Retained EU Law (Revocation and Reform) Bill

Baroness Young of Old Scone Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, I declare my environmental interests that are in the register.

In my 25 years in your Lordships’ House, I do not think I have ever heard a Bill so roundly condemned from all quarters. I welcome the noble Lord, Lord Hodgson of Astley Abbotts, who, although he supported Brexit, is clear, as was his committee, that the Bill itself is unsupportable.

Lots of other noble Lords have said that the Bill takes powers from Parliament and hands them to the Executive, that it is a super-framework Bill or that it is super-skeletal, but I have a simple term for it: it is a pig in a poke. We are buying something that we do not know what it is going to be when we vote it through.

It is basically a deregulatory measure. The Clause 15 measures have been paraphrased as, “Ministers can do anything provided it doesn’t increase regulatory burden”, which is defined as

“a financial cost; … an administrative inconvenience; … an obstacle to trade or innovation; … an obstacle to efficiency, productivity or profitability”.

That is pretty clear and no-bones. It is about deregulation, despite the fact that regulation is often most simple and efficient way of achieving environmental outcomes.

I shall focus on the environmental issues in the Bill. Of the 3,700 pieces of EU retained law—as is currently the case; we have seen the dashboard wobble about quite a bit regarding the number of pieces of legislation that is estimated, so I do not think 3,700 is the last word—1,781 are in Defra’s court, four times more than any other department. This is the department that has already been ticked off twice in the last four months by its new environmental regulator, the Office for Environmental Protection, for not meeting the targets and deadlines that Defra itself set. So I do not really have a lot of confidence that Defra is going to be able to cope with reaching decisions about four times more pieces of EU retained legislation than any other department.

I am a very sad human being and I have read the list of 1,781 pieces of Defra legislation. I would agree with the Minister, were he to say this, that some are indeed minor, some have lost their relevance as a result of us leaving the EU, and some of them are a bit tech-y. I am sure the Minister will agree with me on that. For example, I enjoyed reading the one on

“additional guarantees regarding salmonella for consignments to Finland and Sweden of laying hens”.

That looked like a showstopper to me. However, some pieces of retained EU legislation in that list are substantial, long-standing and deeply woven into the fabric of environmental protection in this country at national and local level, and are accepted by many people as vital, operational and well constructed.

I know that the habitats regulations are a bogeyman for deregulators, but the one thing that we have to remember is that they are effective because we invented them. The noble Lord, Lord Heseltine, talked about safeguarding British self-interest—although I disassociate myself from Mrs Thatcher in that. We showed British self-interest in negotiating and leading the EU into adopting a highly effective protection system for biodiversity of species and the habitats on which they depend. We were a mover and a shaker in the EU; this was not stuff that was done to us.

I thank the Minister for meeting us last week over the Bill. When pressed, he will tell us that alternatives to the habitats regulations have already been devised in the Environment Bill and, now, in the levelling-up Bill, but that has not been made clear while we have debated these Bills. Not once during the passage of the Environment Bill was it stated that its priorities were—

[Baroness Bloomfield of Hinton Waldrist (Con)]

Will the noble Baroness conclude her remarks?

[Baroness Young of Old Scone (Lab)]

I will finish in two seconds. Not once during the passage of the Environment Bill was it stated that its provisions were intended to replace the habitats regulations. This is no sort of process, where alternatives are inserted piecemeal rather than laid out to show how they match up to what is being done away with.

The Bill is cosmetically and disastrously aimed at getting rid of EU legislation before the next election at any cost.

[Baroness Bloomfield of Hinton Waldrist (Con)]

The noble Baroness has exceeded the speaking limit by some margin. It is time for the noble Baroness, Lady Jones.

[Baroness Young of Old Scone (Lab)]

I recommend that your Lordships’ House not amend the Bill but not pass it.

Retained EU Law (Revocation and Reform) Bill

Baroness Young of Old Scone Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Callanan (Con)]

The noble and learned Lord knows I have tremendous respect for him and there is a great deal of sense in what he says. If we are getting into a discussion about the sunset, it is my view and the Government’s view that we can do all of this, given the current sunset. Work is under way across Whitehall in the new business department on employment law and in Defra on environmental regulations to do exactly that.

[Baroness Young of Old Scone (Lab)]

My Lords—

[Lord Callanan (Con)]

I will give way in a second; let me answer the previous point before the noble Baroness makes another. I think it is perfectly possible and work is under way in the business department and in Defra, which have many of these retained EU laws, to do precisely that. As Committee proceeds, I hope to be able—maybe I will not be able, but I will do my best—to convince the Committee that we will be able to do this in time, with the given sunset. I give way to the noble Baroness.

[Baroness Young of Old Scone (Lab)]

Would the noble Lord perhaps admit that the only way in which the timetable can be met is by not undertaking the sort of consultation we have come to expect, and indeed enjoyed, during the passage of all this legislation over many years, which has resulted in it being EU retained legislation? My personal sphere of knowledge is the work in Defra. I am desperately worried that many of the things emerging from Defra that are purportedly a replacement for EU law are not being portrayed as that when they come out, and they are not being consulted on in any way whatever. I do not believe that the EU retained law workload can be done by Defra in time without it being a fait accompli by Ministers that is not consulted on and does not go through a process in this House that allows us to have any influence on it. So I would like the Minister to assure us that there will be a full process of consultation that can be contained by the deadline.

[Lord Callanan (Con)]

“Yes” is the answer to the noble Baroness’s question. All new regulations will be subject to a period of consultation. I have to say, with great respect, I would have a little more sympathy for the noble Baroness’s argument had any of these regulations been introduced into UK law in the first place with a period of consultation—but, of course, we all know they were not. Many of the people complaining now that these regulations are so valuable never said anything at the time about the process by which they were introduced. But I accept that is a difference of principle between us.

As I said, our high standards do not and never have depended on EU law. Ministers will have the power to preserve such retained EU law from the sunset where appropriate. Building on some of the earlier points made by the noble Baroness, Lady Humphreys, this includes Ministers in the devolved Governments. As such, it is the Government’s contention—I suspect it is one that will not draw much sympathy from the Opposition—that there is simply no need for any carve-outs for individual departments, specific policy areas or sectors, particularly when I have been able to reassure the Committee on the principles of maternity rights and employment law as a whole.

Retained EU Law (Revocation and Reform) Bill

Baroness Young of Old Scone Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

The simple fact of the matter is this: if there is any threat at all, we know what will happen—we will have another beef ban or a dairy ban. It is self-evident what will happen. People will say, “You can’t trust the Brits. They did it before in the 1990s; now they’re moving back again”. Why put our industry, the jobs and the confidence at risk when this could be solved easily today? Even a letter after today could solve this by the end of Committee, rather than having to deal with it on Report. I am not raising the doubts; I am just spelling out some of the facts about what Ministers who tried to deal with these issues have experienced. The noble Lord, Lord Krebs, has given the scientific views on this. The fact of the matter is that there is enough evidence for Ministers to take action now, go back to the department and say, “Take out all the food safety connected stuff”, because we cannot afford to lose confidence in our food production system.

[Baroness Young of Old Scone (Lab)]

My Lords, it is a great privilege to follow my noble friend Lord Rooker. I really commend his sentiment of, “If it ain’t broke, don’t fix it”, although I probably disagree with the methodology he would use. The amendment in my name excludes the legislation governing pesticides from the sunset in Clause 1. These regulations are vital, as are the food standards regulations. They provide protection for biodiversity and human health, and they help to support the UK’s food safety and agricultural sustainability processes.

I say at the outset that I do not actually believe that a series of exemptions from the sunset clause fixes the Bill. It is a bonkers process to take an as yet unsized task and set an arbitrary, hard deadline before you know what the size of it is. That was the sort of thing I remember being taught in day one of management school never to do, but we seem to be at that point. The reality of the Bill is that it needs much more radical surgery, and pesticides are one of the examples I want to give of the sort of radical surgery it really needs.

I have tabled this amendment for three reasons. The first is to illustrate how important pesticides are. This is an area where protections are vital, and the Bill jeopardises those. Again, the pesticide issue is just one example of many that other noble Lords have given of the recklessness of the Bill, with its commitment, in my view, to feeding the out-of-control European Research Group, swivel-eyed end of the Conservative Party, irrespective of the impact on the public and environmental safety and to the exclusion of all other drivers. Secondly, pesticides are only one example out of the 1,781 pieces of legislation that Defra has to review before December. Thirdly, I want to touch briefly on how fundamentally rotten the Bill is, with its power grab in favour of the Executive and against Parliament and the interests of the people of this country.

Let me dwell briefly on the pesticides issue. Over the 10-year period from 2000, big strides were made, often significantly led by the UK in Europe, which brought into European law a suite of pesticides legislation that protected human health and biodiversity from harmful exposures to pesticides and ensured that horticultural and agricultural practices reduced their impact on people, animals and biodiversity.

They were vital protections. In the area of pesticides, virtually all our law is European law. The Bill would put all this at risk of being deliberately watered down or accidentally binned. The EU legislation was crafted with significant input from experts, including UK experts, and after wide consultation with organisations representing human and animal health and safety interests and environmental interests. We were in there. Following committee examinations in the European Parliament and parliamentary processes involving MEPs, the legislation was approved by the Council of Ministers, on which we had Ministers. Therefore, we cannot really say that these regulations have been produced by a process that we did not have much control over, because that sounds like scrutiny and political involvement to me. Defra has 1,781 of these to review before December, so in all likelihood that level of scrutiny, consultation and expert advice, to that depth, will be pretty impossible before then, bearing in mind the volume of these regulations.

Going back to the importance of pesticides, they are not called biocides for nothing. The clue is in the title. They are designed to kill life. They can be used safely only with specific safeguards. When I wrote this, I said that this risks Ministers tampering, without let or hindrance, but the “sticky fingers” analogy, from the noble Lord, Lord Rooker, is probably a good one. Secondary legislation is not enough to say that Ministers have got let or hindrance because we all know about the inadequacy of the statutory instrument process.

Additionally, the review process that is under way is a regressive one. Even if it were to find that there is a need for improvement, it cannot do that due to the requirement in the Bill to avoid increasing the regulatory burden. Whatever emerges from the review is almost certain to be limper than what existed before. Apart from workload issues, in terms of the review to meet the deadline, Ministers have not shown themselves to be terrifically trustworthy on pesticides when left to their own devices. Last year, the use of neonicotinoids was approved when all the member states of Europe had banned them—we had gone along with that ban many years ago—in a move which was against the advice of the new pesticides regulator, the Health and Safety Executive. At a time when we are all concerned about the reduction in pollinators that we rely on to secure our food and our biodiversity, Defra approves a biocide that kills bees in droves and has been banned since 2007 due to the impact on human health. Your Lordships can see why I am a little doubtful on trust.

This is also the Defra that in 2018 promised an action plan on pesticides. Five years to 2023 does not sound like a lot of action to me. We are still waiting for that action plan. There has been no plan for increasing the capacity here within the UK to replace that loss of expert EU bodies and the depth of their expert advice. The UK Expert Committee on Pesticides, based here, is purely advisory. Ministers make the final decision. That does not fill me with confidence that this review process will be well handled against huge workloads and a hard deadline. And if your Lordships think that Defra is up against it, try Northern Ireland, which has to go through the same process, with the same volume of legislation, with no Assembly in place, no Ministers in place, and no means of passing any of the secondary legislation. On the basis of the Northern Ireland discussions, this looks set to continue for weeks, if not months, to come. Northern Ireland also has the added attraction of standing with a leg on each of two circus horses, the UK and the EU, that are increasingly diverging in standards and policy.

It is highly likely that the changes to the pesticides and other regimes could break the law. There has already been reference to the EU-UK Trade and Cooperation Agreement, which we signed and which commits:

“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period”.


Diminishing the standards in pesticide protection in any way would break that agreement, in my view, but of course I have forgotten that this Government appear not to care too much about agreements with the EU.

Many noble Lords have said that businesses are not happy about the review process. Businesses constantly tell us—when I was chief executive of the Environment Agency, they told me at breakfast, lunch and dinner—that what they need from a regulator and from regulation is certainty, long lead times and consultation. This review process provides none of these.

I am sure that the Minister—I do love trying to get into the Minister’s head; it is the sort of thing that you do of a weekend—will say that he understands that Defra is already well-advanced with all these reviews. I understand that Defra has buckets; there is one big bucket for legislation that is going to be dumped as of December 2023. There is one small one, probably justifiably small, for regulations that will pass through unamended—if I can say this; I think that in terms of Defra this is a totally valid analogy—like shit off a shovel. But there is another big bucket, which is the bucket where the regulations for review sit. That is still a big bucket, despite many Defra regulations being shed. So the plea I would make to the Minister is that I think that this process—rather than the Bill, which I think is fatally flawed—would be hugely helped if Defra would show us its buckets. Show us your buckets. What is in each, and what is the process for the remaining reviews on those buckets where review is required? It might reassure us; it might not. But it will at least allow parliamentary discussion, public discussion, business discussion and expert discussion on whether the process is going well and how big a mountain we have to climb.

I make no apologies for banging on about pesticide safety, but it is only one example of the risks of this Bill. One down, only another 4,000 to go. I am not going to go into lyrical raptures denouncing the basic unconstitutional nature of the Bill, handing powers to Ministers to act without real let or hindrance, not just this year but until 2026 with the capacity to extend the sunset, and also for ever for that legion of direct EU law which will now be regarded as secondary legislation and therefore be amendable without any real ability of Parliament to make a difference.

I am not a remoaner; I am not against proper review of EU retained and direct law, but I just do not think that this Bill is the proper way to do it. I can see that the noble Lord, Lord Callanan, is smiling—I am definitely not a remoaner. As a very minimum, the Government should remove the sunset. If it was intended to spur on government departments and civil servants to bring out their EU legislation, it has had that effect. It is entirely risky to commit to an end date for a complex process of review, complicated by issues of devolution, particularly in Northern Ireland. The commitment to review all of the legislation at the same time to a very tight deadline breaks every management and good governance rule. The Government should be bringing lists of what legislation is in what bucket, for consultation by Parliament and to allow Parliament to debate these before any revocation or revision is then processed through a proper parliamentary process.

Clause 15, the regulatory burden clause, should be removed, to allow legitimate review to come forward with proper improvement, if necessary, that would allow debate here on whether that is undue regulatory burden. You could either say that that is an amended law or say, “Let’s go back to the drawing board and start again”. I do not mind particularly, but it means that we need to do something more radical than simply having exemptions from the sunset clause.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think the best thing I can do is commit to giving the noble Lord a definition of “regulatory burden” in writing in due course.

[Baroness Young of Old Scone (Lab)]

When the Minister writes, can she also give us an indication of how that definition has already been shared with government departments, which are busy reviewing their legislation? They are presumably using some sort of metric—do we weigh the buckets by the pound? Is it the impact on business or is it the public good that is delivered? The Treasury has argued for years about the methodology for judging the benefit—or otherwise—of legislation. I would be interested to know what sort of guidance has been given to government departments.

[Baroness Bloomfield of Hinton Waldrist (Con)]

We will give as much further clarification as we can.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

In terms of the dashboard, the vast majority of the work is already done, but there will be bits that will be added or found, most of which will be from old legislation. Most of the relevant work has already been done, but it is still subject to review.

[Baroness Young of Old Scone (Lab)]

It is good to hear that the dashboard is nearly finished; it has been interesting watching it emerge. Your Lordships will be glad to hear that I have read every single environmental provision in the original documentation that is on that list.

I wonder if the Minister could tell us about what happens when the buckets are published—not the list but the buckets we are sorting into. I do not know if your Lordships have ever watched that telly programme, “Snog Marry Avoid?”—that shows how intellectual I am on a Friday night—but I kind of typify the buckets like that. The “avoid” one is for the ones that we are going to get rid of because nobody really wants them; the “marry” one is for the ones that we all think are wonderful and we are going to just give a straight run through; and the “snog” one is for the ones that we have to spend a bit of time on to find out whether they are really up to it or not. The quicker we can get the buckets published, the better. Will the buckets come out early enough for this Parliament to play a proper role in coming to some conclusions and helping the Government decide whether they have everything in the right bucket? There might be a little desirable treasure tucked away at the bottom of one of the wrong buckets that we all cherish.

[Lord Fox (LD)]

I am sorry to keep labouring this point, but the Minister keeps introducing new information. In referring to the dashboard, the Minister implied that the dashboard is the list. Nowhere in this legislation is the dashboard referred to. What is the legal status of the dashboard with respect to the sunset?

--- Later in debate ---

[Baroness Young of Old Scone (Lab)]

We also seek clarification on something the noble Lord, Lord Callanan, said at Second Reading: that there will be impact reviews, as the Minister has said, of new legislation, which is what we would expect under the normal statutory instrument procedure. But what is not clear is whether there is any impact review of stuff being put in the “avoid” bucket. If stuff is going to be left to go out the door on 31 December, is there going to be any proposition showing our loss or gain on those? If not, why not?

[Baroness Bloomfield of Hinton Waldrist (Con)]

Not in terms of regulatory review, but those decisions will be taken within departments, and they will be sunsetted.

Retained EU Law (Revocation and Reform) Bill

Baroness Young of Old Scone Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I think exact groupings of the regulatory area will be a judgment for the relevant Minister. The letter was trying helpfully to point out that there was the possibility of some increase in burdens in some areas, provided there were compensating decreases, because what we are trying to do, following our exit, is to implement regulations that work better for the UK, while maintaining our high standards. People seem to have forgotten that there can be problems with regulations.

[Baroness Young of Old Scone (Lab)]

I am two sentences behind the Minister in what she says permeating my consciousness, but on this business of the regulatory burden, how will we know and where will the discussion take place about the Ministers weighing up comparative regulatory burden—the apples and pears—and coming to a conclusion about what can be increased, enhanced and improved and what must go as a result? As she said, we will see statutory instruments for changes but, for things that simply drift away, get amalgamated and disappear, where do we see them and how do we judge whether the Minister has come to a good decision about comparative regulatory burden?

[Baroness Neville-Rolfe (Con)]

To make progress, I should make it clear that Clause 15 is the main clause and that there are a number of amendments on that group, on which we can no doubt have a longer discussion, but I should like to make progress on transport.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I am very glad that the noble Lord, Lord Benyon, has found time to join us for the debate on this group of amendments. If he will permit me, I would like to take advantage of his presence here to ask him two questions.

The first relates to the dashboard, and I think he was present for at least some of the debate about that. One of the points made by the noble Baroness, Lady Randerson, in concluding was that there is no mention in the Defra section of the dashboard of any legislation relating to Scotland or Wales. She was not entirely right about that; I was looking at the dashboard today and I detected 30 entries that refer to Scotland and 15 to Wales, but they are all in the section of the Defra list that deals with agricultural policy. There are many other areas that Defra covers, but, so far as I can detect, none of the legislation from the devolved Administrations has yet been listed on the dashboard. Is Defra still making efforts to discover from the devolved Administrations whether they have legislation relating to the other areas for which it is responsible? It is very important that we have a complete list, at some point, of the legislation in the different policy areas.

My noble friend Lord Krebs suggested that the figure that he gave, which I think was 1,781, was slightly doubtful. The figure can be arrived at by simple arithmetic because each item in the list is given a number, and you can work down the list. The total list at the moment contains 3,746 items. I made the number of Defra items 1,780—although perhaps my arithmetic was a bit defective—so that is a major part of the list so far, which is why the Minister’s presence here is so important. Completing the list at some point is important, so is the Minister aware of other areas where the devolved Administrations are working to complete the list to include their legislation as well?

The noble Baroness, Lady Hayman of Ullock, suggested the great pressures that Defra officials were under to achieve what they are being asked to achieve, but what she said applies equally to the devolved Administrations. I understand that for Scotland to try to grapple with the Defra area so far as it refers to it, its manpower—or its workforce, I should say, to avoid gender problems—is at most 10% of that which Defra enjoys, and they have pressures of their own. They have work already going on which is under extreme pressure. Now, on top of that, we find that they have to detect where the retained EU law measures are that have to be looked at, so there is an immense problem for them. My supplementary to the dashboard point is: is the noble Lord satisfied that the devolved Administrations can achieve what they need to in order to identify the legislation in the other policy areas, and in a reasonable time to achieve the sunset? My impression at the moment is that they are under such pressure that it is highly unlikely they will be unable to do that.

The second question is rather different and relates to common frameworks. The Minister may be aware that of the 32 common frameworks that the Common Frameworks Scrutiny Committee has been dealing with, under the chairmanship of the noble Baroness, Lady Andrews, 14 are Defra-related. At least some of them seem to deal with areas that are within the list that the noble Baroness, Lady Hayman has concocted—“concocted” is the wrong word; I should say “put together”—including chemicals and pesticides; animal health and welfare; fertilisation regulation, which of course affects water quality; and the whole area of organic farming, agricultural support and so on. Can the Minister identify for us which of the items on the noble Baroness’s list fall within a common framework?

We have amendments later dealing with the need for special treatment of common frameworks because of the way in which they are organised and the system that exists for amendments to frameworks that are achieved by consensus. It is important that we know what we are dealing with. At some point we will have to know which of the various regulations on the Defra list are within common frameworks and which are not. Is it possible for the noble Lord to conduct an exercise to look at his list to identify which are common frameworks-related and which are not? I do not expect him to be able to achieve that today, but it would be extremely helpful to us on the committee chaired by the noble Baroness, Lady Andrews, to know what we are dealing with, particularly with regard to the amendments that we will discuss later on.

[Baroness Young of Old Scone (Lab)]

My Lords, I declare my interests as chairman, president or vice-president of a broad range of environmental NGOs. I too welcome the presence of the noble Lord, Lord Benyon, and look forward to his responses.

I support Amendment 10, in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville, on excluding the habitats and species regulations from the sunset clause. As the noble Baroness, Lady Parminter, said, the habitats and species regulations are fundamental to protecting sites and biodiversity in this country and environmental protection generally, and cannot be put at risk at any price.

Protected sites under the habitats regulations are the special areas of conservation and special protection areas. They are really the jewels in the crown of nature conservation in this country. They cover a tiny proportion of the land surface, less than 5%. I would be of the view that the jewels in the crown deserve a high level of protection. The regulations have been very effective in reducing loss and damage to protected sites over the last 20 years. It used to be that on average 17% of our protected sites were damaged every year. We are now down to 0.17%, which is admirable.

Those regulations were developed by Brits in the EU. The RSPB, BirdLife International, the WWF and Stanley Johnson, the former Prime Minister’s father, all worked with the Dutch and other member states. This is not unwelcome EU regulation that was forced on us but proper, welcome protections that were crafted by Brits, and rightly so, for those important sites.

Proper protection for that small number of ultimate sites and species is vital, because they make what we care about in the countryside, and what is special in the countryside, safe. If all noble Lords think of the natural and wild places that they cherish, many of them will be special areas for conservation or special protection areas under the habitats regulations.

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[Lord Hannay of Chiswick (CB)]

My Lords, I will speak in support of Amendments 26 and 27. Amendment 26 moved by the noble Baroness, Lady Ludford, is about consultation. You can have your views on the value of consultation, the amount of time taken up by it and so on, but it is a normal practice in legislating in our time. To move away from it, which is what the Government will do with the replacement provisions they may move forward, seems aberrant and contrary to all normal practice.

The trouble is that the two amendments are a bit linked, because if you accept Amendment 26 it is even clearer than it is now—it is clear beyond peradventure—that you are not going to get through all that by the end of this year. I can see why the Government are driven to refusing to commit themselves to consultation, because it simply cannot be done in the time available. In my view, that is an argument in favour of Amendment 27 in the name of the noble Baroness, Lady McIntosh of Pickering. I hope the Government can give some ground on the consultation issue; otherwise, we will probably get some legislative proposals that not only are very hasty but have not been tested by the people to whom they will be applied. That seems entirely contrary to our practice these days in bringing forward legislation.

On Amendment 27, I find it very odd that the Government are clinging to the sunset of the end of 2023. It seems unrealisable—some would say suicidal—and it will bring nothing but discredit on the Government when the chaos that is caused actually supervenes. In any case, whether you think that or not, just reflect on something that the noble Lord, Lord Benyon, said to us in the debate on the last group of amendments. He told us that four teams of officials are working on deciding which of the instruments to be caught by the cut-off should be postponed until 2026 and which should go ahead. If you removed the 2023 sunset, you would save those four teams all their work; all they would need to do is work out what to do by 2026—or, as the noble Baroness suggests, by 2028. I am less sure of that; to my mind, it would be quite sufficient simply to remove 2023 and to leave 2026, as it is in the legislation. That offers a reasonable amount of time to carry out an exercise.

It also demonstrates that those of us tabling or supporting these amendments are not refusing to replace European Union law. Quite the contrary—we understand the basic logic behind what is being done, but we find that the timing is absurd and damaging to our economy. I hope that the Minister will respond positively, both on consultation and on removing the 2023 sunset, even if he does not find 2028 very beguiling.

[Baroness Young of Old Scone (Lab)]

My Lords, I will speak to my Amendments 46 and 47 to the Minister’s Amendment 45, which no doubt he will speak to soon. My amendments add environmental measures to the Minister’s amendment, which exempts financial services measures. Tabling the amendment was rather a flight of mischief, because I thought that, as imitation is the sincerest form of flattery and since the Minister had tabled a fine amendment to get financial services out of the Bill, perhaps I could just follow his good example. I thank him very much for giving me that good idea.

I am sure that the Minister will say he tabled his amendment because the Financial Services and Markets Bill provided a considered and more sensible approach, which it did—but we perhaps need a considered and more sensible approach for all the important issues covered by EU legislation and caught by this Bill. I am talking not just about environmental issues but about consumer and trading standards and workers’ rights. Do they not justify a more considered and sensible approach, rather than this wholesale gallop towards a self-imposed deadline for a constantly shifting number of pieces of law, as listed on the dashboard, which continues to change and presumably will do so right up to the arbitrary deadline? It is a gallop that is diverting huge amounts of civil servants’ time, and all because a few Conservative MPs are allergic to anything that has “EU” in it.

Retained EU Law (Revocation and Reform) Bill

Baroness Young of Old Scone Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Baronesses, Lady Parminter and Lady Hayman, and to speak to Amendments 126 and 130, which they have already so ably introduced and to which I have attached my name, both of which have the fullest and broadest possible range of support across parties and non-parties in your Lordships’ House. I essentially agree with everything the noble Baronesses said, although I would perhaps give the Government rather less praise for what I would say are the extremely limited measures on polluter pays they have so far delivered than the noble Baroness, Lady Parminter, did.

First, on Amendment 126, Clause 15 has been described as the “Ministers can do whatever they like” part of the Bill. I note that the Peers for the Planet briefing, among others—I should declare my position on the advisory board of Peers for the Planet—says that the direction of travel of the Bill is deregulatory. We are hearing one set of rhetoric, but ultimately, what we are talking about is the law and what will be written into it. That is what will hold sway, not fine words we might hear about a desire for higher standards. It is important also to stress that both amendments deal with environmental issues, but these are also very acutely human health issues: look at the current parlous state of public health in the UK. We really cannot afford to be going backwards in any such areas.

Amendment 126 tries to address the fact that there are no non-regression clauses in the Bill. This is trying to bring in a non-regression clause in one area. I would like a non-regression clause to apply to every category, whatever a category is, that the Bill might identify, but I will stick with the things that are identified in these two amendments, at least as some kind of starting point. When we come to Amendment 130, it is clear—and we had long and hard fights in your Lordships’ House, as I recollect, in the Environment Act 2021—that we need non-regression clauses, and there is also the power to amend what we are now calling retained EU legislation, so it is there in primary legislation; the power already exists, with rules applying to it.

I am not a lawyer and I am not sure whether the lawyers present in the Committee can explain to me how we can have non-regression clauses applying to a set of regulations in one Bill while another Bill has no non-regression clauses. It depends which Bill you use as to whether regression or non-regression is going to apply. Let me guess which law the Government are likely to want to use. Let us have a guess, shall we?

I turn to Amendment 126, and I am seeking to add to rather than repeat what the other noble Baronesses have said. I want to focus on ensuring that we do not conflict with relevant international environmental agreements. I am actually not sure about that, with the way this is currently written—and indeed this is a fast-moving area. Of course, since this amendment was written, we have finally had, after 20 years of negotiation, very excitingly, the agreement on the high seas treaty. That is a real step forward. We also have a mandate for negotiating a UN treaty on plastic pollution. This is where a significant amount of environmental action is happening. We can surely have something in the Bill to say, “We will comply with the international agreements that we have signed up to”, and, indeed, in many cases that we claim to be, and in some cases are, leading.

It might be said that we do not need to do that, but if it is not a problem for the Government, why cannot we write it in anyway? Many noble Lords will have just picked up the Illegal Migration Bill, on the front of which is a statement from the Home Secretary:

“I am unable to make a statement that, in my view, the provisions … are compatible with the Convention rights, but the Government … wishes the House to proceed”.


I truly believe that we need a statement written into this Bill—perhaps every Bill—that we will comply with international obligations that we have signed up to.

Finally, I turn to the non-regression elements in both amendments and the paragraph in the famous letter about overall regulatory burden and what a “category” is. It might reasonably be thought that regulations applying to plastics are a category, so I will explore a practical example of what these amendments could stop. In the last week or so, some extremely disturbing research has come out on the impacts of microplastics; in particular, the newly identified disease of plasticosis. It has been found in the digestive tracts of flesh-footed shearwaters—that is only one seabird, but the experts tell us that there is no biological reason why what is happening to it is not happening to all of us as we ingest what research suggests is up to 5 grams of plastic a week, depending on your diet.

The disease has been given that name because it is like silicosis and asbestosis: it is an inorganic material causing irritation to biological tissues. This is really serious. A few days ago, the Times quoted Dr Luisa Campagnolo, an expert in histology and embryology, as telling the American Association for the Advancement of Science that

“we should not drink bottled water in plastic bottles.”

That is what someone who is looking at the damage being done to tissues is saying.

Let us imagine that the science gets stronger in the next year or two—we can see the direction in which it is heading—and we want to bring in an SI to end all use of plastic bottles for food materials and drinks. What could be the conceivable counteracting release of regulation to achieve a balance of no greater regulatory burden? What in the area of plastics would you have to abolish to balance that? These amendments attempt to deal with issues such as that.

[Baroness Young of Old Scone (Lab)]

My Lords, I support these two amendments and congratulate the noble Baronesses, Lady Parminter and Lady Hayman of Ullock, on the way in which they introduced them. It is slightly ironic that the Government have just published their Environmental Improvement Plan, yet we do not have any sentiment of improvement in this Bill. In fact, we have a distinct deregulatory flavour with this emphasis on not increasing burdens.

In a way, I will miss this Committee, because we have been getting these wonderful letters from Ministers over the last few days. I thank the hot and cold running supply of Ministers wheeled in for this Bill for their correspondence on the issues we have raised on the various days of Committee. I confess that today’s letter from the noble Baroness, Lady Neville-Rolfe, on the safeguards around Clause 15 did not leave me any the wiser on the definition of “alternative provision”, but perhaps most germane to these amendments was the letter of 28 February from the noble Baroness, Lady Bloomfield, on the definition of “regulatory burden”. It left us all, as many noble Lords have said, confused about how not increasing the overall regulatory burden will be assessed—other than, as the Minister has just told us, that it will be up to Ministers to decide whether they are satisfied that the use of the power does not increase the overall regulatory burden in a subject area. I am sure that case law will have to prevail.

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[Lord Benyon (Con)]

If the noble Baroness will allow me: Britain is revered in many of the fora that I have attended, whether COPs or other UN events, for the leadership we have taken on this. We cannot do it internationally unless we do it domestically as well. That is why our 30 by 30 commitment is so important and why we will achieve proper management of our marine protected areas by the end of next year, which will deliver precisely on the 30 by 30 commitment for the marine environment.

[Baroness Young of Old Scone (Lab)]

My Lords—

[Lord Benyon (Con)]

The noble Baroness, Lady Parminter, was before the noble Baroness.

--- Later in debate ---

[Lord Benyon (Con)]

Forgive me, I think that is dancing on the head of a pin. Taxation is not a matter for this piece of legislation.

[Baroness Young of Old Scone (Lab)]

I was going to ask the noble Lord something else, but I support what the noble Baroness, Lady Parminter, said.

It is kind of fruitless if we ping-pong across, with Ministers generally saying that we are right behind current levels of environmental protection, international commitments and all that. I wonder whether we could try a little test case on the habitats regulations, which we have made some changes to already through the Environment Act, and a number of changes to them are already embedded in the levelling-up Bill. Some bits of those regulations are left for which I do not know what the Government’s intentions are. Inevitably, for something such as protected areas and our commitment to 30 by 30, not having a clear view from government as to how the habitats regulations will fare in this review process, which is under way through two separate pieces of legislation already, is a bit of a worry when we have to sort that out before the end of the year.

Perhaps we could use the habs regs as a test case and ask the Minister to map out for us what has been sorted in the Environment Act, what will be sorted if we approve it in the levelling-up Bill and what is going to happen to the remainder of the provisions of the habs regs before they fall off a cliff at the end of this year. That would give us a lot more confidence in some of the assertions—which we absolutely accept the Minister is making in good faith—about not diminishing standards and not welshing on or diminishing our ability to respond to our international obligations.

[Lord Benyon (Con)]

I totally respect the noble Baroness for her commitment on these issues. I know she would not want legislation that sealed the habitats regulations in aspic for ever, because the environment changes and demands change and Parliament has to reflect that occasionally regulations need amending. We may well want to raise the standards of those regulations.

[Baroness Young of Old Scone (Lab)]

If I can correct the Minister on that, this retained EU legislation Bill has a hard edge. As of the end of December, if nothing else has been done it does not set it in aspic but sets it eight feet under.

[Lord Benyon (Con)]

If we maintain it as is, it will not fall at the end of the year. If we want to reform it, it will be in the form of an SI, as before, so noble Lords will have a chance to debate it. The noble Baroness seems to be presupposing that somehow we are just going to allow it to sunset, and we will not.

I will make a bit of progress, if I can. We want to positively—I think this answers the noble Baroness’s point—tailor our legislation to our new status as an independent nation. This is why we do not consider the proposed conditions for such regulations necessary.

Amendment 130 seeks to add a new clause to the Bill relating to environmental standards. This amendment would introduce a new clause requiring Ministers to meet the additional conditions set out within it. It would also specify that, when exercising these powers, the relevant national authority must have regard to the conservation and enhancement of biodiversity, the improvement of water quality, and the protection of people and the environment from hazardous chemicals. I recognise that the noble Baroness, Lady Hayman, may have concerns about the powers within the Bill and the impact their use may have on regulations related to environmental standards. I reassure her that such concerns are unfounded.

A number of noble Lords talked about the water framework directive. I shall relate very quickly an experience I had when I came into government with the Liberal Democrats in the coalition. I visited a river that was feeding into the Wye—a river that is often raised in this House for its condition. I visited a mill-house. Its owners said that they had been there for eight years. They pointed at some farm buildings about half a mile away and said, “When we came here we couldn’t see those farm buildings. Two metres of top soil has been lost in the eight years we have been here.” I asked where it was now and they showed me the millpond round the other side of the house which was full of the delicious red soil that comes from that area. I said, “How could this have happened?” The farmer who had allowed it to happen was receiving money from the basic payment scheme, and probably from the countryside stewardship scheme, but no one had visited, or if they had visited they had not raised this issue. The river authority—or whoever was in charge of the quality of the rivers; it was the Environment Agency at the time—had not raised the issue.

That was 12 years ago. Since then, we have produced measures which would require that farmer, if they wanted to continue to get public money, to have soil conditions that would prevent that kind of erosion, and the management of that river would require much higher standards. The water framework directive, which has some very high standards and high bars which we talked about last time, was being ignored, and one of the great rivers of our country was being ruined.

Let us not pretend that everything was perfect in the past. We have got a long way to go to improve our rivers, and it is the determination of this Government to write a new form of the water framework directive which will continue the high standards that we seek for our rivers.