Retained EU Law (Revocation and Reform) Bill

Baroness Ritchie of Downpatrick Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

It requires very little imagination to see that this is an area of our law where we cannot afford mistakes. Rushed work, which we are faced with, is dangerous. It invites mistakes. I am afraid that the ideology which is the driving force behind this legislation does not seem to care about that. Getting rid of EU-derived legislation by the end of this year is its priority; it should not be, given the importance of these common frameworks. I suggest to the Committee that we cannot let the Government get away with that. That is the basis for these amendments.

[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.

Retained EU Law (Revocation and Reform) Bill

Baroness Ritchie of Downpatrick Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

Finally, although I have not signed them, I commend to the Committee Amendments 68, 69 and 69A, which have the virtue of addressing Clauses 4 and 5, as well as Clause 3. As I hope is apparent from what I have said, very similar principles apply in relation to those clauses. These are strong amendments but if we are to get to grips with the grave uncertainties prompted by this part of the Bill, amendments of this kind are the very minimum we will require.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, this has been a very interesting debate so far. I want to speak to Clause 3 standing part and Amendment 142, which is in my name and that of the noble Baroness, Lady Suttie. We are both of the firm view not only that the Bill should be withdrawn but, in particular, that it should be amended to remove Clause 3 or to retain Section 4 of the European Union (Withdrawal Act) 2018 to the extent that it preserves retained EU law which gives effect to human rights, equality and environmental protections in Northern Ireland, including all legislation that falls within the scope of protocol Article 2. The noble Baroness, Lady Ludford, has already referred to that point.

Why is that the case? Undoubtedly, Clause 3 removes an additional layer of protection for human rights and equality provisions in domestic law. For example, in research undertaken for the Northern Ireland Human Rights Commission, rights under the EU trafficking directive, which the commission has identified as falling within the scope of protocol Article 2, were identified as being safeguarded in UK law by Section 4 of the European Union (Withdrawal Act) 2018. The repeal of Section 4 of that Act would have no bearing on enduring obligations under protocol Article 2 but it would create a risk of confusion in this regard. I do not think your Lordships can afford to tolerate that fact.

A complex, inaccessible and confusing statute book could lead to an inadvertent breach of these obligations, particularly for organisations that have statutory duties conferred on them by the UK Government to look into Article 2 provisions as they relate back to the Good Friday agreement. Moreover, where there are measures that protect equality and human rights which were retained EU law by virtue of Section 4 of the 2018 Act and which are outside the scope of protocol Article 2, these safeguards will fall unless otherwise preserved, resulting in a loss of rights.

In this regard, I have three questions for the Minister. I ask him for an assurance—perhaps in writing—that the provisions of the Bill are without prejudice to Section 7A of the European Union (Withdrawal Act) 2018, in the absence of this clarification being included in the Bill; and that the UK Government or the devolved authority will, before the Bill takes effect, establish a comprehensive notification process for the law that is to be sunsetted, extended or preserved. In the case of Northern Ireland, we do not have institutions at the moment. What consideration was given by the Government to compliance with Article 2 of the protocol in the development of the Bill? It seems clear to me that one hand does not know what the other hand is doing according to legislation.

Amendment 142 seeks conformity with Section 7A of the EU withdrawal Act which gives domestic effect to the UK-EU withdrawal agreement. The Minister, when responding, needs to demonstrate to your Lordships’ Committee how the Bill will be in compliance with Article 2 of the protocol. Unfortunately, the Explanatory Memorandum does not show how this will happen.

The Minister also needs to demonstrate how the Government can seek consent from Northern Ireland with the lack of an Executive and Assembly. How will the process of reviewing, revoking, replacing or restating retained EU law by 2023—some nine and a half months down the road—be carried out in Northern Ireland? Those special considerations must be taken into account. Therefore, Clause 3 should not stand part of the Bill.

[Lord Hannay of Chiswick (CB)]

My Lords, I would like briefly to refer to this group of amendments, particularly to the aspects which seek to give the Government some flexibility as they go along this road. I am not wishing to address the cut-off dates, because that has been liberally described and debated already in earlier amendments, but the points that the noble Lord, Lord Whitty, made.

I am sorry to see that the noble Lord, Lord Callanan, is leaving the Chamber as I was about to address a question to him. I will address it to his colleague instead. I wanted to get on to the ground covered by the noble Lord, Lord Whitty. He talked about the possibility that some of the actions the Government wish to take will cut across our obligations under the trade and co-operation agreement or other international agreements and treaties, and will put the Government of the day in a very awkward and difficult position. Flexibility would give them a way of handling that.

I know that the author of this Bill wanted, like Ulysses, to stop his ears with wax and tie himself to the mast—the only difference being that he would not be on the boat when it hit the rocks. Other than that, that was what he was trying to do, and I do not think that is a sensible thing to do. Some flexibility, as suggested by some of these amendments, would be better. I say that because, until the events of Monday this week and the announcement of the Windsor Framework, one could imagine that the Government would have just said too bad, or words that are not repeatable in this Committee used by the former Prime Minister. However, I do not think that is the situation we are in now. We are in a situation where the Prime Minister and the Government have said that they wish to move in the direction of greater co-operation and flexibility, working with the EU. But here they are, stopping their ears with wax, tying themselves to the mast and making it very difficult to do that.

Here are my questions. It is no secret that the ambassadors of member states and of the Commission are deeply disturbed by this Bill. Anyone who has had any contact with them will know that. Could the Government say if they have received any representations about this Bill from any of the member states or the Commission? If so, what was the nature of those representations and what has their response been? I know the Minister does not much like being interrupted when he is winding up, so I hope he will answer that question because it will save me the trouble of interrupting him. His colleague, the noble Baroness, Lady Neville-Rolfe, will no doubt tell him what the question was. I would be grateful to hear the answer.

Retained EU Law (Revocation and Reform) Bill

Baroness Ritchie of Downpatrick Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

I turn briefly to Amendments 135 and 143 in the name of the noble and learned Lord, Lord Hope of Craighead. I am grateful for the support he shows for the devolved legislatures and value greatly his expertise in the legal issues surrounding their powers. His amendments have my full support.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I will speak in support of the two amendments I submitted, along with the noble Baroness, Lady Suttie. Amendments 119 and 127 would ensure that substantial policy change with regards to human rights, equality or environmental protection in Northern Ireland may not be effected or take place via the exercise of delegated powers.

Last Thursday, I referred to the importance of protocol Article 2, which deals specifically with equality and human rights considerations in Northern Ireland. I have had several conversations, as has the noble Baroness, Lady Suttie, with the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. They are concerned by the breadth of delegated powers provided under the Bill and the potential for the inadvertent breach of protocol Article 2 or the wider diminution of human rights, equality and environmental considerations via ministerial action, or inaction, in the absence of detailed parliamentary scrutiny. I ask the Minister whether that will be the case. What mitigations will be in place to ensure the protection of protocol Article 2?

The tight deadlines of the restatement of REUL by the end of 2023 and assimilated law by 2026, and the scale of the task to be achieved in that time, create a risk of gaps in legislative coverage. It may also contribute to further uncertainty and a potential breach of Article 2 if REUL essential to the no diminution commitment is not preserved or restated with set deadlines. A general convention on this principle was enunciated by the Constitution Committee, which reported in 2018 that

“we have identified a number of recurring problems with delegated powers. We have observed an increasing and constitutionally objectionable trend for the Government to seek wide delegated powers, that would permit the determination as well as the implementation of policy.”

That begs the comment that not much has changed in five years.

The Bill gives effect to a significant body of policy relating to human rights and equality, including employment legislation and EU regulations providing for the rights of disabled people, much of which will fall unless preserved or restated by Ministers. Under Clause 15(1), to which Amendment 119 refers, Ministers may revoke secondary REUL without replacing it, creating potential policy change with limited scrutiny. In addition to being given powers in subsection (2) to replace secondary REUL with provisions with the same or similar objectives, Ministers are also given significant additional powers to replace REUL with alternative provisions in subsection (3), which is of particular concern.

Problems will emerge in exercising these powers, as Ministers are not under a duty to consult on the REUL that is being replaced. Even though the powers granted are time-limited, both the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission believe that they are too widely drawn and will provide insufficient scrutiny, potentially leading to conflict with obligations under Article 2. Our Amendment 119 to Clause 15 would curtail the powers to revoke or replace secondary retained EU law affecting human rights or equality protections in Northern Ireland to ensure continuing adherence to the UK constitutional convention of providing for policy change via primary legislation, with technical and operational detail addressed in subordinate legislation.

Ministers need to engage with stakeholders, including both commissions, and human rights and equality organisations before using delegated powers to replace REUL. Will the Minister give an assurance that that will happen? I know that the noble Baroness, Lady Suttie, will refer to this issue, but will the Minister undertake to meet representatives of both commissions in Northern Ireland to discuss this issue further and help assuage their concerns?

Our Amendment 127, relating to Clause 16, provides for powers to be granted to Ministers to modify and amend REUL and restate or assimilate law or provisions replacing REUL as they consider appropriate to take account of changes in technology or developments in scientific understanding. The use of this power is subject only to the negative procedure, so changes made under it may not require active parliamentary approval. This power will not be time-limited. Our Amendment 127 seeks to ensure that the delegated power to modify legislation may be used for dealing with minor and technical matters only.

I have two questions for the Minister. First, will he meet with both commissions? Secondly, can he provide assurances today that the delegated powers in the Bill to modify legislation will be used to deal with minor and technical matters only, and that any substantive policy change to the law in Northern Ireland, including to human rights and equality law, will be made via the primary legislative process?

We must not forget that both commissions were set up under statute to manage Article 2 of the protocol, which deals specifically with equality and human rights and goes back to the Good Friday agreement. Can the Minister set out what consideration was given to ensuring compliance with Article 2 in the development of this Bill, and ensure that there will be no detrimental impact on the precious commodity of devolution in Northern Ireland or our special arrangements in Northern Ireland under the protocol and the Windsor Framework?

[Baroness Suttie (LD)]

My Lords, I rise to speak briefly to Amendments 119 and 127, to which I have added my name. Like my noble friend Lord Bruce, I apologise to the Committee: for a variety of reasons I was unable to attend the previous debates on devolution. The noble Baroness, Lady Ritchie of Downpatrick, has given detailed background to these amendments and made a powerful set of arguments in favour of them. I just want to re-emphasise a couple of the points she made.

As the noble Baroness said, these two amendments would ensure that no significant policy changes relating to human rights, equality or environmental protection in Northern Ireland could be implemented through the use of delegated powers. As it stands, the Bill does not give enough consideration to the very particular set of circumstances faced by Northern Ireland. There are multiple layers of existing international commitments through the Good Friday/Belfast agreement, the Northern Ireland protocol and now the Windsor Framework, and it is not entirely clear to me how all these commitments will fit in with the Bill and which will take precedence.

The Minister will be aware that, as the noble Baroness, Lady Ritchie, set out clearly, the Northern Ireland Human Rights Commission has expressed strong concerns about the sheer number and scope of delegated powers provided for in the Bill and the potential impact of the protocol on Article 2, which guarantees “no diminution” of certain human rights and equality protections. As the noble Baroness spelled out, the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland are deeply concerned that the Bill as drafted may accidentally or otherwise result in breaches of Article 2 of the protocol. Article 2 touches on a range of equality and employment rights protections that could be unpicked, not least because it is open to a certain degree of interpretation.

These concerns about the potential impact on Northern Ireland are exacerbated by the continuing absence of an Assembly or Executive in Northern Ireland. A functioning Executive and Assembly would have provided an additional layer of oversight and scrutiny in safeguarding Article 2 of the protocol. As a result of the lack of a Northern Ireland Executive, the Northern Ireland Civil Service is already extremely stretched. The Bill will almost certainly impose an extra set of burdens on it, not least given the unrealistic timescales involved.

I strongly support the request from the noble Baroness, Lady Ritchie, that the Minister meet representatives of the Northern Ireland Human Rights Commission in order to hear at first hand their very real concerns. I look forward to hearing the Minister’s response.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think the noble Baroness was talking about adding to the burden of legislation, which is Clause 15.

[Baroness Ritchie of Downpatrick (Lab)]

On a different point, I thank the Minister for the assurances that she has provided us with in relation to Article 2 of the protocol, but could she also indicate whether she is prepared, if required, to meet both commissions? I understand that one commission is responsible to the Northern Ireland Executive and the other directly to the UK Government. Would that be possible? Maybe in the fullness of time, if the Minister wants to reflect on that request, she could provide us with an answer in writing.

[Baroness Bloomfield of Hinton Waldrist (Con)]

Certainly, more relevant Ministers will be meeting all the time, as well as officials, to discuss these issues, and they are probably the best and most appropriate channels of communication.

Retained EU Law (Revocation and Reform) Bill

Baroness Ritchie of Downpatrick Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

Now that there is no sunsetting at the end of the Bill, we do not have a time constraint on gaining consent, so I hope the Government will not say that this will impose a time limit, because it would be possible to have a very fast turnaround through Minister-to-Minister communication for an individual SI that affects devolved law. In summary, I hope that the Government will accept Amendment 75. I do not necessarily expect that they will accept Amendment 39, but if they do not do anything in this area, it threatens the whole constitutional arrangement of the UK as it now stands.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I speak to Amendments 41 and 46 in my name. These amendments would ensure that a substantial policy change in human rights, equality and environmental protection in Northern Ireland may not be effected by the exercise of delegated powers. Given the ongoing lack of a functioning Executive and sitting Assembly, this raises serious concerns about the implementation of the Bill in Northern Ireland, and the amendments in my name would add a helpful safeguard in these challenging circumstances. Therefore, to be brief, I ask the Minister to give careful consideration to, and accept, the amendments as a means of ensuring that the devolution settlement in Northern Ireland is protected and that issues of equality and human rights and environmental considerations are all protected, as required under the Good Friday agreement.

[Baroness Humphreys (LD)]

My Lords, I shall speak briefly to amendments in this group tabled by the noble and learned Lord, Lord Hope of Craighead, to which I have added my name, and I thank him for introducing the amendments so clearly and comprehensively.

I am grateful to the noble Lord the Minister—or perhaps to the noble Baroness, Lady Neville-Rolfe—for the concessions the Government have brought to Report. The Bill is in a better state than when we first debated it at Second Reading, and many of the House’s concerns have been addressed, but there remain some significant issues pertaining to the Bill on which I hope that the Minister will look favourably.

The amendments deal with obtaining the consent of the devolved legislatures to the making of regulations that fall within their devolved competence, and equivalence of powers for Ministers where the provisions of regulations again fall within the devolved competence of the legislatures. It is clear that these amendments do not seek additional powers for the devolved legislatures; they merely secure those powers that the legislatures already have—powers devolved to them by this Parliament but which the Bill ignores or chooses to overlook.

One of my main concerns about the Bill in its original form was that it usurped the powers of this Parliament and those of the devolved legislatures, and this view was echoed across the House. In Committee, I was heartened to hear strong and powerful speeches from those on Benches across the House in support of the devolved Administrations and legislatures, and I thank those who spoke for their support.

The noble Baroness, Lady McIntosh of Pickering, reflected my view when she said—and I hope my précis of her comments does her justice—that she might not necessarily support a political party in power in a devolved legislature, but that her focus and support was on the legislature itself. I think that reflects the view of many in this House, and certainly those on these Benches.

In his letter to us, the Minister said that he had listened to the House and, in fairness, he has—to an extent. I hope he is still in listening mode and, as I said earlier, will be able to look favourably on these amendments.

Finally, as this will be my last contribution in debates on the Bill, I express my gratitude to the noble and learned Lord, Lord Hope of Craighead, for the part he has played in its progress and improvement. His leadership, knowledge of constitutional and devolved matters, forensic legal analysis of the Bill, and tenacity have made a massive contribution and have led us to where we are today. We have an improved Bill, and it can be improved further by the Minister accepting the noble and learned Lord’s amendments. In the event of him wishing to press any of them to a vote, he will have the support of these Benches.