the negative procedure, so unless somebody objects it goes through on a nod; it is not debated at all. However, the Minister has to lay a draft of the proposed regulation explaining why he or she thinks the negative procedure should apply, and either House has an opportunity to recommend that the matters concerned are of sufficient importance to warrant an upgrade to the affirmative procedure, which, in turn, would at least allow the regulations to be debated.

Each House will have a committee charged with assessing whether there should be such an upgrade. The procedure follows that established for the European Union (Withdrawal) Act 2108, where the SLSC came to act as sifting committee of your Lordships’ House. Experience under the 2018 Act shows that the two Houses of Parliament generally ran on parallel tracks. Of the 329 proposed negatives under the Act, 50—15%—were recommended for upgrade by your Lordships’ House, and 57—17%—were recommended for upgrade by the House of Commons, and the Government invariably accepted the recommendations from either or both Houses.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

I am grateful for all the support for this amendment. The noble Baroness, Lady Randerson, raised the issue of the precautionary principle: if in doubt, upgrade it if we do not have enough time to think about it. I think that is very important. My noble friend Lord Hunt rightly pointed out that it will depend on what committee does it. It might choose not to use the SLSC, but the 15 days would apply, whichever committee it was taken to, so I do not think it is taking anything for granted. I thank the noble Baroness, Lady Chapman, again for her support from the Labour Front Bench.

I say to my noble friend the Minister that, when you spend a lot of time on the Back Benches pushing hard on a door, if suddenly the door is opened you fly forward, all out of control. I am very grateful to him for agreeing to take this away and think about it. I am sure that, with his persuasive powers and his commitment, which he has given to the SLSC in the past, about the proper level of scrutiny through assessments and so on, he will be able to persuade the business managers, the Bill team and whoever else has to be persuaded that this amendment should be made. I am very grateful to him for concluding Committee on an upbeat tick, and with that I beg leave to withdraw my amendment.

Amendment 139 withdrawn.

Retained EU Law (Revocation and Reform) Bill

Lord Hodgson of Astley Abbotts Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, in case anyone is thinking of voting against Amendment 2—even the Minister—it is worth remembering that Jacob Rees-Mogg said today that this Government gerrymandered the ID vote because they want to corrupt the voting system here in Britain. They wanted a government advantage from the voter ID and they found that they did not have it. We cannot trust this Government on any level on any issue, so Amendment 2 is vital.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I put my name to this amendment from the noble and learned Lord, Lord Hope. I will address the question—or possibly accusation—from the noble Lord, Lord Pearson, head-on: I voted for Brexit, because I support policies designed to give the UK more freedom to operate in the world without the inhibitions that came with our membership of the European Union.

One of the reasons for my voting for Brexit was that I wanted to make some attempt to reduce what I saw as the marginalisation of the UK Parliament—that it was, under the system then prevailing, more or less reduced to a cipher, as my noble friend Lord Hamilton pointed out. My noble friend the Minister has made some significant changes. I, like other Members of the House, thank him for that. A lot has happened in the last few days and it might be that I have not understood fully what he is proposing and its implications, but as I read it at present it does not seem significantly to enhance Parliament’s power.

I have one more reason why the House needs to be extremely careful about this matter. We are entering a brave new world in which, for better or for worse, we have greater control over our legislative process. This Bill could create a dangerous precedent as to how, in this brave new world, the Executive feel able to treat the legislature—the two Houses of Parliament.

For the rest of my remarks, I will briefly probe a little deeper the thinking behind the Government’s approach and the level of parliamentary scrutiny of and involvement in the Bill. One of my last tasks before I handed over the chairmanship of the Secondary Legislation Scrutiny Committee to my noble friend Lord Hunt of Wirral at the end of January was to sign off the committee’s report on this Bill, which the House may recall was entitled Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. The Government are required to provide a response to the recommendations made in reports from your Lordships’ House, and they have done so. I am extremely grateful to my noble friend and his officials for the extensive and detailed 10-page reply. However, it is dated 10 May—last Wednesday—so again, if I have not been able to absorb the full implications of what he is saying, I stand ready to be corrected when he comes to reply.

There are two specific points that I would like to draw to the House’s attention. The first is in paragraph 31 of our report and touches on the point made by the noble Baroness, Lady Andrews. We lay out a reason as to why, even if

“a definitive list of the relevant law were eventually compiled in time”,

the House would be insufficiently informed unless something was said about the “individual piece” of legislation; to produce a list is not the same.

The Government’s response was:

“The Schedule approach means that a definitive list of REUL to be sunset has, in fact, been compiled. This Schedule is subject to parliamentary debate and approval”.


My concern is that the House approving the schedule—the long list of 600 or so SIs—is affording only the most tangential level of parliamentary involvement and approval. Do I assume that in giving my approval to the schedule I am automatically endorsing every one of the constituent SIs, or do the Government intend to bring forward an explanatory note on the reason for including each individual regulation on the schedule, many of which I agree are probably quite trivial, to be considered by both Houses? Without this, Parliament has no real understanding of what it is approving, and it is this uncertainty that makes the amendment moved by the noble and learned Lord, Lord Hope, so important.

My second and final point relates to the recommendation made in paragraph 33. Our report said:

“It is generally acknowledged that the scrutiny of secondary legislation falls very far short of the scrutiny afforded primary legislation. Downgrading the status of direct principal retained EU legislation so that it can be amended by ‘ordinary powers to amend secondary legislation’ … means therefore a corresponding downgrading of effective parliamentary scrutiny. Suggesting that this will have the advantage of saving parliamentary time does not make the Government’s justification for this change any more persuasive. It is a matter for Parliament to decide how it should use its time”.


The Government’s response is:

“The Government disagrees that the scrutiny of secondary legislation falls short of the scrutiny of primary legislation. The scrutiny procedures for secondary legislation are long standing and are endorsed by Parliament during the passage of legislation”.


I find this continuing government assertion that the scrutiny of secondary legislation is equivalent to that of primary legislation astonishing—jaw-dropping, to be frank. My noble friend’s letter says that the scrutiny procedures for secondary legislation are long-standing, and he is right, but those long-standing procedures were designed for an earlier age when Governments used secondary legislation for what it says on the tin: to deal with issues of secondary importance and avoid gumming up the legislative machine. But successive Governments have used secondary legislation to pass into law—law that applies to every one of us—decisions too important to be left to secondary procedures with their “take it or leave it” unamendable approach. As I have said before, if the Government want to take a little they have to give a little, and so far the Government appear unable or unwilling to do this.

My concluding remarks are these: Parliament will stop this continuing shift in the balance of power towards the Executive and away from the legislature only by constantly explaining how fundamental to the health of our system of government it is, no matter how difficult, embarrassing or controversial it may be to do so. That is why it is essential that the House supports the amendment moved by the noble and learned Lord, Lord Hope.

[Baroness Lawlor (Con)]

My Lords, I thank my noble friend the Minister for explaining so fully his amendment to the Bill. I am slightly saddened on two counts. First, I wish the list he provided in the schedule was a little more ambitious and extensive in the number of regulations and rules included. Secondly, I am saddened by the response of some Members of your Lordships’ House.

I particularly oppose Amendment 2. The idea that there is an initial committee is hardly more than camouflage, because the committee is charged with putting any but the most negligible changes to both Houses.

The subsequent requirement in the amendment that a majority of both Houses has to approve the removal gives, in effect, the power of veto to an unelected Chamber, in a way that goes contrary to the constitutional arrangements of a democratic country whose voters explicitly chose withdrawal from the EU and its laws, at the referendum and again in 2019. They voted overwhelmingly for a government pledge to carry out that mandate. The Executive have a mandate—a direct mandate—from the electorate to end EU law. That mandate must be respected, and must be respected by this House.

A much more extensive arrangement was put to the House of Commons, which passed at Second Reading by over 60 votes. I am very concerned that this House will, yet again, obstruct the will of the people, expressed in 2016—

--- Later in debate ---

[Lord Hope of Craighead (CB)]

I am extremely grateful to the noble Lord for his explanation. I think the noble Viscount will appreciate that we have to deal with this very carefully. On the other hand, I think he will agree that, given the nature of the task being carried out, it would be extremely unfortunate if a flaw were spotted and nothing could be done about it. We are trying to suggest a mechanism by which something that is agreed by the Joint Committee, and indeed by both Houses as necessary, should be capable of being done. I hope I may leave it at that. This is a carefully drafted amendment that is doing its best to address an extremely important and, in some respects, quite delicate task.

When the time comes, if necessary, I shall seek the opinion of the House on Amendment 76. For the time being, because we have before us Amendment 15, that will be my position too, if necessary, when Amendment 15 is called.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, we have had two significant amendments proposed by the noble and learned Lord. I have Amendments 73 and 74 in this group, which are small and technical but significant in the way in which they try to enhance the scrutiny provisions that underlie the noble and learned Lord’s two amendments, which I entirely support. I will not repeat my reasons because I would be largely rehearsing the arguments that I made an hour and a half ago.

It is generally anticipated, though not certain, that the Secondary Legislation Scrutiny Committee will be one of the bodies appointed to carry out some scrutiny of the regulations, as and when this particular part of the Bill comes into force. The Bill as drafted envisages a period of 10 working days for a report to be produced by the SLSC that would then come before the House, and the House would make its mind up about its view of that report on the instrument. The Government use the example—the dreaded precedent—of the 10-day period provided under the European Union (Withdrawal) Act 2018. In the SLSC report that I referred to earlier, we proposed that the period should be extended from 10 days to 15. We said in paragraph 58:

“We know from our own experience in scrutinising proposed negatives under the 2018 Act that, depending on the day of the week on which a proposed negative has been laid, meeting that 10-day deadline could be challenging”.


Under the Bill, the regulations to be scrutinised are of an entirely different level of policy implication, importance and significance. This view and the proposal for a five-day extension—by no means a huge length of time—have been endorsed by the Hansard Society, which Members of the House will be aware is an academic expert in matters of parliamentary procedure.

In Committee on this Bill on 8 March, at col. 876, my noble friend, having heard the debate on these amendments, was kind enough to offer to go away and reflect. I have no doubt that he did his level best, but I fear that he was rebuffed because the Government said in their response to the SLSC report of 10 May:

“Having considered this carefully and in particular how the existing 10 day sifting practice works, the Government remains of the view that a 10 day sifting period is sufficient for SIs laid using the powers in the Retained EU Law Bill … The retained EU Law programme is a similar challenge”—


to 2018—

“but it is no more complex or demanding”.

I have just two points on that. First, to describe this Bill as no more complex and demanding, compared to that of 2018, is, I am afraid, plain wrong. It is a much more significant piece of legislation than the 2018 Act. Secondly, the members of the SLSC do not come to this view ex cathedra. We think about it, but we also talk and take into account the views of the highly experienced and dedicated staff, who produce excellent reports which come before your Lordships’ House every week.

To conclude, I suppose I could just about have got my mind around my noble friend’s view that it should be 10 days after all when we were under the cosh of the 31 December drop-dead end date. We do not have that now, so the time pressure that was otherwise going to be imposed has now been released and reviewed. I urge my noble friend to go back to the chateau behind the lines and ask the general commanding to think again. If the Government do not think again, it will be yet another example of how they appear intent on marginalising Parliament at every single opportunity.

[Viscount Hailsham (Con)]

My Lords, if I might briefly comment on the suggestion of the noble and learned Lord, Lord Hope, about amendments—

Retained EU Law (Revocation and Reform) Bill

Lord Hodgson of Astley Abbotts Excerpts

Consideration of Commons amendments
Tuesday 20th June 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, Motion B1, in my name, raises an issue that has been of great concern to many in this House from the outset in our examination of the Bill: parliamentary sovereignty. The clause that causes particular concern, and to which my Motion is addressed, is Clause 15, headed “Powers to revoke or replace”. All the powers that it contains are exercisable by statutory instrument alone, with no provision for active or meaningful scrutiny by either House. That amounts to what the noble Lord, Lord Anderson, described when the issue was before us two weeks ago—without any exaggeration, I think—as a delegated superpower.

It is worth taking a moment to think about the key words that are used to describe the extent of the powers conferred on a relevant authority by this clause. For our purposes, the relevant authority is a Minister of the Crown. Clause 15(2) states that the Minister

“may by regulations revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives”.

Clause 15(3) states that the Minister

“may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.

The subsection (2) power extends not just to achieving the same objectives but to achieving objectives that the Minister considers to be similar. The decision as to whether they are similar or appropriate, about which there may reasonably be more than one view, is left entirely to the Minister.

Subsection (3) goes even further: it extends to the making of such alternative provision as the Minister considers appropriate. There is no limit here to the objectives that are to be achieved. They do not need to be similar—there is no limit to that extent—so they could be different from those of the secondary retained EU law that is being revoked. Again, there could reasonably be more than one view as to whether the alternative provision, whatever it may happen to be, was appropriate.

It is worth reflecting for a moment on the subject matter of what is open to revocation and replacement in the exercise of these powers. This is not simple, routine stuff for which delegated legislation is unquestionably appropriate. It extends to, among other things, major instruments of policy. It extends to fundamental rules relating to public health, trade and the environment, which were handed down to us by the EU and with which we have lived for several decades. It includes, for example, agricultural support, blood safety, fisheries management, food composition standards, nutrition, resources and waste, and the control of ozone-depleting and radioactive substances. Those are just some examples.

Your Lordships might consider it rather strange, given the nature and extent of what is involved, that neither House of Parliament can play any kind of active role in the scrutiny of these regulations. It really is a take-it-or-leave-it system dictated to Parliament by the Executive. The objections to this, which I need not repeat, have been set out many times, and that is what my amendment seeks to address.

I recognise that the previous amendments, which were moved first by me and later by the noble Lord, Lord Anderson, proposed a system that the Minister was right to describe as novel and untested. What I am now proposing is based on a system, as the Minister has pointed out, known as the super-affirmative procedure, which was enacted by Section 18 of the Legislative and Regulatory Reform Act 2006. I shall explain briefly what this involves.

It applies only to regulations made under Clause 15. It proposes a Commons committee—not a Joint Committee, as previously suggested—to sift regulations made under the clause in the light of an explanation by the Minister as to why the regulation is considered appropriate. If, but only if, the committee reports that there are any regulations to which special attention should be drawn, the Minister must arrange for them to be debated on the Floor of each House. The Minister must then have regard to any resolution of either House and may, but is not required to, propose a revised proposal in the light of what has been resolved. The procedure for approval in both Houses thereafter is the affirmative procedure. Finally, the committee may recommend that the Minister’s proposal should not be proceeded with, but the House of Commons has the last word, as it can reject that recommendation. If it does that, the regulations may be laid.

This is a relatively light-touch procedure, which gives Parliament some measure of oversight of what has been proposed. I offer it as a compromise, in the hope that the Minister, despite the remarks he made at the outset of this debate, will feel able to give it serious consideration. At the heart of it all is an issue of principle, which is of basic concern to this House and the other on their entitlement to take an active part in the major exercise proposed. It is in that spirit that I propose to test the opinion of the House, if necessary, when the time comes.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I would like to detain the House for no more than a minute on this issue. I have spoken about it many times in the past.

I support what the noble and learned Lord, Lord Hope, has said on the principle of what we are looking at. It is very important we remember that my noble friend the Minister said, as a defence of the government position, that the House would have a chance to look at these instruments by means of the affirmative procedure —unamendable, as we know—and that it would have the appropriate back-up information. One of the things that has moved on from the days of just framework Bills is the increasing reluctance of the Government to produce the back-up information—impact assessments and Explanatory Memoranda—in time for the House to do its job properly. The spat we had last week about the Public Order Act regulations was the result of this very question of overcasual behaviour.

My noble friend will say that of course we will have absolutely similar treatment—this is the Government’s argument—for affirmative resolutions as we do for primary legislation. I have the greatest respect for my noble friend on the Front Bench—for his patience, courtesy and diligence—but how he can say that with a straight face absolutely beats me. I am sure that the noble and learned Lord, Lord Hope, has done a very important service for Parliament—this House and the other House—in bringing back this issue for us to consider today.

But then we get to the politics—and politics does come into this. The reality is that the reforms that the noble and learned Lord, Lord Hope, many other Members of your Lordships’ House and I would like to see come about will take place only if they are led by the House of Commons. If that does not happen, the Government will immediately say that this is the unelected House trying to tell the elected House how to do its job. That, I am afraid, will be game over. That is why I voted against the fatal amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb. The House would be unwise, within one day of the Commons having passed a resolution, to immediately pass a fatal amendment.

The brutal truth is that we have been unable to get Members of Parliament in the House of Commons in sufficient numbers to understand what we are driving at: that it is not to do with EU law but is about parliamentary sovereignty, as the noble and learned Lord has said. There are stirrings there but they are only stirrings.

The case before us is further complicated by the fact that this is all going into the Brexit meat-grinder. In the debate in the House of Commons on 12 June, Sir William Cash MP said:

“The way the House of Lords has dealt with these amendments demonstrates that the Lords are determined to try, by hook or by crook, to obstruct the House of Commons, which is the democratic Chamber in these matters as far as the electorate is concerned”.


Later in the same speech he said:

“We know from everything that we have heard over the last few weeks on the Bill that there is an intransigence—a stubbornness, if I may say so politely—from our noble Friends in the House of Lords in the face of any attempt to get rid of retained EU law in the way in which we are proposing”.—[Official Report, Commons, 12/6/23; col. 34.]