Retained EU Law (Revocation and Reform) Bill

Debate between Lord Deben and Lord Thomas of Cwmgiedd

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I am going to return to a subject that I raised the other day with the noble Baroness, Lady Neville-Rolfe, and this follows on from what the noble and learned Lord, Lord Hope, said earlier today. The noble Baroness, Lady Finlay of Llandaff, cannot be in her place today, so I shall say something about Amendment 49. This goes to three questions that I want to ask and the extent of what we do and do not know.

The first issue that arises is the extent of our knowledge of what is EU retained law. Behind the very helpful dashboard there is a spreadsheet. Like most spreadsheets, it is searchable, so it is extremely helpful in that respect. Under column L, one can find the designation “Territorial application”. When you look down it, you find that some are UK-wide, some are GB-wide and some apply to the Isle of Man, but you also find that some instances are “Scotland only” or “Wales only”. I thought I would see which ones related to Wales only, and they are all Defra ones. I may have made a mistake, because I had to do this research on my own, as I do not have a band of civil servants to cross-check it, but one could see that each of those instruments apart from one had been made prior to 1999—that is to say, when Defra, as opposed to the territorial Secretaries of State, would probably have had responsibility. Some of them are very specialist, dealing with the designation of areas with the Llŷn peninsula, for example, or dealing with the Welsh language.

It seems plain to me from examining that schedule that the Government have gone through the Whitehall departments, department by department, and unearthed what they have. I would like to know if that is right, because I could not find anything in the list that dealt with the territorial offices. The first question that arises relates to pre-1999 legislation, prior to devolution coming into effect. Where is it? It must have been made by either the Secretary of State for Scotland, the Secretary of State for Northern Ireland, or departments in Whitehall. Where is all that material? Whose responsibility is it to find it out? That was work done in London by the UK Government at that stage. Of course, the further one goes back, the more difficult it is to find. If it has all been transferred to the respective devolved legislatures, one hopes that nothing got lost on the way, because one knows that the risk in moving papers around is that you lose them. It would be helpful to have some explanation of who is responsible for pre-1999 legislation.

The second part of that question probably arises more in respect of Wales than in the other two devolved nations. Because the Welsh settlement has moved more over the years, whose responsibility is it to find out things that were the responsibility of, say, a London department before it was moved, and where it is now?

The third part of that question is: who is looking at the post-1999 instruments made by the devolved nations? Obviously, that requires substantial resources. I hope that I have understood correctly, from looking at the spreadsheet, that there is nothing on that spreadsheet—and, in consequence, nothing on the screen that is more helpfully looked at by some—that deals with devolved instruments, but it would be very helpful to know that. The fact that the territorial Secretaries of State are not on the spreadsheet shows that there is a potentially very large lacuna. I will come to why that is so important in a moment.

The second question that arises is in relation to consequential amendments made by statutory instruments. We are all familiar with Bills, these days, and statutory instruments that have provision for consequential amendments. Sometimes whole Bills are made-up of consequentials. I looked through the spreadsheet to see whether I could find any statutory instruments where it was clear that there have to be consequential amendments. I could not find any, so I did the exercise the other way around: I put into one of the commercial search engines the number of a directive, and then tried to see what it threw up. I did this in relation to one of the instruments mentioned in the common frameworks—one of the waste directives—and the search engine threw up three categories of result. The first was the possibility of amendment to primary legislation. That is not a problem, because the Bill exempts that, wherever the legislation was made. Secondly, it threw up the instrument itself but, thirdly, it also threw up consequential amendments. I do not entirely understand how consequential amendments are to be dealt with, because they are not in the spreadsheet.

That is extremely important, because the instrument that I happened to pick on contained an awful lot of consequential amendments to other instruments that used the definition in the directive, by reference to the directive itself, of what waste was. If you miss one of those consequential amendments, what is the position? You have got rid of the EU retained law, and there does not seem to be a saving provision in the Act to save measures that people have overlooked. I will come to explain how that arises in a moment. It seems to me that it is only really this House that can look at what is involved and judge the practicality of doing all this by the end of the year, or even by 2026.

The question then turns to resources. What resources are being made available to the devolved Governments? I think it is a matter of common knowledge that Whitehall is pretty tight on resources—or so it is said, and I believe with truth, by many who work for our Civil Service—but one knows that the devolved Governments are in even greater difficulty. So what money and what number of lawyers, research assistants or whoever is being found to help the devolved Governments?

Why does this matter? I have been involved in what I call legal archaeology in a number of instances. The first related to latent damage policies. That is not entirely irrelevant since, when asbestosis came along, because of the way in which policies were written, one had to go and find what had happened prior to the war. There were all sorts of problems with that: floods, fires and—something that of course would not arise in relation to the EU—bomb damage. I have also been involved in this in various islands in the West Indies, where trying to find out what has happened in the period since their independence has actually been very difficult.

Thirdly, and most relevantly, I was personally involved in working on the legislation that resulted from the decision to abolish the office of Lord Chancellor. It is interesting to know that the legislation was first envisaged as abolishing it but was quickly changed to the reform of the office of the Lord Chancellor. Now, why was that? One is not, of course, concerned with the centuries since the creation of that office in pre-Norman, or at least in Norman, times—it is thought to go back over that span of time. However, it was an immense task to find out what the Lord Chancellor had accreted over the years.

In a way, I am sorry that the noble Lord the Leader of the House is not in his place. He would recall that I had a discussion with him in relation to one of the Boundary Commission Bills as to the fact that one piece that was overlooked, I am fairly certain from my own recollection, was about the person who appointed the office of the deputy chairman. It was thought inappropriate that the Lord Chancellor could have a selection over a judge. I raised this as an amendment and it went to ping-pong, but we did not get anywhere. What it shows is that you can overlook things, but of course in that case it did not matter because the now Sir Robert Buckland was there; he could take on the job and discharge the appointment with absolute impartiality.

In this case, once we have abolished something and taken it away, there is nothing there. If the Government really are insistent on any of this, why can we not have some sort of saving clause so that, if some mistake has been made, it can be rectified? It took a very long time—from 2005 to 2019, I think—for the mistake in relation to the appointment of the deputy chairman of the Boundary Commission to be appreciated.

I do not expect the Minister to be able to answer these very detailed questions on methods of search and what is there, which all needs setting out. However, I say three things. First, the House must have this information. We cannot go on in the dark any longer. We need to know the search methods, the limitations and what is excluded.

[Lord Deben (Con)]

If something does not exist because it has been overlooked, how would case law which refers to it work? As I understand it, that case law is to be abolished, so we cannot actually use any of it. What would happen then?

[Lord Thomas of Cwmgiedd (CB)]

We will probably come to the whole question of case law in the next set of amendments and I do not want to trespass on anyone else’s thunder. The real difficulty with this provision is, as regards the devolved and other legislatures, that if there is a reference in other legislation to something that someone has overlooked, what actually happens? I do not know the answer but, presumably, there is just a void in the statute. I am sorry that I am unable to answer the noble Lord.

To go back to my three points, we must have, first, a proper and detailed explanation of what the search methods do and do not cover, and how we are to address these problems. Secondly, we must have an assurance that there are enough bodies to do the work. When we know what the problem is and the number of bodies available, we can then judge more accurately—this is very important for the amendments to which we are coming—the amount of time that will be required. Thirdly, what do we do if there is a mistake? I do not believe that infallibility rests in any sense within, and never would be claimed by, any Government these days.