Retained EU Law (Revocation and Reform) Bill

Baroness Ludford Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

Debate on Amendment 102 resumed.

[Baroness Ludford (LD)]

My Lords, I will speak to the proposal that Clause 12 should not stand part, which is in my name and those of my noble friend Lord Fox and the noble Baroness, Lady Chapman. I will also speak to the proposal that Clause 13 should not stand part, and to Amendment 111, which would require consultation, reasoning, et cetera for proposed restatement regulations.

My noble friend Lady Humphreys quoted the powerful view of the Delegated Powers Committee that Clauses 12 and 13 should be removed from the Bill because they inappropriately delegate legislative powers and appropriate powers that ought to belong to Parliament and be achieved subject to specific primary legislation. That committee brought to our attention, or reminded us of, the delegated powers memorandum, which says:

“This power cannot substantively change the policy effect of legislation.”


The DPRRC says:

“We doubt whether this is correct. Where there is ambiguity—


allowing Ministers to make changes to resolve ambiguities is one of three factors that a restatement is supposedly able to address—

“as to whether policy A or policy B is intended and the legislative restatement emphatically resolves in favour of policy A, the restatement has … made a firm policy choice”.

That view of our committee makes sense. It invited us to ask the Government to explain why none of the law that can be restated under the powers in Clause 12 would instead merit being restated in primary legislation. I hope the Minister will do so in his response.

The committee also draws attention to the powers that Ministers have, I think in Clause 14(6), to reproduce the effects of the supremacy of EU law, the retained general principles of EU law and retained EU case law, to ensure that the restatement has the same practical outcome that existed previously. These three elements are the ones that are otherwise abolished by the Bill; we debated that today in relation to Clauses 3 to 5. So the Government want to bring back, under Clause 14(6), the power for Ministers to reproduce the effects of the things they are abolishing, to ensure that the restatement has the same practical outcome that existed previously.

The DPRRC comments:

“This power may give rise to significant policy questions”,


but they are given to Ministers to answer rather than Parliament. I add to that a suggestion that it will also create legal confusion, because, on the one hand, you have abolished these three elements—supremacy, general principles and retained rights—yet, on the other, Ministers can bring them back. I have not quite worked out how that is supposed to work.

My noble friend Lady Humphreys quoted the fact that the powers in Clause 12 are completely “open-ended”, with

“no requirement for consultation … criteria … or … pre-conditions”.

That explains our Amendment 111, which again seeks to repeat the elements we constantly introduce.

The other thing that Clauses 12 and 13 give to Ministers, in restating REUL in secondary legislation, is the power to use different words or concepts from the original instrument and to make any change considered appropriate. That is rather worrying, and requires the Minister to explain what is meant by “restatement” if the restated law will be different in concept from the original law. To what extent can different words be used before the restatement changes into a new and distinct law? It is no longer a restatement; because different words and concepts have been used, it becomes, in effect, a new and distinct law. When does it morph into a new law, having started off as a restatement? There is quite some confusion on that.

Finally, if I have understood correctly the email from, and blog of, the distinguished legal commentator Joshua Rozenberg, it appears that he has been highlighting the fact that the pensions of some 11,000 serving or former part-time judges were going to be abolished because they relied on EU law. But apparently the Deputy Prime Minister, the Secretary of State for Justice, announced that he was going to save these pensions and that there was no intention to grab them back from affected judges.

I presume that this is the first announcement we have had of what is to be preserved under the Bill. Perhaps the Minister could confirm that. Obviously, I think it is a good thing. I do not think that judges’ pensions, any more than former MEPs’ pensions, should be whipped away. I suspect the Minister might agree on that point. That is a good thing, but we are still fighting for confirmation on things such as water safety, air quality, product safety, employment rights and everything else. When are we going to hear about what is going to be preserved from those other areas of deep concern? I am very pleased for judges, and indeed gratified, but it seems quite odd that we have had an announcement about that but we do not know whether anything else is going to be preserved. Perhaps the Minister could enlighten us in his reply.

[Lord Hacking (Lab)]

My Lords, I support Clauses 12 and 13 no longer standing part of the Bill. Opposition to those clauses has been led by the noble Lord, Lord Fox, and the noble Baroness, Lady Ludford. I support them on the very simple premise that the Government are attempting to sweep all legislation, including primary legislation which creeps up on secondary legislation; in other words, the secondary legislation has been adopted as primary legislation.

Before I go further—and I think I have attempted to do this already—I would like to put right the misconception that the EU law coming into our country was all under the carpet, that it was not considered and endorsed by Parliament. I suppose the Government have not put it quite so colourfully, but they could well say, on that basis, “What’s all the fuss about? The EU legislation arrived under the parliamentary carpet, why are you making all this fuss now?”

I want to correct that misconception. I sat for a number of years on the EC Committee and then the EU Committee in the 1980s and 1990s. I must have had about 10 to 12 years sitting on those committees—it was the same committee but it was renamed when the EC renamed itself the European Union. When I was on that committee, we had very alert clerks and very good relations with Brussels. The result was that when a regulation that caused concern was being considered by the Commission, with great co-operation from the Commission we were shown the draft of that regulation, really in its final form, before it was introduced as a regulation. We would examine it. It happened on a number of occasions; I cannot count the number. Your Lordships’ European Committee considered in detail the regulation, took evidence, wrote a report and sent that report back to Brussels.

I do not want to fancy ourselves too much, but the House of Lords European Committee had a great reputation in Brussels. Of all the parliaments in the union, we were the most constructive. I suppose I have to include whatever the other place was doing. With our good relationship with the Commission, when the Commission read our report it was influenced and changed the drafting of that particular regulation.

Of course, of the many regulations that were brought through when we were in the European Union, I am referring to only a few, but it is an example of how we were involved in the creation of regulations in an influential way.

--- Later in debate ---

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

My Lords, I would also like to speak in support of the amendments on the definition of regulatory burden, because the truth is that throughout our history, one person’s burden has also possibly been somebody else’s vital protection. This is particularly true in respect of employment rights.

It was good to hear the Minister talking positively about the living wage, which started life as the national minimum wage. As somebody who campaigned for it, I vividly remember huge opposition and resistance to the introduction of a national minimum wage, precisely on the grounds that it would be a burden on employers, cost too much and so on. Of course, today, it is now seen as one of the most successful policy innovations this country has ever delivered. I might add that it has been delivered on the advice of one of our few remaining tripartite bodies to make recommendations to government—the Low Pay Commission.

I am also particularly concerned about this clause’s impact on equality. Equal rights for part-time workers, which we also campaigned for, meant that, for the first time, millions of women in particular had access to occupational pension schemes. Without doubt, some might describe that as an administrative burden and an added cost for employers. I would argue that driving up labour standards is good for productivity, protects the decent employer against the bad and is ultimately good for our country. We want a country where people can work and retire with dignity. This clause is really unhelpful: the definition of “burdens” is unhelpful and does not appear to consider the impact on ordinary working people at all. It would be wise to drop it.

[Baroness Ludford (LD)]

My Lords, we have heard some excellent contributions in this debate, not least the latest one from the noble Baroness, Lady O’Grady, and those of the noble Lord, Lord Lucas, and the noble Earl, Lord Lindsay. My noble friend Lord Clement-Jones made an extremely powerful case on product safety in online marketplaces. In the course of his contribution, he, like others, tested or tried to probe what “subject area” means—the Bill says, “a particular subject area”. I am afraid we are rather used to this, but the letter that we received from the Minister simply repeated that and did not explain it. It said:

“it will be possible for a single instrument made under … clause 15 to increase the regulatory burden, so long as this increase is offset by a decrease of regulation in the same subject area.”

But it did not enlighten us about the scope of a subject area, because that is a very subjective definition.

The noble Lord, Lord Lucas, said that if civil servants were considering one new measure they would have to look at all of the past measures. I suggest that they would have to look at all of the anticipated future measures as well and be Mystic Meg, because they need to know what is coming down the track to take any kind of view of what a single instrument might do to the weighting of the scales in the balance and amount of regulation. It is a bit of a lottery whether any single measure will fall foul of the overall regulatory burden test.

I note that the Minister’s letter admitted that

“There is no definition of regulatory burden in the Bill, as the Government considered that such a definition could unnecessarily constrain departments given the considerable variety in what is covered in regulations across Government.”


This is not the first time that we have been told that we must not unnecessarily constrain departments—which means unnecessarily constrain Ministers. So consultation, analysis, publication of the results of consultation and the role of Parliament all have to fall by the wayside because we must not unnecessarily—that is a loaded word—constrain departments: that is, constrain Ministers. The Government are acting in a very arrogant and high-handed way. They are getting too big for their boots by saying that nothing should be allowed to constrain ministerial powers. I am quite fed up with it.

So we are not getting any satisfactory explanation of how Clause 15 will be applied, and we cannot have any confidence, given the factors in Clause 15(5), that it will not lead to a de facto lowering of standards. That is the whole thrust of what has been talked about, and the whole rhetoric around the Bill, which started as the Brexit freedoms Bill, so it is very difficult to trust the assurances we have had that Ministers do not intend to lower standards.

During an evidence session with the House of Lords Environment and Climate Change Committee, the Secretary of State for Defra referred to the goal of the Environment Agency

“to change quite a lot of the water framework directive”.

That immediately makes one somewhat worried. It may well be that we need a sensible approach to looking at the water framework—and even my favourite one, the urban waste water treatment directive—but it is well known, and a source of great public concern given the state of our rivers and seas because of the discharge of raw sewage, that tackling the dire state of our waters will not be possible without substantial investment, which would trigger both a financial cost and the profitability limbs of Clause 15(5). So how will Clause 15 be a route through which the Government deliver improved environmental outcomes? There is a simple contradiction at the heart of all this.

The noble Lord, Lord Benyon, has told the Committee several times that the Government are committed to maintaining high environmental standards and that they want to see standards improve in future, but the whole thrust of Clause 15, particularly subsection (5), pulls in the opposite direction. You can just see water companies coming along and saying, if we require them to improve our pipes—which are bursting all the time, not least in my neck of the woods in Islington—and to stop raw sewage discharges by having better treatment facilities, that it will reduce their profits, which are of course being creamed off, with no benefit to consumers and citizens. So it is clear that the thrust of all this is towards a lowering of standards, and it is really impossible to believe the opposite of the case.

Finally, I will speak to the weakness of the “same or similar objectives” test. The reason for us wanting to replace “objectives” with “effects” is because you could have a law which might have the same or similar objectives of protecting consumers, but which will achieve the objectives in ways which are controversially different. I will leave noble Lords with the example of parental leave. The noble Baroness, Lady O’Grady, talked about various employment areas, and one of those rights is to parental leave. If Ministers wanted to have replacement regulations under Clause 15, they could argue that they could decide to give employers the right to refuse leave rather than just postponing it, as they are able to do in narrow circumstances where the operation of the business would be unduly disrupted. The Government could say, “Oh, well, we would be pursuing a similar objective of creating provision for parental leave while protecting businesses from being disrupted”. But if you gave employers the right to refuse leave—pursuing the similar objective because it is about parental leave—you would be driving a coach and horses through the parental leave rights.

Clause 15 is riddled with weaknesses and dangers; it is a “Here be dragons” clause, and it should be removed. It cannot be improved, and it should be taken out of the Bill.