Retained EU Law (Revocation and Reform) Bill

Bim Afolami Excerpts

Wednesday 24th May 2023 Commons Chamber

[Sir Robert Buckland]

It is a pleasure to follow my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones). He speaks with authority about the important detail and minutiae of procedure, which forms much of the subject matter in the Lords amendments.

I am also delighted to welcome the Solicitor General, my hon. and learned Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), to his place. He follows in a very honourable tradition. We have mentioned the European Union (Withdrawal) Act 2018, which is, of course, very germane to this debate, but let us not forget the European Communities Act 1972 itself, which another Solicitor General, the late Lord Howe, took through this place when he was—in his own words, to me—in the happiest job of his political career. So I say to my hon. and learned Friend, “Enjoy it while it lasts.” I hope that it lasts a long time, because I think he brings a real quality to the job. He understands the role of a Law Officer, and I am delighted that the Government have chosen to deploy him at this stage of the debate, because although this might be seen as a rather arid area of the law, passions are running high.

I am sorry that I was not here to hear the speech of my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg), but I was extremely grateful to him when, as Brexit Minister, he was good enough to consult me about his ambition for this Bill when I was on one of my furloughs from Government last year. It was an ambition that I understood and, frankly, shared. There is a strong, respectable argument to be made for those with the political will to show a sense of direction and give a steer to civil servants on what we want to achieve. There is no doubt that the aims of the Bill, which I continue to support, are entirely laudable. My right hon. Friend needs no criticism at all for seeking to continue to apply the collective feet of the machinery of government to the fire of regulatory reform.

That is what we are talking about here. Let us strip away the B-word, the Brexit word. Everyone knows what my position was on that: I was a remainer. I campaigned for it, fought for it and believed in it, but I accepted the vote of the British people. As my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) said in his excellent speech, this really is another chapter in the delivery of the verdict by the British people that we were enjoined to carry out. That is why I think the mechanism is necessary.

I note the arguments about the otiose nature of this legislation due to the fact that various regulations can be amended or removed through the normal proceedings of the House, but it was right to come back to the issue of retained EU law after a moment of reflection. That was precisely the Government’s intention in 2017. I remember when I was in my hon. and learned Friend the Solicitor General’s place making the argument that this was a freezing of the law and a sweeping-up clause designed to put this category of law into an understandable compartment, so that we could return to the issues once we had got through not just Brexit but the transition period and once we knew the shape of the future relationship. We are now in that position, and my right hon. Friend the Member for North East Somerset was therefore timely with his intentions and his wish to get things moving.

However, as with all honourable and great plans, events sometimes intervene. There were plenty of examples of officials across the civil service doing their best to identify which regulations and statutory instruments needed to go, but the National Archives kept cropping up again and again. There was also a question mark about the efficacy of the Government dashboard and whether it was too unreflective of all the regulations that existed pursuant to retained EU law. I have to say that that caused me to lose confidence that we could, in due time, identify all the regulations that needed to be looked at, swept up or removed. My fear was that we would have ended up in the position of repeal by accident, whereby perfectly decent regulations that still have an application today and that underpin business transactions or other relationships between the individual and the state would have been repealed. That would not have been good for the law or for certainty—the rule of law depends on certainty—and that worried me.

It therefore came as no surprise when the Secretary of State for Business and Trade, my right hon. Friend the Member for Saffron Walden (Kemi Badenoch), came to the conclusion that she did. Hence the replacement of that ambitious sunset at the end of this year with what I will call the 600. This is resonant of Tennyson in many ways, and I hope that the end for this 600 will be as clear as the end was for the noble Light Brigade. As I think all Conservative Members would agree, we want to see that as the beginning, not the end, of regulatory reform.

[Bim Afolami]

Seeing as my right hon. and learned Friend is half a league onward, does he agree that this is a very good example of grown-up policymaking?

[Sir Robert Buckland]

In a word, yes. I am a voluntary member of the Regulatory Reform Group, which my hon. Friend so ably chairs. As we look at the context of these amendments, it is important to strip away the B-word and remind ourselves of the purpose of regulation. Hastily proposed regulation, without a clear policy objective and without sufficient consideration for the costs involved, is without doubt a bad thing, but hastily repealed regulation, without proper evidence-based decisions, can also be a very bad thing.

When we talk about the burden of regulation, looking at the mere number is, by no means, the whole picture. Indeed, it can be very misleading, because it is the type of regulation that is most important. That is why the way in which we undertake cost-benefit analysis of regulatory burdens is so important and, in some ways, deficient—it is not dynamic enough, and it does not deal with the developing or cumulative effects of regulation on competition. We might end up in a situation in which the opposite of a policy objective is obtained. We have seen examples where a monopoly might be entrenched or competition undermined, which is neither good lawmaking nor good regulation.

The Government have tried a number of initiatives: one in, one out; one in, two out; and business impact targets in the mid-2010s. The 2015 Parliament saw a downturn in the cost of regulation but, of themselves, such initiatives do not achieve their purpose, for which, to invoke my right hon. Friend the Member for North East Somerset again, political will is needed.

Looking at the Government’s business impact targets for 2020-21, the biggest saving in direct costs to customers and businesses was the £3.6 billion reduction achieved by the Ministry of Justice, which I then led, through the whiplash civil law reforms that resulted in savings for insurers and consumers. It is a successful example of how a well-targeted regulatory and legislative change can make a difference. We can do it, and we must do it. I think all Conservative Members would vigorously agree with that approach.

I would say this Bill has been improved. I take no issue with Government amendment (a) to Lords amendment 16. My hon. Friend the Member for Stone (Sir William Cash) very much supports that Government amendment, which seems eminently sensible.

I also adopt the observations of my right hon. and learned Friend the Member for Kenilworth and Southam on the detail of Lords amendments 6 and 42. I am all for proper scrutiny, and I am all for this place and, indeed, the other place, where appropriate, being able to have their say on the passage or removal of delegated legislation, which we all know that we do not do as well as we ought to.

I yield to no one in my admiration for the noble Lord Hope of Craighead, who works extremely hard on these issues. I do not think the amendments, as currently structured, are there. That is why, like my right hon. and learned Friend the Member for Kenilworth and Southam, I draw back from supporting them, although I would press the Solicitor General and his colleagues in the other place if this were to continue, which it might—we can never say never to these things—to look again at the issue.

There may be another, more elegant solution. Dare I say it, there may be potential to amend the Standing Orders of this place and the other place to deal with some of these points. The Standing Orders of the House of Commons are the closest thing we have to a written constitution and, in my mind, they are the most important document we have as a democratic House, but we can amend them, and we do amend them. There were times during the Brexit years when we did just that. In fact, we legislated in the European Union (Withdrawal) Act 2018 to create a sifting Committee, but that related to deficiencies at the top end of the process of Brexit, of which this is yet another chapter. Although we have some precedents, I am not sure that we are quite there with the form of these amendments.