Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Hamilton of Epsom

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, I shall speak to the amendments to which I have added my name, Amendments 2 and 4. Like my noble friend the Minister, we campaigned to leave the EU and we found that people decided to leave for a number of different reasons. One of those reasons was the resentment people felt that laws were being passed in Europe and delivered to us here, and we had no say on them whatever. I very much echo the words of my noble friend Lady Altmann.

We scrutinised this legislation. I was on an EU scrutiny committee and we wrote a number of reports, some of which were somewhat hostile about the legislation going through, and of course, they made absolutely no difference whatever. Therefore, if we had said to the people on the doorstep who were concerned that they had no say on much of the legislation coming on to our statute book, and over which Parliament had no say, “Well, we have a great plan: we are going to bypass Parliament almost completely”—

[Lord Kerr of Kinlochard (CB)]

I greatly enjoyed serving jointly with the noble Lord on the EU Select Committee. I point out that I was woken up three times on a Sunday evening by Delors asking me what the House of Lords European Union Select Committee had meant by a particular report on a particular piece of legislation. These reports were not a waste of time.

[Lord Hamilton of Epsom (Con)]

I slightly wonder what effect they had on the statute book. The legislation went through, nothing was amended, nothing was voted down—it could not be, under the EU accession treaty—so, if you do not achieve any change in the legislation, I am not sure you can claim any great credit for having done anything to it. So I do not really accept that. This is one of the problems, and people did find it very frustrating that they had no say over what EU legislation went through.

We have passed over the making of our legislation from an unelected Commission in the EU to the Executive. Who are the Executive? The Executive are made up of Ministers, and civil servants who, in my view, will have much more influence over what happens to this legislation than Ministers will. The Civil Service used to be regarded as a Rolls-Royce. I am not absolutely sure that definition would apply today; it looks rather like an old banger in need of a serious MOT. Let us face it, the Civil Service has not done well in trying to locate retained EU law. It was given endless opportunities to dig this stuff out, and what happened? Virtually nothing, until panic set in when this Bill was being debated.

It is the job of departments to know what legislation they have. This applies not only to EU law but to all law, and one has been given the impression over the past few months that they have absolutely no idea whatever what is on the statute book. Are these the right people to whom to pass all responsibility for EU law, without Parliament having any say? The answer is of course no. Parliament has to regain control of the legislative process. We have to make sure that Parliament decides what happens to this legislation, and that is why I am supporting Amendments 2 and 4 and subsequent amendments. I hope your Lordships will follow me through the Division Lobby.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Hamilton of Epsom

Committee stage
Monday 6th March 2023 Lords Chamber

[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.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Hamilton of Epsom

Committee stage
Thursday 2nd March 2023 Lords Chamber

[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.