Retained EU Law (Revocation and Reform) Bill

Baroness Fox of Buckley Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have one clarification for the noble Baroness. The point was made that this is not a Second Reading, but it has also been recognised that the amendments to the original Bill are substantial. The difficulty I have is how we hold this Bill to account when it is different from the Bill that we were holding to account. In many ways, it has been gutted, and we have had four days to assess it. I am not suggesting lots of Second Reading speeches; I simply wanted to reflect, as the noble Baroness already has, that this is a big change to the Bill. How do we deal with that in this discussion?

[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.

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[Lord McLoughlin (Con)]

My Lords, I very much welcome the changes that the Government have brought forward, but I also think that the amendment moved by the noble and learned Lord, Lord Hope, is one that the Government should very seriously consider, and I shall support it later on this evening—and I shall support it for a simple reason. The question as to whether or not we leave the European Union has been settled. I was on a different side to my noble friend Lord Hamilton—I believed that we should remain in—but I accept that that debate has gone and that I lost it. We now have to move on, and we must find a way in which to give the House of Commons and the House of Lords a say over the legislation that is going to replace it.

The sad story of this Bill so far is that we were told that there were 3,000 pieces of legislation, then it was 4,000 pieces—and we now have 900 pieces that can be got rid of very quickly. One thing that is changing dramatically is how a lot of detailed changes have to be made at pace, and it is not always going to be the case that there will be time for primary legislation going through both Houses of Parliament. That is why we need to adapt ourselves to a very different mode of doing regulations. Some of the regulations are technical and the House will not necessarily want to take a particular view but, when they are of a more practical nature, I think that there should be a Joint Committee of both Houses that says to the Government: “Hold on, let’s discuss this”. That is what happened when we had the initial withdrawal Bill and, in a way, the proposals that have been put forward today are mirror images of those particular ways forward.

The changes that the Minister has brought forward, which are very welcome, came very late in the day, and nobody really knew what was happening until late last week—and we are debating them here this afternoon. So I very much hope that the amendment proposed by the noble and learned Lord, Lord Hope, will give the Government time to reflect and see that they have nothing to fear from a Joint Committee of both Houses looking at these matters. After all, if the Government have a majority, it will probably have one on that committee as well—and that is a sensible way forward, giving that parliamentary accountability that we all wish to see.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I would like to focus my probing on Amendment 1—

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[Noble Lords]

Front Bench!

[Baroness Fox of Buckley (Non-Afl)]

I think that I have been encouraged to go ahead. Is that appropriate?

[Noble Lords]

No!

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[Lord Kerr of Kinlochard (CB)]

It is a pleasure to follow the noble Lord, Lord McLoughlin. His historical point is completely correct: the period of maximum EU legislation was during the delivery of the single market programme, which was based on the Cockfield White Paper and the agreement between Prime Minister Thatcher and President Delors. That legislation came through mainly in the early 1990s, and some of it is in the schedule—it has probably been overtaken by something else. It is simply not true that it was all imposed on us.

I support Amendment 76, which is essential. I can explain my reasoning by reminding the House of what Clause 16 says. It is a bit presidential; one might almost say “dictatorial”. Clause 16(2) says:

“A relevant national authority may by regulations revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives”.


In the phrase “considers to be appropriate”, “appropriate” is a very presidential word rather than a parliamentary word. Okay, there is still the saving caveat that it has

“to achieve the same or similar objectives”,

but here comes Clause 16(3), which uses almost exactly the same wording:

“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.


Here there is no saving caveat about achieving the same or similar objectives, so under Clause 16 the Executive may, by regulations, do whatever they well choose. That seems to me to make it absolutely essential to have the parliamentary scrutiny for Clauses 13, 14 and 16 that would be delivered by the amendment in the name of the noble and learned Lord, Lord Hope.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the noble Lord, Lord McLoughlin, is certainly correct that no legislation was forced on the UK by the EU. Indeed, many Ministers from all parties were happy to take advantage of laws made in Brussels, which they sometimes even suggested, by coming back to the UK and reading out the legal text from the EU Commission—and then, if there was any objection, they blamed the EU. But what was removed from that equation was the scrutiny and accountability of the electorate. They were the people who were told that they could not change the law; it was ring-fenced away from them. That is what voters rejected in 2016.

I will be clear on what this Bill is all about by quoting the European Commission, because I know that so many noble Lords trust it and not me. In October 2021 the EU Commission stated, in relation to a dispute with Poland:

“EU law has primacy over national law, including constitutional provisions … All rulings by the European Court of Justice are binding on all Member States’ authorities, including national courts”.


That is no longer the case for the UK, and we are now trying to untangle how we deal with that.

In relation to the Bill, it is, in my opinion, not the case that Brexit was an act of reclaiming sovereignty, a blueprint for saying exactly what laws we would keep or retain, or a means of just getting rid of EU law as an end in itself, as it were. Rather, it was about putting the responsibility for choosing which laws to prioritise, reform or even improve in the hands of the Government and Parliament, who are answerable to the British people—the electorate. I have listened carefully to a lot of the very thoughtful amendments put forward to try to ensure that too much power is not put in the hands of the Executive or Whitehall, as opposed to an accountable Parliament, but I get anxious about how the arguments are posed sometimes, so I will query some of the amendments in this group.

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[Lord Foulkes of Cumnock (Lab Co-op)]

That is true—absolutely, not at all.

[Baroness Fox of Buckley (Non-Afl)]

Indeed, so that is true. For once noble Lords are agreeing with me: this House is not representative of the feelings of the British public. Therefore, the Joint Committees of Parliament, which include many from this House, who are hostile to what the British public voted to do in the past—

[Noble Lords]

Oh!

[Baroness Fox of Buckley (Non-Afl)]

I am simply asking whether that is the solution to resolving the problems that we face in terms of our disentanglement from the European Union’s lawmaking.

[Lord Hamilton of Epsom (Con)]

Before the noble Baroness sits down, could she tell us, then, what Bill is the ideal Bill to bring an end to the constant use of statutory instruments?

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I—

[Baroness Williams of Trafford (Con)]

My Lords, I apologise for intervening again, but the rules found in the Companion are very clear about speaking once on Report.