Retained EU Law (Revocation and Reform) Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

What an extraordinarily old-fashioned way of looking at how to run a country. The idea that the Government Minister would be required to stand here, in front of your Lordships, and explain what the Government intend to do—I have never heard of such a thing.

I think that the noble Lord, Lord Wilson, was absolutely right to say that this is lazy government. It is lazy, but the reason that the Minister is about to stand up and give some sort of platitudes or vague assurances is because the Government do not know what they want to do. We saw this with the Schools Bill and with the Northern Ireland Protocol Bill. I am sure we have seen it with many other Bills which I have not been quite so closely involved with, but this is a pattern—a pattern which I think the public have got ever so slightly wise to. I would sincerely advise the Minister, whom I hold in utmost respect, not to try to fob this Committee off with some kind of vague assurance. We do want specifics, and we do want to know what the Government are planning to do.

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

My Lords, it is actually a great pleasure to join this debate on this important Bill. There are four of us on the Front Bench to listen to concerns expressed today—weighty Front-Benchers. I very much believe in the rights of this House and our work to review legislation, which I have done with many noble Lords over the last 10 years.

I will not repeat everything that my noble friend Lord Callanan has said. But I would say that the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens. We should not forget this, while, of course, maintaining necessary protections. That includes food safety, as the noble Lord, Lord Kerr of Kinlochard, explained so clearly. The noble Lord, Lord Whitty, rightly pointed out that food moves across frontiers, which need to be taken into account, of course, in any review.

Of course, all protections will not disappear. That is not what we are debating. As the noble Baroness said, the Government are here to improve the law of the land and we need to avoid error.

[Lord Fox (LD)]

I thank the Minister for giving way. She said that not all protections will fall away. Can she tell us which protections will fall away?

[Baroness Neville-Rolfe (Con)]

I said we would be maintaining the necessary protections. I was debating. People were saying that all protections would disappear; I wanted to make it clear that that was not the case. I am going to talk in a minute about the two or three areas raised by the noble Lord, Lord Fox.

The sunset clause, as we have said already, is not intended to restrict or influence decision-making. It will be for Ministers and devolved Governments to decide what action to take in their specific policy areas.

Even those of us who were remainers and who participated in discussions in the making of European regulations over many years were very frustrated by the bureaucracy and duplication of some regulations, and some of the compromises that we had to make were unwelcome. That was true for Governments over a long period; it was not only a matter of this Government’ concerns.

It is only right, in my view, that retained EU law is reviewed equally across all sectors of the economy and then, if necessary, reformed or preserved. To respond to one of the points made about carve-outs, we do not want to leave any area unreviewed. That includes financial services, but they are being reviewed in the context of another Bill that is going through the House at this time.

We think it is right to review all the areas, including health—

[Baroness Chapman of Darlington (Lab)]

I am just curious. What decision process resulted in financial services being dealt with in a different way from everything else? It would help us if we could understand that.

[Baroness Neville-Rolfe (Con)]

As I said, we are determined to have a review and to make the changes that we can, and the two Bills are going through concurrently. A decision was taken—I think rightly—to take advantage of that process.

[Baroness Chapman of Darlington (Lab)]

We are trying to understand why that is. What is different about financial services and food safety to warrant them being dealt with in such different ways?

[Baroness Neville-Rolfe (Con)]

I think our overriding concern is to make sure that all the areas are reviewed and that is behind this whole process, including the sunset. Let me move on, if I may, and make a bit of progress.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

We have a process for those measures. Obviously, there is a lot of retained EU law. We are going through it very carefully. Departments are doing that and are working out what should be preserved, what should be amended and where there is duplication. As I said, there is a case for change, and I think that has been accepted on the other Benches. In some cases, there is parallel legislation, such as the Environment Bill, which has brought in new powers.

If I might turn to Amendment 3 in the name of the noble Baroness, Lady Brinton, I think she will be glad to hear that the European qualifications she refers to in the amendment do not, in fact, fall in scope of Clause 1. Therefore, this amendment is not necessary and, indeed, would have no effect. This is because the regulations concerned were made under domestic powers to come into force after the transition period and therefore do not fall within the definition of EU-derived subordinate legislation in scope of the sunset. The sunset captures only regulations made or operated immediately before the transition period for the purpose of implementing an EU obligation.

Turning to Amendment 4, I am sorry to hear about the noble Baroness’s coeliac condition. I remember developing special lines for coeliacs in my time at Tesco, which has been referenced earlier in the debate. We are in the process of reviewing retained EU law. The Government’s aim is to ensure that food law is fit for purpose and that the UK regulatory framework is appropriate for and tailored to the needs of UK consumers and businesses. A specific exemption for these regulations is not appropriate. The Government are in the process of analysing and assessing retained EU law to determine what should be preserved and what should be repealed or amended. That work will determine how we use the powers in the Bill. The UK has world-leading standards of food safety and quality, backed by a rigorous legislative framework. I know because I did the first Bill of this kind, the Food Safety Act 1990. It is only right that we should re-evaluate REUL to ensure that it continues to meet our needs.

I was asked about intention. The Government remain committed to promoting robust food standards nationally and internationally to protect consumer interests, facilitate international trade and ensure that consumers can have confidence in the food they buy.

[Baroness McIntosh of Pickering (Con)]

I have followed this debate, although I have not yet spoken in it. I would just like to clarify something. Is my understanding correct that Defra, or indeed any other department, could apply to have its own date for sunset clauses? If that is the case, what is the mechanism that would be used in terms of legislation? Also, when the Minister refers to food standards, what is the role of the Food Standards Agency in England and Food Standards Scotland to maintain them, not just for food in this country but to ensure that imported foods meet those standards under the revised legislation?

[Baroness Neville-Rolfe (Con)]

I will try to answer my noble friend’s question. Defra has a programme looking at all this. It needs to decide what to preserve and what might need to be amended. I think the Bill has some scope for extension from 2023 into 2026. Perhaps I could now move on to Amendment 17 in the name of the noble Lord, Lord Clement-Jones.

[Lord Hope of Craighead (CB)]

Before the Minister moves to Amendment 17, Amendment 4 raises the issue of common frameworks. I can well understand the Government’s wish to have a fresh look at standards overall, but it is a massive task, and if the Government are adhering to the structure of the common frameworks, that cannot be done without consultation with the devolved Administrations. Are we dealing with common frameworks in the area that Amendment 4 is concerned with and, if so, how do the Government propose to handle it? Are they proposing to adhere to the mechanisms in the common frameworks? If so, can the Government assure us that they can achieve what is necessary before the sunset date?

[Baroness Neville-Rolfe (Con)]

I was going to respond at the end on common frameworks, partly to say what our hope is, and partly to say that this may well come up under future amendments on the Bill in the next few days. I wanted to be reassuring. Obviously, our ambition is that government departments and devolved government counterparts work together to agree their approaches to individual pieces of REUL. The delegated powers in Bill could then be used to preserve, extend, amend or repeal REUL as required via statutory instrument. Of course, as has been said, the devolved Administrations also have statutory instruments that they need to look at.

[Baroness Chapman of Darlington (Lab)]

It is interesting to look at the expertise of the people who will be making these decisions. In the case that I referred to earlier, the coroner made some specific recommendations about food labelling and obligations to report anaphylaxis. Will things such as that be taken into account by civil servants when they are looking at what to recommend to Ministers in terms of revocation or rewriting?

[Baroness Neville-Rolfe (Con)]

Clearly, when civil servants are reviewing the body of law, they will look at individual points that have been raised, not least those that have been raised by this House. That is part of the process of review that takes place. I was seeking to explain that I do not think that REUL reform poses a threat to the common frameworks programme. Carving out retained EU law and the scope of common frameworks from the sunset would effectively remove a key driver of the very regulatory divergence that common frameworks are designed to manage, and which I think are improving matters. The devolved Governments would be able to make active decisions regarding their REUL and decide which REUL to preserve and assimilate or let sunset within their respective areas of competence. We will come back to this issue, no doubt, because I think there are some amendments in a later group. I am very happy to discuss these points further with the noble and learned Lord.

[Baroness Chapman of Darlington (Lab)]

Before the noble Baroness sits down, I am sorry to keep popping up and down, but it is Committee and that is sort of what this is about anyway. I may have intervened at slightly the wrong point. She was trying to respond to a point about common frameworks, and my question was not really about that. She said in response that there would be an ability for this House to contribute to review and to bring to the Minister’s attention some of the important things we have discovered—from recommendations by a coroner in this case, but there will be many other points that are important too. I do not understand; I do not see how the Bill as proposed really does enable that to happen. She says it does, and I wonder whether she could explain a little bit more fully what she meant by that.

[Baroness Neville-Rolfe (Con)]

What I meant is that, when Bills are going through and noble Lords raise points, it is my experience, having done many Bills both as a civil servant and as a Minister, that these points are picked up and considered. Specific points were made, and I can certainly give an assurance that those points will be passed on to the departmental teams looking at the matters on food safety.

[Lord Fox (LD)]

My Lords, coming in on that point—I thank the noble Baroness, Lady Chapman, for starting the process—and bearing in mind that the number of regulations and laws we are discussing today with respect to Clause 1 is a very small percentage of the 4,700 that the Government have on their list, how does the Minister suggest we raise some of the others that we have not put before your Lordships’ House as amendments? I am happy to come up with some more amendments if that is the best way of doing it. If it is not the best way, perhaps a forum—we could call it “Parliament”—could discuss it.

[Lord Hannay of Chiswick (CB)]

I just say to the noble Baroness on the issue of common frameworks and the devolved Administrations that your Lordships’ European Affairs Committee, in the form of our chair and two other members, went to Cardiff and Edinburgh to take evidence on a completely different matter. Both in Cardiff and in Edinburgh, we were told there was absolute dismay at the way they were not being told what was going on with REUL, and that there seemed to be an unwillingness to recognise that some of legislation had actually been devolved. They were just being told, “Well, it will have gone”. This is quite serious stuff, frankly. I am not expecting the Minister to answer this question now, but will she please say that intensified discussions will go on with the devolved Administrations about the implications of the Bill for them? Otherwise, there is a lot of trouble ahead—and these were not people from opposing parties; they were people from the Minister’s own party as well.

[Baroness Neville-Rolfe (Con)]

I find it difficult to answer that. My understanding is that there has been extensive dialogue with officials across all these portfolios, as noble Lords would expect: that is how government runs. In my areas of responsibility, which do not include food these days, there is extensive dialogue between departments, and that is very helpful. That has been the process here and will continue to be the process.

[Baroness Crawley (Lab)]

If there has been extensive dialogue between officials, and presumably organisations that advise the Government, such as Food Standards Scotland, why are they lobbying us about the defects of the Bill?

[Baroness Neville-Rolfe (Con)]

I have had correspondence with these bodies. Certainly, in my other work I deal with the Food Standards Agency. It is very helpful and it links with government. If I may, I think I will now move on.

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, I have a really practical question. Many people around the Committee have expressed the view that Parliament should have proper scrutiny and accountability, but, even on the Government’s own terms, I genuinely do not understand at what point people in the real world get to hear whether the deadline for the sunset has been extended. When it comes to food labels or workers’ rights, I know that the Minister personally understands that manufacturing companies, for example, cannot just turn things around overnight; they have to know what they are doing. This has a real impact in the real world, so how much notice will we be given, if the Government press ahead on these terms, on whether there is going to be an extension of the sunset clause?

[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.

The point that matters is the one that has just been made by the noble Baroness, Lady O’Grady. Out there, across the economy and in households—though households have not really noticed yet; they will be horrified when they do—economic operators do not know whether their relevant regulation is in play or not. They do not know how much of it falls under your definition of REUL. They do not know what you are going to do with it by definition. They do not even know what it is, because you still have not published a list of the regulation that is now in play, and you do not know how much there is. You do not know when you are going to be able to tell us how much it is or when you will publish a list which will enable economic operators to have reduced uncertainty. The question you have just been asked—when are we going to know what it is going to be?—is really important.

[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.

--- Later in debate ---

[Baroness Crawley (Lab)]

My Lords, I shall speak to Amendment 145 in the name of the noble Earl, Lord Lindsay. This amendment, to which my name has been added, has the backing of the Safeguarding Our Standards consumer protection campaign and continues the theme of other exclusion or carve-out amendments in this group, in that it would ensure that the Bill will not apply to any regulations relevant to the Government’s forthcoming digital markets, competition and consumer Bill. Many believe that this DMCC Bill represents the most significant reform of UK competition and consumer protection law in years.

The noble Earl, Lord Lindsay, who cannot be here today, and I work closely together with the Chartered Trading Standards Institute, of which he is president and I am a former president. We thank both CTSI and Which? for their support and advice on this amendment. In the Autumn Statement, the Government committed to bringing forward the DMCC Bill in this Session of Parliament, and it would be good to know from the Minister when that Bill will be published—it is supposed to be imminent. It will provide important reforms to competition and consumer protection law, including providing the Competition and Markets Authority with significant new powers to promote and tackle anti-competition practices and, indeed, updating retained EU law, such as the Consumer Protection from Unfair Trading Regulations 2008, with measures to combat fake reviews and subscription traps. It is likely that businesses around the country will be reviewing their current approach to sales and marketing, given the expected new powers the CMA will impose as far as fines are concerned in relation to consumer law breaches through that Bill.

However, there is a very serious risk that the REUL Bill in front of us today will cut across what the Government are trying to achieve through the digital markets, competition and consumer Bill. That is why we believe that regulations that are in scope of the digital markets, competition and consumer Bill should be excluded from the retained EU law Bill. There is already a precedent for this, as the Financial Services and Markets Bill currently going through Parliament, which has already been talked about today, is excluded from the scope of the retained EU law Bill to avoid the risk of the two different pieces of legislation contradicting one another. We have not yet had a proper answer as to why this precedent is still there. The organisation Which? is, however, on record as arguing that the relevant clauses and schedule in the FSM Bill need to be improved to ensure that decisions about any remaining financial services retained EU law are accompanied by effective consultation as well as parliamentary and stakeholder scrutiny.

I urge the Minister to look carefully at this amendment in light of the need for robust competition and consumer law going forward in a very difficult economic time for many people and businesses.

[Lord Callanan (Con)]

My Lords, this debate has demonstrated what we already knew: there is retained EU law across all sectors of the economy, some of which is out of date and unfit for purpose. The Government have taken a sensible approach by requiring that this retained EU law is reviewed and updated equally and in the same timeframe. This makes sure that no specific policy areas get left behind. We have had essentially the same debate on all groups—with Opposition Members highlighting certain areas and saying, “This is very important”, and of course we agree with them, then asking for specific carve-outs, which is impossible until we have done the work reviewing it.

We reject Amendment 6. We think it is unnecessary and ask that it be withdrawn. The amendment would see legislation on artists’ resale rights excluded from the sunset provision. However, the UK Government have already committed to ensure that the necessary legislation to uphold the UK’s international obligations after the sunset date will remain in place. This can also be accommodated using the broader powers contained in the Bill. Again, we contend that there is no need for any carve-outs for specific policy areas.

Similarly, I disagree with the noble Lord’s additional Amendments 13 to 15, which would put various copyright computer programs and database regulations outside the scope of the sunset. The Government believe that an effective and efficient intellectual property system—

[Baroness Brinton (LD)]

I apologise, I was not quite clear about something the Minister said. He made reference to the issues relating to the creative industries being covered by broader powers. Could he help the Committee by explaining what those broader powers are?

[Lord Callanan (Con)]

There are a number of broader powers in different pieces of legislation. I can get the noble Baroness confirmation in writing, but clearly if it is retained EU law it is also subject to the powers in this Bill.

As I was saying, an effective and efficient intellectual property system is fundamental to the Government’s economic ambition. In common with the rest of the Committee, we continue to support a strong and effective IP system that delivers for all those who rely on it. As part of that, assessing retained EU law on intellectual property as a consequence of this Bill will only help to ensure that this remains the same.

Ministers across government are already working closely with their devolved Government counterparts on their retained EU law plans, taking decisions on whether to preserve, reform or revoke legislation, and developing delivery plans to ensure that all necessary action is taken well before the sunset date. Once this process is complete, the Government will update the House on their intentions for the areas where they will focus on reform.

Finally, I turn to Amendment 145, tabled by the noble Earl, Lord Lindsay. A digital markets, competition and consumer Act is not expected to exist when this Bill receives Royal Assent. As such, it is not possible for this Bill to reference that Act if it does not exist. The powers in the Bill will be used as necessary to ensure that all reforms proposed by a forthcoming digital markets Act will operate as intended. I hope that has provided noble Lords with reassurance and that the noble Lord will feel able to withdraw his amendment and the others will not be moved.

[Baroness Wheatcroft (CB)]

Forgive me for interrupting at this late stage, but could the Minister tell the Committee how much time he thinks will be necessary to update the House on what is happening to the 4,700—and growing—pieces of legislation?

[Lord Callanan (Con)]

If the noble Baroness has been listening to the debate so far, she can reference the dashboard with the 4,700 pieces that are listed. As has been said in previous debates—we have been through this at great length now—the dashboard will be updated as the Government’s intentions, once this review has been carried out, become clear.

[Baroness Wheatcroft (CB)]

The Minister said that, once decisions had been taken, he would update the House on the outcome for the 4,700 pieces of legislation. It was that I was querying.

[The Earl of Clancarty (CB)]

The Minister mentioned that a decision had been made to continue artists’ resale rights. Where was that original decision made and will it continue in the same form that it is now?

[Lord Callanan (Con)]

The Government have signalled our general intention and the importance of the IP protection regime, which of course involves artist resale rights. We have stated our intention for that regime to continue, and we will of course update the House as soon as we have more information.

[Baroness Brinton (LD)]

My Lords, I thank the Minister for his reply. Like other noble Lords, I thank all three Ministers for responding to a Committee that is clearly concerned about what is going on in the Bill. The hour is late, so I will be brief.

The noble Earl, Lord Clancarty, was right to be concerned about the consequences for artists after 1 January next year. I was particularly concerned about the definition of “broader powers”, and I recognise that other noble Lords have made comments or asked questions about what is happening first. The real message from this is that it is a great shame that we are rushing a group of amendments on the creative industries, which are vital to the growth of UK plc. None of the Bill seems to deal with law that is out of date, and that needs to be looked at.

The message for the day from all these groups is that the Government really should consider pausing the Bill. On every amendment we have debated today, there has been concern about the order of information coming out, so that Parliament, stakeholders or consumers can be aware of what is going on. It feels like this is all happening back to front. So I hope that the Government will take that seriously.

[Lord Callanan (Con)]

I will issue a clarification: it is actually 3,700 pieces of retained EU law, not 4,700, as I inadvertently said.

[Baroness Brinton (LD)]

I am grateful for that clarification, but it exactly makes the point that every noble Lord made this afternoon.