Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

Doctrinaire, ideological, subversive of Parliament, a headlong rush, an arbitrary timetable, a blank cheque for government by diktat—this Bill is coming in for a bit of criticism from Conservatives. I am not surprised, because the presumption that change is needed and the proposed method of change do not strike me as terribly Conservative. Lord Salisbury in 1892 defined Conservatism as delaying changes until they become harmless. I have always believed that he also said: “Change? Why should we change? Things are bad enough as they are.” I can get away with that as the noble Lord, Lord Lexden, the real expert on this, is not here; he says it is apocryphal. Here are Lord Salisbury’s successors running a rushed, in-house review of some 4,000 laws with a presumption that change is required because of the laws’ origins, not their effects.

I was there in Brussels during a period of peak legislation with the single market programme. I was there when the European Union was dancing to the tune of a British Conservative initiative, inspired by Margaret Thatcher, prescribed by Arthur Cockfield, pressed by John Major, driven through by Commissioner Leon Brittan. Were they all wrong? Is their legacy now suspect simply because they succeeded in getting the EU to buy their prescriptions for appropriate regulation?

Of course, some of the 4,000 laws could well be overtaken; I do not know. There could be sense in a sift done bottom-up, sector by sector, consulting those affected, balancing the consumer interest with the interests of producers and traders—but not this way; not top-down, in-house, with no consultation, minimal scrutiny, an end-year guillotine and new rules by decree cutting out Parliament.

Business hates this Bill. Business likes certainty. Business wants regulatory predictability. The perception of change for change’s sake is anathema to business. The chemical industry and Defra confirm that the cost of replacing the EU REACH regulations will be about £2 billion. That is just one industry. This Bill and the uncertainty that it creates will affect them all. No wonder the CBI opposes it so strongly.

Lord Salisbury also said in 1879:

“Whatever happens will be for the worse, and therefore it is in our interest that as little should happen as possible”.


As regards this Bill, that seems to be exactly right. It is malign, misconceived, damaging, undemocratic, un-Conservative—and we should throw it out.

Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Callanan (Con)]

They are on the dashboard if they are retained EU law. I noticed that, in all the statements and speeches from Members opposite, the words “if” and “could” were doing an awful lot of heavy lifting. I accept that there is no trust from the Opposition in the intentions of the Government and that they want to make their political attacks. The reason I outlined UK employment rights and standards was to demonstrate the commitment of this Government to those rights. The point that the noble Lord, Lord Fox, made earlier is essentially correct: while we have some very high standards, of which we are proud and will maintain, there is a complicated mishmash of laws in this area between some elements of EU and domestic law.

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Callanan (Con)]

If the noble Lord will sit down, I will come to him in a second. I will make this point and then I will give way.

UK rights were provided in the complicated mishmash of UK law, with higher standards often based on minimum standards and provisions that were in EU law originally. That is why they have been included on the dashboard. We will conduct a review of all these regulations—which this legislation provides for—and we will do so in the context of the high standards that the UK already has.

[Lord Kerr of Kinlochard (CB)]

I think I understand the noble Lord’s argument, and that he is therefore going to end by saying that he accepts Amendments 1, 23 and 40. If our standards are so high, there can be no question of the Government reducing our standards or amending or sunsetting the legislation spelled out in Amendments 1, 23 and 40. If the Minister is not prepared to accept these amendments, will he explain why, if they are in the Government’s view good, they have to be in doubt until the end of the year and then possibly dead?

[Lord Callanan (Con)]

As the noble Lord knows very well, that is not what I am saying. The reason that I am not saying that goes back to two points made earlier in the debate. First, there is a complicated mishmash of rights and responsibilities across these particular laws, but we will maintain our high standards. Secondly, it goes back to the argument the noble Lord, Lord Fox, made about interpretive effects. If the interpretive effects are being abolished to bring them in line with the rest of UK common law and to reduce some that have the status of primary legislation to secondary legislation, we need to review the whole panoply of employment law as a whole—which we will do, but we will do it in the context of the high standards that we have and will maintain. That is the point I am making

Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

That said, I am happy to support all of these amendments, each of which bears my name in some form or another. I hope that the Minister will give them due attention. These are really important issues that affect real people, every day, and we want to know if they are going to be retained as they are, amended or revoked.

[Lord Kerr of Kinlochard (CB)]

I too welcome the Minister to her role. I knew her first as a very distinguished civil servant in the Ministry of Agriculture, Fisheries and Food, so know that she will understand far better than I do what I am now going to touch on.

It seems to me that this Bill has flown under the radar so far, as far as public opinion is concerned. It came through the other place with very little public attention. I do not think many people realise how much of the statute book that is directly relevant to them is in play and will stay in play until some Minister has decided whether it is to be amended, replaced or die. When the public get to know that this is the case, I think they are going to react rather badly. I wonder about the politics of this, late in a Parliament, but that is not my business.

The issue arises first very clearly in relation to Amendment 4, and later in relation Amendment 20. Food safety is a real concern, right across public opinion. The idea that food labelling and safety rules could be in play will have considerable resonance, in a negative sense, across the country. When people were talking in an overexcited way about how we might have a free trade agreement with the United States, I was struck by the issues that really had public resonance, which were those concerning chlorinated chicken and the hormones in beef. As a member of the International Agreements Committee, I am struck that what is of most interest to the public in free trade agreements are food imports and whether their standards will be equivalent to ours.

I learn from the Consumers’ Association that 90% of our food law is retained EU law. Unless the Government accept amendments such as Amendments 4 and 20, in play will be a raft of legislation which is important to people. They take it seriously; they want to know what is in the food they are going to give the kids. It would be in the Government’s interest to look seriously at these amendments and at the sunset clause, which just does not work, as the noble and learned Lord, Lord Hope, said earlier.

Particularly in relation to food safety, people think, “salus populi suprema lex”—I try that on the Minister because she is a great classical scholar—that is what they believe. Therefore, what the rest of us are doing now, along with singularly few on the Government Benches—

the boy stood on the burning deck,

Whence all but he had fled—

will have considerable resonance out there.

[Lord Whitty (Lab)]

My Lords, I want to follow the noble Lord, Lord Kerr, in intervening on this issue because this is the first consumer protection part of the Bill. I was once a consumer champion—I hope I continue to be so privately—and this amendment and many in the next group relate to food safety. The noble Lord is absolutely right: this is one of the most acutely difficult areas of consumer protection, and labelling in particular has caused a certain amount of controversy. But there is settled law here, and the bulk of it originates from Europe.

There are other areas of consumer law where UK law is better than EU law, but here, our scientists, our food industry and the Europeans have come up with an agreement which goes right across Europe. We have to remember that processed food and fresh food is a very well-traded commodity, probably the biggest trading commodity within the European continent, and we need some commonality. The threat of this being changed is surely a real difficulty for the food industry—although the Minister can answer that—and certainly for consumers. It is difficult enough to follow the labelling and consumer information currently required; if we have different labelling and requirements for things originating in France and in the UK—or for those originating in the Republic of Ireland and in Northern Ireland—we will have huge difficulties.

But there is something more behind this. When the Government presented the European Union (Withdrawal) Act 2018, I think we all accepted that whether we liked Brexit or not, we would have to have a process whereby government looked at whether some of these laws continued. The real difficulty with this legislation is that it does not provide for a steady look at what the highest priority is for government to intervene on over the next few years, in order to see in a broader context whether we ought to change it. There is the threat that every single regulation and law mentioned in these amendments and in subsequent groups will end on 31 December this year without any replacement, whether with consideration or not.

We are on Clause 1, which deals with the sunset. The noble Lord, Lord Kerr, has referred to the relatively sparsely populated Government Benches. I ask Ministers if during their lunch break they have taken note of the points made by the noble Baroness, Lady Altmann, and the noble Lord, Lord Lucas. If they are taken on board, that would reduce the anxiety here and in civil society about this approach. If the sunset clause disappears, and with it the threat of regulations entirely disappearing at the end of this year, we would give the Government credit for being able to make a proper assessment of whether those rules are needed.

Regarding the suggestion of the noble Lord, Lord Lucas, if we had an amendment to Clause 15 which, broadly speaking, said “no regression”, the level of anxiety would again be greatly relieved, at least in relation to some of the regulations we are talking about.

So I hope the Minister took the opportunity of the 50-minute adjournment to think about what his colleagues were saying, and that he will come back to us, either now or subsequently, with an assurance that there will not be the death of all these regulations as of 31 December, and that regression will not occur in relation to any of them, particularly those dealing with food labelling information and the protection of consumers whenever they go to the supermarket.

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[Baroness Neville-Rolfe (Con)]

There is a process in place. The Minister explained earlier how it is working and that we will be giving more information, as we should. I was trying to reassure the Committee that, in advance of that, discussions are going on at official level, which I am sure will reassure people. There will be a process. Anything significant that needs to change will need to be the subject of a statutory instrument, which will come before the House in the normal way.

I am now going to move on to Amendment 17.

[Lord Kerr of Kinlochard (CB)]

One of the more entertaining bits of the Minister’s elegant reply was the opening bit, in which she gave us a new rationale for the sunset clause: it was necessary in order to get obscurantist, idle civil servants to actually go through the statute book and decide which bits should go. Is this habit going to catch on? The next time we have a defence review, shall we start with a sunset clause that would remove frigates? I think the noble Lord, Lord West, would be particularly good in that discussion.

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[The Lord Privy Seal (Lord True) (Con)]

My Lords, I remind the noble Lord, who I listen to with great respect, that it is not the custom in this House to address remarks personally as “you” to an individual Minister who is trying to answer. You may certainly make charges—you have made many—against His Majesty’s Government but please let us not personalise our dialogue.

[Lord Kerr of Kinlochard (CB)]

The rebuke is absolutely correct, and I withdraw my remarks. When I said “you” I meant the Government vicariously, but I may have elided from first referring to the Minister personally into talking about the Government. The Leader is quite right to stamp me down.

I hope that the Government will be able to tell us soon the answer to the question the noble Baroness, Lady O’Grady, has asked. The uncertainty across the country is what will do the most damage.

[Baroness Neville-Rolfe (Con)]

That is why we have published the dashboard and why we will improve it. It is why we want to get this Bill through, so that the SI process can start in good time for the end of the year. I should say that I know that government departments have been working on this process for a long time. When I was a Minister in the Brexit days, the process of considering what might be done for the future was already under consideration. A lot of thought has been given to this and we need to get on. I would encourage noble Lords to support that.

On Amendment 17, there is no need for a specific exception for regulations on PPE. On intent, we of course remain committed to protecting consumers from unsafe PPE and will continue to ensure that only safe and effective PPE products are being placed on the market now and in the future. Ministers will be using available legislative powers, including those within this Bill, to take the necessary steps ahead of the sunset date to ensure that we meet this commitment.

We have dwelt on this for a long time. I hope noble Lords will feel able to withdraw and not to press their amendments and move on to the next group.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

I understand the point the noble Baroness is making. We are not talking about increasing the totality of the regulatory burden. We are talking about making it fitter for UK purposes, which is what the Health and Safety Executive is seeking to undertake.

[Lord Kerr of Kinlochard (CB)]

I am very interested in what the Minister is saying. This asbestos review sounds like good news. However, given what she has said, there seems now to be an overwhelming case for a government amendment similar to Amendment 45, which takes financial services business out. If the asbestos issue is being explored with a view to improving the existing regulation, it cannot be done under this Bill because this Bill does not allow for improvements—well, it depends how you read Amendment 45 and how you read the Bill. For the asbestos review, which is good news in my view, surely it needs to be exempted from the provisions of this Bill by adding an amendment like Amendment 45.

[Baroness Bloomfield of Hinton Waldrist (Con)]

We just do not believe that that is the case.

Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Clarke of Nottingham (Con)]

So it will not be the negative procedure in every case?

[Lord Kerr of Kinlochard (CB)]

And there will presumably be some that the Government are going to abolish altogether, in which case, nothing will come to this House: we will never have the chance to express a view.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

I thank the noble Baroness for another general question. On transport, the DfT published the Aviation Consumer Policy Reform consultation in January 2022. I did not labour the Committee with all the material on that, but I am very happy to talk to the noble Lord, Lord Collins, about it separately. It included proposals relating to enforcement of aviation consumer protections, redress for breaches of consumer rights, and reforms to compensation for delays and for damaged wheelchairs and other mobility equipment—which I get postbags about—allowing us to consider what works best for the UK domestically, for consumers and industry. We are considering our responses and will respond to the consultation shortly. This is a concrete review and reform that we can look at. I am sure that we will move things forward in an appropriate way.

With the agreement of the Committee, I ask the noble Baroness to withdraw her amendment.

[Lord Kerr of Kinlochard (CB)]

I do not think that the Minister gave a substantive answer to the point that I raised. I am happy that there should be no substantive answer now provided that we get one at some stage today. I asked what parliamentary procedure, approval and scrutiny will be available where, having done the sift and the consultation, a Minister decides—perhaps because he is interested in removing obstacles to efficiency, productivity or profitability—that a piece of our law should be abolished? What procedure will enable Parliament to debate that decision? The idea that the gentleman in Whitehall knows best, to coin a phrase, was one that I thoroughly approved of when I worked in Whitehall; I have slightly gone off it now.

[Baroness Neville-Rolfe (Con)]

It is the gentlemen and ladies in Whitehall and in the European Commission. If I may, rather than prolong this discussion, I will reflect on the point that the noble Lord has made.

--- Later in debate ---

We have amendments on the environment here which have been presented very well, and, as I said, that of the noble Baroness, Lady Hayman of Ullock, lists a number of regulations. That list is not exhaustive; she made that plain herself. It may well be that my noble friend says that his default position is to keep on the statute book things he is not very confident should be taken off. But the fact is that my noble friend is not immortal and is well worthy of promotion, so he may not be in charge very much longer. The sensible thing to do here is to take the example of the Prime Minister yesterday and, at the very least, pause the Bill and, at the very best, get on with some more sensible legislation and drop it entirely. I really believe that Parliament would be doing the nation a great service if it did not let the Bill go through.

[Lord Kerr of Kinlochard (CB)]

I very much agree with the noble Lord. I will simply make two small points at this stage of the debate. The first is about the public resonance of our discussion. In the House of Commons, the Bill went through under the radar; the public did not really notice what was going on. When the public get to hear of the considerations we are discussing, they will pay a huge amount of attention.

The noble Baroness, Lady Young of Old Scone, was quite right to point out that the environmental laws in the European Union were largely there as a result of British initiative. The animal welfare declaration attached to the Maastricht treaty, the Garel-Jones declaration, was there not actually to annoy the Spaniards, as some said; it was there because the postbag that the Major Government got on animal welfare was enormous. I was Permanent Representative when a lot of the environmental laws were going through, and my postbag was packed with demands for more from Britain. When I was working on the constitutional treaty in 2002-03, the biggest single lobbying on Giscard’s convention was done by the Royal Society for the Protection of Birds, which brought about an immense postbag, largely from Britain.

The issues we are discussing are not arcane matters for lawyers and parliamentarians; they are of real concern to real people out there. The Government ought to think hard about that aspect of the Bill. The public resonance has not started yet but, when it does, I do not think it will be about an obstructive House of Lords resisting the will of the House of Commons; it will be about the protection of birds, animal welfare, the habitats directive, and sewage in the rivers and on the beaches.

I turn to my second point. I hope that the noble Lord, Lord Benyon, whom I welcome here, will be able to tell us that the Government have absolutely no intention of taking some of these laws off the statute book or watering them down. If he is able to do that, he would be very wise to encourage his colleagues in the Government to accept these amendments. If the Government have no intention of watering down or eliminating particular categories of law, that should be stated in the Bill. It seems to me that the logic of a reassuring response to the debate from the Minister, whom I hope will give a reassuring response, is that he should end by saying that the amendments will be accepted.

[Baroness Altmann (Con)]

I join the tributes to my noble friend the Minister—an excellent Minister who is passionate and knowledgeable about his brief. I also thank him for the briefing yesterday. I have no doubt that he was sincere in his reassuring words that the default position will be to retain, and I have no doubt that that is his intention, but this is not the reality of the Bill. As my noble friend said yesterday on REACH, the water framework directive and habitats, the Environment Act set up a clear process for change, and yet now we find that the Bill overrides all that, as the noble Baroness, Lady Parminter, stated.

If a carve-out is possible for financial services, surely this is one of the other areas that must be excluded from the Bill. I am sure that there has been an extensive effort to find all the various regulations involved in protecting the environment and involved in REACH and so on, but the only reassurance we had yesterday was that the department is confident that it has found the vast majority. This is about protecting the public.

We are also told that, if Ministers see fit, or decide that it is in citizens’ best interests, they will make the relevant and necessary changes as they decide. But what if Parliament disagrees? It will have no power. Indeed, as the noble Lord, Lord Kerr, indicated, were the public to be asked themselves, they would disagree. They are not consulted and they have no say; this will be happening by default.

In my view, it is not possible to improve environmental protections without tightening regulations in some way, yet the Bill works against all that. If you want cleaner water in our rivers, as the noble Duke, the Duke of Wellington, so rightly focused on, will you have to have more dirty water in the sea? How will you offset that? Who will decide where regulations must be relaxed to be able to tighten in other areas as we move forward with the intention we clearly have—and rightly so—to improve environmental protections and protections for the public? If it is discovered that a whole family of chemicals or pesticides are more harmful than previously recognised and need to be banned, will other harmful substances have to be allowed into public circulation because we must not tighten regulation?

The Bill seems to be driven by ideology and politics. I have concerns that the sunset is clearly politically driven, and that it cannot be in the national interest. Surely the ideology that regulations can only be weakened cannot apply to something as precious as the environment and all the issues covered by Amendments 10, 11, 12 and 37.

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[Lord Kerr of Kinlochard (CB)]

I am most grateful to the Minister, and I admire his excelsior position that we are aiming at higher and higher standards. If he was to follow the advice of the noble Lord, Lord Clarke of Nottingham, and put these exemptions in the Bill, he would have set a floor; he would not have prevented himself from moving up to higher standards over time. However, I am sceptical whether he carries the whole government with “excelsior”—ever upward—because we have Clause 15(5), where there is an absolute ban on amending or replacing any of these Acts in a way that might increase the regulatory burden, and that burden is defined as including putting up the financial cost or creating

“an obstacle to efficiency, productivity or profitability”.

That does not seem to me to fit terribly well with a drive for ever-higher standards.

[Lord Benyon (Con)]

We can get bogged down in a philosophical debate about what regulation is for. Some people come at it from the direction that it should always stop people doing things that others might define as growth. Other people look on it as assisting legitimate businesses in functioning in a way that disadvantages bad people doing bad things. There needs to be flexibility in legislation to allow the right sort of regulation to encourage good behaviour. You will find that your greatest supporters in doing that are businesses and interests that not only are keen to be seen to be doing the right thing but want to benefit from the fact that we have the right kind of regulation in this country.

I will just finish the point about water. This Government are the first to tackle sewage overflows in the way we have. In the summer we published the most ambitious plan to tackle sewage discharges from storm overflows in water company history. The point made by the noble Baroness, Lady Bakewell, about the River Parrett is entirely understood; the base of that river covers a huge catchment area and agricultural activities over years have seen soils washed away into the river. The problems that have occurred as a result of that are being tackled in a combination of ways: first, through regulation; and, secondly, through incentives in our environmental land management schemes.

The noble Baroness also talked about siloed protections. We now have probably the most united approach to this through the 25-year environment plan, the Environment Act, the environmental improvement plan, what we are doing to encourage tree planting along rivers and many other things. I hope noble Lords agree that our plan will require a huge change in attitude now among the range of people involved in the management of our waterways. With this in mind, I hope that the noble Baroness might not press her amendments.

The noble Lord, Lord Krebs, made a very good intervention. He spoke about the “green crap” point. I was in that Government and in that room; it was not the Prime Minister who said that. I am glad to correct him on that. The Environment Act is not just warm words. I hope that, like me, the noble Lord feels that the hard yards in this Chamber to improve that Bill really made a fundamental piece of legislation, the like of which other countries will look at to see how to make proper environmental legislation.

The noble Lord is right to raise human health, as I said earlier. There is a lot of mapping going on around noise; he will be pleased to know that we include noise levels typically not required by statutory obligations. This will allow for the consideration of health impacts regardless of legal obligations.

I will address noble Lords’ other points. I really want to nail the point about this Bill’s impact on the habitats regulations. We have been clear about the importance of environmental protection across the United Kingdom —not least through the Environment Act, which includes a legally binding target to halt the decline of nature by 2030. We are committed to meeting this target and will not undermine our obligations to the environment in pursuit of growth. Defra published a Green Paper consultation on nature recovery in March last year; the reforms explored in that Green Paper have fed into the Government’s environmental improvement plan, and nothing in this Bill will allow that to be put at risk.

On pesticides, I want to assure noble Lords about REACH; this addresses the point made by the noble Viscount, Lord Stansgate. There are no specific provisions in the Bill relating to UK REACH, so it will have no direct impact on current UK REACH policy. Defra has two key activities under way that aim to improve UK REACH: an alternative transitional registration model to reduce the cost to industry of transitional registrations while keeping high levels of protection. We will extend the transitional REACH deadlines in the meantime to allow time to continue the development of the alternative transitional registration model. Defra and the devolved Administrations are considering ways to improve and better tailor UK REACH to a GB-only setting while keeping the overarching framework of UK REACH in place.

The noble Baroness, Lady Bennett, raised pesticides. The United Kingdom upholds strict food safety, health and environmental standards, and our first priority regarding pesticides is to ensure that they do not harm people or pose an unacceptable risk to the environment. We will not allow the Bill to put that at risk. We will continue to ensure that decisions on the use of pesticides are based on careful scientific assessments of the risks in order to achieve a high level of protection for people and the environment while improving agricultural production.

The UK has an independent national regulator, the Health and Safety Executive, that assesses the risks of pesticides and undertakes the necessary scientific evaluations. If the noble Baroness has specific points on that, I am happy to talk to her at another time. It is necessary to ensure that UK legislation can be updated to reflect future advances in science and technology. Sometimes this debate is very much in net present value terms. Science is fast moving. We want to make sure that science is at the heart of policy-making.

Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, I am absolutely amazed that the noble Lord, Lord Fox, has such faith in the bureaucrats of this country such that, if you do not give them deadlines, they will still keep to the timescale. It is remarkable when you think that one of the tasks of all our departments is to review their legislation to see whether it is still current. At intervals, Ministers have said that they will produce only one new law in return for two revoked, but nothing ever happens. This is one of the inadequacies of the system in which we live, but we will let that pass.

I listened to the remarks of the noble and learned Lord, Lord Judge, with great attention, as I always do. But this is the first time I actually agreed with most of them. Unlike the noble and learned Lord, I campaigned to leave the EU. I did not actually stand on people’s doorsteps and say, “We have a wonderful scheme here. We have a drastically undemocratic system of people living in Europe dictating the laws that we should have in this land. But we are not going to restore parliamentary democracy; we are going to hand over all this power to the Executive.” If I had said that on doorsteps, and people like me who wanted to leave the EU had put that argument forward widely, it is quite possible that we would not have left the EU at all.

I am spoiled for choice with the amendments I could back in this group, but I very much support the noble Lord, Lord Whitty, and his Amendment 62A. I think that we need a sifting committee and the all-party one that he advocates is very much one that I would support.

I have been told that at least 40% of our retained EU legislation will be put back on the statute book unchanged. I suspect that that is a rather low estimate and will rise, particularly given what my noble friend Lord Benyon said about retention being the default position. There will not be much controversy about that and the committee of the noble Lord, Lord Whitty, could decide to do that by secondary legislation.

We then come to EU law that is completely irrelevant to this country. Isolated cases have been brought up, such as reindeer between Denmark and Sweden, and fishing in waters nowhere near the United Kingdom, as my noble friend Lord Benyon mentioned. We have also got the export of lemons. I do not think we are going to be doing a lot of that in the future—though with global warming, you never know, do you? Then we have got olive oil; I do not quite see us growing that number of olive trees in the near future, but it is obviously very important to the southern countries of the EU. All of that can certainly be binned, and I would not have thought that there would be any controversy about that whatever.

I suspect that the other amount of law that the Government are thinking of getting rid of, which is more difficult, is the area where there is already legislation in the United Kingdom which does this job better than the EU legislation. That is something which will have to be argued out, which is why I think the role of this cross-party committee could be critical.

We then come to other regulations which need very minor amendments. As we know, one person’s minor amendment is somebody else’s major amendment, so I would be more than happy that the committee viewed that legislation as well. If it was happy that the amendments were very minor—just changing dates and things of that sort—they could allow that through statutory instruments and secondary legislation. What is much more concerning is the ability that the Government seem to be giving themselves to scrap an EU law and introduce a completely new one. This is not what we voted for when we voted to leave the EU and is an extraordinary transfer of power. That is where I hoped that this committee would come in and say, “No, this must be dealt with by primary legislation.”

To sum up, I would be more than happy to back an amendment similar, if not identical, to that of the noble Lord, Lord Whitty. I will campaign among all the people I know to actually support it as well—and I think that I possibly represent one or two of the people who left the EU. If we do that, we might get an overwhelming majority which might make this Government change their mind.

[Lord Kerr of Kinlochard (CB)]

I am very glad that I gave way to the noble Lord, Lord Hamilton. I hope that the Government will reflect on such criticism coming from such a quarter. The noble Lord, Lord Hamilton, and I disagreed violently over Brexit, but the criticisms that he is making now, much more clearly than I could, are the criticisms that I want to make now. So the opposition to the Bill does not come under the remainer/leaver axis—it comes under the “good Government” axis.

There are just two points that I want to raise. I support the amendments in this group, particularly the amendments in the name of the noble and learned Lord, Lord Judge, the noble Lord, Lord Fox, and the noble Baroness, Lady Chapman, Amendments 39, 42 and 43. The first point I want to make is about unannounced repeal—the point made by the noble Lord, Lord Beith—although it is unannounced and undiscussed repeal that really bothers me. The other is about default.

On unannounced and undiscussed repeal, when we were last in Committee, on Tuesday, I asked what Parliamentary procedure would be available when a Minister decides that a piece of our law should be abolished. What procedure will enable Parliament to debate that decision? The Minister replying to the debate said that she would reflect on the point that I had made. I have not yet heard an answer, but it seems to me rather a significant point. Here we have a situation which I believe is improper in constitutional terms—and it is certainly absurd in practical terms that laws should disappear by administrative fiat, privately. I do not know how courts will be expected to apply that, and I do not know how citizens are expected to behave in relation to the law, if changes in the law have been made by administrative fiat, privately. I think it is constitutionally improper that that should happen without the opportunity for some discussion in this this place and the other place. I think it is important to address the question that has been raised by the noble Lord, Lord Beith, and I hope we are about to hear an answer.

[Baroness Chapman of Darlington (Lab)]

The noble Lord’s speech is quite intriguing. I have a question for him, although I do not know whether he will be able to answer it here and now. Is he suggesting that, if a piece of law were to be revoked because it was not included on the dashboard and had not been discovered through the search process, and that piece of law is later identified by a citizen and relied on in order to take a case to a court, that court would then have to determine whether that piece of law was retained EU law? What effect would that have on the deliberations of that court at that point?

[Lord Kerr of Kinlochard (CB)]

That is exactly the point I was going to address under my second heading, “default”. As I read the Bill, those laws that are not identified in time automatically vanish. As I read the Bill, when the clock strikes midnight at the end of the year, anything that has been omitted but is still the law of the land on 31 December is not the law of the land on 1 January. That is bizarre. I think the Government have to accept something to deal with that problem. It is dealt with in Amendments 39 and 42. It is not quite dealt with in Amendment 43, but that amendment could easily be expanded to deal with it. It seems to me that, when they respond to this debate, the Government need to tell us what the answer to that question is as well as, I hope, telling us the answer to the question I asked on Tuesday.

[Lord Bach (Lab)]

My Lords, I apologise to the Committee for having not spoken at Second Reading, but I am keen to support the principle behind this group of amendments, and I am pleased to have put my name to Amendment 141A, tabled by the noble Lord, Lord Lisvane. At an earlier stage of this Bill, the noble Lord, Lord Lisvane, described it as a beta-gamma piece of legislation. I think he was being a bit kind. Omega strikes me as being more suitable. I agree with what the noble Lord, Lord Deben, said at an earlier stage as well, although I obviously say that from a different political view. He wanted to understand how a Conservative Government could produce this Bill. I cannot understand how any Government could produce this Bill, Conservative or otherwise.

However, the Bill is with us and at the very least it needs amending severely. All the amendments are in different ways saying very much the same thing: give Parliament its proper role in deciding what legislation should be repealed or replaced. I do not understand how a Government who only this week have, perhaps rightly, boasted of their democratic credentials in terms of an important announcement can produce a piece of legislation like this that just gives power to the Executive and, frankly, bypasses Parliament. If it was not so serious, you would think this was a toytown Bill and a toytown piece of legislation. It is really not worthy of any British Government, which is why I very much support the principle behind these amendments and hope even more that the Government will see the good sense in them.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I think I understood from what the Minister said a few moments ago that I will not get an answer to the question I posed on Tuesday. This time I think he said that he understood the point and would reflect on it. I do not quite know what that means but it is certainly an advance on Tuesday’s position, when the Government were just going to reflect. If we have now reached understanding the point, then we are on the right track.

The point about default is whether we are risking a situation where the courts next year, and in the following years, will have to rule in cases on whether a newly discovered piece of law was retained EU law and therefore died at the end of this year or was not retained EU law and is therefore still in effect. Is it sensible that the default is that the Act is dead? Would not a more sensible default position be that the currently undiscovered but in due course discovered Act remains in force until it is repealed, amended or prolonged? I just do not understand why that uncertainty must be introduced.

[Lord Callanan (Con)]

For the purposes of clarification, I was merely repeating a similar point to the one made by my noble friend Lady Neville-Rolfe. We will reflect on whether it is possible to publish a comprehensive list of laws that might sunset.

I return to the point I made earlier: we are satisfied that the department has identified all the laws for which it is responsible. Lawyers are currently going through it all and our advice to them is that if they are not sure whether or not a law is retained EU law, they should default to preserving it if they think it is important. I hope that answers the noble Lord’s point.

As I was saying, Clause 1 is the backbone of the Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law. The amendments tabled by noble Lords would add unnecessary time and complex burdens to this process, which, of course, may be the purpose of many of them.

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[Lord Kerr of Kinlochard (CB)]

My Lords, I support the amendment from the noble Baroness, Lady McIntosh, but I am afraid that I do not agree with the amendment in the name of the noble Baroness, Lady Lawlor. I also support the amendment tabled by the noble Lord, Lord Whitty, and that in the names of the noble Lord, Lord Fox, and the noble Baronesses, Lady Ludford and Lady Chapman.

I will make two points. First, I need to resume my adulatory exchanges with the noble Lord, Lord Hamilton. He is quite right that the Government are very bad at sifting the law and getting rid of old bits that are not needed any more. However, he is quite wrong to blame the Civil Service for that. The reason the Government spend very little time on thinning the statute book is that Ministers have innumerable ideas for increasing its size, and they do not wish civil servants to do anything other than carry out their wishes. It is rather like the Law Commission; it writes wonderful reports recommending simplification, but nothing happens with them. It is clear to civil servants which bits of the law, for which they are responsible, should be taken away, but they have to spend their time writing new laws, many of which are completely unnecessary and have the purpose of sending a message or setting a legally binding target in the distant future—as if a Government could bind their successor.

Secondly, there is something in the argument by the noble Lord, Lord Hamilton, that setting an early sunset date concentrates the mind. This is the Dr Johnson argument that

“when a man knows he is to be hanged in a fortnight, it concentrates his mind”.

The problem is that we are dealing with the real world and real laws, and, by moving so fast, we will make terrible mistakes.

I believe that it is right to go for something such as the amendment tabled by the noble Baroness, Lady McIntosh, but we need to bear in mind that, while it is necessary, it is not sufficient—it does not put the Bill right. The discussion we had on the last group of amendments, for example, needs to be reflected in major changes to the Bill. That requirement would be in no way reduced by the Government accepting her amendment and extending the sunset clause. This is a necessary change, but not a sufficient one.

[Lord Collins of Highbury (Lab)]

My Lords, in this Committee, as the Minister has constantly been reacting to, we seem to keep going over the same old ground. The good thing about Committee is that it is not about saying whether you support something or not; the most important part of this stage of our proceedings is to probe and better understand what the policy objectives are behind any particular legislative change. I want to focus on that.

I hear the argument from the noble Lord, Lord Hamilton, about the sunset clause—he has made it at every stage in Committee—being an incentive. However, I agree with my noble friend that, at the end of the day, as I think the noble Lord appreciates, we do not have a complete list. We do not know what we are talking about. Until we do, we should not be making changes to the law. That is the key to this: how does this country make its laws and how do we change our laws? It is Parliament that does that, not the Executive. The Executive might control the way we consider the proposals for changing it, but it is fundamentally a matter for Parliament.

I will pick up the point made by the noble and learned Lord, Lord Thomas. He is absolutely right: it is about how the policy objective will impact on people’s perception of how we build and maintain our union of the United Kingdom. That is really important. There has been a consistency among Governments in the settlement that we have had. The noble Baroness, Lady Ludford, referred to the EU withdrawal Act. The question is, post referendum, how we deal with laws that we have had for the last 50 years. I think it is incumbent on the Government to be very clear about what that Act said. It did not just talk about Parliament. What it said is quoted in the Delegated Powers and Regulatory Reform Committee’s report:

“Parliament (and, within devolved competence, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once the UK has left the EU.”


What is wrong with that principle? What is wrong with that legislation, which this Parliament agreed? Why are we considering something different? Why are we considering a truncated skeleton Bill that gives the power to the Secretary of State?

That is why the amendments of the noble Baroness, Lady McIntosh of Pickering, are so important. She is absolutely right to raise this—not as a question of whether we support the principle, but we should ask why there has been a policy change. Why do the Government no longer think that the principles established in the 2018 Act should apply? We need to know, because, as I think the noble and learned Lord, Lord Thomas, said, it brings into question whether it is about trust, competency or resources. All these things need to be answered, and we have not had any answers so far. The Minister should give us some reassurance about that and not simply say that it is an exercise of trying to improve efficiency, because, for many people, the laws of the land protect them at work, at home and on the road. As my noble friend Lady O’Grady said, there are key provisions that we need to understand will continue to protect the people of our union.

Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am not a lawyer—that will become very apparent from what I am going to say—but I support Amendments 68, 69 and 69A. I am puzzled that the Government say that their aim is to introduce legal clarity. I think back to 50 years ago and Lord Denning’s great speech about EU law coming inextricably up the estuaries and rivers. He did not think that we should join the European Community. He made a remarkable speech, which was correct: over 50 years, EU law has come up the rivers and estuaries. How do you desalinate the common law of England? It grows organically. Which bits do you prune? How do you know which nutrients were of European origin and which were of domestic origin? How do you go about this task? Fortunately, it seems that we are not going to be allowed any role in this, because it is going to be done by a Minister with the stroke of a pen. Surely that cannot be right.

The wonderful letter we got from the Minister at noon today explains what we are doing now in the following terms:

“Retained case law is not being sunset”—


I would have said “sunsetted”, but still.

“However, the repeal of section 4, and the removal of supremacy and general principles by clauses 3 to 5 will mean that after the end of 2023 the effects of these features of EU law would not be expected to be read in to relevant retained case law, when our domestic courts are interpreting and applying assimilated law. However, where there is a restatement of case law concerning the application of principles being removed by clauses 3 to 5 of the Bill … it would be expected that courts would continue to consider relevant case law where it is clear from the restatement that that is the intention.”

If I were the court, I would have no idea how to interpret that. What am I supposed to do? I am supposed to work out what the Minister’s intention was from his restatement. Did he intend that I should still look at that EU law, or not? If I am not to look at it, what am I supposed to look at? Fifty years have passed. Does all that salinated law—all these precedents—have to be ignored? I find it quite hard to believe.

The letter explains:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … when they are interpreting and applying assimilated law. Instead, we expect them to apply domestic principles of interpretation.”


What are “domestic principles of interpretation”? We have 50 years of precedent and case law. Is that domestic? I say, yes, it is—but, of course, it is salinated. EU law did affect the development of UK law. So, the reports that are called for in these amendments are absolutely necessary. I feel reluctant to impose on the Law Commission the heavy load that Amendment 69A would place on it. I have great sympathy with the noble Lord, Lord Kirkhope, and I would have preferred his solution to the matter.

I have one other mild grievance with the letter that arrived at noon from Lord Gobbledy of Gook—sorry, the noble Lord, Lord Callanan. It answered a lot of points raised in this debate over the past three days, but not mine. I have now asked four times what the procedure is for getting rid of pieces of EU law—our law—that are to be disapplied and abolished altogether. What we get in reply are examples: we hear about olives, lemons, and navigation in the Skagerrak. I agree with that; no doubt there are several pieces of law that have never been relevant and have no relevance now, and that none of us will miss much. However, there could be others that a Secretary of State might wish to abolish but some of us might take a different view on. For example, if Mr Rees-Mogg were still in charge of this exercise, one could imagine that his might be quite a liberal interpretation of the power to extinguish. What procedure is to be followed? People have to know whether or not laws exist, so there must be some sort of publication. The Minister cannot do this absolutely in private.

Secondly, I would have thought that there would have to be some sort of legal instrument. I do not see how you can pare the statute book without doing so in a clearly legally established and recognisable way. Thirdly, it seems to me that there must be some role for Parliament in that exercise. I cannot see what it is and we have not been told. My questions for the Minister are these: what procedure is going to be used; how will the users of the law know that it has been used; and what role will Parliament have in making the decision?

[Lord Collins of Highbury (Lab)]

My Lords, I too am extremely grateful to the Minister for his letter; I actually got it on Friday. I certainly welcome it. One of the sentences in the letter that struck me—it hit me in the face, as it were—was in the paragraph at the bottom of the second page:

“The Government is intent on bringing clarity to the statute book, and for citizens and businesses so that they are clear as to the rights that they rely on”.


That is the fundamental issue here; it is certainly the one that I want to concentrate on in our debate on this group. By the way, I am not going to repeat the points about the potential impact as we have had lots of discussion about that.

We are dealing here with known unknowns, if you like. As the noble Lord, Lord Kerr, just said, it is about the idea that we do not know quite what impact the case law and common law that has developed over 50 years has had. Of course we had a very detailed discussion on Clause 1, but Clause 3 is potentially even more serious because it deals not with specific regulations that might be identified on the dashboard—it is now approaching 4,000 pieces of legislation—but with areas where we are not sure whether the legislation is EU-derived, are not sure about the impact of EU law on them, and where decisions will undoubtedly have a huge impact.

These amendments are trying to assist the Government in how to ensure a proper process for identifying these things before anything falls off a cliff edge ahead of this date, and how to ensure proper parliamentary scrutiny. It is a reasonable question in relation to process. This is not about trying to frustrate the Government, as noble Lords have already commented. It is about how we assist the Government in avoiding chaos.

Certainly, this clause requires more than simply cataloguing instruments. It requires us to look into how courts have interpreted decisions and what impacts that will have. Whether it is the Law Commission or another body, the Government must ensure that proper time is allocated to research this so that, coming back to the letter, we have certainty, because businesses require certainty. We have had that debate. Workers require certainty as to their rights. Consumers require certainty. All those things have been impacted by decisions through common law.

Nobody disputes that there may be EU rights, powers, liabilities, obligations, restrictions, remedies and procedures that we could do better without. There is no doubt about that, but let us have a proper procedure for determining it. It cannot be right that we simply have a cliff edge with a dashboard that the Minister repeatedly refers to that does not even quantify them. I think there are 28 in the dashboard that you can consider impacted by Clause 3 out of the 4,000. There are clearly lots more examples.

I am attracted to Amendment 69A signed by my noble friend Lady Chapman, the noble Baroness, Lady Ludford, and the noble Lord, Lord Fox. It provides a clear structure and timetable for us to work through that will ensure a transparent way of dealing with people’s rights. That is the most important element of these groups of amendments. Let us not frustrate what the Government want, but let us do this in a proper way that does not lead to the confusion and chaos which undoubtedly Clause 3 would.

--- Later in debate ---

In conclusion, this new clause would add unnecessary complexity to the important steps that the Bill is taking to ensure that the UK’s statute book meets the needs of the British people. I therefore hope that the noble Baroness, Lady Ludford, withdraws her amendment.

[Lord Kerr of Kinlochard (CB)]

I am grateful to the Minister for giving way. Before he sits down, I refer him to the second paragraph on page 2 of his letter—for which I was grateful, joking apart:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … Instead, we expect them to apply domestic principles of interpretation”.


What are these domestic principles?

[Lord Callanan (Con)]

They are the domestic principles of interpretation that have been used by the courts since time immemorial: the normal procedures they use to apply their scrutiny of UK law. That is the point we are making. It is important that the general principles of EU law, which were introduced into UK law with our accession and which have applied to retained—[Interruption.] Will the noble Lord let me finish making my point before he intervenes again?

[Lord Kerr of Kinlochard (CB)]

In time immemorial, we were not members of the European Union. Is the Minister saying that we all should go back to pre-1972, and that anything that happened when Denning salt water was coming up the estuaries—anything that happened in the last 50 years—is to be ignored by the courts?

[Lord Callanan (Con)]

No, I am not saying that at all. Case law is not abolished: courts will still be able to take case law into account. We will use the power of restatement where necessary. Departments will look at whether the general principle of EU law, which we are abolishing with this legislation, affects the particular statutes that they are retaining, and they will adjust them accordingly so that the same policy effect is maintained. Of course I am not suggesting that we go back on what was agreed. The principles of case law will remain.

[Lord Kerr of Kinlochard (CB)]

We are talking about the courts and cases. Surely the courts will have to look at the domestic principles of interpretation which they are going to apply. Will they be given any guidance?

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[Lord Bellamy (Con)]

My Lords, the courts are always astute. They sort of intuitively know where they have to stop and where Parliament has to take over. That is a process that has been honed and refined for the past 100 years at least, but it does not prevent the courts moulding, refining and developing the common law. There comes a point where you cannot go further, but quite often in a court you can, especially when you have existing jurisprudence. It is quite early on in the development of a new technology. In the Warner case, we were talking about hyperlinks, graphic interfaces and all sorts of high-technology things with which I am sure your Lordships are extremely familiar, but it is a new area of law, and the courts, generally speaking, work with that until they find that they have gone as far as they can as a court and then Parliament takes over. With respect, I would not completely accept the observation of my noble friend Lord Hailsham that this is usurping Parliament.

[Lord Kerr of Kinlochard (CB)]

I think I understand the Minister’s argument about “proper” in new paragraph (c) in Clause 7(3), but is the wording of this not prejudicial because it assumes that retained EU law restricts the proper development of domestic law? It does not say that the court should consider whether and to what extent retained EU law restricts the proper development of domestic law. It says that it should consider the extent to which it does, assuming that it does. Would it not be better to go for non-prejudicial language, as well as, I hope, including the balancing language in Amendments 83, 85 and 88?

[Lord Bellamy (Con)]

As far as I know, this is not intended to be prejudicial, but it presupposes a case where there is a tenable argument and it is put to the court that a retained EU law has that effect. Then the court will decide whether it does and what would be the proper development going forward. Taking that intervention on the hoof as it were, I am not sure at first sight that one is convinced that it would be better to change the wording. Let me reflect further.

--- Later in debate ---

[Lord Bellamy (Con)]

I am sorry. I was saying that this is a structure that gives the UK law officers power in relation to UK competence and the devolved Governments power in relation to their competence. That is the structure of it all.

Amendment 101, on the question of incompatibility orders, is described as a probing amendment. Again, this has precedence in other parts of the statute book. The Judicial Review and Courts Act 2022 has a similar power. If there is a point of incompatibility, the courts are given a power to manage that; it would probably mean deferring making an order for six months until the Government could fix it, as did the Court of Appeal in the Open Rights Group v The Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport: we have found a problem, and we are going to give you time to come up with solution, whether it is legislative or otherwise. In that particular case, the power was said by the Court of Appeal to derive from EU powers, but this is giving the court power under domestic legislation. I hope it is a sensible process for making the compatibility mechanisms work properly if incompatibility is found, which is likely to be a fairly rare event. I hope I have covered most points, if not all.

[Lord Kerr of Kinlochard (CB)]

I am very grateful to the Minister for the skill with which he is trying to explain to a layman like me abstruse points of law. Could he give us a worked example, please? I was struck by what the noble and learned Lord, Lord Etherton, said about the potential cost to the country of a loss of clarity. Take his example of the copyright law of the United Kingdom, which, he said, was virtually exclusively based on EU law. What changes of circumstances do the Government envisage that the courts should be considering when they consider cases that are tried under the present British copyright law? The only change of circumstances I can think of is if the Government were to pass new legislation on copyright. I do not think that is the plan, but if they do not, what are the courts supposed to do? What change of circumstances would they have to consider?

[Lord Bellamy (Con)]

My Lords, fortunately, I think I was asked by the noble Lord, Lord Kerr, for only one example, and so I will just give one because it is getting quite late. The example is changes in technology, which are moving very quickly. The Warner case, which has now been mentioned several times, was a case in which a radio station in the US put some music in a hyperlink on its website. Consumers in the UK could click on the link on that website, and the question was whether the UK copyright holders could get a royalty on that even though the UK user was accessing it in the United States—it does not matter if it is the United States, Taiwan or anywhere else. In that kind of area, the technology is moving very quickly. The existing EU decisions are not entirely consistent, and it can be easily envisaged that in some future situation, where some technology that we do not yet understand or know of has come into being, a UK court might take a different view and distinguish previous EU jurisprudence. That sort of situation is more than likely to happen at some stage.

--- Later in debate ---

[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

My Lords, we have ensured that the Bill contains robust scrutiny mechanisms that will enable the appropriate scrutiny of any amendments or repeals of retained EU law made by the powers included in the Bill. The debate touched on two different things: we need to differentiate between the effects of Clause 10 and the application of pre-existing delegated powers contained in other Acts of Parliament, and the delegated powers included in the Bill.

Because of the points that have been made, I want just to touch on the scrutiny mechanisms. These include a sifting procedure that will apply to regulations proposed to be made under the power to restate and the powers to revoke or replace. This will afford additional scrutiny to the use of the power while retaining the flexibility of using the negative procedure where there are good reasons for doing so. We recognise the significant role Parliament has played in scrutinising instruments subject to sifting procedures previously and are committed to ensuring the appropriate scrutiny under the delegated powers in the Bill. Indeed, the Leader of the House of Commons has written to the chair of the European Statutory Instruments Committee proposing that the committee take on the role of sifting committee in the House of Commons to determine where the negative procedure may apply.

I wanted to give that background because there are these two different aspects to the debate, but I turn first to the clause stand part motion introduced by the noble Baroness, Lady Ludford, and supported by the noble Baroness, Lady Meacher. Clause 10 must stand part of the Bill because it provides the answers to two fundamental questions. First, is it right that technical regulations should be treated as equivalent to an Act of Parliament? Secondly, are this Government happy with the risk of these regulations sitting stagnant on the statute book? The answer to both, as we have argued all along, is no. Clause 10 modifies powers in other statutes to allow them to be used to amend or retain direct EU legislation and directly effective rights. Over 50% of retained EU law currently identified on the REUL dashboard—I agree with the noble Baroness on that figure—is retained direct EU legislation. It is comprised mainly of EU regulations in which the UK Parliament had no real say. This legislation often does not reflect the UK’s priorities or objectives—to drive growth, for example. We are currently forced to treat some retained direct EU legislation as equivalent to an Act of Parliament when amending it. This is not appropriate; it does not fit with this Government’s vision of REUL reform following the Brexit process, to which the noble Baroness, Lady Fox, referred.

I understand the concerns of the Delegated Powers and Regulatory Reform Committee, but we do need to think of the opportunity that Brexit affords, while maintaining necessary protections. In doing so, we must ensure that parliamentary time is used appropriately. Furthermore, relying purely on primary legislation to amend these technical regulations to meet the UK’s needs would take decades. It is of critical importance that we ensure that these mostly technical regulations do not remain static and can be updated, amended and reformed in response to events and new knowledge, using appropriate delegated powers. Without the measures in Clause 10, thousands of regulations will become stagnant and will be unable to stay up to date, react to new information or implement new international agreements without requiring an Act of Parliament.

I will now move on to a set of amendments relating to the delegated powers, starting with amendments—

[Lord Kerr of Kinlochard (CB)]

Before the Minister leaves the question of allowing Clause 10 to stand part, I am surprised at her disagreement with the Delegated Powers and Regulatory Reform Committee—a dangerously radical body containing wild revolutionaries such as the noble Lords, Lord Janvrin and Lord Goodlad, and the noble Earl, Lord Lindsay. Their view was clearly set out in their report: that Clause 10

“effects a significant transfer of power to Ministers”,

contrary to what was set out in the European Union (Withdrawal) Act 2018. The Act said it would be for Parliament to decide changes in primary legislation, rather than for Ministers to do so in secondary legislation.

I understand the argument the Minister is making, but it is not one likely to find much support across the House. We think we have a role in deciding what should be on the statute book; it is not simply for the Executive. I can see the point made by the noble Lord, Lord Hamilton—yet another dangerous radical—that it will take time so there will be, in a sense, continuing uncertainty. This is why I support an extension of the sunset deadlines—although that is not a sufficient cure, I think it is a necessary one for the Bill. But the noble Lord has to recognise that there is huge uncertainty now for economic operators across the country: they do not know which laws are to be amended, which are to be retained and which are to be extinguished. Once we know, perhaps it would be sensible to discuss how long it will take to make the necessary changes.

[Lord Hamilton of Epsom (Con)]

Surely the thing that concerns businesses is how legislation is going to be amended, not whether it is or not.

Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, I shall speak to the amendments to which I have added my name, Amendments 2 and 4. Like my noble friend the Minister, we campaigned to leave the EU and we found that people decided to leave for a number of different reasons. One of those reasons was the resentment people felt that laws were being passed in Europe and delivered to us here, and we had no say on them whatever. I very much echo the words of my noble friend Lady Altmann.

We scrutinised this legislation. I was on an EU scrutiny committee and we wrote a number of reports, some of which were somewhat hostile about the legislation going through, and of course, they made absolutely no difference whatever. Therefore, if we had said to the people on the doorstep who were concerned that they had no say on much of the legislation coming on to our statute book, and over which Parliament had no say, “Well, we have a great plan: we are going to bypass Parliament almost completely”—

[Lord Kerr of Kinlochard (CB)]

I greatly enjoyed serving jointly with the noble Lord on the EU Select Committee. I point out that I was woken up three times on a Sunday evening by Delors asking me what the House of Lords European Union Select Committee had meant by a particular report on a particular piece of legislation. These reports were not a waste of time.

[Lord Hamilton of Epsom (Con)]

I slightly wonder what effect they had on the statute book. The legislation went through, nothing was amended, nothing was voted down—it could not be, under the EU accession treaty—so, if you do not achieve any change in the legislation, I am not sure you can claim any great credit for having done anything to it. So I do not really accept that. This is one of the problems, and people did find it very frustrating that they had no say over what EU legislation went through.

We have passed over the making of our legislation from an unelected Commission in the EU to the Executive. Who are the Executive? The Executive are made up of Ministers, and civil servants who, in my view, will have much more influence over what happens to this legislation than Ministers will. The Civil Service used to be regarded as a Rolls-Royce. I am not absolutely sure that definition would apply today; it looks rather like an old banger in need of a serious MOT. Let us face it, the Civil Service has not done well in trying to locate retained EU law. It was given endless opportunities to dig this stuff out, and what happened? Virtually nothing, until panic set in when this Bill was being debated.

It is the job of departments to know what legislation they have. This applies not only to EU law but to all law, and one has been given the impression over the past few months that they have absolutely no idea whatever what is on the statute book. Are these the right people to whom to pass all responsibility for EU law, without Parliament having any say? The answer is of course no. Parliament has to regain control of the legislative process. We have to make sure that Parliament decides what happens to this legislation, and that is why I am supporting Amendments 2 and 4 and subsequent amendments. I hope your Lordships will follow me through the Division Lobby.

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[Lord Kerr of Kinlochard (CB)]

My Lords, I am happy to follow the noble Lord, Lord Hacking, and I agree with both his points. I have the strong impression, having read through the list of titles, that the great bulk of the legislation to be eradicated, listed on the 57 pages of the new schedule, is in fact defunct and can perfectly reasonably be removed. That is the impression that I get—but that is from reading the titles. I cannot remember the details even of the particular pieces of law that I was involved in drafting, and there are a few of them here. We have a duty to establish a sensible procedure. It could be that there are unintended consequences. I strongly support Amendment 1, the government amendment, but a necessary corollary to that amendment is that we must pass Amendments 2 and 4.

[Lord McLoughlin (Con)]

My Lords, I very much welcome the changes that the Government have brought forward, but I also think that the amendment moved by the noble and learned Lord, Lord Hope, is one that the Government should very seriously consider, and I shall support it later on this evening—and I shall support it for a simple reason. The question as to whether or not we leave the European Union has been settled. I was on a different side to my noble friend Lord Hamilton—I believed that we should remain in—but I accept that that debate has gone and that I lost it. We now have to move on, and we must find a way in which to give the House of Commons and the House of Lords a say over the legislation that is going to replace it.

The sad story of this Bill so far is that we were told that there were 3,000 pieces of legislation, then it was 4,000 pieces—and we now have 900 pieces that can be got rid of very quickly. One thing that is changing dramatically is how a lot of detailed changes have to be made at pace, and it is not always going to be the case that there will be time for primary legislation going through both Houses of Parliament. That is why we need to adapt ourselves to a very different mode of doing regulations. Some of the regulations are technical and the House will not necessarily want to take a particular view but, when they are of a more practical nature, I think that there should be a Joint Committee of both Houses that says to the Government: “Hold on, let’s discuss this”. That is what happened when we had the initial withdrawal Bill and, in a way, the proposals that have been put forward today are mirror images of those particular ways forward.

The changes that the Minister has brought forward, which are very welcome, came very late in the day, and nobody really knew what was happening until late last week—and we are debating them here this afternoon. So I very much hope that the amendment proposed by the noble and learned Lord, Lord Hope, will give the Government time to reflect and see that they have nothing to fear from a Joint Committee of both Houses looking at these matters. After all, if the Government have a majority, it will probably have one on that committee as well—and that is a sensible way forward, giving that parliamentary accountability that we all wish to see.

--- Later in debate ---

[Lord McLoughlin (Con)]

Yes, of course, shame—absolutely a shame. I completely accept what my noble friend is saying. It is a shame and a disgrace, but sometimes you get such a number of regulations coming forward that you might just let them believe what you are saying because you know you are not going to have to defend it in Parliament. That is something that I think my noble friend Lord Hamilton said a few moments ago. It will make a Government more responsive if they feel they have to defend it on the Floor of either the House of Commons or your Lordships’ House.

That is why we have had several debates, including, as my noble friend Lady Noakes said, the earlier debate as a result of the Delegated Powers Committee—which I now chair following my noble friend Lord Blencathra—and the committee chaired by my noble friend Lord Hodgson. It is a way to make sure that the Government are more accountable to the elected House as well as to your Lordships’ House, where we can also sometimes ask, “Has A or B been thought of?”. That is very much why I hope the Government will consider this in due course. As I said, the overall changes made to the Bill already are very welcome, but the number of changes, and the speed with which they have been made, makes us question, rightly, how well thought out the Bill was in the first instance.

[Lord Kerr of Kinlochard (CB)]

It is a pleasure to follow the noble Lord, Lord McLoughlin. His historical point is completely correct: the period of maximum EU legislation was during the delivery of the single market programme, which was based on the Cockfield White Paper and the agreement between Prime Minister Thatcher and President Delors. That legislation came through mainly in the early 1990s, and some of it is in the schedule—it has probably been overtaken by something else. It is simply not true that it was all imposed on us.

I support Amendment 76, which is essential. I can explain my reasoning by reminding the House of what Clause 16 says. It is a bit presidential; one might almost say “dictatorial”. Clause 16(2) says:

“A relevant national authority 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”.


In the phrase “considers to be appropriate”, “appropriate” is a very presidential word rather than a parliamentary word. Okay, there is still the saving caveat that it has

“to achieve the same or similar objectives”,

but here comes Clause 16(3), which uses almost exactly the same wording:

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


Here there is no saving caveat about achieving the same or similar objectives, so under Clause 16 the Executive may, by regulations, do whatever they well choose. That seems to me to make it absolutely essential to have the parliamentary scrutiny for Clauses 13, 14 and 16 that would be delivered by the amendment in the name of the noble and learned Lord, Lord Hope.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the noble Lord, Lord McLoughlin, is certainly correct that no legislation was forced on the UK by the EU. Indeed, many Ministers from all parties were happy to take advantage of laws made in Brussels, which they sometimes even suggested, by coming back to the UK and reading out the legal text from the EU Commission—and then, if there was any objection, they blamed the EU. But what was removed from that equation was the scrutiny and accountability of the electorate. They were the people who were told that they could not change the law; it was ring-fenced away from them. That is what voters rejected in 2016.

I will be clear on what this Bill is all about by quoting the European Commission, because I know that so many noble Lords trust it and not me. In October 2021 the EU Commission stated, in relation to a dispute with Poland:

“EU law has primacy over national law, including constitutional provisions … All rulings by the European Court of Justice are binding on all Member States’ authorities, including national courts”.


That is no longer the case for the UK, and we are now trying to untangle how we deal with that.

In relation to the Bill, it is, in my opinion, not the case that Brexit was an act of reclaiming sovereignty, a blueprint for saying exactly what laws we would keep or retain, or a means of just getting rid of EU law as an end in itself, as it were. Rather, it was about putting the responsibility for choosing which laws to prioritise, reform or even improve in the hands of the Government and Parliament, who are answerable to the British people—the electorate. I have listened carefully to a lot of the very thoughtful amendments put forward to try to ensure that too much power is not put in the hands of the Executive or Whitehall, as opposed to an accountable Parliament, but I get anxious about how the arguments are posed sometimes, so I will query some of the amendments in this group.

Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Lord Callanan (Con)]

I will pass the noble Baroness’s comments on to Defra, which will write to her again, but she has already received replies to her concerns in emails and she has spoken to Bill team officials about this. As I said, the FSA has said that it is entirely happy that this regulation should be revoked.

[Lord Kerr of Kinlochard (CB)]

I wonder whether I can help the Minister. I support what he said today, and I congratulate him on how he started and what he said about the Civil Service. But I wonder whether he might want to think, before Third Reading, about the addition of an emergency brake. I share the worries of the noble and learned Lord, Lord Hope: supposing it turns out that something is needed and that, before the deadline—before they disappear—a real case is established, could the Government not give themselves the power, by statutory instrument, to leave a particular regulation off the schedule, or to amend the schedule by statutory instrument before the deadline, simply to remove a regulation that it turns out is there in error? I do not ask for an instant reaction, but perhaps the Minister might like to think about this before Third Reading.

[Noble Lords]

Third Reading!