Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, we recently celebrated the third anniversary of Brexit and it is indeed the gift that keeps on taking: taking control and scrutiny away from Parliament, effectively passing it to unelected officials in the Civil Service, and taking certainty, confidence and competitiveness away from businesses. The whole thrust of the debate today is what assurance is there that key protections that we have achieved will remain on the statute book and that there will be no gold-plating. I play tribute to my noble friend Lord Heseltine, who single-handedly eradicated gold-plating from the transposition of a very innocuous directive, such as the toy directive, into the home-spun rules of our home civil servants.

The dashboard is very difficult to navigate. It is a moving feast, but we know that there are some 1,780 Defra proposals. I pay tribute to the Defra officials who spent the best part of two years transposing farming, environment and other regulations into UK law at some considerable speed and therefore had to return with corrections. I do not blame them for that, but that shows us what the expectations will be with an even more limited timetable before us in the Bill.

As others have mentioned in the debate, the dashboard does not cover all retained EU laws agreed by the devolved Administrations, so it is no wonder that the Welsh and Scottish Administrations have withheld their consent from the Bill. Now, with a sweep of the pen, all that we have achieved over years of transposing and passing into UK law these protections is going to be rolled away purely as a result of a political decision to achieve this arbitrary timetable before the next election.

I would like to judge the Bill before us this evening by the extent to which at the end of this process we will still be able to export and import, which we were told would not be jeopardised as we would have frictionless trade through the trade and co-operation agreement. I have been contacted by businesses I worked with 30 years ago and longer as a Member of the European Parliament in the food and drink sector, chemicals and, in particular, the cars and vehicle sector. We have identified a change in policy direction moving away from a functioning statute book to a period of tremendous uncertainty. No one in the debate this evening disagrees that the statute book should be kept under constant review. I think that all who have spoken expressing caution about the Bill are concerned about the manner in which the statute book is to be maintained. Parliament will not be in the driving seat; it will nominally be Ministers, but I would say unelected officials. What evidence is there that there has even been a proper consultation of all the interested parties affected, many of whom have been represented in their concerns being voiced today? I urge my noble friend and the Government to be prudent, drop any arbitrary deadline and seek to give a measured response where we can pay tribute to those who have expressed their concerns.

To the extent that we can still export and import, I have been contacted by those in the car sector who are concerned that we have only recently agreed type approval regulations. For chemicals, we have only recently agreed the UK REACH regime, and for the food and farming sector, animal health safety and welfare have featured largely this evening.

In conclusion, while my noble friend and I are on different sides of the argument regarding Brexit, throughout our careers we have held business dear to our hearts. Will he say which part of the Bill promotes business and will help to facilitate exports and imports?

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

We have a process for those measures. Obviously, there is a lot of retained EU law. We are going through it very carefully. Departments are doing that and are working out what should be preserved, what should be amended and where there is duplication. As I said, there is a case for change, and I think that has been accepted on the other Benches. In some cases, there is parallel legislation, such as the Environment Bill, which has brought in new powers.

If I might turn to Amendment 3 in the name of the noble Baroness, Lady Brinton, I think she will be glad to hear that the European qualifications she refers to in the amendment do not, in fact, fall in scope of Clause 1. Therefore, this amendment is not necessary and, indeed, would have no effect. This is because the regulations concerned were made under domestic powers to come into force after the transition period and therefore do not fall within the definition of EU-derived subordinate legislation in scope of the sunset. The sunset captures only regulations made or operated immediately before the transition period for the purpose of implementing an EU obligation.

Turning to Amendment 4, I am sorry to hear about the noble Baroness’s coeliac condition. I remember developing special lines for coeliacs in my time at Tesco, which has been referenced earlier in the debate. We are in the process of reviewing retained EU law. The Government’s aim is to ensure that food law is fit for purpose and that the UK regulatory framework is appropriate for and tailored to the needs of UK consumers and businesses. A specific exemption for these regulations is not appropriate. The Government are in the process of analysing and assessing retained EU law to determine what should be preserved and what should be repealed or amended. That work will determine how we use the powers in the Bill. The UK has world-leading standards of food safety and quality, backed by a rigorous legislative framework. I know because I did the first Bill of this kind, the Food Safety Act 1990. It is only right that we should re-evaluate REUL to ensure that it continues to meet our needs.

I was asked about intention. The Government remain committed to promoting robust food standards nationally and internationally to protect consumer interests, facilitate international trade and ensure that consumers can have confidence in the food they buy.

[Baroness McIntosh of Pickering (Con)]

I have followed this debate, although I have not yet spoken in it. I would just like to clarify something. Is my understanding correct that Defra, or indeed any other department, could apply to have its own date for sunset clauses? If that is the case, what is the mechanism that would be used in terms of legislation? Also, when the Minister refers to food standards, what is the role of the Food Standards Agency in England and Food Standards Scotland to maintain them, not just for food in this country but to ensure that imported foods meet those standards under the revised legislation?

[Baroness Neville-Rolfe (Con)]

I will try to answer my noble friend’s question. Defra has a programme looking at all this. It needs to decide what to preserve and what might need to be amended. I think the Bill has some scope for extension from 2023 into 2026. Perhaps I could now move on to Amendment 17 in the name of the noble Lord, Lord Clement-Jones.

--- Later in debate ---

I know the noble Lord will say what he has said to me twice now: that the example Defra can give is the Habitats Regulations being amended by the Environment Act, which we have now passed, and the Levelling-up and Regeneration Bill which is now in your Lordships’ House. The reality is that nobody has ever done the read across from that suite of environmental law that these two Bills are allegedly supposed to replace. It would be good for it to be flagged when the House is talking about legislation that is intended to replace European law, because quite a lot of us were assuming the Environment Act was alongside environmental law. It would also be good to get that read across or map across of what is being brought over and what is not, before we agree any further legislation that claims to remove the need for environmental legislation under EU retained law. There is the solution; I hope the Minister is minded to change.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for introducing this group of amendments. I particularly associate myself with the amendments in the name of the noble Lord, Lord Krebs, supported by the noble Lord, Lord Rooker, for the simple reason that having confidence in our food is essential to the food and farming sector.

I spent five years in the other place chairing the Environment, Food and Rural Affairs Committee and perhaps one of the most difficult inquiries we had was that into the horsemeat scenario. As the noble Lord, Lord Rooker, said in speaking to the amendments before us, Amendments 30, 39 and 146 in particular, it could so easily have been not just a fraud and a scare but another food scandal. Humans could have been infected. I suppose it was a blessing that it was just one type of meat being passed off for a much more expensive type of meat.

I pay tribute to the work the Government did at that time in setting up the independent inquiry led by Professor Chris Elliott and its work to review Britain’s food system. Amendment 30 goes to the heart of the matter. I am not entirely convinced that the food checks we agreed to in the TCA are in place. We were told they are going to be introduced and I have discussed this with the Food Standards Agency; they are meant to be introduced completely this year.

Also this year, we are introducing unitary government in North Yorkshire so are merging the two key departments that look at this—environmental health and another department, the name of which will come back to me. I think the noble Lord, Lord Rooker, was right about the few local authorities that are actually conducting tests into the safety of our food, and whether the food is what it says on the label and is not a fraud.

Amendment 39, while it perhaps does not cover every single scenario as the noble Lord, Lord Krebs, said, goes some way to expressing why it is vital that the European regulations provide the food safety and hygiene to which we have signed up.

In summing up this debate, I hope my noble friend puts our minds at rest as to what that procedure is going to be and gives us an assurance that the noble Lords, Lord Rooker and Lord Krebs, have sought in this small group of amendments that those tests, which have stood the test of time, will continue to be place.

One of the recommendations—I do not know if it was implemented—from the report that looked into the horsemeat fraud in 2013 was that major retailers, and I think my noble friend did work for Tesco for a time, should conduct their own tests on a mandatory basis, not just the voluntary basis as it apparently is at the moment. I hope my noble friend updates us on the Government’s thinking in that regard.

My preference would be that phytosanitary checks take place at our borders. That is what we signed up to, and the food industry hopes that the Government can show that imported food meets the same tests and is as safe to eat as domestic food produced under our very high standards. In addition to them, regular checks should obviously be conducted. I do not know whether my noble friend has an update in response to the figures given by the noble Lord, Lord Rooker, on how many local authorities are actually doing checks that we require of them at this time. Is my noble friend convinced that they have the manpower and funding resources to ensure that this remains a priority? With those few remarks I lend my support to, in particular, Amendments 30, 39 and 146.

[Lord Hacking (Lab)]

My Lords, I sat through the entirety of the Second Reading debate—I missed only one speaker—and I have sat through today’s Committee, just missing, alas, about five minutes at the beginning of the session after lunch. I have been in receipt, as I am sure most noble Lords have been, of very strong criticism from those outside the House. For example, I had a briefing from Prospect which is central to the matters of this Bill because it covers inspectors from the Health and Safety Executive. It describes this Bill as “reckless, unworkable and undemocratic”. Without reading the reports, there has been severe criticism from the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee.

This has sorrowed me. I am sorry for the Government and am particularly sorry for the two Ministers who have been to the Dispatch Box. Indeed, if there is a third Minister to go to the Dispatch Box—she nods her head—I am sure that I will have sympathy for her. Look at the number of interruptions that the noble Lord, Lord Callanan, received when he was at the Dispatch Box, and it was the same for the noble Baroness, Lady Neville-Rolfe. Look at the blasts that came from the noble Baroness, Lady Meacher, and the noble Lord, Lord Wilson. The Ministers are safe from that at the moment because those noble Lords are no longer in their places, but there are further days in Committee, and I am sure they will come back and that the same blasts will be sent again to our Ministers.

I am sorry for the Government because they have just made a very simple mistake. They have sought to deal with European law the wrong way round. The right way round, as will be advocated later by my noble friend Lord Whitty, is to retain it. This is what happened in the European Union (Withdrawal) Act: it retained all EU law so that, when provisions of certain EU laws need adjustment, then adjust them, change them, scrap them; do what you like with them. That is the right way round. I have already expressed my reasons for being sympathetic to the three Ministers who are sitting on the Government Front Bench.

The sensible thing, having produced a Bill that is simply the wrong way round, is for the Government to withdraw it in a dignified way. I am sure all your Lordships would welcome that and would not seek to affront the Government in their modesty when withdrawing the Bill. It has happened before in my experience. In 1995, the then Conservative Government produced an arbitration Bill, which happened to be in my area of expertise. It was shown to members of the arbitral community, who told the Government that they had got it all wrong and that it was an atrocious Bill. The Government politely withdrew it. Then, under the noble and learned Lord, Lord Saville, a new Bill was brought—not disposing of the Bill, just starting again. The noble and learned Lord produced a report and a draft Bill that was perfect, and the Arbitration Act 1996 has been in operation ever since, to the great benefit of the arbitral community, which is now a very big community.

That is the simple thing to do. If the Government simply and politely withdraw the Bill, we will politely applaud them.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Benyon (Con)]

I entirely agree with the noble and learned Lord: it has to be specified. That is the work we are doing, and that is how we will decide whether we need that extension.

[Baroness McIntosh of Pickering (Con)]

Will my noble friend—

[Lord Benyon (Con)]

I want to make some progress.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

I understand that, but I have not spoken yet. Can I just ask: where is this going to be specified for our greater understanding? My noble friend said that it would be specified; where will it be specified?

[Lord Benyon (Con)]

In the work we are doing to assess each area of retained EU law, we will make an assessment of whether we are going to need some more time to do it. Your Lordships will be informed of that, and there will be the possibility of accountability being applied to it.

The noble Baroness, Lady Bakewell, also raised bathing waters in Amendment 11. We are committed to protecting and enhancing water quality. It is worth stating that in most places our bathing waters are better than they have ever been. Indeed, in 2022, 72% of our bathing waters met the “excellent” standard, the highest number since new, more stringent standards were introduced in 2015. In total, 93% of bathing waters in England were classified as “good” or “excellent” last year. We recognise that there are always ways that we can improve how we manage and regulate our bathing waters, and we will continue to explore how to take those forward, including through this Bill.

The noble Baroness also referred to the water environment regulations in Amendment 12. We are committed to protecting and enhancing water quality, and the Environment Act has only strengthened regulations since we left the EU. We have set legally binding targets for the water environment which cover pollution from wastewater, agriculture and abandoned metal mines and reducing water demand. In the Environmental Improvement Plan, we committed to restoring 400 miles of river through the first round of landscape recovery projects and establishing 3,000 hectares of new woodlands along England’s rivers. We are also aiming to achieve “good” ecological status in 75% of water bodies, as per the water framework directive regulations. I assure your Lordships that this Government respect the significance of the water framework directive, and retained EU law reforms will not come at the expense of our already high environmental standards.

To address the point that the noble Duke, the Duke of Wellington, raised—I mentioned this yesterday in a meeting, but I will repeat it for the record—hitting the water framework directive standards is an incredibly high bar. The average river in this country is divided into a number of reaches for the purpose of the water framework directive. Each one of those reaches has a range of different measures—which could relate to fish population, chemical pollution, or anything else—that would trigger a failure of that particular reach to achieve the “good” standard that is required under the regulation. It is a policy called “one out, all out”. That is the reason that only 16% of our rivers are achieving “good” ecological status. That is a standard I do not want to see changed by this Government or any future Government. It is one of the most difficult to achieve, as other countries in Europe are also finding. If we were still in the European Union, we could face infraction fines if we failed to hit those targets. The point is that we are retaining those very high standards. We want to see them retained, and we want this Government and future Governments to be held, justifiably, to them.

--- Later in debate ---

Anyway, I hope I have sufficiently explained why this is an excellent amendment. It is trying to bring some sense into what is, at the moment, quite a chaotic Bill. I hope that it can be supported across the House and by the Government. I look forward to the Minister telling me what a wonderful amendment it is and how he is going to adopt it wholesale. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Baroness. My amendments are a little more directly addressed to probing the clarity as regards the date on which the sunset provisions come into effect, while allowing a five-year additional timeline, which is needed for the reasons we have heard over the first two days in Committee.

I speak in support of Amendments 27 and 28. Amendment 28 was drafted by me and I prefer the amendment drafted by the Law Society of Scotland. I am delighted to have the support of the noble and learned Lord, Lord Hope of Craighead, as well in that regard. The amendments probe the Government on providing clarity about and extending the date on which the sunset provisions come into effect. As we now know, Clause 1(1) provides for the revocation of all “EU-derived subordinate legislation” and “retained direct EU legislation” by the end of 2023, although that date is very vague. The Law Society of Scotland expresses its serious concern that the proposed statutory deadline of “the end of 2023” does not appear to allow sufficient time to enable the review of retained European Union law to be completed properly, after due consultation with the devolved Administrations and relevant stakeholders, including UK parliamentary and devolved legislature committees.

The additional time could also be used for a more thoughtful approach to amending or repealing retained European Union law. The choice of date should be made on the application of good legislative practice, including consideration and analysis of the legislation involved, and consultation with those who will be affected by the variation or revocation proposed by the regulations in question. The later date that I set out in Amendment 27 will allow for that process to be completed.

Furthermore, the reference to “the end of 2023” in Clause 1(1), as referred to above, is vague. I therefore suggest that this reference should be defined with greater precision in as

“11:59 pm on 31 December 2028”

following the precedent of the definition of IP completion day found in Section 39(1) of the European Union (Withdrawal Agreement) Act 2020. I hope that, in summing up, my noble friend will approve both the specific reference to the time and date, and the extension of five years.

We heard for the first time officially today—unofficially yesterday in the briefing—that the default position of Defra is to retain all EU law. But, as we discovered, that is not stated in the Bill so, emerging from Amendment 27, I put two options to my noble friend the Minister this evening. The Government should either, in the spirit of openness, publish in an easily accessible format all the retained EU law that is to be retained and, alternatively, that to be revoked; or, as proposed in Amendment 27, they should insert a later, clearer deadline of 2028 to ensure that no instrument lapses by default.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, like the noble and learned Lord, Lord Hope of Craighead, I serve on the Common Frameworks Scrutiny Committee. We have met with a level of frustration about this Bill and the delay in some of those common frameworks coming forward. They are an important element of devolution and provide for that element of divergence.

I support Amendment 29. I have other amendments in my name and that of the noble Baroness, Lady Suttie, in this group but, in relation to Amendment 29 and the issue of sunsetting, could the Minister indicate how the Government will protect the new Windsor agreement, which underpins devolution in Northern Ireland, from 1 January 2024, given the revocation of retained EU law from that date?

The purpose of Amendment 147 and, in particular, Amendment 33 is to ensure that Northern Ireland is removed from inclusion in this Bill—in fact, Amendment 147 states that—due to the influence and impact of the Protocol on Ireland/Northern Ireland, because I believe that the Windsor agreement of this week is simply an implementation plan of the protocol with mitigations. In this regard, I refer to Article 2 as well as to environmental considerations. Amendment 33 would prevent the automatic revocation or sunsetting of EU-derived subordinate legislation and retained EU legislation that relates to human rights, equality and environmental protections as they affect Northern Ireland. This would include all such legislation that falls within the scope of Article 2 of the protocol.

I and the noble Baroness, Lady Suttie, have spoken to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, which are tasked with statutory oversight of the UK Government’s commitment under Article 2 of the Protocol on Ireland/Northern Ireland to ensure no diminution of certain equality and human rights protections in Northern Ireland as a result of Brexit. These equality and human rights protections relate back to the Good Friday agreement of 10 April 1998. Quite rightly—this is the purpose of these amendments—both commissions are concerned that this commitment has not been properly considered in the development of the Bill and that the proposed sunsetting of EU-derived subordinate legislation and retained direct EU legislation risks a breach of Article 2 unless all relevant legislation is identified and preserved by the set deadlines.

This pressure is exacerbated by the absence of an Executive in Northern Ireland at the moment. Could the Minister provide us with some detail about any work that has been ongoing in relation to that? Both commissions believe that the Bill should be amended to include a clause confirming that the provisions of the Bill are without prejudice to Section 7A of the European Union (Withdrawal) Act 2018. Amendment 142 in our names, which is in another group, refers to this. Both commissions have welcomed assurances by the UK Government of their commitment to Article 2 and their acknowledgment that the commitment is non-controversial. However, a number of concerns have been identified.

I have a couple of questions for the Minister. If cannot respond today, maybe he could come back to me in writing. Could he set out the steps that will be put in place to mitigate the risk of inadvertent failure on the part of the Government or devolved authorities to preserve or restate all relevant EU-derived subordinate legislation in Northern Ireland and retained EU legislation within the scope of Article 2, within the set deadlines in the Bill, in the absence of the Bill being amended to include measures that protect against this risk? Would the Minister also set out in detail—I would be grateful if he could do so in writing—what consideration was given to ensuring compliance with Article 2 in the development of the Bill, including in the identification of the specified legislation?

In relation to Amendment 142, there is a concern that the environment will not be properly protected. There is therefore a need for Northern Ireland to be removed from this. In an area of political instability, where the Executive and Assembly are currently not operating, we need full measures within the legislation to ensure that Northern Ireland is not covered and that it is removed in terms of the environment. Will the Minister specify the steps that he will take on behalf of the Government to do just that?

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendment 35 in my name. I thank Michael Clancy and everyone at the Law Society of Scotland for helping me prepare for this group of amendments and another group of amendments which will follow. A lot of what I will say echoes what has already been argued by the noble and learned Lord, Lord Hope, with much of which I was in agreement.

The effect of Amendment 35 is to ensure that the sunset provision in Clause 1 will not apply to any common framework. I pay tribute to the Common Frameworks Scrutiny Committee and the work it does, not just in relation to this Bill but on other matters as well. One of the most successful methods to manage intra-UK divergence has been the creation of common frameworks, which are defined in the United Kingdom Internal Market Act 2020 as a

“consensus between a Minister of the Crown and one or more devolved administrations as to how devolved or transferred matters previously governed by EU law are to be regulated after IP completion day.”

The Common Frameworks Scrutiny Committee, in its report entitled Common Frameworks: An Unfulfilled Opportunity?, noted that

“the UK Government considers how legislation it brings forward might conflict with relevant common frameworks, impede their successful operation, and affect the health of the Union.”

The Government responded to that conclusion in the report by saying:

“The Retained EU Law … Bill”—


the Bill before us today—

“insofar as it introduces the date for the sunsetting of retained EU law … will impact upon most if not all of the Common Frameworks. The UK Government has committed to the proper use of Common Frameworks and will not seek to make changes to REUL falling within them without following the ministerial-agreed process in each Framework.”

That statement is welcome, but it does not go far enough and it does not welcome the current state of play.

Noble lords may be aware that, last week, the Scottish Parliament voted to withhold its consent for the UK Government’s Retained EU Law (Revocation and Reform) Bill; it did so as a means of calling for the Bill to be withdrawn. Earlier, on 10 February, Angus Robertson, Cabinet Secretary for the Constitution, External Affairs and Culture, sent a letter to the incoming Secretary of State for Business and Trade setting out the concerns of the Scottish Government in this regard and noting that these concerns had been raised previously with the UK Government at the time that the Bill was before the House of Commons. The Government have had ample opportunity to listen to the concerns so eloquently expressed by the noble Baroness, Lady Humphreys, in relation to the Welsh Government, and those raised by the Culture Secretary in the Scottish Parliament, Angus Robertson, and have declined to act on those concerns.

I would like to give my noble friend the opportunity to comment on the amendments that the Scottish Government have set out, one of which closely echoes Amendment 27 which I moved on Tuesday this week. Their option one is to remove the sunset clause in Clause 1 from the Bill entirely. Their option two is to remove devolved areas from the sunset clause in Clause 1. Their option three is to keep the sunset but move it to a later date and enable Scottish Ministers to extend it. Their option four is to enable Scottish Ministers to extend the sunset date in Clause 1.

The UK Government cannot continue in this arbitrary fashion, overriding the wishes of two separate nations, having this week celebrated the very good news regarding the Northern Ireland protocol. This is an opportunity for my noble friend to make good the commitments in the common framework agreements, as echoed in the conclusions of the Common Frameworks Scrutiny Committee, and I urge him to choose one of the options. I argue that my Amendment 27 is the best, but one of these options must be agreed, otherwise we will simply not make any progress with this Bill.

[Baroness Andrews (Lab)]

I support Amendments 34 and 55 in the name of my noble friend Lord Murphy, who cannot be in his place, and Amendment 35, tabled by the noble Baroness, Lady McIntosh. I declare my interest as chair of the Common Frameworks Scrutiny Committee.

I start by saying how much I support Amendment 29. The noble Baroness made a powerful and explicit speech about the real, practical concerns that are now so evident in the Welsh Senedd, the Legislation, Justice and Constitution Committee, and the Welsh Government. The exam question for the Minister, and for the Front Bench as a whole, is whether they are prepared to legislate without the consent of the Welsh and Scottish Governments. I would very much like an answer to that question at the end of the debate—the Minister is nodding already.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

51: Clause 2, page 2, line 9, leave out “Minister of the Crown” and insert “relevant national authority”
Member's explanatory statement
This amendment ensures that any relevant national authority (as defined in clause 21(1)) can extend the sunset referred to in Clause 1.

[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Amendment 51, I shall speak also to Amendments 53 and 56. I look forward to hearing from others who are speaking to their amendments in this group: the noble Baroness, Lady Humphreys, my noble friend Lady Lawlor, the noble Lords, Lord Whitty and Lord Fox, and the noble and learned Lord, Lord Hope, with whose amendments in this group I have much sympathy.

Amendment 51 is a simple amendment which would leave out “Minister of the Crown” and insert “a relevant national authority”. The point of the amendment is to ensure that any relevant national authority, as defined in Clause 21(1), can extend the sunset referred to in Clause 1.

The reason I move this amendment is that the Bill currently proposes, in Clause 2, that only a Minister of the Crown can make regulations to extend the sunset period. In my view it is inappropriate that Ministers in the devolved Administrations cannot carry out the same function in respect of the retained European Union law that applies in their respective devolved competencies. Limiting this power to a Minister of the Crown appears to be at odds with paragraph 60 of the Explanatory Notes to the Bill:

“The Government also remains committed to respecting the devolution settlements and the Sewel Convention, and has ensured that the Bill will not alter the devolution settlements and will not intrinsically create greater intra-UK divergence.”


The point of this amendment is to assist the Government in this regard. It provides devolved Ministers with the power to extend the sunset deadline. Amendment 53 is merely consequential on this amendment.

Amendment 56 intends to delete Clause 2(4) at line 18 of page 2. Clause 2(1) provides that:

“A Minister of the Crown may by regulations provide that … the reference in section 1(1) to the end of 2023”


should specify a later time. Clause 2(4) provides that the later time cannot be

“later than the end of 23 June 2026”,

which happens to be the 10th anniversary of the date on which the referendum on UK membership of the European Union was held.

In my view and that of the Law Society of Scotland, which helped me draft this amendment, government policy in relation to the applicability of retained EU law should not be made on the basis of symbolism. There is no need to set such a deadline, and I seek to understand why my noble friend the Minister is putting such an arbitrary deadline in the Bill. Were any deadline to be necessary, this should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and consultation with those who will be affected by the variational revocation proposed by the regulations in question. In any event, in the opinion of the Law Society of Scotland, with which I agree, the sunset provision should operate from 31 December 2028 at the earliest. Clearly, the possibility of any extension of a sunset provision should run for a period after that date.

In an earlier debate, the noble Baroness, Lady Jones of Moulsecoomb, and others referred to the political dimensions of parts of the Bill. I ask my noble friend to confirm that it is not purely for political symbolism that the Government have fixed on this deadline.

I also request that the point I raised in the debate on the first group of amendments be now positively responded to. In summing up this group of amendments, can my noble friend tell me how the Government intend to respond to withdrawal of consent by the Scottish Parliament? How do the Government intend to respond to the amendments the Scottish Parliament has published and tabled in this regard? With those few remarks, and looking forward to the other contributions, I beg to move.

[Baroness Humphreys (LD)]

My Lords, I shall speak to Amendment 54 in my name, Amendments 51 and 53 in the name of the noble Baroness, Lady McIntosh of Pickering, and Amendment 58 in the name of the noble and learned Lord, Lord Hope of Craighead, all of which I support. I thank the noble Baroness for explaining her amendment so clearly.

Amendment 51 would ensure that any national authority could extend the sunset and, usefully, points to the definition of “national authority” in Clause 21. Amendment 53 would extend the sunset until the end of 2028. The noble and learned Lord’s amendment would very helpfully give Scottish and Welsh Ministers a power to extend the sunset date for devolved retained EU law, equivalent to that conferred on a Minister of the Crown by Clause 2.

My Amendment 54 continues on from those three amendments by clarifying what provisions would be devolved and would therefore be under the competence of Scottish Ministers, Welsh Ministers or the Ministers of the Northern Ireland Executive for decision, rather than a Secretary of State. I am grateful to both noble Lords for tabling their amendments, which highlight and address the anomaly that has stood out in this Bill: they give the Minister the opportunity to explain fully the reasoning behind the Government’s decision to allow an extension to the sunset beyond the end of this year for the Secretary of State while withholding the availability of such an extension for Ministers in the devolved Administrations.

I should add that the Minister has already dealt with that issue in her response to this morning’s debate but I am afraid that I missed the detail. I shall read Hansard and reserve the right to come back to this issue at a later stage if I need to, but perhaps if she or her noble friend have anything to add then they will do so. I am also grateful to the noble and learned Lord for his Amendment 58, which puts the powers of the Welsh Ministers over devolved retained EU law on a par with that of the Secretary of State.

Why do the devolved Administrations need these amendments? The arbitrary cut-off date of the end of 2023 has no logic other than a political one. The cynic in me believes that the UK Government want to clear the decks before the next election, probably next year, so that they can claim that EU law no longer exists in the UK, no matter the damage which that causes and the complexity of the task.

In an earlier debate I referred to the Welsh Government’s response to the Bill, and I shall use those points again in relation to the debate on these amendments. The Welsh Government feel that the Bill is unnecessary and that the EU laws have worked well for them. Their preference would be to continue with the present laws and amend them gradually over time as the need arises. An extension to the sunset until 2028 would allow them to deal with the process in a more timely and considered manner. The workload for Members of the devolved Administrations and their comparatively small teams of civil servants has already been referred to. They have dealt with a massive amount of UK legislation over the last few years. They have struggled with complex Bills that have provided increasing challenges to their devolved settlements and have led to increasing calls for the codification of the Sewel convention.

My Amendment 54 would clarify what is devolved and, if placed in the Bill, would bring certainty for Welsh Ministers to act on devolved matters without interference. This Bill has added further pressure on the Welsh Government, as Members have already said, and one feels the sense of their being overwhelmed. There are difficult decisions to be made, as they consider whether more civil servants will have to be employed or whether the redirecting of officers to work on the Bill will be sufficient. The latter, of course, has an impact on the legislative programme that the Senedd would wish to implement and the former has an impact on its budget.

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[Lord Callanan (Con)]

I do not agree with the noble Lord’s characterisation. If they wish, it is perfectly possible for them, before the sunset date, to renew that legislation. The extension mechanism is of course something that we will discuss with them as appropriate.

[Baroness McIntosh of Pickering (Con)]

I have to say that that is a little disappointing as a summing-up. I take responsibility for not giving proper hearing to the amendments in the name of the noble and learned Lord, Lord Hope—I had not realised he had slipped away, and I had promised to speak to them, so I am very grateful to the noble and learned Lord, Lord Thomas, for speaking to Amendment 58.

In summing up, my noble friend did not refer to the fact that the Scottish Parliament have removed their consent from the Bill—news which reached us only a week ago. My noble friend did not respond on what the Government’s approach will be to the amendments. That would help us in our deliberations.

I am extremely grateful to the noble Lord, Lord Collins, for probing as eloquently as he has, because that is the purpose of Committee. It would be helpful to know at this stage how the Government intend to respond to the amendments from the Scottish Parliament, though they are not before us today but in a different procedure.

Obviously, I prefer my deadline to that of my noble friend, but I am very grateful to her for tabling the amendment for debate. Equally, the noble Baroness, Lady Humphreys, spoke very eloquently about the position in Wales.

I am slightly at a loss here. I have been a UK parliamentarian for a while now but I was born in Scotland, and it grieves me that the UK Government do not appear to be making proper commitments in what was the internal market Bill and other Acts that we have passed, not just the Bill before us today. I feel that the Government’s work is cut out for them on this group of amendments.

I am sure that we will wish to return to these issues at a later stage but, for the moment, I beg leave to withdraw Amendment 51.

Amendment 51 withdrawn.

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Moved by

[Baroness McIntosh of Pickering]

59: Clause 3, page 2, line 23, leave out “the end of 2023” and insert “11:59 pm on 31 December 2028”
Member’s explanatory statement
This is a consequential amendment which provides clarity about the time the sunset provisions under clause 3 come into effect.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, this is obviously a long group of amendments. In moving Amendment 59, I will speak briefly to Amendment 76 in the name of the noble and learned Lord, Lord Hope.

In Amendment 59, we have a chance to look at Clause 3, on the sunset of retained EU rights, powers and liabilities. Again, the particular purpose of this amendment is to take the sunset clause in relation to the retained EU rights, powers and liabilities contained in the Bill and extend it to 31 December 2028; this reflects earlier debates that we have had.

The context of this group of amendments is to consider how EU law will be assimilated into UK law, and what the procedures and timescales for this will be. Amendments 60, 61, 64, 70 to 72, 74, 75 and 100 have a similar theme in this regard. I know my noble friend on the Front Bench thinks that he has heard these debates before, but take Amendment 60 as an example. The reason why this amendment is important is that it seeks to delete Clause 3(2), which declares that any retained EU law sunsetted by subsection (1)

“is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed).”

In the view of the Law Society of Scotland—I am grateful again to Michael Clancy for helping me prepare for today’s debate—this is

“an unnecessary provision and adds nothing to the interpretation of the clause. Accordingly it should be deleted.”

As noble Lords will realise, it is ultimately the role of lawyers to apply the law that we will, in time, pass in this Bill.

Amendment 61 provides the ability for the sunset of retained EU rights, powers and liabilities to be extended to a later time by a relevant national authority. As presently drafted, Clause 3 provides for a sunset of retained EU rights, powers and liabilities et cetera at the end of 2023. However, there is no provision to extend this sunset such as applies in relation to Clause 1. Amendment 61 makes provision for a relevant national authority to be able to make regulations to provide for such an extension.

Amendment 64 is a consequential amendment which provides clarity about the time when the sunset of the principle of the supremacy of EU law comes into effect. As we heard in debates, the principle of the supremacy of EU law was developed by the Court of Justice of the European Union and provides that, when there is a conflict between national and EU law, EU law will prevail. It is key to the EU legal order and ensures consistent application across the EU. In Retained EU Law: A Practical Guide, Duhs and Rao comment on the application of the principle. They note the comment by the House of Lords Constitution Committee that it is impossible to see in what sense the principle of supremacy of EU law could meaningfully apply in the UK once the UK has left the EU. They go on to explain that it is retained because one of the stated aims of the European Union withdrawal Act is to incorporate EU law into domestic law. To incorporate EU law into the domestic statute book while retaining the principle would imbalance the statute book. Therefore, it is logically consistent that, when retained EU law is being abolished, the principle should also be disapplied. However, the Law Society of Scotland, with which I agree, questions whether the abolition of this principle will not affect the interpretation of EU law when it becomes assimilated. Therefore, is this not a factor to be taken into account when considering how to assimilate that law? In earlier debates, the noble Lord, Lord Fox, pursued this with some eloquence in relation to earlier clauses. Amendment 64 relates to Clause 4. Providing a later sunset date of 31 December 2028, as I seek to do in Amendment 64, will allow for a thorough analysis of the consequences of the removal of the principle in relation to the interpretation of assimilated law.

I also support the proposal that Clause 5 stand part of this Bill. Unfortunately, the noble Lord, Lord Fox, and others, got there ahead of me, but I am delighted to lend my support. Clause 5 amends various sections of the EU withdrawal Act so that retained general principles of EU law are no longer part of UK law from the end of 2023. This clause will achieve the Government’s policy of removing retained principles of EU law. However, will not the abolition of these general principles affect the interpretation of EU law when it becomes assimilated? Should this not be taken into account when considering how to assimilate that law? The Government should therefore justify the necessity for Clause 5.

Amendment 70 looks again to extending to 31 December 2028 with regard to Clause 6. It is a consequential amendment providing clarity on precisely how and when retained EU law will be known as assimilated law. The reference to the end of 2023 in Clause 6(1) is vague, and therefore the greater precision set out in this amendment follows the precedent within the definition of IP completion day found in Section 39(1) of the European Union (Withdrawal Agreement) Act 2020. The additional time should be used for a more thoughtful approach to amending by renaming retained EU law. The choice of date should be made on the application of good legislative practice, including consideration and analysis of the legislation involved and to permit consultation with those who will be affected by the variation proposed by the regulations under Clause 19. This later date will allow for that process to be completed.

Amendment 71 is a consequential amendment, again extending the deadline for a different provision in Clause 6 to 31 December 2028, when it will become known as assimilated law. Equally, Amendment 72 has equal effect on a later provision in Clause 6. Amendment 75 again looks to extend a later part of Clause 6 to 31 December 2028. Amendment 100 is fairly self-explanatory. It is a consequential amendment to] the other amendments in this group to leave out Clause 8(4).

Before I move Amendment 59, I would like to speak to Amendment 76 in the name of the noble and learned Lord, Lord Hope, who has unfortunately had to leave and can no longer be with us. Amendment 76, supported by the noble Baroness, Lady Finlay of Llandaff,

“gives the Scottish and Welsh Ministers a power, equivalent to the power of Ministers of the Crown in Clause 6(6), to amend legislation in consequence of the change in terminology from ‘retained EU law’ to ‘assimilated law’ made by Clause 6.”

That goes to the point made by the noble and learned Lord, Lord Thomas, in the previous group that it is important to have equality of governance across the UK between Ministers of the Crown and Ministers from devolved Governments.

With those few remarks, I hope that my noble friend will give a fair wind to the arguments that I have made to extend the sunset in those various clauses and looks favourably on the amendment in the name of the noble and learned Lord, Lord Hope, as well. I beg to move.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

Your Lordships should know that, if Amendment 59 is agreed, I cannot call Amendments 61 or 67 for reasons of pre-emption.

--- Later in debate ---

[Lord Callanan (Con)]

I am not going to give an absolute commitment, but I will talk to the lawyers. On the famous letter from my noble friend Lady Bloomfield, I actually pushed officials to try to assimilate the contents of the letter and get it out to the Committee as quickly as possible, because I thought noble Lords would want to see it before we considered the Bill on a further day. They worked very late into the evening to get the letter out, after going through all the necessary approvals that the Government need to go through. Given some of the criticisms, I wish I had not bothered. Nevertheless, I still think it was helpful to noble Lords and will do my best to get them the letter to which the noble Baroness referred.

[Baroness McIntosh of Pickering (Con)]

My Lords, this has been an excellent debate. It reflects not least the concerns of the legal practitioners, who will be left to interpret the status of the laws. But what concerns me is that the Minister and the department are perhaps in denial about the level of concern that has been expressed not just in the Committee this afternoon but in those examples from various sectors that we have heard today. This has been a beneficial session in probing where we can reach agreement before Report to help the Government get the Bill through. I know that my noble friend cares very deeply and passionately about that.

The Committee accepts that the supremacy of EU law will go but my noble friend needs to consider whether the abolition of this principle will affect the interpretation of EU law when it comes to being assimilated. Is that not a factor to take into account in how we assimilate that law? I leave my noble friend and the Committee with that thought.

However, I believe that we have established some ground rules during this debate, so that we can regroup before Report. I, among others, look forward to receiving the letter from my noble friend and, at this stage, beg leave to withdraw my amendment.

Amendment 59 withdrawn.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

81: Clause 7, page 5, line 30, leave out “must” and insert “may”
Member's explanatory statement
This amendment restores discretion to the higher court.

[Baroness McIntosh of Pickering (Con)]

I thank my noble friend the Minister for the letter which we received during the course of this morning. I am slightly concerned that he did not reply to the question on the fact that the Scottish Parliament has withheld its consent, or tell us the Government’s response to that, nor to the amendments that the Scottish Parliament has laid on the table. I would be grateful if at some point that could be addressed.

In speaking to the amendments in my name in this group, I will speak also to those tabled by the noble and learned Lord, Lord Hope, which I have also signed. I would like to say a general word about Clause 7, on the role of the courts. I am grateful to the Law Society of Scotland for preparing me on the amendments that I have tabled today. This clause deals with Section 6 of the European Union (Withdrawal) Act, which dealt with the interpretation of REUL and the application of retained case law by domestic courts.

The amendments tabled to Clause 7 are quite complicated and convoluted. I would hazard to say that it is difficult to understand the effect of the amended provisions. Therefore, the amendments that I have put forward should make it clearer that, if Clause 7 simply substituted a new Section 6 of the European Union (Withdrawal) Act, the new Section 6B, which Clause 7(8) proposes to insert into the European Union (Withdrawal) Act, would provide that UK or devolved law officers could make a reference to the Supreme Court, the High Court of Justiciary or the appropriate relevant appeal court, as defined by proposed new Section 6A and the circumstances set out therein.

Even though new Section 6B(7) provides that any decision by the court to which reference is made does not affect the outcome of the proceedings, the view of the Law Society of Scotland, which I share, is that it is contrary to the interests of justice that the law officers can be empowered to make a reference in a civil case that has been concluded and where there has been either no appeal or the appeal itself has been concluded. This contravention of the principle of finality and interference by the state in civil litigation needs to be explained and justified by the Government; I urge my noble friend the Minister in summing up to take the opportunity to do so.

I understand that the innovation would apply only on a point of law on retained case law, thus diluting the unity of civil law. Further, any such power of reference would not be comparable, for instance, to the role of the Attorney-General or the Lord Advocate in criminal proceedings. Such law officers have a direct interest and an integral role to play in all such proceedings, including instituting appeals or references on points of law. Law officers do not currently have that role in civil proceedings and it remains to be seen why they should have it in respect of one particular category of civil case law. Again, I seek clarification from my noble friend.

New Section 6B(2) identifies the law officers who can make a reference. The Lord Advocate’s power to make a reference is limited to where the point of law relates to the meaning or effect of relevant Scotland legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or a matter of law on reserved matters. Again, the Law Society questions whether it is appropriate that any UK law officer other than the Advocate-General for Scotland should be able to make a reference to the High Court of Justiciary or a relevant appeal court, which is the Scottish court, on a matter of legislation. I refer to Taylor Clark Leisure plc v the Commissioners for Her Majesty’s Revenue in 2015.

New Section 6C provides that each UK law officer and devolved law officer is entitled to notice of proceedings. The Lord Advocate’s power to intervene is limited to where the argument relates to the meaning or effect of relevant Scottish legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or to the law on reserved matters. Again, I question whether it is appropriate that any UK law officer other than the Advocate-General for Scotland will be able to intervene on a matter of Scottish legislation before the High Court of Justiciary or a relevant court of appeal, which is the Scottish court. I hope the Minister will take the opportunity to clarify those points.

On Amendment 81, Clause 7(3) as currently drafted introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors when deciding whether to depart from any retained EU case law. It is the view of the Law Society of Scotland, and I share that view, that the courts must be able to exercise discretion when deciding such matters, and that a statutory obligation to consider these matters is an unjustifiable intrusion on judicial independence. I therefore hope the Minister and the Government will accept leaving out “must” and replacing it with “may” in Clause 7 in that regard.

Amendment 82 would delete new subsection (5)(a) that Clause 7 currently inserts into Section 6 of the European Union (Withdrawal) Act. Again, as currently drafted, Clause 7(3) introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors in deciding whether to depart from any retained EU case law. One of those factors is contained in new subsection (5)(a):

“the fact that decisions of a foreign court are not (unless otherwise provided) binding”.

In the view of the Law Society of Scotland, judges are well aware that decisions of foreign courts are not, unless otherwise provided, binding. Therefore, in the society’s view, and I share that view, it is unnecessary to prescribe that the judiciary take the matter into account, and I recommend on behalf of the Law Society of Scotland that this provision be deleted from Clause 7.

Amendment 84 would delete “proper”. The reason for that is that the courts must be able to exercise discretion in deciding such matters as set out in Clause 7(3) when deciding to have regard to certain factors to depart from any retained EU case law. Creating a statutory obligation on the courts to consider how retained EU law constrains the proper development of domestic law imposes an unachievable objective on the judiciary by requiring judges to assess what the development of the law might be and to determine whether that development will be “proper”. That is essentially a matter of policy, which is the province of government rather than the judiciary.

I would like to briefly refer to the points raised in Amendments 95 to 99 in this group from the noble and learned Lord, Lord Hope of Craighead, as well as Amendment 99A, which go to the heart of the role and function of the Lord Advocate and the particular arrangement that pertains to what Scots law should be in this regard. I omitted Amendment 94, which, again, is a consequential and probing amendment seeking to delete new Section 6B. I look forward to hearing from other noble Lords who will speak to amendments in the group, but with those few remarks, I beg to move Amendment 81.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

I have listened very carefully, and there is a fundamental flaw in my noble friend’s argument as it relates to Scotland. Scotland has a mixed legal system. I am a non-practising member of the Faculty of Advocates. I chose to go and practise EU law because every reference was either passed down to London or you could practise EU law in Brussels; there were very few opportunities to practise at the Scottish Bar. But my noble friend must accept that the Scottish system—which, I would hazard a guess, has many advantages over the English system—is based on Roman law. It is based on a system of codified law, and what distinguishes it fundamentally from what he has just described about the common-law system is that it is a mixed legal system. I wonder whether he would like to address this in his remarks, given the comments that I made in relation to the amendments that I spoke to—Amendments 81, 82, 84 and 94—and mindful of the fact that I am approaching this from a mixed civil and common-law system.

[Lord Bellamy (Con)]

I thank my noble friend Lady McIntosh for that intervention, and I stand corrected. She is completely right that Scotland is a mixed system, although I venture to suggest much influenced—if I may use that controversial word for a moment—by the common law. As I said a moment ago, Scottish judges have been, frankly, the best common lawyers anyone has ever known. They happen all to be called Reid but that is a coincidence.

Of course, I accept the comment, although I beg to differ as to whether any different conclusion follows. Essentially, the “may”, “must” and other amendments that the noble Baroness has proposed are independent of the exact legal approach one is talking about. It may well be that, in a Scottish situation, there would be a greater willingness not to disturb retained case law than in an English situation. I do not know; maybe these things will come up to the Supreme Court and someone will say “That is what we are going to do”. Maybe the Scottish tradition will prevail; that is perfectly likely. With respect, the Government do not feel that that changes the general thrust of Clause 7.

That was changes of circumstances. The next question is on this word “influence”—whether it has been influenced or determined by European law. I think “influenced” is included simply to give a sufficient degree of flexibility and to avoid deciding what might be quite a difficult point: whether European law was in fact determinative of a particular point or just part of the general context. Very often, it is part of the general context and the influence of the European element on the final outcome.

On that point—I am not sure we picked it up entirely; I may be speaking out of turn—I shall, if I may, at least attempt a reply to the noble Lord, Lord Kerr, on the question of principles of interpretation. I think it is relevant to the influence point. It arises in the context of legislation. Many here will know better than me, but the essential difference, as I understand it, is that traditional common law, including the Scottish approach, is a highly textual interpretation: what the meaning of the words is. The European Court’s general approach is a teleological interpretation of the general idea of where the statute is going. Very often, because of the laconic and sometimes completely deficient nature of European legislation, that court is much more prepared to fill in the gaps in the legislation than an English court would be. It is along those general lines; I am sure we can elaborate further as necessary later in these proceedings. So that is the influence point.

I think I have dealt with adding in the factors of settled understanding, legal certainty and so forth. The Government do not support that approach because it would simply bake in the status quo; that is the Government’s essential position. Legal certainty is inevitably something the courts will consider. They considered it in the Warner Music case because they were dealing with an international treaty and there was a desire not to disturb the law—albeit that the law was a right old muddle, as far as one can see, if I may put it colloquially just for a moment. In that case, it was not actually very seriously argued that we should depart from EU law; it was a perfunctory argument that took place in a few minutes at the end of the day, so it was a bit of a non-event.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, fortunately, I think I was asked by the noble Lord, Lord Kerr, for only one example, and so I will just give one because it is getting quite late. The example is changes in technology, which are moving very quickly. The Warner case, which has now been mentioned several times, was a case in which a radio station in the US put some music in a hyperlink on its website. Consumers in the UK could click on the link on that website, and the question was whether the UK copyright holders could get a royalty on that even though the UK user was accessing it in the United States—it does not matter if it is the United States, Taiwan or anywhere else. In that kind of area, the technology is moving very quickly. The existing EU decisions are not entirely consistent, and it can be easily envisaged that in some future situation, where some technology that we do not yet understand or know of has come into being, a UK court might take a different view and distinguish previous EU jurisprudence. That sort of situation is more than likely to happen at some stage.

[Baroness McIntosh of Pickering (Con)]

My Lords, it has been a lengthy and thorough debate, and I fear it has not gone quite as smoothly as my noble and learned friend the Minister would have wished. I am pleased he has conceded that Scots rule approaches this from a different angle. The noble and learned Lord, Lord Hope, has not been able to be present today, and I do not think my noble and learned friend has entirely answered the concerns of either the Royal Society of Scotland or the noble and learned Lord. In particular, my noble and learned friend has not addressed the question of why there is no corresponding restraint on the powers of any other UK law officer—for example, the England or Wales law officer—but only on the Scotland law officer. I would like to understand, perhaps at a meeting before Report, why that is the case. It is quite serious.

My noble and learned friend spoke at length about why retained EU law is historic now, but we are in a situation where court cases may arise. For example, the chemical industry here is going to be covered by the fledgling UK REACH programme, but the industry would also hope to export to the EU and so will have to meet the terms of the EU REACH programme. Does my noble and learned friend not accept that there will be cases that relate to this?

I fear that Clause 7 is an exam question seeking to show that, on appeal, there will be no reliance on retained EU law going forward. I think that was the wrong question to put, as has been adequately set out to such an extent that a distinguished former President of the Family Division, the noble and learned Baroness, Lady Butler-Sloss, said it is offensive to treat judges in this way, as did my noble friend Lord Hailsham, in slightly less graphic language.

I am grateful to the noble and learned Lord, Lord Etherton, for speaking to the amendments in the name of the noble and learned Lord, Lord Hope. I believe that work is not complete on this chapter but, with the promise of a meeting before Report, I beg leave to withdraw my amendment.

Amendment 81 withdrawn.

--- Later in debate ---

We are trying to do for the Government that which they will not do for themselves: to fulfil their promises—first, those in the EU withdrawal Act 2018, and, secondly, those associated with the Brexit referendum—that Parliament would be in the driving seat. This is the great con of our times: Parliament is being written out of the picture. It is so obvious, and it is amazing that more people have not cottoned on to what is happening; namely, that this is a huge power-grab by the Government, and they really should not be allowed to get away with it.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendments 104, 115, 116, 122, 124 and 125 in my name, and in support of Amendment 141 in the name of the noble and learned Lord, Lord Hope. Amendment 104 again substitutes the end of 31 December 2028 in place of 2023, as the statutory deadline, to enable more means for the Government or any of the devolved Administrations to consult, to analyse the results of such a consultation and to prepare legislation. This would also enable Parliament or the devolved legislatures to consider and pass the legislation. By the time the Bill receives Royal Assent, there simply would not be enough time, given the parliamentary recesses in place, to conclude such an exercise. So, in my humble submission, the deadline needs to be extended to allow time for proper legislative practice to be completed.

Amendment 115—

[Lord Hamilton of Epsom (Con)]

Before my noble friend proceeds to the next amendment, she has gone on about the uncertainty created by revising this legislation, but surely the longer the period you create to consider all of that, the more uncertainty you cause.

[Baroness McIntosh of Pickering (Con)]

I would agree with my noble friend if we knew which bits of REUL were being repealed, which were being revoked and which were being reformed—but, as we speak, we do not. As we know, many devolved measures are simply not on the dashboard at the moment, which makes that time even more unacceptable.

Amendment 115 requires a “relevant national authority” or “Minister of the Crown” to consult those who may be affected by regulations under Clause 15(2) before making them. All relevant national authorities will be required to publish the results of this consultation. The idea is to oblige the Minister of the Crown to consult the devolved Administrations before making regulations that concern them.

Amendment 116 makes similar provisions under Clause 15(3), so the same comments apply there. Amendment 122 also extends the statutory deadline from 23 June 2026 to a similar deadline of 31 December 2028, allowing more time than permitted under the present deadline to ensure that all legislation which will be encapsulated will be covered through a consultation, and to allow time for consulting and analysing the results of such a provision. Amendments 124 and 125 are simply consequential to that.

I do not know if the noble Baroness, Lady Meacher, will speak to Amendment 141 in the name of the noble and learned Lord, Lord Hope, but I conclude by saying that I support his amendment, to which the noble Baroness, Lady Humphreys, has added her name. I welcome the fact that the

“amendment modifies the powers conferred on Ministers of the Crown when making regulations in devolved areas under this Schedule so that the power may only be exercised with the consent of the Scottish or Welsh Ministers.”

I hope that my noble friend the Minister, when summing up, will look favourably on those amendments in this group.

[Baroness Meacher (CB)]

My Lords, I will follow the words of the noble Baroness, Lady Ludford. I have added my name to the question on whether Clause 10 should stand part of the Bill. As noble Lords know, my view is that the Government really have a responsibility to withdraw the entire Bill; they should take it away and have civil servants work up all the policy developments that are assumed in it. As it stands, decisions on all these policy areas will simply be left to Ministers to make through delegated legislation; that is not acceptable at all. I was strongly supported by my noble friends Lord Wilson and Lord Lisvane and many others when I made this point in an earlier debate.

Clause 10 transfers powers wholesale from the EU to Ministers, who will then decide which regulations to propose. It includes extensive amendments to Part 1 of Schedule 8 to the European Union (Withdrawal) Act 2018. In omitting sub-paragraphs (1) to (5) of paragraph 4, the Government are further reducing the power of the UK Parliament with respect to retained EU legislation, and, as the noble Baroness, Lady Ludford, said, with particular respect to retained direct EU law. The Government justify that on the basis that retained direct EU law did not have as much parliamentary scrutiny as other parts of retained EU law, but that was because the UK was bound to comply with retained direct EU law under the treaty of Rome. We are now not in the EU—we are in an entirely different situation—and the UK Parliament needs to take over responsibility for this area of law, which represents at least 50% of retained EU law.

As noble Lords know, we parliamentarians cannot amend secondary legislation. It would be extremely difficult in this context for Parliament to reject the secondary legislation involved, and therefore Parliament will have no option, in my view, but to accept the delegated powers we are talking about here. Surely this is entirely unacceptable. Ministers’ regulations across a vast range of policies will affect the entire UK population very considerably.

Clause 10 radically changes the European Union (Withdrawal) Act 2018, affecting a huge transfer of powers from Parliament to Ministers. This is in conflict with stated government policy and the Government’s Explanatory Memorandum to the Bill. Clause 10 should not stand part of the Bill.

--- Later in debate ---

Moved by

[Baroness McIntosh of Pickering]

102: Clause 12, page 16, line 4, at end insert—
“(1A) Before making regulations under subsection (1) a relevant national authority must consult with any person who may be affected by the proposed regulations.(1B) If a Minister of the Crown proposes to make regulations under subsection (1) which concern devolved matters the Minister must, before making the regulations, consult with the relevant national authority.(1C) A relevant national authority and, where subsection (1B) applies, a Minister of the Crown must publish the results of any consultation conducted under this section.”Member’s explanatory statement
This amendment requires 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.

[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.”

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

I hope that this provides noble Lords with clarity for the reasons behind taking the powers provided for in Clauses 12 to 14 and the scrutiny procedures that would be applied. I therefore hope that noble Lords will feel able to withdraw or not press their amendments.

[Baroness McIntosh of Pickering (Con)]

My Lords, this has been a good debate. There is a body of opinion which is strongly opposed to the three clauses subject to the clause stand part notices, two of which are in this group.

I will express my personal disappointment. I am grateful to my noble friend for the replies that he gave, as far as they went, but I was told earlier by my noble friend Lady Bloomfield sotto voce that I could expect a reply on what the Government’s response is to the Scottish Parliament having withheld its consent. I thought that this was the group in which we would hear that. It echoes entirely the concerns about legislative consent Motions from the Welsh Assembly expressed by the noble Baroness, Lady Humphreys. Both the Scottish Parliament and the Welsh Assembly are concerned that their views are not being heard. I place that on the record.

I have no reason to doubt that my noble friend is right that there will be consultations. One of the Law Society of Scotland’s concerns, which I share, is that it is becoming an increasing habit of this Government to hold consultations over sometimes a 12-week period, and sometimes substantially less, and not publish the results in detail. For legislation such as this it is extremely helpful to know a little more detail. They would be published online anyway, so it is not as though people have to print it off at vast expense. The Government should not be afraid of publishing the results.

For the moment, without prejudicing what might happen at a later stage of the Bill, I beg leave to withdraw my amendment.

Amendment 102 withdrawn.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

Debate on whether Clause 16 should stand part of the Bill.

[Baroness McIntosh of Pickering (Con)]

I am grateful for this opportunity to speak to this little group, which is intended as probing amendments that look to the power to update and the transitional part of the Bill.

The aim of Clause 16 is to provide that the national authority will have the power to update by regulations

“any secondary retained EU law, or … any provision made by virtue of section 12, 13 or 15 … to take account of … changes in technology, or … developments in scientific understanding.”

I am honing in on whether Clause 16 should stand part because I believe that the reasons for updating these regulations should also reflect other conditions, such as changes in society or economics. The rationale for making amendments in Clause 16, as currently drafted, is unduly narrow. I therefore urge the Government to consult on this clause and rethink this provision to reflect the wide scope of changes that would necessitate amendment of the law in future.

I take this opportunity to ask my noble friend, when she comes to sum up this small group, what the consultation was on this clause prior to the drafting of the Bill. I would like to understand further the thinking behind why this clause is currently so narrowly drafted.

In turning to Amendments 133 and 134, I raise a request yet again—I think this is my third or fourth attempt. It goes to the heart of not just amendments in my name but of others in the names of the noble Baroness, Lady Humphreys, and the noble and learned Lord, Lord Hope. I have still not heard an answer from any noble friend to the question: what is the Government’s view of the Scottish Parliament’s decision to withhold consent? It is vital that we get an answer to that question before we leave Committee, which is at the end of today. My noble friend Lady Bloomfield said to me that I would have an answer. This is the last possible moment for me to get an answer to that question, and I think it very important. It relates not just to Clauses 16 and 19 but to other clauses that have been extremely contentious and led to fairly lengthy debates. I hope my noble friend Lady Neville-Rolfe will respond on that vital question.

Amendment 133 would replace “appropriate” with “necessary”. As currently drafted, Clause 19(1) provides that:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act.”


Given that Clause 19(2) allows such regulations to amend any Act, including this Bill, it is my view—and that of the Law Society of Scotland, which helped me draft this small group—that the Minister should be permitted to amend those regulations only where it is necessary to do so. This applies a more objective standard to the amendment of the regulations. If my noble friend is not minded to support my amendment to replace “appropriate” with “necessary”, can she explain in which circumstances the Government would consider the provision to be appropriate for the purposes of Clause 19(1) and (2)?

Amendment 134 would require a Minister of the Crown to consult the other relevant national authorities and interested persons before making regulations under Clause 19. In particular, Clause 19(1) has been identified as providing a Henry VIII power that empowers a Minister of the Crown by regulation to make such provision as the Minister considers appropriate in consequence of this Act. Given that Clause 19(2) would allow such regulations to amend any Act, including this Bill, it is the view of the Law Society of Scotland that the Minister should be required to consult the bodies referred to—the devolved Administrations. I share that view.

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[Baroness Neville-Rolfe (Con)]

I certainly undertake to write. There are some uncertainties, as the noble Baroness will understand, so I will update her as much as I can. It is important and we need to be as clear as we can be before Report.

[Baroness McIntosh of Pickering (Con)]

I think the whole Committee would probably like to have sight of that letter, if we may. It goes to the heart of what the noble Lord, Lord Dodds, asked earlier today, because we are still very unclear as to the level of withdrawal of EU laws in connection with the Windsor agreement.

I have the highest regard and the greatest affection for my noble friend, but I have to say that I find it extraordinary that we are about to leave Committee and we still have not heard what the government response is to a very serious issue of the Scottish Parliament having announced that it is withholding its consent to the Bill. The Committee will have to form a view on that—I am sure the whole House would like to form a view on it—as we now proceed to Report. I am extremely disappointed that, having given my noble friends three or four goes, it is kind of like, “We don’t really care what the Scottish and Welsh Governments, or the Northern Irish people, think, because we’re an English Parliament and we are going to proceed”. I am afraid that is the impression I am left with.

[Baroness Neville-Rolfe (Con)]

We are the UK Parliament. I have said that we will come back to the House on these devolved issues. It may not be possible to do that today, but I thank my noble friend.

[Baroness McIntosh of Pickering (Con)]

Is my noble friend able to say when? Could we have a meeting before Report? It would be helpful to know whether my noble friend will commit to such a meeting. I will take that as a yes.

[Baroness Neville-Rolfe (Con)]

I have committed to write. Whether or not there is a meeting, we will certainly be in communication.

[Baroness McIntosh of Pickering (Con)]

I am grateful. My noble friend will have soaked up the atmosphere, including in the responses from the two Front Benches opposite, as to the strength of feeling throughout the Bill’s proceedings as to how it would appear that there has not been formal consultation to the extent that the devolved nations would have wished. One has already registered that it has withheld its consent, which obviously calls into question what the next stage will be with the Scottish Parliament in that regard. It has amendments on the table that have not yet been tabled, so we will see what happens there.

I am disappointed that my noble friend was unable to explain—in response to not just my questions but those from the noble Baroness, Lady Chapman of Darlington, as well—why it is only science and technology. Are we including food science in this, or science as it relates to chemicals with regard to UK REACH and EU REACH? I am afraid that more questions have probably been raised during the debate on these small groups of amendments, so personally I would like to return to this at a later stage of the Bill. I am grateful for the opportunity to have debated the amendments this afternoon and, for the moment, I will not press my amendments.

Clause 16 agreed.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

I should give notice that, when the time comes for me to move this amendment, I will seek to test the opinion of the House.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to my Amendment 8. Before I do so, and in the interest of brevity, I entirely associate myself with the words of the noble and learned Lord, Lord Hope, because he encapsulated many of the ongoing concerns of the amendments in this group.

To a large extent Amendment 8 is redundant now that I support the amendments to delete Clause 2 that are consequential on the government amendments—I take the opportunity to congratulate my noble friend Lord Callanan and indeed the Secretary of State on having the good sense to table the amendments which the Government are moving in this group.

On government Amendment 1 and the others my noble friend referred to, can he say on what basis the secondary legislation and retained direct EU legislation contained in Schedule 1 have been chosen and what consultation the Government have undertaken to determine the contents of that list?

Briefly on my Amendment 8, I am grateful to the Law Society of Scotland for helping me draft the amendment and for the briefing I received from it in that regard. What the amendment has identified remains an issue with one category of legislation that is not covered by other amendments in the group. The purpose of Amendment 8 was to ensure that any retained EU law which is not identified as such until after the sunset date is excepted from the sunset provisions in Clause 1. The review of REUL was announced by my noble friend Lord Frost, looking at the UK Government retained EU law dashboard from Tableau Public, as referred to at paragraph 13 of the Explanatory Notes, which states that the Government are now

“in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens”.

I support entirely the opportunity given to us today to do that.

However, the Bill intends to go further to facilitate the review and provides that it should be carried out by the end of 2023. Given that we now know there are almost 5,000 pieces of retained EU law, as identified in the EU law dashboard, the Government must confirm whether the most recent Explanatory Note is correct or whether they expect the number to rise again.

I refer to the briefing I received from the FSA—the Food Standards Agency—which itemised in an extremely helpful tableau the reasons why it supports those pieces of legislation included in Schedule 1. However, the FSA says:

“We have had long-standing ambitions to reform the food and feed regulatory system and we welcome the opportunity to focus our attention on this. We recognise that meaningful reform must include consultation with the food industry, consumers and stakeholders, and I look forward to working with you”.


So the question I put to my noble friend is: have the Government allowed sufficient time to ensure that the consultation that the Food Standards Agency wishes to conduct will be permitted to take place by the time Royal Assent is achieved?

My final question to the Minister is: if such a category comes to light within the three categories that have been identified as forming the retained EU law that forms the subject of the Bill after the Bill leaves this place and obtains Royal Assent, what opportunities are there to revisit that to ensure that that category is included the sunset clause, or can we assume that it will continue in existence in its current form, as currently on the statute book?

[Lord Lisvane (CB)]

My Lords, I thank the noble and learned Lord, Lord Hope, for his kind reference to what I said in Committee and subsequently. In order to set the mind of the noble Viscount at rest, I suggest that the wording relating to the Joint Committee in Amendment 2 is entirely correct.

It is a very bad idea to try to regulate parliamentary proceedings by means of statute, and it very often ends in tears or worse. In this case, should Amendment 2 survive into the final version of the Bill presented for assent, it will be for the Houses to set up a Joint Committee. That Joint Committee, following the ancient practice that the interpretation of the orders of reference of the committee are a matter for that committee, will take a view on what constitutes “substantial”, so there will be a certain amount of flexibility available at that point. It will also not be justiciable, because the operation of Article 9 of the Bill of Rights would prevent a court second-guessing what the committee decided.

--- Later in debate ---

[Lord Callanan (Con)]

I do not require the noble Lord’s advice on this.

I will start with Amendment 2 from the noble and learned Lord, Lord Hope, which requires that legislation listed in the revocation schedule be referred to a Joint Committee of both Houses and be considered by the committee for a period of at least 30 sitting days. Should the Joint Committee consider that the revocation of the legislation listed would substantially alter UK law, a Minister of the Crown must ensure that the revocation be debated and voted on by both Houses prior to 31 December.

I start by reassuring noble Lords that it is the Government’s view that this amendment is unnecessary. Every piece of retained EU law in the schedule has been thoroughly reviewed, and will be reviewed and debated alongside Amendment 64, which has been tabled. I am confident that the changes to Clause 1 that we have introduced have alleviated the substantial concerns raised by Members across this House during the passage of the Bill and provided the legal clarity and certainty that has been called for.

Although I know that a number of noble Lords have not yet had the chance to see it, today we have published an extensive schedule explainer—again, responding to the concerns that many Members have raised; officials have been working hard on this all weekend—which explains, line by line, why each of the, in total, 587 pieces of legislation has been deemed suitable for inclusion on the schedule. That has been sent to every Member in advance of the debate on Wednesday. I hope that this will alleviate the concerns raised in this debate, including by my noble friend Lord Hodgson and the noble Lord, Lord Kerr, and other noble Lords, about the amount of information that has now been made publicly available.

In addition, the preservation power in Clause 1 will enable relevant national authorities to preserve legislation on the revocation schedule where they deem it necessary and where the relevant procedures and timescales have been adhered to. This provides a proportionate safeguard against unforeseen consequences of legislation listed on the schedule being revoked. The purpose of our amendment is to provide that legal certainty and clarity as efficiently as possible. To require yet further referrals and debates, and approvals to the list which can be scrutinised during the Bill’s passage, is unnecessary.

On Amendment 4, I have introduced changes to the Bill that I hope will reassure the noble and learned Lord, Lord Hope of Craighead—I think they have done—that his proposed changes to the functioning of the Bill are not necessary. Indeed, the revocation schedule I have laid guarantees that only a set amount of retained EU law will be revoked, which is clearly set out in the Bill. This is very similar to the mechanism proposed in this amendment that would see instruments or provisions expressly listed in a ministerial Statement. However, for a number of reasons, I believe that my proposed revocation schedule is better equipped to deliver this amendment’s desired outcome.

For similar reasons I am opposed to Amendment 6. This amendment would introduce changes to Clause 1 that are reflective of those already introduced by the Government. Indeed, the revocation schedule in Amendments 1 and 5 seeks to accomplish similar goals to Amendment 6 but in a more comprehensive way. This amendment would require a list to be compiled in order to be revoked and would open the door for multiple such lists being laid over the coming months. Again, the proposed revocation schedule is already drafted, has been vetted and is ready, and I believe it is a more appropriate solution. Finally, the amendment has unclear timelines and does not offer as much certainty as the revocation schedule, which is clear about when the revocation of pieces of retained EU law would occur and works in step with other timings in the Bill, such as the expiry of the powers on 23 June 2026.

I was going to refer to the amendment in the name of the noble Lord, Lord Hacking, but he said that he will not press it.

Amendment 8 attempts to exempt any pieces of legislation from the sunset should they be identified after the end of 2023. As I already outlined, this amendment is now unnecessary.

Amendments 10, 11 and 12 all concern the devolved Administrations and their preservation power in what was Clause 3. However, given that under my proposal Clauses 1 and 2 have been removed from the Bill and a revocation schedule has replaced the sunset, these three amendments are defunct and we ask that they are not pressed.

Amendment 16 seeks to oblige the Secretary of State to publish a health and safety impact assessment for any retained EU law which is to be revoked, at least 90 days before the revocation. All legislation listed on the revocation schedule has been considered by the relevant departments and checked by the relevant teams. As such, a health and safety impact assessment is not needed, given the depth of the work that has already been carried out.

We have introduced this Bill to help us realise the opportunities of Brexit. I reassure my noble friend Lord Jackson and other noble Lords that the Government remain committed to a reform programme. Legislation that has been identified on this schedule had already been identified and would have been allowed to sunset anyway. We are still committed to making the opportunities of the reform programme, and we retain the ambition and fundamental purpose behind this work.

I hope that the noble and learned Lord will feel able to withdraw his amendment and that other noble Lords will not press theirs and will support the government amendments.

[Baroness McIntosh of Pickering (Con)]

Before my noble friend sits down, will he respond to my question about sufficient consultation time being allowed? The Food Standards Agency has accepted all the legislation that relates to it which falls in the revocation schedule to which my noble friend referred, subject to sufficient time for consultation. Can my noble friend say, hand on heart, that, by the time the Bill is concluded, there will be enough time for consultation before the schedule applies?

[Lord Callanan (Con)]

I have seen the letter from the Food Standards Agency to which my noble friend refers. The schedule is published and we have now published the explainer, so people can see what is on it. The vast majority of legislation published on the schedule is unnecessary and redundant, and can be safely revoked.

--- Later in debate ---

Moved by

[Baroness McIntosh of Pickering]

3: Clause 1, page 1, line 4, leave out “the end of 2023” and insert “11.59 pm on 31 December 2028”

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, this amendment relates to the remaining sunsetting clauses. It is important to state at the outset that, as the noble and learned Lord, Lord Hope, said in moving his Amendment 2, a number of sunset clauses revert. I also take the opportunity to seek clarification regarding something my noble friend Lord Callanan said, as Minister in charge of the Bill: that under Amendment 14, all existing water directives and regulations will remain in place. I press him for an assurance that all those statutory instruments, regulations, assimilated law, retained EU law—whatever we are going to call them—that relate to Defra, which I understand are the bulk of all the retained law that was passed following the EU withdrawal agreement, will by default remain on the statute book. Is that going to happen automatically, or is my noble friend saying that statutory instruments will have to be put forward by Defra, following the passage of the Bill, on which we will subsequently vote? I would like my noble friend to address at the outset of his concluding remarks on this little group of amendments what exactly the legal position is, for our better understanding.

In preparing the amendments in this group, Amendments 3, 36, 38, 42, 43 and 44, I am immensely grateful to Michael Clancy and the Law Society of Scotland, who share the concerns that I have about the remaining sunset clauses and the impact they will have in this regard, as they relate to the Bill going forward. The purpose of Amendment 3 is to give greater clarity about the extension, and to extend the date from that proposed in the Bill, the end of 2023, to 11:59 pm on 31 December 2028. There is serious concern about the proposed statutory deadline being the end of 2023 as, for reasons that pertain also to the debate we had on the first group, it does not appear to allow sufficient time to enable a review of all the remaining European law to be completed properly, following what I would deem to be proper consultation with the devolved Administrations and all the relevant interested parties, including the UK parliamentary and devolved legislation committees.

I would argue that the additional time is needed to enable a more thoughtful and comprehensive approach to amending or repealing the remaining REUL under the Bill. I believe that the choice of date should be made on the application of good legislative practice, including considered analysis of the legislation involved and consultation with those who will be affected by the variation or revocation proposed by the regulations in question. Therefore, the later date I have set out in Amendment 3 would allow that to happen. It would enable better law to be passed, and I believe that Parliament is here to make good laws, not laws to which we have to return later. I hope my noble friend will look favourably on that. Does he believe in all honesty that there is sufficient time for this?

In his reply to me when I tabled a similar amendment in Committee, my noble friend stated that it would not be a cliff edge:

“Firstly, the 2023 sunset date was chosen because it is the quickest and most efficient way to enact retained EU law reform. It will allow us to swiftly remove retained EU laws that are no longer appropriate and are not in the best interests of UK businesses and consumers”.—[Official Report, 28/2/23; col. 232.]


Having dispensed with the sunset clause in the government amendments we have adopted or are about to adopt, there is a good argument for pushing back the sunset clause, as I set out in Amendment 3.

--- Later in debate ---

[Lord Callanan (Con)]

The dashboard lists all the pieces of retained EU law that have been identified; the schedule lists those that are being revoked.

[Baroness McIntosh of Pickering (Con)]

My Lords, while I am extremely grateful to my noble friend, I think he has made a bit of an own goal because I think it is still the case that the dashboard is simply not comprehensive. My concern, and I think that of the noble Lord, Lord Hacking, the noble and learned Baroness, Lady Butler-Sloss, and others, is that there are a number of items of EU law that are simply not on the dashboard. As we speak today, I am unclear about what the legal status of the dashboard is.

What I do take comfort from, based on what I understand my noble friend to have said, is that, if, for example, there is a piece of Defra retained EU law that does not appear in the revocation schedule on which we are going to vote, it will remain on the statute book and, even more importantly, it cannot be amended. So it can neither be revoked nor amended. If that is not the case, I would ask my noble friend to rise to the Dispatch Box and explain where I am wrong.

--- Later in debate ---

[Lord Callanan (Con)]

I have explained this, but I will do so again. The powers to modify, change or update the assimilated law remain in the proposals. Obviously, the measures that are in the schedule will be revoked, but there are powers to modify, or restate. To take an example, interpretive effects are being abolished and, in some pieces of legislation, that will require minor changes to that legislation, to update it, because of the removal of interpretive effects. The policy intent will stay the same, but it is possible that some minor changes will be required, which is why the Government need this power. So the noble Baroness is partially correct to say that existing measures that are not being revoked will become part of assimilated law; but the Government do have the power to modify or change them.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am not sure that that is entirely clear, but I have pressed the point as much as I can at this stage. I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

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[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?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, in view of the fact that the most important and contentious amendment to the Bill, which has been moved by the noble and learned Lord, Lord Hope, is fully agreed and accepted by the Government, and that other amendments are not being moved—although I will deal with the Lord Advocate point—with your Lordships’ permission, I will take this quite shortly, especially having regard to the clock. But that in no way underestimates the importance of the issues we are debating.

First, the Government are extremely grateful to the judiciary and other stakeholders for drawing our attention to the issue of “may” rather than “must”. I am extremely grateful for the dignified and discreet way in which those matters have been resolved to everyone’s satisfaction. The central point that the courts should have the relevant discretion is accepted and, as I say, the Government are pleased to adopt the amendments of the noble and learned Lord, Lord Hope.

As to the remaining amendments in the group, the Government share the desire of the House that the role of the courts should be as simple as possible. We do not consider that the way the Bill is currently drafted drags the courts into some kind of political controversy. I am not able to give the noble Baroness, Lady Ludford, the undertaking she seeks that we shall further consider those amendments. Of course, nothing is ever ruled out, but it would be wrong for me to say that it is currently the Government’s intention to propose further amendments to the Bill. I can go into this in more detail one by one and perhaps, if the noble Baroness has a moment, I can explain the Government’s position bilaterally. I am very much in the hands of the House but, as these amendments are not actually being moved, I do not feel that it is right to take up time explaining why the Government take the position that we do. However, the Government’s door is always open to discuss particular points with any noble Lord.

I simply say that the tradition of common law has enabled the law to evolve over centuries, while preserving a reasonable degree of predictability. That technique is well known in the United Kingdom and I have no doubt that it will continue to be honed and progressed in the future.

As to the specific amendments on the powers of the Lord Advocate, I confess to some diffidence in the face of the pre-eminence of the noble and learned Lord, Lord Hope, on Scots law and other matters. At present, the Government do not feel that we should accept the proposed amendments. Amendments 30, 32, 33 and 34 would allow the Lord Advocate to intervene in any case, irrespective of whether the issue was a devolved matter under Scottish legislation or a reserved matter in which the relevant competence is exclusively that of the United Kingdom. That is our understanding of the effect of the amendments. The Government’s position is simply that that change would be constitutionally inappropriate. In our view, references and interventions by the Lord Advocate, a Minister in the Scottish Government, are quite properly restricted to legislative matters within the devolved competence of the Scottish Government. That is the Government’s position on that broad issue.

Finally, Amendment 31 would none the less give the Lord Advocate intervention powers not only in Scottish legislation, which is what the Act is about, but also for certain retained functions of the Lord Advocate. Here I very much bow to others’ more detailed knowledge of what exactly these retained functions are. The Government’s understanding is that they relate mainly to the prosecutorial functions, since it is the Lord Advocate who is ultimately responsible for criminal prosecutions in Scotland. The nearest analogy outside Scotland is arguably to the DPP for England and Wales or the DPP for Northern Ireland.

The Government therefore respectfully oppose this amendment since, first, no similar powers are conferred on the DPPs in England, Wales or Northern Ireland. Secondly, the devolved powers to intervene in relation to the devolved law officers are limited to legislation, as exhaustively defined in the case of Scotland, Wales and Northern Ireland, and there does not seem to be any clear reason for treating Scotland differently from the other devolved Administrations.

Thirdly, and again the Government are open to correction, it is difficult to see how, in practice, the amendment might bite in any practical way. Fourthly, any blurring of the line beyond the scope of devolved legislation, as defined in the Bill, is not shown, in the Government’s view, to be sufficiently justified and would be outside the scheme of the Act. So, essentially for those reasons, the Government will not be able to accept the amendments in relation to the Lord Advocate and I respectfully ask the noble and learned Lord, Lord Hope, not to press his amendments in that regard.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

Finally, I have a question about the Environmental Permitting (England and Wales) (Amendment) Regulations 2013, which are included. We understand that they originated from primary legislation: the Pollution Prevention and Control Act 1999. Presumably, this transposes that directive. Does that mean it is included as a technicality? Are the Government aware of all transposed legislation and are there further implications for primary legislation when legislation is transposed like that?

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful for the kind words from the noble Baroness, Lady Brinton. I was not going to speak, but I would like to echo the remarks she made and repeat my concern, shared by other noble Lords, that there is not going to be sufficient time for a consultation on the directives relating to gluten, flooding and other issues. The Food Standards Agency agrees with all the directives in the proposed new schedule but is concerned that, by the time the Bill receives Royal Assent, there will be a perilously short period in which to conclude the required consultations.

I echo the concerns raised by the noble Baroness, Lady Hayman of Ullock, regarding the Flood Risk Regulations 2009, at page 10, line 197 of the proposed new schedule. I stand to be corrected by my noble friend the Minister, but it is my understanding that this is not a transposition of EU law but an entirely UK measure. I would like to know, for greater clarification and understanding, why these regulations are included in the proposed new schedule.

I echo also the concerns of the noble Baroness, Lady Bakewell of Hardington Mandeville. I think we all accept that in the 1980s, the UK was known as the dirty man, or woman, of Europe, and it took a female Prime Minister, Baroness Thatcher—then Margaret Thatcher—to take the plunge and implement all the EU directives and regulations. These have moved on, and since we have left the European Union the water framework directive and others—most recently, the urban wastewater directive—are going through a further transposition. Obviously, they will no longer apply to UK water companies. I realise it is a different department but I hope Defra, along with my noble friend, will look favourably on some of the requirements set out therein, which may actually benefit the UK’s environment: bathing waters, drinking water and especially wastewater.

I seek clarification from my noble friend of something he said, as I do not think he answered the concerns I expressed on Monday. He was very clear that we are dropping the interpretative effects of retained EU law, but I would like to press him in this regard because the indirect effect of EU law is also sometimes referred to as the “consistent interpretation” of EU law. I hope that a company in this country seeking to export or conduct its business in an EU country—selling insurance policies, for example—will not be disbarred from doing so because we are not interpreting the law in the same way as EU countries. I realise that my noble friend was very clear on this point, but can he ensure that there will be no discrimination in this regard against UK companies trying to do their business and trade in an EU country?

[Lord Hope of Craighead (CB)]

My Lords, the amendments moved by the noble Baronesses leave me feeling very uneasy—not because I doubt the validity of the points they have raised, but because I am concerned about things that may have been missed out. The fact is that we have been presented on Report with an enormously long proposed schedule and a spreadsheet and, frankly, this is no way for parliamentary scrutiny to be conducted in the Chamber. It is a different matter in Committee, where we can have things on tables in front of us, but it is quite impossible to go through the proposed schedule in this Chamber with the respect and detail that it deserves on Report. That is my concern.

I confess that I have not had the time or resources to go through the whole of the proposed new schedule. I have spotted, as has been noted, a number of things that quite obviously have to be discarded. That is not in doubt. However, it is the things that need to be examined carefully in detail in order to see mistakes of the kind that these amendments draw attention to that trouble me very greatly. I just express my great concern about the process we are undertaking, which, in my respectful submission, cannot really be described as parliamentary scrutiny.

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

3rd reading
Monday 22nd May 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

I re-echo and endorse entirely the comments of the noble and learned Lord, Lord Hope. I also echo the regrets that the Scottish Parliament and Welsh Assembly have withheld their consent. Quite a broad area of retained EU law will remain by default on the statute books, which I welcome. However, following the comments of my right honourable friend the Environment Secretary over the weekend—particularly those relating to retained EU law and the wine sector—there remains a huge lack of clarity which, regrettably, the amendments in the name of my noble friend Lady Noakes and my noble friend the Minister do not address.

The fact that Defra will be able to revoke and amend large swathes of retained EU law—probably the bulk of outstanding retained EU law, as this relates to the Department of Environment, Food and Rural Affairs—poses great uncertainty for practitioners as well as the businesses that they are trying to advise. So I echo the question put by the noble and learned Lord, Lord Hope, which I too have asked on a number of occasions, as to the up-to-dateness and comprehensiveness—particularly as regards devolved legislation—of the dashboard. Also, regarding the legal status of the dashboard, is it just a signpost or does it have greater significance than that?

I am sure that my noble friend will share my concern as a Minister in his department that there is, regrettably, a great lack of clarity for practitioners and business going forward as the Bill leaves the House today.

[Lord Pannick (CB)]

The noble Baroness, Lady Noakes, introduced Amendment 1 by saying that it is designed to promote transparency and accountability. Who could possibly disagree with those objectives? They are vital to this Bill. It seems to me that subsection (1) is modest in its requirements: the updating of the dashboard and the publication of a report. My question to the noble Baroness and, indeed, the Minister is: why, then, is it thought necessary to include in Amendment 1 subsection (4), which provides that:

“If the Secretary of State does not meet the requirements”—


that is the basic requirements—in subsection (1), then certain consequences follow?

It is, I would suggest, very unusual to include in an important provision of a Bill a set of obligations on Ministers but then recognise in another clause of the same provision that they may well not satisfy the important requirements that the noble Baroness rightly suggests should be imposed on them. Should we understand from this that the Minister contemplates that there is a real possibility that Ministers do not intend to comply with the very obligations that this amendment imposes? If they are going to comply with these obligations, surely we do not need subsection (4).

Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

We have travelled on a long journey, as I say, and have made some progress in the Minister’s speech today. We have not quite ended up at the destination that I would have hoped to end up at, but, at this point, I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I echo some of the concerns expressed by the noble Lord, Lord Krebs. In moving the amendment, my noble friend the Minister referred to the amendments from the Commons, completely overlooking the fact that there is no legislative consent. Scottish and Welsh legislative consent has been withheld, and I understand that the Government have not yet heard from Northern Ireland. I think that he referred to the fact that we have now moved on and do not have to rely on the other member states to pass our environmental laws, but I would feel more comfortable if the four nations agreed on what the environmental principles should be. I would be very pleased to hear from my noble friend what he believes the situation currently is.

I have just one word of caution. I fear that environmental protections are not as secure as perhaps we might be led to believe by this Government. We have just had brought into effect two ground-breaking free trade agreements with Australia and New Zealand, both of which have set lower standards for imported meat and foodstuffs, which do not meet the same requirements of animal welfare and environmental protection such as our home producers have to meet. That is another source of concern.

Perhaps my overriding concern is that we have seen already—despite the fact that they said that they would not do this—that the Government have overturned primary legislation through secondary legislation in the form of a statutory instrument in the past two weeks.

I have outstanding concerns on these amendments, but I respect the fact that our power is limited to scrutiny in this Chamber. I believe that the Bill is in a better place than when it was first introduced to this House, but I have concerns about what will happen when it leaves this place.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly to express great concern about the lack of any offer on non-regression. I am going to bring this back to the absolute physical reality of the UK and the England that we are in today. In the other place, the Science, Innovation and Technology Committee has started an inquiry into the impact of insect decline on food security. If anyone wants to see the practical reality of this, I invite them to go out the back of the Foreign Office today, where a wonderful wildflower meadow has been created—they should go and look at it and ask where the insects are, because there are practically no insects there.

We have insect decline and a decline in our plants. Non-native plants now outnumber native plants in the UK: that is the state of the UK today. We have, right now, a huge, category 4 marine heatwave, which is going to have a huge impact on our marine world. It is very clear that the protections for the environment that we have now are vastly not enough, yet we are not promising even to maintain them. I ask everyone in this House to consider what people in the future will think when they look at today’s debate.