Retained EU Law (Revocation and Reform) Bill (Second sitting)

David Jones Excerpts

Committee stage
Tuesday 8th November 2022 Public Bill Committees

[The Chair]

Order. I have three colleagues bursting to get in and we have only about seven minutes left, so short answers to short questions, please.

Barney Reynolds: In short, I am not suggesting we follow another country. The court interpretation provision is unprecedented. Abu Dhabi created something from scratch. It was not a transition from what they have got, which was based on the French-Egyptian model, to the common law model. We should do our own thing that works for the UK, and using our methods. I agree with that.

I agree with my colleagues on the uncertainties that can potentially arise. As a lawyer, I think we need to be very careful about those. I am concerned with them. My solution is to expand clause 7 and the list of things that should be borne in mind in order to execute an adroit shift to our common law method in a way that does not involve interpretation too much. I do not think you can remove the necessity for judges to exercise interpretative powers to execute the shift. Ultimately, this shift involves trusting the judiciary, which I do. I am fine doing that, and I do not think that there is a shortcut or a way in which we can box people in so they cannot use any discretion and nevertheless get to the same place. We have to trust people to do it.

[Mr David Jones (Clwyd West) (Con)]

Q I will ask you about the principle of the supremacy of EU retained law, on which we had some conflicting evidence this morning. As you know, the Bill abolishes that principle. Do you think that it is a good thing that it does so, or are there any dangers inherent in that?

Sir Richard Aikens: You start from the fact that supremacy no longer exists unless it is retained by UK law. Half speaking as a lawyer, but I suppose half speaking as a commentator, I do not myself see why there should be any part of our UK law that is regarded as more supreme than another, unless specifically identified by Parliament as being necessary for some reason. In many other countries, there is the principle of the constitution, which is inevitably supreme and cannot be crossed; we do not have that and have never had that in our law, except perhaps in very specific circumstances.

In general, therefore, I would say that the whole idea of supremacy should be done away with, unless there is some specific reason in specific areas of law why it is necessary to retain it. For my part, I cannot think of anything that immediately comes to mind that is not already dealt with in our law—I am thinking in particular of human rights.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Q My question follows on from what Jack was talking about earlier: the lack of parliamentary scrutiny and how it will be up to Ministers to make decisions on what we now understand might be as many as 3,500 individual pieces of EU legislation. Jack, what would you deem to be an appropriate level of scrutiny? The negative procedure for statutory instruments really means no parliamentary scrutiny at all—I think Stella mentioned that 1979 was the last time we managed to overturn one of those in the House. What would be an appropriate way, considering the number and importance of some of the regulations?

Jack Williams: I would start by not necessarily having what George Peretz KC calls the gun to your head, so that by the end you do not have time to scrutinise, because if you did take the time to scrutinise it, you might be left with the choice on the last day of what is there or nothing at all. That is obviously a difficult position for Parliament to be put into, having to save its own law somehow without a set procedure.

A direct answer to your question, however, is more scrutiny from Committees. One can imagine, for example, a Committee that was set up specifically to analyse all the changes that are coming to certain practice areas, with consultation and independent experts assisting—much like this Committee format. There is also the legislative reform order super-affirmative procedure, which builds and bakes in consultation and I think extra time in the process—the downside is exactly that last point, which is that it leads to delay. If you have a cliff edge of 2023, it is not particularly suitable, but it might give some ideas for inspiration. It is under a 2006 Act, but I think it has been used fewer than 50 times, precisely because it takes so much time and involves so much scrutiny—but if you are looking for an example.

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[The Chair]

Thank you. David Jones, followed by Alex Sobel.

[Mr Jones]

Q Dr Fox, you postulated earlier that sifting committees might be established to assess whether individual pieces of retained EU law should be retained or dispensed with. Given the volume of retained EU law that we are aware of—and given that there may well be more—how long a process do you think that would be, and do you not think it would take up a huge amount of parliamentary time?

Dr Fox: It will probably not be that dissimilar to what we were talking about in terms of what we went through with the Brexit process. On sifting, the process proposed is that all negative instruments will be laid before the sifting committee in draft form. They would have 10 sitting days to decide whether to upgrade it to the affirmative procedure. The implications for parliamentary time will depend on what their decisions and recommendations are and whether the Government accept them, and therefore whether there has to be a delegated legislation Committee.

So yes, the potential is for an increased number of delegated legislation Committees. The reality is that doing all that before December 2023 is clearly nigh-on impossible; if your deadline is 2026 or 2028 and you smooth it out over time, then it is achievable. Again, it will depend on what the numbers are and what proportion of negative and affirmative instruments there are, depending on what the Government propose to do.

[Alex Sobel]

Q I could get into a debate about the numbers, but we have explored that quite a lot. I have a number of concerns about clause 15 and the sort of power grab that it makes. Ministers debated Henry VIII powers at length during the Brexit legislation and the EU Act. I am also concerned that clause 15 says that Ministers should not “increase the regulatory burden” when changing retained EU law. Last night, I was at a rewilding reception where the Minister of State, Department for Environment, Food and Rural Affairs, the right hon. Member for Sherwood (Mark Spencer)—he must get a lot of outings in this Committee—said that sometimes they will improve regulatory arrangements. But clause 15 says that they cannot. Can they or can they not? If a Minister tells the sector informally that he can do that—perhaps we should ask a written question to see if he will say it formally—it creates uncertainty in the minds of non-governmental organisations, businesses and everyone else about the direction of travel in certain areas where it is intimated that the regulatory burden could be increased. My reading of clause 15, however, is that Ministers cannot increase the regulatory burden.

Dr Fox: It would depend on what the enhancement was—improvement, but if the improvement implied obstacles to trade or innovation, financial cost or administrative inconvenience, then no, it could not. It is hard to see how the kinds of enhancements that have been talked about—for example, in relation to animal welfare—would not necessarily imply an administrative burden; they therefore could not be done under this provision. That said, my understanding is that the former Secretary of State who was the architect of the Bill took the view that it was not appropriate for imposing new regulations through delegated legislation. That is not a bad thing, but the problem is that the nature of the exercise does not work in that context, because of the cliff edge.

Sir Jonathan Jones: May I add a brief comment? First, the power in clause 15 is undoubtedly very wide, so the Minister has huge discretion in deciding what is appropriate. The test about regulatory burdens is quite a slippery test, not least because the assessment is whether the overall effect of the change is to increase regulatory burden. All sorts of factors might weigh within that burden. It may be that the Minister decides to increase some procedural burden and reduce some other, and makes the assessment that overall the effect is to reduce the burden. Within that, however, could be all sorts of complexity. It is very difficult to predict in the abstract exactly how the power might be used.

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[Mr Fysh]

That would be a strong incentive for the Government to get it right.

Shantha David: Indeed, but the timing is an issue. There is only just over a year to identify the pieces of legislation, and, as we mentioned, they are a tapestry of rights; we do not know where one right begins and another ends. I recommend the Employment Lawyers Association paper, which sets this out clearly.

[Mr Jones]

Q I imagine that you both have regular meetings with Ministers and senior Government officials. Is that correct?

Shantha David: I am a lawyer, so I do not necessarily.

[Mr Jones]

I do not think that that necessarily precludes you.

Shantha David: I am a practising lawyer.

[Mr Jones]

What about you, Mr Sharp?

Tim Sharp: We meet BEIS officials, for example, on a reasonably regular basis.

[Mr Jones]

Q So you have presumably raised your concerns about the issue of protecting workers’ rights and the potential impact of the proposals in the Bill?

Tim Sharp: We have raised our concerns about the protection of workers’ rights on a number of occasions when there has been speculation in the past, and have received lovely assurances, but I do not think we have met BEIS Ministers—there have been quite a few lately—in recent weeks. We certainly have not had the confirmation on workers’ rights. We have not been told if they are being retained.

[Mr Jones]

Q Have you actually requested comfort from those senior officials on the issue of workers’ rights? Have you asked for assurances?

Tim Sharp: I do not think anyone has been able to tell us anything about what decisions have been made.

[Mr Jones]

Have you asked for assurances?

Shantha David: I am unclear how that would assist—

[Mr Jones]

You are clearly concerned that there may be a wholesale scrapping of workers’ rights as a consequence of this Bill. Have you asked for any reassurance from the officials to whom you have spoken?

Shantha David: Can I—

[Mr Jones]

Sorry, I thought you had not met any officials.

Shantha David: No, but I am allowed to have an opinion, I think. I do meet officials from time to time.

[Mr Jones]

No, can Mr Sharp answer this? He is the person who has had the meeting.

Tim Sharp: We have met BEIS officials as the TUC. Have we asked for assurances? We have asked for information on what is planned on workers’ rights, and we have not been given any information on what is intended.

[Mr Jones]

Q It seems to me that you have not asked for any assurances, including in this evidence today. Frankly, you are raising hares that are completely illusory, and you know full well, don’t you, that there is no way that the Government would scrap the rights that you are concerned about?

Tim Sharp: It would be lovely to think that the Government will retain the rights as they are, but even in this benign scenario—it would be great if it happened—we are still going to have great chaos. Let us say that all the regulations are restated. We still have all the interpretive principles and the case law falling away. It has taken years of litigation to work out what entitlement workers have to carry over sick leave, for example. We do not know what the position might be after this Bill is passed. If you are a worker or a rep in a workplace, you do not want to be going to tribunal and to court to settle all these matters again, which is effectively what this Bill does. You want to be able to have a conversation—

[Mr Jones]

Do you not think a simple conversation might assist? You have not had it.

[The Chair]

I think you have pressed far enough on this, David. I would like to hear from Shantha.

Shantha David: Thank you very much. I am just going to remind Mr Jones that the equality impact assessment does identify that the removal of laws will have a detrimental effect. I am not sure that that is an assurance, because it is not. Beyond that, I do not know what help we have. I do not have access to Ministers in that way. It takes a while to get an answer.

Much like Mr Sharp was saying, the only way to clarify legislation as we go along and to get certainty in the law—we will not have it if provisions are sunsetted—is via litigation. That is something I am able to talk about. Litigation is costly, and pursuing appeals in the Senior Courts will take a long time because of the delays I mentioned. Given that tribunals and lower courts will no longer be bound by retained EU law, there is also the question of how long-established principles of precedent would work, and whether referrals would have to be made from tribunals and lower courts to the Senior Courts, which is what is envisaged in the Bill—either to go to the Courts of Appeal in Scotland, Northern Ireland and England and Wales, or to go directly to the UK Supreme Court. We are not aware—there is nothing mentioned in the paperwork, which is the only thing we have to work on—that that will be resourced in any way. We already know that it takes at least a year to get to the UK Supreme Court. There are only 11 justices. I am unclear as to who will make those decisions around interpretation.