Retained EU Law (Revocation and Reform) Bill

Craig Whittaker Excerpts

Report stage
Wednesday 18th January 2023 Commons Chamber

[Justin Madders]

I direct the hon. Gentleman to the Whips Office around the corner. He can have a word with them and see what is going on.

I do not accept the characterisation of how these laws were introduced in the first place. As we know, the vast bulk of EU subordinate legislation was adopted by the member states and the European Parliament, of course, both of which had representatives from the United Kingdom—indeed, our MEPs were democratically elected until 2020—so it is simply wrong to say that politicians, stakeholders and policymakers did not have ample opportunity to exert influence on the development of EU policy and secondary legislation.

In fact, there are many examples of where EU legislation was supported and even promoted by the UK Government of the day. One good example is the social chapter, which the Labour party’s 1997 manifesto pledged to introduce. It included rights on parental leave and working hours. Nobody can say that those rules were forced on us without our consent. Conservative Members may not have liked them—that is clear—but there was a clear democratic pathway to their introduction.

Amendment 36 is about Parliament taking back control, but new clause 2, which is on the amendment paper, goes one step further. It would require Ministers to set out their analysis of the impact of the removal of EU laws and the abolition of the application of EU principles to our laws. As our amendment 26 sets out, there needs to be some recognition that tearing up 50 years of legal development overnight might just create a little bit of uncertainty—as, of course, will revoking thousands of laws. New clause 2 would require some thought to be given to what the impact of all that might be and, crucially, would require it to be shared with everyone else.

We therefore think that it ought to be a matter of agreement among everyone who wants to see democracy prosper that the replacement regulations under the Bill should be made by Parliament after proper consultation, public debate and scrutiny, not simply by ministerial decision—or, as the case may be, by non-decision. All we are asking Ministers to do is to publish their work on how these laws will affect our constituents, which they ought to be doing anyway. Or will we have to wait until the end the year to find that some law that has slipped off the books is causing problems with, for example, the trade and co-operation agreement? Is it not better for us to know about that now? Ministers will know what the issues are, so why do they not share that knowledge with the rest of us? New clause 2 would give Parliament sufficient time to express a view on all that, putting power back into the hands of Parliament, which is what I thought all those who campaigned to leave the EU actually wanted to happen.

Likewise, new clause 3 would create a requirement for there to be genuine consultation if the powers under sections 15 and 16 are to be exercised in revoking, replacing or updating a regulation, and, again, for Parliament to be sighted on that consultation and on the Government’s assessment of the proposed changes. I hope that we are not being too revolutionary by wanting accountability and transparency for Ministers’ actions.

While we are on the regulations, why are we tying Ministers’ hands—we have already touched on this—by insisting that anything that replaces them cannot add to the regulatory burden? Why is the language of rights and protections always expressed as a burden? Of course, the whole thrust of the Bill is to reduce the number of EU regulations in our system, which in itself will reduce the regulatory burden, but when Ministers are looking to update or replace these rules, why must we insist that they do not add to the burden? What even counts as a burden? I am saddened that Conservative Members think it a burden to ensure that our workplaces are safe and that people are protected against discrimination, and to protect natural habitats.

If it was thought that reviewing the laws on maternity discrimination, for example, was actually a good opportunity to strengthen protections—possibly along the lines of the private Member’s Bill of my hon. Friend the Member for Barnsley Central (Dan Jarvis)— this Bill would not allow that. If my hon. Friend’s Bill navigates the private Member’s Bill lottery, it would extend the time period for protection against unfair redundancy to a six-month period after the return to work from maternity, adoption or shared parental leave. That is, by the way, something that the Government committed to in 2019, but under this Bill they would not be allowed to implement it because it would increase the burden. I am not sure how that circle will be squared, but it illustrates the point that this Bill could prevent the Government from implementing their own policies. Although most of us on the Opposition side would want that to apply to just about everything this Government introduce, when it is confined to things that might actually benefit our constituents, it is a cause for concern.

That brings us neatly to our amendment 20, which deals with workers’ rights. The regulations that it lists represent, as far as we can identify, all the major employment rights within the ambit of the Bill—rights that people enjoy every day; rights that nobody voted to squash; rights that those on the Labour Benches will do everything in our power to protect. To protect them and remove any scintilla of doubt, we need to take them outside the scope of the Bill.

I heard what the Minister said about there being no plans to remove those rights, which ought to mean that she has no problem with voting for the amendment. After all, if that is what the Government are going to do anyway, what is there to lose?

[Craig Whittaker (Calder Valley) (Con)]

The hon. Gentleman has already said that the UK’s elected processes already had input into EU laws and protections and rights for workers. I will go one step further and say that this country actually led on a lot of those EU rights and protections for workers, so why does he not believe that this place can enhance those rights and protections, driving them forward for workers in this country?

[Justin Madders]

Well, a Government who have been promising an employment Bill for five years and allowed the scandal of 800 P&O workers being dismissed without any notice are not a Government who can really claim to be on the side of workers. If the hon. Gentleman is genuine about supporting workers’ rights, he will support our amendment to ensure that they are protected.

Let us look at some of those rights. The first regulations listed in amendment 20 are the Management of Health and Safety at Work Regulations 1999, which ensure, among other things, that an employer must perform a risk assessment for all workers, and that there must also be a specific risk assessment if an employee becomes pregnant. I sincerely hope that the requirement to conduct risk assessments to ensure that people work in a safe environment is not something that the Government consider an unnecessary burden. Do we not think that everyone has a right to work in a safe environment, and that employers should take steps to ensure that?

Those regulations ensure that employees have the important right to be consulted on health and safety, and to receive paid time off to carry out health and safety training and other duties. They also have the right to protection from discrimination or victimisation for carrying out health and safety duties. It is just as important as the requirement for a safe working environment that those who put themselves forward as health and safety representatives can do so without fear of reprisal.

In Committee, the Minister talked about modernising health and safety law, which is not, of course, the same as promising to keep those laws. The term “modernising” can mean any number of things—it certainly does not always mean that a law will be improved or a right increased. As we know, the Bill specifically prevents an increase in the regulatory burden. I know that health and safety is often characterised by Conservative Members as a burden. I do not think that; I think it is absolutely essential. If Members agree with me on that, they should vote with us on amendment 20.

On the part-time employee regulations that are included in the amendment, more than twice as many women than men are in part-time employment. Why would we want to open the door to greater discrimination against women by getting rid of protections for part-time workers?

The Maternity and Parental Leave etc. Regulations 1999 protect women who might be pregnant or taking maternity leave from workplace discrimination, ensure that they have the right to return to the same job once they return from maternity leave, and, of course, make it unfair to sack someone because they are pregnant. Surely Conservative Members want to ensure that those regulations are protected under the Bill?

--- Later in debate ---

Above all, this is a terrible diversion of resources and effort. There are so many things in this country at the moment that are not working. I am not going to go through the list, but we all know that because it is the experience of our constituents. Why do the Government not focus on those things, rather than on pieces of legislation that are working—because they protect our environmental standards, consumer rights and working conditions? The fact that they originated, in many respects, from the European Union really does not matter one way or another. They are laws that we approve of, we like and we want to keep and that is why so many people are so unhappy about this Bill: it threatens and it does not look as though the Government know what they are doing.

[Craig Whittaker]

First, I would like to put on record my support for this Bill. I fully understand the huge opportunities it presents for UK plc. I do not agree with those who believe this is a Bill to strip away rights and hard-fought-for gains in various legislation. Those who detract seem to forget that, when the UK was part of the EU, often, legislative change was led by this country to improve rights for all people in the EU, and it is because of this country’s input that many of these pieces of legislation are in place today in the EU. On that basis, there is no reason why we cannot enhance some of these laws further. This Bill will give us as a nation every opportunity to do so.

However, I would like to ask the Minister to ensure that, when changes are made, we take every opportunity to enhance laws beyond what we currently see. As well as doing that, can we ensure we have a swift mechanism so that when we do not get it right—in some instances we will not get it right—we can swiftly plug any loopholes? Today, I want to briefly highlight one sector that is being exploited not by the Europeans, but by far eastern countries as a result of us being too liberal—with good intention, I might add—from the outset after Brexit.

Currently, a member of the Chartered Institute of Trade Mark Attorneys who is EU qualified but does not currently reside in the EU, cannot practise on EU trade marks in the EU, or in this country for that matter. When Brexit happened, the only criteria we adopted to represent a client here in the UK was the need to have a UK address—so the criteria are different from those under which we traditionally operated. The change, while it had every intention of making the system more open, actually has brought huge unintended consequences, with tens of thousands of additional applications clogging up the system. We see far eastern companies and others setting up a PO box in this country, which counts as having a UK address. On the face of it, that does not seem to be an issue, until of course you need to contact them, which you cannot.

Prior to Brexit, if a trade mark was breached in this country, a company would employ a trade mark attorney, who then would negotiate with the company or the attorney of the company breaching the trade mark or trying to apply for a similar trade mark. An agreement generally would be reached before having to go to court and the cost to UK business was more of an irritant than a substantial cost. Now we have a multitude of PO boxes where a company’s attorney cannot even get a reply by email from those so-called companies. That means it has to go to court on virtually every occasion. That is many times more costly for UK companies, not to mention the huge amounts of frustration and irritation that comes with the current process.

To highlight how huge this issue is, these foreign-based firms with PO boxes now account for 39% of all UK trade mark applications at the UK Intellectual Property Office, compared with just 19% prior to Brexit in 2019. If we are not careful, we will have a situation where trade mark-intensive industries, which by the way account for £770 billion of our GDP each year, may be completely undermined by what appears on paper to be a good change of legislation, but which in reality has the ability to totally undermine the sector and a huge part of our GDP.

Without taking any more of the House’s time, I would like to ask the Minister to reiterate what safeguards will be in place to ensure unintended consequences, such as those happening to the trade mark and intellectual property sector, do not happen. What can the Minister do to ensure we have a system in place where legislation can be changed quickly, as in the case of CITMA, when we totally miss the unintended consequences?

[Stella Creasy]

I rise to raise amendment 36, tabled in my name and in the name of the right hon. Member for Haltemprice and Howden (Mr Davis) and many other Members across the House.

As far as I can see, there have been three responses to the Bill in Parliament. First, there are those who have not paid attention because—let’s face it—many years on from the Brexit referendum still anything that involves Europe is cold cup of sick territory. That is understandable but not excusable because it means that those people have not woken up to the fact that this is nothing to do with Brexit and everything to do with an audacious ministerial power grab.

The second group are those who have read the Bill and are completely happy with the idea that the Government should just hit delete on all legislation with the word “Europe” in it, with all the confusion, chaos and complications that will cause for our constituents, because it is a price worth paying. That is not understandable, but it is excusable, because they do not see the laws at stake here—they just see the word “Europe”. There is an honesty in being so hellbent on the idea that anything we have ever shared with Europe is bad and it does not matter whether people value it—employment rights, environmental protections, consumer standards, flight safety rules. For them, if the choice is cake or death, it is death every time.

The third group of people are the people I am trying to appeal to today. They know this is not the right way to deal with retained EU law, but they hope that somebody else will step in and sort it out—the Opposition, other MPs, the Lords or perhaps even some divine intervention from the Lord himself. That is not understandable or excusable, because if the Bill goes through unamended it will stop us doing our job and it is our job to speak up for our constituents.

Today’s debate is not about how the Europeans make legislation. We have left the European Union. This debate is about exactly what taking back control meant, and about whether we will be able to speak up for our constituents on the issues that they care about. The emails in our inboxes show that they care. What was promised during the Brexit referendum campaign was not a sovereign Whitehall or taking back control in Downing Street, but that is exactly what the Bill does—and it does it in a way that is beyond parody. Personally, I think that the dashboard was created as a way to keep the then Business Secretary occupied putting random words into it. It is a farce that, as my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) said, we are legislating by website.

It matters that the scope of legislation is correct, which is what amendment 36 would ensure. Let me help Ministers out here, because they do not know how many laws are missing. We have already found many, including the Conservation of Habitats and Species Regulations 2017, the Conservation of Offshore Marine Habitats and Species Regulations 2017, the Marine Strategy Regulations 2010, the Marine Works (Environmental Impact Assessment) Regulations 2007 and the Welfare of Animals (Transport) (England) Order 2006.

In other cases, the dashboard lists regulations that are no longer laws, so some poor civil servant is going through them even though they no longer exist. The Financial Services and Markets Bill seeks to revoke at least four sets of EC regulations that do not appear on the dashboard. Two of the first five statutory instruments that it seeks to revoke are not listed on the dashboard either.

It is estimated that the process will cost the taxpayer tens of millions of pounds, at a time when we are all being told to tighten our belts because of the Government’s mismanagement of the economy. There are 3,500 pieces of legislation involved—that is the estimate, but there could be more, and I suspect that that is why the Minister does not want to be honest with us—in comparison with the 600 that we made during the Brexit process.

The Minister says that the dashboard will be updated, but it will be updated after the point at which we are being asked to approve the process. I will withdraw my amendment if Ministers can just give us a clear number and a clear list of what is in scope. I do not understand why that is an unreasonable proposition. Frankly, Back Benchers of any political party should be worried about the precedent set by legislation that allows the Government to give themselves an enabling power without defining its limitations.

That is before we even get on to who makes the decision about what happens next. Ministers want to tell me that I am scaremongering when I raise concerns about how they will use these powers—they say, “Of course we wouldn’t get rid of these laws.” Well, let us have a look at that scaremongering. I have been tabling parliamentary questions to try to understand what will happen to rights that all our constituents care about, such as paid annual leave, bathing water quality, sharps rules in hospitals, consumer protection from unfair trading, food hygiene and toy safety legislation. Those are surely things that Ministers would want to put beyond reach, so nobody could say that they might be revoked or accidentally lost down the back of the ministerial sofa, along with the 800 sets of regulations that have no ministerial leads and are quite likely to get lost in the process.

The problem I have is that Ministers are clear that there are some regulations that they are going to revoke and some they are going to keep. So they do know what they want to do with the power that Members are going to hand them; they just do not want to be honest about it. Why do they know that they want to keep the regulations on bird flu, but not those on maternity and paternity leave? The Minister ought to talk to her colleague the Minister for Food, Farming and Fisheries, who wrote back to me clearly saying that the Government were reviewing that.

That is the problem: Conservative Members may trust their Government colleagues to do the right thing, in the same way that they might trust a 17-year-old when they ask for the keys to a Porsche “just to polish it”, but those of us who have been here and seen Governments of different colours, and the temptation that comes with ministerial power, know that the point about taking back control was parliamentary sovereignty. That starts with knowing what we are being asked to hand over: we are being asked to hand over oversight of an unknown number of laws. That is what amendment 36 asks for clarity on.

We also have to hope that our colleagues in the other place will make it clear that we can have influence—and not just in like-it-or-lump-it statutory instrument Committees; don’t kid anybody who has sat on one that they are a good or effective version of parliamentary scrutiny—and that we can speak up for our constituents. It may feel like cold cup of sick territory when we see something with the word “Europe” in it, but with all the rights and regulations up for deletion under the Bill, I promise that our constituents will not forgive us if we do not stand up for parliamentary sovereignty and support amendment 36.