Retained EU Law (Revocation and Reform) Bill (First sitting)

Alex Sobel Excerpts

Committee stage
Tuesday 8th November 2022 Public Bill Committees

[Mr David Jones (Clwyd West) (Con)]

Q Good morning, Sir Stephen. The Bill abolishes the principle of the supremacy of retained EU law. Do you think that that is the right course?

Sir Stephen Laws: Yes, I do. I think that that is part of the confusion. If we are going to work out what the law means, it is important that the system for retained EU law should fit the system that we have for all other law, which is that the latest views of Parliament should count.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Q In your initial response, you said that we should replace the laws quickly. In your view, with 2,100 or so regulations, how quickly can Parliament include those laws in UK law?

Sir Stephen Laws: I did not intend to imply that every one of the laws that will disappear needs to be replaced. A rational approach is to say that everything will cease to have effect unless we replace or retain it. There is a fallacy around legal reform that was criticised by Cass Sunstein, the American jurist and adviser to President Obama, which is that the law is very fond of the status quo: the law thinks that if we know the law already, changing or removing it must be less clear. I think that the status quo is something that needs to be justified just as much as any proposal for change needs to be justified.

We have had six years to look at all this law and to decide what of it is so valuable that we need to keep it. If people are now not able to defend specific bits of the status quo that they think are important, it is likely that they never will be able to. People will keep relying on the fact that it is the law already and must be clearer than a change, but to say that we should not change law because change is always more uncertain than keeping things the way they are is an argument against all legislation. We might as well wind up Parliament all together if we are to pursue that argument.

[Alex Sobel]

Q At the moment, it is important for business and the finance sector to have clarity in the law, which to an extent we get from retained EU laws. With the sunset clause and the lapsing of so many regulations, the concern is that there might be a lack of certainty, so that people are unclear what they will get when they invest. That is particularly the case in my area as shadow Minister with responsibility for nature and the environment. Is that a concern we should take on board?

Sir Stephen Laws: I think you need to be concerned about it, but first, you have to exclude from the equation the idea that law becomes uncertain just because you are changing it; that is an argument against changing the law altogether. Secondly, you have to recognise that most law, but not all, is about either imposing duties on people to do things, or imposing duties on people not to do things. It is quite clear that repealing a law does not bring about anything that did not exist before. You do not, by removing a prohibition, require people to do what was previously prohibited; nor do you, by removing a duty, forbid people from doing what they were previously under a duty to do. For most purposes, if a law disappears, people can carry on behaving exactly as they did before until they see a good reason not to. It is just that they are not required to undertake that duty, or are no longer subject to a duty not to do something different. I am not sure that as much lack of clarity is produced by removing a whole load of law as is being suggested.

[Alex Sobel]

Q Even if the Bill has an extremely smooth run, we will have less than a year between Royal Assent and the sunset clause coming into force at the end of 2023. What are the implications of that? Should we not consider having a sunset clause that takes effect further down the line than the end of 2023?

Sir Stephen Laws: I do not think so, because as I have said, people have had six years to look at this law and see how much of it they think is important. Another year does not seem an unreasonable period in which to finalise their views on these things.

[Saqib Bhatti (Meriden) (Con)]

Q Thank you for your evidence, Sir Stephen. In 2016, a key reason for leaving the European Union was to re-establish the sovereignty of Parliament. Does the Bill help us to achieve that aim?

Sir Stephen Laws: Yes, because it removes a whole load of law that was enacted under a system that qualified parliamentary sovereignty by imposing obligations on the Government and, indirectly, Parliament, to produce particular forms of law. The Bill replaces that with a system in which all new law will be subject to questions, as to substance and form, in a parliamentary forum.

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[The Chair]

Thank you. I call Alex Sobel.

[Alex Sobel]

Q First of all, as a shadow DEFRA Minister, we were expecting 570 regulations. I would like to know whether we will have any more, but that is an aside. As I said to Sir Stephen Laws, I am concerned about the amount of time that we will have between now and the sunsetting at the end of 2023. You gave a very good explanation of how thousands of regulations will likely fall because of the lack of time, but much retained EU law will have implications for the operation of the Northern Ireland protocol, which I understand is within scope of the sunset. What is your view on the operation of the Northern Ireland protocol, if we go ahead and, as expected, hundreds or possibly even thousands of regulations are automatically revoked at the end of 2023 because of the lack of parliamentary, ministerial and civil servant time to effectively replace them?

Professor Barnard: The Financial Times reports, and indeed the Mail on Sunday report, which is where the story about the extra 1,400 pieces originated, just talk about 1,400 pieces; they do not talk about the fields in which they fall. By definition, however, given that DEFRA already has the largest group of retained EU laws—it is about 500 and something—DEFRA is very likely to be affected by the discovery of an extra 1,400 pieces.

On your question about the Northern Ireland legislation, as you know, annex 2 of the Northern Ireland protocol lists all the areas of EU law that will continue to apply in respect of Northern Ireland on a dynamic basis. Clause 1(5) of the Bill contains a rather general and ill-defined carve-out for Northern Ireland legislation, but it is not clear because, as you will be aware, the Northern Ireland Protocol Bill is also going through Parliament at the moment, which will turn off a large amount of the EU legislation that applies in respect of Northern Ireland—all the annex 2 legislation. Other bits of legislation still apply, particularly in the field of equality law and social policy, but you have this generic and rather vague exclusion in respect of Northern Ireland in clause 1(5).

Professor Young: I have nothing to add.

[Alex Sobel]

Q I wanted to put this question to Sir Stephen Laws, but I will put it to both of you. He talked about the fact that, were regulations sunsetted and not replaced, people would just carry on doing what they did before, but the regulations create a legal floor. Many DEFRA environmental regulations in particular create environmental floors, so people may not do what they did before. They will lower their standards because the regulations will go. Do you think that that is a real danger with the sunsetting and the revocation of the regulations?

Professor Young: I agree that it is a real danger, because obviously a business takes business-based decisions. If a particular regulation that was perhaps making you not as competitive disappears, you might find ways of not following the old regulation because it might give you a competitive advantage in certain situations. We need to think about this against the backdrop of the United Kingdom Internal Market Act 2020, which provides that, if a good can be marketed in one component part of the United Kingdom, it can be marketed in any other component part of the United Kingdom. That will also incentivise what we call a race to the bottom—the idea that you will have a competitive advantage if you are not following other regulatory burdens that might make your good less competitive. If you are aware that you do not have to follow that, not only will you decide not to do so, which might give you a competitive advantage, but it might put others at a disadvantage across the 2020 Act. You can sell your good across the UK because you are adhering to a lower element, and it is lawful to sell it in one component part. I think that there is a real risk that people will not follow the former rules and regulations.

Professor Barnard: I think Sir Stephen Laws takes a very benign view of human and indeed business nature. If there is an opportunity to save costs by not complying with rules, businesses will take it. The only thing I would add to that is that businesses that are doing most of their trade with the EU will still be required to comply with EU rules, otherwise they will not be able to sell their products on to the EU market. Business that are part of supply chains that feed into the EU market will still have to comply with EU rules. Perhaps he is right there that there might be voluntary compliance, but it is actually market-induced compliance rather than absolute voluntary compliance.

[The Chair]

Thank you. Colleagues, any further questions? Stella Creasy.

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[Peter Grant]

Q Mr Peretz, do you want to comment on my previous question? How much of the concern about the Bill is simply down to the very short time provided by the sunset clause? If we moved that clause further back, would it ease your concerns?

George Peretz: The short time is clearly a concern given the enormous work that will need to be done both in Whitehall and by Parliament if it intends to scrutinise any of this properly within a very short timeframe. A lot of this law is very important, a lot is very complicated, and quite a lot of it is both, so one should not underestimate the resource implications. Obviously, if you have a longer timeframe—until 2026, say—that resource could be spread over a longer period, and perhaps more efficiently.

There are other, wider concerns about the Bill and how it amends the application of some EU rules to retained EU law as it continues to operate, and about Ministers’ power to revoke and replace. Those are separate from the sunset clause concerns, but the sunset clause does interrelate with the question of Minister’s powers. One of the problems with the effectiveness of parliamentary scrutiny is that although one hears that Parliament has powers—in some cases via the negative or affirmative resolution procedures—the background against which it is being asked to approve legislation means that if it votes against that legislation, the sunset clause will apply and regulations disappear completely, rather weakening Parliament’s ability to do anything.

To take an example, if Ministers decided to keep the working time rules but rewrite them to make them less favourable to employees, and came up with the new regulations in November 2023, those rewritten regulations would probably be introduced under the affirmative procedure. However, when the House of Commons voted on them, Ministers would say, “You may not like these revised regulations very much, but if you do not vote for them, the alternative is that we will not have any regulations at all.” That weakens Parliament’s ability to control the exercise of ministerial power.

[Alex Sobel]

Q I will put this question to you, George, as it is something of a follow-up. You just gave a qualitative response about the sunset-clausing, but this is more of a quantitative question. I was not aware until Catherine Barnard and Professor Young pointed it out earlier that 1,400 additional pieces of legislation have been found. I have now found the article in the Financial Times, which states that

“A plan…to review or repeal all EU laws on the UK statute book by the end of 2023 has suffered another setback after the discovery of 1,400 additional pieces of legislation.”

We were aware of 2,100 pieces of legislation, but that is another 1,400, so we are now seemingly aware of 3,500, with a sunset clause at the end of 2023. Is that the end of it? Will it be 3,500 pieces of legislation or could there be more? How are we going to find and define all these pieces of legislation so that we know what law we are acting under? You have just described qualitatively how pieces of legislation will fall under the negative resolution procedure because they are going to be sunset-claused out. Quantitively, where do you think we are going to end up by December 2023?

George Peretz: One does not know. On your point about the legislation being discovered, like you I have read the story in the Financial Times. I do not know the background to it, but we drew attention in the Bar Council paper to the risk of things simply being forgotten. As that story shows, that is not a hypothetical risk. That is one reason why we suggested as a possible amendment to the Bill that the Government add a schedule that simply lists all the regulations that are going to be affected and if it is not on the list, it does not fall. It is very difficult to see the argument against that. Presumably, the Government want to know what is being repealed. One does not want to repeal things one does not know about. What would be the good of not evaluating the risk? It is very difficult to see why there would be an objection to listing everything out. Then everyone would know precisely what goes and what stays. That was one suggestion we put forward.

It is very undesirable to have the sunset clause—for all the work that is going to have to be done to be done effectively with a gun pointed at everybody’s head saying, “Unless you’ve done all this analysis within a very restricted time period, the rules will fall.” There is just endless room for mistakes.

One of the points we discovered when we were rewriting a lot of EU rules for the purposes of the withdrawal Act—which Eleanor knows very well about and can speak about in more detail—was that, as the legislation was being rewritten, it was discovered that there were problems with it. If we look down any of the lists of amended rules, as one might experience in practice, one normally finds that over the 2018 and 2019 period there were frequent amendments. As one version was done, it was found that there was a problem with it or something needed to be added, and another amendment was made. There just is not time within the process of this Bill for that amendment process.

There is also a technical problem. It is not clear that there is the power once a regulation has been rewritten for Ministers then to say, “Oh dear—we realise that this regulation contains the following defects; we would quite like to amend it now.” I am not actually sure that the Bill contains a power for Ministers to do that. That is a bit of a problem.

Mark Fenhalls: I agree with what George just said. You will know far better than we do the stresses and strains on you as individual constituency MPs attempting to deal with those issues, and what in truth MPs can do as individuals scrutinising material like this. Ministers will know how pressured their civil servants are. I know from my dealings with civil servants how afraid they are of the possible forthcoming cuts. It is very difficult as an outsider to contemplate how the civil service can begin to cope with an assessment of what all this law involves.

The concluding point would be that if you have the list that George spoke to, that is a foundation for a proper ministerial division of responsibility as to who is doing what—which regulations affect which ministries and therefore what should our plan be? By the time we get through the end of next year, we might have dealt with financial services, perhaps, and with regeneration and levelling up, perhaps, because that covers environment and habitat and planning, but with that list and that firm foundation, you can make sensible evidence-based decisions about what to do. The frightening thing about the FT story—again, I know nothing about where it has come from—is the thought as to the unintended consequences, which nobody can possibly want, of not knowing what is out there. That is why, in a sense, a framework Bill is so flawed in its approach, because we do not know what we are dealing with.

[The Chair]

I have three questions to get in before 11.25 am, so let us have quick questions and quick answers, please.

Retained EU Law (Revocation and Reform) Bill (Second sitting)

Alex Sobel Excerpts

Committee stage
Tuesday 8th November 2022 Public Bill Committees

[Mr David Jones (Clwyd West) (Con)]

Q I will ask you about the principle of the supremacy of EU retained law, on which we had some conflicting evidence this morning. As you know, the Bill abolishes that principle. Do you think that it is a good thing that it does so, or are there any dangers inherent in that?

Sir Richard Aikens: You start from the fact that supremacy no longer exists unless it is retained by UK law. Half speaking as a lawyer, but I suppose half speaking as a commentator, I do not myself see why there should be any part of our UK law that is regarded as more supreme than another, unless specifically identified by Parliament as being necessary for some reason. In many other countries, there is the principle of the constitution, which is inevitably supreme and cannot be crossed; we do not have that and have never had that in our law, except perhaps in very specific circumstances.

In general, therefore, I would say that the whole idea of supremacy should be done away with, unless there is some specific reason in specific areas of law why it is necessary to retain it. For my part, I cannot think of anything that immediately comes to mind that is not already dealt with in our law—I am thinking in particular of human rights.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Q My question follows on from what Jack was talking about earlier: the lack of parliamentary scrutiny and how it will be up to Ministers to make decisions on what we now understand might be as many as 3,500 individual pieces of EU legislation. Jack, what would you deem to be an appropriate level of scrutiny? The negative procedure for statutory instruments really means no parliamentary scrutiny at all—I think Stella mentioned that 1979 was the last time we managed to overturn one of those in the House. What would be an appropriate way, considering the number and importance of some of the regulations?

Jack Williams: I would start by not necessarily having what George Peretz KC calls the gun to your head, so that by the end you do not have time to scrutinise, because if you did take the time to scrutinise it, you might be left with the choice on the last day of what is there or nothing at all. That is obviously a difficult position for Parliament to be put into, having to save its own law somehow without a set procedure.

A direct answer to your question, however, is more scrutiny from Committees. One can imagine, for example, a Committee that was set up specifically to analyse all the changes that are coming to certain practice areas, with consultation and independent experts assisting—much like this Committee format. There is also the legislative reform order super-affirmative procedure, which builds and bakes in consultation and I think extra time in the process—the downside is exactly that last point, which is that it leads to delay. If you have a cliff edge of 2023, it is not particularly suitable, but it might give some ideas for inspiration. It is under a 2006 Act, but I think it has been used fewer than 50 times, precisely because it takes so much time and involves so much scrutiny—but if you are looking for an example.

[The Chair]

We have 15 seconds, Marcus.

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[Mr Jones]

Q Dr Fox, you postulated earlier that sifting committees might be established to assess whether individual pieces of retained EU law should be retained or dispensed with. Given the volume of retained EU law that we are aware of—and given that there may well be more—how long a process do you think that would be, and do you not think it would take up a huge amount of parliamentary time?

Dr Fox: It will probably not be that dissimilar to what we were talking about in terms of what we went through with the Brexit process. On sifting, the process proposed is that all negative instruments will be laid before the sifting committee in draft form. They would have 10 sitting days to decide whether to upgrade it to the affirmative procedure. The implications for parliamentary time will depend on what their decisions and recommendations are and whether the Government accept them, and therefore whether there has to be a delegated legislation Committee.

So yes, the potential is for an increased number of delegated legislation Committees. The reality is that doing all that before December 2023 is clearly nigh-on impossible; if your deadline is 2026 or 2028 and you smooth it out over time, then it is achievable. Again, it will depend on what the numbers are and what proportion of negative and affirmative instruments there are, depending on what the Government propose to do.

[Alex Sobel]

Q I could get into a debate about the numbers, but we have explored that quite a lot. I have a number of concerns about clause 15 and the sort of power grab that it makes. Ministers debated Henry VIII powers at length during the Brexit legislation and the EU Act. I am also concerned that clause 15 says that Ministers should not “increase the regulatory burden” when changing retained EU law. Last night, I was at a rewilding reception where the Minister of State, Department for Environment, Food and Rural Affairs, the right hon. Member for Sherwood (Mark Spencer)—he must get a lot of outings in this Committee—said that sometimes they will improve regulatory arrangements. But clause 15 says that they cannot. Can they or can they not? If a Minister tells the sector informally that he can do that—perhaps we should ask a written question to see if he will say it formally—it creates uncertainty in the minds of non-governmental organisations, businesses and everyone else about the direction of travel in certain areas where it is intimated that the regulatory burden could be increased. My reading of clause 15, however, is that Ministers cannot increase the regulatory burden.

Dr Fox: It would depend on what the enhancement was—improvement, but if the improvement implied obstacles to trade or innovation, financial cost or administrative inconvenience, then no, it could not. It is hard to see how the kinds of enhancements that have been talked about—for example, in relation to animal welfare—would not necessarily imply an administrative burden; they therefore could not be done under this provision. That said, my understanding is that the former Secretary of State who was the architect of the Bill took the view that it was not appropriate for imposing new regulations through delegated legislation. That is not a bad thing, but the problem is that the nature of the exercise does not work in that context, because of the cliff edge.

Sir Jonathan Jones: May I add a brief comment? First, the power in clause 15 is undoubtedly very wide, so the Minister has huge discretion in deciding what is appropriate. The test about regulatory burdens is quite a slippery test, not least because the assessment is whether the overall effect of the change is to increase regulatory burden. All sorts of factors might weigh within that burden. It may be that the Minister decides to increase some procedural burden and reduce some other, and makes the assessment that overall the effect is to reduce the burden. Within that, however, could be all sorts of complexity. It is very difficult to predict in the abstract exactly how the power might be used.

[Paul Blomfield (Sheffield Central) (Lab)]

Q Sir Jonathan, you talked about the difficulty for civil servants simply in identifying all the laws that might be affected. Drawing on your experience as a Government lawyer, how do you think that the civil service will be able comprehensively to review and revise all the laws that they can identify by next December?

Sir Jonathan Jones: They will all be doing their best, I have no doubt. The example we have is the one already mentioned, which was the process gone through under the 2018 Act to identify the laws that were going to be carried forward as retained EU law and to work out what changes to those were necessary to make them work. As I said, that was complicated enough, and some things were either missed first time around or needed to be amended more than once, because they were not got right.

I was in the civil service for the first part of that process, and I helped to set it up and saw it happening. Of course civil servants do their best—Government lawyers were drafting like crazy to get the relevant regulations done in time, and by and large I think that did work. I am sure some things were missed, but the consequences for missing something then was not that we had a great gap in the law, but that we would have a technical flaw that later on could be cured. This is of a different order, but I will not repeat myself.

What can I say? They will be doing their best. There must be a risk that things will be missed, and the timescale set for doing this is much tighter than the time that was taken to do the previous exercise, hence the concerns you have heard us express.

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[The Chair]

Thank you very much to our next set of witnesses. We are starting three minutes early, but we expect a Division at about 4.15 pm. If that is the case, we will try to end our session when the Division bell rings. Will you please all introduce yourself for the record?

Ruth Chambers: Good afternoon. I am Ruth Chambers. I am senior fellow at the Green Alliance, representing the Greener UK coalition of environmental groups.

Dr Benwell: My name is Richard Benwell. I am from Wildlife and Countryside Link, which is a coalition of 67 environmental and animal welfare charities.

David Bowles: I am David Bowles. I am head of public affairs and campaigns at the RSPCA, and I am representing the animal welfare stance.

Phoebe Clay: I am Phoebe Clay. I am co-director of Unchecked UK. We are a non-partisan network of 60 organisations making the case for strong environmental and social protections.

[Alex Sobel]

Q These regulations cover huge areas in the DEFRA brief, including habitats regulations, environmental protections, and animal welfare and standards. First, I would like to hear your assessments of the Bill’s implications. Secondly, during Brexit a huge number of staff had to be drafted into DEFRA from the Environment Agency, Natural England and other Government agencies—leaving a vacuum in those agencies—to support the Department on those issues. Now we will have the EU retained law. Does DEFRA have sufficiently qualified staff to examine laws across animal diseases, air pollution, water quality, chemical safety, the habitats regs and all the rest of it to cope with what is coming? As Link, the Green Alliance and others have said, we are looking at 570 regulations, although it might be more now, given the work of the National Archives; maybe we will get up to four figures. What is your assessment and can DEFRA civil servants cope? I will start with Richard.

Dr Benwell: Thank you so much for the question. Link has given evidence to lots of Bill Committees over the years—I have given evidence to some of the members of this Committee—and I do not think we have ever been moved to say at this stage in a Bill that it should simply be withdrawn. That is our view of the Bill at the moment.

We see the Bill playing out in perhaps one of three scenarios. In the most benign scenario, you could imagine a situation where the whole body of environmental EU retained law is simply restated and moved across on to the UK statute book as assimilated law. Even in that most benign scenario, we see a situation in which Parliament and the civil service have spent huge amounts of time, likely costing millions of pounds, in delivering the shift across. Even more importantly, we see a huge opportunity cost in terms of lost time to actually make environmental improvements. You said, Mr Sobel, that DEFRA has already had some capacity crises, and it is true. All sorts of important DEFRA agendas—the environmental principles, the environmental targets, the river basin management plans—and a whole raft of pieces of vital DEFRA work being proposed by this Government are now extremely delayed, and that would only be made worse by that scenario.

The second scenario is the cliff-edge version of the Bill, where you imagine huge swathes of potentially vital environmental laws falling off the cliff edge at the end of the sunset. I do not think any of us imagine that the Government will knowingly let things like the habitats regulations, the water framework directive or pesticides rules hit the buffer. I do not think anybody thinks that is the intention, but the fact is that we imagine there will be mistakes along the way. If you look at the process following the European Union (Withdrawal) Act 2018, there were lots and lots of wash-up SIs at that point from all the mistakes that were made by DEFRA alone—simply to get through the legislation at that point. With this version, so much more is on the table. Things are likely to be missed. Mistakes are likely to be made.

The third scenario is one of change and ministerial fiat to mess around with things along the way. The delegated powers in the Bill are some of the most extraordinary that I have ever seen. They give Ministers the power to change things almost without scrutiny along the way. The third scenario, and probably the most likely, is that we see elements of law being cherry-picked, either to be taken out or changed over the next 12 months, without any opportunity for people to amend, scrutinise or improve.

All three are really terrifying scenarios, and we can talk about why they come through the Bill later, but our view at the moment as Wildlife and Countryside Link is that the Bill is irredeemable and should be withdrawn.

[Alex Sobel]

Q Ruth, do you have a view on assessment and capacity on behalf of your members of the Green Alliance?

Ruth Chambers: Absolutely, and I endorse what Rich has just said. One other implication of the Bill relates to environmental law and policy making across the rest of the UK. I know we are very much focused on Whitehall today, but how, for example, will this process be conducted in Northern Ireland without a functioning Government? How are stakeholders going to be involved? That is not clear to us. We know that the Department of Agriculture, Environment and Rural Affairs in Northern Ireland has identified 600 pieces of rule that pertain to it as a Department. Again, where is it going to find the capacity to deal with that?

In relation to Scotland, there is an interesting angle, because the Scottish Government have a legal commitment to keeping pace with the EU. What is the interplay between that legal duty and the programme of rule in relation to the Bill and the Scottish Government? We note the concerns raised by Senedd Cymru, the Welsh Parliament, that the Bill risks imposing a regulatory ceiling on ambition and distracting from programmes in Wales. Those are some additional impacts to the ones identified by Richard.

I will come back to DEFRA, which is where we are perhaps more qualified to speak, and look at some numbers for a minute, in case that is of assistance to the Committee. We have heard talk of the previous EU exit statutory instrument programme, which we were involved with. Looking at the numbers of SIs involved in the two years of that programme, there were 108 in 2018 and 161 in 2019. That was a huge undertaking for the Department. As you have just said, it took a lot of resource from outside DEFRA, which put in some really innovative consultative mechanisms to help it to cope with that number of instruments.

By contrast, under this programme, the dashboard shows that DEFRA has 570 published pieces of REUL, but that is not the final number. We understand from the Department that the number is 835 and counting. That is not yet a published figure, and obviously we will need to have it confirmed by the Department, but that is a huge increase. The EU exit SI programme will pale into insignificance when you look at those numbers, which will require resource housed in legal capacity and technical policy capacity, and will require asking the expert stakeholder community as well. There is a lot of work to be done.

[The Chair]

I just want to intervene before the other witnesses give their answers. This is all very good stuff, but the answers will need to be quite a bit shorter or we will run out of time.

[Alex Sobel]

Q Do you want to come in on the animal welfare aspect, David?

David Bowles: I concur with everything that has been said. Two years from now will mark the 50th anniversary of the first ever animal welfare law passed at the EU level. The RSPCA has worked out that since that date in 1974, we have had 44 different animal welfare laws.

I will make one additional point. Obviously, animal welfare plays out very resonantly with the public and, indeed, with the Government. The Johnson Government came in with five different manifesto commitments on animal welfare and a pledge to improve animal welfare. It is quite ironic that the Bill, in Richard’s cliff-edge scenario, could get rid of those 44 pieces of legislation.

An additional issue that I do not think the Committee has looked at is that of devolution, which Ruth touched on. As you are probably aware, the Senedd yesterday put out advice on the legislative consent motion to reject the Bill, which it does not believe is good for the Welsh Government. Curiously enough, although Ministers of the Crown have the chance to delay the Bill’s deadline from 2023 to 2026, that option does not apply to Welsh Ministers.

Most animal welfare legislation is devolved—we have worked out that only 13 of the 44 pieces of legislation are reserved, while the rest are devolved—so it is up to those in Wales to decide what to have in their country, such as the battery hen ban and a vast array of other farm legislation, including on the live transport of animals. They will have all those things only until 2023 because Welsh Ministers have no option to extend that deadline. Only Ministers of the Crown have that option, and that really worries me.

[Alex Sobel]

Q That is quite stark, isn’t it? We are talking about 10 months—maybe 11 if we are lucky—to look at 44 pieces of legislation just for animal welfare, as well as all the devolution issues. Ruth, you were involved in this last time— albeit with far fewer SIs—so who else should be consulted for that process? It affects a huge number of different organisations, including yours, vets, businesses, the National Farmers Union, the farming community, academics and so on, and then there are the agencies—the Environment Agency, Natural England or Forestry England or whatever it may be—which may or may not be pulled into DEFRA to deal with this. Who else needs to be pulled in, and what level of support and capacity would those organisations have for such a big programme? Perhaps you could talk about your organisations first before talking about others.

Ruth Chambers: All the groups you mentioned would be immensely helpful to the various Departments in identifying and commenting on the body of REUL that belongs to them. The important question is how such consultation should be conducted. For us, it should be hardwired from the outset and conducted in a transparent and structured way. Navigating the complexities and time constraints of consultation will place a huge burden on businesses and civil society. The more that that can be signalled in advance, the easier it will be for us all.

Last time around, the Department put in place a reading room on statutory instruments, for example. That was a helpful vehicle that gave stakeholders of all persuasions some extra time to look at the statutory instruments in question. It was just one mechanism that was put in place, but that sort of thing probably is not sufficient given the scale of the work that we are talking about. The more structured the engagement can be, the better, but it will be a big undertaking. It goes back to clarity on just how many pieces of law we are talking about, so that we know which laws are in scope and which are out of scope.

[Alex Sobel]

Q Phoebe, your organisation is used to doing this sort of work. What is your capacity and what do you think?

Phoebe Clay: Looking further from that list, one important facet of that process is missing, which is people—the public. This is not an expectation of the public, certainly not during the referendum and certainly not in the past five years. What we have done a lot of is talk to people—your constituents—about their attitudes and what they value in relation to regulations. We find very little appetite for a process of this kind. We have been doing polling consistently over three years; all our polling suggests that a good two thirds of the British public think we should retain or, indeed, strengthen the level of standards that we had as members of the European Union. We find very little evidence that people see Brexit as an opportunity to deregulate—quite the opposite. People want to play to a sense of British standards, of the march of progress towards a better—and more—level of protection. In terms of what we value in the UK, this goes very deep. I would echo what my colleagues have said in relation to transparency and having in place a process whereby there is a level of democratic engagement with the Bill.

[Alex Sobel]

Q I want to delve down with an example—particularly as I am a shadow DEFRA Minister—and also declare my interest as the parliamentary champion for white-clawed crayfish. One of the regulations we are going to have to look at is the Invasive Species (Enforcement and Permitting) Order 2019. I am sure you are all well aware of that; Richard is nodding his head, so I will come to him first. That order sets out and underpins the enforcement regime for invasive species such as the American signal crayfish, which threatens my crayfish; pennyworts; killer shrimps; and so on. We dealt with that in the EAC and I think that Richard was present at that hearing. That order is the only piece of current legislation that prevents the introduction of invasive species, and it is part of retained EU law. I want to ask Richard how many of our important regulations that support nature and animal species are supported purely through retained EU law? If that order, and others, are sunsetted and we do not have the capacity or time to get to them before December 2023, what will then happen in terms of our ability to stop invasive species coming in, and what other effects could there be?

Dr Benwell: As you say, that order is the main plank of action against invasive species. If we were imagining that the Bill is about reducing costs, far from it. If we were to lose that piece of regulation—the cost of invasive species in the UK on businesses at the moment is already in the billions. I think the sum is about £4 billion per year at the moment for the cost of invasive species on, for example, water companies. That would only multiply if we were to see those regulations lost or weakened. There are several areas where those kinds of rules exist only in retained law. For example, think of air quality threshold standards, or provisions such as the habitats regulations for protecting rare species or for providing the gold standard of protection for habitats. Think of the environmental impact assessment and the strategic environmental assessment rules. In some areas there is overlap, but in each of those areas EU retained law adds a really important element, over and above what existed in domestic law.

In some ways, it is a bonkers distinction. We have the term of “assimilation” in the Bill, as if we are taking something that is currently alien and making it British. It is already UK law; it has been on our statute book for a very long time. It has been assimilated in so far as businesses and people know how to work with it, expect it to operate and feel as if it is part of our law. There are loads of areas where the law can be improved, but simply choosing to tackle this block as if it were a special thing is a bad way to target areas for improvement. We could do much better through consultation, and by doing proper impact assessment of the laws that we know need improvement.

[The Chair]

Thank you. We turn to the Minister now.

Retained EU Law (Revocation and Reform) Bill (Third sitting)

Alex Sobel Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[Ms Ghani]

If I make progress, maybe I will answer some of the hon. Gentleman’s questions.

A question was raised about whether this was the only account of retained EU law. Throughout the process of the retained EU law review, we have been working closely with the National Archives. There was a figure in the Financial Times, but we have yet to verify all those items. The number covers all existing legislation, but some of it may have already outdated itself as legislation has been updated.

On the question about management and cost, the retained EU law dashboard was built by officials from the Brexit Opportunities Unit and the Cabinet Office using the software Tableau. It was created with no additional cost to the Government. Hopefully, that covers some of the conspiracy theory about where the information is kept.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Will the Minister give way?

[Ms Ghani]

If I can continue, I will hopefully finish on some of the questions that were raised, such as the one about working with Parliament. We are committed to working collaboratively with Parliament to deliver the programme, as we did with our programme of statutory instruments for EU exit. I do not see why we cannot build on that approach as well.

The question was raised about international obligations. The UK Government are committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the withdrawal agreement, the Northern Ireland protocol and the trade and co-operation agreement after the sunset date. The UK Government will make sure that the necessary legislation is in place to ensure the terms of the withdrawal agreement are upheld after the sunset date, including regarding citizens’ rights and the Northern Ireland protocol. The aim of the Bill is not to alter the rights of EU nationals, which are protected or eligible to be protected by the relevant citizens’ rights provisions contained within the withdrawal agreement.

I do not buy the Opposition argument that somehow we will take decisions that mean we have a different set of values to Brussels—lower standards, making our constituents less safe and taking away their rights. That is not who we are as elected officials. We are all working together in the same room and many Opposition Members know that we share the same values as they do. Scaring people that we are going to do something that takes away those rights is slightly absurd.

Clause 2 also allows for extensions to the sunset date for specified instruments or a specified description of retained EU legislation where we have plans to amend and reform but need slightly longer to do so. Everybody will recognise and welcome that. Introducing a schedule that requires a listing of all retained EU law to be revoked is unnecessarily burdensome and not a good use of civil service and parliamentary time when preservation would still be necessary.

Retained EU Law (Revocation and Reform) Bill (Fourth sitting)

Alex Sobel Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I beg to move amendment 74, in clause 1, page 1, line 9, at end insert—

“(2A) Subsection (1) does not apply to the following instruments—

(a) The REACH Regulation and the REACH Enforcement Regulations 2008,

(b) The Conservation of Habitats and Species Regulations 2017,

(c) The Conservation of Offshore Marine Habitats and Species Regulations 2017,

(d) The Urban Waste Water Treatment (England and Wales) Regulations 1994,

(e) The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010,

(f) The Bathing Waters Regulations 2013,

(g) Water Environment (Water Framework Directive) (England and Wales) Regulations 2017,

(h) The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (also known as the Farming Rules for Water),

(i) The Marine Strategy Regulations 2010,

(j) The Marine Works (Environmental Impact Assessment) Regulations 2007,

(k) The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017,

(l) The Plant Protection Products Regulations 1107/2009,

(m) The Sustainable Use Directive Regulation (EC) 396/2005,

(n) The National Emission Ceilings Regulations 2018,

(o) Invasive Alien Species (Enforcement and Permitting) Order (2019),

(p) Directive 2010/63 on the protection of animals used for scientific purposes,

(q) Directive 1999/74 laying down minimum standards for the protection of laying hens,

(r) Regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof, and

(s) The Welfare of Animals (Transport) (England) Order 2006.”

This amendment would exclude certain legislation which provides for environmental protections from the sunset in subsection (1).

[The Chair]

With this it will be convenient to discuss amendment 77, in clause 15, page 17, line 5, at end insert—

“(1A) Subsection (1) does not apply to the following instruments—

(a) The REACH Regulation and the REACH Enforcement Regulations 2008,

(b) The Conservation of Habitats and Species Regulations 2017,

(c) The Conservation of Offshore Marine Habitats and Species Regulations 2017,

(d) The Urban Waste Water Treatment (England and Wales) Regulations 1994,

(e) The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010,

(f) The Bathing Waters Regulations 2013,

(g) Water Environment (Water Framework Directive) (England and Wales) Regulations 2017,

(h) The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (also known as the Farming Rules for Water),

(i) The Marine Strategy Regulations 2010,

(j) The Marine Works (Environmental Impact Assessment) Regulations 2007,

(k) The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017,

(l) The Plant Protection Products Regulations 1107/2009,

(m) The Sustainable Use Directive Regulation (EC) 396/2005,

(n) The National Emission Ceilings Regulations 2018,

(o) Invasive Alien Species (Enforcement and Permitting) Order (2019),

(p) Directive 2010/63 on the protection of animals used for scientific purposes,

(q) Directive 1999/74 laying down minimum standards for the protection of laying hens,

(r) Regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof, and

(s) The Welfare of Animals (Transport) (England) Order 2006.”

This amendment would exclude certain legislation which provides for environmental protections from the power to revoke without replacement in subsection (1).

[Alex Sobel]

We now come to the impact of the Bill on laws that fall within the remit of the Department for Environment, Food and Rural Affairs. The Government’s dashboard lists only 570 laws that DEFRA identified as falling in scope of the Bill; that figure alone would make DEFRA the most heavily impacted Department in Government. However, we understand that DEFRA officials have privately revealed that more than 1,000 individual laws are at risk of being revoked by the Bill’s sunset clause. How do the Government plan to resource DEFRA to enable officials to properly examine each of these laws in the time remaining before the sunset sweeps them away?

The Department is already beset by delay and overwhelmed by consultation responses. The supposed Government priorities of environmental action and animal welfare are long past their due dates; on 31 October, for example, the Government missed a legal deadline to publish environmental targets. Instead of clogging up the entire Department with months of pointless work reviewing lists of laws that no one wants to drop, the Government should prioritise their environmental commitments in the Environment Act 2021 and the 25-year environment plan, including the actions and policies necessary to deliver nature’s recovery by 2030.

The sample of 19 laws listed in these amendments cover a vast range of important policy areas about which the public feel passionately. They include animal welfare, water quality, the treatment and discharge of sewage, the protection of wildlife, the safe use of chemicals and pesticides, the protection of human health from the impacts of air pollution, the use of animals in scientific testing and the prevention of the spread of animal diseases, such as the bird flu that is devastating poultry businesses and our precious wild bird populations. The regulations listed in amendments 74 and 77 should therefore be seen as a non-exhaustive list of the key examples of law that it is vital to retain to maintain standards. The regulations listed in the amendments represent some of the most prominent environmental protections, but many potentially vital but not always easily identifiable protections will remain at risk.

A definitive list of environmentally important measures does not exist. One could say that the Government have been naughty by nature, but I would not do that. However, we know that it is even more extensive than the comparable list of the retained EU law that provides critical protections for workers’ rights and conditions, which we have debated in relation to amendments 73 and 76. The inventory of workers’ rights legislation is shorter and more easily identified, so there are important differences between the three domains of rights and protections highlighted by our amendments.

The environmental retained EU laws covered by the Bill include major protections that we rely on for clean air, clean water and safe food, as well as providing crucial safeguards for a struggling natural world. Under the Bill, critical environmental protections face the prospect of being revoked without replacement or replaced by weaker regulations, because of the extremely limited time available to consider and draft workable replacements before the application of the sunset clause, and because of the lack of parliamentary oversight and public consultation—those are the focus of other amendments.

The Government have said that they are committed to maintaining environmental protections. For instance, the former Business Secretary, the right hon. Member for North East Somerset, said that

“the Government is committed to maintain all the environmental protections that currently exist and met a number of the environmental lobby groups to confirm this”.

I will go into a little more detail about how we believe the Bill will completely undermine those commitments and place at risk the safety of chemicals.

REACH stands for the registration, evaluation, authorisation and restriction of chemicals. Under the European Union (Withdrawal) Act 2018, the EU REACH regulation was brought into UK law on 1 January 2021 and is now known as UK REACH, but the UK and EU REACH regulations operate independently from each other. Most industries must therefore comply with both sets of regulations if they want to trade in both the UK and the EU. Furthermore, UK REACH regulates only chemicals placed on the market in GB, and, under the terms of the Northern Ireland protocol, EU REACH continues to apply in Northern Ireland.

The HSE website explains that REACH is

“a regulation that applies to the majority of chemical substances that are manufactured in or imported into Great Britain (GB)…This can be…A substance on its own…A substance in a mixture, for example ink or paint”

or a

“substance that makes up an ‘article’—an object that is produced with a special shape, surface or design, for example a car, furniture or clothes.”

The chemicals legislation in the amendments works closely with the 2008 classification, labelling and packaging of chemicals regulations, which are about the responsibility for identifying and communicating hazardous properties of chemicals. That legislation also works with other chemicals regulations listed on the Government dashboard, such as the Toys (Safety) Regulations 2011 and the Cosmetic Products Enforcement Regulations 2013, which restrict the use of certain chemicals in those products.

REACH places restrictions on the use of more than 2,000 harmful chemicals on which it has taken more than 13 years to legislate at EU level. That has helped to drive innovation in the development of safer alternatives and delivered considerable benefits for our health and environment. Lifting or weakening those restrictions could result in the import of everyday products—from sofas and paint to cosmetics and toys—that contain chemicals that are linked to cancer or affect intellectual development, and that are restricted in the EU but sold in other parts of the world.

The UK was one of the driving forces behind the creation of EU REACH in 2006. That was acknowledged during proceedings on the Environment Act by the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Taunton Deane (Rebecca Pow), who said that

“we were instrumental in designing the whole process in the first place, which we kicked off during our presidency in 1990.”––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]

Perhaps the Minister who is with us today will argue that revoking REACH would nevertheless realise Brexit opportunities. However, businesses are not asking for the revocation of REACH; quite the reverse.

Last week, the chief executive officer of the Chemical Industries Association said:

“We are not in the market for any regulatory bonfire”.

Far from helping to drive economic growth—that is the intention behind the Bill—throwing UK rules into doubt will create uncertainty and instability for businesses, and it will very likely deter investment. Businesses will essentially be left with three costly options: to comply with two regimes at once; to end exports to the EU; or to remain aligned to EU standards, in which case why attempt to deregulate UK REACH?

If Ministers think that the Bill is needed to provide the flexibility to adapt the regulations to a UK context, they seem not to realise that legislative powers for updating and adapting REACH for a UK context already exist under schedule 21 of the Environment Act. Those Environment Act powers include important safeguards for public health and the environment that the Government have not necessarily thought to include in the Bill. Furthermore, work to review and adapt REACH to a UK context has been ongoing pre and post EU exit. The Bill will pointlessly divert that work. For example, we are still waiting for a UK chemicals strategy, which was first promised in the 25-year environment plan more than four years ago.

Without a strategy, the various parallel Department for Environment, Food and Rural Affairs reviews lack strategic direction. A strategy is urgently needed to set out much-needed measures to improve the regulation to address our growing chemical pollution crisis. Why does REACH need the amending powers in the Bill, unless it is to deregulate and to lower standards? The hon. Member for Taunton Deane previously assured us that we would maintain

“high standards of protection for the environment, consumers and workers”

while having

“the autonomy to decide how best to achieve that for Great Britain.”––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]

The status quo in the Environment Act already does that, but the Bill could only be designed to usher in low environmental standards.

Labour tabled an amendment to provide a non-regression mechanism to schedule 21 powers in the Environment Bill. The response from the hon. Member for Taunton Deane was that there was no intention to regress. She pointed to proper safeguards in the powers to ensure that, including protected provisions

“that cannot be changed…relating to the fundamental principles of REACH”.––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]

Those principles include core principles of good chemicals regulation such as “no data, no market” and the precautionary principle. It is difficult not to see the “malign opportunities” that she rejected when she highlighted the safeguards in the powers two years ago. If the aim is a sensible review and updating of our laws, the Government should allow her Department to get on with it.

We already know that there is a serious lack of capacity and expertise in the HSE to do its job. That has resulted in declining safety standards on chemicals in the UK. A recent NAO review found that a lack of operational capacity and loss of data is having a negative impact on HSE’s ability to assess risks and carry out its work, and that it would not be able to achieve its long-term objectives unless that were addressed. How can the Government even contemplate piling even more work on to the HSE’s already overstretched workforce by requiring it to review and rewrite the retained EU law elements of our chemicals regulation?

On top of that, Ministers seem to completely ignore the additional burden on UK business. The pressure on HSE already results in UK REACH considering far fewer protections for health and the environment from harmful substances. For example, the UK has initiated only two restrictions on hazardous substances compared with the five that have been implemented in the EU since UK exit, and a further 20 are in the EU pipeline. Specifically, it has rejected 10 protections that have been targeted by its European counterpart. That includes a restriction on concentration limits for eight polycyclic aromatic hydrocarbons used as infill and in loose form in synthetic football pitches and playgrounds.

[Stella Creasy]

Say it again!

[Alex Sobel]

You will have to intervene if you want me to say it again. Those chemicals are linked to an increased cancer risk, putting our children’s health at risk.

The protective gap between the UK and the EU could become a chasm over the years ahead as the EU takes forward its chemicals strategy for sustainability. That is likely to result in the dumping of harmful chemical products on the UK market, with the divergence harming UK businesses.

There is a severe lack of chemical safety data. This is the central challenge of a separate, stand-alone system and it still has not been resolved. Deadlines for companies to submit vital safety data on the UK market are due to be put back for the second time, while the chemical safety database will not be complete for eight or nine years. The Government’s own latest figures estimate that the chemicals industry faces £2 billion of post-Brexit red tape—twice the cost of initial estimates. During proceedings on the Environment Act, Labour pushed for a minimum standard of protection under UK REACH. We have major concerns that the UK system is already considerably weaker than EU REACH, and the Secretary of State has taken sweeping powers to further reduce the level of protection for the public and environment from hazardous chemicals.

I will now turn much more briefly to other important environmental protections, a sample of which are listed in the amendments. The Government have been dragging their heels on protecting our animals for years, with lots of press releases but little action. Many of the animal welfare measures in the last Queen’s Speech were lifted directly from Labour’s animal welfare manifesto, but the Government have repeatedly stalled and delayed on taking through Parliament the limited selection that they have so far committed to, such as the missing-without-a-trace Animal Welfare (Kept Animals) Bill and the unkept promises to ban the imports of fur and foie gras.

We can have little confidence in this Government’s commitment to animal welfare. Their manifesto promised not to compromise on Britain’s high standards in trade deals, but the Australian trade deal and the precedent it has set risk bulldozing through our standards for animal welfare and environmental protections as well as impoverishing our farmers. As the Committee heard from David Bowles of the RSPCA, there are 44 individual pieces of animal welfare legislation that could be dropped or weakened because of the Bill.

Amendments 74 and 77 list an illustrative sample of just four of these: directive 2010/63 on the protection of animals used for scientific purposes; directive 1999/74 laying down minimum standards for the protection of laying hens; regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof; and the Welfare of Animals (Transport) (England) Order 2006.

As we have explained, the whole purpose of the Bill is to weaken and reduce regulations that ideological purists in the Conservative party see as an irredeemable burden. However, directive 2010/63 sets standards for the accommodation and care of animals used for research, and lowering these standards would increase suffering among lab animals. Article 14 of the directive requires, where possible, animal experiments to be carried out under general or local anaesthesia. The removal of this requirement could greatly increase the pain and suffering of animals undergoing experiments.

Directive 1999/74 banned the use of barren cages for laying hens. Weakening it could change acceptable cage standards for laying hens, allowing the expansion of battery chicken farming through the back door. Regulation 139/2013 stops the importation of wild-caught birds for the pet trade. Its introduction across the EU in 2005 reduced the volume of wild bird trading to about 10% of its former level. In addition to increasing the risk of the importation of wild bird diseases such as avian flu, weakening the regulation could breathe new life into the trade in wild-caught birds, and renewed UK demand could provoke further devastation of wild bird populations in South America, Africa and Asia.

Finally, the Welfare of Animals (Transport) (England) Order 2006 set basic welfare conditions for the live transportation of animals. Weakening the order could see UK welfare standards for animal transportation fall below those of our neighbours in the EU. It would also mark the complete reversal of the UK Government’s plans to increase welfare standards in transportation following Brexit—already stalled through the halting of the Animal Welfare (Kept Animals) Bill.

I turn to the conservation of rare and endangered wildlife and the precious habitats inhabited by vulnerable species. The Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017 include a crucial provision preventing any development that could adversely affect the integrity of our most precious nature sites. We have already seen this Government threaten our areas of outstanding natural beauty through scrapping protections when they fall in a so-called investment zone. Now, with this Bill, we face the prospect of a much more widespread weakening to allow unsustainable development to go ahead on or around important nature sites, even when it would cause damage to them. This damage could include more pollution reaching water habitats and the shrinking of terrestrial habitats. Nationally and internationally important nature sites on land and at sea in England, including Ashdown Forest, Braunton Burrows and Dogger Bank, will become more vulnerable.

Amendments 74 and 77 list the following laws that are part of the legal framework protecting our waterways from pollution: the Urban Waste Water Treatment (England and Wales) Regulations 1994; the Bathing Waters Regulations 2013; the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017; the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010; and the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018. Those regulations provide the legislative underpinning for efforts to protect and clean up our rivers.

The Urban Waste Water Treatment (England and Wales) Regulations 1994 are important for keeping up the pressure on water companies and developers to provide sufficient primary waste water infrastructure to meet the needs of urban areas, especially when they are growing. If those regulations end up weaker as a result of the Bill, there will be an increased risk of insufficiently treated waste water from urban areas spreading pollution across the fresh water network. Weakening the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 and the Bathing Water Regulations 2013 would undercut the measures that drive frontline organisations, especially water companies, to take holistic action to improve water quality.

--- Later in debate ---

I do not have a specific response on killer prawns or shrimp, but the appropriate Department will no doubt want to speak to the hon. Member for Leeds North West at length on protecting the environment from them. It is up to Departments and devolved Administrations to decide what they will do on specific policies; the Bill creates the tools for those Departments. Plans will be approved by a Minister of the Crown, or the devolved authority where appropriate, and will be shared when ready, given that this is an iterative and ongoing process. I ask the hon. Gentleman to withdraw the amendment.

[Alex Sobel]

The Minister’s response reflects the scale of the task at DEFRA. Just last week, a question was asked of DEFRA on the topic of pesticide regulations. The Minister for Food, Farming and Fisheries responded:

“We are currently working through Defra’s REUL to identify the actions we intend to take before the sunset date.”

I think the scale of the task is reflective of what is before DEFRA. From what the Minister has said, I am looking forward to this huge army of new civil servants who are going to arrive in DEFRA and do all this work before December 2023. We are just trying to retain and carve out some of the most important pieces of legislation—the ones the public will be most concerned about in terms of the regulation that they see as protecting them in their everyday life.

[Paul Blomfield]

My hon. Friend will be aware that the former Secretary of State for DEFRA, the right hon. Member for Camborne and Redruth (George Eustice), bitterly fought the right hon. Member for North East Somerset (Mr Rees-Mogg) in Cabinet in opposition to the sunset clause, and was worried about the impact on the Department and its capacity to deliver on it. Does my hon. Friend think that is because the right hon. Member for Camborne and Redruth had real concerns, or is it, as the Minister suggested, because he was workshy?

[Alex Sobel]

It was interesting to see the proclamations by the right hon. Member for Camborne and Redruth on various aspects. I mentioned the Australia trade deal in my speech, and last week the right hon. Member was very derogatory about the terms of that trade deal for the UK and UK farmers. We are now hearing from him what really happened behind the scenes, and we are going to see an unfurling of some of the work that took place and the disagreements around the Cabinet table. I do not want to prejudge the speech of my hon. Friend the Member for Ellesmere Port and Neston, but we might hear about some of the consequences of the Government carrying on with this Bill. We might see some of the same commentary as that from the right hon. Member for Camborne and Redruth from other Members who have left ministerial offices. We have had a lot of churn recently, have we not?

[Stella Creasy]

Does my hon. Friend think this is also a live issue for current DEFRA Ministers? In the Delegated Legislation Committee yesterday on the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations, the Minister was not able to say what would happen with them, given that the regulations are based on legislation that is not on the dashboard in some areas and on it in others. She could not give a commitment as to what would happen to those regulations post 2023. As DEFRA has most of the regulation, does he think that DEFRA Ministers probably have the most to offer in terms of understanding why taking some of these regulations off the rule book altogether would make life a lot simpler for them?

[Alex Sobel]

I do not want to rehash the debate we have already had, but we were talking about maybe as many as 500 or more regulations not currently on the dashboard, with effects that we cannot predict. I would not want to be a Minister in the Government staring down the line at that, but that is exactly what Ministers in DEFRA are doing, so they have my sympathy in that regard.

The 20 sets of regulations that we want to carve out represent a small fraction of the canon of DEFRA legislation that the Bill could sweep away at the end of next year or leave at risk of being weakened. Amendments 74 and 77 list only a tiny sample of the protections that could be swept away because of the reckless and incompetent approach the Government have chosen to take with this Bill. There are hundreds of items of retained environmental law, in a complex web sitting within and alongside domestic legislation, some with significant case law attached to them. The Minister is making the argument that the amendments are unnecessary, but I am looking to the future progress of the Bill and seeing how that will unfurl and how many of these Bills will potentially be swept away, whether by the present set of Ministers or those who might follow.

Question put, That the amendment be made.

Retained EU Law (Revocation and Reform) Bill (Fifth sitting)

Alex Sobel Excerpts

Committee stage
Thursday 24th November 2022 Public Bill Committees

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I beg to move amendment 79, in clause 7, page 4, line 32, at end insert—

“(d) the undesirability of disturbing settled understandings of the law, on the basis of which individuals and businesses may have made decisions of importance to them;

(e) the importance of legal certainty, clarity and predictability; and

(f) the principle that significant changes in the law should be made by Parliament (or, as the case may be, the relevant devolved legislature).”

This amendment adds further conditions for higher courts to regard when deciding to diverge from retained EU case law.

I will not speak for as long as I did on Tuesday, when I recited many different chemicals and species. I will also disappoint my hon. Friend the Member for Walthamstow by not mentioning killer shrimp. My contributions from now on will be pointed, seeking clarity from the Minister.

Through amendment 79, for which we are indebted to the Bar Council, we seek to expand clause 7 to make clear the important legal and constitutional principles that will be taken into account by the courts. The amendment directs higher courts, when deciding whether to depart from retained EU case law, to consider the well-established and, we hope, uncontroversial principles of legal certainty and regulatory stability. It would be helpful if the Minister could say whether she and the Government accept those legal principles and, if so, whether she agrees that higher courts should have regard to them when deciding whether to depart from retained EU law.

The amendment aims to safeguard the important constitutional principle that a significant change to the law, including a change to established case law, should be made by Parliament or the relevant devolved legislature. Again, does the Minister accept that fundamental constitutional principle and, if so, that it should guide the courts’ decisions under clause 7? She may not be in a position to accept the amendment, but I hope that she can make a simple and straightforward statement that she and the Government agree that the three legal constitutional principles set out in it must be maintained and respected by the courts.

[Ms Ghani]

I rise to resist amendment 79, which puts in place too high a bar for UK courts to depart from retained case law, including judgments made and influenced by the EU courts. Clause 7 will free our courts to develop case law on retained EU law that remains without being unnecessarily constrained by the past judgments of these new foreign courts. The clause introduces a new test for higher courts to apply when considering departure from retained EU case law. The test gives higher courts greater clarity on the factors to consider, and greater freedom to decide when it is appropriate to depart from retained EU case law. The amendment, however, would reinforce the excessive influence of the European courts and judgments on our domestic courts, and limit judges’ ability to decide to depart from retained EU case law, as should be their right and responsibility. I therefore ask the hon. Gentleman to withdraw the amendment.

[Alex Sobel]

We will not push the amendment to a vote, but the Minister did not give us sufficient clarification. I am sure that when we progress we will continue to hear the opinions of other bodies in relation to retained case law. That is really important as the Bill progresses through the House and into the other place.

[Stella Creasy]

The Government might not listen to Opposition Members, but they might listen to the Office for Environmental Protection, which, after all, they set up. It said:

“In making it easier for courts to depart from environmental retained case law, the Bill is likely to lead to uncertainty as it will be unclear whether long-established precedents will continue to be followed. This could result in unnecessary, costly legal proceedings. Consideration should also be given to whether this could also result in a reduction in environmental protection (where protections have been established through case law) and how this will be addressed.”

Does my hon. Friend agree that those critical points need to be addressed?

[Alex Sobel]

Absolutely. Agencies such as the Environment Agency, Natural England and the Office for Environmental Protection use these regulations and case law all the time. They have evolved over time in many areas—water, nature and so on. There is now a real danger to those provisions, so I hope the Minister will consult with her colleagues in the Department for Environment, Food and Rural Affairs and ensure we are not unable to undertake regulatory and enforcement action on the environment.

[Mr Jones]

The hon. Gentleman mentions the danger of departing from precedent, but is that not substantially mitigated by clause 7(2)?

[Alex Sobel]

Having seen the opinions of different agencies—my hon. Friend the Member for Walthamstow mentioned the Office for Environmental Protection—and heard the evidence of the Bar Council, I am not sure that is the case.

[Mr Jones]

I hesitate to intervene again, but it is specifically provided for in clause 7(2) that, although precedent may not apply in the case of European decisions, it does in the case of domestic decisions. Of course, European courts are not bound by precedent, so we have a significant safeguard in clause 7(2) against the risks that the hon. Gentleman mentions.

[Alex Sobel]

I know from my brief in the shadow DEFRA team that some very important enforcement actions are extrapolated from European case law, because we were under the aegis of the European Court of Justice for a very long time. It is important that we are mindful of that.

[Stella Creasy]

Obviously the Bill also enshrines the idea that protections can only be watered down, because it says that nothing can be brought in that increases burdens. Of course, courts are free to set new precedents, but when this Bill is enacted only precedents that reduce protection can be set. That is why the Office for Environmental Protection is concerned.

[Alex Sobel]

I fear we may be straying into future debates. I will not take much longer—I take your lead, Sir George. We will have further discussions about burdens and regression, so I will not labour that point. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Brendan O’Hara (Argyll and Bute) (SNP)]

I beg to move amendment 38, in clause 7, page 5, line 39, after “court)” insert

“in England and Wales or Northern Ireland”.

This amendment, together with Amendments 39 to 47 and (a) to Amendment 5, would remove the Scottish courts and Scottish law officers from the case law reference procedure provided for by new sections 6A, 6B and 6C of the EU Withdrawal Act 2018.

Retained EU Law (Revocation and Reform) Bill (Sixth sitting)

Alex Sobel Excerpts

Committee stage
Thursday 24th November 2022 Public Bill Committees

[Ms Ghani]

The hon. Gentleman asked about assessment. The REUL reform programme has been under way for more than a year. Departments have been engaged as to the effect of removing EU law principles—such as that the EU is the only one that can create principles and legislation—which is what we are working on. The work will continue to take place.

On the evidence about changing interpretation rules under clause 4, in specific cases—data protection regulation and competition law—removing the principles of interpretation as set out in the EU (Withdrawal) Act 2018 will cause unintended policy consequences as a result of the way that the legislation has been written. The compatibility power will ensure that the relationships between individual pieces of domestic legislation going forward are maintained. We intend that to ensure that our domestic law operates as the UK Government want it to. Each Department will of course be responsible for REUL elements within their portfolio.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9

Incompatibility orders

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I beg to move amendment 80, in clause 9, page 10, line 36, at end insert—

“(4A) Within 28 days of the making of an incompatibility order, a Minister of the Crown must, by written statement, set out the Government’s view on the incompatibility. The statement must include consideration of the impact the incompatibility order has on rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare, and whether the Government intends to produce regulations to revoke, amend or clarify the law in light of the order.”

This amendment requires ministers to set out, through a ministerial statement, their position on an incompatibility order that includes a consideration of the impact it will have on the rights of people.

[The Chair]

With this it will be convenient to consider clause stand part.

[Alex Sobel]

The amendment would require Ministers to report to Parliament with a written statement in the event that a court made an order to declare that EU law and domestic law are incompatible. As we explained in relation to previous amendments, the Bill could impact on many fundamental rights of citizens in multiple areas of daily life. It could also interfere with important existing environmental protections, which I have explained at length in previous amendments.

The clause might have the effect of a court setting aside laws that guarantee such rights and protections, without giving Parliament any opportunity to ensure they can continue in place. In the interests of transparency and proper scrutiny, the amendment is designed to ensure that Parliament is alerted if that happens, enabling us to scrutinise the court decision and to consider whether we should exercise our rights to legislate to ensure that there is no confusion about Parliament’s intentions. It is not my intention to press this amendment to a vote, but I would like the Minister to explain how we can ensure proper scrutiny when such clashes inevitably occur.

[Ms Ghani]

The clause gives the judiciary powers in connection with the ending of the supremacy of EU law. It requires a court or tribunal to issue an incompatibility order where retained direct EU legislation cannot be read consistently with other pieces of domestic legislation. It gives the judiciary broad discretion to adapt the order to the case before it. That includes granting remedies to the effect of the incompatibility.

Courts generally have wide discretion to grant remedies that they may grant in a given case, and the clause is consistent with that principle. Where the court considers it relevant, the order could set out the effect of the incompatible provision in that particular case, delay the coming into force of the order, or remove or limit the effect of the operation of the relevant provision in other ways before the incompatibility order comes into force.

The clause is a matter of judicial process. It grants powers to the courts but does not change any rights or protections in and of themselves, which is a matter for Parliament in the scrutiny of this Bill. We do not need to create a new scrutiny process for incompatibility orders. A process of “declaration of incompatibility”, similar to that set out in clause 9, exists under the Human Rights Act 1998, and no new scrutiny procedure, such as the one proposed by this amendment, has been deemed necessary. Similar court orders could also be made under the European Communities Act 1972, where conflicts arose—again, with no such scrutiny procedure.

Once again, the hon. Member for Leeds North West raised environmental regulations. To repeat myself, we will not weaken environmental protections. The UK is a world leader in environmental protection and, in reviewing our retained EU law, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. We are committed to delivering our legally binding target of halting nature’s decline by 2030. I therefore ask the hon. Gentleman to withdraw the amendment.

[Alex Sobel]

I take on board what the Minister says, although that last comment on the environment is slightly galling considering that on 31 October the Government were meant to bring forward, under their own domestic post-Brexit legislation—the Environment Act 2021—targets on a whole range of areas, including air quality and water quality. It is now 24 November and we still have no targets. If I am a little concerned about the Government’s performance here, she should not be surprised, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

Clause 10

Scope of powers

[Peter Grant (Glenrothes) (SNP)]

I beg to move amendment 50, in clause 10, page 11, line 12, leave out paragraph (b) and insert—

“(b) for sub-paragraph (2), substitute—

(2) Power may only be exercised by virtue of sub-paragraph (1) if—

(a) a written statement explaining the modification has been published by the Secretary of State,

(b) the Secretary of State has made an oral statement on the modification to both Houses of Parliament, and

(c) the Secretary of State has published an assessment of the impact of the modification.”

The intention of the amendment is to do what Brexit was supposed to do: restore some parliamentary oversight to the way in which the Government make and change legislation in this place. The amendment is pretty self-explanatory. It is not ideal that Ministers are giving extensive powers to chop and change laws as they see fit. If, in exceptional circumstances, it is necessary for them to have those powers, the very least Parliament should expect is that Ministers will be held to account and will explain to Parliament—ideally beforehand, but certainly afterwards—why they have done what they have done and what the impact has been.

If the Minister genuinely believes in improving accountability in this place, she will accept the amendment. In saying that, it is clear that all Ministers—nothing against this Minister—in all Public Bill Committees are under instruction not to accept anything from the Opposition. If we moved an amendment that said, “Today’s Thursday”, the Government would keep talking until it was Friday and then vote it down.

--- Later in debate ---

[Brendan O’Hara]

The Minister is right. As we have said from day one, we oppose the Bill, but if it has to pass—history and the numbers in the room tell us that it will pass—it will do so without our support. As we have said, we have a duty not to ignore the most egregious parts of this legislation. Where we think that it will hurt people, affect businesses or leave holes in the statute book, or is ideologically driven folly, we will oppose it, and point out the problems to the Government, so that, as my hon. Friend the Member for Glenrothes said, there cannot come a time when the Government say, “We didn’t know. Nobody told us this was happening.” Our role here is to oppose every step of the way, but also point out in as much detail and with as much clarity as we can where this dreadful piece of legislation is almost inevitably headed. We will pick the matter up, I am sure, on Report, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 8, in clause 12, page 15, line 2, leave out “legislation” and insert “the thing”.

This amendment provides that effects produced by virtue of the retained EU law referred to in subsection (5) do not apply in relation to anything that is codified.

Amendment 9, in clause 12, page 15, line 10, leave out “of legislation”.—(Ms Ghani.)

This amendment enables regulations to produce, in relation to anything that is codified, an effect equivalent to an effect mentioned in subsection (4).

Clause 12, as amended, ordered to stand part of the Bill.

Clause 13

Power to restate assimilated law or reproduce sunsetted retained EU rights, powers, liabilities etc

Amendments made: 10, in clause 13, page 15, line 29, leave out “legislation” and insert “thing”.

This amendment provides that effects produced by virtue of the retained EU law referred to in subsection (4) do not apply in relation to anything that is codified.

Amendment 11, in clause 13, page 15, line 33, leave out “of legislation”.

This amendment enables regulations to produce, in relation to anything that is codified, an effect equivalent to an effect mentioned in subsection (4).

Amendment 12, in clause 13, page 15, line 36, leave out “of legislation”.

This amendment enables regulations to produce, in relation to anything that is codified, an effect equivalent to an effect mentioned in subsection (7).

Amendment 13, in clause 13, page 15, line 40, leave out “legislation” and insert “thing”.—(Ms Ghani.)

This amendment enables regulations to produce, in relation to anything that is codified, an effect equivalent to an effect mentioned in subsection (7).

Clause 13, as amended, ordered to stand part of the Bill

Clause 14

Powers to restate or reproduce: general

[Alex Sobel]

I beg to move amendment 82, in clause 14, page 16, line 18, at end insert—

“(1A) No regulations may be made under section 12 or 13 unless all the following conditions have been satisfied.

(1B) The first condition is that the relevant national authority has consulted on a draft of the regulations with organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, those regulations.

(1C) The second condition is that, after that consultation has concluded, the relevant national authority has laid a report before each House of Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru, or the Northern Ireland Assembly) setting out—

(a) the authority’s view as to whether the proposed regulations make any change in the rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare, and the reasons for that view;

(b) whether in making the regulations the national authority has considered using its discretion under section 12(6), section 13(6), or subsection (2), (3) or (4) of this section, and if so, the reason why it does or does not intend to exercise that discretion.

(1D) The third condition is that a period of sixty days has passed since that report was laid, with no account to be taken of any time during which Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru, or the Northern Ireland Assembly) is dissolved or prorogued or during which it was adjourned for more than four days, and where they were laid before Parliament, paragraph 8(11)(a) of Schedule 3 shall apply in determining the commencement of that period.”

This amendment requires the national authority to consult on a draft text of “restatement” regulations, and to set out its reasoning on the choices made when drafting those regulations to Parliament or the relevant devolved legislature.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 83, in clause 14, page 16, line 26, at end insert—

“(3A) A restatement may not be made unless such consultation with relevant stakeholders as the relevant national authority considers appropriate has taken place on whether the conditions set out in subsection (3) are met.”

This amendment ensures that relevant stakeholders are consulted to ensure that the conditions for the exercise of the power to restate set under clause 14(3) are met.

Government amendment 14.

Amendment 56, in clause 14, page 16, line 32, leave out subsection (5).

Government amendment 15.

Amendment 55, in clause 14, page 17, line 2, at end insert—

“(9) Regulations under section 12 or 13 may not be made unless the relevant national authority has consulted all parties that authority considers relevant.”

Clause stand part.

[Alex Sobel]

Our amendments 82 and 83 require the national authority to consult on a draft text of restatement regulations, and to set out to Parliament or the relevant devolved legislature its reasoning on the choices made when drafting the regulations. I am sure the Minister will want to earnestly reassure us that national authorities are bound to consider those decisions carefully. It follows that she should readily accept that their reasoning should be published.

On consultation, the Bar Council’s written evidence refers to clauses 12 to 15 and schedule 3 granting Ministers enormous power to legislate at will to replace or update retained EU law, without any requirement to consult anyone, on matters of enormous importance to business, consumers, employees and the environment. There is no requirement for any parliamentary vote; there will be only the minimal scrutiny afforded by the affirmative procedure.

Furthermore, Parliament may well be confronted with Hobson’s choice: either agree in full to unsatisfactory replacements for retained EU law, or vote out the whole lot. As a result, as we heard earlier, fundamental rights such as paid bank holidays or environmental protections to stop air or water pollution could simply disappear completely, perhaps through mistake or oversight, with little or no opportunity for public debate.

We agree with the Bar Council that important changes to our law should be made by Parliament after proper consultation, public debate, and scrutiny, not by ministerial fiat. The rushed and uncertain process for replacement or removal of REUL and the deliberate creation of legal uncertainty will seriously damage the UK’s hard-won reputation for regulatory stability, predictability, and competence, on which growth-promoting investment in critical sectors of our economy depend.

The Bar Council points out that the complete absence of any requirement to consult those affected by the exercise or non-exercise of Ministers’ powers under the Bill is incomprehensible, given that we are talking about often complex legislation, and that errors or omissions can have serious adverse consequences for business as well as consumers, workers and others. Businesses can have no confidence that they will have any ability to comment on or influence, or even any prior notice of, legislation that can profoundly affect them—a gap that, in the Bar Council’s view, which we share, would be a serious deterrent to investment.

[The Chair]

I call—[Interruption.] Oh, the hon. Member for Yeovil is leaving.

--- Later in debate ---

[Ms Ghani]

The Government recognise the importance of ensuring legislation undergoes appropriate scrutiny and consultation, and I will set that out shortly. However, I ask that hon. Members reject amendments 82, 83, 55 and 56.

It is right that we ensure that any amendments to retained EU law or assimilated law receive appropriate scrutiny and are subject to the proper processes for consultation. That is why we have sought to ensure that the Bill contains robust scrutiny mechanisms, including for the powers to restate under clauses 12 and 13. First, the draft affirmative procedure will be applied where the powers to restate are being used to amend primary legislation. Secondly, the sifting procedure will apply to clauses 12 and 13 for the regulations that are proposed to be made under the negative procedure. The sifting procedure largely corresponds with the sifting procedure under the European Union (Withdrawal) Act 2018, and will provide for additional scrutiny of the legislation being made. Parliament can then scrutinise instruments, subject to sifting, and make active decisions regarding the legislation. It is our expectation that Departments will follow the standard procedures regarding consultation during policy development.

On amendment 56, let me be clear that the powers are not capable of restating any REUL or assimilated law that is primary legislation. Work is already ongoing across Whitehall on a REUL statutory instrument programme, which will continue after the Bill’s Royal Assent. The inclusion in the Bill of a consultation requirement for the powers, which is what the amendments seek to achieve, would build further time into the SI programme. That would disempower Departments, hindering their ability to pursue the REUL reform that they judged to be necessary. For the powers to restate in particular, that would delay the opportunity for Departments to use the powers to maintain the existing policy effect of their REUL in cases where that was judged to be necessary, by reproducing certain EU principles of interpretation that will cease to apply after the sunset.

Given that the powers to restate have been designed to enable Departments only to provide for substantially the same policy effect, when that is considered desirable and appropriate for the UK in a post-Brexit setting, the inclusion of a requirement to consult—both on the regulations proposed to be made and the purposes for their use—seems particularly unnecessary. As such, I ask the hon. Member for Leeds North West to withdraw the amendment.

The Government’s simple clarificatory amendments will ensure that the restatement powers in clauses 12 to 14 cannot be used to bring back the EU law concepts—such as the principle of supremacy or general principles—that the Bill aims to sunset, in general terms.

[Alex Sobel]

The Minister talked about both an appropriate level of scrutiny and robust scrutiny, but then went on to talk about sifting. We know that there are upwards of 4,000 regulations. That is exactly the concern we have about how much scrutiny there will be across those regulations. The Minister’s main objection seemed to be that the provision would create too lengthy a procedure for the SI programme. Our point is that it would otherwise be rushed through within a matter of months, until the 2023 sunset date, without the proper scrutiny. That is why amendments 82 and 83, and the SNP amendments 55 and 56, are necessary. I will press amendment 82 to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[The Chair]

I am very grateful to the hon. Gentleman. We would have been in a bit of muddle otherwise.

Clause 14, as amended, ordered to stand part of the Bill.

Clause 15

Powers to revoke or replace

[Alex Sobel]

I beg to move amendment 84, in clause 15, page 17, line 30, at end insert—

“(4A) No regulations may be made under this section unless the conditions set out in section [Conditions on the exercise of powers under section 15 and 16] have been complied with.”

This amendment ensures that the powers to revoke or replace would be subject to restrictions as laid out in NC9.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 85, in clause 15, page 17, line 31, leave out subsections (5) and (6).

This amendment will remove the restriction on the replacement of EU law that states it must not add to the regulatory burden.

Amendment 94, in clause 15, page 17, line 37, at end insert—

“(6A) No provision may be made under this section unless the relevant national authority considers that the effect of the provision will lead to an increase in levels of environmental protection.

(6B) The relevant national authority must consult its environmental governance body before making any provision under this section.

(6C) The relevant national authority must publish any advice it receives from its environmental governance body, as well as the authority’s response and reasons for any departure from this advice, and lay these documents before the relevant parliament or assembly.

(6D) No provision may be made by the relevant national authority under this section until the final version of its policy statement or statutory guidance on environmental principles, as set out in Section 14 of the Environment Act 2021 for England, Schedule 2 paragraph (6) for Northern Ireland, and Section 14 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 for Scotland, has been laid before the respective Parliament and the relevant legal duty commenced.

(6E) The relevant national authority must consult persons or bodies representing the interests of those likely to be affected by the provisions before making regulations under this section.

(6F) No provision may be made under this section by a Minister of the Crown until the legally binding targets required under the Environment Act 2021 have been published, and the Secretary of State has laid before Parliament a statement setting out how the provision is compatible with the delivery of these targets.”

This amendment sets a number of conditions which must be met before provision under this clause revoking or replacing retained EU law may be made.

Amendment 86, in clause 15, page 18, leave out lines 1 to 7.

This amendment is consequential on Amendment 85.

Clause stand part.

Amendment 87, in clause 16, page 18, line 27, at end insert—

“(3) No regulations may be made under this section unless the conditions set out in section [Conditions on the exercise of powers under section 15 and 16] have been complied with.”

This amendment would ensure that the power to update would be subject to the restrictions laid out in NC9.

New clause 9—Conditions on the exercise of powers under section 15 and 16—

“(1) The first condition is that the relevant national authority has consulted such organisations as appear to it to be representative of interests substantially affected by its proposals, and any such other persons as it considers appropriate, on a draft of those regulations.

(2) The second condition is that the national authority has, after that consultation has concluded and after considering any representations made to it, laid a draft of the regulations before each House of Parliament (or, as the case may be, the Scottish Parliament, Senedd or Northern Ireland Assembly), together with a report setting out, with reasons, the authority’s view as to the likely advantages and disadvantages of making those regulations, setting out in particular—

(a) a summary of the objectives and effect of those regulations as compared to the instrument that they will revoke, replace or modify;

(b) any difference as between that instrument and the proposed regulations in terms of protections for consumers, workers, businesses, the environment, or animal welfare;

(c) any benefits which are expected to flow from the revocation or replacement of that instrument;

(d) the consultation undertaken as required by subsection (2);

(e) any representations received as a result of that consultation;

(f) the reason why the national authority considers that it is appropriate to make those regulations, having considered those representations;

(g) the reasons why the national authority considers that section 15(5) (overall reduction in burdens) does not preclude the making of the regulations, explaining what burdens are reduced or increased as a result of the making of the regulations;

(h) the compatibility of the revocation, modification, or replacement of that instrument with obligations in the Trade and Cooperation Agreement between the United Kingdom and the EU, and the likely effect on UK exports of goods or services to the European Economic Area; and

(i) the likely effect of the revocation, modification, or replacement of that instrument on the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.

(3) The third condition is that a period of sixty days has passed since those draft regulations or that report were laid as required by subsection (2) with no account to be taken of any time during which Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru or Northern Ireland Assembly) is dissolved or prorogued or during which either House or that body is adjourned for more than four days, and where they were laid before Parliament, paragraph 8(11)(a) of Schedule 3 shall apply in determining the commencement of that period.

(4) The fourth condition is that the national authority has considered any representations made during the period provided for by subsection (3) and, in particular, any resolution or report of, or of any committee of, either House of Parliament (or, as the case may be of the Scottish Parliament, Senedd Cymru or Northern Ireland Assembly) with regard to the proposals, and has published its reasons for accepting or rejecting any such representations, resolution, or report.”

This new clause requires the relevant national authorities to consult with key stakeholders on proposed regulations revoking or replacing REUL, and to show Parliament their assessment of the impact of the changes.

[Alex Sobel]

I am afraid we are back to the Homeric length of speech that I regaled everyone with on Tuesday.

This wide range of amendments is designed to do three things. First, amendments 84, 87, new clause 9 and amendment 94 require proper consultation before the revocation, replacement and updating powers in clauses 15 and 16 can be exercised. Secondly, amendments 85 and 86 remove a prohibition in clause 15(5) against the relevant national authority using powers in a way that would “increase the regulatory burden”. Thirdly, amendment 94 adds a new subsection to clause 15 to ensure that the use of powers to revoke or replace retained EU law is made subject to compliance, in addition to consultation, with the environmental governance framework established by the Environment Act 2021. I will consider each of those three considerations in turn.

First, on consultation, as we have already discussed when considering other amendments, many worried stakeholders have voiced deep concerns about the unchecked powers that clauses 15 and 16 in particular place into the hands of Ministers. The Hansard Society has commented that clause 15 includes, with just a few caveats, “Do anything we want” powers for Ministers. I will not denigrate them by calling them Henry VIII powers. The Hansard Society's written evidence says the blank-cheque powers allow Ministers to act without having to observe the same oversight provisions—for example, a requirement to consult—that were required by the very legislation they are replacing.

Clause 15 also permits sub-delegation, the creation of a criminal offence or the imposition of a monetary penalty providing that any new regulations “correspond” or are “similar to” the original retained EU law. What such terms as “appropriate”, “correspond” and “similar” mean in practice is left entirely up to Ministers—“Do anything you want.” The duty to consult those bearing the brunt of the changes should be one of the most basic to a Government who have now been in power for more than 12 years. Carrying out such a process should not be viewed as burdensome; it is, or should be, a basic requirement of good and proper governance.

Our new clause 9 would remedy that defect by setting out a proper, good governance process of consultation. After consultation, Ministers would need to report to Parliament on the comments and representations made, and explain their objectives, their reasons for accepting or rejecting comments and any differences between the proposed and original regulations, in terms of protections for consumers, workers, businesses, the environment and animal welfare. They would be required to explain what burdens are reduced or increased as a result of the new regulations and to list the anticipated benefits they expect from the revocation or replacement, state whether the revocation or replacement is compatible with the trade and co-operation agreement, explain the likely effect on UK trade with the European Economic Area and, finally, set out the likely effect on the Northern Ireland protocol.

I hope the Minister agrees that those are all perfectly reasonable things to consider. If so, I hope she will either accept our amendments or, if she prefers, could make a commitment now that that will be part of the Government’s process.

--- Later in debate ---

[Alex Sobel]

The Minister and Conservative MPs expect us to trust them, when they have repeatedly voted against our attempts to preserve the most basic legal rights and protections for consumers, workers and the environment in Committee so far. In fact, no Government should be trusted with the sweeping powers that this Bill will grant, with minimal parliamentary oversight or scrutiny. Instead of wasting time debating their trustworthiness, our amendments were designed to move beyond the trust that the Government have failed to earn and allow for greater transparency. I will push amendment 85 to a vote, but I beg to ask leave to withdraw amendment 84.

Amendment, by leave, withdrawn.

Amendment proposed: 85, in clause 15, page 17, line 31, leave out subsections (5) and (6).—(Alex Sobel.)

This amendment will remove the restriction on the replacement of EU law that states it must not add to the regulatory burden.

Question put, That the amendment be made.

Retained EU Law (Revocation and Reform) Bill (Seventh sitting)

Alex Sobel Excerpts

Committee stage
Tuesday 29th November 2022 Public Bill Committees

[Graham Stuart]

Clause 17 amends the LRRA 2006 explicitly to include any retained direct EU legislation in its definition of legislation. This amendment confirms that the delegated powers existing in the framework for legislative reform orders extend to retained direct EU legislation, and enable it to be amended within the current procedures and scope of the LRO process. There is no reason to exempt this category of legislation from the LRO process. It is a pretty innocuous technical change, and I commend the clause to the Committee.

Question put and agreed to.

Clause 17 accordingly ordered to stand part of the Bill.

Clause 18

Abolition of business impact target

Question proposed, That the clause stand part of the Bill.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I will be brief, as we have many clauses to get through. Clause 18 abolishes the business impact target in the annual report that the Conservative Government themselves introduced in 2015. Perhaps the Minister could explain the rationale behind the change. Have the Government finally caught up with the pointlessness of this exercise, which has piled unnecessary work and bureaucracy on civil servants over the past seven years? It would be helpful to hear the Minister’s explanation for the change.

[Peter Grant (Glenrothes) (SNP)]

My apologies for being late for the start of the sitting, Sir Gary.

About eight years ago, I bought myself a car. For a long time, the car did pretty much what I wanted it to do, but now it is showing its age and is not really behaving the way I would like, and I am wondering whether it is worth keeping. It would be foolhardy for me to get rid of my car when I have no idea what kind of car I want to replace it with, because I would leave myself open to the possibility either that I am without a car for a lot longer than I expected to be or that a replacement car is much more difficult and expensive to acquire. That is the position the Government want to put us in with this clause.

--- Later in debate ---

[Alex Sobel]

We have already debated how the Bill grants Ministers sweeping powers; we now come to clause 19, which looks like it literally and explicitly allows Ministers to do anything they want. The Minister needs to explain what the Government think the powers are going to be used for, specifically in relation to EU regulations.

On the face of it, clause 19 would allow Ministers to make the case for anything at all, provided only that they consider it appropriate and in consequence of the Act. It is entirely left up to Ministers themselves to define “appropriate” and “in consequence”. I would like the Minister to give the Committee further clarification of what “appropriate” and “in consequence” really mean—or perhaps he does not yet know.

It is noteworthy that the powers include modifications to any Act of Parliament—including this legislation. The powers are so sweeping that it is difficult to understand why the Government cannot better define the powers they are giving themselves in the clause.

[Peter Grant]

First, I have a concern similar to the hon. Gentleman’s. It is the same concern that the SNP has expressed repeatedly throughout the progress of this Bill and many others. If the Bill does not just give any Minister the power to do whatever they like, will the Minister explain what clause 19 does not allow them to do? I always think it is interesting that when they give powers to Ministers, the Government put it into legislation that the Minister can do only what they consider appropriate. It is almost as if they do not trust their own Ministers not to do things that are considered completely inappropriate—although, having seen the actions of some Ministers over the past few years, I completely understand why they put that restriction in.

Secondly, is there a legal definition of what is actually meant by the words

“in consequence of this Act”?

If there is not, we could see regulations made under clause 19 being challenged in court, with the case hanging on whether the Minister’s decision was in consequence of this Act. A phrase as woolly as that is going to be a field day for lawyers. It is going to end up with the Government, and potentially businesses, being tied up in exactly the kind of legal uncertainty that the Government claim they are trying to get rid of by the passing the Bill. Will the Minister clarify those two points, with particular regard to the legal interpretation?

--- Later in debate ---

[Brendan O’Hara]

The amendment was tabled in my name and that of my hon. Friend the Member for Glenrothes and takes us back to a recurring theme of this Bill Committee—namely, the incursion by the UK Government into areas that are, and have been since the establishment of the Scottish Parliament more than 20 years ago, wholly devolved.

I assure Members that before today is out they will have heard a great deal more about the power grab that is happening and how the Bill and its partner, the United Kingdom Internal Market Act 2020, are systematically undermining the devolution settlement and stripping powers from our Parliament. The amendment would simply protect the integrity of the devolution settlement by preventing a UK Minister from revoking any piece of retained EU law that currently sits within the competency of the Scottish Government, as defined in paragraph 2 of schedule 2.

The Union is hanging by a thread. The polls increasingly show a pro-independence majority, and among young voters in particular that majority is substantial and growing. We have heard lots of talk about the partnership of equals and how Scotland has an integral place in this so-called precious Union; those may be nice words and easy for politicians to say, but the problem is that fewer and fewer Scots believe it any longer. Not only have we been dragged out of the European Union in the face of an overwhelming desire to remain a member, but in the past weeks we have discovered that this is not a voluntary Union after all. We cannot decide our constitutional future without the permission of this place. Now, with this Bill, coupled with the insidious United Kingdom Internal Market Act, we have to sit and watch the powers of our Parliament being eroded and our democracy being dismantled.

I challenge the Government to prove me wrong and show the people of Scotland that this place is no threat to our Parliament and our democracy by accepting amendment 64 and allowing our Government to act according to the mandate given to them in 2007, 2011, 2016 and, again, in 2021. That mandate is to keep our regulations in lockstep with the European Union if that is what we choose to do.

[Alex Sobel]

I shall speak briefly to schedule 2. The need for the Government to act with devolved authorities when provisions are outside the devolution settlement makes a lot of sense. We are currently in a situation in Northern Ireland in which there is no Executive, the Assembly is not functioning and the Northern Ireland protocol, which is hugely affected by the Bill, is effectively broken. The schedule 2 powers will, in the end, as things stand—they do not look like they are going to change in the near future—be enacted by a UK Minister of the Crown rather than by the devolved authority, whether with or without a Minister. I note that that is made explicit. So we have a situation in which, although the Bill cannot have any impact on what happens regarding the Executive, there is a mismatch between what is happening de facto in Northern Ireland and de jure in the Bill. That creates a dichotomy, so will the Minister tell us how he thinks that will resolve itself, considering that a new Executive is nowhere in sight?

[Peter Grant]

Following the comments of my hon. Friend the Member for Argyll and Bute, the existence of schedule 2 specifically tells us everything we need to know about the nature of what is sometimes claimed to be democracy in this place. There is an explicit assumption in the schedule that Ministers in this place have the right to directly hold to account the democratically elected national Parliaments of the United Kingdom. That is not devolution; that is colonialism. It is not democracy; it is elected dictatorship. I appreciate that what is stated in schedule 2 is simply a restatement of the assumption that has run through this place for the past 300-plus years, yet it is a false assumption. It is an assumption that ultimate sovereignty by gift of God resides with an unelected individual who then passes down that sovereignty to a semi-elected Prime Minister.

--- Later in debate ---

[Graham Stuart]

I am glad that there is, I think, acceptance that this amendment is a practical and sensible measure. By bringing procedures together in one and having the affirmative procedure, we can ensure that Parliament can scrutinise in a more holistic manner, to address some of the concerns that have been raised by the Scottish nationalist spokesman. As to precisely how often, I do not have an estimate on that, but I expect it to be on numerous occasions, because, as has been said, there is a substantial amount of retained EU law. If that can be brought together and scrutinised in an effective manner that allows full and proper scrutiny but does so in a way that does not waste parliamentary time, I hope we will have something that works for all parts of the House and is seen as practical and proportionate.

Amendment 1 agreed to.

[Alex Sobel]

I beg to move amendment 88, in schedule 3, page 31, line 6, leave out from “15” to the end of line 8 and insert—

“(d) regulations under section 16.”

This amendment, together with Amendment 89, would make all regulations under Clause 15 (regulations that are intended to achieve the same or similar objectives as the REUL being replaced) and under section 16 (technological developments) subject to affirmative procedure.

[The Chair]

With this it will be convenient to discuss amendment 89, in schedule 3, page 31, line 17, leave out paragraph (c).

See explanatory statement to Amendment 88.

[Alex Sobel]

We have already spoken at length about the lack of effective parliamentary scrutiny provided for in the Bill. Our amendments 88 and 89 would ensure that any instruments made by Ministers to replace retained EU law under clause 15 or to update it under clause 16 were subject to the affirmative procedure and had to be approved by both Houses. At present, schedule 3 does not provide for the affirmative procedure for clause 16 instruments at all; for clause 15, it provides for the affirmative procedure to apply only in the case of revocation or for much more limited cases where the clause 15 powers are used for sub-delegation or to create a new criminal offence.

It seems to us, as well as to many of those who have submitted written evidence, that the powers in both clauses are potentially extremely significant even if they are not being used for wholesale revocation. Updating and replacing retained EU law might well involve alterations to existing and long-established rights and protections—alterations that we feel Parliament should be asked to positively agree to before they pass into law. The Minister himself just said that this Bill covers a substantial number of regulations, so it is only right and proper that we have the correct level of scrutiny and process in this place.

Can the Minister explain the circumstances in which he envisages the powers to replace and update being used? Can he also provide examples of the replacement or updated legislation that Departments are planning to take through, using these powers? I ask because we have heard very little, but we know that civil servants are busy preparing regulations for this procedure.

--- Later in debate ---

[Peter Grant]

Thank you, Sir Gary, for calling me to speak. You will be aware that I attempted to intervene on the Minister to correct his mistake, because we are not in the same position with this Bill as we were with European legislation. The reason that Parliament did not do more to scrutinise the action of British Government Ministers in making legislation on our behalf while we were in the European Union is that, for most of the time, Parliament under any Government was completely supine. This Parliament is set up in such a way that it does what the Government tell it to do. It is headline news around the world if Parliament does not do what the Government tell it to do. Parliament had the power to rein in Ministers, but shamefully it repeatedly failed to do so. If this Bill goes through, Parliament will not have that power; Ministers will be able to do pretty much what they like.

The Minister talks very grandly about the fact that people have the chance to hold the Government to account. It is not a debate for just now perhaps, although some of us think that it is a debate for every day of the week, but the people of Scotland have been holding this Conservative party to account since 1955 and they just cannot get rid of them. He will perhaps understand why we can have no confidence in a legislative process that puts powers into the hands of a group of Ministers who people in Scotland have rejected at every opportunity they have been given since before I was born.

[Alex Sobel]

I want to just pick up on the idea that before 2016, or before early 2020 anyway, the regulations that we are talking about were somehow just created out of thin air—that an EU Commissioner decided one day that that was the regulation and that was it, and suddenly it was law in this country. That is a long way from the truth. The regulations had to go through the Council of Ministers, on which a UK Minister sat; they had to go through the European Parliament, where UK MEPs sat and provided scrutiny; and then they had to go through this House and the whole process here in the UK Parliament. When they related to devolved bodies, they also had to go through the devolved Administrations. I do not understand the argument that somehow there was a lack of scrutiny and process before, and now there is proper scrutiny and proper process. What our amendments would do is introduce the affirmative procedure.

[Stella Creasy]

Does my hon. Friend agree that there is a heavy irony in a Minister who refuses to take interventions and to be held accountable for what he says suggesting that nobody should be worried about the details of parliamentary scrutiny, who then cloaks himself in an argument that somehow the scrutiny mechanisms within the European Union were not acceptable?

[Alex Sobel]

That is a theme running through the whole Bill. First, Ministers want to take powers for themselves—for the Executive—and away from Parliament. I understand that the Executive in this country is elected, at least in part—that is, down at this end of the building. Secondly, even in the microcosm of this Bill Committee, this is the third part of the Bill on which Ministers have refused to take interventions from the Opposition. They are not prepared to allow relevant scrutiny, which creates an even stronger argument as to why we need protections.

[Justin Madders]

Does my hon. Friend agree that although we hear an awful lot about how terrible the processes were and about these laws being imposed on us, as we discussed at length, we never hear which specific laws the Government object to?

[Alex Sobel]

As we do not know, there might be more than 4,000 of these regulations. We would all like lists of the various different types of regulations; I would certainly like to see which of the regulations did not receive adequate democratic process and scrutiny.

In conclusion, all of the arguments that we have heard make it even more important that the Committee accepts these two amendments.

Retained EU Law (Revocation and Reform) Bill (Eighth sitting)

Alex Sobel Excerpts

Committee stage
Tuesday 29th November 2022 Public Bill Committees

[Graham Stuart]

Of course, the hon. Gentleman is part of Parliament. That is why he is sitting in this United Kingdom Parliament—because, when his electors and electors across Scotland were asked, “Do you want to be in an independent Scotland?”, they said no. Despite that, this false narrative is pushed on a daily basis by the separatists opposite, who try to suggest that they are being held against their will. In fact, the only will they are being held against is the will of the Scottish people, who refuse to comply with the demands of the separatist SNP, which does not listen to the results of a referendum taking place in Scotland.

Getting back to the Bill, Departments will be expected to develop a delivery plan that outlines their intention for each piece of retained EU law. The Brexit Opportunities Unit will work with Departments to draw up those delivery plans and ensure the legislative process proceeds smoothly. The delivery plans will be subject to scrutiny via an internal Government process or ministerial stocktake process. More information on that will follow, including information on how to factor these processes into statutory instrument timetables.

Turning to the body of law we are talking about, we are currently engaging with the National Archives to uncover any additional information on retained EU law. However, it is worth nothing that many statutory instruments uncovered by the National Archives have been recognised either as orphaned statutory instruments or as no longer applicable to our current legal framework. We are exploring various ways—whether that is star chambers or using the dashboard—to identify what REUL is kept or sunsetted. Although individual Departments will take responsibility, we in the Department for Business, Energy and Industrial Strategy will be helping to co-ordinate this across Government.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

It is helpful that the Minister has given us some insight into the work of the National Archives. When does he think those regulations—whether orphaned or not—will appear on the dashboard so that we can see them? They are currently opaque for the rest of us.

Retained EU Law (Revocation and Reform) Bill

Alex Sobel Excerpts

Report stage
Wednesday 18th January 2023 Commons Chamber

[Mr Rees-Mogg]

The right hon. Gentleman makes a fair point. There will be some work for the Scottish Parliament to do to maintain the status quo. That is a policy decision for the Scottish Parliament, resulting from a decision that was taken by the whole United Kingdom. That is how devolution works, and that is a proper and fair working of devolution. That, actually, is what gives the Scottish Parliament the power to do what it wants to do. It flows from our constitutional settlement, and from the overarching decision made by the British people, as one people, to leave the European Union.

I now come to the entirely bogus point about the threat to rights. In his opening speech on Second Reading, my hon. Friend the Member for Watford (Dean Russell) made it clear, on the Government’s behalf, that the environmental rights would be maintained. The Government have been and are committed to that. But they will maintain them in UK law. We have been able to that before. I believe Henry Brooke was the Home Secretary who introduced the Clean Air Act 1956. The Conservative party has a pretty good record on that. It turns out that the Sale of Goods Act 1893, to which I earlier referred the Minister, was one of the last Acts of Gladstone, so the Liberals should be proud of their history of doing things in a British way rather than needing the European Union to do it. The Conservatives introduced the Holidays with Pay Act 1938—again, the protection of workers’ rights. That is before we go back to Lord Shaftesbury and the Factory Acts. We do not need to go into the mists of time to see that we can do it ourselves.

Finally, I must mention amendment 36. This is the man upon the stair. We all know about the man upon the stair:

“Yesterday, upon the stair, I met a man who wasn’t there. He wasn’t there again today. I wish, I wish he’d go away.”

If we do not know what our laws are, how are people supposed to obey them? If the laws are unknown, mystic and possibly imaginary, surely they should not be laws in the first place. They have made the best argument for getting rid of the man upon the stair who was not there in the first place.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I will keep my remarks to the Bill’s impact on laws that fall within the remit of the Department of Environment, Food and Rural Affairs. The Government’s dashboard lists only 570 laws that DEFRA identified as within the scope of the Bill. That figure alone would make DEFRA the most heavily impacted Department. However, in Committee it became clear that as many as 1,000 laws may be at risk of being revoked by the Bill’s sunset clause in December.

There are not the resources in DEFRA to enable officials to examine properly each of those laws in turn in the time remaining before the sunset sweeps them away. That is forgetting all the other work on environmental land management, sewage, waste, air quality and our commitments at the nature COP in Montreal. While our nature is depleted further due to the Government’s short-sightedness, we will have a year of navel gazing and the entire Department will be clogged up with months of pointless work reviewing lists of laws that no one wants to drop.

I take umbrage with the right hon. Member for North East Somerset (Mr Rees-Mogg). There are no guarantees. The Government are not guaranteeing that a single law will be retained in UK law. They should prioritise their environmental commitments in the Environment Act 2021 and the 25-year environment plan, including the actions and policies necessary to deliver nature’s recovery by 2030, as well as the environmental targets, the statutory instrument for which will become law next Monday. Those should be the Department’s priorities.

A definitive list of environmentally important measures does not exist. One could say that the Government have played themselves. It is the same old story, but there is still time to change the ending. We know that the list is even more extensive than the comparable list of retained EU law that provides critical protections for workers’ rights and conditions. The inventory of workers’ rights legislation is shorter and more easily identifiable.

There are important differences between the three domains of rights and protections highlighted by Labour’s amendments, all of which would set us back on the right path and change the ending. The Bill is unnecessary and we need to retain all those regulations and laws as minimum standards in this country. The retained EU environmental laws covered by the Bill include major protections that we rely on for clean air, clean water and safe foods. They provide crucial safeguards for the world’s most nature-depleted nation. Those are not my words but the words of Lord Goldsmith, a Government Minister in the other place.

Under the Bill, critical environmental protections face the prospect of being revoked or replaced by weaker regulations. Those are our real, identifiable concerns. Due to the extremely limited time available to consider and draft workable replacements before the application of the sunset clause, and the lack of parliamentary oversight and public consultation, we must focus on those issues if we want the Government to change the direction of the Bill. The Government have said that they are committed to maintaining environmental protections. The right hon. Member for North East Somerset said that

“the Government is committed to maintain all the environmental protections that currently exist and met a number of the environmental lobby groups to confirm this”.

That quote was from an earlier time but I think he just repeated himself. There is no guarantee—it his just words on the record, and he is no longer a member of the Government.

[Caroline Lucas]

Is it not also the case that, as far as we are aware, the perception of environmental legislation held by the right hon. Member for North East Somerset tends to be very much a narrow thing about habitats, water and so forth? It does not include things like product standards, chemical regulation or efficiency standards, for example, all of which might not necessarily be dealt with by DEFRA but which absolutely affect us every day of our lives.

[Alex Sobel]

There is a point about REACH—the EU regulation concerning the registration, evaluation, authorisation and restriction of chemicals—which was mentioned in the Bill Committee, but I want to give other Members time to make their speeches, so I will take on the hon. Lady’s points and I am sure others will pick them up later in the debate.

[Mr Rees-Mogg]

rose—

[Alex Sobel]

As I have mentioned the right hon. Gentleman twice, I will give way to him.

[Mr Rees-Mogg]

I am very grateful. I just want to clarify a point. It is not my word that has any significance in this; it is a Dispatch Box commitment, by which Governments tend to be bound successively. I would point out that, on legislative reform orders, this Government have tended to follow the Dispatch Box commitment given by Paul Goggins when he was a Labour Minister. Dispatch Box commitments are important.

[Alex Sobel]

I look forward to repeating the words of the right hon. Gentleman and the Minister on the Treasury Bench in December this year, to see if that is true. Only time will tell. Maybe my poor level of trust might be wiped away or eroded, but I doubt it.

I will conclude, to give others more time. The Bill as it stands today gives us no protections and is a charter for a bonfire of rights and protections that the public not only hold dear but need in order to breathe clean air, drink clean water and ensure that our countryside is not ravaged by destruction and extraction. That is why I am supporting our Front-Bench Members and the amendment tabled by my hon. Friend the Member for Walthamstow (Stella Creasy).

[Vicky Ford]

I want to start by thanking the Minister for the “Dear colleague” letter that arrived last night. It went a long way to myth-busting some of the misinformation that has been put out about this Bill, particularly by clarifying that it will not weaken environmental protections and that the Government are committed to protecting workers’ rights. However, the letter did not mention consumer legislation. Consumer legislation is often dealt with by many different Government Departments, and that might be part of the reason why. I particularly want to focus on consumer legislation.

I worked for many years as a British MEP representing British constituents, and I also chaired the European Parliament’s Internal Market Committee, which is responsible for consumer legislation, so I am very aware of how important much EU consumer legislation is to protecting constituents—British consumers—and this covers many areas, including food safety, product safety and safety when we travel.

But I am also aware that EU legislation is not always perfect in all regards. Yes, the UK played a key part in negotiating much EU consumer law, but that does not mean that every single element of the law perfect fits the UK market or UK consumer needs. In some cases, the UK might have wanted to introduce different or even stronger protections, but to get consensus across all the EU member states, either a one-size-fits-all or a lowest-common-denominator approach was sometimes followed. For example, I sometimes saw larger companies lobbying on specific regulations or product specifications and making them so specific that smaller competitors would find themselves locked out of the market, thus stifling competition and reducing consumer choice. So I agree with the principle of the Bill that all of Whitehall needs to look again at all EU retained law and ensure that it fits UK needs.

Furthermore, where unnecessary regulation produces additional costs, these costs are too often passed on to consumers. In today’s economic environment, so many of our constituents have such pressures on their household budgets, and we need to reduce those unnecessary costs, so I understand why clause 15 has been drafted. However, this does not mean that removing all consumer regulation is in the consumer’s interests, because a well-regulated market can benefit consumers, especially when it comes to safety measures. There might be examples where it would be sensible for the UK actually to increase safety measures and therefore increase regulations in some places.

We also need to make sure that important protections do not inadvertently drop out of our legislation during this process. It is therefore important for Ministers to ensure that equivalent or improved legislation is put in place, so that consumer interests, especially regarding safety, can still be protected. I hope the Minister will be able to comment on that in the wind-ups.

We should also recognise that there are some areas, particularly in fast-moving sectors, where new or deeper regulation is needed. The consumer organisation Which? regularly reminds us that product safety regulations do not fully cover the way in which consumers spend their lives online, and there may be an opportunity to improve that in the forthcoming digital markets, competition and consumer Bill. Product safety regulations could be updated, given that the consultation is shortly to be launched by the Office for Product Safety and Standards. We need to make sure that the Retained EU Law (Revocation and Reform) Bill does not cut across those other initiatives.

Retained EU Law (Revocation and Reform) Bill

Alex Sobel Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[Layla Moran (Oxford West and Abingdon) (LD)]

It is a pleasure to follow the right hon. Member for North East Somerset (Mr Rees-Mogg). We agree on nothing but he makes his points very well. It is a help as I will be able to tell my constituents that, in front of the architect of the Bill, I made the case for why the approach was entirely wrong, and I shall do so. His speech reminds us that it was the plan all along to make food standards poorer, to attack the environment—not only to build houses, as in his case, but for other reasons too. At the time, the Government said, “Oh no, we’ll never make standards poorer”. Released from his ministerial role, however, the right hon. Gentleman is clear about the things that he wanted to do. Why on earth, he asks, do we not want to change alignment? The reason is that it is bad for the economy, and I will focus on that in my response to the amendments.

I disagree with the motion to dismiss Lords amendments 15 and 42. I agree with the statements made on Lords amendments 1 and 6. There was a useful exchange earlier in which Members clarified the specifics of the amendment tabled by Lord Hope. On the principle of taking back control, the Minister said that we had taken back control, but that begs the question: who does “we” refer to? That is still one of the biggest reasons why a huge number of my constituents care about the Bill.

It is worth reminding ourselves that Second Reading fell on the first day of the current Prime Minister’s premiership, the day when he promised to govern with “integrity, professionalism and accountability.” It is fair to say that promise has been utterly broken, especially given the behaviour of some of his Cabinet colleagues. He also promised to review and repeal all EU law within his first 100 days and, with the completely gutted Bill before us, we see that promise has been broken, too. It is a completely different Bill and a different proposition from how it began. Some of us are happy about that, and some are not, but I am pleased that it is a different approach.

When the Bill was first introduced, I and others felt it was ideologically driven, particularly the cliff-edge provisions that would have ended up in chaos. I said at the time that the provisions were “corrosive” and “unnecessary”. What we need now, above all else—post-pandemic and amid the war in Ukraine and the cost of living crisis—is calm. Members have spoken about throwing the baby out with the bathwater, which is exactly what this Bill would have done. It would have been a chaotic slash-and-burn approach, and I am pleased the Government have come to their senses.

I thank my Liberal Democrat colleagues in the other place for their work. Their exposure of the Bill’s potential damage through the reams of amendments they tabled has effected change. In particular, the Government have rightly made an amendment to eliminate the cliff edge for thousands of laws, to many of which we did not know whether the Bill would apply, which I have always found hugely bizarre.

I would hope that every Member in the Chamber believes in securing vital standards on, for example, sewage, although I find myself questioning whether every Member, indeed, does. It beggars belief that those standards were ever under threat, not least because of the result of the local elections, which were fought on such issues.

In introducing this Bill, what exactly was the Government’s problem with the Bathing Water Regulations 2013 and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, which never went far enough—we would have gone much further—but would have protected our hard-fought bathing water status in Oxford. The fact there had to be a fight, taking up so much parliamentary time, is one reason why we felt the Bill took entirely the wrong approach.

More than 400 constituents have written to me about the Bill, and they are rightly concerned about what it might still do—I will come to the “still” point in a moment—to workers’ rights and environmental protections. One constituent said:

“I don’t understand how the government can promise to improve our environment at the same time as setting out a law that could lead to basic protections getting weaker.”

I could not agree more.

The Berkshire, Buckinghamshire and Oxfordshire Wildlife Trust wrote to me about the Bill just this week and, although it welcomes, as we all do, some of the concessions that have been made, it is still concerned:

“We are in a nature and climate emergency. It is essential that the current level of legal protection is upheld and not weakened.”

There is still more work to do, and these Lords amendments, which the Liberal Democrats support, go some way to achieve that. Although many crucial standards and safeguards have been saved, thanks to the Government’s U-turn, the truth is that the Bill will hand Ministers, not Parliament, the power to meddle with them at a later date via secondary legislation, which means we need to remain vigilant on workers’ rights, sewage and the natural environment.

Should the next election result in anywhere near what the polls suggest, with the shoe ending up on the other foot, would Conservative Members trust the next Government always to get it right? Casting no aspersions, I do not, because I believe in parliamentary democracy. Even ideas with which I might agree benefit from scrutiny, a bit of prodding and other people’s experience, not least the experience of our constituents. That is why we support Lords amendment 42, which would ensure that if Ministers want to make changes to law in the future, a Joint Committee would be involved. I have heard those who have said that that is not the right mechanism, but do they disagree with the principle I have just put forward? If that is not the right mechanism, what is? I ask them to find one. We need a mechanism by which this House can bring our experience and scrutiny to bear, and, unfortunately, if it is not just a Joint Committee, it simply does not exist.

The Liberal Democrats also support Lords amendment 15, which provides a double lock on regulations that protect the environment or ensure our food is safe. It was put forward by my constituent Lord Krebs of Wytham, an eminent Cross Bencher who was the first chairman of the British Food Standards Agency. He will have constructed this provision thoughtfully and knowledgeably. For those regulations that will not be scrapped by the Bill, the amendment will ensure that Ministers cannot meddle with them in any way to lower standards. At the Dispatch Box, they consistently say—

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I served on the Bill Committee. The hon. Lady referred to the Bathing Water Regulations, a set of environmental regulations from which the right hon. Member for South West Norfolk (Elizabeth Truss), then a DEFRA Minister, tried to get an exemption for the UK. The talk from Conservative Members about these things being a “floor” needs to be carefully scrutinised. I agree that we need to legislate. In the Bill Committee, there was a refusal to accept our proposals, which is why we need to ensure that the amendment is in place, especially with the sunset provision moved.

[Layla Moran]

I thank the hon. Gentleman for that intervention and I entirely agree with the point he makes. I understand the point that some of the regulations need to fall away as they are technocratic, but the ones I am referring to are not those and yet they are getting caught up in the approach that the Bill takes. This is just not good law, so I urge Government Members to stand up for our environment and food standards, and reject the Government’s attempts to remove the amendment. Without it, the mechanism for us, as Back Benchers, to be able to influence a Government—it could be a Labour Government or something else, but it does not matter—is not there. We need to have it. Some 600 laws are still scheduled for revocation at the end of the year, without any specific deliberation or input from Parliament. The Bill still grants significant powers to Ministers to rewrite any item of retained EU law, including those now exempt from the sunset. Provisions that would create considerable legal uncertainty also remain.

Even though the total number of laws being revoked has fallen significantly, I continue to put forward the idea that this Bill remains a gross abuse of Executive power. Parliament is the seat of our democracy. Parliament should have its say, and I urge the Government, through these amendments, to consider their entire approach and put Parliament in charge. When they said they would take back control, I am sorry but I do not think they meant themselves.