European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

Moved by

[Baroness Young of Old Scone]

64: After Clause 9, insert the following new Clause—
“Replication of EU law: consultation on impact and equivalence
(1) This section applies to regulations (whether or not under this Act) which—(a) are designed to replicate a provision of EU legislation (with or without modifications), or(b) amend or replace legislation which was made under section 2(2) of the European Communities Act 1972 or which was otherwise made for the purpose of giving effect to EU obligations.(2) Before making the regulations a Minister of the Crown must publish a statement that the Minister is satisfied that a draft has been published in such a manner, and for such a period, as to give persons representing interests affected by the regulations a reasonable opportunity to consider and make representations about—(a) the environmental, social and other impacts of the regulations, and(b) equivalence with EU legislation. (3) The period referred to in subsection (2) must not be less than 3 months, except where the Minister includes a statement that—(a) the Minister is satisfied that 3 months’ notice could not reasonably be given in the circumstances, and(b) as much notice was given as the Minister considers reasonably practicable.(4) This section ceases to have effect on 31st December 2021 unless the Secretary of State by regulation continues it.”

[Baroness Young of Old Scone (Lab)]

My Lords, my noble friend Lord Judd and the noble Lords, Lord Tyler and Lord Lisvane, have also put their names to this amendment. It is a variation on a similar amendment debated in Committee, but it now includes a sunset clause to restrict the scale of its application, which the Minister expressed concern about at that stage. It is, of course, put forward in a spirit of helpfulness to the Government, although I find that a bit difficult to say at this time of night. It encourages the Government to seek wider advice and assistance in spotting any errors in the large number of statutory instruments—between 800 and 1,000 in addition to the normal numbers—that will need to come forward as a consequence of the EU withdrawal Act. I am concerned about possible flaws in the statutory instruments because of the large number of them, the pace at which they will have to come forward, the lack of staff with sufficient experience in some government departments and the overall pressure of Brexit-related legislation.

It is important that the statutory instruments are available for scrutiny before being formally laid, as once they are laid they cannot be amended under either the affirmative or negative procedure. The only option then would be to seek to annul any flawed statutory instrument. That is the nuclear option which would run the risk of leaving gaps in the legislation on exit, which I am sure the Government would not wish.

I thank the Minister and his team for meeting me and the noble Lord, Lord Tyler. The noble Lord, Lord Callanan, was quite rightly keen that consultation should not mean three months for all subjects great and small. The Government have now laid amendments and given formal assurances on this issue, as have some individual government departments. I welcome the pre-scrutiny proposed for the negative procedure statutory instruments, which would mean that they were published as “negatives in draft” and would give a 10-day window for commentators to express concerns about their substance before they were formally laid.

I understand that Defra, which is likely to have about 10% of the statutory instruments, is putting in place a high-level group of external commentators who will advise on the adequacy of the consultation process—a sort of consultation on consultation. It would be good if Defra and any other departments planning this mechanism could press forward so that we might see how this would work.

In their response to the Lords Constitution Committee’s report, the Government have undertaken to lay requirements on Ministers to make statements in explanation of statutory instruments in certain circumstances—for example, where a criminal offence is created or where an urgent statutory instrument is brought forward—but it is likely that such statements will be published only when the SI is laid formally and it is therefore too late, as I have outlined.

I am sure that the Government are committed to preparing this torrent of statutory instruments in as open a way as possible to make sure that the process of transfer of the snapshot of EU legislation into UK law is as uncontentious as possible. The amendment gives the Minister a real opportunity to flesh out this commitment and would place on the parliamentary record the full range of formal and less formal means of consultation and debugging planned by the Government. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support Amendment 64, which has been ably explained by my noble friend Lady Young. She has attempted to address one of the many practical challenges which will face us in the run-up to Brexit day. We know that we will have to process a large number of statutory instruments in a very short timescale, so how can we be assured that mistakes and oversights do not slip through the net in the rush to meet the deadlines?

We have a particular interest in this issue from an environmental perspective, especially as so many of the regulations will transfer environmental protections—but, obviously, the challenge spans all sectors. We know that civil servants in Defra are already under intense pressure. They are already working on a number of EU-related Bills, including on agriculture, fisheries, environmental standards, and animal welfare and sentience. They also face other pressures from the Secretary of State to modernise other animal welfare and environmental policies. Their number and expertise have been significantly cut and, although new staff have now been taken on to help with Brexit, they do not have the wealth of experience that previously existed. Without safeguards of the kind proposed by the amendment, mistakes in drafting will occur without any means to correct them.

In Committee and subsequently, the Minister took steps to reassure us that pre-scrutiny and sifting processes will be put in place, but the proposals to date have only a partial impact and do not address the more fundamental challenge of delivering proper scrutiny and ensuring that regulations are fit for purpose. So we very much welcome the proposals in Amendment 64. They would give space to allow those affected by the regulations, NGOs and parliamentarians to see the draft wording and have an input before the final version. This is about driving up quality and delivering good governance and I hope that the Minister will welcome the proposals in this spirit.

The amendment focuses on those issues that have a wider environmental and social purpose, where errors and omissions would be more keenly felt. As my noble friend has explained, a new sunset clause of 2021 has now been inserted so that this does not inadvertently become the new norm. I hope the Minister will take this proposal in the positive and constructive form that my noble friend has intended and that she will feel able to support it.

--- Later in debate ---

[Baroness Goldie]

The noble Lord makes a perfectly valid point, with which I have some sympathy, but I am endeavouring to deal with the points raised by the noble Baroness, Lady Young of Old Scone, in the context of her amendment. I am pointing out that it is not that there will not be consultation or robust parliamentary scrutiny. There will be an opportunity for parliamentarians in both Houses to identify the very sorts of concerns to which the noble Lord has referred.

I have set out the Government’s position. I hope the noble Baroness understands why the Government are unable to accept this amendment, and I urge her to withdraw it. I confirm that the Government do not propose to reflect further on this issue between now and Third Reading, so if she wishes to test the opinion of the House, it would be appropriate to do that now.

[Baroness Young of Old Scone]

I thank the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Judd, who have had the stamina to stay this late to speak to this amendment. The Minister’s response was disappointing. The undertaking that departments will engage with stakeholders where possible does not give me a lot of confidence. I understand that consultation takes up time and resources and that it needs to be focused on the important rather than the minor. But, as the noble Lord, Lord Judd, has just said, many technical and minor amendments can have major impacts.

I am not convinced that the statements and the transparency promised by the government amendments to the later schedules will fit the bill because, if I understand correctly, they are very much about statements made at the time when the statutory instrument is laid, by which time it is too late to make further amendments. It really is into the nuclear option situation, where only an annulment can then happen.

I had hoped that the Minister would use this opportunity to reassure the House generally and the wider audience about the real commitment the Government have to trying to make sure that we get all these statutory instruments right first time. I only hope that the debates we have had on this proposition and the continuing discussions we have with government departments will reveal that that intention does exist, even if it has not been laid out in the parliamentary domain tonight. In view of the time, I beg leave to withdraw the amendment.

Amendment 64 withdrawn.