Retained EU Law (Revocation and Reform) Bill

Joanna Cherry Excerpts

2nd reading
Tuesday 25th October 2022 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

rose—

[Dean Russell]

I will come back to the hon. and learned Lady shortly.

As has been alluded to, some naysayers have asked, “Why is the Bill needed?” As a consequence of the oddities created by our previous EU membership, there are currently insufficient powers to make subordinate legislation to enable the amendment or removal of retained EU law from the statute book. The practical result is that standards do not get updated when they should be. Regulation, rather than adapting to support the needs of businesses in stable and emerging markets, ends up holding British businesses back. That is simply wrong, particularly when businesses and consumers face high energy bills and food prices as well as the many other challenges that we know are down to world events, and in particular the awful actions of President Putin. With our new-found freedom, it is important that we take the necessary powers to bridge the gap and reform legislation in a timely manner.

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[Dean Russell]

I thank my right hon. Friend for his intervention. It is ultimately about ensuring that we are doing the right thing by people across the country. The truth is that the Bill is a framework, and this is not the time to debate the minutiae and the details as there will be plenty of opportunities for that in Committee, the future stages and statutory instruments. We should welcome the Bill’s framework, which is about taking back control for the country.

[Joanna Cherry]

The Minister said that the Bill is about doing the right thing by people. Earlier, I understood him to say that there will be no diminution in rights as a result of it. However, has he not looked at clause 15(5), which makes it clear that, far from creating higher standards, replacement legislation can only keep standards the same or lower them? That is the case, is it not?

[Dean Russell]

I very much enjoyed serving with the hon. and learned Lady on the Joint Committee on Human Rights and understand that she is incredibly focused on detail. There will be much time for her to explore that further if she makes a speech; I hope that she will. The point of the framework is to transfer EU law into UK law and make sure that it does what it should. If she is happy with EU law where that is retained, it will be written in UK law.

[Joanna Cherry]

rose—

[Dean Russell]

I will come back to the hon. and learned Lady in a little while.

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[Stella Creasy (Walthamstow) (Lab/Co-op)]

It is a pleasure to follow the hon. Member for Taunton Deane (Rebecca Pow). I hope she will appreciate that I listened to what she said and responded in my comments.

We have all done it: we have all accidently hit “Delete”, broken something or not saved a document that we meant to save. Or, even worse, we have been in workplaces where somebody has done that and all that institutional memory and knowledge has gone. Then we face a choice: either come clean that all that information is lost, or try to pretend that it did not matter. In taking the latter option, the Government are putting at risk thousands of rights that have been the fabric of everyday life for all our constituents.

In opposing the Bill, let me be clear that that is not talking about Brexit. It is not talking about rerunning a referendum. It is not to argue that we must go back. I am sorry that the right hon. Member for North East Somerset (Mr Rees-Mogg) is not in his usual place—I am not sorry, really—because it is also not about supremacy. It is about sanity and the business of doing government. In the time that I have, I want to set out that I and Opposition Members will oppose the Bill because of both what it does and how it does it. I urge Government Members to look at how the Bill operates, because all the powers, promises and ambitions in the legislation cannot be achieved.

We do not really know what the Bill does, because we really do not know what it covers. I am sorry that the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Dean Russell), is not in his place—who knows whether he is still a Minister and whether, when he comes back, he will be on the Front Bench or the Back Benches—because being honest about the fact that we do not know the levels of European law is critical.

It is not just minor changes, as the former Secretary of State tried to suggest; there are serious, important pieces of legislation that many in the House, and especially those who care about environmental issues, have discovered are not on the retained EU law dashboard. The conservation of habitats and species regulation does not appear on the Government’s dashboard. Therefore, as a starting point, we have literally no idea which rules are being abolished by the Bill because the Government do not know—they have not found them all. That is what the parliamentary question admitted yesterday with its authoritative but not comprehensive list. Call me an old- fashioned democrat, but I would quite like to know what I was voting to abolish and be able to tell my constituents about that before being asked to do so.

It is also not clear how the legislation will operate in the devolved legislatures. Of course, that matters in making sure that laws are tenable if they are to cross borders, let alone for our colleagues in Northern Ireland who face multiple legislative processes—all that red tape that we were told we could get rid of by leaving the European Union.

Above all, the Bill asks us to play the worst game of “Snog, marry, avoid” that I have ever seen for any piece of Government legislation; in deciding whether something is kept, amended or simply abolished. Let us have a go at that and see whether our constituents really want to play when they see what is at stake.

Let us talk first, nice and simply, about those things that we probably want to keep. I presume—maybe I have misread things—that there will be general agreement across the House that it is a bad idea to have cancer-causing chemicals in cosmetics, so we should retain rules that keep those out. Again, we all think that insider trading is a bad idea, but the legislation will rip up all the rules on that. On airline safety—by that I mean literally the rules that require a plane to be worthy to go in the air—we probably agree across the House that having rules that ensure that planes are safe is a good thing, so we could take a bipartisan approach. Again, we probably all agree on preventing food manufacturers from making false claims about the nutritional content of their food, and on tackling illegal firearms smuggling. One question from many of us might be: when we have a cost of living crisis and a Government who are in chaos, why on earth are we spending time rewriting laws that, on the whole, we all agree with?

That is where the rub is in the legislation: what the Government want to avoid and abolish. They need to come clean to our constituents. They are asking us to approve powers that would let them get rid of the rules around a whole plethora of issues, including those that require major sporting events to be free to air. I was very troubled to discover at the weekend that the Department for Digital, Culture, Media and Sport was trying to claim that was not the case. Clearly, Government Departments have not looked at the legislation on which they have depended. Disease control for bird flu is suddenly up for abolition, along with compensation rules for lost luggage and delayed trains. I guess if a Government are dealing with privatised rail industries and are unable to help them, they think that removing those basic consumer protections will somehow be good for them. However, they should be honest with our constituents if that is what they intend. The payout that comes if someone’s firm goes bust and the entitlement to 50% of their pension pot—let alone TUPE protections if their job is outsourced, paid holiday rights and maternity rights—are up for abolition through the Bill. I am sorry that the right hon. Member for North East Somerset is not in his place, because we could have a conversation about exactly how the EU protected women’s basic maternity rights against decisions by the UK Government.

On part-time workers’ rights, the hon. Member for Taunton Deane says she has had assurances from the Government. Well, I thought the Conservative manifesto was an assurance about what the Government were going to do, but that seems to have been ripped up. The Bill will give the Government carte blanche powers across 2,500 pieces of legislation and 300 policy areas. Can she really, hand on heart, be confident that all of those will be retained? She does not have in the Bill any recourse if those pledges come to nought, so she is taking a huge gamble.

Secondly, one might agree that all those things need to be up for grabs and that it no longer matters—I would love to see the referendum leaflet that said abolishing paid holiday leave would be a good thing; I will sit down if the Government can show me that—but the Bill hits delete through a sunset clause, abolishing everything all at once. As my right hon. Friend the Member for Leeds Central (Hilary Benn) says, that creates a power for Governments to abolish pieces of legislation just by doing nothing, with no judicial review powers if those rights are important.

I am sorry that the hon. Member for Stone (Sir William Cash) is not here. The Bill hands powers to those very Ministers who were in the Council meetings he objected to, to make those laws. In which case, we must all ask, “What help are they getting?” We have talked about 570 different pieces of legislation from DEFRA to be revised. At the moment, there are three DEFRA civil servants dealing with 570 pieces of legislation. It is the same across other Government Departments: two officials in the Department of Health and Social Care dealing with 137 regulations covering healthcare; nobody in the Department for Work and Pensions, which has 208 regulations to rewrite; and nobody in the Treasury, which has 602 regulations to review—snog, marry, avoid—in the next year and decide whether we will keep, or amend, them. The Department for Transport could not even confirm how many staff it had working on this issue. It does not even know who is responsible for it. That is not really a surprise. Of the 2,500 pieces of law that are being ripped up, on which we have been dependent for decades, 800 have no direct ministerial lead to even worry about whether we should keep them.

Ministers will decide what happens to those pieces of legislation—they can water down protections and any promises made to the hon. Member for Taunton Deane, or simply drop them without any form of scrutiny. I am disappointed that the right hon. Member for North East Somerset is not in his place, because those of us who are democrats believe passionately that the only people who are anti-democracy are those trying to take back control to Downing Street rather than to this place. It is simply not true to say to the British public that, through this Bill, Brexit is giving the House powers—let alone the trade war it could easily start, because we signed agreements in good faith with the European Union under the TCA that we would have a level playing field on areas such as food safety and employment rights. The Bill could lead to retaliatory tariffs.

What the hon. Member for Taunton Deane and her colleagues should reflect on most of all, perhaps, is clause 15, which enshrines deregulation. I would be with her in the Lobby on introducing higher environmental standards, but the Bill formally requires that that cannot happen. The direction of travel is only one way—to water down and reduce rights.

[Joanna Cherry]

The hon. Lady will have seen that I put that point to the Minister earlier and he said that clause 15(5) was just a minor detail. Does she agree that that is absolutely wrong and that it is absolutely central to the Bill?

[Stella Creasy]

Clause 15(5) is why the Bill is the anti- growth coalition. Businesses, consumers and environmental organisations alike are against no regulation. No regulation is a recipe for less competition. It is a recipe for a wild west. They want better regulation. Clause 15(5) rules that out and gives Ministers the responsibility not only of finding legislation, but then doing something with it without any scrutiny from this place. There are plenty of parliamentary mechanisms that could change that. There are many different ways that could work. It is not just about the sunset clause; it is about affirmative regulations. There are ways we could reduce red tape, but they are not written into the Bill.

The new Prime Minister says he will fix the mistakes of the past. He could do no better than to abandon the Bill and rethink it, because, as we all know, when we hit delete and do not save, it is a mess for all concerned.

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[Joanna Cherry (Edinburgh South West) (SNP)]

I listened to the new Prime Minister’s speech this morning, in which he promised to fix “mistakes”, acknowledged that work was needed to “restore trust” in the Government, and said that his Government would be marked by “integrity, professionalism and accountability”. One problem with the Bill, however, is that it will hugely remove the Executive’s accountability to Parliament. That is one of the mistakes that need to be fixed by the new Prime Minister, because it was prompted by ideology and desperation to point to some so-called Brexit benefits, when the overwhelming body of opinion—from business to the trade unions—says that it is a mess that will lead to legal uncertainty and more chaos. The author of the Bill has gone; I think the Bill should go with him.

Let us make no bones about it. The departing Prime Minister has left an almighty mess behind her because she pursued an economic policy that the vast majority of people, including the incoming Prime Minister, advised her against. The vast majority of people are advising against the Bill, including the majority of parties in this House, business, the trade unions, legal experts, all sorts of third-sector bodies and the devolved Governments. My plea to the Prime Minister, given the promises that he made this morning, is not to make the same mistake with the Bill that his predecessor made with the economy.

There are so many problems with the Bill that it is hard to know where to start. Other hon. Members have outlined some of them, but there are seven that I want to raise.

The first problem is that the Bill represents a huge transfer of power from Parliament to the Executive. That is hardly taking back control. Taking back control was supposed to be about the people of the United Kingdom and this Parliament, not the Executive. The Bill will give Ministers incredible powers to legislate on areas that affect our everyday lives without any meaningful democratic input.

The second problem is that the Bill means that if Ministers want retained EU law to fall away, they need take no action at all. The decision to take no action is not subject to parliamentary scrutiny, meaning that very important rights and protections could be lost, including the right to equal pay as between men and women—a pivotal change in our society—as well as food safety standards, which other hon. Members have mentioned, and workers’ rights such as a certain amount of paid holiday per year and a 48-hour maximum working week for road hauliers. Those are not the sort of rights that should just fall away, perhaps even by accident.

The third problem, which I raised in my intervention early in the debate, is that far from creating new high standards in our regulatory frameworks, the replacement legislation cannot increase standards; it can only leave them as they are or lower them. That is what clause 15(5) says. [Interruption.] The Minister shakes his head, but in my opinion that is what it says, and many other legal experts think so. It is not a minor detail; it is a major problem with the Bill.

The fourth problem is that reducing standards or allowing key pieces of legislation simply to lapse could risk the UK’s trading relationship with the EU at a time when we can ill afford it. I know that it was several Prime Ministers ago, but will the Government please remember the trade and co-operation agreement and their obligations under it?

The fifth problem is the fact that the proposed speed and scale of these changes—as we have heard, the Government’s retained EU law dashboard includes more than 2,400 pieces of legislation in 300 policy areas across 21 sectors of the UK—are completely unrealistic, and will inevitably result in mistakes.

The sixth point concerns the problems that the Bill poses for the devolution settlement. My hon. Friend the Member for Argyll and Bute (Brendan O’Hara) went into those in some detail so, given the constraints of time, I will not go into them in the same detail myself. The fact of the matter is, however, that in its current form the Bill will allow UK Government Ministers to act in policy areas that are devolved, and to do so without the consent of the Scottish Ministers or our Parliament, because secondary legislation does not need consent. Primary legislation needs consent, but that rule is more honoured in the breach than the observance.

[Jonathan Edwards]

As usual, my hon. and learned Friend is making a forensic speech. She will be interested to learn that more than 10,000 people marched for independence in Cardiff recently. I never thought that that would happen in my lifetime, but it is happening because of Bills like this. The people of Wales are seeing the British Government supplanting the devolution settlement, and are concluding that they have a choice between direct Westminster control and independence. That is what is happening in Wales, and I am sure it is what is happening in Scotland.

[Joanna Cherry]

Indeed, and I am pleased to say that I spent the weekend in Cardiff. It was my first visit, and I found it to be a beautiful city. I was attending the FiLiA feminist conference. I will certainly go back to Cardiff, and I should quite like to join one of those independence marches some time. Whether one is a Unionist or a nationalist, the fact remains that the mess that the Bill will create will only cause problems between Westminster and Holyrood.

That brings me to my seventh point, which concerns Northern Ireland and the impact of the Bill on the Protocol on Ireland/Northern Ireland. The Government have not yet conducted a full and comprehensive assessment of retained EU law, and they have also failed to analyse which areas of retained EU law interact with or have an impact on the commitments made in article 2(1) of the protocol or, as I pointed out earlier, on the level playing field provisions of the trade and co-operation agreement. The removal of key frameworks for interpreting retained EU laws and settlement agreement legislation—including EU general principles, in clause 5, and retained EU case law, in clause 7—may have an impact on the “keeping pace” commitment associated with article 2(2). That is another area in which the Government need to go back to the drawing board.

As Chair of the Joint Committee on Human Rights, I can say that we will be scrutinising the Bill very carefully for its rights implications, and will table amendments. However, I must add that I think it is pretty much beyond amendment, and that, as I have said, the Government need to go back to the drawing board. I say to them, “Please do not pursue another dangerous ideological experiment at the cost of our constituents’ rights, and at the cost of their livelihoods.” The Bill will have a big impact on business and a big impact on workers’ rights. This is absolutely not about people, or this Parliament, taking back control; it is about executive fiat, and the sidelining of democratic scrutiny by this Parliament.

In his speech when he took office this morning, the Prime Minister said that he would put the country’s needs above politics. Well, the country does not need this, and, in fact, there is more than one country in our Union. The Government need to respect the wishes of Scotland’s voters, the wishes of Welsh voters and the wishes of Northern Ireland voters, as well as the devolved settlement.

My message to the Government is that the Bill is a mess. Yes, it is embarrassing to ditch Bills, but let us face it, the Government have had a lot of embarrassment recently and they are getting used to it. They have already ditched one Bill, the Bill of Rights; I believe it may be bouncing back soon as a result of the Cabinet reshuffle, but it is certainly possible to ditch a Bill at this stage. This Bill needs to be ditched, and the way in which we deal with retained EU law needs to be revisited completely.