Retained EU Law (Revocation and Reform) Bill

Debate between Lord Bruce of Bennachie and Baroness Bloomfield of Hinton Waldrist

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Baroness Bloomfield of Hinton Waldrist (Con)]

Certainly, more relevant Ministers will be meeting all the time, as well as officials, to discuss these issues, and they are probably the best and most appropriate channels of communication.

[Lord Bruce of Bennachie (LD)]

My Lords, this has been an interesting debate covering a number of topics. I welcome the Minister’s assurances, which I accept in good faith, about wanting to work constructively with the devolved Administrations. However, I am sure she will recognise that there are still a lot of questions hanging in the air.

To take the point made by the noble Lord, Lord Dodds, if the Government know that there are 3,700 pieces of legislation then they ought to be able to tell us what they are. The impression one gets is that the Government claim they know exactly what they are doing but are not prepared to tell anyone else what it is. We need to get a little further down the road on that.

The Minister said that some of the laws were no longer fit for purpose, and we need to know which those are; others need to be updated, and we need to know which those are; and others are UK-wide. Well, the devolved Administrations still need to know which they are, because, clearly, they have an impact throughout the United Kingdom.

This debate has been useful, but there are still issues that we need to press the Government on. In the meantime, I beg leave to withdraw the amendment.

Common Frameworks (Common Frameworks Scrutiny Committee Report)

Debate between Lord Bruce of Bennachie and Baroness Bloomfield of Hinton Waldrist

Thursday 2nd February 2023 Lords Chamber

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I know that we often start by saying that this has been a very interesting debate—and, of course, this time it has been—but it has also been a very important one, and a meaty one at that. I am just sorry that we were given the almost-graveyard shift, the day before a train strike, to address a number of issues. I do not want to short-change noble Lords, so I shall go on, but if they need to leave for a train, I shall not notice.

I begin by thanking the noble Baroness, Lady Andrews, for securing this debate on the committee’s report, as well as for some of her more optimistic and generous comments, as well of course as for her honesty. I also thank all the members of the Common Frameworks Scrutiny Committee, past and present—and, indeed, their officials—for their detailed and diligent work on the operation of the common frameworks. I, for one, am very relieved that they were extended three times; maybe a fourth time might be appropriate.

The committee’s scrutiny of individual frameworks without hesitation makes them stronger and more accessible. The Government place a premium on the work of this committee. Thanks to its recent report, the Government are taking forward 13 of the 22 recommendations of the committee and have partially accepted a further five recommendations. I thank all noble Lords, regardless of whether or not they are currently on the committee, for their contributions today.

As noble Lords will no doubt be aware, since 2017 the UK Government and devolved Governments have worked together to develop the common frameworks programme, and have done so collaboratively and pragmatically to ensure progress, despite a number of external factors that could have thwarted efforts. In October 2021, my noble friend Lord Greenhalgh appeared in the debate for the committee’s first report; the tone of that debate was very much about the frameworks as potential waiting to be capitalised on. A year and a half later, I am pleased to say that some of the potential is beginning to be realised.

Common frameworks establish a four-nation common approach to exercising powers that have returned from the European Union and fall within areas of devolved competence. Thirty out of 32 frameworks have been provisionally cleared and are therefore operational. Almost all these have been published; two remain at an earlier stage of development. This means that these important tools for managing intra-UK policy-making and ensuring regulatory coherence in the long term can be properly used. This is especially important as the Government look ahead to progress our post-EU exit reforms through the retained EU law Bill.

In response to the noble Lords, Lord Foulkes and Lord Bruce of Bennachie, I strongly believe that frameworks facilitate joint policy working and are by their nature decentralised, as ownership is shared between the four Governments. Used properly, they should help to facilitate joint and consensual decisions. If it is of any comfort to the noble Lord, Lord McInnes, I am the whip in both the Cabinet Office and DLUHC, as well as being the spokesperson for Wales. I am variously called “that squeaky wheel”, “the grit in the ointment”, and other less charitable comments.

It is now over two years since the end of the transition period and regulatory divergence is very much a reality. In many cases, this is a result of incremental and cumulative divergence, leading to gradual differences in approach between England, Scotland, Wales and Northern Ireland. In this landscape, frameworks ways of working have begun to become embedded and make themselves felt, including in discussions with the devolved Governments about the approach to the reform of individual retained EU laws.

A number of noble Lords expressed concern about transparency, including the noble Baroness, Lady Andrews, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Foulkes of Cumnock, but I think we have made some strides. Transparency is at the heart of the common frameworks programme, with transparent interaction between the UK and devolved Governments being a cornerstone of its success. I agree that this should extend to the vigilance of our legislatures. I am pleased to say that progress has been made on the approach to reporting to legislatures, and I hope that this is of some reassurance.

The interministerial standing committee, which met yesterday, agreed to report to legislatures. The approach officials have been working on will be useful for legislature scrutiny, supporting the exchange of information that routinely takes place between departments and their corresponding Select Committees. I am also pleased to confirm that the annual report on the hazardous substances planning common framework was shared with the committee on Tuesday of this week. The report, produced jointly and collaboratively with devolved government policy teams, reports on how the framework operated within its first year of operation.

Almost universally, everybody has commented on the perceived lack of central co-ordination, overly complex structures and lack of attention to detail, with common frameworks being split across two departments. The noble and learned Lord, Lord Garnier, in particular drew attention to a perceived lack of ministerial focus, and I acknowledge that the game of ministerial musical chairs has probably not helped in this process. So, while I understand the noble Baroness’s concern, in practice the Cabinet Office frameworks team works seamlessly with Minister Buchan, who is now responsible for frameworks in DLUHC, and has done so for the last 15 months. This structure is not uncommon—there is also the Government Equalities Office, for example—but the Government have accepted the recommendation around the Cabinet Office having oversight of the frameworks programme as the settled status for this work. Officials principally working centrally on the programme are based in the Cabinet Office, while relevant Ministers are located in DLUHC. This is because the union and devolution directorate is split between these two departments and teams, with a more explicit governance function remaining in the Cabinet Office.

Teams benefit from the convening power of the Cabinet Office to drive the union and devolution agenda across government, while also being able to work to deliver tangible improvements for people across the UK through policies led by DLUHC, including through levelling up. Having Sue Gray as Second Permanent Secretary for the union and constitution, with responsibilities across both DLUHC and the Cabinet Office, ensures continuity and consistency. I understand that this approach has been noted—I think by the clerks—as already showing an improvement in drafting quality and clarity in the most recently published resources and waste framework.

The noble Baroness, Lady Andrews, asked about the timetable for publication of the outstanding frameworks. We have made significant progress with those frameworks, which still need to be published for scrutiny purposes, including the emissions trading scheme framework, which will be published on or around 28 February. The specified quantities and zootechnics frameworks are ready to be published, subject to Northern Ireland portfolio ministerial sign-off. The provision of services and mutual recognition of professional qualifications frameworks remain in the early stages of development, pending agreement on their scope. With regard to the final publication of the common frameworks, all four Governments will require portfolio ministerial clearance, and, in addition to this, the Northern Ireland First Minister and Deputy First Minister will need to provide final clearance on behalf of the Northern Ireland Executive.

There are nine common frameworks that have completed scrutiny across all four legislatures. These can be published upon final ministerial clearance once the Northern Ireland Executive are reformed. A further eight common frameworks have been scrutinised by the Northern Ireland Assembly as well as this committee and are now awaiting scrutiny from the Senedd, the Scottish Parliament or both. We expect these to join the nine already completed soon, providing these legislatures make progress as soon as possible. There are a further nine common frameworks which are currently undergoing scrutiny and require scrutiny from the Northern Ireland Executive, which will therefore be unable to progress until the restoration of the Assembly.

As our progress on the resources and waste and emissions trading scheme frameworks shows, we are working hard with the devolved Governments to progress frameworks as far as possible, in preparation for the return of the Northern Ireland Assembly and Executive. We will, of course, update the committee with any further progress in this regard.

I know that the noble Baroness, Lady Andrews, was also concerned about resources and oversight being granted to the teams. I refer to the comment I made earlier: the central team in the Cabinet Office is devoting more time and resource to quality control since the recommendation was accepted, and I hope that the committee will see the results of its labours.

On stakeholder engagement and transparency, which I know was a concern of the noble and learned Lord, Lord Thomas of Cwmgiedd, transparency across the common frameworks programme is a priority. It is for this reason that each framework undergoes industry-specific stakeholder engagement throughout its development. The Government are keen to keep stakeholders involved in the programme and have been discussing with framework-owning departments how best to obtain further stakeholder views upon final publication. Departments are being encouraged to alert stakeholders to forthcoming frameworks reviews on GOV.UK in sufficient time to enable their views to be fed into the review.

There were a number of issues concerning the UKIM exclusions process references in the frameworks. The Government recognise that we have not reached a consensus with the devolved Governments on the UKIM Act. I believe that the exclusions regime has gone some way to addressing this, and the agreement to an exclusion for certain single-use plastics demonstrates the UK’s pragmatism.

The question has been asked why the exclusions process is not enshrined in the frameworks themselves. At this stage, we do not have agreement to do so with all the devolved Governments. As the Welsh Minister Mick Antoniw said in his evidence to the committee last March, it is not

“appropriate to include references to the exclusion process”

in common frameworks due to the continued “contested nature” of the UKIM Act formulation. Scottish Ministers hold similar views, and changing the frameworks’ text to include such a reference would also require the agreement of the Northern Ireland Executive. That certainly is work in progress.

A number of noble Lords, including the noble Baroness, Lady Andrews, asked what lessons we have learned from the UKIM exclusions for single-use plastic. The exclusion for single-use items was the first change to the list of UKIMA exclusions detailed in Schedules 1 and 2. I believe we have learned some lessons from this process. Discussions on this exclusion began before the four Governments had agreed the process for considering potential exclusions. As with any other process, using it for the first time has provided us with a better understanding of how it operates and possible ways to make it run more smoothly in future.

We have learned that any party considering a potential exclusion should notify other parties at the earliest possible opportunity at official level and commence internal processes as soon as notification of an exclusion request is received at official level. The exclusion-seeking party should set out the scope and rationale for the proposed exclusions, in line with the established processes as set out in the relevant common framework. Officials’ knowledge of the UKIM Act process should be upskilled to support progressing discussions through the common frameworks fora. Any further consideration of exclusions will have the benefit of an agreed process being in place this time before any discussions begin.

On the publication of the reporting proposal, work with the devolved Governments is still under way to agree the process for the monitoring and governance of common frameworks following their finalisation. This includes development of a standard template for reporting to be used across all frameworks, enabling a jointly agreed overview of framework operation. The template was shared and discussed at the Interministerial Standing Committee yesterday. All four Governments agreed to report to the IMSC and legislatures on the operation of common frameworks once they are fully implemented. It was also agreed that officials should carry out an assessment of the impact of emerging issues on the programme, and how it can be most rapidly implemented.

The first report using the template would in most cases be due following the anniversary of the finalisation of the common framework. I am pleased to confirm that an annual report on the Hazardous Substances (Planning) Common Framework was shared with the committee on Tuesday. The report, produced jointly and collaboratively with devolved government policy teams, reports on how the framework operated within its first year of operation.

The noble Baroness, Lady Andrews, asked me to comment on engagement with the Irish Government on common frameworks. She is right that it is difficult to go into specific detail about this, particularly in respect of the Northern Ireland Protocol Bill. The Government have noted before that it is within the gift of parties to common frameworks to engage more broadly with the Irish Government on the programme themselves, where appropriate. However, this would happen within individual frameworks and is not something the central team in the Cabinet Office or the relevant Ministers in DLUHC would be involved in. The Government agreed that this engagement, where it takes place, should be reflected in reporting to legislatures, hence why the Government accepted the second part of the recommendation.

I can confirm that the Northern Ireland Protocol Bill has been discussed informally with the Irish Government on a number of occasions. The Government have always stressed their preference for a negotiated settlement to the issues being caused by the protocol, and I note that the Bill has not been tabled.

Inevitably, there was a huge amount of discussion about the existential threat of the REUL Bill. The majority of the powers in the Bill are conferred concurrently on the devolved Governments. Accordingly, the devolved Governments will be able to decide which retained EU law to preserve and assimilate, and which to let sunset, within their devolved competence. I know that sounds terribly simple, but I do acknowledge that this is a Herculean task for many of them to take on. The devolved Governments will also be able to use the powers in the Bill to amend, revoke and replace retained EU law, and to consolidate and restate any secondary retained EU law, or secondary assimilated law, where desired to maintain the policy effect within their areas of competence.

On the genesis of the Bill, I take gentle issue with the noble Lord, Lord Bruce of Bennachie, regarding engagement activity. There has been active engagement at official level since March 2022. The devolved Governments and the UK Governments had fortnightly meetings when the Bill was in its early stages, and there is now a new working group named “Brexit opportunities”, which includes the devolved Administrations.

[Lord Bruce of Bennachie (LD)]

I did agree that the officials have co-operated from the outset. However, I welcome what the Minister says about the current engagement of Ministers, because it really is needed.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I was going to come on to say there was an early meeting on the Bill with Ministers, and my noble friend Lord Callanan met the devolved Governments in January when the Bill was introduced. I acknowledge that the REUL Bill is a contentious issue, and I am sure we will debate that at some length during its Second Reading on Monday.

I reassure the noble and learned Lord, Lord Hope, that, in addition to conversations within frameworks, the Government have established regular intergovernmental meetings intended to support devolved counterparts with the identification of which EU law is devolved or reserved, and the use of the powers in the Bill, as part of the retained EU law reform programme and wider Whitehall departmental engagement. I recognise it is a challenge, but I would also like to place on record the Government’s continuing commitment to devolution and to the Sewel convention.

In answer to the noble Baroness, Lady Taylor of Stevenage, we see the recommendations in the previous report as very important. I agree that it is worth while looking at these previously accepted recommendations to see what more needs to be done to implement them. Officials will take that forward as part of the work they have been tasked with doing by the IMSC, and will look at how best to implement that programme.

I was slightly surprised that the noble and learned Lord, Lord Hope, said we had not defined common frameworks. In fact, I thought the JMC principles of October 2017 gave rather a good definition of common frameworks:

“the devolved administrations agree to work together to establish common approaches in some areas that are currently governed by EU law, but that are otherwise within areas of competence of the devolved administrations or legislatures.”

Maybe they should have been a little more specific.

I thank all noble Lords again for their contributions today; in particular, I thank the noble Baroness, Lady Andrews, not only for initiating this debate but for sharing with me, in her typical spirit of generosity and collaboration, some of her concerns in advance so that I could answer in full. I look forward to the remaining scrutiny of the committee as further frameworks are published this year, and to working collaboratively on the issues raised with noble Lords. If there are any questions that I have been unable to answer, I will go through Hansard and write in response.

Subsidy Control Bill

Debate between Lord Bruce of Bennachie and Baroness Bloomfield of Hinton Waldrist

Lords Hansard - Part 1 & Report stage
Tuesday 22nd March 2022 Lords Chamber

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, before I turn to this amendment, I want to take this opportunity to correct the record. During the fourth Committee session of the Subsidy Control Bill on 9 February, I stated that data for England from the Rural Payments Agency showed

“that 99.5% of subsidies given to the agriculture industry in the UK would not fall within the remit of the subsidy”.—[Official Report, 9/2/22; col. GC 428.]

This figure was also provided in a letter dated 8 February responding to the points raised by several noble Lords during the third Committee session on 7 February. Late last week, the data was reviewed, uncovering a calculation error. In reality, Rural Payments Agency data for England shows 96.4% and not 99.5% of farm payment recipients are paid below the level of the minimal financial assistance threshold. I wish to clearly correct that for the record today.

But my conclusion still stands. The vast majority of agricultural subsidies will indeed fall below the MFA threshold and will not be subject to the substantive subsidy control rules, including the principles. It is only the largest subsidies, many of which will be to relatively large and well-off landowners, that will need to be assessed to ensure they comply with the common sense principles in this regime.

I turn to Amendment 4, tabled by the noble Baroness, Baroness Randerson—I wish her a speedy recovery—which was so ably introduced by the noble Lord, Lord Bruce of Bennachie. It seeks to add an additional principle to Schedule 1 that would require agricultural subsidies to be connected to the purposes listed under Section 1 of the Agriculture Act 2020. It would also require subsidies for agriculture to take particular account of areas of agricultural disadvantage and levels of marginality of land.

The subsidy control principles set out in Schedule 1 to the Bill are designed to apply equally to all strands of the UK economy. Their central purpose is to help protect domestic competition and investment, as well as trade and investment between the UK and other countries, from undue distortion which can arise from the giving of subsidies. This amendment, however, would radically depart from this. It would create a new principle which is not aimed at reducing distortion to competition, investment, or trade and is of no relevance to most types of subsidies.

The noble Lord, Lord Wigley, is quite correct: I am fully aware of the concerns of the farmers’ unions—particularly those in Wales, whose representatives I have met—and indeed those of the noble Lord, Lord Whitty. I reassure both noble Lords, however, that nothing in the new system will work against the granting of subsidies because, building on what the noble Lord, Lord Wigley, said, both agricultural and non-agricultural subsidies have much in common and need to work together to support rural economies.

The Bill establishes a clear, flexible framework for granting subsidies and will not inhibit public authorities from taking into account areas of agricultural disadvantage if they wish to do so. Agriculture is of course an area of devolved policy under the devolution settlements of Scotland, Wales and Northern Ireland. Spending decisions on agriculture are for the UK Government on behalf of England, and the three devolved Administrations in the areas in which they exercise their responsibilities. It is for them alone to take these spending decisions, so long as they are compliant with their domestic and international obligations, including the subsidy control regime. I cannot accept an amendment that would have the effect of putting further constraints on how devolved authorities exercise their powers.

My noble friend the Duke of Montrose rightly mentioned that the existing agricultural schemes and subsidies will be able to continue. The Bill provides broad and flexible grandfathering provisions for legacy schemes. Subsidies and schemes in existence prior to the Subsidy Control Bill coming into force may continue indefinitely if provided for under the original terms of the scheme. The Bill does not require subsidies made under legacy schemes to carry out an assessment of compliance against the subsidy control principles.

In particular, I cannot accept a reference to the Agriculture Act in this Bill. This section of the Agriculture Act is an excellent list of legitimate reasons to give financial assistance, many examples of which will be considered subsidies under the definition in the Bill. But I do not know whether my counterparts in the Scottish and Welsh Governments and the Northern Ireland Executive would welcome the application of this largely England-only legislation to their own agricultural policy, when it was never intended to serve that purpose.

The Bill has been designed to support public authorities in giving subsidies in line with their policy goals and the specific circumstances of their areas of responsibility, and the subsidy control principles are conducive to that. Principle A, for example, sets out that subsidies or schemes must be designed to remedy a market failure or address an equity concern. A subsidy designed to address agricultural disadvantage could certainly fall under one or both of these categories, depending on the type of disadvantage meant. Indeed, the Government’s amendment to add “local or regional disadvantage”, as an example of an equity rationale, underlines that.

Marginality of land may also need to be factored into the design of the subsidy or scheme where it is relevant. The subsidy control principles require a public authority to design their subsidies and schemes to change the economic behaviour of the beneficiaries, and to limit the subsidy to what is necessary to bring about the policy objective. It may very well be relevant to take into account the marginality of land to ensure that these principles are met. Fundamentally, however, it is not for the subsidy control regime to dictate whether agricultural subsidies—whether given by Defra, the devolved Governments or another authority—should account for less favourable pastoral land. In many cases it may well be appropriate for agricultural subsidies to factor in unfavourable conditions faced by farmers. However, this is for the public authorities themselves to determine and to incorporate into the terms and conditions of their own schemes.

The noble Lord, Lord McNicol, mentioned the common frameworks. The new domestic subsidy control arrangements and the UK common framework on agriculture are complementary. The inclusion of agriculture in the domestic subsidy regime will minimise the risk of distortions to UK competition and investment and ensure consistency across sectors. The common UK frameworks will enable policy proposals to be discussed and areas of disagreement resolved.

I hope I have managed to reassure noble Lords and, for the reasons I have set out, I ask the noble Lord, Lord Bruce of Bennachie, to withdraw the amendment on behalf of the noble Baroness.

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the Minister for her response and all noble Lords who have taken part in this important and useful debate. There are just two or three things that need to be picked up. The noble Duke, the Duke of Montrose, started off with some sympathy for what we were saying but then turned against it, citing the continuation of the existing schemes. As the noble Lord, Lord Whitty, pointed out in his intervention, however, the world is changing—rapidly—and it may well be that, in the coming years, new schemes may be introduced and therefore that assurance would not have validity. Indeed, there is a general concern that marginal farms could be bought up by big institutions and squeezed out of existence.

I take the Minister’s point about the Agriculture Act, but we just wanted to make sure that we could add into the Bill the very good principles in the Act. I accept that it applies to England, but it would be very surprising if the Government of Scotland took issue with the principles in it. The point, nevertheless, is that farmers want an assurance that the support that they have had under various schemes since the Second World War is likely to continue in some form or other. There is a very real worry that that is not the direction of travel in which the Government are heading. That the matter is devolved does not preclude it also costing a significant amount of money, which previously came from the European Union’s common agricultural policy and now has to fall on the budget of the devolved Administrations.

I hope the Minister will understand, therefore, that the reason we are trying to put this in the Bill is to set out an explicit assurance that marginality will be a criterion that will be encouraged, just as a minor detail. Moreover, if that is in the Bill, it will make it more difficult for New Zealand or Australia, for example, to suggest that the subsidy is somehow incompatible with a trade agreement. Speaking with the experience of an MP for a farming constituency, I can assure the House that the suckler cow premium and the hill farmers have been the basis of building up the pre-eminence of Scotch beef and Aberdeen Angus beef. It is a system that has worked extremely well. Take the subsidies away from the hill farmers and prime Scotch beef will be much harder to deliver economically. The same applies to lamb in Wales and in Scotland. The hills of Scotland, Wales, the Borders and the Lake District without lambs and sheep would not be the attraction that they have been in the past.

I regret to say that I do not think that the Minister’s assurances go far enough, and I would like to test the opinion of the House.

Subsidy Control Bill

Debate between Lord Bruce of Bennachie and Baroness Bloomfield of Hinton Waldrist

Committee stage
Monday 7th February 2022 Grand Committee

[Baroness Bloomfield of Hinton Waldrist (Con)]

While I absolutely accept that the agriculture industry is completely different from others that will be covered by the Bill for many of the cultural reasons that have been brought up by others, I do not have the information that the noble Lord requests, but we will write, because we undoubtedly have it back in the department.

[Lord Bruce of Bennachie (LD)]

Less favoured area status was mentioned by my noble friend. In Scotland, 86% of the land has less favoured area status. If we have gained, as we have over many years, a reputation for prime Scotch beef, for example, it has been done by an integration of finishing farmers and suckler cow premiums on the hills. The Minister said that that could be a legacy scheme, but we are doing trade deals with New Zealand and Australia, which may want to challenge that. I think that people want reassurances that such schemes, legacy or adapted in future, will not fall foul of the implications of the Bill. That is the sort of concern that our farmers are facing at the moment.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I register those concerns. Consultation with the devolved Administrations continues, but I repeat that the subsidy schemes of each devolved Administration can be devised in the context of the particular differentiation between each separate authority.