Retained EU Law (Revocation and Reform) Bill

Bim Afolami Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[The Solicitor General]

I am delighted that the Attorney General says that so loudly from a sedentary position, because she took at least some of those measures through this House. I am grateful to her for that. The revocation schedule will build on that and facilitate reform in key sectors.

This is far from the limit of the Government’s ambitions. Across Whitehall, Departments will continue to review the retained EU law not already revoked or reformed, and we are committed to reducing burdens on business and unlocking economic growth.

[Bim Afolami (Hitchin and Harpenden) (Con)]

I refer Members to my entry in the Register of Members’ Financial Interests: I chair the Regulatory Reform Group. The Solicitor General is making a very good case not just for the approach in this narrow area of EU law, but for the need to integrate that with a broader programme of improvement to the regulatory system. Will he give his view of the proposals by the Regulatory Reform Group on the importance of improving our regulatory system to improve accountability and responsiveness from regulators, as they have a lot of duties under primary legislation?

[The Solicitor General]

I pay tribute to my hon. Friend for all his work in this area. He will have heard the Secretary of State’s call for greater scrutiny and for a breadth of experience, which she is determined to draw upon. I am sure that she will draw upon my hon. Friend’s experience too. He is right. We are committed to reducing burdens on business and unlocking economic growth. I ask all right hon. and hon. Members to support amendments (a) and (b) to Lords amendment 16.

Lords amendment 6 undermines a fundamental plank of the Bill—namely, ending the special status of retained EU law on our statute book by repealing section 4 of the European Union (Withdrawal) Act 2018. The matters saved by section 4 consist largely of retained rights, obligations and remedies developed in the case law of the Court of Justice of the European Union. The vast majority of those rights overlap with rights that we already have. Those overlaps can cause confusion and legal uncertainty. By not repealing section 4, and instead replacing it with unclear parliamentary procedures, the Lords amendment would create the very legal uncertainty that was previously criticised.

This is the point: the Bill should end the situation where, to understand and enforce their rights, citizens must decipher the implications of a high-level legal principle giving effect to an ill-defined right or set of rights. Lords amendment 6 does the exact opposite.

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As such, the object of the amendment is to make as certain as possible a legal obligation that enables us to see that what is to be revoked and reformed is of real relevance and in our national interest; will improve our competitiveness and economic reform; and will make the statute book consistent with UK law—as my hon. and learned Friend the Solicitor General said so well—and its interpretation by the courts in line with our own unparalleled national common-law system.

[Bim Afolami]

I defer to my hon. Friend’s knowledge and judgment on what he is speaking about, but may I press him on this particular aspect of the Bill? Of course, a lot of regulations may seem redundant or trivial, and he has named a couple, but part of an improved regulatory system is cleaning up regulations that may be redundant or trivial, in addition to doing the work properly of making sure that when we do get rid of things and reform them, we do so for the right reasons for the entire regulatory system. The Secretary of State has proposed that by the end of this year, we are likely to have removed roughly 2,000 of the total 5,000 regulations; the remaining 3,000 will be done in a proper way, looking strategically at our whole regulatory system. Does my hon. Friend not accept that that is a reasonable approach for the Government to take, bearing in mind the position that we are in at this time?

[Sir William Cash]

I think it is perfectly reasonable to do it now, because it has not been done before: that is where the problem lies. I would also slightly correct my hon. Friend regarding the relevance of, for example, fishery arrangements between the EU and the Government of the Cook Islands—they are administered by New Zealand, I believe. Such arrangements have nothing at all to do with us, and could not conceivably be included in a list that was intended to demonstrate relevant revocation and reform of these laws.

Expunging EU laws from our statute book frees our voters, our businesses, our Parliament, our sovereignty and our democracy from their subjugation to the EU for 50 years. Those laws were made and engineered by the European Union, the European Commission and the Council of Ministers behind closed doors by qualified majority voting—without even a transcript, as I have said so many times—but usually came about by way of consensus. The veto was promised and guaranteed in the 1971 White Paper, which hon. Members can look up for themselves, but it was whittled away. When EU laws came to be discussed behind those doors, we generally ended up with consensus; they certainly were not our own laws passed by our own Parliament. That operation has been described by a famous economist as “regulatory collusion”.

The making of all those laws, as I said earlier, was accompanied by an explanatory memorandum, which is a useful reference point for determining what mattered at the time. Not one single piece of EU legislation was ever rejected or amended during the entire course of our membership. Interestingly, one of the five provisions that I have mentioned that are relevant to this debate is the port services directive, which was opposed by every single one of the port employers, by every single one of the trade unions, and by the Government. What could they do about it? Nothing. That is the point, and that almost summarises the reasons for the exercise that has been conducted under the Bill.

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[Mr Deputy Speaker (Mr Nigel Evans)]

The Minister will be called no later than 5.52 pm for a 10-minute wind up.

[Bim Afolami (Hitchin and Harpenden) (Con)]

It is such a pleasure to follow a wonderful speech from my hon. Friend the Member for North Dorset (Simon Hoare). I was roused to get up when he mentioned Trumpian Singaporisation liberalising, and I thought, “That sounds like me and I must now rise!”

It is clear that we are not, at this moment, where we would have loved to have been a couple of years ago. My hon. Friend mentioned, and it has been alluded to by many others, that due to various political events over the last 12 months or so, we have not made as much progress on this agenda as we would have liked. I say to some Members on my own side that of course it would have been better if this process had moved faster, but we are where we are.

When faced with such a scenario, the Government have a choice. They could either say that political machismo demands we keep going down a route, even if we fear that that route, by 31 December, may lead to some or a lot of negative outcomes, or they could take a grown-up approach—the sort of approach that in a sensible debate Opposition Members would much more readily accept and highlight explicitly—which is that we will do what we can now, remove the sunset clause and, in an orderly way, make sure that we get this right. I remember the advert from when I was a child that said a dog is for life, not just for Christmas. The laws passed in this House are for life. We intend to get this right for the long term. That is why, fundamentally, the Government’s approach of repealing roughly about 2,000 laws by the end of this year, with a further 3,000 to be done in a sensible, structured and strategic way, will improve our regulatory system. Mr Deputy Speaker, I should have mentioned, as the chair of the Regulatory Reform Group, my entry in the Register of Members’ Financial Interests.

[Sammy Wilson]

Although there may be arguments for removing the sunset clause, there is a real fear that without it the Government could have, for various reasons, fallen back on the promises that they made to review all the laws. That is why the amendment is so important, because there will be a continuous review and picture of where the Government are going, and people can ensure that the foot is not lifted off the pedal.

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[Bim Afolami]

The hon. Gentleman is entirely right. It is a good example of our parliamentary democracy working well that there has been dialogue, both open and private, between Members of this House and the Government to get to a right point on amendments; to say that we will support the Government in broad terms, but that there is a need and a desire for more reporting and explicit signalling of where the Government are going. We must ensure that Whitehall as a whole continues with this agenda and does not feel that it has got the Bill done and will just leave it all for years to come. I understand exactly what he says.

Let me remark on the Lords amendments. I would say that I am impatient. I do not know if that is common to all politicians, but I am a very impatient person.

[Simon Hoare]

You are.

[Bim Afolami]

I thank my hon. Friend for confirming that to the House. I have talked a lot in the last few months about strengthening and improving our regulatory system, and getting more scrutiny for our regulators when they take decisions, and more ability for the House to scrutinise the decisions taken in our name. I am impatient that we are not doing more of that, faster. But I also recognise that we need to do that in a way that looks not just at the EU law—my hon. Friend the Member for Stone (Sir William Cash) talked earlier about the danger of having one set of EU regulations and the rest of law in another set. It is so important that, as we deal with European-derived law, we incorporate it into our full body of law in a strategically sensible way that improves our regulatory system—not just a cut and paste job, as may have happened.

I fear that a lot of the Lords amendments are about finding ways to delay the process that the Government have rightly strategically and politically committed to. My hon. Friend the Member for Orpington (Gareth Bacon) made that point very well and I will not repeat it.

I would like to talk a little about Lords amendment 15, which relates to various environmental issues. I have many problems with it—first, the notion that it is always clear whether one is reducing or increasing what the amendment claims to be the “level of environmental protection” or level of “protection of consumers”. That is very hard to do. It deliberately adds a huge amount of delay and bureaucracy to the entire process and it elevates the Office of Environmental Protection, which, if I remember rightly—I am sure that someone will correct me if not—is meant to be an advisory body, not a body to impose regulations on this House or anywhere else. It is elevating the Office for Environmental Protection to do a job that it was not designed to do. That is a good example of the sort of regulatory creep that we continually see and that I campaign and fight against in this House. The amendment is very dangerous for that reason.

My right hon. Friend the Member for Chelmsford (Vicky Ford) and my hon. Friend the Member for North Dorset spoke accurately and amusingly about the political insanity of weakening things that the public want and that are completely contrary to the broad direction of our policy. Biodiversity net gain, the Environment Act 2021, the Agriculture Act 2020 and the Fisheries Act 2020 are all the things that we have done as a Government over the last few years. It would be insane to go back on all the things that we have done in relation to particular regulations. The Bill is not a clear and present danger to our environment.

Let me finish by saying that I have a feeling, like my right hon. Friend the Member for Chelmsford, that the amendment is not really about what it says on the tin. It is really about trying to create wedge points that can be used to generate emails by 38 Degrees, or to create Facebook ads or clips to somehow suggest that Conservative Members are not in favour of environmental protection. That is dangerous, and the House should not be used in that way. I have seen this practice grow in my time in Parliament, particularly among Labour and the Liberal Democrats. We should not allow the House to be a place where people put down motions to—incorrectly—embarrass Members by suggesting they are not in favour of something they are in favour of. I make that point before I sit down, and I will support the Government in all the Divisions today.

Royal Assent

[Mr Deputy Speaker (Mr Nigel Evans)]

I have to notify the House, in accordance with the Royal Assent Act 1967, that the King has signified his Royal Assent to the following Acts:

Protection from Redundancy (Pregnancy and Family Leave) Act 2023

Carer’s Leave Act 2023

Electricity Transmission (Compensation) Act 2023

Neonatal Care (Leave and Pay) Act 2023

Northern Ireland (Interim Arrangements) Act 2023.

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.