Retained EU Law (Revocation and Reform) Bill

Baroness Andrews Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Andrews (Lab)]

My Lords, in following on from what the noble Lord, Lord Pearson, said, let me say that we had that debate at Second Reading; it was exhaustive and the noble Lord’s argument was, I think, properly demolished.

I welcome the Government’s amendment. The Minister will know that I have been a fairly regular critic of the Government. I am afraid that I have to quote back to him now a letter that he kindly wrote on 5 April to the Common Frameworks Scrutiny Committee—I declare my interest as chair of that committee—because it will illustrate the scale and speed at which the Government have moved here. We had asked a raft of detailed questions and sought further clarity. This is what the Minister said,

“the sunset clause is the backbone of the Bill. It lays the groundwork for an ambitious and efficient overhaul of all REUL. The sunset date is the quickest and most effective way to end REUL as a legal category and will incentivise genuine … reform in a way that works best for the whole of the UK”.


That really does illustrate how far the Government have moved on this. The Bill has lost its backbone—but we must remember that it was described as “hyper-skeletal” by one of our scrutiny committees, so there was not much backbone to be lost.

I think we all welcome the fact that, if the Government have had the courage and common sense to renege on this issue, it will not be much of a loss. Most importantly, they have removed the critical risk that we reiterated time and again throughout Committee. They have not removed all the risk, not by any means—we need much more clarity on the processes going forward and on the use to which ministerial powers may be put, which will come in later amendments—but the risk of chaotic, accidental, fatal mistakes being made and not being able to be recovered has been removed.

Regulations designed to protect people from harm and protect their rights were threatened with going over a cliff edge. I pick up the point of the noble and learned Lord, Lord Hope, that among those that might be lost is the web of interrelated regulations that enable common frameworks to function across the whole of the UK, balancing our need for harmony across the union with the necessity of divergence.

One of the good outcomes of the Bill is that those of us who laboured for three years in the vineyard of common frameworks, which were very far apart in the landscape, will finally have our moment in the sun when it is recognised how important they are for the future and health of the union. That has come about through the Bill with the hundreds of regulations that underpin the common frameworks.

I have some questions on this point—

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[The Earl of Courtown (Con)]

I apologise for interrupting the noble Baroness, but I remind the whole House that, as we are on Report, there cannot be any interruptions apart from material descriptions of various features.

[Baroness Andrews (Lab)]

I am grateful to the noble Lord. It is a measure of the speed with which the Bill has gone through every stage that these questions should be raised in the first place, but I leave it to the Government to reply.

I also wish to pick up the point made by the noble Lord, Lord Pearson, about whose fault it is that this process has been so slow. I was appalled by the comments of a previous leader of the House of Commons; I thought he traduced civil servants who cannot answer for themselves. In our committee, we have seen these officials working day and night, against the clock, to make some sense of a process which has simply not been sensible. To suggest that they have somehow been subversive, deliberately slow or incompetent is a real slur on the professionalism of officials and of the Civil Service. I hope that every Member of this House agrees with that.

My question to the Minister is this. I am grateful for what has been achieved, but I look at that list of 600 and am reminded of the 600 people going into the valley of death, bravely being sacrificed. There are some in this list that refer to common frameworks—for example, safety of food and emissions. There is no apparent reason why they are in there and I do not know how many there are. On behalf of our committee, I would like a list which tells us—

[Lord Fox (LD)]

We have a list; there are 240.

[Baroness Andrews (Lab)]

I am out of date already. That is excellent; I am very grateful and withdraw my question. I am delighted the Government have been so responsive.

My final point is on parliamentary control. I will certainly be supporting the amendment in the name of the noble and learned Lord, Lord Hope. It identifies two key risks. The Government have agreed in principle to a sifting mechanism, and it makes no sense for this batch of amendments to be left out of that sifting mechanism for the very reasons which the noble and learned Lord put and which I am now putting to the House: there are still elements of this list which require explanation, transparency and understanding. I would like the opportunity to see that process in place, as it affects these first regulations. This is a modest proposal and it is perfectly reasonable that the Government should do that.

There is also the much larger and more powerful question of parliamentary control. We have had very dramatic language from the two scrutiny committees of the House and we debated this at length in Committee. The case has been partially conceded, but by no means wholly. It once again reveals the limitations we face with secondary legislation and the way that primary legislation has been stripped out. It is essential that this batch goes before the sifting committee, in good faith, so that we can test the process and see whether it works and is fit for purpose for the more complex ones that will come later. I agree with the amendment.

[Lord Hamilton of Epsom (Con)]

My Lords, I shall speak to the amendments to which I have added my name, Amendments 2 and 4. Like my noble friend the Minister, we campaigned to leave the EU and we found that people decided to leave for a number of different reasons. One of those reasons was the resentment people felt that laws were being passed in Europe and delivered to us here, and we had no say on them whatever. I very much echo the words of my noble friend Lady Altmann.

We scrutinised this legislation. I was on an EU scrutiny committee and we wrote a number of reports, some of which were somewhat hostile about the legislation going through, and of course, they made absolutely no difference whatever. Therefore, if we had said to the people on the doorstep who were concerned that they had no say on much of the legislation coming on to our statute book, and over which Parliament had no say, “Well, we have a great plan: we are going to bypass Parliament almost completely”—

Retained EU Law (Revocation and Reform) Bill

Baroness Andrews Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendment 35 in my name. I thank Michael Clancy and everyone at the Law Society of Scotland for helping me prepare for this group of amendments and another group of amendments which will follow. A lot of what I will say echoes what has already been argued by the noble and learned Lord, Lord Hope, with much of which I was in agreement.

The effect of Amendment 35 is to ensure that the sunset provision in Clause 1 will not apply to any common framework. I pay tribute to the Common Frameworks Scrutiny Committee and the work it does, not just in relation to this Bill but on other matters as well. One of the most successful methods to manage intra-UK divergence has been the creation of common frameworks, which are defined in the United Kingdom Internal Market Act 2020 as a

“consensus between a Minister of the Crown and one or more devolved administrations as to how devolved or transferred matters previously governed by EU law are to be regulated after IP completion day.”

The Common Frameworks Scrutiny Committee, in its report entitled Common Frameworks: An Unfulfilled Opportunity?, noted that

“the UK Government considers how legislation it brings forward might conflict with relevant common frameworks, impede their successful operation, and affect the health of the Union.”

The Government responded to that conclusion in the report by saying:

“The Retained EU Law … Bill”—


the Bill before us today—

“insofar as it introduces the date for the sunsetting of retained EU law … will impact upon most if not all of the Common Frameworks. The UK Government has committed to the proper use of Common Frameworks and will not seek to make changes to REUL falling within them without following the ministerial-agreed process in each Framework.”

That statement is welcome, but it does not go far enough and it does not welcome the current state of play.

Noble lords may be aware that, last week, the Scottish Parliament voted to withhold its consent for the UK Government’s Retained EU Law (Revocation and Reform) Bill; it did so as a means of calling for the Bill to be withdrawn. Earlier, on 10 February, Angus Robertson, Cabinet Secretary for the Constitution, External Affairs and Culture, sent a letter to the incoming Secretary of State for Business and Trade setting out the concerns of the Scottish Government in this regard and noting that these concerns had been raised previously with the UK Government at the time that the Bill was before the House of Commons. The Government have had ample opportunity to listen to the concerns so eloquently expressed by the noble Baroness, Lady Humphreys, in relation to the Welsh Government, and those raised by the Culture Secretary in the Scottish Parliament, Angus Robertson, and have declined to act on those concerns.

I would like to give my noble friend the opportunity to comment on the amendments that the Scottish Government have set out, one of which closely echoes Amendment 27 which I moved on Tuesday this week. Their option one is to remove the sunset clause in Clause 1 from the Bill entirely. Their option two is to remove devolved areas from the sunset clause in Clause 1. Their option three is to keep the sunset but move it to a later date and enable Scottish Ministers to extend it. Their option four is to enable Scottish Ministers to extend the sunset date in Clause 1.

The UK Government cannot continue in this arbitrary fashion, overriding the wishes of two separate nations, having this week celebrated the very good news regarding the Northern Ireland protocol. This is an opportunity for my noble friend to make good the commitments in the common framework agreements, as echoed in the conclusions of the Common Frameworks Scrutiny Committee, and I urge him to choose one of the options. I argue that my Amendment 27 is the best, but one of these options must be agreed, otherwise we will simply not make any progress with this Bill.

[Baroness Andrews (Lab)]

I support Amendments 34 and 55 in the name of my noble friend Lord Murphy, who cannot be in his place, and Amendment 35, tabled by the noble Baroness, Lady McIntosh. I declare my interest as chair of the Common Frameworks Scrutiny Committee.

I start by saying how much I support Amendment 29. The noble Baroness made a powerful and explicit speech about the real, practical concerns that are now so evident in the Welsh Senedd, the Legislation, Justice and Constitution Committee, and the Welsh Government. The exam question for the Minister, and for the Front Bench as a whole, is whether they are prepared to legislate without the consent of the Welsh and Scottish Governments. I would very much like an answer to that question at the end of the debate—the Minister is nodding already.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

We can, indeed, exclude a specific category of law from the REUL exclusions if it relates to a specific area such as animal health, or a particular category of common framework.

[Baroness Andrews (Lab)]

If that is the case, the logic is that all the common frameworks could be exempt. Is that not the case? If we can exempt one SI on animal welfare, there are 50 SIs on animal welfare; what would stop us exempting the whole of that tranche of SIs?

[Baroness Bloomfield of Hinton Waldrist (Con)]

While we will have the power to exempt, the whole point about the sunset date is to retain the rigour of going through the REUL legislation that we have—but we do still retain the ability, in Clause 2, to exempt certain categories from sunset.

[Baroness Andrews (Lab)]

Does the noble Baroness think that common frameworks will be a specific category?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I thought we were still discussing exemptions. Will the noble Baroness repeat her question?

[Baroness Andrews (Lab)]

I am asking whether there is the power to exempt a whole category, because we have not heard that before. Would not common frameworks, because they are discrete and have an integrity of their own, serving specific purposes, constitute a specific category?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think the answer is, not in their entirety, but a specific category that falls within common frameworks could indeed be excluded.

Retained EU Law (Revocation and Reform) Bill

Baroness Andrews Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I thank the noble Lord. His was a general question; I was not going to seek to reply to it. Obviously, the extent of divergence that we might or might not have depends on different areas.

[Baroness Andrews (Lab)]

May I suggest an answer to the noble Lord’s question? One way of avoiding regulatory divergence would be to remove every common framework from this Bill because, if common frameworks are included and we lose part of the SIs that underpin them, the invitation to diverge in Wales, Scotland and Northern Ireland will be pretty impressive.

[Baroness Neville-Rolfe (Con)]

Again, we come back to individual decisions, although we have an amendment on the devolved Administrations later on; I hope we will reach it today. To respond to the noble Lord, Lord Fox, assimilation will be discussed fully in our debates on later groups.

On the comments from the noble Baroness, Lady Ludford, about whether the dashboard is authoritative, I can confirm that it is. This is because it has gone on an extensive, cross-Whitehall process and has been agreed at ministerial level. It is not comprehensive because, as noble Lords will know, the process is still ongoing. We have made a promise to update the dashboard accordingly as we go along; the next update is planned for spring 2023.

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[Lord Fox (LD)]

The presence here of the noble Lord, Lord Benyon, is a good indicator of what we will get in the next group: the appropriate department covering the appropriate amendments. These amendments were not put down yesterday. This is not a letter that you receive from a Minister—we gave warning of these amendments. A Minister from the relevant department, the Department for Transport, should and could have been here to answer the questions, instead of a Minister saying, “It’s not my department. I can’t answer”. I am pleased to welcome the noble Lord for the next group but perhaps, as a lesson going forward, we could have the right Ministers here.

[Baroness Andrews (Lab)]

We have been searching for some clue as to the criteria for what will be retained and what will be revoked, but we have not had any clarity—hence these hours of debate on safety of seat belts and so on. The Minister used the term “unnecessary” regulations and, in the famous letter, we have the line:

“For example, through removing unnecessary or unsuitable regulations or consolidating multiple regulations into one, it will be possible”,


and so on. Can we have a definition, in writing, of what the Government consider to be an unnecessary or unsuitable regulation? That may give us a clue as to the direction of travel on which regulations will be kept and which will be lost.

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[Lord Benyon (Con)]

Having laboured through many of the details of this, I can assure the noble Lord that it is a good thing for a Government to be doing. We are tackling some areas of law that have no relation to this whatever. They are about fishing arrangements between Denmark and Norway in Svalbard or export policy in olives. There are many areas that we can get rid of, but there are other areas of regulation—this point was made very well earlier—that we would be updating even if we were in the EU. So it is a good thing for the Government to make sure that we have proper regulation that is up to date and tied into our ambitions in the 25-year environment plan, the Environment Act and the environment improvement plan.

[Baroness Andrews (Lab)]

The noble Lord, Lord Benyon, is a good Minister who is genuinely doing his best, but we have a fundamental contradiction here. He has said that his department’s default position is to retain; the Bill says it is to revoke. What is the Government’s position on this?

[Lord Benyon (Con)]

As the Secretary of State said at the launch of the environment improvement plan, we will retain by default. Then we will examine every single item and decide which to put back in. Noble Lords will see, when we publish the list, that we have done a good job on this. We remain committed to our ambitious plan set out in the net zero strategy and the Environmental Improvement Plan 2023. They set out the comprehensive action the Government will take to reverse the decline in species abundance, achieve our net-zero goals and deliver cleaner air and water.

[Baroness Andrews (Lab)]

I am terribly sorry to noble Lords, I really am. We have not heard the expression “retain by default”. Does the Minister sitting beside the noble Lord, Lord Benyon, agree with “retain by default”? We did not hear anything like that in the first day of Committee. This is news to us and it seems to turn the Bill on its head.

[Lord Benyon (Con)]

I am quoting what Ministers have been saying for some weeks now, so it should not be a great surprise to noble Lords. With that, I hope that noble Lords are prepared to withdraw or not move their amendments.

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Perhaps we can ask the Minister to stop the arbitrary gallop and tell us how a more considered and sensible approach will be introduced. I suggest that it needs to prioritise review of legislation when that legislation actually requires review, rather than in a wholesale fashion. It needs to involve a process that introduces wide and effective consultation with businesses, civil society and the public—those who will be impacted by this legislation. It needs to have proper parliamentary involvement and give proper protection to case law and interpretive effects. After all, if I remember correctly, that was the normal and sensible way in which we used to do things.

[Baroness Andrews (Lab)]

I support the amendment in the name of the noble and learned Lord, Lord Hope, and Amendment 26. The point about consultation is extremely important, especially as it seems obvious that a lot more SIs will not fit easily into the dispose or retain buckets, and arrangements have to be made for that. One thing that has struck me forcefully as we have gone through this process so far is the whole scope of this Bill—the enormous numbers of interrelationships between EU retained law, domestic law and international law, and with the devolved Administrations as well. It is growing more and more complex by the amendment.

Throughout the debate we have heard a lot of different arguments as to why this arbitrary deadline is simply not going to work. Possibly it was understood that it would never work when it was proposed, but it may have been a sort of discipline to focus the mind. Either way, it is disingenuous, and I would have thought that by now the Minister would have had so much weight of evidence that he would find it an honourable position to say that he would be prepared to consider accepting an amendment to extend the sunset clause. I sincerely hope so, as it is very hard to envisage what those 14 civil servants would have been doing otherwise. They might have been tackling, for example, the cleaning of our rivers and many other things.

We now come on to the issue raised by Clause 2. In the famous letter from the noble Baroness, Lady Bloomfield, which I am sure was sent with positive intent, I am named because I asked a question about powers in the Bill. I literally cannot understand the reply in that paragraph, and I would be very grateful if we could have some sort of case study that exemplifies the way in which those powers will actually be used. I know that there are some excellent officials in the department working on this part of the Bill. Can we have a simple exemplar of how that would actually work?

That brings me to Clause 2. Again, all I am seeking at this stage is clarification and simplification of what we can get. When the Minister winds up, can he explain to the Committee the exact circumstances under which Clause 2 would come into effect? The noble and learned Lord, Lord Hope, has raised this issue, and I want to reinforce it. Can he tell the Committee what a specified instrument is likely to be? Does this mean a statutory instrument that has to be amended rather than kept intact or removed? Are there any other categories that might fall into the scope of this clause and, if so, what? We cannot take comfort from the idea that this exists and therefore we will be able to resolve many different problems that will suddenly find themselves being able to be passported into next year and beyond, and therefore we can stop worrying about it.

Finally, I put this question to the Minister at Second Reading: it is a really important question, but I did not get a satisfactory answer. Why is the power to modify the sunset clause not extended to Ministers in Wales and Scotland, particularly when a disproportionate burden of effort is falling on the ministries in those countries? They do not have the capacity and they need some help and some flexibility. I ask the Minister to think again, particularly about Wales, where the effective deadline will be the end of October: it will not even be December. They will be three months short of the deadline with the flexibility that we have. Can I have an answer to that specific question tonight?

Retained EU Law (Revocation and Reform) Bill

Baroness Andrews Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Hamilton of Epsom (Con)]

I am saying that we have to decide how we handle the whole bulk of EU retained law. If the noble Baroness had been here for Second Reading, she would have known that I actually raised this issue. We have to sift this legislation and decide what is going to be debated in primary legislation and what is going to be subjected to secondary legislation and so forth. You cannot generalise about all the legislation coming into one category or another—it will not. Some of it will be retained, some of it will be amended and some of it will be abolished altogether. There has to be some sifting system that makes the decisions on that. Therefore, we should not be pleading for individual bits of EU legislation to be retained; we should be saying that we need a system that divides it up and sensibly deals with it in one way or another.

That is why I am not going to vote for any of the amendments that go against the sunset clause, because I think the sunset clause is critical. We would not know how many bits of legislation we were dealing with if we did not have a sunset clause.

[Baroness Andrews (Lab)]

My Lords, I have some sympathy with the noble Lord’s position, because, as he made clear at Second Reading—which we were delighted and a bit surprised by—he takes issue with the Bill. The noble Lord talks about there being a system and us being involved. However, first, Parliament is not involved in this; that is almost universally agreed around the Chamber. Secondly, the process is being conducted by a handful of civil servants, across Whitehall, who are working frantically against the clock to make serious judgments on issues of which they often have little experience themselves. They are doing it on behalf of the devolved Governments as well. The sunset clause is a ludicrous timetable against which to make extremely sensitive judgments.

The whole process is untransparent, to say the least. For example, take the dashboard which the Government keep saying will tell us everything we need to know. It does not even cover all the SIs which are now coming into scope. It does not explain which bits of law are SIs, which are the remainder, or which are other forms of retained law. It is virtually useless for anybody trying to make a judgment on whether the issues they are concerned about will be inside or outside the scope of this.

My noble friend made the point that all we need to reduce uncertainty in the first place is some set of criteria whereby certain SIs may be retained and others may not. For example, one red line could be whether an SI impacts on our trade relationships or our international obligations. We could see that and be able to judge if we had a set of criteria, but we have none of that. It is making life totally dreadful for people who are trying to make decisions inside government. Defra has 1,700 individual SIs. The common frameworks, which we will discuss later, will be dealing with about 500 SIs which translate across the whole of the internal market, and the dislodging of one may well impact 50 others.

We are trying to make sense of a process in which there is no sense. Could the Minister give us some idea of the timetable against which Whitehall is working? When will we know when those basic judgments have been made about what can be retained and what is going to be put in the “disposable” bucket? If we had a timetable which gave us some reassurance about that, or a timetable about when, for example, an SI which needed to be put in the place of something that was going to be removed would come forward, that would help. Noble Lords should bear in mind that this House takes six to eight weeks to process SIs. If you work backwards from Christmas and the sunset clause, we will need to start laying SIs in May or June to get them through in order to replace the laws we will lose. That is a measure of the chaos that is being created by the Bill. This House needs to take its processes seriously and slowly, so that we can introduce some reassurance to all those bodies outside—such as the CBI and the trade union movement—which are relying on us to create some clarity around this.

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[Lord Frost (Con)]

Well, I had sat down. Nevertheless, of course, most of the time that I was a diplomat and civil servant, this Parliament was excluded on most of those provisions. Once the working time directive or agency work directive or whatever had been agreed at EU level, this Parliament was excluded. What we are doing is now giving the Government—and Parliament, let us not forget, through secondary legislation—the power to take a view on these things, and that is quite right.

[Baroness Andrews (Lab)]

My Lords, it is quite extraordinary that the noble Lord says that Parliament has been given power. We have been given no power. He has been in this House long enough to know that we are excluded from changing or even challenging secondary legislation. We have no purchase on this Bill, other than by the process we are going through now.

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[Lord Callanan (Con)]

I totally understand the point my noble friend makes; I am a passionate believer in the rights of this House and have happily stated on many occasions within government that in many cases we do a much better job of scrutinising legislation than the other House. It sometimes makes life a little uncomfortable for Ministers such as me defending this, but when I talk to some of my colleagues in the Commons, I realise how relatively little time is given to some legislation compared to this House.

I also understand my noble friend’s first point. I reiterate that it is certainly not the Government’s intention to reduce workers’ rights. The House will get tired of hearing me repeat it, but we have higher standards than most of the rest of Europe and we have every intention of maintaining that.

[Baroness Andrews (Lab)]

My Lords, before the Minister sits down, I should like to ask him one question. He has addressed the issue of the sunset clause in different ways; we have different opinions about that. Why were the Welsh and Scottish Ministers not given the same power to amend the sunset clause? They were not consulted about the Bill and have no powers in this respect.

[Lord Callanan (Con)]

They certainly have the power to examine, repeal or change EU law within their specific areas of competence.

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[Baroness Andrews (Lab)]

The reason I raise this is because we are talking about the capacity of the Civil Service to do the things the Government are requiring of it. That challenge is infinitely greater for the devolved Administrations. One issue raised by the Bill is the impact the Bill has, deliberately or accidentally, not on the devolution settlement but on the capacity of Wales and Scotland to influence the way in which decisions about whether to retain, remove or amend instruments will be made. It is an extremely important point, and it deserves a serious response.

[Lord Callanan (Con)]

I thought I had given the noble Baroness a serious response. Within the area of devolved competence, the devolved Administrations have the same rights as the UK Government to amend, repeal or replace retained EU law.