Retained EU Law (Revocation and Reform) Bill

Debate between Baroness O'Grady of Upper Holloway and Baroness Crawley

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.