Retained EU Law (Revocation and Reform) Bill

Debate between Baroness McIntosh of Pickering and Lord Lisvane

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to my Amendment 8. Before I do so, and in the interest of brevity, I entirely associate myself with the words of the noble and learned Lord, Lord Hope, because he encapsulated many of the ongoing concerns of the amendments in this group.

To a large extent Amendment 8 is redundant now that I support the amendments to delete Clause 2 that are consequential on the government amendments—I take the opportunity to congratulate my noble friend Lord Callanan and indeed the Secretary of State on having the good sense to table the amendments which the Government are moving in this group.

On government Amendment 1 and the others my noble friend referred to, can he say on what basis the secondary legislation and retained direct EU legislation contained in Schedule 1 have been chosen and what consultation the Government have undertaken to determine the contents of that list?

Briefly on my Amendment 8, I am grateful to the Law Society of Scotland for helping me draft the amendment and for the briefing I received from it in that regard. What the amendment has identified remains an issue with one category of legislation that is not covered by other amendments in the group. The purpose of Amendment 8 was to ensure that any retained EU law which is not identified as such until after the sunset date is excepted from the sunset provisions in Clause 1. The review of REUL was announced by my noble friend Lord Frost, looking at the UK Government retained EU law dashboard from Tableau Public, as referred to at paragraph 13 of the Explanatory Notes, which states that the Government are now

“in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens”.

I support entirely the opportunity given to us today to do that.

However, the Bill intends to go further to facilitate the review and provides that it should be carried out by the end of 2023. Given that we now know there are almost 5,000 pieces of retained EU law, as identified in the EU law dashboard, the Government must confirm whether the most recent Explanatory Note is correct or whether they expect the number to rise again.

I refer to the briefing I received from the FSA—the Food Standards Agency—which itemised in an extremely helpful tableau the reasons why it supports those pieces of legislation included in Schedule 1. However, the FSA says:

“We have had long-standing ambitions to reform the food and feed regulatory system and we welcome the opportunity to focus our attention on this. We recognise that meaningful reform must include consultation with the food industry, consumers and stakeholders, and I look forward to working with you”.


So the question I put to my noble friend is: have the Government allowed sufficient time to ensure that the consultation that the Food Standards Agency wishes to conduct will be permitted to take place by the time Royal Assent is achieved?

My final question to the Minister is: if such a category comes to light within the three categories that have been identified as forming the retained EU law that forms the subject of the Bill after the Bill leaves this place and obtains Royal Assent, what opportunities are there to revisit that to ensure that that category is included the sunset clause, or can we assume that it will continue in existence in its current form, as currently on the statute book?

[Lord Lisvane (CB)]

My Lords, I thank the noble and learned Lord, Lord Hope, for his kind reference to what I said in Committee and subsequently. In order to set the mind of the noble Viscount at rest, I suggest that the wording relating to the Joint Committee in Amendment 2 is entirely correct.

It is a very bad idea to try to regulate parliamentary proceedings by means of statute, and it very often ends in tears or worse. In this case, should Amendment 2 survive into the final version of the Bill presented for assent, it will be for the Houses to set up a Joint Committee. That Joint Committee, following the ancient practice that the interpretation of the orders of reference of the committee are a matter for that committee, will take a view on what constitutes “substantial”, so there will be a certain amount of flexibility available at that point. It will also not be justiciable, because the operation of Article 9 of the Bill of Rights would prevent a court second-guessing what the committee decided.

European Union (Notification of Withdrawal) Bill

Debate between Baroness McIntosh of Pickering and Lord Lisvane

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Lisvane]

My Lords, I am extremely grateful to my noble friend; no doubt she will have her opportunity in a moment. After more than four decades in which I sought to make the most modest of modest contributions to parliamentary effectiveness and reputation, I hope that my credentials as an advocate of parliamentary sovereignty will not be challenged. I am very grateful to my noble friend Lord Pannick not only for his kind words but also for his recasting of Amendment 3. I agree with him that, if this amendment were to be agreed, the means of approval would be in the hands of the Government. So I hope that he and noble Lords will forgive me if I repeat some of the issues that, in that case, the Government should have in mind.

So far, ministerial language has been in terms of “a vote” and “a Motion”. That rather suggests proceeding by resolution—and, if so, the concerns I expressed in Committee are unallayed. What happens if one House votes one way and the other House votes the other way? Does qualified approval, perhaps with a conditional rider, count as approval? Would it be acceptable in those circumstances to give this House an effective veto over the process?

If, on the other hand, primary legislation is contemplated, the issue of interpreting some sort of qualified approval, or the terms of approval, remains. Even in the unloved Fixed-term Parliaments Act, specific wording for a Motion of confidence or no confidence was inserted to avoid the possibility of recourse to the courts. In matters of the present gravity, recourse to the courts would be even more unwelcome. My father had a ghastly warning about the dangers of overspecification in legislation. He quoted what was alleged to have been a rule at Heidelberg University, which stated: “No one shall tie anything, whether a nightwatchman or not a nightwatchman, to anything, whether a lightning conductor or not a lightning conductor, at any time, whether or not during a thunderstorm”. I do not ask for that degree of specification—but, if primary legislation is contemplated, the terms of approval need to be considered very carefully indeed.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am genuinely torn on how to vote on this amendment and turn to my noble and very able friend the Minister to guide me in this respect. I listened very carefully to all the speakers this afternoon, particularly the noble Baroness, Lady Kennedy, who I think comes at this with the same approach that I do. These amendments seem based to me on a very simple proposition, which is that rights given to British subjects by statute can be removed only by statute.

Of the two alternatives available, particularly in Amendment 3, which I am tempted and minded to support—a resolution to be passed by both Houses or a Bill to be passed by both Houses—the amendment neatly leaves it to the Government to determine the means to choose. I would like to know—and I seek guidance from the Minister and very powerful arguments against—why it would not be appropriate to include the amendment here on the face of the Bill. I say this because this is the last procedural stage before we embark on the substance. We are told that there will not be just the great repeal Bill but a number of substantive primary pieces of legislation as well as, no doubt, multiple pieces of secondary legislation to repeal some of the acquis that we might wish no longer to apply.

Why is it important to write it on the face of the Bill? It is for so many reasons: times change; politics change and personalities change. We are being asked to take an awful lot on trust here, both in terms of a commitment from the Government and in terms of a commitment given on the Floor of the House of Commons that Parliament and the Government would hope to follow through. Surely it is only right and proper that it should be put on the face of the Bill.

I remind the House that we spent about two hours and 30 minutes talking about the rights of EU nationals going forward. If the referendum had been held on the same terms as the European Parliament elections, all the EU nationals living here for the required length of time would have been able to vote. As I understand it from memory, an amendment passed in this House deprived those 1 million EU nationals living in this country of the right to vote. In fact, that 1 million number could have changed the outcome of the referendum overnight.

I refer to the words of the noble and learned Lord, Lord Hope of Craighead, in summing up on Second Reading. He expressed to the Government, in a helpful way, that the Supreme Court’s decision in Miller went further than just this Bill before us today, which embarks on the negotiation procedure. A majority of the House would not wish to stand in the way of the triggering of the process. By the same token, the noble and learned Lord went on to say, in respect to not writing into the face of the Bill—I do not want to press him too hard, but I think that the noble and learned Lord was saying the same—that,

“obtaining approval by resolution in Parliament is not the same thing as being given statutory authority”.

That is why he cautioned the Government against thinking that this Bill before the House today,

“on its own will give them all the authority they need, or that obtaining approval for an agreement by resolution is the same thing as being given statutory authority to conclude that agreement”.—[Official Report, 20/2/17; col. 23.]

I will refer also to an article written by five eminent QCs, including three knights, who gave their opinion on the matter and stated:

“Meaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms. Equally, it cannot be achieved by a single ‘take it or leave it’ vote at the end of the process”.


The article argues very straightforwardly:

“The constitutional requirements for a decision by the United Kingdom to leave the European Union include the enactment of primary legislation consenting to give legal effect to the terms of a withdrawal agreement between the United Kingdom and the European Union”.


Therefore, rather than being a wrecking amendment, I see this amendment as being potentially helpful to the Government, responding to a situation that we found ourselves in, having now lost three to six months through a court case and then an appeal, by writing on to the face of the Bill that Parliament—these two Houses —will have the final say. It will be of the Government’s choosing what the mechanism will be—whether a resolution of both Houses or an Act of Parliament. Otherwise, there will be a complete lack of clarity over what remaining rights already extended to British subjects can continue to be relied on. I will go further and say that, when we come to the great repeal Bill, there will be a complete lack of clarity over the court on which we should rely to make sure that those outstanding rights can be enforced.