Retained EU Law (Revocation and Reform) Bill

Debate between Earl of Lindsay and Lord Hacking

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I want to draw attention to two paragraphs in Clause 15 to which there has not been any reference in our Committee. Indeed, I do not think there has been any reference to them since Second Reading, but concern was certainly raised then about Clause 15(4)(c) and (d), and it is those that I now want to address.

We should remind ourselves that immense powers are vested in the Minister under Clause 15. Subsection (1) allows them to

“revoke any secondary retained EU law without replacing it”,

while subsection (2) allows them to

“revoke any secondary retained EU law and replace it with such provision as the relevant national authority”—

that is, the relevant Minister—

“considers to be appropriate and to achieve the same or similar objectives.”

That is a power, without reference to Parliament, resting entirely in the hands of the Minister.

I now turn, more precisely, to Clause 15(4)(c) and (d). I shall read those paragraphs out to your Lordships. When replacing revoked secondary EU law, the Minister has the power to

“create a criminal offence that corresponds or is similar to a criminal offence created by secondary retained EU law revoked by the regulations”,

and, in paragraph (d), to

“provide for the imposition of monetary penalties in cases that correspond or are similar to cases in which secondary retained EU law revoked by the regulations enables monetary penalties to be imposed”.

It has been a cardinal feature of our law that the creation of criminal offences and the penalties that arise from the breach of those offences rest entirely in primary legislation. If, hidden under some carpet, there have been EU regulations that create a criminal offence or monetary penalties, then I am ashamed and embarrassed. But for the Government now to seek powers to replace them—again, without putting that before Parliament—is another wrong. My simple contention to your Lordships is that two wrongs do not make a right.

[The Earl of Lindsay (Con)]

My Lords, I shall speak to Amendments 121 and 123 in my name and that of the noble Baroness, Lady Crawley. At Second Reading I welcomed the opportunity created by the Bill to review, improve and update a wide-ranging tranche of important legislation. However, I expressed some concerns about process, and one of those is the constraint that I believe Clause 15 imposes on improving and updating existing legislation. That constraint is also a concern to the Chartered Trading Standards Institute and Which?, among others. Here I should declare an interest as the president of the CTSI, my predecessor in that role being the noble Baroness, Lady Crawley.

The principal constraint I am referring to has been well articulated by the noble Baroness, Lady Chapman, the noble Lord, Lord Clement-Jones, and others: Clause 15(5) —namely, the proposed requirement that any changes to retained EU law should have an overall effect of not increasing the regulatory burden. I say immediately that I am a long-term advocate of better regulation. Over the years, I have served on the better regulation commission and various other bodies advising government on what better regulation looks like and the framework for its development and oversight. I fundamentally believe that regulation should be avoided wherever there is an effective alternative and that, when there is no alternative, it should be designed so that it achieves its desired effect with the least possible burden.