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

Justin Madders Excerpts

Committee stage
Thursday 24th November 2022 Public Bill Committees

[The Minister for Industry and Investment Security (Ms Nusrat Ghani)]

It is a privilege to spend the afternoon with you in the Chair again, Sir George.

In certain areas of legislation, for example on data protection, it is likely necessary to specify that certain effects of the existing legislative hierarchy are maintained, to ensure the continuation of the legal regime. The clause therefore establishes a new power to maintain intended policy outcomes by specifying the legislative hierarchy between specific provisions of domestic legislation and provisions of retained direct EU legislation or assimilated direct legislation to maintain the current policy effect.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I have only a couple of questions. As I said, the Opposition consider the clause to be sensible, but will the Minister outline whether any assessment has been done as to what circumstances it is likely to be used in? What steps will the Government take to preserve the intent of the measure after 23 June 2026, when regulations made under the Bill will expire?

[Ms Ghani]

The hon. Gentleman asked about assessment. The REUL reform programme has been under way for more than a year. Departments have been engaged as to the effect of removing EU law principles—such as that the EU is the only one that can create principles and legislation—which is what we are working on. The work will continue to take place.

On the evidence about changing interpretation rules under clause 4, in specific cases—data protection regulation and competition law—removing the principles of interpretation as set out in the EU (Withdrawal) Act 2018 will cause unintended policy consequences as a result of the way that the legislation has been written. The compatibility power will ensure that the relationships between individual pieces of domestic legislation going forward are maintained. We intend that to ensure that our domestic law operates as the UK Government want it to. Each Department will of course be responsible for REUL elements within their portfolio.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9

Incompatibility orders

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[Ms Ghani]

Hon. Members are already aware that clause 10 modifies powers contained in other statutes that can be exercised to make secondary legislation amending former directly effective EU law. Schedule 1 makes related amendments with similar effect to alter the procedural requirements in relation to other powers to amend retained direct principal EU legislation in line with the changes made in clause 10 to schedule 8 of the European Union (Withdrawal) Act 2018. Schedule 1 also contains amendments that are consequential on the changes to the EU withdrawal Act in clause 10. I commend the clause to the Committee.

Question put and agreed to.

Clause 10 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 11

Procedural requirements

[Justin Madders]

I beg to move amendment 81, in clause 11, page 13, line 26, leave out subsections (1) and (2).

This amendment removes the subsections that omit and replace paragraphs 13, 14, and 15 from the European Withdrawal Act 2018, and thereby leaves intact the existing scrutiny procedure for instruments which amend or revoke subordinate legislation made under s2(2) of the ECA 1972.

Good afternoon, Sir George. In essence, the amendment would remove the subsections that omit and replace paragraphs 13, 14 and 15 of schedule 8 to the EU withdrawal Act and leave intact the scrutiny procedure inserted for instruments that amend or revoke subordinate legislation made under the European Communities Act 1972.

If Ministers wish to revoke retained EU law, they are currently subject to what I would consider to be an appropriate level of parliamentary scrutiny, with mandatory explanatory statements, mandatory periods of prior parliamentary scrutiny and the mandatory use of draft affirmative procedures. Those enhanced provisions were inserted during the passage of the EU withdrawal Act in 2018 because Parliament considered such enhanced scrutiny necessary and proportionate, given the vast and varied nature of retained EU law and the potential impact of changes that we have debated at length over the past few days. We are talking about important environmental rights, workers’ rights and consumer rights. As we can see from the submissions made to the Committee, it appears that social media platforms are also at risk of being inadvertently switched off as a result of the Bill. We therefore think that this enhanced scrutiny is required.

I gather that the Government’s response as to why the requirements from the EU withdrawal Act can be watered down is that they believe those procedures have brought no tangible benefit. However, it is difficult to see what the rationale is for reducing the level of scrutiny when Parliament as a whole obviously thought that they were important enough to place in the Act just a few years ago. Could the Minister set out why she considers that a lower level is now appropriate?

I hear what the Hansard Society said about these procedures not having been used extensively thus far, but we are, of course, talking about something of an entirely different order to what we have seen to date. The procedures have mainly been used to maintain the status quo, but we are on a different and possibly uncertain trajectory now. It is clear from the Government’s refusal to accept any of our amendments to protect any pieces of regulation that there are going to be dramatic changes as a result of the Bill. Removing the requirement for the affirmative procedure will, once again, see a significant erosion of Parliament’s ability to scrutinise and hold Ministers to account when they amend the law. Why should parliamentarians not have greater involvement in the process set out in the Bill?

I have said this a number of times, but we really should aim to do better in the Bill. We should ensure that we are confident that, when changes are made, both Houses are able to scrutinise Ministers’ decisions. We will probably be presented, yet again, with arguments as to why we do not need such levels of scrutiny because these laws were foisted on us against our will in the first place, but that is essentially a way of saying that two wrongs make a right. I do not accept that. As I explained extensively on Tuesday, there has been a great deal of involvement on the part of UK politicians and representatives in the development of EU laws. I just do not accept the characterisation of these laws as having been foisted on us as correct.

I am not going to rehash all the arguments at the length I did the other day. I merely reaffirm that scrutiny is important, and when we, as parliamentarians, are faced with such a ministerial power grab, we should be concerned about trying to restrain it in some way. That is what this amendment seeks to do.

[The Chair]

I call the Minister.

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[Stella Creasy]

Apologies, Sir George, I was waiting for an affirmative action—in the same way I am waiting for an affirmative version of scrutiny from this legislation.

I rise to support amendment 81 because it is the nub of the issue, isn’t it? This is exactly what taking back control was supposed to be all about. It was about giving this place the powers that it was claimed had been cruelly taken from us by being part of the European Union. It is a while now, if we are honest, since we had the Brexit debates, but I do not recall a single leaflet that said, “Taking back control to Downing Street. Taking back control to a civil service office that would advise a Minister to pass an SI.” Yet, that is exactly what this piece of legislation will do on thousands and thousands of laws that our constituents care about because they have depended on them existing for generations.

I totally understand the challenge for Government MPs. Whether they were elected in 2019 or before, their experience of this Government has been of stability—of confidence in every decision and every piece of legislation that has been introduced. So they have never felt the need to question things or to have a mechanism whereby they could have a voice. What I often hear them loudly saying is, “In Downing Street we trust”—

[Justin Madders]

Whoever is in it this week.

[Stella Creasy]

Whoever is in it at any point—this week, next week, come what may.

The point is that parliamentary scrutiny is not a bad thing. Those of us who are democrats think it is quite a good and healthy thing.

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[The Chair]

I call Justin Madders.

[Justin Madders]

I think the irony is noted: the Minister says that everyone has their opportunity to speak and then does not give way to interventions.

[Dr Luke Evans (Bosworth) (Con)]

On a point of order, Sir George. I think it is fair to say that the Minister has given way numerous times. It is a little churlish to suggest that she has not, and I would like Hansard to observe that.

[The Chair]

As the hon. Gentleman well knows, it is not up to me to decide whether a Minister, or anyone else, should give way during a speech. So, strictly speaking, it is not a point of order, but the hon. Gentleman has made his point.

[Justin Madders]

The convention is of course that Ministers give way when asked to in Bill Committee, because that is the point of a Bill Committee—that we have the opportunity to scrutinise legislation and question the Minister on its intent. I think the record will show that that has not been possible on every occasion.

That is why this amendment is so important, because the Government are obsessed with keeping power for themselves. The idea that the decision to leave the EU was about taking back control was not about the people of this country; it was about Ministers in Parliament making decisions that they do not have to address the elected representatives of this country on and that they do not have to justify. They are hiding away from proper accountability. That is not what taking back control is about.

My hon. Friend the Member for Walthamstow said it is clear that Government Members have no scintilla of doubt about the intentions of the Government and are confident that nothing untoward will happen. Well, if the last scintilla of doubt has ridden out of town for them, it is certainly very much in the high street for us, because we are concerned about the Government’s intentions. We have plenty of reasons to be concerned that they will not maintain laws that we want maintained and that our constituents expect to see maintained. So we want to push this amendment to a vote.

[Stella Creasy]

Does my hon. Friend agree that it is quite worrying that the Minister is conflating scrutiny of the Bill, and Opposition Members raising concerns about the process set out in it, with scrutiny of the subsequent statutory instruments that will be laid by Ministers under the Bill to address the 4,000 pieces of legislation that will be deleted by it? The Committee is scrutinising the Bill itself, not its impact. That the two are being conflated—the idea being that no further scrutiny should be required—is troubling. We do not know what impact the Bill will have, only the powers that it asks for. Does my hon. Friend agree that separating out those two things is important in taking back control?

[Justin Madders]

I agree, and I hope that by the time the Bill reaches its conclusion we have clearer answers on how Parliament will be able to properly scrutinise many of the powers that the Government are awarding themselves in the Bill. I will press the amendment to a vote.

Question put, That the amendment be made.

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[Stella Creasy]

I have a horrible feeling that it is because of something I am about to say. I rise to support amendment 82. To go back to the theme of this afternoon, if we are taking back control, then surely control should rest with this place. That means that this place needs the relevant information and powers to do its job. Amendment 82 would require consultation on any restatement of retained EU law, including on whether it affects rights and protections.

The right hon. Member for Clwyd West will find that amendment 82 finally satisfies his concern that we are all scaremongering. If we are scaremongering, it should not be a big deal for Government to restate and confirm that the laws they are replacing will not change any protections; that will reassure those of us who might otherwise trouble vulnerable people.

Amendment 82 does two things. First, it helps with the reality, which is that no Government—shock, horror!—is perfect. No Government get everything right all the time, so sometimes, with the best will in the world, and the best grace in the world, corrections need to be made. We have all sat on Delegated Legislation Committees to do that.

Consultation on draft regulations will help identify minor issues, unintended consequences and drafting errors before a law comes into force; that ensures that it is better legislation before parliamentary time is committed to it. We agreed on Tuesday that this would take 4,000 hours of parliamentary time—267 days, if we sat 24 hours a day. The Minister looks surprised at that; I hope she has done some maths on how we will pass all these SIs before the deadline in the Bill. It will require some parliamentary time, at least.

Consultation can be incredibly helpful. It can identify quirks, and experts come up with points. We might have strong views on workers’ rights, but SIs will come up regarding standards, and there are experts out there who spend their lives being obsessed with electrical standards. Surely asking them to double-check what we have written down would be good.

Restatements are subject to less scrutiny, because they should not make substantive changes to regulations. That takes me to my second point, and the more substantive—dare I say it, “conspiracy, rather than cock-up”—moment in all this. It would be simple and straightforward for the Government to affirm that there will be no change in protections or rights if they did not intend to use the powers in the Bill to water down workers’ rights; to reduce environmental protections that we all believe are important; or to reduce fundamental consumer protections that resolve knotty problems, such as whether, at this time, when everyone is trying to book a train, we will get compensation from Avanti. We live in hope. Why would the Government not commit to doing that, and reassure us all? All amendment 82 does is hold the Government to the pledges that they are making, and ensure that every single time a piece of legislation is brought before the House, it does what it says on the tin. I have forgotten the name of the company I am thinking of. It is not Dulux; it is the other one—the one that has to do with paving.

[Justin Madders]

Ronseal.

[Stella Creasy]

Ronseal, that’s it; I am showing my age. This should be a Ronseal moment—it does what it says on the tin. I have a horrible feeling that the Minister will reject the amendment. I hope that she recognises that the concern comes in when the Government reject relatively benign proposals, such as the suggestion that they should simply say, “Yep, this legislation is like-for-like; it does not water down protections.”

As we saw on Tuesday, the Government have already started to decide, in private, which pieces of EU retained law they will not continue with, so we know that some things will change. Some legislation will fall, and we understand that; the whole point of leaving the European Union was to have the power to reject things. Knowing what will or will not be taken out is surely the epitome of taking back control. Each of us should be able, in our constituency surgeries, when we are inevitably asked about a piece of legislation and its impact, to say, “Ah, yes. Well, that is where this decision came from, and this is what we were told at the time.” Parliamentary scrutiny, done well—even done at all—is taking back control, so let us see some of it in this Bill, for a change.