European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

On the amendments in the name of the noble Viscount, Lord Hailsham, who opened the debate, the concept of a sunset clause is interesting. I listened carefully to what he said, and the orders in relation to which he mentions a sunset clause are only those that have been brought in to address what the Minister deems are deficiencies, which should be a limited area. I am interested to hear the Minister’s response on this, because that could be a sensible approach to ensure accuracy, and that it is not just on a ministerial whim. I am concerned about the ministerial discretion in this area. I hope the Minister will take on board the comments made by the noble Viscount, Lord Hailsham, in this regard.

[Baroness Goldie]

My Lords, this is a wide-ranging group of amendments. I will begin with my noble friend Lord Hailsham’s Amendments 109, 134 and 188 on the effect of regulations made under the main powers of the Bill. My noble friend was commendably brief and very clear—very blunt—about what he seeks. My difficulty is that these amendments would end up running counter to the fundamental aims of the Bill. We have heard from my noble friend himself that these amendments are intended to cause any regulations made under Clauses 7, 8 and 9 to lapse two years after exit day. Quite simply, this would prescribe a rigid legislative timeframe for the Government to replace them and would risk unnecessary disruption. If we could not find an alternative vehicle to write these regulations into law by the two-year deadline, it would create holes in the statute book. However, it is surely illogical to force the Government to make these regulations again in an identical form when they have already legitimately made them once.

The powers themselves, quite rightly, already have their own sunsets: for Clauses 7 and 8 it is two years after exit day, and for Clause 9 it is exit day itself. That is a sensible way in which the Executive have constrained these delegated powers to avoid their being available in perpetuity. But surely the regulations made under these powers should not necessarily be so transient. They will, of course, be doing vital work to ensure that we have a fully functioning statute book for when we leave the EU. We do not want our functioning statute book, or bits of it, to lapse after two years. I sympathise with the intention behind the amendments, but it is too rigid a fetter on the Government and Parliament’s ability to manage legislative priorities and workload between now and 2021, and it certainly would exacerbate the very uncertainty that the Bill is seeking to reduce.

Amendments 111, 137 and 192, all tabled by the noble Baroness, Lady Hamwee, deal with stakeholder consultation. It is my pleasure to tell the Committee that departments are very keen to engage with stakeholders on current matters and progress of the negotiations, and will continue to do so where this is possible and does not negatively impact the negotiations in any way.

[Baroness Young of Old Scone]

I am not sure that the evidence stacks up on that. I have been seeking clarification from Defra for over a year now on just a simple list of the issues that might be subject to statutory instrument, and I have been unable to get that from the department. Perhaps the Minister might like to prod departments to reflect the terms she just stated.

[Baroness Hamwee]

My Lords, I too asked for a list of necessary statutory instruments from the Home Office, and the Parliamentary Answer was that the work had not been done to calculate the number.

[Baroness Goldie]

I say to the noble Baroness, Lady Young of Old Scone, that it is a pleasure to be asked to do the prodding rather than be the recipient of the prodding, which has certainly been my sensory experience standing at this Dispatch Box. I understand her concerns and will certainly relay them to my noble friend Lord Gardiner.

Similarly, I will refer the point raised by the noble Baroness, Lady Hamwee, to my noble friend Lady Williams. I understand the concerns; there must be a degree of frustration. It may of course simply underpin the enormity of the challenge confronting departments, in that at this stage it is extremely difficult to try to map exactly what lies ahead. Some of it might be predictable but some of it is unknown and will depend on the negotiations. However, I undertake to do what I can to seek some assistance.

The requirement in the amendment of the noble Baroness, Lady Hamwee, for relevant stakeholders to be consulted on all the provisions contained within all statutory instruments made under Clauses 7, 8 and 9 goes, I believe, beyond what is reasonable in this instance and belies the nature of those instruments. I appreciate the concerns that we have heard throughout this debate about the potential breadth of the power—something that clearly concerns my noble friend Lord Hailsham—but I hope that the Committee will accept at the least that a great many instruments will be technical and minor, and will merely ensure flexibility, swiftness in dealing with identified defects and, of course, continuity of our legal framework.

A specific legal requirement to consult could also impact on our negotiations with the EU. It could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues. Compulsory consultations would also impact on the tight timeline for Parliament to scrutinise instruments. The consultation process requires resources and time from government and stakeholders, and we want to focus the energies of those inside and outside government on the most important measures rather than have them occluded by the sheer volume of consultations on what might, at the end of the day, be very minor technical matters. That is the challenge that could arise under these amendments. I hope that the noble Baroness understands why the Government cannot accept her amendment, and I urge her not to press it.

[Baroness Hamwee]

Before the noble Baroness moves on to the other amendments, is she able to expand a little on the point about upsetting negotiations? We are talking about moving existing legislation over the break point into the future. I am quite puzzled by that part of her response.

[Baroness Goldie]

That may be part of what is involved but the other part might, as emerged in earlier discussions today, impact on subsequent matters that are germane to the negotiations and will therefore have to be taken into account in whatever legislative framework is proposed. It is not just a simple question of the bridge; there may be other aspects to be considered.

[Baroness Smith of Basildon]

Can the noble Baroness give us an example of where that might conflict with the negotiations? Some of us are struggling to understand the rationale behind that.

[Baroness Goldie]

Given the breadth of activity already referred to by both the noble Baronesses, Lady Young of Old Scone and Lady Hamwee—a huge breadth of activity involving a multiplicity of issues—it is inevitable that some of these matters will be caught up in the negotiations. I cannot be drawn on specific examples because we may be talking about generic issues. However, the Government are very anxious to avoid in any way hog-tying their freedom to conduct the negotiations with a degree of confidentiality and privacy.

[Baroness Young of Old Scone]

I share my noble friend’s perplexity. We are talking about a government commitment, in my field of expertise, to take existing European environment law and bring it safely across to preserve the same standards. It will not be a great surprise to the European Union and those with whom we are negotiating if what we propose is exactly the same in intent as what currently exists—if the Government are indeed genuinely committed to making sure that we enjoy the same standards post Brexit as we did previously. Therefore, I find it difficult to believe—I have not been able to think of an example—that there will be something monumentally important as regards the negotiating process.

[Baroness Goldie]

I merely observe that the breadth of activity implicit within the negotiations could anticipate issues arising that we are unable at this moment to specify. The Government have been sensible in retaining the flexibility in the negotiations to deal with these if they do arise. It is important in that event—

[Lord Newby (LD)]

My Lords, the whole House is perplexed. Maybe we are perplexed because we are very tired, but might I suggest that the noble Baroness write to noble Lords with at least one or two examples of the problem she is describing? It is clearly the case that, for most of us, it sounds like a Sir Humphrey excuse and not a substantive point.

[Baroness Goldie]

It is not meant to be a Sir Humphrey excuse; it is meant to be an attempt to anticipate what is for most of us a very challenging scenario. However, I will of course take back the noble Lord’s suggestion and I will be very happy to try to produce some examples.

I shall return, if I may, to the amendment in the name of the noble Baroness, Lady Young of Old Scone. I hope I am pronouncing her title correctly; those who come from Basildon may be interested to learn the pronunciation.

[Noble Lords]

Oh!

[Baroness Goldie]

We do not do “scohnes” in Scotland.

The difficulty with the noble Baroness’s amendment is that the scope of future legislation that is caught by it has the potential to be enormous. I have no doubt that the amendment is well intended—that is beyond question—but it is not necessarily as helpful as the noble Baroness thought it might be. The additional scrutiny provisions of this amendment are not confined to the powers in this Bill but, as drafted, would apply to any regulations which replicate EU legislation, with or without modification, or any regulations which amend or modify legislation that was made to implement our EU obligations.

To add an additional scrutiny provision to such a large body of future legislation is simply not feasible. The parameters set out in this amendment are so vast that this would not only represent a significant burden of additional procedure for government departments now but could also mean that Governments decades into the future would be bound to this three-month consultation period for every single amendment made to retained EU law. This is very undesirable, given that many of these regulations are likely to be uncontroversial and technical in nature. Indeed, there are times when it is widely agreed that speed is of the essence.

The noble Baroness is rightly concerned about a range of important issues, so let me try to reassure her. Her amendment focuses particularly on environmental and social issues, so I will repeat what the Government have said on this. We were elected on a pledge to be the first generation to leave the environment of England in a better state than we inherited it.

On social issues, I am proud to say that the UK has a long-standing tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international rights obligations. The decision to leave the European Union does not change this. Indeed, the Government have made clear their firm commitment to protecting these rights throughout our exit. Additionally, of course, Clause 9 is already explicitly prohibited, like Clauses 7(1) and 8, from being used to amend, repeal or revoke the Human Rights Act or any subordinate legislation made under it.

On employment issues, also of concern to the noble Baroness, we have made a clear commitment to protect workers’ rights and to ensure that they keep pace with the changing labour market. We do not need to be part of the EU to have strong protections for workers, and in many areas the UK goes beyond the minimum standards set by the EU. For example, the rights of workers to annual leave, paid maternity leave and parental leave all go beyond the EU standards.

This amendment, like several others that have sought to protect environmental protections and social matters, fails to refer to specific rights and protections. As there are a vast number of laws on our statute book that relate to these matters in some way, the risk of judicial review of any statutory instrument made under this amendment would be inappropriately high.

The noble Lord, Lord Adonis, is not in his place, but the noble Baroness, Lady Hamwee, raised the issue of public consultation. I do not know whether she was embracing the issues raised in the noble Lord’s amendment, but let me say briefly that the Cabinet Office code of practice which the noble Lord suggests must be followed has already been in use by all departments for some years. Indeed, departments are already held to account by the Secondary Legislation Scrutiny Committee.

[Baroness Hamwee]

My Lords, on the code of practice that is the subject of the amendment of the noble Lord, Lord Adonis, my experience from the Secondary Legislation Scrutiny Committee is that it is honoured in the breach as well as in the observance.

[Baroness Goldie]

There was a universal welcome for the Government adopting as their principles much of what was proposed by the Secondary Legislation Scrutiny Committee. The committee has a locus if it considers that consultation has been inadequate.

I turn to the amendments tabled by my noble friend Lady Neville-Rolfe, starting with Amendment 249. She has an exceptional, perhaps encyclopaedic, understanding of the statutory instrument processes and is clearly aware of the historical issues that led to concerns regarding the quality of documents laid as part of this procedure. While I understand the concern that underpins her request to place in statute the responsibility to provide sample statutory instruments before both Houses, the Government do not believe that such a responsibility is proportionate. Wherever possible, and where negotiations will not be affected, we would hope to provide details of draft SIs from all sectors.

The noble Baroness’s proposed new paragraph in Amendment 250 seeks to address the procedures for conducting consultations. She makes a number of sensible suggestions as to what should be considered and included when conducting consultations—in fact, many of these are already being conducted or are currently being incorporated—but to require that a draft instrument should be published not less than 60 days before it is laid would place an undeliverable duty on departments, given the limited timeframe that is available and the need at times not to reveal expectations as to the outcome of negotiations while they are ongoing.

Similarly, Amendment 251 would place an impossible burden on the House and its time and does not allow for flexibility in the management of business. The new proposals for laying draft negative SIs with a sifting committee would mean that the Minister would not be able to give any indication as to when it was expected that the instrument would be debated. In these cases, if, as I hope, the Committee accepts the recommendation of the Government that the negative procedure is proportionate, the SI would proceed as a negative statutory instrument. This House has a well-established process for considering affirmative and, where desired, negative SIs, and we want to see this continue.

None of this is to refute that my noble friend has set out some very good suggestions for practice, but practice should not be placed in the Bill. Indeed, the noble Baroness, Lady Smith, had an interesting suggestion about listing SIs once known.

[Baroness Smith of Basildon]

I suggested listing the drafts for consultation.

[Baroness Goldie]

People are bellowing “End!” in my right ear and I know which side my bread is buttered on.

I have spoken at length but I hope I have addressed noble Lords’ concerns. I urge the noble Viscount to withdraw his amendment.

[Viscount Hailsham]

My Lords, this group of amendments has enabled the Committee to identify matters of considerable importance. I think that the Committee will say to my noble friend that she has tried to be helpful. We do not always agree with her but we are grateful to her for the way in which she has responded. Important issues have been raised with regard to statutory instruments and consultation with stakeholders. These matters will be addressed later on in future sessions of this Committee. The hour is late and, with the consent of the House, I would like to withdraw my amendment.

--- Later in debate ---

[Baroness Young of Old Scone]

My Lords, I will speak briefly to support the amendments. As chief executive of the Environment Agency, I lived through the process of designing and delivering REACH, and it was a joy to work as closely as we did with British industry and industry across Europe in devising a system that was shared between government, regulators and business. It is a bit of an object lesson in how to go about it, and much admired globally. I welcome the Prime Minister’s expression of support, but would just take issue with one thing the noble Lord, Lord Fox, said. I do not think we should be aiming at a parallel system in any way—we should be a full and absolute member of the REACH process. It works, it is elegant and I hope we can get an assurance from the Minister tonight that we will move rapidly to find a way to give industry clarity about how the REACH process will operate post Brexit.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Whitty, and, in his absence, the noble Lord, Lord Adonis, for their amendments concerning the very significant issue of chemicals regulation.

The Bill will incorporate current EU law into domestic law and allow it to be corrected in order to operate properly, giving consumers and businesses as much certainty as possible. This includes regulations relating to chemicals. The Bill will convert the REACH regulation into domestic law, meaning that the obligations on duty holders and the environmental standards and principles that underpin REACH will continue to apply in the UK, including in the devolved areas. These include the specific measures included in the amendment in the name of the noble Lord, Lord Whitty.

We are working to ensure that we have a functioning chemicals regulatory and enforcement system in the UK for day one. For example, the Environment Secretary has given the go-ahead for the development of six new systems, including one for chemicals. Work has started on delivering the new IT system that will enable registrations and the regulation of chemical substances placed on the UK market. This will provide continuity for businesses after EU exit.

Let me be clear: our priorities are to maintain the effective and safe management of chemicals to safeguard human health and the environment, to respond to emerging risks and to allow trade with the EU that is as frictionless as possible. We have been engaging with a range of stakeholders to understand the detailed impacts of Brexit and are grateful for the pragmatic approach that the chemicals industry is taking to Brexit and for its positive approach to working with the Government to understand the impacts and deliver the best possible outcome for the industry after exit. We are committed to continuing this engagement throughout the process.

With regard to chemicals, REACH is underpinned—this is explicit in Article 1—by the precautionary principle. So, once REACH is translated into UK law through the withdrawal Bill, the precautionary principle will continue to exist directly in UK law in relation to REACH. The precautionary principle is also embedded in international conventions relevant to the regulation of chemicals, such as the Stockholm convention on persistent organic pollutants, and the UK is and will continue to be a signatory to the convention in its own right.

Further, our 25-year environment plan sets out our intention to publish a chemicals strategy that will set out our approach as we leave the EU. It will set out our priorities for action and detail how we will achieve our goals, building on existing regulatory approaches and tackling chemicals of national concern. The Government will discuss with the EU as part of the exit negotiations how best to continue co-operation on chemicals regulation in the interests of both the UK and the EU. As the noble Lord, Lord Whitty, acknowledged, in her Mansion House speech the Prime Minister said we want to explore with the EU the terms on which we could continue to co-operate with the European Chemicals Agency and participate in certain processes, the point that the noble Lord, Lord Fox, sought clarification on. As for the specifics, I think your Lordships will understand that I cannot go into more detail because this is the subject of live negotiation in the negotiation process.

[Lord Fox]

That is very clear, and I thank the Minister for what she has said so far. What is not clear to me is whether the overall idea is to avoid divergence from EU REACH. It does not sound as if the UK is inside REACH in the way that the noble Baroness, Lady Young, pointed out; it sounds as if the aim is to run a parallel system. Have I misunderstood?

[Baroness Goldie]

I can only repeat the Prime Minister’s stated intention in her speech, and that is specifically to explore with the EU the terms on which we would continue to co-operate with ECHA and participate in certain processes. I say to the noble Lord, Lord Fox, that clearly, EU REACH is an EU organisation and to be a member of it you have to be an EU member state. After Brexit we shall not be that, but it is in the interests of the UK and certainly of industry that we work, in so far as we possibly can, in tandem with what is happening within the EU. That is certainly what the Government’s objective will be. The precise detail of that will be the subject of the negotiations.

The UK is strongly committed to the effective and safe management of chemicals and pesticides, and that will not change when we leave the EU. I hope this provides the noble Lords with sufficient reassurance that they will not pursue their amendments.

[Lord Whitty]

I thank the Minister for that reply, and I thank my noble friend Lady Young and the noble Lord, Lord Fox, for supporting the amendments. I am afraid the Minister’s speech was not as forthcoming as I was hoping due to the way that I had been led, in my usual spirit of optimism, to interpret the Prime Minister’s speech. I am therefore going to have to say slightly more than I promised the Chief Whip.

It seems that the Minister is saying that we will be outside the REACH process but will develop our own parallel process and might, if we can negotiate it, still in some way be party to the agency. I had hoped that being party to the agency as part of the Prime Minister’s aim meant that she had been convinced by the industry and others that it would be sensible to be part of the process. The Minister’s reply today narrows that hope somewhat.

--- Later in debate ---

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Collins, and the noble Baroness, Lady Randerson, for their amendments, which are effectively seeking transparency. The Department for Exiting the European Union is leading cross-government work, including with the Foreign and Commonwealth Office treaty section, to assess and act on the international agreements for which, as a result of the UK’s withdrawal from the EU, there will need to be arrangements to ensure continuity for business and individuals. Alongside this, we are also working with our international partners—the EU 27, the Commission and third countries—to identify the full range of agreements which may be impacted by our exit from the EU, and we will be taking their views into account.

I might observe to your Lordships that it is not common practice to publish assessments on treaties that have expired, ended or been superseded. However, I assure noble Lords that any treaties which require new or amended implementing legislation and/or parliamentary scrutiny before ratification will go through the appropriate well-established procedures. Where the powers in subsection (1) are used, these will be subject to the scrutiny procedures set out in this Bill. To set all this in context, my noble and learned friend Lord Mackay of Clashfern rightly identified that the instances where these provisions may be used are not likely to be plentiful. As I have explained, given that the Government’s approach to international agreements is to achieve continuity, I believe this renders unnecessary the impact assessment that the amendment would require.

I can confirm that we will, of course, continue publishing impact assessments to accompany legislation, in line with existing practice. I take this opportunity to remind the Committee of the Government’s overarching policy approach to international agreements after we leave the EU. As set out in the technical note recently published on this issue, we are seeking to ensure that our existing international agreements continue to apply to the UK during the proposed time-limited implementation period. Our officials are working with the Commission on the precise mechanics of this. The focus, both during the implementation period and beyond, is on seeking, wherever possible, to continue our current arrangements with third countries and international organisations. We recognise the need to promote stability for businesses and individuals and we will aim to transition agreements as seamlessly as possible to ensure an orderly withdrawal.

I hope that that background and this explanation provide the necessary clarity and with this insight, I respectfully ask the noble Lord to withdraw his amendment.

[Lord Collins of Highbury]

I thank the Minister for that explanation, but I fear that we will need to return to this issue. The noble and learned Lord may be right that there is limited scope, although I think we have heard in the debate that there are lots of examples. There are lots of conventions and agreements that, since our membership of the EU, we have had exemptions from because we are complying with EU law. But when we are outside the EU, we will find that we will need to ensure that we have the mechanism, so that those agreements and conventions are properly implemented. That is the issue.

Regarding the process we are going through on the Bill, at the end of the day—I hear what the noble Baroness, Lady Randerson, says—I do not really think that the people of this country understand exactly what will be required to ensure that Brexit is effective, or the sorts of agreements and international conventions that might affect them. I hope that the issue of transparency will be one not just of implementation but of ensuring that we all know and understand better the full implications of the decision that has been made. But in the light of the comments made, I beg leave to withdraw the amendment.