Retained EU Law (Revocation and Reform) Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I rise with some trepidation, because I am at a disadvantage from not having been here for day 1 of Committee. I feel that there is an element of Monty Python about this—and now for something completely different.

I will speak to Amendments 10, 11 and 12 in my name and briefly to Amendment 37, in the name of the noble Baroness, Lady Hayman of Ullock, to which I have added my name.

There are an estimated 1,700 pieces of legislation that Defra will have to review by the end of December this year. Some will go into the retained, unamended pile; some will go into the likely to be amended pile; and some will be scrapped or abandoned altogether. This is a mammoth task for Defra.

Environmentalists in the country are extremely unhappy about the lack of detail in the Bill. Members of this Chamber are concerned that, given the short timeframe, some essential pieces of legislation will be lost. There is currently little clarity on which pieces the Government are planning to retain, scrap or amend. On all sides of the Chamber, Peers are seeking to exclude legislation that is vital to the environment of our country from this sunset deadline. The Conservation of Habitats and Species Regulations, the Bathing Waters Regulations and the Water Environment (Water Framework Directive) (England and Wales) Regulations—from Amendments, 10, 11 and 12 respectively—are three such pieces of legislation that must be preserved at all costs.

The habits and species directive is a crucial tool for environmentalists and local authorities attempting to preserve wildlife for future generations. Having sat in planning meetings on major housing developments, I know that it is vital that measures are taken to ensure the protection of habitats of local and nationally scarce species during and after development. The great crested newt, the English dormouse and the various species of bats in England will not survive if their habitat is not considered at an early stage of planning and through implementing developments.

There are developers who will seek to gloss over the presence of rare wildlife, but the wise community-based developer adheres to the planning conditions. If the habitat directive is jettisoned or watered down, biodiversity and wildlife will suffer. Once a species has become extinct or a rare orchid is lost, that is it: there is rarely any coming back. The current law protects them and hundreds of other species, and it is vital that this protection exists into next year and beyond.

There is a danger that we could enter open season for developers. Our biodiversity has already been drastically reduced; it is years since I saw a bullfinch in the wild. We cannot afford any more biodiversity loss. It has to be halted and reversed; otherwise, what were our natural species will suffer the fate of the sabre-toothed tiger and be confined to glass cabinets in museums.

The noble Duke, the Duke of Wellington, recently spoke in the Chamber about the bathing water directive, the inadequate quality of bathing water and the ill health that surfers around our shores suffer due to sewage pollution. We have seen professional surfers leaving our shores to resume their sport in Spain. The loss of the income from those who enjoy surfing or wild swimming is significant for our coastal communities, which are often reliant on the summer tourist trade to get them through the winter.

Closely related to Amendment 11 and the bathing water directive is Amendment 12 on the water framework directive. The quality of water flowing through our waters is essential for biodiversity protection. The River Parrett in Somerset flows through several areas of ecological interest and supports various rare and endangered species. It is a favoured leisure venue for recreation and has a long walking trail from source to sea. Eels and other wildlife can be found along its banks. Chemical pollution is a threat not just to the Parrett but to all rivers. The water framework directive currently provides some protection for this area and the iconic Somerset Levels. It is important to have an integrated approach to the protection of our rivers, waterways and canals. A siloed approach may help to protect specific areas, but other areas could suffer.

It is important that these directives appear in the Bill. In her Amendment 37, the noble Baroness, Lady Hayman of Ullock, has listed those amendments that she believes could be lost in the general Brexit clear-out of legislation, which would have a devastating effect on our way of life and environment. These range from the REACH Enforcement Regulations to the Welfare of Animals (Transport) (England) Order. I look forward to the debate on this important amendment and fully support the noble Baroness, Lady Hayman.

There is currently little information about the costs and impacts of implementing the Bill. The task of filtering 1,700 pieces of legislation is colossal, and many laws could be lost by default. The Minister has indicated that there are some laws that we no longer need and are no longer applicable. It is important that this House knows what these are. Can the Minister say whether Defra is able to provide a list of those laws to be retained unamended, those to be amended and then retained, and those it believes are no longer functional in the UK, as well as the methodology involved? Other noble Lords have raised this issue.

Yesterday, along with the noble Lord, Lord Callanan, the Minister helpfully provided a briefing in which he emphasised his and the Government’s support for the 25-year environment plan and all the strategies and plans that fall under it and support its implementation. No one can doubt the Minister’s desire and enthusiasm for implementing fully the 25-year environment plan, but unfortunately the noble Lord is unlikely still to be a Minister by 2030—perhaps he would have preferred it if I had said 2050. It is not unknown for Governments to give commitments from the Dispatch Box and for later occupants of posts to reverse those commitments. Sadly, one such case was the promise to provide compensation to the Windrush community, which had long campaigned for and very much welcomed the compensation, only to have this promise reversed under the current Home Secretary.

It is not that we do not have confidence in the Minister. Experience has shown the House that, in order to have full confidence that the Government will do what they say, there have to be clauses in the Bill to ensure legal protection. Will the Minister agree to Amendments 10 to 12 and the request for these directives to be in the Bill?

If the sunset deadline of 23 December is not extended for the Conservation of Habitats and Species Regulations, the Bathing Waters Regulations and the Water Environment (Water Framework Directive) (England and Wales) Regulations, I very much fear that the guillotine will fall, quite literally, on the great crested newt, the English dormouse, the blue fritillary butterfly, the water vole and other species. These will then disappear from our landscapes altogether, along with those who used to enjoy surfing and wild swimming. The Bill appears not to be fit for purpose. I beg to move.

[Baroness Hayman of Ullock (Lab)]

My Lords, I rise to introduce my Amendment 37. I thank the noble Baroness, Lady Bakewell, for her excellent introduction to her amendments and for leading our debate on this important subject.

Amendment 37 sets out a list of the most significant environmental and animal welfare laws that the Bill currently covers. The regulations listed in the 21 proposed new paragraphs (a) to (u) demonstrate the wide range of environmental and animal welfare protection legislation that comes within the scope of the Bill. The noble Baroness, Lady Bakewell, mentioned the habitats directive, the Bathing Waters Regulations and the water framework directive in particular. We support her amendment.

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[Lord Benyon (Con)]

I am very happy for the noble Baroness. As a parliamentarian in the UK Parliament, I had no say. However, many of the regulations were very good and we want to retain them.

I am grateful for the words of so many noble Lords. My noble friend Lord Cormack embarrassed and moved me with his nice words, but when such words are said in this House, I know that there is an enormous “but”. I will try to address it.

I count myself an environmentalist. I have been on the boards of different NGOs, I am a member of many and I have campaigned and worked on the environment all my life. I see my role as a Minister as just a small part of that. I would absolutely not be standing here if I thought that we were indulging in some means of trashing the kind of protections that we want to continue and improve in this country. There are opportunities; as my noble friend Lord Caithness said, we have had these regulations but biodiversity continues to decline, as it has done for decades. We now have a commitment to reverse that decline, stop it by 2030 and see it increase as against 2020 data by 2042. No Government will be able to escape that, so the idea that we could get rid of regulations that would make that happen is wrong.

I find at the moment that all roads in Defra lead towards our land use framework. I applaud those Members of this House who wrote a really good report on it, as my noble friend Lord Caithness mentioned. I agree with him that if we are going to get this right and achieve anything on environmental regulation, incentives to farmers through ELMS, our water policy, anything to do with air quality, the health of people and the benefits of nature, mentioned by the noble Lord, Lord Krebs, then we need really to understand how, in a finite piece of territory, we will manage all those requirements and our international commitments, some of which I have already mentioned.

As my noble friend said, the powers in the Bill will empower departments to unleash innovation and propel growth across every area of our economy. The Bill is simply an enabling Act. It is up to departments and the devolved Administrations what they will do on specific pieces of policy.

In Amendment 10, the noble Baroness, Lady Bakewell, has raised the Conservation of Habitats and Species Regulations. I reassure her that the Government remain committed to the ambitious plans set out in the Environment Act, which sets out legally binding targets to halt nature’s decline by 2030. The noble Baroness, Lady Young, said that the habitats directive was the jewel in the crown; she is absolutely right that it has been a huge driver in environmental policy, although not an exclusive one. She raised a point about interpretive effects. Interpretive effects are the general principle of EU supremacy as set out in Section 4 rights and do not relate to case law. However, I absolutely assure her of our commitment to 30 by 30. Our commitment to protect 30% of our land and oceans remains fundamental. We will continue to do that—we would not be able to if we damaged our environment in the ways that some noble Lords have suggested.

[Baroness Hayman of Ullock (Lab)]

To clarify the point about interpretive effects, I point out that the letter says:

“Anything preserved will be subject to clauses 3-6 of the Bill which repeal retained EU interpretive effects.”


Can the Minister clarify what this actually means in practice? How does it affect case law?

[Lord Benyon (Con)]

Interpretive effects are not case law; they are the principle of EU supremacy—general principles and Section 4 rights. The general principles of EU law directly affecting rights, which end in—

[Baroness Hayman of Ullock (Lab)]

Perhaps the noble Lord could write to us with a detailed explanation.

[Lord Benyon (Con)]

I will certainly do so; I will then be able to read my own writing. As the Secretary of State reiterated in her speech at the launch of the environmental improvement plan on 31 January, Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it. This allows us to keep protections in place, provide certainty to businesses and stakeholders and make reforms tailored to our needs—

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[Lord Benyon (Con)]

There is a core team of Defra civil servants co-ordinating this but every policy area is involved, so it is impossible to say precisely how many full-time equivalents are being apportioned to this on a weekly or monthly basis or how many will be over the next six months. However, I assure the noble Lord that this is an absolute priority for my department. We have separated the different areas of REUL to suit Ministers’ areas of responsibility; we are working through them and making sure that we rigorously examine whether we have them in the right frameworks for retaining, removing or any other aspect of this process.

[Baroness Hayman of Ullock (Lab)]

The Minister says that the sunset can be extended to 2026, but surely we need to know which regulations the department is looking to extend. How do we know that? How is Defra going to go about attending to that? The Treasury managed to take its regulations out; they are exempt. Why does Defra not just do the same and save all the bother?

[Lord Benyon (Con)]

If we have to extend, that would be the subject of a secondary legislation measure, so this House would be able to review it.

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[Lord Benyon (Con)]

A delay is reform, because it gives more time to get it right. There may be specific technical issues relating to a regulation that require more work to be done than can be allowed in the timeframe of the sunset.

On the marine issues, which the noble Viscount raised, we are committed to 30% of seas being protected. We have very clear policies on restoring fisheries and fish biomass in the sea, and we have provisions through the marine strategy framework and others to see that achieved.

A number of Peers have raised the issue of resources. We are putting huge resources into this. The noble Lord, Lord Fox, is right to raise this, and I understand the concerns. We want to make sure that we understand each and every one of the more than 1,700 areas of retained EU law. Our default position is to retain. Resources for retained EU law legislation will be needed from a range of policy officials, such as analysts and lawyers, to deliver a significant legislative programme. My officials are working closely with BEIS and the Cabinet Office to ensure that Defra has sufficient resources. Our aim will be to ensure that important work unrelated to retained EU law will continue.

[Baroness Hayman of Ullock (Lab)]

The default position is actually that it falls unless you have this extension. The extension mechanism, as the noble and learned Lord, Lord Hope of Craighead, said, relies on something specific being identified.

It is no criticism whatever of Defra staff, but if they have to identify extra pieces that need to be carried over, this is a huge amount of work. We do not even have a comprehensive list at the moment so it could increase, plus they have to get all the SIs sorted. All that has to be done by the end of this year before the Government can bring in an extension. As I asked the noble Lord earlier, does he really have confidence that Defra has enough staffing resources to achieve all this? I am really concerned about it. I reiterate that this is no criticism of the staff. This is about figures, numbers and cash.

Retained EU Law (Revocation and Reform) Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, I will speak to Amendments 42, 43 and 50 and the Clause 1 stand part debate, to which I have added my name.

What was clear from last week’s debate—we have alluded to it a number of times since then—is that the Government have absolutely no intention of providing a comprehensive list of retained EU law under the jurisdiction of this Bill. It is clear that the decisions taken by departments to retain, amend or revoke will be announced unilaterally via the dashboard. In the case of revoking, it is an act of either commission or omission—we will not know until we see it on the dashboard. However, if there is no list then we will not even know that something has been revoked. The former—the lack of a list—informs the latter: the fact that we will not know whether laws have been revoked or otherwise.

That is why this set of amendments, in the number of forms that we have seen, is so important. Through Amendment 32, we have heard from the noble and learned Lord, Lord Judge, my noble friend Lord Beith, the noble Lord, Lord Hodgson, and the noble Baroness, Lady Taylor, how the Government should set out in advance what they are seeking to do and give Parliament a chance to overrule the Executive and choose to retain specific named instruments, rather than waiting for the automatic disposal of these laws. The noble Lords, Lord Carlile and Lord Kirkhope, in Amendment 44, and the noble Lord, Lord Lisvane, in Amendment 141A, set out other ways of seeking to achieve a similar end. The point has been made that there are a number of ways of doing this.

It was a pleasure to hear the noble Baroness, Lady Chapman, set out Amendment 43, to which I have added my name; I was happy to do so because, in the amendment, she sets out very ably a process by which Parliament can retain its control over what is going on in this law. It would avoid the really important issue, to which I and other Peers have already alluded, of the unknown repeal of laws—that is, the accidental revocation or deliberate obfuscation of revocation that may happen as a result of this law. This is a well-drafted amendment that we would be very happy to see go forward.

Amendment 42, in my name and that of my noble friend Lady Ludford, complements what we have heard already about a process of consultation, about how these laws and regulations should be consulted on. It sets out four objectives for the consultation. The first is to consider whether the legislation under review is fit for purpose. It may not be. Ministers have talked about reindeer and whatnot. I am sure that we do not really need those but there cannot be many of the 4,000 or so laws that refer to reindeer. Let us assume that that the majority of them are addressing areas of concern to the greater public. Are they fit for purpose?

The second objective is to consider whether alternative regulation would achieve different or preferable goals. The third objective is to consider whether alternative regulation would provide greater benefits to consumers, workers, businesses, the environment, animal welfare, and public safety, to name a few. The fourth objective is to consider whether alternative regulation would provide greater legal certainty, and there is a great deal of legal uncertainty coming the way of this Bill if it stays as it is. I cannot see why this approach is unreasonable, and I am sure that the Minister will agree with me and adopt this straightaway.

Much has been said about sunsetting. Some speakers on the Government Benches have set out their view that without sunsetting, departments would somehow be dragging their heels. The Minister, the noble Baroness, Lady Neville-Rolfe, said last week to your Lordships that

“the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens.”—[Official Report, 23/2/15; col. 1820.]

Just before lunch, we heard the Minister, the noble Baroness, Lady Bloomfield, say that the sunset’s purpose is to “incentivise genuine reform”. These confirm that the purpose of the sunset is, in the Government’s view, to get civil servants to get on with it. That may be so, but what is it that are they getting on with, or that the Government would have them get on with? I suggest that they are injecting the largest single slug of legislative uncertainty into national life that any of us can remember. I say to my noble friend Lord Beith that I am afraid that I do not go back to the 1600s, when it last happened—

[Baroness Hayman of Ullock (Lab)]

Neither does the noble Lord, Lord Beith!

[Lord Fox (LD)]

I beg my noble friend’s pardon. Perhaps there is a reason why the departments might favour a slower, stepwise and consultative approach. We have also tabled an amendment that opposes Clause 1 standing part of the Bill. That is to give time to have that stepwise, considered and consultative approach, as many of us believe it should be. It removes the sunset altogether and it gives us time. Clearly, this element of the Bill, if not the others, was the product of the imagination of the Conservative MP for North East Somerset. This Bill is a legacy from his short-lived time in BEIS and, like almost everything produced in that thankfully brief period of administration, it delivers chaos and an unworkable Bill. The Government Front Bench might appreciate our help in removing this very difficult thing, for what will become a very difficult effort.

Finally in this group, my noble friend Lady Ludford and I have tabled Amendment 50, which seeks to deliver a super-affirmative process. I should point out that the dash comes between “super” and “affirmative”; it is the affirmation that is super, not the process. The process is for revoking EU-derived subordinate legislation or retained direct EU legislation. It was referred to by the noble Lord, Lord Lisvane, earlier. Once again, this is about parliamentary scrutiny. The amendment seeks to address the huge democratic shortcomings of this Bill, as outlined by the Delegated Powers and Regulatory Reform Committee. In the “Bypassing Parliament” section of its report, the committee observes:

“The Bill gives to Ministers (rather than Parliament) the power to decide, in relation to a considerable amount of REUL, what is to be … revoked and not replaced … revoked and replaced with something broadly similar … revoked and replaced with something very different, or … retained.”


That is, in a nutshell, what we are discussing. The committee also noted:

“Parliament will not know, at the time it grants the powers, what the Government intend to do with those powers.”


I will not dwell on this amendment to create the super-affirmative process, except to highlight a couple of features. The first, under proposed new subsection (2), is:

“For each instrument that is proposed to be revoked, a Minister of the Crown must lay before Parliament … a draft of the regulations; and … a document which explains the draft regulations.”


As the noble Lord, Lord Lisvane, said, there is a period of 30 days for this process.

Retained EU Law (Revocation and Reform) Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

If we do not do that, there are very real risks not only that we will not meet the Government’s welcome targets but that the promises made to the general public will be completely hollow, because of what the Bill will allow to happen. I will cite just one example. If the bathing water directive were changed in any way, what people rely on to swim safely on our beaches could be fundamentally undermined. The Government have said they do not want to do that, but the way to say that you do not want to do it is to put it in the Bill, rather than using just ministerial words—much as we admire the Minister who will be speaking from the Dispatch Box. That is the only way to guarantee the protections that people in this country want and the Government say they have set targets to deliver.

[Baroness Hayman of Ullock (Lab)]

My Lords, my Amendment 130 in this group would ensure that the powers to amend the important pieces of retained EU environment law do not reduce the level of environmental protection that is provided for in them. As we heard in the previous debate, there is a huge risk to the laws on the environment and animal welfare protections. I brought a list of wildlife protections that are at risk—there are so many, and that is just on wildlife—to give noble Lords an idea of the number of regulations and the complexity of what we are talking about.

My amendment would also specify that, when exercising these powers, authorities

“must have regard to … the conservation and enhancement of biodiversity … improving water quality … protecting people and the environment from hazardous chemicals”.

I thank the noble Lord, Lord Krebs—who is not in his place today—and the noble Baronesses, Lady Bakewell and Lady Bennett of Manor Castle, for their support for this amendment.

On Report of the Bill in the Commons, Minister Ghani said:

“The Department for Environment, Food and Rural Affairs has committed to maintain or enhance standards”.—[Official Report, Commons, 18/1/23; col. 395.]


But we should compare that with Clause 15, which, as the noble Baroness, Lady Parminter, said, we have to touch on when looking at these amendments. Clause 15 has been described by some as a “do whatever you like” provision, because it gives Ministers extremely wide powers to revoke or replace retained EU law and to lay the replacement legislation either with

“such provision as the relevant national authority considers to be appropriate … to achieve the same or similar objectives”

or with

“such alternative provision as the relevant national authority considers appropriate”.

Unfortunately, the reason why we are so concerned is that this is so subjective. The judgment is on what is appropriate, which is accompanied by a very limited link to the objectives in the original legislation, leaving an open door for sensible, long-standing protections to be replaced by regulations with entirely different divergent aims and outcomes. Without the amendment that I have laid, and the amendment proposed by the noble Baroness, Lady Parminter, the power allows for replacement legislation to change both the content and objectives of the law. That is without any kind of scrutiny or consultation; it is further deregulation without oversight.

As I mentioned during last week’s debate on the environment in this Bill, the running total of laws affected by REUL in Defra is suggested to be 1,781—by far the largest share of any Whitehall department. That highlights the hugely significant implications of the Bill for environmental law-making. The Defra body of REUL also contains many regulations that are of significant public interest, aiming to protect every single element of our natural environment and, as was mentioned last week, many aspects of human health—we must not forget that.

We have also heard about how the laws being debated in the REUL discussions are bound together in a complex way, with significant case law attached to them. That is why there is such a profound risk when you try to disentangle it in the manner proposed by the Bill, but also because of the speed at which it is being proposed, and the lack of scrutiny, consultation and oversight. That has been discussed at length in both Houses, and I would hope that Ministers have taken note.

The problem is that Clause 15 substantially exacerbates these concerns because of its unfettered nature and because of the burdens test in Clause 15(5), which the noble Baroness, Lady Parminter, talked about. She referred particularly to issues around revenue and taxation. As I say, we support everything that she said on that matter. She also referenced the letter to all Peers from the noble Baroness, Lady Bloomfield, on the burdens test. I think that noble Lords felt that it raised more questions than it answered; there was no explanation of how a department such as Defra, which has so many laws covering a large number of subject areas, is going to apply the in-the-round consideration that was in the letter. Perhaps the Minister could explain how that is going to be managed.

I shall give some examples. If Defra Ministers wanted to make changes to one nature regulation that increased one of the regulatory burdens specified in the non-exhaustive list, would that mean that they would have to bring forward changes to another nature regulation that decreased burdens to balance the books? What is meant by “category” and how is that implied when looking at the different regulations that come under Defra? Does the removal of redundant or superfluous laws, as the Minister talked about in the last debate on the environment, count as a removal of burdens, even if they were not active components on our statute book? Parliament is being asked to agree to Clause 15 without a satisfactory explanation of how it is going to be practically applied. Furthermore, with regard to the stipulation in Clause 15(5), there is no confidence that the power will not lead to a de facto lowering of standards, which is the opposite of what Ministers repeatedly say they want to achieve.

My Amendment 130 focuses on regulations that have been earmarked as priorities for review and on which the Government already have amending powers. For example, during the evidence session with the House of Lords Environment and Climate Change Committee, the Defra Secretary of State referred to the goal of the Environment Agency to change quite a lot of the water framework directive. What does she mean by that? Perhaps the Minister could expand.

We support a sensible, consultative approach to strengthening regulations that underpin the water frame- work and other directives. However, tackling the dire state of our water bodies will not be possible without substantial investment. That would trigger both the financial cost and profitability limbs of Clause 15(5). Can the Minister explain how Clause 15 can then be a route through which the Government are able to deliver the improved environmental outcomes that they keep promising? To me, it is the opposite; it is a blockage.

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That is what Defra Ministers are allowed to do under the terms of this Bill. It is entirely consistent with what my noble friends have been saying on other sections of this legislation.

[Baroness Hayman of Ullock (Lab)]

Defra’s approach is not the same as saying “retain by default”: is that what the Minister said “retain by default” meant when he talked about it last week? I really think we need to be clear.

[Lord Benyon (Con)]

Our position, as announced by the Secretary of State at the launch of the environmental improvement plan, is that we will retain by default provisions for environmental protection. Where we think there is any element of doubt, we will retain. If it needs to go, it can.

I can give the noble Baroness some examples of areas of law that we will remove. We will remove around half of fisheries rules, as they are no longer relevant. They have either expired or relate to areas that we do not fish—for example, access to the Skagerrak, off Norway, for vessels with the flags of Denmark, Norway and Sweden. We do not need that on our statute book. We will remove the Landfill (Maximum Landfill Amount) Regulations 2011 because they set targets up to 2020, which has happened, for the landfilling of biodegradable waste. They have been achieved.

To remove unnecessary burdens, for example, we will remove some of the CITES-implementing legislation, which lays down specific rules for the design of applications and permits on the protection of wild flora and fauna, including prescriptive rules on the weight of paper that must be used for such documents. Removing these regulations will eliminate unnecessary restrictions and allow the UK to pursue a digital regime. When they were written, there was no digital regime; we can now do that. Commission regulation 644/2005 of 25 April 2005 allows for the removal and non-application of ear tags for bovines kept for cultural and historical purposes—in this context, bullfighting. It is a derogation that we have not used in the UK and will not be using, so we no longer need to have it.

[Baroness Hayman of Ullock (Lab)]

Apologies for intervening again, but is the Minister saying that the Bill retains by default, or just that Defra’s approach is to retain by default? Those are two very different things. The letter we recently had from the noble Baroness, Lady Neville-Rolfe, talked about how

“the internal methodology for identifying such retained EU law was for each department to decide, given their expertise and institutional knowledge”.

It would be useful to understand how that will work within Defra.

[Lord Benyon (Con)]

Yes, that is Defra’s approach; that is what we are doing in respect of this legislation. Doing that allows us to keep protections in place, provide certainty to businesses and stakeholders, and make reforms tailored to our needs while removing irrelevant and redundant pieces of legislation, such as the ones I recently mentioned.

The noble Baroness, Lady Parminter, and other noble Lords asked about the justification for Clause 15(5). The UK’s high standards were never dependent on our membership of the EU. We can deliver on the promise of Brexit without abandoning our high standards. The powers to revoke or replace will provide the Government with the opportunity to amend retained EU law and will limit those reforms that do not add to the overall regulatory burden. This is about ensuring that we have a regulatory environment that is the right fit for the UK and not for an environment, as I said last week, that goes from the Arctic to the Mediterranean, and which can fit our overall regulatory regime. Our intention is to revoke any retained law that is not fit for purpose and replace it with laws that are more tailored to the UK and reflect our new regulatory freedoms.

The noble Baroness mentioned taxation. This Bill does not affect the raising and collection of taxes; that is a matter for the Finance Act.

On no regression, the Levelling-up and Regeneration Bill is clear that the Government cannot use the powers in that Bill to reduce the overall level of environmental protection, and includes a clause setting out this commitment to non-regression. As stated on the face of the Levelling-up and Regeneration Bill, the Secretary of State may make regulations only if satisfied that they

“will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.

So any changes to environmental regulation will need to support these goals, as well as our international commitments, including those with the EU.

The noble Baroness, Lady Young, referred to the Bill as somehow weakening our resolve or our ability to deliver on our international commitments. I can be absolutely clear on this: there has never been a more determined effort to deliver for international biodiversity and the international climate, as well as domestically.

Retained EU Law (Revocation and Reform) Bill

Baroness Hayman of Ullock Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, having attached my name to Amendment 47 in the name of the noble Earl, Lord Caithness, and the noble Baroness, Lady Willis, I shall make just a couple of points on that. I stress Amendment 48, to which the Green group would have attached our names had there been space, and the point made by the noble Lord, Lord Krebs, that this is writing into the Bill what the Government tell us again and again, as they have for years, they want to achieve. It is simply delivering the Government’s expressed desire.

I want to make just three points on Amendment 47. There is some important terminology, with which I suspect the noble Baroness, Lady Willis, may have had something to do. That refers to the methodological quality of the evidence. There is increasing awareness in the scientific community of the need to look at the problem of publication bias: the probability that a scientific study is published is not independent of its results. That is just one way in which we have real problems with the methodology of what has been published and the Government have considered in the past, to which the amendment is to some degree addressed.

Proposed new subsection (5) mentions

“a sufficiently wide view of the ecological impacts”.

I will take a case study of this. Scientists are increasingly concerned about the combined cocktail impact of pesticides, plastics and pharmaceuticals together in the environment. I point the Minister to a European report by the CHEM Trust, Chemical Cocktails: The Neglected Threat of Toxic Mixtures and How to Fix It and, independently occurring, a launch this month in the UK of a report from the Wildlife and Countryside Link with the Rivers Trust and UK Youth for Nature, Chemical Cocktails: How Can We Reduce the Toxic Burden on Our Rivers? The scientific view taking that overall wide ecological view is increasingly being recognised as crucial, and massively understudied.

The final point I want to make is that Amendment 47 is reflective of something that I am increasingly finding: groups of scientists—including established scientists whom you might expect that have a very good route into the Government—are coming to me and saying, “Please advise us on how we can get through to the Government to make sure that our scientific advice and discoveries are acted on”. There is real feeling in the scientific community that there has been a breakdown in communication and consideration from the Government in terms of the current science. This amendment seeks to address those issues.

[Baroness Hayman of Ullock (Lab)]

My Lords, I shall be very brief. I just want to give particular support to Amendment 48, to which I have added my name. We cannot allow the Bill to weaken environmental and food safety standards. We know that Defra has by far the largest share of affected regulations of any department, so the Bill really will have significant implications for environment and food safety law-making unless it is done well.

I will not repeat the reasons why we need these amendments, but what has come across very clearly is the fact that there is widespread and strong support for the environmental non-regression principle.

Importantly, Amendment 48 would give transparency but also legal substance to the warm words of the Minister, as the noble Lord, Lord Krebs, mentioned. On day 2 of Committee, the Minister said that the Government are committed to maintaining high environmental standards and that he wanted

“to see … standards improve in future”.—[Official Report, 28/2/23; col. 208.]

I absolutely believe that is the case but, as a matter of law, the Bill provides no assurances or protections and cannot bind the hands of future Ministers. It is absolutely critical that these assurances and protections are in place in the Bill because, without a non-regression principle in law, they simply are not there.

On that basis, if the noble Earl, Lord Caithness, wishes to test the opinion of the House, he will have our support.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, I am grateful for a really interesting debate. Before I begin to address the amendments in this grouping, I say that I know that there was some discussion earlier today regarding Defra’s plans for water quality, particularly the Bathing Water Regulations and the water framework directive. I take this opportunity to reassure noble Lords that neither of these pieces of REUL is on the schedule to this Bill and Defra has no intention of repealing either of these pieces of important legislation. The noble Baroness, Lady Bakewell of Hardington Mandeville, raised this issue, and I absolutely give them that assurance.

Under this Government, we have only strengthened our legislation on water quality. In April, we published our new integrated plan for water, which marks a step change in how we manage our waters. It looks at both water quality and water resources together. We completely understand people’s concerns about our rivers, lakes and seas and the pressures that they face. This plan is our response. In the plan, we set out how we will streamline our water policy and legal framework; this includes the water framework directive 2017. We consider that there are opportunities to improve the regulatory system through reviewing the implementation of the water environment regulations 2017 in order to improve water outcomes on the ground while retaining our goal to restore 75% of water bodies to good ecological status.

I turn to Amendment 47, moved by my noble friend Lord Caithness. This amendment would introduce specific statutory requirements on Ministers when deciding what updates may be appropriate under the power to update in Clause 17 in the light of scientific developments. The amendment would also require that, where Ministers intend to exercise the power on legislation relating to environmental law, the review of scientific evidence must consider whether the evidence accounts for the ecological impacts. I say this to my noble friend: the power has purposely been drafted in this way both to allow for broad technical updates and to ensure that it captures the wide range of REUL across a variety of policy areas. We cannot predict the nature of scientific developments or technological changes to which REUL may be subject, nor the changes that might be appropriate in those instances in future.

I totally agree with my noble friend’s point about outliers. As he said, we had this debate during the passage of the Genetic Technology (Precision Breeding) Bill. I constantly challenge the scientific advice that I receive in Defra to make sure that we are not creating the opposite of diversity or a sort of monogamous view of scientific progress. Outliers are the best challenge to that occasional tendency to be too absorbed in one particular group of views. This has been very eloquently described by notable international conservationists such as Allan Savory. That ability to have only research that is peer-reviewed sometimes requires those commissioning science to look more broadly. That is what we try to do, and I assure my noble friend that his points are well received. However, I gently suggest that placing statutory requirements on Ministers in the use of this power, including the requirement for scientific updates to be based on the latest evidence, is simply not necessary.

First, public bodies are already under public law duties to act reasonably and to consider relevant factors in decision-making. Secondly, Ministers will need to be reasonable and consider the relevant scientific evidence when evaluating whether updates, and what updates, may be appropriate. Provided a Minister acts reasonably and considers the relevant factors, it is ultimately for them to decide what is considered an appropriate amendment in light of a change in technology or development in scientific understanding.

The UK is a world leader in environmental protection and, in reviewing our REUL, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. Furthermore, this Government have been clear throughout the passage of the Bill that we will uphold our environmental protections. We remain committed to our ambitious plans set out in the net zero strategy, the Environment Act and the Environmental Improvement Plan 2023, which sets out the comprehensive action we will take to reverse the tragic decline in species abundance, achieve our net-zero goals and deliver cleaner air and water. The provisions in the Bill will not alter that. I therefore suggest that the requirements of this amendment are not necessary.

The proposed new clauses in Amendments 48 and 49, tabled by the noble Lords, Lord Krebs and Lord Whitty, respectively, establish a number of conditions relating to environmental protections and food standards that Ministers must meet when intending to use the powers under Clauses 13, 14, 16 and 17. They include satisfying a range of conditions in the amendments so that environmental and consumer protections relating to food safety and labelling will be maintained and that the proposed new regulations do not conflict with a specific list of existing international environmental agreements. They also introduce a new procedural requirement which Ministers must meet to be eligible to exercise the powers. This includes seeking advice from relevant stakeholders and publishing a report addressing specific points concerning environmental and consumer protections for the new regulations.

Amendment 48 seeks to insert a new subsection into Section 4 of the Food Standards Act 1999, introducing a requirement for the Food Standards Agency to include in its annual report an assessment of the impact of the delegated powers on areas of concern to consumers relating to food, under that section of that Act. These new and broad-ranging provisions would have a severe impact on the Government’s ability to use the Bill to legislate and deliver on our environmental and food goals, due to the resource-intensive nature of the conditions proposed.

Moreover, the list of relevant international obligations set out in the amendment is far from comprehensive and would become rapidly outdated in the context of ever-evolving international legislation. The delegated powers in the Bill are not intended to undermine the UK’s already high food standards, nor will they impact the UK’s status as a world leader in environmental protection. Indeed, this Government are committed to promoting robust food standards nationally and internationally, so we can continue to protect consumer interests, facilitate international trade—a very good point made by the noble Lord, Lord Whitty—and ensure that consumers can have confidence in the food they buy. The UK has world-leading standards of food safety and quality, backed by a rigorous and effective legislative framework.

Under the Food Standards Act 1999, the FSA already has as its core statutory function the objective of protecting public health from risks that may arise in connection with the consumption of food, including risks caused by the way it is produced or supplied, and protecting the interests of consumers in relation to food. The Bill and the powers in it do not change that. Accordingly, the FSA would already have to consider the effect on public health of any legislation that it would ask the relevant Minister in its sponsor department, the Department of Health and Social Care, to make in relation to food before that legislation would have effect. Alongside this, Defra maintains a well-established set of relationships with the agrifood sector, broadly aimed at upholding the sustainability, productivity and resilience of the sector. This includes representation, from farm to fork, of around 150 major food and drink companies and trade associations, as well as a range of industry CEOs and senior figures, to discuss strategic opportunities and challenges facing the agrifood chain.

We also want to ensure that, in reviewing our REUL, environment legislation is fit for purpose and able to drive our positive environmental outcomes. I take the point very eloquently made by the noble Baroness, Lady Hayman, but this is much more than warm words: we have written into law our environmental protections, our ambitions for reversing the decline of species and, in very strict food legislation, on the health of food.

The REUL that we are revoking as part of the schedule to the Bill is obsolete, expired, duplicated or no longer relevant to the UK. It is not required to uphold environmental protection. For example, around half of fisheries REUL can be removed as it is no longer relevant, has expired or relates to areas we do not fish in. For example, I am sure all noble Lords will agree that REUL setting fishing opportunities for anchovy in the Bay of Biscay for the 2011-12 fishing season, which has now expired and is no longer applicable in the UK, is pointless to have on our statute book. Therefore, the proposed conditions on food standards and environmental protections are simply unnecessary. The reforms these powers will enable are vital to allow the UK to drive genuine reform and seize the opportunities our new status allows.

I enjoyed being on the same side as the noble Lord, Lord Krebs, on previous legislation. I hope that my attempt at honeyed words might have got him onside, but we will have to see how that goes. There are two reasons, by and large, why Governments resist these kinds of amendments: first, they are not necessary—there is already law to provide for the measures the amendments seek—and secondly, they are too burdensome. For these two amendments, I submit, both those factors come into effect: they are not necessary and they are too burdensome, so I ask that they not be pressed.

Retained EU Law (Revocation and Reform) Bill

Baroness Hayman of Ullock Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I echo my noble friend Lady Bakewell of Hardington Mandeville’s thanks to the Minister for his introduction to this group and also for arranging the meeting with the Bill team last Friday and for the very helpful discussions that we were able to have there. As he knows, we have been asking for data relating to the SIs to be sunsetted right from the start of the Bill’s passage, and I thank the Minister and his team for circulating the spreadsheet, which arrived earlier yesterday.

My amendment follows the concerns expressed by the noble Baroness, Lady McIntosh of Pickering, in Monday’s debate, at cols. 19 and 20. She asked about identifying retained EU law, and my concerns relate to the holes in the existing and sunsetting of the regulations. I have tabled Amendment 64ZB, having raised concerns at the meeting with the Bill team about this one SI in the list of 600, mainly because there was not much time to do detailed work on others. It is found in the proposed new schedule, at lines 209-10, entitled Foodstuffs Suitable for People Intolerant to Gluten (England) Regulations 2010—please forgive me if I just refer to such foodstuffs as “gluten” hereafter.

As a coeliac of five decades, as well as having had an interest in health matters for some time, I spent a very large part of Thursday and Friday trying to track back current and former regulations relating to foodstuffs that are suitable for people who are intolerant to gluten and their labelling—it is vital to ensure that people with coeliac disease and intolerances can keep themselves safe. I have to say that I found it almost impossible to do so. Key words were not used consistently and there was no golden thread anywhere to help navigate this. On Thursday afternoon, I approached the Food Standards Agency and Coeliac UK. Both responded swiftly and were extremely helpful. The Government’s spreadsheet that I referred to earlier says, at item 94, that this SI is redundant because

“These Regulations are inoperable. It enforced EU Regulation 41/2009, which was repealed by the EU in 2016 (and replaced by EU Regulation 828/2014, which is being preserved). The equivalent domestic enforcement legislation in Wales, Scotland and NI was revoked and replaced in 2016”.


Unfortunately, this is not entirely correct.

In the helpful briefings from the FSA and Coeliac UK, it transpires that in 2016 there was a consultation to put EU Regulation 828/2014 into a UK regulation to replace SI 2010/2281. This is important because the EU directive sets the composition levels and the labelling rules for gluten-free foodstuffs. However, since that consultation, there has been total silence from the Government about introducing an SI to replace the one listed in the proposed new schedule at lines 209-10. Both the FSA and Coeliac UK told me they have been relying on a workaround, outside of the regulations, found in other legislation, including general food law and the Food Safety Act 1990. These relate to enforcement, not to detailed composition and labelling laws, which are found in EU Regulation 828/2014. Coeliac UK and the FSA have both told me, in briefings that I forwarded to the Minister and his team, that the workaround relies not only on general food law and the Food Safety Act but on the underpinning powers of EU Regulation 1169/2001. However, this regulation mentions gluten only once, on page 51, in Annexe II, paragraph 1, whereas EU Regulation 828/2014 is all about foodstuffs containing gluten and their appropriate labelling.

The FSA and Coeliac UK are both clear that a statutory instrument for England is required to allow direct enforcement of EU Regulation 828/2014, and this will follow in due course. Indeed, the Bill team confirmed this to me in an email yesterday. While I note there is a workaround, I am bemused that such an important matter that relies on the detail of EU Regulation 828/2014 has not yet been brought before Parliament in an SI. Why has there been a seven-year delay to lay that relevant SI since the Government’s own 2016 consultation? I also asked the Minister in an email when we can expect to see this laid, and the reply was that there is a commitment to progress

“at the earliest possible time”

but no possible date. With the greatest respect to the Minister and the Government, it is not down to the FSA, which is constantly referred to as being in charge of the legislative process. It is not.

The email from the Minister also said that this legislation

“remains in force and will be preserved as part of the Retained EU law process”.

But it is not enforced because there is not a regulation. It goes on to say:

“Although there are no direct enforcing regulations in England, there are sufficient powers”—


the ones I referred to. However, as I have said, that does not cover the detail of the relevant recent 2014 regulation.

It may feel to some people that I am dancing on the head of a pin. But those who are intolerant to gluten rely very particularly on the EU directive that covers the composition and labelling of items, and therefore how they are sold, which assures people that they can eat them safely. My broader concerns are how many of the other 599 sunset SIs have similar holes in the legislation.

I note that some MPs have referred to the “blob” and others being at fault for not moving quickly enough. I think that the detail I have just recounted shows that the history of SIs has not been well listed over many years, and it is complex. The government spreadsheet, circulated earlier on, is clearly not aware of it. The government website on nutrition is also not aware of it. The nutrition legislation information sheet, at paragraph 5.8, unfortunately does not refer to the need for this new directive.

Will the Minister assure me that there has been a full tracking of all elements of each SI that is proposed to be removed? If it is discovered that there are holes, such as the one I have just described, what will the Government do, under the terms of this Bill, to ensure that there are no legislative problems in the future?

The Secondary Legislation Scrutiny Committee was very clear that one of the main problems that Parliament has to face, both our House and the other place, is how on earth we can continue with our effective parliamentary scrutiny, given the very broad sweep of secondary legislation that may be made under the provisions of the Bill. This is absolutely one of those cornerstone regulations where we need to ensure that the directive is visible in legislation—it is not.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Minister for his introduction and the noble Baronesses for introducing their amendments as well. I have the final two amendments in this group: Amendments 64A and 64B. These amendments address our concerns about the proposed revoking of the National Emission Ceilings Regulations 2018, particularly Regulations 9 and 10, and of the Commission Implementing Decision 2018, which lays down a common format for national air pollution control programmes. The Government have justified this revocation by saying that

“we will be removing some items of REUL relating to the National Air Pollution Control Plan (NAPCP). The current format … is long, complicated, resource intensive and duplicative, and does nothing to improve the quality of the air we breathe. By revoking this item, we can better focus on what will actually help clean up our air, such as by delivering on the ambitious air quality targets we have set in statute through the Environmental Act”.

I would like to explain why we believe they should not be revoked.

The National Emission Ceilings Regulations deal with emissions of ammonia fine particulate matter, sulphur dioxide, NOx and other serious pollutants. These emissions are the inputs which mix in the atmosphere to become concentrations or outputs, which are measured for health and regulatory purposes relative to the WHO’s air quality guidelines. The Environment Act 2021 and the air quality strategy of 2023 focus largely on concentrations. The environmental improvement plan of 2023 proposes just vague measures to reduce emissions without providing a robust mechanism to review, plan, consult and implement plans when new breaches of emission ceilings occur.

Regulations 9 and 10, which the Government seek to abolish, provide for the preparation and implementation of a national air pollution programme to limit those harmful emissions in accordance with national emission reduction commitments and, importantly, for full public consultation. Removing the obligation to draw up and implement a national air pollution control plan strips away any clear duty on the Government to show how they will reduce emissions in line with their legally binding emissions targets. To succeed in this, we need rules that require the Government to control emissions of harmful pollutants at their source. Without such measures, all their plans and targets are empty gestures.

--- Later in debate ---

[Lord Callanan (Con)]

I can absolutely assure him: she would have been delighted to go down a salt mine. I will not name her, but she messaged me to say that she was very keen to do so. Perhaps the noble Lord would want to arrange it for her.

The noble Lord also mentioned several regulations which are good examples of EU-inherited provisions that we may no longer need. He may not realise it, but some regulations perform multiple functions—we want to revoke some and to keep or reform others. To update and improve the regulations, we of course need to keep them for now, so that we can make those changes.

I had a feeling that the noble Lord might ask me about the famous reindeer regulation. Indeed, Regulation 1308/2013 of the European Parliament and of the Council includes provisions on reindeer, which we want to revoke because, the last time I looked, there were not many in the United Kingdom for which we need to have responsibility—perhaps even the noble Lord could agree with that. But there are other aspects of the regulation that we want to keep; therefore, in due course, there will be a reform programme which will alter that regulation. Of course, the House will get to see that through a statutory instrument at the time. I have no doubt that the noble Lord will want to engage with the Defra Minister in a meaningful debate on how important it is for the Liberal Democrats to preserve the preservation of reindeer in Lapland.

Finally, I turn to the issue of interpretative effects. My noble friend Lady McIntosh asked again for clarity on the Government’s intention. I assure her that the Government’s intentions have not changed in this regard. As she will be aware, the House agreed to Amendment 15 in the name of the noble Lord, Lord Anderson, on Monday, which seeks to replace the sunset of Section 4 of the EU withdrawal Act at the end of each year with a requirement for the Secretary of State to make a statement on the Section 4 rights and obligations which will be sunsetted at the end of this year. The House can be assured that the Government will address that.

Clauses 5 and 6, which relate to the ending of the principle of supremacy, including the principle of consistent interpretation or indirect effect and ending the application of general principles of EU law, will stand part of the Bill, as agreed by the House.

[Baroness Hayman of Ullock (Lab)]

Before the noble Lord sits down, I remind him that I asked a number of questions about areas other than air pollution—for example, on flooding. I wonder if the Minister could look through Hansard and write to me with a response to those questions before we reach Third Reading.

[Lord Callanan (Con)]

I will certainly look again at the noble Baroness’s questions.

Retained EU Law (Revocation and Reform) Bill

Baroness Hayman of Ullock Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I listened with great interest throughout Committee to the noble Lord, Lord Krebs, and his very reasonable and constructive proposals for protecting our environment. But it is time to move on to UK law, which is more transparent and will save the taxpayer the cost of having to pay for a dual system of EU and UK law. Yes, we are already committed by international obligation to our international treaties, but it is ironic that many of the problems which we hear considered have arisen under this dual system of arrangements. I am afraid that I will not support the noble Lord’s amendment. I hope the Government will get on with it, and we will move to restoring UK law over this vital environmental sector so we can all have the protections we need for the environment and hold the Government to account.

[Baroness Hayman of Ullock (Lab)]

I thank the noble Lord, Lord Krebs, for bringing this amendment forward and assure him of our full support. We heard from him that, in response to comments made by Ministers on Report, the amendment has been altered to focus on enshrining a legal commitment to maintain existing levels of environmental protection, and that he has taken into account much of what was said during that debate.

One of the things that we debated is how much of the Bill has significant implications for environmental law and for many regulations of significant public interest protecting our natural environment and many aspects of our health so, as the noble Lord, Lord Krebs, said in his introduction, and others have said, it has been pretty disconcerting to hear the Government describe commitments to maintain existing levels of environmental protection as burdensome. I find that quite shocking. We know that there is wide-ranging support for an environmental non-regression principle. Amendment 15 would give legal substance to what Ministers have been saying they want to achieve. In fact, in his introduction, the Minister said that the Government are committed to maintaining high environmental standards; the noble Lord, Lord Benyon, said that; and the Minister in the other place, Trudy Harrison, said that. However, as a matter of law, just because somebody says something provides no assurances or protections and, however welcome it is, it cannot bind the hands of any future Ministers, as the noble Lord, Lord Deben, has just said.

The noble Baroness, Lady Jones, mentioned concerns that some regulations that we need may well be lost. I want very briefly to give an example, which is the intention to remove some items relating to the national air pollution control programme—the NAPCP. Removing the obligation to draw up and implement the programme strips away any clear duty on the Government to show how they will reduce emissions in line with their legally binding emissions targets. The Government say that by repealing this item they can better focus on what will help clear the air, such as delivering on the targets set in the Environment Act. In this debate, the Government repeatedly cite the existence of the Environment Act as the reason why such amendments are not necessary, and no doubt the Minister will repeat that shortly. However, if we look at Regulation 10 of the National Emissions Ceilings Regulations 2018 and the associated implementing decision, we see that the Government are clearly required to consult the public as part of the process of preparing and revising the NAPCP. This is in stark contrast with the approach they took with the revised environmental improvement plan earlier this year where there was no public consultation, very limited stakeholder engagement and limited transparency over which stakeholders were contacted—yet the Minister in his introduction held the EIP up as something to which we should aspire. Given that there is currently no provision in the Environment Act to require any public consultation in relation to future revisions of the EIP, how will the Government ensure that the public do not lose their ability to contribute and to have their say?

I also want to look at some of the powers in the Environment Act and how they are constructed. For example, it includes a non-regression commitment in respect of one piece of REUL, the habitats regulations. This empowers the Secretary of State to make regulations to amend part of the habitats regulations

“only if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations”.

So I consider it relevant in today’s debate to look at why the Government opted to include this non-regression safeguard in law.