Retained EU Law (Revocation and Reform) Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Ludford, in particular, for her speech. She said a lot of the things that I was going to say, and noble Lords should all be grateful to her, because she has saved them listening to me. We agree that we have real problems with Clauses 12 to 14. Our concerns about Clauses 12 and 13 are mainly about the extent of the powers that are going to be held by Ministers for national authorities, and the lack of consultation. I also want to mention Amendment 103 in the name of the noble Baroness, Lady Humphreys, because it seems appropriate, on the face of it, for the devolved Administrations to have rather more involvement than these clauses, as currently drafted, seem to allow for.

In Clause 12, it would be good to get a bit more clarity from Ministers on this issue of restatement. I am not entirely clear what is meant by restatement. It is rewriting, I think, because if it were not some sort of rewriting, it would just be “retain”; we would not be having another category called “restate”. Can the Minister define what is meant by “restate”? Obviously, it means that the language can be changed, which could change the meaning, the scope, the power of the law. It could be altered, maybe inadvertently or perhaps intentionally; so who is going to check that the restatement has the effect that Ministers would want, that the devolved Administration would want, that those who are subject to the law would want, or that Parliament would want? I understand if it is about wanting to bring different pieces of law together, perhaps, or to resolve some sort of ambiguity, but how is the Minister going to determine that something is ambiguous? If it is ambiguous, by definition that must mean that there is more than one way of interpreting this piece of law; if there was not, it would not be ambiguous. So how are they going to determine what the right answer to that should be?

The DPRRC is very helpful and clear about this. Apart from anything else, it says that both Clause 12 and Clause 13 should be removed from the Bill—we think it is completely right—because they “inappropriately” delegate legislative power and give

“Ministers powers to legislate to achieve effects that ought instead to belong to Parliament and be achieved in … primary legislation.”

But they also refer to restatement, as the noble Baroness, Lady Ludford, drew to our attention. We are concerned that that could take the Government somewhere they perhaps do not intend to go. Given the pressures on time, which we have already discussed at length—do not worry, Minister, I am not going to go through all of that again—restatement could have a different outcome from that intended. That is before we even get to the powers to revoke, which in some ways might be more concerning. That is a real problem for the Government, and it would be good to know whether they have recognised that potential issue and if so, what measures they have put in place to help prevent any undesirable outcomes that may arise.

I will leave it at that because we will probably come on to similar arguments in the next group. We are very concerned. We do not generally have clause stand part debates, but we are very worried about these two clauses in particular.

[Lord Callanan (Con)]

I thank all noble Lords who have spoken, and I will do my best to assuage the concerns of the noble Baroness, Lady Chapman. The main objective of this Bill is to end REUL as a legal category, as we have said many times. We view the powers to restate as critical to ensuring that the Bill delivers this vital objective, while at the same time ensuring that UK legislation is clear, accessible and improves legal certainty.

I will start by addressing the amendment in the name of the noble Lord, Lord Fox, which the noble Baroness, Lady Ludford, spoke to. Clause 12 is critical in ensuring that the UK and, crucially for the noble Baroness, Lady Humphreys, who I do not think is in the Chamber any more, devolved Ministers—

[Noble Lords]

She is over there.

[Lord Callanan (Con)]

Oh, she is! I apologise to the noble Baroness. She was sat somewhere else earlier.

My point is that devolved Ministers would also have this power and are able to clarify, consolidate, codify and restate any secondary retained EU law to preserve the effect of the current law, while removing it from the category of retained EU law. Removing this power will remove the ability of departments to restate retained EU law to preserve the effects of retained EU-derived principles of interpretation in order to maintain the existing policy effect where it is considered appropriate for the UK in a post-Brexit setting.

The noble Baroness, Lady Ludford, queried whether restatements were just bringing back principles removed by the Bill. I can understand why she might think that, but other parts of the Bill are clear that supremacy and general principles are being abolished and Section 4 of the EU withdrawal Act is being reprieved. These principles or rights will not be recreated in general terms; rather, this power is limited to restating specific individual effects of these principles in particular case law. Indeed, this power will, I submit, provide greater legal certainty to the UK statute book by enabling Ministers—both UK and devolved Ministers—to restate REUL and codify the effects of retained EU case law or EU-derived interpretive effects in a clear and more accessible way.

On the query from the noble Baroness, Lady Chapman, the general legal definition of “restate” is to articulate the principles of REUL for a specific area of law—which is in fact what these powers do. I submit that there is no need to remove this clause from the Bill.

Turning to Amendment 102, tabled by my noble friend Lady McIntosh, I assure her that we have sought to ensure that the Bill contains robust scrutiny mechanisms, including for the power to restate under Clause 12. The noble Baroness, Lady Ludford, cited the comments from the Delegated Powers and Regulatory Reform Committee. I reassure her that the restatement power—I think this also goes to the heart of the query from the noble Baroness, Lady Chapman—can be used only to retain a current policy effect of specific individual implications of interpretive effects or retained case law; that is, it maintains the policy status quo, so there would be no changes to the underlying policy.

Regarding consultations, our expectation is that departments will follow the standard procedures with the devolved Governments during policy development. The UK Government are, as always, committed to respecting the devolution settlements and the Sewel convention. Indeed, as I said earlier, the majority of the powers in the Bill—including the powers to restate under Clauses 12 and 13—are indeed conferred concurrently on the devolved Governments. We will of course continue discussions with the devolved Governments moving forward to ensure that the most efficient and appropriate approach to REUL can be taken in a way that provides certainty for all parts of our nation. Therefore, we do not consider that adding a requirement to consult on the face of the Bill is necessary.

Amendment 103 would prevent the power to restate from being able to operate fully on devolved REUL. It is pivotal that there are no impediments or delays in delivering this much-needed REUL reform. I recognise the points that the noble Baroness, Lady Humphreys, made. Indeed, she may have concerns about the potential impacts of the power to restate within areas of devolved competence. However, I will endeavour to convince her that her concerns are unfounded. None of the provisions in the Bill, including the power to restate REUL, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments.

I turn now to amendments relating to Clause 13 and the powers to restate assimilated law, starting with the Clause 13 stand part notice; the noble Lord, Lord Fox, cannot be here, so the noble Baroness, Lady Ludford, spoke to it. Clause 13 is critical to ensuring that the Government are able to reproduce the effects of retained case law and EU-derived principles on the body of law that was REUL and becomes assimilated law at the end of 2023. This is essential to ensure that a consistent approach to the UK statute book can be taken following the sunset by enabling Ministers to exercise this power on former retained EU law that has not been revoked by the sunset and which remains on the UK statute book as assimilated law.

On Amendment 105, I reiterate that this Government recognise the importance of ensuring that legislation undergoes the appropriate level of scrutiny and consultation, and we are committed to working collaboratively and constructively with the devolved Administrations. Therefore, we do not consider it appropriate or necessary to add a requirement to consult to the Bill, because doing so would limit the ability of departments to use the power before it sunsets on 26 June 2026.

Amendment 106, tabled by the noble Baroness, Lady Humphreys, would require legislative consent to be sought from the devolved legislatures before a UK Minister makes regulations under the power to restate assimilated law in areas of devolved competence. I reassure the House again that none of the provisions in the Bill, including the power to restate assimilated law, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments. The majority of the powers in the Bill, as I have said, will be conferred concurrently on the devolved Governments. This will enable them to make active decisions regarding their retained EU law or assimilated law within their areas of devolved competence, and it will provide them with greater flexibility to decide how to regulate those areas currently governed by REUL within their competence.

I will move on to Amendment 107. As I have said, we are committed to devolution and to working collaboratively and constructively. We are committed to continuing discussions with the devolved Governments moving forward to ensure that the most efficient and appropriate REUL can be taken to every situation in a way that provides certainty for all parts of the UK.

--- Later in debate ---

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

My Lords, this has been a good debate, probing our powers to revoke or replace, which are important cross-cutting enablers of the REUL reform in the Bill. They will allow the Government to overhaul retained EU laws in secondary legislation across many sectors of the economy, as we have heard, and replace them with domestic laws that are tailored to and beneficial for the UK.

It would make sense to begin with the debate on the clause stand part notice, which was introduced by the noble Lord, Lord Clement-Jones, and supported by the noble Lord, Lord Hannay, and explain why we believe that Clause 15 must stand part of the Bill. Retained EU law no longer aligns with EU law, nor does it keep pace with the evolving needs of the UK’s citizens or businesses. That is why reform is needed. Although the Government recognise the importance of ensuring that delegated powers are appropriately limited and have the necessary safeguards in place, we judge the powers under Clause 15 to be necessary in order to deliver this reform. I am afraid we do not agree with the DPRRC recommendation to remove Clause 15 from the Bill.

At present, the problem is that there is a distinct lack of subordinate legislation-making powers to remove retained EU law from the statute book. This is an oddity. It results from our EU membership and it is appropriate to take a power which covers the gap. Removing Clause 15 would significantly damage the UK’s legislative dynamism and potentially hinder the UK’s ability to regulate adequately. There must be scope for reform over the next two to three years if we are to deliver post-Brexit benefits.

I note that the noble Baroness, Lady Chapman, raised concerns in particular around Clause 15(3). We recognise that the power under Clause 15(3) is a broad one, but we want to ensure that departments have the necessary tools to create a regulatory environment which is the right fit for the UK. In addition, Clause 15(3) may still provide only “alternative provision” to the retained EU law or assimilated law being replaced. Any replacement legislation must therefore cover similar ground to the retained EU law or the assimilated law it replaces. Therefore, the power cannot be used to create new regulations in wholly unrelated policy areas, for example. Moreover, I add that nothing in this legislation prevents the Government introducing sector-specific primary legislation where that is considered necessary and appropriate for that subject area, as exemplified by the Procurement Bill, the Agriculture Bill and the Environment Bill in recent times.

I turn to Amendment 112, introduced by the noble Baroness, Lady Chapman, and tabled by the noble Baroness, Lady Mcintosh of Pickering. Although the latter has gone home, I listened to this with care. The amendment would hinder the removal of regulations that have been identified as outdated and unsuitable for UK citizens and businesses, which we do not think would be efficient lawmaking. As I touched on before, we do not consider adding to the Bill a requirement to consult to be appropriate or necessary. Equally, I understand the concerns that have been raised.

I turn to Amendment 113, tabled by the noble Baroness, Lady Chapman. Honourable Members—sorry, noble Lords: exempting regulations and judgments on customer protections, which range from aviation to pensions and, indeed, to toy safety, which the noble Lord, Lord Clement-Jones, spoke to, from this power would obviously reduce the scope for reform that the Bill sets out to deliver in an orderly manner. There is simply no need for any carve-outs for individual departments or specific policy areas or sectors. Doing that would prevent the UK Government carrying out the necessary work to overhaul secondary retained EU law, which sits across so many different sectors of the economy.

I think my noble and learned friend Lord Bellamy talked about tides and how EU law had become entrenched in UK law. Where protections are necessary, these will be kept, but there is an opportunity to improve and in some places simplify laws passed over many years in Brussels.

Turning to Amendment 114, introduced by the noble Lord, Lord Clement-Jones, Clause 15(2) has already been restricted such that any replacement legislation must be appropriate and must

“achieve the same or similar objectives”

as the legislation it is replacing. This amendment seeks to further restrict that subsection. The use of the word “effects” instead of “objectives” would further restrict the functionality of this limb of the power and prevent departments undertaking reforms that would adjust the existing policy to better fit the UK context. It is important that we ensure departments are able to amend their legislation to better fit that UK context, so this is an important clause.

Amendments 120 and 121, tabled by my noble friend Lord Lindsay, both seek to amend the limitation on Clause 15 that states that the replacement legislation must not add to the overall regulatory burden—so allowing extra burdens. In seeking to remove Clause 15(5) and (6), both amendments would increase the scope of the powers and enable them to be used to introduce additional regulation. Consequently, they would create a wider power than the Government have proposed or intended. As such, these subsections are a necessary check on our powers. Comments have been made that Clause 15(5) and (6) mean that regulation made under these powers could be challenged by the courts. That is of course correct, and like any delegated legislation, an entirely appropriate check.

We recognise that it will not always be a scientific test precisely to establish what the value of regulatory burdens are, or to balance one burden against another. That is why we have sought to ensure an appropriate level of discretion for Ministers in the interpretation of Clause 15(5) and (6). When doing so, the Minister is required to act reasonably and to take into account relevant factors. This strikes the right balance between limiting the scope of the powers and providing Ministers with a pragmatic degree of discretion in deciding whether the regulatory burden test has been met. The restriction to the powers to revoke or replace set out in Clause 15(5) and (6) will help the UK to establish a more UK-specific regulatory approach in order to go further and seize the opportunities of Brexit.

We have sought to ensure that the powers to revoke or replace cannot be used to add to the overall regulatory burden for a particular subject area. However, it will be for the relevant authority to decide. I thought I would share with noble Lords a hypothetical example from my own experience. There may be instances where there are multiple reporting requirements for businesses across a number of regulations in a similar area. Through consolidating these reporting requirements in a single regulation—aligning dates, for example—it can be administratively easier for businesses to comply with the regulations, and it may be possible thus to lower the regulatory burden while maintaining exactly the same standards and, indeed, possibly providing better enforcement. I hope that example reassures my noble friend Lord Lindsay, who I know does so much to try to tackle overburdensome regulation.

In responding to the interesting point made by the noble Lord, Lord, Hacking, about the ability of the powers under Clause 15 to create a criminal offence and provide for monetary penalties, I hope I can be reassuring. Any offences or penalties must correspond to, or be similar to, those which the revoked provisions provided. In that sense, the power does not provide licence to create wholly new offences or penalties, but rather allows like-for-like replacements for what already exists: for example, similar conditions for the commission of an offence and similar penalties. Furthermore, any instruments made under Clause 15(3) will be subject to the affirmative procedure, as well as any instruments made under Clause 15(2) which recreate a delegated power or create a criminal offence present in retained EU law.

To conclude, it is right—

[Lord Clement-Jones (LD)]

My Lords, I wanted to interrupt the Minister before she got much further because I was much struck by her phrase “damaging legislative dynamism”. What would be more dynamic than changing retained EU law in product safety so that it covered online marketplaces? If that is legislative dynamism—very desirable legislative dynamism—what would prevent it? Well, Clause 15(5) would prevent it. How could it be possibly balanced against any other form of deregulation, however much discretion the Minister had? That would be around the edges. Can the Minister answer the hypothetical that I put in my speech?

[Baroness Neville-Rolfe (Con)]

There is a balance here. What we have got are powers that allow us to make changes, such as the example that I gave, which will improve the state of regulation. There may be a bit of an extra burden at the margins, but if you are bringing regulation into a new area, which I think is what we are talking about, in my opinion—and I am not an expert in this particular area—that might be a case for primary legislation. Of course, we are about to have further primary legislation in the digital area in the coming months.

[Lord Hacking (Lab)]

I thank the Minister very much indeed for sitting down. The Minister did not quite answer my cardinal point that it is well-established in our law that all criminal offences, and all penalties arising out of those criminal offences, are part of primary law, not secondary law. That means that, if there are EU regulations that are creating criminal offences and penalties, they are no more right than the current proposal that Ministers will now do it. Both are wrong.

[Baroness Neville-Rolfe (Con)]

The point I was making is that we are not creating new offences with these provisions. I will look further at Hansard, but I think that what I said was right and not a cause for concern—obviously, there were penalties attached to Section 2(2) and so on, in my experience.

I need to move on. Amendment 121A was tabled in the name of the noble Lord, Lord Whitty. As I made clear in relation to the previous amendments, the restrictions to the powers set out in subsections (5) and (6), combined with a non-exhaustive list under subsection (10), will help the UK to establish a more nimble and innovative approach to seize Brexit opportunities. Furthermore, the ability for the powers to act on assimilated law after the sunset date will enable the Government to have sufficient time to undertake necessary reform. However, the Government agree with the principle that adequate limitation should be in place on the exercise of powers. We have sought to ensure the powers are restricted in their use and are available only in a time-limited window—this ends on 23 June 2026.

In the same spirit, Amendment 123, tabled by the noble Earl, Lord Lindsay, seeks to remove the non-exhaustive list in Clause 15(10). Let me again assure the Committee that the requirement not to add to the overall regulatory burden has been drafted in a manner which will allow the relevant national authority to determine how best to achieve the desirable policy outcome.

I turn to Amendment 134A, in the name of my noble friend Lord Lucas and pick up on the comments of the noble Baroness, Lady Ludford. Honourable Members—sorry, I should say noble Lords. I think I need to pay 50p for any such mistakes; I am sorry about that. As outlined by my noble friend Lord Benyon on day two of Committee, the Bill will not alter our commitments to the environment. The Minister made it clear in his speech that the default position of Defra is to retain EU laws. This will allow us to keep protections in place, providing certainty to businesses and stakeholders, and to make reforms tailored to our needs. The Government also recently announced the environment improvement plan, on 31 January 2023, which sets out comprehensive action that the Government will take to reverse the decline in species abundance, achieve our net-zero goals, and deliver cleaner air and water. I hope this will help reassure the Committee that the Government will not be trashing the kind of protections that we want to continue and improve. There will also be a further opportunity to discuss the environment in a later grouping on Wednesday.

Lastly, I turn to Amendment 118A—it was the last amendment to be tabled so I have come to it last—for which I thank the noble Baroness, Lady Thornton. Her proposed criteria include a requirement to share the draft instrument with the Equality and Human Rights Commission, and for the commission to provide an assessment setting out the potential legal impact on human rights and equalities, including in relation to the Equality Act 2010 and the Human Rights Act 1998. As such, no replacement provision could be made under Clause 15(2) and (3) unless the Equality and Human Rights Commission had confirmed that there was no negative impact as a result of the proposed draft instrument.

We fully intend to maintain the UK’s leading role in the promotion and protection of human rights and the rule of law. We have a long, proud and diverse history of freedoms and we will ensure that our international human rights obligations continue to be met. The powers to revoke or replace are important cross-cutting enablers of retained EU law reform in the Bill. Clause 15 has been purposefully drafted to be broad in scope, and we have sought to ensure that there are important safeguards in place. This amendment would restrict the ability for the powers under Clause 15 to be used to undertake important REUL reform, so we do not believe that it is necessary.

[Baroness Thornton (Lab)]

Could the Minister write to tell me what the safeguards she is referring to are? She probably does not want to explain them at this time of night, but I cannot see anything in the Bill that tells us what safeguards there are. Perhaps she could write and tell the House what they are.

[Baroness Neville-Rolfe (Con)]

I think the safeguards were in relation to the clause as a whole, but I will certainly write to the noble Baroness. This has been an important discussion, but for now I ask the noble Baroness, Lady Chapman, to withdraw the amendment.

[Lord Lucas (Con)]

My Lords, the Government are taking huge powers in the Bill to abolish EU legislation and are asking us to believe the promises they have made; for instance, on environmental law, that they will not decrease environmental protection. I entirely accept those promises. This is a well-run Government who are capable of controlling what they do and living up to their promises. In that case, what is the problem with just saying, “And we’re not going to increase the regulatory burden”? We would say, “Okay, we believe you; we don’t need you to have a power to stop yourselves doing that”. What kind of Government need to legislate to stop themselves behaving well?