Product Regulation and Metrology Bill [HL]

Baroness Crawley Excerpts

Committee stage
Wednesday 20th November 2024 Grand Committee

[Lord Anderson of Ipswich (CB)]

My Lords, I support Amendment 133, to which the noble Lord, Lord Sharpe, has just spoken and to which I put my name. This evening’s inaugural Lord Judge memorial lecture in legal history will address the early modern practice of legislating by proclamation without Parliament. According to the advance publicity for the lecture, Professor Sir John Baker will say that this practice

“may be compared with those resulting from our ‘elective dictatorship’, Parliament having become an instrument whereby a modern Government can exercise more absolute power than that formerly attributed to the King’s prerogative”—

a point often made by the noble and learned Lord, Lord Judge, himself. The truth of those words is demonstrated by this Bill, about which the Constitution Committee remarked—with our customary understatement —that

“several powers in the Bill are widely drawn and could facilitate the making of law that goes beyond the updating of existing rules to involve the making of new policy”.

When the EU makes new policy, as it did with the general product safety regulation, which will come into force next month, the process is properly and appropriately democratic. A road map and a public consultation in 2020 were followed by a Commission proposal in 2021, the usual substantive reports by parliamentary committees, a provisional agreement between the Council and the Parliament, approval by COREPER and IMCO and, eventually, adoption of the GPSR by both Parliament and Council in 2023. The process was more extensive, but so is the end product. The GPSR contains a detailed list of factors to be taken into account when assessing the safety of products. It sets out the obligations of manufacturers, authorised representatives, importers, distributors and—a difficult one—online marketplaces. It outlines a traceability system and makes provision for market surveillance, reporting and recalls. Detailed powers, of course, are delegated to the Commission, but the guiding principles were decided on by the legislature at an appropriate level of detail for a legislature.

My point is not that we should or should not follow the substance of what the EU has done. It is that where such wide-ranging matters of policy are engaged, it is not appropriate for Parliament to abdicate its power to the Government as entirely as this Bill proposes to do. Matters that in Europe are decided upon by the Council and the Parliament are here reserved to unamendable and, in practice, unblockable statutory instruments under this Government as they were under the last.

The noble Lord, Lord Sharpe, like the Constitution Committee, quoted the Attorney-General’s recent Bingham Lecture, in which he criticised excessive reliance on skeleton legislation and expressed the view that,

“the new Government offers an opportunity for a reset”.

I believe that the Attorney-General has talked the talk with complete sincerity about this issue, but his words do not sit happily with this Bill. The practical question is how are we going to walk the walk? A comprehensive solution would be to adopt the Hansard Society’s proposals for a new system of delegated legislation, a concordat agreed between Parliament and government to reset the boundary between primary and delegated legislation, and a new Act of Parliament to ensure that Parliament can calibrate the level of scrutiny to the content of a statutory instrument.

Limiting ourselves to this Bill, two other solutions are possible, short of the wholesale omission of clauses that was recommended by both the Delegated Powers Committee and the Constitution Committee. The first would be to copy the amendments to what is now Section 14 of the retained EU law Act 2023, tabled in the names of the noble Lords, Lord McLaughlin and Lord Hamilton of Epsom, the noble and learned Lord, Lord Hope, and myself. These would have provided for a sifting committee of both Houses, or of the House of Commons, to identify proposed regulations that are particularly deserving of parliamentary attention, and for regulations falling into that category to be amendable by agreement of both Houses under a power modelled on Section 21 of the Civil Contingencies Act 2004. Those amendments were passed by large majorities in your Lordships’ House in May and June last year, with the support of Her Majesty’s Opposition, and drew support from all parties in the Commons before eventually falling at ping-pong.

The second solution, proposed by the noble Lord, Lord Fox, in his Amendment 133, is, by comparison, gentle indeed, and if the noble Lord were a fast bowler, he might describe it as a loosener. No power of amendment is claimed for Parliament. A joint sifting committee would simply have the authority to refer a statutory instrument to a process requiring parliamentary approval if the regulations made a substantive change to the law, or if they had not been consulted upon. A substitute for European levels of democratic engagement I am afraid it is not but a pragmatic improvement to the Bill it is, and I look forward to seeing whether the Minister sees merit in it or whether, as I fear, this is an issue to which we will have to return with renewed energy on Report.

[Baroness Crawley (Lab)]

My Lords it is a pleasure to follow the noble Lord, Lord Anderson of Ipswich. I have an amendment in this group, Amendment 126, which I shall speak to. It is in my name and those of the noble Earl, Lord Lindsay, who cannot be in his place today, and the noble Lord, Lord Foster of Bath, reflecting its cross-party support. It requires the Secretary of State to conduct,

“appropriate consultation on draft regulations made under this Act”.

Like other amendments in this group, it is all about more effective scrutiny processes for this Bill. As it stands, this enabling Bill allocates significant powers to the Secretary of State—too many, according to the Delegated Powers and Regulatory Reform Committee and the Constitution Committee.

As this is the first time I am speaking in Committee on the Bill, I say that I support it and the need for it to improve the safety of UK consumers, as do most consumer-facing organisations in this country. However, the Bill, to put it mildly, has received a pounding from the Delegated Powers Committee and the Constitution Committee. I quote paragraph 36 of the Delegated Powers and Regulatory Reform Committee report. It states:

“We consider that … the Government have failed to provide a convincing justification for the inclusion of skeleton clauses in the Bill that give Ministers such wide powers to re-write in regulations the substance of the regulatory regime for products”.

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[Lord Fox (LD)]

I am not a student of parliamentary history, so I do not know if it is an unprecedented letter, but that was a helpful intervention, and I thank the noble Lord for that.

[Baroness Crawley (Lab)]

I believe that the sentence that was just read out was in the report from the Government to the Delegated Powers Committee as well. It is not unprecedented is what I am saying.

[Lord Fox (LD)]

My Lords, I feel that I am standing in the middle of a perfectly good debate between the noble Baroness and the noble Lord. Perhaps we can reconcile it in some other way.

Retained EU Law (Revocation and Reform) Bill

Baroness Crawley Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Baroness Crawley (Lab)]

My Lords, I too was in the European Parliament many years ago. With the greatest respect to the noble Baroness, she will know that this policy—this Bill—is government-driven, not Civil Service-driven, so we should not keep blaming the Civil Service for the mess we are in. It is driven through government policy.

[Baroness Jones of Moulsecoomb (GP)]

Over the past few weeks we have heard again and again this sort of criticism of the Civil Service. It is hardly appropriate for the Government Benches to criticise the Civil Service when we have Ministers who should be deciding on the next thing to do. You cannot expect civil servants to pre-emptively work on things without Ministers’ permission. Please can we just stop that. It is outrageous that the Government constantly blame other people and not themselves. Please remember that.

Retained EU Law (Revocation and Reform) Bill

Baroness Crawley Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness O'Grady of Upper Holloway (Lab)]

My Lords, follow that. Briefly, I seek a specific clarification on the sunset clauses. Can the Minister tell us how it is proposed to resolve an apparent conflict in powers between the Secretary of State and those of devolved Administrations contained in the Bill? The power to extend the sunset deadline in Clause 2(1) is reserved for UK Ministers only. In contrast, the power to remove the sunset entirely in Clause 1(2), and so to keep pieces of retained EU law indefinitely, is granted to both UK and devolved Ministers. UK Ministers and Ministers in the devolved Governments may well diverge on the application of sunset dates, as well as on policy decisions.

I also remind the Minister that the RPC ruled that the Government’s impact assessment cost-benefit analysis of the impact on devolved nations is “weak”. What plans are there to address this inadequacy? I also remind him that since the RPC published its opinion, a further thousand pieces of legislation have been added to the dashboard.

[Baroness Crawley (Lab)]

My Lords, briefly, within this important group introduced so ably by the noble Baroness, Lady Humphreys, I support in particular Amendments 34 and 55 in the name of the noble and learned Lord, Lord Hope of Craighead, with whom I am delighted to sit on the Common Frameworks Committee—noble Lords will be sick to death of hearing about the common frameworks by the end of this—which is under the marvellous chairmanship of my noble friend Lady Andrews.

As noble Lords will know, common frameworks are a voluntary way of bringing the nations of the UK together and being the building blocks for the new UK internal market post Brexit. The legal underpinning for these frameworks is EU-derived subordinate legislation and retained EU law, the very law threatened by the Bill and its insistence on sunsetting by the end of 2023. Along with other members of the committee, I do not wish to see a large part of our economic relationship with the devolved nations damaged or threatened by having a question mark, even if it is only a question mark and not definitive, hanging over these frameworks.

If we take as a quick example a snapshot of the framework law in the Department for Business and Trade, we do not know what is to become of the European Public Limited-Liability Companies Regulations, or the Statutory Auditors and Third Country Auditors (Amendment) (EU Exit) Regulations 2019, or the late payment of commercial debts regulations of 1998, 2002, 2015—and on and on. This is not exactly law to make your heart sing but it is vital to the smooth running of the UK’s new internal market.

If we take the framework law in the Department for Science, Innovation and Technology, we discover that we have signed up to international conventions through EU retained law, but we are not sure—as we heard in our tutorial from the noble and learned Lord, Lord Thomas—whether the SIs for them are to be included on the now infamous dashboard. Just to make things more uncertain, if that is possible with this Bill, some of this retained law has Northern Ireland aligned directly with EU law and some has not.

In the Department of Health and Social Care, we have secondary legislation on nutrition and health claims, on vitamins and minerals and on foods intended for infants and young children. They are a brave Government, in the words of Sir Humphrey, who would bring uncertainty to such law. The food safety and hygiene provisional common framework is again based on retained EU law and it involves Northern Ireland, Scotland and Wales, as many of them do. It deals with issues raised by noble Lords last week in Committee such as food labelling, food contaminants, flavourings, additives and, very importantly for farmers in the devolved nations, animal feed.

The consumer protection enforcement authorities across the UK need certainty. If they are going to be able to bring perpetrators to book in the future, they need to know that all the legal pages are still in the book. The stand-alone SIs in this framework include everything from EU regulations on curry leaves to the Fukushima power station disaster to rice from China. That is not even to go through all the SIs arising out of them on jam and honey. I will do so if noble Lords would like me to, but I think we do not have the time—there are a lot of them.

Like Mr Micawber, we are hoping, regarding common frameworks, that everything will turn out for the best and all this primary and secondary EU-derived law will, if needed, be retained. But here is the rub: we hope but, as the noble and learned Lords, Lord Thomas and Lord Hope of Craighead, have said, we do not know. We do not know how law in scope is to be retained, reformed and revoked. We do not yet know all the law that is in scope. Perhaps at this very moment the National Archives is hunting for it down the back of the national sofa. We do not know where the DAs are in going through their devolved law to see what needs keeping and letting go. We do not know whether the devolved authorities have the time, the political inclination or the Civil Service resources, as noble Lords have said, for such a sifting exercise and to feed that data onto the dashboard. The Northern Ireland Assembly, as we know, is not even meeting at the moment.

We do not know whether the devolved authorities are mining the National Archives as the UK Government are. We do not know when the dashboard will be complete, or how we will know when it is. We do not know whether the upper limit of the National Archives search is every piece of legislation since the UK joined the EU. Maybe that is a department by department choice, in which case we do not know which departments are going back 40 years and which have decided not to.

Finally, as a Committee we were told in correspondence with Ministers that some retained EU law had been orphaned due to the machinery of government changes. I have no idea what that means—maybe the National Archives does, but we do not. No wonder we are getting urgent lobbying from across every possible UK sector. They want to know what is going on with this Bill and what it means for them. We can only tell them at this stage that we do not know. What a fine mess the right honourable Jacob Rees-Mogg has got us into.

[Lord Cormack (Con)]

And not for the first time. As the noble Baroness was talking about the dashboard, I could not help but just carry the analogy a little further. How much is hidden in the glove compartment?

This has been a very interesting debate. It was extremely well introduced by the noble Baroness, Lady Humphreys. What I want, above all, is a period of stability for our country. I want to feel that the United Kingdom is more united after these turbulent years than it has been of late. I took great encouragement from that happy photograph of the Prime Minister with the President of the European Union on Monday. I want to feel that we really are beginning to build a proper relationship with our former partners, but our remaining friends and allies. If anything underlines the need for that, it is one word: Ukraine.

I do not know, any more than any of us do, precisely what we are dealing with. The noble Baroness, Lady Humphreys, made that plain in her speech with regard to the devolved Governments. I happened to be one of those who fought quite strongly against devolution, because I thought it would threaten the integrity of the United Kingdom.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

I acknowledge the noble Lord’s intervention but I cannot possibly respond at this stage. We must make progress.

Amendment 29 proposes exempting REUL within the competence of Scotland, Wales and Northern Ireland from the sunset. This would remove the devolved Governments’ incentive to review legislation on their statute books and hinders the sunset’s intention to bring about genuine reform. A sunset is the quickest and most effective way to accelerate the review of REUL on the UK statute book by a specific date in the near future. This will incentivise genuine REUL reform in a way that will work best for all parts of the UK. The territorial scope of the Bill will be UK-wide, and it is constitutionally appropriate that the sunset applies across all parts of the UK. However, the sunset does not affect the devolution settlements, nor is it intended to restrict the competence of either the devolved legislatures or the devolved Governments. Rather, this will enable the devolved Governments to make active—

[Baroness Crawley (Lab)]

The noble Baroness may well be coming to this, and she should tell me if she is. If the sunset brings rigour, as she has said, to the devolved Administrations—and to us, of course—does that mean that the Government accept our arguments about the lack of resources for the devolved Administrations and the lack of capacity of civil servants, because there are so few of them going through all this retained EU law throughout the devolved Administrations?

[Baroness Bloomfield of Hinton Waldrist (Con)]

We do not accept that. We know that there are capacity restraints within the devolved Governments, but the UK Government are also helping them go through the whole body of retained law. That work will progress and is an ongoing project as we go through this year. I may come on to more detail for the noble Baroness.

In relation to the noble Baroness’s specific comments on Northern Ireland, the Windsor Framework has no impact on the Bill. She can also rest assured that we have already committed to making sure that the necessary legislation is in place to uphold the UK’s international obligations—

Retained EU Law (Revocation and Reform) Bill

Baroness Crawley Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Ludford (LD)]

I entirely agree with the noble Lord.

[Baroness Crawley (Lab)]

My Lords, very briefly, I support this group of important amendments. In particular, I support Amendment 43 in the names of my noble friend Lady Chapman of Darlington and the noble Lord, Lord Fox. Through it, only legislation identified and approved by Parliament could be revoked, and that is the responsible, democratic and considered way to proceed.

Amendment 43 would put responsibility for a timetable of revocation back with Parliament, so that the Government cannot claim that it is an open-ended approach. It also begins to answer the very important questions around the complete lack of executive accountability raised by our Delegated Powers and Regulatory Reform Committee and Secondary Legislation Scrutiny Committee. So many sectors and people are affected by the Bill and do not want Parliament to be taken for granted, as the noble Lord, Lord Hodgson of Astley Abbotts, put it.

I will concentrate for half a minute on consumer protection. As the vice-president of the Chartered Trading Standards Institute, I will reflect some of the fears raised with me over the past weeks and months.

[Lord Callanan (Con)]

My Lords—

[Baroness Crawley (Lab)]

The Minister is heckling me from a sedentary position.

[Lord Callanan (Con)]

We discussed consumer protections in an earlier group. The noble Baroness may have made the same points then. I do not see the point of repeating the same arguments yet again. If she has some points to make on the amendments we are discussing today, perhaps she would like to make them.

[Baroness Crawley (Lab)]

The Minister has not heard what points I make; I do not know how he can say I am making the same points. The Bill affects sectors right across the UK—people, businesses, trade unions and consumers—and that is why I am raising this. I think the Minister should not have intervened. It is Committee and I have every right to make a minute’s worth of comment.

[Viscount Stansgate (Lab)]

My Lords, this has been a very educational debate. On Monday this week, two groups of sixth-formers came to visit me here and we discussed things upstairs in Committee Room 1, chosen specifically because of its judicial resonance. They are studying for their A-level exams and the question they put to me was about Parliament’s role in scrutinising the Executive: how effective is it? They were very sharp and on the ball, and they wanted to know and to have examples. But when it comes to the Bill we are discussing today, I could not possibly say that this is a good example of Parliament’s ability to scrutinise the Executive. This Government, we know, claim that their major policy success was to take back control—but in my view it was never to take back control to the Executive but to Parliament. I am heartened by the speeches of the noble Lords, Lord Hamilton and Lord Hodgson, because I see reflected in both of them a wish to see Parliament as the centre of decision-making in Britain—the Executive are a part of it but Parliament is the heart of it.

We have a number of amendments before us, Amendments 32, 141A, 43, 44, 62A and so on, and each in its own way has a contribution to make. I would be minded to support them all because, whatever happens as a result of the debates we have on the Bill, everybody knows we need proper parliamentary scrutiny of what is about to happen—we do not even know what is going to happen to the vast range of legislation to be covered by the Bill.

History will not regard this Government well if future students of politics, of the kind I talked to on Monday, reach the conclusion that Parliament has lost its ability to scrutinise the Executive. In finishing, I quote one Member’s explanatory statement for one of the amendments we are discussing today: it seeks to give

“Parliament the ability to scrutinise these decisions. It would also allow Parliament to overrule the Executive”.

That is exactly what parliamentary democracy is supposed to be about.

Retained EU Law (Revocation and Reform) Bill

Baroness Crawley Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Benyon (Con)]

I will certainly do so; I will then be able to read my own writing. As the Secretary of State reiterated in her speech at the launch of the environmental improvement plan on 31 January, Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it. This allows us to keep protections in place, provide certainty to businesses and stakeholders and make reforms tailored to our needs—

[Baroness Crawley (Lab)]

Is the noble Lord confident that he can ensure that he will be able to retain all the laws that he wants to by 31 December this year?

[Lord Benyon (Con)]

Absolutely, because if we cannot do so for any reason then we have that power of extension, which we will apply if necessary. I hope that is a real reassurance to noble Lords, because it gives that comfort.

[Baroness Crawley (Lab)]

Will the noble Lord therefore lobby within his department for using the 2026 date rather than 31 December 2023?

Retained EU Law (Revocation and Reform) Bill

Baroness Crawley Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Baroness Burt of Solihull (LD)]

My Lords, I am disappointed that noble Lords are not staying to hear my words of wisdom. I rise to move Amendment 1 standing in my name and I apologise to the House for not being able to attend the Second Reading of the Bill, but I have specific concerns about its impact in relation to my equalities brief.

It has fallen to me to lead on this group of amendments, which are related to employment and all make the same point relating to the Bill. As we know, it will sunset much of EU retained law by 31 December this year, unless an active decision is taken to retain it. That is legislation thoughtfully discussed and thought through over decades gone in a few short months from now, regardless of the consequences and the effect on people in this country. We know that there are thousands of pieces of legislation that could fall under the axe, but not even the Government know exactly how many. We do not know what consequences will be wrought when the legislation that the Government do not even know about, or have not considered, is suddenly not there anymore. Where there is no legislation, there is a recipe for a free-for-all—a race to the bottom where lack of protections in standards and for the workforce will delight cowboy companies, which will be able to undercut their competitors, ignore safety standards, ignore everything in pursuit of profit and put competitors who retain ethical standards out of business.

I am intrigued to know who the Government think they are going to please with this legislation. It is not the business world—apart from the least ethical members, of course. It is not small businesses; a CIPD poll found that only 6% of small businesses saw employment legislation as a barrier to growth. A group of business and employment lawyers we met on Monday laid out a stark picture of Britain post 2023. They said that one thing the business world fears is uncertainty. How will it trade if it does not know what the playing field will look like? They described trying to untangle the complex interrelationships of EU and UK law as “trying to untangle knotweed”. Perhaps most frighteningly, decades of case law will be overturned, so we will have none of the secondary clarifications that we have relied on for many years. We will be making it up as we go along—unless the Minister has any news that he might like to inform the House of today.

Before I completely steal the thunder of everybody else in this group, I will move on to the amendment standing in my name. MAPLE exemplifies the EU-derived employment protection law which is under threat. It is an acronym for maternity and parental leave. It is EU-inspired legislation and is one of the thousands of laws poised to go on the bonfire unless specifically excluded.

Let us take what might happen to parental leave legislation as an example. Parental leave is different from maternity or paternity leave. It entitles parents, after they have been in a job for a year, to be absent for a set period to care for a child. Employers can only postpone it in narrow circumstances when the operation of a business would be “unduly disrupted”. As currently drafted, Clause 12 or 13 of the Bill could be used to change parental leave substantially, with minimum parliamentary scrutiny. It could change the wording, for example, from “unduly disrupted” to simply “disrupted” or even “caused inconvenience”. Clause 15 could give employers the power to refuse leave altogether and, since subsection (2) would not require the affirmative procedure, there would not be a thing that MPs, elected to represent constituents who will be affected, could do about it.

A real-life case under the maternity provisions is the example of Lucy. Lucy was employed by an international law firm as an anti-money laundering manager. She continually exceeded expectations in her performance reviews and had been promoted on several occasions. Lucy took her full entitlement of 52 weeks of maternity leave. Just before she was due to return to work, she was informed that she had been replaced by her maternity cover and was offered an alternative role which she considered to be a demotion. Her employer told her that if she did not accept the new role, they would have no option but to accept her resignation. Lucy was legally entitled to return to her previous role on the same terms and conditions. Her employers’ preference to retain her maternity cover was not enough to refuse to allow her to return to the job after the maternity leave. Lucy was being discriminated against because she was on maternity leave. By asserting her rights under MAPLE, the Employment Rights Act 1996 and unlawful pregnancy and maternity discrimination contrary to the Equality Act 2010, she was able to secure a substantial compensation package and an agreement that her employer would pay all her legal costs.

What might happen to someone like Lucy if they had been treated like this after the sunset date at the end of this year? We simply do not know. All these suppositions would apply only if the Government decided to modify MAPLE. They could of course just let it fall off the edge with all the other protections that would be lost. This is not what business and employers want, and if the Government think that this Bill will win them any support from the business world, they are very much mistaken. I beg to move.

[Baroness Crawley (Lab)]

My Lords, I have added my name to the amendment in the name of the noble Lord, Lord Fox, and the noble Baroness, Lady Burt of Solihull, and I support the other important amendments in this group tabled by the noble Lord, Lord Fox, and my noble friend Lord Collins of Highbury.

I have checked with the official statistical offices for Great Britain and Northern Ireland, and there are roughly 900,000 conceptions each year. That is some 900,000 women on the verge of motherhood and not necessarily for the first time. I am aware of course that not all will go to full term, but the sheer scale of demand for a serious, advanced, 21st-century maternity and parental rights provision is referenced in such a figure.

What are the Government saying to this vast community of women and parents? “We will abolish the EU rules that underpin your protection and think of something for you all later”—is that it? We should be improving the maternity provision that we already have, not putting an enormous question mark next to it. While statutory maternity pay, amounting to some 47% of the national living wage, is increasing from April 2023, roughly in line with inflation, it is still falling well below what many can realistically live on. New parents often face debt and have to return to work earlier than planned.

The cost of living survey carried out by Maternity Action last year found that 51% of respondents had either relied on credit cards or borrowed money while on maternity leave just to get through. Several campaigning organisations, including the Young Women’s Trust, Gingerbread, Pregnant Then Screwed, Working Families, the Women’s Budget Group, and of course the TUC, all believe that the Bill poses a significant threat to British women’s rights at work, and I share that belief, as do many in this Committee today.

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[Baroness Meacher (CB)]

I make a very short but rather strong point. I speak as a former member of the Delegated Powers and Regulatory Reform Committee, who has had the privilege of reading counsel’s note on this Bill to the committee. I have been on that committee for years and have never seen a counsel’s opinion on a Bill as devastating as this counsel’s opinion on this Bill. I wanted to add my name to Clause 1 stand part, but unfortunately there are already four names on it. We are attempting to have a debate on this Bill when the counsel made clear that you cannot even call this a skeletal Bill because it is not that there is a little bit of information and too much is left for delegated powers; there is no information in this Bill—nothing—about what Ministers want to do across a massive swathe of policies.

Your Lordships’ wonderful House is attempting to have this debate based on zero information. Counsel is recommending to the committee that Clause 1 should not stand part of the Bill, nor should Clauses 10, 12, 13 or 15. In other words, the Government need to take the Bill back and realise that you cannot delegate all power across a whole swathe of policy without giving Parliament any powers in the matter at all. As we know, the government policy until this point was to transfer powers from the EU to the UK Parliament. The Government’s own memorandum made clear that the aim of the Bill is to ensure that the UK Parliament is the sole arbiter of UK law. I am sorry, but the Bill does not do that; it takes all power away from the UK Parliament.

I interject because it is important that we decide how to deal with the Bill. Either we go to the Clause 1 stand part debate, relate that to these other clauses and try to get the Government to withdraw the Bill early, or we spend weeks debating this bit and that bit with no knowledge upon which to have those debates. With that, I wish your Lordships well.

[Baroness Crawley (Lab)]

My Lords, on the issue of timing, bearing in mind what the noble Lord, Lord Hamilton of Epsom, and my noble friend Lady Andrews said, I and I am sure other noble Lords are increasingly hearing that we are not talking about 31 December as the sunset; we are talking about October. If December as the cut-off date for civil servants to find all this law is bad enough, October is disastrous. We may be replacing EU law with our own versions, but I am told by a senior civil servant that the fail rate for SIs is 10%. Therefore, the replacements will not be perfect and many will have to be looked at again once they have been published.

My noble friend Lady Andrews is right that the dashboard is a mess. Again, from talking to people close to the dashboard, they were not sure when asked whether they were talking about one directive or one directive plus the four SIs that come from it for each devolved authority. Really and truly, we must think very carefully about signing up to this sunset.

[Lord Hacking (Lab)]

My Lords, this is to correct myself. I referred to my noble friend’s Amendment 40 in error; it is my noble friend Lord Whitty’s Amendment 44A which is the right way round.

Retained EU Law (Revocation and Reform) Bill

Baroness Crawley Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I find it difficult to answer that. My understanding is that there has been extensive dialogue with officials across all these portfolios, as noble Lords would expect: that is how government runs. In my areas of responsibility, which do not include food these days, there is extensive dialogue between departments, and that is very helpful. That has been the process here and will continue to be the process.

[Baroness Crawley (Lab)]

If there has been extensive dialogue between officials, and presumably organisations that advise the Government, such as Food Standards Scotland, why are they lobbying us about the defects of the Bill?

[Baroness Neville-Rolfe (Con)]

I have had correspondence with these bodies. Certainly, in my other work I deal with the Food Standards Agency. It is very helpful and it links with government. If I may, I think I will now move on.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

I am told by my noble friend, Lord Callanan, that it will include all the appropriate information necessary for a full consultation. I cannot commit to saying whether it will have the full list of all the regulations; it depends on what stage it is at. We will launch it soon, and that will inform noble Lords more about the intention of the Government on product safety.

Amendment 25 tabled by the noble Lord, Lord Fox—

[Baroness Crawley (Lab)]

I am grateful to the Minister for giving way. I understand, from trading standards, that the government product safety review was due last spring and then expected at the end of 2022, but it has not been published. Do we have a date for it to be published yet?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am afraid that I will have to write to the noble Baroness on that; we do not have an answer at this stage. The consultation is a new initiative and will be launched soon.

Amendment 25 tabled by the noble Lord, Lord Fox, relates to the control of asbestos regulations. The noble Lord has provided a good example of an area where we regained the ability to regulate autonomously upon leaving the EU. Both the post-implementation review 2022 and the Work and Pensions Select Committee evidence suggest that further clarity around the categorisation of asbestos works, particularly regarding non-notifiable licenced work, would be beneficial, and the Health and Safety Executive has committed to considering how this could be developed further. HSE will undertake research and engage with stakeholders to consider an evidence base for the introduction of mandatory accreditation for asbestos surveyors. If this is taken forward, it will be as a result of a change to the CAR. Indeed—

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[The Earl of Clancarty (CB)]

My Lords, I shall speak briefly to Amendment 6 in the name of the noble Lord, Lord Clement-Jones, to which I have added my name. The noble Baroness, Lady Brinton, has said much of what I was going to say about ARR. I support all the other important amendments in this group, but I want to draw attention in particular to the importance of the artist’s resale right and how important it is for UK artists. I am grateful for the briefing from the Design and Artists Copyright Society, the rights management organisation for visual artists in the UK.

The visual arts play an important role in shaping the perception of the UK, and in our soft power. The artist’s resale right is applied when a work is resold through a gallery or auction house, and it is an invaluable source of income for visual artists, as the noble Baroness, Lady Brinton, pointed out. It is the equivalent of royalties for musicians and authors when their work is replayed or reproduced. Earlier, the Minister, the noble Baroness, Lady Neville-Rolfe, talked about duplication, but, crucially, the operation of this right depends on the regulations referred to in this amendment. It does not depend on the EU or other legislation—it depends on these SIs. So, there is particular concern here with these regulations.

I am put in mind of what the noble Lord, Lord Kerr, said earlier about uncertainty. People have talked about what will happen before the deadline on 31 December. I am very concerned about what we will wake up to on 1 January 2024, when businesses and organisations that depend on particular regulations to operate exactly what they do will find that those regulations have disappeared and that they simply cannot work. That is something the Government need to think hard about.

The resale right supports emerging artists as well as established artists. As DACS points out and as the noble Baroness, Lady Brinton, said, the average artist earns between £5,000 and £10,000 a year for their work in this area—a very small amount—and 81% of artists receiving such royalties use their income to pay for living expenses, including studio rent and materials. So these royalties can give a much-needed boost to those artists, which will in turn help to boost the creative economy.

This source of revenue becomes particularly significant, considering the rising costs of materials and increased rents for studio spaces, for estates that support an artist’s legacy by providing revenues to be used for managing the estate and for conservation, all of which contribute ultimately to the UK’s cultural heritage. The amount of royalties paid to artists is less than 1% of UK post-war and contemporary and modem sales, and as research has pointed out, there is no evidence that these royalties act as a deterrent to the UK art market. ARR is recognised by more than 80 countries worldwide and the principle is enshrined within the Berne convention.

ARR has been included in our own trade agreements, as the noble Baroness, Lady Brinton, said, as well as in the withdrawal agreement with the EU, so the removal of this legislation would be inconsistent with the promises we have already made internationally with others. It is vital for the arts and our cultural heritage that this right is protected, and it should be excluded from the sunset clause.

[Baroness Crawley (Lab)]

My Lords, I shall speak to Amendment 145 in the name of the noble Earl, Lord Lindsay. This amendment, to which my name has been added, has the backing of the Safeguarding Our Standards consumer protection campaign and continues the theme of other exclusion or carve-out amendments in this group, in that it would ensure that the Bill will not apply to any regulations relevant to the Government’s forthcoming digital markets, competition and consumer Bill. Many believe that this DMCC Bill represents the most significant reform of UK competition and consumer protection law in years.

The noble Earl, Lord Lindsay, who cannot be here today, and I work closely together with the Chartered Trading Standards Institute, of which he is president and I am a former president. We thank both CTSI and Which? for their support and advice on this amendment. In the Autumn Statement, the Government committed to bringing forward the DMCC Bill in this Session of Parliament, and it would be good to know from the Minister when that Bill will be published—it is supposed to be imminent. It will provide important reforms to competition and consumer protection law, including providing the Competition and Markets Authority with significant new powers to promote and tackle anti-competition practices and, indeed, updating retained EU law, such as the Consumer Protection from Unfair Trading Regulations 2008, with measures to combat fake reviews and subscription traps. It is likely that businesses around the country will be reviewing their current approach to sales and marketing, given the expected new powers the CMA will impose as far as fines are concerned in relation to consumer law breaches through that Bill.

However, there is a very serious risk that the REUL Bill in front of us today will cut across what the Government are trying to achieve through the digital markets, competition and consumer Bill. That is why we believe that regulations that are in scope of the digital markets, competition and consumer Bill should be excluded from the retained EU law Bill. There is already a precedent for this, as the Financial Services and Markets Bill currently going through Parliament, which has already been talked about today, is excluded from the scope of the retained EU law Bill to avoid the risk of the two different pieces of legislation contradicting one another. We have not yet had a proper answer as to why this precedent is still there. The organisation Which? is, however, on record as arguing that the relevant clauses and schedule in the FSM Bill need to be improved to ensure that decisions about any remaining financial services retained EU law are accompanied by effective consultation as well as parliamentary and stakeholder scrutiny.

I urge the Minister to look carefully at this amendment in light of the need for robust competition and consumer law going forward in a very difficult economic time for many people and businesses.

[Lord Callanan (Con)]

My Lords, this debate has demonstrated what we already knew: there is retained EU law across all sectors of the economy, some of which is out of date and unfit for purpose. The Government have taken a sensible approach by requiring that this retained EU law is reviewed and updated equally and in the same timeframe. This makes sure that no specific policy areas get left behind. We have had essentially the same debate on all groups—with Opposition Members highlighting certain areas and saying, “This is very important”, and of course we agree with them, then asking for specific carve-outs, which is impossible until we have done the work reviewing it.

We reject Amendment 6. We think it is unnecessary and ask that it be withdrawn. The amendment would see legislation on artists’ resale rights excluded from the sunset provision. However, the UK Government have already committed to ensure that the necessary legislation to uphold the UK’s international obligations after the sunset date will remain in place. This can also be accommodated using the broader powers contained in the Bill. Again, we contend that there is no need for any carve-outs for specific policy areas.

Similarly, I disagree with the noble Lord’s additional Amendments 13 to 15, which would put various copyright computer programs and database regulations outside the scope of the sunset. The Government believe that an effective and efficient intellectual property system—

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[Baroness Brinton (LD)]

I am grateful for that clarification, but it exactly makes the point that every noble Lord made this afternoon.

[Baroness Crawley (Lab)]

My Lords, I am disappointed in the noble Lord’s response. I cannot see why the Financial Services and Markets Bill can be excluded from the scope of the Bill but not the forthcoming digital markets, competition and consumers Bill. I do not think that the case has been made, but I will not move my amendment when asked.