Retained EU Law (Revocation and Reform) Bill
Thursday 2nd March 2023
(1 year, 8 months ago)
Lords ChamberRetained 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.