Retained EU Law (Revocation and Reform) Bill

Baroness Fox of Buckley Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have a lot of sympathy with the furious frustration expressed today at being asked to grant an Executive a licence to legislate on thousands of legal instruments, all without accountability to Parliament or the public. I empathise because that anger at a democratic deficit was exactly what prompted me to vote to leave the EU. These very EU retained laws started life as secondary legislation impositions on the UK Parliament: they were directions from and obligations to the EU Executive. They were products of a supranational institution whose very design is to ring-fence swathes of lawmaking from national electorates and to delegate sovereign powers to unaccountable European Commissioners, the European bank, et cetera.

Do not get me wrong: there are problems with this Bill. The Government may have missed an opportunity to use the retained law issue as a spur for democratic renewal. They could have launched nationwide town-hall meetings and debates to guide decisions on what laws to keep or delete. But, to note, whatever the anti-democratic dangers of this skeleton Bill, there is a popular mandate behind the Bill’s intent: to fulfil a promise of taking back control of our legal system by abolishing EU supremacy. We do indeed need to give domestic courts more discretion to depart from retained EU case law—they can take it into account but should not be required to follow it. Also, the real constitutional outrage before us is not the Bill so much as the fact that some domestic primary legislation remains subordinate to EU law. I am not sure that complaints that the sunset clause means changes are rushed will cut it with the public. For many millions who voted to leave in the largest democratic vote in UK history, the impression is of sloth, prevarication and obstruction. They deserve a sense of urgency to finish what voters started in 2016.

Many of the core objections we have heard today seem to be driven by a failure of imagination. Many noble Lords have cited professional bodies, NGOs, employers organisations, trade union leaders and lawyers—all who appear unable to imagine social and economic progress happening without retained EU laws. Nowhere is this more gallingly illustrated than in accusations that the Bill will create a bonfire of workers’ rights. Surely this legalistic presumption is insulting to decades of self-organisation by working-class people who fought tooth and nail to win those gains. Maybe tell the RMT rank and file members—many of whom I campaigned alongside for Brexit—that their rights are safer in EU retained law than on their picket lines. Do I trust the Tory Government with workers’ rights? Of course not. But I do not trust EU law either. The first time I heard of the model strike-breaking legislation in the form of minimum service requirements was when it was being eulogised in the European Parliament. And, yes, I will be opposing it when it comes to this House.

The TUC briefing warns that this Bill jeopardises the agency workers directive, but we might note that this very directive is a device used to avoid paying agency staff at the same rate as employed staff. It has been used by the ECJ to break collective bargaining agreements via the 2007 rulings in the Viking Line and Laval cases. Other briefings warn us this Bill will drive a wrecking ball through women’s employment rights and equality legislation. Actually, a far greater threat to equality law in 2023 is not this Bill but the Scottish Government’s Gender Recognition Act. How disappointing that all those condemning this so-called dodgy legislation today have not been clamouring to oppose this material assault on women’s sex-based rights that threatens the UK-wide Equality Act.

The 4,000 retained EU laws were put on the UK statute books without Members of this unelected House crying democracy. Earlier, we were assured that it was all okay because, as one noble Lord explained, there were special behind-closed-door committees that scrutinised them. There was no mind that, no matter how many British voters might object to any one of those laws, there was nothing—zilch—they could do. The lack of outrage at that democratic deficit—

[Baroness Bloomfield of Hinton Waldrist (Con)]

The noble Baroness has exceeded her time limit. Perhaps she could bring her comments to an end.

[Baroness Fox of Buckley (Non-Afl)]

Well, noble Lords get the gist.

Retained EU Law (Revocation and Reform) Bill

Baroness Fox of Buckley Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Brinton (LD)]

It is fairly straightforward. Those of us with extreme concerns about the Bill do not want a Bill passed where time after time people, especially the wider public, realise that regulations have been sunsetted without their understanding of the consequences—and without our own Parliament’s understanding of the consequences. Frankly, that is the one delay that really should be put in place, because we do not know what is going to happen.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have tried to follow and to listen to as much of the discussions on the Bill as possible, and I confess that some of the legal arguments happening earlier were beyond me. I will raise a couple of points, the first of which is in relation to the delay. I said at Second Reading, and I maintain the point now, that the Bill has been a long time coming. The public perceive the debate about how we deal with taking control of our own laws, as the UK having left the EU, not in the sense that it has been rushed through, but rather that it has been sluggish and blocked, and that any attempts to try to force through that break from the European Union have been obstructed by people who did not approve of the decision taken in 2016.

I am very sensitive to the perfectly reasonable criticisms made throughout the arguments I have heard. The Minister must give some reassurance that there are no unintended consequences of the Bill and that important laws are not lost that the Government do not intend to lose—those they will lose by accident, as it has been described. That is of some concern. Reassurances that they are in control are not that reassuring when we look at the parlous state of the way everything else is falling apart at the moment. So I have reservations myself; I wanted to clarify that. But saying that we should delay things until 2028 will be seen, understandably, as quite simply putting off the task, and that does not work at all.

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[Baroness Ludford (LD)]

I just wanted to say to the noble Baroness—and I probably will not go into lawmaking in the EU, as the noble Baroness was an MEP herself—that to say that lawmaking in Brussels is not democratic is, to my mind, ridiculous.

I particularly want to address her assertion that objections to this Bill are mired in politics. Had she been here, as I have, through the entire four days—now nearly four and a half—on this Bill, she would know that across the House the objections have been because it is an Executive power grab. Almost no reference has been made to the Brexit referendum or the policy of Brexit. It is about the way that the Bill is constructed and the power that the Government are concentrating in themselves. It is a question of the rights of Parliament and the type of governance we are objecting to. It is not political in that sense. The objections to this Bill are constitutional.

[Baroness Fox of Buckley (Non-Afl)]

I appreciate that I have not been in the Chamber for all of that time, although I have been here a fair few hours, one way and another, and I have read everything that was said in previous discussions. I do not feel as though I am just wandering in to make this point.

I have also talked to people outside this House about their understanding of this discussion and I am trying to draw attention to that—

[Baroness Meacher (CB)]

My Lords—

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[Baroness Brinton (LD)]

My Lords—

[Baroness Fox of Buckley (Non-Afl)]

I have got more questions flying at me today.

[Baroness Brinton (LD)]

I am very grateful to the noble Baroness, Lady Meacher, for giving way for my question to the noble Baroness, Lady Fox. If the noble Baroness, Lady Fox, is not concerned about Clause 10, does that mean that she disagrees with the very clear comments from the Delegated Powers Committee? It sees it as a power grab and thinks it is a completely inappropriate use of secondary legislation.

[Baroness Fox of Buckley (Non-Afl)]

I am concerned about aspects of this Bill from a delegated powers point of view, as I have been on a range of Bills that we have had in this House. Maybe it is because, as in the previous intervention, it was made clear to me that there is a disagreement about what democracy is. I do not think that while we were in the European Union that was a democratic, accountable form of lawmaking. I did not make that point. That point has just been made back to me. I am saying that although I understand that the arguments put forward say that they are not replaying a lot of discussions from the past, I think that argument has been implicit in a lot of the discussions. That was certainly what I heard at Second Reading and I have picked it up.

I am also making the point that if there was a genuine enthusiasm from this House about how we can take the opportunity of having left the European Union to now study and look at all of those laws, there might be less cynicism outside this House. That was my point.

I also was making a different point about timing. I have not heard from this House, either while I have been in it or before I got in it and was watching it from the outside, an enthusiasm to rush things through, as soon as we voted in 2016, to say, “Let’s take all the laws. Let’s look at the EU retained laws. Let’s now make a decision about what we do with these laws.” People did not want to do that because they did not accept the decision. Now, people are saying that it is too rushed and that there is a danger that this will come over—as it is doing—as an attempt at blocking taking back control.

As to the delegated powers and the power grab, I am afraid that that is something I have broadly been worried about from this Government, not just with this Bill. I have spoken on it many a time.

[Lord Krebs (CB)]

My Lords, I will speak to Amendments 129 and 131 in this group in my name and those of the noble Lord, Lord Rooker, and my noble friend Lady Boycott, who, I am sorry to say, are not in their places. These two amendments are about transparency, accountability, and scrutiny, so, in a way, they follow neatly from some of the points the noble Baroness, Lady Fox, was making a few moments ago.

Transparency, accountability and scrutiny are surely not contentious concepts so I hope that the Government would agree and therefore sign up to these amendments. Amendment 129, very simply, would require the Government to seek advice from the Food Standards Agency and Food Standards Scotland as to whether any proposed changes to the regulations will reduce food safety or other consumer protections in relation to food.

Noble Lords will recall that the Food Standards Agency is the non-ministerial department in England, Wales and Northern Ireland with responsibility for food safety and consumer protection in relation to food. It would surely be bizarre beyond belief not to consult the relevant department and its Scottish counterpart before making any changes to retained EU law. The importance of this underlined by referring back to a previous debate in Committee. I quote from Hansard. I said on 23 February that

“I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:

‘In the FSA, we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health’.”


I then said:

“According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.”—[Official Report, 23/2/23; col. 1832.]


I will now quote the Minister’s reply because she did indeed deny it by saying:

“Let me assure noble Lords that any decision on REUL reform will not come at the expense of our high standards.”


She added that

“our commitment to not reducing consumer protection remains in place.”—[Official Report, 23/2/23; cols. 1856-57.]

Here you have it in black and white. The head of the relevant government department, Professor Susan Jebb, says that we cannot sunset EU-derived laws without sacrificing consumer safety and other protections. The Minister told this House on 23 February that, in effect, that is a load of rubbish. Who would you believe? I know where my trust lies. It is with the department that has the responsibility and accountability for and expertise in protecting consumers’ interests in relation to food. There could not be a clearer demonstration of why Amendment 129 is essential

Lest this be thought to be some sort of political point, I want to say that when I was chairman of the Food Standards Agency, with a Government of a different political complexion, Ministers were keen to rush to reassure the public on issues to do with food safety, whether it was BSE or foot and mouth disease, and I really had to stand up against pressure from Ministers and say, “No, we can’t provide reassurance on safety”. If this amendment is accepted, it will ensure that the proper expertise, lines of accountability and scrutiny are in place to review any proposed changes in food law.

I turn now to Amendment 131, which is about transparency. As the noble Lord, Lord Rooker, reminded noble Lords earlier in Committee, the Food Standards Agency and Food Standards Scotland published their first annual report on food safety and standards across the UK, entitled Our Food 2021, in June. Here is a quotation from the introduction:

“At a time when the UK is taking on new responsibilities for food following our departure from the European Union … consumers need strong watchdogs looking out for whether standards are being protected. This report—the first in a series to be published annually—will help us do so by providing an objective, data-driven assessment of the safety and standards of food over time.


Why us? Because the Food Standards Agency … and Food Standards Scotland … are together responsible for food standards across the whole of the UK—this is an important, long-term collaboration between our two organisations that should provide greater transparency and accountability for food quality across the four nations. This, in turn, will help us work with food businesses, local authorities and other partners to address any emerging threats or vulnerabilities.”


Amendment 131 simply seeks to put this annual report, or a slightly modified version of it, on a statutory basis. It will tell the public, businesses, the Government and others whether, as result of changes to our laws, food standards and safety are being compromised. How on earth could one object to this transparency?

As the noble Lord, Lord Rooker, reminded us the other day in Committee, transparency is one of the keys to trust. It has taken years of work by the Food Standards Agency to rebuild public trust in the UK food system after the disasters of the 1990s, including BSE and salmonella in eggs. Indeed, that is why all parties supported the creation of the Food Standards Agency, so it could be a department that puts consumers’ interests first and rebuilds trust in our food system. Why would the Government wish to squander those gains now? I therefore look forward to the Minister warmly welcoming both my amendments, and to assuring us that the FSA and FSS will have the necessary resources to fulfil the duties that are implied by them. These are very modest changes to the Bill, aimed at improving it, and I hope that, if the Minister does not welcome them, he will at least agree to meet me and others to discuss the implications of not accepting them.

Retained EU Law (Revocation and Reform) Bill

Baroness Fox of Buckley Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have one clarification for the noble Baroness. The point was made that this is not a Second Reading, but it has also been recognised that the amendments to the original Bill are substantial. The difficulty I have is how we hold this Bill to account when it is different from the Bill that we were holding to account. In many ways, it has been gutted, and we have had four days to assess it. I am not suggesting lots of Second Reading speeches; I simply wanted to reflect, as the noble Baroness already has, that this is a big change to the Bill. How do we deal with that in this discussion?

[The Earl of Courtown (Con)]

I apologise for interrupting the noble Baroness, but I remind the whole House that, as we are on Report, there cannot be any interruptions apart from material descriptions of various features.

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[Lord McLoughlin (Con)]

My Lords, I very much welcome the changes that the Government have brought forward, but I also think that the amendment moved by the noble and learned Lord, Lord Hope, is one that the Government should very seriously consider, and I shall support it later on this evening—and I shall support it for a simple reason. The question as to whether or not we leave the European Union has been settled. I was on a different side to my noble friend Lord Hamilton—I believed that we should remain in—but I accept that that debate has gone and that I lost it. We now have to move on, and we must find a way in which to give the House of Commons and the House of Lords a say over the legislation that is going to replace it.

The sad story of this Bill so far is that we were told that there were 3,000 pieces of legislation, then it was 4,000 pieces—and we now have 900 pieces that can be got rid of very quickly. One thing that is changing dramatically is how a lot of detailed changes have to be made at pace, and it is not always going to be the case that there will be time for primary legislation going through both Houses of Parliament. That is why we need to adapt ourselves to a very different mode of doing regulations. Some of the regulations are technical and the House will not necessarily want to take a particular view but, when they are of a more practical nature, I think that there should be a Joint Committee of both Houses that says to the Government: “Hold on, let’s discuss this”. That is what happened when we had the initial withdrawal Bill and, in a way, the proposals that have been put forward today are mirror images of those particular ways forward.

The changes that the Minister has brought forward, which are very welcome, came very late in the day, and nobody really knew what was happening until late last week—and we are debating them here this afternoon. So I very much hope that the amendment proposed by the noble and learned Lord, Lord Hope, will give the Government time to reflect and see that they have nothing to fear from a Joint Committee of both Houses looking at these matters. After all, if the Government have a majority, it will probably have one on that committee as well—and that is a sensible way forward, giving that parliamentary accountability that we all wish to see.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I would like to focus my probing on Amendment 1—

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[Noble Lords]

Front Bench!

[Baroness Fox of Buckley (Non-Afl)]

I think that I have been encouraged to go ahead. Is that appropriate?

[Noble Lords]

No!

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[Lord Kerr of Kinlochard (CB)]

It is a pleasure to follow the noble Lord, Lord McLoughlin. His historical point is completely correct: the period of maximum EU legislation was during the delivery of the single market programme, which was based on the Cockfield White Paper and the agreement between Prime Minister Thatcher and President Delors. That legislation came through mainly in the early 1990s, and some of it is in the schedule—it has probably been overtaken by something else. It is simply not true that it was all imposed on us.

I support Amendment 76, which is essential. I can explain my reasoning by reminding the House of what Clause 16 says. It is a bit presidential; one might almost say “dictatorial”. Clause 16(2) says:

“A relevant national authority may by regulations 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”.


In the phrase “considers to be appropriate”, “appropriate” is a very presidential word rather than a parliamentary word. Okay, there is still the saving caveat that it has

“to achieve the same or similar objectives”,

but here comes Clause 16(3), which uses almost exactly the same wording:

“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.


Here there is no saving caveat about achieving the same or similar objectives, so under Clause 16 the Executive may, by regulations, do whatever they well choose. That seems to me to make it absolutely essential to have the parliamentary scrutiny for Clauses 13, 14 and 16 that would be delivered by the amendment in the name of the noble and learned Lord, Lord Hope.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the noble Lord, Lord McLoughlin, is certainly correct that no legislation was forced on the UK by the EU. Indeed, many Ministers from all parties were happy to take advantage of laws made in Brussels, which they sometimes even suggested, by coming back to the UK and reading out the legal text from the EU Commission—and then, if there was any objection, they blamed the EU. But what was removed from that equation was the scrutiny and accountability of the electorate. They were the people who were told that they could not change the law; it was ring-fenced away from them. That is what voters rejected in 2016.

I will be clear on what this Bill is all about by quoting the European Commission, because I know that so many noble Lords trust it and not me. In October 2021 the EU Commission stated, in relation to a dispute with Poland:

“EU law has primacy over national law, including constitutional provisions … All rulings by the European Court of Justice are binding on all Member States’ authorities, including national courts”.


That is no longer the case for the UK, and we are now trying to untangle how we deal with that.

In relation to the Bill, it is, in my opinion, not the case that Brexit was an act of reclaiming sovereignty, a blueprint for saying exactly what laws we would keep or retain, or a means of just getting rid of EU law as an end in itself, as it were. Rather, it was about putting the responsibility for choosing which laws to prioritise, reform or even improve in the hands of the Government and Parliament, who are answerable to the British people—the electorate. I have listened carefully to a lot of the very thoughtful amendments put forward to try to ensure that too much power is not put in the hands of the Executive or Whitehall, as opposed to an accountable Parliament, but I get anxious about how the arguments are posed sometimes, so I will query some of the amendments in this group.

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[Lord Foulkes of Cumnock (Lab Co-op)]

That is true—absolutely, not at all.

[Baroness Fox of Buckley (Non-Afl)]

Indeed, so that is true. For once noble Lords are agreeing with me: this House is not representative of the feelings of the British public. Therefore, the Joint Committees of Parliament, which include many from this House, who are hostile to what the British public voted to do in the past—

[Noble Lords]

Oh!

[Baroness Fox of Buckley (Non-Afl)]

I am simply asking whether that is the solution to resolving the problems that we face in terms of our disentanglement from the European Union’s lawmaking.

[Lord Hamilton of Epsom (Con)]

Before the noble Baroness sits down, could she tell us, then, what Bill is the ideal Bill to bring an end to the constant use of statutory instruments?

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I—

[Baroness Williams of Trafford (Con)]

My Lords, I apologise for intervening again, but the rules found in the Companion are very clear about speaking once on Report.

Retained EU Law (Revocation and Reform) Bill

Baroness Fox of Buckley Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Lord Frost (Con)]

My Lords, I support Amendment 51A, to which I have added my name. There is perhaps little to add to what has been said in support of the amendment, other than to recall that the corpus of retained EU law that will be covered by it remains a corpus of law—however normalised, we must hope, by the Bill—that was brought on to the UK statute book in a distinct and different way that did not always enjoy full discussion in this Parliament, as we have said many times. It is logical and reasonable to keep that corpus of law under particular review under this distinct process, so that it can be kept in view of this House and of Parliament. The original purpose of the Bill as introduced by the Government—to review, reform, perhaps revoke and perhaps continue with the legislation—can be kept fully in mind and implemented. To me, that is the logic behind the amendment, and I hope the Government will be able to take that on board.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I support this amendment, whose intention is well thought through, whatever the lawyers say. I shall say why.

When consideration was being given to what had driven the changes that the Government themselves brought in with the removal of the sunset provision in Clause 1, some credence was given to the words of Jacob Rees-Mogg, who had originally introduced the Bill, and who stated that this was an admission of administrative failure and the inability of Whitehall to do the necessary work. I am no fan of blaming “the blob” for everything. The reason why I support this amendment is that it allows the general public, let alone Parliament, to see what work is being done when and where. That is why transparency matters: so that you cannot just blame things going on behind the scenes.

The Secretary of State for Business, Kemi Badenoch, suggested that the previous demands on the Bill, with its cliff-edge, had caused so much concern that civil servants were choosing to reduce legal risk by preserving EU laws, rather than prioritising meaningful reform. Now that the Government have changed this, we need to be aware that we are having meaningful reform and, again, to see it. Otherwise, I worry that we will have simply put off making decisions about how to deal with this situation.

My final reason is that in this House on many occasions noble Lords have, in good faith, worried that the whole removal of retained EU law was a plot to undermine workers’ rights, women’s rights and everyone’s rights. I have never been as cynical about it as that and have always believed that those rights were fought for domestically and we do not need to be concerned. But I hope that everybody in the House might support this amendment because it should reassure. It gives us now the opportunity to say what is retained, what is removed and what is reformed—rather than, as it were, gossiping behind the scenes with almost a conspiratorial atmosphere of what is really going on—and that we simply are enacting now what was voted for in 2016 and everyone can see what is happening. Reporting it in full will be very helpful.

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[Lord Reid of Cardowan (Lab)]

I commend to those on the other side who share the view of the noble Lord, Lord Hamilton, an article this morning by the Conservative Peer, the noble Lord, Lord Finkelstein. It is in the Times and it is worth reading. It is about the tendency to set impossible demands and then to blame the failure to achieve them on the blob. It is the finest article I have read on this tendency and, in terms of education, I think it would be well worth some people on the other side reading their noble colleague’s comments.

All I can say, and I held office in nine departments of state, is that there were occasions when I would have liked to ask civil servants to give me a plan to double expenditure on the Armed Forces, to build 500,000 houses, to make everyone happy. Noble Lords will not be surprised to know that I did not ask them so to do, not because I thought they were a blob and would resist it but because I knew it was an impossible demand I was placing on them. In all nine departments, when I made some challenging demands, the civil servants responded—but I would not ask them to do something that was impossible, or to take a course of action for which the work had not been done in advance, or where I disregarded the consequentials, the downstream incidentals, that I had not thought about. The Government did all three of those things with Brexit, and they are now paying the price.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the other day when we were debating the Bill, a number of people stood up, largely on this side of the House, and said that it was inappropriate to make Second Reading speeches or grand speeches about politics and that this was not about Brexit. I tried to say that maybe the Bill was a new Bill and we should be able to regardless, and I was told off for that.

What we have just seen demonstrates to me why we have a difficulty, both in this House and in the country, when it comes to what people feel about the Bill that we are discussing and the general political situation that we are in. It is true that I do not blame the blob. However, I blame many of the people in the House of Lords, among others, who tried to say that when the decision was made in 2016, regardless of what you thought of it, the British public had got it wrong. They slowed down the process and did everything to obstruct what needed to be done to extricate the United Kingdom’s law, which it had been decided to take back control of, from the European Union.

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[Lord Hacking (Lab)]

Shut up.

[Baroness Fox of Buckley (Non-Afl)]

“Shut up”?—well done. I am just saying: let us get on with the Bill seriously rather than keeping on blaming each other. That was my point in the first place. Drop the smug tone.

[Baroness Bloomfield of Hinton Waldrist (Con)]

Perhaps I can remind the House that we have been incredibly patient but noble Lords should stick to debating the amendments rather than general points. Perhaps we can get on and make some progress.