Retained EU Law (Revocation and Reform) Bill

Baroness O'Grady of Upper Holloway Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

I close with the hope that my noble friend may be able to reassure me that my concerns are unfounded, that I have misinterpreted the wording of Clause 15 and that it will not in fact prevent individual regulations that are ineffective or out of date from being modernised and improved, simply on the grounds that the regulatory burden attached to them might increase. If this is not the case, Amendments 121 and 123 would enable the Government to take a more flexible approach to designing replacement regulations and charting a post-Brexit regulatory landscape that seeks to enhance the economy while supporting consumer rights and protections.

[Baroness O'Grady of Upper Holloway (Lab)]

My Lords, I would also like to speak in support of the amendments on the definition of regulatory burden, because the truth is that throughout our history, one person’s burden has also possibly been somebody else’s vital protection. This is particularly true in respect of employment rights.

It was good to hear the Minister talking positively about the living wage, which started life as the national minimum wage. As somebody who campaigned for it, I vividly remember huge opposition and resistance to the introduction of a national minimum wage, precisely on the grounds that it would be a burden on employers, cost too much and so on. Of course, today, it is now seen as one of the most successful policy innovations this country has ever delivered. I might add that it has been delivered on the advice of one of our few remaining tripartite bodies to make recommendations to government—the Low Pay Commission.

I am also particularly concerned about this clause’s impact on equality. Equal rights for part-time workers, which we also campaigned for, meant that, for the first time, millions of women in particular had access to occupational pension schemes. Without doubt, some might describe that as an administrative burden and an added cost for employers. I would argue that driving up labour standards is good for productivity, protects the decent employer against the bad and is ultimately good for our country. We want a country where people can work and retire with dignity. This clause is really unhelpful: the definition of “burdens” is unhelpful and does not appear to consider the impact on ordinary working people at all. It would be wise to drop it.

[Baroness Ludford (LD)]

My Lords, we have heard some excellent contributions in this debate, not least the latest one from the noble Baroness, Lady O’Grady, and those of the noble Lord, Lord Lucas, and the noble Earl, Lord Lindsay. My noble friend Lord Clement-Jones made an extremely powerful case on product safety in online marketplaces. In the course of his contribution, he, like others, tested or tried to probe what “subject area” means—the Bill says, “a particular subject area”. I am afraid we are rather used to this, but the letter that we received from the Minister simply repeated that and did not explain it. It said:

“it will be possible for a single instrument made under … clause 15 to increase the regulatory burden, so long as this increase is offset by a decrease of regulation in the same subject area.”

But it did not enlighten us about the scope of a subject area, because that is a very subjective definition.

The noble Lord, Lord Lucas, said that if civil servants were considering one new measure they would have to look at all of the past measures. I suggest that they would have to look at all of the anticipated future measures as well and be Mystic Meg, because they need to know what is coming down the track to take any kind of view of what a single instrument might do to the weighting of the scales in the balance and amount of regulation. It is a bit of a lottery whether any single measure will fall foul of the overall regulatory burden test.

I note that the Minister’s letter admitted that

“There is no definition of regulatory burden in the Bill, as the Government considered that such a definition could unnecessarily constrain departments given the considerable variety in what is covered in regulations across Government.”


This is not the first time that we have been told that we must not unnecessarily constrain departments—which means unnecessarily constrain Ministers. So consultation, analysis, publication of the results of consultation and the role of Parliament all have to fall by the wayside because we must not unnecessarily—that is a loaded word—constrain departments: that is, constrain Ministers. The Government are acting in a very arrogant and high-handed way. They are getting too big for their boots by saying that nothing should be allowed to constrain ministerial powers. I am quite fed up with it.

So we are not getting any satisfactory explanation of how Clause 15 will be applied, and we cannot have any confidence, given the factors in Clause 15(5), that it will not lead to a de facto lowering of standards. That is the whole thrust of what has been talked about, and the whole rhetoric around the Bill, which started as the Brexit freedoms Bill, so it is very difficult to trust the assurances we have had that Ministers do not intend to lower standards.

During an evidence session with the House of Lords Environment and Climate Change Committee, the Secretary of State for Defra referred to the goal of the Environment Agency

“to change quite a lot of the water framework directive”.

That immediately makes one somewhat worried. It may well be that we need a sensible approach to looking at the water framework—and even my favourite one, the urban waste water treatment directive—but it is well known, and a source of great public concern given the state of our rivers and seas because of the discharge of raw sewage, that tackling the dire state of our waters will not be possible without substantial investment, which would trigger both a financial cost and the profitability limbs of Clause 15(5). So how will Clause 15 be a route through which the Government deliver improved environmental outcomes? There is a simple contradiction at the heart of all this.

The noble Lord, Lord Benyon, has told the Committee several times that the Government are committed to maintaining high environmental standards and that they want to see standards improve in future, but the whole thrust of Clause 15, particularly subsection (5), pulls in the opposite direction. You can just see water companies coming along and saying, if we require them to improve our pipes—which are bursting all the time, not least in my neck of the woods in Islington—and to stop raw sewage discharges by having better treatment facilities, that it will reduce their profits, which are of course being creamed off, with no benefit to consumers and citizens. So it is clear that the thrust of all this is towards a lowering of standards, and it is really impossible to believe the opposite of the case.

Finally, I will speak to the weakness of the “same or similar objectives” test. The reason for us wanting to replace “objectives” with “effects” is because you could have a law which might have the same or similar objectives of protecting consumers, but which will achieve the objectives in ways which are controversially different. I will leave noble Lords with the example of parental leave. The noble Baroness, Lady O’Grady, talked about various employment areas, and one of those rights is to parental leave. If Ministers wanted to have replacement regulations under Clause 15, they could argue that they could decide to give employers the right to refuse leave rather than just postponing it, as they are able to do in narrow circumstances where the operation of the business would be unduly disrupted. The Government could say, “Oh, well, we would be pursuing a similar objective of creating provision for parental leave while protecting businesses from being disrupted”. But if you gave employers the right to refuse leave—pursuing the similar objective because it is about parental leave—you would be driving a coach and horses through the parental leave rights.

Clause 15 is riddled with weaknesses and dangers; it is a “Here be dragons” clause, and it should be removed. It cannot be improved, and it should be taken out of the Bill.