Retained EU Law (Revocation and Reform) Bill

Baroness Humphreys Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted that we have reached this group, which concerns restatement powers. The two most radical amendments in this group will probably capture the Committee’s imagination more than my more modest ones; I look forward to hearing from the authors of the amendments on whether Clauses 12 and 13 should stand part of the Bill.

I want to speak briefly to the amendments in my name. Amendment 102 would require

“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them.”

This would require all

“relevant national authorities … to publish the results of the consultation.”

Why is this necessary? Under Clause 12, a relevant national authority

“may by regulations restate, to any extent, any secondary retained EU law.”

Clause 14 states:

“A restatement may use words or concepts that are different from those used in the law being restated”


and

“may make any change which the relevant national authority considers appropriate for … resolving ambiguities … removing doubts or anomalies … facilitating improvement in the clarity or accessibility of the law (including by omitting anything which is legally unnecessary).”

Given the debates that we have had, this will increase the uncertainty and lack of clarity. I am grateful to the Law Society of Scotland, which proposed Amendment 102. Its purpose is that such changes, which may obviously be considerable, should require to be consulted on.

Amendment 105 would require

“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them. All relevant national authorities are required to publish the results of the consultation.”

I will not rehearse this. It is very similar under Clauses 13 and 14 to what I referred to under Amendment 102. However, as these changes would again be major, they should be consulted on, as is laid out in this amendment. I beseech my noble friend Lord Hamilton of Epsom that, if he is seeking clarity and certainty and wants a short deadline, he must share my concern that the clauses dealt with in this group will have quite the contrary effect to that which he referred to.

Amendment 107 has a similar requirement on a national authority to consult all the national authorities to publish the results of the consultation. Clause 13(8) states that:

“A relevant national authority may by regulations reproduce, to any extent, the effect that anything which was retained EU law by virtue of section 4 or 6(3) or (6) of European Union (Withdrawal) Act 2018 would have, but for sections 3 to 5 of this Act.”


Again, this is a significant regulation-making power which could affect a large number of individuals and businesses. Surely my noble friend and the Government would wish that they and the devolved Administrations consult before making such wide-ranging regulations as those envisaged in this clause. Therefore, under the terms of this amendment, a Minister of the Crown would be obliged to consult a devolved Administration before making regulations concerning devolved matters.

Amendment 108 looks to extend the statutory deadline from 23 June 2026 to 31 December 2028, a mere 18 months,

“within which a restatement of assimilated law or reproduction of sunsetted retained EU rights, powers, liabilities may be made.”

It cannot be right to have such a short deadline giving such wide-ranging powers. Therefore, in my humble submission, the deadline needs to be extended to allow sufficient time for the exercise of going through what the impact on the Government, the devolved Administrations and all the interested parties would be. A better and more realistic deadline, capable of being met, would be 31 December 2028.

Amendment 109 is purely consequential, extending the deadline from the end of 2023 to 31 December 2028. I am delighted to say that Amendment 110 would have a similar effect by leaving out Clause 14(7), which states:

“The provision that may be made by regulations under section 12 or 13 may be made by modifying any enactment.”


That is an extremely broad Henry VIII power to empower Ministers to amend any enactment. It is identified by the Secondary Legislation Scrutiny Committee in its 28th report, Losing Control?, as too broad a power. Therefore, Amendment 110 gives my noble friend and the Government the opportunity to explain why such a broad power is necessary.

I hope that my noble friend will look extremely favourably on this small but perfectly formed group of amendments. With those few remarks, I beg to move.

[Baroness Humphreys (LD)]

My Lords, I will speak to Amendments 103 and 106 in my name. My Amendment 103 is an amendment to Clause 12. It ensures that a legislative consent Motion must be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to restate secondary retained EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.

Amendment 106 is an amendment to Clause 13. It has the same effect as Amendment 103 but refers to the restating of secondary assimilated law, and therefore is exercisable from only 1 January 2024. Both clauses are commented on in the report from the Delegated Powers and Regulatory Reform Committee, which was concerned about the way that they “inappropriately delegate legislative power”. It recommended that they should be removed from the Bill. The committee said that both clauses gave Ministers power to legislate and achieve effects that ought instead to belong to Parliament and be achieved in subject-specific primary legislation. My noble friend Lady Ludford will speak to Clauses 12 and 13 not standing part of the Bill.

Our debate on Amendment 58 last Thursday warranted far more time and attention than we gave it. We saw there that the UK Government appear ready to take over the powers of the devolved nations when they think that they can. I was particularly grateful to the noble Lord, Lord Collins of Highbury, who is in his place, for probing powers over sunsetting and what the noble and learned Lord, Lord Thomas of Cwmgiedd, referred to as the

“equality of treatment between the various Governments of the United Kingdom.”—[Official Report, 2/3/23; col. 467.]

I am sure that we will return to this issue at a later stage of the Bill.

With the UK Government’s attitude to the devolved legislatures in mind, the Delegated Powers and Regulatory Reform Committee’s very significant sentence in the report seems pertinent:

“The powers conferred by clause 12 are open-ended, there being no requirement for consultation, for criteria to be met or for pre-conditions to be satisfied.”


The committee was of course concerned about the powers of Ministers to legislate, to achieve effects that ought instead to belong to Parliament. The powers of the Senedd are implicit in this, and the belonging should also extend to them.

I want to make a few comments about consent, the Sewel convention, and the powers of the Senedd. I was part of the first intake of Members to the Welsh Assembly, as it was then, in 1999. I have watched its powers grow as a result of the votes of the people of Wales in referenda over the years. I welcomed the introduction of the Sewel convention and its assertion that the UK Government would not normally legislate in devolved areas without consent, to protect and defend the powers of Welsh Ministers and the Senedd itself. That welcome was tempered by a concern shared by many others about the definition of “normally”. Our concerns have been justified. Despite assurances from Ministers during the progress of the Bill, recent history has shown that reality is completely different. Over the last three years or so we have been faced with an increasing disregard for the powers of the devolved legislatures, and an attitude which borders on contempt for the legislative consent Motions.

It is now accepted that the Sewel convention is no longer working. Sadly, its operation is seen as the biggest constitutional issue facing Wales. The First Minister has called for the re-establishment of the way in which the convention was respected from 1999 to 2019 and has supported the intergovernmental agreement that will lead to “some work” being done on how the Sewel convention could be strengthened. As he said in his recent appearance before the Commons Welsh Affairs Committee,

“if you cannot repair the Sewel convention, then one of the major underpinning props of the devolution settlement has simply been kicked from under it.”