Retained EU Law (Revocation and Reform) Bill

Ian Blackford Excerpts

Report stage
Wednesday 18th January 2023 Commons Chamber

[Ms Ghani]

My hon. Friend is absolutely right. There has been a lot of misinformation about the environment. The Department for Environment, Food and Rural Affairs has committed to maintain or enhance standards. He is right that we had very little say over positions taken in Brussels, but now, in the Bill, those decisions are taken by the devolved authorities. That will remain devolved and they will have a say, so why would they want to give away that power?

[Ian Blackford (Ross, Skye and Lochaber) (SNP)]

The Minister spoke of taking back control, but the harsh reality is that the Government are taking back control from the Scottish Parliament. Yesterday we heard about the UK Government enacting section 35 to strike out a Bill of the Scottish Parliament. The Scotland Act 2016 contains the Sewel convention, which requires the UK Government to obtain the consent of the Scottish Parliament when they are acting in devolved matters. The Scottish Government are not giving their consent. What is good for the goose is good for the gander. Why should the Scottish Government not have the right to veto this Bill, which tramples over devolution and our laws in a way that we do not consent to?

[Mr Deputy Speaker (Sir Roger Gale)]

Order. Could I gently say to the Minister that in order to facilitate Hansard and hon. Members seeking to hear, it would be helpful if she could address the microphone rather than the Back Benches?

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What this Bill does is give power to the devolved authorities. They will be able to take retained EU law and do with it as they please. They can keep it, they can revoke it, they can amend it, but they cannot extend it. Why can it not be extended? That is a point that has been raised, and it is one about which people have some concern, because this is technical. This is turning the status quo into domesticated law. If people want to make the political argument for extending laws, they have the ability to do that where it is devolved. They have the power to do it, but it is not this Bill. Likewise, in this Parliament, if we wish to extend the regulations, we have the ability to do so. That brings me to an entirely spurious point that is being made.

[Ian Blackford]

I hope the right hon. Gentleman will understand this point. Of course there is a difference: we wish to be back in the European Union as an independent country, but by dint of this Bill we are going to have to introduce legislation to make sure that we remain aligned with the European Union. We have no desire to do that, because we are already closely aligned. These measures are going to be forced on us, against our will, by this Parliament.

[Mr Rees-Mogg]

The right hon. Gentleman makes a fair point. There will be some work for the Scottish Parliament to do to maintain the status quo. That is a policy decision for the Scottish Parliament, resulting from a decision that was taken by the whole United Kingdom. That is how devolution works, and that is a proper and fair working of devolution. That, actually, is what gives the Scottish Parliament the power to do what it wants to do. It flows from our constitutional settlement, and from the overarching decision made by the British people, as one people, to leave the European Union.

I now come to the entirely bogus point about the threat to rights. In his opening speech on Second Reading, my hon. Friend the Member for Watford (Dean Russell) made it clear, on the Government’s behalf, that the environmental rights would be maintained. The Government have been and are committed to that. But they will maintain them in UK law. We have been able to that before. I believe Henry Brooke was the Home Secretary who introduced the Clean Air Act 1956. The Conservative party has a pretty good record on that. It turns out that the Sale of Goods Act 1893, to which I earlier referred the Minister, was one of the last Acts of Gladstone, so the Liberals should be proud of their history of doing things in a British way rather than needing the European Union to do it. The Conservatives introduced the Holidays with Pay Act 1938—again, the protection of workers’ rights. That is before we go back to Lord Shaftesbury and the Factory Acts. We do not need to go into the mists of time to see that we can do it ourselves.

Finally, I must mention amendment 36. This is the man upon the stair. We all know about the man upon the stair:

“Yesterday, upon the stair, I met a man who wasn’t there. He wasn’t there again today. I wish, I wish he’d go away.”

If we do not know what our laws are, how are people supposed to obey them? If the laws are unknown, mystic and possibly imaginary, surely they should not be laws in the first place. They have made the best argument for getting rid of the man upon the stair who was not there in the first place.

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[Sir John Hayes]

The great constitutional theorist A.V. Dicey declared:

“The principle of parliamentary sovereignty means neither more nor less than this...that Parliament has the right to make or unmake any law whatever”.

When we joined the EU, despite the promise at the time of Europhilic politicians like Edward Heath that it was an economic community, what happened in practice was that this place paradoxically used the very sovereignty it had inherited from generations before to give up sovereignty and surrender parliamentary authority. The promise of Brexit was a repudiation of such international law making. I know that it discomforts the globalist liberal elite that that promise will and must be delivered, but that is how it is and how it will be. The people’s will must be seen and must be seen to be done, and that is precisely what this Bill is all about.

The journey since 2016 has not been easy. The doubters and deniers—the schemers and plotters—unable to let go of their Euro-federal fantasies, have conjured every trick imaginable to try to stymie Brexit. However, this Government are clear: we will deliver on the promise made in 2016 and restore parliamentary sovereignty to this country. In doing so, we will re-empower the people to whom we are answerable.

I will pick up a couple of points made by Opposition Members. I enjoyed the rhetoric of the SNP spokesman, the hon. Member for Stirling (Alyn Smith), which was as elegant as ever. I particularly enjoyed his criticism of hyperbole, which was immediately followed by a hyperbolic list of all of the things that are now at risk. Do any Opposition Members really believe that the Government or Government Members want less safety for our workers, dirtier rivers and less protection of the environment? If they do, they cannot have listened to what Members on the Tory Benches have advocated and fought for, in many cases, for years.

It is an absurdity that, six years on from the referendum, we remain shackled to thousands of articles of retained EU law. I accept that whether we keep, amend or discard those articles needs to be a thorough process, but there must be a single means of delivering that process, which is precisely what this Bill is. Some claim that this is a power grab, but this process—this business of secondary legislation; this use of statutory instruments —was how these regulations found form in the first place. It is a well-established practice that Governments through time have used to deal with such matters, and will again.

That detailed practice requires a Bill of the kind that has been drafted. Without such impetus, we risk wallowing in the malaise and self-doubt that can too often infect those tasked with grand undertakings. After six years, the British people deserve a deadline by which they can know for certain that Britons will live exclusively under British law, free from the interference of foreign powers. This Bill delivers the very certainty that those who criticised it have called for today. Such self-confidence is anathema to the hon. Members who still balk at the audacity of the 17 million Britons who believed in Britain enough to vote for Brexit.

To hon. Members who have signed amendment 36, I say that it is, by definition, an attempt to dilute, delay and obfuscate. Such efforts must be resisted. There are those who remain unreconciled to the decision of the British people to leave the EU, but any device to perpetuate our legislative connection to the EU is incompatible with our national interest and the common good. The unamended Bill facilitates the removal of our EU hangover through all the necessary, democratic mechanisms.

The Bill is a decisive and unequivocal declaration of self-confidence in self-governance. At last, we have a Government who display such self-confidence, free of the doubt and guilt that has infected politicians on both sides of the House for far too long. Edmund Burke said that what matters

“is not what a lawyer tells me I may do, but what humanity, reason and justice tell me I ought to do.”

What we ought to do now is deliver what the British people missioned us to do in 2016: to ensure that the laws and regulations that affect their lives are made in this House and that their Government are free to lead that process.

I enjoyed the speech of hon. Member for Ellesmere Port and Neston (Justin Madders), which was rather like a Russian novel—very long but with good bits—but he must know that there are any number of ways in which Ministers are accountable to the House. For example, they can be questioned orally and in writing, and they can be challenged through Opposition day debates, Standing Order No. 24 debates and urgent questions. Ministers should and will be held to account by both sides of the House in all kinds of formal and informal ways, but we could never hold to account those foreign powers that dictated our laws for far too long.

Now, we escape.

[Ian Blackford]

The right hon. Member for Haltemprice and Howden (Mr Davis) described the Bill as a pig in a poke. I think it is a pig in a poke that the Government have put lipstick on. We have heard about taking back control many times this afternoon, so I am at a loss to understand why Government Members would go through the Lobby in support of this Bill. In effect, a whole range of legislation will be wiped out, but they do not know what it is or what authority they are giving to the UK Government. They do not even know whether it will be 3,000, 4,000 or more pieces of legislation. It is extraordinary that a group of people who want to take back control are giving authority to the UK Government to do what they like without any scrutiny in this House—that is exactly the point of the Bill.

We have heard that we should not worry, because we will have statutory instruments and the ability to hold the Government to account, but the last time that the Government were defeated on a statutory instrument was in 1979—my goodness. Those who want to take back control talk about parliamentary sovereignty and the lack of democracy in the European Union, but all that they are doing is giving untrammelled powers to Ministers to do what they like. There is nothing that the Opposition or Government Back Benchers can do to effectively hold the Government to account. What an extraordinary set of circumstances.

SNP Members have always accepted that it is the right of others in other parts of the United Kingdom to determine their future. They want to leave the European Union, but we reject that—of course, we do not want to leave. As my hon. Friend the Member for Stirling (Alyn Smith) said, according to a recent opinion poll, 72% of the public of Scotland want to stay in the European Union. We have a tale of two different Parliaments moving in different directions. It is clear that Scotland is on a journey to independence and we will rejoin the European Union as a member, hopefully soon. To do that, however, we need to remain aligned with the European Union.

This is about democracy. We have referred to the Scotland Act 1998 on many occasions, as we did yesterday in the debate on section 35, and it is worth reflecting on the difference between what happened there and what is happening today. We have a Parliament in Edinburgh that we are proud of. There was a majority in that Parliament for legislation that was passed before Christmas, yet this Government in London can bring in legislation under the Scotland Act that strikes out an Act of the Scottish Parliament and there is nothing we can do about it. In this particular case, the legislation impinges on domestic legislation and devolved legislation in Scotland. The principle was established in the Scotland Act that in order to do that the principle of consent stood—the so-called Sewel convention. That means the devolved Government in Edinburgh, and in Cardiff and in Belfast, have to give consent for matters that affect domestic legislation. Yet we are told to go and stick it—the view of the Scottish Parliament and the Scottish Government that this is not in our interest and we do not consent to it.

We saw yesterday that a UK Government can strike down a Bill of a Scottish Parliament. Why does not the Scottish Parliament have the right to say to this Government that they are doing that without our consent? That demonstrates to the people of Scotland that devolution as it works at the moment means Westminster continues to call the shots. Westminster determines what happens in devolved legislation. It is a wake-up call to the people of Scotland in the debate we are having on independence that, if we want to secure the right to determine areas such as the economy, the environment and consumer protection, we cannot rely on the Westminster Government to protect our rights and we cannot stop a UK Government interfering in what are devolved matters. If we want to secure that protection, if we want to secure our rights, if we want to celebrate the joys we had of European membership from 1973 until now, we need to take the final steps.

Look at what has happened in this House this week: there has been the threat to the right to strike, the threat to democracy in Scotland yesterday, and the threat to the values and protections we have built over many years in the European Union. All are being swept away. This is a United Kingdom turning the clock back, moving backwards. We want to move forwards as a member of the European Union. That is why today we will push our amendments and reject this Bill.

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

The measures in the Bill are wholly necessary and greatly welcome. The retention of EU law after our departure from the European Union was certainly necessary in order to maintain temporary legal equilibrium and avoid gaps in the UK’s statute book. However, as time has passed, it has become increasingly anomalous for the United Kingdom to have a large body of foreign-derived legislation that is accorded supremacy over our own domestic law.

After almost half a century of EU membership, the United Kingdom has automatically absorbed a vast amount of EU legislation, which was either directly imposed or created by domestic subordinate legislation. Much of that legislation is probably obsolete. It was telling that around 1,400 items of EU law that everyone had apparently forgotten about were recently discovered in the National Archives. It seems self-evident that those pieces of legislation could not possibly have been of much practical utility if everybody had forgotten about them, but despite the fact that those items of law had been forgotten, they continue to have special status in our domestic legal system. Not only do they have supremacy over our domestic legislation, but they are interpreted in accordance with the general principles of EU law, rather than those of our own indigenous systems. They are a kind of EU cuckoo in the nest of the common law and Scots law.

It appears there are in total about 3,800 items of retained EU law, and the Government are entirely right to have decided to review them as quickly as possible and remove or assimilate them as appropriate. Furthermore, the Government are right to set out an ambitious timetable for the completion of that exercise through the sunset provisions of clause 1. Amendment 36 would hamper that process. The sunset provisions of clause 1 are of course intended to encourage and incentivise Government Departments to press on quickly with the exercise of identifying and reviewing individual items of retained EU law that affect them. Those Departments will then make a decision as to whether those items of law should be revoked, pursuant to clause 1, or assimilated into the domestic legal system, pursuant to clause 6. That is an entirely sensible process, which will ensure that those items of retained EU law that are not revoked pursuant to clause 1 become subject to the ordinary processes of the domestic legal system. That will be beneficial to businesses and citizens in that the well-understood principles of common law or Scots law, with their nimbleness and certainty, will apply to assimilated law rather than the unpredictable purposive approach of the EU legal system.

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[Ms Ghani]

I must make some progress; I am worried about time running out. I must also speak in particular to amendment 36, mostly because my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones), who chairs the European Statutory Instruments Committee, made some fantastic interventions. The amendment states that we need greater transparency on how the process will continue. There are opportunities to be on Committees and to scrutinise legislation, but my hon. Friend made it clear that Labour MPs have not even turned up to take their places on the European Statutory Instruments Committee.

EU law that will be amended or repealed will go through the usual channels. Business managers and the Leaders of both Houses will take decisions. The European Statutory Instruments Committee will be involved, and the Delegated Powers and Regulatory Reform Committee will be involved in the House of Lords, and we have the dashboard. Nothing could be more transparent, and it will involve colleagues from across the House.

My right hon. Friend the Member for Chelmsford mentioned consumer rights. I want to put on the record that core consumer protections, as set out in the Consumer Rights Act 2015 and the Consumer Protection Act 1987, will continue to apply and remain unaffected. Furthermore, I reiterate my commitment that the dashboard, as I said earlier, will be published this month.

Turning to devolution, the Government recognise the importance of ensuring that the Bill is consistent with the devolved arrangements and remain committed to respecting the devolution settlement and the Sewel convention. The Bill will allow the devolved authorities to look at devolved law and take a decision on what they wish to assimilate, amend or revoke—decisions that they never had when we were a member of the EU. I would hope that those authorities would embrace that with both hands, not reject it.

[Ian Blackford]

Will the Minister give way?

[Ms Ghani]

I am reluctant to give way, because the intervention will end up being, “But we just don’t want to be here.” If it is on a different topic, I will give way to the right hon. Gentleman.

[Ian Blackford]

Will the Minister respect the right of the Scottish Parliament not to give consent to this Bill?

[Ms Ghani]

I find this extraordinary. The devolved authorities have the right to make decisions on devolved laws. Why would that not be embraced, instead of being rejected?

I must comment on the Bar Council’s evidence. Barrister Tom Sharpe KC noted that the Bar Council

“is our trade union, and it does not speak on my behalf on this political matter…obviously”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 24, Q43.]

An issue about deregulation was raised. It is not enshrined in any of the clauses, but the Bill says that overall burdens must be reduced.