Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

51: Clause 2, page 2, line 9, leave out “Minister of the Crown” and insert “relevant national authority”
Member's explanatory statement
This amendment ensures that any relevant national authority (as defined in clause 21(1)) can extend the sunset referred to in Clause 1.

[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Amendment 51, I shall speak also to Amendments 53 and 56. I look forward to hearing from others who are speaking to their amendments in this group: the noble Baroness, Lady Humphreys, my noble friend Lady Lawlor, the noble Lords, Lord Whitty and Lord Fox, and the noble and learned Lord, Lord Hope, with whose amendments in this group I have much sympathy.

Amendment 51 is a simple amendment which would leave out “Minister of the Crown” and insert “a relevant national authority”. The point of the amendment is to ensure that any relevant national authority, as defined in Clause 21(1), can extend the sunset referred to in Clause 1.

The reason I move this amendment is that the Bill currently proposes, in Clause 2, that only a Minister of the Crown can make regulations to extend the sunset period. In my view it is inappropriate that Ministers in the devolved Administrations cannot carry out the same function in respect of the retained European Union law that applies in their respective devolved competencies. Limiting this power to a Minister of the Crown appears to be at odds with paragraph 60 of the Explanatory Notes to the Bill:

“The Government also remains committed to respecting the devolution settlements and the Sewel Convention, and has ensured that the Bill will not alter the devolution settlements and will not intrinsically create greater intra-UK divergence.”


The point of this amendment is to assist the Government in this regard. It provides devolved Ministers with the power to extend the sunset deadline. Amendment 53 is merely consequential on this amendment.

Amendment 56 intends to delete Clause 2(4) at line 18 of page 2. Clause 2(1) provides that:

“A Minister of the Crown may by regulations provide that … the reference in section 1(1) to the end of 2023”


should specify a later time. Clause 2(4) provides that the later time cannot be

“later than the end of 23 June 2026”,

which happens to be the 10th anniversary of the date on which the referendum on UK membership of the European Union was held.

In my view and that of the Law Society of Scotland, which helped me draft this amendment, government policy in relation to the applicability of retained EU law should not be made on the basis of symbolism. There is no need to set such a deadline, and I seek to understand why my noble friend the Minister is putting such an arbitrary deadline in the Bill. Were any deadline to be necessary, this should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and consultation with those who will be affected by the variational revocation proposed by the regulations in question. In any event, in the opinion of the Law Society of Scotland, with which I agree, the sunset provision should operate from 31 December 2028 at the earliest. Clearly, the possibility of any extension of a sunset provision should run for a period after that date.

In an earlier debate, the noble Baroness, Lady Jones of Moulsecoomb, and others referred to the political dimensions of parts of the Bill. I ask my noble friend to confirm that it is not purely for political symbolism that the Government have fixed on this deadline.

I also request that the point I raised in the debate on the first group of amendments be now positively responded to. In summing up this group of amendments, can my noble friend tell me how the Government intend to respond to withdrawal of consent by the Scottish Parliament? How do the Government intend to respond to the amendments the Scottish Parliament has published and tabled in this regard? With those few remarks, and looking forward to the other contributions, I beg to move.

[Baroness Humphreys (LD)]

My Lords, I shall speak to Amendment 54 in my name, Amendments 51 and 53 in the name of the noble Baroness, Lady McIntosh of Pickering, and Amendment 58 in the name of the noble and learned Lord, Lord Hope of Craighead, all of which I support. I thank the noble Baroness for explaining her amendment so clearly.

Amendment 51 would ensure that any national authority could extend the sunset and, usefully, points to the definition of “national authority” in Clause 21. Amendment 53 would extend the sunset until the end of 2028. The noble and learned Lord’s amendment would very helpfully give Scottish and Welsh Ministers a power to extend the sunset date for devolved retained EU law, equivalent to that conferred on a Minister of the Crown by Clause 2.

My Amendment 54 continues on from those three amendments by clarifying what provisions would be devolved and would therefore be under the competence of Scottish Ministers, Welsh Ministers or the Ministers of the Northern Ireland Executive for decision, rather than a Secretary of State. I am grateful to both noble Lords for tabling their amendments, which highlight and address the anomaly that has stood out in this Bill: they give the Minister the opportunity to explain fully the reasoning behind the Government’s decision to allow an extension to the sunset beyond the end of this year for the Secretary of State while withholding the availability of such an extension for Ministers in the devolved Administrations.

I should add that the Minister has already dealt with that issue in her response to this morning’s debate but I am afraid that I missed the detail. I shall read Hansard and reserve the right to come back to this issue at a later stage if I need to, but perhaps if she or her noble friend have anything to add then they will do so. I am also grateful to the noble and learned Lord for his Amendment 58, which puts the powers of the Welsh Ministers over devolved retained EU law on a par with that of the Secretary of State.

Why do the devolved Administrations need these amendments? The arbitrary cut-off date of the end of 2023 has no logic other than a political one. The cynic in me believes that the UK Government want to clear the decks before the next election, probably next year, so that they can claim that EU law no longer exists in the UK, no matter the damage which that causes and the complexity of the task.

In an earlier debate I referred to the Welsh Government’s response to the Bill, and I shall use those points again in relation to the debate on these amendments. The Welsh Government feel that the Bill is unnecessary and that the EU laws have worked well for them. Their preference would be to continue with the present laws and amend them gradually over time as the need arises. An extension to the sunset until 2028 would allow them to deal with the process in a more timely and considered manner. The workload for Members of the devolved Administrations and their comparatively small teams of civil servants has already been referred to. They have dealt with a massive amount of UK legislation over the last few years. They have struggled with complex Bills that have provided increasing challenges to their devolved settlements and have led to increasing calls for the codification of the Sewel convention.

My Amendment 54 would clarify what is devolved and, if placed in the Bill, would bring certainty for Welsh Ministers to act on devolved matters without interference. This Bill has added further pressure on the Welsh Government, as Members have already said, and one feels the sense of their being overwhelmed. There are difficult decisions to be made, as they consider whether more civil servants will have to be employed or whether the redirecting of officers to work on the Bill will be sufficient. The latter, of course, has an impact on the legislative programme that the Senedd would wish to implement and the former has an impact on its budget.

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[Lord Callanan (Con)]

I do not agree with the noble Lord’s characterisation. If they wish, it is perfectly possible for them, before the sunset date, to renew that legislation. The extension mechanism is of course something that we will discuss with them as appropriate.

[Baroness McIntosh of Pickering (Con)]

I have to say that that is a little disappointing as a summing-up. I take responsibility for not giving proper hearing to the amendments in the name of the noble and learned Lord, Lord Hope—I had not realised he had slipped away, and I had promised to speak to them, so I am very grateful to the noble and learned Lord, Lord Thomas, for speaking to Amendment 58.

In summing up, my noble friend did not refer to the fact that the Scottish Parliament have removed their consent from the Bill—news which reached us only a week ago. My noble friend did not respond on what the Government’s approach will be to the amendments. That would help us in our deliberations.

I am extremely grateful to the noble Lord, Lord Collins, for probing as eloquently as he has, because that is the purpose of Committee. It would be helpful to know at this stage how the Government intend to respond to the amendments from the Scottish Parliament, though they are not before us today but in a different procedure.

Obviously, I prefer my deadline to that of my noble friend, but I am very grateful to her for tabling the amendment for debate. Equally, the noble Baroness, Lady Humphreys, spoke very eloquently about the position in Wales.

I am slightly at a loss here. I have been a UK parliamentarian for a while now but I was born in Scotland, and it grieves me that the UK Government do not appear to be making proper commitments in what was the internal market Bill and other Acts that we have passed, not just the Bill before us today. I feel that the Government’s work is cut out for them on this group of amendments.

I am sure that we will wish to return to these issues at a later stage but, for the moment, I beg leave to withdraw Amendment 51.

Amendment 51 withdrawn.

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Moved by

[Baroness McIntosh of Pickering]

59: Clause 3, page 2, line 23, leave out “the end of 2023” and insert “11:59 pm on 31 December 2028”
Member’s explanatory statement
This is a consequential amendment which provides clarity about the time the sunset provisions under clause 3 come into effect.

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[Baroness McIntosh of Pickering (Con)]

My Lords, this is obviously a long group of amendments. In moving Amendment 59, I will speak briefly to Amendment 76 in the name of the noble and learned Lord, Lord Hope.

In Amendment 59, we have a chance to look at Clause 3, on the sunset of retained EU rights, powers and liabilities. Again, the particular purpose of this amendment is to take the sunset clause in relation to the retained EU rights, powers and liabilities contained in the Bill and extend it to 31 December 2028; this reflects earlier debates that we have had.

The context of this group of amendments is to consider how EU law will be assimilated into UK law, and what the procedures and timescales for this will be. Amendments 60, 61, 64, 70 to 72, 74, 75 and 100 have a similar theme in this regard. I know my noble friend on the Front Bench thinks that he has heard these debates before, but take Amendment 60 as an example. The reason why this amendment is important is that it seeks to delete Clause 3(2), which declares that any retained EU law sunsetted by subsection (1)

“is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed).”

In the view of the Law Society of Scotland—I am grateful again to Michael Clancy for helping me prepare for today’s debate—this is

“an unnecessary provision and adds nothing to the interpretation of the clause. Accordingly it should be deleted.”

As noble Lords will realise, it is ultimately the role of lawyers to apply the law that we will, in time, pass in this Bill.

Amendment 61 provides the ability for the sunset of retained EU rights, powers and liabilities to be extended to a later time by a relevant national authority. As presently drafted, Clause 3 provides for a sunset of retained EU rights, powers and liabilities et cetera at the end of 2023. However, there is no provision to extend this sunset such as applies in relation to Clause 1. Amendment 61 makes provision for a relevant national authority to be able to make regulations to provide for such an extension.

Amendment 64 is a consequential amendment which provides clarity about the time when the sunset of the principle of the supremacy of EU law comes into effect. As we heard in debates, the principle of the supremacy of EU law was developed by the Court of Justice of the European Union and provides that, when there is a conflict between national and EU law, EU law will prevail. It is key to the EU legal order and ensures consistent application across the EU. In Retained EU Law: A Practical Guide, Duhs and Rao comment on the application of the principle. They note the comment by the House of Lords Constitution Committee that it is impossible to see in what sense the principle of supremacy of EU law could meaningfully apply in the UK once the UK has left the EU. They go on to explain that it is retained because one of the stated aims of the European Union withdrawal Act is to incorporate EU law into domestic law. To incorporate EU law into the domestic statute book while retaining the principle would imbalance the statute book. Therefore, it is logically consistent that, when retained EU law is being abolished, the principle should also be disapplied. However, the Law Society of Scotland, with which I agree, questions whether the abolition of this principle will not affect the interpretation of EU law when it becomes assimilated. Therefore, is this not a factor to be taken into account when considering how to assimilate that law? In earlier debates, the noble Lord, Lord Fox, pursued this with some eloquence in relation to earlier clauses. Amendment 64 relates to Clause 4. Providing a later sunset date of 31 December 2028, as I seek to do in Amendment 64, will allow for a thorough analysis of the consequences of the removal of the principle in relation to the interpretation of assimilated law.

I also support the proposal that Clause 5 stand part of this Bill. Unfortunately, the noble Lord, Lord Fox, and others, got there ahead of me, but I am delighted to lend my support. Clause 5 amends various sections of the EU withdrawal Act so that retained general principles of EU law are no longer part of UK law from the end of 2023. This clause will achieve the Government’s policy of removing retained principles of EU law. However, will not the abolition of these general principles affect the interpretation of EU law when it becomes assimilated? Should this not be taken into account when considering how to assimilate that law? The Government should therefore justify the necessity for Clause 5.

Amendment 70 looks again to extending to 31 December 2028 with regard to Clause 6. It is a consequential amendment providing clarity on precisely how and when retained EU law will be known as assimilated law. The reference to the end of 2023 in Clause 6(1) is vague, and therefore the greater precision set out in this amendment follows the precedent within the definition of IP completion day found in Section 39(1) of the European Union (Withdrawal Agreement) Act 2020. The additional time should be used for a more thoughtful approach to amending by renaming retained EU law. The choice of date should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and to permit consultation with those who will be affected by the variation proposed by the regulations under Clause 19. This later date will allow for that process to be completed.

Amendment 71 is a consequential amendment, again extending the deadline for a different provision in Clause 6 to 31 December 2028, when it will become known as assimilated law. Equally, Amendment 72 has equal effect on a later provision in Clause 6. Amendment 75 again looks to extend a later part of Clause 6 to 31 December 2028. Amendment 100 is fairly self-explanatory. It is a consequential amendment to] the other amendments in this group to leave out Clause 8(4).

Before I move Amendment 59, I would like to speak to Amendment 76 in the name of the noble and learned Lord, Lord Hope, who has unfortunately had to leave and can no longer be with us. Amendment 76, supported by the noble Baroness, Lady Finlay of Llandaff,

“gives the Scottish and Welsh Ministers a power, equivalent to the power of Ministers of the Crown in Clause 6(6), to amend legislation in consequence of the change in terminology from ‘retained EU law’ to ‘assimilated law’ made by Clause 6.”

That goes to the point made by the noble and learned Lord, Lord Thomas, in the previous group that it is important to have equality of governance across the UK between Ministers of the Crown and Ministers from devolved Governments.

With those few remarks, I hope that my noble friend will give a fair wind to the arguments that I have made to extend the sunset in those various clauses and looks favourably on the amendment in the name of the noble and learned Lord, Lord Hope, as well. I beg to move.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

Your Lordships should know that, if Amendment 59 is agreed, I cannot call Amendments 61 or 67 for reasons of pre-emption.

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[Lord Callanan (Con)]

I am not going to give an absolute commitment, but I will talk to the lawyers. On the famous letter from my noble friend Lady Bloomfield, I actually pushed officials to try to assimilate the contents of the letter and get it out to the Committee as quickly as possible, because I thought noble Lords would want to see it before we considered the Bill on a further day. They worked very late into the evening to get the letter out, after going through all the necessary approvals that the Government need to go through. Given some of the criticisms, I wish I had not bothered. Nevertheless, I still think it was helpful to noble Lords and will do my best to get them the letter to which the noble Baroness referred.

[Baroness McIntosh of Pickering (Con)]

My Lords, this has been an excellent debate. It reflects not least the concerns of the legal practitioners, who will be left to interpret the status of the laws. But what concerns me is that the Minister and the department are perhaps in denial about the level of concern that has been expressed not just in the Committee this afternoon but in those examples from various sectors that we have heard today. This has been a beneficial session in probing where we can reach agreement before Report to help the Government get the Bill through. I know that my noble friend cares very deeply and passionately about that.

The Committee accepts that the supremacy of EU law will go but my noble friend needs to consider whether the abolition of this principle will affect the interpretation of EU law when it comes to being assimilated. Is that not a factor to take into account in how we assimilate that law? I leave my noble friend and the Committee with that thought.

However, I believe that we have established some ground rules during this debate, so that we can regroup before Report. I, among others, look forward to receiving the letter from my noble friend and, at this stage, beg leave to withdraw my amendment.

Amendment 59 withdrawn.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, like the noble and learned Lord, Lord Hope of Craighead, I serve on the Common Frameworks Scrutiny Committee. We have met with a level of frustration about this Bill and the delay in some of those common frameworks coming forward. They are an important element of devolution and provide for that element of divergence.

I support Amendment 29. I have other amendments in my name and that of the noble Baroness, Lady Suttie, in this group but, in relation to Amendment 29 and the issue of sunsetting, could the Minister indicate how the Government will protect the new Windsor agreement, which underpins devolution in Northern Ireland, from 1 January 2024, given the revocation of retained EU law from that date?

The purpose of Amendment 147 and, in particular, Amendment 33 is to ensure that Northern Ireland is removed from inclusion in this Bill—in fact, Amendment 147 states that—due to the influence and impact of the Protocol on Ireland/Northern Ireland, because I believe that the Windsor agreement of this week is simply an implementation plan of the protocol with mitigations. In this regard, I refer to Article 2 as well as to environmental considerations. Amendment 33 would prevent the automatic revocation or sunsetting of EU-derived subordinate legislation and retained EU legislation that relates to human rights, equality and environmental protections as they affect Northern Ireland. This would include all such legislation that falls within the scope of Article 2 of the protocol.

I and the noble Baroness, Lady Suttie, have spoken to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, which are tasked with statutory oversight of the UK Government’s commitment under Article 2 of the Protocol on Ireland/Northern Ireland to ensure no diminution of certain equality and human rights protections in Northern Ireland as a result of Brexit. These equality and human rights protections relate back to the Good Friday agreement of 10 April 1998. Quite rightly—this is the purpose of these amendments—both commissions are concerned that this commitment has not been properly considered in the development of the Bill and that the proposed sunsetting of EU-derived subordinate legislation and retained direct EU legislation risks a breach of Article 2 unless all relevant legislation is identified and preserved by the set deadlines.

This pressure is exacerbated by the absence of an Executive in Northern Ireland at the moment. Could the Minister provide us with some detail about any work that has been ongoing in relation to that? Both commissions believe that the Bill should be amended to include a clause confirming that the provisions of the Bill are without prejudice to Section 7A of the European Union (Withdrawal) Act 2018. Amendment 142 in our names, which is in another group, refers to this. Both commissions have welcomed assurances by the UK Government of their commitment to Article 2 and their acknowledgment that the commitment is non-controversial. However, a number of concerns have been identified.

I have a couple of questions for the Minister. If cannot respond today, maybe he could come back to me in writing. Could he set out the steps that will be put in place to mitigate the risk of inadvertent failure on the part of the Government or devolved authorities to preserve or restate all relevant EU-derived subordinate legislation in Northern Ireland and retained EU legislation within the scope of Article 2, within the set deadlines in the Bill, in the absence of the Bill being amended to include measures that protect against this risk? Would the Minister also set out in detail—I would be grateful if he could do so in writing—what consideration was given to ensuring compliance with Article 2 in the development of the Bill, including in the identification of the specified legislation?

In relation to Amendment 142, there is a concern that the environment will not be properly protected. There is therefore a need for Northern Ireland to be removed from this. In an area of political instability, where the Executive and Assembly are currently not operating, we need full measures within the legislation to ensure that Northern Ireland is not covered and that it is removed in terms of the environment. Will the Minister specify the steps that he will take on behalf of the Government to do just that?

[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.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Benyon (Con)]

I entirely agree with the noble and learned Lord: it has to be specified. That is the work we are doing, and that is how we will decide whether we need that extension.

[Baroness McIntosh of Pickering (Con)]

Will my noble friend—

[Lord Benyon (Con)]

I want to make some progress.

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[Baroness McIntosh of Pickering (Con)]

I understand that, but I have not spoken yet. Can I just ask: where is this going to be specified for our greater understanding? My noble friend said that it would be specified; where will it be specified?

[Lord Benyon (Con)]

In the work we are doing to assess each area of retained EU law, we will make an assessment of whether we are going to need some more time to do it. Your Lordships will be informed of that, and there will be the possibility of accountability being applied to it.

The noble Baroness, Lady Bakewell, also raised bathing waters in Amendment 11. We are committed to protecting and enhancing water quality. It is worth stating that in most places our bathing waters are better than they have ever been. Indeed, in 2022, 72% of our bathing waters met the “excellent” standard, the highest number since new, more stringent standards were introduced in 2015. In total, 93% of bathing waters in England were classified as “good” or “excellent” last year. We recognise that there are always ways that we can improve how we manage and regulate our bathing waters, and we will continue to explore how to take those forward, including through this Bill.

The noble Baroness also referred to the water environment regulations in Amendment 12. We are committed to protecting and enhancing water quality, and the Environment Act has only strengthened regulations since we left the EU. We have set legally binding targets for the water environment which cover pollution from wastewater, agriculture and abandoned metal mines and reducing water demand. In the Environmental Improvement Plan, we committed to restoring 400 miles of river through the first round of landscape recovery projects and establishing 3,000 hectares of new woodlands along England’s rivers. We are also aiming to achieve “good” ecological status in 75% of water bodies, as per the water framework directive regulations. I assure your Lordships that this Government respect the significance of the water framework directive, and retained EU law reforms will not come at the expense of our already high environmental standards.

To address the point that the noble Duke, the Duke of Wellington, raised—I mentioned this yesterday in a meeting, but I will repeat it for the record—hitting the water framework directive standards is an incredibly high bar. The average river in this country is divided into a number of reaches for the purpose of the water framework directive. Each one of those reaches has a range of different measures—which could relate to fish population, chemical pollution, or anything else—that would trigger a failure of that particular reach to achieve the “good” standard that is required under the regulation. It is a policy called “one out, all out”. That is the reason that only 16% of our rivers are achieving “good” ecological status. That is a standard I do not want to see changed by this Government or any future Government. It is one of the most difficult to achieve, as other countries in Europe are also finding. If we were still in the European Union, we could face infraction fines if we failed to hit those targets. The point is that we are retaining those very high standards. We want to see them retained, and we want this Government and future Governments to be held, justifiably, to them.

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Anyway, I hope I have sufficiently explained why this is an excellent amendment. It is trying to bring some sense into what is, at the moment, quite a chaotic Bill. I hope that it can be supported across the House and by the Government. I look forward to the Minister telling me what a wonderful amendment it is and how he is going to adopt it wholesale. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Baroness. My amendments are a little more directly addressed to probing the clarity as regards the date on which the sunset provisions come into effect, while allowing a five-year additional timeline, which is needed for the reasons we have heard over the first two days in Committee.

I speak in support of Amendments 27 and 28. Amendment 28 was drafted by me and I prefer the amendment drafted by the Law Society of Scotland. I am delighted to have the support of the noble and learned Lord, Lord Hope of Craighead, as well in that regard. The amendments probe the Government on providing clarity about and extending the date on which the sunset provisions come into effect. As we now know, Clause 1(1) provides for the revocation of all “EU-derived subordinate legislation” and “retained direct EU legislation” by the end of 2023, although that date is very vague. The Law Society of Scotland expresses its serious concern that the proposed statutory deadline of “the end of 2023” does not appear to allow sufficient time to enable the review of retained European Union law to be completed properly, after due consultation with the devolved Administrations and relevant stakeholders, including UK parliamentary and devolved legislature committees.

The additional time could also be used for a more thoughtful approach to amending or repealing retained European Union law. The choice of date should be made on the application of good legislative practice, including consideration and analysis of the legislation involved, and consultation with those who will be affected by the variation or revocation proposed by the regulations in question. The later date that I set out in Amendment 27 will allow for that process to be completed.

Furthermore, the reference to “the end of 2023” in Clause 1(1), as referred to above, is vague. I therefore suggest that this reference should be defined with greater precision in as

“11:59 pm on 31 December 2028”

following the precedent of the definition of IP completion day found in Section 39(1) of the European Union (Withdrawal Agreement) Act 2020. I hope that, in summing up, my noble friend will approve both the specific reference to the time and date, and the extension of five years.

We heard for the first time officially today—unofficially yesterday in the briefing—that the default position of Defra is to retain all EU law. But, as we discovered, that is not stated in the Bill so, emerging from Amendment 27, I put two options to my noble friend the Minister this evening. The Government should either, in the spirit of openness, publish in an easily accessible format all the retained EU law that is to be retained and, alternatively, that to be revoked; or, as proposed in Amendment 27, they should insert a later, clearer deadline of 2028 to ensure that no instrument lapses by default.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

We have a process for those measures. Obviously, there is a lot of retained EU law. We are going through it very carefully. Departments are doing that and are working out what should be preserved, what should be amended and where there is duplication. As I said, there is a case for change, and I think that has been accepted on the other Benches. In some cases, there is parallel legislation, such as the Environment Bill, which has brought in new powers.

If I might turn to Amendment 3 in the name of the noble Baroness, Lady Brinton, I think she will be glad to hear that the European qualifications she refers to in the amendment do not, in fact, fall in scope of Clause 1. Therefore, this amendment is not necessary and, indeed, would have no effect. This is because the regulations concerned were made under domestic powers to come into force after the transition period and therefore do not fall within the definition of EU-derived subordinate legislation in scope of the sunset. The sunset captures only regulations made or operated immediately before the transition period for the purpose of implementing an EU obligation.

Turning to Amendment 4, I am sorry to hear about the noble Baroness’s coeliac condition. I remember developing special lines for coeliacs in my time at Tesco, which has been referenced earlier in the debate. We are in the process of reviewing retained EU law. The Government’s aim is to ensure that food law is fit for purpose and that the UK regulatory framework is appropriate for and tailored to the needs of UK consumers and businesses. A specific exemption for these regulations is not appropriate. The Government are in the process of analysing and assessing retained EU law to determine what should be preserved and what should be repealed or amended. That work will determine how we use the powers in the Bill. The UK has world-leading standards of food safety and quality, backed by a rigorous legislative framework. I know because I did the first Bill of this kind, the Food Safety Act 1990. It is only right that we should re-evaluate REUL to ensure that it continues to meet our needs.

I was asked about intention. The Government remain committed to promoting robust food standards nationally and internationally to protect consumer interests, facilitate international trade and ensure that consumers can have confidence in the food they buy.

[Baroness McIntosh of Pickering (Con)]

I have followed this debate, although I have not yet spoken in it. I would just like to clarify something. Is my understanding correct that Defra, or indeed any other department, could apply to have its own date for sunset clauses? If that is the case, what is the mechanism that would be used in terms of legislation? Also, when the Minister refers to food standards, what is the role of the Food Standards Agency in England and Food Standards Scotland to maintain them, not just for food in this country but to ensure that imported foods meet those standards under the revised legislation?

[Baroness Neville-Rolfe (Con)]

I will try to answer my noble friend’s question. Defra has a programme looking at all this. It needs to decide what to preserve and what might need to be amended. I think the Bill has some scope for extension from 2023 into 2026. Perhaps I could now move on to Amendment 17 in the name of the noble Lord, Lord Clement-Jones.

--- Later in debate ---

I know the noble Lord will say what he has said to me twice now: that the example Defra can give is the Habitats Regulations being amended by the Environment Act, which we have now passed, and the Levelling-up and Regeneration Bill which is now in your Lordships’ House. The reality is that nobody has ever done the read across from that suite of environmental law that these two Bills are allegedly supposed to replace. It would be good for it to be flagged when the House is talking about legislation that is intended to replace European law, because quite a lot of us were assuming the Environment Act was alongside environmental law. It would also be good to get that read across or map across of what is being brought over and what is not, before we agree any further legislation that claims to remove the need for environmental legislation under EU retained law. There is the solution; I hope the Minister is minded to change.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for introducing this group of amendments. I particularly associate myself with the amendments in the name of the noble Lord, Lord Krebs, supported by the noble Lord, Lord Rooker, for the simple reason that having confidence in our food is essential to the food and farming sector.

I spent five years in the other place chairing the Environment, Food and Rural Affairs Committee and perhaps one of the most difficult inquiries we had was that into the horsemeat scenario. As the noble Lord, Lord Rooker, said in speaking to the amendments before us, Amendments 30, 39 and 146 in particular, it could so easily have been not just a fraud and a scare but another food scandal. Humans could have been infected. I suppose it was a blessing that it was just one type of meat being passed off for a much more expensive type of meat.

I pay tribute to the work the Government did at that time in setting up the independent inquiry led by Professor Chris Elliott and its work to review Britain’s food system. Amendment 30 goes to the heart of the matter. I am not entirely convinced that the food checks we agreed to in the TCA are in place. We were told they are going to be introduced and I have discussed this with the Food Standards Agency; they are meant to be introduced completely this year.

Also this year, we are introducing unitary government in North Yorkshire so are merging the two key departments that look at this—environmental health and another department, the name of which will come back to me. I think the noble Lord, Lord Rooker, was right about the few local authorities that are actually conducting tests into the safety of our food, and whether the food is what it says on the label and is not a fraud.

Amendment 39, while it perhaps does not cover every single scenario as the noble Lord, Lord Krebs, said, goes some way to expressing why it is vital that the European regulations provide the food safety and hygiene to which we have signed up.

In summing up this debate, I hope my noble friend puts our minds at rest as to what that procedure is going to be and gives us an assurance that the noble Lords, Lord Rooker and Lord Krebs, have sought in this small group of amendments that those tests, which have stood the test of time, will continue to be place.

One of the recommendations—I do not know if it was implemented—from the report that looked into the horsemeat fraud in 2013 was that major retailers, and I think my noble friend did work for Tesco for a time, should conduct their own tests on a mandatory basis, not just the voluntary basis as it apparently is at the moment. I hope my noble friend updates us on the Government’s thinking in that regard.

My preference would be that phytosanitary checks take place at our borders. That is what we signed up to, and the food industry hopes that the Government can show that imported food meets the same tests and is as safe to eat as domestic food produced under our very high standards. In addition to them, regular checks should obviously be conducted. I do not know whether my noble friend has an update in response to the figures given by the noble Lord, Lord Rooker, on how many local authorities are actually doing checks that we require of them at this time. Is my noble friend convinced that they have the manpower and funding resources to ensure that this remains a priority? With those few remarks I lend my support to, in particular, Amendments 30, 39 and 146.

[Lord Hacking (Lab)]

My Lords, I sat through the entirety of the Second Reading debate—I missed only one speaker—and I have sat through today’s Committee, just missing, alas, about five minutes at the beginning of the session after lunch. I have been in receipt, as I am sure most noble Lords have been, of very strong criticism from those outside the House. For example, I had a briefing from Prospect which is central to the matters of this Bill because it covers inspectors from the Health and Safety Executive. It describes this Bill as “reckless, unworkable and undemocratic”. Without reading the reports, there has been severe criticism from the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee.

This has sorrowed me. I am sorry for the Government and am particularly sorry for the two Ministers who have been to the Dispatch Box. Indeed, if there is a third Minister to go to the Dispatch Box—she nods her head—I am sure that I will have sympathy for her. Look at the number of interruptions that the noble Lord, Lord Callanan, received when he was at the Dispatch Box, and it was the same for the noble Baroness, Lady Neville-Rolfe. Look at the blasts that came from the noble Baroness, Lady Meacher, and the noble Lord, Lord Wilson. The Ministers are safe from that at the moment because those noble Lords are no longer in their places, but there are further days in Committee, and I am sure they will come back and that the same blasts will be sent again to our Ministers.

I am sorry for the Government because they have just made a very simple mistake. They have sought to deal with European law the wrong way round. The right way round, as will be advocated later by my noble friend Lord Whitty, is to retain it. This is what happened in the European Union (Withdrawal) Act: it retained all EU law so that, when provisions of certain EU laws need adjustment, then adjust them, change them, scrap them; do what you like with them. That is the right way round. I have already expressed my reasons for being sympathetic to the three Ministers who are sitting on the Government Front Bench.

The sensible thing, having produced a Bill that is simply the wrong way round, is for the Government to withdraw it in a dignified way. I am sure all your Lordships would welcome that and would not seek to affront the Government in their modesty when withdrawing the Bill. It has happened before in my experience. In 1995, the then Conservative Government produced an arbitration Bill, which happened to be in my area of expertise. It was shown to members of the arbitral community, who told the Government that they had got it all wrong and that it was an atrocious Bill. The Government politely withdrew it. Then, under the noble and learned Lord, Lord Saville, a new Bill was brought—not disposing of the Bill, just starting again. The noble and learned Lord produced a report and a draft Bill that was perfect, and the Arbitration Act 1996 has been in operation ever since, to the great benefit of the arbitral community, which is now a very big community.

That is the simple thing to do. If the Government simply and politely withdraw the Bill, we will politely applaud them.