Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendments 104, 115, 116, 122, 124 and 125 in my name, and in support of Amendment 141 in the name of the noble and learned Lord, Lord Hope. Amendment 104 again substitutes the end of 31 December 2028 in place of 2023, as the statutory deadline, to enable more means for the Government or any of the devolved Administrations to consult, to analyse the results of such a consultation and to prepare legislation. This would also enable Parliament or the devolved legislatures to consider and pass the legislation. By the time the Bill receives Royal Assent, there simply would not be enough time, given the parliamentary recesses in place, to conclude such an exercise. So, in my humble submission, the deadline needs to be extended to allow time for proper legislative practice to be completed.

Amendment 115—

[Lord Hamilton of Epsom (Con)]

Before my noble friend proceeds to the next amendment, she has gone on about the uncertainty created by revising this legislation, but surely the longer the period you create to consider all of that, the more uncertainty you cause.

[Baroness McIntosh of Pickering (Con)]

I would agree with my noble friend if we knew which bits of REUL were being repealed, which were being revoked and which were being reformed—but, as we speak, we do not. As we know, many devolved measures are simply not on the dashboard at the moment, which makes that time even more unacceptable.

Amendment 115 requires a “relevant national authority” or “Minister of the Crown” to consult those who may be affected by regulations under Clause 15(2) before making them. All relevant national authorities will be required to publish the results of this consultation. The idea is to oblige the Minister of the Crown to consult the devolved Administrations before making regulations that concern them.

Amendment 116 makes similar provisions under Clause 15(3), so the same comments apply there. Amendment 122 also extends the statutory deadline from 23 June 2026 to a similar deadline of 31 December 2028, allowing more time than permitted under the present deadline to ensure that all legislation which will be encapsulated will be covered through a consultation, and to allow time for consulting and analysing the results of such a provision. Amendments 124 and 125 are simply consequential to that.

I do not know if the noble Baroness, Lady Meacher, will speak to Amendment 141 in the name of the noble and learned Lord, Lord Hope, but I conclude by saying that I support his amendment, to which the noble Baroness, Lady Humphreys, has added her name. I welcome the fact that the

“amendment modifies the powers conferred on Ministers of the Crown when making regulations in devolved areas under this Schedule so that the power may only be exercised with the consent of the Scottish or Welsh Ministers.”

I hope that my noble friend the Minister, when summing up, will look favourably on those amendments in this group.

[Baroness Brinton (LD)]

My Lords, it is an honour to follow the noble Baroness, Lady Meacher; I agree with everything she said. I also very much agree with the previous speakers, including my noble friend Lady Ludford.

I will make a point in response to the points made by the noble Lord, Lord Hamilton, when he questioned the noble Baroness, Lady McIntosh, on whether her amendments would delay the process and whether that would be a problem. The fundamental problem we have is set out very clearly by the Delegated Powers and Regulatory Reform Committee in paragraph 35 of its 25th report, which quotes from the RDEUL memorandum:

“Overall, the change in status will make it possible to amend or repeal a greater amount of RDEUL using secondary legislation, which will enhance the ability for amending RDEUL more quickly without the need for primary legislation. This is a more proportionate status for RDEUL, as when made it was not subject to the same degree of UK Parliamentary scrutiny as an Act of Parliament or even domestic secondary legislation.”


However, the committee goes on to say that

“RDEUL has a special status because much of it is of considerable significance in policy terms.”

Once again, we have spent most of the last three Committee days discussing issues relating to policy and asking for clarification on when that will be nailed down and understood and when Parliament can look at it before final decisions about the Bill are made.

I return to the question I asked on the first day of Committee: at what point will the dashboard be frozen? After it is frozen, how long will it be before it comes into law? Will it be 31 July, October or 30 December? How do Ministers respond to the issue that Parliament will have to give up a significant role in key policy terms, which is normally part of primary legislation, and which would be moved into secondary legislation under this clause? At the moment, we still do not have an answer as to when Parliament will be able to look at the detail of the dashboard to make decisions on it.

[Lord Hamilton of Epsom (Con)]

Before the noble Baroness finishes her remarks, I would be grateful if she could answer my question: if you delay the implementation of considering this legislation, do you not create greater uncertainty?

[Baroness Brinton (LD)]

It is fairly straightforward. Those of us with extreme concerns about the Bill do not want a Bill passed where time after time people, especially the wider public, realise that regulations have been sunsetted without their understanding of the consequences—and without our own Parliament’s understanding of the consequences. Frankly, that is the one delay that really should be put in place, because we do not know what is going to happen.

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[Lord Krebs (CB)]

My Lords, I will speak to Amendments 129 and 131 in this group in my name and those of the noble Lord, Lord Rooker, and my noble friend Lady Boycott, who, I am sorry to say, are not in their places. These two amendments are about transparency, accountability, and scrutiny, so, in a way, they follow neatly from some of the points the noble Baroness, Lady Fox, was making a few moments ago.

Transparency, accountability and scrutiny are surely not contentious concepts so I hope that the Government would agree and therefore sign up to these amendments. Amendment 129, very simply, would require the Government to seek advice from the Food Standards Agency and Food Standards Scotland as to whether any proposed changes to the regulations will reduce food safety or other consumer protections in relation to food.

Noble Lords will recall that the Food Standards Agency is the non-ministerial department in England, Wales and Northern Ireland with responsibility for food safety and consumer protection in relation to food. It would surely be bizarre beyond belief not to consult the relevant department and its Scottish counterpart before making any changes to retained EU law. The importance of this underlined by referring back to a previous debate in Committee. I quote from Hansard. I said on 23 February that

“I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:

‘In the FSA, we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health’.”


I then said:

“According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.”—[Official Report, 23/2/23; col. 1832.]


I will now quote the Minister’s reply because she did indeed deny it by saying:

“Let me assure noble Lords that any decision on REUL reform will not come at the expense of our high standards.”


She added that

“our commitment to not reducing consumer protection remains in place.”—[Official Report, 23/2/23; cols. 1856-57.]

Here you have it in black and white. The head of the relevant government department, Professor Susan Jebb, says that we cannot sunset EU-derived laws without sacrificing consumer safety and other protections. The Minister told this House on 23 February that, in effect, that is a load of rubbish. Who would you believe? I know where my trust lies. It is with the department that has the responsibility and accountability for and expertise in protecting consumers’ interests in relation to food. There could not be a clearer demonstration of why Amendment 129 is essential

Lest this be thought to be some sort of political point, I want to say that when I was chairman of the Food Standards Agency, with a Government of a different political complexion, Ministers were keen to rush to reassure the public on issues to do with food safety, whether it was BSE or foot and mouth disease, and I really had to stand up against pressure from Ministers and say, “No, we can’t provide reassurance on safety”. If this amendment is accepted, it will ensure that the proper expertise, lines of accountability and scrutiny are in place to review any proposed changes in food law.

I turn now to Amendment 131, which is about transparency. As the noble Lord, Lord Rooker, reminded noble Lords earlier in Committee, the Food Standards Agency and Food Standards Scotland published their first annual report on food safety and standards across the UK, entitled Our Food 2021, in June. Here is a quotation from the introduction:

“At a time when the UK is taking on new responsibilities for food following our departure from the European Union … consumers need strong watchdogs looking out for whether standards are being protected. This report—the first in a series to be published annually—will help us do so by providing an objective, data-driven assessment of the safety and standards of food over time.


Why us? Because the Food Standards Agency … and Food Standards Scotland … are together responsible for food standards across the whole of the UK—this is an important, long-term collaboration between our two organisations that should provide greater transparency and accountability for food quality across the four nations. This, in turn, will help us work with food businesses, local authorities and other partners to address any emerging threats or vulnerabilities.”


Amendment 131 simply seeks to put this annual report, or a slightly modified version of it, on a statutory basis. It will tell the public, businesses, the Government and others whether, as result of changes to our laws, food standards and safety are being compromised. How on earth could one object to this transparency?

As the noble Lord, Lord Rooker, reminded us the other day in Committee, transparency is one of the keys to trust. It has taken years of work by the Food Standards Agency to rebuild public trust in the UK food system after the disasters of the 1990s, including BSE and salmonella in eggs. Indeed, that is why all parties supported the creation of the Food Standards Agency, so it could be a department that puts consumers’ interests first and rebuilds trust in our food system. Why would the Government wish to squander those gains now? I therefore look forward to the Minister warmly welcoming both my amendments, and to assuring us that the FSA and FSS will have the necessary resources to fulfil the duties that are implied by them. These are very modest changes to the Bill, aimed at improving it, and I hope that, if the Minister does not welcome them, he will at least agree to meet me and others to discuss the implications of not accepting them.

[Lord Hamilton of Epsom (Con)]

Will the noble Lord explain why the Government would want to compromise the health of the consuming public of this country and undermine our food exports abroad?

[Lord Krebs (CB)]

That is an extremely good question and I thank the noble Lord for asking it. That is precisely what I would say too. Therefore, if the Government do not want to risk undermining public safety or public confidence in our food businesses, and therefore our food exports, they should accept these amendments. After all, the chairman of the FSA could not have said it more clearly, and I shall just repeat it once more:

“we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health.”

It is not me who is saying this; it is the head of the government department with this responsibility.

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[Lord Kerr of Kinlochard (CB)]

Before the Minister leaves the question of allowing Clause 10 to stand part, I am surprised at her disagreement with the Delegated Powers and Regulatory Reform Committee—a dangerously radical body containing wild revolutionaries such as the noble Lords, Lord Janvrin and Lord Goodlad, and the noble Earl, Lord Lindsay. Their view was clearly set out in their report: that Clause 10

“effects a significant transfer of power to Ministers”,

contrary to what was set out in the European Union (Withdrawal) Act 2018. The Act said it would be for Parliament to decide changes in primary legislation, rather than for Ministers to do so in secondary legislation.

I understand the argument the Minister is making, but it is not one likely to find much support across the House. We think we have a role in deciding what should be on the statute book; it is not simply for the Executive. I can see the point made by the noble Lord, Lord Hamilton—yet another dangerous radical—that it will take time so there will be, in a sense, continuing uncertainty. This is why I support an extension of the sunset deadlines—although that is not a sufficient cure, I think it is a necessary one for the Bill. But the noble Lord has to recognise that there is huge uncertainty now for economic operators across the country: they do not know which laws are to be amended, which are to be retained and which are to be extinguished. Once we know, perhaps it would be sensible to discuss how long it will take to make the necessary changes.

[Lord Hamilton of Epsom (Con)]

Surely the thing that concerns businesses is how legislation is going to be amended, not whether it is or not.

[Baroness Neville-Rolfe (Con)]

I thank the noble Lords for their interventions. I did say that I understood the concerns of the Committee. I was trying to explain that, in this particular case, we need to go forward with the arrangements we have because of the situation the EU law of 2018 has left us in and the need to tidy up the statute book, which, otherwise, would take decades to do.

Amendments 115 and 116 in the name of my noble friend Lady McIntosh of Pickering would insert a requirement to consult any interested persons or relevant devolved Governments before any secondary retained EU law could be revoked or replaced. Amendment 115 would require that no regulations may be made under Clause 15(2) unless Ministers comply with a set of conditions, including a requirement to consult any interested persons in relevant devolved Governments before any REUL can be revoked or replaced. Amendment 116 would insert the same consultation requirements regarding regulations made under Clause 15(3). These amendments would hinder the efficient removal of outdated and unnecessary burdens and regulations and their replacement with regulations that are more fit for purpose.

Furthermore, we have sought, as I have explained, to ensure that the Bill contains robust scrutiny mechanisms, including for the powers to revoke or replace. In particular, the sifting procedure will apply to those regulations proposed to be made under the negative procedure. The sifting procedure largely corresponds with the procedure under the EUWA and the European Union (Future Relationship) Act 2020. In both cases, sifting has been effectively used to ensure proportionate parliamentary scrutiny of legislation regarding EU exit. We are scheduled to debate the sifting procedure in more detail on Wednesday, and obviously I look forward to that debate. In addition, it is our expectation that the departments concerned will follow standard procedures regarding consultation and engagement with the devolved Governments during policy development, so I do not consider adding a requirement to consult on the face of the Bill to be appropriate or necessary.

Amendment 128, tabled by the noble Baroness, Lady Ludford, would create a new clause introducing additional restrictions on the use of powers under Clauses 15 and 16. Among the proposed extensive conditions is a requirement that Ministers provide a report outlining an assessment of the potential impact of proposed new regulations. This would include the difference between current and proposed new regulations for protections for consumers, workers, businesses, the environment, animal welfare, any changes to the regulatory burden, and whether the UK’s international commitments to the trade and co-operation agreement and the Northern Ireland protocol continue to be met. Such conditions are unnecessary. The Bill has been drafted to ensure that legislation made under these powers is subject to scrutiny procedures that are proportionate to the scope of the powers. It is our expectation that departments will follow the standard procedures for consultation and impact assessment where it is undertaken. Adding these conditions would significantly delay the process of REUL reform, impact departments’ delivery plans and could prevent departments maximising the use of the powers in Clauses 15 and 16.

Before coming to the sunsets, I turn to Amendment 129, tabled by the noble Lord, Lord Krebs, which seeks to add a clause to the Bill introducing additional restrictions for food standards legislation. It is only right to have powers in the Bill which will help put the UK statute book on a sustainable footing. The powers will facilitate the much-needed review and reform of outdated retained EU law that not is fit for the UK, and they will ensure that we can capitalise on the benefits of Brexit. As I have said, the powers to amend are not intended to undermine the UK’s already high food standards. I say again that this Government are committed to promoting robust food standards nationally and internationally, so that we can continue to protect consumer interests, facilitate trade and ensure that consumers can have confidence in the food they buy. I also value the work of the food standards agencies, for all the reasons the noble Lord, Lord Krebs, has outlined, but that is not a reason to amend this general Bill.

To respond to the noble Lord, Lord Krebs, the Hansard that he referred to reflects the position that retained EU law that needs to be kept will be preserved. The FSA is saying publicly that retained EU law on food standards should be preserved. It is for the relevant department—the Department of Health—and the devolved nations to decide whether retained EU law in their area should be preserved. Therefore, I humbly suggest that the two statements are not in conflict.

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

This clause has got to the guts of the Bill. It is a real mistake for the Government to be quite so certain in their position on this and to not give even the slightest indication that they want to consider some of the suggestions made by noble Lords in this debate. I think the Government may come to regret batting things back without really taking on board the very serious and well-considered points that have been made. This is certainly something we will return to on Report.

I have worked on a lot of Bills—not as many as others in this place—but never one where nobody has turned up to support their Front Bench on the Government side on anything.

[Lord Hamilton of Epsom (Con)]

I have!

[Baroness Chapman of Darlington (Lab)]

Even the support there has been has been heavily caveated, and it has hardly been what you could describe as overwhelming and unquestioning support. I would say it has been very questioning support. I think that noble Lords on all sides are looking for a bit more from the Government on this clause in particular, but the same applies to most of the groups we have debated on all four days. Your Lordships might say that I rush to criticise the Government sometimes; I do not think I do. Other people are much more reluctant to do so, but their criticism is there none the less. I genuinely think that Ministers ought to reflect on this.

We are very disappointed with the failure of the Government to engage with the DPRRC on any of its findings and to recognise that the power in Clause 15(3) is very wide. This issue about categories or subject areas and that the regulations must be “similar”—whatever that means—is going to have to be looked at again. If we need to force the Government to do that through votes in this place, we would be very happy to work with noble Lords on all sides to work out the best way to do that.

The Minister said a couple of times that there would be no carve-outs but there is a carve-out for financial services and it looks like judges are getting one for their pensions. It is interesting to think about how the Government set priorities for themselves when these issues are being exempted but the environment and consumer protection are not. It is no wonder that noble Lords are a little reluctant to take all this on trust. Whatever the noble Lord, Lord Benyon, says—I am sure he is a Minister who says everything with the utmost sincerity—there is no default position for Defra of retention. That is not possible in this Bill. It is a real shame that a basic understanding of what is going on here seems to be being overlooked, perhaps wilfully, from time to time.

We are disappointed. We are going to come back to this issue. I urge Ministers to have some further thoughts and deliberations, and perhaps come back with something a bit more sensible on Report.

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

At the end of Committee on the Professional Qualifications Bill, it was clear that there were huge problems at the heart of it. The Minister, the noble Lord, Lord Grimstone, stood up and agreed with that. He then said—and I believe this is a quote—“We have to take this Bill on a holiday”. That is what the noble Lord did and the Bill was substantially revised and massively improved over that period of reflection, before it came back on Report. The Government Front Bench could think about that process very hard, because we are dealing with an even more substandard Bill here than we had with the Professional Qualifications Bill.

[Lord Hamilton of Epsom (Con)]

My Lords, I am absolutely amazed that the noble Lord, Lord Fox, has such faith in the bureaucrats of this country such that, if you do not give them deadlines, they will still keep to the timescale. It is remarkable when you think that one of the tasks of all our departments is to review their legislation to see whether it is still current. At intervals, Ministers have said that they will produce only one new law in return for two revoked, but nothing ever happens. This is one of the inadequacies of the system in which we live, but we will let that pass.

I listened to the remarks of the noble and learned Lord, Lord Judge, with great attention, as I always do. But this is the first time I actually agreed with most of them. Unlike the noble and learned Lord, I campaigned to leave the EU. I did not actually stand on people’s doorsteps and say, “We have a wonderful scheme here. We have a drastically undemocratic system of people living in Europe dictating the laws that we should have in this land. But we are not going to restore parliamentary democracy; we are going to hand over all this power to the Executive.” If I had said that on doorsteps, and people like me who wanted to leave the EU had put that argument forward widely, it is quite possible that we would not have left the EU at all.

I am spoiled for choice with the amendments I could back in this group, but I very much support the noble Lord, Lord Whitty, and his Amendment 62A. I think that we need a sifting committee and the all-party one that he advocates is very much one that I would support.

I have been told that at least 40% of our retained EU legislation will be put back on the statute book unchanged. I suspect that that is a rather low estimate and will rise, particularly given what my noble friend Lord Benyon said about retention being the default position. There will not be much controversy about that and the committee of the noble Lord, Lord Whitty, could decide to do that by secondary legislation.

We then come to EU law that is completely irrelevant to this country. Isolated cases have been brought up, such as reindeer between Denmark and Sweden, and fishing in waters nowhere near the United Kingdom, as my noble friend Lord Benyon mentioned. We have also got the export of lemons. I do not think we are going to be doing a lot of that in the future—though with global warming, you never know, do you? Then we have got olive oil; I do not quite see us growing that number of olive trees in the near future, but it is obviously very important to the southern countries of the EU. All of that can certainly be binned, and I would not have thought that there would be any controversy about that whatever.

I suspect that the other amount of law that the Government are thinking of getting rid of, which is more difficult, is the area where there is already legislation in the United Kingdom which does this job better than the EU legislation. That is something which will have to be argued out, which is why I think the role of this cross-party committee could be critical.

We then come to other regulations which need very minor amendments. As we know, one person’s minor amendment is somebody else’s major amendment, so I would be more than happy that the committee viewed that legislation as well. If it was happy that the amendments were very minor—just changing dates and things of that sort—they could allow that through statutory instruments and secondary legislation. What is much more concerning is the ability that the Government seem to be giving themselves to scrap an EU law and introduce a completely new one. This is not what we voted for when we voted to leave the EU and is an extraordinary transfer of power. That is where I hoped that this committee would come in and say, “No, this must be dealt with by primary legislation.”

To sum up, I would be more than happy to back an amendment similar, if not identical, to that of the noble Lord, Lord Whitty. I will campaign among all the people I know to actually support it as well—and I think that I possibly represent one or two of the people who left the EU. If we do that, we might get an overwhelming majority which might make this Government change their mind.

[Lord Kerr of Kinlochard (CB)]

I am very glad that I gave way to the noble Lord, Lord Hamilton. I hope that the Government will reflect on such criticism coming from such a quarter. The noble Lord, Lord Hamilton, and I disagreed violently over Brexit, but the criticisms that he is making now, much more clearly than I could, are the criticisms that I want to make now. So the opposition to the Bill does not come under the remainer/leaver axis—it comes under the “good Government” axis.

There are just two points that I want to raise. I support the amendments in this group, particularly the amendments in the name of the noble and learned Lord, Lord Judge, the noble Lord, Lord Fox, and the noble Baroness, Lady Chapman, Amendments 39, 42 and 43. The first point I want to make is about unannounced repeal—the point made by the noble Lord, Lord Beith—although it is unannounced and undiscussed repeal that really bothers me. The other is about default.

On unannounced and undiscussed repeal, when we were last in Committee, on Tuesday, I asked what Parliamentary procedure would be available when a Minister decides that a piece of our law should be abolished. What procedure will enable Parliament to debate that decision? The Minister replying to the debate said that she would reflect on the point that I had made. I have not yet heard an answer, but it seems to me rather a significant point. Here we have a situation which I believe is improper in constitutional terms—and it is certainly absurd in practical terms that laws should disappear by administrative fiat, privately. I do not know how courts will be expected to apply that, and I do not know how citizens are expected to behave in relation to the law, if changes in the law have been made by administrative fiat, privately. I think it is constitutionally improper that that should happen without the opportunity for some discussion in this this place and the other place. I think it is important to address the question that has been raised by the noble Lord, Lord Beith, and I hope we are about to hear an answer.

--- Later in debate ---

[Baroness Lawlor (Con)]

My Lords, I am pleased to follow my noble friend Lady McIntosh of Pickering and the noble Baroness, Lady Humphreys, to whom I have listened with great interest. My Amendment 56ZA is to bring forward the extension date in Clause 2(4) to the end of 2024. There are political and practical reasons for doing so.

Politically, a general election must be held by 12 December 2024. It is important that the Government elected in 2019 not only honour their commitments to deal with inherited EU law but bring forward the extension date to coincide with, or be within striking distance of, the end of this Parliament. This is not a matter of ideology, as has been suggested by some noble Lords in respect of the sunsetting of legislation, but of working within the normal political timetable: a Government are elected, they set about implementing their programme and, when the time comes, they go to the country for the people to judge. That is how this democracy functions.

When people vote, they take a punt on the party they vote for and they vote for it to govern, for general or specific reasons. Political theorists may, and do, disagree about the extent to which voters’ knowledge of detailed programmes or their expectations are at play, but there is little argument among them that people vote for a party to become a Government, and to enact the programme or the cause with which they are identified. The current Government have, sadly, lost much time in restoring UK law; now they are finally moving to do so.

Far from being disparaged for following what is called ideology, the Government should be encouraged to honour the promise on which they were elected. They are doing so in this Bill, by providing for the sunset of EU-derived subordinate legislation and some retained direct EU law, and doing so within the current Parliament, despite the pandemic. However, they should also ensure that, even in those cases where an extension is envisaged, that extension falls within striking distance of the parliamentary timetable.

Practically, it is sensible to have the extension date as close as possible to the sunset date. Indeed, given the rapid and efficient work of civil servants, who have continued to prepare for and publish on the dashboard identified pieces of legislation, we now have sight of thousands of rules which formed part of the corpus of EU law—the acquis. Our officials are familiar with and understand these matters. I understand that some departments have been working on it for almost five years. They are well equipped to move to the next stage. It is better this happens by, or near, the end of this Parliament for the benefit of good government, for the certainty it brings to all concerned, and for the effective and efficient working of government, and that it happens without the interruption of a Dissolution, or the distraction for officials of having to prepare the program for an incoming Government. I have confidence that the UK will do a better job in protecting the many legitimate concerns which have been raised by your Lordships.

Moving swiftly will give certainty to all involved, irrespective of the vagaries of political life. In addition, there is the constitutional question, to which many noble Lords have continued to refer—probably most of the noble Lords who have spoken in Committee. This has also been raised in the two recent reports from the Secondary Legislation Scrutiny Committee and the Constitution Committee, both of which illuminate a range of complex matters and considerations. I am most grateful to both committees for doing so.

None the less, I disagree with the implied role that Parliament—the legislature—should play in the matters addressed in this Bill. I urge the Government to capitalise on the work of departments for the dashboard and submit the list to Parliament, indicating which will be adopted into or adapted for UK law, and which will go. That would bring reassurance and make for greater transparency. It may also help noble Lords to engage in the sifting process, on which they will be paramount. However, there is a danger of seeing legislative scrutiny as an end in itself rather than as a means to holding the Executive to account. That has not changed. If the Government fail to command a majority in Parliament, their days are numbered.

For over a century, there has been debate about the relative significance of the relationship between the people of this country and their Government, on the one hand, and that with their Parliaments, on the other. Dicey alluded to this in 1910, as did Lord Hailsham and Tony Benn in 1978, and that debate has continued, having been given a tremendous boost by the referendum. My view is that, on the matter of retained EU law covered by this Bill, the Executive have direct authority to act. They were given it in December 2019 by the electorate, who made clear that they preferred to deal with the Executive, the Government, who appealed to them directly over the legislature, which had appeared to ignore the decision of the referendum more than three years earlier or to obstruct its execution.

On all three grounds therefore—political, practical and constitutional—not only do I support the Bill’s approach but, for the reasons given, I ask my noble friend the Minister to accept that there are also grounds for moving more rapidly to advance the extension date in Clause 2 to within striking distance of the lifetime of this Parliament.

[Lord Hamilton of Epsom (Con)]

My Lords, I support my noble friend in her amendment. I take the view, as the Committee well knows, that if you give the bureaucracy longer to implement all of this, it will use the time. Therefore, the shorter the time we can make it, the better.

I ask my noble friend the Minister whether he considers the fact that the sunset clause is operating at the end of this year as almost the sole reason we now know roughly how many bit of retained EU legislation there are. If the sunset clause had not been in there, I do not believe that the bureaucracy of this country—pace the noble Lord, Lord Wilson—would have come up with the answer at all.

[Lord Whitty (Lab)]

My Lords, I have Amendment 56A in this group. Noble Lords have probably gathered by now that I profoundly hope that the Bill never reaches the statute book. However, if it does, we need to know what the heck we are talking about. My Amendment 56A requires the Government, within three months of the passage of the Bill into law, to ensure that all of us here and those whom they are going to consult out there—the businesses, consumers, workers and everyone else whom the Bill may affect—know what we are talking about; namely, by providing a definitive dashboard at that point, preferably with an indication of how the Government intend to deal with different bits of the dashboard. But, in any case, it requires that they provide a “definitive list”. If we do not have that, no one will know how we will behave, whatever the deadline.

I support the deadline proposed by the noble Baroness, Lady McIntosh, which is reasonable, given that we are talking about 4,000 pieces of legislation, at the last count. I do not agree with the deadline in the Bill or with extending it by only one year, as the noble Baroness, Lady Lawlor, suggested. The key point of my amendment is that the world needs to know what the Bill means, what it is about and, preferably, how the Government will deal with it. I do not think that the word “dashboard” has appeared in many pieces of legislation, but we need something based on the dashboard as it is currently. Noble Lords who have tried to use it will have found it rather difficult and certainly not yet definitive. So we are giving the civil servants—I can go along with the noble Lord, Lord Hamilton, on this to some extent—three months from the passage of the Bill to produce a definitive list of what we are talking about, and we need that.

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

Those are just some examples of pieces of legislation which, at the moment, people are worried about possibly being lost in the transfer and not being preserved. It becomes difficult to understand why—if it applies to the Defra legislation—it is not the default to retain EU legislation and then slowly work through it afterwards to decide what will go, because the health and social care costs are probably vastly greater than anyone has yet estimated.

[Lord Hamilton of Epsom (Con)]

My Lords, I speak to Amendment 27 in the name of my noble friend Lady McIntosh of Pickering and the noble and learned Lord, Lord Hope. I have always had great reservations about extending the sunset clause by any time at all, and I am quite surprised that nobody has mentioned this. The Bill gives the Government astronomical powers to use secondary legislation not only to amend EU law but to create completely new laws. I have great worries about doing this for any longer than is absolutely necessary. We have to think very carefully about whether we want to extend this period at all.

The noble Lord, Lord Benyon, has said—at least, it has been attributed to him— that, by default, if we cannot think what else we are going to do with these laws, we will keep them. If the Government keep just to the sunset clause of the end of this year, they will have to keep virtually everything—I do not know why anybody has an argument with that—and they can then revise it under primary legislation later if we do not have this extension at all. We have to very seriously think about this.

The real solution to all this is, of course, Amendment 44 in the name of the noble Lord, Lord Carlile, which says that we must have a sifting system to decide what we do with all this legislation. An awful lot of it can go through under secondary legislation, particularly if we are keeping it, but, at the same time, some bits of legislation will make major changes to EU law, and that should be done under primary legislation. If we have that as a sifting system—I am not sure I agree with the mechanism that he suggests, but I agree in principle with his amendment—all this falls by the side, because we then have a system where all this can be dealt with. We can extend the period beyond the end of this year and it can all be dealt with sensibly like that. As long as we are viewing this amendment on its own, I certainly could not support it and would advocate for saying that we should have sudden death at the end of this year, concentrate the minds of everybody and either keep this law or get rid of it, but do not muck about with it for endless years to come.

[Lord Hendy (Lab)]

I shall speak to Amendment 63, to which I added my name to those of the three noble Baronesses, Lady Jolly, Lady McIntosh and Lady Finlay. Amendment 63 would protect health and safety by requiring a health and safety assessment of each piece of legislation which will, or may be, repealed or revoked by the Bill. I shall confine my comments this evening to a subset of legislation which might have an impact on health and safety, and that is the law relating to health and safety at work. Obviously, I support the arguments so eloquently advanced by the noble Baronesses, but I should like to advance a different argument. It is a matter that has been raised in debates on the Bill a number of times, but in general terms: the EU-UK Trade and Cooperation Agreement. I should like to deal with that specifically in relation to health and safety at work.

I shall read to the Committee the relevant words of the trade and co-operation agreement, beginning with Article 386. It is only a few sentences; no one need fear that I shall keep them here for hours. Article 386.1 states:

“For the purposes of this Chapter, ‘labour and social levels of protection’ means the levels of protection provided overall in a Party’s law and standards in each of the following areas”.


It sets out a number of areas, of which paragraph (b) is

“occupational health and safety standards”.

Article 387.2 states:

“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.”


So the United Kingdom has signed up in a treaty to not weakening or reducing its occupational health and safety standards in a manner which might affect trade or investment. Bearing in mind what the noble Lord, Lord Clarke of Nottingham, said earlier this evening about the objective of the Bill being to reduce costs—one would add, in order to make British industry more competitive—it is clear that this article is engaged.

There is just one more article to which I draw attention, Article 399.5, which says:

“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted”.


There, the commitment of the United Kingdom is the implementation of ILO conventions and European Social Charter provisions ratified by the UK. I can assist on what those are in relation to occupational health and safety; there are only three passages that I need to share with your Lordships. First, there is ILO Convention No. 187, the Promotional Framework for Occupational Safety and Health Convention 2006, which was ratified by the United Kingdom. Article 2 of it states:

“Each Member—


each member state, that is—

“which ratifies this Convention shall promote continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths, by the development, in consultation with the most representative organizations of employers and workers, of a national policy, national system and national programme.”

Article 3 says:

“Each Member shall promote a safe and healthy working environment by formulating a national policy … Each Member shall promote and advance, at all relevant levels, the right of workers to a safe and healthy working environment … In formulating its national policy, each Member, in light of national conditions and practice and in consultation with the most representative organizations of employers and workers, shall promote basic principles such as assessing occupational risks or hazards; combating occupational risks or hazards at source; and developing a national preventative safety and health culture that includes information, consultation and training.”


Article 4 says:

“The national system for occupational safety and health shall include among others … laws and regulations, collective agreements where appropriate, and any other relevant instruments on occupational safety and health”.


The European Social Charter is even clearer. Article 3, which was specifically ratified by the United Kingdom, on

“The right to safe and healthy working conditions”,


states:

“With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Contracting Parties undertake … to issue safety and health regulations … to provide for the enforcement of such regulations by measures of supervision … to consult, as appropriate, employers’ and workers’ organisations on measures intended to improve industrial safety and health.”


It is quite clear that, if the current raft of provisions on health and safety at work, some of which I listed at Second Reading, is revoked or diminished, we will be in breach of the EU-UK Trade and Cooperation Agreement. The only way we can avoid that is by the Government exempting health and safety at work in the same way as they propose to exempt the financial sector through Amendment 45. Will the Minister give that assurance?

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I apologise for not having been involved in the Second Reading debate on this but I think it is worth noting that in the last couple of days the EHRC has issued a briefing note about its concerns about the Bill, particularly these amendments. I am here partly to read into the record some of the concerns that our Equality and Human Rights Commission has about the things that are contained in the Bill, including:

“The Bill covers legislation on limits on working time, the right to paid holiday, rights for temporary and agency workers, and parental leave. These are important legal protections for all UK workers which have specific impacts for people with certain protected characteristics under the Equality Act, such as sex and pregnancy and maternity”,


as my noble friends have already outlined. The EHRC also says:

“Any negative impacts on people sharing protected characteristics must be identified and mitigated by Government”


and that it is

“concerned at the potential impact of the Bill on workers with the protected characteristics of sex and pregnancy and maternity. This is because the workers’ rights at risk, such as maternity and equal pay, and parental leave, disproportionately affect women”,

as the Minister will be aware. It continues:

“There may also be negative economic impacts if the ability of women to participate in the labour market is eroded.”


The EHRC goes on to talk about the “legal uncertainty” that this will create within our labour market and our equalities field. So my question to the Minister is: how are the Government going to mitigate these risks?

[Lord Hamilton of Epsom (Con)]

My Lords, what we seem to be ignoring in all these amendments is that it is essential in this legislation that we do have a sunset clause, because if we did not, we would not know how many bits of legislation we are talking about. Ministers have been asking departments to produce all their EU retained law and absolutely nothing happened until minds were focused by the fact that the sunset clauses were put into this legislation. I am going to oppose every conceivable amendment saying “This bit of EU retained law should be retained” for the simple reason that the sunset clauses are absolutely critical.

What we must do is decide how we deal with all the EU retained law. It must be sifted, because some of it is completely irrelevant to British statute. I mean, we talk about movement of reindeer between—

[Lord Collins of Highbury (Lab)]

Is the noble Lord suggesting that employment rights are irrelevant, not important and not a consideration?

[Lord Hamilton of Epsom (Con)]

I am not arguing that at all. I am saying that much of this legislation is going to be retained and some of it will be discarded. What we have to do is decide which legislation falls into which category. That is the critical element of all this. We cannot say that we should start retaining this bit, that bit or the other, because that is not relevant.

[Baroness Thornton (Lab)]

The noble Lord is being distinctly unsuccessful in convincing his own Government that that is indeed an important thing to do.

[Lord Hamilton of Epsom (Con)]

I am saying that we have to decide how we handle the whole bulk of EU retained law. If the noble Baroness had been here for Second Reading, she would have known that I actually raised this issue. We have to sift this legislation and decide what is going to be debated in primary legislation and what is going to be subjected to secondary legislation and so forth. You cannot generalise about all the legislation coming into one category or another—it will not. Some of it will be retained, some of it will be amended and some of it will be abolished altogether. There has to be some sifting system that makes the decisions on that. Therefore, we should not be pleading for individual bits of EU legislation to be retained; we should be saying that we need a system that divides it up and sensibly deals with it in one way or another.

That is why I am not going to vote for any of the amendments that go against the sunset clause, because I think the sunset clause is critical. We would not know how many bits of legislation we were dealing with if we did not have a sunset clause.

[Baroness Andrews (Lab)]

My Lords, I have some sympathy with the noble Lord’s position, because, as he made clear at Second Reading—which we were delighted and a bit surprised by—he takes issue with the Bill. The noble Lord talks about there being a system and us being involved. However, first, Parliament is not involved in this; that is almost universally agreed around the Chamber. Secondly, the process is being conducted by a handful of civil servants, across Whitehall, who are working frantically against the clock to make serious judgments on issues of which they often have little experience themselves. They are doing it on behalf of the devolved Governments as well. The sunset clause is a ludicrous timetable against which to make extremely sensitive judgments.

The whole process is untransparent, to say the least. For example, take the dashboard which the Government keep saying will tell us everything we need to know. It does not even cover all the SIs which are now coming into scope. It does not explain which bits of law are SIs, which are the remainder, or which are other forms of retained law. It is virtually useless for anybody trying to make a judgment on whether the issues they are concerned about will be inside or outside the scope of this.

My noble friend made the point that all we need to reduce uncertainty in the first place is some set of criteria whereby certain SIs may be retained and others may not. For example, one red line could be whether an SI impacts on our trade relationships or our international obligations. We could see that and be able to judge if we had a set of criteria, but we have none of that. It is making life totally dreadful for people who are trying to make decisions inside government. Defra has 1,700 individual SIs. The common frameworks, which we will discuss later, will be dealing with about 500 SIs which translate across the whole of the internal market, and the dislodging of one may well impact 50 others.

We are trying to make sense of a process in which there is no sense. Could the Minister give us some idea of the timetable against which Whitehall is working? When will we know when those basic judgments have been made about what can be retained and what is going to be put in the “disposable” bucket? If we had a timetable which gave us some reassurance about that, or a timetable about when, for example, an SI which needed to be put in the place of something that was going to be removed would come forward, that would help. Noble Lords should bear in mind that this House takes six to eight weeks to process SIs. If you work backwards from Christmas and the sunset clause, we will need to start laying SIs in May or June to get them through in order to replace the laws we will lose. That is a measure of the chaos that is being created by the Bill. This House needs to take its processes seriously and slowly, so that we can introduce some reassurance to all those bodies outside—such as the CBI and the trade union movement—which are relying on us to create some clarity around this.

--- Later in debate ---

[Lord Davies of Brixton (Lab)]

My Lords, I was unable to be present at the Second Reading of this Bill because I was at the fourth day of the Committee stage of the Financial Services and Markets Bill. There is an interaction between that Bill and this Bill, which we can discuss in more detail when we get to the Government’s Amendment 45. But, in the context of this debate and the suggestion made by the noble Lord, Lord Hamilton of Epsom, that the sunset clause is essential, he should read the justification for the Government’s Amendment 45. It says:

“This new clause contains new exceptions to the clause 1 sunset”.


So even the Government do not believe that the sunset clause is essential; there are groups or parts of European legislation without the sunset clause and so, if special rules can be made for financial services, why does he think that we cannot have special rules for other areas of legislation?

[Lord Hamilton of Epsom (Con)]

I am very grateful to the noble Lord for letting me in. Does he not accept, though, that, when this Bill was printed with the sunset clauses in it, that was the only point at which all this legislation started to appear? They had done nothing up until that time to actually dig it out.

[Lord Fox (LD)]

My Lords, it seems the debate has started quite strongly already, as I think we expected. I am indebted to the noble Baroness, Lady Meacher, for her intervention, which I think puts in context quite a lot of what we will hear today. This group of amendments is part of a series, as the noble Baroness will have seen, that highlight how this is not a tidying-up exercise, as it was characterised by Rees-Mogg, and is not about reindeer-related legislation. It is about a fundamental set of changes that could affect almost everybody, potentially seriously detrimentally.

Each of these groups sets out different areas of concern; that is the point of what we are doing here today. Together, they indicate the breadth and the importance of the legislation that is being cast into doubt by this Bill. It is all very well the noble Lord, Lord Frost, saying, “Trust us”—we do not, and we will not until all these laws are ruled in, because until they are ruled in, they may very well be ruled out or amended. That is our purpose here today: to use specific examples to explain that this is real, and affects real people and real lives. That is what we are here to do.

I rise to move Amendment 23, which is in my name, and to support Amendment 1, which is also in my name and the names of my noble friend Lady Burt and the noble Baroness, Lady Crawley. I also support Amendment 40, in the name of the noble Lord, Lord Collins. This set of amendments concerns employee rights; Amendments 1 and 23 deliberately focus on one of the suite of employee rights that could be swept away by the effects of the Bill. These rights could be lost as a result of the deliberate actions of the Government, bent on winding back the national clock, or they could happen as a result of accidental changes that are not picked up—legislative commission, or legislative omission. In either case, Parliament is all but bypassed in the process.

Amendment 1, as we have heard set out thoroughly by almost all the people speaking today, on parental leave, is really vital to the lives of so many people, and an important enabler to working families. It is so vital that we do not think it should be risked in the potential pitfalls that this legislation sets out. That is why we propose to exempt it from the sunset, to make sure that UK working families get the opportunities they so need with their children at the start of life.

Turning to Amendment 23, which I know no one has yet spoken about, that looks at a different but equally important employee right: the Transfer of Undertakings (Protection of Employment) Regulations 2006, known as TUPE. I am sure that noble Lords are more than familiar with this; I certainly am from my business life, and I am sure that many noble Lords are from their different experiences. To be clear, it means that when one business buys another business, there is a reasonable certainty as to which workers transfer to the new business, so that the purchaser knows what employees they are getting and what they will cost, and workers know that they cannot just be dismissed because of the transfer. This is about fairness and peace of mind, and ensuring that employees caught in an outsourcing, for example, are not driven out of work as costs are slashed.

We saw with P&O Ferries that this law has serious limitations, but it is better than nothing and we need it to endure through this process. This is also business-friendly, because it allows businesses planning that are acquisitions to know what they will be buying. Similarly, businesses that are pitching for outsourced work now, to be carried out next year, need to know what rules they will have when that work starts. So this amendment gives both workers and businesses certainty.

On Wednesday 1 February, in answer to a question regarding employee rights from the noble Lord, Lord Woodley, the Minister, the noble Lord, Lord Callanan, said that

“our workers’ rights, of which we are very proud, do not and did not depend on our membership of the EU … let me repeat: UK standards did not depend on EU law”.—[Official Report, 1/2/23; cols. 658-59.]

That spirit has been reflected by speakers opposite, but, as evidenced by these two specific regulations—real regulations that exist now—the Minister was not correct. It is very clear that, as the Minister indicated, there are UK-derived laws, but these work in tandem with, and are interwoven with, laws that were imported into the UK from the EU. These work together to deliver the suite of workers’ rights that we have today.

Parental leave and TUPE are not the only important worker protections that are in danger; they are illustrative of a whole raft of legislation that is up for grabs. For example, I would emphasise the right of NHS workers, who have worked through the pandemic, to be able to carry over annual leave that they have been unable to take; maximum hours, not just for office workers but for safety-critical workers such as airline workers, deep-sea fishermen and HGV drivers; and the obligation on employers to make an assessment of health and safety risks to their workers and to keep such risk assessments up to date—I think the noble Lord, Lord Berkeley, referred to that. In the second group of amendments, we will also reflect on part-time work and agency workers, which is another important area.

There are a number of other laws that are set out by the noble Lord, Lord Collins, in Amendment 40. However, I am aware that this is not an exhaustive list, so can the Minister confirm that the Government now know all the laws that will be in scope of Clause 1? How many concern, first, employment rights and, secondly, workplace health and safety? We would be very pleased to know the numbers there.

As the noble Baroness, Lady Crawley, set out, many of these laws impact women more than they do men. The Bill’s equality impact assessment confirms that the Government’s commitment to upholding high standards in equalities does not expressly acknowledge the potential disparate impact of revoking these regulations. As we know, unless the Government positively act to save a regulation, it will be abolished at the end of 2023—although the Government can decide to extend that into 2026; that is a voluntary act.

In his answer to the noble Lord, Lord Woodley, earlier this month, the Minister also said:

“Regarding the regulations the noble Lord mentions, as with all retained EU law we will look at that and see whether it is appropriate for the UK economy, and if necessary we will modernise, update or replace it”.—[Official Report, 1/2/23; col. 658.]


Well, these are amendments about specifics. Will the Government be retaining these specific laws as they are or do they find it necessary to modernise, update or replace them? We would like specific answers on these specific laws.

I fear there is a further complication, which I would like to probe in this amendment—and here I thank the Employment Lawyers Association for some very detailed help. There is a third factor, and that is case law. On the face of it, the least disruptive course that the Government could choose is to take current law and assimilate it directly into UK law—essentially making no fundamental changes but perhaps tweaking some of the language. Surprisingly, that does not finish the uncertainty. That is because the Bill does not just turn off regulations; it turns off EU law that the European Union (Withdrawal) Act 2018 kept in British law. Examples of the law that would be turned off are wide-ranging. The Bill also turns off the direct effect of many parts of EU law that the courts use to interpret regulations in domestic law, and this is what I wish to interrogate.

The turning off of this type of EU law is amplified by the Bill abolishing the principle of the supremacy of EU law in Clause 4, together with the general principles of EU law in Clause 5. The new Bill sets a new default that removes three principles from British law at the end of 2023. The Bill will erase the interpretive principles and settled decisions that courts have relied on to give settled and predictable meaning to hundreds of employment law rights and obligations that are derived from EU law. To be clear, the three principles are these: the direct effect, supremacy of EU law and the general principles of EU law.

Abolishing the direct effect removes rights such as a facet of equal pay law which is being used by tens of thousands of women to claim equality with better-paid men. This is because equal pay rights in the Equality Act 2010 do not go as far as the current case law, as since 1976 the Act has been supplemented by EU law. Abolishing the direct effect sets a default to abolish rights such as the right to normal pay during holiday—enjoyed by millions of workers—or the ability to carry over holiday, and with it holiday pay, from one year to another when sick. It sets a default to remove from UK law the legal reasoning that has helped extend anti-discrimination law and other protections to atypical and gig workers.

Abolishing the principle of supremacy, together with abolishing the general principles of law and the removal of the direct effect, means that the settled meaning of not only EU regulations but primary Acts of the UK Parliament, such as the Equality Act 2010, will not be the same after 2023. The Bill affects primary Acts of Parliament as they may be interpreted in the future. An employment dispute centred on the meaning of a legal right in December 2023 may have a completely different outcome from one that arises in January 2024. In other words, all the existing case law can fall away and new case law has to be built up from scratch. That will create huge legal uncertainty and a bulge of cases in the country’s courts.

These regulations, and ones like them, are used every day by workers and employers in courts and tribunals. Lawyers are asked to advise on them and use the certainty of past decisions to be able to give answers to clients that allow them to conduct their business and resolve their disputes in a settled, stable and well-understood framework of law. This reduces disputes and litigation. The settled and predictable meaning of a considerable body of employment law will be wiped away, creating unpredictability. It will be up to the courts to decide whether case law carries over or whether it changes. Legal uncertainty will undermine any plan that the Government might have for growth, as neither employers nor employees will have any clarity on the meaning of large parts of employment law that affect investment and the cost of labour. I ask the Minister to give us a very detailed response to this because it is one of the most important elements and has so far not been debated very much by the general public.

As I have said, these amendments are the first in a series that illustrate how everyday lives will be affected. They also bring into stark relief the risks inherent in this Bill of disturbing settled understandings of the law, turning legal certainty, clarity and predictability on their heads. Will the Minister please give the Committee a detailed response to this amendment, particularly setting out the view of government lawyers on the implications of removing direct effect, the supremacy of EU law and the general principles of EU law?

I repeat my question. Will the Government be retaining the specific laws set out in these amendments—parental leave and TUPE—or do they believe that there is a necessity, in the Minister’s words, to modernise, update or replace?