Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Report stage
Wednesday 17th May 2023 Lords Chamber

[Lord Callanan (Con)]

I will pass the noble Baroness’s comments on to Defra, which will write to her again, but she has already received replies to her concerns in emails and she has spoken to Bill team officials about this. As I said, the FSA has said that it is entirely happy that this regulation should be revoked.

[Lord Kerr of Kinlochard (CB)]

I wonder whether I can help the Minister. I support what he said today, and I congratulate him on how he started and what he said about the Civil Service. But I wonder whether he might want to think, before Third Reading, about the addition of an emergency brake. I share the worries of the noble and learned Lord, Lord Hope: supposing it turns out that something is needed and that, before the deadline—before they disappear—a real case is established, could the Government not give themselves the power, by statutory instrument, to leave a particular regulation off the schedule, or to amend the schedule by statutory instrument before the deadline, simply to remove a regulation that it turns out is there in error? I do not ask for an instant reaction, but perhaps the Minister might like to think about this before Third Reading.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am grateful to the Minister for giving way. Before he sits down, I refer him to the second paragraph on page 2 of his letter—for which I was grateful, joking apart:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … Instead, we expect them to apply domestic principles of interpretation”.


What are these domestic principles?

[Lord Callanan (Con)]

They are the domestic principles of interpretation that have been used by the courts since time immemorial: the normal procedures they use to apply their scrutiny of UK law. That is the point we are making. It is important that the general principles of EU law, which were introduced into UK law with our accession and which have applied to retained—[Interruption.] Will the noble Lord let me finish making my point before he intervenes again?

[Lord Kerr of Kinlochard (CB)]

In time immemorial, we were not members of the European Union. Is the Minister saying that we all should go back to pre-1972, and that anything that happened when Denning salt water was coming up the estuaries—anything that happened in the last 50 years—is to be ignored by the courts?

[Lord Callanan (Con)]

No, I am not saying that at all. Case law is not abolished: courts will still be able to take case law into account. We will use the power of restatement where necessary. Departments will look at whether the general principle of EU law, which we are abolishing with this legislation, affects the particular statutes that they are retaining, and they will adjust them accordingly so that the same policy effect is maintained. Of course I am not suggesting that we go back on what was agreed. The principles of case law will remain.

[Lord Kerr of Kinlochard (CB)]

We are talking about the courts and cases. Surely the courts will have to look at the domestic principles of interpretation which they are going to apply. Will they be given any guidance?

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I think I understood from what the Minister said a few moments ago that I will not get an answer to the question I posed on Tuesday. This time I think he said that he understood the point and would reflect on it. I do not quite know what that means but it is certainly an advance on Tuesday’s position, when the Government were just going to reflect. If we have now reached understanding the point, then we are on the right track.

The point about default is whether we are risking a situation where the courts next year, and in the following years, will have to rule in cases on whether a newly discovered piece of law was retained EU law and therefore died at the end of this year or was not retained EU law and is therefore still in effect. Is it sensible that the default is that the Act is dead? Would not a more sensible default position be that the currently undiscovered but in due course discovered Act remains in force until it is repealed, amended or prolonged? I just do not understand why that uncertainty must be introduced.

[Lord Callanan (Con)]

For the purposes of clarification, I was merely repeating a similar point to the one made by my noble friend Lady Neville-Rolfe. We will reflect on whether it is possible to publish a comprehensive list of laws that might sunset.

I return to the point I made earlier: we are satisfied that the department has identified all the laws for which it is responsible. Lawyers are currently going through it all and our advice to them is that if they are not sure whether or not a law is retained EU law, they should default to preserving it if they think it is important. I hope that answers the noble Lord’s point.

As I was saying, Clause 1 is the backbone of the Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law. The amendments tabled by noble Lords would add unnecessary time and complex burdens to this process, which, of course, may be the purpose of many of them.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Callanan (Con)]

They are on the dashboard if they are retained EU law. I noticed that, in all the statements and speeches from Members opposite, the words “if” and “could” were doing an awful lot of heavy lifting. I accept that there is no trust from the Opposition in the intentions of the Government and that they want to make their political attacks. The reason I outlined UK employment rights and standards was to demonstrate the commitment of this Government to those rights. The point that the noble Lord, Lord Fox, made earlier is essentially correct: while we have some very high standards, of which we are proud and will maintain, there is a complicated mishmash of laws in this area between some elements of EU and domestic law.

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Callanan (Con)]

If the noble Lord will sit down, I will come to him in a second. I will make this point and then I will give way.

UK rights were provided in the complicated mishmash of UK law, with higher standards often based on minimum standards and provisions that were in EU law originally. That is why they have been included on the dashboard. We will conduct a review of all these regulations—which this legislation provides for—and we will do so in the context of the high standards that the UK already has.

[Lord Kerr of Kinlochard (CB)]

I think I understand the noble Lord’s argument, and that he is therefore going to end by saying that he accepts Amendments 1, 23 and 40. If our standards are so high, there can be no question of the Government reducing our standards or amending or sunsetting the legislation spelled out in Amendments 1, 23 and 40. If the Minister is not prepared to accept these amendments, will he explain why, if they are in the Government’s view good, they have to be in doubt until the end of the year and then possibly dead?

[Lord Callanan (Con)]

As the noble Lord knows very well, that is not what I am saying. The reason that I am not saying that goes back to two points made earlier in the debate. First, there is a complicated mishmash of rights and responsibilities across these particular laws, but we will maintain our high standards. Secondly, it goes back to the argument the noble Lord, Lord Fox, made about interpretive effects. If the interpretive effects are being abolished to bring them in line with the rest of UK common law and to reduce some that have the status of primary legislation to secondary legislation, we need to review the whole panoply of employment law as a whole—which we will do, but we will do it in the context of the high standards that we have and will maintain. That is the point I am making

Energy Prices Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Committee stage
Monday 24th October 2022 Lords Chamber

[Lord Callanan (Con)]

I accept what the noble Lord says about it being astonishingly wide but, if he will have a little patience, I will quote some examples to him shortly, and he will see that they are not the biggest items that he can think of.

The powers in Clauses 21 and 22 have been included in the Bill to provide government with the ability to react at pace to unforeseen delivery barriers. Making them subject to the affirmative procedure could delay the provision of support to consumers this winter and put at risk the point when energy suppliers have certainty over the final delivery requirements.

The approach that the Bill takes to parliamentary procedure is not unprecedented: for example, a direction under the Electricity Act 1989 has already been used to deliver the energy bills support scheme in Britain. Furthermore, the powers in Clauses 21 and 22 may be used only “in response to” the current energy crisis,

“or in connection with the Act”

or with regulations or schemes made under it. They are therefore time-constrained in that respect. Amendment 39 would reduce the sunsetting provision for powers under the cost plus revenue limit from five years to three and a half years. We consider the five-year sunset appropriate for the Government to respond to the immediate effects of the energy crisis, while ensuring ongoing protection for consumers if gas prices remain abnormally high for a prolonged period. The upcoming consultation will allow the Government to further define the intended use of this power.

Amendments 40, 41 and 42 seek to sunset the powers under Clauses 21 and 22 to two years, with an extension permissible by affirmative regulations. The Bill already makes clear that Clauses 21 and 22 must be used only “in response to” the current energy crisis, or “in connection with” the Bill or with regulations or schemes made under it. Generally, those other provisions in the Bill are already subject to sunsetting. A crisis is, by its nature, something extraordinary and temporary. I submit that the circumstances and timing in which the Government can use this power are therefore already appropriately constrained by the Bill.

Three amendments have also been tabled that relate to requirements to consult. Amendment 19

“would require the Secretary of State to consult before utilising … powers”

on the temporary cost plus revenue limit. It is the Government’s clear commitment to consult as soon as possible; therefore, we do not believe that this amendment is necessary.

Amendment 21 would require the Secretary of State to consult on pass-through requirements on intermediaries. As the schemes are being stood up at pace, this requirement could delay much-needed support being passed through to consumers this winter, and therefore could be positively harmful.

Amendment 23 would require modifications to licences under Clause 21 to be subject to consultation with the relevant bodies. As I mentioned, this clause ensures the Government’s ability to react at pace to unforeseen barriers to delivering the schemes. A requirement to consult would, again, simply delay our ability to deliver the schemes effectively and quickly, and therefore would be counterproductive.

Finally, a set of amendments have also been tabled which would remove certain powers from the Bill, including the opposition of the noble Lord, Lord Rooker, to Clause 22 standing part of the Bill. Clause 22 and its powers enable the Government to issue directions to energy licence holders and the Northern Ireland regulator in connection with schemes under the Bill and in response to the energy crises. The ability to issue directions of a general character is necessary to deliver support under the Bill and to tackle barriers to their implementation. Amendment 26 would limit the Secretary of State’s powers to issue directions of a “general character” to those only of a “specific” character. Amendment 28 would remove Clause 22, which provides that, when a direction to a person conflicts with existing requirements in an “enactment or instrument”, such requirements should be “disregarded”. Currently, we envision limited circumstances in which these circumstances will arise.

I will now give the example asked for by the noble Lord, Lord Kerr: the Government may need to issue a direction to the Utility Regulator in Northern Ireland to ensure that the timing of electricity regulated tariff reviews is aligned with similar reviews in Great Britain. This may be necessary to ensure effective administration of the energy price guarantee in Great Britain and Northern Ireland. In doing so, it may be necessary to rely on Clause 22 to resolve any potential conflict between the terms of the direction and the statutory requirements of independence applying to the energy regulators in Great Britain and Northern Ireland, and any existing requirements as to timing in the supplier’s licences, to enable all parties to comply with the direction for tariff review alignment. Without this, licence holders or the Northern Ireland regulator may be uncertain about their legal position, and this could have the effect of households and businesses missing out on appropriate and timely support. This plays to the noble Lord’s points. I realise that there is a suspicion that there is some malign intent behind these clauses, but they are, essentially, designed to deliver support at pace in a fast-moving environment and to provide the Secretary of the State with the powers to ensure that this happens in a legally correct manner. I reassure the noble Lord that there is no hidden agenda here.

[Lord Kerr of Kinlochard (CB)]

I plead innocent to any imputation of malign intent, but it is an astonishingly wide power. The Minister’s explanation related it solely to Northern Ireland. It is not limited as the Bill is drafted to Northern Ireland, but it would be relatively easy by combining subsections (3) and (5) so to limit it. That would cause me to worry much less about this apparently extraordinarily wide-ranging power to overrule the law of the land or all existing regulation without making a new regulation.

[Lord Callanan (Con)]

The noble Lord asked me for an example. I have provided him with an example of one means that we envisage may be necessary. There could be other licensed modifications that we have not envisaged yet. As I said, this legislation has been drawn up at pace, using the excellent resources of lawyers and parliamentary counsel. It has been enacted very quickly. This is a clause that we think is necessary in order to, if you like, cover something that we have not thought of and that we have missed out in the Bill, but it is limited to use in the specific circumstances that the Bill requires.

Energy Security Strategy

Debate between Lord Kerr of Kinlochard and Lord Callanan

Wednesday 27th April 2022 Lords Chamber

[Lord Callanan (Con)]

I am sorry that the noble Baroness has ignored the quagmire, as she puts it, of some very important subjects. I am sure we will want to debate them in future. She raised this matter with me yesterday. In principle, I understand the point she is making, but I point her to the website of Ofgem, which does the appropriate sustainability checks on the biomass used in Drax. It is from waste sources, and it is renewable. The Greens are shaking their heads, but I am afraid there is a case for it. It is sustainable and renewable, which is why it qualifies, but it is subject to strict sustainability criteria. They are checked and published.

[Lord Kerr of Kinlochard (CB)]

There is much in the Statement to welcome about the long term but, as Keynes said, in the long term we are all dead. What worries me is that there is not a word in the Statement about how we are going to help people deal with the very real household energy crisis we are in now that will vastly increase in October. The reference period that will decide by how much the cap goes up ends in July. We know now that there is going to be a big increase again; there is no reason for us to wait. It is not very reassuring to be told that

“the Chancellor has promised to review his package of support before October”.—[Official Report, Commons, 19/4/22; col. 75.]

Why is he not doing it now? I suggest that, when he looks at it, he looks not just at little packets of money here and there, but at the possibility of indexing the energy element in universal credit to the energy component in the household expenditure of the people on universal credit. That is the most efficient way of targeting it. It is sad to see a long-term strategy which tells us nothing about onshore wind, storage or the improvements to the grid which are badly needed. The more we invest in wind, the more we will need grid improvements.

[Lord Callanan (Con)]

The noble Lord’s question was somewhat contradictory. He complained that the strategy did not address some of the short-term problems but in the end, he referred to it as what it is: a long-term strategy. The clue is in the title. The reality is that it takes many years to put in place energy infrastructure, and it is right that the Government address these factors and look to the long term to make sure that we are putting in place the appropriate steps, such as the nuclear RAB Bill, to provide the long-term security of supply and power that the country needs. That does not obviate the difficulties that we have in the short term. As I suspect the noble Lord knows very well, I cannot comment on what the Chancellor may do in response before any future fiscal event, before the next price cap comes in. However, I can assure the noble Lord that the problems the nation faces with high energy prices are at the forefront of the Government’s consideration.

European Union (Withdrawal Agreement) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Lord Callanan]

I am not sure I want to get into an arcane legal debate with the noble Lord, my noble and learned friend Lord Keen and others. I do not accept what the noble Lord says; I do not think this undermines the settlement.

We will of course continue to seek legislative consent. We will continue to take on board views and will work with the devolved Administrations on future legislation, whether related to EU exit or otherwise, just as we always have.

[Lord Kerr of Kinlochard]

There was much wisdom from the noble Lord, Lord Griffiths of Burry Port. It would help the atmospherics a great deal if the Minister could reassure the Scots and the Welsh—I think the Northern Irish are reassured already—that they will be included in the United Kingdom team negotiating in the joint committee. I say that because I think it is right to try to improve the atmosphere and because, after all these years, the Lady Griffiths is entitled to a dinner out.

[Lord Callanan]

She is indeed. I hope that at some stage in the future the noble Lord, Lord Griffiths, will repeat the endeavour which failed last night. The noble Lord, Lord Kerr, made a good point. We have already started discussions with Scottish and Welsh Ministers, and I hope that those with Northern Ireland Ministers are to come. I was present at some of the discussions in London a couple of weeks ago. A frame- work was put in place for joint ministerial committees; one on EU negotiations and one on ongoing EU business, which I chair. We will develop those consultations as we go into the next phase, and we are working on proposals to involve them in future negotiations. We will, of course, take that point on board.

We understand the importance of preserving both the spirit and the letter of the devolution settlements and the principles of the Sewel convention as the UK exits the EU. In response to the noble and learned Lord, Lord Morris, I say that international relations are indeed a reserved matter. However, the devolved Administrations do have an important role in implementing these agreements. Any devolved provisions made under the Act will normally be made only with the agreement of the devolved Administrations and we will engage with them on this, as we have always done in the past. The Government are committed to upholding these principles, but this is not changed by restating them in the Bill. Given what I have said, and the reassurances that I have been able to give, I hope that the noble Baroness will feel able to withdraw her amendment.