Retained EU Law (Revocation and Reform) Bill

Baroness Ludford Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Williams of Trafford (Con)]

My noble friend is making a statement. He is not asking a question, and we should let others get on with their one speech.

[Baroness Ludford (LD)]

My Lords, these are rather strange goings-on.

From these Benches, we support all the amendments in this group and I thank the noble and learned Lord, Lord Hope, for introducing them. If he chooses to test the opinion of this House, we will support him on Amendment 15 and, later, on Amendment 76.

Rather like group 5, which we will come to later and is about the powers of courts, this group is about trying to introduce some legal stability and certainty into what has been a bumpy process for this Bill. One could say that the Bill is no way to run a whelk-stall. As my noble friend Lord Fox said, we did get some explanations for the measures to be revoked in the schedule, but it was only just before—or just after—we started to debate Clause 1, and we only got the amendments to the Bill four days ago. It has been a bit of a rollercoaster, and any effort to introduce some certainty and predictability is to be welcomed.

I will speak exclusively to Amendment 15, which is very important. The Government may be retaining a lot more EU law, but they have insisted—indeed, the Minister keeps repeating that they are proud of this—on playing fast and loose with the way that retained EU law will be interpreted, such as ending the much misrepresented supremacy of EU law and the general principles which guide it, as well as EU rights, which this amendment is particularly about. It is quite a mystery as to how the retained law is to be interpreted.

No one, least of all the Government, knows what the impact of this abolition will have on legal certainty and continuity. Mr Jacob Rees-Mogg’s flippant response that “life is uncertain” was typically unhelpful. Can the Minister tell us what assessment the Government have made of the loss of any interpretive effects in the measures to be revoked? What effect will abolishing any interpretive effects in the revoked list have on laws which are retained and assimilated? Are the Government going to put interpretative effects back into SIs on amended, restated, retained and assimilated law, and how will that work? I hesitate to say that it could come back by the backdoor because, quite honestly, any retention could well be helpful to lawyers, the courts and so on. At the moment, we just do not know and are in considerable uncertainty about what the Government’s regulatory intentions are.

We know from Clause 16, which we will come to later, that the Government do not want to increase regulatory burdens. Some of us are a little wary of their definition of burden. According to the smarter regulation document of last week and the consultation on employment law, which I think came out on Friday, it includes the burden of recording working hours, which is odd, and calculating holiday pay. All of that could have a considerable impact on quite a lot of people.

The Government also want regulators to have a growth duty, to

“prioritise growth alongside … their core functions, such as protecting consumers or our natural environment”.

Indeed, they have cited Ofwat, Ofgem and Ofcom in this context. Some of us are a bit concerned that, particularly in the water industry, regulators have already given too much leeway to water companies’ growth, particularly in dividends and bosses’ pay—though perhaps not so much in sewage treatment capacity. There is quite a lot of concern about how all these regulatory intentions, which we are finding in statements and consultation documents, fit the professed commitment to maintain higher standards—I think the noble Lord, Lord Hendy, mentioned this earlier. But if higher standards are kept, particularly those which derive from EU law, how are they going to be interpreted? Some clarity from the Government would be very desirable this afternoon.

[Lord Hamilton of Epsom (Con)]

My Lords, I added my name to Amendments 15 and 76. Amendment 76 is in the name of the noble and learned Lord, Lord Hope. This, of course, is what puts meat on the bones of the whole business of restoring parliamentary sovereignty. It is very important that we get back the sovereignty of Parliament, and this is a great opportunity to do it.

There has been a steady erosion, as my noble friend Lord Hodgson has commented, in which statutory instruments are being used to a greater extent. This merely moves power from Parliament to the bureaucracy of this country. This is not a situation that any of us should welcome. If we want to restore our democracy, we should have a Joint Committee of both Houses to look at this legislation. It is very important that we concentrate on the future of this country and of our Parliament and start to restore some of its influence in the world today.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, this is an entirely different group. Amendment 18 deals with the provisions relating to the role of the courts in reforming our law in the light of our withdrawal from the European Union.

This group contains various amendments in my name, which fall into two parts. Both relate to the provisions of Clause 8, which is designed to deal with the subject matter that I just mentioned. The first part—Amendments 18 to 29—is concerned with the role that the courts will play in reforming our domestic case law as we depart from retained EU case law. The second part—Amendments 30 to 34—is concerned with the role of the Lord Advocate in the making of references to the courts on points of law regarding retained case law. The noble Lord, Lord Anderson, has kindly added his name to my amendments in the first group but, for reasons that I can well understand, he has not gone that far in relation to my amendments about the Lord Advocate.

I can be very brief about the first group because the Minister has now added his name to two of my amendments in it, for which I am grateful; these are Amendments 24 and 27. He has also added two consequential amendments of his own.

My amendments were designed to do two things. The first was to simplify the work of the courts in this potentially difficult area and preserve legal certainty. The second was to give the courts a discretion to decline to accept a reference by a lower court or tribunal on retained case law in place of the obligation to do so, which is what the Bill currently provides. The obligation was an obstacle to efficiency in the running of the courts. It never made sense for the senior courts to be so encumbered by worthless or unnecessary references as to be unable to conduct their business in the way they would wish to do.

I am very pleased that the Government have now accepted that the senior courts should have that discretion and that, in the Bill as currently drafted, “must” should be changed to “may”. It means that good sense has prevailed and that the courts will not have to accept a reference on points that have already been decided or would be better dealt with under another reference that is already pending or one that has no reasonable prospect of success. That is extremely helpful; I know that, for his part, the President of the UK Supreme Court is also grateful to Ministers for making that concession.

The Minister has not gone as far as I would have liked on my other amendments, but I am not going to look a gift horse in the mouth, if I can put it that way, so I will not press those amendments.

As for the second group, relating to the role of the Lord Advocate, the Lord Advocate has written to the Secretary of State more than once to explain her concerns, which I have tried to capture in my amendments. She is seeking parity with the UK law officers in the exercise of the functions to which this clause refers. Her point is that her role is not thought to be a political one in furtherance of Scottish government policy; nor should it be thought that she exercises her role collectively with the Scottish Ministers. She values her independence, which is crucial to the position that she occupies as the senior law officer in Scotland.

I do not think that it would assist the House if I were to develop these arguments further now, but I would be grateful if the Minister would undertake to ask the Secretary of State to look at this issue once again, one more time, so that a proper balance can be achieved. I beg to move.

[Baroness Ludford (LD)]

My Lords, I will be brief. I lend the support of these Benches to the important amendments from the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Anderson of Ipswich. They might seem perhaps a little specialised, but they are extremely important. There might not be any intention to press any of these amendments to a vote, but I do hope that the Government will see their way to taking on board more than they have already in the two amendments from the noble Lord, Lord Callanan.

These amendments are about trying to remove threats to legal certainty and therefore to increase legal certainty, respecting the courts and their ability to run their business efficiently and removing the peril of the court being asked to venture into political and policy matters. We know about the flak to which the courts have been exposed—including, it has to be said, not being defended by the person in government who should have defended them.

It therefore seems perverse that the Bill, as drafted, would increase the likelihood of the courts being exposed to being hanged, drawn and quartered, as we have seen on the front pages of certain newspapers at various times. So there is a desire to get more predictability and certainty into the law, and more discretion for the courts to run themselves as they see fit and not have to do things that would get them into shark-infested waters. So, even though it seems that these important amendments will not be determined by the House today, I hope that the Government will reflect before Third Reading and see the wisdom behind them.

[Baroness McIntosh of Pickering (Con)]

I am sorry to speak out of turn, but I entirely support all the amendments in this group. In particular, I endorse the plea of the noble and learned Lord, Lord Hope, on the status of the Lord Advocate. Could the Minister clarify, either at this opportunity or at a later stage of the Bill, the points that the noble and learned Lord made, because it would not be acceptable for the Lord Advocate to be treated differently from any other law officer in the land?