Retained EU Law (Revocation and Reform) Bill

Baroness Lawlor Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, it is a great pleasure to welcome the noble Baroness, Lady O’Grady, and my noble friend Lady Bray and to follow the noble Baroness, Lady Fox—so you have four noble Baronesses tonight on different sides.

I welcome this Bill to remove and reform EU law. It honours the country’s decisions in the 2016 referendum and the 2019 general election leave the EU, its legal orbit and its corpus of law. The voters’ mandate was clear—to restore sovereignty so that the laws under which we are governed reflect their wishes and the Parliament they send to Westminster honours their mandate. The Bill honours that mandate in two principal ways. First, it accords supremacy to UK law, ending that of the EU where there is incompatibility. Secondly, retained EU secondary legislation will, unless otherwise decided, lapse at the end of 2023—the sunset clause about which we have heard so much today.

Others have spoken about the economic potential of this measure. I shall touch on the concerns, which I do not share, practical and constitutional. The practical concerns relate to timing and uncertainty—what is thought to be too short a timeframe and possible uncertainty in so rapid a switch to a new system, which could, it is thought, be bad for business. But not only should the deadline be achieved quickly and smoothly if individual departments get down to the task—a task with which they will already be familiar through the laws for which they are responsible—but the more rapidly this corpus of secondary legislation is removed or adapted for UK law, and the sooner the two systems of law end, the greater the certainty for all. The constitutional concerns relate to what is seen as the Executive overlooking Parliament—or what others have called, in more colloquial language, a power grab.

We are speaking here about secondary legislation, which was introduced under the EU, much of it without proper parliamentary scrutiny. It did not reflect the wishes of the people of this country but was the result of a Byzantine system of laws under an unelected European commission and handed down from on high to Parliament. Moreover, there are good reasons for acting as proposed. Unlike the UK system of law, EU legislation is based on the continental system of law. It is a different form of law. It enshrines the precautionary principle covering every possible situation, but often does so too late for innovators and entrepreneurs. Four thousand is the number of regulations we have heard mentioned today, but more laws do not necessarily mean better law.

Moreover, Ministers are and will be accountable, but to Parliament, and more accountable and more important to the people of this country, who, at a general election, send Parliament to Westminster. It is from the people that the authority of Parliament derives, not from itself. Governments listen to the voice of the people and have acted decisively and rapidly throughout the centuries: workmen’s compensation in the 1890s; national insurance and pensions in the 1910s; widows’, orphans’ and old age pensions in the 1920s; holidays with pay in the 1930s; family allowances, national insurance, maternity allowance and legal aid in the 1940s. I therefore welcome this measure. I have no doubt that the Government will move ahead rapidly and I shall do nothing to delay the passing of the Bill.

Retained EU Law (Revocation and Reform) Bill

Baroness Lawlor Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[The Duke of Wellington (CB)]

My Lords, I apologise to the House that I was not able to speak at Second Reading as I could not be sure of arriving in time on that day, and that last week I was in Madrid on a parliamentary delegation and therefore missed the first day in Committee. I now wish to speak to Amendments 11 and 12, which I would happily have signed. I repeat the gratitude we all feel to the Minister, the noble Lord, Lord Benyon, for being present today. The previous debate would, I am sure, have been helped enormously by the presence of a Minister from the Department for Transport. However, we do have the noble Lord, Lord Benyon, and we all recognise his commitment to the environment and strong credentials in this area.

I suspect that the debate on this group could have been avoided if, at the very beginning, the noble Lord, Lord Benyon, had simply announced that all these directives would be retained. I was one of those who attended the briefing session yesterday afternoon, where he began by saying that his default position was indeed to retain. If that is true of all the different directives referred to in these amendments—Amendments 10, 11, 12 and 37—there is no need for us to be discussing them this afternoon. However, I fear that may not be the case. If it is the case, it should be in the Bill and then we need not be concerned. If it is not the case, we really must argue very strongly for some adaptation of these directives—and indeed improvements, because the Government have repeatedly said that they wish to improve and not reduce environmental protection.

Specifically on the bathing water regulations, for example, I seem to remember that Britain was rather embarrassed, many years ago, to be told by the EU that the state of our beaches made them some of the worst in Europe. That came from the EU and then public opinion became more interested in the subject, and indeed was very supportive of any attempts to improve the state of our beaches. Yet we find repeatedly —it is still going on—that sewage is discharged into coastal waters on and around our beaches. It is a complete disgrace and I would be worried that repealing the bathing water regulations would, in some way, weaken the determination of the Government to clean up our beaches. I genuinely believe that the Minister does wish to clean them up; therefore, why would we possibly repeal the bathing water regulations?

Similarly, on Amendment 12 about the water frame- work directive, we have had many debates in this House on our aquatic environment. There was a very strong feeling across the whole House that we had to tighten up all the regulations about sewage discharges. That was supported by the public in an extraordinary way. Again, I would be worried—maybe the Minister can reassure me—that repealing the water framework directive could, in an unintended way, weaken the determination of the Government and regulators to put a stop to discharges of sewage on to beaches and into our rivers.

Finally, on Amendment 37 I commend the noble Baroness, Lady Hayman, on drawing up this list; I am sure she did it with expertise and knowledge far greater than my own. Looking at the list, I am very much of the view that there are some important regulations on it. I cannot possibly imagine why we would, for example, repeal the urban wastewater treatment directive. However, I look forward to the Minister telling me that my concerns are unfounded. I therefore hope that, in winding up this section of the debate, the Minister will be able to confirm that all the various directives referred to in this group will be retained or improved.

[Baroness Lawlor (Con)]

My Lords, I am grateful to noble Lords for raising some of these important subjects, which we must think about very carefully. I do not share the assumption that divergence necessarily is for the worse; it can be for the better. I am not entirely sure that the EU regulations now in place are necessarily the best for the jobs they intend to do.

I will take one example from the many that noble Lords have raised. I share concerns on the protection of wild birds, habitats, wild mammals and clean bathing water, but I ask your Lordships’ Committee whether it is really the case that these regulations work as we all wish they would. In the country with which I am most familiar, our nearest neighbour, I am constantly very disappointed to see the sale of wild birds in cages—and, even worse, some wild mammals—to the pet market.

Where I differ from many in your Lordships’ Committee is that I believe the laws protecting these matters are shaped by the people of this country and the culture. I have no evidence because I have never seen caged wild birds on open sale in pet shops here, but I do not believe that the people of this country would tolerate such a thing. They will be responsible for making the laws of this country. I have every confidence that, where the laws do not work in other countries, such as our neighbours—countries I have a great respect for in many other areas—the people of this country will do well by the wildlife that they believe they are custodians of.

[Lord Trees (CB)]

My Lords, I am particularly interested in and concerned about several regulations on animal welfare cited in Amendment 37. I seek clarity from His Majesty’s Government on their intentions regarding these. I welcome and thank the Minister, the noble Lord, Lord Benyon, for his presence. I welcome his clarification in the briefing—sadly, I was not able to attend—that retention would be the default position. I am sure he will forgive me for probing and asking for a bit more detail on some of the key regulations.

The first thing I will highlight is REACH, mentioned by the noble Baronesses, Lady Parminter and Lady Hayman, which protects us all from potential toxicity in chemicals to which we might be exposed, and which involves animal testing. I can accept that in some circumstances it may be necessary to use animals, but it must always be justified and we must minimise animal use as much as possible. Will His Majesty’s Government keep the REACH regulations or their equivalent? If so, will they ensure that there is mutual recognition between the UK and the EU of animal testing protocols and data sharing to avoid the duplication of animal testing, which would be seriously detrimental to animal welfare and a serious impediment and financial burden to industry trading in chemicals?

Retained EU Law (Revocation and Reform) Bill

Baroness Lawlor Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

As has been said many times in our debates, the Bill gives extraordinary powers to the Secretary of State and the Ministers of the devolved nations but, frankly, Welsh Ministers are clear: these are powers they do not want. They understand that they will be usurping the powers of the Senedd, as UK Ministers would be usurping the powers of this Parliament, by accepting them—but they have no alternative. It is their responsibility to act in areas where they have devolved competence and they will do so. But they need time, and to know that they will be able to act in those areas of devolved competency without interference. Implementing this small group of amendments—Amendments 51, 53, 54 and 58—and extending the sunset until 2028 would make that task a little more palatable and more manageable.

[Baroness Lawlor (Con)]

My Lords, I am pleased to follow my noble friend Lady McIntosh of Pickering and the noble Baroness, Lady Humphreys, to whom I have listened with great interest. My Amendment 56ZA is to bring forward the extension date in Clause 2(4) to the end of 2024. There are political and practical reasons for doing so.

Politically, a general election must be held by 12 December 2024. It is important that the Government elected in 2019 not only honour their commitments to deal with inherited EU law but bring forward the extension date to coincide with, or be within striking distance of, the end of this Parliament. This is not a matter of ideology, as has been suggested by some noble Lords in respect of the sunsetting of legislation, but of working within the normal political timetable: a Government are elected, they set about implementing their programme and, when the time comes, they go to the country for the people to judge. That is how this democracy functions.

When people vote, they take a punt on the party they vote for and they vote for it to govern, for general or specific reasons. Political theorists may, and do, disagree about the extent to which voters’ knowledge of detailed programmes or their expectations are at play, but there is little argument among them that people vote for a party to become a Government, and to enact the programme or the cause with which they are identified. The current Government have, sadly, lost much time in restoring UK law; now they are finally moving to do so.

Far from being disparaged for following what is called ideology, the Government should be encouraged to honour the promise on which they were elected. They are doing so in this Bill, by providing for the sunset of EU-derived subordinate legislation and some retained direct EU law, and doing so within the current Parliament, despite the pandemic. However, they should also ensure that, even in those cases where an extension is envisaged, that extension falls within striking distance of the parliamentary timetable.

Practically, it is sensible to have the extension date as close as possible to the sunset date. Indeed, given the rapid and efficient work of civil servants, who have continued to prepare for and publish on the dashboard identified pieces of legislation, we now have sight of thousands of rules which formed part of the corpus of EU law—the acquis. Our officials are familiar with and understand these matters. I understand that some departments have been working on it for almost five years. They are well equipped to move to the next stage. It is better this happens by, or near, the end of this Parliament for the benefit of good government, for the certainty it brings to all concerned, and for the effective and efficient working of government, and that it happens without the interruption of a Dissolution, or the distraction for officials of having to prepare the program for an incoming Government. I have confidence that the UK will do a better job in protecting the many legitimate concerns which have been raised by your Lordships.

Moving swiftly will give certainty to all involved, irrespective of the vagaries of political life. In addition, there is the constitutional question, to which many noble Lords have continued to refer—probably most of the noble Lords who have spoken in Committee. This has also been raised in the two recent reports from the Secondary Legislation Scrutiny Committee and the Constitution Committee, both of which illuminate a range of complex matters and considerations. I am most grateful to both committees for doing so.

None the less, I disagree with the implied role that Parliament—the legislature—should play in the matters addressed in this Bill. I urge the Government to capitalise on the work of departments for the dashboard and submit the list to Parliament, indicating which will be adopted into or adapted for UK law, and which will go. That would bring reassurance and make for greater transparency. It may also help noble Lords to engage in the sifting process, on which they will be paramount. However, there is a danger of seeing legislative scrutiny as an end in itself rather than as a means to holding the Executive to account. That has not changed. If the Government fail to command a majority in Parliament, their days are numbered.

For over a century, there has been debate about the relative significance of the relationship between the people of this country and their Government, on the one hand, and that with their Parliaments, on the other. Dicey alluded to this in 1910, as did Lord Hailsham and Tony Benn in 1978, and that debate has continued, having been given a tremendous boost by the referendum. My view is that, on the matter of retained EU law covered by this Bill, the Executive have direct authority to act. They were given it in December 2019 by the electorate, who made clear that they preferred to deal with the Executive, the Government, who appealed to them directly over the legislature, which had appeared to ignore the decision of the referendum more than three years earlier or to obstruct its execution.

On all three grounds therefore—political, practical and constitutional—not only do I support the Bill’s approach but, for the reasons given, I ask my noble friend the Minister to accept that there are also grounds for moving more rapidly to advance the extension date in Clause 2 to within striking distance of the lifetime of this Parliament.

[Lord Hamilton of Epsom (Con)]

My Lords, I support my noble friend in her amendment. I take the view, as the Committee well knows, that if you give the bureaucracy longer to implement all of this, it will use the time. Therefore, the shorter the time we can make it, the better.

I ask my noble friend the Minister whether he considers the fact that the sunset clause is operating at the end of this year as almost the sole reason we now know roughly how many bit of retained EU legislation there are. If the sunset clause had not been in there, I do not believe that the bureaucracy of this country—pace the noble Lord, Lord Wilson—would have come up with the answer at all.

Retained EU Law (Revocation and Reform) Bill

Baroness Lawlor Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I put my name to this amendment from the noble and learned Lord, Lord Hope. I will address the question—or possibly accusation—from the noble Lord, Lord Pearson, head-on: I voted for Brexit, because I support policies designed to give the UK more freedom to operate in the world without the inhibitions that came with our membership of the European Union.

One of the reasons for my voting for Brexit was that I wanted to make some attempt to reduce what I saw as the marginalisation of the UK Parliament—that it was, under the system then prevailing, more or less reduced to a cipher, as my noble friend Lord Hamilton pointed out. My noble friend the Minister has made some significant changes. I, like other Members of the House, thank him for that. A lot has happened in the last few days and it might be that I have not understood fully what he is proposing and its implications, but as I read it at present it does not seem significantly to enhance Parliament’s power.

I have one more reason why the House needs to be extremely careful about this matter. We are entering a brave new world in which, for better or for worse, we have greater control over our legislative process. This Bill could create a dangerous precedent as to how, in this brave new world, the Executive feel able to treat the legislature—the two Houses of Parliament.

For the rest of my remarks, I will briefly probe a little deeper the thinking behind the Government’s approach and the level of parliamentary scrutiny of and involvement in the Bill. One of my last tasks before I handed over the chairmanship of the Secondary Legislation Scrutiny Committee to my noble friend Lord Hunt of Wirral at the end of January was to sign off the committee’s report on this Bill, which the House may recall was entitled Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. The Government are required to provide a response to the recommendations made in reports from your Lordships’ House, and they have done so. I am extremely grateful to my noble friend and his officials for the extensive and detailed 10-page reply. However, it is dated 10 May—last Wednesday—so again, if I have not been able to absorb the full implications of what he is saying, I stand ready to be corrected when he comes to reply.

There are two specific points that I would like to draw to the House’s attention. The first is in paragraph 31 of our report and touches on the point made by the noble Baroness, Lady Andrews. We lay out a reason as to why, even if

“a definitive list of the relevant law were eventually compiled in time”,

the House would be insufficiently informed unless something was said about the “individual piece” of legislation; to produce a list is not the same.

The Government’s response was:

“The Schedule approach means that a definitive list of REUL to be sunset has, in fact, been compiled. This Schedule is subject to parliamentary debate and approval”.


My concern is that the House approving the schedule—the long list of 600 or so SIs—is affording only the most tangential level of parliamentary involvement and approval. Do I assume that in giving my approval to the schedule I am automatically endorsing every one of the constituent SIs, or do the Government intend to bring forward an explanatory note on the reason for including each individual regulation on the schedule, many of which I agree are probably quite trivial, to be considered by both Houses? Without this, Parliament has no real understanding of what it is approving, and it is this uncertainty that makes the amendment moved by the noble and learned Lord, Lord Hope, so important.

My second and final point relates to the recommendation made in paragraph 33. Our report said:

“It is generally acknowledged that the scrutiny of secondary legislation falls very far short of the scrutiny afforded primary legislation. Downgrading the status of direct principal retained EU legislation so that it can be amended by ‘ordinary powers to amend secondary legislation’ … means therefore a corresponding downgrading of effective parliamentary scrutiny. Suggesting that this will have the advantage of saving parliamentary time does not make the Government’s justification for this change any more persuasive. It is a matter for Parliament to decide how it should use its time”.


The Government’s response is:

“The Government disagrees that the scrutiny of secondary legislation falls short of the scrutiny of primary legislation. The scrutiny procedures for secondary legislation are long standing and are endorsed by Parliament during the passage of legislation”.


I find this continuing government assertion that the scrutiny of secondary legislation is equivalent to that of primary legislation astonishing—jaw-dropping, to be frank. My noble friend’s letter says that the scrutiny procedures for secondary legislation are long-standing, and he is right, but those long-standing procedures were designed for an earlier age when Governments used secondary legislation for what it says on the tin: to deal with issues of secondary importance and avoid gumming up the legislative machine. But successive Governments have used secondary legislation to pass into law—law that applies to every one of us—decisions too important to be left to secondary procedures with their “take it or leave it” unamendable approach. As I have said before, if the Government want to take a little they have to give a little, and so far the Government appear unable or unwilling to do this.

My concluding remarks are these: Parliament will stop this continuing shift in the balance of power towards the Executive and away from the legislature only by constantly explaining how fundamental to the health of our system of government it is, no matter how difficult, embarrassing or controversial it may be to do so. That is why it is essential that the House supports the amendment moved by the noble and learned Lord, Lord Hope.

[Baroness Lawlor (Con)]

My Lords, I thank my noble friend the Minister for explaining so fully his amendment to the Bill. I am slightly saddened on two counts. First, I wish the list he provided in the schedule was a little more ambitious and extensive in the number of regulations and rules included. Secondly, I am saddened by the response of some Members of your Lordships’ House.

I particularly oppose Amendment 2. The idea that there is an initial committee is hardly more than camouflage, because the committee is charged with putting any but the most negligible changes to both Houses.

The subsequent requirement in the amendment that a majority of both Houses has to approve the removal gives, in effect, the power of veto to an unelected Chamber, in a way that goes contrary to the constitutional arrangements of a democratic country whose voters explicitly chose withdrawal from the EU and its laws, at the referendum and again in 2019. They voted overwhelmingly for a government pledge to carry out that mandate. The Executive have a mandate—a direct mandate—from the electorate to end EU law. That mandate must be respected, and must be respected by this House.

A much more extensive arrangement was put to the House of Commons, which passed at Second Reading by over 60 votes. I am very concerned that this House will, yet again, obstruct the will of the people, expressed in 2016—

[Noble Lords]

Oh!

[Baroness Lawlor (Con)]

I am sorry, my Lords, but it was clearly expressed, and it was expressed again in 2019. A mandate was given to the Executive to remove EU laws; it was not given to this Chamber to hold it up.

[Lord Hendy (Lab)]

My Lords, I doubt very much whether the will of the people was to remove the rights of working people. I doubt very much whether those who voted for Brexit voted to remove the rights and entitlements that they had inherited from EU law.

I too support the amendment in the name of the noble and learned Lord, Lord Hope. Last Wednesday, 10 May, to which the noble Lord, Lord Hodgson of Astley Abbotts, referred a moment ago, was a busy day for the Government. On that day, in the other place, the Secretary of State for Business and Trade made a Written Statement about this Bill, pointing out that amendments would be tabled to it. At the end of the Statement, she said:

“As part of this drive for deregulation, today I can announce that we will make improvements to employment law which could help save businesses around £1 billion a year, while safeguarding the rights of workers”.—[Official Report, Commons, 10/5/23; col. 16WS.]


And she gave some indication of what those changes might be.

On that same day, the Department for Business and Trade also published a booklet called Smarter Regulation to Grow the Economy. From the last couple of pages of that we learn what is in the Government’s mind: first, the requirement under the working time regulations to keep records of hours worked is to be removed. How businesses and their workers will be able to ensure compliance with the remainder of the regulations was not explained. Secondly, eight days of UK holiday are to be added to the 20 days of EU holiday for workers; but, it appears, this may result in economic loss, as the days allowed by the EU are paid on a different, higher basis than the UK days. Thirdly, rolled up-holiday pay—a technicality of employment law—is to be permitted, but the effect is to remove what was introduced as a protection for workers. Fourthly, the obligation to consult over redundancies is to be removed for small businesses.

Those changes are not very great, although they may be significant for some. In the vast number of amendments to this Bill that have been tabled—in particular, the 600 pieces of EU-derived legislation identified by the Government for removal or partial removal—I have looked at where those weakened employment rights are to be found. They are not there. The reason they are not there is that they will be introduced by statutory instrument after the Bill has become law.

We in Parliament need the chance to scrutinise what will otherwise be a constant stream of statutory instruments removing and weakening workers’ employment rights and health and safety at work rights. That is why I support the important amendment from the noble and learned Lord, Lord Hope.

--- Later in debate ---

[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.

[Baroness Lawlor (Con)]

My Lords, Amendment 15 is modelled on the amendment proposed earlier to Clause 1. As noble Lords who have put the amendment have said, this is to enable Parliament, not the Executive, to have the final decision. It may seem strange that I oppose that, but I do oppose it, because it makes the assumption that, in general, EU rights, powers and liabilities should remain after our withdrawal, unless a specific decision is taken in each case to remove them. On the contrary, the decision at the referendum, confirmed in 2019, was to leave the EU and leave behind its rights, powers and liabilities. Moreover, the House of Commons has voted in favour of Clauses 4(1) and 4(2).

Rather than a defence of parliamentary power, about which noble Lords have spoken very eloquently, this will or may appear a rear-guard action to retain binding links with the EU system of law, despite the decision. To repeat again what I said on the amendment to Clause 1, a direct mandate was given to the Executive to end that legal system, and it is not for this House to obstruct that mandate any longer.

[Lord Hunt of Wirral (Con)]

My Lords, I shall say a brief word. Having taken over from my noble friend Lord Hodgson of Astley Abbotts of chair of the Secondary Legislation Scrutiny Committee, I would like to support his words and the words of my colleague, the noble Baroness, Lady Randerson, with regard to Amendments 73 and 74.

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 the new sifting mechanism. The committee had 10 days to report on those proposed instruments and, to the immense credit of the committee and of the talent of the staff concerned, it rose to that considerable challenge of meeting a demanding deadline under the leadership of my noble friend. But this was not an easy matter. In its report on the Bill, the committee warned that the task of sifting would be even more challenging under this Bill because of the potential significance and complexity of the instruments to be sifted.

During the debate in Committee, in which I participated in support of my noble friend, the Minister gave us some hope that he understood the persuasiveness of the case for extending the scrutiny period. Sadly, that was not to be, and the Government in their response to the committee’s report on the Bill said that they did not accept the need for the period to be extended. This is very disappointing indeed. As I said in Committee, the committee would not expect to use the full 15 days for every proposed negative instrument—far from it. What is being asked for 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.

I warned my noble friend the Minister that when he got back to the department, after his warm words in support of my noble friend and other noble Lords who participated, people would tell him that it was impossible, because it would set a terrible precedent—and I think that that is probably what happened. I would ask him just to think again, because I do not think that it sets a precedent at all; it is a unique occasion. If the Government are to demonstrate their support for effective parliamentary scrutiny—and, in particular, effective use of the sifting mechanism—I would urge him to think again and accept these amendments.

Retained EU Law (Revocation and Reform) Bill

Baroness Lawlor Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to follow my noble friend Lady Noakes on this issue, and I am delighted to have had the opportunity to support her by adding my name to the amendment. Noble Lords will remember that during the passage of the EU withdrawal Bill there was a great deal of discussion about whether this House sought to gain for itself executive powers—that is, to become the Government in directing government policy with respect to the withdrawal Act and exiting from the European Union, rather than performing its proper constitutional role, which we all concede is effective scrutiny and oversight.

This amendment is a helpful compromise in seeking to direct Ministers, the Government and the Civil Service to a place where we can all agree. I am sure that noble Lords who earlier this week supported Amendments 2 and 4 and spoke to Amendment 76, which I gather later today we are likely to divide on, will welcome this amendment—you need congestion charging on the road to Damascus, because the traffic is quite heavy at the moment. Those who were happy to turn a blind eye to the huge corpus of EU legislation from 1973 to 2020 are now praying in aid the importance of scrutiny and oversight. That being so, this is a good vehicle to give effect to that, particularly the need for periodic reviews of the Government’s progress on the dashboard.

As I made clear when I spoke earlier in the week, people are watching how this House and the Government ensure that the decision they made in 2016 is given proper effect. While I understand that this House cannot instruct the Government, this is a good way of achieving compromise. I expect a majority on all sides of the House to give my noble friend’s amendment their strong and emphatic support, and I fully expect, since the Minister has an opportunity so to do, an amendment to be laid at Third Reading that consolidates this amendment. If that is possible, I think there will be a strong consensus as the Bill goes forward. In the meantime, I strongly support the amendment and I hope noble Lords will give it their support.

[Baroness Lawlor (Con)]

I have added my name to my noble friend Lady Noakes’s Amendment 51A, and I would like to follow on from what she has said. It is important that the legislative momentum for sunsetting, removing or revoking EU legislation be kept up. The reporting requirement on the Government will, as she said, keep up the momentum and help the Government and indeed Parliament to keep track of what has gone, what is yet to go and how further regulations, if any, will be modified.

There is a very good reason for doing this, and it relates to cost. Ultimately, it is people who bear the costs, either through what they pay for goods and services or through their taxes for government compliance costs in dealing, as now, with two systems of law: EU retained law and our own common law.

I hope the reporting requirement will enable us all to know where we are going and help us keep track of getting rid of that which the Government have pledged to get rid of or modify where necessary. That is very important in the interests of efficiency, for everyone, not just businesses. It is also important for transparency. Not only does regular reporting help the momentum; it will make for fairness so that we are all clear about the rules. I hope it will mean greater prosperity, which we need to encourage. In my view, we need to move back more thoroughly to our common-law system, and that is something on which I hope to touch when we consider the next group of amendments.

[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.

--- Later in debate ---

[Baroness Lawlor (Con)]

My Lords, I shall speak to Amendment 64 and the other amendments in this group. I am grateful to my noble friend the Minister for the amendment, which, as far as I can count, includes around 120 pieces of subordinate legislation. I welcome it on the grounds of principle and practice.

In practice, it is important to end the limbo between two legal systems for cost, compliance and otherwise. Moreover, there are other good reasons for doing so. The uncertainty of the EU’s codified arrangements, adopted or absorbed into our own laws, results in two overlapping systems that add cost and compliance burdens to all concerned and, I am afraid, often lack clarity. I hesitate to mention such arrangements in your Lordships’ House, given the presence of so many eminent members of the judiciary, but perhaps I might do so as an ordinary person who has had to have recourse to both systems of law.

In my experience, our law is clear; it gives people the power to seek a remedy where another party breaks the law to our disadvantage. Under the European system, of which I have also had experience, despite its code-based arrangements and its precautionary principle, which seeks to cover every eventuality, not only does it sometimes fail to do so but there is often no remedy available to people or small businesses if a wrong is done to them. There are just more codes, more compliance, more directives and more consultations with the lawyers to be paid for, and little in the end to be done other than put up with it and hope it will be righted in due course.

For this reason, I welcome the sentiment behind the noble Baronesses’ proposals in their carve-out amendments on the National Emission Ceilings Regulations and the Water Resources (Environmental Impact Assessment) Regulations. I am very sympathetic to their aims and have spoken on that in earlier debates. However, I am sceptical as to whether this is the best way of achieving such aims. I believe it is important to respect our own laws and have greater confidence that the principles on which they rest will reflect the interests of the people in whose name they are made. This country is second to none generally in its commitment to caring for its environment and, having heard noble Lords talk about chairing the Woodland Trust and so on, it is clear that there is huge voluntary support for protecting our environment. I believe our own laws will reflect that interest and we really must get on with giving them a chance.

In the Environment Act 2021 and its impact assessment of December 2019, the principle is clear that the polluter pays. Yes, precautions must be taken and problems righted at source, but the polluter pays principle means that instead of victims, others are having to suffer the consequences. Rather than the polluter being penalised, other people would have to suffer the consequences and pay the price, and I think that our system will be clear and fairer.

I am not sure, either, that the EU regulations covering emissions are necessarily effective. I draw on the historic case of the Volkswagen emissions scandal, when there were clear directives from 2008—updated in 2012—covering the emissions from cars. These were neglected or not enforced, and the knowledge that that was happening went right up to the Government. I am confident in our own system of law, and I think it does work.

I hate to disagree with such a distinguished civil servant as the noble Lord, Lord Wilson, but I am not going to take sides on the question of who is to blame for non-rapidity. I worked with the head of the German hospital division in the decade after the unification of Germany. The country was unified at the stroke of a pen, so it can be done. I only know about the health system there, not all the other areas such as the economy, where historic problems were inherited.

I welcome the commitment to revoke the legislation listed. I hope the noble Baronesses will put their trust in our own laws and give their energies to an aim which I share. It is important for a more effective system and for clarity and efficiency, so that people, businesses, charities and government departments know where they stand.

[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.

Retained EU Law (Revocation and Reform) Bill

Baroness Lawlor Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

[Lord Deben (Con)]

I say that to try to make sure it continues to be a good-natured debate. There is no doubt that many people who are not antagonistic to the Government do not want to rely on the excellence of the present Minister, but want to make sure that future Ministers do this job as he, I am sure, would hope to do it himself. Therefore, the question here is: given that we have doubts about the efficacy of the department most responsible for it—not because of our own concerns but because of the House of Commons Select Committee—and given that he will surely want other Ministers to follow him in the attitudes which he has displayed, would it not be more sensible to put this into the law, as indeed the Law Society itself has suggested? I think I am right in saying that every exterior independent body, including the Government’s own watchdog on this matter, agrees. I remind the House of my own interests, as declared in the register of interests: not only the things I do outside but also my chairmanship of the Climate Change Committee. I just feel that the world would be more assured that the kind of attitudes which we have heard from the noble Lord, Lord Benyon, for example, will be the attitudes enforced in the future. That is all we are asking, and I do not quite understand why that is unreasonable.

[Baroness Lawlor (Con)]

My Lords, I listened with great interest throughout Committee to the noble Lord, Lord Krebs, and his very reasonable and constructive proposals for protecting our environment. But it is time to move on to UK law, which is more transparent and will save the taxpayer the cost of having to pay for a dual system of EU and UK law. Yes, we are already committed by international obligation to our international treaties, but it is ironic that many of the problems which we hear considered have arisen under this dual system of arrangements. I am afraid that I will not support the noble Lord’s amendment. I hope the Government will get on with it, and we will move to restoring UK law over this vital environmental sector so we can all have the protections we need for the environment and hold the Government to account.

[Baroness Hayman of Ullock (Lab)]

I thank the noble Lord, Lord Krebs, for bringing this amendment forward and assure him of our full support. We heard from him that, in response to comments made by Ministers on Report, the amendment has been altered to focus on enshrining a legal commitment to maintain existing levels of environmental protection, and that he has taken into account much of what was said during that debate.

One of the things that we debated is how much of the Bill has significant implications for environmental law and for many regulations of significant public interest protecting our natural environment and many aspects of our health so, as the noble Lord, Lord Krebs, said in his introduction, and others have said, it has been pretty disconcerting to hear the Government describe commitments to maintain existing levels of environmental protection as burdensome. I find that quite shocking. We know that there is wide-ranging support for an environmental non-regression principle. Amendment 15 would give legal substance to what Ministers have been saying they want to achieve. In fact, in his introduction, the Minister said that the Government are committed to maintaining high environmental standards; the noble Lord, Lord Benyon, said that; and the Minister in the other place, Trudy Harrison, said that. However, as a matter of law, just because somebody says something provides no assurances or protections and, however welcome it is, it cannot bind the hands of any future Ministers, as the noble Lord, Lord Deben, has just said.

The noble Baroness, Lady Jones, mentioned concerns that some regulations that we need may well be lost. I want very briefly to give an example, which is the intention to remove some items relating to the national air pollution control programme—the NAPCP. Removing the obligation to draw up and implement the programme strips away any clear duty on the Government to show how they will reduce emissions in line with their legally binding emissions targets. The Government say that by repealing this item they can better focus on what will help clear the air, such as delivering on the targets set in the Environment Act. In this debate, the Government repeatedly cite the existence of the Environment Act as the reason why such amendments are not necessary, and no doubt the Minister will repeat that shortly. However, if we look at Regulation 10 of the National Emissions Ceilings Regulations 2018 and the associated implementing decision, we see that the Government are clearly required to consult the public as part of the process of preparing and revising the NAPCP. This is in stark contrast with the approach they took with the revised environmental improvement plan earlier this year where there was no public consultation, very limited stakeholder engagement and limited transparency over which stakeholders were contacted—yet the Minister in his introduction held the EIP up as something to which we should aspire. Given that there is currently no provision in the Environment Act to require any public consultation in relation to future revisions of the EIP, how will the Government ensure that the public do not lose their ability to contribute and to have their say?

I also want to look at some of the powers in the Environment Act and how they are constructed. For example, it includes a non-regression commitment in respect of one piece of REUL, the habitats regulations. This empowers the Secretary of State to make regulations to amend part of the habitats regulations

“only if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations”.

So I consider it relevant in today’s debate to look at why the Government opted to include this non-regression safeguard in law.