Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Fox, and to welcome the noble Baroness, Lady Bray, and my noble friend Lady O’Grady; I look forward to their maiden speeches. I take this opportunity particularly to welcome my noble friend, who has been an inspiration to women throughout the labour movement for many years—especially since she spent time in the 1980s with my husband organising members to join the T&G, some of it spent hanging around outside the back of hotels and other such salubrious places. I know that she will never forget her roots; her being here today just goes to show what a great engine of social mobility the trade union movement can be. I very much look forward to her speech.

Six years ago, when the Government introduced the then European Union (Withdrawal) Bill, which ensured that EU-derived law was incorporated into UK law, I sat in the other place and listened carefully to the Secretary of State as he laid out the Government’s case. That day, he told us:

“The key point of this Bill is to avoid significant and serious gaps in our statute book. It ensures that consumers can be clear about their protection, employees can be clear about their rights, and businesses can be clear about the rules that regulate their trade.”—[Official Report, Commons, 7/9/17; col. 334.]


Somehow, incredibly, the Government have come full circle. This new Bill does the exact opposite. Faced with no external pressure or deadline, the Government are willingly creating their own cliff edge: generating uncertainty rather than reducing it; creating gaps in our legal framework rather than filling them; bringing chaos to the structure of rights, protections and standards on which so much business, trade, employment and environmental protection depends. That is why the opposition to the Bill is so broad and has come from such diverse quarters. It is no mean feat to unify the CBI and the TUC, industry and environmentalists, farmers and factory owners, twitchers and anglers, doctors and lawyers, national parks and the National Trust, Scottish Parliament and Welsh Senedd, and many, many more. All are united in opposition to this Government’s plans. The CBI says that the Government is subjecting

“the public—and industry—to another round of mass confusion and disruption, just when we’re trying to exit recession.”

The TUC has called the Bill a “recipe for chaos”. The Institute of Directors says that it

“will impose a major new burden on business”.

The Federation of Small Businesses wants the sunset provisions removed. The National Farmers’ Union fears that it could unintentionally remove important regulatory safeguards. The Marine Conservation Society says that it

“poses a huge threat to marine life and environmental protections”.

The RSPB says that it will put at risk thousands of crucial laws that protect the natural environment and public health. The Government’s own Regulatory Policy Committee has called the Bill “not fit for purpose”.

It would be hard to find a less popular proposal but, despite the warnings of this unprecedented coalition, the Government plough ahead regardless, closing their ears to warning and criticism, with a Bill that is reckless, unpopular and—worst of all—unnecessary. The Bill is not about Brexit. We have left the European Union; we have been out of the EU for three years and the referendum was the best part of a decade ago. These questions are nothing to do with leave or remain; they are not even principally about our future relationship with the EU, although that too, like so much else, could be affected by this legislation. Principally at issue are how we govern our own country, how we regulate our economy, how we ensure rights for workers, how we protect the environment, and the proper role of this Parliament in making those decisions.

No one could reasonably object to revisiting specific laws derived from the EU in a sensible, orderly fashion. It is right and reasonable to ask whether there are areas in which we can do things differently or better—that is the essence of competent government—but what is needed is a smart approach to regulatory change. Ensuring that workers’ rights, consumer protections and environmental standards are maintained or indeed enhanced; carefully considering where we might do things differently and what should stay the same, on a case-by-case basis; listening to stakeholders from business and civil society; respecting the proper role of the devolved Administrations; and promoting a race to the top, not to the bottom—that would be the approach taken by a Labour Government. Instead, we have this uniquely reckless and wrong-headed approach to legislative change.

The Bill is unlike any other that I have seen in my time in either House. There are multiple reasons why in its current form it does not deserve to be on the statute book, but I shall focus on four. The first is the dangerous presumption in the Bill to remove all law which is not specifically retained; the second is the legislative cliff edge created by the so-called sunset clause; the third is the risk that it poses to rights and protections in countless fields; and the fourth is the extraordinary and unjustifiable powers given to Ministers of the Crown, and the disrespect shown to Parliament. I will take each in turn.

First, the upshot of the intention to remove all EU-derived law by default is one simple and absurd fact: no one knows exactly what laws will be revoked at the end of the year. The Government certainly do not know. They are still merrily adding new legislation to their online dashboard, checking behind government sofas for some other scroll of vellum that they may have overlooked. Nothing illustrates this farcical process more than the fact that, between the Bill passing Third Reading in the Commons and arriving before noble Lords today, another 1,000 pieces of legislation were added to the pile. Some may still be removed without being identified first, with indeterminate consequences. This is legislative Jenga. Never before in my time in either House have a Government brought forth a piece of legislation whose legal scope they are unable to define. The Government’s proposal is that this House should give Ministers the power to remove laws without them being able to say which laws will be removed. That is a nonsensical way to govern.

The second objection is to the sunset clause. All EU law that is not specifically retained will be revoked by the end of the year. That creates a completely arbitrary and unnecessary regulatory cliff edge at a time when business is crying out for stability. In fact, the Bill in effect contains three sunset clauses—2023, 2026 and for ever—since, under Clause 1(2), Ministers can choose to retain EU law until they choose to change it. If you were trying to design a Bill to undermine business confidence and inward investment, it would be hard to do a better job than this one. The Bill says to business, “The current rules that you operate under—the rules that you understand, rely on and are compliant with—may cease to exist at the end of the year. We can’t say which rules for certain yet, we can’t say what they will be replaced with, and the decision will be made by the Business Secretary on a whim.” If the Minister disagrees, could he tell the CBI, the FSB, the British Chamber of Commerce and the Institute of Directors why it is them who are wrong?

The cliff edge will generate an extraordinary volume of work for civil servants, especially in those departments with a large body of retained EU law, such as Defra. According to the Government’s own dashboard, Defra will have to assess, revise or amend more than 1,700 pieces of law—more than four pieces of law every day between now and the end of the year. That is not achievable. As the consumer watchdog Which? has said, this time pressure creates the risk of mistakes or errors that could have serious consequences. It is also a massive opportunity cost. That is why the RSPB says that the Bill will

“derail urgent action to tackle the nature and climate crisis”

by consuming the resources of departments. Amid a recession and a cost of living crisis, can frantically combing through a back catalogue of law against a self-imposed deadline really be the right use of Civil Service time? I know that many members of the Minister’s own party share these reservations about the sunset clause. It is not a partisan point; it is about competent government—and that brings me to my third principal objection.

This Bill puts at risk many crucial rights and standards and expects trust in the Secretary of State to be a substitute for legal protection. Let us just consider some of the areas covered by retained EU law, such as environmental protection, food safety, civil aviation codes, noise pollution, biosecurity, vehicle standards and employment law. Many of these protections were hard fought and hard won. They cannot be crudely dismissed as abstract red tape. Protections for pregnant women from workforce discrimination, paid annual leave, parental leave, protections for part-time employees, limits on weekly working hours—many of these rights and protections disproportionately affect women and the impact assessment recognises in three separate paragraphs that the Bill contains a threat to equality.

We cannot accept a situation in which these vital protections could be changed at the whim of the Business Secretary. This is made worse by Clause 15, which confirms that rights and protections can go in only one direction: down. The requirement to not increase burdens ensures there can be no race to the top on standards and rights. We must be clear that diminishing our standards could have serious implications for trade. It will complicate the issues created by the Northern Ireland protocol, make it harder to remove barriers in the Irish Sea and could create new difficulties in our trade with the EU.

Finally, I want to address the lack of scrutiny and accountability. This is another Bill brought forward in the name of Brexit that, rather than restoring parliamentary sovereignty, continues a trend of growing executive power. The Bill sidelines Parliament, minimises scrutiny, weakens accountability and hands Ministers unreasonable and unjustifiable powers. To do so in the name of democracy is double-speak.

The Bill contains no requirement for public consultation or impact assessments of proposed changes. Any parliamentarian who wishes to scrutinise or object to future legislation replacing retained law will be taking a gamble because, unless that legislation is passed in time, the current law in its entirety will simply fall away. The sunset clause puts a gun to Parliament’s head. This cannot be the right way to make law in our country.

While we acknowledge that the Bill has passed in the other place and will not frustrate it, we continue to have grave concerns about this legislation. It threatens workers’ rights, environmental standards and consumer protections. It puts our country on course to a self-imposed cliff edge. It undermines scrutiny and accountability and will weaken Parliament. We will seek to amend the legislation to address these issues.

This Bill rests on a fundamentally simplistic and inaccurate view of what regulation is and who it is for. The Government are trying to please some fantasy version of business, still fighting Brexit ghosts in their heads. But business does not want an uncontrolled bonfire of regulation. The truth is that good regulation enables business and trade. It creates stability and predictability. It raises standards. It protects companies as well as consumers, employers as well as workers. The truth is this Bill is a political hangover—the last promise of a Government who collapsed as they made contact with reality. While people are still paying the price in higher mortgage bills, the Government can still spare the public and business the disruption this Bill will generate. I urge them to change course now.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

Tabled by

[Baroness Chapman of Darlington]

At end insert “but regrets that this Bill threatens workers’ rights, environmental standards and consumer protections; that it has been introduced without a complete understanding of its scope or impact or what will replace the laws it revokes; that it creates damaging confusion and disruption in the economy during a cost of living crisis; is opposed by both business and workers representatives, including the Confederation of British Industry and the Trades Union Congress; that its legislative ‘sunset’ is arbitrary and will create a regulatory cliff-edge; that it ignores the concerns and lacks the consent of the devolved administrations; and that it undermines democratic scrutiny and accountability, providing ministers with unnecessary and unjustifiable powers.”.

[Baroness Chapman of Darlington (Lab)]

My Lords, I do not wish to move my amendment.

Baroness Chapman of Darlington’s amendment to the Motion not moved.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Whitty (Lab)]

My Lords, I want to follow the noble Lord, Lord Kerr, in intervening on this issue because this is the first consumer protection part of the Bill. I was once a consumer champion—I hope I continue to be so privately—and this amendment and many in the next group relate to food safety. The noble Lord is absolutely right: this is one of the most acutely difficult areas of consumer protection, and labelling in particular has caused a certain amount of controversy. But there is settled law here, and the bulk of it originates from Europe.

There are other areas of consumer law where UK law is better than EU law, but here, our scientists, our food industry and the Europeans have come up with an agreement which goes right across Europe. We have to remember that processed food and fresh food is a very well-traded commodity, probably the biggest trading commodity within the European continent, and we need some commonality. The threat of this being changed is surely a real difficulty for the food industry—although the Minister can answer that—and certainly for consumers. It is difficult enough to follow the labelling and consumer information currently required; if we have different labelling and requirements for things originating in France and in the UK—or for those originating in the Republic of Ireland and in Northern Ireland—we will have huge difficulties.

But there is something more behind this. When the Government presented the European Union (Withdrawal) Act 2018, I think we all accepted that whether we liked Brexit or not, we would have to have a process whereby government looked at whether some of these laws continued. The real difficulty with this legislation is that it does not provide for a steady look at what the highest priority is for government to intervene on over the next few years, in order to see in a broader context whether we ought to change it. There is the threat that every single regulation and law mentioned in these amendments and in subsequent groups will end on 31 December this year without any replacement, whether with consideration or not.

We are on Clause 1, which deals with the sunset. The noble Lord, Lord Kerr, has referred to the relatively sparsely populated Government Benches. I ask Ministers if during their lunch break they have taken note of the points made by the noble Baroness, Lady Altmann, and the noble Lord, Lord Lucas. If they are taken on board, that would reduce the anxiety here and in civil society about this approach. If the sunset clause disappears, and with it the threat of regulations entirely disappearing at the end of this year, we would give the Government credit for being able to make a proper assessment of whether those rules are needed.

Regarding the suggestion of the noble Lord, Lord Lucas, if we had an amendment to Clause 15 which, broadly speaking, said “no regression”, the level of anxiety would again be greatly relieved, at least in relation to some of the regulations we are talking about.

So I hope the Minister took the opportunity of the 50-minute adjournment to think about what his colleagues were saying, and that he will come back to us, either now or subsequently, with an assurance that there will not be the death of all these regulations as of 31 December, and that regression will not occur in relation to any of them, particularly those dealing with food labelling information and the protection of consumers whenever they go to the supermarket.

[Baroness Chapman of Darlington (Lab)]

My Lords, I support all the amendments in this group. The noble Lords, Lord Fox and Lord Clement-Jones, and the noble Baroness, Lady Brinton, in the way she introduced them, have done a very good job of bringing these important issues to our attention. I want to make a couple of points that have not yet been made about this process. We have had a lot of discussion on process, as we do on Bills that are all about enabling rather than substance. That is inevitably what our debates end up focusing on; we use these issues as a prism to look through. It helps us to realise just how dreadful an approach the Government are choosing to adopt.

As we all said at Second Reading, I do not think anybody objects to the Government looking at retained EU law and asking Parliament to make changes to it. That is what Governments are there to do: to improve the law of the land. We respect this Government’s right to do that. We might not like it, but that is what they are there to do. However, we feel that to do it in this way is just wrong in principle, and the usefulness of these three amendments is that they make that point very well.

When I was looking at Amendment 3, I noticed that in February last year the Government presented an SI dealing with health professional qualifications. They said that it was needed because the measures concerned had been dealt with in a hurry as we left the EU. At that point, in that SI, the word “pharmacist” had been used instead of “dentist”. That is quite an error. I raise this for a couple of reasons. The first, obviously, is to demonstrate that the Government can and do change regulations arising from our exit from the EU as a matter of course. It is a perfectly normal thing for both Houses to do. I myself, and I am sure everybody else in the Chamber today, have had the great honour, privilege and delight of taking part in many SI debates. It is what we do. Even when things are not done in a crazy rush, trying to get hundreds or thousands of these done by Christmas, significant errors are made and things are put into the law of this country that were never intended to be there and should not be there. I also raise this because I wanted to highlight that however brilliant our civil servants are—as I think they are—and however diligent and hard-working they definitely are, errors are made by civil servants too. I am not someone who has described our Civil Service as “broken”, “lazy” or “bloated”, but government Ministers have, very recently; yet they are asking civil servants to undertake this Herculean process. There is a tension there.

Amendment 4 and the issue of food labelling is important; I am not surprised that that is what the majority of the contributions on this group have focused on. There are multiple examples of deaths occurring as a consequence of food labelling not being right. I am very supportive of an examination of our food labelling laws. I am very happy that this could be done by the UK Government—ideally in consultation, at the very least, with the devolved Administrations.

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[Lord Hope of Craighead (CB)]

Before the noble Baroness sits down, I wonder whether she accepts my point about the common framework relating to food labelling and standards, because it does raise a different dimension. In that case, the UK Ministers do not have a free hand if the framework system is to survive. Every change has to be discussed, and preferably agreed, with the devolved Administrations. If there is disagreement, then that has to go through a resolution process, which may ultimately end up with the UK Minister. But it is quite a complicated process, which is designed to make sure that there can be some divergence, but an agreed divergence, across the Administrations, which is in the interests of everybody. So I wonder whether she accepts my point that this is another dimension which really has to be explored, and of course has a bearing on the sunset point.

[Baroness Chapman of Darlington (Lab)]

I very much accept that. It might be that we want to discuss later in the Bill whether or not any of the issues that devolved Administrations have a view on, or have responsibility for, ought to be dealt with in a different way, because the devolved Administrations, as of today, are deeply concerned about the way that the Government are proceeding. So I very much agree with the noble Lord’s point.

[Baroness Meacher (CB)]

My Lords, may I just respond to the noble Baroness, Lady Chapman? She said that we just need to know whether the Government want to retain the protections in terms of health, PPE and food labelling, or whether they want to change it or reform it and so on, and that that is all we need to know. It is unbelievable to me that we are having that sort of discussion in this House, rather than requiring it to be very clearly specified in the Bill in relation to these incredibly important issues, and indeed the thousands of other important issues, exactly what the Government’s policies are in terms of retaining, reforming—and, if so, what reform—and the rest of it.

This takes me back to the comments from much earlier made by my noble friend Lord Wilson, when he said that this is lazy government and an unacceptable failure to prepare the policy for this Bill before bringing it. It has already gone through the House of Commons like a flash without any proper discussion. As he would say, there is a reason that we have democracy and the UK Parliament; it is in order for the British people to be consulted, to understand and to be able to anticipate and know what their Government are doing and why. So we are having these debates—as I said earlier, I do not want to repeat myself—but it just takes me back to asking what on earth we are doing, rather than saying, “Government, O Government, please take this Bill back; do the homework, prepare your policies in relation to this Bill and then set out your policies in the Bill; and let us see whether Parliament will pass it.”

[Baroness Chapman of Darlington (Lab)]

What an extraordinarily old-fashioned way of looking at how to run a country. The idea that the Government Minister would be required to stand here, in front of your Lordships, and explain what the Government intend to do—I have never heard of such a thing.

I think that the noble Lord, Lord Wilson, was absolutely right to say that this is lazy government. It is lazy, but the reason that the Minister is about to stand up and give some sort of platitudes or vague assurances is because the Government do not know what they want to do. We saw this with the Schools Bill and with the Northern Ireland Protocol Bill. I am sure we have seen it with many other Bills which I have not been quite so closely involved with, but this is a pattern—a pattern which I think the public have got ever so slightly wise to. I would sincerely advise the Minister, whom I hold in utmost respect, not to try to fob this Committee off with some kind of vague assurance. We do want specifics, and we do want to know what the Government are planning to do.

[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

My Lords, it is actually a great pleasure to join this debate on this important Bill. There are four of us on the Front Bench to listen to concerns expressed today—weighty Front-Benchers. I very much believe in the rights of this House and our work to review legislation, which I have done with many noble Lords over the last 10 years.

I will not repeat everything that my noble friend Lord Callanan has said. But I would say that the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens. We should not forget this, while, of course, maintaining necessary protections. That includes food safety, as the noble Lord, Lord Kerr of Kinlochard, explained so clearly. The noble Lord, Lord Whitty, rightly pointed out that food moves across frontiers, which need to be taken into account, of course, in any review.

Of course, all protections will not disappear. That is not what we are debating. As the noble Baroness said, the Government are here to improve the law of the land and we need to avoid error.

[Baroness Neville-Rolfe (Con)]

I said we would be maintaining the necessary protections. I was debating. People were saying that all protections would disappear; I wanted to make it clear that that was not the case. I am going to talk in a minute about the two or three areas raised by the noble Lord, Lord Fox.

The sunset clause, as we have said already, is not intended to restrict or influence decision-making. It will be for Ministers and devolved Governments to decide what action to take in their specific policy areas.

Even those of us who were remainers and who participated in discussions in the making of European regulations over many years were very frustrated by the bureaucracy and duplication of some regulations, and some of the compromises that we had to make were unwelcome. That was true for Governments over a long period; it was not only a matter of this Government’ concerns.

It is only right, in my view, that retained EU law is reviewed equally across all sectors of the economy and then, if necessary, reformed or preserved. To respond to one of the points made about carve-outs, we do not want to leave any area unreviewed. That includes financial services, but they are being reviewed in the context of another Bill that is going through the House at this time.

We think it is right to review all the areas, including health—

[Baroness Chapman of Darlington (Lab)]

I am just curious. What decision process resulted in financial services being dealt with in a different way from everything else? It would help us if we could understand that.

[Baroness Neville-Rolfe (Con)]

As I said, we are determined to have a review and to make the changes that we can, and the two Bills are going through concurrently. A decision was taken—I think rightly—to take advantage of that process.

[Baroness Chapman of Darlington (Lab)]

We are trying to understand why that is. What is different about financial services and food safety to warrant them being dealt with in such different ways?

[Baroness Neville-Rolfe (Con)]

I think our overriding concern is to make sure that all the areas are reviewed and that is behind this whole process, including the sunset. Let me move on, if I may, and make a bit of progress.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

I was going to respond at the end on common frameworks, partly to say what our hope is, and partly to say that this may well come up under future amendments on the Bill in the next few days. I wanted to be reassuring. Obviously, our ambition is that government departments and devolved government counterparts work together to agree their approaches to individual pieces of REUL. The delegated powers in Bill could then be used to preserve, extend, amend or repeal REUL as required via statutory instrument. Of course, as has been said, the devolved Administrations also have statutory instruments that they need to look at.

[Baroness Chapman of Darlington (Lab)]

It is interesting to look at the expertise of the people who will be making these decisions. In the case that I referred to earlier, the coroner made some specific recommendations about food labelling and obligations to report anaphylaxis. Will things such as that be taken into account by civil servants when they are looking at what to recommend to Ministers in terms of revocation or rewriting?

[Baroness Neville-Rolfe (Con)]

Clearly, when civil servants are reviewing the body of law, they will look at individual points that have been raised, not least those that have been raised by this House. That is part of the process of review that takes place. I was seeking to explain that I do not think that REUL reform poses a threat to the common frameworks programme. Carving out retained EU law and the scope of common frameworks from the sunset would effectively remove a key driver of the very regulatory divergence that common frameworks are designed to manage, and which I think are improving matters. The devolved Governments would be able to make active decisions regarding their REUL and decide which REUL to preserve and assimilate or let sunset within their respective areas of competence. We will come back to this issue, no doubt, because I think there are some amendments in a later group. I am very happy to discuss these points further with the noble and learned Lord.

[Baroness Chapman of Darlington (Lab)]

Before the noble Baroness sits down, I am sorry to keep popping up and down, but it is Committee and that is sort of what this is about anyway. I may have intervened at slightly the wrong point. She was trying to respond to a point about common frameworks, and my question was not really about that. She said in response that there would be an ability for this House to contribute to review and to bring to the Minister’s attention some of the important things we have discovered—from recommendations by a coroner in this case, but there will be many other points that are important too. I do not understand; I do not see how the Bill as proposed really does enable that to happen. She says it does, and I wonder whether she could explain a little bit more fully what she meant by that.

[Baroness Neville-Rolfe (Con)]

What I meant is that, when Bills are going through and noble Lords raise points, it is my experience, having done many Bills both as a civil servant and as a Minister, that these points are picked up and considered. Specific points were made, and I can certainly give an assurance that those points will be passed on to the departmental teams looking at the matters on food safety.

--- Later in debate ---

That is the nature of the Bill: we do not know what we are losing until we have not got it any more, and then it will be a problem for a lot of people, whether it is workplace safety, food safety, use of pesticides or whatever. That is why we are standing here and listing all these safety laws. We want to know which laws and regulations the Government intend to include on their list. What is in the buckets? We need to know.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am starting to wish we had degrouped this debate, because there were so many issues that, really, it was two or three debates rolled into one. It would maybe have been a good idea to spend a bit more time on some of the things that were raised. I say that even though we will probably spend the best part of two hours on this group—but I still think that we have skirted over some of the things that we might have wanted to delve into had this been a more sensible process.

We looked at toy safety. I remind noble Lords of where we started this group: the noble Lord, Lord Clement-Jones, spoke to a really good amendment from the noble Lord, Lord Fox, raising some important issues. I was a child in the 1970s, when nothing ever came with a plug attached or anything like that. Now, I do not have to worry about my children: they can have whatever toys they want and put them in their mouths or ears or whatever they want to do, and no one needs to worry too much.

As the noble Lord, Lord Rooker, said with regard to food, the improvement applies across the board, and successive Governments can be quite proud of it. A Tory Government do not come in and say, “We’re going to delete everything that was passed by our predecessor Labour Government because of where it came from”, but that is exactly what we are doing here. We are placing in question sensible measures that I have not heard anybody disagree with—I do not think the Ministers disagree with any of this—so I do not understand quite why we have to leave this question mark over these things.

The General Product Safety Regulations, which we have talked about, are really important. These are things that most consumers just take for granted, and so they should. That is where we would like to keep the situation, but concern is now being raised. Consumer organisations such as Which? and others are starting to say, “Hold on a minute, there’s a potential problem here.” Ministers will say, “This is just scaremongering—it’s causing anxiety where there’s no need for it”, but the Government are declining to take the steps needed to remove that anxiety in a very straightforward way, which they could do if they are right about that and should they wish to do so. I still very much encourage them to take that route.

The issues raised about the level playing field are incredibly important. We are expecting the poor generalist lawyers who draft these SIs to be experts not just in product safety, food manufacturing or asbestos, which are really important issues, but in international trade. They have to understand the TCA, the agreements that we have with Australia, the CPTPP, and how it will all work together if we diverge. We could end up diverging without realising that we have done so, until a court somewhere else decides to ask us about it. This just has disaster written all over it, and for what, if the Government are saying that they do not really want to change anything?

The Food Standards Scotland letter that I think everyone has had is really revealing. It makes some very good points, but the sentence that jumps out is where it says that Food Standards Scotland was invited to give evidence on this Bill that we are looking at. The Scottish Parliament is not looking at the Bill—we are—but Food Standards Scotland was invited to give evidence in the Scottish Parliament about it. When do food standards people get to come here and tell us what they think? We are the people debating the Bill. Where is the engagement and the opportunity for organisations to come in and allow us to benefit?

The noble Baroness, Lady Young, said that what people really want from these types of regulations is certainty, long lead times and consultation, but they have not had any of that from this process. The Minister is meant to be business-friendly and to understand what businesses want. I do not know what has happened to him here, because I have done Bills with him before when he was much more in tune with what business is saying. I am not seeing any of that today, which is a real shame.

Rather than go through all the amendments one by one and say what I think—I support all of them; they have all been very thoughtfully put together and spoken to—maybe we could make life very easy for the Minister. Perhaps she could answer on just one issue: asbestos. That is probably the least controversial thing that I could have picked. Will the Government revoke, retain or amend the regulations around asbestos?

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords—

[Baroness Chapman of Darlington (Lab)]

One word.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I will come to that.

I thank noble Lords for their amendments relating to product, food, environmental and consumer protections and safety. While we all commend the sentiment, the Government believe that it is simply not necessary or appropriate to introduce individual carve-outs for specific regulations or policies in the Bill.

I turn first to Amendment 5 in the name of the noble Lord, Lord Fox, which was so ably introduced by the noble Lord, Lord Clement-Jones. I reassure them that the Government remain committed to protecting consumers from unsafe products being placed on the market now and in the future—and this of course includes toys. Our current product safety framework is largely a mix of retained EU law, domestic law and industry standards; as a result, it can be complex and difficult to understand. While the Bill is unlikely to give us the powers needed to implement a new framework, we hope that the powers in it will make it possible to amend or to remove outdated EU-derived regulations and to give us the ability to make some changes to reduce burdens for business.

The Government are finalising for publication a consultation into product safety this year. We will use available legislative powers, including those in the Bill, to take the necessary steps ahead of the sunset date to ensure that we uphold this commitment to consumer protection. This will take account of modern-day hazards and risks, the challenges posed by new supply chains, such as the growth of online marketplaces, new technology and supporting innovation, and net-zero ambitions.

I turn to Amendment 25 tabled by the noble Lord, Lord Fox, relating to the control of asbestos regulations—

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[Lord Collins of Highbury (Lab)]

The regulations are on the dashboard.

[Baroness Chapman of Darlington (Lab)]

Minister, this is all news to us. Where will the detail be found on this? Why is a Minister suddenly popping up and saying these things now? The Bill specifically prevents the kind of work she is talking about, because it relates to retained EU law, and retained EU law will be dealt with this way.

We cannot have anything in the Bill which could be interpreted as an additional burden. A burden, as defined by the Bill, includes,

“a sanction (criminal or otherwise) which affects the carrying on of any lawful activity”.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

There is no question of going back on the protections that the existing EU law provides. As you have heard me say, the Health and Safety Executive believes that we can develop this further, and this review is intending to provide more information. I would have thought that would have been of some comfort to noble Lords. I shall continue and try to make progress.

The Health and Safety Executive will undertake research and engage with stakeholders to consider an evidence-based introduction of mandatory accreditation for asbestos surveyors. Indeed, the Health and Safety Executive will use the introduction of this Bill as an opportunity to ensure that our regulatory framework in relation to asbestos continues to operate effectively. This will include considering the current categorisation of asbestos removal work.

[Baroness Chapman of Darlington (Lab)]

I am sorry, but the Minister just said that the Health and Safety Executive is going to use the introduction of this Bill to conduct a review. This Bill specifically prevents the Health and Safety Executive from what some of us would conclude is improving safety at work, because it talks about not increasing the regulatory burden. How that is defined or interpreted is critical. There is an attempt to define it in the Bill, but it is inadequate. We need some kind of schedule or some explanation from the Government, specifically about asbestos—because this is what we are talking about now—so that we understand what we are being asked to agree to.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I understand the point the noble Baroness is making. We are not talking about increasing the totality of the regulatory burden. We are talking about making it fitter for UK purposes, which is what the Health and Safety Executive is seeking to undertake.

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[Baroness Bennett of Manor Castle (GP)]

I just want to make what I think is an important point here. The Government are talking about the totality of regulations and saying that it does not stop the asbestos regulations becoming stronger. If the total has to be less, what are we going to lose in the protections so that we do not have a higher total? An addition has to mean a subtraction.

[Baroness Chapman of Darlington (Lab)]

Before the Minister responds—I may be taking advantage here—the Health and Safety Executive is an agency that is able to impose sanctions. However, under this Bill, under whose auspices the Health and Safety Executive will be conducting its review, as the Minister describes it, it will not be able to impose or suggest anything that could be a financial cost, an administrative “inconvenience”, an obstacle to trade and innovation or a sanction. The Minister is chuntering from a sedentary position about totality but the Bill does not say anything about totality. That is their interpretation; it may well not be a court’s interpretation. We need some more information from the Government on this issue.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am afraid that the Government’s position is that we simply do not accept that interpretation of the totality. Of the 4,000 pieces of retained EU law, we will be repealing a number of things. We are talking about not increasing the totality of the regulatory burden because some of that will be falling away and may just simply not be appropriate, not just on asbestos but on many other fronts as well.

--- Later in debate ---

Amendment 38, tabled by the noble Lord, Lord Rooker, also seeks to exempt—unnecessarily, we believe—a whole swathe of REUL in areas relating to agriculture and food production from the sunset. The intention behind the amendment appears to be to ensure that regulation in the specific subject areas is not altered by the sunset. This amendment, while well-meaning, is perhaps misguided. The Bill is merely an enabling Act, which empowers departments to think about these regulations, providing them with the tools to remove unnecessary regulatory burdens but providing a clear and efficient mechanism for retaining regulations where it is considered in the interests of the public to do so. The UK is committed to continuing to apply our farm-to-fork strategy, which requires high animal welfare and health standards on farms and ensures that robust food hygiene practices are applied throughout the food production chain so that no single measure is relied on to be responsible for the safety of our food.

[Baroness Chapman of Darlington (Lab)]

In that case, could the Minister confirm that BSE monitoring will be retained as it is?

[Baroness Bloomfield of Hinton Waldrist (Con)]

That is a question for Defra; I cannot confirm or deny any particular regulations that will be looked at. As the noble Baroness will understand, these things are a matter for Defra.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

It will be a published document.

[Baroness Chapman of Darlington (Lab)]

I am trying to get this clear in my head. We are not saying buckets, and I am trying not to say “snog, marry, avoid”, but will the dashboard say the status of each measure—retain, revoke—next to it? If that is the case, it will be quite simple for the Minister to answer my question about whether BSE monitoring work has been done, bearing in mind that we are at the end of February.

[Baroness Bloomfield of Hinton Waldrist (Con)]

The dashboard will be updated with status as each EU law is reviewed.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I think we have heard a number of general points—I just want to maintain the level of humour. I therefore want to move back to transport and try to complete my response on these amendments.

[Baroness Chapman of Darlington (Lab)]

I agree that we need to get to specifics here and that progress is important, but I think that the Minister actually getting some answers for us is probably more important at this stage. On this issue of case law, specifically around seat belts, the letter from the noble Baroness, Lady Bloomfield, clearly states:

“Anything preserved will be subject to clauses 3-6 of the Bill which repeal retained EU interpretive effects.”


I interpret “interpretive effects” to mean case law. Am I right about that?

On this specific issue, the Minister has helpfully indicated that the Government intend to retain the measures on seat belts, as highlighted by the noble Baroness, Lady Randerson. But there is substantial case law on the wearing of seat belts by children when that can be a mitigating factor, for example when the seat belt is faulty or the vehicle is old. Many measures in relation to seat belts are dealt with by case law. What are the Government going to do about that?

[Baroness Neville-Rolfe (Con)]

I apologise to the noble Baroness, but in our debates on future clauses we are going to discuss in an orderly way how these interpretive effects are going to be kept, where appropriate. We can probably come back to this.

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[Baroness Chapman of Darlington (Lab)]

I am sorry, but the letter clearly says that the interpretive effects are not going to be kept, hence why we are asking this question now.

[Baroness Neville-Rolfe (Con)]

Is the noble Baroness talking about supremacy and the general principles?

[Baroness Chapman of Darlington (Lab)]

No.

[Baroness Neville-Rolfe (Con)]

I am advised that the interpretive effects are not case law; I thank my noble friend on the Front Bench for that. I do not really want to cause more confusion on this important point. I will reflect on this and perhaps come back on it at the end of this debate or in a debate on a future amendment. I am clear that we have no intention of removing these safety requirements on seat belts. I will reflect on the question asked by the noble Baroness and come back on it as I do not want to cause confusion. There are two issues here: case law and interpretive effects. They are both dealt with in later amendments.

I will move on to Amendment 8. Where Ministers, including Ministers in the devolved Governments, see fit, they will have the power to preserve retained EU law from the sunset. This holds true for the regulations specified in Amendment 8 in the name of the noble Baroness, Lady Randerson. There is no need for a specific exemption for the regulations establishing common rules on compensation and assistance to passengers in the event of denied boarding or the cancellation or long delay of flights. If the Minister decides that preserving these provisions is in citizens’ best interests, that can be achieved by using the powers to preserve the legislation and to restate relevant retained law as appropriate, without carving it out from the Bill as a whole.

Similarly, in relation to Amendment 9, I assure the noble Baroness that the Department for Business and Trade has processes in place to review the Package Travel and Linked Travel Arrangements Regulations 2018 and will provide more details on this in due course.

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[Baroness Neville-Rolfe (Con)]

As always, the noble and learned Lord is very helpful. I will think about that and about what we can say about the methodology that has been adopted. It is helpful that he mentioned that it was not the easiest thing for him to find this. That is confirmatory.

[Baroness Chapman of Darlington (Lab)]

Perhaps I can assist the Minister. We had an informative round table yesterday, convened by the noble Lord, Lord Callanan, where we were told that the methodology involved going to the National Archives and doing a keyword search for “Europe”. The noble Lord, Lord Callanan, shakes his head, but that is what we were told at the meeting. The Minister will forgive us if we do not have the utmost confidence in the process that has been undertaken.

[Baroness Neville-Rolfe (Con)]

I am sure that they were trying to make a helpful point. We have got to help one another to get through this. I have undertaken to look at what is being done about methodology and the approach that has been adopted in one area. A plethora of wide-ranging points has been raised, including on consultation, which we will come on to in one or two of the later amendments. We have discussed transport. With this in mind, I ask noble Lords not to press their amendments.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

I was quite happy not to speak in this debate. I did not table an amendment. I would like to have spoken to amendments tabled by the noble Baroness, Lady McIntosh of Pickering, and other noble Lords, but I have denied myself that. Much as I would like to go home, the same as everyone else, I find it quite extraordinary that the Minister is not willing to allow a noble Lord who has sat here since the beginning of this debate and during earlier groups too to make even a couple of short remarks.

[Lord Callanan (Con)]

They are not short remarks. They are nothing to do with the amendments in question. The noble Lord, Lord Hendy, has just spoken for about 10 minutes on issues that are totally unrelated to the subject in question. On group 1, we discussed all the labour law provisions at great length. They are raising irrelevant points.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

There have been many excellent speeches. I urge Ministers to respond in detail, if necessary by letter, to the complex questions raised—it is invidious to pick out particular speeches, but the noble and learned Lords, Lord Hope and Lord Thomas, raised very important questions, as did the noble Baronesses, Lady Andrews and Lady Ritchie, and my noble friend Lady Ludford. There are issues of resources, a need for a saving clause, the problem of inadvertent errors and the role of common frameworks—a lot of homework for Ministers over the weekend, I fear.

[Baroness Chapman of Darlington (Lab)]

My Lords, this is a complete mess. I have listened very carefully to everything that has been said, and I could not identify a speech with which I disagreed. There are two principal problems with the Government’s approach: first, a lack of respect for the devolved Administrations, and, secondly, a chronic case of overconfidence on the part of Ministers.

It is difficult to know exactly where to start; I have so many notes. Which of these particular criticisms is the most important? I will allow the Minister to decide when she responds. It is clear that the dashboard has not been getting updated properly in partnership with the devolved Administrations. The sunset cannot be extended by devolved Administrations on their own, even if they feel that they cannot deal with the burden of the work imposed on them in time. Can the Minister write to update us on the work being done with the devolved Administrations on the dashboard, because it seems that that really underlies some of the concerns we have? From Wales and Scotland, we are picking up a deep dissatisfaction with how this work has taken place.

The noble Baroness, Lady McIntosh, made the really important point that the Government have had time between the Bill being debated in the other place and arriving here today to finesse their approach, shall we say, but I do not think that much has changed. This is a particular concern, as noble Lords have said, given the commitment made earlier this week by the Prime Minister, when he revealed the Windsor Framework, which we were all very pleased to see. We are very glad that the agreement announced earlier in the week has taken place; we were very concerned about the approach that the Government had taken prior to that, so we welcome it very much. If the measures are not dealt with by the dashboard and they fall, we could end up in a situation where we have divergence, not through a matter of policy or intent by the Government, but as a consequence of inaction and, in effect, by mistake. There may be consequences of that, which perhaps could be more pronounced for Northern Ireland than for elsewhere in the United Kingdom. I was very taken by the way that the noble Lord, Lord Wilson, put this—as there being horrible loose ends. That is a very good way of describing it.

These are very practical concerns and a number of noble Lords, in particular my noble friend Lady Andrews, have highlighted them. Like her, I completely support common frameworks. I remember when we debated them at length as part of the Brexit process. We tabled amendments to strength them, to make sure we had good oversight of them, and that there was proper engagement by the Ministers in the devolved Administrations. I think we did okay on some of that. Obviously, this is still relatively young, and we had all hoped, I think, that that process would become smoother and a little more relaxed, and that there could be more shared decision-making. I am particularly concerned about this, given my ambition—which I think is shared by many Ministers on the Government side, too—to see more devolution in England. So we really want this approach to improve as the years go on; it is not a surprise that there are shaky moments in the early years.

The Bill, perhaps more than any other we have seen, shows a complete disrespect to the devolved Administrations, and this lack of trust and respect is becoming more and more pronounced. There have been some sharp examples in recent months, and we need to get away from them. With this process, there is an opportunity to change our approach and to demonstrate that we want to work differently—and there is a real benefit to be gained from that.

The noble Lord, Lord Hannay, drew our attention to the lack of political engagement, as he put it, with the devolved Administrations, which is deeply concerning. The Minister, the noble Lord, Lord Callanan, as is his habit, is shaking his head from a sedentary position. If what the noble Lord, Lord Hannay, said is not true—as the noble Lord, Lord Callanan, has just suggested—perhaps the Minister could write to us to explain what form that political engagement is taking, what is being discussed and what progress has been made.

Trust matters, and I am afraid that it is in very short supply at the moment. I thank the noble and learned Lord, Lord Thomas, for his speech, because he developed a point that we were trying to make in the debates on previous groups about the risk of things being missed from the dashboard. There were points in our previous discussion where I felt that the Minister was almost saying, “Look, you are worrying unnecessarily—our civil servants know what they are doing, and we will have a very thorough look at this”. The noble and learned Lord described it as legal archaeology; I am a trained archaeologist, and I know very well how easy it is to miss things or to look at a site with a particular priority in mind. You can find very different conclusions looking at something today than you would have done looking at it 20 years ago, because your understanding develops all the time. That is one of the reasons that children are very good at archaeology: they spot absolutely everything.

The point that the noble and learned Lord was making is that things will be missed. Even the Government acknowledge that; they do not claim that the dashboard is comprehensive, or that it ever will be. That was clear from the letter that the Minister, the noble Baroness, Lady Bloomfield, sent us before the last Committee debate. I would not be surprised if she would want to withdraw that letter but, as she has not done so yet, it is the basis for our discussions. It is very clear from that that the dashboard will not be a comprehensive assessment of all retained EU law.

The request from the noble and learned Lord, Lord Thomas, for an explanation of the search methods is very good idea. We were told—with some pride—that one of the search methods was a key word search for “Europe” at the National Archives.

[Baroness Bloomfield of Hinton Waldrist (Con)]

It is one search method.

[Baroness Chapman of Darlington (Lab)]

The Ministers are saying that it is one search method, but that was the example given to us when we probed this at the roundtable meeting. That was the choice made by Ministers’ officials as an example intended to reassure us—but we are not reassured. The suggestion from the noble and learned Lord, Lord Thomas, for a fuller explanation is very good and helpful; it might provide the reassurance that Ministers were attempting to demonstrate earlier in the week.

While discussing the issue of devolution, I shall ask the Minister a question on something I do not quite follow—and Committee stage is about asking questions about things we do not quite follow. Perhaps she might write to me about it, but I draw her attention to paragraph 11(3) of Schedule 4, under Part 3, which describes the process that the Government want Welsh Ministers to undertake when they are tackling regulations. Can she explain this process? It says that Welsh Ministers will have to make a statement of their opinion on a particular measure; they will have to provide

“a draft of the instrument, and … a memorandum setting out the statement and the reasons for the Welsh Ministers’ opinion.”

That seems slightly different to the process we are undertaking here. In principle, there is nothing necessarily wrong with there being a difference, but I would like to understand what that is about and how the Government came to that. Was that something that came out of dialogue with the Welsh Government, or has it grown up through the department? Why is that happening?

There is no way that this will not come back on Report. I would be happy to support any of the amendments tabled in this group. We on these Benches would be very happy to work with noble Lords from across the House on arriving at an amendment that we think would achieve our aims most effectively. I look forward to doing that, but the preference would be that the Government had some further thought on this and brought back their own amendment, which would treat the devolved Administrations with far more respect and deal with the issues of overconfidence and the fact that measures are, likely if not certain, to be missed.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

I think the answer is, not in their entirety, but a specific category that falls within common frameworks could indeed be excluded.

[Baroness Chapman of Darlington (Lab)]

Will the noble Baroness point us to where in the Bill we can find the definition of a category?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I will have to send that sort of detail out in writing, along with the other letters we are going to be writing in response to other questions.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

We do not accept that. We know that there are capacity restraints within the devolved Governments, but the UK Government are also helping them go through the whole body of retained law. That work will progress and is an ongoing project as we go through this year. I may come on to more detail for the noble Baroness.

In relation to the noble Baroness’s specific comments on Northern Ireland, the Windsor Framework has no impact on the Bill. She can also rest assured that we have already committed to making sure that the necessary legislation is in place to uphold the UK’s international obligations—

[Baroness Chapman of Darlington (Lab)]

My Lords—

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think we need to make progress.

[Baroness Chapman of Darlington (Lab)]

The Minister is answering a different question.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I know, but we do need to make progress. This is the 10th intervention, and I am on paragraph 17. I think there is a limit to the number of interventions I need to take—but I will take the noble Baroness’s, because she is on the Front Bench.

[Baroness Chapman of Darlington (Lab)]

I am sorry, but my understanding is that there is not a limit on the number of interventions the Minister can take. Progress would probably be better if we had a better Bill in front of us. She answered a question by saying that the Windsor agreement has no impact on the Bill, but my question was whether the Bill could have an impact on the Windsor agreement, which is a very different thing.

[Baroness Bloomfield of Hinton Waldrist (Con)]

It has no impact on the Windsor agreement. I am assured by my colleagues and my briefing here that it has no impact.

Amendment 49, tabled by the noble Baroness, Lady Randerson, seeks to ensure that the UK Government have a complete understanding of their catalogue of REUL by allowing a Minister of the Crown to request that the devolved Governments identify REUL in areas of devolved competence within the scope of the sunset. While I concur with the sentiment of this amendment, again, the Government do not believe it is necessary but recognise the importance of having a shared and single understanding of reserved and devolved REUL across the UK Government and the devolved Governments.

We have established regular intergovernmental meetings intended to support devolved government counterparts with the identification of which REUL is devolved or reserved, as part of the REUL reform programme. Departments are also actively engaging directly with their devolved government counterparts as part of their business-as-usual engagement on the devolved status of REUL and their plans for REUL reform. On the point about pre-1999 legislation, where the legislation is devolved, the decision should be for devolved government Ministers, just like any other piece of devolved REUL. We will set out in writing the methodology for identifying REUL on the dashboard, as already committed by my noble friend Lady Neville-Rolfe in the session on Tuesday.

Amendment 33, tabled by the noble Baroness, Lady Ritchie of Downpatrick, would exempt from the sunset legislation relating to human rights, equality or environmental protection to the extent that the legislation has effect in Northern Ireland, including legislation within scope of Article 2 of the Northern Ireland protocol. We fully intend to maintain the UK’s leading role in the promotion and protection of human rights, equality, the rule of law and environmental protections. We are proud of our long and diverse history of freedoms and 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.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I follow the speech of the noble Lord, Lord Hodgson, which was incredibly helpful and really got to the heart of what this group of amendments seeks to do. I could support any one of them; they all try to do a similar thing in slightly different ways.

The amendment I have tabled, with the support of the noble Lord, Lord Fox, seeks to deal with perhaps the most dangerous element of the way the Government are approaching this task, in that it would prevent what the noble Lord, Lord Lisvane, described as the unannounced revocation of law. Things happening by accident is what we are increasingly concerned about, especially given the contribution of the noble and learned Lord, Lord Thomas, about the inadequacies of the way the Government may be—we hope to find out more about what they are doing—endeavouring to identify all the retained EU law.

There are many concerns about the Bill, which colleagues have described in detail in this debate, but there are three which stood out to me above some of the others when I first read the Bill. The first is the total lack of clarity about which laws are going to be revoked. The second is the regulatory cliff edge which means that all retained law will be revoked by default—no matter what the noble Lord, Lord Benyon, said—at the end of this year. The third is the complete lack of parliamentary accountability and consent in the process. This amendment addresses those three concerns. Clearly, other concerns are addressed by other amendments, which I also support.

Amendment 43 is as simple as we could craft it. It is based on common-sense principles that I believe noble Lords from all sides can agree: that if the Government want to revoke a law, they should be able to, but they should be able to tell Parliament which law it is that they want to remove. The removal of the law should be an active choice, not a passive default, and should require Parliament’s consent. There is nothing in this amendment that prevents the Government achieving their stated aim of dealing with all retained EU law. Our amendment requires simply that, if the Government wish to revoke a retained piece of EU law, they must proactively submit to Parliament a list of the specific items they wish to revoke. We are not stopping anything happening; we just want this to be done in a much safer way. Both Houses would then need to vote to approve that list. Law which is not specifically revoked is retained. That is it.

As was said at Second Reading, it is perfectly reasonable for the Government to review law that has been retained from our long period as a member of the European Union. We have no argument with this. We might not like what the Government want to do and the decisions that they might make, but we do not argue with the Government’s intention to examine this class of law—although it is just UK law. It is a bit like, I suppose, if the Labour Party were to win an election and say, “Do you know what? We did not like the way that last Government behaved. We’re going to sunset everything they did and hope for the best”. I should say that that will not be in our manifesto; I say it just to highlight the insanity of the way this Government are going about this.

The amendment does not frustrate the fundamental process. It would require the Government to follow a very reasonable, proportionate approach. It could be done in a timely way—I know time is important to the Minister, who wants this to be done quickly, and this could be done relatively quickly. Through this amendment, we would have a very simple but democratic mechanism for changing EU law. It would ensure that the process of reviewing retained law does not cause as much uncertainty as the Government’s regulatory cliff edge is generating today. It would mean that important decisions about workers’ rights, environmental standards and consumer protections cannot happen by default, or worse, by accident. It would restore Parliament’s proper, sovereign role.

I know some have objected to the processes that created these EU laws in the first place. The Minister is one of them, I think, and I respect that view. He has said that he regarded that process as distant and undemocratic. I do not agree but he is entitled to hold that view. However, it is really difficult to take those complaints seriously when the Government are choosing to support the nonsensical, undemocratic Executive power grab that this Bill, as currently drafted, represents. It is reckless.

Your Lordships’ House, or the Government, should amend the Bill with a simple, straightforward process that sits much better within our constitutional traditions. My amendment is a common-sense amendment that respects the sovereignty of this Parliament, and I commend it. However, I would be very happy to work with noble Lords from all sides—indeed, I look forward to it—on coming together should the Government choose not to take the recommendation embodied by this group of amendments. We would be neglectful if we allowed this Bill to proceed any further without the safeguards that the amendments in this group would provide.

[Lord Fox (LD)]

My Lords, I will speak to Amendments 42, 43 and 50 and the Clause 1 stand part debate, to which I have added my name.

What was clear from last week’s debate—we have alluded to it a number of times since then—is that the Government have absolutely no intention of providing a comprehensive list of retained EU law under the jurisdiction of this Bill. It is clear that the decisions taken by departments to retain, amend or revoke will be announced unilaterally via the dashboard. In the case of revoking, it is an act of either commission or omission—we will not know until we see it on the dashboard. However, if there is no list then we will not even know that something has been revoked. The former—the lack of a list—informs the latter: the fact that we will not know whether laws have been revoked or otherwise.

That is why this set of amendments, in the number of forms that we have seen, is so important. Through Amendment 32, we have heard from the noble and learned Lord, Lord Judge, my noble friend Lord Beith, the noble Lord, Lord Hodgson, and the noble Baroness, Lady Taylor, how the Government should set out in advance what they are seeking to do and give Parliament a chance to overrule the Executive and choose to retain specific named instruments, rather than waiting for the automatic disposal of these laws. The noble Lords, Lord Carlile and Lord Kirkhope, in Amendment 44, and the noble Lord, Lord Lisvane, in Amendment 141A, set out other ways of seeking to achieve a similar end. The point has been made that there are a number of ways of doing this.

It was a pleasure to hear the noble Baroness, Lady Chapman, set out Amendment 43, to which I have added my name; I was happy to do so because, in the amendment, she sets out very ably a process by which Parliament can retain its control over what is going on in this law. It would avoid the really important issue, to which I and other Peers have already alluded, of the unknown repeal of laws—that is, the accidental revocation or deliberate obfuscation of revocation that may happen as a result of this law. This is a well-drafted amendment that we would be very happy to see go forward.

Amendment 42, in my name and that of my noble friend Lady Ludford, complements what we have heard already about a process of consultation, about how these laws and regulations should be consulted on. It sets out four objectives for the consultation. The first is to consider whether the legislation under review is fit for purpose. It may not be. Ministers have talked about reindeer and whatnot. I am sure that we do not really need those but there cannot be many of the 4,000 or so laws that refer to reindeer. Let us assume that that the majority of them are addressing areas of concern to the greater public. Are they fit for purpose?

The second objective is to consider whether alternative regulation would achieve different or preferable goals. The third objective is to consider whether alternative regulation would provide greater benefits to consumers, workers, businesses, the environment, animal welfare, and public safety, to name a few. The fourth objective is to consider whether alternative regulation would provide greater legal certainty, and there is a great deal of legal uncertainty coming the way of this Bill if it stays as it is. I cannot see why this approach is unreasonable, and I am sure that the Minister will agree with me and adopt this straightaway.

Much has been said about sunsetting. Some speakers on the Government Benches have set out their view that without sunsetting, departments would somehow be dragging their heels. The Minister, the noble Baroness, Lady Neville-Rolfe, said last week to your Lordships that

“the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens.”—[Official Report, 23/2/15; col. 1820.]

Just before lunch, we heard the Minister, the noble Baroness, Lady Bloomfield, say that the sunset’s purpose is to “incentivise genuine reform”. These confirm that the purpose of the sunset is, in the Government’s view, to get civil servants to get on with it. That may be so, but what is it that are they getting on with, or that the Government would have them get on with? I suggest that they are injecting the largest single slug of legislative uncertainty into national life that any of us can remember. I say to my noble friend Lord Beith that I am afraid that I do not go back to the 1600s, when it last happened—

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[Lord Kerr of Kinlochard (CB)]

I am very glad that I gave way to the noble Lord, Lord Hamilton. I hope that the Government will reflect on such criticism coming from such a quarter. The noble Lord, Lord Hamilton, and I disagreed violently over Brexit, but the criticisms that he is making now, much more clearly than I could, are the criticisms that I want to make now. So the opposition to the Bill does not come under the remainer/leaver axis—it comes under the “good Government” axis.

There are just two points that I want to raise. I support the amendments in this group, particularly the amendments in the name of the noble and learned Lord, Lord Judge, the noble Lord, Lord Fox, and the noble Baroness, Lady Chapman, Amendments 39, 42 and 43. The first point I want to make is about unannounced repeal—the point made by the noble Lord, Lord Beith—although it is unannounced and undiscussed repeal that really bothers me. The other is about default.

On unannounced and undiscussed repeal, when we were last in Committee, on Tuesday, I asked what Parliamentary procedure would be available when a Minister decides that a piece of our law should be abolished. What procedure will enable Parliament to debate that decision? The Minister replying to the debate said that she would reflect on the point that I had made. I have not yet heard an answer, but it seems to me rather a significant point. Here we have a situation which I believe is improper in constitutional terms—and it is certainly absurd in practical terms that laws should disappear by administrative fiat, privately. I do not know how courts will be expected to apply that, and I do not know how citizens are expected to behave in relation to the law, if changes in the law have been made by administrative fiat, privately. I think it is constitutionally improper that that should happen without the opportunity for some discussion in this this place and the other place. I think it is important to address the question that has been raised by the noble Lord, Lord Beith, and I hope we are about to hear an answer.

[Baroness Chapman of Darlington (Lab)]

The noble Lord’s speech is quite intriguing. I have a question for him, although I do not know whether he will be able to answer it here and now. Is he suggesting that, if a piece of law were to be revoked because it was not included on the dashboard and had not been discovered through the search process, and that piece of law is later identified by a citizen and relied on in order to take a case to a court, that court would then have to determine whether that piece of law was retained EU law? What effect would that have on the deliberations of that court at that point?

[Lord Kerr of Kinlochard (CB)]

That is exactly the point I was going to address under my second heading, “default”. As I read the Bill, those laws that are not identified in time automatically vanish. As I read the Bill, when the clock strikes midnight at the end of the year, anything that has been omitted but is still the law of the land on 31 December is not the law of the land on 1 January. That is bizarre. I think the Government have to accept something to deal with that problem. It is dealt with in Amendments 39 and 42. It is not quite dealt with in Amendment 43, but that amendment could easily be expanded to deal with it. It seems to me that, when they respond to this debate, the Government need to tell us what the answer to that question is as well as, I hope, telling us the answer to the question I asked on Tuesday.

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[Viscount Stansgate (Lab)]

My Lords, this has been a very educational debate. On Monday this week, two groups of sixth-formers came to visit me here and we discussed things upstairs in Committee Room 1, chosen specifically because of its judicial resonance. They are studying for their A-level exams and the question they put to me was about Parliament’s role in scrutinising the Executive: how effective is it? They were very sharp and on the ball, and they wanted to know and to have examples. But when it comes to the Bill we are discussing today, I could not possibly say that this is a good example of Parliament’s ability to scrutinise the Executive. This Government, we know, claim that their major policy success was to take back control—but in my view it was never to take back control to the Executive but to Parliament. I am heartened by the speeches of the noble Lords, Lord Hamilton and Lord Hodgson, because I see reflected in both of them a wish to see Parliament as the centre of decision-making in Britain—the Executive are a part of it but Parliament is the heart of it.

We have a number of amendments before us, Amendments 32, 141A, 43, 44, 62A and so on, and each in its own way has a contribution to make. I would be minded to support them all because, whatever happens as a result of the debates we have on the Bill, everybody knows we need proper parliamentary scrutiny of what is about to happen—we do not even know what is going to happen to the vast range of legislation to be covered by the Bill.

History will not regard this Government well if future students of politics, of the kind I talked to on Monday, reach the conclusion that Parliament has lost its ability to scrutinise the Executive. In finishing, I quote one Member’s explanatory statement for one of the amendments we are discussing today: it seeks to give

“Parliament the ability to scrutinise these decisions. It would also allow Parliament to overrule the Executive”.

That is exactly what parliamentary democracy is supposed to be about.

[Baroness Chapman of Darlington (Lab)]

I shall be very brief, because I can see we are testing the Minister’s patience. He perhaps needs to indulge in some breathing exercises or something—maybe yoga, I do not know. We are not deliberately detaining Ministers here; we are trying to do our jobs thoroughly.

I quite rudely interrupted the noble Lord, Lord Kerr, earlier, in my enthusiasm to understand the point he was trying to make. He needed no help from me in making his case, but I do not want the point to get lost when the Minister responds. The noble Lord asked a really important question about what is going to happen if a piece of law is lost because the search process did not identify it. How will a court know that it should not be adjudicating based on that piece of law? How will a citizen know that a piece of law is no longer applicable because it was lost as a result of this process? This is such an important point that has not come up before this group of amendments. It will be very difficult for us to engage positively with subsequent groups without having a full, comprehensive answer to the question of the noble Lord, Lord Kerr. I do not want that to get lost in what I am sure is going to be a comprehensive and enlightening response from the Minister.

[Lord Callanan (Con)]

I thank the noble Baroness for her suggestion of doing some breathing exercises. I apologise to the noble Baroness, Lady Crawley, if I was maybe a bit short, but I was seeking to make the point that we had a debate on consumer protection policies on an earlier day in Committee, and I thought she was about to repeat the points that had been made. I am trying to get the House to focus on the amendments we are discussing, because we are making very slow progress. Be that as it may, I realise that noble Lords want to make their general points as well.

Yet again, we have had a lively debate. I and other Ministers have listened closely to the points that noble Lords have made; I hope I will satisfy the noble Baroness, Lady Ludford, in that I will not be dismissive of them. It is my job to set out the Government’s position on the amendments we are discussing. I am not dismissing noble Lords’ concerns at all, but I suspect that we will have a difference of opinion. Nevertheless, let me give it a go.

I start with Amendment 32 in the name of the noble and learned Lord, Lord Judge, relating to the operation of the sunset clause and additional layers of scrutiny. It is similar to Amendment 50 in the name of the noble Lord, Lord Fox, which would in effect ensure that retained EU law remains on the statute book unless specified by regulations which have gone through a super-affirmative procedure. In essence, this amendment would block—I think he knows this—the UK from conducting the economic reforms we want to see to drive much-needed growth. Our position is that making it harder to remove regulations—I understand why noble Lords want to do that—would hamper the UK’s growth, be detrimental to the UK and fundamentally undermine the aims of the Bill. I understand that many noble Lords want fundamentally to undermine the aims of the Bill, but this is not something that the Government can accept.

I agree with noble Lords; it is of course right that we ensure that any reforms to retained EU law receive proper scrutiny. That is why we have already ensured that the Bill contains robust mechanisms that will enable the appropriate level of scrutiny of any amendments to retained EU law made by the powers included in the Bill. This includes a sifting procedure that will apply to regulations under Clauses 12, 13 and 15 to ensure that Parliament can assess the suitability of the procedures being used for statutory instruments.

Once the Bill—I hope—receives Royal Assent, work on reform will continue in individual departments. They will prioritise some of the work they are already doing in areas of retained EU law reform and lay all the appropriate statutory instruments. The process will include, as appropriate, designing policy and services, conducting all the necessary stakeholder consultations, drafting the necessary impact assessments and supporting any individuals who may be impacted by any such reform.

Amendments 42 and 43 propose to remove the sunset entirely and replace it with systems individually to revoke each piece of retained EU law, with specifications for unnecessary parliamentary approval or limitations that mean that legislation can be revoked only in line with a fairly cumbersome and, in my view, needlessly complex list of criteria. Again, I do not expect noble Lords to agree with me on this, but the Government’s position is that the sunset is an integral part of the Bill’s policy. It ensures that we are proactively choosing to preserve EU laws only when they are in the best interests of the United Kingdom. However, I appreciate that the public should know how much legislation is derived from the EU and the progress the Government are making to reform it. For that reason, we have published the dashboard containing this list of government retained EU law, about which there has been much discussion.

This dashboard will also document the Government’s progress on reforming retained EU law and will be updated regularly to reflect plans and actions taken. We intend to be clear and transparent throughout the process and when exercising the powers in the Bill, if they are approved by Parliament. In our view, introducing another burdensome process that does not efficiently allow us to remove inoperable and outdated legislation is not good practice.

Amendment 44, tabled by the noble Lord, Lord Carlile, would entirely undermine the ambition of the Bill by replacing the sunset with a full-time commission that would consider retained EU law over—I think it is fair to say—a much longer period. Considering that work to review and take action on retained EU law before the sunset date is already well under way across all departments and is being done by those who already have the expertise in these policy areas, I submit to the noble Lord that this alternative is entirely unnecessary. It would be little more than a talking shop at a time when the UK should be focused on this sensible reform which will help the economy to grow.

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[Lord Callanan (Con)]

For the purposes of clarification, I was merely repeating a similar point to the one made by my noble friend Lady Neville-Rolfe. We will reflect on whether it is possible to publish a comprehensive list of laws that might sunset.

I return to the point I made earlier: we are satisfied that the department has identified all the laws for which it is responsible. Lawyers are currently going through it all and our advice to them is that if they are not sure whether or not a law is retained EU law, they should default to preserving it if they think it is important. I hope that answers the noble Lord’s point.

As I was saying, Clause 1 is the backbone of the Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law. The amendments tabled by noble Lords would add unnecessary time and complex burdens to this process, which, of course, may be the purpose of many of them.

[Baroness Chapman of Darlington (Lab)]

I do not think the Minister referred to my Amendment 43. Can he do that before he sits down?

[Lord Callanan (Con)]

Can somebody remind me what Amendment 43 is, please? I thought it was in my notes.

[Baroness Chapman of Darlington (Lab)]

Amendment 43 puts a safety net around measures that may be lost because they were not identified by the Government. The situation that the noble Lord, Lord Kerr, identified sounds horrific. You would be in a situation where the Government have, through this Bill, decided that something is revoked but nobody has told anybody that it is revoked. The Government have not even told themselves that it is revoked, so is it revoked? My amendment would help deal with that. The Minister might be attracted to at least considering that.

[Lord Callanan (Con)]

I think I referred to that in an earlier part of my speech. I addressed Amendments 42 and 43, but it all comes back to this central point of the so-called accidental sunsetting that noble Lords have raised. The noble Baroness’s amendments propose to remove the sunset entirely and replace it with systems to individually revoke each piece of EU law. I did refer to that earlier, but I will look back at what I said and if I did not refer to that directly, I will write to her. The Government think that the sunset is appropriate. I entirely accept that many Members of this House do not, but the elected House of Commons certainly did, by large majorities.

I think that I have covered most of the points now. Noble Lords might not like the answers very much but that is the Government’s position.

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[Baroness Chapman of Darlington (Lab)]

My Lords, I thought the Bill was bad, but this debate has been quite shocking. I really do not think the Government know what they are doing with these clauses. I do not think that, when the Bill was initially proposed while the Government were having their moment of madness last autumn, we thought that something like Clause 3 would be before Parliament in March the following year. Reckless does not quite cover it; it is as if the Government got completely drunk and now we have a hell of a hangover to deal with.

It is clear from the debate we had earlier in the week, and from the letter, that the Government have not appreciated what the impact of this clause will be. It would be very helpful if we could have a statement or a letter from the Government explaining exactly what they intend to happen as a consequence of this clause, because, listening to the debate, I think that things will emerge that Ministers have not fully taken into account. I thank the noble Baroness, Lady Ludford, most sincerely for her Amendment 62; it is at least an attempt to put some safeguards around what could be about to happen. I am particularly concerned by the high-handed and nonchalant way in which Ministers are dealing with the issue of Northern Ireland. I have seen no evidence at all that the Government have appreciated the impact that what they are about to do could have on the agreement that they have only just entered into with the EU.

I have not read the full text of the agreement—I do not pretend to have done—but I have read the political declaration. It seems very clear that, underpinning the political declaration of the Windsor Framework, limited divergence will be permitted between the EU and the UK, to maintain the soft border arrangements on the island of Ireland. That is clearly what is intended by the political declaration; I expect that is why the noble Lord, Lord Frost, is so upset about it and does not seem to want to support it. That limited divergence is put at risk by the measures in the Bill.

The Minister earlier today did not want to engage with that. She said she was absolutely certain that I was wrong. I think that I am right and she is wrong. I would like a letter from the Minister for the Library explaining why the Government are so sure of themselves on that issue, because these are incredibly important questions; we cannot just be expected to skirt over them and take flippant assurances from the Benches opposite. Clearly, the consequences of Clause 3 and the following clauses may have dramatic impacts. They create great uncertainty. I just do not understand how Ministers can be so sure or even expect us to engage sensibly in this discussion, given what we have just heard.

My noble friend Lady Ritchie’s comments and her amendment are incredibly important. I hope the Government will reflect seriously on this debate. How can the Government think that the rights, liabilities and powers in Clause 3 will ever be reflected properly in the dashboard process? How is that supposed to work? Unless it works, how on earth are judges or citizens expected to make decisions, or employers expected to know what their responsibilities and duties are, if we go ahead with this clause?

Ministers will no doubt say that we are worrying unnecessarily and are taking too much time—that it is 7.05 pm. I do not care that it is 7.05 pm; these issues are just so important. I ask the Minister, please, not to treat this House in the high-handed way that Ministers do on occasion. It is not just him; I am sure others do too. These are critical questions that we are asking. If he cannot answer adequately today, please can he commit to going away and coming back with something more substantial? I can tell him now: this clause does not leave this House and go back to the other end given the debate that we have just heard. The mood of the Committee seems to be one of not wanting this to go forward. We are going to face this on Report.

I will be asked by my Chief Whip to prioritise votes and make sure that we do not have too many. I think that is going to be quite a challenge given what we have heard today, so the more the Government can themselves reflect and consider what has been said—particularly on the issues around Northern Ireland—the better. They must show us that they have done some proper thinking about that and appreciate the consequences of the Bill in relation to the agreement that was made only on Monday. That is the only way in which we can move forward.

I apologise for taking up a little more of the Minister’s time, but I am very patient, and I will sit here until he has given us the assurances we need. He can expect some interventions—irritating though he finds them—if he attempts not to answer the questions raised by noble Lords as part of this discussion.

[Lord Callanan (Con)]

I am very happy to stay as long and late as the House requires. I was very happy to stay later the other night as well, but I believe it is the noble Baroness’s party that said it wanted to go home early and that we therefore needed to finish.

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[Lord Callanan (Con)]

I acknowledge the noble Lord’s point but I will get him a proper answer from the lawyers.

[Baroness Chapman of Darlington (Lab)]

When the Minister gets us that proper answer, I would be grateful if he could explain—I do not understand this, but I do not know whether others do; perhaps some noble and learned Lords understand it—the difference between the “interpretive effects” that were mentioned in the letter from the noble Baroness, Lady Bloomfield, and case law. What is the impact of that difference? The noble Baroness’s letter clearly states that the Bill will

“repeal retained EU interpretive effects.”

I am not clear what that means; I wonder whether the Minister could include that in his letter.

[Lord Callanan (Con)]

I would be happy to include it in the letter. I hesitate to give what I think is a legal definition in front of so many noble and learned Lords but I am told that interpretive effects are not case law. As I understand them, the interpretive effects are the general principles of EU law that have been used to apply to the interpretation of retained EU law because it was EU-originated. We wish to abolish interpretive effects, but that does not impinge on the case law, which of course remains.

Moving on, Clause 4 abolishes the principle of the supremacy of EU law for the end of 2023 in so far as it still applies to pre-2021 legislation. Amendment 64 would delay the abolition of the retained principle of EU supremacy until the end of 2028. There is cross-party support for the end of supremacy. In the House of Commons, Justin Madders MP—he is a spokesman for the Labour Party, I believe—said:

“Overall, we agree that there has to be an end to EU supremacy in UK law”.—[Official Report, Commons, Public Bill Committee, 24/11/22; col. 186.]


If left unreformed, supremacy would remain a constitutional anachronism on our statute book. We believe that it is simply incompatible with our status as an independent, sovereign nation, and we therefore wish to end it as soon as we can.

[Baroness Chapman of Darlington (Lab)]

Can I just explain Justin’s comments? The Minister has provoked me. Clearly, the shadow Minister was talking about a sane, considered process by which this matter is dealt with, not the lunacy that the Minister is trying to promote today.

[Lord Callanan (Con)]

I do not think he said that; he said that there has to be an end to EU supremacy in UK law. While we are all swapping letters, perhaps the Labour Party might want to write us a letter to clarify what he meant. I am not being serious, of course; it is not the Labour Party’s job to do that.

Amendment 142 in the name of the noble Baroness, Lady Ritchie, seeks to clarify that this Bill does not disturb Section 7A of the European Union (Withdrawal) Act 2018. That section makes the rights and obligations in the withdrawal agreement available in domestic law. It also provides that domestic legislation must be read and given effect subject to those rights and obligations. I can reassure the noble Baroness that this Bill will not disturb Section 7A of the 2018 Act. I can also assure her that the Bill provides powers to restate rights and obligations required for Article 2 of the Northern Ireland protocol as needed. The Government will ensure that all necessary legislation is in place by the Bill’s sunset date to uphold all the commitments made under Article 2.

Amendment 100, tabled by my noble friend Lady McIntosh, would remove the sunset date for the compatibility power in Clause 8. It is not necessary to have a power to specify legislative hierarchies beyond 23 June 2026, by which time the Government will have exercised the power as needed.

I move on to Clause 5. I understand that the noble Lord, Lord Fox, has given notice of his intention to oppose the question that Clause 5 stand part of the Bill. General principles of EU law were developed in CJEU case law, with which EU institutions and member states must comply. I submit that it is clearly no longer suitable for our status as an independent nation outside the EU—however much the Liberal Democrats wish that not to be the case—for these specific principles to continue forming part of UK law. The powers in the Bill allow the Government to codify clearly any necessary effects to bring clarity to our domestic statute book.

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Before the noble Lord, Lord Hannay, intervenes, I reassure him that we are not aware of any representations from the European Commission or other member states on the purposes of the Bill.

[Baroness Chapman of Darlington (Lab)]

The Minister has made a number of commitments about providing letters and further information to the Committee, for which we are grateful. We are due to sit for an additional day on Monday. I do not think it is reasonable to ask the Committee to conclude its deliberations on the Bill without sight of the further information that the Minister has promised, so will he commit that we will receive it in good time before we start consideration on Monday—not two minutes before the Committee starts, but in adequate time for us to consider it before we begin? It would not be right for us to be asked to conclude Committee without it.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have no legal training, so I going to rely on noble and learned Lords to tell me whether I have understood this whole section properly. It seems a bit odd.

In contrast to the first clauses of this Bill, which have been designed by the Government to take power away from Parliament—all the decision-making process and scrutiny—Clause 7 seems designed to outsource the task of making sense of the huge legal mess in the Bill. It is wrong on many levels but, in particular, it calls on judges to make political decisions that Parliament ought to take instead. The Bill is potentially going to create a huge legal mess; it does not seem fair for the Government to outsource this issue. That is worrying enough on its own, but it is all the more worrying because of the way in which this Government have demonised lawyers and judges over the past two or three years. They have been scapegoated at every twist and turn of the Brexit process. It has been a nightmare to see people who clearly have our best interests at heart being demonised in this way.

Clause 7 seems to have a very specific purpose. Forgive me if my language is oversimplified but, quite honestly, the Government are making a huge legal mess and are going to ask other people—judges, lawyers and the courts—to sort it out for them so that those people will take the blame when it all falls apart. Can the Minister explain whether I have understood it properly?

[Baroness Chapman of Darlington (Lab)]

My Lords, I have been looking forward to this group of amendments because I thought that this might be the moment when we got to the nuts and bolts of how this is all going to work. It is a real pleasure to see the noble and learned Lord, Lord Bellamy, in his place for this group. We welcome him and hope that he can provide some clarity on the Government’s intentions here. I have tabled a couple of amendments but all the amendments in this group attempt a similar thing, which is to neuter Clause 7 to some extent and, should Clause 7 persist, to balance out some of the instruction to courts.

There are some very helpful amendments, particularly those tabled by the noble Lord, Lord Anderson, which have been referred to by others. What troubles me most about this is that we are endangering the legal certainty, clarity and predictability that are so important. The problem is that retained law will now be reinterpreted. Law can now be given a fresh interpretation so that laws which are still in force as of 31 December 2023 might mean something different from what they meant when they were passed and from how courts have interpreted them if they have been considered by the courts previously. They will mean something else after the end of this year.

From the citizen’s point of view, a major requirement of law is that they know what the law means. If we pass this Bill, that requirement no longer applies to this section of law—in respect of huge swathes of important regulations, from environment and employment to product safety and consumer protections. I will not go into all the examples that we have been talking about on previous days, but the Minister will know what I am trying to get across to him. We just do not know what the effect of this will be. It is impossible to tell from the Bill as it is drafted. The Government cannot possibly know either. They cannot know today, when they are asking us to consider this legislation, the effect that applying different canons of construction will have on thousands of pages of regulation. No Government could think that the best way to remove EU law is to replace it with law the meaning of which is yet unknown. That was my understanding of this, and I am grateful to my noble and learned friend Lord Falconer of Thoroton, who took time yesterday to talk to me about this, to ensure that I was getting this right. This is the situation as he sees it as well. It is quite extraordinary.

I note the remarks of the noble Baroness, Lady McIntosh, on the coherence of civil law, which no one else has referred to. I had not considered this before listening to her speech. She made an important point there. Her points about Clause 7 in relation to the operation in Scotland are also important and it would be very useful if the Minister could respond to those specifically.

We have had some great experience brought to this group, not least by the noble and learned Baroness, Lady Butler-Sloss. It would be wise of the Minister to respect that contribution, which I am sure he will. The noble Viscount, Lord Hailsham, asked: who will judge what is proper? This gets to the heart of this clause and why we are concerned about it. Who will decide, and by what criteria? Clause 7(4) says:

“A higher court may depart from its own retained domestic case law if it considers it right to do so having regard to”,


before going on to list other things.

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[Lord Bellamy (Con)]

As far as I know, this is not intended to be prejudicial, but it presupposes a case where there is a tenable argument and it is put to the court that a retained EU law has that effect. Then the court will decide whether it does and what would be the proper development going forward. Taking that intervention on the hoof as it were, I am not sure at first sight that one is convinced that it would be better to change the wording. Let me reflect further.

[Baroness Chapman of Darlington (Lab)]

I am looking at the same clause as the noble Lord, Lord Kerr. He asked about new subsection (5) (c). I shall ask the Minister about new subsection (5ZA)(a), in which the courts are being asked to consider

“the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart.”

If we are not encouraging courts to depart, why would we be asking them to consider the extent? That seems to raise a question, given what the Minister has just said.

[Lord Bellamy (Con)]

If I may say so to the noble Baroness, I think this is just a drafting point. The extent may well be nil. There is no particular reason to suppose that the retained EU case law in a particular case is restricting the proper development of domestic law. That was the situation, as it turned out, in the Warner music case, although at least one learned justice in that case very pointedly left open the possibility of further developments in a fast-moving technology.

[Baroness Chapman of Darlington (Lab)]

I was not referring to the proper development of domestic law on this occasion. At the top of page 6, we seem to be asking courts to consider the extent to which EU case law “determined or influenced” in and of itself rather than about the “proper development” which is in new subjection (5)(c). I wonder whether that is, to use the language used by the noble Lord, Lord Kerr, prejudicial or leading the court.

[Lord Bellamy (Con)]

I think I can take it not much further than the answer that I have just given—that the extent may well turn out to be nil.

[Baroness Chapman of Darlington (Lab)]

But why are we asking courts to ask themselves that question?

[Lord Bellamy (Con)]

The answer is that the courts will not raise these questions of their own motion. These points will be raised by a party to the proceedings. Then the party to the proceedings will argue that this retained domestic law is influenced by EU case law and is now having—or may have in five or 10 years’ time—a restrictive effect that is holding up the common law. Those are the kinds of circumstances that it envisages, I think.

[Baroness Chapman of Darlington (Lab)]

I think the Minister was about to sit down, but he kindly invited me to respond so I will. I think that is the problem. He must surely understand that we anticipate this leading to an enormous amount of uncertainty—if that alone is something a party in the court is able to point judges towards and say that, because the case law came from the EU, in and of itself that is a reason to ask for a decision to be made in a different way.

[Lord Bellamy (Con)]

Respectfully, as I said a moment ago, I do not accept that this will lead to a great deal of uncertainty. It is binding on the courts of first instance. No one is going to take this to appeal unless there is a real point to be argued. If there is a real point to be argued, it is right that that our courts of appeal and higher courts should consider that point.

Perhaps we have had sufficient exchanges on this topic and I ought to move on as best I can. Finding my place in the notes, I think I have not answered the concerns raised about what we mean by “changes of circumstances” and how we manage that. Again, this is a matter that the common-law courts are very well equipped to deal with and they can decide for themselves whether there has been any relevant change of circumstances or, in particular, whether the change of circumstance is relevant.

I would not have thought that a change of government or a change in the political wind is a relevant change of circumstance. What you need is some circumstance that makes it either difficult to operate, or less than ideal to be bound by, a particular judgment of the European Court of Justice that may have been made many years ago. It may now be completely out of date or may have failed to take account of various factors that the court feels should be taken account of. Very often in a common-law system, when you look at a case and at previous decisions, you see that the particular point had not in fact been decided and you are therefore free to decide it yourself. That is much more difficult to do in a European system, which purports to lay down perfectly general principles.

If I may trespass on your Lordships’ kindness for a moment, it is often quite interesting to look at the summary of a European Court judgment, which in English terms would be referred to as the “headnote” of the case. It extracts principles from the judgment. The equivalent headnote in an English case says: these are the facts, and this is what the decision was on these facts. That encapsulates a difference of approach, thought and philosophy as to how you develop the legal system.

As I said a moment ago, I am not saying that it is better or worse; it is just different. Historically, we in this country belong to a huge family across the world that uses this technique, whether in the United States, Canada, Australia, India—very prominently—or otherwise. The Government are simply saying that we should not forget that we have a great legal tradition and we do not have to, as it were, slavishly follow the latest emanation from those very hard-working, very able, but not necessarily relevant to us, judgments and judges in Luxembourg.

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[Lord Bellamy (Con)]

That is quite all right.

This is the logic of the approach. It is a cross-UK approach and not a Scotland-specific approach. It does not seem appropriate that the previous functions of the Lord Advocate, so far as they have been retained, should change.

[Baroness Chapman of Darlington (Lab)]

Could the Minister speak louder?

[Lord Bellamy (Con)]

I am sorry. I was saying that this is a structure that gives the UK law officers power in relation to UK competence and the devolved Governments power in relation to their competence. That is the structure of it all.

Amendment 101, on the question of incompatibility orders, is described as a probing amendment. Again, this has precedence in other parts of the statute book. The Judicial Review and Courts Act 2022 has a similar power. If there is a point of incompatibility, the courts are given a power to manage that; it would probably mean deferring making an order for six months until the Government could fix it, as did the Court of Appeal in the Open Rights Group v The Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport: we have found a problem, and we are going to give you time to come up with solution, whether it is legislative or otherwise. In that particular case, the power was said by the Court of Appeal to derive from EU powers, but this is giving the court power under domestic legislation. I hope it is a sensible process for making the compatibility mechanisms work properly if incompatibility is found, which is likely to be a fairly rare event. I hope I have covered most points, if not all.

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[Baroness Neville-Rolfe (Con)]

I have given my answer. I have been very clear about the importance we attach to food safety from both a government point of view and my own historic point of view, which I hope adds some credibility. I do not think I have a lot further to say, apart from the fact that officials are working with the Food Standards Agency day and night on these areas.

Amendment 132, tabled by the noble Baroness, Lady Chapman of Darlington, proposes that a Minister of the Crown should publish a report 30 days before the powers can be exercised. The report would have to include a list of criteria which relevant national authorities would need to take into account when exercising the powers under Clauses 12 to 17 of the Bill. The delegated powers within the Bill will enable Ministers to make active decisions regarding their respective retained EU law. It is only right to have such powers; they will help to put the UK statute book on a sustainable footing within a reasonable timeframe and facilitate the much-needed review and reform of retained EU law to ensure that we can capitalise on the benefits of UK autonomy. Furthermore, the Bill has been drafted to ensure that legislation made under the delegated powers is subject to scrutiny procedures proportionate to the scope of the powers. I therefore do not consider that publishing a report setting out criteria which Ministers must take into account when using the powers within the Bill is necessary given the scrutiny already provided for.

I turn now to Amendment 141 in the name of the noble and learned Lord, Lord Hope of Craighead; I am sorry he is not here today. The amendment would impose a requirement to seek consent from a Scottish or Welsh Minister where a Minister of the Crown intends to exercise a power in the Bill separately on legislation which is in an area of Scottish or Welsh devolved competence. First, I assure your Lordships that the Government are committed to respecting the devolution settlements and the Sewel convention. Indeed, none of the provisions within the Bill, including the powers, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments.

I recognise that the extension power is not conferred on the devolved Governments. However, we are keen to ensure that the provisions within the Bill, including the powers, work for all parts of the UK. That is why the majority of the powers will be conferred concurrently on the devolved Governments: to enable them to make active decisions regarding their retained EU law. As such, introducing a requirement for a Minister of the Crown to seek legislative consent when using the powers on legislation within areas of devolved legislative competence is not necessary.

[Baroness Chapman of Darlington (Lab)]

We keep being told that there is not going to be consultation or legislative consent, and that the Food Standards Agency would of course be mindful of what the Government have to say. We are being asked to take all these things on trust, but it is not as though the Government have an impeccable record on these things. Can the noble Baroness not appreciate that what the Committee is trying to get at is to understand how these determinations will come about? We are looking for some sort of signal from the Government that there will be openness and a willingness to involve, and an attempt to do more than what is absolutely strictly necessary within the letter of the Bill that she is referring to. Were she to endeavour to give us that reassurance or explain how that would be done, she might find a little—not a lot—more sympathy for the position she is taking.

[Baroness Neville-Rolfe (Con)]

I understand. I am very grateful to the noble Baroness for trying to help to move things forward; we are certainly keen to do that. Clearly, this enabling Bill is going through Parliament ahead of the some of the work that has been going on around the dashboard and the individual governmental plans, which is perhaps a pity. I think my noble friend the Minister said that he would try to make more information available as that became possible. Indeed, we have given an extra couple of days for debates in Committee. Progress is being made all the time in departments on their plans. We have these two processes—

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

Before I turn to the clause stand part notices, I shall just add one extra thing to the case I was making for the Government earlier. I failed to add a further point the Government could legitimately argue: this time, Ministers will at least be looking at this legislation and, therefore, something is happening now that did not happen during the days when we were in the European Union. I concede that extra point to the Ministers, because I think it is fair to do so. But to go back, it is quite plain from the way Clauses 12 and 13 are drafted, relating not just to secondary legislation but to secondary legislation that has become assimilated into primary legislation, that this is just sweeping everything under the carpet. This is not satisfactory and that is why I suggest that we oppose the continued existence of Clauses 12 and 13.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Ludford, in particular, for her speech. She said a lot of the things that I was going to say, and noble Lords should all be grateful to her, because she has saved them listening to me. We agree that we have real problems with Clauses 12 to 14. Our concerns about Clauses 12 and 13 are mainly about the extent of the powers that are going to be held by Ministers for national authorities, and the lack of consultation. I also want to mention Amendment 103 in the name of the noble Baroness, Lady Humphreys, because it seems appropriate, on the face of it, for the devolved Administrations to have rather more involvement than these clauses, as currently drafted, seem to allow for.

In Clause 12, it would be good to get a bit more clarity from Ministers on this issue of restatement. I am not entirely clear what is meant by restatement. It is rewriting, I think, because if it were not some sort of rewriting, it would just be “retain”; we would not be having another category called “restate”. Can the Minister define what is meant by “restate”? Obviously, it means that the language can be changed, which could change the meaning, the scope, the power of the law. It could be altered, maybe inadvertently or perhaps intentionally; so who is going to check that the restatement has the effect that Ministers would want, that the devolved Administration would want, that those who are subject to the law would want, or that Parliament would want? I understand if it is about wanting to bring different pieces of law together, perhaps, or to resolve some sort of ambiguity, but how is the Minister going to determine that something is ambiguous? If it is ambiguous, by definition that must mean that there is more than one way of interpreting this piece of law; if there was not, it would not be ambiguous. So how are they going to determine what the right answer to that should be?

The DPRRC is very helpful and clear about this. Apart from anything else, it says that both Clause 12 and Clause 13 should be removed from the Bill—we think it is completely right—because they “inappropriately” delegate legislative power and give

“Ministers powers to legislate to achieve effects that ought instead to belong to Parliament and be achieved in … primary legislation.”

But they also refer to restatement, as the noble Baroness, Lady Ludford, drew to our attention. We are concerned that that could take the Government somewhere they perhaps do not intend to go. Given the pressures on time, which we have already discussed at length—do not worry, Minister, I am not going to go through all of that again—restatement could have a different outcome from that intended. That is before we even get to the powers to revoke, which in some ways might be more concerning. That is a real problem for the Government, and it would be good to know whether they have recognised that potential issue and if so, what measures they have put in place to help prevent any undesirable outcomes that may arise.

I will leave it at that because we will probably come on to similar arguments in the next group. We are very concerned. We do not generally have clause stand part debates, but we are very worried about these two clauses in particular.

[Lord Callanan (Con)]

I thank all noble Lords who have spoken, and I will do my best to assuage the concerns of the noble Baroness, Lady Chapman. The main objective of this Bill is to end REUL as a legal category, as we have said many times. We view the powers to restate as critical to ensuring that the Bill delivers this vital objective, while at the same time ensuring that UK legislation is clear, accessible and improves legal certainty.

I will start by addressing the amendment in the name of the noble Lord, Lord Fox, which the noble Baroness, Lady Ludford, spoke to. Clause 12 is critical in ensuring that the UK and, crucially for the noble Baroness, Lady Humphreys, who I do not think is in the Chamber any more, devolved Ministers—

--- Later in debate ---

Moved by

[Baroness Chapman of Darlington]

112: Clause 15, page 18, line 31, at end insert—
“(1A) Before making regulations under subsection (1) a relevant national authority must consult with any person who may be affected by the proposed regulations.(1B) If a Minister of the Crown proposes to make regulations under subsection (1) which concern devolved matters the Minister must before making the regulations consult with the relevant national authority.(1C) A relevant national authority and, where subsection (1B) applies, a Minister of the Crown must publish the results of any consultation conducted under subsection (1A) or (1B).”Member's explanatory statement
This amendment requires a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations under subsection 15(1) before making them. All relevant national authorities are required to publish the results of the consultation.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am happy to briefly introduce Amendment 112 on behalf of the noble Baroness, Lady McIntosh. It is a pleasure and I thank her for inviting me to do so. Amendment 112 would require a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations under Clause 15(1) before making them. All relevant national authorities would be required to publish the results of the consultation.

We have been discussing Clause 15 on and off since we started. It is about the power to revoke and has caused a great deal of interest among noble Lords as we have gone through this. We have tabled Amendment 113, which would remove some important measures from the scope of Clause 15. We went for what we thought were the least controversial topics imaginable, so we have the Cocoa and Chocolate Products (England) Regulations 2003, some regulations on toy safety, regulations on the control of asbestos—which we discussed at length on day one—and the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005.

What we are trying to get at here is this issue of desired policy effect. Repeatedly, we have been assured by Ministers that we have nothing to worry about; every time we raise a particular measure, we are told, “No, that’s all fine; we are going to keep that one.” If that were the case, then an amendment such as Amendment 113 would pose no threat to Ministers because they would be able to back up their assurances with something within the Bill that would mean something.

Not anticipating that that is about to happen, I thought that I should explain a little further why we are quite so concerned about this. Clause 15(2) talks about the right of the relevant national authority to

“revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives.”

It is quite a broad power to be able to revoke a law and replace it with something else that the national authority thinks is appropriate—never mind what anybody else, this House or the other place might think. Achieving similar objectives is all very well, but the Bill does not say that the replacement law must have the same effect, which is very different. The DPRRC draws our attention to this as well. In fact, the committee says:

“Clause 15 is the most arresting clause in the Bill for its width, novelty and uncertainty,”


which is pretty strong language for this kind of report. This is something that we will definitely want to come back to at a future stage.

I find Clause 15(3) to be the most concerning thing. It states:

“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision”,


but it does not say what the desired policy effect would have to be. The Government do not set out anywhere what their policy outcomes are intended to be, so we cannot challenge the Government by saying that their replacement law is or is not going to meet their policy objective.

We have touched before on the issues raised by Clause 15(5). Ministers know that we are very worried about the last part of that subsection, which says that any changes must

“not increase the regulatory burden”.

A law can be revoked and replaced, but the regulatory burden must not be increased. When we have touched on this previously, we have been told that our understanding is not quite correct, because we were talking about categories of law and the burden must be the same in total across a category of law; a particular measure may result, on its own, in an increase in burden. The “burden” is defined as a financial cost; an administrative inconvenience; an obstacle to trade; an obstacle to efficiency, productivity or profitability; or a sanction, criminal or otherwise. That seemed very odd to us. We are not clear what a “category of law” is and, as far as I can see, it is not stated anywhere in the Bill. This would seem an appropriate set of amendments where the Minister might further explain exactly what is intended.

--- Later in debate ---

[Lord Lucas (Con)]

My Lords, the Government are taking huge powers in the Bill to abolish EU legislation and are asking us to believe the promises they have made; for instance, on environmental law, that they will not decrease environmental protection. I entirely accept those promises. This is a well-run Government who are capable of controlling what they do and living up to their promises. In that case, what is the problem with just saying, “And we’re not going to increase the regulatory burden”? We would say, “Okay, we believe you; we don’t need you to have a power to stop yourselves doing that”. What kind of Government need to legislate to stop themselves behaving well?

[Baroness Chapman of Darlington (Lab)]

This clause has got to the guts of the Bill. It is a real mistake for the Government to be quite so certain in their position on this and to not give even the slightest indication that they want to consider some of the suggestions made by noble Lords in this debate. I think the Government may come to regret batting things back without really taking on board the very serious and well-considered points that have been made. This is certainly something we will return to on Report.

I have worked on a lot of Bills—not as many as others in this place—but never one where nobody has turned up to support their Front Bench on the Government side on anything.

[Lord Hamilton of Epsom (Con)]

I have!

[Baroness Chapman of Darlington (Lab)]

Even the support there has been has been heavily caveated, and it has hardly been what you could describe as overwhelming and unquestioning support. I would say it has been very questioning support. I think that noble Lords on all sides are looking for a bit more from the Government on this clause in particular, but the same applies to most of the groups we have debated on all four days. Your Lordships might say that I rush to criticise the Government sometimes; I do not think I do. Other people are much more reluctant to do so, but their criticism is there none the less. I genuinely think that Ministers ought to reflect on this.

We are very disappointed with the failure of the Government to engage with the DPRRC on any of its findings and to recognise that the power in Clause 15(3) is very wide. This issue about categories or subject areas and that the regulations must be “similar”—whatever that means—is going to have to be looked at again. If we need to force the Government to do that through votes in this place, we would be very happy to work with noble Lords on all sides to work out the best way to do that.

The Minister said a couple of times that there would be no carve-outs but there is a carve-out for financial services and it looks like judges are getting one for their pensions. It is interesting to think about how the Government set priorities for themselves when these issues are being exempted but the environment and consumer protection are not. It is no wonder that noble Lords are a little reluctant to take all this on trust. Whatever the noble Lord, Lord Benyon, says—I am sure he is a Minister who says everything with the utmost sincerity—there is no default position for Defra of retention. That is not possible in this Bill. It is a real shame that a basic understanding of what is going on here seems to be being overlooked, perhaps wilfully, from time to time.

We are disappointed. We are going to come back to this issue. I urge Ministers to have some further thoughts and deliberations, and perhaps come back with something a bit more sensible on Report.

Amendment 112 withdrawn.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, we are indebted to the noble Baroness, Lady McIntosh, for again bringing forward some detail and being a conduit for the important work that the Law Society of Scotland provides to a number of different Bill Committees on which I have found myself. I am not going to speak to the clause stand part debate or her first amendment, but I shall speak briefly on Amendment 134. She herself linked it to the first group that we spoke about today. In the words read out by the noble Baroness, Lady Bloomfield, in response to that group, I failed to recognise the description of the relationship that currently exists between the Government in Westminster and the devolved authorities when discussing this Bill. A picture appeared to be painted of some quite progressive and happy discussions, which is not my impression of what is actually going on. The noble Baroness’s Amendment 134 is another way of trying to link back to the devolved authorities. It is clear at the moment that the devolved authorities are very sore about how they are being treated by the Bill, so any measures that reach back to them are important. That is why we on these Benches particularly support Amendment 134.

[Baroness Chapman of Darlington (Lab)]

My Lords, I agree with what the noble Lord, Lord Fox, said about the helpfulness of the noble Baroness, Lady McIntosh, in tabling these amendments. It is curious that, in this clause, changes in technology and developments in scientific understanding are allowed to be taken account of but other factors are not. I would have thought, given the Windsor Framework, that we ought to be taking account of developments in the economies of our trading partners and their regulatory developments, because under that framework they are going to have an impact on what we are able to do in the UK and our approach to regulation and divergence. That is becoming increasingly clear, which is why we are seeing questions such as that asked by the noble Lord, Lord Moylan, of the noble Lord, Lord Caine, yesterday at Oral Questions. We do not yet have a sense that the Government are on top of this. It is as if they have done this Bill and then done something somewhere else, and no one has asked about how those two things will overlap.

When I first saw this clause, I thought, “This is a real problem because Ministers are going to get too much power to do things without accountability, rather like the discussions we have had before”, but actually even more questions are raised about the privileging of technology and scientific understanding ahead of anything else. It would be good to understand where that has come from and what Ministers had in mind when they included it in the Bill. Might they come to regret not making clear that this is not an exhaustive list, or something like that, as they have in other clauses? We are not clear what is meant by the phrase

“considers appropriate to take account of”,

so perhaps some examples might be in order.

[The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)]

Amendments 133 and 134, tabled by my noble friend Lady McIntosh of Pickering, relate to the power to make consequential provision in Clause 19. I will also address the intention to oppose Clause 16 that she has tabled, regarding the power to update. I reiterate my intention that Clause 16 should stand part of the Bill. As she has indicated, her intention to oppose it is probably partly probing in nature.

The power to update within the clause, as it says, is intended to enable scientific or technological updates to retained EU law, assimilated law, and legislation made using the powers to restate and the powers to revoke or replace in the Bill. This power is intended to provide Ministers and devolved authorities with the ability to update relevant existing legislation in line with its policy intent, rather than provide for fundamental policy change.

The Government considered a number of relevant criteria for the power to update and settled on scientific advancement and technical change as the most appropriate. Adding extra provisions on trade or economics would be very wide-ranging, whereas the need to update narrowly on tech makes sense. I shall give the Committee a hypothetical example. Medical devices regulations set out a list of equipment that is safe to use. As new medical technology is developed, this power could be used to update the list of permitted devices to include the new technology.

During our EU membership, EU law was frequently updated by the European institutions—I remember sitting in management committee when I was a civil servant—but we now lack the powers to do so ourselves for retained EU law. We cannot allow this body of law to stagnate on our statute book. To resolve this, a Minister or devolved authority may make updates to such legislation to take into account changes in technology or developments in scientific understanding, as appropriate. That ensures that legislation which sits on the UK statute book is able to keep pace with scientific and technological developments and will enable the UK to continue to uphold our high standards. Without such a power, there is a risk that legislation would stagnate and become outdated on the UK statute book. For example, there could be significant developments in technology that we need to be able to respond to quickly and in an agile way in order for the UK to keep pace with such developments and remain competitive. I therefore ask that the clause remain part of the Bill.

Amendments 133 and 134 both seek to place restrictions on the consequential power within Clause 19. Amendment 133 would limit a Minister of the Crown to make only those changes deemed necessary in consequence of the Bill, while Amendment 134 would place a requirement on the Minister of the Crown to consult any interested persons and relevant devolved Governments before using the power to make consequential amendments. The Minister of the Crown would also be required to publish the results of any consultations.

On Amendment 133, I reassure the Committee that the inclusion of a consequential power is standard practice for a Bill where minor additional changes to legislation may be required as a consequence of the changes brought forward by the Bill. To take another example, consequential amendments will need to be made to rename retained EU as “assimilated law” in existing legislation. Were Amendment 133 to pass, it would limit the power to only those amendments deemed necessary. That would lead to a number of problems. In particular, it is not clear whether any consequential provision would ever be truly necessary, as it would be possible to leave the statute book with an erroneous provision and it would likely be interpreted as modified by the Bill.

Turning to Amendment 134, I have already explained that this power is a standard consequential power. The power is not conferred standardly on the devolved Governments, as it is normally exercised by UK Ministers. Should this amendment be passed, it would hinder the ability to make consequential amendments to legislation, which may be necessary to ensure that our UK statute book continues to function effectively. Indeed, it is our expectation that the use of the consequential power, as in other primary legislation, will be interpreted narrowly and limited to making only those amendments that are genuinely consequential and result from changes in the Bill. For these reasons that I have outlined, I ask my noble friend not to press her amendments.

My noble friend also raised the question of devolved nations and of the Scottish Parliament’s consent. We will come to back to that; we understand the concerns raised. I apologise for not being here at the beginning of proceedings, as I had a meeting with the Welsh Government. I know that it has been difficult for everyone because of the extra—but important—days that we have had to debate the Bill.

[Baroness Chapman of Darlington (Lab)]

Can the Minister commit to write to me about an issue that I have raised a few times on different groups? It is about how the Bill relates to the Windsor Framework and how the Government see that evolving.

[Baroness Neville-Rolfe (Con)]

I certainly undertake to write. There are some uncertainties, as the noble Baroness will understand, so I will update her as much as I can. It is important and we need to be as clear as we can be before Report.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Lord Hunt of Wirral (Con)]

My Lords, in January I had the privilege of being appointed chair of the Secondary Legislation Scrutiny Committee. In that capacity I support these amendments in the name of my noble friend and predecessor Lord Hodgson of Astley Abbotts—a very difficult act to follow, as he has just demonstrated once again. I greatly welcome the participation of the noble Baroness, Lady Randerson, who has already brought a ray of sunshine to the committee in dealing with some difficult and challenging problems.

Supported by our team of brilliant and highly experienced advisers, the committee reports week in, week out on secondary legislation laid before Parliament, covering every conceivable aspect of policy, directing your Lordships’ attention to the most notable instruments and providing valuable information in support of subsequent debates on those instruments.

As we have heard, under the European Union (Withdrawal) Act 2018 the committee was charged with an additional function—the scrutiny of what are called proposed negative instruments laid under a new sifting mechanism. The committee had 10 days to report on these proposed instruments and, to its immense credit and that of its staff, it rose to the considerable challenge of meeting that demanding deadline under the leadership of my noble friend.

As we know from the committee’s recent report on the Bill, however, this was not an easy matter. As the report warned,

“depending on the day of the week on which a proposed negative has been laid, meeting that 10-day deadline could be challenging.”

This Bill makes similar provision for a sifting mechanism. It will apply to the exercise of powers under Clauses 12, 13 and 15. As with the 2018 Act, the Bill does not name the Secondary Legislation Scrutiny Committee as the committee to be charged with this sifting function. That is, of course, a matter for the House.

I know your Lordships will understand that in making the following points I do not mean any discourtesy or to pre-empt any decision of the House. Under the sifting mechanism in the Bill, the reporting period is again 10 days. If that period represented a challenge under the 2018 Act, which involved regulations with the limited purpose of dealing with deficiencies in retained EU law, how much greater will be the potential challenge where regulations under Clause 15, for example, may make “alternative provision” for secondary retained EU law? Such regulations may well require the sifting committee to probe further into the new policy underlying the alternative provision—a point made by the noble Lord, Lord Fox, I understand, and reiterated by my noble friend a few moments ago.

That in turn may include the committee having to solicit further information from departments and consider submissions from outside bodies before it can come to an informed and considered view. I realise that my noble friend the Minister may well be worried that, in giving any concession here, he might open the door for a read-across into other departments, but this is a very special case and I want to make it clear that there is no read-across here.

The capacity of the SLSC to meet a 10-day deadline has been amply demonstrated. The committee would not expect the full 15 days for every proposed negative instrument—far from it. What is being asked for in Amendments 139 and 140 is an extension of the deadline in recognition of the fact that the Bill has the potential for generating more complex and far-reaching policy changes, through instruments subject to the sifting mechanism, than the 2018 Act has. From time to time, there will also be occasions when the longer period is needed if the House is to receive the full benefit of the opportunity for more effective parliamentary scrutiny that the sifting mechanism provides.

I very much hope that my noble friend the Minister and his colleagues will accept the force of the argument and take these considerations seriously. At the end of the day, we all want Parliament better to do its job in the public interest, so I support my noble friend.

[Baroness Chapman of Darlington (Lab)]

My Lords, there is not really much to add, so I will not say very much. I notice that the noble Lord, Lord Fox, has denied himself the opportunity to speak on this last group, which is—

[Lord Fox (LD)]

Surprising.

[Baroness Chapman of Darlington (Lab)]

Uncharacteristic but very welcome—I hope he does not take that the wrong way.

We support this measure, for the reasons that have been very well laid out about giving stakeholders a chance to get involved. We do not think that accepting one of these amendments or something like them would affect the Government’s ability to fulfil their objectives.

The noble Baroness, Lady Randerson, made some good points about the argument regarding practicality, based on experiences laid out very well in the committee report. I thought her concerns about the unintended consequence of sticking with 10 days—that it might actually make the process slower because more things would get referred—were strong. Her point about the need to probe policy that may come about as a result of the SIs coming from this Bill has persuaded us as well.

I would have thought this was something on which the Government could accept a change and bring something back on Report. If they do not, we will be happy to work with noble Lords on all sides to try to table something ourselves. I think this may perhaps be an occasion where the Government could show willing, and listen and respond positively.

[Lord Callanan (Con)]

I thank the speakers. We have finally reached the last grouping, which is a source of considerable relief.

Amendments 139 and 140, tabled and ably moved by my noble friend Lord Hodgson, both propose introducing further scrutiny procedures for legislation made under powers within Clauses 12, 13 and 15. Both amendments would essentially do the same thing: they propose extending the period of time after which legislation is made under these clauses and is subject to scrutiny from the House of Commons and the House of Lords as part of the sifting procedure. Specifically, they seek to extend the time limit within which both Houses can make recommendations on the appropriate procedure used for the instrument laid as part of the sifting procedure.

As drafted, the relevant committees of the Lords and the Commons have 10 sitting days, as both my noble friends and others said, to make recommendations on the appropriate procedure after an instrument has been laid. This is actually in line with the level of sifting under the EU withdrawal Act. I note my noble friend’s comments that it was not enough time, but I was impressed by the incredible work that the committee did during that time and I do not recall it being a particular issue.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, this has been a very extensive debate. The noble Lord, Lord Jackson, mentioned churlishness in a different context; it would be very churlish for these Benches not to welcome the government amendments in this group and the fact that the Minister has co-signed Amendment 9 in my name and that of the noble Baroness, Lady Chapman.

We owe the Minister a debt of gratitude. All through the grinding Committee, he stuck poker-faced to the party line, but then it seems he sprang into action; he took the spirit of what he heard in your Lordships’ House and, using his not inconsiderable powers of persuasion on the Secretary of State, he ensured that the whole government position flipped by 180 degrees. We need to thank him for listening to your Lordships in Committee.

We heard some concern about what is in the new schedule, which we will debate on Wednesday. Some of us received at 2.40 pm some explanation as to why particular regulations were put in. Clearly, that was late—we should have had it a lot earlier—but Amendment 2 takes the place of our having to work through the night on that spreadsheet. Should the noble and learned Lord, Lord Hope, seek the opinion of the House, we on these Benches will support him. Part of the road can be travelled with this group, as long as the noble and learned Lord’s amendment is included.

[Baroness Chapman of Darlington (Lab)]

My Lords, it has been a bit of a saga getting to where we are, but it is incredibly welcome that Ministers have tabled the amendments before us today. This means that we do not need to debate my Amendment 6, which would have had a similar effect to the Government’s amendments. I also welcome the Government’s acceptance of my Amendment 9, which deletes Clause 2.

--- Later in debate ---

Moved by

[Baroness Chapman of Darlington]

9: Leave out Clause 2
Member’s explanatory statement
This is related to the amendment in the name of Baroness Chapman of Darlington to replace Clause 1.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, first I would like to associate myself with those last two comments and those of the noble Lord, Lord Carlile. This amendment should not in any way be conflated with the amendments that we have passed and, I hope, we will pass later today. Rising to speak to this amendment rather feels like gate-crashing someone else’s private argument. I beg your pardon, but I am going to continue.

In normal circumstances, if there was anyone I would send out to reduce bureaucracy, it would be the noble Baroness, Lady Noakes. Sadly, she seems to have broken from her norm with this amendment—perhaps she has been egged on or even corrupted by the co-signatories of this amendment. However, it does seem like it is one fight too many for the Government, and I understand that to some extent the Minister will be conceding on this. No doubt in the Government’s estimation this is perhaps a bone that can be thrown to one part of their own party without actually causing too many problems for the rest of the Bill—so good luck to the Minister on that one.

To what end will we have this list? I am a little curious as to what we will be listing. The noble Baroness, Lady Lawlor, raised this to some extent. I think it would be helpful for your Lordships if the Minister could confirm at what point in the process of this Bill retained EU law that is not revoked by the schedule becomes assimilated law. In other words, when will this happen? When in the process of this Bill do Clauses 4, 5 and 6 cause these laws to slough off the links they have with the ECJ and all those interpretations based on EU values, which noble Lords opposite object to? At what point are these laws rendered just as susceptible to British common law as any other law on the statute? It would be helpful to know the dates when those things will happen because, once that has happened, it seems there will no longer be any retained EU law: it will be assimilated law formerly known as retained EU law.

An intriguing vision visited me when I was pondering this. In the popular motion picture “Blade Runner”, the hero, Harrison Ford, is tasked with rooting out and eliminating replicants. As I am sure the noble Baroness, Lady Noakes, will remember from when she queued to enter the cinema, the replicants are essentially synthetic humans, indistinguishable from and which function as real humans—hence, they are rather hard to find. In a sense, the noble Baroness, Lady Noakes, is seeking to brand these laws in order that they do not become indistinguishable replicants once they enter the canon of British law. Of course, that is her point; she has to maintain a difference between these laws in order to continue to have a conflict. This is, of course, a conflict between and among her parliamentary colleagues rather than the rest of us.

If, instead of focusing on where these laws came from, they focused on what they do, the whole process would be more worth while. Some of this assimilated law will need revoking or reforming, but similarly so do swathes of laws that were directly made by this Parliament. The invaluable time spent on the process in the amendment tabled by the noble Baroness, Lady Noakes—her annual census of the replicants perhaps—would be better spent actually doing the sort of things we need to do to make regulations smarter, as was noted by noble Lords just now.

The noble Baroness, Lady Noakes, mentioned the Financial Services and Markets Bill. She may be dissatisfied with what is going on there, but that seems to be a model of how this process should go. If you take a sector, the job of Parliament is to assess all of the relevant laws pertinent to that particular sector. Some of them will need retaining; some of them will need revoking; some will need reforming, and there will be a need for new laws. At the end of it, Parliament will have gone through the whole process—irrespective of where those laws came from. It is not about where they came from; it is about what they do. This is unnecessary and it is essentially an irrelevant piece of legislation designed to create an argument within the party opposite.

It is the sort of clause that the noble Baroness, Lady Noakes, would normally come down on like a ton of bricks. It is a list that the noble Baroness, Lady Noakes, and her colleagues on this amendment can use to fuel a fight with other members of the Conservative Party and nothing more—so good luck with that.

[Baroness Chapman of Darlington (Lab)]

My Lords, I was surprised when I saw this amendment. I have now spent 13 years in opposition in this and the other place, tabling such amendments at just about every opportunity. When you know that the Government are not going to do what you want them to do, one of the things left to you is to ask the Government to report annually or six-monthly to both Houses on whatever the issue might be. I have done this on everything from women’s justice to food standards to access to medicines. It is an in your back pocket kind of amendment—the sort that Ministers usually bat away quite easily. They talk about the cost and how much Civil Service time would be taken up in preparation. They do not want to use up valuable parliamentary time to debate these things, nor to distract Ministers with these sorts of fripperies.

On this occasion, it seems that the Government have decided that they can afford the time, money and resources to compile this list—to keep the argument alive for some people within the Conservative Party. What has happened to the noble Lords, Lord Frost and Lord Jackson? The tigers of Brexit are being bought off by an annual report to both Houses of Parliament. This is the sort of thing that the Opposition would have settled for at any point. There they are, taking this at what is meant to be the climax of their Brexit mission. I am quite disappointed that this is all the noble Lords have sought to achieve at the end of all this. They must be quite disappointed, although at least they get to have their report each year, to raise things and to ask why this or that regulation has not yet been dealt with. This is not going to be a red-letter day in my diary but, if it keeps the flame burning for others, then so be it.

I have to ask the Minister the same questions that he would ask me if the roles were reversed. Who will be compiling this list of regulations? How much time will they be spending on it? What is the cost? Will there be an opportunity to debate this report in Parliament each year? What format will this take, or will it go to a Select Committee? I wonder about the Government’s priorities. They find time to undertake this task when mortgages are soaring, inflation is still high, people are dying waiting for treatment, unable to see their GP and are pulling their own teeth out. This is what is going on in the country and yet the Government make this a priority.

I understand that the Government intend to accept this amendment, despite everything they have managed to do. They have completely rewritten their Bill. They have shown a little bit of backbone in doing that. I give credit where it is due. Now, at the 11th hour, they think that this is going to get them over the final hurdle. I am disappointed in the Minister for falling at the final fence. I am particularly disappointed in the noble Lords, Lord Frost and Lord Jackson, for settling quite so easily. There we are. I do not think we will bother to oppose the Government on this. Given everything else that has been going on, it does not seem worth the time of the Chamber to do so. This was quite a surprising, last-minute event in the process of this Bill.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I thank the noble Baroness, Lady Chapman, for what must be the most cynical speech I have heard on this Bill so far. We have seen just how committed the Opposition are to any kind of serious reform. They were perfectly to accept all this legislation which was imposed by the European Union through the various processes—before the noble Baroness, Lady Ludford, corrects me. Now Labour is not interested in any kind of reform of it. It is perfectly happy to live with it. It shows the true colours of the Opposition.

Nevertheless, I am of course pleased to say that the Government have already reformed or revoked more than 1,000 pieces of retained EU law. But I agree with the contributions of my noble friends Lady Noakes, Lord Jackson, Lady Lawlor, Lord Frost and Lord Shinkwin—but this should not be the limit of our ambition. The answer to the noble Baroness, Lady Chapman, is that the retained EU law is already listed in the famous schedule, and, if she accesses this internet thingy, she can get a list of all the remaining retained EU law. Departments will continue to review all the retained EU law that has not already been revoked, reformed or planned for revocation this year, to identify further opportunities for reform. We want to do this because we want to reduce the burdens on business, generate more jobs and unlock the potential for economic growth. Again, we can see where the Opposition’s true priorities are in that agenda.

--- Later in debate ---

[Lord Fox (LD)]

My Lords, I dare say that the Conservative Party could use the experience the noble Baroness, Lady Lawlor, has in unifying Germany to perhaps unify itself.

This has been a rancorous debate and before I join in, I have a bit of housekeeping to do with the Minister. When he was still trying to push 5,000 laws over a cliff edge at the end of last year, on a number of occasions he used examples to illustrate the intrinsically trivial nature of all 5,000. One of the examples he used was legislation referring to reindeers and another was legislation referring to olive trees. I have studied the list, alongside the noble Lord, Lord Hacking, and I find no mention of reindeers or olive trees. Can I assume that those laws will remain on the statute book—or did they not in fact exist in the first place?

As we heard from my noble friends Lady Bakewell and Lady Brinton, we on these Benches really welcome the Government’s 180 degree U-turn. However, the breathless nature of that U-turn brought with it problems. We are debating those problems now because, in choosing not to eliminate 5,000 anonymous regulations—in essence, regulations that we did not need to know about—and in having to choose the regulations that will be revoked, the Government have had to publish this schedule very late and, even later, give us guidance on the decision-making process that went into putting those regulations on that list.

My noble friend Lady Brinton’s experience in trying to track a legacy of statutory instruments and regulations that did not get properly documented, in a way that was easy to follow, completely illustrates what the Civil Service was seeking to do 5,000 times—and many of those cases were even more complex, I dare say, than the case my noble friend Lady Brinton dealt with. In order to do that, the first thing the Civil Service had to do was to find those regulations and laws.

When the noble Lord, Lord Hamilton, talked about it being the Civil Service’s role to dig up these regulations, he was not far from the truth. Many of these regulations were located at the bottom of a salt mine in an archive—I am not joking—in the north-west of this country. They had to don their safety gear and go underground to seek out these regulations. That is the level of digging-out that had to happen in order to do this.

That is why it is extraordinarily unfair to then put the blame on people who do not have a voice and are not able to answer back. They are lucky to have the noble Lord, Lord Wilson, to stand up for them, but it is bullying behaviour to bully people who do not have a voice. To my namesake, the noble Baroness, Lady Fox, and others, I say that “the blob” is an entirely derogatory term. These are people who do a job, and to roll them up and call them a blob is deeply offensive and against those people’s welfare.

The noble and learned Lord, Lord Hope, set up exactly the problem we have here. I have hope in “Hope’s amendments”—that we can at least regain some control. I remind noble Lords that we also passed a non-regression amendment that should deal with some of these issues. It is, as the noble and learned Lord said, not an ideal situation.

I look forward to the Minister’s response on the specifics, but deep in the heart of this whole process is a problem. The problem is that the Government set out to do something in too short a time, when they did not even know how big the job was in the first place. When they found out, they drew back. Now, they are trying to blame other people. The Government have no one but themselves to blame for the mess over which they are now officiating.

[Baroness Chapman of Darlington (Lab)]

My Lords, the final debate on this Bill has highlighted just what a shambolic process this has been. We were glad to receive the explainer that the Government produced to accompany the new schedule, which is what we are supposed to be arguing about now in this group. But it was late, badly formatted and, as we have heard, not easily usable by some colleagues.

What we are experiencing this afternoon is the frustration that we have all felt with that element of the process and with this Bill since its introduction. At the climax of the process, we find ourselves just as confused and concerned as at the outset. There has not been adequate time to examine the contents of the schedule. Noble Lords have had to use this Report debate to try to get answers from Ministers on some of the specifics. This is exactly what we thought would happen. It is why we supported the amendment from the noble and learned Lord, Lord Hope, on Monday, and why we will support his Amendment 76. We have debated it already. It will be voted on immediately after this group. We need the safeguards that these amendments provide. Given the way in which this Bill has been handled, the Government need these safeguards too.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

3rd reading
Monday 22nd May 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, I congratulate the noble Baroness, Lady Noakes, on persuading the Minister—though I am not sure how much persuasion was required—to incorporate the spirit of her amendment, and I congratulate the Minister on making it more elegant. The noble Baroness, Lady Noakes, has invited me to like it; I will do my best, but I do not think I will manage that.

The most interesting thing about the amendment, in my view, is not what happens to the list but what is on the list. The nature of the Bill has been turned on its head. At one point, being on the list was essential to try to avoid being revoked. Now, being on the list makes a law a target to be revoked. So we are in a world that has revolved 180 degrees; we have passed through the looking-glass.

I have two questions for the Minister, and I ask the noble Baroness, Lady Noakes, to excuse me but I suspect it is the Minister who can answer them. First, to pick up on the point made by the noble and learned Lord, Lord Hope, which I was also going to make, is it the Minister’s understanding that no post-devolution legislation will now get put on to the list? We do not have legislative consent from the devolved authorities. They are apparently the authorities that would put post-devolution legislation on the list—if they had access to the database, although there is some question over whether they do. Can we assume that there will be no post-devolution legislation on the list?

Secondly, when will the list be fixed for these purposes? Is work still under way in all the departments of government in order to add new things to the dashboard, or is that it?

[Baroness Chapman of Darlington (Lab)]

My Lords, the noble Baroness, Lady Noakes, commented that we were rather less than enthusiastic when we discussed this issue last week. I can see why we have got to the position where this amendment has been agreed between the noble Baroness and the Government, and I am very happy for her that she feels satisfied with the movement that the Government have made in getting here. I am afraid that the concerns we have had throughout this process are a long way from being satisfied by the amendment. We do not oppose it particularly, but we are not particularly in favour of it. It does not really do all that much to the substance of what we have been disagreeing about during the passage of the Bill. However, if it helps with some internal political management on the government Benches, that is something that the Minister is entitled to attempt to do.

[Lord Callanan (Con)]

Well, my Lords, if the Opposition are not enthusiastic about my noble friend’s amendment, I am.

Before I address the amendment, I shall deal with some of the points that Members have raised. First, on the point made by the noble and learned Lord, Lord Hope, the noble Lord, Lord Fox, and my noble friend Lady McIntosh about post-devolution rule, that is rule for the devolved Administrations. The reality is that they have not wanted to add anything to the dashboard, and of course we are in no position—and do not wish to force them—to do so. If they wish to add some of their rule to the dashboard then they can, but for now it is just rule made by Her Majesty’s Government. It of course contains UK government legislation that has been made post devolution—just not the rule made by the devolved Administrations.

To answer my noble friend Lady McIntosh’s point, the dashboard has no legal status as such; it is just a list of retained EU law.

Moving on to the main points about my noble friend Lady Noakes’s amendment, the Government have already reformed or revoked over 1,000 pieces of retained EU law, but that is not the limit of our ambition. Departments will continue to review the rule that is not already revoked, reformed or planned for revocation this year in order to identify further opportunities for reform, and we are committed to reducing the burdens on businesses and unlocking the economic growth that will flow from that. As a down payment on our commitment to deliver meaningful reform, the 10 May policy paper Smarter Regulation to Grow the Economy set out our intention to reform regulations and remove burdens on businesses.

We announced changes that will reduce disproportionate EU-derived reporting requirements and could save businesses around £1billion a year. This will just be the first in a series of announcements that the Government will be making in the coming months on reforming regulation in order to drive growth. In addition to the revocation schedule, the powers in the Bill will still enable us to revoke, replace or reform any outdated EU laws that remain on our statute book right through until 2026. This new approach will provide the space for longer-term and more ambitious reforms and the Government intend to do just that. It will also mean that fewer statutory instruments will be required to preserve EU laws that are deemed appropriate or necessary to maintain.

The Brexit Opportunities Unit, spearheaded by the Secretary of State for Business and Trade, has been pivotal in driving the development and delivery of the Retained EU Law (Revocation and Reform) Bill and the wider associated retained EU law reform programme. These efforts are being supported by specialist legal expertise from outside government. Parliament will be able to easily monitor government progress on REUL reform, as we update the dashboard every quarter. That answers the point made by the noble Lord, Lord Fox: we will continue to update the dashboard.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

My Lords, we have never argued with the Government’s right to want to find a way to assimilate fully some EU-derived pieces of legislation and to revoke or restate others. We have never had cause to fall out over the Government’s stated aims, but the Bill has been the definition of using a sledgehammer to crack a nut. I am quite sure that Ministers regret having attempted to undertake this task in this particular way. I am also very sure that the Minister is glad to see the back of the Bill, having sat through hour upon hour of deliberation in this place.

The Bill was designed to appeal to a group of people with a certain perspective, and as we have said repeatedly—I say it again—that is not the right way to initiate legislation; the Government have learned that lesson very publicly. It is slightly surprising to hear the Government say that they wish the opposition to the Bill had been more constructive, given that we were pleased to see the Government accept the substance, if not the letter, of our amendment on the sunset, which we tabled at the beginning of Committee. The Government moved substantially on that issue; we recognise and welcome that, and we give them credit for it.

We thank all noble lords who have contributed to our deliberations on the Bill. The noble Lords, Lord Hamilton and Lord Hodgson of Astley Abbotts, and, in particular, the noble and learned Lord, Lord Hope, deserve our thanks and recognition for the work they have done to improve parliamentary scrutiny and oversight. These amendments are vital to the Bill, and I hope the Government welcome them and will support them in the other place. I do not believe that anyone thinks the new amendments tabled today are adequate responses to the concerns we have raised, so we hope that our concerns are protected as the Bill proceeds.

Having said that, I very much thank the Minister for his constant patience, charm and warmth across the Dispatch Box—it is never in doubt—and I look forward to many such exchanges in the future. I also acknowledge the sterling work the noble Baroness, Lady Bloomfield, has done throughout the passage of the Bill. I echo what the Minister said about wishing her well in the coming months; I hope she has a wonderful summer. We value very much the work she has undertaken on the Bill. I also thank the noble Baroness, Lady Neville-Rolfe, the noble Lord, Lord Benyon, and the noble and learned Lord, Lord Bellamy, who were all corralled in as part of the support act on the Bill; they all did their best, did they not?

On these Benches, I especially thank my noble friend Lord Collins, who has been an absolute star; he has supported everything we have tried to do on these Benches throughout and has made some fantastic contributions. I also thank my noble friend Lady Hayman, who brought her experience and expertise on the environment to our deliberations; we have benefited hugely from her contributions.

I also thank the Opposition Bill team. Milton Brown, Tom Raines and Dan Stevens provided expert advice and have been extremely helpful in helping us prepare amendments. I thank both the Government Whips’ Office and my own Whips’ Office.

We are glad that the Bill leaves this place in slightly better shape than when it arrived. We hope the Government are able to receive in good grace the amendments we have made and will retain them, and that we do not need to consider the Bill further.

Bill passed and returned to the Commons with amendments.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

Through this debate, I have come genuinely to respect the consistency and thoroughness of the view of the noble Lord, Lord Hamilton. He has been absolutely right about where the power should be in this argument. He talked about endless ping-pong, and I respectfully suggest that we are not proposing that; we are proposing one more ping and one more pong, and that is what we are debating now. That is why I side very much with the argument of the noble Lords, Lord Lisvane, and Lord Cormack, and others, and that is why we on these Benches will be supporting the amendment.

[Baroness Chapman of Darlington (Lab)]

My Lords, I want to speak briefly to Motion E1 and to start by thanking the noble Lord, Lord Anderson, for his work on this amendment and throughout consideration of the Bill. Noble Lords will be aware that the amendment differs from the one we debated in Committee and on Report. They will also know that, since the Bill was first published, we have been concerned that it gives Ministers far too much power without reference to Parliament. Clause 15 was especially difficult for parliamentarians to accept, given the extraordinarily wide-ranging powers to rewrite regulations which, in effect, could have similar power to primary legislation. This point was made by the noble Lord, Lord Anderson, but it is worth repeating.

Motion E1 allows for a committee to consider regulations when they are rewritten by Ministers and, where necessary, to refer them to the House for consideration. This is a more modest suggestion than that proposed and agreed by this House at Report. As we have heard, a not dissimilar process was used for the Civil Contingencies Act 2004 and, as the noble Lord, Lord Lisvane, informed us, the Census Act.

Our view is that this approach is proportionate, not obstructive of the Government’s intentions and should be acceptable to them. We are concerned that the Commons has so far continued to push back on parliamentary scrutiny and views the procedure proposed by this House as inappropriate, but we hope that the newly constructed amendment proposed by the noble Lord, Lord Anderson, will be welcomed by the Government and the other place.

The Commons has expressed a view, but we are returning to it a compromise. We on these Benches consider it to be the appropriate, reasonable and responsible thing to do. Following the question of the noble Lord, Lord Jackson, about whether we are imposing ourselves on the other place, I note that it adjourned a couple of hours ago and seems to have adequate time in its schedule to consider a rather modest suggestion from this House.

[Lord Callanan (Con)]

My Lords, once again, we have had a full, worthy debate on the Bill. I will keep my response brief, as many of these points are well worn and we have largely covered them in opening the debate.

I say to the House that this is not just an ordinary legislative amendment; it is about the procedures of Parliament. It is not even about the procedures of this House; it is about the procedures of the other place. The amendment seeks for this House to say to the House of Commons, “We think that you should set up by legislation an entirely untested and novel way of conducting your scrutiny of secondary legislation”, when the House of Commons has already said it does not wish to do that and does not think it appropriate. It is entirely inappropriate for us to do that when we have already heard the answer once.

The Bill is vital, and now that we have taken back control of our statute book, it is essential to update and modernise by amending, repealing or replacing those rules and regulations that are no longer fit or were never fit for the UK. This will allow us to create a new pro-growth, high-standards regulatory framework to give businesses the confidence to innovate, invest and create jobs. It will provide legal certainty and clarity across the statute book, ensuring we have consistent rules of interpretation across the UK body of law.

Let me mention briefly some of the points raised in the debate. On Motions B and B1, I thank the noble Lord, Lord Anderson, for his speech. I hope that the House will move forward with Motion B.

Let me reply briefly to the question from the noble Baroness, Lady Ludford, on the timescale for this work. We will add Section 4 rights to the dashboard as identified at least as frequently as every six months, as per the reporting requirement clause that is already in the Bill.

With regards to Motion E1, as I have already said, the Government listened to the views of this House on a number of issues in the Bill. We have already modified the schedule massively to take account of the many concerns that were addressed. I have to say, I consider it an unfair characterisation that the Government have ignored this House—far from it. It is much to the contrary.

On the Motion itself, I can only stress to the House that we believe this proposed novel scrutiny procedure to be unnecessary. The House of Commons has said that it also believes it to be unnecessary. With the reporting requirements already in the Bill and the proven sifting committee procedure that we have already agreed, Parliament will have strong provisions to scrutinise any legislation that is brought forward under this Bill. In the Government’s view, the appropriate balance between the need for scrutiny and the need for reform has been struck. I therefore hope that noble Lords will not push forward this amendment.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Consideration of Commons amendments
Tuesday 20th June 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I will speak briefly because I agree with everything that the noble Lord, Lord Fox, just said. We are grateful to the Minister for what he said in his introduction to this debate and to all noble Lords who have contributed and engaged with this Bill since the beginning. However, we on these Benches think that the Government should join us in insisting on Lords Amendments 15B and 42D, as they now are. We agree with noble Lords that their amendments in lieu are sensible compromises and remain deeply concerned by the potential for the protection of our environment, in particular, to be watered down without such protection on the face of the Bill. It seems slightly odd that the Government have compromised on the fundamental purpose and shape of this Bill in removing the sunset, which was a huge thing for them to do. It is strange that they are now determined to hold out on these two relatively minor outstanding issues, which are about improved scrutiny and environmental protection.

The proposal from the noble and learned Lord, Lord Hope, is a proportionate and necessary compromise. The noble Lord, Lord Krebs, is correct to highlight the inadequacy of the verbal commitment offered by the Minister, which obviously may not stand the test of time. These are important principles. Should the noble and learned Lord and the noble Lord wish to test the opinion of the House, we on these Benches will support them.

[Lord Callanan (Con)]

My Lords, we have had this debate numerous times now, so the House will be delighted to know that I can keep my response fairly brief. I have responded to all the points made previously because noble Lords have repeated many of the points that they made in earlier debates.

Interestingly, the one person who did not repeat the points that he made in earlier debates was the noble Lord, Lord Fox; I was surprised to hear him say that he will support the Anderson/Hope amendment because, in the previous round, in response to a similar point about endless ping-pong made by my noble friend Lord Hamilton, the noble Lord, Lord Fox, said:

“I respectfully suggest that we are not proposing”


endless ping-pong but that

“we are proposing one more ping and one more pong”.—[Official Report, 6/6/23; col. 1262.]

Unlike some of the sceptics behind me, I have faith in what the Liberal Democrats say. I am absolutely certain that, because that is what the noble Lord, Lord Fox, said last time, he will join us in the Lobby this evening. We have hope yet; I am sure that the Liberal Democrats would not want to go back on their word.

Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, for the record, my advice was to not apply the Parliament Acts.

The substantive point of this debate is to look at the two amendments and, in particular, to listen and understand what the Minister has said in response to those amendments. I am grateful for the interpretations of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Krebs.

I turn first to the amendment in the name of the noble Lord, Lord Krebs. It is clear that your Lordships have repeatedly expressed their concern about potential regression, especially around environmental rules. We have heard fulsome and completely true undertakings from the noble Lords, Lord Callanan and Lord Benyon, and others from the Dispatch Box in seeking to allay your Lordships’ fears. However, not every ministry and every Secretary of State has been represented. We only have to look at what happened over the weekend, when a Government Minister from the Department for Levelling Up took aim at pollution rules with a view to development issues, to know that there are potential problems around this. My noble friend Lady Parminter talked about canaries in coalmines; that was a canary. We have to hope and trust that the undertakings made by the noble Lords, Lord Callanan and Lord Benyon, are applied right across His Majesty’s Government. It is clear that, after repeated discussions, we will not be voting on this today.

I turn to the amendment in the name of the noble and learned Lord, Lord Hope. Your Lordships should thank not just the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, but the noble Lords, Lord Hamilton and Lord Hodgson, who have identified the issue of parliamentary sovereignty and worked hard to try to resolve it. The Minister himself spoke about the number of times this has come back. If it had not come back this time, the Minister would not have given the undertaking he just gave from the Dispatch Box which satisfied the noble and learned Lord, Lord Hope. The fact that it satisfied the noble and learned Lord means that it satisfies me.

We have been through a long journey but I do not think this journey has been in any way frivolous. It has been worthwhile, and it has exacted, as the Minister set out, many changes to the Bill. Your Lordships need to be proud of the work they have done on this Bill.

[Baroness Chapman of Darlington (Lab)]

My Lords, we agree with Amendments 15F and 42F from the noble Lord, Lord Krebs, and the noble and learned Lord, Lord Hope. We are sorry that the Government take the attitude they do to the involvement of Parliament in the scrutiny of retained law, especially as this House has been proved right on these issues. This House has given the Government good advice that they have largely ended up taking.

The amendment in lieu in the name of the noble and learned Lord, Lord Hope, simply asks that the Minister considers how regulations might best be dealt with. We note the assurances from the Minister; they have been, as the noble Lord, Lord Fox, rightly pointed out, hard-won. We thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, in particular for the sterling work they have done over many months to get as far as we have.

The amendment in the name of the noble Lord, Lord Krebs, would protect law on environmental standards. We think there are clear and obvious reasons to want to do this, not least because we want to see the environment protected. It is worth adding that the Government’s failure to support this point as fully as they could have done still leaves further uncertainty for business and potential investors about the exact nature of the framework that they would have to comply with. We are sorry about the approach the Government have taken.

We are very grateful to our Cross-Bench colleagues in particular for the work that they have put in. The Bill is in a much better place now than it was when we first encountered it—noble Lords will remember the sunset clause and the lengthy arguments we had over that. The Government did listen in the end, though initially with some reluctance. I hope that in time Ministers will see that that was the right decision. We have got to a better place this afternoon.

[Lord Callanan (Con)]

My Lords, I thank everyone who contributed to today’s debate. I will respond to some of the points that have been made. First, we take Dispatch Box commitments extremely seriously. I reiterate that this Government will not row back on our world-leading environmental protections, as I mentioned in my opening remarks.

To respond directly to the point made by the noble Lords, Lord Krebs and Lord Fox, and the noble Baroness, Lady Bennett, on this issue of non-regression, the fundamental problem is that nobody know what non-regression actually means. We all think we do, but putting it in primary legislation invites every change to environmental regulations to be challenged, as they inevitably would be, in the courts. The courts would then be asked to take a view on whether a particular change was regression or not. In effect, we would be transferring the legislative process from Parliament to the courts, on every individual regulation. Although we are content to say that we will not row back on environmental protections, that is the reason we are unwilling to see such a phrase placed in primary legislation. I am sure some of the environmental lobbyists and their lawyers would be very happy about all the work it would generate for them if we were to do so, but this is not the way to make legislation. We have to be clear about what we mean in Parliament. As I have said before, any regulation would have to be approved by this House and the other place, which is the appropriate place for these things to be decided. Great though the courts in this country are, it is not their job to legislate.

On the question raised by the noble and learned Lord, Lord Hope, paragraph (6)(12) of Schedule 5 to the Bill clarifies that the provisions of paragraph (6), which sets out processes relating to an instrument proposed as a negative instrument and subject to sifting, would not prevent a Minister deciding that another scrutiny procedure should apply to a particular instrument any time before that instrument is made. In deciding which other procedure should apply, the provisions of the Bill give a Minister a choice between the negative and the draft affirmative procedure, and in practice would give a Minister the ability to upgrade the scrutiny procedure from the negative to the draft affirmative procedure. The sifting committees already have the ability to recommend that regulations which the Government are proposing to make via the negative procedure are of such importance in their content that they should be upgraded to the affirmative procedure, which would then allow them to be debated as normal in both Houses. As I have set out today, and I am happy to repeat it again, on each and every occasion to date we have followed the sifting committee’s recommendations, and we will continue to do so if utilising the powers under this Bill.

We have debated these matters long and hard on many different occasions, as the noble Baroness, Lady Chapman, acknowledged. We have listened to the House; we have amended the Bill quite considerably in response to some of the concerns raised by noble Lords. This House has done its job in scrutinising the Bill. This House has asked the House of Commons to think again on a number of different occasions. It has thought again and it has responded. It is now time to let this Bill pass to Royal Assent.