Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I agree with the entirety of Amendment 41A from the noble Lord, Lord Lucas, while agreeing with only half his reasoning. I entirely agree that, as we discussed at length in Committee, this is essentially impossible to calculate and creates a great deal of legal uncertainty. Where I disagree with him is that I would very much like to have seen non-regression clauses for the environment, public health, workers’ rights and a whole range of other things in the Bill.

Practically, what we are doing with the clause at the moment, if it is implemented, is creating a guaranteed regression of workers’ rights, food standards and environmental standards. If we do not have regulation of business, we will certainly see at least some cowboy businesses taking advantage of a reduction in regulation. That of course will not be in the interests of businesses that want to do the right thing on the environment, public health or workers’ rights.

I spent a great deal of time during the passage of the Environment Act and the Agriculture Act arguing for non-regression clauses. What the Government are currently giving us is a guaranteed regression clause, and that really should not be acceptable.

[Lord Fox (LD)]

My Lords, as the proposer of Amendment 45, which is also in the names of the noble Baroness, Lady Chapman, and the noble Lord, Lord Hacking, I feel a terrible weight resting on my shoulders as a result of the preface from the noble and learned Lord, Lord Hope, because this is the amendment that seeks to remove Clause 16 and I fear that I am not going to reach the billing that he gave us.

Over the course of this session, we have heard numerous arguments about the way in which the Bill more and more removes Parliament from the process of revocation and reform. I am not going to rehearse all those arguments again, because your Lordships have heard them both on Report and in Committee. Clause 16 is one of the key parts of the machinery in the Bill to govern how retained EU law can be reformed. There is an argument for removing the clause altogether, but I have bowed to the spirit of scrutiny rather than total oblivion and, as such, I do not intend to move the amendment.

As we have already heard in advance from the noble Lord, Lord Lucas, the provision that causes most concern is Clause 16(5), which mandates the nature of any reform of REUL to be deregulation—and deregulation only. The point the noble Lord made is about how we measure the sum of regulation. There was all sorts of debate in Committee. Is it the total of the changes across a group of amendments or a section of amendments? Is it each amendment by itself? These questions were never satisfactorily answered in Committee, so perhaps during Report the Minister can tell us how the amount of regulation will be measured. In other words, can one increase in regulation be balanced by two decreases in regulation through adjacent provisions, for example? We have not had answers to that.

Essentially, the spirit of the Bill is that there can be no increase in the “burden”—according to the Bill—caused by this reformed retained EU law. Clause 16(10) defines burden, with its paragraph (b) including “administrative inconvenience”, but one person’s administrative inconvenience is another’s life-saving safety measure. It depends on which direction you look at it. Clause 16(10)(d) includes

“an obstacle to efficiency, productivity or profitability”

as a burden. Again, what may seem an obstacle to one group may be existentially important to another.

As I said, I am not aiming to push this amendment to a vote. We are seeing amendments that are putting some safeguards in place. The noble Lord mentioned Amendment 76, which we anticipate. I am anticipating Amendment 48 in the name of the noble Lord, Lord Krebs, where we will talk about non-regression, and Amendment 50, which will come up shortly. These are other important pieces to put in place to try to draw the majority of the sting from Clause 16.

[Lord Hacking (Lab)]

Clause 16 has always been the most offensive clause in the Bill because it was giving excessive power to the Executive and no power to Parliament. But on the horse, if I may put it that way, of the amendments of the noble and learned Lord, Lord Hope, who really has provided enormous assistance to us during the passage of the Bill, and knowing therefore that the assimilated law to which we are now directed will also be subject to the provisions to which he has already succeeded—twice over now—in getting the acceptance of the House, we are protected. Because of our protection under the noble and learned Lord’s amendments, I am happy with this amendment not being moved. I joined the noble Lord, Lord Fox, and my noble friend Lady Chapman of Darlington in signing it but, on the basis only of the work that the noble and learned Lord, Lord Hope, has provided, I am prepared to join the noble Lord, Lord Fox, in not moving this amendment.

--- Later in debate ---

[Lord Hendy (Lab)]

My Lords, I support Amendment 50, as well as Amendment 51, which bears my name. Amendment 51 is an elaboration of Amendment 50, so I will speak only to Amendment 50. I endorse everything that my noble friend Lord Collins has said. The object of Amendment 50 is, as it states in proposed new subsection (1)(a), to prevent the reduction of

“the level of protection for workers”.

As my noble friend said, this is not simply to protect workers but to protect good employers from being undercut by bad employers. It speaks of the level of protection for workers, in respect not just of employment rights but of health and safety at work rights.

In spite of the warm words of the Government and the promises of an employment Bill over the last three or four years, there is a suspicion that the Government will try to take advantage of Brexit to undermine and water down workers’ rights. That fear is not helped by the fact that, last week, on 10 May, as I mentioned earlier today, the Department for Business and Trade published its booklet, Smarter Regulation to Grow the Economy. This contains no less than four proposals to water down the Working Time Regulations and Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, which guarantees the right of workers to be consulted when collective redundancies are proposed.

The proposals to water down those rights are not contained in the Bill, as they could have been among the 928 proposals in the schedule. They are yet to come, in the form of statutory instruments that we have not seen, cannot examine and, when it comes to it—notwithstanding the excellent amendments from the noble and learned Lord, Lord Hope, earlier on—may have difficulty in seeking to amend. The purpose of Amendment 50, and indeed Amendment 51, is to ensure that workers’ rights are not watered down and that the obligations contained in Articles 387(2) and 399(5) of the trade and co-operation agreement, against regression, are honoured.

[Lord Fox (LD)]

My Lords, my name is on both of these amendments and I am happy to support them both. The proposers will be pleased to know that I do not intend to speak for long, because I have heard two excellent speeches that set out the reasons why supporting these amendments is important.

The noble Lord, Lord Hendy, talked about the danger of back-door watering down of legislation. It may not be this Government; once this is in statute, it could be any Government going forward. We do not necessarily have to distrust the people we see before us—I personally do not—but we do not know who in future will be able to use these measures.

If the Government want to water down workers’ conditions, that should be done through primary legislation, straight up, and negotiated and scrutinised properly. It should not be put through the backdoor, which could happen here. Throughout the process of the Bill, the noble Lord, Lord Callanan, has said over and over again that it is not the Government’s intention to water down workers’ rights. By supporting Amendment 50, the Government can make sure that they are absolutely as good as their word.

[Lord Hannan of Kingsclere (Con)]

My Lords, one of the worst objections that I had when I was a Member of the European Parliament was to the doctrine of the occupied field—the idea that you could never withdraw from a field in which you had once legislated. So the acquis communautaire can only ever grow; it could go only in in one direction. You could call it a ratchet, a one-way street or, as its supporters did, a bicycle that has to go forward, but the objection was fundamentally the same: it lifted certain issues out of the democratic field and made them immune to the political process.

For what it is worth, I have never had much time for the idea that our workers’ rights come from the EU—the EU did not travel back in time and pass Barbara Castle’s Equal Pay Act 1970 or Neville Chamberlain’s Holidays with Pay Act 1938—but, whatever view you take of it, these are precisely the sorts of issues that ought to be determined by our national democratic mechanisms and procedures. You can take the view, as the noble Lords, Lord Collins and Lord Hendy, did, that this is wonderful, helps employers and all the rest of it, which is a perfectly respectable position, or you can take the view that there comes a point where too many workers’ rights means fewer workers—but surely that is a debate that ought to be had here and in another place, not something that is effectively made invulnerable to the ballot box.