Retained EU Law (Revocation and Reform) Bill

Lord Beith Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Beith (LD)]

My Lords, I congratulate the noble Baroness, Lady O’Grady, on her maiden speech. Her experience and knowledge of the world of industrial relations will be of genuine and timely value to this House in current circumstances.

When we left the EU, it was pretty obvious what we should do about European law. We should take a snapshot of it, which we now call retained European law, and amend it, as need and as changing circumstances dictated, much as we would other forms of existing law. We should bear in mind that this law had not been handed down like tablets of stone; it had been the subject of extensive processes of amendment and examination in the European Parliament in which British MEPs played a significant part—including, I trust, the Minister when he was in that role. Instead, however, we have a triumph of dogma over common sense, in which all this European law is supposed to be junked by Christmas, except perhaps for those laws that will appear on a list, which either exists and is not disclosed by Ministers or is a blank sheet of paper—which, in a way, is a little more worrying. However, their unwillingness to tell us what will be on the 2026 list illustrates the contempt with which Parliament is viewed in this whole process. This is not taking back control but is a massive surrender of parliamentary sovereignty and is augmented by numerous other provisions in the Bill allowing for statutory instruments to change the content of retained EU law.

What are the processes by which Parliament will make changes to retained European law? It will be via negative instruments, which are not even guaranteed a debate in the Commons, and affirmative instruments, which are subject to a vote in both Houses but cannot be amended in any way. In this House, there are those of our own Members who question whether we should reject a clearly and plainly defective statutory instrument because of the primacy that is supposed to attach to the elected House. If we accept that view, the process is null and void. If there are no circumstances in which the instrument can be rejected for lack of appropriate amendment, the power is not a real one. EU law covers areas where detailed discussion and assessment will be required—environmental standards, consumer protection and water quality—and the only real negotiations may be between the Government and the very interests we are trying to regulate, some of which have close links to this Government anyway.

I have described the process as a triumph of dogma over common sense. That is also illustrated by the name change, “assimilated”—of course, we have to describe it as that because there are those who cannot bear to admit that these laws were made in Europe. They were—it is a fact; it is history; get over it and accept that they are currently part of our system. The other weakness of the Government’s position is that they have set themselves an examination that they are bound to fail. The department simply does not have the qualified personnel to rewrite between 3,000 and 4,000 pieces of legislation, primary and secondary—it is not there. Week by week in the Joint Committee on Statutory Instruments, I have observed what effort is required to make secondary legislation compliant with the parent legislation and to make it good law capable of being used by those among whom it will be enforced. We saw during the Covid period that if the time pressure becomes severe, serious mistakes are made. We saw serious mistakes being made, with people being arrested who should not have been. That kind of consequence will follow if we rush this process through.

It is difficult to find anything favourable to say about the abandonment of a fairly sensible process of gradual modification of law where required for one which junks laws and has no adequate process for replacing them. I am afraid that the Executive have put their tanks on Parliament’s lawn, and they should be taken away.

United Kingdom Internal Market Bill

Lord Beith Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 18th November 2020 Lords Chamber

There are excessive powers in parts of the Bill that are infuriating. The experience of the last nine months shows that we should be sceptical of granting the Government any made-affirmative powers. The Bill already tramples over everything in the name of a free market. The Government want even more power to be even more destructive. I strongly oppose these powers and the government amendments. I believe that the Minister’s amendments should be withdrawn.

[Lord Beith (LD) [V]]

My Lords, apart from the interesting diversion by the noble Baroness, Lady Jones, into wider issues affecting the House, there has been an air of unanimity in this debate. There has been unanimous support for the amendment moved by the noble Baroness, Lady Andrews, and appreciation of the clear way in which she expounded the need for it. Of course, she is referring to Amendment 7 rather than Amendment 2.

It is unusual for my name and for that of the noble Lord, Lord Callanan, to appear on the same amendment, although we have always had cordial relations. I welcome the Government’s acceptance of the case put to them—at least for this part of the Bill. On government Amendments 29 and 47, it would be churlish not to welcome the review of how delegated powers are used, but this does not answer the case against these powers being in the Bill at all. A number of speeches made that point very strongly.

Henry VIII powers—the Government’s ability to change statute law by means of secondary legislation—are repugnant in all but the narrowest of cases. They have become habitual—a “galloping tendency”, as the noble Lord, Lord Carlile described them. They present Parliament with law that cannot be amended in almost all instances. They are not subject to effective parliamentary scrutiny, partly because of the Government’s control of the Commons agenda and timetable. They can be applied to devolved areas without consent, as the noble Baroness, Lady Andrews, pointed out. From the Government’s point of view, and from the standpoint of legal certainty, it should be remembered that secondary legislation is open to legal challenge in a way that primary legislation is not.

What range of powers are we looking at in these amendments? Amendment 7 would remove a very wide power in Clause 6, allowing the Secretary of State by regulation to change the Act that this Bill will eventually become so as to vary, remove or add to parts of subsection (3). That subsection defines the statutory provisions relating to what is within the scope of the non-discrimination principle. It includes goods, transportation, display, certification and the conduct of businesses. That is where the Government’s offer of a review comes in, but I do not believe this meets the case for amending primary legislation by means of secondary legislation. It is wrong in principle and unnecessary in practice because primary legislation can be brought forward. Parliament can act quickly, and it is generally within the Government’s ability to ensure that it does so.

Secondary legislation is incapable of amendment by Parliament and not open to adequate scrutiny. That is why the Constitution Committee, of which I am a member, and the Delegated Powers Committee have so often argued against the excessive use of secondary legislation, particularly in its Henry VIII form, and I think the case is a very powerful one. It is like the sea trying to wash away a piece of particularly hard rock: we occasionally make some progress with it but before very long we find that we are unable to effectively resist the Government’s permanent tendency to create powers of this kind.

If the noble Baroness decides to test the opinion of the House on this matter, Liberal Democrats will support her amendment.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as I have said before, the women in the House always get a bit nervous when we talk about Henry VIII. We have only to go outside and see what happened to some of Henry VIII’s women to remind us that we are a bit uncomfortable with him.

The debate has made clear why the amendments in the name of my noble friend Lady Andrews and fellow members of our always brilliant Delegated Powers Committee should be heeded. Indeed, the unanswered question, posed by my noble friend, is why the Government have not removed the powers in Clause 6 in the way that they have now agreed to remove them in Clause 3. Why the inconsistency? What is the difference between them? Our Delegated Powers Committee certainly did not distinguish between the two pillars of the internal market—market access and non-discrimination— so we do not understand why the Government have taken such a different view on those. Without a stunning, innovative answer—the Minister looks as though he may have one, but there was none such in his letter of 12 November to the Delegated Powers Committee—when we come to Amendment 7 a little later, we will throw our weight behind it to remove the sections which, as the noble Lord, Lord Beith, has just set out, give overwhelming power to Ministers. Furthermore, as my noble friend Lady Andrews says, if these are meant to be just backstop powers to correct as yet-unknown deficiencies, then, given that Clause 13 affects all parts of the UK, it should be for Parliament, not Ministers in Westminster, to make any correction, with the full panoply of safeguards that come with primary legislation for input from the two Houses as well as from the devolved legislatures.

It is really not good enough—in a Bill which, after all, they must have known for four years they would need—for the Government at this stage still to be so unsure that they have thought of everything and drafted correctly that they need to accord to themselves these extraordinary powers to amend important parts of what will then be an Act of Parliament. That was never the purpose of secondary legislation. Indeed, as the Minister will know, we feel that it is likely that the proposed use of these ministerial powers is more the result of the Government’s tendency to rely on them rather on than proper primary legislation on a wide variety of measures. Indeed, as the noble Baroness, Lady Meacher, noted, so common has this become that my noble friend Lady Taylor of Bolton wrote on behalf of the Constitution Committee to Mr Rees-Mogg on 9 November suggesting how to diminish the practice, while the noble Lords, Lord Hodgson and Lord Blencathra, from the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee respectively, similarly wrote to Mr Rees-Mogg on 10 November, specifically with concerns about “skeleton bills and skeleton provision”, noting his acknowledgement that delegated powers

“should not be ‘a tool to cover imperfect policy development’”

and reiterating the need for the Government “at all times” to

“fully justify the appropriateness of delegated powers”.

I fail to hear such justification for these particular powers. Therefore, while welcoming the Government’s support for Amendment 2, we will support Amendments 7, 12 and the others in this group.

I am delighted that, because of the acceptance of Amendment 2, my Amendment 4 is pre-empted. For those who do not follow all this, Amendment 4 would have amended subsections (8) to (11), which was a regulation-making power. We were seeking to give the delegated legislatures a say over that. But clearly, as those powers have come out, my Amendment 4 luckily is pre-empted and not needed. However, we will return to similar amendments next week. For the moment, we welcome the moves of the Government on Amendment 2 and, in due course, unless the Minister comes up with a stunning answer in the next few minutes, we will support Amendment 7 in its place.

--- Later in debate ---

[Lord Naseby (Con)]

My Lords, given my five years in the Chair in the other place, noble Lords will not be surprised that I had a closer look at the super-affirmative procedure, where it has been used and where it should be used.

First, we all acknowledge that this is a very important Bill, which is why there is an affirmative resolution procedure in various clauses. We start with that. Secondly, as noble Lords have said, the super-affirmative procedure involves an additional stage of scrutiny where Parliament considers a proposal for a statutory instrument before it is formally presented—what we call laid. This procedure is used for statutory instruments that are considered to need a particularly high level of scrutiny. That is self-evident, I think.

I then checked where they had been used. The statutory instruments used so far usually amend or repeal Acts of Parliament. Examples would include legislative reform orders, localism orders, public bodies orders, regulatory reform orders and remedial orders. Although I have had only a short time to do it, I have not found it within primary legislation—I stand to be corrected, but I have not found it myself. Indeed, listening to my noble friend proposing that this procedure should be used, it seemed to me that it was a sort of grapeshot approach, scattered throughout the Bill, suggesting that all the bits in these amendments are absolutely vital and must be taken specially. I just do not think that stacks up.

Furthermore, because this Bill is important, and because we are dealing with devolved powers who will be consulted and worked with, it will just add further delay. That is not in the interests of Parliament, business, commerce, or the people of the United Kingdom. So quite frankly, I certainly will not be supporting this at all—I think it is almost out of order.

[Lord Beith (LD) [V]]

My Lords, in answer to the noble Lord, Lord Naseby, the fact that the super-affirmative powers have not been very widely used in the past is really no excuse for not using them where they are an appropriate way of dealing with important statutory instruments and providing a higher level of scrutiny. If the noble Baroness, Lady Neville-Rolfe, doubts the need for more use of the procedure, she should recall all those occasions when we have felt that a statutory instrument should be amended but have had no capacity to do so, and our dislike of a particular feature of it was not sufficient to justify blocking it or turning it down—something, of course, that this House very rarely does. It does address, although not by providing power of amendment, the lack of amendment power which is a characteristic of almost the whole of the statutory instrument system.

An alternative to heckling is the constructive tabling of an amendment, so we should welcome that, and I think that the noble Baroness, Lady McIntosh, and the noble Lord, Lord Foulkes—this new coalition, the Foulkes-McIntosh group—have done us a service in bringing this matter forward. If you worry, as I have done over many years, about the inadequacy of our procedures for dealing with statutory instruments, especially those which try to change primary legislation, super-affirmative procedure, as its name suggests, is better than ordinary affirmative procedure and better still than negative procedure, because it opens up fresh opportunities for how the matter can be dealt with. Because it takes more time, there should be some caution over which things we think it is right to use it for, but it could be much more usefully employed than it has been in recent years. Of course, it is not a single procedure; it is a category of procedure which is usually spelled out individually in the legislation which employs it, as in this case—and the noble Baroness, Lady McIntosh, has improved and added to the process in the version of it that is now before us.

The procedure allows for measured consideration. Sometimes measured consideration is impossible because of urgency, but things are not always as urgent as the Government say they are. Usually the urgency has arisen from the fact that the Government have taken too long dealing with it and have brought it to the House at a very late stage. Throughout the coronavirus epidemic we have had all these occasions when the House has suddenly been told that something is very urgent which the Government have been dealing with for weeks, and probably even announced many days previously, but are now giving the House minimum time to address. The Government cannot always claim that there is an inherent urgency in the situation; rather, they have created urgency by delay at their stages of the process.

Where measured consideration is appropriate, the super-affirmative procedures allow for it and allow the House to suggest amendments to a Bill, which the Government can then go back and consider. I think it has advantages and would have advantages for some of the processes in this Bill. So it is not the wild suggestion that the noble Lord, Lord Naseby, and the noble Baroness, Lady Neville-Rolfe, seem to think that it is. I think it has many advantages which ought to be deployed in circumstances such as this.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this debate raises an important and much wider issue about how statutory instruments are dealt with and how much consultation goes into them. When we discuss them in the Moses Room, the Minister often hears from all of us: “Who did you consult and can we hear the feedback?” There are some really important general lessons to take from that, because, as all of us who have dealt with statutory instruments will know, often someone gets in touch at the very last moment to say that a statutory instrument does not work for their industry or their sector. Usually it is an issue of practicality rather than the policy, but by then it is too late, which is immensely frustrating.

The problem with the Bill is that we should not have these powers when dealing with policy. It goes back to what I said in the earlier debate: statutory instruments were never meant to be about policy shifts, but about the practicalities or some adjustment. In a way these amendments, whether right or wrong, are wrongly focused. We should not be saying, “These things need lots of scrutiny because they are terribly important.” If they are terribly important they should not be using these powers.

It will not come as a surprise that I much prefer the amendments in my name that we will get to later, since Amendments 4 and 5 were pre-empted. They are also about the internal market. We are talking about regulations that affect the other parts of the United Kingdom, and very few, if any, would have no effect. Our other amendments propose that regulation-making will need the consent of the devolved Administrations unless that has not been possible within a month. In that case this Parliament will be able to put them through, but with a reason why it is doing so without the consent of the devolved Administrations. This is interesting, and in a way has a much shorter term than this amendment. It is more focused and specifically looks at this Bill, which is about producing regulations that affect the other four nations. I am sorry, but I prefer my amendments to these ones. The issue of scrutiny of statutory instruments is serious. Maybe we can get a better practice so that we do not end up with stuff that is not quite fit for purpose, and which it is then too late to do anything about.

Trade Bill

Lord Beith Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 1st October 2020 Grand Committee

[Lord Sheikh (Con) [V]]

My Lords, I will speak in support of Amendment 40. As we deepen and strengthen our global trading relations, we cannot ignore our environmental commitments. I support this amendment because it means that our environmental obligations, as outlined by international law, cannot be undermined by future trade deals.

This must be a green Brexit. The Government’s election manifesto stated that they will not compromise on our high environmental protections in any future trade deals. Without this amendment, these are promises without actions. The international agreements laid out in this amendment are about not just environmental protection but our health and well-being, and are for the benefit of generations to come.

In the interests of time, I will outline only three of these international agreements. First, the Convention on Long-Range Transboundary Air Pollution has helped reduce pollution levels across borders and improve human health. As we have seen during lockdowns, the rapid decline in air pollution has had a positive impact on the health and well-being of people and nature in the UK and internationally. By honouring our commitment to this convention in this amendment, we can continue to protect the health of people and ensure that we do not undermine the improvements made as we recover from the pandemic and restart the economy.

Secondly, the UN Convention on the Law of the Sea is included in this amendment. It is about not just maritime jurisdiction but managing resources in a sustainable manner. The issue of fish stocks in UK fishing waters has been a prominent debate in Brexit. By continuing our commitment to the UN Convention on the Law of the Sea, we can ensure that the quality and productiveness of our fish stocks are maintained. It is essential for both our biodiversity and the long-term livelihood of our fishermen.

Thirdly, the United Nations Framework Convention on Climate Change is a key mechanism for monitoring greenhouse gas contributions and plays an important role in reducing emissions in the fight against the climate crisis. Global trade has an environmental footprint. For instance, 30% of carbon dioxide emissions are from freight transport. As we develop trading relations, we must ensure that we stay on the path to net zero emissions by 2050. This amendment means that we will continue to protect the environment in a way that does not restrict trade. It is an opportunity to make trade more sustainable by supporting investment in greener sectors and turning away from polluting industries to reduce our greenhouse gas emissions.

This amendment would also ensure that, within 12 months of making regulations or ratifying a trade agreement, a report assessing the impact of regulations on our environmental obligations is presented to Parliament. This is key in ensuring that we are held accountable and have fully considered the implications of any deal. If the UK is to be a leader in sustainability, this amendment must be supported. Without it, we lack a meaningful commitment to tackling the climate crisis.

The Government assure us that they are putting green at the heart of the coronavirus recovery. The Prime Minister has said that he wants the UK to be seen as a leading example in enabling a global green industrial revolution. Supporting this amendment would enable us to be an effective environmental leader, especially as we prepare to host COP 26 next year.

[Lord Beith (LD) [V]]

My Lords, the noble Lord, Lord Lansley, has already referred to the Henry VIII powers and questioned why they are repeated in this Bill when, to a large extent, they are available in the withdrawal Act. Amendment 22, proposed by the noble Lord, Lord Stevenson, gives us an opportunity to look at one part of that. It would delete the Henry VIII power contained on page 2, in paragraph (a) in line 27. That is a power to modify

“retained direct principal EU legislation or primary legislation that is retained EU law”.

That sounds rather obscure, but it is an opportunity to change significant standards, using Henry VIII powers to modify substantive primary legislation by means of statutory instruments. We all know what problems these powers present, as they are very topical at the moment. The powers can be exercised by UK Ministers or by Ministers in devolved Administrations, described as “appropriate authorities” in the clause. They put Ministers in the position that they probably have to worry a little less about what Parliament will think or do about what they are negotiating.

The Explanatory Notes say that this provision

“does not allow for regulations to make or extend criminal offences, charge fees, amend primary legislation other than retained EU law, or create new public bodies.”

The Constitution Committee, of which I am a member, raised this issue in the context of the previous Trade Bill, and pointed out:

“We are not persuaded by the Government’s position that it is sufficient for the power in clause 2 to be constrained presumptively rather than explicitly. We recommend that the restrictions on the power be included in the text of the Bill.”


That is a perfectly reasonable request by the committee.

There is a context to it, or a context to our consideration of it. We have just been through a series of parliamentary rows and debates about the use of powers under the public health Act of 1984. I say the use—it was the fairly incompetent use of them, because every prosecution that relied on that legislation and orders made under it failed. Convictions were overturned because of confusion about the regulation-making power that the Act provided, and confusion about whether the individuals to which the provisions were applied could reasonably be expected to be infected or simply be put under these provisions for their own benefit, for which the legislation did not provide.

Continuity trade deals post Brexit are not the same as a pandemic, but they are surrounded by issues of urgency and claims of exceptional circumstances. It is in such contexts that powers of delegated legislation get abused or overused. When that happens, we ask why Parliament created such wide powers and why we allowed it in the first place. The answer usually is that it was by ignoring what the Delegated Powers Committee, the Statutory Instruments Committee or the Constitution Committee said at the time and relying on the fact that Governments will always do the right thing, won’t they? Well, Governments will not always do the right thing, sometimes for profoundly objectionable reasons and sometimes because they think that the need to get on with things overrides any of these considerations. There is a case for making the legislation clear on the limits on the use of power to repeal or modify existing primary legislation and that provision ought to be in the Bill. There is still time to put this right at Report.

[Lord Wigley (PC) [V]]

My Lords, I will not follow the noble Lord, Lord Beith, in the thrust of his comments, although I agree very much with them. The overuse of Henry VIII powers is certainly a matter that we need to give considerable attention to.

I apologise if the signal is breaking up. I have a download speed of 1.45 and an upload speed of 0.57, which makes the signal unstable. That is obviously a problem when working remotely, as I am doing.

I strongly support the thrust of Amendment 12 and all the rest of the group. There can be no doubt that the EU has rightly placed considerable emphasis on environmental and climate change matters. If—sadly, to my mind—we are moving away from having a significant proportion of our trade with the EU to a position whereby our trade is likely to be much more with third-world countries, valid concerns arise. That is not to say that changes in trade patterns are necessarily a retrograde move; they are not. Clearly, there are opportunities as well, provided that we are not trying to secure imported goods that are cheaper because they have been manufactured or extracted in a manner that ignores the need to safeguard our planet with regard to the impact of manufacturing on global warming or biodiversity.

It is not acceptable, in this day and age, for the UK to duck its international obligations in these matters to get cheap goods or, particularly, cheap raw materials. When one considers the way in which the environment is being despoiled in many countries, particularly in South America, we must flag up these concerns from day one of our new international trading era. We must establish a firm understanding that we shall not trade away our duties to the planet to make a quick buck.

How we in this Committee can flag up our firm commitments in these matters is to write such safeguards as provided by these amendments into the Bill. Indeed, I find it incomprehensible that Members in the other place should not have done that already. In the absence of political will in another place to make such obviously desirable and necessary steps, we, if not in this Committee then certainly at Report, should insist without hesitation that we have such provision in the Bill that we eventually return to another place.