Retained EU Law (Revocation and Reform) Bill

Baroness Ludford Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, the noble Lord, Lord Hacking, might understand that there are lots of things that the Liberal Democrat Benches might want to achieve, but, unfortunately, we cannot do things on our own and we need rather considerable support from other Benches.

We have heard some very eloquent and forceful criticisms of the Bill. I commend all those speeches, not only but especially from my own Benches. I am sorry that I lack time to react to most of the speeches I appreciated, though that of the noble and learned Lord, Lord Judge, has to be a witty exception. I will nick the terms used by the noble Lords, Lord McLoughlin, Lord Hannay and Lord Cormack, and the noble Baroness, Lady McIntosh, respectively: “all powers, no policy”, “scrappage scheme”, “constitutional monstrosity” and “the gift that keeps on taking”.

I warmly congratulate the noble Baroness, Lady O’Grady of Upper Holloway—we come from the same borough—on her maiden speech. She adequately and expertly refuted the assertion, made by the Minister a couple of times in this Chamber in the past fortnight, that UK employment law owes nothing to EU law. She is a very valuable addition to this House. I also welcome the noble Baroness, Lady Bray of Coln. I hope that she did not learn the wrong things from Ken Livingstone.

The contribution of the noble Lord, Lord Heseltine, reminded us how un-Conservative, and certainly un-Thatcherite, the Bill is, with its revolutionary approach to eradicating at a stroke EU laws crucial to business, as well as to unions and many other aspects of life. He rightly warned that any potential investor would be deterred by “a giant question mark”.

Only a few voices—was it 10? I did not count quite that many—were raised in fervent support of the Government. Otherwise, we heard from across the House, as we are hearing from commentators and interested parties outside, that the Bill is extremely unwise, ill considered and reckless. I do not know of anyone outside a rarefied circle of cheerleaders—that is, anyone sensible and reasonable, even for a Conservative—who thinks the Bill is a good idea. Can the Minister cite anyone?

Stephen Kon, competition lawyer at law firm Macfarlanes, said that it is hard to think of a piece of legislation that has been so broadly and deeply criticised. The Hansard Society says that the Bill’s approach to REUL is “fundamentally and irresponsibly flawed”. Journalist Peter Foster—from that woke, left-wing rag, the Financial Times—has said that this Bill

“is a reminder that the outwardly sensible Sunak government still comes with some pretty crazy baggage”.

The distinguished legal commentator, Joshua Rozenberg, has called the Bill “dangerous”. The experienced George Peretz KC says:

“Fiddling around with the law when you don’t know what the consequences of the fiddle are is not obviously a good idea”


and suggests that

“if you don’t know what the effect is of what you are doing, don’t do it”.

Sir Jonathan Jones KC, former head of the Government Legal Service, says

“it’s a very bad way to legislate”.

The Bar Council, as others have quoted, says that the Bill

“will damage the UK’s reputation for regulatory stability, predictability, and competence on which growth-promoting investment in critical sectors of our economy depends”.

As has been much quoted, the independent Regulatory Policy Committee of experts red-rated the impact assessment for the Bill as “not fit for purpose”. The chief executive of Wildlife and Countryside Link said that scrapping environmental laws would be “legislative vandalism”.

Noble Lords get the picture. But after director-general of the CBI, Tony Danker, said the Bill risked uncertainty and chaos, the Minister last week breezily brushed aside the fears of the boss of UK’s top business organisation as wrong. We are well beyond the era when the Tory party even claims to be the party of business. It has just gone rogue. This Bill is not some arcane or obscure exercise. It will affect substantive law and thus businesses and all kinds of organisations in the many fields already cited in this debate.

I will say a word to those complaining that this Parliament had no ability to block or amend legislation once it was agreed in Brussels. It was a supranational organisation, as has been said. Please remember that democratically elected MEPs and the UK Government made the decisions on the legislation, not in fact the European Commission, apart from some regulations about sheep meat prices or something. Of course, many of us in this Chamber are former MEPs.

The UK was rarely outvoted in the Council, and if there was a gap in UK parliamentary scrutiny, that was a failing of Westminster, since other national Parliaments, such as the Danish one, insisted on full accountability from their Governments on what they were agreeing to in Brussels. Indeed, they had a veto on what their Government did. I am sorry: do not blame Brussels, blame Westminster.

These are just some of the objections to the Bill. The huge legal uncertainty created will be very damaging. Businesses, workers, consumers and citizens are in the dark. Even lawyers, who might be expected to relish all the work coming their way, are quaking in their boots. The Government have no idea of how many instruments the Bill will affect; there is indeed no guarantee that all retained law subject to its provisions will be identified.

There will be very considerable legal confusion. For instance, no one knows what removing the supremacy, direct effect or general principles of EU law will mean. The meaning not only of regulations but of primary legislation, such as of the Equality Act 2010—already the subject of huge controversy—will not be the same next year as this. As our Delegated Powers Committee says, the Government

“need to explain what is behind the headlong rush and the impending and arbitrary end-of-year deadline”.

Can the Minister give the committee, me and others who have quoted this a coherent reply?

Where regulations are restated, previous judgments relating to these instruments would no longer be binding; workers and employers would be back at square one, and issues will have to go through the judicial system again, with all the length and expense of that process. The noble Lord, Lord Callanan, confirmed this in his opening speech, though he seemed to think it was a good idea. If lower courts are able to reject ECJ decisions, this may precipitate more—even opportunistic —litigation by some less reputable companies.

What happens if there are errors, either because the hard-pressed Civil Service, with its high turnover of staff, has perhaps lost its institutional memory and misses something, or if a regulation is accidentally switched off at the end of 2023? Is the Civil Service adequately resourced for this exercise? BEIS has said it needs 400 extra staff: what a waste when Whitehall faces so many other pressing issues.

The Government’s proposed wholesale deregulation—a slash and burn exercise—gives stakeholders no chance to say what should be kept. This is sweeping away the European Union (Withdrawal) Act 2018 settlement which took a long-term approach, allowing departure from EU law over time and after consultation. The Government made a political commitment during the passage of that Act that, aside from technical tidying-up, primary legislation would be needed to make significant policy changes. This Bill breaks that pledge. It is simply anti-democratic and authoritarian in conferring massive powers instead on the Government. The Delegated Powers Committee called it

“a blank cheque placed in the hands of Ministers”,

as others have quoted.

The unexpected consequences of kicking out the EU undergirding of UK law could be very perverse and damaging, with what is left lacking legal coherence. In the field of construction, the Building Safety Act 2022 is premised on definitions in a set of 2015 regulations—the Construction (Design and Management) Regulations —implementing an EU directive and creating a framework for health and safety in construction. Unless these regulations are kept switched on, the 2022 Act of Parliament will have its underpinning yanked away. What then exists?

In employment rights, despite what the Minister has recently claimed, there are many topics for which EU law is the bedrock, even if added to—or gold-plated—in UK law, since, after all, EU law always only provided for minimum, not maximum, standards. Parental leave had no basis in UK law before the EU legislated, and it could be entirely removed or drastically altered by the Bill.

Many of the regulations affected are in areas of devolved competence. My noble friend Lady Randerson and others eloquently explained the harmful effect of this Bill on the devolved Administrations. Others have talked about the consequences for Northern Ireland and for the level playing field provisions in the trade and co-operation agreement—which, if we break it, could lead to trade retaliation. Will the Minister tell us about that?

To conclude, if, as the Government claim, there are real regulatory gains from altering retained EU law which could be agreed with or not, there are much better ways of doing that that have already been identified by this very Government, as others have said. The Financial Services and Markets Bill, which was quoted by the noble Lord, Lord Anderson of Ipswich, makes provision for an extensive new regime which has already been subject to considerable consultation. The Procurement Bill brings in new rules on that topic, and then there is the review led by Professor Sir Patrick Vallance to examine EU regulation in high-growth sectors. However, primary legislation and expert reviews require real, careful work, not a simplistic, arbitrary and ideological presumption that EU law must be slashed. They need Bills to be brought forward asking Parliament to legislate with democratic input from MPs, but also input from affected stakeholders of all kinds.

In short, this is a very bad Bill that does not deserve a place on the statute book—certainly not in the form in which it is now before us. The Minister referred in his opening speech to good governance. I think we would like to see some.