Retained EU Law (Revocation and Reform) Bill

Earl of Caithness Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

Moved by

[The Earl of Caithness]

47: Clause 17, page 20, line 34, at end insert—
“(3) In subsection (1)(b), developments in scientific understanding must be identified based upon regular reviews of the scientific evidence.(4) When undertaking a review of scientific evidence referred to in subsection (3), the relevant national authority must consider the methodological quality of the evidence, in terms of the extent to which all aspects of a study's design, data collection protocols and statistical analysis can be shown to protect against systematic bias, non-systematic bias, and inferential error.(5) Where regulations under subsection (1) constitute environmental law, the review of scientific evidence must also consider whether the evidence takes a sufficiently wide view of the ecological impacts.”Member’s explanatory statement
This amendment is to ensure that future regulations will be based on a proper assessment of the best science available.

[The Earl of Caithness (Con)]

My Lords, we move from powers to revoke or replace to powers to update. I am very grateful for the support that I have got from the noble Baronesses, Lady Willis of Summertown and Lady Bennett of Manor Castle, on this amendment. I express the apologies of the noble Baroness, Lady Willis, who was in your Lordships’ House earlier this afternoon but has had to go back to Oxford. She did very well to come up here for the time that she did, given the timetabling of the debate today.

There has been increasing concern that aspects of environmental policy have been and are being formulated based on evidence that is questionable in its methodology and therefore reliability. Our amendment seeks to remedy that by ensuring that future regulations will be based on a proper assessment of the best scientific evidence—and not only that, but the evidence needs to be assessed using standardised approaches to ensure robust outcomes.

Our proposed new subsection (3) would require regular reviews of the scientific evidence. There has been a lot of specious talk about the Government resiling on European standards on environmental laws, as if they were an unimprovable factor as enacted. Much more worrying, surely, is the automatic adherence to what is law without question, setting more concrete rules that damage the environment.

Back in 2004, a Cabinet Office paper stated that

“policy-makers need to understand the value of evidence, become more informed as to what evidence is available … and critically be able to appraise it”.

Indeed, the noble Lord, Lord Krebs, who I am delighted to see in his place, in one of our debates on the Genetic Technology (Precision Breeding) Bill, stated that

“scientists do not absolutely agree on everything”.

He went on to say that

“when there is a centre of gravity of opinion, there are always outliers. Sometimes those outliers turn out to be right and there are transformations”.—[Official Report, 25/1/23; cols. 221-23.]

A good example of a recent transformation are the outcomes of interim results from a 20-year study by York University into moorland management, which the Government must take note of and study carefully. Policy must reflect broader approaches to conservation and be a living entity that can change as our knowledge of both ecological processes and individual contexts changes.

There is another point to make, which is that research must be allowed to continue. Recently, I read an example where the precautionary principle was being used as a reason to block research. The Game & Wildlife Conservation Trust wished to undertake research to provide more evidence but was refused permission to burn very tiny experimental plots on EU-designated sites because Natural England could not give consent, as the current habitat directive gives no exemption for experimental work or any sort of de minimis rules. In my view, the argument is both circular and not proportionate. Does my noble friend the Minister—I am delighted to see my noble friend Lord Benyon answering this debate—believe that there should be a presumption that scientific research is permitted? If not, how do we reduce the scientific uncertainty about sites or issues in question, and how can the Government legislate properly?

Proposed new subsection (4) asks that the quality of the scientific evidence is considered and based on standard principles. Not all scientific evidence is the same in quality or validity, and therefore reliability, which is important if directly impacting on decision-making. A standardised protocol would give confidence to all stakeholders involved, including the authors, and prevent unreliable evidence being given due weight, resulting in unintended impacts and wasted effort. For example, Natural England guidance on how to systematically review evidence recommends categorising the different types of study from 1, the strongest scientific studies based on meta-analysis and randomised control trials, to 4—the weakest, as based on expert opinion. This and its evidence standard underpin its approach of putting the best available science at the core of its decision-making. Will that approach be followed throughout government?

--- Later in debate ---

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, I am grateful for a really interesting debate. Before I begin to address the amendments in this grouping, I say that I know that there was some discussion earlier today regarding Defra’s plans for water quality, particularly the Bathing Water Regulations and the water framework directive. I take this opportunity to reassure noble Lords that neither of these pieces of REUL is on the schedule to this Bill and Defra has no intention of repealing either of these pieces of important legislation. The noble Baroness, Lady Bakewell of Hardington Mandeville, raised this issue, and I absolutely give them that assurance.

Under this Government, we have only strengthened our legislation on water quality. In April, we published our new integrated plan for water, which marks a step change in how we manage our waters. It looks at both water quality and water resources together. We completely understand people’s concerns about our rivers, lakes and seas and the pressures that they face. This plan is our response. In the plan, we set out how we will streamline our water policy and legal framework; this includes the water framework directive 2017. We consider that there are opportunities to improve the regulatory system through reviewing the implementation of the water environment regulations 2017 in order to improve water outcomes on the ground while retaining our goal to restore 75% of water bodies to good ecological status.

I turn to Amendment 47, moved by my noble friend Lord Caithness. This amendment would introduce specific statutory requirements on Ministers when deciding what updates may be appropriate under the power to update in Clause 17 in the light of scientific developments. The amendment would also require that, where Ministers intend to exercise the power on legislation relating to environmental law, the review of scientific evidence must consider whether the evidence accounts for the ecological impacts. I say this to my noble friend: the power has purposely been drafted in this way both to allow for broad technical updates and to ensure that it captures the wide range of REUL across a variety of policy areas. We cannot predict the nature of scientific developments or technological changes to which REUL may be subject, nor the changes that might be appropriate in those instances in future.

I totally agree with my noble friend’s point about outliers. As he said, we had this debate during the passage of the Genetic Technology (Precision Breeding) Bill. I constantly challenge the scientific advice that I receive in Defra to make sure that we are not creating the opposite of diversity or a sort of monogamous view of scientific progress. Outliers are the best challenge to that occasional tendency to be too absorbed in one particular group of views. This has been very eloquently described by notable international conservationists such as Allan Savory. That ability to have only research that is peer-reviewed sometimes requires those commissioning science to look more broadly. That is what we try to do, and I assure my noble friend that his points are well received. However, I gently suggest that placing statutory requirements on Ministers in the use of this power, including the requirement for scientific updates to be based on the latest evidence, is simply not necessary.

First, public bodies are already under public law duties to act reasonably and to consider relevant factors in decision-making. Secondly, Ministers will need to be reasonable and consider the relevant scientific evidence when evaluating whether updates, and what updates, may be appropriate. Provided a Minister acts reasonably and considers the relevant factors, it is ultimately for them to decide what is considered an appropriate amendment in light of a change in technology or development in scientific understanding.

The UK is a world leader in environmental protection and, in reviewing our REUL, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. Furthermore, this Government have been clear throughout the passage of the Bill that we will uphold our environmental protections. We remain committed to our ambitious plans set out in the net zero strategy, the Environment Act and the Environmental Improvement Plan 2023, which sets out the comprehensive action we will take to reverse the tragic decline in species abundance, achieve our net-zero goals and deliver cleaner air and water. The provisions in the Bill will not alter that. I therefore suggest that the requirements of this amendment are not necessary.

The proposed new clauses in Amendments 48 and 49, tabled by the noble Lords, Lord Krebs and Lord Whitty, respectively, establish a number of conditions relating to environmental protections and food standards that Ministers must meet when intending to use the powers under Clauses 13, 14, 16 and 17. They include satisfying a range of conditions in the amendments so that environmental and consumer protections relating to food safety and labelling will be maintained and that the proposed new regulations do not conflict with a specific list of existing international environmental agreements. They also introduce a new procedural requirement which Ministers must meet to be eligible to exercise the powers. This includes seeking advice from relevant stakeholders and publishing a report addressing specific points concerning environmental and consumer protections for the new regulations.

Amendment 48 seeks to insert a new subsection into Section 4 of the Food Standards Act 1999, introducing a requirement for the Food Standards Agency to include in its annual report an assessment of the impact of the delegated powers on areas of concern to consumers relating to food, under that section of that Act. These new and broad-ranging provisions would have a severe impact on the Government’s ability to use the Bill to legislate and deliver on our environmental and food goals, due to the resource-intensive nature of the conditions proposed.

Moreover, the list of relevant international obligations set out in the amendment is far from comprehensive and would become rapidly outdated in the context of ever-evolving international legislation. The delegated powers in the Bill are not intended to undermine the UK’s already high food standards, nor will they impact the UK’s status as a world leader in environmental protection. Indeed, this Government are committed to promoting robust food standards nationally and internationally, so we can continue to protect consumer interests, facilitate international trade—a very good point made by the noble Lord, Lord Whitty—and ensure that consumers can have confidence in the food they buy. The UK has world-leading standards of food safety and quality, backed by a rigorous and effective legislative framework.

Under the Food Standards Act 1999, the FSA already has as its core statutory function the objective of protecting public health from risks that may arise in connection with the consumption of food, including risks caused by the way it is produced or supplied, and protecting the interests of consumers in relation to food. The Bill and the powers in it do not change that. Accordingly, the FSA would already have to consider the effect on public health of any legislation that it would ask the relevant Minister in its sponsor department, the Department of Health and Social Care, to make in relation to food before that legislation would have effect. Alongside this, Defra maintains a well-established set of relationships with the agrifood sector, broadly aimed at upholding the sustainability, productivity and resilience of the sector. This includes representation, from farm to fork, of around 150 major food and drink companies and trade associations, as well as a range of industry CEOs and senior figures, to discuss strategic opportunities and challenges facing the agrifood chain.

We also want to ensure that, in reviewing our REUL, environment legislation is fit for purpose and able to drive our positive environmental outcomes. I take the point very eloquently made by the noble Baroness, Lady Hayman, but this is much more than warm words: we have written into law our environmental protections, our ambitions for reversing the decline of species and, in very strict food legislation, on the health of food.

The REUL that we are revoking as part of the schedule to the Bill is obsolete, expired, duplicated or no longer relevant to the UK. It is not required to uphold environmental protection. For example, around half of fisheries REUL can be removed as it is no longer relevant, has expired or relates to areas we do not fish in. For example, I am sure all noble Lords will agree that REUL setting fishing opportunities for anchovy in the Bay of Biscay for the 2011-12 fishing season, which has now expired and is no longer applicable in the UK, is pointless to have on our statute book. Therefore, the proposed conditions on food standards and environmental protections are simply unnecessary. The reforms these powers will enable are vital to allow the UK to drive genuine reform and seize the opportunities our new status allows.

I enjoyed being on the same side as the noble Lord, Lord Krebs, on previous legislation. I hope that my attempt at honeyed words might have got him onside, but we will have to see how that goes. There are two reasons, by and large, why Governments resist these kinds of amendments: first, they are not necessary—there is already law to provide for the measures the amendments seek—and secondly, they are too burdensome. For these two amendments, I submit, both those factors come into effect: they are not necessary and they are too burdensome, so I ask that they not be pressed.

[The Earl of Caithness (Con)]

My Lords, I am extremely grateful to all noble Lords who took part on my amendment, and those from the noble Lords, Lord Krebs and Lord Whitty, because we have had a very useful debate. I strongly agree with the noble Baroness, Lady Parminter, that the public must have confidence in our environmental laws. That is the basis of how we should go forward, and I think the Minister tried hard to reassure us that that was the case. I need to read exactly what he said; he said some helpful things in reply to my amendment. I just wish that the other Ministers in Defra took exactly the same view as he did with regard not only to regulations but new legislation. However, I am grateful for what he said, and I beg leave to withdraw my amendment.

Amendment 47 withdrawn.

Negotiating Objectives for a Free Trade Agreement with India

Earl of Caithness Excerpts

Tuesday 6th September 2022 Grand Committee

[The Earl of Caithness (Con)]

My Lords, I thank the noble Baroness, Lady Hayter of Kentish Town, and her committee for producing the report we are discussing and for their hard work in assessing the situation—which is opaque, to say the least. I also thank the Government for their intention to get a free trade deal with India as quickly as possible. That is highly commendable.

It is true that the eyes of the country are not on us at this moment, but I know that all the ears of the Committee listened carefully to the noble Lord, Lord Kerr of Kinlochard, when he said that he wished there could be a grown-up relationship between Parliament and the Government when discussing trade deals. I hope my noble friend takes that message back firmly to whoever is the new Secretary of State. Is the limit of our discussion on trade with India really this so-called debate? What further thoughts does my noble friend have on discussing this, because there is so much to discuss about trade with India that this debate cannot, in any way, be passed off as “We have consulted Parliament”?

I agree with my noble friend Lord Hannan of Kingsclere about the orientation of India. To me, this is probably more important in the long term than the orientation of China, which will certainly not change for some time. There is a huge role for Britain and the West to play with India, and it must be pointed out to them that it is also in their and not just western interests that that orientation is as close as possible. This potential free trade agreement is therefore an integral cog in that development.

I will slightly change the tone of the debate and refer to the report, because that is what we are discussing. I was particularly interested by paragraph 64, on our old friend the investor-state dispute settlement. I see the noble Lord, Lord Purvis, and others and remember the Trade Bill of 2020, on which we very nearly defeated the Government on ISDS. I cannot understand why the committee thinks this is such a good idea: I dislike ISDSs and do not think they help. Not only are they a blunt instrument but they can be used as a lever to distort trade before it gets to the court system. However, I totally agree with the committee in its final sentence of paragraph 64:

“Whichever mechanism is put in place, it must be independent and enforceable.”


Can my noble friend confirm that that will be the intention?

It will not surprise your Lordships that I turn now to the environment, climate change and farming. Not much is said about this in the Government’s objectives, but it is another area where a free trade agreement could be beneficial to both sides. It is hugely important, as the committee rightly points out in paragraph 86, that

“The Government should consider how it can support India’s decarbonisation efforts.”


If the importance of climate change did not register on Indians’ Richter scale until now, surely the devastating floods in adjacent Pakistan must have. If something is not done about it, there will be huge catastrophes throughout the world, particularly in India. India must surely realise that help in combating climate change will not come from Russia; armaments might, but that help will come from the West. That is so important in getting this free trade agreement right.

Farming is not even mentioned, but is crucial, because British farmers have nothing to fear in a free and fair level playing field of trade, as the NFU put it. I hope my noble friend confirms that that is the Government’s ambition.

My noble friend Lord Hannan of Kingsclere mentioned tariff barriers, but I want to mention non-tariff barriers, because they are equally detrimental to trade. I shall give your Lordships a couple of examples. There are 230 sanitary and phytosanitary measures on UK exports, compared with four that the UK applies to Indian imports. India applies 193 technical barriers to trade, compared to 54 applied by the UK. So it is not just tariff barriers that are important; equally important are non-tariff barriers.

Then there is the difficulty of doing business in India, which many of your Lordships have mentioned. For those in the farming and environmental world, there are seven Indian government bodies and authorities for agriculture and trade. That is something that I hope India will change, but it is also something that we can help it change for the better, with our experience.

Going into more detail—because of course the devil will be in the detail—I look forward to seeing what the free trade agreement has to say about eggs. I note the condition in which hens are kept in India, in cages which were banned in this country many years ago. Why should our farmers be subject to imports produced on a basis that would be illegal in this country? That is fundamental to how the free trade agreement will be judged.

In conclusion, I hope that my noble friend will confirm that agriculture and the environment will not be sacrificed on the altar of this free trade agreement, as they were with the Australian free trade agreement, and that considerably more importance will be put on these matters in the future.

Devolved Governments: Public Expenditure

Earl of Caithness Excerpts

Thursday 20th January 2022 Lords Chamber

[Lord Agnew of Oulton (Con)]

My Lords, in 2005, the then Labour Government agreed to allow the Scottish Government to have international development involvement. To my knowledge, they are involved in three countries—Rwanda, Malawi and Zambia. I can only come back to my earlier point that it is for the Scottish electorate to decide whether that is a good use of public funds.

[The Earl of Caithness (Con)]

My Lords, my noble friend mentioned the discussions which are happening and the report that will come later this year. Will it be clear that there will be more transparency on how the money is spent? It is not the money going from here but how the money is spent in Scotland that is so opaque.

[Lord Agnew of Oulton (Con)]

My Lords, we are certainly keen to see more transparency. At the moment, the Treasury receives monthly reports on expenditure—but I accept that more transparency would be useful.

Gender-balanced Parliament and Male Primogeniture

Earl of Caithness Excerpts

Tuesday 20th April 2021 Lords Chamber

[Lord True (Con)]

My Lords, until we have full reform of your Lordships’ House, if Parliament decides on that, recommendations for life peerages are in the hands of leaders of political parties. Of Peers appointed by the current Prime Minister, 32% have been women, as against 29% under Gordon Brown and 23% under Mr Blair. Again, I suggest that that represents progress.

[The Earl of Caithness (Con) [V]]

My Lords, I declare my interest as a hereditary Peer. My noble friend the Minister said that this requires careful consideration and is a complex matter: that is everyday meat for any Government. Will my noble friend encourage his right honourable friend the Secretary of State to undertake a review of this matter once and for all, so that the eldest child can inherit a title where that is applicable?

[Lord True (Con)]

My Lords, I am sure my friends and I will read the views of my noble friend, and indeed all others who have spoken, with due respect. However, I believe that, at the height of this pandemic, and given the need we have to recover, it may well be that some people in the country have other priorities.

Budget Statement

Earl of Caithness Excerpts

Friday 12th March 2021 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, the Chancellor will long be remembered for his clever and sympathetic handling of the terrible pandemic that we have been through. As my noble friend Lord Bates just said, it is a remarkable tribute that we are where we are.

However, I hope that he will be remembered for something else, too. It is a word that my noble friend Lord Agnew did not use when he opened this debate: productivity. In the 1980s, productivity was about 2.5%. We could double living standards every 30 years. Since the 1990s, it has fallen to an abysmally low level and the OBR forecast is that it will not improve that much in future. My noble friend mentioned that he was planning to do something on management, but can he be more specific on how we will get the long tail of British businesses that are unproductive to be more productive with better management? It has been a long-term failing of the British, and we really need to get a grip on it for the future. Without productivity, we cannot increase the economic cake and therefore cannot get larger slices.

I turn to VAT. I would like to see one area of it increased. In our report, the Food, Poverty, Health and Environment Committee recommended increasing VAT on unhealthy food. The Government noted the idea but have not acted on it. Will my noble friend take that away and come back? Getting us to eat better food will reduce the costs for the NHS hugely—by billions of pounds.

My third and final point refers to free ports. Why do the Government think that free ports will work this time when they did not work terribly well last time?

House of Lords: Size

Earl of Caithness Excerpts

Wednesday 27th January 2021 Lords Chamber

[Lord True (Con)]

My Lords, I salute the noble Lord for his service to his party and his nation in this House. One of the pleasures that I have had at the Dispatch Box—it has not always been easy—has been hearing the very strong voice for Wales in this House, not only from the noble Lord’s party but from the Benches opposite and other parts of the House. I understand his point. Obviously, one major party, the Scottish National Party, does not offer nominations.

[The Earl of Caithness (Con) [V]]

My Lords, is it not time that we started again at the beginning and the Government decide what they want a second Chamber to do and how it should be constituted, and then decide on the numbers?

[Lord True (Con)]

My Lords, my noble friend makes a strong point. The role and performance of the House are fundamental to the perception of the House, as I said earlier. That is much deeper than some of the froth on this Question and a matter to which not only the Government but all of us need to direct our attention. We are a revising Chamber, and it is as that that we merit our place and reputation.

EU-UK Trade and Cooperation Agreement

Earl of Caithness Excerpts

Friday 8th January 2021 Lords Chamber

[The Earl of Caithness (Con) [V]]

My Lords, I voted against leaving the EU, but I accepted the result of the referendum and have moved on. I have been looking forward to this deal, which I welcome. However, I am saddened by much of the tone of this debate, which in my view has been overly negative. Many in the Liberal party are still looking backwards and many in the Labour Party say that this deal is better only than no deal, so why did they vote against Mrs May’s deal when she was Prime Minister? Why did they allow the Conservative Party to corner Mrs May and then allow an election? They have only themselves to blame if they feel the way that they do.

Whatever deal was negotiated was bound to have a bumpy start, and this one is having that, as we have heard from the fishermen and from our farmers. There will be difficulties ahead, but I hope that my noble friend the Minister can reassure me that the Government are looking at all the effects on the market of the deal so far.

There are lots of questions I would like to ask about the level playing field and the flexibility of how it is to be incorporated. However, it is important that we look at the much bigger picture, as expressed by my noble friend Lord Bridges when he said that we must look for a strategic, long-term position and aim for that. That is a vital big task for the Government. As the noble Lord, Lord King of Lothbury, said, this is an ideal moment for the Government to start to focus on what is really important for our economy.

In the future, there can be no more excuses. We cannot blame Brussels for everything that goes wrong, or for our own inadequacies. We must look forward. We have the future in our own hands, and I believe that it is a very exciting one.

Income Equality and Sustainability

Earl of Caithness Excerpts

Wednesday 6th May 2020 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, I am not in favour of a universal basic income. It does not add up arithmetically, it does not improve living standards and, where it has been tested, it has not been a great success. I ask my noble friend about food and feeding those on the lowest incomes—a subject one of the House’s committees is currently looking at. The statistics are that, in 2017, 90,000 people died prematurely due to ill health. Some 20% of the population suffered from obesity, and the cost to this country in that year was £54 billion. Much needs to be done by the Government and us, both corporately and individually, to reduce these numbers.

Food standards and quality are integral to this. Can my noble friend the Minister tell me, in taking back our sovereignty and tackling this problem, which is more important—maintaining our high food and welfare standards or agreeing a trade deal that allows cheap food imports farmed to less rigorous standards? I also ask my noble friend what plans the Government have to secure the supply of basic food to those who can least afford it, particularly in these troubled times.