Retained EU Law (Revocation and Reform) Bill

(Limited Text - Ministerial Extracts only)

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

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

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[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.

--- Later in debate ---

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.