Retained EU Law (Revocation and Reform) Bill

Baroness Humphreys Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

Moved by

[Baroness Humphreys]

29: Clause 1, page 1, line 6, at end insert—
“(1A) Subsection (1) does not apply to an instrument, or a provision of an instrument, that—(a) would be within the legislative competence of—(i) the Scottish Parliament if it were contained in an Act of the Scottish Parliament,(ii) Senedd Cymru if it were contained in an Act of Senedd Cymru, or(iii) the Northern Ireland Assembly if it were contained in an Act of the Northern Ireland Assembly, or(b) could be made in subordinate legislation by—(i) the Scottish Ministers, the First Minister or the Lord Advocate acting alone,(ii) the Welsh Ministers acting alone, or(iii) Ministers of the Northern Ireland Executive.”Member's explanatory statement
This amendment restricts the automatic revocation or “sunsetting” of EU-derived subordinate legislation and retained direct EU legislation under Clause 1 of the Bill so that it does not apply to legislation that is within the legislative competence of each of the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly or Executive.

[Baroness Humphreys (LD)]

I am grateful to the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, for adding their names to this amendment and for their support. I will also refer briefly to Amendment 49, tabled by the noble Baroness and the noble and learned Lord.

Amendment 29 is the first in a series of amendments which will enable your Lordships to explore the position of the devolved Governments on this Bill and to examine their response to it in detail. I will be speaking about the response of the Welsh Government, of course, but I recognise that other devolved Governments will have similar experiences and different problems.

The amendment restricts the sunsetting of EU legislation so that it does not apply to legislation that is within the legislative competence of the devolved Administrations—in essence, protecting the ability of the devolved Administrations to sunset their own retained EU laws. In general, I think it fair to say that the Welsh Government and the Senedd have very serious concerns about many aspects of the Bill, echoing those expressed by many of your Lordships at Second Reading. They have so many concerns that the Counsel General for Wales went so far as to say that the Welsh Government fundamentally oppose the whole intent of the Bill.

The Welsh Government’s position is that retained EU law works well for them in their areas of devolved competence and, again in the words of the Counsel General for Wales, that they had no intention of repealing, revoking or amending retained EU law to an arbitrary deadline, preferring gradually to amend the law as appropriate with evidence-gathering, public consultation and legislative scrutiny in the normal way over time, as with any body of law. Without the certainty that Amendment 29 gives and without an extension to the sunset, which we will debate in a later group, the Bill no longer gives them that option.

Amendment 29 addresses the concerns of the Welsh Government and Senedd Members who fear that the UK Government will attempt to take some responsibility—or just responsibility—for the sunsetting of laws in Wales. In January, the Senedd’s Legislation, Justice and Constitution Committee was very concerned about the position of devolved retained EU law and asked whether the Welsh Government had received reassurance from the UK Government that they will not change or remove devolved retained EU law without the consent of the Senedd. The Counsel General had not received reassurances a month ago. Can the Minister give those reassurances today? Senedd Members are obviously concerned about the impact of the UK Government proposing legislation such as this. They believe that by default it could repeal essential economic, social and environmental protections—protections that the Welsh Government believe are essential for the operation of their policies on behalf of the people of Wales, and that this is unacceptable.

The Welsh Government have said that their prime focus is

“firstly to ensure that we analyse and retain our own EU retained law, that we focus on that law that’s been made within Wales”.

This is the primary reason for putting down this amendment. It is designed to ensure that the legislative competence of the Senedd is recognised and protected, and that responsibility for sunsetting EU-derived subordinate legislation and retained direct EU legislation lies with the Senedd.

My noble friend’s Amendment 49 asks for a progress report on the identification of EU legislation that has been incorporated into law by the devolved Administrations. I will leave my noble friend to deal with the details when she speaks to her amendment, but I will make a brief comment. I did expect this exercise to be a joint venture, with the UK Government assisting or even leading in the identification of the various pieces of legislation that fall under the Bill, but a few difficulties have arisen. This amendment has my full support and I hope the Minister will update the Committee on progress. I beg to move.

[Lord Hope of Craighead (CB)]

I have added my name to the amendment in the name of the noble Baroness, Lady Humphreys, which has my full support, but I will also speak briefly to two other amendments in this group in my name—Amendments 34 and 55—which have the support of the noble Lord, Lord Murphy.

Everything the noble Baroness said on Wales applies equally to the position in Scotland, which is just as acute and difficult. I will give some figures on the problem we face. If you examine the dashboard and look, for example, at entries that relate to the responsibilities of Defra, which cover a lot of the work done in Wales and Scotland, you will find 1,781 such entries. Mention is made in this clause of legislation relating to Wales and Scotland, but the numbers are tiny compared to those recorded for Defra itself: there are only 30 relating to Scotland and 15 to Wales, and they concern only agriculture among Defra’s much wider responsibilities. So, I detect that the no doubt authoritative information in the dashboard is incomplete, especially for the devolved Administrations, which illustrates the great problem to which these amendments direct our attention.

May I venture to suggest one other problem, which relates to the relationship with the devolved Administrations? In its report of some two years ago, the Constitution Committee indicated, with the support of the Government’s reply, that the watchwords in dealing with the devolved Administrations should be “respect” and “co-operation”, and that, indeed, is what the noble Baroness’s amendment is all about. One of the extraordinary things about the Bill is that there was no sign of any attempt to discuss the sunset date with the devolved Administrations before it was introduced last September. If I am wrong about this, I am sure I will be corrected by the Minister, but all the signs are that the work simply was not done before the sunset date was set. Indeed, before the Bill reached this House, I do not think much work was done otherwise.

I therefore have a particular question for the Minister on something to which this House is entitled to an answer anyway: what is the present state of discussions with these two devolved Administrations about the possibility of a legislative consent agreement? As the Bill stands, it is clear that neither Administration would give its consent, but the Government’s responsibility is to continue discussions with them. We need to know what work is being done, whether work is continuing to achieve agreement and what the disagreements, if any, relate to. We probably all know what they are, but the Minister needs to update the House at some point during Committee. When the matter comes back on Report, we will expect a complete account of the relationship with the devolved Administrations in relation to legislative consent.

The noble Baroness’s Amendment 29 seeks to remove all legislation that is within devolved competence from the automatic sunset. It will then be for the Government to find another date after discussion with the devolved Administrations. As I said when we discussed this on Tuesday, I believe in sunset dates to make sure there is some pressure to get the work done, but it must be a proper date that is discussed with the devolved Administrations so they can reasonably meet it.

Amendment 49, which is supported by my noble friend Lady Finlay of Llandaff, is a probing amendment seeking information that should have been in the Government’s hands long ago. It makes the same point made by the noble Baroness, Lady Humphreys, on the lack of a clear and comprehensive statement. There is a real problem here of finding out what the legislation is dealing with. Direct EU legislation is not difficult to find and, from the work we do in the Common Frameworks Scrutiny Committee, we can identify it readily. The difficulty arises with EU-derived subordinate legislation and UK legislation relating to the subject matter, which has to be sorted out and understood before one gets into identifying what EU-derived legislation needs to be dealt with. This suggests that each SI in these subject areas needs to be examined and studied very carefully to see what legislative power is being exercised.

Once again, I stress that the Committee needs to know what risks the devolved Administrations are being confronted with. We need a full, frank, detailed and honest assessment. We will come back to this matter when we discuss my noble and learned friend Lord Judge’s Amendment 32 in a later group. For these reasons, I support Amendment 29, tabled by the noble Baroness, Lady Humphreys, and Amendment 49, tabled by the noble Baroness, Lady Randerson.

I turn to an entirely different matter that is the subject of Amendments 34 and 55, which deal with sunsetting the common frameworks. Amendment 34 seeks to disapply the sunset to legislation relevant to the policy content of the common frameworks. Amendment 35, tabled by the noble Baroness, Lady McIntosh, is similar. Amendment 55 suggests a different sunset for the common frameworks, at the end of 2026.

The problem that these amendments seek to address is that, as far as I can detect, the Bill seems to ignore and thus undermine the role of the common frameworks, which are designed to be guided by consensus across all four Governments. That is what “common” means in this rather strange formula; the frameworks are common to the four Administrations, which all have a share in this process, which proceeds with discussion and common understanding. They allow for divergence for reasons of policy, as Section 10 of the United Kingdom Internal Market Act recognises, but only where there is agreement among them all. There is a dispute resolution process, but I do not believe that it was designed for the kinds of disagreements that may arise if the procedures in the Bill are applied to them. The Minister needs to consider the position of the common frameworks much more carefully regarding the work that is proposed.

I should give some indication of the ground that the common frameworks cover and their importance to the way in which the United Kingdom’s internal market is being developed, with the willing co-operation of the devolved Administrations. There are 32 common frameworks, extending over the work of seven government departments, ranging from what was BEIS to the Department for Transport. Fourteen of them relate to Defra, as I mentioned earlier, and its equivalents in the devolved Administrations. I will not set out the full list, but they include animal health and welfare, chemicals and pesticides, ozone-depleting substances and fluoridated gases, plant health, air quality, and food labelling and compositional standards. These are extremely important areas of our internal market, which are well settled in the frameworks and should not be disturbed.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

The process is finally complete, as my noble friend suggests.

On impact assessments, properly assessing the impact of government policy is an important principle of good governance, and the Government will continue to be committed to the appraisal of any regulatory changes relating to retained EU law. The nature of this appraisal will depend on the type of changes the departments make and the expected significance of the impacts. Where measures are being revoked, departments will be expected to undertake proportionate analytical appraisal, and we are exploring the appropriate steps we can take to appraise the resulting impacts.

I am fully conscious that a number of other specific points were raised, but I undertake that we will write back, particularly on methodology and definitions. However, for the reasons I have outlined, I ask the noble Baroness, Lady Humphreys, to withdraw her amendment.

[Baroness Humphreys (LD)]

I thank all noble Lords who have taken part in this debate, and offered their support to the devolved Administrations and recognised their very legitimate concerns regarding their devolved settlements.

Many of us might not like the Bill, but in this Committee we have seen this House at its very best. We have heard a number of speeches today that could be described as masterclasses, and it has been a pleasure and an honour to listen to them.

I will not comment on the noble Baroness’s reply other than to say that I appreciated her statement that the Government are committed to the Sewel convention. However, over the last few years, actions have spoken louder than words, so she will forgive me if I do not hold my breath.

I also welcome the commitment from the noble Baroness, Lady Chapman, to work across the House on amendments on Report; we on these Benches commit to that process.

We have been debating this for two hours and five minutes, and if everybody else is like me, lunchtime is calling. Therefore I will just say that the noble Baroness’s response will have given food for thought to those of us in this Chamber today, and we will doubtless want to renew our deliberations on Report. In light of that, I beg leave to withdraw my amendment.

Amendment 29 withdrawn.