Retained EU Law (Revocation and Reform) Bill

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

Commons Reasons

15:34

Motion A

Moved by

[Lord Callanan]

That this House do not insist on its Amendment 15D, to which the Commons have disagreed for their Reason 15E.

15E: Because the Commons do not consider the Lords Amendment necessary in order to maintain environmental protection.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, with the leave of the House, I will also speak to Motion B. The House will be pleased to know that I can be brief again today. We have extensively debated these issues on a number of occasions.

The reality is that the House of Commons has considered this Bill once more and has come to the same conclusions as previously, again with significant majorities. This is now the third time that it has made its will clear. It is the elected House and has been firm in its position. We have to take that into account, along with its democratic legitimacy.

I welcome that the noble and learned Lord, Lord Hope, recognises our constitutional position. I hope that the noble Lord, Lord Krebs, will be able to do the same. The other place would find it extremely difficult to understand if, on the amendment of the noble Lord, this unelected House sent a Bill back to it yet again.

Noble Lords have seen that the Government have moved on a number of issues during the passage of the Bill, both on Report and subsequently. Crucially, we have provided transparency on our plans on what retained EU law we intend to revoke this year—I remind the House that this was a key demand from this House during the Bill’s passage—by publishing a schedule of retained EU law that is to be removed from our statute book by the end of 2023. This addressed the concerns raised by many noble Lords and, of course, provided greater legal certainty.

We have been clear throughout the passage of the Bill that the Government will not row back on our world-leading environmental protections. In reviewing our retained EU law, we want environmental law to be fit for purpose for the UK’s unique environment and able to drive improved environmental outcomes, as we have set out in our Environment Act targets, while ensuring that regulators can act efficiently. Any changes to environmental regulations across government will be driven with those goals in mind.

In addition, I emphasise that it is standard practice to consult on major policy changes for the environment. It is right that Secretaries of State may exercise discretion when it comes to consultation. Any such discretion must be exercised in accordance with the law and guided by the consultation principles published by the Government. Those principles ensure an efficient and proportionate burden on government, while facilitating meaningful consultation.

Furthermore, it is worth noting the new legal framework created by the Environment Act 2021, our ambitious environmental plans created under it and the legally binding targets set under Sections 1 to 3 of that Act. This is the context in which the REUL Bill and its regulation-making powers will operate.

Moreover, from 1 November there will also be a legal duty on Ministers to have due regard to the environmental principles policy statement when making policies using the Bill’s powers. This Government use expert advice, including that of many independent experts, when making provisions that relate to the environment.

The UK continues to play a leading role on the international stage, driving increased ambition in environmental international law. Most recently, at the 15th meeting of the Conference of the Parties to the Convention on Biological Diversity, UK leadership was instrumental in securing global agreement to stretching targets to halt and reverse biodiversity loss. We will remain a world leader on the environment. Nothing in this Bill alters that fact.

Let me now turn to Amendment 42F. I thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, for their dedication on this amendment. I am sure I speak for us all in this House when I say that parliamentary scrutiny is, and always will be, the pivotal foundation of our democracy. Their commitment and expertise on this matter is, of course, admirable. As I have said throughout the passage of the Bill, the Government recognise the significant role that Parliament has played in scrutinising instruments, including throughout the EU exit process. I firmly believe that UK citizens voted to leave the EU to re-establish the sovereignty of our UK Parliament. At its heart, the Bill seeks to do exactly that. It is for this reason that we have included the process of sifting committees for the powers to revoke or replace, among others in the Bill.

To further reassure the House, let me put it beyond any doubt. On each and every occasion to date, we have always followed the sifting committee’s recommendations. We will continue to adopt the same practice of following the recommendations that the sifting committee makes to upgrade the scrutiny procedure attached to instruments made under the powers in this Bill. Where the committee considers that a statutory instrument should be subject to the affirmative procedure, we will ensure that it is laid in draft before Parliament so that it can be debated in both Houses. This will ensure that Members are able to debate all reforms which the committee considers merit the highest level of scrutiny, to ensure that Members have the opportunity to properly scrutinise those reforms and that Ministers are aware of their arguments, ideas and recommendations. It will of course be at the Minister’s discretion, but where significant reforms are planned on which there is particular interest from the House, Ministers will be able to publish draft instruments, alongside any relevant statements and consultation responses, ahead of laying those statutory instruments.

In addition, I can commit today that, where the Government are making significant reforms to retain EU law, using the replace limbs of the powers in Clause 14, we will follow the usual protocols on public consultation. These will be run in the usual way, as is already a ministerial duty. I reassure the House that the results of such consultation will be made available to Members of both Houses in the established manner.

Finally, as noble Lords will know, we have committed in this Bill to publish a report on retained EU law reform and the use of the powers to Parliament every six months. In this report we will provide Parliament with a six-month forward-look at major reforms which will utilise the powers under Clause 14. This will provide Parliament ample time to ask the Government questions on these reforms through the normal procedures of Parliamentary Questions and correspondence. It will also provide the relevant Select Committees with the time to initiate inquiries on reforms where they deem it necessary and to provide the Government with recommendations, which as usual we will respond to.

Taken together, these measures will allow parliamentarians, both in this House and the other place, an additional opportunity to review our reform plans ahead of any debates. They will provide an opportunity and time for this House, as well as the general public and UK businesses, to let their views on reforms be known. After all, this is the fundamental benefit of Brexit: we will ensure that our statute book reflects the best interests of the UK, rather than some of the compromises of all EU member states. This will allow our citizens, our businesses and, importantly, our parliamentarians to make their voices heard in this important reform process.

I hope that I have sufficiently reassured the House of the Government’s intentions, and that both noble Lords now feel able not to press their Motions and to allow this Bill to progress to Royal Assent. This is an important piece of legislation. Let me repeat once again that the Government have already made significant amendments in the light of many of your Lordships’ concerns. Frankly, it is now time that the Bill reached the statute book. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Lord Krebs]

At end insert “, and do propose Amendment 15F in lieu—

15F: After Clause 15, insert the following new Clause—
“Environmental protection
(1) Regulations may be made by a relevant national authority under section 15 only if the relevant national authority is satisfied that the regulations do not reduce the level of environmental protection arising from the EU retained law to which the provision relates.
(2) Prior to making any provision to which this section applies, the relevant national authority must seek advice from persons who are independent of the authority and have relevant expertise.””.

[Lord Krebs (CB)]

My Lords, the debates we have had on the various amendments that I have put forward to ensure environmental protection remind me of the train journey from Oxford to London in recent months, due to disruption of the Paddington line. The journey takes longer than you would have wished and you do not end up at the destination that you had hoped to end up at.

This is the fourth time that my amendment has been debated, including on Report, and each time I have made concessions. I have reduced the scope of the amendment and this time I have made a further concession. The Government are still unwilling to accept the amendment, which is a source of disappointment to me. However, I did have a positive meeting with the noble Lord, Lord Benyon, and the noble Baroness, Lady Neville-Rolfe, last week, when we talked about points that could be made from the Dispatch Box that would provide a level of reassurance. For example, my amendment refers to the need to take independent advice before changing any rules that protect the environment—and the noble Lord, Lord Callanan, indeed said that in his speech a few moments ago. He made reference to the environmental principles, which is a very positive step—although I note that the principles do not come into effect until later this year, so there will be a gap between the approval of this law, assuming it goes through, and the application of the environmental principles. There is a short window of worry there.

15:45

I was pleased to hear the Minister say that environmental protection will be maintained, although he was not prepared to say that there would be no regression on environmental standards. Sometimes you look as closely at what people are not prepared to say as at what they are prepared to say. There is a slight amber warning light in my mind about why the Government are not prepared to say, in terms, that they will commit to non-regression on environmental standards and protections. Nevertheless, some positive words were said.

Equally important was the Minister’s statement that the question of environmental protection and standards was not owned by just one department, Defra. He clearly said that the business of protecting the environment applies right across government, and that the commitment to uphold environmental standards is a government-wide commitment and not just a Defra commitment.

We have travelled on a long journey, as I say, and have made some progress in the Minister’s speech today. We have not quite ended up at the destination that I would have hoped to end up at, but, at this point, I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I echo some of the concerns expressed by the noble Lord, Lord Krebs. In moving the amendment, my noble friend the Minister referred to the amendments from the Commons, completely overlooking the fact that there is no legislative consent. Scottish and Welsh legislative consent has been withheld, and I understand that the Government have not yet heard from Northern Ireland. I think that he referred to the fact that we have now moved on and do not have to rely on the other member states to pass our environmental laws, but I would feel more comfortable if the four nations agreed on what the environmental principles should be. I would be very pleased to hear from my noble friend what he believes the situation currently is.

I have just one word of caution. I fear that environmental protections are not as secure as perhaps we might be led to believe by this Government. We have just had brought into effect two ground-breaking free trade agreements with Australia and New Zealand, both of which have set lower standards for imported meat and foodstuffs, which do not meet the same requirements of animal welfare and environmental protection such as our home producers have to meet. That is another source of concern.

Perhaps my overriding concern is that we have seen already—despite the fact that they said that they would not do this—that the Government have overturned primary legislation through secondary legislation in the form of a statutory instrument in the past two weeks.

I have outstanding concerns on these amendments, but I respect the fact that our power is limited to scrutiny in this Chamber. I believe that the Bill is in a better place than when it was first introduced to this House, but I have concerns about what will happen when it leaves this place.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly to express great concern about the lack of any offer on non-regression. I am going to bring this back to the absolute physical reality of the UK and the England that we are in today. In the other place, the Science, Innovation and Technology Committee has started an inquiry into the impact of insect decline on food security. If anyone wants to see the practical reality of this, I invite them to go out the back of the Foreign Office today, where a wonderful wildflower meadow has been created—they should go and look at it and ask where the insects are, because there are practically no insects there.

We have insect decline and a decline in our plants. Non-native plants now outnumber native plants in the UK: that is the state of the UK today. We have, right now, a huge, category 4 marine heatwave, which is going to have a huge impact on our marine world. It is very clear that the protections for the environment that we have now are vastly not enough, yet we are not promising even to maintain them. I ask everyone in this House to consider what people in the future will think when they look at today’s debate.

[Lord Hope of Craighead (CB)]

My Lords, I think it is appropriate that I speak to Motion B1 in my name, on the issue of parliamentary scrutiny. That issue remains as important this afternoon as it has been since the Bill first arrived in this House and the noble and learned Lord, Lord Judge, addressed us, with his usual skill, as to the importance of the issue. I have been doing my best to secure its place in the Bill at every stage, but each attempt has been rejected, either as novel and untested, which happened twice, or as incompatible with the system that the Bill lays down, on the last occasion. I regret very much that I have not been able to devise any other way of achieving that object that would be acceptable to the Government.

However, I did find two words, buried in a long and rather complicated paragraph in Schedule 5, which I think may at least open the door to something which is worth looking at more carefully, and that is the subject of my amendment. I am particularly grateful to the noble Lord, Lord Callanan, for being prepared to speak to me so that I could explain the purpose of my amendment and ask him whether he would be prepared to make a statement, in effect, giving me, in his words, what I was asking for in my amendment: words of explanation about these two words and reassurance about how the Government propose to respect the need for Parliament to be kept properly informed and consulted at each stage as the process of revocation proceeds.

The two words I am talking about, by way of explanation, are to be found in paragraph 6 of Schedule 5, which sets out an elaborate screening process in a case where a Minister is of the view that these statutory instruments should be subject to the negative procedure. The protection lies in the hands of screening committees of both Houses, which can take the view that the instrument should be subject to the affirmative procedure. If that is done, the Minister has the opportunity to give an explanation and perhaps try to persuade the committees to change their mind.

The important point for my purposes is to be found in sub-paragraph (12) and the words:

“Nothing in this paragraph prevents a Minister of the Crown from deciding at any time before a statutory instrument containing regulations under section 11, 12 or 14 is made that another procedure should apply in relation to the instrument”.


It is the words “another procedure” that caught my attention, because there is no further explanation in the schedule as to what that other procedure might be, except that in the following sub-paragraph there is a declaration that the statutory procedure for laying regulations in draft under the 1946 Act is not to apply, so we cannot have the statutory procedure of the 40-day period; that has been ruled out. My question to the Minister is: what is this other procedure that is available? The Minister has been very good in explaining in considerable detail what he builds into these words. In effect, he is providing me with exactly what my amendment is asking for. I welcome very much the clarity of his statement and we will of course bear it very closely in mind as the process proceeds.

My concern has always been that we are moving into the unknown. We have been told many times that the dashboard contains information. The dashboard sets out a list of names of the instruments, but it does not tell us, at least at the moment, what is to be done with them. That is the importance of the statement that the Minister has made today, because we need to be told, as everything proceeds, what is going on and what is planned and be able to express our views as to whether the proposals are acceptable or sensible or otherwise. I thank the Minister for his statement and I also express my warm thanks to all noble Lords who have supported me throughout my campaign and enabled me to maintain my campaign to the point I have reached today, but in the light of what the Minister has very kindly said, I am not intending to press my amendment.

[Lord Hacking (Lab)]

My Lords, I thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, for their persistence on these issues that they have brought before the House. I hear with a little disappointment that the noble and learned Lord does not intend to press further with his amendment in its current form. From their efforts, it is absolutely clear that this House strongly holds that, if the Bill is to become law, it must contain proper parliamentary scrutiny over the treatment of all EU legislation, whether that treatment is to revoke, amend or approve it. There are in the region of 4,000 regulations that need to be considered.

I remind the House of the Divisions that have resulted from these efforts. There have been three Divisions on Report and two more in our jousts with the Commons during so-called ping-pong. On each occasion, we have replied not to the Government as a whole or to the House of Commons as a whole, but to a small caucus of Government Ministers and parliamentary draftsmen. I ask noble Lords to look at the substantial numbers in the House—up to 400 Members and sometimes more—who voted on all five of these amendments. For example, on 6 June no fewer than 439 Members voted and on 20 June no fewer than 422. The majorities on each occasion ran between 91 and 60 votes.

The question is what happens now. Sadly, although most understandably, it appears that the noble and learned Lord, Lord Hope, and, I imagine, the noble Lord, Lord Anderson, are saying that this is the time to give up. This could bring the Parliament Acts into consideration. I will not go into them, but I have examined their application very carefully. I have also had good conversations with the noble Lord, Lord Fox—he need not look so startled; he must remember them—about their relevance. The serious difficulty with the Parliament Acts is that, if we held our ground, the House of Commons would have to present this Bill in its original form to the House of Lords. As the noble and learned Lord wisely commented to me, “Oh really?” I took that plainly as a riposte for us not to involve them. The question of the Parliament Acts must now arise on another occasion, which may not be far off.

16:00

[Lord Fox (LD)]

My Lords, for the record, my advice was to not apply the Parliament Acts.

The substantive point of this debate is to look at the two amendments and, in particular, to listen and understand what the Minister has said in response to those amendments. I am grateful for the interpretations of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Krebs.

I turn first to the amendment in the name of the noble Lord, Lord Krebs. It is clear that your Lordships have repeatedly expressed their concern about potential regression, especially around environmental rules. We have heard fulsome and completely true undertakings from the noble Lords, Lord Callanan and Lord Benyon, and others from the Dispatch Box in seeking to allay your Lordships’ fears. However, not every ministry and every Secretary of State has been represented. We only have to look at what happened over the weekend, when a Government Minister from the Department for Levelling Up took aim at pollution rules with a view to development issues, to know that there are potential problems around this. My noble friend Lady Parminter talked about canaries in coalmines; that was a canary. We have to hope and trust that the undertakings made by the noble Lords, Lord Callanan and Lord Benyon, are applied right across His Majesty’s Government. It is clear that, after repeated discussions, we will not be voting on this today.

I turn to the amendment in the name of the noble and learned Lord, Lord Hope. Your Lordships should thank not just the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, but the noble Lords, Lord Hamilton and Lord Hodgson, who have identified the issue of parliamentary sovereignty and worked hard to try to resolve it. The Minister himself spoke about the number of times this has come back. If it had not come back this time, the Minister would not have given the undertaking he just gave from the Dispatch Box which satisfied the noble and learned Lord, Lord Hope. The fact that it satisfied the noble and learned Lord means that it satisfies me.

We have been through a long journey but I do not think this journey has been in any way frivolous. It has been worthwhile, and it has exacted, as the Minister set out, many changes to the Bill. Your Lordships need to be proud of the work they have done on this Bill.

[Baroness Chapman of Darlington (Lab)]

My Lords, we agree with Amendments 15F and 42F from the noble Lord, Lord Krebs, and the noble and learned Lord, Lord Hope. We are sorry that the Government take the attitude they do to the involvement of Parliament in the scrutiny of retained law, especially as this House has been proved right on these issues. This House has given the Government good advice that they have largely ended up taking.

The amendment in lieu in the name of the noble and learned Lord, Lord Hope, simply asks that the Minister considers how regulations might best be dealt with. We note the assurances from the Minister; they have been, as the noble Lord, Lord Fox, rightly pointed out, hard-won. We thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, in particular for the sterling work they have done over many months to get as far as we have.

The amendment in the name of the noble Lord, Lord Krebs, would protect law on environmental standards. We think there are clear and obvious reasons to want to do this, not least because we want to see the environment protected. It is worth adding that the Government’s failure to support this point as fully as they could have done still leaves further uncertainty for business and potential investors about the exact nature of the framework that they would have to comply with. We are sorry about the approach the Government have taken.

We are very grateful to our Cross-Bench colleagues in particular for the work that they have put in. The Bill is in a much better place now than it was when we first encountered it—noble Lords will remember the sunset clause and the lengthy arguments we had over that. The Government did listen in the end, though initially with some reluctance. I hope that in time Ministers will see that that was the right decision. We have got to a better place this afternoon.

[Lord Callanan (Con)]

My Lords, I thank everyone who contributed to today’s debate. I will respond to some of the points that have been made. First, we take Dispatch Box commitments extremely seriously. I reiterate that this Government will not row back on our world-leading environmental protections, as I mentioned in my opening remarks.

To respond directly to the point made by the noble Lords, Lord Krebs and Lord Fox, and the noble Baroness, Lady Bennett, on this issue of non-regression, the fundamental problem is that nobody know what non-regression actually means. We all think we do, but putting it in primary legislation invites every change to environmental regulations to be challenged, as they inevitably would be, in the courts. The courts would then be asked to take a view on whether a particular change was regression or not. In effect, we would be transferring the legislative process from Parliament to the courts, on every individual regulation. Although we are content to say that we will not row back on environmental protections, that is the reason we are unwilling to see such a phrase placed in primary legislation. I am sure some of the environmental lobbyists and their lawyers would be very happy about all the work it would generate for them if we were to do so, but this is not the way to make legislation. We have to be clear about what we mean in Parliament. As I have said before, any regulation would have to be approved by this House and the other place, which is the appropriate place for these things to be decided. Great though the courts in this country are, it is not their job to legislate.

On the question raised by the noble and learned Lord, Lord Hope, paragraph (6)(12) of Schedule 5 to the Bill clarifies that the provisions of paragraph (6), which sets out processes relating to an instrument proposed as a negative instrument and subject to sifting, would not prevent a Minister deciding that another scrutiny procedure should apply to a particular instrument any time before that instrument is made. In deciding which other procedure should apply, the provisions of the Bill give a Minister a choice between the negative and the draft affirmative procedure, and in practice would give a Minister the ability to upgrade the scrutiny procedure from the negative to the draft affirmative procedure. The sifting committees already have the ability to recommend that regulations which the Government are proposing to make via the negative procedure are of such importance in their content that they should be upgraded to the affirmative procedure, which would then allow them to be debated as normal in both Houses. As I have set out today, and I am happy to repeat it again, on each and every occasion to date we have followed the sifting committee’s recommendations, and we will continue to do so if utilising the powers under this Bill.

We have debated these matters long and hard on many different occasions, as the noble Baroness, Lady Chapman, acknowledged. We have listened to the House; we have amended the Bill quite considerably in response to some of the concerns raised by noble Lords. This House has done its job in scrutinising the Bill. This House has asked the House of Commons to think again on a number of different occasions. It has thought again and it has responded. It is now time to let this Bill pass to Royal Assent.

[Lord Krebs (CB)]

My Lords, I thank all noble Lords who have taken part in this short debate today, and also on the previous occasions when we have debated these two amendments. I do not want to highlight any particular contribution, although I thank the noble Lord, Lord Fox, for introducing cricket last week and canaries this week; sport and birds are two of my favourite occupations, so I thank him very much for that. I thank the Minister for his patience throughout the many hours of debate, with its recursive nature that meant we kept coming back to the same arguments.

I do not totally buy what the Minister has just said about non-regression handing this over to the courts, and that the environmental groups would have a field day. Such groups could equally have a field day over the words that the Minister himself used about maintaining our high environmental standards. Surely the Bill could have defined what non-regression means in this context.

I do not buy the argument and I remain disappointed. Luckily for me, when I became head of an Oxford college 15 or so years ago, somebody bought me a book on how to deal with disappointment; that has come in very handy this afternoon so I am not going to throw a wobbly. In accepting the Government’s response, I think they will be aware, of course, that it is not just Members of your Lordships’ House who will be watching carefully to ensure that environmental standards are upheld; it is the wider public. We have only to look at the number of people who belong to organisations with an environmental interest, such as the National Trust and the Royal Society for the Protection of Birds, to realise that a very powerful force is out there.

There will be scrutiny of what the Government do. They will be held to account on “non-regression” or “maintaining high environmental standards”. I am sure that Ministers in this Administration and any future Administration will be fully aware of the public concern about the state of our environment, which was so eloquently illustrated by the noble Baroness, Lady Bennett of Manor Castle, a few minutes ago. Nevertheless, at this point, I beg leave to withdraw Motion A1.

Motion A1 withdrawn.

Motion A agreed.

Motion B

Moved by

[Lord Callanan]

That this House do not insist on its Amendment 42D, to which the Commons have disagreed for their Reason 42E.

42E: Because the Commons consider the scrutiny procedure imposed by the Lords Amendment to be inappropriate.

Motion B1 not moved.

Motion B agreed.