Retained EU Law (Revocation and Reform) Bill

Debate between Lord Lisvane and Lord Judge

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Judge (CB)]

My Lords, I feel like Henry V before the siege of Harfleur. Looking around, I see:

“greyhounds in the slips,


Straining upon the start”.

Just like those poor chaps outside Harfleur, I suspect your Lordships all want it to be over quickly, and that is my intention.

This amendment is very simple. It is my answer to the letter I received from the Government about the Bill which I read out to the Chamber at Second Reading. It does not seek to preserve a single law, in any of the 4,000 pieces of material we are looking at, which Parliament wishes to revoke. Equally, it does not seek to revoke a single law which Parliament wishes to retain. It has nothing to do with that. Its objective is to ask that Parliament has a chance to look at what is proposed and to examine those proposals, not for a very long time, so that Parliament and not the Executive can decide.

If this amendment, or any of the amendments in this group, had reflected the statute in draft—the Bill, in other words—most of the arguments we have had over however long it has been would have been quite unnecessary. Maybe an amendment of this kind would have achieved that; I am not particularly supporting my own but all the amendments in this group.

Let us just go back. Probably the most persuasive argument against joining the Common Market in 1972 was that it gifted power over our legislative processes to an institution which was not wholly elected here and was not answerable exclusively to the electorate in the United Kingdom. That argument was rejected and lost, and the result is that, through the processes which we supported, we have been subject to laws directly enforceable here in the United Kingdom, created by a system of directions from the Common Market—now the European Union—which were converted into unchallengeable statutory instruments. As we now know, there are something like 4,000 still extant.

Given the time available, I will not explain what a pernicious effect all that had on the way in which statutory instruments have taken over primary legislation. But, importantly—I am stating the obvious, yet it is overlooked from time to time—what we call EU retained law is British law. It is our law; it came from an outside source and was introduced here to be enforced here, through our statutory and parliamentary system, but it is our law.

I cannot begin to imagine how the country as a whole would react if, instead of being able to dismiss it as EU retained law, we were able to look at this problem: we are going to give the Government the power to revoke all the laws relating to the environment and to employment—all the issues argued about in this House. Having done that, we will give them the power to bring in new ones, changing the way in which they operate. If we did not have this disguise of “EU retained”, I venture to suggest that no Government would be doing what this Government are doing about this particular group of laws. Until we appreciate that we are dealing with our law, which is subject to this Bill, we are not facing the reality of it.

Let us go to the most powerful argument in favour of Brexit: legislative processes should be returned to Parliament. Of course, that is the answer to “What happened when we entered the Common Market?” We will change it and go back to where we were. I do not think that “Taking back control” was just a happy slogan; it reflected a true constitutional principle. However—this is the heart of the amendment—it did not follow that this power should be given to a Minister of the Crown. It is as simple as that. The objective was not for the Executive to take back control; it was for Parliament to take back control. If we are going to honour the whole basis on which taking back control was designed to work, and was seen and appreciated to be going to work, we have to do what is required and return this power to Parliament.

The idea that we will suddenly cease to have secondary legislation is nonsense; we need secondary legislation. However, for these issues, we need proper examination and proper scrutiny. The proposal in this amendment is that we should have it. It does not propose—and could not, as I emphasised earlier—the survival of a single EU law. It could not, unless Parliament agreed. That is the objective of the amendment.

I understood the argument at Second Reading that this Bill does no more than was done to us by the EU, so why should this power that was given to the Common Market not be exercised by a Minister of the Crown? In effect, the argument was that we should just obey what we are told. However, those who advanced that argument had believed it to be wrong—a mistake and a constitutional aberration. If you believe that, surely the mistake that was made in 1972 should not be repeated here in 2023. I beg to move.

[Lord Lisvane (CB)]

My Lords, I will speak to Amendment 141A in my name, which has cross-party support, for which I am most grateful. Noble Lords in all parts of the Committee have been fiercely critical of the cut-off date. However, even if the present draconian date is replaced with something a little saner, the task of assessing and taking decisions on so many instruments will be huge.

My amendment, like several others in this group, as the noble and learned Lord, Lord Judge, has remarked, is designed to give Parliament a say in that process. As many noble Lords on both sides of the issue acknowledge, some of these instruments will be of no great significance. But there will be many of much greater weight, whose survival, whether in their original or an amended form, will be of huge importance to our fellow citizens. There will of course be instruments, as the noble Lord, Lord Deben, pointed out in his lapidary intervention on the first day of Committee, whose survival unamended will be almost a matter of course because we would not want to get rid of them—nobody would.

In this group, Amendments 43, 50, 62A and of course the amendment we are now specifically debating seek to give an active role to Parliament in an otherwise Executive-dominated process. My amendment goes a little further in providing for a substantial parliamentary assessment—including whether there has been adequate consultation—and for a process of suggested amendment, as part of what one might call this triaging activity. It does not deal with the unannounced repeal, which is a real problem. It could easily be adapted to do precisely that on Report, if that were acceptable. Of course, the amendment of the noble and learned Lord, Lord Judge, does that.