Retained EU Law (Revocation and Reform) Bill

Baroness Bennett of Manor Castle Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Lucas (Con)]

My Lords, I have Amendment 41A in this group. We discussed this issue in Committee. I said, “If the Government want to go down the route of keeping in Clause 16(5), why don’t they promise the same about the environment?” After all, the Government made the same set of promises regarding environmental legislation—that they would not do anything to damage the protection that the current regulations offered—while here in Clause 16(5) they are saying they will not do anything to increase the regulatory burden.

The Government wisely said they did not want to put in the Bill the promise that they would not damage environmental regulation. I had rather hoped that meant they would take out Clause 16(5), because to my mind that subsection offers nothing but uncertainty. How is it to be interpreted by the courts if the Government propose to use the clause and someone challenges its use in the courts, saying, “This subsection says ‘in relation to a particular subject area’. Has that been reasonably chosen and correctly defined? What is the overall effect of the changes?”? They will have to look at every piece of legislation that has passed in relation to that particular subject area. How are they to be weighed up? There is no mechanism here providing for them to be weighed.

The courts are going to be asked how one bit of legislation should be weighed against another with regard to the changes that it makes and the regulatory burden. How do you weigh one bit of regulatory burden against another if one bit of regulation imposes something on one group and the next regulation imposes something on another? How do you weigh those two things together? It seems to be asking the absolute impossible. It means that any bit of legislation passed under Clause 16 will be open to all sorts of challenges in the courts, and there will be no way of knowing what the outcome will be, because nothing in this subsection, or elsewhere in the clause, tells you how to parse it. So I hope the Government will see the good sense they had when they chose not to adopt my suggestion of doing this for environmental legislation and take Clause 16(5) and (6) out of the Bill.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I agree with the entirety of Amendment 41A from the noble Lord, Lord Lucas, while agreeing with only half his reasoning. I entirely agree that, as we discussed at length in Committee, this is essentially impossible to calculate and creates a great deal of legal uncertainty. Where I disagree with him is that I would very much like to have seen non-regression clauses for the environment, public health, workers’ rights and a whole range of other things in the Bill.

Practically, what we are doing with the clause at the moment, if it is implemented, is creating a guaranteed regression of workers’ rights, food standards and environmental standards. If we do not have regulation of business, we will certainly see at least some cowboy businesses taking advantage of a reduction in regulation. That of course will not be in the interests of businesses that want to do the right thing on the environment, public health or workers’ rights.

I spent a great deal of time during the passage of the Environment Act and the Agriculture Act arguing for non-regression clauses. What the Government are currently giving us is a guaranteed regression clause, and that really should not be acceptable.

[Lord Fox (LD)]

My Lords, as the proposer of Amendment 45, which is also in the names of the noble Baroness, Lady Chapman, and the noble Lord, Lord Hacking, I feel a terrible weight resting on my shoulders as a result of the preface from the noble and learned Lord, Lord Hope, because this is the amendment that seeks to remove Clause 16 and I fear that I am not going to reach the billing that he gave us.

Over the course of this session, we have heard numerous arguments about the way in which the Bill more and more removes Parliament from the process of revocation and reform. I am not going to rehearse all those arguments again, because your Lordships have heard them both on Report and in Committee. Clause 16 is one of the key parts of the machinery in the Bill to govern how retained EU law can be reformed. There is an argument for removing the clause altogether, but I have bowed to the spirit of scrutiny rather than total oblivion and, as such, I do not intend to move the amendment.

As we have already heard in advance from the noble Lord, Lord Lucas, the provision that causes most concern is Clause 16(5), which mandates the nature of any reform of REUL to be deregulation—and deregulation only. The point the noble Lord made is about how we measure the sum of regulation. There was all sorts of debate in Committee. Is it the total of the changes across a group of amendments or a section of amendments? Is it each amendment by itself? These questions were never satisfactorily answered in Committee, so perhaps during Report the Minister can tell us how the amount of regulation will be measured. In other words, can one increase in regulation be balanced by two decreases in regulation through adjacent provisions, for example? We have not had answers to that.

Essentially, the spirit of the Bill is that there can be no increase in the “burden”—according to the Bill—caused by this reformed retained EU law. Clause 16(10) defines burden, with its paragraph (b) including “administrative inconvenience”, but one person’s administrative inconvenience is another’s life-saving safety measure. It depends on which direction you look at it. Clause 16(10)(d) includes

“an obstacle to efficiency, productivity or profitability”

as a burden. Again, what may seem an obstacle to one group may be existentially important to another.

As I said, I am not aiming to push this amendment to a vote. We are seeing amendments that are putting some safeguards in place. The noble Lord mentioned Amendment 76, which we anticipate. I am anticipating Amendment 48 in the name of the noble Lord, Lord Krebs, where we will talk about non-regression, and Amendment 50, which will come up shortly. These are other important pieces to put in place to try to draw the majority of the sting from Clause 16.

--- Later in debate ---

[Lord Duncan of Springbank (Con)]

My Lords, I realise that the hour is late and I do not intend to detain your Lordships long. I speak to Amendment 48. It is a cross-party amendment and this morning, when I began to consider this, I typed up some notes, which I have—but I do not have my glasses and I typed in a font far too small. I feel I am now a speaking metaphor for what the amendment represents. We have to be careful that we are looking not just at the fuzziness of the whole issue but at the detail. The noble Lord, Lord Krebs, ably set out why it is important.

This is a non-regression amendment. We are where we are right now, and we are content with that—if anything, we should be going further, but let there be no step backwards. The important statements in this amendment are very clear: let us accept what we are able to achieve, look at the international standards by which we must be judged and consider how to do that correctly.

I am pleased to see the Minister before us. It is not my intention or desire to vote against the Government, but these things occasionally happen. I think he can give us some words of comfort this evening about how we might help us to be able to understand the non-regression element of each of the matters we have touched on so far.

I will speak no further, other than simply to say that the amendment establishes and stabilises what we are about. We are a nation with clear ambition in this area, and we have done good work. Let us not let that be lost; let us not regress.

[Baroness Bennett of Manor Castle (GP)]

My Lords, having attached my name to Amendment 47 in the name of the noble Earl, Lord Caithness, and the noble Baroness, Lady Willis, I shall make just a couple of points on that. I stress Amendment 48, to which the Green group would have attached our names had there been space, and the point made by the noble Lord, Lord Krebs, that this is writing into the Bill what the Government tell us again and again, as they have for years, they want to achieve. It is simply delivering the Government’s expressed desire.

I want to make just three points on Amendment 47. There is some important terminology, with which I suspect the noble Baroness, Lady Willis, may have had something to do. That refers to the methodological quality of the evidence. There is increasing awareness in the scientific community of the need to look at the problem of publication bias: the probability that a scientific study is published is not independent of its results. That is just one way in which we have real problems with the methodology of what has been published and the Government have considered in the past, to which the amendment is to some degree addressed.

Proposed new subsection (5) mentions

“a sufficiently wide view of the ecological impacts”.

I will take a case study of this. Scientists are increasingly concerned about the combined cocktail impact of pesticides, plastics and pharmaceuticals together in the environment. I point the Minister to a European report by the CHEM Trust, Chemical Cocktails: The Neglected Threat of Toxic Mixtures and How to Fix It and, independently occurring, a launch this month in the UK of a report from the Wildlife and Countryside Link with the Rivers Trust and UK Youth for Nature, Chemical Cocktails: How Can We Reduce the Toxic Burden on Our Rivers? The scientific view taking that overall wide ecological view is increasingly being recognised as crucial, and massively understudied.

The final point I want to make is that Amendment 47 is reflective of something that I am increasingly finding: groups of scientists—including established scientists whom you might expect that have a very good route into the Government—are coming to me and saying, “Please advise us on how we can get through to the Government to make sure that our scientific advice and discoveries are acted on”. There is real feeling in the scientific community that there has been a breakdown in communication and consideration from the Government in terms of the current science. This amendment seeks to address those issues.

[Baroness Hayman of Ullock (Lab)]

My Lords, I shall be very brief. I just want to give particular support to Amendment 48, to which I have added my name. We cannot allow the Bill to weaken environmental and food safety standards. We know that Defra has by far the largest share of affected regulations of any department, so the Bill really will have significant implications for environment and food safety law-making unless it is done well.

I will not repeat the reasons why we need these amendments, but what has come across very clearly is the fact that there is widespread and strong support for the environmental non-regression principle.

Importantly, Amendment 48 would give transparency but also legal substance to the warm words of the Minister, as the noble Lord, Lord Krebs, mentioned. On day 2 of Committee, the Minister said that the Government are committed to maintaining high environmental standards and that he wanted

“to see … standards improve in future”.—[Official Report, 28/2/23; col. 208.]

I absolutely believe that is the case but, as a matter of law, the Bill provides no assurances or protections and cannot bind the hands of future Ministers. It is absolutely critical that these assurances and protections are in place in the Bill because, without a non-regression principle in law, they simply are not there.

On that basis, if the noble Earl, Lord Caithness, wishes to test the opinion of the House, he will have our support.