Retained EU Law (Revocation and Reform) Bill

Lord Coaker Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Beith (LD)]

My Lords, as well as producing a helpful amendment, the noble Lord, Lord Lisvane, produced a helpful phrase: “unannounced repeal”. That neatly gives a focus to what we are talking about: the washing down the plughole of things that have not been announced or discussed, without the involvement of any parliamentary process specific to them, beyond the Bill itself.

I support the amendment of the noble and learned Lord, Lord Judge. In all the discussions when he and I were members of the Constitution Committee of this House and we considered the EU withdrawal Bill, I do not remember anyone saying, “What will happen is that we’ll set a very short timetable, and everything will have to be dealt with by extra-parliamentary processes during that short period”. We had many discussions with senior judges and others, and the assumption was that law would be moved over—or assimilated, to use the Government’s preferred phrase—into UK law and then dealt with as time and necessity required. Some things would be changed quite quickly because they needed to be updated, but others were doing no harm and could be dealt with later. My feeling was that obsolete or irrelevant things would best be dealt with by something like the Law Commission process, which goes through legislation, identifies what does not need to be on the statute book any more and brings in legislation that deals with it. There were perfectly good procedures available to us by which we could have done that. Instead, we have this fierce timetable.

I therefore support the aims of Amendment 141A, which would create a sifting process, just as I support the aims of Amendment 32. As I said, Amendment 32 is significant because it deals with the unannounced repeals. It is bad enough having inadequate parliamentary processes to discuss those measures which will replace or modify retained European law; I think we all know how limited and inadequate the processes are. Although I agree with the noble Lord, Lord Lisvane, that amendable statutory instruments are a difficult route to go down, there are a few occasions when it happens—but it is really quite difficult. That suggests again that primary legislation should be the vehicle for making significant changes which we probably would never have made by secondary legislation if we had been doing it ourselves rather than being part of a European process. I say in passing, however, that occasionally discussions about how this European legislation was created slightly ignore co-decision in the work of the European Parliament, which is surprising given that the Minister was himself a Member of the European Parliament.

However, I am as worried about the unannounced repeals section—that is, those things which will disappear or effectively be taken off the statute book simply by the decision of a Minister. The noble and learned Lord, Lord Judge, likes to talk about Henry VIII powers. The nearest parallel I can find for what is being done is the Declaration of Indulgence of 1672, with the crucial difference that that declaration had a very noble purpose: to provide a degree of religious freedom to Catholics and dissenters. It is still not a very desirable process, because basically it was His Majesty’s Ministers saying, “We’re never going to get it through this Parliament, so we will just do it.” That is how the Declaration of Indulgence worked. I think that we have better procedures available to us now and that we should use them, and the Executive should not seek to legislate or dispense with legislation. That is a particularly dangerous precedent. If the Executive can dispense with legislation that they do not like without any action by Parliament, we are in very dangerous waters. Of course, they do not have to do anything; they just have to leave it to the sunset—the sun will set surely as it always does. In this case, the sunset takes with it legislation which they identify as stuff they do not want but which Parliament might wish to keep, might wish to reinforce its view on or might wish to have modified but should have the opportunity to consider and decide on. The purpose of Amendment 32 is to ensure that Parliament cannot be ignored in this process.

My final point arises from the helpful comments of the noble Lord, Lord Benyon, in the House on 26 February—no, it was last night.

[Lord Coaker (Lab)]

It was Tuesday.

[Lord Beith (LD)]

Was it Tuesday? The dates of this Bill are becoming a blur in my mind.

The noble Lord, Lord Benyon, said:

“Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it”.—[Official Report, 28/2/23; col. 205.]


He repeated that later in the proceedings, and I think we were all pleased to hear it, particularly as it related to environmental legislation, public health and other important things. It was a very significant thing he said, but it is not how the Bill is constructed; the Bill is constructed to make it so easy to repeal the legislation that a Minister does not really have to do anything other than not put it in the box marked “reform” or “reintroduce”. I would like to feel that the attitude taken by one Defra Minister will not only be supported and reinforced by the Leader of the House and others on the Front Bench but might start to colour the attitude of other government departments as they see how undesirable it is for law to be removed or dispensed with at the whim of Ministers or simply because everything goes that way unless selected otherwise. This is not an acceptable way to proceed.