Retained EU Law (Revocation and Reform) Bill (Eighth sitting)

Debate between Brendan O'Hara and Justin Madders

Committee stage
Tuesday 29th November 2022 Public Bill Committees

[Justin Madders]

On a spurious point of order, Sir Gary—no point of order is ever spurious in this place. I would like to thank you and Sir George for chairing the Committee, and the Clerks for their hard work in making sure that everything we have done has been in order—even this point of order. I also thank all Members for participating. We have had some robust and healthy debates, and I look forward to taking them forward in the main Chamber.

[Brendan O’Hara]

Further to that point of order, Sir Gary. I associate myself with the comments made by the hon. Member for Ellesmere Port and Neston, and thank the Clerks and the Government’s civil servants for the hard work that they have done. I realise that it has been a bit of mauling from this side of the House, but it was never, ever intended to be personal; it is purely political.

I thank you, Sir Gary, and Sir George, who guided us through the first two days of our proceedings. I am delighted to thank colleagues on both sides of the Chamber for the usually constructive, respectful and informed discussions that we have had over the past few days. I put on the record my sincere thanks, and those of my hon. Friend the Member for Glenrothes, to Emilie-Louise Purdie, who did so much work behind the scenes so that my hon. Friend and I occasionally knew what we were talking about.

Retained EU Law (Revocation and Reform) Bill (Seventh sitting)

Debate between Brendan O'Hara and Justin Madders

Committee stage
Tuesday 29th November 2022 Public Bill Committees

[Brendan O’Hara]

It is a pleasure to see you in the Chair, Sir Gary, for our final day of scrutiny of the Bill. The amendment was tabled in my name and that of my hon. Friend the Member for Glenrothes. It will be a relief to the Committee that I will be as brief as I can, as I know we have an awful lot to get through.

Clause 16 allows a relevant national authority to make modifications to secondary legislation that it considers appropriate, taking into account

“changes in technology, or…scientific understanding.”

We do not disagree with that. Our amendment simply seeks to widen the scope of the clause by allowing relevant national authorities not just to consider changes in technology and developments in scientific understanding, but to take into account societal and economic changes that may be pertinent when making modifications to retained EU law.

It is the narrowness of the clause that concerns us the most. It has been highlighted as a potential problem by the Law Society of Scotland, which in its excellent briefing paper suggested widening the scope to reflect other factors and include economic or societal changes. It seems eminently sensible to include factors that go beyond science and technology. Whether we like it or not, things happen in society that we cannot reasonably predict. It would therefore be unwise for the legislation to be so completely straitjacketed that we could not react appropriately to unpredicted societal events.

Similarly, giving relevant national authorities the ability to pivot when changes to the economic circumstances dictate also seems logical. Imagine we had been examining the Bill before the summer, and I had tabled an amendment that would have allowed relevant national authorities the flexibility to consider changes in economic circumstances when considering retained EU law. Had I based my argument around a Conservative Prime Minister resigning and forcing a lengthy leadership election, and the arrival of a new Prime Minister who promptly tanked the economy and then resigned six weeks later, everyone on the Government Benches would have howled with derision, but that is precisely what happened.

As much as we like to think we know what is around the corner in terms of society and the economy, the truth is that we simply do not. That is why, again in the spirit of trying to be helpful and improve what is a thoroughly dreadful piece of legislation, I commend amendment 70 to the Government.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair, Sir Gary. I was sorry to read that you may not be seeking re-election. I know that social media is not always truthful on such things, but what I read appeared to be legitimate, and I will be sorry to see you go. I welcome the Minister in the Jack Grealish role, coming in late in the day to retrieve a seemingly lost position for the Government.

I understand that we are dealing with clause 16 stand part as well as amendment 70. I thank the hon. Member for Argyll and Bute for moving the amendment, which is very similar to some of ours. It will be no surprise that we are sympathetic to and supportive of it, but to avoid repeating what we have said previously I will try to keep my statements brief. Government Members will be tired of hearing this, but those who are tired of scrutiny are tired of democracy itself, so I will yet again refer to the lack of scrutiny and consultation that are the hallmarks of the Bill.

Amendment 70 offers a means to address that problem in the specific and possibly limited circumstances in which clause 16 will apply. We know how often the Government like to use the phrase “specific and limited circumstances”. The amendment contains the guiding principle of our new clause 9, which was previously debated: the Government and relevant national authorities need to address the impact of changes made by the use of the Bill’s powers. Having Ministers of the Crown produce written statements about intended modifications will ensure not only that the societal and economic impacts of changes are considered, but that they are justified, which, as we have discussed, ought to provide a greater level of accountability. Despite the fact that the amendment could benefit from extra conditions—for example, mandating a programme of consultation with relevant stakeholders—it serves the purpose of demanding greater scrutiny. Given that the Government rejected our new clause, which previously requested that, I suspect we will not find favour with this one.

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[Brendan O’Hara]

When England and Wales voted to leave the European Union, and took Scotland and Northern Ireland out of the EU along with them, the United Kingdom Government signed a withdrawal agreement with Brussels. In return for certain rights and privileges in terms of trade with the EU, the United Kingdom promised not to diverge from the agreed level playing field set out in the trade and co-operation agreement.

I and many others have serious concerns that, if the Bill passes into law as it stands, the United Kingdom is in grave danger of breaching the international agreement it signed—I presume in good faith. On the presumption that the trade and co-operation agreement was signed in good faith, and that the UK Government would not knowingly and deliberately break such an important international treaty, I strongly urge the Government accept amendment 61. It would oblige the Government to publish, within three months of the Bill becoming law, an impact assessment of how the revocation of retained EU law, particularly on workers’ rights and environmental protections, has affected the trade and co-operation agreement.

The Government cannot be deaf to people’s concerns about the Bill, or to the genuinely held fear that, if it is pushed through unamended, and is implemented in the way that the Government have suggested, it will have a detrimental impact on the level playing field agreement with the European Union. If that happens, and if we stumble, accidentally or otherwise, into a situation in which we have broken the level playing field agreement, I fear that the United Kingdom could expect economic sanctions to follow. The last thing that the economy needs right now is another completely avoidable self-inflicted knock.

I urge the Government to accept the amendment. It makes sense. It sends a signal to our friends in the European Union that the United Kingdom is not about to unilaterally diverge from or break its international agreements, that we respect the level playing field, and that we will stick to what we said.

[Justin Madders]

I will be brief. This is an issue about which we are also concerned. No one wants to enter into a trade war because a Minister makes a mistake, and amends or forgets to restore regulations. That is what the Bill risks. I remind the Committee what the hon. Member for Watford (Dean Russell) said on Second Reading:

“I am very happy to make a commitment today that the Government will, as a priority, take the necessary action to safeguard the substance of any retained EU law and legal effects required to operate international obligations within domestic law. We will set out where retained EU law is required to maintain international obligations through the dashboard”—[Official Report, 25 October 2022; Vol. 721, c. 189.]

We are back to the dashboard. That is not quite as good as having something in the Bill, which is what the amendment seeks. However, it prompts a question for the Minister: when can we expect the commitments regarding the lovely dashboard to be honoured? We are all regularly hitting “refresh” to see whether the dashboard will be updated with the additional 100-plus or 1,400-plus Bills that have been identified. It is important that our international obligations are maintained. If there is a way of ensuring that Parliament is content, we are happy to support the amendment.

[Graham Stuart]

I ask the Committee to reject the amendment. None the less, the Government agree about the importance of the UK continuing to meet the obligations set out in the UK-EU trade and co-operation agreement. As a sovereign nation, we have the right to regulate as we see fit and in the best interests of the UK. This right is preserved in the UK-EU trade and co-operation agreement, and the Bill is part of us exercising that right. The level playing field provisions commit the UK and EU not to weaken or reduce overall levels of protection on labour and social standards, climate and the environment in a manner affecting trade or investment between the parties.

The Government’s intention is to ensure the necessary legislation is in place to uphold the UK’s international obligations. That is why we pledged on Second Reading to safeguard in domestic law the substance and legal effect of any retained EU law necessary to meet those international obligations. We have an exciting opportunity to embark on ambitious regulatory reform and remove outdated legislation that does not suit the UK. We can build on the high standards we have committed to within the trade and co-operation agreement, and at the same time boost competitiveness and productivity—something I hope the whole Committee will support. I therefore urge the hon. Member for Argyll and Bute to withdraw the amendment.

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[Brendan O’Hara]

Having been mercifully brief previously, I may take slightly longer now, because I think these measures are fundamental to our concerns about the Bill. Amendment 65 and new clause 2 would ensure that UK Ministers could not use the United Kingdom Internal Market Act 2020 to undermine or deny Scottish Ministers protecting retained EU law. These measures go to the heart of the issue—working between the internal market Act and this Bill.

We have said throughout Committee that even if this were a standalone piece of legislation, it would be sufficiently bad for us to oppose it at every step of the way. But for Scotland—and, I suspect, other devolved Governments—we have taken it in conjunction with the internal market Act. Not only does it present an existential threat to Parliament and the devolution settlement; this Bill is a disaster for crucial parts of the Scottish economy. I do not think it was coincidental or accidental. This is part of a deliberate policy to undermine and weaken devolution and the devolved Parliaments. It is designed to force the constituent parts of the United Kingdom to align their policies with those of the UK Government and to do what this Government tell them to do. The United Kingdom Internal Market Act 2020 knowingly created confusion and deliberately blurred the hitherto clear lines of demarcation that existed.

The Bill, when in effect, will impose this place’s will on areas that have been wholly devolved since the Scottish Parliament was reconstituted more than two decades ago. In the areas of the environment, health, food standards and animal welfare, the democratically elected Scottish Parliament is the body that sets policy and direction. Since the internal market Act came into effect, we have seen significant encroachment by the UK Government into these wholly devolved areas. Amendment 65 and new clause 2 would ensure that if the Scottish Government and Scottish Parliament decided that they wished to remain aligned to EU law, they could do so without the imposition of the internal market Act forcing them to change their position.

The infringement into the powers of our Parliament has, I fear, become a full-scale attack, with blanket, UK-wide—from Truro to Thurso—policies being imposed in areas over which this Government have no legislative consent. It is a crusade to weaken food standards, animal welfare, product labelling, environmental health and so much else by a Government who have no mandate to operate in those fields in Scotland. As I said earlier, this is the starting pistol on the deregulatory race to the bottom. That is why the United Kingdom Internal Market Act and the Bill have been brought in in this way. It goes completely against the spirit of devolution and is in direct contravention of the Sewel convention.

Before Second Reading, I met with the regional board of the National Farmers Union of Scotland in Argyll and Bute on a farm near Oban. The message was stark: farmers feel forgotten and undervalued. They have been battered by Brexit and they now face this Bill, which, they have said, is a potential death sentence for the agriculture sector in Scotland, which requires subsidies to manage the land, keep the lights on in the hills, provide employment and stem rural depopulation, as well as producing high-quality, high-value beef, lamb and dairy.

We know that the Bill will allow the lowering of food standards. We know that it will allow the relaxation of rules around labelling and animal welfare. We know that it will allow mass importation of inferior-quality products. All that will be an unmitigated disaster for Scottish agriculture. Our farmers are also painfully aware that, as it stands, there is very little that their democratically elected Parliament can do about it.

Last Wednesday, between our sittings on Tuesday and Thursday, I met Martin Kennedy, president of the National Farmers Union of Scotland, and his officials. They repeated almost word for word what I was told by my Argyll and Bute farmers. Martin Kennedy’s message to the Committee and this Government is that he and his members have severe reservations and concerns about the potential impacts of this Bill. As we do, he and his farmers accept that the Bill cannot be taken in isolation, but has to be put alongside the United Kingdom Internal Market Act.

Scottish farmers are not best noted for their political radicalism—probably because they are so busy battling the elements day and night to produce some of our best dairy and meat products—but this Government should understand that the Scottish agriculture sector is up in arms, maybe as never before, about the Bill and the United Kingdom Internal Market Act, and their disastrous consequences. If the Government will not listen to us here today and choose to ignore the Scottish Government, I implore them: listen to Martin Kennedy and his members about what this Bill will do to them, and their businesses and livelihoods. They are the ones who will bear the brunt of being forced into a UK-wide, one-size-fits-all regulatory framework that forces us to diverge from EU regulations.

When supermarket shelves become full of cheap, inferior cuts of meat, when lorryloads of chlorine-washed chicken cross the border and saturate the market, when animal welfare is a thing of the past, and when labelling rules are so relaxed that consumers do not know what they are consuming, that is a death knell for Scottish agriculture. The people of Scotland should be in no doubt that this Bill, coupled with the United Kingdom Internal Market Act, means one thing and one thing only: this place is coming for our Parliament and our democracy.

[Justin Madders]

Unfortunately, the new clause appears to apply only to Ministers in Scotland, not in the other devolved nations, but it does raise some important issues. If we start from the proposition that it is right that in areas of devolved competence, the devolved Administrations should have the ability to re-regulate their own priorities, which, I think, is where the Bill takes us, it does not take much to see where that might cause some difficulties, particularly when the Bill creates no wider duty in relation to the operation of the market access principles underpinning the UK internal market. The Bill creates the risk of new barriers to trade in the UK internal market. I accept that there is a conundrum there.

We want to allow the devolved nations to develop policy as per their own competencies, but there is no process in the Bill for resolution of any regulatory differences between the UK and the devolved Governments and, critically, no process for businesses or consumers to be consulted on the potential for new barriers between England, Scotland and Wales for certain categories of good. We need to understand how the Government intend to address that. Are the processes in the UK Government and devolved Administrations common frameworks post Brexit intended to apply to the Bill? If so, it is not clear from the Bill. Perhaps the Minister can reassure us on that.

Retained EU Law (Revocation and Reform) Bill (Third sitting)

Debate between Brendan O'Hara and Justin Madders

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[Brendan O’Hara]

The right hon. Gentleman misses the point. It is about a much wider area: the principle of sunsetting by the end of next year. It is a legal minefield. If we are determined to travel through it, let nobody come back in a year’s time and say, “We didn’t know”, because it is perfectly obvious. The case has been made perfectly clear; sunsetting by December 2023 is well-nigh impossible and will lead to huge dangers. It is a disaster waiting to happen. Today the Government have the chance to finally accept that the price of appeasing their true believers is a price too high. I urge them to accept our amendment.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair, Sir George. I will start by echoing the comments of the SNP spokesperson, the hon. Member for Argyll and Bute. We do not think the Bill is fit for purpose. We will try to help the Government to improve the Bill with the amendments we will be moving, but fundamentally we think its approach is flawed, not least the subject of this amendment—the unnecessary and entirely artificial cliff edge, which is driven by political considerations, not practical ones.

I have yet to hear any justification for the deadline of 31 December 2023, other than the belief—seemingly rooted in fantasy—that unless we free ourselves of the shackles of these regulations by that date, we can never prosper as a country. That is a fantasy, because whenever a Department is asked to identify which regulations it no longer wants, all we hear is silence. We are told that we must hurry along and free ourselves of the 2,400 or 3,800 regulations—or however many they turn out to be—that are holding us back. The best I have heard any Government Minister say so far is something about vacuum cleaner power, but given the chaos of the past few months I am not sure anyone can seriously say that the reason for our current economic mess is that we do not have sufficient control over our hoovers.

I do understand the need to have a finite date. I understand the importance of having a target to work towards, but the date has been plucked out of thin air, seemingly at random, and we should not accept it unless a compelling and rational case is put forward. The Regulatory Policy Committee has said that setting a deadline is not enough, and that a stronger argument is needed for choosing that particular date, and I agree. The truth is that there is no better reason for that date having been chosen than the Prime Minister of the day, or the week, being able to say, “We will have put an end to all unnecessary EU burdens by the end of next year”—never mind that the Government cannot tell us what those burdens are, or why the end of 2023 is better than the end of 2024, 2025 or 2026. What we can say for certain, though, is that there will not be sufficient capacity in the civil service for a genuinely effective appraisal of the regulations that the Bill seeks to remove. The case for the cliff edge is incredibly weak; the arguments for removing it and putting the date back are much stronger.

Let us look at the numbers for a moment—although, of course, the numbers are something of a moveable feast. If we accept the newspaper reports that 3,800 statutory instruments will come within the ambit of the Bill, and presume—because we have not heard anything to the contrary—that the Government want to keep the majority of them, more statutory instruments would need something doing to them as a result of the Bill than were passed in the whole of last year. Of course, we had many extra regulations in that year due to covid, and plenty of people think the scrutiny of those particular instruments was not at the required level, so even under the most generous interpretation, we are looking at possibly doubling from last year the number of statutory instruments, if everything is to be passed before the end of next year.

It will be in half the time, as well. Let us assume for now that the Government press on with the Bill—although there is still some doubt about that, I believe—and it gets to the Lords early next year. There will probably be a bit of to and fro, given the significant constitutional elements this legislation contains, so it will not get Royal Assent until well into the spring. At best, that gives the Government six, seven or eight months to restate all the laws that will be covered by the Bill, so will the Minister tell us how many extra staff each Department has been assigned to deal with the additional workload? Have they been given any deadlines to work to? As we know, the Financial Times reported on 27 October that the Minister’s Department, with 300 pieces of EU law, would need an extra 400 staff to review the body of retained EU law. What does that mean if we extrapolate it across the whole of Government? How many extra staff will be needed overall in anticipation of the Bill?

The Financial Times also reported that “Whitehall insiders”—I never quite know who those people are, but they obviously have sufficient insight to talk to the press—are saying that

“reviewing the majority of retained EU law by 2023 would present a massive bureaucratic burden. One senior Whitehall official estimated that between 1,000 and 1,500 statutory instruments would be required in order to convert retained EU law that was deemed necessary on to the UK statute book.”

No wonder the impact assessments are silent on the issue of the sunset date. The Regulatory Policy Committee has made clear that it believes the analysis of that sunset date is inadequate. I refer to a newspaper report in the Financial Times, which said that Government officials are considering whether to press ahead with the 2023 sunset clause. I do not know if that is news to the Minister, but it is hot off the press. According to the article, Government officials have said that the Prime Minister and the Business Secretary have “yet to decide whether to stick to the 2023 deadline or push it back.”

No. 10 said,

“It’s too early to say.”

I am afraid it is not too early to say because we are debating it right now. If the Government have plans to push back the sunset, it will be useful to hear. If the Minister is able to comment on that report when she responds, I would be obliged.

I remind the Committee what Mark Fenhalls of the Bar Council said in the evidence session:

“I am no expert in how much civil service time exists, but I would be astonished if it were remotely possible to cover but a fraction of this. I do not know why it is set up as anything other than a political problem.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 28, Q56.]

That is the nub of the issue. This is a politically generated deadline that is going to cause problems, but if the Committee needs further persuasion, I also refer to the written evidence of the Bar Council, which raised the alarm when it said:

“The setting of an arbitrary, and in all the circumstances, impractical sunset date, with the consequent and entirely unnecessary risk of the disappearance of rules of critical importance to business, consumers, employees and the environment (some of which, due to their sheer numbers, may only be missed once lost) without adequate consideration or any consultation, and conferring an entirely unfettered and unscrutinised discretion to Ministers to disapply or delay the sunset provision or not; as well as the attendant risk of rushed replacement legislation”.

Eleonor Duhs also told us in the evidence session:

“In order to get the statute book ready for Brexit, which was in some ways a much more simple task than this, it took over two years and over 600 pieces of legislation. The reason I say it was a simpler task is that we were essentially making the statute book work without the co-operation framework of the EU. We were taking out references to the European Commission and replacing them with ‘Secretary of State’—that sort of thing. That was a much simpler task than what we have here, and that took over two and a half years.

A lot of areas also have several pieces of amending legislation… There may be huge policy changes under this legislation, and the end of 2023 is simply not a realistic timeframe for the process.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 29, Q56.]

There is plenty of evidence of concern out there, indicating that we should look again at the sunset. If Members are reassured that there is departmental and civil service capacity to handle all that in the time required, perhaps they should also consider the scrutiny aspects of the sunset, and whether Parliament will be able to fulfil its role properly in the time available. As George Peretz said in the evidence session:

“the sunset clause does interrelate with the question of Minister’s powers. One of the problems with the effectiveness of parliamentary scrutiny is that although one hears that Parliament has powers—in some cases via the negative or affirmative resolution procedures—the background against which it is being asked to approve legislation means that if it votes against that legislation, the sunset clause will apply and regulations disappear completely, rather weakening Parliament’s ability to do anything.

To take an example, if Ministers decided to keep the working time rules but rewrite them to make them less favourable to employees, and came up with the new regulations in November 2023, those rewritten regulations would probably be introduced under the affirmative procedure. However, when the House of Commons voted on them, Ministers would say, ‘You may not like these revised regulations very much, but if you do not vote for them, the alternative is that we will not have any regulations at all.’ That weakens Parliament’s ability to control the exercise of ministerial power.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 32, Q61.]

I do not want to be back here in a year’s time faced with a choice between accepting a reduction in the number of days of paid holiday that people are entitled to from, say, 28 to 10, and the alternative—people having no right to paid holiday at all—because we have been forced up to a precipice due to the timescale set out in the Bill. That is not Parliament taking back control.

I am not alone in my concerns. The Delegated Powers and Regulatory Reform Committee raised concerns about primary legislation and said that

“where little of the policy is included on the face of the bill”

but where Parliament is asked

“to pass primary legislation which is so insubstantial that it leaves the real operation of legislation to be decided by ministers”,

this reduces any parliamentary scrutiny to a bare minimum, and we are left only with

“delegated legislation which Parliament cannot amend but only accept or reject, with rejection being a rare occurrence and fraught with difficulty.”

That Committee further warned that

“the abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy”.

It is a shame that the former Secretary of State, the right hon. Member for North East Somerset (Mr Rees-Mogg), did not take his own advice on that issue before he drafted the Bill. When he was Leader of the House, in response to the Committee’s report into the frequent use of skeleton Bills during the period of the pandemic, he said that it did not

“necessarily provide a model example of how Parliament would like to see legislation brought forward”,

and that he would be

“encouraging them to minimise the use of delegated powers where possible”.

However, here we are today.

Finally, I will respond to the argument that there is already provision in the Bill to address the sunset. The problem is that that can apply to laws only if we know about them in the first place. There is also the prospect that we end up with a potpourri of sunset dates, because it could be any time between now and 2026. That just creates more uncertainty and confusion, and uncertainty for businesses that are trying to invest.

In conclusion, we support the amendments because 2023 is a deadline in search of a headline. It is not a serious proposition and it should be rejected. Parliament legislated, as we were preparing to leave the EU, to avoid a cliff edge. It seems illogical and reckless in the extreme to be now deliberately creating one when we are so close to the precipice.

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[Brendan O’Hara]

I rise to speak to the amendments tabled in my name and that of my hon. Friend the Member for Glenrothes, which would remove the sunsetting of EU legislation where it falls within the competence of the Scottish Parliament.

The amendments would mean that if, defying all logic, the Government are still determined to push ahead with the dangerous sunsetting of all EU legislation by 31 December next year, the Scottish Parliament could, in respect of areas that are wholly devolved, decide to keep relevant domestic legislation aligned to that of the European Union. That would mean that, in areas such as environmental health, food standards and animal welfare, the people of Scotland could continue to enjoy the high standards and protections that we have had as members of the European Union for almost five decades.

In his oral evidence to the Committee, Angus Robertson MSP suggested that it would be perfectly possible to draft the Bill

“in such a way that it did not apply to Scotland or Wales”

by limiting

“the scope of the Bill to non-devolved areas.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 80, Q136.]

Why should it not be drafted in such a way? Let us never lose sight of the fact that this is not our Brexit. This is something that is being done to us by a Government we did not elect pursuing the hardest form of a policy that we overwhelmingly rejected. In the circumstances, it is perfectly reasonable to suggest that legislation that is the preserve of the Scottish Parliament be excluded from this one-size-fits-all approach.

Angus Robertson also told the Committee that the UK Government were still, even at this late stage, unable to tell Scottish Government Ministers exactly which areas of competence they consider devolved and which they intend to view as being reserved to this place. In his evidence, Charles Whitmore from the school of law and politics at Cardiff University warned our Committee that the Bill could lead to

“legal uncertainty, and that is compounded at the devolved level because our capacity constraints are probably more acute, so the time sensitivity is even greater”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 85, Q141.]

As I said earlier, it might be the skewed priority of this Government to instruct Departments across Whitehall to prioritise this ill-conceived bonfire of retained EU law ahead of trying to mend the broken economy or lift people out of poverty, but that is certainly not the priority of the Scottish Government nor, I suspect, of the Welsh Government. Yet, as it stands, they will be forced to set aside valuable Government and parliamentary time to take part in this exercise, which will undermine the high standards and protections that people in Scotland have enjoyed and have quite rightly come to expect from European Union membership. Given that, I intend to press amendments 68 and 21 to a vote to ensure that the sunsetting of retained EU law does not apply in areas that are devolved.

[Justin Madders]

We have some sympathy with amendment 68. From what we can determine, it tries to equalise the approach to the current anomaly whereby under clause 1(2) the power to remove the sunset is granted both to Westminster and to devolved authorities, but the power to extend the sunset under clause 2(1) is just for Ministers in Westminster. I do not know the reasons for the difference in that approach.

I suggest that the evidence sessions did not reveal a particular state of readiness in the Scottish Parliament for the administrative burden that the Bill will leave it with. That is not, by the way, a criticism of the Scottish Parliament; it is a reflection of the timescales that we face. The current powers in the Bill leave the Scottish Parliament in a position in which it would have to remove the sunset entirely, whereas perhaps an option could be for it to extend the sunset for reasons of capacity. That would be a much more measured approach.

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[Brendan O'Hara]

I am not remotely surprised by the Minister’s reply, but I gently ask her: who knows better than the parliamentarians representing people across these islands in Edinburgh, Cardiff and Belfast about what is best for them and the people who elected them? They can also provide expertise on the damage that unintended consequences can cause. How often in this Parliament have we made the case that on occasion—or often—the views of other parts of the United Kingdom have been overlooked or ignored by the Government, and that Government officials have been unaware of them?

This is about democracy. This is about giving the other Parliaments the right to say, “No, this will not work, and these are the reasons why.” Very recent history tells us that had we adopted such an approach only six or seven years ago, we would not be in the mess we are in. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Justin Madders]

I beg to move amendment 73, in clause 1, page 1, line 9, at end insert—

“(2A) Subsection (1) does not apply to the following instruments—

(a) Management of Health and Safety at Work Regulations 1999,

(b) Children and Young Person Working Time Regulations 1933,

(c) Posted Workers (Enforcement of Employment Rights) Regulations 2020,

(d) Part Time Employees (Prevention of Less Favourable Treatment) Regulations 2000,

(e) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002,

(f) Transfer of Undertakings (Protection of Employment) Regulations 2006,

(g) Information and Consultation of Employees Regulations 2004,

(h) Road Transport (Working Time) Regulations 2005,

(i) Working Time Regulations 1998,

(j) Agency Workers Regulations 2010,

(k) Maternity and Parental Leave etc Regulations 1999,

(l) Trade Secrets (Enforcement etc) Regulations 2018,

(m) The Health and Safety (Consultation with Employees) Regulations 1996, and

(n) Information and Consultation of Employees Regulations 2004.”

This amendment would exclude certain regulations which provide for workers’ protections from the sunset in subsection (1).

Retained EU Law (Revocation and Reform) Bill (Fourth sitting)

Debate between Brendan O'Hara and Justin Madders

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[Justin Madders]

I thank my hon. Friend for her intervention. I think there was a question in there somewhere. I agree with the general point that the fight for equality does not stop. It is always ongoing, and we have to look forward and ask ourselves what kind of country we want to be now that we have left the European Union. Do we want stronger workplace rights? Do we want equality in the workplace? Do we want to end discrimination? If we agree with those things, and certainly the Opposition do, the way to guarantee that we at least maintain the status quo is to vote for the amendment. My constituents will be considerably poorer over the next few years as a result of the economic decisions made by the Government. I do not want them to be poorer in rights as well, and that is why I will press the amendment to a vote.

[Brendan O’Hara]

Very briefly on new clause 4, it is extremely disappointing that the Government have dismissed what I believe was an easy opportunity to show that they were listening to genuine concerns that have been brought before the Committee. The information may be out there, but the fact that it is so difficult to find and has been described as incomprehensible by a qualified solicitor acting on behalf of trade unions should raise some concerns within Government. It really is not good enough to say, “It’s there. You just have to find it.”

All Governments have a duty to make things as transparent as possible. Now that the Government have been alerted to the fact that the information is incomprehensible, their casual dismissal of such fears as ridiculous does not bode well for those in the Opposition and outside the Committee who think we are on a one-way track to deregulation and the diminution of workers’ rights.

Question put, That the amendment be made.

--- Later in debate ---

[Justin Madders]

I will not detain the Committee long. We have ventilated a lot of the arguments about amendment 72 already in relation to why the 2023 deadline —or cliff edge—is unacceptable. The amendment would give the power that UK Government Ministers feel able to retain for themselves to extend the cliff edge to 2026 to the devolved authorities. There is no reason why we should have a different approach in the devolved authorities from that of the UK Government. Again, when we get into questions of devolved competency, it is clearly appropriate that those provisions should apply to devolved nations as well. We have already discussed these issues at length so I will not detain the Committee any longer.

[Brendan O’Hara]

I shall speak to amendment 31, tabled in my name and that of my hon. Friend the Member for Glenrothes. The amendment is crucial and goes to the heart of the whole debate. It seeks to clarify exactly which provisions the UK Government consider devolved and would therefore fall under the competence of Scottish Ministers, and which provisions would be reserved to the UK Secretary of State.

When this place passed the Scotland Act 1998, it listed areas of competence that were reserved. Everything that was not on that list was considered to be devolved. Yet in terms of the Bill, and with particular reference to the Government’s published dashboard, remarkably we still do not know exactly which areas the UK Government regard as reserved and which they consider to be wholly devolved.

Of course, it could be argued with some justification that the United Kingdom Internal Market Act 2020 knowingly created that confusion, and deliberately blurred the hitherto clear lines of demarcation between powers that had been devolved and powers that were reserved. Prior to the passing of the 2020 Act, it had long been accepted that environmental health, food standards and animal welfare were wholly devolved to the Scottish Parliament, but since its passing we have seen a significant encroachment by the UK Government and Ministers into policy areas that hitherto have been wholly devolved. That not only goes completely against the spirit of devolution, but directly contravenes the Sewel convention, which in 2016 was given statutory footing in the 1998 Act.

As a result, the Bill, in tandem with the 2020 Act, threatens to further undermine the devolution settlement by giving primacy to UK law in areas that have been wholly devolved, meaning that legislation passed in the Scottish Parliament to keep us in lockstep with European Union regulations could be overruled by the Government in Westminster, so I have a number of questions for the Minister. If the Scottish Parliament decides that we will remain aligned to the European Union and re-ban the sale of chlorinated chicken, but this place decides that cheap imported chlorine-washed chicken is acceptable, will the Scottish Parliament have the power to stop lorryloads of chlorinated chicken crossing the border and appearing on our supermarket shelves—yes or no?

Similarly, should the UK agree a trade deal that allows the importation of hormone-injected meat, but the Scottish Parliament decides to protect Scottish consumers and farmers by adhering to the standards and protections that we have now, can the Minister guarantee that under the provisions of the Bill the Scottish Government will be able to prevent hormone-injected meat from reaching Scotland’s supermarkets—again, yes or no? If we decide to retain long-established best practice in the welfare and treatment of animals entering the food chain but Westminster chooses to deregulate, will she give a cast-iron guarantee that the Scottish Parliament will be able to stop animals whose provenance is unknown and whose welfare history is unaccounted for from entering the food chain—again, yes or no?

Under the terms of the devolution settlement, the answer to all those questions should be an unequivocal yes, but despite us and the Scottish Government asking several times, we have been unable to get those guarantees. That is why amendment 31 is vital. I would be enormously grateful if the Minister could give clear, precise and unambiguous answers to my questions.

--- Later in debate ---

[Justin Madders]

To follow on from what the hon. Member for Glenrothes has said, I think the Minister misunderstands the point of devolution if her main argument against these amendments is that we cannot have different deadlines and laws in different jurisdictions. The whole point of devolution is that each devolved nation is able to decide the laws that sit within its devolved competence. I will not push our amendment to a vote, but the answers we have received this evening are pretty inadequate.

[Brendan O’Hara]

We will press amendment 31 to a vote. I am far from satisfied with the answer that the Minister provided. We recognise that there is a power grab taking place and this Government are coming for the powers of our Parliament.

Shortly before Second Reading, I met the National Farmers Union Scotland in my constituency of Argyll and Bute. It recognises that this legislation is a potential death sentence for the Scottish agricultural sector. In rural areas, such as my constituency, the farmers require a hefty subsidy to manage the land, keep their lights on, provide employment and stem rural depopulation, while producing high-quality, high-value beef, lamb and dairy products. This legislation is a death sentence for Scottish agriculture.

Tomorrow morning I will again meet a delegation from the National Farmers Union Scotland here in Westminster, and I will be sorry to have to report to them that we have received no assurances whatsoever about the protections that this vital industry needs. That is why it is essential that we push amendment 31 to a vote.

[Justin Madders]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 31, in clause 2, page 2, line 8, at end insert—

“(1A) Subsection (1) has effect in relation to provision which is within the competence of the Scottish Ministers as if, after “A Minister of the Crown”, there were inserted “or the Scottish Ministers”.

(1B) A provision is within the devolved competence of the Scottish Ministers for the purposes of this section if—

(a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament, or

(b) it is provision which could be made in other subordinate legislation by the Scottish Ministers, the First Minister or the Lord Advocate acting alone.”—(Brendan O’Hara.)

Question put, That the amendment be made.