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

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.

Non-Domestic Alternative Fuel Payment Application Scheme Pass-through Requirement Regulations 2023

Baroness McIntosh of Pickering Excerpts

Tuesday 16th May 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, this instrument was laid on 17 April 2023 and debated yesterday in the other place. Its purpose is to ensure that the financial benefits from applications to the non-domestic alternative fuel payment scheme are passed through to end consumers. I thank the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee for their consideration of and comments on the regulations.

In response to the unprecedented rise in energy prices resulting from the Ukraine war, we have delivered critical support to households, businesses and other non-domestic consumers. Moving at considerable pace, the Government brought forward emergency legislation on energy support last year, paving the way for financial support to be delivered rapidly across the entire United Kingdom. The non-domestic alternative fuel payment scheme serves a crucial purpose in ensuring that businesses and organisations which are not on the gas grid and instead rely on alternative fuels for heating are not left behind and receive comparable support to users which are on the gas grid. Businesses, organisations and other non-domestic customers that use alternative fuel are receiving £150. These payments were disbursed through electricity suppliers, in most cases as a credit into the electricity supply accounts registered at qualifying properties. The vast majority of customers entitled to a payment will have already seen this credited to their bills.

We are providing the additional top-up payment to businesses and organisations consuming a very high volume of kerosene heating oil. An application service was opened on 20 March so that eligible non-domestic customers could claim this additional payment. We also provided an application process for businesses and organisations to apply for the basic £150 payment in the limited circumstances where this would not have already been received through electricity suppliers—for example, for alternative fuel users who do not have an electricity supplier and therefore did not receive a payment through this route.

This instrument plays an important role in making sure that support reaches those who need it. We have already brought forward regulations with respect to the main part of the scheme: the £150 payments delivered through electricity suppliers. This instrument complements those earlier regulations and extends that principle of pass-through to payments made in relation to the application process that commenced on 20 March.

I appreciate that some noble Lords are already familiar with the purpose of pass-through requirements, as we have brought forward several similar instruments before, not least the previous instrument in relation to this scheme. For those who may not be so familiar, let me explain what they do.

This instrument makes it mandatory for intermediaries to pass the financial benefit of the scheme on to end- users. It takes the same approach as the previous instrument and those relating to other price support mechanisms such as the energy bills support scheme and the energy bill relief scheme. That is needed because some payments will necessarily be made to intermediaries such as commercial landlords rather than the end-users, who ultimately bear the brunt of inflated energy bills. Where support is provided to an intermediary, we need to make sure that it can be appropriately passed on to the end-user.

Perhaps it would be appropriate to clarify what we mean by “end-user”. In the case of the non-domestic alternative fuel payment, an end-user is an individual, business or organisation which consumes energy or energy products and pays for that consumption indirectly through an intermediary. An example would be a tenant business paying for its energy usage through a service charge or all-inclusive rent.

As with the other energy schemes, this instrument requires support to be passed on in a just and reasonable way. The Secondary Legislation Scrutiny Committee has previously asked about the term “just and reasonable”, so let me clarify what these regulations are working to achieve. The regulations have been drafted in this way to account for the many kinds of relationships between an intermediary and an end-user. If the Government took a narrow definition of “just and reasonable”, there is the risk of inadvertently excluding some intermediaries from the pass-through requirements. This also accommodates scenarios where intermediaries have multiple end-users to pass the support on to. The regulations also make it clear when and how intermediaries should communicate with end-users, regarding the benefit being passed on.

I now turn to enforcement. The approach in this instrument is consistent with other energy schemes. If an intermediary does not pass on the benefit to an end-user who is entitled to it, that end-user will be able to pursue recovery of the benefit debt through civil proceedings. Should a court rule in the end-user’s favour, they would be entitled to the payment plus interest. The interest is set at 2% above the Bank of England’s base rate.

The regulations also require intermediaries to provide information to end-users. For example, intermediaries must inform end-users of the amount of scheme benefit that has been received, the amount that will be passed on and the remedies available to the end-user. I thank the Joint Committee on Statutory Instruments for its comments on the enforcement of this requirement. Again, our approach is consistent with that taken in the earlier pass-through regulations for this scheme and across the other energy schemes.

With respect to that requirement to pass on information, it is important to reiterate that, in our view, there would be insufficient incentive for end-users to make use of an enforcement mechanism given the time and administrative burden involved in doing so. For that reason, the regulations do not provide a specific enforcement mechanism in relation to the obligation on intermediaries to provide information to end-users. Nevertheless, we consider that there remains value in retaining this requirement in the instrument, on the basis that we expect the vast majority of intermediaries to comply. This is aided by the Government’s publication of guidance on the GOV.UK website to ensure that requirements are clear to all parties. The guidance includes template letters to support end-users, such as tenants, that they can use to contact their landlords, should they be concerned about the application of pass-through requirements.

In conclusion, this instrument is vital to ensure that support reaches the people that it is designed to help. It is essential to the effectiveness of the non-domestic alternative fuel payment across the UK. It will ensure that intermediaries pass on the support to those who really need it, and that businesses and organisations paying for energy indirectly as tenants are properly supported at this time of high energy costs. It is with all these important reasons in mind that I commend these regulations to the Committee.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend and the department for bringing this measure forward—it is deeply appreciated among businesses. Do we know what the duration of the support will be in this regard?

I take this opportunity to thank the department for bringing forward the impact assessment as part of this, because we are very quick to criticise departments when they do not include such assessments. On this occasion, however, it is very thorough and greatly appreciated. I have learned a new term—counterfactual. I am not quite sure what it means, but we are told that the option of this support is being considered against a “counterfactual of doing nothing”. I do not know whether this is yet another Americanism that has crept into the English language.

I shall just press my noble friend on one point. He has been quite clear about how the intermediaries are responsible for identifying the end-user, yet on page 4 of the 36th report, printed on 10 May by the Joint Committee on Statutory Instruments, it is clearly stated that the committee wishes to report defective drafting in Regulation 5. This refers to the fact, stated in paragraph 3.2 of the report, that there is

“no mechanism in the Regulations for enforcing these requirements. This reflects an approach adopted in previous instruments dealing with the pass-through of scheme benefits by intermediaries”.

How does my noble friend and the department respond to that charge against them?

That is the only question that I have. I wholeheartedly welcome the regulations before us this afternoon. It is extremely important that the support is given, particularly in areas such as rural areas which are off grid.

I know I said that that was the only comment that I had, but I have one last question. On the £150 going to the smaller users, does that mean that the civil action can be pursued through the small claims court, which obviously would not significantly add to their costs, if they had to bring such a claim to which my noble friend referred? I thank my noble friend and the department for bringing forward the statutory instrument before us today.

[Lord Teverson (LD)]

I thank the Minister for a very familiar speech. Obviously, in principle, we very much support the statutory instrument. What struck me about it, if I am honest, is that when it arrived in my inbox I thought, “I thought we’d done all this”. If you look at the graph on the impact assessment—like the noble Baroness, Lady McIntosh, I welcome it—the big heist in energy prices was in June last year, so we are a long way through from that, by almost one year. Maybe I have misunderstood something, but it seems to have taken a huge amount of time. I realise that the statutory instrument came into effect in April, but it seems an awfully long time has been taken in managing to get this amount of money. It may not be large, but it is important to non-domestic users.

I would be interested to understand from the Minister how well the pass-through mechanism has worked to date on the other scheme. Have there been complaints and have there been any court procedures for people to claim their 2% on their proportion of the original amount of money? Have there been complaints to the department, or has the Minister found that the scheme has worked fairly well so far, as I would hope?

I would also be interested to understand the number of businesses that the department expects should benefit from this scheme. That may be in the impact assessment— I tried to find it there, but I could not, and my apologies if that is so.

I want to come back to the area of enforcement. The Joint Committee was strong on this and rightly so. Big amounts of money may not be involved here but whoever wrote this statutory instrument, as with the previous one on pass-through, must have had their tongue well in their cheek when they said that people could go through a civil claim and get 2% on the money outstanding, given that, at most, it is a fraction of £150. This is still an invitation for people to say, “What the heck? I’m not going to bother with this bureaucracy and I’m not going to do it”. For a country that takes the rule of law seriously, it is a principle that when one has a statutory obligation, there is a method of enforcement if that is ignored. It may not be used but it should be there.

I therefore should be interested to hear from the Minister on those areas, particularly on how successful the existing pass-through arrangements have been to date.

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.

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[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.

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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”

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[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.

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[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.

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[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.

Energy Bill [HL]

Baroness McIntosh of Pickering Excerpts

3rd reading
Monday 24th April 2023 Lords Chamber

[Lord Teverson (LD)]

My Lords, one of the things that strikes me most about the passage of the Bill through this House is that it is has been the opposition parties saying to the Government, “Get on with it. We actually need this Bill through to give the powers that we need to meet decarbonisation and modernise the energy production system in this country”. I agree with the noble Lord, Lord Lennie, that the amendments that have been made by this House are absolutely in line with the Government’s decarbonisation objectives. I hope that the Commons, as well as the Government themselves, will consider them as positive rather than negative.

I will not go through the long list of other Peers named by the noble Lord, Lord Lennie. What I will do is to say a great deal of thanks to Peers for the Planet for its work in the House, to the noble Lord, Lord Lennie, and to the noble Baroness, Lady Blake, whom I have enjoyed working with very much indeed. From our own offices, I thank Sarah Pughe and Sarah Dobson.

We look forward very much to not having to play ping-pong on this Bill. Maybe that is too much to hope for but I thank the Ministers, the noble Lord, Lord Callanan, and the noble Baroness, Lady Bloomfield, for their co-operation during the passage of the Bill. I also thank their teams. I look forward most of all to the Bill being implemented, so that the country as a whole can move ahead in its aims and objectives.

[Baroness McIntosh of Pickering (Con)]

My Lords, I congratulate my noble friend on steering such a major Bill through. I am mindful of the fact that it was originally going to be an energy security Bill. I know that I and a number of noble Lords focused on the environmental aspects, particularly the mitigation hierarchy. I welcome the fact that this is to be enshrined in the levelling-up Bill, and look forward to pursuing it further on that Bill with my noble friend on the Front Bench.

I ask my noble friend to be mindful of the fact that the Scandinavian countries, led by Denmark, have raised a flag about Russian vessels masquerading as fisheries vessels. These are, it is assumed, purposefully undertaking spying operations, particularly to look at the underground cables and the major offshore wind farm operations, notably operated by Denmark. I understand that we are to have a major operation where a lot of this work will co-ordinate around the Dogger Bank, so I urge him to be mindful of the security risk associated with such a major area of the North Sea, where we are extremely vulnerable to such operations by Russian and other forces which may not be so conducive to our energy security as we might wish.

Energy Bill [HL]

Baroness McIntosh of Pickering Excerpts

Report stage
Monday 17th April 2023 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

104: After Clause 244, insert the following new Clause—
“Marine habitats: reducing effects of offshore wind developments(1) The Secretary of State may, by regulations, prohibit offshore wind developments in marine protected areas.(2) The Secretary of State may, by regulations, prevent consent being granted for an offshore wind development if the mitigation hierarchy has not been followed.(3) “Mitigation hierarchy” means a framework for developers to address harms to biodiversity and ecosystems caused by developments, based on the sequential and iterative application of actions to avoid, mitigate, and then compensate for, such harms.(4) Subsections (1) and (2) apply to—(a) an offshore installation used for or in connection with wind energy generation;(b) offshore infrastructure, including cables and pipelines, connected to such an installation;(c) infrastructure connected to such an installation that is being decommissioned, has been decommissioned, or has been abandoned.(5) Regulations under this section are subject to the affirmative procedure.”Member’s explanatory statement
This new Clause would strengthen protection for marine protected areas from damage related to energy infrastructure and ensure the mitigation hierarchy is followed.

[Baroness McIntosh of Pickering (Con)]

My Lords, it gives me great pleasure to speak to Amendment 104. I look forward to hearing from other noble Lords with amendments in this group, notably the noble Lord, Lord Teverson, looking at the prohibition of coal mines in Amendment 131. Amendment 124, tabled by the noble Baroness, Lady Sheehan, looks at the prevention of flaring and venting, which causes great concern. The noble Baroness, Lady Bennett of Manor Castle, also has an amendment looking at the

“Prohibition … of new oil and gas fields and issuing of exploration licences, and of new coal mines”.


I will restrict my remarks to the mitigation hierarchy. I start by saying that I welcome the government amendments to the Levelling-Up and Regeneration Bill—Amendments 373A through to 373F—which I understand will add the mitigation hierarchy to that Bill. I thank my noble friend the Minister and his colleagues in DLUHC for listening to the concerns expressed by myself and other noble Lords at earlier stages of proceedings.

However, I will press my noble friend to confirm the extent to which this commitment applies only to new environmental outcome reports. For greater clarity, will this matter relate to all environmental outcome reports or just the new ones that will take effect at that time? Further to that, for my better understanding and to assist the House in considering Amendment 104, to what extent will tests be included within these environmental outcome reports? What will those tests cover? Will my noble friend go as far as to say that the tests will cover the site assessments involved in offshore wind planning?

The purpose of Amendment 104, which I am delighted to have the opportunity to speak to today, is to strengthen the protection for marine protected areas from damage related to energy infrastructure, and to ensure that the mitigation hierarchy is followed. I was delighted to serve on the EU Environment Sub-Committee, chaired by the noble Lord, Lord Teverson, for a short period. We took compelling evidence on the serious disruption caused by both the construction and operation phases of wind farms. So I put to my noble friend the Minister that ample academic and other evidence proves that this damage to sea mammals, seabirds and other creatures—indeed, to all marine life—is substantial.

This is a probing amendment and I do not intend to press it to a vote, but I would be interested to learn to what extent the addition of the mitigation hierarchy, in the amendments that the Government have tabled to the levelling-up Bill, will cover these points—namely, that this will apply to all environmental outcome reports and that this will cover site assessments involved in offshore wind planning. Earlier, I argued that there should potentially be a moratorium—I am sure the Government would not welcome that—on new applications for offshore wind developments, until we understand that the mitigation hierarchy will be followed. With those few remarks, I beg to move Amendment 104.

--- Later in debate ---

[Lord Callanan (Con)]

I did organise a recent meeting with officials to discuss the issue, at the request of the noble Baroness’s Front-Bench colleague, the noble Lord, Lord Teverson. The noble Baroness had the opportunity to attend if she had wished to.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful for the discussion that we have had on the various amendments in this group, and that my noble friend the Minister referred to the use of coal on heritage railways. I am delighted to say that I am president of the North Yorkshire Moors Railway and hope that we can continue to enjoy the spectacular scenery and days out that heritage railways offer.

I am disappointed that my noble friend missed an opportunity to explain to the House specifically which areas the amendments to the levelling up Bill will cover. Rather than detain the House further at this stage, I will pursue that through Written Questions, where I will have to get an Answer. I beg leave to withdraw my amendment.

Amendment 104 withdrawn.

Electricity Supplier Obligations (Green Excluded Electricity) (Amendment) Regulations 2023

Baroness McIntosh of Pickering Excerpts

Monday 20th March 2023 Grand Committee

In conclusion, the Government, in consultation with industry, have seen a clear rationale for the amendments to the regulations to improve the operation of the EII exemption scheme, and, through removing the green excluded electricity exemption, to bring a closer alignment between a GB electricity supplier’s market share and its proportion of the contracts for difference scheme costs. The green excluded electricity amendment also delivers part of the Government’s priority to address the UK legislative legacy of being a member of the EU. The exemption will continue to apply in respect of electricity supplied up to 31 March 2023. I commend the regulations to the Committee.

[Baroness McIntosh of Pickering (Con)]

My Lords, I assume that we will take both SIs together. I thank my noble friend for bringing forward these two regulations, with which I broadly agree. I will limit my remarks to the Electricity Supplier Obligations (Excluded Electricity) (Amendment) Regulations.

I listened carefully to what my noble friend said. He said that the costs arising from the scheme will be distributed to all other users. Does that mean all other users, both domestic—that is, households—as well as industrial? If that is the case, is this part of the charge on standing charges? I will put down a marker—and I hope my noble friend will agree with me—that it seems very unfair that at this time of household stress and cost of living constraints, standing charges are the one element of a bill that we are not able to control. As individual householders we can control the unit charge, but we cannot control the standing charge. Therefore, if this is being spread across all users, both domestic and industrial, as my noble friend indicated, it seems a little unfair that this will be or is already an additional cost on the standing charge. Would it be possible at some stage to have a general debate on what constitutes the standing charges? I realise that that is not the purpose of today’s debate, but that would be very helpful indeed. My question is, what is the impact of this measure, with which I am in broad agreement, on household bills?

I absolutely accept that the EII plays a useful role, covering high electricity-using businesses such as, we are told, in the very helpful paragraph from the Secondary Legislation Scrutiny Committee report on this, energy-intensive users in sectors such as

“steel, paper, plastics, chemicals, cement and glass.”

Cement and ceramics are often overlooked, despite being high-energy users. That paragraph also says that the charge covers potential market failures:

“the Energy Intensive Industries … Exemption Scheme”—

to which my noble friend refers—

“offers an exemption for eligible companies to receive a discount from their electricity costs to address high energy costs and potential market failures.”

Another question that arises from this is: in the event of a market failure relating to an industrial user in this category—I am sure that a number may be teetering on the edge—is it left to the others in this category to pick up the costs of that failure, or is it once again a charge to all users, domestic and industrial?

My two final points are, first, that no impact assessment was done, which possibly might have been useful. Secondly, paragraph 10.8 of the Explanatory Memorandum states:

“This consultation ran for 5 weeks and closed on the 16 September 2022.”


That seems a short period to run a consultation which covers the holiday period. Was there any particular reason for that, or had the department taken other soundings before it launched the formal consultation? However, with those few queries, I support the two regulations before us this afternoon.

Cleaner Energy Technologies

Baroness McIntosh of Pickering Excerpts

Tuesday 14th March 2023 Lords Chamber

[Lord Callanan (Con)]

I would indeed be disappointed if the noble Baroness did not raise the subject of onshore wind. She partly answered her own question in that she knows that we are consulting on revising the planning policy framework. I think she is doing us a bit of a disservice. Sweden has a different topography and interests from those of this country. Where we have a world-leading operation is, of course, in offshore wind, where we have the biggest offshore wind farm in the world—and the second, third and fourth. We are truly world leading.

[Baroness McIntosh of Pickering (Con)]

My Lords, has my noble friend made an assessment of the amount of water needed to create hydrogen for use in energy technology? Is this going to be an issue in areas of the UK that might be water-stressed at this time?

[Lord Callanan (Con)]

If there is one thing many parts of the UK are not short of, it is water. The noble Baroness’s point is partly valid in that we need substantial quantities of water for producing electrolytic hydrogen, which is fundamentally electricity and water, so that is something we need to bear in mind in terms of location.

Carbon Budgets: Methane Flaring

Baroness McIntosh of Pickering Excerpts

Thursday 9th March 2023 Lords Chamber

[Lord Callanan (Con)]

These are complicated technological and economic matters. If it were as simple as the noble Baroness makes out, we would do it, but we are working to do it as quickly as possible. The figures that I quoted are from a press release from the North Sea Transition Authority that was issued today—the authority must have seen the noble Baroness’s Question. Flaring is down by 50% since 2018. We must not get this out of proportion; of the UK’s methane emissions, only 1.6% are from the oil and gas sector, compared with the likes of the 49% that come from agriculture.

[Baroness McIntosh of Pickering (Con)]

My Lords, does my noble friend the Minister accept that there is a huge amount of methane leakage from landfill sites? How do the Government propose to deal with the methane escaping from those sources?

[Lord Callanan (Con)]

My noble friend makes a good point. Some 30% of our emissions are from the waste sector, which is one of the sectors where we are doing our best to try to reduce emissions because the gas is valuable and can be used, and indeed it is trapped on some sites. We have a system of supporting anaerobic digesters to deal with the waste; they can produce green gas that is then fed into the gas main.

Green Investment

Baroness McIntosh of Pickering Excerpts

Tuesday 7th March 2023 Lords Chamber

[Lord Callanan (Con)]

The noble Lord would not expect me to comment on detailed negotiations with particular companies. We have long had a policy of open and free trade, but we have some relatively limited and targeted investments, including in the automotive sector, which have proved very successful. We are not going to follow the lead of the US and close our borders to foreign competition.

[Baroness McIntosh of Pickering (Con)]

I congratulate the Government on the investment in National Savings bonds. Will my noble friend tell us what the level of investment has been and what type of projects have benefited from them?

[Lord Callanan (Con)]

I am afraid I do not have that information to hand. I will need to write to my noble friend.