Draft Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023

Justin Madders Excerpts

Monday 18th September 2023 General Committees

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

It is a pleasure to see you in the Chair, Mr Stringer. Indeed, we have very good north-west representation in the Committee, including my hon. Friend the Member for City of Chester, who is making her first outing as an Opposition Whip. I am pleased to see her in her place. We served together on a local authority for many years, and I am sure that she is delighted to have the opportunity to hear me speak again.

This is an important moment in the operation of the Retained EU Law (Revocation and Reform) Act 2023, which my hon. Friend the Member for Sheffield Central and I had the pleasure of spending many months scrutinising throughout its passage in the House of Commons. We now have the opportunity to see whether the theory that was propounded by the Act’s advocates is matched by the practice.

It is fair to say that the passage of the Act was a rollercoaster ride, not just because we saw an ever-changing line-up of Ministers on the Treasury Bench but because of the way the legislation ended up operating. On the personnel, I congratulate the Solicitor General on what must be at least his fourth consecutive appearance on this issue. That is no doubt a reflection of his ability but perhaps also reflective of the chaotic approach of his predecessors. It has not gone unnoticed that since the Secretary of State for Business and Trade found herself the centre of attention following an urgent question off the back of a written statement that heralded the U-turn on the operation of the Act, nobody from the sponsoring Department has appeared on the Treasury Bench to deal with the outstanding issues associated with the Act. Has the Solicitor General found himself in a Red Adair troubleshooting role for the Department? Or has the operation of the legislation moved to the law offices?

The Opposition welcome the opportunity to debate the regulations, because we would have been starved of that altogether had the Government pressed ahead with their original plan for the wholesale bonfire of retained EU law at the end of the year. I am glad that the Government finally listened to all the legal experts, the campaigners and, if I may say so, the Opposition when we pointed out that that approach would be an unmitigated disaster. It is clear that from the outset the Government have approached the issue completely the wrong way round. They have had an ongoing ambition to act on the relevant laws and reach a place where we will be free from EU regulations, but the destination was in mind well before they knew what they wanted to do with the new-found freedom, or what the best way to get there was without causing, at best, uncertainty—and at worst, chaos.

I know the Government were under pressure from unhappy Back Benchers who were disappointed by the pace of change following Brexit, so they presented the retained EU law Bill in the forlorn hope that having an unachievable deadline would somehow force Departments to come up with answers to the questions. It was a bit like cramming for an exam the night before. Belatedly, that approach was discovered to be completely unworkable. Now we are in a situation where the Government have announced only a handful of areas where the revocation of or amendments to retained EU law amount to a substantial policy change, and even then there is not always a direct relationship with our leaving the EU.

One example is the “Smarter regulation to grow the economy” policy paper, published in May, which promised to diverge away from some EU-derived employment law. Even that, however, was bulked out by a review of non-compete clauses in employment contracts, which have never been derived from EU regulations. It is hard to see why those things were lumped together, unless the Government wanted to create the impression that they were doing more than was actually the case with the new-found Brexit freedoms.

Maybe we have seen so little substantive policy change because, despite the legislation having been around for a year now, Departments still have not got their heads around what they want to do with all that law. One notable exception was the recent decision to try to revoke the Conservation of Habitats and Species Regulations 2017 via the Levelling-up and Regeneration Bill—although that was at odds with what was said throughout the passage of the retained EU law legislation.

[The Chair]

Order. I ask the hon. Gentleman, and other Members when they speak, to stick to the subject before us, which is the statutory instrument, not all the surrounding legislation.

[Justin Madders]

I of course understand the point, but it is important to give the context for why the regulations are before us today. We are faced with a piece of legislation that, to quote the written statement from the Minister for Industry and Economic Security, the hon. Member for Wealden (Ms Ghani), is

“redundant and therefore does not reflect policy change”.

In the same statement, the Minister said it was “only the beginning”. Why is it only the beginning? How many more of these instruments do we have left? We left the EU seven years ago. A Bill was presented to Parliament almost exactly a year ago that proposed to do away with every piece of unnecessary EU regulation by the end of this year, but now we are told that this is just the beginning.

Is it a symptom of the chaos of the last seven years that explains why the Government still do not know what laws they want to get rid of? Is it because nothing was done until the Bill was drafted last year, and once the work began it became apparent that it could not be done in the timescale set out? Or is it actually because quite a lot of the rules are worth keeping? I suggest that the Government are literally making it up as they go along.

As the Solicitor General said, more than 90 laws are being revoked via the instrument, which means, according to the retained EU law dashboard, that there are still 3,263 pieces of law that are unchanged. At the current pace, we are going to need at least another three years to get through everything, although that presumes that the actual volume of retained EU law will remain static. According to the dashboard, the Government are still discovering more pieces of retained EU law. In fact, the dashboard suggests that the vast majority of instruments being revoked by these regulations have only recently been discovered. Some 77 out of the 93 instruments being revoked were completely absent from the dashboard only a few weeks ago, so I hope the Solicitor General will be able to provide some explanation of how it can be the case that, a year after the dashboard was first unveiled to much fanfare, regulations are still being added to it.

On top of that, the dashboard happens to say:

“Future updates to the Dashboard will take place throughout 2023.”

I hope we get some kind of explanation as to how many more additions we can expect and why we still do not know which laws have derived from the EU. For all the talk of “getting Brexit done”, it appears that there has been very little action to untangle those laws from our statute book. Will the Minister confirm whether work is still being carried out to identify more uncaptured retained EU law and whether more has been found since the publication of the regulations? Will there be a cut-off date by which he can confidently assert that no more EU regulations will be found? I hope it is before 31 December, given that that was the date by which everything would have automatically fallen had the Bill remained.

Let us look at the substance of what is being revoked, because it is a far cry from the rallying comments made by the former Secretary of State, the right hon. Member for North East Somerset (Sir Jacob Rees-Mogg), in his June 2022 ministerial statement, in which he claimed that the Government would seize on the opportunities offered by Brexit to lift

“red tape to secure greater freedoms and productivity”.—[Official Report, 22 June 2022; Vol. 716, c. 868.]

Instead, the Government are using their time to focus on removing deadwood.

Take the Sex Discrimination Act 1975 (Application to Armed Forces etc) Regulations 1994, which appear on the first page of schedule 2 to the regulations. I agree that it is a completely outdated instrument, given that its provisions were included in the Equality Act 2010, which was in part a consolidation of a number of existing elements of equality law, including laws relating to sex discrimination. But that is the point: it was already superfluous when Brexit was just a twinkle in the eye of the right hon. Member for North East Somerset. Far from making the most of the opportunities afforded by Brexit or allowing the country to be more competitive, what we are doing with this SI is effectively a bit of housekeeping and chucking out excess bits of scrap paper.

Looking at the schedule, I can see at least half a dozen references to regulations having been superseded by UK legislation already, so they have nothing to do with our leaving the EU. However, there could be more. I have no problem with tidying things up, but let us not pretend that removing essentially duplicate pieces of legislation is some great unleashing of the country’s potential. Will the Solicitor General tell us how many regulations are in that category and are actually being revoked in name only?

This situation perfectly encapsulates how the Government have approached this issue the wrong way round from the beginning, working on the basis of a headline and of being seen to be ditching red tape and not worrying about the detail. Surely we should have debated the matters of principle and policy first. Once we had identified the areas of meaningful policy to be retained or amended, attention should have turned to the redundant pieces of retained EU law.

The way the Government have approached this matter seems to be to pick off one or two areas from which to diverge, and to treat the rest of it as a tidying-up exercise. It might keep Back Benchers happy for a while if Ministers can say they have removed 600 or so regulations from the statute book, but I do not think they envisaged that the majority of this exercise would be akin to clearing out junk from the garage. The contrast between the rhetoric and the reality was summed up by the current Secretary of State for Business and Trade in a written statement on 10 May 2023, when she said that the Government were

“proposing a new approach, one that will ensure that Ministers and officials are enabled to focus more on reforming retained EU law and doing so faster.”—[Official Report, 11 May 2023; Vol. 732, c. 438.]

When will we see the fruits of that labour?

If we take the Government’s word that the regulations covered in schedule 2 are redundant, it might assist the Committee if there was a bit more detail underpinning the list. It is important for Members to hear details of the impact of the revocation of the regulations, if there are any, and for that to be included in an impact assessment, but the Government have decided against publishing one alongside the regulations. It may be that there is no impact in any of these revocations, because they are simply reproduced elsewhere or relate to us no longer legally being part of the EU or associated organisations, as we have left, but we do not know the answers because we have been provided with a one-sentence explanation for most of them. It might be enough in many instances, but I hope the Committee will not mind me sounding a note of caution, given that, as the Solicitor General pointed out, the regulations contain seven instruments that will be reassimilated or unrevoked—I am not quite sure what the correct legal terminology is. The seven regulations were previously identified by the Government as being redundant. We must ask: how many of the 587 instruments to be revoked at the end of the year will it transpire are still needed after all?

I am sure the Solicitor General will not be surprised at me wanting some more information on that and on how this legislative hokey-cokey came about in the first place. I would not be surprised to hear that there has been an investigation into why this has happened. Any conclusions that the Solicitor General could share would be of great interest. Just as importantly, we want to hear what measures will be put in place to stop such mistakes happening again. Have any further checks and balances been put in place to ensure that regulations are not revoked unnecessarily? Or are we just relying on hope that it will not happen again?

I appreciate that some of the unrevocations relate to laws specific to Northern Ireland. Given that there is no functioning Executive or sitting Assembly, I quite understand why that decision has been taken, but the situation is not a new one. It has been the case for well over a year. Indeed, for the whole lifetime of the 2023 Act that brought in these regulations the Executive has not been functioning, so I must ask the Solicitor General why, given that that was the case, the Northern Ireland regulations were included in the first place.

Even if we give the Government the benefit of the doubt on that, there are still four other instruments in the regulations that the Government say are suddenly no longer dispensable. That raises serious questions about how much of a grip they have on this process. It certainly vindicates our position that the original cliff edge in the legislation was unrealistic and dangerous. We could have lost laws that needed to stay on the statute book had someone not double-checked and produced these regulations.

Perhaps more concerning is the fact that the power being exercised under the regulations to prevent the revocation of instruments expires at the end of October. What happens if more are found after that date? What happens if the Government suddenly decide that an instrument found in these regulations does not need to be revoked? If we take the same margin of error from schedule 1 to the original Act and extrapolate it to this instrument, we can expect at least one regulation in schedule 2 to have been mistakenly revoked.

Looking at the set of blanket explanations for the revocations, I wonder about the level of detail in the consideration of the implications of some of the revocations. The explanations include statements such as:

“This legislation is unnecessary because the UK is no longer an EU Member State”

and:

“This regulation relates to a requirement/scheme/agreement which is no longer in operation, or is no longer relevant to the UK”.

Those are understandable, and I see many such types of statements provided next to the instruments. However, given that the decision to leave was taken more than seven years ago, and we knew then that we would no longer be part of the EU, I am left wondering why it has taken until now for these particular instruments to have been identified.

There are other statements that need further explanation. For example, there is, on the face of it, a similar explanation for the removal of the Civil Legal Aid (Merits Criteria) Regulations 2013 from the statute book, relating as they do to the Dublin III regulation, which does not apply to the UK. However, the explanatory note says that the revocation is subject to savings for ongoing cases so that the provision of legal aid can continue in those cases. I have picked that one out as an example as it falls within the Solicitor General’s bailiwick. Can he advise the Committee how many ongoing cases that would relate to and whether there is, as a result of the removal of the measure, a question of access to justice? If he cannot answer in detail tonight, he can of course write to us, but I would make the point that that is the sort of thing where an impact assessment might have proved useful.

I will conclude. Tonight, we have heard various examples of problems that remain in the Government’s approach to and delivery of removing retained EU law from our statute books. Of course, that is a vital task that will potentially impact everyone in the country. We support, and have always supported, the need to remove legacy EU laws that are no longer relevant, so we will not vote against the regulations tonight, but the way that the process has been handled does not engender confidence on the Opposition Benches that the Government have a grip on this process at all. We still do not know whether the Government have identified all the relevant EU-derived laws, let alone decided what they want to do with them. With some regulations, they appear to have changed their mind on them altogether. It is a muddled, confused mess and I am afraid that that is shorthand for the Government’s approach to governing more generally.

--- Later in debate ---

[The Solicitor General]

I am grateful to my right hon. and learned Friend. He is absolutely right. As a distinguished former Solicitor General, he took through a number of pieces of legislation, as all Solicitor Generals do. It is always a pleasure to appear on Committees such as this one. The hon. Member for Glasgow North asked whether it would happen again and if it does, and if it is me, I look forward to it very much.

[Justin Madders]

Could we get some clarity? Which Department is now responsible for the passage of these regulations?

[The Solicitor General]

The Department has not changed; I took the legislation through ping-pong with the Lords, and I am still here. I look forward to being here again in the future. I commend the regulations to the Committee.

Question put and agree to.

Resolved,

That the Committee has considered the draft Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023.