Retained EU Law (Revocation and Reform) Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Baroness Altmann (Con)]

I join the tributes to my noble friend the Minister—an excellent Minister who is passionate and knowledgeable about his brief. I also thank him for the briefing yesterday. I have no doubt that he was sincere in his reassuring words that the default position will be to retain, and I have no doubt that that is his intention, but this is not the reality of the Bill. As my noble friend said yesterday on REACH, the water framework directive and habitats, the Environment Act set up a clear process for change, and yet now we find that the Bill overrides all that, as the noble Baroness, Lady Parminter, stated.

If a carve-out is possible for financial services, surely this is one of the other areas that must be excluded from the Bill. I am sure that there has been an extensive effort to find all the various regulations involved in protecting the environment and involved in REACH and so on, but the only reassurance we had yesterday was that the department is confident that it has found the vast majority. This is about protecting the public.

We are also told that, if Ministers see fit, or decide that it is in citizens’ best interests, they will make the relevant and necessary changes as they decide. But what if Parliament disagrees? It will have no power. Indeed, as the noble Lord, Lord Kerr, indicated, were the public to be asked themselves, they would disagree. They are not consulted and they have no say; this will be happening by default.

In my view, it is not possible to improve environmental protections without tightening regulations in some way, yet the Bill works against all that. If you want cleaner water in our rivers, as the noble Duke, the Duke of Wellington, so rightly focused on, will you have to have more dirty water in the sea? How will you offset that? Who will decide where regulations must be relaxed to be able to tighten in other areas as we move forward with the intention we clearly have—and rightly so—to improve environmental protections and protections for the public? If it is discovered that a whole family of chemicals or pesticides are more harmful than previously recognised and need to be banned, will other harmful substances have to be allowed into public circulation because we must not tighten regulation?

The Bill seems to be driven by ideology and politics. I have concerns that the sunset is clearly politically driven, and that it cannot be in the national interest. Surely the ideology that regulations can only be weakened cannot apply to something as precious as the environment and all the issues covered by Amendments 10, 11, 12 and 37.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann, and to join in this debate, which is obviously about an absolutely core area for the Green group.

I offer a reassurance to the noble Baroness, Lady Lawlor, who, in this very wide and broad debate round the Committee, was the only one who offered some kind of support for the Government’s position. On protecting wild animals, she said that she wanted to see divergence for the better. Of course, if we threw out the Bill and it disappeared—everyone from the noble Viscount, Lord Stansgate, to many noble Lords opposite, including the noble Lord, Lord Cormack, and the 12 Cross-Bench colleagues I counted who have spoken, indicated either implicitly or explicitly that that was their desire—Defra would have vastly more time to work on improving and strengthening existing regulations. That is what the noble Baroness is wishing for, and the best way to do that would be to get rid of the Bill.

Many noble Lords have talked about this, but I shall just pick up on what the noble Duke, the Duke of Wellington, said about the reassurances that we heard yesterday and the ones that we are expecting today from the noble Lord, Lord Benyon, from the Front Bench. Reassurances are fine, but they must be in the Bill. That in effect in this area is what is done by Amendment 37, in the name of the noble Baroness, Lady Hayman, the noble Lord, Lord Krebs, and the noble Baroness, Lady Bakewell, and to which I have added my name to make it cross-party and non-party. This is an authoritative—if not comprehensive—list of the main areas of Green and animal welfare concern. I associate the Green group with almost everything said by the noble Baronesses, Lady Hayman, Lady Bakewell and Lady Parminter, and the noble Lord, Lord Krebs, but I shall disagree on one point. The noble Baroness, Lady Hayman, said that we have high standards in the UK, and the noble Baroness, Lady Parminter, said that we have stringent targets. I would say that we have a basic inadequate minimum of standards.

To pick up on the point made by the noble Baroness, Lady Altmann, and to expand on it a little, there was much discussion in the last debate that we had to wait until we got to debate Clause 15. But let us look at that letter—I am afraid that I am going back to the famous letter. I have hand-transcribed a paragraph from it, because it is so important. The letter says that the Minister would like to

“clarify that it is possible for additional regulations and higher standards to be introduced through the powers to revoke or replace, so long as the package of reforms contained within each statutory instrument does not increase the overall regulatory burden for that particular subject area”.

The noble Baroness, Lady Altmann, said, “What about new scientific discoveries—say about water?” To be concrete about that, let us think about new scientific discoveries that we have experienced just in the last year or two, such as PFASs, or “forever chemicals”, as they known in shorthand. We are coming to understand just how utterly pervasive and dangerous they are. Does that mean that we are going to give up and let a bit more sewage in, so long as we can do something to block some PFASs? That is what that paragraph in the letter means.

Antimicrobial resistance is something else that I am doing a great deal of work on. I must have a discussion about it with the Minister at some stage. We now increasingly understand that pesticides are having impacts in causing antimicrobial resistance. That is something that the Minister may not yet quite grasp, but it is a really important technical area. We are also starting to understand what the impact of microplastics in our water and soils might be on human health, to pick up on the point that the noble Lord, Lord Krebs, made: we are not just talking about looking after the environment. We are talking about looking after what we actually live in.

I am not sure that even the Benches around me really grasp that our economy and our lives are entirely dependent on the environment. In the UK, we are using our share of the resources of three planets every year—and we have only one planet. So, as the noble Baroness, Lady Parminter, pointed out, we squeezed into the Environment Act—and my recollection is that we had to fight very hard to do this—some non-regression clauses. We absolutely have to strengthen so many things to head us in that one-planet-living direction.

To continue with that focus on biology and thinking of us as human animals in a world on which we are entirely dependent, we have an ecosystem that has developed over decades. We have talked about the importance of case law and how EU and UK approaches have been blended together in regulations. I am still trying to understand what the interpretive effects are, and whether they are or are not reflecting case law. But the model of an ecosystem is perfect for this.

It might surprise the Committee, but I am going to cite a recent article from Current Biology, a peer-reviewed journal, about the Permian-Triassic boundary, a period known as the “Great Dying”. One thing that was found in this period was that one apparently quite insignificant little species had a key role in the ecosystem, and when that died a whole ecosystem fell apart. That works as a metaphor for the risk that we are running with this Bill—however good the list is from the noble Baroness, Lady Hayman. What is missing, what is the keystone, what is the vital bit that makes everything else fall apart? The Government cannot tell us; they can tell us only that they do not know. That is where we are.

--- Later in debate ---

[Lord Callanan (Con)]

I will address the noble Lord’s point at the end of my remarks, after I have moved the government amendments.

I think I had got to the new clause tabled as Amendment 45. The new clause sets out clearly and in one place all the exceptions to the sunset in Clause 1. I will explain the financial services issue at the end.

It includes exceptions that were previously located elsewhere in the Bill but have now been consolidated into the proposed new clause, such as exceptions for instruments specified in regulations—the preservation power—and for relevant financial services law. It also contains a number of amendments that will help departments deliver our ambitious EU law reform programme. The first of these is to ensure that, when a decision is taken to preserve retained EU law, any legislation that is made or has effect under it will also be preserved alongside the parent legislation, without it having to be individually specified in regulations. The parent legislation establishing a regime, for example, would still be reviewed under the programme but, once a decision to keep such a regime is made, it will not be necessary to reassess every single licence, for instance, or decision issued under that regime.

The second of these amendments allows for the preservation of a description of minor instruments, without the requirement to individually identify and specify them. This includes where these instruments are made directly under primary legislation that is not in scope of the sunset. This and the previous amendment remove the need to individually list large numbers of what might not be traditionally considered legislative instruments in order to preserve them.

A third minor amendment would remove any existing “transitional, transitory or saving” provisions from the scope of the sunset. In a number of areas we have already reformed retained EU law and, in some cases, we have made “transitional, transitory or saving” provisions, whereby some aspects of the previous legislation were saved to support implementation of or transition to the new regime. The aim of the Bill is not to undo or revoke retained EU law reform that has already been made. Thus, this amendment will ensure the continued legal operation of retained EU law that has been identified as necessary to serve a particular purpose, often for a time-limited period.

Finally, this proposed new clause introduces new wording to ensure that references to instruments or provisions in preservation SIs apply only so far as the provisions would otherwise sunset. Consequently, this puts beyond doubt that, where an SI references instruments that contain provisions that are not in scope of the sunset, the instrument is still lawfully made within the power.

Ultimately, this new clause provides drafting clarity. It will make the exemptions to the sunset much clearer, gathering them all in one place. It also introduces four minor and technical amendments that I have just explained in detail but that do not change the overall policy. They facilitate departments to preserve legislation more easily, where they deem it appropriate to do so, and respond to many of the points made in the debates on previous groups.

Amendment 138 is also minor and technical, and serves merely to change the reference to Clause 1 in Part 3 of Schedule 4 to a reference to the new clause created by Amendment 45.

Amendment 52 will update the drafting of the new clause, but in Clause 2. It will insert the wording “so far” after “section 1”. In effect, this will ensure that references to specified instruments or provisions in extension SIs apply only to those provisions so far as they are in scope of the sunset, and do not relate to any provisions not in scope of the sunset.

These amendments are all minor drafting clarifications or changes and do not change the scope of the sunset or the policy of the Bill. I hope noble Lords will look at Hansard if they want the details of them.

There are a large number of other amendments that seek to limit the ambitions of the sunset or to insert additional complex processes into the operation of the sunset clause. It is our belief that none of these is appropriate for this Bill and that they are likely only to hamper efforts to realise the opportunities that the Bill presents.

To start with, Amendments 46 and 47 tabled by the noble Baroness, Lady Young, aim to amend government Amendment 45, which I have already discussed. To reiterate, the exceptions within Amendment 45 are only sector-specific in the case of financial services, where the retained EU law in question will be reviewed via the separate legislation to which the noble Lord, Lord Davies, already referred, which is already being planned and implemented. The legislation put forward by the noble Baroness would not be appropriate to remove from the scope of the sunset. We just had a very long debate on the issues with exempting specific environmental legislation from the scope of the sunset, and I hope noble Lords accept that we do not need to repeat that on this group.

I turn to Amendments 26 and 48, tabled by the noble Lord, Lord Fox. The consulting and reporting requirements introduced by these amendments would limit the sunset as a key driver of reform and would therefore narrow the ambition.

A significant minority of retained EU law is also legally inoperable. Removing it from the statute book swiftly is good democratic governance. Requiring the Government to undergo complex and unnecessary parliamentary processes to remove legally inoperable retained EU law that is unnecessary and no longer fit for purpose is not good governance.

Where reforms are being made to retained EU law, the normal processes of consultation will of course be followed where appropriate and the relevant reforming legislation scrutinised as usual. It is not necessary to add additional complexity to the existing legislative process.

[Baroness Bennett of Manor Castle (GP)]

The Minister referred to Amendment 26 and 48 as additional complex processes. Does he not acknowledge that these would protect the Government from themselves, in that the implementation would ensure that regulations—which might not be on the dashboard, or might be unspecified or, as others have called them, “unknown unknowns”—would not lapse? They would ensure that everything that was going to lapse was identified, because if it had not been identified and had this report, it would not lapse.

Furthermore, the Government are relying entirely on the knowledge of the department. If they have a consultation before anything is removed, that would draw on the knowledge of all of civil society and the expert community to ensure that there is full knowledge before any changes are made.