Product Regulation and Metrology Bill [HL]

Lord Jackson of Peterborough Excerpts

Committee stage
Wednesday 20th November 2024 Grand Committee

It would give similar consultation rights as there are now in the Digital Markets, Competition and Consumers Act 2024, so we would be in the same position as we are with that Act, and it would go a long way to answering at least some of the questions posed on scrutiny by committees of this House. I look forward to the Minister’s response.

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to have the opportunity to speak in Committee. I begin by apologising on behalf of my noble friend Lady Lawlor, who is detained on a train. I am somewhat at a disadvantage in reading her notes but, naturally, I support the sentiments contained in what would have been her speech. I also begin by putting on record my thanks to the noble Lord, Lord Leong, for being prepared to debate and discuss these issues since Second Reading, his willingness to correspond with noble Lords on key issues, for holding a meeting with his officials, which was much appreciated, and substantially corresponding with my noble friend Lord Frost.

I am going to take the easy part first, which is to speak to my Amendment 33. I think it is apposite to look at the broader context of the Bill, bearing in mind the admonition that we should not repeat Second Reading remarks. All the amendments that I, my noble friend on the Front Bench and other noble Lords are moving today are in the context of the Bill, which is an extremely wide-ranging Bill that gives significant sweeping powers to Ministers. For instance, the UK in a Changing Europe document published just last week, its UK-EU Regulatory Divergence Tracker, makes the very pertinent point that the Bill

“is a very significant legislative change, with the government giving itself a broad power to proactively align with EU regulations … The exact range of regulations in scope is ambiguous, but it is evidently broad, with the bill’s explanatory notes referencing product safety, as well as emerging sectors like online marketplaces”.

With that in mind, and the skeleton nature of the legislation, as deprecated by my noble friend Lord Sharpe, we need to see my amendment in that context. Clause 2(3)(h) is the most egregious example of the potential issue at the heart of the Bill, which is that even existing provision in primary legislation may be replaced by provision in regulations. Many parts of the Bill, particularly in Clauses 1 and 2, are unfettered by any requirement for consultation, for criteria to be met or for meaningful preconditions to be satisfied. Indeed, the Bill clearly cuts across the guidance for departments that the Delegated Powers and Regulatory Reform Committee provided in its report of 15 October. My noble friend referred earlier to skeleton legislation, as well as the excoriating reports of the DPRRC and the Constitution Committee.

I remind noble Lords that this subsection relates to categories of

“persons on whom product regulations may impose product requirements”—

with all the caveats that we must accept that secondary legislation cannot, by convention, be amended. That leads us to a broader problem with the Bill in many clauses, particularly this one, which is that we have a double whammy. In the use of ministerial fiat, there is in effect no proper scrutiny in our Parliament and no proper oversight, because statutory instruments are very unlikely to be amended. Therefore, given that we have no fora in which to look at the details of the regulatory regime and the statutory instruments that will arise from the Bill—we no longer have a European Scrutiny Committee in the other place and we do not have a similar body in this House; we have a European Affairs Committee, which has a much wider remit—not only will we not be able to exercise that proper scrutiny but, having left the European Union, should we decide to shadow or dynamically align with regulations we will have no input on their effect but will effectively be cutting and pasting them into our domestic legislation.

In effect, we will have no mechanisms for scrutiny should we agree these clauses. We do not know the methodology by which a value judgment is made on the efficacy of any of these regulations on alignment. We have no measurement of criteria and no way to monitor or review the regulations at present, because there is no effective consultation process at the front end. For those reasons, I urge the Minister to look carefully at my amendment. It is not far reaching; it would specifically removes paragraph (h).

With that in mind, and for reasons of time, I am not particularly predisposed to go into detail on my noble friend Lady Lawlor’s amendments, other than to say that her Amendment 8 seems extremely sensible. Given the nature of the Bill and the wide-ranging powers that Ministers are seeking to exercise, potentially across vast swathes of our economy, a de facto sunset clause, after a modest period, would test the effects of a government intervention in terms of its environmental and economic impact, and particularly—regarding what I said earlier—its political and constitutional impact. It is an eminently sensible and straightforward amendment, and I would be surprised if such a measure were arbitrarily repudiated by the Minister and the Government.

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[Lord Jackson of Peterborough (Con)]

I thank noble Lords for their forbearance as I was rudely interrupted by democracy.

I was somewhat remiss earlier for not also congratulating my noble friend on his position as Front-Bench spokesman for our party, so I welcome him, and I hope he will forgive me for that.

As I was saying, I believe that the amendment tabled by my noble friend Lady Lawlor should receive the support of all sides of the Committee because it seeks to ensure that there is proper, informed parliamentary scrutiny and approval in respect of Clause 1, which is a very wide-ranging clause; other noble Lords will no doubt wish to enunciate those issues later on. As the clock is against us, I will just finish by observing that I wholly support Amendment 128 in this group, tabled by my noble friend Lord Frost, which I have signed, and Amendments 80 and 81 on metrology and pints, tabled by my noble friend Lord Sharpe.

I will just finish briefly on Amendments 40 and 41 tabled by my noble friend Lady Lawlor. Again, these go to the heart of the necessity to see the Bill, and particularly Clauses 1 and 2, within the broader context of a quite seismic shift of government policy. Indeed, the think tank UK in a Changing Europe, in its press release last week launching the latest quarter 3 regulatory divergence tracker, makes the quite bold claim, which I think is correct, that this Government are seeking a much closer relationship with the European Union by increased convergence and reducing any capacity for divergence, either deliberately or as a sin of omission. Whether you think that is right or not, that issue has to be looked at in detail by the legislature—both the other place and your Lordships’ House. On that basis, I support my noble friend Lady Lawlor’s amendment, which would insert “constitutional” into the Bill, because of the wider governance and constitutional issues arising from a Bill that some have described as Chequers 2.0 in legislative form—I know that some of my noble friends might not agree with that.

Finally, Amendment 41 would enable a review of the impact and effects of Clause 2 and the powers therein to be laid before Parliament, focusing specifically on how the decisions made by Ministers and the regulations laid have impacted business and commerce in this country and trade across the world, particularly with the European Union.

On that basis, I ask the Minister to look kindly on supporting those amendments. None of them is radical and none of them seeks to undermine the integral nature of what the Bill is hoping to achieve, but they are sensible additions that will hopefully improve the Bill in the course of its passage through this House and the other place.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I welcome this landmark Bill, and I welcome my noble friend the Minister and the noble Lord, Lord Sharpe, to their Front-Bench positions. I firmly believe that the Bill protects consumer rights. However, I declare an interest as a member of the Secondary Legislation Scrutiny Committee, which scrutinises statutory instruments. In that respect, I refer to the amendment in the names of my noble friend Lady Crawley, the noble Earl, Lord Lindsay, and the noble Lord, Lord Foster of Bath, which would require the Secretary of State to conduct appropriate consultation on draft regulations under the Act.

It is vital that we set out as we mean to go on. One criticism that our committee had of many of the statutory instruments is the lack of proper consultation, as well as inadequate memorandums and impact assessments. This amendment in the name of my noble friend Lady Crawley is timely, and I urge my noble friends on the Front Bench to accept it. More effective scrutiny processes are required in legislation to ensure that the policy decisions made with the powers set out in the Bill can be effectively scrutinised as products and marketplaces evolve, particularly those that will evolve online. It is important that consumers are totally protected.

The noble Lord, Lord Jackson, referred to relationships with the EU. I hope that the Government are successful in resetting that relationship and that there is a closer relationship with the EU, because it is important not only for trade but for society and economic growth—and it is good for wider relations in this part of our global world.

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Having discussed the report, the Minister failed to provide the DPRRC with convincing justification for the inclusion of the skeletal clauses in the Bill. So, despite the no doubt huge team the Minister had and his persuasive powers, I am afraid that the DPRRC was unable to be convinced of his arguments and, if that committee was not convinced, I suggest that this Committee should not be.

[Lord Jackson of Peterborough (Con)]

Is the noble Lord aware of the letter dated 28 October from the Minister, Justin Madders, of the other place, to the noble Lord, Lord McLoughlin, the chairman of the DPRRC, on these specific issues? It says:

“We recognise the Committee’s concerns that the powers in the Bill to amend or repeal primary legislation may appear as though we are intending to replace existing primary legislation with secondary legislation and accept that we should have given more provenance to the fact that our intentions are limited and specific and the powers in the Bill are limited accordingly”.


Does the noble Lord not think it unprecedented for a Minister to write about a Bill that is before this House?

[Lord Fox (LD)]

I am not a student of parliamentary history, so I do not know if it is an unprecedented letter, but that was a helpful intervention, and I thank the noble Lord for that.

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[Lord Leong (Lab)]

I thank the noble Lord for that. If it helps, I have gone through some of our 150-odd existing product safety regulations—not all of them—and their technical nature includes scientific calculation and all kinds of other technical input. Are we saying that we want this in every instance of primary legislation? I think not. If noble Lords think that we should have every technical aspect in all primary legislation, we need to have a different debate entirely, but for this, for technical reasons, we need delegated legislation to ensure that we update the regulations.

[Lord Jackson of Peterborough (Con)]

I do not want to labour the point, but it is either feast or famine. We are being told by the Government that we cannot legislate everything to the nth degree, so we should just trust them on the secondary legislation—the permissive delegated legislation and statutory instruments. But then, with the paragraph that is the subject of my amendment, we are going to the nth degree of granularity and technical finesse while not actually, as it happens, defining what “activities” mean. Activities could mean looking at a product, by which you would therefore be caught by the regulations.

I gently say to the Minister that the substantive clause is not undermined by the removal of this paragraph, and he should seriously think about that.

[Lord Leong (Lab)]

I thank the noble Lord for that. I shall take it away and speak to officials about this, but the purpose of the Bill is not to be too prescriptive, so that we cover most of the activities that can be described by various stages of production.

I want to conclude, if I may. I hope that I have been able to provide reassurance on all these matters and have assured noble Lords that the Government have carefully considered the importance of parliamentary scrutiny and sought to strike a careful balance. I therefore respectfully ask that the amendment is withdrawn.

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[Lord Jackson of Peterborough (Con)]

My Lords, I support the amendment of the noble Lord, Lord Foster of Bath, and my noble friend’s amendment but I want to press the Minister briefly, because one of the key rationales for Clause 1 is to improve safety dynamically. I think we would all agree with that. Obviously, mention is made of the toy safety regime in the United Kingdom and in the European Union, as well as lithium batteries, artificial intelligence et cetera.

May I press the Minister on a genuine question? I have not found a rationale for why the only Schedule to the Bill excludes so many products not covered by the Bill’s potential regulations. It excludes:

“Plants, fruit and fungi … Feeding stuff”,


food generally and animal by-products, aircraft, military equipment and “Medicines and medical devices”. Maybe the Minister could say a little about which value judgments and what empirical data have been used to exclude those products from consideration in the Bill, perhaps seen through the prism of safety.

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[Lord Hunt of Kings Heath (Lab)]

If the noble Lord will let me explain, Clauses 1 and 11 grant powers to make regulations relating to product safety for a range of purposes, general or specific. The Government have set out in their response to the product safety review our intention in the months ahead to begin a process of sector reviews. They will consider whether any changes are needed to our existing regulation of higher-risk products to reflect modern challenges, such as those that the noble Lord has pointed out in two speeches this afternoon. We will also consider whether updates to the GPSR are necessary to ensure that cross-cutting and emerging risks are properly addressed, particularly where products fall outside current sector-specific rules.

Furthermore, in December 2022, the Office for Product Safety & Standards developed a product safety risk assessment methodology for GB regulators to use with non-compliant products. The methodology requires consideration of the tolerability of the risk identified. Where a risk is intolerable, a regulator can act robustly in relation to risks that may have a low possibility of occurring, but where, if they did, the outcome would be disastrous. A noteworthy example is the effort made by the Office for Product Safety & Standards to protect young people from the dangers of ingesting small, powerful magnets.

In Amendment 95 the noble Lord, Lord Fox, makes the sensible point that safe disposal can be a key part of protecting consumers and businesses. Clause 1(5) makes clear that regulations can cover safe disposal of products. We will consider whether particular products need specific regulation in this area on a case-by-case basis.

On the disposal of batteries specifically, the Government are committed to cracking down on waste as we move toward a circular economy. We shall have a discussion on the circular economy—I was going to say “in a few minutes”, but that might be a little hopeful. We are reviewing and propose to consult on reforms to UK batteries regulation before setting out our next steps.

Finally, regarding the question from the noble Lord, Lord Jackson, on the Schedule to the Bill, the things mentioned in the exclusions are covered by separate legislation. It is as simple as that.

[Lord Jackson of Peterborough (Con)]

I am grateful for the Minister’s indulgence; I have a straightforward question regarding Amendment 7 in the name of the noble Lord, Lord Foster. The Minister has answered it thoroughly but I still do not understand. What else would the Government be doing, in looking at the efficacy of product safety, that is not already in the amendment? Surely the noble Lord’s amendment merely formalises actions with regard to product safety that the Government themselves would do in analysing what they need to do to protect consumers. I cannot understand the Minister’s resistance to at least being a bit more emollient towards what seems to me quite a sensible amendment.

[Lord Foster of Bath (LD)]

Hear, hear!

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It is because I believe Amendment 17 provides that certainty that I support it today, and hope that a version of it finds its way into the Bill and on to the statute book.

[Lord Jackson of Peterborough (Con)]

My Lords, I rise to support the amendment in my name and primarily that of my noble friend Lord Frost, particularly Amendment 4. It would not be fruitful to relitigate the Brexit wars, and certainly, those of us who have tabled these amendments do not wish to do so. We are looking at this Bill and its proposals. It is notable to remember that it is not the Government who are moving Amendment 17 and its consequent later amendment, but other noble Lords.

I shall just specifically talk about the amendment to Clause 1(2). It is actually quite a loose and opaque concept to talk about tabling an amendment to the Bill which talks about mitigating or reducing the “environmental impact of products”, because there is quite a degree of confusion about that specific phrase. There is also a significant question as to why there is a specific carve-out for this in the Bill. My noble friend Lord Frost raised this issue specifically with the Minister, the noble Lord, Lord Leong, in his letter of 16 October, and asked why it was necessary to have a separate provision to deal with this. My concern about this clause is that there is the prospect, if it remains in the Bill, not only that we may replicate very narrowly drawn product safety regulations as regards the environment, but that, due to mission creep, it can develop a lot of other particular areas. That may be music to the ears of the noble Baroness who represents the Greens, but it may extend to a supply chain’s due diligence, or to vehicle standards, artificial intelligence or deforestation. Those are all very wide areas where there would be a significant impact from what looks like a pretty innocuous clause. Therefore, I would like the Minister to address that particular issue, because it is very important.

To go back to the clause that is referenced in the amendment from my noble friend Lord Kirkhope of Harrogate and the noble Lord, Lord Russell, I am not sure that they have been witnessing the same situation with the regulatory regime and this Labour Government since 4 July. We are already seeing de facto alignment. We are seeing alignment on a common charger for electrical devices, the vote to leave the energy charter treaty and rules on organic pet food. We are seeing delayed divergence on Section 6 of the retained EU law Act, which is about paying due regard to European Court of Justice decisions vis-à-vis the UK courts; recognition of CE-marked construction products; the suspension of mandatory recycling labels; changes and delays to the implementation of the Windsor Framework; delays to the border target operating model; regulation on deforestation-free products delayed; and entry and exit schemes delayed.

The idea that this Government are presiding over a mass large-scale divergence is completely not the case. For a speech that was meant to take the political heat out of the debate, I think it was quite a political speech by the noble Lord, partly relitigating the long battles over Brexit we had. I do not think it is an ignoble aim for us, in laying these amendments in Committee, to make a point about the geopolitical changes in the United States with the election of President-elect Trump and the focus on deregulation and fewer and more flexible regulations. There are economic difficulties in the European Union, particularly in Germany, which has had some significant encumbrances in terms of all manner of economic data. To tie our regulatory regime to just one market—the European Union, where we have no control, no say and no voice—in a Bill in which there are huge numbers of Henry VIII and discretionary powers to be exercised by Ministers that are effectively unamendable is a risk. That is the risk, and it is the risk of this amendment.

The fundamental flaw of this amendment is that it is asymmetrical and unbalanced. My noble friend Lord Kirkhope used the word balanced. I do not think it is balanced; it is incongruous because there is an inherent presumption—a requirement in this amendment —for us to accept dynamic alignment. At least the noble Lord, Lord Browne of Ladyton, was honest that it is dynamic alignment. It is Chequers 2.0. In this amendment, we are being asked to support Chequers enunciated in primary legislation. I believe that is wrong.

The reason I think that there is a flaw and that it is incongruous is that if noble Lords look at Amendment 17, in subsection (3) of the proposed new clause there is a requirement to lay a statement before Parliament within 14 days about why a decision not to replicate EU law under proposed new subsection (2) is necessary. Funnily enough, there is not a similar requirement to lay a statement if it is decided to diverge from European Union regulations. I say to my noble friend and the noble Lord, Lord Russell, that the amendment would have been a lot stronger and a lot more robust to criticism by this side and perhaps even Ministers if that had been in the amendment. It is not, and for that reason it is a regrettable amendment. It seeks to tie us to a shrinking market which, by dollar denomination, will be about 14% of world trade within the next 10 or 12 years. That is not something we can put in the Bill. For that reason, I will not support it.

[Lord Russell of Liverpool (CB)]

I shall quickly respond to the noble Lord. One of the reasons why I asked the Minister for some detail about the breadth and depth of the consultation his department has had with business was to find out what business really thinks. I would say, in riposte to the noble Lord, that the key thing that should drive decisions on whether we align with the European Union or any other jurisdiction should primarily be what business is telling the Government. Businesses have a far better idea of the economic state, presently and potentially, of the markets they do business with. In fact, they have a much better idea than either Ministers or civil servants. From my point of view of trying to speak on behalf of business, listening to them on what they think should be the priority would seem the sensible thing to do.

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[Lord Fox (LD)]

As noble Lords can probably imagine, I have been looking forward to this group for ages, and I thank noble Lords for not disappointing. I put my name to Amendments 17 and 127 in the name of the noble Lord, Lord Russell, and tabled my own Amendment 94. I think the valedictory remarks made by the noble Lord, Lord Browne, about leaving this Bill may have been premature because Amendment 16, which is group 9, explicitly deals with the REACH issue, which I know he is so passionate about. I would like him to join me in probing the REACH elements of this, so I hope he can put off his exit from the Bill.

The Prime Minister, the Chancellor and others have stated that they wish to re-engage with our largest market, which is the EU. Their aim, and our aim on these Benches, is to remove friction to make life easier for British business. Thereby costs will be kept to a minimum, markets will be more accessible and growth, which we all agree is vital for our future, can be more easily achieved. I was delighted today when the Treasury spokesperson, the noble Lord, Lord Livermore, endorsed the role of this Bill in helping the Government make those moves to re-engage with the EU. It was reassuring that he sees the importance of this Bill in that process. That is a very good mark to put on what we are doing.

We heard some excellent speeches from the noble Lords, Lord Russell, Lord Browne and Lord Kirkhope, in favour of the amendment tabled by the noble Lord, Lord Russell. The UK Government are introducing legislation to guide the future regulation of standards for thousands of products when they are sold in the UK market. It should go without saying that creating different standards for UK businesses hoping to sell in both the UK and the EU works counter to this. Consistent standards that apply across both markets will give business the ability and certainty to sell in both those markets.

Never mind the dolphins. The noble Lord, Lord Frost, brought up the issue of tethered bottle tops. As far as I am aware, there is no regulation in this country to require tethered bottle tops. The reason we have them is because business knows how costly it would be to have two forms of a drink being sold in one market here and one market there. Business understands, even if some noble Lords do not, the true cost of having two different regulations. When it can do without them, it does, and the one it chooses is that of the biggest market, which is very rarely in the United Kingdom.

This legislation is an opportunity for the Government, if they move in the right direction, to reduce the red tape and the bureaucracy that the current version of Brexit has created for British business. We should be under no illusion that Brexit has made it much harder for businesses to export into the European Union.

The wording of this amendment does not bind the hands of Government. As noble Lords have observed, there is absolutely the opportunity to diverge and move away from the regulations in the European Union, if that is to the advantage of the United Kingdom. This is a common-sense amendment that provides regulatory certainty for UK businesses by requiring a default of alignment with EU regulations and a process for parliamentary scrutiny, if or when Ministers determine that divergence from such regulation would be in the best interests of the UK. That is what business tells us it wants—and I hope that the questions that the noble Lord, Lord Russell, asked will continue with that. It also seems to be what the public wants. A poll published today in the i newspaper says that when people were asked where was more important to Britain economically, 57% opted for Europe, with 34% opting for the US, for example. There are lots of good reasons for the Government to support these amendments, because they provide a foundation for economic growth by ensuring that businesses can plan and invest with confidence about where the regulatory regime is going and what kind of regulations are going to apply in the United Kingdom.

Before I come very briefly to Amendment 94, unlike the noble Lord, Lord Browne, I could not help but be lured into addressing some of the comments made by the noble Lords seated just behind me. The comments of the noble Lord, Lord Jackson, were very interesting. His comments about the environment and how appropriate it is to take into consideration things such as deforestation were interesting, and I shall be interested to see whether the Opposition Front Bench endorse the comments that he made, or whether they will distance themselves from them—because I think that is quite important.

[Lord Jackson of Peterborough (Con)]

For someone who is usually very astute, who listens to my views and is very kind in saying that they are interesting, I think that the noble Lord may have got the proverbial wrong end of the stick. I was not making a value judgment on whether it was appropriate to put environmental standards in this Bill. The substantive kernel of my comments was that it was unclear as to what the definition of environmental standards was—it was not saying that they were good or bad for things such as deforestation.

[Lord Fox (LD)]

I may have misunderstood—I shall certainly look at Hansard afterwards. But it would be useful for the Opposition Front Bench to explain where they sit in that regard.

I always listen to the noble Baroness, Lady Lawlor, carefully, but I was confused on a couple of issues that she used as examples. The first example was a very long discussion of digital regulation in the European Union—but digital regulation is not a part of this Bill. The second example was the CPTPP, which we all know is not designed to have mutually enforced standards—standards are not a part of the CPTPP, so I am not sure how this Bill reflects on that at all. This is probably a conversation that we can have outwith this debate, because I am speaking to the point—the point being that we can have trade deals with all sorts of places, multilateral and bilateral, with or without taking into consideration alignment with the EU. However, we cannot have trade in the EU if we do not have the right regulations. That is the point on which I wanted to end, in that regard.

I turn briefly to Amendment 94, which is simply a probing amendment to understand how the Government will monitor and approach the developing international standards. To some extent we have heard about issues around whether we should adopt those standards, but we should certainly understand them—that is my thing—and we should know what standards are governing the products that are coming into our country and how they relate to our standards. Clearly, we are importing a lot of things from a lot of places that are not in the EU, from around the world, and we really need to understand under what level of governance those international standards are maintaining the sorts of things that we care about within product regulation.

To close, the noble Lord, Lord Russell, has done this Committee a great service in tabling his amendments; I am very pleased to be one of their co-signatories.

Civil Nuclear Road Map

Lord Jackson of Peterborough Excerpts

Monday 15th January 2024 Lords Chamber

[Lord Callanan (Con)]

We very much understand that. I know the noble Lord, in his previous constituency interests, had a close connection with these matters. It is important that we take the two projects forward together. There are a lot of synergies in the experience and training required among very skilled workers, and we are determined to make sure that we have the appropriate skills here in the UK.

[Lord Jackson of Peterborough (Con)]

My Lords, I welcome the road map and particularly the important focus on energy security. However, is not the wider context that many of the delays over the years have been as a result of the planning system and, therefore, that the Government need to look holistically at reform of strategic infrastructure planning, the compensation code and compulsory purchase? We have not had new legislation on compulsory purchase for over 40 years. Are those wider issues not just as important as access to private and public money?

[Lord Callanan (Con)]

My noble friend makes a good point. Separate processes for potential reforms to the planning system are going forward in government across a range of areas. Of course, it is important not just for the nuclear industry but in terms of grid connections, solar farms and all the other technologies coming forward. We need to find ways to do these things more quickly in this country and to make sure that people have appropriate opportunities to feed in their views, their objections, et cetera, but there is no reason why it should take literally decades to do some of these schemes.

Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

[Lord Cormack (Con)]

My Lords, “Do not take to yourself powers that you would not wish your opponents to have” is the substance of the noble Baroness’s speech, and I agree with that. I greatly admired the speech made by my noble friend Lord Hamilton at Second Reading. I admired his courage in putting his name to the amendment and I totally respect his view that one has to consider and judge how long ping-pong should go on. So, there is no disagreement between us on this issue, even though we were on opposite sides in the Brexit argument.

But I come down very strongly in favour of the points made by the noble Lord, Lord Lisvane, who, remember, is a very distinguished former clerk of the House of Commons and understands these procedural matters perhaps more than any of us. The noble Lord, Lord Anderson, called in aid the noble and learned Lord, Lord Judge, and we do indeed all miss his presence today and wish him a speedy return to full health and to vigorous debating in this Chamber. He has, perhaps above all of us, talked of the danger of Parliament becoming the creature of the Executive. That is to turn our constitution on its head, and it is something that none of us should be complicit in.

We do have a duty in this House, if we think the other place has got it wrong, to say, “Please reconsider”, and it is not in any way an aggressive use of our limited powers if we think their rethink, which did not take very long, has not been adequate. Therefore, I believe it would be entirely consistent with our relationship with the other place, and with our duty to Parliament, of which we are the second House, to say to our friends and neighbours along the Corridor, “We think you have got this wrong: you are giving power to the Executive which no Executive, be it Labour or Conservative, should have”. I do not want them to have it if they come into government, and I do not think it is right that we should have it. For those reasons, I shall support the noble Lord, Lord Anderson.

[Lord Jackson of Peterborough (Con)]

My Lords, I oppose the Motion in the name of the noble Lord, Lord Anderson of Ipswich. For what it is worth, I support the new iteration of Amendment 16, to which I put my name on Report, in Motion D.

I very much respect the noble Lord, Lord Lisvane, and indeed my noble friend Lord Cormack, but I think we are missing the bigger picture here. We are effectively asking the other place to invalidate a Bill, for reasons I will develop shortly, which it passed by 53 votes when the will of that House was last tested. As I have said before in this House, I think there is a danger of legislative overreach—of assuming powers and of imposing responsibilities and obligations on the elected House, fettering its discretion and, by so doing, interfering in its rights and obligations. Notwithstanding what my noble friend Lord Cormack said, yes, it is our duty and responsibility to ask the other place to think again, but we have already done that. It has thought again and debated the issue. I have to agree with my noble friend the Minister. He is far too polite to describe the approach outlined by the noble Lord as it truly is: extremely radical. He described it as a “novel” approach.

Let us think about what this Motion would mean in practice. If we are in the business of improving governance by scrutiny and oversight, unless we vote for a fatal Motion to kill the Bill—which is very unlikely, because the Opposition Front Bench would not support such a move—surely the logical corollary is that we want to improve it. The perverse application of the noble Lord’s amendment would result in quite the opposite. The opportunities to revoke and, importantly, to reform the caucus of EU retained legislation would be slowed. There would be a process of delay and obfuscation, and it would not be effective government. In fact, it would be a betrayal of the responsibilities and duties we have as the upper House in scrutiny and oversight. Indeed, even above that, the Motion would invalidate the very raison d’être of the Bill, which has to exist. The noble Lord’s amendment is too rigid. It is instructive, and it would assume the powers of Ministers. In some respects, it would make this House itself part of the Executive in a way that Amendment 16 did not, which was much more permissive, declaratory and flexible in seeking to get to the same objectives.

For those reasons of legislative overreach, inadequate scrutiny and oversight, and delay and obfuscation if we were to go down the path of this Motion, I respectfully ask your Lordships’ House to reject it and support the Government.

[Lord Inglewood (Non-Afl)]

My Lords, having sat quietly listening to the debate, which has focused on all kinds of minutiae over the past few weeks, I cannot help but conclude, taking an overview, that if we look at the history of Parliament we see that for hundreds of years it has had a tense relationship with the Executive. Over that period, it has developed a framework within which, in the interests of the British people as a whole, the Executive exercise their powers. We have had civil wars over it; people have died in that cause. Now we are being asked, it seems to me, to put that process into reverse. We are being asked that Parliament should move in the opposite direction and return to a system of governance where the Executive have ever more increasing control over everyone’s lives. I do not think that is the way we in this Parliament should respond to those kinds of circumstances, and it is my personal view that to do so is craven.

Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I am grateful to my noble friends Lord Jackson of Peterborough, Lord Frost and Lady Lawlor for adding their names to Amendment 51A.

The Government have made very significant changes to the Bill, with the new schedule revoking around 600 pieces of retained EU law, in place of the previous plan to revoke all extant EU law, broadly, at the end of this year. As I said on Monday, I welcome this pragmatic approach, but it has created a new need for visibility of progress in dealing with the total population of retained EU law, and my Amendment 51A tries to give that visibility.

Specifically, my amendment introduces a new clause which calls for the Secretary of State to prepare a report within six months of the Bill passing and every 12 months thereafter. That report should show the status of all items of retained EU law, other than those being revoked by the Bill, together with the Government’s plans for dealing with them. Subsection (2) of the new clause proposed by my amendment requires the reports to be laid before Parliament, and subsection (3) says that the reports should continue until all the items of retained EU law have been dealt with.

Last week, the Secretary of State for Business and Trade assured the other place that the revocation of the 600 bits of EU law in the new schedule was not the limit of the Government’s ambition, and I would certainly like to believe that. My fear is that once the Bill is passed, government departments will heave a sigh of relief and move on to things that are more interesting than working out what to do with their retained EU law.

Legislation cannot make the government machine complete the task, but it can provide for transparency, and I see this as having two benefits. First, the Secretary of State for Business and Trade will have a tool at her disposal to keep the pressure up on her Cabinet colleagues to do their part. Secondly, and perhaps as importantly, Parliament will have information which it can use to hold the Executive to account.

I was already concerned about how to monitor progress on dealing with retained EU financial services legislation. That legislation has been carved out of the Bill and is dealt with in the separate Financial Services and Markets Bill. In the other place last week, the Secretary of State for Business and Trade claimed that 500 pieces of retained EU law will be repealed by the Financial Services and Markets Bill by the end of this year. Unfortunately, this is not true. Schedule 1 to that Bill contains long lists of financial services laws which are identified for repeal, but repeal will be activated only when the Treasury decides to do so, and it will certainly not be by the end of this year. The Treasury has been clear that the process will take “a number of years”, and it has no plan or timetable to complete the work. I already have some amendments ready for Report on the Financial Services and Markets Bill next month.

Given the initial drafting of the Bill, I thought that the Treasury’s approach to retained EU law was going to be the exception, but it now appears to be the new normal. What happens to retained EU law and when it will be determined by the various government departments is not clear at the moment. I want to ensure that progress on dealing with retained EU law across the whole of government is kept in sharp focus.

I drafted this amendment in haste once the Government had tabled their own amendments to the Bill last week. I am fairly sure that the Minister’s lawyers will be able to tear it apart, but I hope he will see it as an opportunity to create a transparency and oversight mechanism that will complement the Government’s new approach to retained EU law. I beg to move.

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to follow my noble friend Lady Noakes on this issue, and I am delighted to have had the opportunity to support her by adding my name to the amendment. Noble Lords will remember that during the passage of the EU withdrawal Bill there was a great deal of discussion about whether this House sought to gain for itself executive powers—that is, to become the Government in directing government policy with respect to the withdrawal Act and exiting from the European Union, rather than performing its proper constitutional role, which we all concede is effective scrutiny and oversight.

This amendment is a helpful compromise in seeking to direct Ministers, the Government and the Civil Service to a place where we can all agree. I am sure that noble Lords who earlier this week supported Amendments 2 and 4 and spoke to Amendment 76, which I gather later today we are likely to divide on, will welcome this amendment—you need congestion charging on the road to Damascus, because the traffic is quite heavy at the moment. Those who were happy to turn a blind eye to the huge corpus of EU legislation from 1973 to 2020 are now praying in aid the importance of scrutiny and oversight. That being so, this is a good vehicle to give effect to that, particularly the need for periodic reviews of the Government’s progress on the dashboard.

As I made clear when I spoke earlier in the week, people are watching how this House and the Government ensure that the decision they made in 2016 is given proper effect. While I understand that this House cannot instruct the Government, this is a good way of achieving compromise. I expect a majority on all sides of the House to give my noble friend’s amendment their strong and emphatic support, and I fully expect, since the Minister has an opportunity so to do, an amendment to be laid at Third Reading that consolidates this amendment. If that is possible, I think there will be a strong consensus as the Bill goes forward. In the meantime, I strongly support the amendment and I hope noble Lords will give it their support.

[Baroness Lawlor (Con)]

I have added my name to my noble friend Lady Noakes’s Amendment 51A, and I would like to follow on from what she has said. It is important that the legislative momentum for sunsetting, removing or revoking EU legislation be kept up. The reporting requirement on the Government will, as she said, keep up the momentum and help the Government and indeed Parliament to keep track of what has gone, what is yet to go and how further regulations, if any, will be modified.

There is a very good reason for doing this, and it relates to cost. Ultimately, it is people who bear the costs, either through what they pay for goods and services or through their taxes for government compliance costs in dealing, as now, with two systems of law: EU retained law and our own common law.

I hope the reporting requirement will enable us all to know where we are going and help us keep track of getting rid of that which the Government have pledged to get rid of or modify where necessary. That is very important in the interests of efficiency, for everyone, not just businesses. It is also important for transparency. Not only does regular reporting help the momentum; it will make for fairness so that we are all clear about the rules. I hope it will mean greater prosperity, which we need to encourage. In my view, we need to move back more thoroughly to our common-law system, and that is something on which I hope to touch when we consider the next group of amendments.

Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, very briefly, I too added my name to Amendment 16, so well introduced by the noble Baroness, Lady Jolly. I simply remind the House that, when we remove legislation and regulations, it can have unintended consequences. There is evidence that accidents happen. For example, if we abandon working time directives and regulations, when people are overtired their accidents can be fatal—and there have been fatal accidents. Let us not lose sight of the clear evidence of harms when regulations are no longer in place, because lost lives cannot be reclaimed or replaced. The amendment proposed by the noble and learned Lord, Lord Hope, provides a check mechanism for Parliament to look at regulations and allow scrutiny before things are abandoned. Therefore, although I do not anticipate Amendment 16 being pressed to a vote, I strongly support Amendment 2.

[Lord Jackson of Peterborough (Con)]

My Lords, I will speak—briefly, I hope—to the Government’s Amendment 1. I direct your Lordships back to the comments of the noble Baroness, Lady Fox, who is absolutely right: this Bill, in its current position on the Order Paper, is substantially different from the Bill that was considered by the House of Commons and at Second Reading by this House. If we are to properly scrutinise and analyse the Bill, and have proper oversight of it, we have to be cognisant of that fact.

Notwithstanding the comments of my noble friend the Deputy Chief Whip, where else are we going to acknowledge the very substantial and significant change that has come as a result of the Government’s announcement last week? It is a reasonable point to make. If this were any other Bill—any other potentially epoch-making primary legislation—your Lordships would be up in arms about the fact that we are rushing through on Report the Government’s amendment to Clause 1, which effectively rips up the Government’s policy on the Bill.

I defer to no one in my admiration for my noble friend Lord Callanan, the Minister. I worked with him in DExEU in the run-up to Article 50 and the TCA. He is one of the most gifted Minsters. He has obviously had a very difficult time in your Lordships’ House, putting a viewpoint that has not always been universally popular.

However, the wider context is very important, as put forward by my noble friend Lady Noakes. The Prime Minister did say that in his first 100 days as PM we would review or repeal post-Brexit EU laws. Indeed, that bastion of blue in tooth and claw Conservatism, the Independent newspaper, described the government retreat as a course of action that

“turns the logic of the bill on its head”.

I do not underestimate the task that we as a Government—or this House and the Government—gave to civil servants. In fact, the agency Thomson Reuters estimated in 2017 that 52,741 laws were introduced in the UK as a result of EU legislation between 1990 and 2017. Many of them of course were worthwhile and much needed, but many were about protecting boondoggle schemes, market distortions, oligopolistic behaviour and were designed to ossify market dominance, restrict the need for innovation and lock out more agile and dynamic competitors.

Notwithstanding that, I welcome the Government’s sincere endeavours to both review the regulations and to deregulate more broadly. But we have seen that 52,000 shrink to 600. Most EU laws will remain on the statute book, seven and a half years after in the EU referendum we decided to take back control and trust our own elected politicians rather than a foreign legal entity—in this case the European Court of Justice.

Ministers pray in aid the capacity and capability—or not—of civil servants to scrutinise, prioritise and audit so much of our retained corpus of EU law. But I saw, in my role as a special adviser in the run-up to the TCA and the Article 50 process, that with firm and principled political direction and drive, so much more could have been achieved with vision rather than capitulation.

In fairness, it is not solely the responsibility of this Administration. I concede in all fairness—it would be churlish not to—that the previous Johnson Administration could and should have legislated for a Bill in 2021 rather than last autumn. The Government have resiled from a well-understood political commitment, which voters supported with a strong mandate, and which passed, as my noble friend Lady Lawlor said, in January in the Commons.

No one ever voted for these proposals. The Government have picked a side: big business, senior civil servants, special interests, well-remunerated lobbyists and the ex-Mandarin cohorts ably represented in this House. Leave was the biggest vote in British electoral history, but that counts for nothing as opposed to the pearl-clutching vapours of big business, self-interest and shareholder value dressed up as defending parliamentary sovereignty and concern for “significant uncertainty”. Whither the vision of self-government, independence, democratic renewal and sovereignty of June 2016? Instead, we have the cold pragmatism and cynicism of a technocratic elite.

This has not been handled well by the Government. I refer in particular to the lack of proper scrutiny by the European Scrutiny Committee in the other place, and the failure of the Minister to properly attend to those issues.

I will finish by making reference to Schedule 1. We are offered the mere scraps from the table with the new schedule. It is not so much a bonfire of regulations but a damp, fizzing Catherine wheel. There is no fundamental interest in that schedule in the governance of our country.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Jackson of Peterborough (Con)]

I will have my say; plenty of people have had a say on the other side.

The disillusionment of people who supported Brexit in good faith is bad for democracy. People are beginning to ask, “Does democracy work?”

[Lord Hacking (Lab)]

My Lords, I will move the House away from the Bay of Biscay and back to this Bill. I tabled Amendment 7, that Clause 1 should not be retained, but I will not move it in view of the radical changes that the Government have brought to the Bill. I therefore easily support the noble and learned Lord, Lord Hope, on his Amendment 2. However, I do so with a substantial caveat: that whatever decisions are made by way of advice from the Joint Committee. We must remember that the Joint Committee’s central role is to decide whether the item of legislation before it will bring about a substantial change to current UK law, although the Joint Committee will also bring other considerations.

Important as that is, this is only part of our duty; indeed, our duty is to the whole of the Bill and to the whole of the new schedule before Schedule 1. The Minister referred to 600 specified pieces of EU law, which are represented in the long list represented in the long list before Schedule 1. I have done the arithmetic—even though my arithmetic has never been quite perfect—and the total is 928. We have a responsibility for every one of those 928 EU measures.

I ask your Lordships to concentrate on our wider responsibility, such as whether there is a need to revoke a particular piece of legislation. Is it causing any harm? There are a number of other tests which your Lordships should apply, but which will not fall under the remit of the Joint Committee. I draw noble Lords’ attention to the six sets of Habitat (Salt-Marsh) Regulations stretching over pages 24 and 25 of the Marshalled List. The question, for which we have a responsibility to answer, is: are they defective? If so, how?

Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, that is exactly the point I have been trying to make: it is how we manage the land that is important. We can improve biodiversity in this country and we can produce the food on the same land, working together, because that will give us the right answer—but it is not relying on directives. Where I probably disagree with the noble Lord, Lord Krebs, is that the result of the various directives has been that we have pockets of land that have special protection and we do not join up those pockets: we have barren deserts in between. That is something that I know my noble friend Lord Benyon is working on with the ELM scheme, but that has to complement the directives and we have to get back to a whole-land approach, rather than just a spot approach.

Will my noble friend confirm that future amendments and changes to directives will be done with best science and not emotion? Defra made too many decisions on emotion and not enough on science in the past. Will he confirm, on a point raised by the noble Lord, Lord, Kerr of Kinlochard, on the last group, whether Parliament will have any say on which regulations Defra is going to drop? If Defra mistakenly decides to drop something and we have not had a chance to look at it, we cannot be culpable, but Defra will be, and it is much better that we all look at it.

[Lord Jackson of Peterborough (Con)]

My Lords, I was not intending to speak, but I was prompted by the challenge from the noble Baroness who represents the Greens, who spoke with great erudition, expertise and passion and is a credit to the House for that. It is important that we look at the general principles. Of course, we are talking about environmental regulations amendments, but I sometimes feel that I am the only sane person in the asylum, frankly. We are a sovereign Parliament, yet we are pushing back on the idea of governing and holding the Executive to account, as if we are not able to do that.

If noble Lords look at the preamble to the Bill, it is not about casting aside these regulations; it is not about traducing those regulations and the Great British tradition of environmental protection and health and safety; it is about modifying, restating, replacing and updating. The fact is that even the EU, when developing regulations, was always developing them on an iterative basis; it did not have the regulations ossified 30 or 40 years ago; it was always developing them—even the REACH regulations that the noble Viscount, Lord Stansgate, mentioned earlier. Therefore, it is exactly the same process that this Government are going to pursue.

The idea that Ministers are not accountable at the Dispatch Box for bringing forward or updating regulations is clearly nonsense: they will always be. I have to disabuse the noble Lord, Lord Kerr, of the idea that this has not been properly debated in the other place. First, it passed Third Reading by 53 votes, and he may not know that there was an enormous campaign from NGOs and charities aimed at wavering Members of Parliament. So the idea that it was sneaked through and disregarded by the greater electorate is absolutely not the case.

There is an idea, too, that we are writing a blank cheque. Having considered the Bill in the other place and here, and having considered other committee reports, including from the Delegated Powers and Regulatory Reform Committee and the Select Committee on the Constitution, there have been hours and hours of debate. To then, when it gets to this House, say “We don’t like the Bill, so let’s just ignore it”, would plunge this House into a very bad place in terms of democratic accountability.

The criticism from the people in this country is that our politicians are not up to the job of governing, and, at the end of the day, that is what we have to do. We have to govern. We have to make a decision. The challenge, as was shown only yesterday in what the Prime Minister brought back in the Windsor agreement, is that we can make Brexit work. It is not ignoble for many Members to take a view that Brexit was a mistake—many Members in this Committee take that view—but, nevertheless, this is a Bill about accountability and keeping that bond of democratic accountability and trust with the electorate. I think some Members of your Lordships’ House need to understand and concede my final point, which is that this Government would be crazy to go into a process of reducing—

[Lord Clarke of Nottingham (Con)]

I do admire my noble friend’s defence of the impeccable parliamentary democracy which lies behind the Bill, but I think the author of it was Jacob Rees-Mogg, and I think his principal aims were to make sure that all law was British law and none of it was foreign law, for ideological reasons. I think he thought of it as deregulatory, producing lower and, in his opinion, less costly standards, which is why a rule was put into the Bill that it could not actually raise any of our standards. My noble friend’s present passion in defending it does not actually reflect the motives behind the Bill, and yesterday’s triumph was an abandonment of an otherwise similarly absurd approach, epitomised by the Northern Ireland Protocol Bill.

[Lord Jackson of Peterborough (Con)]

I thank my noble friend for making that point, but mea culpas go both ways. Some of us were saying four years ago that some of those technical solutions could have been tried then, and we were accused of magical thinking. In fact, we were actually right. So just to wind up—because I know the Minister, for whom I have an enormous amount of respect, is staring at me—I think the Bill should go through. It would be offensive to democracy for it not to go through, and I look forward to a position where it gets Royal Assent eventually.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is offensive for democracy if it does go through.