European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have Amendments 111, 137 and 192 in this group and share the unhappiness that has just been described. Mine is a narrow but, I think, important point.

The thrust of most of the amendments in the group —not the noble Viscount’s—is about consultation and transparency. You do not have to spend long working in Parliament to realise that scrutiny very much depends on the input of stakeholders—I hate the term but I cannot think of a better one at this time of night. They assist us to understand how things work in practice, both with technicalities and wider issues. That is not to say that I do not have great admiration for parliamentary counsel and the lawyers working in the departments, who are most concerned with statutory instruments, but my amendments would require consultation on the regulations provided for by Clauses 7 to 9. This should all be a co-operative venture, with stakeholders contributing at an early stage, not least for the reason that the regulations are statutory instruments and not open to amendment, so you have to get it right from the very start.

I was a member for some time of the Secondary Legislation Scrutiny Committee, which received a lot of very valuable representations—lobbying, if you like. I suspect we will not hear comments in support of Amendment 228 in the name of the noble Lord, Lord Adonis, about the Cabinet Office code, but I support the application of the code to the regulations. We may well be told that of course the code will apply. I have to say that in my time on the committee, we undertook quite a lot of work on the application of the code in practice and were quite critical of the responses we received from the Cabinet Office. One of our criticisms was that when consultation was undertaken—which it was not always—on the statutory instruments we were considering, the Government did not publish the responses to the consultation before they published the statutory instrument, so the work was not as helpful as it should have been.

Other amendments in this group are more detailed. Mine is not very elegant. I am not proprietorial about it but I wanted to raise the subject because some provision is necessary and, if I may say so, appropriate. It is a step that is very easy to miss out and I hope we will not be told that all the regulations in question are simply about technicalities and that stakeholders would have nothing to add to the exercise. Practitioners in almost every area may see what is workable in proposals being put forward, as well as substantive points.

[Baroness Young of Old Scone (Lab)]

My Lords, I shall speak to Amendment 227A in my name, which is also supported by the noble Lords, Lord Lisvane, Lord Tyler and Lord Judd. The amendment is intended to be helpful to the Minister, although it is unlikely that he will regard anything as helpful at this time of night. Nevertheless, it is intended in the spirit of helpfulness to ensure that the statutory instruments that the Government are proposing turn out to be correct and effective. Many of the changes made by the statutory instruments will be technical and potentially uncontroversial but some will involve policy choices. The aim of my amendment is to ensure wider consultation on statutory instruments before they are formally laid.

The nature of the challenge is quite severe. There will be an awful lot of them—potentially 1,000. I have been looking primarily in the last year at the number that will be required in Defra alone—over 100—on environmental issues. They will need to come thick and fast, and in many cases they are being dealt with in departments by staff who have only recently been recruited. Having seen these departments shrink in times of austerity, lots of people are now being recruited, some of whom are old faithfuls but some of whom are rather new and probably not as well acquainted with the policy area as we would like.

So there is a risk of two things: one is cock-up, if noble Lords will pardon the unparliamentary language—things just going wrong because of the sheer volume and pace; and the other is conspiracy. A large number of the Defra SIs will be roll-ups of a whole variety of issues. I am being ignoble in suggesting that the Government might hide under a pile of harmless stuff the odd thing with a slight curveball in it, but increased transparency and consultation would help reassure people that no fast ones were being tried.

The noble Baroness, Lady Hamwee, pointed out—and it is inalienable—that the process of both the affirmative and the negative procedures means that once measures are formally laid there is very little room for manoeuvre, so it is important that this consultation happens in advance. I thank the noble Lord, Lord Callanan, for his letter of 20 February, following Second Reading. It provided more information but offered only that the Government would make efforts to publish a sample of statutory instruments in draft where appropriate. That rather misses the point, which is to let loose on these drafts expert eyes from across a variety of sectors of stakeholders to help the Government with that checking process to make sure that nothing has been missed, there has not been a cock-up and the policy intentions have not been perverted in any way. I hope the Minister will consider this and see it as a genuinely helpful proposal.

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[Baroness Goldie]

My Lords, this is a wide-ranging group of amendments. I will begin with my noble friend Lord Hailsham’s Amendments 109, 134 and 188 on the effect of regulations made under the main powers of the Bill. My noble friend was commendably brief and very clear—very blunt—about what he seeks. My difficulty is that these amendments would end up running counter to the fundamental aims of the Bill. We have heard from my noble friend himself that these amendments are intended to cause any regulations made under Clauses 7, 8 and 9 to lapse two years after exit day. Quite simply, this would prescribe a rigid legislative timeframe for the Government to replace them and would risk unnecessary disruption. If we could not find an alternative vehicle to write these regulations into law by the two-year deadline, it would create holes in the statute book. However, it is surely illogical to force the Government to make these regulations again in an identical form when they have already legitimately made them once.

The powers themselves, quite rightly, already have their own sunsets: for Clauses 7 and 8 it is two years after exit day, and for Clause 9 it is exit day itself. That is a sensible way in which the Executive have constrained these delegated powers to avoid their being available in perpetuity. But surely the regulations made under these powers should not necessarily be so transient. They will, of course, be doing vital work to ensure that we have a fully functioning statute book for when we leave the EU. We do not want our functioning statute book, or bits of it, to lapse after two years. I sympathise with the intention behind the amendments, but it is too rigid a fetter on the Government and Parliament’s ability to manage legislative priorities and workload between now and 2021, and it certainly would exacerbate the very uncertainty that the Bill is seeking to reduce.

Amendments 111, 137 and 192, all tabled by the noble Baroness, Lady Hamwee, deal with stakeholder consultation. It is my pleasure to tell the Committee that departments are very keen to engage with stakeholders on current matters and progress of the negotiations, and will continue to do so where this is possible and does not negatively impact the negotiations in any way.

[Baroness Young of Old Scone]

I am not sure that the evidence stacks up on that. I have been seeking clarification from Defra for over a year now on just a simple list of the issues that might be subject to statutory instrument, and I have been unable to get that from the department. Perhaps the Minister might like to prod departments to reflect the terms she just stated.

[Baroness Hamwee]

My Lords, I too asked for a list of necessary statutory instruments from the Home Office, and the Parliamentary Answer was that the work had not been done to calculate the number.

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[Baroness Goldie]

Given the breadth of activity already referred to by both the noble Baronesses, Lady Young of Old Scone and Lady Hamwee—a huge breadth of activity involving a multiplicity of issues—it is inevitable that some of these matters will be caught up in the negotiations. I cannot be drawn on specific examples because we may be talking about generic issues. However, the Government are very anxious to avoid in any way hog-tying their freedom to conduct the negotiations with a degree of confidentiality and privacy.

[Baroness Young of Old Scone]

I share my noble friend’s perplexity. We are talking about a government commitment, in my field of expertise, to take existing European environment law and bring it safely across to preserve the same standards. It will not be a great surprise to the European Union and those with whom we are negotiating if what we propose is exactly the same in intent as what currently exists—if the Government are indeed genuinely committed to making sure that we enjoy the same standards post Brexit as we did previously. Therefore, I find it difficult to believe—I have not been able to think of an example—that there will be something monumentally important as regards the negotiating process.

[Baroness Goldie]

I merely observe that the breadth of activity implicit within the negotiations could anticipate issues arising that we are unable at this moment to specify. The Government have been sensible in retaining the flexibility in the negotiations to deal with these if they do arise. It is important in that event—

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[Lord Fox (LD)]

Just when noble Lords thought it could not get any better, they have double chemistry to look forward to. I shall speak to Amendment 115, which bears my name, and in support of Amendment 171. I 100% endorse the words of the noble Lord, Lord Whitty, so I will try not to repeat them and earn the ire of the Government Chief Whip.

As the noble Lord set out, REACH is a very complex system and not just chemical companies are affected by it. All manner of manufacturing employs chemicals, and those chemicals currently fall under the REACH process. That REACH process came through the co-operation and participation of many of those companies. I know from experience that companies have put a lot of time and effort into committees working to create this system. I know very well that they do not want to have to repeat that process. Above all, maintaining REACH or something as parallel as possible is a priority in this process.

The noble Lord, Lord Whitty, mentioned that the Prime Minister seemed to endorse that process. When the noble Lord, Lord Callanan, was speaking to Amendment 66, I thought I heard him endorse continued involvement in REACH, and that was heartening. This amendment seeks to achieve some sense of how the Government feel that is going to happen and unfold. It is not straightforward. Once we have left the European Union, how does the system continue to remain in parallel, or do the Government intend that we remain at the heart of REACH? If so, how do they expect to negotiate that process? Is it through associate membership, full membership or some other way? We need to understand not just how we remain at the point of exit but how we remain on a continuing basis, because this is a living thing. As new chemicals come into use and the ways of using them change, so REACH changes. Even by staying close to REACH, if the United Kingdom does not have full access to all the data, it is going to come up against legal problems if it starts to try to rule on chemicals without all the data behind it.

There is one issue I am very interested in which the noble Lord, Lord Whitty, did not mention. Recently, the Cabinet Office Minister David Lidington was talking about the possible necessity for Westminster to take back responsibility in previously devolved areas—this perhaps reflects on some of the debates we had earlier—in order to maintain,

“the integrity of the United Kingdom market”.

These are David Lidington’s words, not mine. In my words, he would be seeking to “undevolve” some issues. He took a specific example, saying that,

“if you’re a paint manufacturer in Wales you’ve got to stick to some chemical standards … but you want those to be the same as the paint standards in Scotland or Northern Ireland”.

He said it “makes sense” to have unity within a single market, by which he meant the United Kingdom. There is an element of irony in that. I was surprised by that, so perhaps the Minister can help us understand whether David Lidington was off piste on that occasion. It would be very helpful it the Minister could rule that out.

However, strangely enough, the point he was making about the need for a single set of rules within the United Kingdom is of course the whole point of REACH in the first place. The reason the REACH system was created is that manufacturing spans the whole of Europe. We need a chemicals management system that spans Europe, and we want to hear from the Government how that will happen.

[Baroness Young of Old Scone]

My Lords, I will speak briefly to support the amendments. As chief executive of the Environment Agency, I lived through the process of designing and delivering REACH, and it was a joy to work as closely as we did with British industry and industry across Europe in devising a system that was shared between government, regulators and business. It is a bit of an object lesson in how to go about it, and much admired globally. I welcome the Prime Minister’s expression of support, but would just take issue with one thing the noble Lord, Lord Fox, said. I do not think we should be aiming at a parallel system in any way—we should be a full and absolute member of the REACH process. It works, it is elegant and I hope we can get an assurance from the Minister tonight that we will move rapidly to find a way to give industry clarity about how the REACH process will operate post Brexit.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Whitty, and, in his absence, the noble Lord, Lord Adonis, for their amendments concerning the very significant issue of chemicals regulation.

The Bill will incorporate current EU law into domestic law and allow it to be corrected in order to operate properly, giving consumers and businesses as much certainty as possible. This includes regulations relating to chemicals. The Bill will convert the REACH regulation into domestic law, meaning that the obligations on duty holders and the environmental standards and principles that underpin REACH will continue to apply in the UK, including in the devolved areas. These include the specific measures included in the amendment in the name of the noble Lord, Lord Whitty.

We are working to ensure that we have a functioning chemicals regulatory and enforcement system in the UK for day one. For example, the Environment Secretary has given the go-ahead for the development of six new systems, including one for chemicals. Work has started on delivering the new IT system that will enable registrations and the regulation of chemical substances placed on the UK market. This will provide continuity for businesses after EU exit.

Let me be clear: our priorities are to maintain the effective and safe management of chemicals to safeguard human health and the environment, to respond to emerging risks and to allow trade with the EU that is as frictionless as possible. We have been engaging with a range of stakeholders to understand the detailed impacts of Brexit and are grateful for the pragmatic approach that the chemicals industry is taking to Brexit and for its positive approach to working with the Government to understand the impacts and deliver the best possible outcome for the industry after exit. We are committed to continuing this engagement throughout the process.

With regard to chemicals, REACH is underpinned—this is explicit in Article 1—by the precautionary principle. So, once REACH is translated into UK law through the withdrawal Bill, the precautionary principle will continue to exist directly in UK law in relation to REACH. The precautionary principle is also embedded in international conventions relevant to the regulation of chemicals, such as the Stockholm convention on persistent organic pollutants, and the UK is and will continue to be a signatory to the convention in its own right.

Further, our 25-year environment plan sets out our intention to publish a chemicals strategy that will set out our approach as we leave the EU. It will set out our priorities for action and detail how we will achieve our goals, building on existing regulatory approaches and tackling chemicals of national concern. The Government will discuss with the EU as part of the exit negotiations how best to continue co-operation on chemicals regulation in the interests of both the UK and the EU. As the noble Lord, Lord Whitty, acknowledged, in her Mansion House speech the Prime Minister said we want to explore with the EU the terms on which we could continue to co-operate with the European Chemicals Agency and participate in certain processes, the point that the noble Lord, Lord Fox, sought clarification on. As for the specifics, I think your Lordships will understand that I cannot go into more detail because this is the subject of live negotiation in the negotiation process.