House of Lords
Mental Capacity Act 2005: Small Payments Scheme
(1 year, 8 months ago)
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Lord Young of Cookham
To ask His Majesty’s Government when they will respond to the findings of their consultation on the Mental Capacity Act 2005: Small Payments Scheme, which closed on 12 January 2022.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, the Government published their response to the small payments consultation on 28 February, and a copy of the response is in the Library. The Government consider that it is better to improve the processes of the Court of Protection than to legislate for a separate small payments scheme for adults lacking mental capacity.
Lord Young of Cookham (Con)
I am grateful for that reply. It is a happy coincidence that, after waiting 13 months for a response, one appeared 24 hours before this Question was reached. I very much regret that the Government are not proceeding with the small payments scheme. We now have the absurd position that a parent of an 18 year-old with a learning disability can receive tens of thousands of pounds, rightly, from the Department for Work and Pensions after a home visit to make sure that the money is being correctly applied, but the same parent of that same child cannot access the child trust fund—in which the average sum involved is £2,400—without going through a lengthy, bureaucratic and at times expensive process involving the Court of Protection, which deters many parents from going through it. If the Department for Work and Pensions is satisfied that the parent can act as an appointee, looking after tens of thousands of pounds of taxpayers’ money, why cannot the MoJ agree to a similar process, enabling that parent to access the child trust funds that have been provided by the family itself?
Lord Bellamy (Con)
My Lords, I recognise that there is a problem in this area, and I am grateful to the noble Lord for raising it. On his specific point about the DWP payments, the Government see an important distinction between public money being paid for the living expenses of a dependent adult lacking mental capacity on the one hand, and the way we deal with the private property and capital of an adult lacking mental capacity on the other hand. In relation to the latter point, the Government are extremely reluctant to undermine the general principle of the 2005 Act that anyone wishing to take decisions on behalf of an adult lacking mental capacity must be authorised by the Court of Protection.
Lord Ponsonby of Shulbrede (Lab)
My Lords, first, I pay tribute to the noble Lord, Lord Young, for his tenacity on this issue. Does the Minister agree with me that, while the vast majority of parents and carers will act in the best interests of their loved ones, proper processes still need to be in place to protect the assets of vulnerable people? The Government have said, and the Minister repeated just now, that they intend to improve the processes of going through the Court of Protection—specifically, improving processing times and simplifying court forms. Can the Minister say what progress has been made in this regard?
Lord Bellamy (Con)
My Lords, yes; I am able to fully agree with the noble Lord, Lord Ponsonby. We identified two problems. The first was the clunky—if I may use that expression—procedures of the Court of Protection, and the second was a general lack of awareness of the general law under the 2005 Act. On the first, the Court of Protection has in the meantime been digitalised. As from this month, anyone can apply online for the relevant authorisation, known as a “deputyship”. The relevant pilot reduced waiting times from 24 weeks to eight weeks, and the court forms are being worked on at the moment with a view to making them simpler and more user-friendly. So, there is good progress at the level of the Court of Protection. On the second problem, the general awareness of the need to observe the 2005 Act, we are in the process of a cross-government consultation to improve and raise public awareness.
Baroness Brinton (LD)
My Lords, some child trust providers such as OneFamily and Foresters Financial have developed a simplified process, working with families and using the DWP appointee scheme as a proxy to protect against fraud or abuse. In the recent MoJ consultation on this issue, 87% of respondents liked this way of working. Why have the Government rejected it?
Lord Bellamy (Con)
My Lords, essentially, there was general support for the idea of some sort of scheme, or at least some simplification of the process, but no consensus on what safeguards we should have. In particular, most banks and financial services companies expressed concerns about what they would have to do to carry out the relevant checks. There would be quite a small demand and it would be quite expensive for most institutions to provide the relevant service. In those circumstances, the Government decided that this was a case where we should avoid legislation and work to improve the present system.
Lord Touhig (Lab)
My Lords, do His Majesty’s Government know how many of the 6 million child trust fund holders lack capacity? If this is not known, how can fund providers be sure that it is right to release funds to third parties? I ask this question because there is concern that some fund providers are not as diligent as they ought to be in this regard.
Lord Bellamy (Con)
My Lords, I cannot comment on how fund providers operate their relevant systems. The number of adults holding child trust funds who have become adults and lack capacity is quite small—it is thought to be around 1% to 2% percent—but it is none the less significant and the risk of abuse is quite prominent.
Baroness Berridge (Con)
My Lords, I have recently been alongside someone who had tried to become an appointee. Can my noble friend the Minister please talk to the DWP about its system to become an appointee for somebody, because it is not simple? Is there not then a case for basically not duplicating the processes? Once you get through the appointee hoops, which are considerable, should you not automatically get a deputyship—so you just have to do it once?
Lord Bellamy (Con)
My Lords, the Government are extremely reluctant at the moment to confuse two things. One is the processes by which the DWP works, and the other is the legal process by which an adult lacking capacity can have somebody else act on their behalf. That is a job for the Court of Protection. It is not just a question of child trust funds, although that is an important issue. This can go on throughout a child’s life, and it is quite likely that a child lacking capacity who reaches the age of 18 will continue to lack capacity for many years to come, and there will be important decisions to take. That really should be supervised by the Court of Protection and not by the DWP.
Lord Blunkett (Lab)
My Lords, it has been a privilege to work with the noble Lord, Lord Young of Cookham, on this important issue. When I led on the implementation of the child trust fund prior to the 2005 Act, we never foresaw that this situation would arise. Is it not a scandal that the cost to the financial institutions should take priority over the cost to these young people, who cannot access their funds? We understand about the Mental Capacity Act and understand the dangers and the safeguards necessary. But, after what has happened with the magistrates’ courts over the issue of pre-payment meters, can anybody really believe that the court system should take precedence over personal support to parents and young people?
Lord Bellamy (Con)
My Lords, it is not simply a question of cost to financial institutions. There is a whole range of problems here and an essential tension between protection against abuse and simplicity of process. In this area, where it is possible to have very different views, the Government feel that the principle established in the 2005 Act, placing responsibility with the Court of Protection, is right.
Lord Addington (LD)
My Lords, when the noble Lord, Lord Young of Cookham, raised this, I said that he had put his finger on an absurdity, and it is quite clear that I was right on that one at least. Can the Government give us some undertaking of what they are doing to make sure that, when parents put money into funds for their children’s future, they are told all the things they have to do to make sure the child can access it properly? Saying that there should be greater awareness will not help; you need one place to go that says, “This is the legal process”.
Lord Bellamy (Con)
My Lords, the Government will do all they can to raise public awareness. If, for example, the DVLA can inform me regularly that my driving licence needs to be renewed when I get to 70, surely we can have some similar process when a child reaches the age of 18.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I commend the Minister for actually answering the questions put to him, rather than reading from a brief before him. Is there any way he could pass that skill on to his colleagues?
Lord Bellamy (Con)
My Lords, my colleagues are already skilful enough.
Criminal Justice System: Translation and Interpreting Services
(1 year, 8 months ago)
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Baroness Coussins
To ask His Majesty’s Government whether the right for people engaged with the criminal justice system to access translation and interpreting services will be affected by the Retained EU Law (Revocation and Reform) Bill; and if so, in what ways.
Baroness Coussins (CB)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and in doing so declare an interest as vice-president of the Chartered Institute of Linguists.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, the right to a fair trial is fundamental to our criminal justice system. Translation and interpreting services play an important part in ensuring the fairness of proceedings for all parties, so their provision is a priority for the Government. As we consider the retained EU law for which the Ministry of Justice is responsible, we will make sure that there is no adverse impact on translation and interpreting services.
Baroness Coussins (CB)
My Lords, that is an encouraging reply but I would be grateful for further clarification. Although the Minister said that there is no intention to remove this right, a briefing I have had from the Library suggests that it is more complicated than it looks because the right to these services was transposed into domestic law via no fewer than 18 different measures, some of which are thought to fall within the scope of the Bill and some not, and apparently it is debatable whether others do or do not. Can the Minister please reassure the House that there is a process for review and scrutiny, across all relevant departments, to ensure that we do not end up with the unintended consequence of the right to translators remaining, for example, in police stations but not in courts, or in tribunals but not in prisons?
Lord Bellamy (Con)
My Lords, I can give the noble Baroness that assurance. Allow me to explain that the right to translation and interpretation services is a right at common law and integral to the right of a fair trial. It is enshrined in Article 5 of the ECHR, which deals with the police station, and Article 6, which deals with the fair trial point. Neither of those are affected by the present retained EU law Bill so the substance of the domestic provisions will continue.
Lord Fox (LD)
My Lords, in debate on the Bill, the Minister taking it through described most of our laws as a mishmash of UK-derived law and EU-derived law. This is another example. All these laws, once the Bill comes into force, will also lose the case law and interpretation that came with them. What is the MoJ’s assessment of the workload that the British legal system will have to take on in order to retest all the laws that will be revoked or assimilated into UK law?
Lord Bellamy (Con)
My Lords, with respect to the noble Lord, this is not the moment to debate the wider points of the retained EU law Bill. As for the Ministry of Justice, most retained EU law has already been removed. We are left with some 23 pieces of legislation out of 3,700. I am not best placed to describe or consider the wider implications of the Bill, and, with respect, I think that is for another occasion.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the Minister is correct in saying that there are 23 identified Ministry of Justice items on the Government’s dashboard, and that was as of 28 February. Is the Minister satisfied that the Ministry of Justice review of the relevant legislation from the ministry’s point of view is complete and that that number of 23 will be the end of the story?
Lord Bellamy (Con)
My Lords, I am satisfied, as far as we can ever be satisfied in this exercise, that that is the correct figure. One cannot ever rule out something turning up, but as far as I know that is a correct working hypothesis.
Electric Cars: Export to EU
(1 year, 8 months ago)
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The Minister of State, Department for Business and Trade (Lord Johnson of Lainston) (Con)
The modern rules of origin we negotiated with the EU underpin our unprecedented zero-tariff, zero-quota trade agreement. These rules were developed with industry to reflect the needs of UK electric vehicle manufacturing. We are aware of the supply chain challenges, also caused by external factors, including Russia’s war in Ukraine. This is why our officials are in constant dialogue with the sector to support it to access the maximum benefits of this agreement and other assistance.
Lord Fox (LD)
My Lords, I thank the Minister for his Answer. He did not say what his department is doing about the clause in the trade and co-operation agreement that kicks in at the end of this year—in 2024—where, if there is not 40% of local content in UK-manufactured electric vehicles, they will be subject to up to 22% tariffs when exporting to the EU, and that will have a knock-on effect on other free trade agreements. Will the Minister undertake specifically to go back to the European Union to look at that clause, because we will not be able to export electric vehicles from this country economically unless it is put on hold at the end of this year.
Lord Johnson of Lainston (Con)
I am very grateful to the noble Lord for raising this point, and I hope I answered his Question to some extent. It is very important that we invest in future vehicle manufacture in this country. In the papers I brought with me to this great House are lists of the enormous number of subsidies, grants, credits and other mechanisms of support to ensure that we can build here the electric vehicles and the batteries we need, homegrown in the United Kingdom, to ensure that we have almost 100% of content of these vehicles when we sell them—not just to the European Union but all around the world. It is important to mention the automotive transformation fund and how it has helped Stellantis and Nissan, both of which are successfully working on producing batteries following, crucially, a critical mineral supply deal with Indonesia which I personally signed one month ago. There is work to do, let us be under no illusion, but the Government are committed to it. Huge amounts of money and a great deal of resource, including the attention of His Majesty’s Government, have been committed to it.
Lord Woodley (Lab)
My Lords, I declare an interest as a former member of the Government’s Automotive Council UK, looking at investment in this important industry of ours. The Americans have set aside £102 billion to encourage inward investment in new technologies, including electrification of the whole of their car and automotive industry. There is no doubt, looking at what we are putting aside here, that we are barely in the game. There is £850 million set aside to entice and encourage people here, which sounds a lot of money, but it is not, compared to what other people are doing. Jaguar Land Rover has asked the Government for half a billion pounds for a mega battery factory in Somerset, as opposed to Spain. It is crucial for the long-term interest of our industry that we do not let this investment disappear from our shores, otherwise, my dear friends, there will be no industry in this country in 10 years’ time.
Lord Johnson of Lainston (Con)
I greatly thank the noble Lord for his intervention and for the important promotion of this industry. I say to anyone who is thinking of locating their business in Spain that Ferrovial announced yesterday that it is leaving Spain because it is one of the least hospitable environments in Europe to do business, whereas we know that Britain remains the top destination for doing business in Europe and the second most important destination for foreign direct investment in the world. It is important to remember and celebrate that last year we raised more money for technology and start-ups, which is precisely what we are talking about with the battery and EV industry, than France and Germany combined, more than China, and more than India. It is a testament to this Government’s efforts to ensure that we have the subsidies and support, including government support, to enable our citizenry—some of the best educated in the world—to take advantage of this. I take the point made by the noble Lord very seriously. We are doing a huge amount: the facts bear it out, the money is coming here and so is the industry.
Lord Hannay of Chiswick (CB)
My Lords, would the Minister perhaps be so kind as to answer the question that the noble Lord, Lord Fox, asked about the use of the machinery of the trade and co-operation agreement to take up with the European Union any difficulties that might arise through a change in circumstances described, because it is really important? With the presumably better climate that now exists for our dealings with the European Union, surely this is the time to raise the matter in the appropriate top-level committee of the TCA.
Lord Johnson of Lainston (Con)
We work with all our partners to ensure that trade with the European Union is as seamless and friction-free as possible, and I know that we all congratulate the Prime Minister on the resolution of the situation in Northern Ireland. I believe personally and passionately from my conversations over the last few days alone—including at a breakfast I attended with the Spanish Business Council—that this will allow a substantial number of the market access barriers, the other areas of friction, to be removed. This was demonstrated when we saw the reintroduction of discussions on the Horizon programme almost immediately following the announcement of the Windsor Framework, so I am very confident that a practical solution can be reached, but these are short-term measures. The reality is that we need to build our own capacity in this country, invest in it and support it, and that is exactly what we are doing.
Lord Swire (Con)
My Lords, is not the truth of the matter that unless we rapidly increase the back-up with electric vehicle charging in this country, there will be no electric cars going to the EU, or anywhere else for that matter, from this country? What confidence can my noble friend give to those who are considering switching to electric vehicles or already have them, because the infrastructure is lagging behind the demand, and if the Government seek to achieve their targets, they need to invest more within this country?
Lord Johnson of Lainston (Con)
My noble friend is clearly hoping to upgrade his car from his 23 year-old Range Rover. We are very aware of the need, as we are as individuals in this House, to ensure that the infrastructure is there. It takes time, it is very costly, there has been government investment, but he is absolutely right that further focus is required, and I am very happy to write to him on the specifics, because it is important that everything fits together.
Lord Bassam of Brighton (Lab)
My Lords, it is all well and good the Minister telling us all this, but a new report from the Energy & Climate Intelligence Unit warns that UK motorists could miss out on £9 billion-worth of savings on electric vehicles due to the shrunken second-hand car market, which could be as many as 2.1 million vehicles smaller by 2033, if the Government continue to fail to boost EV take-up. This will be bad for drivers, bad for the country and bad for the environment, with low-income drivers forced to continue running petrol cars. What positive steps will the Government now take to buck this trend and ensure a viable second-hand car market for EV vehicles?
Lord Johnson of Lainston (Con)
It strikes me that, if you want to have a second-hand car market in EVs in this country, you need to build more new EVs in the first place. That is why we are investing heavily in making sure both that we have the facilities and capacity to procure critical minerals to enable us to make batteries, which are the core component in such cars, and that we have the partners in this country to develop the battery technology. We are not simply looking at manufacturing; we are also investing heavily in the R&D around battery design. Our real strength and core defence against the future are our brains. The investment that we have made in concepts, such as our investment of more than £500 million in the Faraday Institution in Coventry, is a good representation of the work that we are trying to do. This does not happen overnight. It is truly a national endeavour. I hope that the noble Lord is reassured that the Government’s focus is on this incredibly important and topical subject.
Baroness Randerson (LD)
My Lords, there was news this week that the failed Britishvolt company has been bought by a newly established company based abroad and that the site will not be used as intended to create a much-needed gigafactory to supply manufacturers of electric vehicles. Can the Minister clarify how the new plans fit into the Government’s priorities for the industry? What funding has already been given to this project? Are there plans to give it any further funding?
Lord Johnson of Lainston (Con)
This is an ongoing commercial issue so it would not be appropriate for me to comment on some of the specific points that the noble Baroness makes. However, we did support Britishvolt originally—I am happy to write to her with the specific numbers—as we have supported all battery endeavours in this country. It is the right thing to do. These are new technologies and companies. They are being created by entrepreneurs taking significant risk; we should celebrate that. It is not a straight line, however. We must be prepared for disruption in this market; there will be volatility. The important thing is that the Government stand behind this industry. We want a car industry in this country that builds high-quality electric vehicles with batteries made here, to sell to the rest of the world and take advantage of our post-Brexit vision for Britain.
Stormont Brake
(1 year, 8 months ago)
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Baroness Ritchie of Downpatrick
To ask His Majesty’s Government what assessment they have made of how the Stormont Brake mechanism in the new Windsor Framework will work in practice in relation to European Union legislation.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
My Lords, the Stormont brake gives the Northern Ireland Assembly a powerful new safeguard. If the brake is pulled, the United Kingdom can veto new EU goods laws that would have significant lasting effects on the everyday lives of the people of Northern Ireland. The brake has been introduced by fundamentally rewriting the dynamic alignment provisions of the treaty; that is a permanent change and ends the automatic ratchet of EU law.
Baroness Ritchie of Downpatrick (Lab)
I thank the Minister for that Answer but, for absolute clarity, would the brake be exercised when 30 MLAs sign a petition of concern, or would it be subject to a further vote in the Assembly on a cross-community basis? When will we see the legal text showing how the brake will operate in practice—or has it already been prepared and shown to others?
Lord Caine (Con)
I am grateful to the noble Baroness. Of course, she and I both served on the Northern Ireland Affairs Committee, and she continues to serve on the European Affairs Committee’s Sub-Committee on the Protocol on Ireland/Northern Ireland. As far back as our first report, we highlighted the problems created by the democratic deficit in Northern Ireland, which the Government’s proposals now seek to address.
The noble Baroness asked some specific questions about the process. Of course, the Command Paper and supporting documentation set out the framework. There are some details that are yet to be filled in and will be dealt with in legislation; they will follow consultations with the Northern Ireland parties, which my right honourable friend the Northern Ireland Secretary intends to begin almost immediately.
Lord Dodds of Duncairn (DUP)
My Lords, the Minister said that the Stormont brake will apply to future laws. Can he tell us whether it will apply to the existing superstructure of EU laws that applies to the EU single market and customs codes for goods in Northern Ireland? Does the Stormont brake apply to the existing superstructure of EU laws in Northern Ireland?
Lord Caine (Con)
As my noble friend—he is my noble friend—will be aware, one of the effects of the Windsor Framework is to reduce very significantly the amount of EU law that will be applicable in Northern Ireland. I think the figure is something like 1,700 pages of text have been removed. Northern Ireland will now be subject to less than 3% of EU law. On my noble friend’s specific question, the brake will apply to new laws that fall within the existing protocol or amendments to laws that fall within the existing protocol.
Lord Murphy of Torfaen (Lab)
My Lords, my noble friend Lady Ritchie highlighted the complexity of the Stormont brake. The Minister rightly indicated that he will hold consultations with the political parties in Northern Ireland. Can he tell the House about the nature of those consultations? As he knows, the purpose of this mechanism is, as he has told us, to address the so-called democratic deficit in Northern Ireland because of the working of the single market. However, does he not agree that the greatest democratic deficit is the continued suspension of the Executive and the Assembly in Northern Ireland? He may rest assured that those of us on this side of the House will support the Government in all their attempts to restore those institutions for the benefit of all the people of Northern Ireland.
Lord Caine (Con)
I am grateful to the distinguished former Secretary of State for Northern Ireland for his tone and his comments. On the nature of the engagement, I can assure the noble Lord that my right honourable friend intends to speak to the Northern Ireland parties directly in the coming days. That will be followed by technical engagement at official level and further political engagement—but we intend to move rapidly on this because we recognise its importance.
I agree entirely with the noble Lord about the absolute necessity and priority of restoring the institutions. It is the Government’s hope that the Windsor Framework will now allow us to move forward in a way that allows the institutions to be fully restored and works to build a better Northern Ireland for everybody. Speaking as somebody who believes passionately in the union of the Great Britain and Northern Ireland, let me say that the surest foundation for strengthening the union is a Northern Ireland that works.
Lord Cormack (Con)
My Lords, in agreeing very much with what my noble friend the Minister and the noble Lord, Lord Murphy of Torfaen, have just said, do not all those in Northern Ireland who have been elected to the Assembly now have a duty to meet and discuss together the historic achievement of the Prime Minister, which will not be bettered, so that we can move forward as a United Kingdom?
Lord Caine (Con)
I very much agree with the sentiments behind my noble friend’s question. As I have indicated, the Secretary of State will speak to all the Northern Ireland parties in the very near future. I agree with my noble friend about the achievements of the 1998 Belfast agreement; as we approach its 25th anniversary, it is important that we seek to move that forward. He is absolutely right.
Lord Bew (CB)
My Lords, I thank the noble Baroness, Lady Ritchie, for her Question. I fully accept that both the SDLP and the Alliance Party have difficulties with the Stormont brake. On the other side of the argument, the Centre For The Union published overnight its eagerly awaited text, which argues that, in principle, it is sympathetic to the Stormont brake. That is an important moment in this struggle to see the return of Stormont.
There is a lot of concern about how the brake might work in practice. I want to put a question to the Minister. Over the past two years, Northern Ireland has been much dominated by the efforts initiated by the noble Lord, Lord Frost, who is in his place, to introduce derogations from the operation of the original protocol. As far as I can see, most of those derogations are now embodied in the new deal, but this was done to effect stability and was done unilaterally. Now that there is an international agreement that underpins the actions of the British Government with respect to the Stormont brake, surely it is logical that, when a decision is not unilateral but is based on the international agreement, the British Government can be relied on to pursue again the objective of stability in Northern Ireland as firmly as they have done over the past two years—and in rather more favourable international circumstances.
Lord Caine (Con)
I thank the noble Lord. I must call him my noble friend, because we go back so many years. He makes very important points. I thank him for his contributions on these subjects, not only today but over a number of months and years. Of course, he is right to highlight the importance of stability, to which I referred in an earlier answer. That is the surest foundation for the union and for strengthening Northern Ireland’s position within the United Kingdom.
On the broader point, he referred to derogations. So much of what we have had to do through grace periods and easements has now been made permanent because of the Windsor Framework. That allows us to move on. In a similar vein to my noble friend Lord Cormack, I hope that one of the consequences of this is that we can now move forward, not just in Northern Ireland but in our broader relationships with friends, partners and colleagues in the European Union.
Baroness Suttie (LD)
My Lords, I, too, welcome the agreement and hope that it will lead very soon to a return to a functioning Assembly and Executive—for if there is no Stormont, there is no Stormont brake. Given the very real concerns of the Alliance Party and the SDLP, can the Minister say whether the Government intend to introduce a review mechanism to assess how the Stormont brake is working in practice once it is up and running?
Lord Caine (Con)
Of course, and I recognise that different parties will have different views and concerns. One purpose of the engagement that my right honourable friend will undertake in the coming days will be to establish what they are and where we can find agreement. As I said in my Answer to the noble Baroness, Lady Ritchie, the framework—the clue is in the name—sets out the framework for the Stormont brake, but there are some details to be filled in as to how things are codified. There will need to be legislation in this area setting out things in more detail, and I am sure that will be part of it.
Baroness Fox of Buckley (Non-Afl)
My Lords, the framework sounds like an improvement. However, as we here well know, the legal text is what counts. Some of us who have read the EU legal text have some concerns. Not publishing that legal text as quickly as possible allows rumour and distrust to grow, so I would urge it.
When the Minister says that 1,700 pages will be removed, how many laws and regulations does that include? Although 1,700 pages sounds a lot, you need only look at our legislation table to know that that could be one law and half a regulation, depending on how long it is. We want specifics, or we do not know what we are being asked to consider as positive or not.
Lord Caine (Con)
The noble Baroness will not be surprised to hear that I cannot tell her off the top of my head the precise number of EU laws that remain within Northern Ireland. As I said earlier, it is below 3%. That 3% is those laws which are essential for Northern Ireland’s privileged access to the single market, on which so many sectors, especially agrifood and dairy, continue to rely. At the outset, the noble Baroness referred to the agreement as a whole. I am in no doubt that this is a substantial improvement on the existing protocol and something that everybody should get behind.
Retained EU Law (Revocation and Reform) Bill
Thursday 2nd March 2023
(1 year, 8 months ago)
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Baroness Humphreys
“(1A) Subsection (1) does not apply to an instrument, or a provision of an instrument, that—(a) would be within the legislative competence of—(i) the Scottish Parliament if it were contained in an Act of the Scottish Parliament,(ii) Senedd Cymru if it were contained in an Act of Senedd Cymru, or(iii) the Northern Ireland Assembly if it were contained in an Act of the Northern Ireland Assembly, or(b) could be made in subordinate legislation by—(i) the Scottish Ministers, the First Minister or the Lord Advocate acting alone,(ii) the Welsh Ministers acting alone, or(iii) Ministers of the Northern Ireland Executive.”Member's explanatory statement
This amendment restricts the automatic revocation or “sunsetting” of EU-derived subordinate legislation and retained direct EU legislation under Clause 1 of the Bill so that it does not apply to legislation that is within the legislative competence of each of the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly or Executive.
Baroness Humphreys (LD)
I am grateful to the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, for adding their names to this amendment and for their support. I will also refer briefly to Amendment 49, tabled by the noble Baroness and the noble and learned Lord.
Amendment 29 is the first in a series of amendments which will enable your Lordships to explore the position of the devolved Governments on this Bill and to examine their response to it in detail. I will be speaking about the response of the Welsh Government, of course, but I recognise that other devolved Governments will have similar experiences and different problems.
The amendment restricts the sunsetting of EU legislation so that it does not apply to legislation that is within the legislative competence of the devolved Administrations—in essence, protecting the ability of the devolved Administrations to sunset their own retained EU laws. In general, I think it fair to say that the Welsh Government and the Senedd have very serious concerns about many aspects of the Bill, echoing those expressed by many of your Lordships at Second Reading. They have so many concerns that the Counsel General for Wales went so far as to say that the Welsh Government fundamentally oppose the whole intent of the Bill.
The Welsh Government’s position is that retained EU law works well for them in their areas of devolved competence and, again in the words of the Counsel General for Wales, that they had no intention of repealing, revoking or amending retained EU law to an arbitrary deadline, preferring gradually to amend the law as appropriate with evidence-gathering, public consultation and legislative scrutiny in the normal way over time, as with any body of law. Without the certainty that Amendment 29 gives and without an extension to the sunset, which we will debate in a later group, the Bill no longer gives them that option.
Amendment 29 addresses the concerns of the Welsh Government and Senedd Members who fear that the UK Government will attempt to take some responsibility—or just responsibility—for the sunsetting of laws in Wales. In January, the Senedd’s Legislation, Justice and Constitution Committee was very concerned about the position of devolved retained EU law and asked whether the Welsh Government had received reassurance from the UK Government that they will not change or remove devolved retained EU law without the consent of the Senedd. The Counsel General had not received reassurances a month ago. Can the Minister give those reassurances today? Senedd Members are obviously concerned about the impact of the UK Government proposing legislation such as this. They believe that by default it could repeal essential economic, social and environmental protections—protections that the Welsh Government believe are essential for the operation of their policies on behalf of the people of Wales, and that this is unacceptable.
The Welsh Government have said that their prime focus is
“firstly to ensure that we analyse and retain our own EU retained law, that we focus on that law that’s been made within Wales”.
This is the primary reason for putting down this amendment. It is designed to ensure that the legislative competence of the Senedd is recognised and protected, and that responsibility for sunsetting EU-derived subordinate legislation and retained direct EU legislation lies with the Senedd.
My noble friend’s Amendment 49 asks for a progress report on the identification of EU legislation that has been incorporated into law by the devolved Administrations. I will leave my noble friend to deal with the details when she speaks to her amendment, but I will make a brief comment. I did expect this exercise to be a joint venture, with the UK Government assisting or even leading in the identification of the various pieces of legislation that fall under the Bill, but a few difficulties have arisen. This amendment has my full support and I hope the Minister will update the Committee on progress. I beg to move.
Lord Hope of Craighead (CB)
I have added my name to the amendment in the name of the noble Baroness, Lady Humphreys, which has my full support, but I will also speak briefly to two other amendments in this group in my name—Amendments 34 and 55—which have the support of the noble Lord, Lord Murphy.
Everything the noble Baroness said on Wales applies equally to the position in Scotland, which is just as acute and difficult. I will give some figures on the problem we face. If you examine the dashboard and look, for example, at entries that relate to the responsibilities of Defra, which cover a lot of the work done in Wales and Scotland, you will find 1,781 such entries. Mention is made in this clause of legislation relating to Wales and Scotland, but the numbers are tiny compared to those recorded for Defra itself: there are only 30 relating to Scotland and 15 to Wales, and they concern only agriculture among Defra’s much wider responsibilities. So, I detect that the no doubt authoritative information in the dashboard is incomplete, especially for the devolved Administrations, which illustrates the great problem to which these amendments direct our attention.
May I venture to suggest one other problem, which relates to the relationship with the devolved Administrations? In its report of some two years ago, the Constitution Committee indicated, with the support of the Government’s reply, that the watchwords in dealing with the devolved Administrations should be “respect” and “co-operation”, and that, indeed, is what the noble Baroness’s amendment is all about. One of the extraordinary things about the Bill is that there was no sign of any attempt to discuss the sunset date with the devolved Administrations before it was introduced last September. If I am wrong about this, I am sure I will be corrected by the Minister, but all the signs are that the work simply was not done before the sunset date was set. Indeed, before the Bill reached this House, I do not think much work was done otherwise.
I therefore have a particular question for the Minister on something to which this House is entitled to an answer anyway: what is the present state of discussions with these two devolved Administrations about the possibility of a legislative consent agreement? As the Bill stands, it is clear that neither Administration would give its consent, but the Government’s responsibility is to continue discussions with them. We need to know what work is being done, whether work is continuing to achieve agreement and what the disagreements, if any, relate to. We probably all know what they are, but the Minister needs to update the House at some point during Committee. When the matter comes back on Report, we will expect a complete account of the relationship with the devolved Administrations in relation to legislative consent.
The noble Baroness’s Amendment 29 seeks to remove all legislation that is within devolved competence from the automatic sunset. It will then be for the Government to find another date after discussion with the devolved Administrations. As I said when we discussed this on Tuesday, I believe in sunset dates to make sure there is some pressure to get the work done, but it must be a proper date that is discussed with the devolved Administrations so they can reasonably meet it.
Amendment 49, which is supported by my noble friend Lady Finlay of Llandaff, is a probing amendment seeking information that should have been in the Government’s hands long ago. It makes the same point made by the noble Baroness, Lady Humphreys, on the lack of a clear and comprehensive statement. There is a real problem here of finding out what the legislation is dealing with. Direct EU legislation is not difficult to find and, from the work we do in the Common Frameworks Scrutiny Committee, we can identify it readily. The difficulty arises with EU-derived subordinate legislation and UK legislation relating to the subject matter, which has to be sorted out and understood before one gets into identifying what EU-derived legislation needs to be dealt with. This suggests that each SI in these subject areas needs to be examined and studied very carefully to see what legislative power is being exercised.
Once again, I stress that the Committee needs to know what risks the devolved Administrations are being confronted with. We need a full, frank, detailed and honest assessment. We will come back to this matter when we discuss my noble and learned friend Lord Judge’s Amendment 32 in a later group. For these reasons, I support Amendment 29, tabled by the noble Baroness, Lady Humphreys, and Amendment 49, tabled by the noble Baroness, Lady Randerson.
I turn to an entirely different matter that is the subject of Amendments 34 and 55, which deal with sunsetting the common frameworks. Amendment 34 seeks to disapply the sunset to legislation relevant to the policy content of the common frameworks. Amendment 35, tabled by the noble Baroness, Lady McIntosh, is similar. Amendment 55 suggests a different sunset for the common frameworks, at the end of 2026.
The problem that these amendments seek to address is that, as far as I can detect, the Bill seems to ignore and thus undermine the role of the common frameworks, which are designed to be guided by consensus across all four Governments. That is what “common” means in this rather strange formula; the frameworks are common to the four Administrations, which all have a share in this process, which proceeds with discussion and common understanding. They allow for divergence for reasons of policy, as Section 10 of the United Kingdom Internal Market Act recognises, but only where there is agreement among them all. There is a dispute resolution process, but I do not believe that it was designed for the kinds of disagreements that may arise if the procedures in the Bill are applied to them. The Minister needs to consider the position of the common frameworks much more carefully regarding the work that is proposed.
I should give some indication of the ground that the common frameworks cover and their importance to the way in which the United Kingdom’s internal market is being developed, with the willing co-operation of the devolved Administrations. There are 32 common frameworks, extending over the work of seven government departments, ranging from what was BEIS to the Department for Transport. Fourteen of them relate to Defra, as I mentioned earlier, and its equivalents in the devolved Administrations. I will not set out the full list, but they include animal health and welfare, chemicals and pesticides, ozone-depleting substances and fluoridated gases, plant health, air quality, and food labelling and compositional standards. These are extremely important areas of our internal market, which are well settled in the frameworks and should not be disturbed.
Baroness Ritchie of Downpatrick (Lab)
My Lords, like the noble and learned Lord, Lord Hope of Craighead, I serve on the Common Frameworks Scrutiny Committee. We have met with a level of frustration about this Bill and the delay in some of those common frameworks coming forward. They are an important element of devolution and provide for that element of divergence.
I support Amendment 29. I have other amendments in my name and that of the noble Baroness, Lady Suttie, in this group but, in relation to Amendment 29 and the issue of sunsetting, could the Minister indicate how the Government will protect the new Windsor agreement, which underpins devolution in Northern Ireland, from 1 January 2024, given the revocation of retained EU law from that date?
The purpose of Amendment 147 and, in particular, Amendment 33 is to ensure that Northern Ireland is removed from inclusion in this Bill—in fact, Amendment 147 states that—due to the influence and impact of the Protocol on Ireland/Northern Ireland, because I believe that the Windsor agreement of this week is simply an implementation plan of the protocol with mitigations. In this regard, I refer to Article 2 as well as to environmental considerations. Amendment 33 would prevent the automatic revocation or sunsetting of EU-derived subordinate legislation and retained EU legislation that relates to human rights, equality and environmental protections as they affect Northern Ireland. This would include all such legislation that falls within the scope of Article 2 of the protocol.
I and the noble Baroness, Lady Suttie, have spoken to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, which are tasked with statutory oversight of the UK Government’s commitment under Article 2 of the Protocol on Ireland/Northern Ireland to ensure no diminution of certain equality and human rights protections in Northern Ireland as a result of Brexit. These equality and human rights protections relate back to the Good Friday agreement of 10 April 1998. Quite rightly—this is the purpose of these amendments—both commissions are concerned that this commitment has not been properly considered in the development of the Bill and that the proposed sunsetting of EU-derived subordinate legislation and retained direct EU legislation risks a breach of Article 2 unless all relevant legislation is identified and preserved by the set deadlines.
This pressure is exacerbated by the absence of an Executive in Northern Ireland at the moment. Could the Minister provide us with some detail about any work that has been ongoing in relation to that? Both commissions believe that the Bill should be amended to include a clause confirming that the provisions of the Bill are without prejudice to Section 7A of the European Union (Withdrawal) Act 2018. Amendment 142 in our names, which is in another group, refers to this. Both commissions have welcomed assurances by the UK Government of their commitment to Article 2 and their acknowledgment that the commitment is non-controversial. However, a number of concerns have been identified.
I have a couple of questions for the Minister. If cannot respond today, maybe he could come back to me in writing. Could he set out the steps that will be put in place to mitigate the risk of inadvertent failure on the part of the Government or devolved authorities to preserve or restate all relevant EU-derived subordinate legislation in Northern Ireland and retained EU legislation within the scope of Article 2, within the set deadlines in the Bill, in the absence of the Bill being amended to include measures that protect against this risk? Would the Minister also set out in detail—I would be grateful if he could do so in writing—what consideration was given to ensuring compliance with Article 2 in the development of the Bill, including in the identification of the specified legislation?
In relation to Amendment 142, there is a concern that the environment will not be properly protected. There is therefore a need for Northern Ireland to be removed from this. In an area of political instability, where the Executive and Assembly are currently not operating, we need full measures within the legislation to ensure that Northern Ireland is not covered and that it is removed in terms of the environment. Will the Minister specify the steps that he will take on behalf of the Government to do just that?
Baroness McIntosh of Pickering (Con)
My Lords, I will speak to Amendment 35 in my name. I thank Michael Clancy and everyone at the Law Society of Scotland for helping me prepare for this group of amendments and another group of amendments which will follow. A lot of what I will say echoes what has already been argued by the noble and learned Lord, Lord Hope, with much of which I was in agreement.
The effect of Amendment 35 is to ensure that the sunset provision in Clause 1 will not apply to any common framework. I pay tribute to the Common Frameworks Scrutiny Committee and the work it does, not just in relation to this Bill but on other matters as well. One of the most successful methods to manage intra-UK divergence has been the creation of common frameworks, which are defined in the United Kingdom Internal Market Act 2020 as a
“consensus between a Minister of the Crown and one or more devolved administrations as to how devolved or transferred matters previously governed by EU law are to be regulated after IP completion day.”
The Common Frameworks Scrutiny Committee, in its report entitled Common Frameworks: An Unfulfilled Opportunity?, noted that
“the UK Government considers how legislation it brings forward might conflict with relevant common frameworks, impede their successful operation, and affect the health of the Union.”
The Government responded to that conclusion in the report by saying:
“The Retained EU Law … Bill”—
the Bill before us today—
“insofar as it introduces the date for the sunsetting of retained EU law … will impact upon most if not all of the Common Frameworks. The UK Government has committed to the proper use of Common Frameworks and will not seek to make changes to REUL falling within them without following the ministerial-agreed process in each Framework.”
That statement is welcome, but it does not go far enough and it does not welcome the current state of play.
Noble lords may be aware that, last week, the Scottish Parliament voted to withhold its consent for the UK Government’s Retained EU Law (Revocation and Reform) Bill; it did so as a means of calling for the Bill to be withdrawn. Earlier, on 10 February, Angus Robertson, Cabinet Secretary for the Constitution, External Affairs and Culture, sent a letter to the incoming Secretary of State for Business and Trade setting out the concerns of the Scottish Government in this regard and noting that these concerns had been raised previously with the UK Government at the time that the Bill was before the House of Commons. The Government have had ample opportunity to listen to the concerns so eloquently expressed by the noble Baroness, Lady Humphreys, in relation to the Welsh Government, and those raised by the Culture Secretary in the Scottish Parliament, Angus Robertson, and have declined to act on those concerns.
I would like to give my noble friend the opportunity to comment on the amendments that the Scottish Government have set out, one of which closely echoes Amendment 27 which I moved on Tuesday this week. Their option one is to remove the sunset clause in Clause 1 from the Bill entirely. Their option two is to remove devolved areas from the sunset clause in Clause 1. Their option three is to keep the sunset but move it to a later date and enable Scottish Ministers to extend it. Their option four is to enable Scottish Ministers to extend the sunset date in Clause 1.
The UK Government cannot continue in this arbitrary fashion, overriding the wishes of two separate nations, having this week celebrated the very good news regarding the Northern Ireland protocol. This is an opportunity for my noble friend to make good the commitments in the common framework agreements, as echoed in the conclusions of the Common Frameworks Scrutiny Committee, and I urge him to choose one of the options. I argue that my Amendment 27 is the best, but one of these options must be agreed, otherwise we will simply not make any progress with this Bill.
Baroness Andrews (Lab)
I support Amendments 34 and 55 in the name of my noble friend Lord Murphy, who cannot be in his place, and Amendment 35, tabled by the noble Baroness, Lady McIntosh. I declare my interest as chair of the Common Frameworks Scrutiny Committee.
I start by saying how much I support Amendment 29. The noble Baroness made a powerful and explicit speech about the real, practical concerns that are now so evident in the Welsh Senedd, the Legislation, Justice and Constitution Committee, and the Welsh Government. The exam question for the Minister, and for the Front Bench as a whole, is whether they are prepared to legislate without the consent of the Welsh and Scottish Governments. I would very much like an answer to that question at the end of the debate—the Minister is nodding already.
Lord Hannay of Chiswick (CB)
My Lords, I rise to support Amendment 29 in the names of my noble and learned friend Lord Hope and others.
A couple of weeks ago your Lordships’ European Affairs Committee, on which I have the honour to serve, went to Cardiff and Edinburgh to take evidence in the context of our current inquiry into the future of UK-EU relations. During those visits, on which we talked to Members of the Senedd and the Parliament in Edinburgh, the points about this Bill, and above all the points covered by my noble and learned friend’s amendment, were raised forcefully with us by representatives of all parties, including the party that supports the Government, in both Cardiff and Edinburgh. They told us they were completely in the dark about the application of this Bill if it became an Act, and in particular about how it would impact on the areas that my noble and learned friend has drawn attention to, which are devolved and are the responsibility of the Scottish and Welsh Governments. They said they were really worried that this would lead to many unforeseen negative consequences.
They said there had been no contact or discussion at the political level between either the Welsh or Scottish Government and Whitehall about these measures. There had been contact at official level, of course, and in previous parts of the debate on the Bill here, Ministers have said, “Oh, well, there are some jolly good contacts going on at official level and civil servants are talking to each other”. That will not do; it is not enough. There must be a dialogue with the Welsh and Scottish Governments about this issue; it deeply concerns them.
I hope that the Minister, when he comes to reply to the debate on this amendment, will give certain undertakings in that respect. Above all, I hope he will commit and say categorically that if this amendment is not put to a decision today—it is of course axiomatic that it will not be—these contacts at political level with the Welsh and Scottish Governments will take place between today and Report and he will report back to this House what has passed in those contacts. Without that, we are just heading towards greater and completely unnecessary discord. I hope this point can be taken on board. I do not think it a great deal to ask the Minister to commit himself to. Frankly, it is astonishing that it has not happened already.
One of the things that was quite clear from our contacts in both Cardiff and Edinburgh was that this absence of certainty about what is covered by the sunset clause is itself extremely damaging. Nobody has been able to tell them the list of measures that would be affected by the sunset clause. So I hope the Minister can respond positively when he comes to reply to this debate.
Baroness Ludford (LD)
My Lords, I rise to give a few words of support to the amendments in this group, particularly those led by my noble friends Lady Humphreys and Lady Randerson. To pick up the phrase just used by the noble Lord, Lord Hannay, it is astonishing that the Government are proposing to create such discord with this Bill and by their failure to respect the devolved Administrations and include them in the processes of consideration.
As an Englishwoman, though with roots throughout these islands, I am no expert either on the devolution settlement or on common frameworks—very far from it—but our party is a unionist one, which surely means fostering, respecting and supporting the operation of the union.
In paragraph 60 of the Explanatory Notes to the Bill, there is a very clear statement:
“The Government also remains committed to respecting the devolution settlements and the Sewel Convention, and has ensured that the Bill will not alter the devolution settlements”—
that does not appear to be the case—
“and will not intrinsically create greater intra-UK divergence”.
Quite a lot of weight is put on “intrinsically” in that sentence, because it has great potential to create intra-UK divergence and thus seems very contrary to government policy. On Monday we heard the Prime Minister deliver a passionate statement of support for unionism. He passionately said, “I am a unionist”—he also said, “I am a Brexiter”, but I was not so keen on that bit. The Bill does not illustrate that passionate unionism from the Government.
Coming specifically to the effect on Northern Ireland, I fully agreed with the contribution of the noble Baroness, Lady Ritchie. We on these Benches are also extremely concerned about the Bill’s impact on the Northern Ireland protocol, and in particular on Article 2 on the upholding of rights under EU law, including human rights. We hear with great concern the view of the Northern Ireland Human Rights Commission, which argues that the Bill risks the basis of the Good Friday agreement. That cannot be at all overlooked.
I have a few questions in reference to the Windsor Framework that I hope the Minister can answer. First, will the Stormont brake apply to any laws affected by the REUL Bill or only to new legislation? Has the Prime Minister agreed with the EU to retain all EU law affected by this Bill in Northern Ireland as part of the Windsor Framework? If not, will that not undermine the Windsor Framework? Have the Government agreed to amend this Bill as part of the deal done on Monday in the Windsor Framework on the Northern Ireland protocol?
Practically speaking—given that, sadly, there is no sign yet that the Northern Ireland Executive will be up and running soon—who will be making decisions on which EU law is protected from the sunset? The situation in Northern Ireland is of course very delicate. Given that either removing retained EU law or pulling the Stormont brake could trigger a breakdown in trade between Northern Ireland and the Irish Republic, will the Minister commit that that will happen only when there is cross-community support for doing so? That question is perhaps more on the framework.
With regard to the Bill, there are major concerns about the devolution settlements, the common frameworks and, not least arising from the Windsor Framework, the effect specifically on Northern Ireland. I hope that the Minister can cover all those concerns in his response.
Lord Thomas of Cwmgiedd (CB)
My Lords, I am going to return to a subject that I raised the other day with the noble Baroness, Lady Neville-Rolfe, and this follows on from what the noble and learned Lord, Lord Hope, said earlier today. The noble Baroness, Lady Finlay of Llandaff, cannot be in her place today, so I shall say something about Amendment 49. This goes to three questions that I want to ask and the extent of what we do and do not know.
The first issue that arises is the extent of our knowledge of what is EU retained law. Behind the very helpful dashboard there is a spreadsheet. Like most spreadsheets, it is searchable, so it is extremely helpful in that respect. Under column L, one can find the designation “Territorial application”. When you look down it, you find that some are UK-wide, some are GB-wide and some apply to the Isle of Man, but you also find that some instances are “Scotland only” or “Wales only”. I thought I would see which ones related to Wales only, and they are all Defra ones. I may have made a mistake, because I had to do this research on my own, as I do not have a band of civil servants to cross-check it, but one could see that each of those instruments apart from one had been made prior to 1999—that is to say, when Defra, as opposed to the territorial Secretaries of State, would probably have had responsibility. Some of them are very specialist, dealing with the designation of areas with the Llŷn peninsula, for example, or dealing with the Welsh language.
It seems plain to me from examining that schedule that the Government have gone through the Whitehall departments, department by department, and unearthed what they have. I would like to know if that is right, because I could not find anything in the list that dealt with the territorial offices. The first question that arises relates to pre-1999 legislation, prior to devolution coming into effect. Where is it? It must have been made by either the Secretary of State for Scotland, the Secretary of State for Northern Ireland, or departments in Whitehall. Where is all that material? Whose responsibility is it to find it out? That was work done in London by the UK Government at that stage. Of course, the further one goes back, the more difficult it is to find. If it has all been transferred to the respective devolved legislatures, one hopes that nothing got lost on the way, because one knows that the risk in moving papers around is that you lose them. It would be helpful to have some explanation of who is responsible for pre-1999 legislation.
The second part of that question probably arises more in respect of Wales than in the other two devolved nations. Because the Welsh settlement has moved more over the years, whose responsibility is it to find out things that were the responsibility of, say, a London department before it was moved, and where it is now?
The third part of that question is: who is looking at the post-1999 instruments made by the devolved nations? Obviously, that requires substantial resources. I hope that I have understood correctly, from looking at the spreadsheet, that there is nothing on that spreadsheet—and, in consequence, nothing on the screen that is more helpfully looked at by some—that deals with devolved instruments, but it would be very helpful to know that. The fact that the territorial Secretaries of State are not on the spreadsheet shows that there is a potentially very large lacuna. I will come to why that is so important in a moment.
The second question that arises is in relation to consequential amendments made by statutory instruments. We are all familiar with Bills, these days, and statutory instruments that have provision for consequential amendments. Sometimes whole Bills are made-up of consequentials. I looked through the spreadsheet to see whether I could find any statutory instruments where it was clear that there have to be consequential amendments. I could not find any, so I did the exercise the other way around: I put into one of the commercial search engines the number of a directive, and then tried to see what it threw up. I did this in relation to one of the instruments mentioned in the common frameworks—one of the waste directives—and the search engine threw up three categories of result. The first was the possibility of amendment to primary legislation. That is not a problem, because the Bill exempts that, wherever the legislation was made. Secondly, it threw up the instrument itself but, thirdly, it also threw up consequential amendments. I do not entirely understand how consequential amendments are to be dealt with, because they are not in the spreadsheet.
That is extremely important, because the instrument that I happened to pick on contained an awful lot of consequential amendments to other instruments that used the definition in the directive, by reference to the directive itself, of what waste was. If you miss one of those consequential amendments, what is the position? You have got rid of the EU retained law, and there does not seem to be a saving provision in the Act to save measures that people have overlooked. I will come to explain how that arises in a moment. It seems to me that it is only really this House that can look at what is involved and judge the practicality of doing all this by the end of the year, or even by 2026.
The question then turns to resources. What resources are being made available to the devolved Governments? I think it is a matter of common knowledge that Whitehall is pretty tight on resources—or so it is said, and I believe with truth, by many who work for our Civil Service—but one knows that the devolved Governments are in even greater difficulty. So what money and what number of lawyers, research assistants or whoever is being found to help the devolved Governments?
Why does this matter? I have been involved in what I call legal archaeology in a number of instances. The first related to latent damage policies. That is not entirely irrelevant since, when asbestosis came along, because of the way in which policies were written, one had to go and find what had happened prior to the war. There were all sorts of problems with that: floods, fires and—something that of course would not arise in relation to the EU—bomb damage. I have also been involved in this in various islands in the West Indies, where trying to find out what has happened in the period since their independence has actually been very difficult.
Thirdly, and most relevantly, I was personally involved in working on the legislation that resulted from the decision to abolish the office of Lord Chancellor. It is interesting to know that the legislation was first envisaged as abolishing it but was quickly changed to the reform of the office of the Lord Chancellor. Now, why was that? One is not, of course, concerned with the centuries since the creation of that office in pre-Norman, or at least in Norman, times—it is thought to go back over that span of time. However, it was an immense task to find out what the Lord Chancellor had accreted over the years.
In a way, I am sorry that the noble Lord the Leader of the House is not in his place. He would recall that I had a discussion with him in relation to one of the Boundary Commission Bills as to the fact that one piece that was overlooked, I am fairly certain from my own recollection, was about the person who appointed the office of the deputy chairman. It was thought inappropriate that the Lord Chancellor could have a selection over a judge. I raised this as an amendment and it went to ping-pong, but we did not get anywhere. What it shows is that you can overlook things, but of course in that case it did not matter because the now Sir Robert Buckland was there; he could take on the job and discharge the appointment with absolute impartiality.
In this case, once we have abolished something and taken it away, there is nothing there. If the Government really are insistent on any of this, why can we not have some sort of saving clause so that, if some mistake has been made, it can be rectified? It took a very long time—from 2005 to 2019, I think—for the mistake in relation to the appointment of the deputy chairman of the Boundary Commission to be appreciated.
I do not expect the Minister to be able to answer these very detailed questions on methods of search and what is there, which all needs setting out. However, I say three things. First, the House must have this information. We cannot go on in the dark any longer. We need to know the search methods, the limitations and what is excluded.
Lord Deben (Con)
If something does not exist because it has been overlooked, how would case law which refers to it work? As I understand it, that case law is to be abolished, so we cannot actually use any of it. What would happen then?
Lord Thomas of Cwmgiedd (CB)
We will probably come to the whole question of case law in the next set of amendments and I do not want to trespass on anyone else’s thunder. The real difficulty with this provision is, as regards the devolved and other legislatures, that if there is a reference in other legislation to something that someone has overlooked, what actually happens? I do not know the answer but, presumably, there is just a void in the statute. I am sorry that I am unable to answer the noble Lord.
To go back to my three points, we must have, first, a proper and detailed explanation of what the search methods do and do not cover, and how we are to address these problems. Secondly, we must have an assurance that there are enough bodies to do the work. When we know what the problem is and the number of bodies available, we can then judge more accurately—this is very important for the amendments to which we are coming—the amount of time that will be required. Thirdly, what do we do if there is a mistake? I do not believe that infallibility rests in any sense within, and never would be claimed by, any Government these days.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, follow that. Briefly, I seek a specific clarification on the sunset clauses. Can the Minister tell us how it is proposed to resolve an apparent conflict in powers between the Secretary of State and those of devolved Administrations contained in the Bill? The power to extend the sunset deadline in Clause 2(1) is reserved for UK Ministers only. In contrast, the power to remove the sunset entirely in Clause 1(2), and so to keep pieces of retained EU law indefinitely, is granted to both UK and devolved Ministers. UK Ministers and Ministers in the devolved Governments may well diverge on the application of sunset dates, as well as on policy decisions.
I also remind the Minister that the RPC ruled that the Government’s impact assessment cost-benefit analysis of the impact on devolved nations is “weak”. What plans are there to address this inadequacy? I also remind him that since the RPC published its opinion, a further thousand pieces of legislation have been added to the dashboard.
Baroness Crawley (Lab)
My Lords, briefly, within this important group introduced so ably by the noble Baroness, Lady Humphreys, I support in particular Amendments 34 and 55 in the name of the noble and learned Lord, Lord Hope of Craighead, with whom I am delighted to sit on the Common Frameworks Committee—noble Lords will be sick to death of hearing about the common frameworks by the end of this—which is under the marvellous chairmanship of my noble friend Lady Andrews.
As noble Lords will know, common frameworks are a voluntary way of bringing the nations of the UK together and being the building blocks for the new UK internal market post Brexit. The legal underpinning for these frameworks is EU-derived subordinate legislation and retained EU law, the very law threatened by the Bill and its insistence on sunsetting by the end of 2023. Along with other members of the committee, I do not wish to see a large part of our economic relationship with the devolved nations damaged or threatened by having a question mark, even if it is only a question mark and not definitive, hanging over these frameworks.
If we take as a quick example a snapshot of the framework law in the Department for Business and Trade, we do not know what is to become of the European Public Limited-Liability Companies Regulations, or the Statutory Auditors and Third Country Auditors (Amendment) (EU Exit) Regulations 2019, or the late payment of commercial debts regulations of 1998, 2002, 2015—and on and on. This is not exactly law to make your heart sing but it is vital to the smooth running of the UK’s new internal market.
If we take the framework law in the Department for Science, Innovation and Technology, we discover that we have signed up to international conventions through EU retained law, but we are not sure—as we heard in our tutorial from the noble and learned Lord, Lord Thomas—whether the SIs for them are to be included on the now infamous dashboard. Just to make things more uncertain, if that is possible with this Bill, some of this retained law has Northern Ireland aligned directly with EU law and some has not.
In the Department of Health and Social Care, we have secondary legislation on nutrition and health claims, on vitamins and minerals and on foods intended for infants and young children. They are a brave Government, in the words of Sir Humphrey, who would bring uncertainty to such law. The food safety and hygiene provisional common framework is again based on retained EU law and it involves Northern Ireland, Scotland and Wales, as many of them do. It deals with issues raised by noble Lords last week in Committee such as food labelling, food contaminants, flavourings, additives and, very importantly for farmers in the devolved nations, animal feed.
The consumer protection enforcement authorities across the UK need certainty. If they are going to be able to bring perpetrators to book in the future, they need to know that all the legal pages are still in the book. The stand-alone SIs in this framework include everything from EU regulations on curry leaves to the Fukushima power station disaster to rice from China. That is not even to go through all the SIs arising out of them on jam and honey. I will do so if noble Lords would like me to, but I think we do not have the time—there are a lot of them.
Like Mr Micawber, we are hoping, regarding common frameworks, that everything will turn out for the best and all this primary and secondary EU-derived law will, if needed, be retained. But here is the rub: we hope but, as the noble and learned Lords, Lord Thomas and Lord Hope of Craighead, have said, we do not know. We do not know how law in scope is to be retained, reformed and revoked. We do not yet know all the law that is in scope. Perhaps at this very moment the National Archives is hunting for it down the back of the national sofa. We do not know where the DAs are in going through their devolved law to see what needs keeping and letting go. We do not know whether the devolved authorities have the time, the political inclination or the Civil Service resources, as noble Lords have said, for such a sifting exercise and to feed that data onto the dashboard. The Northern Ireland Assembly, as we know, is not even meeting at the moment.
We do not know whether the devolved authorities are mining the National Archives as the UK Government are. We do not know when the dashboard will be complete, or how we will know when it is. We do not know whether the upper limit of the National Archives search is every piece of legislation since the UK joined the EU. Maybe that is a department by department choice, in which case we do not know which departments are going back 40 years and which have decided not to.
Finally, as a Committee we were told in correspondence with Ministers that some retained EU law had been orphaned due to the machinery of government changes. I have no idea what that means—maybe the National Archives does, but we do not. No wonder we are getting urgent lobbying from across every possible UK sector. They want to know what is going on with this Bill and what it means for them. We can only tell them at this stage that we do not know. What a fine mess the right honourable Jacob Rees-Mogg has got us into.
Lord Cormack (Con)
And not for the first time. As the noble Baroness was talking about the dashboard, I could not help but just carry the analogy a little further. How much is hidden in the glove compartment?
This has been a very interesting debate. It was extremely well introduced by the noble Baroness, Lady Humphreys. What I want, above all, is a period of stability for our country. I want to feel that the United Kingdom is more united after these turbulent years than it has been of late. I took great encouragement from that happy photograph of the Prime Minister with the President of the European Union on Monday. I want to feel that we really are beginning to build a proper relationship with our former partners, but our remaining friends and allies. If anything underlines the need for that, it is one word: Ukraine.
I do not know, any more than any of us do, precisely what we are dealing with. The noble Baroness, Lady Humphreys, made that plain in her speech with regard to the devolved Governments. I happened to be one of those who fought quite strongly against devolution, because I thought it would threaten the integrity of the United Kingdom.
Lord Cormack (Con)
My noble friend interjects that I was right. Well, I may have been right, but I lost. We all lost. The fact is that we have devolved Administrations. Two of them are active and I devoutly hope and pray that the third will be active again very soon. It is very important that we make this system work. All we are asking for is for my noble friend Lord Callanan to adopt as his motto “festina lente”—make haste slowly—and make real progress as one does so.
The noble and learned Lord, Lord Thomas of Cwmgiedd, made a very wise speech. He laid out just the sort of complexities that we face. I just hope that this Bill, which I believe to be unnecessary in its present form, and premature, can be paused. I hope it can go into the same compartment that the Northern Ireland Protocol Bill has now gone into. That is what I hope for. I believe passionately—the amendment moved by the noble Baroness, Lady Humphreys, underlines this—that this is going to do harm to our United Kingdom and to our relations with our European friends and former partners. Neither of those things is in the interest of our country or is going to contribute to a stable future for it.
Lord Wilson of Dinton (CB)
My Lords, I am not sure I am wise to rise and speak, but I feel as a matter of honesty I must, in response to my noble and learned friend Lord Thomas, who spoke brilliantly.
Let me confess that I was Cabinet Secretary during devolution legislation and its implementation. I oversaw the implementation of devolution. I can confirm everything that my noble and learned friend said. It was messy behind the scenes. Noble Lords may not remember that the legislation went through Parliament amazingly easily and very fast. A lot of points that are being raised now should have been raised in different ways on that legislation. I was under instructions from the then Prime Minister Mr Blair that my misgivings about whether it would weaken the union—I shared them—should be set aside and we should use devolution as a way of strengthening the union, and implement it with harmony.
I had in place a structure with my colleagues in Wales and Scotland to oversee the effective implementation. There were endless points of the kind that my noble and learned friend raised from before 1999 and on the legislation, which we had to sort out. I had monthly meetings—these went on for years—with my Permanent Secretary colleagues from Wales and Scotland in particular to discuss and go through detailed issues which arose on the legislation on assets, personalities, quangos and everything, some of which were legal and some of which were not. I am pleased to tell noble Lords that I cannot remember them now. It is a blessing. I have tried to shed them, because they were difficult. But what I can say is that we dealt with them in the end with good will, good lawyers and great ingenuity. And we dealt with them—if I can confess it in the privacy of this Chamber—with a certain amount of fudge, because some of them were impossible to deal with without good will and pragmatism.
But I am certain that this Bill has overlooked a great deal. I am afraid that there will be more horrible loose ends for my successors to try to sort out. The amendments that the noble Baroness, Lady Humphreys, my noble and learned friend Lord Hope and others have put down are wise. The Government should allow themselves every scope for sorting things out for years to come, whatever the sunsetting clause says, because there will be awful problems to sort out.
Lord Inglewood (Non-Afl)
My Lords, being a bear of rather little brain, it has taken me quite a long time to digest the extremely helpful and valuable contribution of the noble and learned Lord, Lord Thomas. He approached the issue from the perspective of Scotland, Wales and Northern Ireland, but, given that the United Kingdom is a single market, which is a single integrated entity, what will the consequences be for England of the kind of overlooking that he described? We do not seem to have touched on that.
Baroness Bennett of Manor Castle (GP)
My Lords, I will share the deep concerns of Green parties around these islands about the issues that we have been discussing. Like Members from all corners of your Lordships’ House, Green parties would like to see the Bill thrown out altogether, although the proposal of the noble Lord, Lord Cormack, of a pause and a chance to think and understand is, at least, a positive alternative that we should consider. We have heard lots of metaphors—the noble Lord, Lord Wilson, gave us one. I am imagining the fudge, which you have unwisely packed in your suitcase when flying back from a hot place, dripping out all over everything and making a mess everywhere. That is possibly a useful metaphor for where the Bill has put us.
I put on the record a highly unusual and important joint letter written to the Financial Times on 28 November by the Cabinet Secretary for the Constitution from the Scottish Government and the Counsel General and Minister for the Constitution from the Welsh Government. A small part of it said:
“This bill allows UK ministers to take decisions in policy areas that are devolved to the Welsh senedd and the Scottish parliament and to do so without consultation or the need for their consent.”
That is essentially what we have been talking about.
There has been an implicit point in our debate that has not been made explicitly. I will draw particularly on the work of Dr Viviane Gravey from Queen’s University Belfast, who points out that the laws have been transposed into the nations of these islands in different ways, so we have huge diversity. That means that the devolved nations cannot help each other out. A natural situation would be that, with the issues of resources that the noble and learned Lord, Lord Thomas, raised, ideally, people would help each other out and work co-operatively. In most cases, that will not work in this situation because each nation is different.
I will briefly highlight some of the ways in which the nations are different. On Wales, we have not discussed this much but there is a huge impact on the well-being of future generations Act, which has to be considered in the context of the Bill mentioning no increase in “regulatory burden”. That and the well-being of future generations Act are profoundly contradictory, and I do not see any way of resolving that contradiction.
Many people with vastly more knowledge than I—including the noble Baroness, Lady Ritchie, and others—have commented on Northern Ireland. I saw some telling figures. Until autumn, when the caretaker Ministers ceased to hold office, the Department for Infrastructure had identified 500 rules and regulations and the Department of Agriculture and Rural Development had identified 600 rules and regulations—experts describe that as the tip of the iceberg. Given all of the issues that Northern Ireland needs to deal with, dumping that on it as well is simply unacceptable. That is why, in the context of this group, Amendment 29 from the noble Baroness, Lady Humphreys, and others at least takes us to the core of the issues that we need to address.
On Scotland, the noble Baroness, Lady McIntosh of Pickering, covered a great deal of this, but I will mention some conclusions from the Scottish Human Rights Commission, which said that this would create incredible legal uncertainty about human rights and the ability to deliver them, and it would make it difficult to enforce those rights if the Bill goes through in its current form.
The noble Lord, Lord Cormack, made an important point about the tone and direction of travel here. The Windsor agreement is a significant reset in our approach to our relationship with Brussels. The tone and approach have changed in a positive manner. I suggest that we need to see a similar change in tone and approach at Westminster, where, under previous Prime Ministers, we saw an extremely aggressive and unco-operative approach towards the nations of these islands. We need a different tone and approach in this not very united kingdom. Dealing with the Bill—stopping it, pausing it or at least implementing something like Amendment 29—is absolutely essential.
Baroness Randerson (LD)
I will refer specifically to Amendment 29, in the names of my noble friend Lady Humphreys and the noble and learned Lord, Lord Hope. The Welsh Government and the Legislation, Justice and Constitution Committee of the Senedd have both examined the Bill closely and they did not like what they saw. They agree with each other that the Senedd’s consent is required for all clauses and schedules, with the exception of Clause 18. However, given the background of a lack of consultation and dialogue, to which several noble Lords referred, we are not likely to get that consent.
The problem is that the Bill does not just infringe on devolved powers—it tramples all over them. The Welsh Government have called it a “power grab”. The injury to devolution throughout the Bill is compounded by the lack of preparation and background information provided by the Government. These issues have been well rehearsed here—the noble Lord, Lord Hannay, referred to them in detail. The Welsh Government and the Senedd committee agree that, for a start, Clause 2 needs to be amended to grant Welsh Ministers similar powers to those granted to UK Ministers to extend the sunset date in relation to devolved matters.
On sunsetting, June 2026—the fallback date—is of maximum practical inconvenience to the devolved Administrations because it coincides with elections. There are two possibilities for how the date was plucked out of the air: one is that it was chosen deliberately to make life difficult for the devolved Administrations, and the other—I agree that this is probably more likely—is that it is an example of the sort of poor, substandard legislation that you write when you do not consult the people affected. It would have been so easy to choose a different date.
The Senedd committee’s report reflects concerns already expressed about deficiencies in the dashboard and emphasises the need for it
“to identify how each piece of retained EU law falls across reserved and devolved competencies.”
Without doubt, it is essential that, when Welsh and Scottish REUL is added to the dashboard, it is clearly identified. So when will this happen? Can it be confirmed that this will happen? If it does not happen, that means that this truly is a Government just for England. It is essential that Wales and Scotland legislation is identified.
The committee’s report also emphasised the pressure of time, both on legislatures and the Governments in Scotland and Wales. It is essential that all REUL that the Government do not intend to save or reform is identified by the end of September and laid before all the legislatures of the UK.
Amendment 49, in my name and that of the noble and learned Lord, Lord Hope, is designed to probe these issues. The Welsh Government have made no secret of the pressure they are under—other noble Lords have referred to that—and the Minister acknowledged in her response to me last week that there was an issue of resources. The simple time pressure is compounded by the lack of coherent information from the Government. It is more difficult to get on and do what you are supposed to be doing if you do not know what that is. What will the Government’s policy be in relation to any failure by a devolved Administration to update their chosen items of REUL and obliterate as required references to EU law? They might choose not to do it, or they might just not have the time to do it. Does that mean that the UK Government will take over the role of the devolved Administrations and take things out of their hands if by mistake or due to lack of resources they cannot get round to it?
As I understand it, the devolved Administrations are also required to search for REUL made by Secretaries of State prior to devolution, which seems tantamount to having to do the job of the UK Government for them. Have I got that right? Can it be clarified, please?
As many noble Lords have said, the state of the dashboard is central to the pressures that I have referred to. The latest count of Welsh REUL on the dashboard is apparently in the teens. I am assured that when they have counted it all it will be in the many hundreds, and the Government have not yet been able to take account of that situation. What estimate do the Government have of how many hundreds of pieces of REUL both Scotland and Wales will have? It will be different numbers, obviously, because law has developed differently, and they have different powers. I noted in an earlier debate that the Government have failed to clarify when or even if we will get a final list, when or even if we will be told what legislation is to be dropped entirely, and when or even if we will be given a definitive list of legislation to be amended. All this is essential not just to us here doing our work but to both the Scottish and Welsh legislatures, and I hope that it will in time be relevant and important to the Northern Ireland Assembly as well when it is up and running.
On Northern Ireland, I do not want to repeat the vital questions asked by the noble Baroness, Lady Ritchie, and my noble friend Lady Ludford, but I emphasise the importance of them. In the past 36 hours or so, I have been trying to get my head around the implications for this Bill of the Windsor Framework by working through a couple of examples—not quite at the level of detail with which the noble and learned Lord, Lord Thomas, did so, but in my own humble way. I think that the Windsor Framework probably requires substantial rewriting of this Bill; it certainly requires substantial reinterpretation—I understand that because it is such a skeletal Bill it might be possible to bend it to the new circumstances, but we need a new interpretation. Please can we at the very least have a major ministerial Statement on the impact of Windsor Framework on REUL which has an impact on the Stormont brake? The three are intertwined. We need more than a letter; we need the opportunity to ask questions and to understand how it will work.
Baroness Chapman of Darlington (Lab)
My Lords, this is a complete mess. I have listened very carefully to everything that has been said, and I could not identify a speech with which I disagreed. There are two principal problems with the Government’s approach: first, a lack of respect for the devolved Administrations, and, secondly, a chronic case of overconfidence on the part of Ministers.
It is difficult to know exactly where to start; I have so many notes. Which of these particular criticisms is the most important? I will allow the Minister to decide when she responds. It is clear that the dashboard has not been getting updated properly in partnership with the devolved Administrations. The sunset cannot be extended by devolved Administrations on their own, even if they feel that they cannot deal with the burden of the work imposed on them in time. Can the Minister write to update us on the work being done with the devolved Administrations on the dashboard, because it seems that that really underlies some of the concerns we have? From Wales and Scotland, we are picking up a deep dissatisfaction with how this work has taken place.
The noble Baroness, Lady McIntosh, made the really important point that the Government have had time between the Bill being debated in the other place and arriving here today to finesse their approach, shall we say, but I do not think that much has changed. This is a particular concern, as noble Lords have said, given the commitment made earlier this week by the Prime Minister, when he revealed the Windsor Framework, which we were all very pleased to see. We are very glad that the agreement announced earlier in the week has taken place; we were very concerned about the approach that the Government had taken prior to that, so we welcome it very much. If the measures are not dealt with by the dashboard and they fall, we could end up in a situation where we have divergence, not through a matter of policy or intent by the Government, but as a consequence of inaction and, in effect, by mistake. There may be consequences of that, which perhaps could be more pronounced for Northern Ireland than for elsewhere in the United Kingdom. I was very taken by the way that the noble Lord, Lord Wilson, put this—as there being horrible loose ends. That is a very good way of describing it.
These are very practical concerns and a number of noble Lords, in particular my noble friend Lady Andrews, have highlighted them. Like her, I completely support common frameworks. I remember when we debated them at length as part of the Brexit process. We tabled amendments to strength them, to make sure we had good oversight of them, and that there was proper engagement by the Ministers in the devolved Administrations. I think we did okay on some of that. Obviously, this is still relatively young, and we had all hoped, I think, that that process would become smoother and a little more relaxed, and that there could be more shared decision-making. I am particularly concerned about this, given my ambition—which I think is shared by many Ministers on the Government side, too—to see more devolution in England. So we really want this approach to improve as the years go on; it is not a surprise that there are shaky moments in the early years.
The Bill, perhaps more than any other we have seen, shows a complete disrespect to the devolved Administrations, and this lack of trust and respect is becoming more and more pronounced. There have been some sharp examples in recent months, and we need to get away from them. With this process, there is an opportunity to change our approach and to demonstrate that we want to work differently—and there is a real benefit to be gained from that.
The noble Lord, Lord Hannay, drew our attention to the lack of political engagement, as he put it, with the devolved Administrations, which is deeply concerning. The Minister, the noble Lord, Lord Callanan, as is his habit, is shaking his head from a sedentary position. If what the noble Lord, Lord Hannay, said is not true—as the noble Lord, Lord Callanan, has just suggested—perhaps the Minister could write to us to explain what form that political engagement is taking, what is being discussed and what progress has been made.
Trust matters, and I am afraid that it is in very short supply at the moment. I thank the noble and learned Lord, Lord Thomas, for his speech, because he developed a point that we were trying to make in the debates on previous groups about the risk of things being missed from the dashboard. There were points in our previous discussion where I felt that the Minister was almost saying, “Look, you are worrying unnecessarily—our civil servants know what they are doing, and we will have a very thorough look at this”. The noble and learned Lord described it as legal archaeology; I am a trained archaeologist, and I know very well how easy it is to miss things or to look at a site with a particular priority in mind. You can find very different conclusions looking at something today than you would have done looking at it 20 years ago, because your understanding develops all the time. That is one of the reasons that children are very good at archaeology: they spot absolutely everything.
The point that the noble and learned Lord was making is that things will be missed. Even the Government acknowledge that; they do not claim that the dashboard is comprehensive, or that it ever will be. That was clear from the letter that the Minister, the noble Baroness, Lady Bloomfield, sent us before the last Committee debate. I would not be surprised if she would want to withdraw that letter but, as she has not done so yet, it is the basis for our discussions. It is very clear from that that the dashboard will not be a comprehensive assessment of all retained EU law.
The request from the noble and learned Lord, Lord Thomas, for an explanation of the search methods is very good idea. We were told—with some pride—that one of the search methods was a key word search for “Europe” at the National Archives.
Baroness Bloomfield of Hinton Waldrist (Con)
It is one search method.
Baroness Chapman of Darlington (Lab)
The Ministers are saying that it is one search method, but that was the example given to us when we probed this at the roundtable meeting. That was the choice made by Ministers’ officials as an example intended to reassure us—but we are not reassured. The suggestion from the noble and learned Lord, Lord Thomas, for a fuller explanation is very good and helpful; it might provide the reassurance that Ministers were attempting to demonstrate earlier in the week.
While discussing the issue of devolution, I shall ask the Minister a question on something I do not quite follow—and Committee stage is about asking questions about things we do not quite follow. Perhaps she might write to me about it, but I draw her attention to paragraph 11(3) of Schedule 4, under Part 3, which describes the process that the Government want Welsh Ministers to undertake when they are tackling regulations. Can she explain this process? It says that Welsh Ministers will have to make a statement of their opinion on a particular measure; they will have to provide
“a draft of the instrument, and … a memorandum setting out the statement and the reasons for the Welsh Ministers’ opinion.”
That seems slightly different to the process we are undertaking here. In principle, there is nothing necessarily wrong with there being a difference, but I would like to understand what that is about and how the Government came to that. Was that something that came out of dialogue with the Welsh Government, or has it grown up through the department? Why is that happening?
There is no way that this will not come back on Report. I would be happy to support any of the amendments tabled in this group. We on these Benches would be very happy to work with noble Lords from across the House on arriving at an amendment that we think would achieve our aims most effectively. I look forward to doing that, but the preference would be that the Government had some further thought on this and brought back their own amendment, which would treat the devolved Administrations with far more respect and deal with the issues of overconfidence and the fact that measures are, likely if not certain, to be missed.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, this has been a very full and comprehensive debate—I did not expect anything less, given the subject matter. Amendments 29, 33, 34, 35, 36, 49, 55 and 147 seek to amend the sunset clause and the territorial scope of the Bill for the devolved Governments. I can but reiterate that the UK Government remain fully committed to the Sewel convention, committed to devolution and committed to working collaboratively and constructively with the devolved Governments. We have been proactively engaging with the devolved Governments, at both ministerial and official level, on the progress of the Bill and the wider retained EU law reform programme. The former Business Secretary engaged with the devolved Governments following the introduction of the Bill and, indeed, I have personally engaged with the Welsh Government to assure them of our respect and willingness to co-operate over legislative matters in general going forward.
In response to the noble Baronesses, Lady Randerson, Lady Hayman and Lady Chapman, I reassure the Committee that we are committed to working with the devolved Governments as we update the dashboard. We have established regular intergovernmental meetings intended to support devolved Government counterparts with the identification of which REUL is devolved or reserved as part of the REUL reform programme. The majority of the powers in the Bill are conferred concurrently on the devolved Governments, including the power to preserve retained EU law. This will enable them to make active decisions about the REUL within the devolved competence and decide which REUL they wish to preserve and assimilate, and which retained EU law they wish to allow to sunset. We remain committed to continuing discussions with the devolved Governments throughout the Bill’s passage over the use of concurrent powers within the Bill to ensure that they work for all parts of the UK. It is our expectation that the department will follow standard procedures regarding consultation and engagement with the devolved Governments during policy development.
I turn to Amendments 34, 35 and 36. These would exempt legislation relating to common frameworks from the sunset, restricting the sunset and preventing it delivering its objective to incentivise genuine reform across the United Kingdom. Among the proposed conditions is a proposal for a process to be agreed between the UK and devolved Governments for retained EU law within the scope of the common frameworks. We believe that common frameworks are integral to managing regulatory divergence in the areas they cover and provide a flexible governance tool for both the UK and devolved Governments. REUL is in scope of the common frameworks. This includes not just REUL operating within devolved competence but that same REUL operating in England. In some cases, this REUL will be UK-wide.
We believe it is simply not necessary to carve out REUL in scope of common frameworks. These are designed to manage divergence, including that which may result from the sunset. Both the UK and devolved Governments agree that, where common frameworks are operating, they are the right mechanism for discussing REUL reform in the areas they cover. To reassure the noble Baroness, Lady Andrews, who raised concerns about regulatory divergence, the Government will continue to work closely with the devolved Governments to manage intra-UK divergence, including through existing collaborative mechanisms, such as the common frameworks programme, which has been developed with the devolved Governments to enable joint working in devolved areas. The Government are committed to following common framework processes where they apply, to allow for a collaborative discussion of REUL reform.
Similar to previous amendments, Amendment 55 seeks to change the sunset date for legislation relating to the common frameworks to the end of 2026. That is likely to include devolved REUL, and also REUL in other UK jurisdictions corresponding to a devolved area. However, this amendment, tabled by the noble and learned Lord, Lord Hope, would amend the extension power in Clause 2, rather than just the sunset in Clause 1. While it is of course not appropriate to change the sunset date through Clause 2 alone, I reiterate that we simply do not believe there is a need to do so for retained EU law in scope of common frameworks. Moreover, pushing back the sunset for this legislation would remove the impetus for devolved Governments and relevant departments to review this legislation. Clause 2 already contains an extension mechanism capable of pushing the sunset back to 2026 for specified instruments or descriptions of legislation. We will work closely with the devolved authorities to ensure that selected legislation, including that within scope of common frameworks, is subject to an extended sunset where appropriate.
Lord Hope of Craighead (CB)
My Lords, what the Minister said about common frameworks is very encouraging and I absolutely understand what she has been saying in her description of the system. But is the procedure in Clause 2 capable of, let us say, exempting a particular common framework from the sunset in Clause 1? Does it fall within the formula set out in Clause 2, so that we could take, for example, the common framework on animal health, labelling or the ozone layer, and specify a common framework to be excluded? It would be encouraging if that were the case.
Baroness Bloomfield of Hinton Waldrist (Con)
We can, indeed, exclude a specific category of law from the REUL exclusions if it relates to a specific area such as animal health, or a particular category of common framework.
Baroness Andrews (Lab)
If that is the case, the logic is that all the common frameworks could be exempt. Is that not the case? If we can exempt one SI on animal welfare, there are 50 SIs on animal welfare; what would stop us exempting the whole of that tranche of SIs?
Baroness Bloomfield of Hinton Waldrist (Con)
While we will have the power to exempt, the whole point about the sunset date is to retain the rigour of going through the REUL legislation that we have—but we do still retain the ability, in Clause 2, to exempt certain categories from sunset.
Baroness Andrews (Lab)
Does the noble Baroness think that common frameworks will be a specific category?
Baroness Bloomfield of Hinton Waldrist (Con)
I thought we were still discussing exemptions. Will the noble Baroness repeat her question?
Baroness Andrews (Lab)
I am asking whether there is the power to exempt a whole category, because we have not heard that before. Would not common frameworks, because they are discrete and have an integrity of their own, serving specific purposes, constitute a specific category?
Baroness Bloomfield of Hinton Waldrist (Con)
I think the answer is, not in their entirety, but a specific category that falls within common frameworks could indeed be excluded.
Baroness Chapman of Darlington (Lab)
Will the noble Baroness point us to where in the Bill we can find the definition of a category?
Baroness Bloomfield of Hinton Waldrist (Con)
I will have to send that sort of detail out in writing, along with the other letters we are going to be writing in response to other questions.
Lord Fox (LD)
I apologise for intervening. I think what I heard is that Clause 2 gives the Government the power to do this; I did not hear from the noble Baroness that the Government have any inclination to actually use that power. Will she explain what criteria the Government would use to actually apply the power that she has just revealed to the Committee?
Baroness Bloomfield of Hinton Waldrist (Con)
We will bear that in mind, but I cannot give specific criteria: we want to retain the ability to exclude specific pieces of legislation, as I have said, within a specific category.
Baroness Bloomfield of Hinton Waldrist (Con)
I think I have taken enough interventions and I would like to make progress, please.
Baroness Randerson (LD)
I just make the point that, by definition, to be included in a common framework, the legislation concerned has been extensively examined by all the Governments concerned in the last couple of years. Therefore, it will not be subject to the sorts of anomalies that the noble Lord, Lord Callanan, referred to in our last debate.
Baroness Bloomfield of Hinton Waldrist (Con)
I take the noble Baroness’s point.
Lord Carlile of Berriew (CB)
I have tried not to intervene so far, but I listened very carefully to what the noble Baroness has just said: does this mean that, if an application is made to a Minister to extend the sunset for a category or description of legislation, in accordance with Clause 2, and the Minister refuses, it will be “open sesame” for judicial review by those who regard such a decision as disproportionate and could render the whole of this legislation into something that will be litigated in the courts for years to come?
Baroness Bloomfield of Hinton Waldrist (Con)
I acknowledge the noble Lord’s intervention but I cannot possibly respond at this stage. We must make progress.
Amendment 29 proposes exempting REUL within the competence of Scotland, Wales and Northern Ireland from the sunset. This would remove the devolved Governments’ incentive to review legislation on their statute books and hinders the sunset’s intention to bring about genuine reform. A sunset is the quickest and most effective way to accelerate the review of REUL on the UK statute book by a specific date in the near future. This will incentivise genuine REUL reform in a way that will work best for all parts of the UK. The territorial scope of the Bill will be UK-wide, and it is constitutionally appropriate that the sunset applies across all parts of the UK. However, the sunset does not affect the devolution settlements, nor is it intended to restrict the competence of either the devolved legislatures or the devolved Governments. Rather, this will enable the devolved Governments to make active—
Baroness Crawley (Lab)
The noble Baroness may well be coming to this, and she should tell me if she is. If the sunset brings rigour, as she has said, to the devolved Administrations—and to us, of course—does that mean that the Government accept our arguments about the lack of resources for the devolved Administrations and the lack of capacity of civil servants, because there are so few of them going through all this retained EU law throughout the devolved Administrations?
Baroness Bloomfield of Hinton Waldrist (Con)
We do not accept that. We know that there are capacity restraints within the devolved Governments, but the UK Government are also helping them go through the whole body of retained law. That work will progress and is an ongoing project as we go through this year. I may come on to more detail for the noble Baroness.
In relation to the noble Baroness’s specific comments on Northern Ireland, the Windsor Framework has no impact on the Bill. She can also rest assured that we have already committed to making sure that the necessary legislation is in place to uphold the UK’s international obligations—
Baroness Bloomfield of Hinton Waldrist (Con)
I think we need to make progress.
Baroness Chapman of Darlington (Lab)
The Minister is answering a different question.
Baroness Bloomfield of Hinton Waldrist (Con)
I know, but we do need to make progress. This is the 10th intervention, and I am on paragraph 17. I think there is a limit to the number of interventions I need to take—but I will take the noble Baroness’s, because she is on the Front Bench.
Baroness Chapman of Darlington (Lab)
I am sorry, but my understanding is that there is not a limit on the number of interventions the Minister can take. Progress would probably be better if we had a better Bill in front of us. She answered a question by saying that the Windsor agreement has no impact on the Bill, but my question was whether the Bill could have an impact on the Windsor agreement, which is a very different thing.
Baroness Bloomfield of Hinton Waldrist (Con)
It has no impact on the Windsor agreement. I am assured by my colleagues and my briefing here that it has no impact.
Amendment 49, tabled by the noble Baroness, Lady Randerson, seeks to ensure that the UK Government have a complete understanding of their catalogue of REUL by allowing a Minister of the Crown to request that the devolved Governments identify REUL in areas of devolved competence within the scope of the sunset. While I concur with the sentiment of this amendment, again, the Government do not believe it is necessary but recognise the importance of having a shared and single understanding of reserved and devolved REUL across the UK Government and the devolved Governments.
We have established regular intergovernmental meetings intended to support devolved government counterparts with the identification of which REUL is devolved or reserved, as part of the REUL reform programme. Departments are also actively engaging directly with their devolved government counterparts as part of their business-as-usual engagement on the devolved status of REUL and their plans for REUL reform. On the point about pre-1999 legislation, where the legislation is devolved, the decision should be for devolved government Ministers, just like any other piece of devolved REUL. We will set out in writing the methodology for identifying REUL on the dashboard, as already committed by my noble friend Lady Neville-Rolfe in the session on Tuesday.
Amendment 33, tabled by the noble Baroness, Lady Ritchie of Downpatrick, would exempt from the sunset legislation relating to human rights, equality or environmental protection to the extent that the legislation has effect in Northern Ireland, including legislation within scope of Article 2 of the Northern Ireland protocol. We fully intend to maintain the UK’s leading role in the promotion and protection of human rights, equality, the rule of law and environmental protections. We are proud of our long and diverse history of freedoms and are committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the withdrawal agreement, the Northern Ireland protocol, and the trade and co-operation agreement after the sunset date.
Baroness Bloomfield of Hinton Waldrist (Con)
I am sorry. I assure the noble Baroness, Lady Randerson, that there was no Machiavellian intent; rather, that date provides a ceiling for the presence of retained EU law on the UK’s statute book and gives adequate time to complete reform of the most ambitious nature in all areas. The 10th anniversary of the referendum vote served this purpose and offers a full-circle moment by which the UK can proudly proclaim that it has regained its sovereignty and has a fully independent domestic statute book—
Lord Fox (LD)
My Lords, I am unfamiliar with modern parlance. Could the Minister please define a “full-circle moment”?
Baroness Bloomfield of Hinton Waldrist (Con)
I think it is just a way of describing the 10-year anniversary of the referendum vote. It is just vernacular—
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
The process is finally complete.
Baroness Bloomfield of Hinton Waldrist (Con)
The process is finally complete, as my noble friend suggests.
On impact assessments, properly assessing the impact of government policy is an important principle of good governance, and the Government will continue to be committed to the appraisal of any regulatory changes relating to retained EU law. The nature of this appraisal will depend on the type of changes the departments make and the expected significance of the impacts. Where measures are being revoked, departments will be expected to undertake proportionate analytical appraisal, and we are exploring the appropriate steps we can take to appraise the resulting impacts.
I am fully conscious that a number of other specific points were raised, but I undertake that we will write back, particularly on methodology and definitions. However, for the reasons I have outlined, I ask the noble Baroness, Lady Humphreys, to withdraw her amendment.
Baroness Humphreys (LD)
I thank all noble Lords who have taken part in this debate, and offered their support to the devolved Administrations and recognised their very legitimate concerns regarding their devolved settlements.
Many of us might not like the Bill, but in this Committee we have seen this House at its very best. We have heard a number of speeches today that could be described as masterclasses, and it has been a pleasure and an honour to listen to them.
I will not comment on the noble Baroness’s reply other than to say that I appreciated her statement that the Government are committed to the Sewel convention. However, over the last few years, actions have spoken louder than words, so she will forgive me if I do not hold my breath.
I also welcome the commitment from the noble Baroness, Lady Chapman, to work across the House on amendments on Report; we on these Benches commit to that process.
We have been debating this for two hours and five minutes, and if everybody else is like me, lunchtime is calling. Therefore I will just say that the noble Baroness’s response will have given food for thought to those of us in this Chamber today, and we will doubtless want to renew our deliberations on Report. In light of that, I beg leave to withdraw my amendment.
Lord Callanan
Member's explanatory statement
This amendment removes a power to except things from the sunset. The power is contained in new Clause (Exceptions to sunset under section 1).
Independent Public Advocate
(1 year, 8 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, with the leave of the House, I shall now repeat a Statement made yesterday in another place by my right honourable friend the Deputy Prime Minister. The Statement is as follows:
“Today I can announce that we intend to legislate as soon as possible to introduce an independent public advocate, to put victims and the bereaved at the heart of our response to large-scale public disasters; to make sure that they get the support they deserve through public inquests and inquiries; and to make sure that they get the answers they need to move forward in their lives.
I know the whole House will recall that fateful day of 15 April 1989, when thousands of fans prepared to watch the FA Cup semi-final between Liverpool and Nottingham Forest. Ninety-seven men, women and children lost their lives, unlawfully killed in our country’s worst ever sporting disaster. What happened at Hillsborough was a monumental and devastating tragedy.
Of course, for Hillsborough’s survivors and the bereaved, that terrible day was just the beginning of a 34-year ordeal. It was followed by an appalling injustice. Fans were blamed for their own injuries. Survivors and the bereaved were blocked at every turn in their search for answers. We must learn the lessons of Hillsborough and we must make sure that this never happens again.
In terms of the wider context, major disasters of that kind are mercifully quite rare in the United Kingdom. But, as Hillsborough, Grenfell and the Manchester bombings have shown, when they do happen, victims, families and the communities that are affected and represented have not received the answers to their questions, nor the support they need. We are duty bound, as a Government and as a House, to make sure that that never happens again and positively to ensure that those families and communities never again have to struggle in anguish against a system created to help them, in order to get the truth, and some measure of accountability.
The independent public advocate will go some way to making good on the Government’s long-standing promise to ensure that the pain and suffering of the Hillsborough victims, and other victims, is never repeated. It will be passed into law and be made up of a panel of experts to guide survivors and the bereaved in the aftermath of major disasters. It will deliver six important outcomes that I will outline for the House.
First, the IPA will provide practical support to the families of the deceased, and individuals, or their representatives, who have suffered a devastating or life-changing injury. That practical support will include helping them to understand their rights, such as their right to receive certain information at inquests or inquiries, and signposting them to support services; for example, financial or mental health support. The IPA will help victims every step of the way, from the immediate aftermath of a tragic event, right through to the conclusion of investigations, inquiries or inquests. We will make IPA support available to the closest next of kin relative, both parents where they are separated or divorced, or to a close friend if there is no close family. The IPA will also offer support to injured victims or their representatives.
Secondly, the IPA will give the victims a voice when they need it most. It will advocate on their behalf with public authorities and the Government; for example, where they have concerns about the engagement and responsiveness of public authorities such as the police or local authorities, or where the victims and bereaved want an investigation or inquiry set up more swiftly, to ensure maximum transparency.
Thirdly, the IPA will give a voice to the wider communities, not just the directly affected victims and bereaved, that have been most affected. We will set up a register of advocates from a range of different professions, backgrounds and geographical areas, including doctors, social workers, emergency workers, members of the clergy, people with media-handling experience—often that is another burden that victims will not have experienced—and others. Communities will be able to nominate an advocate to act on their behalf to express their concerns and ensure that their voice is heard as a community.
Fourthly, the IPA will be supported by full-time, permanent staff so that it can act swiftly when a tragedy occurs to make sure that the support is there for the victims and the families from day one. Critically in this regard, the IPA will be there to consult with and represent victims and their families before any inquiry is set up, so it will be able to make representations on the type of inquiry, whether it is statutory or non-statutory, and other important functional issues, such as the data controller powers available to any inquiry and the relationship it may have with the IPA in the exercise of such functions.
Fifthly, the scope of the IPA will be extended to cover events in England and Wales, but of course we are mindful of the devolved settlements, so we will work with all the devolved Administrations to ensure that our plans are co-ordinated with the support offered outside England and Wales.
Sixthly and finally, although the IPA is first and foremost about doing better by the victims and survivors, it will also be in the wider interests of the public. It will ensure that we achieve a better relationship between public bodies, the Government and the bereaved; that we get better, quicker answers; and that we can learn and act on the lessons from such tragedies more decisively.
The preparatory work is well under way to establish the IPA, and we will place it on a statutory footing as soon as possible. I will say more about the legislative vehicle shortly.
Of course, there have been other important reforms in recent years to support and empower victims and their families. We have made inquests more sympathetic to the bereaved, with a refreshed, accessible guide to coroner services. We have removed means testing for exceptional case funding for legal representation at an inquest. If families meet the exceptional case funding criteria, they will be entitled to legal aid whatever their means.
More broadly, we are putting victims at the heart of our justice system by quadrupling victims funding compared with 2010 and through the upcoming victims Bill. The creation of the independent public advocate to give greater voice to the victims and the bereaved of major tragedies is the next important step forward.
I know that Members across the House will join me in paying tribute to the Hillsborough families for their courage and determination despite every setback. They have always maintained that their struggle for truth and justice for the 97 was of national significance, and I agree entirely. I also pay tribute to the families of those who died in Grenfell Tower and the Manchester Arena bombing. Our hearts go out to them for their loss and I pay tribute to them for their dignified courage.
I also take the opportunity to pay tribute to honourable Members in this House and those in the other place who have campaigned tirelessly on the issue, including my right honourable friend the Member for Maidenhead (Mrs May), the right honourable Member for Garston and Halewood (Maria Eagle), the honourable Member for Liverpool, West Derby (Ian Byrne), Lord Wills, the Mayor of Liverpool and others, for their steadfast commitment to establishing an IPA. I will continue to work closely with parliamentarians, the Hillsborough families, the Grenfell groups and the families of the victims of the Manchester Arena bombing to ensure that their experiences are taken into account and we get the detail of the IPA right as we establish it.
I pay particular tribute to the right reverend James Jones KBE for his work on the Hillsborough disaster and his important report. I met him last week and the Government will respond to the wider report this spring. We know in our heads and hearts that there is still much more to do to heal the wounds from that horrendous and heartbreaking tragedy, but this is an important step forward. The IPA will make a real difference. I commend this Statement to the House.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, I am grateful to the Minister for the Statement which he just read out; there is much to welcome in it. I add my thanks to all those mentioned in it. Above all, the Government’s action yesterday is a tribute to the heroic campaigning of the Hillsborough families over decades. However, as the families themselves have said, the Government have not gone far enough.
Your Lordships will recall that the idea of an independent public advocate was born in your Lordships’ House seven years ago, when the Private Member’s Bill of my noble friend Lord Wills had its Second Reading; my noble friend sends his apologies—his health prevents him being here today but I know that he supports what I am going to say. As a Minister, my noble friend was the key architect of the Hillsborough panel. His experiences led him to draft his Public Advocate Bill, which was supported by all sides of your Lordships’ House at Second Reading. Since then, he has continued to campaign for it, alongside the right honourable Maria Eagle, who has championed it in the other place.
Two key elements of that Private Member’s Bill are missing from the Government’s Statement. First, the Statement denies effective agency to bereaved families in calling the independent public advocate into being. We should understand how profoundly the Hillsborough families and others bereaved by public disasters have felt let down by successive Governments in the aftermath of a public tragedy. We must offer them reassurance that others similarly bereaved in future will not be similarly let down. We must give them the agency that the Government are currently denying them.
Secondly, the independent public advocate must have the power to establish a Hillsborough-type panel. It was only that panel which exposed the cover-ups in the aftermath of the disaster and secured the transparency that the families deserved and for which they have campaigned. The Labour Government who set up the panel and the Conservative Government who supported it to its conclusion set a welcome precedent. This Government must not now row back on that precedent.
Yesterday, through this Statement, the Government indicated their willingness to make changes to their earlier proposals. I welcome that. We will hold them to that commitment to ensure that bereaved families in future receive the agency and transparency that they are owed and for which the Hillsborough families have campaigned for so long and so heroically. I have one question for the Minister: when might we expect to see the victims Bill?
Lord Addington (LD)
My Lords, this is one piece of legislation that I am very glad to see but very sorry, of course, that it had to happen. We have here a response to things going very badly wrong. The three examples mentioned are things that we did not expect to go wrong but did, with horrible consequences. They all have in common that they happened quickly and on one day. I can think of a few other things. My noble friend Lady Brinton, who hoped to be here but has not been able to make it, gave the example of contaminated blood. Would this be caught by any definition as a case where independent public advocacy is required?
I am still not clear on whether one person or a panel is coming through here. That is probably my fault. When will the trigger point to get involved be? Will it be case law? Will it be a judgment? To add to that, my example was the accounting cock-up—I cannot think of any other way to put it, although that is putting it too mildly—with the Post Office system. That is a massive problem that has caused tremendous harm and, it is assumed, loss of life through suicide on numerous occasions. Where the trigger point will be is very important.
My noble friend Lady Brinton was also going to ask how much resource could be called on. It will probably have to vary because there will be differing circumstances and different bodies to call on. How will the Government have the resources to follow it through? Will they set a precedent of what is initially available and where to go, because in all three cases—here and in the two that I have just mentioned—there will be slightly different requirements to do stuff. A fixed panel will not to be able to do it—end of story. There needs to be a greater degree of flexibility than just having a panel. The capacity to call in expertise as one goes through will be needed.
I hope we will have further discussion on this before we get legislation. We will have to know, or we will have yet another long and brutal session in Committee and on Report to get this out. An issue such as this should not have that because we have had all the discussion already. We know what we are trying to get at. If we know that we will be removing a few cases from this which have to go somewhere else, then fair enough. There will have to be a line drawn somewhere, but there will be an argument about what the trigger point is.
My principal point is: what is the trigger point for having the body brought into action? That must be set. If the Government do not know now, can we know the process by which they will decide? The first time that we decide will be incredibly important for what follows. Will resources after that follow the individual case or will they remain in place? Let us ensure that we know exactly what is happening here, because I am afraid that without that, we are getting nowhere.
Lord Bellamy (Con)
My Lords, I thank the noble Lords for their comments and interventions. I begin by indicating and reiterating the willingness of the Government to work collaboratively across party with all these measures and to consider possible changes to the scheme that I have briefly outlined. Speaking for myself, in response to the noble Lord, Lord Addington, it seems very sensible to have those discussions in early course so that we do not get into a legislative battle when the Bill is already set in stone.
On the specific points raised, and subject to my renewed expression of willingness to discuss this, whether to give agency to the families is a very important point for further discussion. At the moment, it is envisaged that the Government should trigger the appointment or operation of the public advocate in particular circumstances, but the question of what power to give the families to trigger it is for further discussion.
Similarly, the power to establish a Hillsborough-type panel is something that we need to consider in some detail, not least with a view to avoiding duplication. We have had some expertly conducted inquiries—on Grenfell by Sir Martin Moore-Bick and on Manchester Arena by Sir John Saunders. One does not want to duplicate or overconfuse the issue; we need to work out the exact relationship between that kind of statutory inquiry and this kind of operation. Those are matters for further discussion.
The noble Lord, Lord Addington, raised the issue of scope. The concept at the moment is that of an event—a specific disaster like the three that we have been talking about: Hillsborough, Manchester and Grenfell. Whether contaminated blood, the Post Office and the NHS-type scandals that we have unfortunately experienced over the years fall within the definition is for further reflection. They are probably not events, as presently constituted, so we need to think about this further. Will this have a roving remit for everything that goes badly wrong somewhere in the system or is it directed specifically at major disasters? At the moment, the Government’s thinking is the latter but, again, I express my willingness to consider this further.
On resources, clearly this will not work unless sufficient resources are available. Exactly how that is done, where they come from and on whose budget they fall are all details that need to be refined.
We have taken a decision in principle. It is now for everyone to work collectively across the parties to sort out the details and make this work, in the interests of the families, whom we will consult fully to make sure that we have filled in the gaps, closed the loops and got a good working system to make sure that Hillsborough never happens again.
Lord Ponsonby of Shulbrede (Lab)
Before the noble Lord sits down, could he say when we might expect the victims Bill?
Lord Bellamy (Con)
I am sorry; I hope the victims Bill will be with the House shortly, in this Session.
Lord Carlile of Berriew (CB)
My Lords, as we speak about this broadly welcome announcement, the much-admired Sir John Saunders is literally in the process of delivering his final report on the Manchester Arena disaster. That is an inquiry that started life as an inquest. In the Statement, the noble Lord referred to the cost of inquests but not to the cost of inquiries. One of the most compelling conclusions one draws from the Manchester Arena inquiry—as I am sure Sir John Saunders would recognise—is the great skill and proper attention to detail of the solicitors and counsel who appeared for the families in that inquiry, some of whom had to be paid from funds raised by the families, not from public funds.
Can we be assured that the IPA will ensure that families remain properly and independently represented by solicitors and counsel at such inquiries as those into Manchester Arena or Grenfell? Is it recognised that what is being announced, far from being a cost-saving venture, may increase the costs of representation on the issues raised at such inquiries? It would be in the spirit of this announcement to recognise that as a proper inevitability of giving victims the correct voice.
Lord Bellamy (Con)
My Lords, the noble Lord, Lord Carlile, makes a very powerful point. I think it is related to all the issues we have in this particular area, in relation to legal aid, costs to the system, legal aid for inquests and other inquiries. The principle of proper representation is accepted, I am sure, on the part of the Government. How exactly we implement it and where the funding comes from is a matter for further discussion, I hope on a consensual and collaborative basis.
Baroness Chakrabarti (Lab)
In the same spirit as that question from the noble Lord, Lord Carlile of Berriew, I have a concern about equality of arms in terms of representation before inquests and inquiries across the piece. I understand concerns about spiralling costs in some of these matters, but it seems to me that often, particularly in inquests but also in inquiries, public bodies are heavily represented. It seems totally iniquitous that public money will be spent with no upper limit to represent those public bodies that may be in the frame for negligence or wrongdoing, but that there is only exceptional case funding and tighter caps on the victims and their families. Is this perhaps something that the Minister, in the collaborative tone that he has adopted, might think about? Might that potentially be within the scope of the Bill itself, or at least the package that should support this enterprise?
Lord Bellamy (Con)
I thank the noble Baroness, Lady Chakrabarti, for that question. The question of equality of arms is very much on the Government’s minds at the moment. The point has also been raised by Sir Bob Neill and the Justice Committee that there should be parity and equality of representation. We should do something to level up the ability of families who are up against what appears the be the apparatus or full panoply of the state, as part of levelling up in general. I think that the IPA is an important step in that direction; exactly how we ensure that kind of equality of arms, how it is funded and how we go about it, is something I look forward to having further discussion with all parties about.
Lord Judge (CB)
My Lords, that brings me to adopt the suggestion of the noble Lord, Lord Addington, that we really do need to know in statute what the trigger point should be. I ask that we now consider, when it is decided that we will have an IPA intervention, how that will relate to coroners and the inquest system, because these disasters almost invariably will involve deaths. One of the things during the quashing of the first Hillsborough inquest that struck the court was how many processes there had been—all perfectly legitimate and entirely in accordance with the statutes. But we do need to have one process, as the Minister said.
Finally, if this is going to be a government decision, I have two points. First, is it susceptible to judicial review? Secondly, how can we make sure that the Government respond quickly? One of the problems with this case and others is that there has been a sort of lassitude in government responses. If a disaster such as this happens, what is needed is a very urgent response.
Lord Bellamy (Con)
My Lords, I thank again the noble and learned Lord, Lord Judge, for those comments and questions. Again, I think that these are matters for further reflection; it is very important that the noble and learned Lord has put them on the record. The questions of judicial review and how quickly and so forth are for further consideration; it is certainly envisaged that the independent public advocate would be able to act very quickly.
I think, if I may say so, that the Hillsborough situation was, tragically and very regrettably, distorted by a cover-up that defeated even one of the noble and learned Lord’s predecessors, the Lord Chief Justice at the time, Sir Peter Taylor. Any system that you can devise will always have difficulty coping with that kind of situation. But, in terms of speed of process, not repeating the process, having one process and defining the trigger event, those are all very important issues that we need to reflect on further.
Viscount Stansgate (Lab)
My Lords, I welcome the Statement and am grateful to the noble and learned Lord for repeating it. In line with some of the questions that have just been put to him, can I press him slightly further on the phrase used in the Statement, “major disasters”? The Secretary of State would presumably decide on behalf of the Government that such and such an event is considered a major disaster that triggers the independent public advocate. Is that correct? Do the Government have any sense of what a major disaster is going to be defined as being?
Lord Bellamy (Con)
My Lords, I think the statute will have to make an attempt to define what it means by “major disaster”. As presently envisaged, one is thinking of what one can loosely describe as one-off disasters, such as the ones we have been discussing: perhaps the 7/7 bombings, the Paddington train crash of some years ago and those kinds of things. At least so far, government reflection has not extended to things such as the Post Office scandal, which arose over many years, or the contaminated blood scandal, which arose over many years, or the North Staffordshire NHS scandal that eventually came to light, because those were ongoing things going wrong. They were certainly in one sense disastrous, but it was not quite envisaged that they would be a disaster in terms of the statute. However, I say again that the exact scope of this new independent public advocate is a matter for close consideration.
Lord Bach (Lab)
My Lords, I welcome the Statement repeated by the Minister today, and we look forward to the legislation, of course. I go back to the inquest issue, because it is intimately connected with the Statement that has been made today. I was pleased to hear the Minister say in reply to my noble friend Lady Chakrabarti that the Government were looking very carefully at equality of arms. I put it to him that the only way of dealing with that issue—I cannot think of any other—is increasing legal aid at inquests for interested parties. Is there an alternative? If there is one, what is it?
Lord Bellamy (Con)
My Lords, the Government have already announced a review of civil legal aid, and inquests are within the scope of that review. We will therefore take the powerful point that the noble Lord has made under advisement in that context.
Baroness Manzoor (Con)
My Lords, I thank my noble and learned friend for the Statement in relation to the independent advocate. It is essential that we move forward with this as quickly as we can within the Bill. Thinking through the wider ramifications, particularly in relation to case law, what the scope is and what the trigger points are, are critical. My noble and learned friend mentioned that the staff would be permanent. For how long would those staff be permanent, and over what period? We almost look at not only the diversity in arms to call, so to speak, but also the diversity of skills and expertise, and that will change depending on what triggers those particular investigations. There will need to be an end-to-end process. I wonder whether the independent advocate is going to be someone who is going to be appointed and is going to be there for many years or whether it is a short-term appointment for a specific period, so that victims can be empowered to have confidence in the system.
Lord Bellamy (Con)
I thank my noble friend for those questions. It is not at present envisaged that a person will be permanently appointed as the independent public advocate and always there on the off-chance that a disaster happens. What is envisaged is that there should be a permanent secretariat, which I think would have to be provided by the Ministry of Justice. When a disaster happens, that secretariat would become engaged, make immediate contact with the families, the emergency services and everybody else involved in those tragic and difficult events, and very quickly—I really do mean very quickly—make a recommendation to the Secretary of State to appoint an independent public advocate.
Such a person would be appointed and, from that point onwards, would take over the job of making sure that the victims and their families are fully supported in the areas of mental health and other problems, and are prepared properly for inquests and so on. The gap that is identified at the moment—of who is looking after the victims, the families and the bereaved—would be filled by that function. Details need to be fleshed out, but that is the broad scope as envisaged, subject to further discussion.
Baroness Sanderson of Welton (Con)
My Lords, I too welcome this announcement and the Government’s willingness to have ongoing discussions to shape this. Can my noble and learned friend the Minister reconfirm that families, survivors and victims—those with first-hand experience who have not had a chance to feed into this process since the 2018 consultation—will be given a voice? As we have talked about, their voice needs to be heard now so that we can shape this correctly. Secondly, there is an assumption that there may be an inquiry. There might not always be an inquiry; it might just be that the independent public advocate and panel help people through said disaster. As part of the ongoing discussions, can we make sure that the question of whether they have the power to compel evidence will be raised? That was a big problem with Hillsborough. If there is not to be an inquiry, that may be an important part of their role.
Lord Bellamy (Con)
I thank my noble friend for those questions. I can confirm that the families will be involved in the discussion and creation of this new office. The question of the powers of the independent public advocate, particularly to compel the production of documents and so forth, also needs further discussion and elaboration.
Retained EU Law (Revocation and Reform) Bill
Thursday 2nd March 2023
(1 year, 8 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 View all Retained EU Law (Revocation and Reform) Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-IV Fourth marshalled list for Committee - (2 Mar 2023)
Lord Judge
“(2) Subsection (1) does not apply—(a) to an instrument, or a provision of an instrument, that is specified in regulations made by a relevant national authority,(b) where an instrument, or a provision of an instrument, is being replaced, restated or reproduced, until one month after the replacement instrument has been laid before both Houses of Parliament, or(c) where an instrument, or a provision of an instrument, is not being replaced, restated or reproduced, until one month after a Minister of the Crown has made a statement to that effect in each House of Parliament.(2A) Where subsection (2)(b) or (c) applies to an instrument, or a provision of an instrument, and both Houses of Parliament resolve prior to the date in subsection (1) that the instrument be retained, then the Government must make regulations under subsection (2)(a) specifying that instrument.”Member's explanatory statement
This amendment would require the Government to set out in advance what they propose will happen to each instrument covered by the sunset Clause, giving Parliament the ability to scrutinise these decisions. It would also allow Parliament to overrule the Executive and choose to retain specified instruments if both Houses agree.
Lord Judge (CB)
My Lords, I feel like Henry V before the siege of Harfleur. Looking around, I see:
“greyhounds in the slips,
Straining upon the start”.
Just like those poor chaps outside Harfleur, I suspect your Lordships all want it to be over quickly, and that is my intention.
This amendment is very simple. It is my answer to the letter I received from the Government about the Bill which I read out to the Chamber at Second Reading. It does not seek to preserve a single law, in any of the 4,000 pieces of material we are looking at, which Parliament wishes to revoke. Equally, it does not seek to revoke a single law which Parliament wishes to retain. It has nothing to do with that. Its objective is to ask that Parliament has a chance to look at what is proposed and to examine those proposals, not for a very long time, so that Parliament and not the Executive can decide.
If this amendment, or any of the amendments in this group, had reflected the statute in draft—the Bill, in other words—most of the arguments we have had over however long it has been would have been quite unnecessary. Maybe an amendment of this kind would have achieved that; I am not particularly supporting my own but all the amendments in this group.
Let us just go back. Probably the most persuasive argument against joining the Common Market in 1972 was that it gifted power over our legislative processes to an institution which was not wholly elected here and was not answerable exclusively to the electorate in the United Kingdom. That argument was rejected and lost, and the result is that, through the processes which we supported, we have been subject to laws directly enforceable here in the United Kingdom, created by a system of directions from the Common Market—now the European Union—which were converted into unchallengeable statutory instruments. As we now know, there are something like 4,000 still extant.
Given the time available, I will not explain what a pernicious effect all that had on the way in which statutory instruments have taken over primary legislation. But, importantly—I am stating the obvious, yet it is overlooked from time to time—what we call EU retained law is British law. It is our law; it came from an outside source and was introduced here to be enforced here, through our statutory and parliamentary system, but it is our law.
I cannot begin to imagine how the country as a whole would react if, instead of being able to dismiss it as EU retained law, we were able to look at this problem: we are going to give the Government the power to revoke all the laws relating to the environment and to employment—all the issues argued about in this House. Having done that, we will give them the power to bring in new ones, changing the way in which they operate. If we did not have this disguise of “EU retained”, I venture to suggest that no Government would be doing what this Government are doing about this particular group of laws. Until we appreciate that we are dealing with our law, which is subject to this Bill, we are not facing the reality of it.
Let us go to the most powerful argument in favour of Brexit: legislative processes should be returned to Parliament. Of course, that is the answer to “What happened when we entered the Common Market?” We will change it and go back to where we were. I do not think that “Taking back control” was just a happy slogan; it reflected a true constitutional principle. However—this is the heart of the amendment—it did not follow that this power should be given to a Minister of the Crown. It is as simple as that. The objective was not for the Executive to take back control; it was for Parliament to take back control. If we are going to honour the whole basis on which taking back control was designed to work, and was seen and appreciated to be going to work, we have to do what is required and return this power to Parliament.
The idea that we will suddenly cease to have secondary legislation is nonsense; we need secondary legislation. However, for these issues, we need proper examination and proper scrutiny. The proposal in this amendment is that we should have it. It does not propose—and could not, as I emphasised earlier—the survival of a single EU law. It could not, unless Parliament agreed. That is the objective of the amendment.
I understood the argument at Second Reading that this Bill does no more than was done to us by the EU, so why should this power that was given to the Common Market not be exercised by a Minister of the Crown? In effect, the argument was that we should just obey what we are told. However, those who advanced that argument had believed it to be wrong—a mistake and a constitutional aberration. If you believe that, surely the mistake that was made in 1972 should not be repeated here in 2023. I beg to move.
Lord Lisvane (CB)
My Lords, I will speak to Amendment 141A in my name, which has cross-party support, for which I am most grateful. Noble Lords in all parts of the Committee have been fiercely critical of the cut-off date. However, even if the present draconian date is replaced with something a little saner, the task of assessing and taking decisions on so many instruments will be huge.
My amendment, like several others in this group, as the noble and learned Lord, Lord Judge, has remarked, is designed to give Parliament a say in that process. As many noble Lords on both sides of the issue acknowledge, some of these instruments will be of no great significance. But there will be many of much greater weight, whose survival, whether in their original or an amended form, will be of huge importance to our fellow citizens. There will of course be instruments, as the noble Lord, Lord Deben, pointed out in his lapidary intervention on the first day of Committee, whose survival unamended will be almost a matter of course because we would not want to get rid of them—nobody would.
In this group, Amendments 43, 50, 62A and of course the amendment we are now specifically debating seek to give an active role to Parliament in an otherwise Executive-dominated process. My amendment goes a little further in providing for a substantial parliamentary assessment—including whether there has been adequate consultation—and for a process of suggested amendment, as part of what one might call this triaging activity. It does not deal with the unannounced repeal, which is a real problem. It could easily be adapted to do precisely that on Report, if that were acceptable. Of course, the amendment of the noble and learned Lord, Lord Judge, does that.
Lord Beith (LD)
My Lords, as well as producing a helpful amendment, the noble Lord, Lord Lisvane, produced a helpful phrase: “unannounced repeal”. That neatly gives a focus to what we are talking about: the washing down the plughole of things that have not been announced or discussed, without the involvement of any parliamentary process specific to them, beyond the Bill itself.
I support the amendment of the noble and learned Lord, Lord Judge. In all the discussions when he and I were members of the Constitution Committee of this House and we considered the EU withdrawal Bill, I do not remember anyone saying, “What will happen is that we’ll set a very short timetable, and everything will have to be dealt with by extra-parliamentary processes during that short period”. We had many discussions with senior judges and others, and the assumption was that law would be moved over—or assimilated, to use the Government’s preferred phrase—into UK law and then dealt with as time and necessity required. Some things would be changed quite quickly because they needed to be updated, but others were doing no harm and could be dealt with later. My feeling was that obsolete or irrelevant things would best be dealt with by something like the Law Commission process, which goes through legislation, identifies what does not need to be on the statute book any more and brings in legislation that deals with it. There were perfectly good procedures available to us by which we could have done that. Instead, we have this fierce timetable.
I therefore support the aims of Amendment 141A, which would create a sifting process, just as I support the aims of Amendment 32. As I said, Amendment 32 is significant because it deals with the unannounced repeals. It is bad enough having inadequate parliamentary processes to discuss those measures which will replace or modify retained European law; I think we all know how limited and inadequate the processes are. Although I agree with the noble Lord, Lord Lisvane, that amendable statutory instruments are a difficult route to go down, there are a few occasions when it happens—but it is really quite difficult. That suggests again that primary legislation should be the vehicle for making significant changes which we probably would never have made by secondary legislation if we had been doing it ourselves rather than being part of a European process. I say in passing, however, that occasionally discussions about how this European legislation was created slightly ignore co-decision in the work of the European Parliament, which is surprising given that the Minister was himself a Member of the European Parliament.
However, I am as worried about the unannounced repeals section—that is, those things which will disappear or effectively be taken off the statute book simply by the decision of a Minister. The noble and learned Lord, Lord Judge, likes to talk about Henry VIII powers. The nearest parallel I can find for what is being done is the Declaration of Indulgence of 1672, with the crucial difference that that declaration had a very noble purpose: to provide a degree of religious freedom to Catholics and dissenters. It is still not a very desirable process, because basically it was His Majesty’s Ministers saying, “We’re never going to get it through this Parliament, so we will just do it.” That is how the Declaration of Indulgence worked. I think that we have better procedures available to us now and that we should use them, and the Executive should not seek to legislate or dispense with legislation. That is a particularly dangerous precedent. If the Executive can dispense with legislation that they do not like without any action by Parliament, we are in very dangerous waters. Of course, they do not have to do anything; they just have to leave it to the sunset—the sun will set surely as it always does. In this case, the sunset takes with it legislation which they identify as stuff they do not want but which Parliament might wish to keep, might wish to reinforce its view on or might wish to have modified but should have the opportunity to consider and decide on. The purpose of Amendment 32 is to ensure that Parliament cannot be ignored in this process.
My final point arises from the helpful comments of the noble Lord, Lord Benyon, in the House on 26 February—no, it was last night.
Lord Beith (LD)
Was it Tuesday? The dates of this Bill are becoming a blur in my mind.
The noble Lord, Lord Benyon, said:
“Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it”.—[Official Report, 28/2/23; col. 205.]
He repeated that later in the proceedings, and I think we were all pleased to hear it, particularly as it related to environmental legislation, public health and other important things. It was a very significant thing he said, but it is not how the Bill is constructed; the Bill is constructed to make it so easy to repeal the legislation that a Minister does not really have to do anything other than not put it in the box marked “reform” or “reintroduce”. I would like to feel that the attitude taken by one Defra Minister will not only be supported and reinforced by the Leader of the House and others on the Front Bench but might start to colour the attitude of other government departments as they see how undesirable it is for law to be removed or dispensed with at the whim of Ministers or simply because everything goes that way unless selected otherwise. This is not an acceptable way to proceed.
Lord Carlile of Berriew (CB)
My Lords, I will speak to my Amendment 44. I am grateful for the explicit support of the noble Lord, Lord Kirkhope, who apologises for having had to leave for an engagement in the north.
About three weeks ago, I stepped from the golden sands of the Cross Benches into my first meeting of the Delegated Powers and Regulatory Reform Committee. I pay tribute to the noble Lord, Lord McLoughlin, for his objective and clear chairing of that committee, which I found very helpful as a newcomer. The first meeting that I attended took me straight into constitutional quicksand, rather than golden sands, in which I was looking at provisions which seemed to do the exact opposite of what we were told was the purpose of Brexit. The report of the Select Committee, which I recommend strongly to noble Lords, is clear that much of the Bill is nothing else than a dilution of parliamentary scrutiny and, therefore, a dilution of parliamentary democracy itself.
I hope that this debate will not develop into a discussion about whether we should have Brexited or whether we should remain, because that is not my intention at all. For me, this is a debate about what Brexit is intended to achieve and whether we are achieving it in a way that is consistent with parliamentary practice—a key part of our constitution. As I recall, the slogans of Brexit were undeniable. I overheard one about “bringing our democracy home”. However, the Bill actually sends our democracy from this building to the intellectual suburbs, where it will not be part of our law-making process. My Amendment 44, which is a probing amendment, is an attempt to show how easily a solution can be reached which does not dilute our democracy. To devise Amendment 44, I reached into my metaphorical bathroom cupboard and pulled from it the sharpest, but non-existent, instrument: what somebody else called Occam’s razor. That is the principle by which you look at a complicated problem and see if there is a series of simple solutions; you usually find that they are much the best way of solving that problem.
I respectfully suggest to your Lordships that we should set up an independent body led by a judicial figure, preferably a serving Court of Appeal judge—as leads, for example, the Law Commission, although this would be a different kind of commission from the Law Commission. With colleagues and staff, that body would consider the questioned laws in real time on the basis of the demands of time placed by this legislation. It would produce reports with recommendations, including for modification, and those recommendations would be placed before—yes—Parliament for the approval or otherwise of both Houses. Thus, we would sustain parliamentary democracy entirely by this simple process; it is Occam’s razor at work. Ministers would of course play their part; they would take part in the discussions with the commission, would be able to suggest changes and objections, and would be free to make representations to both the commission and Parliament—but Parliament would decide.
I have seen an opinion of Sir Jeffrey Jowell KCMG KC on the Bill, on the instructions of a number of respected NGOs. I do not simply use Sir Jeffrey as an argument ad maiorem; he is a most distinguished and authoritative figure of the law on constitutional matters. I will quote some of what he said in that opinion:
“The claim that the Bill promotes sovereignty is hollow, as it is an exceptional example of Parliament relinquishing its key responsibilities … Insofar as the Bill may be justified by some procedures being in place for the scrutiny of Statutory Instruments by Parliament, this rings equally hollow, since those procedures provide no opportunity to amend the secondary legislation and in practice have rarely been effective in halting its passage … The Bill also offends the rule of law which requires our law to be accessible, clear and predictable.”
Those citations, and there are many more in his opinion, really tell the story about the Bill and what is at its centre. My draft new clause may be the right or wrong template—I do not mind whether my amendment or some other amendment passes—but we have to try to agree something that sustains parliamentary sovereignty, which the Bill does not. Let us not sully Brexit by the criticism that is available at the moment that it has diluted and damaged our democracy at home.
Lord Whitty (Lab)
My Lords, I have two amendments in this group, of which Amendment 62A is the key one. It covers much the same ground as that of the noble Lord, Lord Lisvane. It would bring this whole process back under parliamentary scrutiny by establishing a Joint Committee of both Houses which would do the review that we understand is currently taking a lot of the time of civil servants in Whitehall: their work would be absolutely germane to the work of this committee. My Joint Committee is similar to that proposed by the noble Lord, Lord Lisvane; the only substantive difference is that my amendments in this group are actually remnants of a rather more ambitious original intention—namely, to delete all the first three clauses of the Bill and establish, right from the beginning, that this was a parliamentary process, not a process by the Executive alone. I still think there is merit in attaching this concept right at the beginning, before we go into more detail.
The other amendments in this group all attempt to bring some control back to Parliament. My noble friend Lady Chapman and the noble and learned Lord, Lord Judge, wish to clarify what laws fall into which groups; then we would have a process for dealing with them systematically—through the Joint Committee, in my view, in the first instance, and then being brought back, with that Joint Committee’s recommendations, to Parliament. Of course, it is not intended that that would preclude any other initiative by the Government. If the Government wish to do this more urgently, they have every right to bring legislation, either in the form of an Act or a statutory instrument, in the normal way. The Government have raised the issue of reviewing the totality of anything that has any smell of Europe about it but, if that is what they intend, let us do it in a parliamentary way.
I just want to recall two episodes of history which might perhaps remind those who oppose departing from the Government’s view of this. The first is relatively recent. In 2018, when we were still in bitter post-Brexit arguments, many of us nevertheless accepted that we had to clarify the position of European-derived law in this House and in Parliament as a whole. We accepted the suggestion of the Government that they would make clear that EU law that had been accepted during the 50 years of our membership of the European Union and its predecessors would be part of UK law. We did not realise at the time that it was not quite the same as the rest of EU law. The reasons we accepted it were, first, that we needed some stability, for business and other elements of society, immediately following the completion of Brexit; and, secondly, that the Government needed a bit of time to consider how they would deal with that law—whether they wanted to change it, amend it or revoke it. We never contemplated, at that time, that we would have a process that completely departed from normal practice in Parliament and effectively put so much power into the hands of Ministers. That power, if it were through a statutory instrument, would be subject to only minimal scrutiny—but perhaps more importantly, and equally or rather more worryingly to parties outside, is that a whole chunk of what was European law, and is now deemed to be retained EU law, could actually fall in less than 10 months’ time, without any discussion whatever in this House or another place. That also needs to be dealt with at this stage. We need to delete the sunset clause for the end of this year and, if people think it is necessary to have an eventual sunset clause, then let us accept what the noble Baroness, Lady McIntosh, was arguing in our last sitting.
The other episode of history is perhaps a bit more esoteric, but it might appeal to some on the Conservative Back Benches and the Brexiteer press, if I can put it that way, who claim that we have escaped the tyranny and domination of Brussels. There are plenty of precedents in history for this. When all the countries of the British Empire attained their independence from the old Commonwealth—the old dominions in Canada, Australia and New Zealand, more than a century ago, and even the establishment of the Irish Free State, right through to the countries of Africa and the Caribbean—part of that independent settlement, except where it was surrounded by war, was always that the rules which applied during the colonial period would continue to apply until the new independent judiciary and legislature changed them in Jamaica or the Irish Free State, for example. That remained the case in almost every country which gained independence from the British Empire. Those that did not follow this precept—Zimbabwe, for example—are usually crucified by the right wing in this country for doing so.
In most cases, there was a peaceful transfer of power, as there has been a peaceful transfer of power from Brussels back to this Parliament. We should follow the example of the Macmillans and the others who gave independence to all those countries. Even with the establishment of the Irish Free State, as I said, you still get Irish lawyers in the Irish courts quoting case law from Victorian times. This issue has an implication for case law as well, which we will come to at a later stage.
I hope that whatever the Government do in relation to this debate, they will see all the different proposals in this group and elsewhere and bring back on Report a proposition of their own which restores the systematic assessment of EU retained law to Parliament—with decisions resting with Parliament, not in the hands of Ministers—and prevents it from disappearing as the bells chime on New Year’s Eve later this year.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I have put my name to two amendments in this group: Amendment 32 tabled by the noble and learned Lord, Lord Judge, and Amendment 141A tabled by the noble Lord, Lord Lisvane. I have done so because, if the Government were to accept them, they would significantly enhance the ability of Parliament to scrutinise the legislation arising out of this Bill more effectively. They would do so by introducing for the first time the beginnings of a triaging system, which would enable the House to focus its efforts on those probably relatively fewer bits of legislation that really matter and ignore the rather larger number that do not.
My noble friend on the Front Bench has taken a lot of “incoming” over the past couple of days. I have some sympathy with the conflicting advice he has been given. If I were to distil what he has been criticised for, I would say that the concerns about the Bill relate to uncertainty about the Government’s approach to specific policy areas on the one hand, and the lack of parliamentary involvement on the other. These two amendments—and indeed some others in this group—would go a long way to answering those criticisms and concerns. I hope my noble friend will listen carefully to the arguments being put forward, because he might catch the sound of the cavalry arriving to bring some help to his rather beleaguered post.
We have heard a magisterial speech from the noble and learned Lord, Lord Judge, on Amendment 32. I am not a lawyer, and in such circumstances, to try to add to a speech made by a past Lord Chief Justice would indeed invite an accusation of hubris. Therefore I hope that Members of the Committee will come with me, if not into the weeds then into the grass—the long grass—and explore on a more practical level what I believe these amendments will achieve, how important they are in ensuring that Parliament is not taken for granted, and how they will lead to a greater level of public acceptance of the implications of particular policy choices, so reducing disconnect between the governors and the governed. Finally, in consequence of all this, I will explain why I hope my noble friend on the Front Bench and the Government will give very serious consideration to what the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, have proposed.
I want to draw on my experience of the past three years as chairman of the Secondary Legislation Scrutiny Committee. During that time I have seen the sands of power and influence trickling through Parliament’s fingers, which has meant that the Government have gained more power at the expense of Parliament. This has long roots here. It probably began with the Blair Government, who had a very substantial majority and thought they could use secondary legislation to push stuff through quickly. It has had twists along the way with things such as the pandemic, where emergency legislation has been used for purposes for which it was not originally intended. However, the real game-changer has of course been, as we all know, the emergence of skeleton Bills—framework Bills—of which what we are discussing today is a classic example.
It is worth pausing momentarily to think about what my noble friend is going to say on why this group of amendments should not be accepted. I think the first thing the Government will claim is that, if they were to be accepted, it would be likely to lead to the government machinery being gummed up by additional legislative time taken. I reject that—it is not true. In the 600 or 700 instruments that the SLSC looks at every year, between two-thirds and three-quarters are entirely uncontroversial—they are essentially technical—and I am firmly of the view that no lesser a proportion of the regulations that will come from the Bill will fall under the same category. They will essentially be technical and uncontroversial and will not give rise to controversy, which means that your Lordships’ House and the Government will have a much smaller population of instruments on which to focus their attention.
The second thing that I think the Government will allege is of course that both Houses give their consent to each regulation. We have all heard the noble Lord, Lord Krebs, who is not in his place today, on the question of amendability, and the noble Lord who just spoke referred to that as well. Technically, we know it is true, but the consent is the equivalent of having a pistol at your forehead which will fire bullets marked “constitutional crisis” and “the Strathclyde review”. In those circumstances, I argue that the consent is grudging at best.
What is really valuable about these amendments and indeed the others is that for the first time we can begin to concentrate on what really matters. This is by any standards an immensely complex Bill, and the actions taken under it will set the course for this country for many years. This House—indeed, Parliament as a whole—is entitled to know what the Government is thinking, not just in broad statements of principle but in their detailed application, which is, after all, what really matters to every citizen. If my noble friend and the Government are concerned about the generally adverse reaction to the Bill, I gently remind them that sunshine will be the best answer and these two amendments represent sunshine.
I am not against the Bill—I voted to leave the European Union and I believe it was the right thing to do—but I am also a democrat, and I voted to bring back powers to the United Kingdom. Although this is happening, sadly, as my noble friend Lord Young of Cookham memorably pointed out at Second Reading, those powers have been sent to the wrong address. If I may continue with his analogy, I regard these two amendments as attempts to redirect the repatriation of powers to their proper destination, and that is why I support them.
Baroness Chapman of Darlington (Lab)
My Lords, I follow the speech of the noble Lord, Lord Hodgson, which was incredibly helpful and really got to the heart of what this group of amendments seeks to do. I could support any one of them; they all try to do a similar thing in slightly different ways.
The amendment I have tabled, with the support of the noble Lord, Lord Fox, seeks to deal with perhaps the most dangerous element of the way the Government are approaching this task, in that it would prevent what the noble Lord, Lord Lisvane, described as the unannounced revocation of law. Things happening by accident is what we are increasingly concerned about, especially given the contribution of the noble and learned Lord, Lord Thomas, about the inadequacies of the way the Government may be—we hope to find out more about what they are doing—endeavouring to identify all the retained EU law.
There are many concerns about the Bill, which colleagues have described in detail in this debate, but there are three which stood out to me above some of the others when I first read the Bill. The first is the total lack of clarity about which laws are going to be revoked. The second is the regulatory cliff edge which means that all retained law will be revoked by default—no matter what the noble Lord, Lord Benyon, said—at the end of this year. The third is the complete lack of parliamentary accountability and consent in the process. This amendment addresses those three concerns. Clearly, other concerns are addressed by other amendments, which I also support.
Amendment 43 is as simple as we could craft it. It is based on common-sense principles that I believe noble Lords from all sides can agree: that if the Government want to revoke a law, they should be able to, but they should be able to tell Parliament which law it is that they want to remove. The removal of the law should be an active choice, not a passive default, and should require Parliament’s consent. There is nothing in this amendment that prevents the Government achieving their stated aim of dealing with all retained EU law. Our amendment requires simply that, if the Government wish to revoke a retained piece of EU law, they must proactively submit to Parliament a list of the specific items they wish to revoke. We are not stopping anything happening; we just want this to be done in a much safer way. Both Houses would then need to vote to approve that list. Law which is not specifically revoked is retained. That is it.
As was said at Second Reading, it is perfectly reasonable for the Government to review law that has been retained from our long period as a member of the European Union. We have no argument with this. We might not like what the Government want to do and the decisions that they might make, but we do not argue with the Government’s intention to examine this class of law—although it is just UK law. It is a bit like, I suppose, if the Labour Party were to win an election and say, “Do you know what? We did not like the way that last Government behaved. We’re going to sunset everything they did and hope for the best”. I should say that that will not be in our manifesto; I say it just to highlight the insanity of the way this Government are going about this.
The amendment does not frustrate the fundamental process. It would require the Government to follow a very reasonable, proportionate approach. It could be done in a timely way—I know time is important to the Minister, who wants this to be done quickly, and this could be done relatively quickly. Through this amendment, we would have a very simple but democratic mechanism for changing EU law. It would ensure that the process of reviewing retained law does not cause as much uncertainty as the Government’s regulatory cliff edge is generating today. It would mean that important decisions about workers’ rights, environmental standards and consumer protections cannot happen by default, or worse, by accident. It would restore Parliament’s proper, sovereign role.
I know some have objected to the processes that created these EU laws in the first place. The Minister is one of them, I think, and I respect that view. He has said that he regarded that process as distant and undemocratic. I do not agree but he is entitled to hold that view. However, it is really difficult to take those complaints seriously when the Government are choosing to support the nonsensical, undemocratic Executive power grab that this Bill, as currently drafted, represents. It is reckless.
Your Lordships’ House, or the Government, should amend the Bill with a simple, straightforward process that sits much better within our constitutional traditions. My amendment is a common-sense amendment that respects the sovereignty of this Parliament, and I commend it. However, I would be very happy to work with noble Lords from all sides—indeed, I look forward to it—on coming together should the Government choose not to take the recommendation embodied by this group of amendments. We would be neglectful if we allowed this Bill to proceed any further without the safeguards that the amendments in this group would provide.
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.
Lord Hamilton of Epsom (Con)
My Lords, I am absolutely amazed that the noble Lord, Lord Fox, has such faith in the bureaucrats of this country such that, if you do not give them deadlines, they will still keep to the timescale. It is remarkable when you think that one of the tasks of all our departments is to review their legislation to see whether it is still current. At intervals, Ministers have said that they will produce only one new law in return for two revoked, but nothing ever happens. This is one of the inadequacies of the system in which we live, but we will let that pass.
I listened to the remarks of the noble and learned Lord, Lord Judge, with great attention, as I always do. But this is the first time I actually agreed with most of them. Unlike the noble and learned Lord, I campaigned to leave the EU. I did not actually stand on people’s doorsteps and say, “We have a wonderful scheme here. We have a drastically undemocratic system of people living in Europe dictating the laws that we should have in this land. But we are not going to restore parliamentary democracy; we are going to hand over all this power to the Executive.” If I had said that on doorsteps, and people like me who wanted to leave the EU had put that argument forward widely, it is quite possible that we would not have left the EU at all.
I am spoiled for choice with the amendments I could back in this group, but I very much support the noble Lord, Lord Whitty, and his Amendment 62A. I think that we need a sifting committee and the all-party one that he advocates is very much one that I would support.
I have been told that at least 40% of our retained EU legislation will be put back on the statute book unchanged. I suspect that that is a rather low estimate and will rise, particularly given what my noble friend Lord Benyon said about retention being the default position. There will not be much controversy about that and the committee of the noble Lord, Lord Whitty, could decide to do that by secondary legislation.
We then come to EU law that is completely irrelevant to this country. Isolated cases have been brought up, such as reindeer between Denmark and Sweden, and fishing in waters nowhere near the United Kingdom, as my noble friend Lord Benyon mentioned. We have also got the export of lemons. I do not think we are going to be doing a lot of that in the future—though with global warming, you never know, do you? Then we have got olive oil; I do not quite see us growing that number of olive trees in the near future, but it is obviously very important to the southern countries of the EU. All of that can certainly be binned, and I would not have thought that there would be any controversy about that whatever.
I suspect that the other amount of law that the Government are thinking of getting rid of, which is more difficult, is the area where there is already legislation in the United Kingdom which does this job better than the EU legislation. That is something which will have to be argued out, which is why I think the role of this cross-party committee could be critical.
We then come to other regulations which need very minor amendments. As we know, one person’s minor amendment is somebody else’s major amendment, so I would be more than happy that the committee viewed that legislation as well. If it was happy that the amendments were very minor—just changing dates and things of that sort—they could allow that through statutory instruments and secondary legislation. What is much more concerning is the ability that the Government seem to be giving themselves to scrap an EU law and introduce a completely new one. This is not what we voted for when we voted to leave the EU and is an extraordinary transfer of power. That is where I hoped that this committee would come in and say, “No, this must be dealt with by primary legislation.”
To sum up, I would be more than happy to back an amendment similar, if not identical, to that of the noble Lord, Lord Whitty. I will campaign among all the people I know to actually support it as well—and I think that I possibly represent one or two of the people who left the EU. If we do that, we might get an overwhelming majority which might make this Government change their mind.
Lord Kerr of Kinlochard (CB)
I am very glad that I gave way to the noble Lord, Lord Hamilton. I hope that the Government will reflect on such criticism coming from such a quarter. The noble Lord, Lord Hamilton, and I disagreed violently over Brexit, but the criticisms that he is making now, much more clearly than I could, are the criticisms that I want to make now. So the opposition to the Bill does not come under the remainer/leaver axis—it comes under the “good Government” axis.
There are just two points that I want to raise. I support the amendments in this group, particularly the amendments in the name of the noble and learned Lord, Lord Judge, the noble Lord, Lord Fox, and the noble Baroness, Lady Chapman, Amendments 39, 42 and 43. The first point I want to make is about unannounced repeal—the point made by the noble Lord, Lord Beith—although it is unannounced and undiscussed repeal that really bothers me. The other is about default.
On unannounced and undiscussed repeal, when we were last in Committee, on Tuesday, I asked what Parliamentary procedure would be available when a Minister decides that a piece of our law should be abolished. What procedure will enable Parliament to debate that decision? The Minister replying to the debate said that she would reflect on the point that I had made. I have not yet heard an answer, but it seems to me rather a significant point. Here we have a situation which I believe is improper in constitutional terms—and it is certainly absurd in practical terms that laws should disappear by administrative fiat, privately. I do not know how courts will be expected to apply that, and I do not know how citizens are expected to behave in relation to the law, if changes in the law have been made by administrative fiat, privately. I think it is constitutionally improper that that should happen without the opportunity for some discussion in this this place and the other place. I think it is important to address the question that has been raised by the noble Lord, Lord Beith, and I hope we are about to hear an answer.
Baroness Chapman of Darlington (Lab)
The noble Lord’s speech is quite intriguing. I have a question for him, although I do not know whether he will be able to answer it here and now. Is he suggesting that, if a piece of law were to be revoked because it was not included on the dashboard and had not been discovered through the search process, and that piece of law is later identified by a citizen and relied on in order to take a case to a court, that court would then have to determine whether that piece of law was retained EU law? What effect would that have on the deliberations of that court at that point?
Lord Kerr of Kinlochard (CB)
That is exactly the point I was going to address under my second heading, “default”. As I read the Bill, those laws that are not identified in time automatically vanish. As I read the Bill, when the clock strikes midnight at the end of the year, anything that has been omitted but is still the law of the land on 31 December is not the law of the land on 1 January. That is bizarre. I think the Government have to accept something to deal with that problem. It is dealt with in Amendments 39 and 42. It is not quite dealt with in Amendment 43, but that amendment could easily be expanded to deal with it. It seems to me that, when they respond to this debate, the Government need to tell us what the answer to that question is as well as, I hope, telling us the answer to the question I asked on Tuesday.
Lord Bach (Lab)
My Lords, I apologise to the Committee for having not spoken at Second Reading, but I am keen to support the principle behind this group of amendments, and I am pleased to have put my name to Amendment 141A, tabled by the noble Lord, Lord Lisvane. At an earlier stage of this Bill, the noble Lord, Lord Lisvane, described it as a beta-gamma piece of legislation. I think he was being a bit kind. Omega strikes me as being more suitable. I agree with what the noble Lord, Lord Deben, said at an earlier stage as well, although I obviously say that from a different political view. He wanted to understand how a Conservative Government could produce this Bill. I cannot understand how any Government could produce this Bill, Conservative or otherwise.
However, the Bill is with us and at the very least it needs amending severely. All the amendments are in different ways saying very much the same thing: give Parliament its proper role in deciding what legislation should be repealed or replaced. I do not understand how a Government who only this week have, perhaps rightly, boasted of their democratic credentials in terms of an important announcement can produce a piece of legislation like this that just gives power to the Executive and, frankly, bypasses Parliament. If it was not so serious, you would think this was a toytown Bill and a toytown piece of legislation. It is really not worthy of any British Government, which is why I very much support the principle behind these amendments and hope even more that the Government will see the good sense in them.
Lord Deben (Con)
My Lords, I rise not least to celebrate the fact that I agree so strongly with my noble friend Lord Hamilton. We are as one, and it does not matter what we thought when it came to the referendum. Everybody knows that I am a passionate remainer, but I am one of those who draws a line under that because I want to get on, with Britain, which I believe we have to. I want to do that in the British way and, surprisingly enough, in the Conservative way. That means three very simple things, and these amendments enable us to do them.
Lord Wilson of Dinton (CB)
My Lords, as the former Permanent Secretary to the noble Lord, Lord Deben, I would like to tell your Lordships that that is how he was as Secretary of State. I am so proud of the speech that he made, because I agree with it all. I also agree very much with the noble and learned Lord’s amendment.
I think the noble Lord, Lord Hamilton, should begin to be a little concerned that former civil servants and diplomats are beginning to mobilise behind him, because I agree with virtually everything that he said, which should be unnerving—except for one point. I want to focus on the idea of “incentivising” the Civil Service. The view that I have expressed already is that the work should have been done in government before the legislation was introduced, and that is still my view. We are discussing an administrative task, not a legislative one. I know that the noble Lord knows how to incentivise the Civil Service, because in the 1980s, when I worked for Mrs Thatcher, he used to sit in the Cabinet Room behind her listening to her “incentivising” her Ministers and civil servants. Although I cannot see him right now, he jolly well knows how it is done.
What we should have is the Bill being paused or withdrawn. The Prime Minister should assemble all the Permanent Secretaries, together with the heads of the Civil Service, and the Minister of State at the Cabinet Office, who is sitting on the Front Bench. Then he should say to them, “I want this sorted out by the end of, say, June”—the noble Lord, Lord Hamilton, described this accurately. After they report back, the Government should then introduce in Parliament whatever legislation is needed to implement it. We would then have something to discuss, rather than operating in a policy void as now.
By all means, let us accept one of these amendments—I would go for that of the noble and learned Lord, Lord Judge—but let us recognise that this is an administrative task. It should have been handled properly, in an administrative way, before Parliament had to spend time on it.
Lord Hacking (Lab)
My Lords, it is a great delight to follow the noble Lord, Lord Wilson of Dinton, with whom I have university connections, and even more of a delight to follow the noble Lord, Lord Deben, with whom I used to joust in the Cambridge Union more years ago than I can remember. He was persuasive then and he is persuasive now.
Before I speak to the two proposals I have put my name to, I will just refer to what my noble friend Lord Whitty said about the devolution of laws when the Empire, or the Commonwealth, was broken up. He was entirely accurate in what he said to your Lordships. I raise this point because I remember particularly that, several years ago, I was defending an accused who had been convicted in the courts of Jamaica. He was attempting to appeal to the Privy Council in London and I was his counsel. We had to refer back to the relevant laws in Jamaica and, in doing so, to go back to a homicide Act of 1926 and to a Court of Appeal presided over by Lord Reading. That was disastrous to my client’s case. I am very happy to tell your Lordships two things: first, that my client was relieved of the death penalty which hung over his head when I took on his defence and, secondly, that in Jamaica they paid swift attention to those out-of-date laws, so that Lord Reading’s pronouncement is no longer binding in Jamaica. That is the process which one would expect to happen if we adopted EU law, as I say we should; then if something uncomfortable comes to our attention, it is dealt with in a fair and swift way.
The two proposals that I have put my name to are Amendment 42 and the opposition to Clause 1 standing part of the Bill. I will also speak to my noble friend Lord Whitty’s Amendment 44A. I would like to address the parliamentary consequences of any of those amendments being voted in on Report. Given the large opposition that has been put to a number of provisions in the Bill, which is exactly what these three proposals are doing, the high chances are that they will succeed in Divisions on Report. The consequence of that, which we should take strongly in mind, is that it would kill the Bill because all three start from the premise that Clause 1 should be left out. I think the amendment of the noble and learned Lord, Lord Judge, has a different introduction, so let us just refer to those three and their consequences.
Lord Hannay of Chiswick (CB)
My Lords, I support Amendment 32 in the name of my noble and learned friend Lord Judge, and Amendments 42, 43, 44 and 141A.
I will make two very short points because so many of the points have been made more eloquently by previous speakers. First, the amendments we are discussing are not substitutes for removing the cut-off at the end of 2023. They are complementary to it for two reasons. The processes quite rightly being proposed could not all be got through in the time available before the end of this year; you also solve the cart and horses problem by removing the 2023 date. I hope we will not forget that when we come back to all this on Report, and we will see these two things as complementary.
Secondly, the arguments about the EU-based legislation that is completely immaterial to us—on reindeers, lemon exports and so on—are completely irrelevant. If you go back through the last 500 years of statutes past, the statute book is full of things that are completely irrelevant to the way we live now, and which are not enforced or implemented in any way. We do not seem to lose any sleep over it. Let us not lose any sleep over the reindeers or they will not bring the Christmas stocking with them.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have not signed any amendments in this group—I was not asked, and I was not quick enough to get my name down. All of the issues have been covered absolutely amazingly by other noble Lords, so I will restrict myself to talking about the politics. The politics of this particular Bill are extremely interesting. I support all the amendments in the first group, simply because they are sensible and practical, and I like practical outcomes. But, at the same time, we ought to throw the whole clause out, and I do not see any option to do that. We want a democracy when we have finished voting on the Bill and, if it goes through as it is, we will not have one.
I will ask two political questions. First, why do we have the Bill at all? Quite honestly, it is terrible piece of legislation that is absolutely outrageous. In the 10 years I have been here, I have almost never had a glimmer of sympathy for the Government. But, having seen the Bill, I do: it is like the last gasp of a dying creature, and that dying creature is the popular Tory party of 2019, when it actually had some credibility and popularity, as I said. That has seeped and ebbed away, to the point that it is now in the most extraordinary position and putting forward legislation like this. It is an ideological monstrosity that caters to the worst parts of the right wing of the Tory party, and it will not have support.
I think the Conservative Party expects to run out into the streets and say, “We did it—we got rid of all EU law. Brexit has finally happened”. But, of course, that is simply not true: a lot of this is not EU law but British law. I am sure that the Minister himself had a hand in producing some of it, as a Member of the European Parliament. For anyone who has been in the European Parliament to say that this is pure EU law is complete nonsense. I do not want to accuse the Minister of telling lies, but it is nonsense. So why is it here? Is it here because the Conservative Party wants to get some sort of popularity or something? Why is it here? It is not a worthwhile Bill; it is a ludicrous Bill to bring here. There has been so much learned opposition, but still the Government insist on pushing it through.
My second political question is: what happens afterwards? Of course, it is all very well to put this through, but what happens when Labour is in government? Will the Conservative Party really be happy that Labour has these powers and can just whip out a piece of legislation and give Ministers all these powers? It is not a democracy when you give so much power to Ministers. That is not what Brexit was about—and I say that as somebody who voted for Brexit. I say to the noble Lord, Lord Deben, that he is perhaps a rejoiner now, not a remoaner—sorry, I mean remainer. It is perhaps time we understood that the damage has been done and this just creates more damage. It is time to drop the Bill. We will not have a democracy if it goes through.
Baroness Ludford (LD)
My Lords, I am pleased that everybody who has spoken in this debate is pulling in the same direction, which is an effort to rescue the Government from themselves. It is not only former diplomats and civil servants, in the words of the noble Lord, Lord Wilson, who applaud the remarks of the noble Lord, Lord Hamilton of Epsom; I am afraid to say to the noble Lord, Lord Hamilton, that it is also Liberal Democrats as well, which might be even more upsetting to him. But we are all, at least partially, on the same page as the noble Lord, Lord Hamilton of Epsom, and I do hope that we will be able to rally round a single powerful amendment for Report, based on elements of all of the laudable amendments in this group.
What has been brought out in the debate are the contradictions and hypocrisy of criticising the EU legislative process—which I happen to believe was democratic, but I will leave that there. But, even if you do not, introducing rule by executive diktat does not seem a very intelligent response to your criticism of EU lawmaking.
I think it was the noble Lord, Lord Carlile, who cited the report of the Constitution Committee; I think we are all grateful not only to that committee but to the Delegated Powers and secondary legislation committees—we have with us the former chair of the SLSC, the noble Lord, Lord Hodgson, who supervised the work for that committee’s report on this Bill before he stepped down. The DPRRC not only described the Bill, as we have frequently said, as “hyper-skeletal” but noted that approach taken by the Government
“contradicts pledges by the Government since 2018 that Parliament would be the agent of substantive policy change in these areas”.
Instead, they have made the Bill
“a blank cheque placed in the hands of Ministers”.
That is our objection. The Government would be wise to go back and think about what they are doing in this Bill. We are trying to put some order and reasonableness into the way it is being done. We are having to do a lot of the work that should have been done before the Bill was introduced. All the amendments, whether the one led by the noble and learned Lord, Lord Judge, and supported by my noble friend Lord Beith, or those led by my noble friend Lord Fox, the noble Baroness, Lady Chapman, and the noble Lord, Lord Lisvane, in one way or another seek to avoid the deletion of unidentified law unintentionally and to allow Parliament rather than Ministers control in a considered, explained, transparent and accountable way. Seriously, what is not to like about those two objectives?
We heard some nice phrases in the debate. It was said that we wanted to avoid the “unannounced repeal” of legislation, which was translated perhaps in a rather more blunt, northern way, if I may say so to my noble friend Lord Beith, as “washing stuff down the plughole”. We heard about a “circular economy” of the law from the noble Lord, Lord Deben. I might recycle that—oh, dear—at some point. The noble Lord, Lord Kerr, described the processes in the Bill as “bizarre” and “constitutionally improper”. Several amendments, including Amendment 42, led by my noble friend Lord Fox, seek to avoid the default loss of laws that our citizens will not even know they have lost—various speakers, including the noble Lord, Lord Kerr, mentioned the effect of that.
So we are trying to establish default retention and to build in specification of objectives for any revocation. A lot of the amendments are sister amendments to those debated on Tuesday in an earlier group—we had Amendment 48 on consultation and reporting. All of them aim to introduce a reasonable, considered, parliamentary way of doing things which will not surprise all the businesses, unions, consumers, employees and so on, who will not know what on earth is going on.
I realise that Amendment 50, which proposes a super-affirmative process for revocation, may offend the reservations of the noble Lord, Lord Lisvane, and my noble friend Lord Beith about amendable SIs, but I am sure that, with the skill of both those very experienced parliamentarians, we will be able to think of a better way of drafting everything. But I think that all the aims that we have debated in this group are worth pursuing.
Lord Hacking (Lab)
I interject to make a point that perhaps I did not get over clearly enough earlier. In moving Amendment 42, we would be doing nothing but trying to help the Government and help good governance.
Baroness Crawley (Lab)
My Lords, very briefly, I support this group of important amendments. In particular, I support Amendment 43 in the names of my noble friend Lady Chapman of Darlington and the noble Lord, Lord Fox. Through it, only legislation identified and approved by Parliament could be revoked, and that is the responsible, democratic and considered way to proceed.
Amendment 43 would put responsibility for a timetable of revocation back with Parliament, so that the Government cannot claim that it is an open-ended approach. It also begins to answer the very important questions around the complete lack of executive accountability raised by our Delegated Powers and Regulatory Reform Committee and Secondary Legislation Scrutiny Committee. So many sectors and people are affected by the Bill and do not want Parliament to be taken for granted, as the noble Lord, Lord Hodgson of Astley Abbotts, put it.
I will concentrate for half a minute on consumer protection. As the vice-president of the Chartered Trading Standards Institute, I will reflect some of the fears raised with me over the past weeks and months.
Baroness Crawley (Lab)
The Minister is heckling me from a sedentary position.
Lord Callanan (Con)
We discussed consumer protections in an earlier group. The noble Baroness may have made the same points then. I do not see the point of repeating the same arguments yet again. If she has some points to make on the amendments we are discussing today, perhaps she would like to make them.
Baroness Crawley (Lab)
The Minister has not heard what points I make; I do not know how he can say I am making the same points. The Bill affects sectors right across the UK—people, businesses, trade unions and consumers—and that is why I am raising this. I think the Minister should not have intervened. It is Committee and I have every right to make a minute’s worth of comment.
Viscount Stansgate (Lab)
My Lords, this has been a very educational debate. On Monday this week, two groups of sixth-formers came to visit me here and we discussed things upstairs in Committee Room 1, chosen specifically because of its judicial resonance. They are studying for their A-level exams and the question they put to me was about Parliament’s role in scrutinising the Executive: how effective is it? They were very sharp and on the ball, and they wanted to know and to have examples. But when it comes to the Bill we are discussing today, I could not possibly say that this is a good example of Parliament’s ability to scrutinise the Executive. This Government, we know, claim that their major policy success was to take back control—but in my view it was never to take back control to the Executive but to Parliament. I am heartened by the speeches of the noble Lords, Lord Hamilton and Lord Hodgson, because I see reflected in both of them a wish to see Parliament as the centre of decision-making in Britain—the Executive are a part of it but Parliament is the heart of it.
We have a number of amendments before us, Amendments 32, 141A, 43, 44, 62A and so on, and each in its own way has a contribution to make. I would be minded to support them all because, whatever happens as a result of the debates we have on the Bill, everybody knows we need proper parliamentary scrutiny of what is about to happen—we do not even know what is going to happen to the vast range of legislation to be covered by the Bill.
History will not regard this Government well if future students of politics, of the kind I talked to on Monday, reach the conclusion that Parliament has lost its ability to scrutinise the Executive. In finishing, I quote one Member’s explanatory statement for one of the amendments we are discussing today: it seeks to give
“Parliament the ability to scrutinise these decisions. It would also allow Parliament to overrule the Executive”.
That is exactly what parliamentary democracy is supposed to be about.
Baroness Chapman of Darlington (Lab)
I shall be very brief, because I can see we are testing the Minister’s patience. He perhaps needs to indulge in some breathing exercises or something—maybe yoga, I do not know. We are not deliberately detaining Ministers here; we are trying to do our jobs thoroughly.
I quite rudely interrupted the noble Lord, Lord Kerr, earlier, in my enthusiasm to understand the point he was trying to make. He needed no help from me in making his case, but I do not want the point to get lost when the Minister responds. The noble Lord asked a really important question about what is going to happen if a piece of law is lost because the search process did not identify it. How will a court know that it should not be adjudicating based on that piece of law? How will a citizen know that a piece of law is no longer applicable because it was lost as a result of this process? This is such an important point that has not come up before this group of amendments. It will be very difficult for us to engage positively with subsequent groups without having a full, comprehensive answer to the question of the noble Lord, Lord Kerr. I do not want that to get lost in what I am sure is going to be a comprehensive and enlightening response from the Minister.
Lord Callanan (Con)
I thank the noble Baroness for her suggestion of doing some breathing exercises. I apologise to the noble Baroness, Lady Crawley, if I was maybe a bit short, but I was seeking to make the point that we had a debate on consumer protection policies on an earlier day in Committee, and I thought she was about to repeat the points that had been made. I am trying to get the House to focus on the amendments we are discussing, because we are making very slow progress. Be that as it may, I realise that noble Lords want to make their general points as well.
Yet again, we have had a lively debate. I and other Ministers have listened closely to the points that noble Lords have made; I hope I will satisfy the noble Baroness, Lady Ludford, in that I will not be dismissive of them. It is my job to set out the Government’s position on the amendments we are discussing. I am not dismissing noble Lords’ concerns at all, but I suspect that we will have a difference of opinion. Nevertheless, let me give it a go.
I start with Amendment 32 in the name of the noble and learned Lord, Lord Judge, relating to the operation of the sunset clause and additional layers of scrutiny. It is similar to Amendment 50 in the name of the noble Lord, Lord Fox, which would in effect ensure that retained EU law remains on the statute book unless specified by regulations which have gone through a super-affirmative procedure. In essence, this amendment would block—I think he knows this—the UK from conducting the economic reforms we want to see to drive much-needed growth. Our position is that making it harder to remove regulations—I understand why noble Lords want to do that—would hamper the UK’s growth, be detrimental to the UK and fundamentally undermine the aims of the Bill. I understand that many noble Lords want fundamentally to undermine the aims of the Bill, but this is not something that the Government can accept.
I agree with noble Lords; it is of course right that we ensure that any reforms to retained EU law receive proper scrutiny. That is why we have already ensured that the Bill contains robust mechanisms that will enable the appropriate level of scrutiny of any amendments to retained EU law made by the powers included in the Bill. This includes a sifting procedure that will apply to regulations under Clauses 12, 13 and 15 to ensure that Parliament can assess the suitability of the procedures being used for statutory instruments.
Once the Bill—I hope—receives Royal Assent, work on reform will continue in individual departments. They will prioritise some of the work they are already doing in areas of retained EU law reform and lay all the appropriate statutory instruments. The process will include, as appropriate, designing policy and services, conducting all the necessary stakeholder consultations, drafting the necessary impact assessments and supporting any individuals who may be impacted by any such reform.
Amendments 42 and 43 propose to remove the sunset entirely and replace it with systems individually to revoke each piece of retained EU law, with specifications for unnecessary parliamentary approval or limitations that mean that legislation can be revoked only in line with a fairly cumbersome and, in my view, needlessly complex list of criteria. Again, I do not expect noble Lords to agree with me on this, but the Government’s position is that the sunset is an integral part of the Bill’s policy. It ensures that we are proactively choosing to preserve EU laws only when they are in the best interests of the United Kingdom. However, I appreciate that the public should know how much legislation is derived from the EU and the progress the Government are making to reform it. For that reason, we have published the dashboard containing this list of government retained EU law, about which there has been much discussion.
This dashboard will also document the Government’s progress on reforming retained EU law and will be updated regularly to reflect plans and actions taken. We intend to be clear and transparent throughout the process and when exercising the powers in the Bill, if they are approved by Parliament. In our view, introducing another burdensome process that does not efficiently allow us to remove inoperable and outdated legislation is not good practice.
Amendment 44, tabled by the noble Lord, Lord Carlile, would entirely undermine the ambition of the Bill by replacing the sunset with a full-time commission that would consider retained EU law over—I think it is fair to say—a much longer period. Considering that work to review and take action on retained EU law before the sunset date is already well under way across all departments and is being done by those who already have the expertise in these policy areas, I submit to the noble Lord that this alternative is entirely unnecessary. It would be little more than a talking shop at a time when the UK should be focused on this sensible reform which will help the economy to grow.
Lord Krebs (CB)
Can the Minister provide us with the documentary evidence that this Bill will support growth?
Lord Callanan (Con)
It is a long-established principle that removing and reforming unnecessary and outdated regulation will help the economy to grow. I certainly believe that; the noble Lord might disagree with me but that is my position.
Lord Krebs (CB)
My question was whether he could bring evidence before the House—not an assertion but evidence.
Lord Callanan (Con)
Ultimately, this is a political point. The most successful economies in the world are those which have relatively low levels of regulation. The noble Lord and I may have a political difference, but I am sure that we can all propose lots of different examples from think tanks and studies for our different political positions.
Baroness O’Grady of Upper Holloway (Lab)
Can the Minister explain exactly what will be retained and what will not? He said that work was under way in departments and implied that stakeholder consultation would be a critical part of that. Can he confirm whether there has been any consultation with trade unions on, for example, the working time directive? Although there has been discussion about active removal of legislation, there is real concern that vital protections will be actively allowed to fall off that cliff edge, such as the working time directive. Has there been any consultation with key stakeholders so far? Which particular pieces of legislation will be allowed to fall off as opposed to just falling off by accident? Currently, employers and unions certainly do not know.
Lord Callanan (Con)
I know that the noble Baroness feels passionately about labour regulations. We had an extensive debate about this in the first grouping, on labour law. I am happy to go through the issues with her again if she wishes but she knows that the Government’s position is that UK workers’ rights on maternity provision, holiday pay, the minimum wage and so on substantially exceed the basic standards in EU law and those in many other EU countries. Our commitment to workers’ rights is substantial, as I said to the noble Baroness when we discussed this at great length the other day. The department is currently reviewing labour law in the context of maintaining high standards on workers’ rights. When that work is complete, if any new statutory instruments are brought forward, the normal process of consultation will apply. I am sure that that will result in consultations with the trade unions as well.
Lord Hope of Craighead (CB)
I am not quite sure that the Minister has grasped the point of the noble Baroness. She is asking about legislation that will disappear. The problem with this is that it may involve legislation that requires people to spend money or conduct some other activity; they will not know that it has disappeared and will go on spending the money, and there is no way to get it back again. The noble Baroness raises quite a serious point about the lack of knowledge and the difficulty of things disappearing without their being identified before the disappearance happens.
Lord Callanan (Con)
I know that many noble Lords want to make the point that, somehow, major pieces of retained EU law will suddenly just accidentally disappear from the statute book. We have conducted a very authoritative process of assessing what is retained EU law and what is not, and we are very satisfied that departments know exactly the legislation for which they are responsible.
It is not entirely clear—this goes back to a point that the noble Baroness, Lady Ludford, made the other day, with which I agree—because successive Governments over the years have used different processes to assimilate what was an EU obligation into UK law. Even if departments know what law they are responsible for, they do not necessarily know the process by which it was introduced, or whether that law was as a result of an EU obligation or not. The Government introduced earlier amendments to remove any legal risk of an SI being quashed if it contained a provision preserved as REUL that later turned out not to be one. Our advice to departments is that where they are not sure, it should be preserved.
Lord Callanan (Con)
Can I explain this point please, and then I will take the intervention from the noble Lord?
We are satisfied that departments know the law for which they are responsible. They do not yet know whether it is a retained EU law—in other words, whether it was done in respect of an EU obligation or not. The default position that we are suggesting is that it should be retained if they are not sure, but we have tabled an SI to put that position beyond doubt. I will take one more intervention on this.
Lord Fox (LD)
I apologise for my enthusiasm causing a truncation of the Minister’s response. Does he at least understand, if he does not accept, that as long as the Government resist suggestions such as come through in these amendments, whereby a list of the laws that are covered by the Bill is laid before Parliament and officially and definitively made available—not a catalogue, as we have been promised but a definitive and complete list, of the sort of laws that not only the noble Baroness but all of us feel passionately about—we are bound to be fuelled by distrust?
Baroness Ludford (LD)
Before the Minister replies, I add that what the Minister is saying now directly contradicts the letter we had the other day from the noble Baroness, Lady Bloomfield, which we discussed. The distinction is made by the Government between an authoritative catalogue and a comprehensive list. The Government admit that the dashboard is not comprehensive, so how can each department possibly know all the EU law it is responsible for? As anyone can, I can give examples—and I am grateful to the organisation Justice, of which I should declare I am a vice-president, for giving two examples of direct effect treaty articles and directive clauses which are not on the dashboard, which cites only 28 in that category. That is Article 157 of the treaty and a clause of the habitats directive. They are not on the dashboard, so how are we meant to believe that departments know exactly what law they are dealing with?
Lord Callanan (Con)
I just explained that point in my earlier answer. The noble Baroness can look at Hansard and come back to me if she is not satisfied with that explanation.
To go back to the intervention from the noble Lord, Lord Fox, let us accept for the purposes of making his point that, as he said, huge swathes of vital REUL will somehow accidentally disappear. The Government do not accept that; we think it is extremely unlikely. However, I understand the point he makes. I refer him to the answer that my noble friend Lady Neville-Rolfe gave to a similar question yesterday. We understand the point that noble Lords are making, we will reflect on that issue and, if necessary, come back to it. Without making any promises, we will reflect on whether that is possible. Obviously, being a member of the Government, I trust them, but I accept that other noble Lords may not have the same faith in what we are doing. It is essentially intended to be a constructive process.
Moving on, Amendment 44A seeks to omit the sunset from the Bill and allow the repeal, revocation or amendment of retained EU law to be carried out only via primary legislation. Currently we are unable to keep retained direct EU legislation up to date with new advances, precisely because of that problem—because some of it is regarded as primary legislation. For those who still wish us to reflect EU law, we cannot even update it in line with any EU changes or new advances because, if we decided to do so, we would need to do it through primary legislation, and parliamentary time does not allow for that. This is creating more legal and business uncertainty, as regulations become more and more out of date and burdensome. The Bill is therefore designed to rectify this issue. This amendment, however, would instead maintain the status quo, which we do not believe is either helpful or beneficial to anyone. Again, I understand that, if people wanted to undermine the fundamental purpose of the Bill, they would support that amendment.
Lord Deben (Con)
Does my noble friend accept that that is an argument against democracy? Evidently, because it is difficult, we are going to change the law without asking Parliament. My noble friend has made an argument against democracy; that is what we are arguing about.
Lord Callanan (Con)
I am afraid that the noble Lord is talking nonsense, as he often does, on this regulation.
Lord Callanan (Con)
Let me explain the position. We are downgrading the status, if it needs to be changed through primary legislation—if it was introduced by the EU, through what I would submit was a relatively undemocratic process, in that Parliament had no say on it in the first place—so that if we wish to change the law, it will be changed through secondary legislation, which, as my noble friend very well knows, Parliament will of course get a say on. There are approximately 3,700 pieces of secondary retained EU law. Some of these are inoperable, outdated or not the best fit for our economy. Amending secondary retained EU legislation through sector-specific primary legislation, where it cannot be amended by existing delegated powers, would take decades and would not allow the UK to seize the opportunities of Brexit swiftly. Let me give the Committee an example to help noble Lords understand how long it would take to change all these pieces of law through primary legislation. The Procurement Bill was introduced in May 2022 and addresses only four pieces of retained EU law but contains more than 350 separate EU regulations.
Amendment 62A would replace the repeal of Section 4 with a committee providing advice to Parliament on actions over a five-year period. This would unnecessarily delay the actions being taken by this Bill to bring clarity to the complex legal effects that currently apply to business and citizens in this country. The amendment may be seeking to effect a broader replacement of the Bill’s sunset of retained EU law, although the amendment concerns Clause 3 only. The arguments on the sunset have already been addressed, although I highlight again that, in our view, a sunset is the quickest and most efficient way to achieve much-needed reform and planning for future regulatory changes. I therefore hope that the noble Lord, Lord Whitty, will agree not to press his amendment.
Finally, I will move on to Amendment 141A in the name of the noble Lord, Lord Lisvane. The amendment would impose a set of criteria with which Ministers must comply to exercise the powers to revoke or replace. These criteria would result in legislation that is made under the powers being subject to the super-affirmative procedure. The purpose of this Bill is to ensure that we have in place the right regulations that we think are the right fit for the whole of the United Kingdom. It is our view that it is only right that unduly burdensome and outdated regulations can be revoked or replaced with regulations that are proportionate. Requiring that the powers are subject to additional scrutiny is not appropriate, in our view, and requiring that legislation be subject to further scrutiny through the super-affirmative procedure would not be an effective use of parliamentary time and would result in delaying departmental delivery plans for REUL reform. This would place additional pressure on parliamentary time and could delay the Bill in delivering its objective of bringing about REUL reform. For that reason, the Government cannot accept this amendment.
In summary, Clause 1 is the backbone of this Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law that remains, in my view, a far too prominent feature of the UK’s statute book.
Lord Kerr of Kinlochard (CB)
I think I understood from what the Minister said a few moments ago that I will not get an answer to the question I posed on Tuesday. This time I think he said that he understood the point and would reflect on it. I do not quite know what that means but it is certainly an advance on Tuesday’s position, when the Government were just going to reflect. If we have now reached understanding the point, then we are on the right track.
The point about default is whether we are risking a situation where the courts next year, and in the following years, will have to rule in cases on whether a newly discovered piece of law was retained EU law and therefore died at the end of this year or was not retained EU law and is therefore still in effect. Is it sensible that the default is that the Act is dead? Would not a more sensible default position be that the currently undiscovered but in due course discovered Act remains in force until it is repealed, amended or prolonged? I just do not understand why that uncertainty must be introduced.
Lord Callanan (Con)
For the purposes of clarification, I was merely repeating a similar point to the one made by my noble friend Lady Neville-Rolfe. We will reflect on whether it is possible to publish a comprehensive list of laws that might sunset.
I return to the point I made earlier: we are satisfied that the department has identified all the laws for which it is responsible. Lawyers are currently going through it all and our advice to them is that if they are not sure whether or not a law is retained EU law, they should default to preserving it if they think it is important. I hope that answers the noble Lord’s point.
As I was saying, Clause 1 is the backbone of the Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law. The amendments tabled by noble Lords would add unnecessary time and complex burdens to this process, which, of course, may be the purpose of many of them.
Baroness Chapman of Darlington (Lab)
I do not think the Minister referred to my Amendment 43. Can he do that before he sits down?
Lord Callanan (Con)
Can somebody remind me what Amendment 43 is, please? I thought it was in my notes.
Baroness Chapman of Darlington (Lab)
Amendment 43 puts a safety net around measures that may be lost because they were not identified by the Government. The situation that the noble Lord, Lord Kerr, identified sounds horrific. You would be in a situation where the Government have, through this Bill, decided that something is revoked but nobody has told anybody that it is revoked. The Government have not even told themselves that it is revoked, so is it revoked? My amendment would help deal with that. The Minister might be attracted to at least considering that.
Lord Callanan (Con)
I think I referred to that in an earlier part of my speech. I addressed Amendments 42 and 43, but it all comes back to this central point of the so-called accidental sunsetting that noble Lords have raised. The noble Baroness’s amendments propose to remove the sunset entirely and replace it with systems to individually revoke each piece of EU law. I did refer to that earlier, but I will look back at what I said and if I did not refer to that directly, I will write to her. The Government think that the sunset is appropriate. I entirely accept that many Members of this House do not, but the elected House of Commons certainly did, by large majorities.
I think that I have covered most of the points now. Noble Lords might not like the answers very much but that is the Government’s position.
Baroness Butler-Sloss (CB)
One issue that I have not understood the Minister to have dealt with is the issue raised by the noble Lord, Lord Deben, on democracy.
Lord Callanan (Con)
I think the noble Lord, Lord Deben, and I had a political difference on that point. He seems to think that secondary legislation is somehow undemocratic. If those making this complaint were to look back through Hansard to see whether they made the same complaint about the way that the law was introduced into UK law in the first place, I would have a little more sympathy with their argument. This is an essentially political disagreement about which is the most appropriate way to proceed. The Government have been elected with a big majority. One of the backbones of our programme was to get Brexit done.
Lord Callanan (Con)
I think I have already taken two interventions from the noble Lord, Lord Fox, but I will take one more.
Lord Fox (LD)
I thank the Minister; I appreciate it. I thought he dealt with the democracy issue, to some extent, and cited that it was inconvenient to have to have primary law. The Minister used the Procurement Bill as his paradigm. Sitting next to him is the Lord Privy Seal, who, in a previous guise, brought forward the Procurement Bill—along with the 350-plus government amendments that accompanied it, because it was so badly drafted. If that Bill is a paradigm for anything, it is a paradigm for this Bill and the poor drafting of legislation.
Lord Callanan (Con)
I do not think I ever used the word “inconvenient”, but reforming all this by primary legislation, whatever view you take of it, would take many years, if not decades.
Lord Callanan (Con)
I have given the Government’s response to these amendments and, if noble Lords will forgive me, I will not take any more interventions. The points being made do not address individual amendments; they are general debating points, many of which were dealt with at Second Reading.
Lord Callanan (Con)
I will take the intervention from the noble Lord, Lord Beith.
The Lord Privy Seal (Lord True) (Con)
My Lords, if it would help the Committee, I understand that this is an extremely controversial Bill for many Members of your Lordships’ House. A good deal of time is being taken over it, which is your Lordships’ pleasure. On the question of interruptions, this is Committee and Members are free to speak more than once, but we make good progress if we allow all noble Lords to develop and complete an argument.
While the Companion says:
“A member of the House who is speaking may be interrupted with a brief question for clarification”—
not a speech—it also says:
“Giving way accords with the traditions and customary courtesy of the House.”
I think that is absolutely correct. The Companion continues:
“It is, however, recognised that a member may justifiably refuse to give way”.
It gives various circumstances, including
“in the middle of an argument, or to repeated interruption”.
The Committee must allow the Minister latitude to complete his argument. If a noble Lord has a new concrete point to put forward to the Committee afterwards, that is reasonable. I also remind the Committee that the Companion says:
“Lengthy or frequent interventions should not be made, even with the consent of the member speaking.”
Lord Beith (LD)
My Lords, I do not make lengthy or frequent interventions, but I welcome the Leader of the House giving your Lordships some guidance on this subject, which is helpful from time to time.
I raised a point that the Minister has not covered on the position of Defra, which clearly does not take the view that its corpus of material must be changed urgently. The noble Lord, Lord Benyon, said:
“Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it.”—[Official Report, 28/2/23; col. 205.]
Will the Minister comment on that?
Lord Callanan (Con)
I listened to my noble friend Lord Benyon’s earlier statements and they are entirely in accordance with the provisions of the Bill. It is for Defra’s Secretary of State and Ministers to take a position on what they want to do with Defra’s large body of retained EU law. They are examining it closely. I think my noble friend said that the Defra Secretary of State said her position is that most of it is appropriate and she wants to retain it. If the Bill is passed, she can use the powers granted to her and other Ministers by the Bill to achieve that aim. I do not see any inconsistency at all.
Lord Hacking (Lab)
My Lords, I have one question before the Minister sits down. He said twice that Clause 1 is the backbone of the Bill. Can we take it that, if Clause 1 is removed, the Minister will withdraw the Bill altogether?
Lord Callanan (Con)
Let us wait to see what happens, but the Government are committed to the Bill. As I said, it had a big majority in the elected House, so I hope noble Lords think carefully before they remove key elements of it. It is up to the House what it does with the amendments tabled.
Lord Lucas (Con)
My Lords, I am sad that the Government have chosen not to address the points made by this Committee concerning democracy and the proper role of this House in reviewing legislation, and are stepping away from the conversation that has been offered by the Opposition. I see this as a Bill which is headed for the Parliament Act—I cannot see any other option being offered by the Government. I hope that they will step away from that; I think that we can achieve a better result if all sides looked at how the role of this House can be properly fulfilled with this sort of legislation. I think that is really important for this House and for democracy, and therefore I personally very much hope that the noble and learned Lord, Lord Judge, will persist with his amendment—not today, obviously.
Lord Callanan (Con)
With that one final intervention, let me say to my noble friend that he knows I greatly respect his view. I think the Government’s record, certainly on all legislation that I have been responsible for taking through this House, shows that the Government always listen carefully. The Lord Privy Seal will agree that I am always very frank with the advice that I give to colleagues within Government about what is possible within the Government’s legislative sphere. We always listen very carefully to what the House has to say. The Government want to get their business through, obviously. We will reflect, as we have done, on amendments that are passed and proposed in this House, and will of course seek an alternative opinion from the House of Commons if amendments are passed. But I think that our record shows that, on some very controversial pieces of legislation, the Government listen to what the House has to say.
Lord Judge (CB)
I wonder if anybody else wants to make an intervention?
Well, tempers have got slightly frayed, have they not? But can I just feel inspired by the thought that it is either the noble Lord, Lord Hamilton of Epsom, or the noble and learned Lord, Lord Judge, who has had a conversion on the road to Damascus? I would like to have a cup of tea to discuss which one of us it was, and also, more importantly, to examine the suggestion that he made at Second Reading about how we should examine this Bill which, if I may say so, I regard as a very serious suggestion which may help to implement the proposals in the amendments in this group.
I am disappointed that the Minister said, and obviously believes, that the purpose of this group of amendments is to undermine the aims of the Bill. That is not the aim of those of us who signed up to Amendment 32, nor I think is it the aim of anybody who has put his or her name down to any amendments in this group. We want the way in which we create laws to be better organised and given to Parliament for control. The Minister’s argument is that parliamentary control arrives through all the various methods that we have for looking at statutory instruments and controlling them. I am sorry to go back to something that noble Lords have all heard me go on about, but the last time that the Commons rejected a statutory instrument was in 1979. It may be a consequence of having gone into the Common Market in the first place, because the 1972 provision was that we had to accept whatever came from the Common Market and introduce it into our own legal system. We did so, as the noble Lord, Lord Deben, pointed out, by putting it into a statutory instrument.
Maybe it is a human fact that, if you have a whole raft of statutory instruments which you cannot amend, because the law does not allow you to amend them, you get rather bored at the idea of trying to amend laws created by your own Parliament. But whatever the reason, the idea that we are suddenly going to wake up, after 50 years of somnolence, to the idea that Parliament is suddenly going to start having effective control over statutory instruments, is—I mean this with great respect, but I am still going to say it—a bit of a fairy tale. It is a fairy tale because it is like the story of Sleeping Beauty. There she is, fast asleep, year after year, and suddenly along comes a handsome prince who brings her back to life with a kiss. I do not see any ministerial princes in relation to this issue whose kisses would bring anyone to life, and I respectfully suggest that the proposal in the Bill would involve giving Sleeping Beauty another sleeping pill, to keep her asleep for another 50 years.
Lord Butler of Brockwell (CB)
Before my noble friend sits down, does he agree that those parts of the law that will lapse under the sunset clause will result in the law being changed without even a statutory instrument?
Lord Judge (CB)
Undoubtedly that is right, and that is why Amendment 32 specifically deals with that issue in paragraph (c). For the time being, I beg leave to withdraw the amendment.
Lord Callanan
Member's explanatory statement
See the statement relating to the Minister’s amendment at Clause 1, page 1, line 7.
Lord Callanan
“Exceptions to sunset under section 1(1) Section 1(1) does not apply (so far as it would otherwise apply) to—(a) relevant financial services law; (b) any specified instrument or provision of an instrument or anything having effect under the specified instrument or provision;(c) any specified description of minor instruments;(d) transitional, transitory or saving provision.(2) In this section—“minor instrument” means an instrument other than any Order in Council, order, rules, regulations, scheme, warrant or byelaw;“relevant financial services law” means—(a) anything referred to in Schedule 1 to the Financial Services and Markets Act 2022, ignoring any regulations made under section 1(5) of that Act;(b) any rules made by the Financial Conduct Authority, the Prudential Regulation Authority or the Bank of England;(c) any generally applicable requirements (within the meaning of Part 5 of the Financial Services (Banking Reform) Act 2013), or directions of general application, imposed by the Payment Systems Regulator;“specified” means specified in regulations made by a relevant national authority;“transitional, transitory or saving provision” includes any EU-derived subordinate legislation (within the meaning of section 1) or retained direct EU legislation so far as it continues to have effect or a particular effect, despite a revocation or amendment, by virtue of transitional, transitory or saving provision other than section 1B or 2 of the European Union (Withdrawal) Act 2018.(3) Any reference in subsection (1) or in regulations under this section to a thing is, unless otherwise stated, to the thing as it subsists immediately before the time when the revocation under section 1(1) would otherwise apply in relation to it.”Member's explanatory statement
This new clause contains new exceptions to the Clause 1 sunset (subsection (1)(c) and (d)). It also contains existing exceptions to that sunset, which are currently in subsection (2) of Clause 1 and subsection (5) of Clause 22. The exception which is currently in subsection (2) of Clause 1 is extended to include anything having effect under a specified instrument or provision.
Member's explanatory statement
This amendment ensures that any relevant national authority (as defined in clause 21(1)) can extend the sunset referred to in Clause 1.
Baroness McIntosh of Pickering (Con)
My Lords, in moving Amendment 51, I shall speak also to Amendments 53 and 56. I look forward to hearing from others who are speaking to their amendments in this group: the noble Baroness, Lady Humphreys, my noble friend Lady Lawlor, the noble Lords, Lord Whitty and Lord Fox, and the noble and learned Lord, Lord Hope, with whose amendments in this group I have much sympathy.
Amendment 51 is a simple amendment which would leave out “Minister of the Crown” and insert “a relevant national authority”. The point of the amendment is to ensure that any relevant national authority, as defined in Clause 21(1), can extend the sunset referred to in Clause 1.
The reason I move this amendment is that the Bill currently proposes, in Clause 2, that only a Minister of the Crown can make regulations to extend the sunset period. In my view it is inappropriate that Ministers in the devolved Administrations cannot carry out the same function in respect of the retained European Union law that applies in their respective devolved competencies. Limiting this power to a Minister of the Crown appears to be at odds with paragraph 60 of the Explanatory Notes to the Bill:
“The Government also remains committed to respecting the devolution settlements and the Sewel Convention, and has ensured that the Bill will not alter the devolution settlements and will not intrinsically create greater intra-UK divergence.”
The point of this amendment is to assist the Government in this regard. It provides devolved Ministers with the power to extend the sunset deadline. Amendment 53 is merely consequential on this amendment.
Amendment 56 intends to delete Clause 2(4) at line 18 of page 2. Clause 2(1) provides that:
“A Minister of the Crown may by regulations provide that … the reference in section 1(1) to the end of 2023”
should specify a later time. Clause 2(4) provides that the later time cannot be
“later than the end of 23 June 2026”,
which happens to be the 10th anniversary of the date on which the referendum on UK membership of the European Union was held.
In my view and that of the Law Society of Scotland, which helped me draft this amendment, government policy in relation to the applicability of retained EU law should not be made on the basis of symbolism. There is no need to set such a deadline, and I seek to understand why my noble friend the Minister is putting such an arbitrary deadline in the Bill. Were any deadline to be necessary, this should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and consultation with those who will be affected by the variational revocation proposed by the regulations in question. In any event, in the opinion of the Law Society of Scotland, with which I agree, the sunset provision should operate from 31 December 2028 at the earliest. Clearly, the possibility of any extension of a sunset provision should run for a period after that date.
In an earlier debate, the noble Baroness, Lady Jones of Moulsecoomb, and others referred to the political dimensions of parts of the Bill. I ask my noble friend to confirm that it is not purely for political symbolism that the Government have fixed on this deadline.
I also request that the point I raised in the debate on the first group of amendments be now positively responded to. In summing up this group of amendments, can my noble friend tell me how the Government intend to respond to withdrawal of consent by the Scottish Parliament? How do the Government intend to respond to the amendments the Scottish Parliament has published and tabled in this regard? With those few remarks, and looking forward to the other contributions, I beg to move.
Baroness Humphreys (LD)
My Lords, I shall speak to Amendment 54 in my name, Amendments 51 and 53 in the name of the noble Baroness, Lady McIntosh of Pickering, and Amendment 58 in the name of the noble and learned Lord, Lord Hope of Craighead, all of which I support. I thank the noble Baroness for explaining her amendment so clearly.
Amendment 51 would ensure that any national authority could extend the sunset and, usefully, points to the definition of “national authority” in Clause 21. Amendment 53 would extend the sunset until the end of 2028. The noble and learned Lord’s amendment would very helpfully give Scottish and Welsh Ministers a power to extend the sunset date for devolved retained EU law, equivalent to that conferred on a Minister of the Crown by Clause 2.
My Amendment 54 continues on from those three amendments by clarifying what provisions would be devolved and would therefore be under the competence of Scottish Ministers, Welsh Ministers or the Ministers of the Northern Ireland Executive for decision, rather than a Secretary of State. I am grateful to both noble Lords for tabling their amendments, which highlight and address the anomaly that has stood out in this Bill: they give the Minister the opportunity to explain fully the reasoning behind the Government’s decision to allow an extension to the sunset beyond the end of this year for the Secretary of State while withholding the availability of such an extension for Ministers in the devolved Administrations.
I should add that the Minister has already dealt with that issue in her response to this morning’s debate but I am afraid that I missed the detail. I shall read Hansard and reserve the right to come back to this issue at a later stage if I need to, but perhaps if she or her noble friend have anything to add then they will do so. I am also grateful to the noble and learned Lord for his Amendment 58, which puts the powers of the Welsh Ministers over devolved retained EU law on a par with that of the Secretary of State.
Why do the devolved Administrations need these amendments? The arbitrary cut-off date of the end of 2023 has no logic other than a political one. The cynic in me believes that the UK Government want to clear the decks before the next election, probably next year, so that they can claim that EU law no longer exists in the UK, no matter the damage which that causes and the complexity of the task.
In an earlier debate I referred to the Welsh Government’s response to the Bill, and I shall use those points again in relation to the debate on these amendments. The Welsh Government feel that the Bill is unnecessary and that the EU laws have worked well for them. Their preference would be to continue with the present laws and amend them gradually over time as the need arises. An extension to the sunset until 2028 would allow them to deal with the process in a more timely and considered manner. The workload for Members of the devolved Administrations and their comparatively small teams of civil servants has already been referred to. They have dealt with a massive amount of UK legislation over the last few years. They have struggled with complex Bills that have provided increasing challenges to their devolved settlements and have led to increasing calls for the codification of the Sewel convention.
My Amendment 54 would clarify what is devolved and, if placed in the Bill, would bring certainty for Welsh Ministers to act on devolved matters without interference. This Bill has added further pressure on the Welsh Government, as Members have already said, and one feels the sense of their being overwhelmed. There are difficult decisions to be made, as they consider whether more civil servants will have to be employed or whether the redirecting of officers to work on the Bill will be sufficient. The latter, of course, has an impact on the legislative programme that the Senedd would wish to implement and the former has an impact on its budget.
Baroness Lawlor (Con)
My Lords, I am pleased to follow my noble friend Lady McIntosh of Pickering and the noble Baroness, Lady Humphreys, to whom I have listened with great interest. My Amendment 56ZA is to bring forward the extension date in Clause 2(4) to the end of 2024. There are political and practical reasons for doing so.
Politically, a general election must be held by 12 December 2024. It is important that the Government elected in 2019 not only honour their commitments to deal with inherited EU law but bring forward the extension date to coincide with, or be within striking distance of, the end of this Parliament. This is not a matter of ideology, as has been suggested by some noble Lords in respect of the sunsetting of legislation, but of working within the normal political timetable: a Government are elected, they set about implementing their programme and, when the time comes, they go to the country for the people to judge. That is how this democracy functions.
When people vote, they take a punt on the party they vote for and they vote for it to govern, for general or specific reasons. Political theorists may, and do, disagree about the extent to which voters’ knowledge of detailed programmes or their expectations are at play, but there is little argument among them that people vote for a party to become a Government, and to enact the programme or the cause with which they are identified. The current Government have, sadly, lost much time in restoring UK law; now they are finally moving to do so.
Far from being disparaged for following what is called ideology, the Government should be encouraged to honour the promise on which they were elected. They are doing so in this Bill, by providing for the sunset of EU-derived subordinate legislation and some retained direct EU law, and doing so within the current Parliament, despite the pandemic. However, they should also ensure that, even in those cases where an extension is envisaged, that extension falls within striking distance of the parliamentary timetable.
Practically, it is sensible to have the extension date as close as possible to the sunset date. Indeed, given the rapid and efficient work of civil servants, who have continued to prepare for and publish on the dashboard identified pieces of legislation, we now have sight of thousands of rules which formed part of the corpus of EU law—the acquis. Our officials are familiar with and understand these matters. I understand that some departments have been working on it for almost five years. They are well equipped to move to the next stage. It is better this happens by, or near, the end of this Parliament for the benefit of good government, for the certainty it brings to all concerned, and for the effective and efficient working of government, and that it happens without the interruption of a Dissolution, or the distraction for officials of having to prepare the program for an incoming Government. I have confidence that the UK will do a better job in protecting the many legitimate concerns which have been raised by your Lordships.
Moving swiftly will give certainty to all involved, irrespective of the vagaries of political life. In addition, there is the constitutional question, to which many noble Lords have continued to refer—probably most of the noble Lords who have spoken in Committee. This has also been raised in the two recent reports from the Secondary Legislation Scrutiny Committee and the Constitution Committee, both of which illuminate a range of complex matters and considerations. I am most grateful to both committees for doing so.
None the less, I disagree with the implied role that Parliament—the legislature—should play in the matters addressed in this Bill. I urge the Government to capitalise on the work of departments for the dashboard and submit the list to Parliament, indicating which will be adopted into or adapted for UK law, and which will go. That would bring reassurance and make for greater transparency. It may also help noble Lords to engage in the sifting process, on which they will be paramount. However, there is a danger of seeing legislative scrutiny as an end in itself rather than as a means to holding the Executive to account. That has not changed. If the Government fail to command a majority in Parliament, their days are numbered.
For over a century, there has been debate about the relative significance of the relationship between the people of this country and their Government, on the one hand, and that with their Parliaments, on the other. Dicey alluded to this in 1910, as did Lord Hailsham and Tony Benn in 1978, and that debate has continued, having been given a tremendous boost by the referendum. My view is that, on the matter of retained EU law covered by this Bill, the Executive have direct authority to act. They were given it in December 2019 by the electorate, who made clear that they preferred to deal with the Executive, the Government, who appealed to them directly over the legislature, which had appeared to ignore the decision of the referendum more than three years earlier or to obstruct its execution.
On all three grounds therefore—political, practical and constitutional—not only do I support the Bill’s approach but, for the reasons given, I ask my noble friend the Minister to accept that there are also grounds for moving more rapidly to advance the extension date in Clause 2 to within striking distance of the lifetime of this Parliament.
Lord Hamilton of Epsom (Con)
My Lords, I support my noble friend in her amendment. I take the view, as the Committee well knows, that if you give the bureaucracy longer to implement all of this, it will use the time. Therefore, the shorter the time we can make it, the better.
I ask my noble friend the Minister whether he considers the fact that the sunset clause is operating at the end of this year as almost the sole reason we now know roughly how many bit of retained EU legislation there are. If the sunset clause had not been in there, I do not believe that the bureaucracy of this country—pace the noble Lord, Lord Wilson—would have come up with the answer at all.
Lord Whitty (Lab)
My Lords, I have Amendment 56A in this group. Noble Lords have probably gathered by now that I profoundly hope that the Bill never reaches the statute book. However, if it does, we need to know what the heck we are talking about. My Amendment 56A requires the Government, within three months of the passage of the Bill into law, to ensure that all of us here and those whom they are going to consult out there—the businesses, consumers, workers and everyone else whom the Bill may affect—know what we are talking about; namely, by providing a definitive dashboard at that point, preferably with an indication of how the Government intend to deal with different bits of the dashboard. But, in any case, it requires that they provide a “definitive list”. If we do not have that, no one will know how we will behave, whatever the deadline.
I support the deadline proposed by the noble Baroness, Lady McIntosh, which is reasonable, given that we are talking about 4,000 pieces of legislation, at the last count. I do not agree with the deadline in the Bill or with extending it by only one year, as the noble Baroness, Lady Lawlor, suggested. The key point of my amendment is that the world needs to know what the Bill means, what it is about and, preferably, how the Government will deal with it. I do not think that the word “dashboard” has appeared in many pieces of legislation, but we need something based on the dashboard as it is currently. Noble Lords who have tried to use it will have found it rather difficult and certainly not yet definitive. So we are giving the civil servants—I can go along with the noble Lord, Lord Hamilton, on this to some extent—three months from the passage of the Bill to produce a definitive list of what we are talking about, and we need that.
Lord Thomas of Cwmgiedd (CB)
My Lords, I rise because neither the noble and learned Lord, Lord Hope, nor the noble Baroness, Lady Finlay, can be in their place to speak to Amendment 58. In one sense, it is neutral and designed to achieve what I hope would not be the subject of controversy: equality of treatment between the various Governments of the United Kingdom.
I have asked myself the question: why can Government Ministers have the power to extend the date—it does not matter what the date is—but that is denied to the Welsh and the Scots? There is one possible answer, and I have been so encouraged by what the Minister said today about his certainty in the infallibility of civil servants and lawyers and that nothing has been lost. But he obviously has—or might appear to have—even greater confidence in the Welsh Ministers and civil servants, because he believes that they can find everything out this year, and it is only the rather slower civil servants and lawyers in Whitehall who need longer. For reasons I tried to explain this morning, I do not believe that that can be the answer, but I may be wrong.
It is rather unpleasant to have to say this, but the second possible reason is that the Ministers in Wales and Scotland need to be incentivised by putting a gun to their head. You normally do not do that to people you want to work with to achieve a stronger union. Worse, is it that the Government do not trust them? Is that the way to build a union? Alternatively, is it that they want the Welsh and Scottish Ministers who run into difficulties because they have not been provided with the resources—I pointed out this morning that it is pretty clear that none of what the Welsh Ministers will have to deal with is on the dashboard—to come cap in hand to Whitehall to ask for dispensation? They might have overlooked the fact that where that leads to is disastrous for a union in terms of judicial review. You do not build strong unions by litigating, as one can see in other countries.
I am therefore at a complete loss to understand why the Government will not accord to the Scottish and Welsh Ministers the power they obviously think is necessary for themselves to have. I would hope that the amendment in the name of the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay of Llandaff, would be uncontroversial, because it would be the clearest sign of the new attitude being taken by the present Government under the new Prime Minister, who has spoken warmly of the union. What better statement of the intent to treat them as equals and to treat them properly in this respect could there be than the Minister saying that this is an amendment that he readily accepts?
Baroness Ludford (LD)
My Lords, I support the amendment led by and spoken to by my noble friend Lady Humphreys. I also support the amendment to which the noble and learned Lord, Lord Thomas of Cwmgiedd, just spoke. As I said on an earlier group, these Benches fully support respect for a union which is built on trust, which is what we feel is lacking here. I also want to speak to Amendment 136, in the name of my noble friend Lord Fox, who had to be absent for the moment.
Baroness Ludford (LD)
Oh, has he come back? I am not doing too well. I am getting tired; I expect we all are.
Amendment 136 would give Parliament some power over the use of the delay to sunset powers in Clause 2(1), where powers are conferred to delay the sunsetting under Clause 1. Clause 2(1) allows Ministers by regulations to postpone the date when any retained EU law, unless expressly saved, is automatically revoked. However, as our Delegated Powers Committee has said:
“Use of this power is apt to be highly significant but is subject only to the negative procedure.”
As is well known, Parliament hardly ever overturns government proposals in a negative procedure—I believe that the last time it happened in the House of Commons was in 1979; I am subject to correction there, but it is not exactly every day. The power for Ministers in Clause 2(1) is not constrained by any requirement for consultation, any criteria to be met or any preconditions to be satisfied. We do not even know from the Bill, because no indication is given, whether the postponement would be exceptional or the general rule—we have no idea what the Government’s intentions are for delaying sunsetting. The DPRRC reminds us that the delegated powers memorandum states that
“the power is not intended for wide usage”,
but how do we know? How can we know? The memorandum also says
“Ministers have confirmed that they do not intend on allowing the usage of this power without collective agreement”.
We might think, “Oh, whose agreement does that mean? Does it mean consultation with businesses, unions, et cetera? Does it mean some kind of consensus?” No, says the DPRCC,
“this is merely a statement of the doctrine of collective ministerial responsibility rather than an effective constraint on the power contained in clause 2(1)”.
We might get excited by that phrase, but “collective agreement” just means collective ministerial responsibility.
The power in Clause 2(1), combined with the scale of the task of determining which pieces of retained EU law are to be retained, revoked or amended, gives rise, in the words of the DPRRC, to
“significant uncertainty as to what the sunset date will be”.
It concludes:
“Given the importance of the power, we consider that its use merits affirmative procedure scrutiny.”
In the light of our debates today, the way that Parliament is just being cut out of this whole exercise is totally at odds with the claims made during the referendum that it would be put back in control and in the driving seat. Two years later, the EU withdrawal Act was accompanied by lots of promises about how Parliament would be the one to decide when to revoke, retain or amend retained EU law.
The point of Amendment 136 is its continuity with, in particular, the amendments we debated in the last group and on Tuesday, which set out that Parliament cannot be ignored in this process—which it will be, in effect, if there is only a negative procedure. I hope that the Government will agree that Parliament should be in the driving seat on the question of whether to delay the sunset.
Lord Kerr of Kinlochard (CB)
My Lords, I support the amendment from the noble Baroness, Lady McIntosh, but I am afraid that I do not agree with the amendment in the name of the noble Baroness, Lady Lawlor. I also support the amendment tabled by the noble Lord, Lord Whitty, and that in the names of the noble Lord, Lord Fox, and the noble Baronesses, Lady Ludford and Lady Chapman.
I will make two points. First, I need to resume my adulatory exchanges with the noble Lord, Lord Hamilton. He is quite right that the Government are very bad at sifting the law and getting rid of old bits that are not needed any more. However, he is quite wrong to blame the Civil Service for that. The reason the Government spend very little time on thinning the statute book is that Ministers have innumerable ideas for increasing its size, and they do not wish civil servants to do anything other than carry out their wishes. It is rather like the Law Commission; it writes wonderful reports recommending simplification, but nothing happens with them. It is clear to civil servants which bits of the law, for which they are responsible, should be taken away, but they have to spend their time writing new laws, many of which are completely unnecessary and have the purpose of sending a message or setting a legally binding target in the distant future—as if a Government could bind their successor.
Secondly, there is something in the argument by the noble Lord, Lord Hamilton, that setting an early sunset date concentrates the mind. This is the Dr Johnson argument that
“when a man knows he is to be hanged in a fortnight, it concentrates his mind”.
The problem is that we are dealing with the real world and real laws, and, by moving so fast, we will make terrible mistakes.
I believe that it is right to go for something such as the amendment tabled by the noble Baroness, Lady McIntosh, but we need to bear in mind that, while it is necessary, it is not sufficient—it does not put the Bill right. The discussion we had on the last group of amendments, for example, needs to be reflected in major changes to the Bill. That requirement would be in no way reduced by the Government accepting her amendment and extending the sunset clause. This is a necessary change, but not a sufficient one.
Lord Collins of Highbury (Lab)
My Lords, in this Committee, as the Minister has constantly been reacting to, we seem to keep going over the same old ground. The good thing about Committee is that it is not about saying whether you support something or not; the most important part of this stage of our proceedings is to probe and better understand what the policy objectives are behind any particular legislative change. I want to focus on that.
I hear the argument from the noble Lord, Lord Hamilton, about the sunset clause—he has made it at every stage in Committee—being an incentive. However, I agree with my noble friend that, at the end of the day, as I think the noble Lord appreciates, we do not have a complete list. We do not know what we are talking about. Until we do, we should not be making changes to the law. That is the key to this: how does this country make its laws and how do we change our laws? It is Parliament that does that, not the Executive. The Executive might control the way we consider the proposals for changing it, but it is fundamentally a matter for Parliament.
I will pick up the point made by the noble and learned Lord, Lord Thomas. He is absolutely right: it is about how the policy objective will impact on people’s perception of how we build and maintain our union of the United Kingdom. That is really important. There has been a consistency among Governments in the settlement that we have had. The noble Baroness, Lady Ludford, referred to the EU withdrawal Act. The question is, post referendum, how we deal with laws that we have had for the last 50 years. I think it is incumbent on the Government to be very clear about what that Act said. It did not just talk about Parliament. What it said is quoted in the Delegated Powers and Regulatory Reform Committee’s report:
“Parliament (and, within devolved competence, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once the UK has left the EU.”
What is wrong with that principle? What is wrong with that legislation, which this Parliament agreed? Why are we considering something different? Why are we considering a truncated skeleton Bill that gives the power to the Secretary of State?
That is why the amendments of the noble Baroness, Lady McIntosh of Pickering, are so important. She is absolutely right to raise this—not as a question of whether we support the principle, but we should ask why there has been a policy change. Why do the Government no longer think that the principles established in the 2018 Act should apply? We need to know, because, as I think the noble and learned Lord, Lord Thomas, said, it brings into question whether it is about trust, competency or resources. All these things need to be answered, and we have not had any answers so far. The Minister should give us some reassurance about that and not simply say that it is an exercise of trying to improve efficiency, because, for many people, the laws of the land protect them at work, at home and on the road. As my noble friend Lady O’Grady said, there are key provisions that we need to understand will continue to protect the people of our union.
Lord Callanan (Con)
If the noble Lord, Lord Collins, will forgive me, I do not propose to go back over previous discussions about the dashboard, sunsetting of laws, et cetera. He knows our position, and I am well aware of the Opposition’s, so if he will forgive me I will concentrate on the amendments in this group, which are all related to Clause 2, on the extension mechanism.
Baroness Humphreys (LD)
I appreciate that the noble Lord has been talking about the extension to 2026, but he has not explained why that is not available to the Welsh Government or the other devolved nations. Can he clarify that for me?
Lord Callanan (Con)
If the noble Baroness has some patience, I will come on to those amendments shortly.
Turning to Amendments 51, 54, 57 and 58, the power exercisable under Clause 2 will allow Ministers of the Crown to extend the sunset for specified legislation, both in reserved and devolved areas, up to 23 June 2026. This includes areas of devolved competence, and we could act on behalf of devolved Ministers if they wish to request that. Clause 2 allows for the extension of a “description of legislation”, and conferring the power on devolved Governments would, in our view, introduce additional legal complexity. Descriptions of retained EU law may cover a mix of both reserved and devolved policy areas, and this could result in retained EU law in similar areas expiring at different times in different jurisdictions in the UK, across both reserved and devolved areas. We feel that this could create additional legal uncertainty.
Devolved Ministers will of course still be able to legislate to preserve, restate or reform their retained EU law using all the other powers in the Bill. As I said, the UK Government are of course committed to working closely with the devolved Governments on all aspects of the retained EU law revoke and reform programme, including the exercising of this extension power where appropriate.
Regarding the question on the devolved Administrations, which a number of Members raised in considering earlier clauses, I met with the devolved Ministers on behalf of my previous BEIS department a few weeks ago and we discussed a number of legislative areas of concern to them, including—the noble Baroness, Lady O’Grady, will be pleased to know—the MSL Bill, and they did not raise the REUL Bill. I am not saying that means they do not have any concerns—clearly, both the Senedd and the Scottish Parliament are concerned —but when they had the opportunity to raise it with me in a formal meeting designed to discuss legislation, they declined to do so.
Amendment 53 tabled by my noble friend would, I assume, be intended to operate in tandem with amendments to Clause 1 that propose a change in the sunset date. This will be debated in other amendment groupings and, as I have already said, proposing to change the sunset date through the extension power alone would not be appropriate.
Amendment 56A in the name of the noble Lord, Lord Whitty, would require the Government to publish a dashboard of all EU law which remains in force and which has not been superseded by domestic legislation within three months of the Bill being passed. I am sure the noble Lord knows what I am going to say to this: I draw his attention to the public dashboard of retained EU law that the Government published in June last year, and about which we have already had extensive discussions.
Without wishing to annoy the noble Baroness, Lady Ludford, again, that dashboard is an authoritative assessment of the various types—I am worried she will reach for her thesaurus yet again and start quoting definitions at me—of retained EU law across all government departments. It is split over 400 policy areas and 21 sectors of the economy and is categorised accordingly. The dashboard was updated in January, as we have said, and we are committed to updating it regularly through 2023; the next update is planned for spring of this year. Departments are continuing their work on retained EU law, aided—again, I risk provoking the noble Baroness, Lady Chapman—by the National Archives, and we anticipate an increase in the volume of retained EU law in the next publication.
Lord Thomas of Cwmgiedd (CB)
The Minister is very keen on timetables and dates. As we know, spring is movable. Can we have a firm date? If the Minister wants to hold people to timetables, he ought to have a timetable to produce a firm list. Could he please go back and ask the lawyers, in whom he has such great trust, when they can produce a list and a comprehensive explanation? I am sorry to press the Minister on this but he cannot expect everyone else to have a timetable and not adopt one himself.
Lord Callanan (Con)
I am not sure I want to go on the public record saying that I have great faith in lawyers, given some of the debates we have had in this House. I explained the position on the dashboard in the previous grouping. I know that many Members want to categorise this as a device by which huge swathes of essential legislation will be allowed to sunset. I have explained on three different groupings now—I will not go back there again—that we will update the dashboard as often as we can. Where possible, this will also reflect the ownership of retained EU law across the new departments created by the Prime Minister in the machinery of government changes earlier last month.
Finally, on Amendment 136, this power is subject to the negative procedure, which is the appropriate level of parliamentary scrutiny for a power that only maintains the status quo and cannot enact any policy changes. The power is intended as a failsafe in case the reform of retained EU law is delayed by the parliamentary process or extenuating circumstances. I therefore do not believe that the listed amendments are necessary or appropriate for the Bill and hope that the noble Baroness will be able to withdraw her amendment.
Lord Collins of Highbury (Lab)
I seek clarification about the amendments of the noble Baroness, Lady McIntosh, and the noble and learned Lord, Lord Hope, on the power that Secretaries of State have on extension, and so on. The Minister said that it would be if the devolved Administrations request it. Does that mean that the request will be granted? This affects the settlement we have on devolution and our union. As he says, for everything for which they have responsibility they will change, amend or keep it, but if they want an extension on the sunset, they have to request it. Does that mean that, if they request it, it could be refused?
Lord Callanan (Con)
I thought I had explained this in my earlier statements. I am saying that the power to extend rests with UK Ministers. Many of these areas of law cut across both UK-wide and devolved competence. We have said, as the noble Lord, Lord Collins, acknowledged, that there is a power for them to just restate that law, to continue it, if they wish to do so. We would want any extension to be discussed between the Administrations. As I said, there are regular meetings between both officials and Ministers to discuss these areas, so it is certainly something we would consider. I am not giving the noble Lord an absolute assurance; I am saying it is something we would consider.
Lord Collins of Highbury
I think it is a fundamental question. If they have the power to maintain and amend, specifically something that is totally the competency of either the Scottish Parliament or the Welsh Senedd, and if they simply want the same power as the Secretary of State on a matter that is within their competency—I am not talking about those grey areas where you might say, “You’d best request”—is the Minister satisfied in saying that they must request it? That means there is the power to refuse, and I think that brings into question trust and confidence in our devolved institutions.
Lord Callanan (Con)
I do not agree with the noble Lord’s characterisation. If they wish, it is perfectly possible for them, before the sunset date, to renew that legislation. The extension mechanism is of course something that we will discuss with them as appropriate.
Baroness McIntosh of Pickering (Con)
I have to say that that is a little disappointing as a summing-up. I take responsibility for not giving proper hearing to the amendments in the name of the noble and learned Lord, Lord Hope—I had not realised he had slipped away, and I had promised to speak to them, so I am very grateful to the noble and learned Lord, Lord Thomas, for speaking to Amendment 58.
In summing up, my noble friend did not refer to the fact that the Scottish Parliament have removed their consent from the Bill—news which reached us only a week ago. My noble friend did not respond on what the Government’s approach will be to the amendments. That would help us in our deliberations.
I am extremely grateful to the noble Lord, Lord Collins, for probing as eloquently as he has, because that is the purpose of Committee. It would be helpful to know at this stage how the Government intend to respond to the amendments from the Scottish Parliament, though they are not before us today but in a different procedure.
Obviously, I prefer my deadline to that of my noble friend, but I am very grateful to her for tabling the amendment for debate. Equally, the noble Baroness, Lady Humphreys, spoke very eloquently about the position in Wales.
I am slightly at a loss here. I have been a UK parliamentarian for a while now but I was born in Scotland, and it grieves me that the UK Government do not appear to be making proper commitments in what was the internal market Bill and other Acts that we have passed, not just the Bill before us today. I feel that the Government’s work is cut out for them on this group of amendments.
I am sure that we will wish to return to these issues at a later stage but, for the moment, I beg leave to withdraw Amendment 51.
Lord Callanan
Member’s explanatory statement
This amendment ensures that regulations under subsection (1) may specify an instrument or description of legislation in cases where it is not clear whether the sunset applies in relation to the instrument or description. The effect of doing so would be to extend the sunset date so far as the instrument or description of legislation is subject to the sunset.
Member’s explanatory statement
This is a consequential amendment which provides clarity about the time the sunset provisions under clause 3 come into effect.
Baroness McIntosh of Pickering (Con)
My Lords, this is obviously a long group of amendments. In moving Amendment 59, I will speak briefly to Amendment 76 in the name of the noble and learned Lord, Lord Hope.
In Amendment 59, we have a chance to look at Clause 3, on the sunset of retained EU rights, powers and liabilities. Again, the particular purpose of this amendment is to take the sunset clause in relation to the retained EU rights, powers and liabilities contained in the Bill and extend it to 31 December 2028; this reflects earlier debates that we have had.
The context of this group of amendments is to consider how EU law will be assimilated into UK law, and what the procedures and timescales for this will be. Amendments 60, 61, 64, 70 to 72, 74, 75 and 100 have a similar theme in this regard. I know my noble friend on the Front Bench thinks that he has heard these debates before, but take Amendment 60 as an example. The reason why this amendment is important is that it seeks to delete Clause 3(2), which declares that any retained EU law sunsetted by subsection (1)
“is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed).”
In the view of the Law Society of Scotland—I am grateful again to Michael Clancy for helping me prepare for today’s debate—this is
“an unnecessary provision and adds nothing to the interpretation of the clause. Accordingly it should be deleted.”
As noble Lords will realise, it is ultimately the role of lawyers to apply the law that we will, in time, pass in this Bill.
Amendment 61 provides the ability for the sunset of retained EU rights, powers and liabilities to be extended to a later time by a relevant national authority. As presently drafted, Clause 3 provides for a sunset of retained EU rights, powers and liabilities et cetera at the end of 2023. However, there is no provision to extend this sunset such as applies in relation to Clause 1. Amendment 61 makes provision for a relevant national authority to be able to make regulations to provide for such an extension.
Amendment 64 is a consequential amendment which provides clarity about the time when the sunset of the principle of the supremacy of EU law comes into effect. As we heard in debates, the principle of the supremacy of EU law was developed by the Court of Justice of the European Union and provides that, when there is a conflict between national and EU law, EU law will prevail. It is key to the EU legal order and ensures consistent application across the EU. In Retained EU Law: A Practical Guide, Duhs and Rao comment on the application of the principle. They note the comment by the House of Lords Constitution Committee that it is impossible to see in what sense the principle of supremacy of EU law could meaningfully apply in the UK once the UK has left the EU. They go on to explain that it is retained because one of the stated aims of the European Union withdrawal Act is to incorporate EU law into domestic law. To incorporate EU law into the domestic statute book while retaining the principle would imbalance the statute book. Therefore, it is logically consistent that, when retained EU law is being abolished, the principle should also be disapplied. However, the Law Society of Scotland, with which I agree, questions whether the abolition of this principle will not affect the interpretation of EU law when it becomes assimilated. Therefore, is this not a factor to be taken into account when considering how to assimilate that law? In earlier debates, the noble Lord, Lord Fox, pursued this with some eloquence in relation to earlier clauses. Amendment 64 relates to Clause 4. Providing a later sunset date of 31 December 2028, as I seek to do in Amendment 64, will allow for a thorough analysis of the consequences of the removal of the principle in relation to the interpretation of assimilated law.
I also support the proposal that Clause 5 stand part of this Bill. Unfortunately, the noble Lord, Lord Fox, and others, got there ahead of me, but I am delighted to lend my support. Clause 5 amends various sections of the EU withdrawal Act so that retained general principles of EU law are no longer part of UK law from the end of 2023. This clause will achieve the Government’s policy of removing retained principles of EU law. However, will not the abolition of these general principles affect the interpretation of EU law when it becomes assimilated? Should this not be taken into account when considering how to assimilate that law? The Government should therefore justify the necessity for Clause 5.
Amendment 70 looks again to extending to 31 December 2028 with regard to Clause 6. It is a consequential amendment providing clarity on precisely how and when retained EU law will be known as assimilated law. The reference to the end of 2023 in Clause 6(1) is vague, and therefore the greater precision set out in this amendment follows the precedent within the definition of IP completion day found in Section 39(1) of the European Union (Withdrawal Agreement) Act 2020. The additional time should be used for a more thoughtful approach to amending by renaming retained EU law. The choice of date should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and to permit consultation with those who will be affected by the variation proposed by the regulations under Clause 19. This later date will allow for that process to be completed.
Amendment 71 is a consequential amendment, again extending the deadline for a different provision in Clause 6 to 31 December 2028, when it will become known as assimilated law. Equally, Amendment 72 has equal effect on a later provision in Clause 6. Amendment 75 again looks to extend a later part of Clause 6 to 31 December 2028. Amendment 100 is fairly self-explanatory. It is a consequential amendment to] the other amendments in this group to leave out Clause 8(4).
Before I move Amendment 59, I would like to speak to Amendment 76 in the name of the noble and learned Lord, Lord Hope, who has unfortunately had to leave and can no longer be with us. Amendment 76, supported by the noble Baroness, Lady Finlay of Llandaff,
“gives the Scottish and Welsh Ministers a power, equivalent to the power of Ministers of the Crown in Clause 6(6), to amend legislation in consequence of the change in terminology from ‘retained EU law’ to ‘assimilated law’ made by Clause 6.”
That goes to the point made by the noble and learned Lord, Lord Thomas, in the previous group that it is important to have equality of governance across the UK between Ministers of the Crown and Ministers from devolved Governments.
With those few remarks, I hope that my noble friend will give a fair wind to the arguments that I have made to extend the sunset in those various clauses and looks favourably on the amendment in the name of the noble and learned Lord, Lord Hope, as well. I beg to move.
The Deputy Chairman of Committees (Baroness Barker) (LD)
Your Lordships should know that, if Amendment 59 is agreed, I cannot call Amendments 61 or 67 for reasons of pre-emption.
Lord Whitty (Lab)
My Lords, I have three amendments in this group, Amendments 61A, 61B and 61C. I first apologise to the Committee: at the rate things are going, I may not be here by the end of the group. No discourtesy is intended. I hope to be here, but it depends on the length of your Lordships’ speeches.
These three amendments seek to exempt from the sunset in Clause 3 various categories of retained European law. These categories and why they are so important were extensively debated earlier in Committee, but they also need to be excluded from this part of the Bill. These areas relate to employment, environment, food and transport safety, and I pick them out for two reasons. First, these are the areas on which noble Lords have received most representations from organisations, businesses and others anxious about whether key areas of retained law will fall on 31 December.
Secondly, and maybe this has more appeal to the Government, each of those three areas has profound implications for international relations. They are either traded issues, such as food, issues which are clearly covered, for example by the trade agreement with the EU that we will not lessen standards, or else areas which are very complicated in their origins. I take for example transport safety, and aviation and shipping safety in particular. They are partially British laws, partially EU laws and partially international laws coming from the ICAO and various conventions. Unravelling that in any way which diminishes the effect of those laws will have very significant implications for international travel and transport, and organisations which operate in those fields.
Baroness Ludford (LD)
My Lords, I would like to speak to Amendment 62, on which I welcome the support of the noble Lord, Lord Anderson of Ipswich. I will also mention Amendment 67, which is about Ministers being able to extend the sunset for the matters covered by Clauses 3 to 5, which at the moment is lacking. There are such powers for Clause 1, but there are not similar powers for the very important matters covered by Clauses 3 to 5. Amendment 137 is a consequential amendment and introduces our familiar theme of the affirmative procedure.
I want to concentrate on Amendment 62, because it is about removing
“the automatic deletion by the sunset clause of the rights, powers, liabilities etc currently recognised and available in domestic law by virtue of section 4 of the”
European Union (Withdrawal) Act. The amendment calls for no abolition until these rights, powers and liabilities et cetera have been identified, and subjected to consultation and to a report laid before the relevant legislature—Parliament or the devolved ones—detailing the consequences of abolition. We do not have a huge amount of time, so I will not laboriously go through the text of the amendment, which is before noble Lords, but they will recognise the structure of it. On these Benches, there is a pattern to the amendments that we have tabled—Amendments 48, 42 and others which escape my memory at the moment—which are all about this considered way of making decisions.
The point about Amendment 62 is that it reflects one of our consistent objections. When I say “our”, I think I can say that right across the House, at Second Reading and in three days of Committee, there is a concern that it would be almost impossible to know what domestic law would actually look like after the end of this year. This offends key principles of the rule of law, including the requirement of legal certainty, human rights protection and other matters. The risk that this amendment is designed to address is that retained EU law will be revoked unknowingly; it is particularly prevalent for Clause 3 as the dashboard is far from comprehensive on this non-legislative form of law.
These rights encompassed by Clause 3 were originally recognised domestically by Section 2(1) of the European Communities Act and were retained by Section 4 of the EUWA. However, the potential effect of Clause 3 is arguably more serious than that of Clause 1. This is because identifying retained EU law to be deleted by Clause 3 is even more difficult than for Clause 1. We have been extensively through the difficulties of identifying retained legislation. Clause 3 is not a cataloguing of legal instruments. It requires legal research, often into case law of UK courts and the ECJ, to identify which EU treaty or directive articles have been found to contain directly enforceable EU rights and obligations. There may be further rights which are so obviously directly effective that they have never been litigated, and that provides a further challenge to identifying them before the deadline.
The Government have hardly started. Of the 3,800 pieces of REUL identified so far on the dashboard, only 28 rights, powers et cetera caught by the Clause 3 sunset have been identified, and there is no power to extend the Clause 3 deadline if Ministers run out of time. The noble Baroness, Lady McIntosh, has amendments to that effect, as we do in Amendment 67. To delete all those which are not saved by Ministers by the end of this year is reckless and unnecessary, so I am sorry but I am going to take a little bit of time. Unfortunately this group comes at the end of the day, and we are all tired and we all want to get home, but these are really important matters.
I have two examples which have not yet been identified on the famous dashboard so have not been subject to any consultations with affected individuals, organisations or businesses and could have a very severe impact if they are deleted by Clause 3. The first example is Article 157 of the Treaty on the Functioning of the European Union, the TFEU. This goes much further than the right to equal pay under the Equality Act 2010 because it is less restrictive with regard to comparators. For example, under Article 157, a woman teacher can compare herself to a man employed by a different education authority. They do not need to have the same employer. That type of comparison is not possible under the Equality Act. It requires comparison with a man employed by the same employer—it is usually a man; it could be the other way round but, let us face it, it is a normally a woman claiming equal pay with a man—so it has had a pretty revolutionary impact on the ability of women to get equal pay. However, Article 157 is not on the REUL dashboard as a directly effective right, so it would be repealed as a directly enforceable right by Clause 3 at the end of the year and women’s equal pay protections will be severely weakened as a result. Frankly, every woman in this country should be bombarding the Government with that fact. The Government have told us recently everything they say they are doing for women. I welcome anything that they are doing, but this drives a coach and horses through those claims.
The second example is Article 6 of the habitats directive. We have heard quite a bit about that directive, which is about the conservation of natural habitats and fauna and flora. One of the obligations in that directive has been found to be directly enforceable. It is the obligation of the competent authority, in our case the Environment Agency, in special areas of conservation and sites of international importance to habitats and species to
“take appropriate steps to avoid … the deterioration of natural habitats and the habitats of species”
et cetera.
This is a proactive and preventive obligation. It is not enough to react to deterioration once it has happened; it requires anticipatory protections to prevent deterioration and disturbance of habitats and species. That obligation has not been fully transposed into our domestic legislation. There remains in domestic law only a weaker duty on the Environment Agency to have regard to the habitats directive, which has been found not to impose a direction obligation, as article 6 of the EU directive does. So neither the habitats directive nor the case law on it appear on the REUL dashboard.
I hope that in his reply the Minister can address those two specific examples, which are not airy-fairy but very practical and significant. As things stand, this obligation will fall off the radar at the end of the year and the requirements on competent authorities to protect special areas of conservation proactively will be weakened. I must confess that I would like to have the noble Lord, Lord Benyon, here and to hear what he thinks of that.
Lastly, I recall that among the matters that Amendment 62 would require consideration of is the effect on our obligations under the trade and co-operation agreement and the protocol on Northern Ireland. That is a consistent point that we need to make from these Benches.
Lord Anderson of Ipswich (CB)
My Lords, I have signed Amendment 62 from the noble Baroness, Lady Ludford, and I take this opportunity to say a few words about Clauses 3 to 5 more generally.
I spoke at Second Reading and, although I have not so far burdened your Lordships by speaking in Committee, I have watched much of the first two days’ proceedings with what I can describe only as horrified fascination. Reference has been made today to the recklessness of the Bill. I hope to explain as briefly as I can that this recklessness is not confined to Clauses 1 and 2 but reflected just as strongly in Clause 3, as the noble Baroness just said, and indeed in Clauses 4 and 5.
The Prime Minister does not strike me as a reckless man. We do not know his view of the Bill but perhaps we can take something from the fact that when he was Chancellor, he was careful to ensure that the rules for which he was responsible were excluded from its ambit.
A constant theme of the committee debates on EU-derived legislation was what I think of as the warning lights on the dashboard: a catalogue of retained EU law that is not comprehensive, a hole of uncertain size where devolved legislation should be and, however much Ministers may wish to reverse the presumption of revocation, its application by default to any provisions that have fallen down what has been referred to as the back of the national sofa.
Clause 3 has attracted only a small fraction of the public attention devoted to Clauses 1 and 2 but is, if anything, even more productive of uncertainty. So far as I can work out, that uncertainty comes in three varieties.
The first uncertainty derives from the fact that, as the noble Baroness, Lady Ludford, said, no definitive list exists of the rights, powers and liabilities referred to in Clause 3 or, in all probability, is even capable of being prepared. The rights, powers and liabilities referred to include all those provisions of EU treaties that are sufficiently clear, precise and unconditional to confer rights directly on individuals, together with directly effective rights from EU agreements with third countries and directly effective rights in EU directives, subject to qualifications. All those rights had been preserved by Section 4 of the EU withdrawal Act in the interests of legal continuity. All are now to be removed in a single big bang moment at the end of the year, with no provision equivalent to Clause 2 for extending that sunset to a later date, as highlighted in the amendments of the noble Baroness, Lady McIntosh. These measures do not bear the brand “direct effect” on their foreheads; no one has ever made a full list of them. It is quite certain that the 28 directly effective rights listed in the dashboard, one of them repealed, can be only a tiny proportion of the total. No one has counted them, consulted on them or assessed the impact of their imminent removal.
Baroness Ritchie of Downpatrick (Lab)
My Lords, this has been a very interesting debate so far. I want to speak to Clause 3 standing part and Amendment 142, which is in my name and that of the noble Baroness, Lady Suttie. We are both of the firm view not only that the Bill should be withdrawn but, in particular, that it should be amended to remove Clause 3 or to retain Section 4 of the European Union (Withdrawal Act) 2018 to the extent that it preserves retained EU law which gives effect to human rights, equality and environmental protections in Northern Ireland, including all legislation that falls within the scope of protocol Article 2. The noble Baroness, Lady Ludford, has already referred to that point.
Why is that the case? Undoubtedly, Clause 3 removes an additional layer of protection for human rights and equality provisions in domestic law. For example, in research undertaken for the Northern Ireland Human Rights Commission, rights under the EU trafficking directive, which the commission has identified as falling within the scope of protocol Article 2, were identified as being safeguarded in UK law by Section 4 of the European Union (Withdrawal Act) 2018. The repeal of Section 4 of that Act would have no bearing on enduring obligations under protocol Article 2 but it would create a risk of confusion in this regard. I do not think your Lordships can afford to tolerate that fact.
A complex, inaccessible and confusing statute book could lead to an inadvertent breach of these obligations, particularly for organisations that have statutory duties conferred on them by the UK Government to look into Article 2 provisions as they relate back to the Good Friday agreement. Moreover, where there are measures that protect equality and human rights which were retained EU law by virtue of Section 4 of the 2018 Act and which are outside the scope of protocol Article 2, these safeguards will fall unless otherwise preserved, resulting in a loss of rights.
In this regard, I have three questions for the Minister. I ask him for an assurance—perhaps in writing—that the provisions of the Bill are without prejudice to Section 7A of the European Union (Withdrawal Act) 2018, in the absence of this clarification being included in the Bill; and that the UK Government or the devolved authority will, before the Bill takes effect, establish a comprehensive notification process for the law that is to be sunsetted, extended or preserved. In the case of Northern Ireland, we do not have institutions at the moment. What consideration was given by the Government to compliance with Article 2 of the protocol in the development of the Bill? It seems clear to me that one hand does not know what the other hand is doing according to legislation.
Amendment 142 seeks conformity with Section 7A of the EU withdrawal Act which gives domestic effect to the UK-EU withdrawal agreement. The Minister, when responding, needs to demonstrate to your Lordships’ Committee how the Bill will be in compliance with Article 2 of the protocol. Unfortunately, the Explanatory Memorandum does not show how this will happen.
The Minister also needs to demonstrate how the Government can seek consent from Northern Ireland with the lack of an Executive and Assembly. How will the process of reviewing, revoking, replacing or restating retained EU law by 2023—some nine and a half months down the road—be carried out in Northern Ireland? Those special considerations must be taken into account. Therefore, Clause 3 should not stand part of the Bill.
Lord Hannay of Chiswick (CB)
My Lords, I would like briefly to refer to this group of amendments, particularly to the aspects which seek to give the Government some flexibility as they go along this road. I am not wishing to address the cut-off dates, because that has been liberally described and debated already in earlier amendments, but the points that the noble Lord, Lord Whitty, made.
I am sorry to see that the noble Lord, Lord Callanan, is leaving the Chamber as I was about to address a question to him. I will address it to his colleague instead. I wanted to get on to the ground covered by the noble Lord, Lord Whitty. He talked about the possibility that some of the actions the Government wish to take will cut across our obligations under the trade and co-operation agreement or other international agreements and treaties, and will put the Government of the day in a very awkward and difficult position. Flexibility would give them a way of handling that.
I know that the author of this Bill wanted, like Ulysses, to stop his ears with wax and tie himself to the mast—the only difference being that he would not be on the boat when it hit the rocks. Other than that, that was what he was trying to do, and I do not think that is a sensible thing to do. Some flexibility, as suggested by some of these amendments, would be better. I say that because, until the events of Monday this week and the announcement of the Windsor Framework, one could imagine that the Government would have just said too bad, or words that are not repeatable in this Committee used by the former Prime Minister. However, I do not think that is the situation we are in now. We are in a situation where the Prime Minister and the Government have said that they wish to move in the direction of greater co-operation and flexibility, working with the EU. But here they are, stopping their ears with wax, tying themselves to the mast and making it very difficult to do that.
Here are my questions. It is no secret that the ambassadors of member states and of the Commission are deeply disturbed by this Bill. Anyone who has had any contact with them will know that. Could the Government say if they have received any representations about this Bill from any of the member states or the Commission? If so, what was the nature of those representations and what has their response been? I know the Minister does not much like being interrupted when he is winding up, so I hope he will answer that question because it will save me the trouble of interrupting him. His colleague, the noble Baroness, Lady Neville-Rolfe, will no doubt tell him what the question was. I would be grateful to hear the answer.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will speak briefly in support of Amendment 76, as the noble Baroness, Lady Finlay of Llandaff, cannot be in her place. I made all the arguments in relation to Amendment 58, and I do not intend to repeat them. I await with great interest the ingenious answer that will come out this time for treating the nations with inequality.
I will take one minute to support Amendment 62 most strongly. So far, we have been dealing with known knowns: we know that there is legislation. There is a bit of the known that needs due diligence, but that falls within the same category, and we should get there on legislation. But I will not be satisfied about that until I see how it has been searched for. However, in this area, we move into the known unknowns. The Bill shows a profound misunderstanding of the genius of the common law and the huge benefit of it and our way of doing things in this country. We are like magpies: we take good things from places and adapt them.
Lord Fox (LD)
My Lords, I will speak to the two amendments in my name. It is late, and I will try to keep this as short as possible, first addressing Amendment 67. Amendment 62, in the names of my noble friend Lady Ludford and the noble Lord, Lord Anderson, focuses on much of the same ground as Amendment 67, and there has been a lot of wise discussion in that area. I support their points but do not need to echo them. However, I add that Clause 3 has the effect of sunsetting retained EU rights, powers, liabilities, et cetera. Unlike Clause 1, the Bill does not allow the Clause 3 deadline to be extended, which increases the likelihood of accidental deletions. Why is that extension not advanced for Clause 3?
I will focus on the proposal that Clause 5 should not stand part of the Bill. This is intended to probe the effect of abolishing the general principles of EU law—we briefly heard from the noble Lord, Lord Anderson, on that process, and the noble Baroness, Lady McIntosh, also alluded to this. I remind your Lordships that we have established that much EU law is, as the Minister described it, a “mishmash” of interwoven UK and EU-derived law. I think that that is what the noble Lord, Lord Anderson, called, rather more alarmingly, the “interpenetration” of law. Until now, the general principles of EU law have been used by lawyers, court and tribunals in the UK to interpret the EU part of that mishmash. These general principles include legal certainty, equal treatment, proportionality, non-retroactivity, effectiveness, equivalence and respect for fundamental rights, among others—like the noble Lord, Lord Anderson, I was unable to find a definitive list.
A further example of a general principle of EU law is the Marleasing principle. Looking at experienced lawyers opposite, I feel I am probably entering terrible territory by even mentioning this. But my understanding is that the application of this principle means that, if no national law at all has been passed to comply with a directive, it was held that having national legislation passed specifically in the name of the directive was not necessary. In any case, the Bill does away with this, so there may be some lasting effect. So this amendment probes the practical effect of abolishing direct-effect supremacy, and the general principles of EU law, taken together.
As we know, the UK regulations set out the letter of a law, the bare bones. However, in spite of the excellent work done in this Chamber to achieve clarity in those laws, there is often uncertainty—noble Lords will find that hard to believe—as to what the words actually mean.
Where the regulations give effect to a directive, such as the working time directive, the courts use the directive to help them understand the meaning of the regulations. Directives, unlike UK law, set out their purpose and their aims. Those aims help a court or tribunal to interpret the regulation. My understanding is that during the process of assimilation, new assimilated law loses contact with the EU directive and the EU-derived part of the law in that mishmash. It loses the basis for ongoing interpretation.
I can understand, post Brexit, why on the face of it the Government wish to sweep away all mention of EU law and EU directives—I get that. However, the meaning and understanding of the regulations, as we now have them—the Minister’s mishmash—has taken years and many different appeal cases, and much individual expense, to give the level of understanding of the law and the regulation that we now enjoy.
For example, litigation began in 2001 over whether workers were able to carry over their annual leave when they were too sick to take it. This was finally settled many cases later by Plumb in 2015—14 years later—with a carryover right. This is not unusual. Common law incrementally decides issues before a settled understanding emerges. The default of the Bill is to sweep away all this accrued understanding or at least put it in question and not provide any clear statement of what the law will be going forward.
If the Government do not want to change the settled meaning of UK law as it is interpreted today, my understanding is that they would need to audit all the conforming interpretations that have affected regulations from court decisions and translate those court decisions into the body of the new or replacement regulations. Is that what the Minister intends? If so, that intention should be inserted in the Bill. However, I suspect this is not the plan. In that case, even if all the regulations were preserved in assimilated law, the abolition of direct application, supremacy and general principles will result in the UK waking up on 1 January 2024 to a new year with large swathes of law that no lawyer will be able accurately to predict or advise on, causing great uncertainty—the sort of uncertainty that the noble and learned Lord, Lord Thomas, alluded to.
A colleague said to me as I was trying to explain this, “Surely no judge would want to throw out all that case law.” That is where we come to the interrelation of Clause 7. However, we will not know what the judges decide until a case has been brought. Let us not forget that there are thousands of laws here, which could mean thousands of potential tests. We will not know how the test will end until a judge rules on it—probably more than once, as experience shows.
Can the Minister explain why there is no plan to port the interpretation and case of the laws that we have within the mishmash into the assimilated law as we go forward? If there are plans, could he explain what they are?
Lord Hacking (Lab)
It is quite clear from what the noble Lord said to the Committee that he is in favour of Amendment 62. It seems to me that, as a result of what he has said, he must be opposed to Clause 3 standing part of the Bill. I wonder whether he could confirm that.
Lord Fox (LD)
Yes, absolutely. I made the point about Clause 3 missing out on the sunset laws. That is clearly part of my dissatisfaction. I also said that I supported, but did not echo, the wise words on Amendment 62. In the interests of brevity, I was trying not to cover everything.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, also in the interests of brevity, I will just say that there is real fear and concern that we will end up with a massive mishmash of legal confusion in this area. That concern is very real in the world of work, in particular in areas such as equality—not least in equal pay for work of equal value and protection for insecure workers, where so many advances have depended on EU-derived legislation and case law. Previous judgments will no longer be binding, and issues will have to go through the judicial system again. As Michael Ford KC wrote in the Financial Times:
“Workers and employers will be back at square one. The whole lengthy and expensive process of appeals will have to be repeated. Even the most enthusiastic lawyer views such a … task with dismay.”
Having to argue those key points again will be costly and cause delays. Frankly, that usually benefits those with the biggest wallets.
The Bill hands huge powers to, and puts enormous pressure on, the Court of Appeal and the Supreme Court, which have been instructed to depart from case law informed by EU law if they consider it right to do so. Of course, the chances are that there will be an avalanche of requests from lower courts or tribunals making references to higher courts about departing from retained EU case law. The result will be workers and employers spending more time in court—in a system that already has huge delays—in a desperate attempt to find out what the law now means.
Lord Hendy (Lab)
I will make a short point about Amendment 61A, tabled by my noble friend Lord Whitty. In the amendment, he seeks to exclude from the effect of Clause 3 employment rights and health and safety at work. At the end of Tuesday, I sought to demonstrate that health and safety at work was a protected area which could not be repealed or amended under the Bill because of the protection given by the trade and co-operation agreement, which my noble friend and the noble Lord, Lord Hannay, mentioned this evening. I will explain why it covers some but not all employment rights.
There are two ways in which it operates. The first is via Article 387, which requires that a party, including the UK,
“shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.”
Indeed, Article 387.4 requires that:
“The Parties shall continue to strive to increase their respective labour and social levels of protection”.
On Tuesday, I pointed out that labour and social levels of protection are defined by Article 386, which includes not only
“occupational health and safety standards”
but
“fundamental rights at work … fair working conditions and employment standards … information and consultation rights at company level; or … restructuring of undertakings.”
It is quite apparent that many of the EU laws on employment are protected by that definition.
The other way in which some employment rights are protected is by Article 399.5:
“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted.”
I will not reiterate the many ILO conventions which protect employment rights at work, but Members of the Committee may not be so familiar with the European Social Charter. I will not read the text of the relevant provisions, but I will just mention that Article 2 protects the right to just conditions of work; Article 3 protects the right to safe and healthy working conditions; Article 4 protects the right to a fair remuneration; Article 7 concerns the right of children and young persons to protection; and Article 8 concerns the right of employed women to protection. There are other provisions as well.
For these reasons, it appears to me that my noble friend Lord Whitty is right to seek protection for employment rights, or at least some employment rights, that are covered within those two ambits, as well as health and safety at work.
Baroness Chapman of Darlington (Lab)
My Lords, I thought the Bill was bad, but this debate has been quite shocking. I really do not think the Government know what they are doing with these clauses. I do not think that, when the Bill was initially proposed while the Government were having their moment of madness last autumn, we thought that something like Clause 3 would be before Parliament in March the following year. Reckless does not quite cover it; it is as if the Government got completely drunk and now we have a hell of a hangover to deal with.
It is clear from the debate we had earlier in the week, and from the letter, that the Government have not appreciated what the impact of this clause will be. It would be very helpful if we could have a statement or a letter from the Government explaining exactly what they intend to happen as a consequence of this clause, because, listening to the debate, I think that things will emerge that Ministers have not fully taken into account. I thank the noble Baroness, Lady Ludford, most sincerely for her Amendment 62; it is at least an attempt to put some safeguards around what could be about to happen. I am particularly concerned by the high-handed and nonchalant way in which Ministers are dealing with the issue of Northern Ireland. I have seen no evidence at all that the Government have appreciated the impact that what they are about to do could have on the agreement that they have only just entered into with the EU.
I have not read the full text of the agreement—I do not pretend to have done—but I have read the political declaration. It seems very clear that, underpinning the political declaration of the Windsor Framework, limited divergence will be permitted between the EU and the UK, to maintain the soft border arrangements on the island of Ireland. That is clearly what is intended by the political declaration; I expect that is why the noble Lord, Lord Frost, is so upset about it and does not seem to want to support it. That limited divergence is put at risk by the measures in the Bill.
The Minister earlier today did not want to engage with that. She said she was absolutely certain that I was wrong. I think that I am right and she is wrong. I would like a letter from the Minister for the Library explaining why the Government are so sure of themselves on that issue, because these are incredibly important questions; we cannot just be expected to skirt over them and take flippant assurances from the Benches opposite. Clearly, the consequences of Clause 3 and the following clauses may have dramatic impacts. They create great uncertainty. I just do not understand how Ministers can be so sure or even expect us to engage sensibly in this discussion, given what we have just heard.
My noble friend Lady Ritchie’s comments and her amendment are incredibly important. I hope the Government will reflect seriously on this debate. How can the Government think that the rights, liabilities and powers in Clause 3 will ever be reflected properly in the dashboard process? How is that supposed to work? Unless it works, how on earth are judges or citizens expected to make decisions, or employers expected to know what their responsibilities and duties are, if we go ahead with this clause?
Ministers will no doubt say that we are worrying unnecessarily and are taking too much time—that it is 7.05 pm. I do not care that it is 7.05 pm; these issues are just so important. I ask the Minister, please, not to treat this House in the high-handed way that Ministers do on occasion. It is not just him; I am sure others do too. These are critical questions that we are asking. If he cannot answer adequately today, please can he commit to going away and coming back with something more substantial? I can tell him now: this clause does not leave this House and go back to the other end given the debate that we have just heard. The mood of the Committee seems to be one of not wanting this to go forward. We are going to face this on Report.
I will be asked by my Chief Whip to prioritise votes and make sure that we do not have too many. I think that is going to be quite a challenge given what we have heard today, so the more the Government can themselves reflect and consider what has been said—particularly on the issues around Northern Ireland—the better. They must show us that they have done some proper thinking about that and appreciate the consequences of the Bill in relation to the agreement that was made only on Monday. That is the only way in which we can move forward.
I apologise for taking up a little more of the Minister’s time, but I am very patient, and I will sit here until he has given us the assurances we need. He can expect some interventions—irritating though he finds them—if he attempts not to answer the questions raised by noble Lords as part of this discussion.
Lord Callanan (Con)
I am very happy to stay as long and late as the House requires. I was very happy to stay later the other night as well, but I believe it is the noble Baroness’s party that said it wanted to go home early and that we therefore needed to finish.
Lord Collins of Highbury (Lab)
There is no need for these sorts of insults; we have agreed times.
Lord Callanan (Con)
Hang on a second—I made that point because the noble Baroness, Lady Chapman, said that I was being dismissive of her points and that it was 7.05 pm and that I wanted to go. I have relayed that I am very happy to stay as long as the House requires, but I believe it was the Labour Party that said it wanted to finish early the other night, and at 7 pm tonight.
Lord Callanan (Con)
Anyway, let us move on to the issues.
Let me first introduce government Amendments 65 and 66, which work together to remove a cross-reference in this Bill to Section 183A of the Data Protection Act 2018. This new Section 183A is due to be inserted into the Data Protection Act by the Data Protection and Digital Information Bill. Since the DPDI Bill is not anticipated to receive Royal Assent in this parliamentary Session, new Section 183A will not exist when this Bill receives Royal Assent. As such, noble Lords will understand that, for practical reasons, it is necessary to remove the cross-reference. Let me reassure the House that the Government are committed to maintaining high data protection standards and a functioning data protection regime. At this stage, we are minded to use the DPDI Bill to insert the reference to Section 183A of the Data Protection Act into Section 5(A3) of the European Union (Withdrawal) Act 2018.
Amendments 73, 77, 78, 79 and 80 are to Clause 6 of and Schedule 1 to the Bill. These amendments are consequential to the Bill policy in Clause 6 which establishes “assimilated law” as a new body of law from the end of 2023. These changes are required to end the special status of retained EU law. Amendments 73 and 77 rename two further terms related to retained EU law, so that from the end of 2023 they will be renamed as terms related to “assimilated law”. The consequential Amendments 78, 79 and 80 make textual amendments to individual references in priority pieces of primary legislation which support the interpretation of retained EU law on the statute book, so that from the end of 2023 the identified references to retained EU law and related terms will be changed to references to “assimilated law” and related terms. These amendments are being tabled now purely for purposes of legal clarity and legal accessibility.
Turning to the non-government amendments, I start with Clause 3, which, as noble Lords have observed, repeals Section 4 of the European Union (Withdrawal) Act. Amendments to this clause seek to delay that repeal and thus a core part of the Government’s ambitious programme of retained EU law reform.
The matters saved by Section 4 consist largely of rights, obligations and remedies which overlap with rights already well established by domestic law. In our view, these overlaps can cause confusion, so we should no longer perpetuate this situation. Work is already well under way across departments to identify the implications of the repeal of Section 4 of the 2018 Act, and the Bill provides adequate powers to codify and safeguard relevant rights in domestic statute as needed.
Indeed, as Sir Stephen Laws, ex-First Parliamentary Counsel, said:
“The ideal for the law is that all law can be found from easily accessible sources and relied on to mean what it says without being qualified by complex, obscure or general glosses, or involving complex historical research to find out whether it is valid. The Bill, by removing everything that is subject to those disadvantages—because the ideal is not the situation at the moment for retained EU law—is an important step towards securing that the ideal is achieved, by forcing the decisions to be made about how this law can be properly integrated into UK law quickly. Things will only get worse if that does not happen.”
That will not mean the blanket removal of rights. Rather, combined with other measures in our Bill, it will result in the codification of rights in specific policy areas. This clarification will provide certainty for businesses and citizens in this country.
On Amendment 59 in the name of my noble friend Lady McIntosh, although I appreciate the concerns about the ambitious timetable we have set, I can assure her that the retained EU law reform programme is well under way and will ensure that the necessary legislation is in place by the sunset deadline.
Turning to Amendment 60, removing just Clause 3(2), as the amendment aims to do, would reduce legal certainty. We consider that this amendment is intended to operate in conjunction with Amendment 61, which seeks to delay the repeal of Section 4, so let me turn to that amendment.
We do not believe it is necessary to delay the repeal of Section 4. Where required, the Government will use the powers in the Bill to codify specific rights clearly and accessibly in domestic statute, and work is indeed under way to do so. These powers are also conferred on the devolved Governments, with whom we will of course continue to work closely to ensure that the most efficient and appropriate approach to exercising powers is taken in a way that provides certainty for all parts of our United Kingdom.
Amendments 61A, 61B and 61C in the name of the noble Lord, Lord Whitty—I know he is no longer in his place but he apologised for having to leave, so I will address his points—relate to policy-specific carve-outs from the measures in Clause 3 and from the sunset clauses more broadly. We have already discussed carve-outs extensively in previous groupings, and I do wish to rehash the same arguments. However, I reiterate that the Government do not see the need for carve-outs in individual departments, policy areas or sectors.
The intention of the proposed new clause under Amendment 62, put forward by the noble Baroness, Lady Ludford, is to leave matters saved by Section 4 of the 2018 Act on our statute book for longer—perhaps in some cases indefinitely. The noble Baroness mentioned in particular Article 157 of the Treaty on the Functioning of the European Union, which is on equal work for equal pay. Equal pay already exists in UK statute. However, we recognise that here, the expression of the EU-based right can be slightly wider than its expression in UK legislation. That is why we have put powers in the Bill to codify the policy intent of these interpretive effects, such as Section 4 rights, where we need to. It would be for the Government Equalities Office and other government departments to decide whether to use the restatement powers in Clauses 12 and 13 to codify those principles.
The noble Baroness also mentioned Article 6—
Lord Anderson of Ipswich (CB)
I am grateful to the Minister. Of course, if you are going to use those codification powers, you have to know what you are codifying. I think he said a moment ago that work is under way to identify the rights, powers, liabilities, et cetera which are saved by Section 4 of the European Union (Withdrawal) Act. Only 28 of those rights, powers and liabilities have so far found their way into the dashboard. How many have now been identified now, and when does the Minister anticipate that the work will be complete?
Lord Callanan (Con)
As I said, the work is under way at the moment across all the rights codified in those sections. As the noble Lord said in his speech, this is a complicated area of law. I do not want to get into a complicated legal argument, so it is perhaps best if I seek advice from the lawyers and write to him, as he suggested, on the legal technicalities of that area.
Lord Anderson of Ipswich (CB)
I think I must have failed to get across, when I addressed the Committee earlier, that we are not here dealing with legal technicalities but with massive uncertainties at the very heart of the Bill, uncertainties that relate not to legislation but belong to legal principle. I tried to help by saying how I thought Clauses 3 to 5 related to Clause 7. If I was right about that, the task of applying any European authority under Clause 7 becomes astonishingly difficult, because a court has to read every one and see whether it contains general principles, direct effects or supremacy before it can even decide whether it is going to apply it or not. I hope I did not leave the Minister with the impression that these are legal technicalities, and I hope that, if he writes to the Committee about this, we will have a full explanation of how Clauses 3 to 5 and Clause 7 are intended to relate to each other.
Lord Callanan (Con)
I will talk to the lawyers and attempt to get the noble Lord an answer to his concerns.
The noble Baroness, Lady Ludford, mentioned the habitats directive. I am slightly loath to go back there, after the long discussion with my noble friend Lord Benyon on Tuesday, but let me restate again for the benefit of the record that the Government have been clear about the importance of environmental protection across the UK, not least through the Environment Act, which includes a legally binding target to halt the decline of nature by 2030. As I emphasised earlier in the debate, we are committed to meeting this target and we will of course not undermine our obligations to the environment.
Baroness Ludford (LD)
I apologise to the Minister, but that is not the point I was asking about. I am no expert on the habitats directive, but a specific clause has been interpreted in case law as imposing a preventive, proactive duty—in our case, on the Environment Agency. Will that be retained?
Lord Callanan (Con)
Case law is being retained. Case law is not being abolished, it will still exist, and courts will still be able to take account of it. Removing the complex and opaque legal gloss associated with Section 4 of the 2018 Act will improve the clarity of our domestic law. It would be, in our view, inappropriate, to leave these provisions on our statute book, and we wish to end them as soon as reasonably practicable. We consequently also oppose Amendment 137, which specifies that any regulation made under the power conferred by Amendment 62 would be subject to the draft affirmative procedure.
Lord Fox (LD)
I think the Minister is departing from Clause 3. This sounds like small beer compared to some of the issues that colleagues have raised, but I asked a specific question about the difference in approach to the extension of sunsetting between Clauses 1 and 3, and I hoped the Minister would address that—if he was intending to.
Lord Callanan (Con)
I have some more remarks on Clause 3. Let me come to the end of them and, if the noble Lord does not feel that he has got an answer, we can talk about that further then.
I was going to move on to the point of the noble Baroness, Lady Ritchie, who tabled notice of her intention to oppose Clause 3 stand part of the Bill. For the reasons set out, the repeal of Section 4 of the 2018 Act is, in our view, a crucial part of the Government’s agenda to take back control of our statute book and improve legal clarity. I completely agree with the points made by the noble Baroness, Lady Chapman, about the Windsor Framework. We do not think this Bill has any effect on the agreements made. Of course, we will examine the text of that very closely, but it goes without saying that the Government are completely committed to the agreement and we would not wish to do anything in either this or future legislation to impinge on what I view as a fantastic agreement.
Moving on, Clause 4 abolishes the principle of the supremacy of EU law. I do not think that I have any notes to address the points made by the noble Lord, Lord Fox, so let me say that we will include that in the general write-around about—well, I will not refer to them as legal technicalities because the noble Lord, Lord Anderson, will tell me that they are extremely important legal principles. I will seek legal advice and get a proper answer for the Committee.
Lord Anderson of Ipswich (CB)
The Committee heard from a former Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, that these principles go to the heart of how common law is applied in this country. I do not think that that is a legal technicality.
Lord Callanan (Con)
I acknowledge the noble Lord’s point but I will get him a proper answer from the lawyers.
Baroness Chapman of Darlington (Lab)
When the Minister gets us that proper answer, I would be grateful if he could explain—I do not understand this, but I do not know whether others do; perhaps some noble and learned Lords understand it—the difference between the “interpretive effects” that were mentioned in the letter from the noble Baroness, Lady Bloomfield, and case law. What is the impact of that difference? The noble Baroness’s letter clearly states that the Bill will
“repeal retained EU interpretive effects.”
I am not clear what that means; I wonder whether the Minister could include that in his letter.
Lord Callanan (Con)
I would be happy to include it in the letter. I hesitate to give what I think is a legal definition in front of so many noble and learned Lords but I am told that interpretive effects are not case law. As I understand them, the interpretive effects are the general principles of EU law that have been used to apply to the interpretation of retained EU law because it was EU-originated. We wish to abolish interpretive effects, but that does not impinge on the case law, which of course remains.
Moving on, Clause 4 abolishes the principle of the supremacy of EU law for the end of 2023 in so far as it still applies to pre-2021 legislation. Amendment 64 would delay the abolition of the retained principle of EU supremacy until the end of 2028. There is cross-party support for the end of supremacy. In the House of Commons, Justin Madders MP—he is a spokesman for the Labour Party, I believe—said:
“Overall, we agree that there has to be an end to EU supremacy in UK law”.—[Official Report, Commons, Public Bill Committee, 24/11/22; col. 186.]
If left unreformed, supremacy would remain a constitutional anachronism on our statute book. We believe that it is simply incompatible with our status as an independent, sovereign nation, and we therefore wish to end it as soon as we can.
Baroness Chapman of Darlington (Lab)
Can I just explain Justin’s comments? The Minister has provoked me. Clearly, the shadow Minister was talking about a sane, considered process by which this matter is dealt with, not the lunacy that the Minister is trying to promote today.
Lord Callanan (Con)
I do not think he said that; he said that there has to be an end to EU supremacy in UK law. While we are all swapping letters, perhaps the Labour Party might want to write us a letter to clarify what he meant. I am not being serious, of course; it is not the Labour Party’s job to do that.
Amendment 142 in the name of the noble Baroness, Lady Ritchie, seeks to clarify that this Bill does not disturb Section 7A of the European Union (Withdrawal) Act 2018. That section makes the rights and obligations in the withdrawal agreement available in domestic law. It also provides that domestic legislation must be read and given effect subject to those rights and obligations. I can reassure the noble Baroness that this Bill will not disturb Section 7A of the 2018 Act. I can also assure her that the Bill provides powers to restate rights and obligations required for Article 2 of the Northern Ireland protocol as needed. The Government will ensure that all necessary legislation is in place by the Bill’s sunset date to uphold all the commitments made under Article 2.
Amendment 100, tabled by my noble friend Lady McIntosh, would remove the sunset date for the compatibility power in Clause 8. It is not necessary to have a power to specify legislative hierarchies beyond 23 June 2026, by which time the Government will have exercised the power as needed.
I move on to Clause 5. I understand that the noble Lord, Lord Fox, has given notice of his intention to oppose the question that Clause 5 stand part of the Bill. General principles of EU law were developed in CJEU case law, with which EU institutions and member states must comply. I submit that it is clearly no longer suitable for our status as an independent nation outside the EU—however much the Liberal Democrats wish that not to be the case—for these specific principles to continue forming part of UK law. The powers in the Bill allow the Government to codify clearly any necessary effects to bring clarity to our domestic statute book.
Baroness Ludford (LD)
I am sorry to interrupt the Minister but that remark was gratuitous. The point is about legal certainty. It is not about whether we as a party, or anybody else, would have wanted to remain in the EU—it is clear that we would. It is about whether the law will be clear, and whether the judges will be able to operate it, and whether businesses, unions and whoever will know what they are supposed to be doing. That is the point that we have been trying to make over four days on this Bill. Brexit is irrelevant to this discussion, and I do not believe I have used the word once in these proceedings. What is important is whether the law will be able to be operated with certainty, clarity and predictability.
Lord Callanan (Con)
That is fair enough; it was a slightly gratuitous point. I actually agree with the noble Baroness—we want the law to be as clear and accessible as possible. That is why we do not believe that the general principles of EU law, which of course were developed by the CJEU for use primarily by EU institutions and member states, should be relevant to the UK now that we are an independent nation, whatever our differences of opinion might have been on that.
Lord Fox (LD)
I think I failed to explain why I think that they are relevant. They are relevant because of the EU retained law part of the Minister’s mishmash, which gets assimilated into UK law. The interpretation of that EU part, which is now UK law, somehow loses the basis upon which the interpretation was made. I explained that I understood why the Government wanted to do this, but the fact that they become separated is an issue. I suggested a way for those interpretations to be ported across, specifically and explicitly for each one. If that is not the way it will be done and the Minister says that somehow this is going to happen, then at some point in this debate we need to understand. If it is not in the letter, then it needs to be later in this debate.
Lord Callanan (Con)
I made the point earlier that, when departments are reviewing their legislation and any modifications they might need to make to statutory instruments, they will of course want to take account of the fact that the general principles of EU law will no longer apply in the UK and make any modifications that would be required.
I move on to the somewhat related point raised by the noble Baroness, Lady O’Grady. Let me be clear that retained case law—this comes back to the point made by the noble Baroness, Lady Chapman—is not and cannot be directly sunsetted, as it consists of judges’ judgments, which are essentially statements of historical fact. Where general principles and other interpretive effects are removed by the Bill in Clauses 3 to 5, it would be expected that courts would continue to consider relevant case law where it is clear from the restatement that that is the intention.
Amendment 67 would introduce an extension power for the removal of general principles of EU law, as well as the abolition of supremacy and the repeal of Section 4 of the 2018 Act, as I have already set out. Removing these complex legal glosses will, in my view, satisfy the noble Baroness, Lady Ludford, and improve the clarity of our domestic law. It is imperative that we end them as soon as is reasonably practicable.
Baroness Chapman of Darlington (Lab)
The Minister has made a number of commitments about providing letters and further information to the Committee, for which we are grateful. We are due to sit for an additional day on Monday. I do not think it is reasonable to ask the Committee to conclude its deliberations on the Bill without sight of the further information that the Minister has promised, so will he commit that we will receive it in good time before we start consideration on Monday—not two minutes before the Committee starts, but in adequate time for us to consider it before we begin? It would not be right for us to be asked to conclude Committee without it.
Lord Callanan (Con)
I am not going to give an absolute commitment, but I will talk to the lawyers. On the famous letter from my noble friend Lady Bloomfield, I actually pushed officials to try to assimilate the contents of the letter and get it out to the Committee as quickly as possible, because I thought noble Lords would want to see it before we considered the Bill on a further day. They worked very late into the evening to get the letter out, after going through all the necessary approvals that the Government need to go through. Given some of the criticisms, I wish I had not bothered. Nevertheless, I still think it was helpful to noble Lords and will do my best to get them the letter to which the noble Baroness referred.
Baroness McIntosh of Pickering (Con)
My Lords, this has been an excellent debate. It reflects not least the concerns of the legal practitioners, who will be left to interpret the status of the laws. But what concerns me is that the Minister and the department are perhaps in denial about the level of concern that has been expressed not just in the Committee this afternoon but in those examples from various sectors that we have heard today. This has been a beneficial session in probing where we can reach agreement before Report to help the Government get the Bill through. I know that my noble friend cares very deeply and passionately about that.
The Committee accepts that the supremacy of EU law will go but my noble friend needs to consider whether the abolition of this principle will affect the interpretation of EU law when it comes to being assimilated. Is that not a factor to take into account in how we assimilate that law? I leave my noble friend and the Committee with that thought.
However, I believe that we have established some ground rules during this debate, so that we can regroup before Report. I, among others, look forward to receiving the letter from my noble friend and, at this stage, beg leave to withdraw my amendment.
Lord Callanan
Member's explanatory statement
This amendment leaves out a reference to section 183A of the Data Protection Act 2018 (inserted by clause 43 of the Data Protection and Digital Information Bill) from section 5(A3) of the European Union (Withdrawal) Act 2018 (inserted by Clause 4 of the Bill).
Member's explanatory statement
This amendment is consequential on the Minister’s amendment to Clause 4, page 3, line 2.