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.

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[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?

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[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.

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[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.

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[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.