Retained EU Law (Revocation and Reform) Bill

Justin Madders Excerpts

Report stage
Wednesday 18th January 2023 Commons Chamber

[Ms Ghani]

They are not just hollow, but simply inaccurate. My hon. Friend has mentioned his European Statutory Instruments Committee, but we also have the Delegated Powers and Regulatory Reform Committee; the usual channels, which are managed by our business managers; and Leaders of the House in both Houses. So it is not as though there is not ample opportunity to consult.

Once again, let me say that I know people are amused by the dashboard, but it is there and people who are interested can log on, and it will indeed be updated. Without this Bill, legislation that flowed on to the statute book directly from the EU into 300 different policy areas would, in many cases, have to be replaced via primary legislation. That would take decades to amend and this would mean a marked reduction in our ability to regulate in an adequate and timely manner. Without the powers in the Bill, the UK will remain at a competitive disadvantage. It would be economically irresponsible to leave this body of law unchanged, as the Opposition would wish us to do. As I have set out today, this Bill is of vital importance to the future of the UK. As I am sure colleagues will recognise, the reform of retained EU law must be completed without delay. I look forward to the remainder of the debate.

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

I am grateful for the opportunity to rise to speak in support of the amendments that appear in my name and those of my right hon. and hon. Friends. Our amendments, even if they are all accepted, cannot completely cure this fundamentally defective Bill, but we will see where we go with that. Let me add my appreciation, as the Minister did, to those on the Committee for their efforts in scrutinising this Bill and to the Clerks for assisting us in doing that.

First, turning to amendment 18, I have yet to hear any rational justification for the deadline of 31 December 2023 for the jettisoning of all EU regulations. We are told that it is an imperative that we free ourselves of the shackles of these regulations by that date and that we must hurry along and free ourselves of the 2,400 or 3,800 regulations—or however many it turns out to be—that are holding us back.

I understand the importance of having a target to work to, but the date has been plucked out of thin air, seemingly at random, and we should not accept it unless a compelling and rational argument is put forward, especially, as I shall go on to explain, as it carries far greater risks than benefits. We were told by the Minister at the Committee stage that, in essence, the cliff edge is being used as some sort of management tool to ensure that civil servants remain focused and can deliver the work necessary to clear the statute books of all this legislation. What a sad state of affairs it is that the only way that the Government think they can get officials to function properly is to legislate for them to do so. Imagine if we got ourselves into a position where every time the Government wanted the civil service to work to a deadline we had to put it in a Bill. It is an explanation that is as threadbare as the impact assessment that accompanies the Bill.

[Margaret Ferrier (Rutherglen and Hamilton West) (Ind)]

As we have heard, the vast majority of policy, from use of harmful pesticides to air quality, that will be impacted by the changes brought through this Bill is with the Department for Environment, Food and Rural Affairs. Does the shadow Minister share my concern that, even if the timeline were extended, that is a lot of work for one Department and its officials to make sure they are getting right so quickly?

[Justin Madders]

I will go on to explain why that deadline is inappropriate and, indeed, impractical.

The Government are using the Bill as a motivational tool. That message has not got through to DEFRA, which, as we know, is considered to be the Department with the most regulations, although, of course, until we see a definitive list, we cannot know that for sure. At the moment, according to the Secretary of State, there are probably about 1,100 regulations in DEFRA that are subject to the sunset. I will not get into whether the word “about” is good enough in this context, but the number of civil servants that we have been told are working on this in that Department is three. It is no good this Bill being used as a way of focusing Departments’ minds if they do not have the resources to do the job properly in the first place.

This is a serious issue. The House of Lords Common Frameworks Scrutiny Committee even complained about a lack of engagement from that Department after not receiving a response from it to five separate letters. We know from a written ministerial answer that the Department itself does not know how much the exercise will cost or how many staff it will need. If the deadline is meant to focus attention, it has not succeeded in doing so yet.

[Alexander Stafford]

I am listening carefully to the hon. Member’s speech, especially about the timeline. My question is this: when does he want this to end. My constituents in Rother Valley voted in 2016 to leave the EU—lock, stock—not to wait. Even now, I would want to bring the deadline forward, because we should have left fully years ago. When do the Opposition and those who want to stifle our leaving want us to leave—2024, 2025, 2026 or never? I want to leave fully and utterly now.

[Justin Madders]

If people are going to intervene, they should read the Bill and the amendments, because they would see our suggestion for a deadline. Of course, as everyone else in this Chamber seems to know, we have already left the EU, so this is not about leaving the EU, but about the remaining laws.

The Regulatory Policy Committee has said that setting a deadline is not enough and that a stronger argument is needed for choosing that particular date, and we agree. What is far more convincing than the arbitrary date that we are presented with are the warnings that we have received that there is not sufficient capacity in the civil service for a genuinely effective appraisal of the regulations that the Bill seeks to remove in the timescale allowed. The case for the cliff edge is incredibly weak. The arguments for removing it and putting it on a more realistic footing are much stronger.

The potential for things to be missed is clear. If worse comes to worst and some vital regulation ceases to be law by accident and nobody notices until it is too late, our constituents will rightly ask us, “What on earth were you doing? What were you thinking of?” No wonder the impact assessment on the Bill is silent on the issue of the sunset date.

The Regulatory Policy Committee has made it clear that it believes that the analysis of that sunset date is inadequate. This is a deadline in search of a headline. Presumably, that headline will be, “Free at last”. I would suggest that a more apposite headline might be. “The sun has set on your employment rights, your consumer rights and your environmental protections.” Indeed, the sun has set on parliamentary democracy.

Overall, the Regulatory Policy Committee puts a red rating on the impact assessment of the Bill as not fit for purpose, yet here we are, ploughing on as if it will be all right on the night.

[Mr Rees-Mogg]

rose—

[Justin Madders]

I will give way to the architect of the Bill.

[Mr Rees-Mogg]

Surely the hon. Gentleman is aware that our first legislation on consumer rights was in 1893, some time before the European Union, and that the Act giving paid holidays was 1938, again before the European Union. We have never needed the European Union for worker and consumer rights.

[Justin Madders]

I am sure that those were the glory years—the right hon. Member’s favourite period of time. This is about protecting the rights that we have, and this Bill allows those rights to fall by default if no action is taken. That is why we are so concerned about the Bill.

[Stella Creasy]

I think everybody agrees that, as we have left the European Union, we need to look at the foundation of the laws that we have in this country. One challenge of this legislation is that, because we do not know precisely what laws are covered, we do not know the laws that we need to look at. Does my hon. Friend agree that people are concerned not because the law says “Europe” on it, but because it is about things such as maternity rights and employment rights? [Interruption.] The Minister is chuntering from a sedentary position. She needs to talk to her colleagues who, when we have asked about these explicit regulations and whether they are going to retain, replace or revoke them, have said that they do not know. They do know on other legislation. Does he agree that, if Ministers have made up their minds on some things but not others, they should be honest with the British public that they are asking us to give them the power to make that decision and take it away from this place? That is not taking back control.

[Justin Madders]

I am grateful for that intervention. That is exactly the problem here. If Ministers decide to remove laws, there will be no opportunity for us to challenge it, which is why we are concerned. The Minister told us in Committee that the sunset date was chosen because it is the quickest and most efficient way to enact retained EU law without taking up additional parliamentary time—so the Government are doing us all a favour by giving us less work to do.

In this context I refer to the written evidence of the Bar Council, which raised the alarm when it said:

“The setting of an arbitrary, and in all the circumstances, impractical sunset date, with the consequent and entirely unnecessary risk of the disappearance of rules of critical importance to businesses, consumers, employees and the environment (some of which, due to their sheer numbers, may only be missed once lost) without adequate consideration or any consultation, and conferring an entirely unfettered and unscrutinised discretion to Ministers to disapply or delay the sunset provision or not; as well as the attendant risk of rushed replacement legislation”.

That sums up exactly why we should be voting against the Bill.

[Colum Eastwood (Foyle) (SDLP)]

When it comes to workers’ rights or environmental protections, does the shadow Minister suspect, as I do, that this is a Government determined to throw people’s rights on to the Brexit bonfire? If this is the future of the United Kingdom, is it any wonder that more and more people in the north of Ireland are looking forward to being part of a progressive new and united Ireland?

[Justin Madders]

That probably takes us slightly away from the thrust of the Bill. But what is this Government’s record on employment rights? They doubled the time to be able to qualify to claim unfair dismissal, taking millions of people out of being able to claim that right. They slashed the consultation periods for people on redundancy. They introduced employment tribunal fees. Their record on employment protection is not a good one. There is a whole back catalogue of Ministers and Cabinet Ministers saying why they want to get rid of these burdensome employment rights. We are right to be worried about where this is all heading.

[Caroline Lucas]

The hon. Member is being generous and making a powerful case. Does he share my concern that, for all the rhetoric and green wash coming from the Government when they say that this is about keeping high standards, that is completely undermined by a clear clause in the Bill that states that, while Members can replace laws with alternative provisions, those cannot “increase the regulatory burden”. That is clear—it is in black and white. The Bill is an absolute ideological attack on safety and on environmental standards—on the things that keep us safe and our planet safe as well.

[Justin Madders]

The hon. Member is right. I shall come back to that in a little while.

[Sir John Hayes (South Holland and The Deepings) (Con)]

In essence, when we took back control through the referendum decision in 2016, it was not to a particular party or even to a particular Government: it was to the British people and their sovereign Parliament. I find it inconceivable and rather disappointing that the hon. Gentleman does not have the confidence that this Parliament will do the right thing in a range of legislative areas.

[Justin Madders]

I am afraid the right hon. Gentleman does not understand what the Bill does. It hands the power to Ministers, not to Parliament—that is why we are so concerned about it. Taking back control was about this Parliament, not giving power to Ministers.

I turn back to the Bar Council’s clear warnings. It is not some sort of anarchist organisation, it is not part of an anti-growth coalition—it is the Bar Council, for goodness’ sake. Anyone who is concerned about parliamentary scrutiny and accountability and who wants to make this country work should listen carefully to what the Bar Council says and its warnings about why the Bill is inappropriate.

The sunset clause is interrelated with the question of Ministers’ powers and the ability of Parliament to effectively scrutinise changes. I do not want to be faced later this year with having to make a choice between a reduction in the number of days’ paid holiday that people are entitled to and their having no rights at all—and that is a choice that this Bill could force upon us, if we are pushed up to the precipice due to timescale.

[Abena Oppong-Asare (Erith and Thamesmead) (Lab)]

Following the Bar Council’s recommendations and concerns about protections, I put on record that I have been contacted by a large number of constituents who are concerned about the protection of their rights as workers, which they fought hard for, and their rights as consumers. Furthermore, they want hon. Members, particularly the Minister, to know that they are concerned that no scrutiny will take place on this. Does my hon. Friend agree that, based on this Government’s record, there is no way they will maintain the high standards that our constituents expect or ensure that this Bill adequately represents our constituents?

[Justin Madders]

My hon. Friend articulates well why her constituents and indeed many people across all sectors of society are concerned about the impact of the Bill. It is not about Parliament taking back control. The Delegated Powers and Regulatory Reform Committee has said that the

“abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy”.

As the former Secretary of State, the right hon. Member for North East Somerset (Mr Rees-Mogg) is here, I will quote his response, when he was Leader of the House, to the Committee’s report on the frequent use of skeleton Bills. He said that it did not necessarily provide

“a model example of how Parliament would like to see legislation brought forward.”,

and that he would be encouraging Secretaries of State

“to minimise the use of delegated powers where possible.”

For once, I agree with him; I am sorry he does not agree with himself any more.

[Richard Graham (Gloucester) (Con)]

The shadow Minister has implied that the whole country is very concerned about what is going to happen to the current bulk of EU retained law, but he would have heard the Minister saying that all those laws that come under DEFRA—as he knows, that is probably three quarters of the total EU retained law—will be either retained or improved. Now that the Environment Act 2021 brings them under the remit of the Office for Environmental Protection, the watchdog that is there to make sure that they are enhanced, surely he will accept that that gives huge numbers of people and organisations, particularly in the environmental sector, a lot of reassurance.

[Justin Madders]

I think we would be reassured if that was what the Bill did, but the Bill does not give Ministers the power to improve the situation: specifically, as we have heard, it prevents burdens from being increased so—

[Geraint Davies]

Does my hon. Friend agree that, over the 47 years of our membership, we evolved thousands of rules with the EU, that the choice for Ministers in DEFRA and elsewhere will be whether to assimilate, revoke or amend those rules, and that, if they do not have time to go through them all, the rules will simply fall out of bed? The real risk is that employment, environmental and other rights will simply—perhaps accidentally—disappear. Does he therefore agree that this sunset clause is completely ridiculous?

[Justin Madders]

That is a very good point. If the Government cannot even tell us how many rules are covered by this Bill, how can we be confident that things will not be missed? The 2023 date is a deadline in search of a headline; it is not a serious proposition or the action of a responsible Government, and it should be rejected.

The cliff edge is even more absurd when we consider that the Government do not know what rules will be covered by this Bill. I am glad to see the hon. Member for Watford (Dean Russell) in his place; when he was on the Front Bench, he told us, in answer to a written question:

“The dashboard presents an authoritative, not comprehensive, catalogue of REUL.”

He told us in response to a written question on 21 October:

“we anticipate over 100 additional pieces of legislation will be added to the REUL dashboard”.

As we know now, that 100 is probably more like 1,400, so we cannot accuse him of over-promising and under-delivering. He also told us:

“Government officials are currently working to quality assure this data and any amendments to the data will be reflected in an update of the dashboard this Autumn.”

It is 2023 now and, as of midday today, that dashboard had not been updated at all since this Bill was first presented, so it is certainly not comprehensive or authoritative—it is actually not very helpful either. That is undoubtedly not a sound basis on which to be legislating.

[Janet Daby (Lewisham East) (Lab)]

I am sure many of us have received emails from constituents concerned about this process, or rather the lack of process. Thousands of pieces of legislation need to be reviewed and amended. I am sure our constituents would agree that it seems very undemocratic of the Government not to bring that legislation to the Chamber to be scrutinised, as legislation is processed in this place.

[Justin Madders]

My hon. Friend is right that we must answer to our constituents about what is going to happen with these rules. That is why we have tabled our amendments.

[John McDonnell (Hayes and Harlington) (Lab)]

There is a huge point of principle here, but there are also issues around pragmatic logistics. I can understand some of the frustrations of Conservative Members about delays in implementation since the referendum, but I must remind them that they have been in Government. Privately, I know of no civil servant who has any confidence that the deadline will be met. We now face a strike by 100,000 civil servants. Even the FDA has gone for strike action. The world may have changed since this legislation was first prepared. May I suggest to my Front-Bench colleagues that we assure the Government that there will be an open door for discussion throughout this process when they want to talk about extending the deadline to ensure proper scrutiny of this legislation? I fear that the parliamentary process will break down, poor decisions will be made and we will overburden an administration that already has enough on its plate.

[Justin Madders]

I am grateful to my right hon. Friend. The deadline was pretty risky to start with, but it now looks completely foolish. That is why we will be moving an amendment later to make sure the deadline is put back three years, to give us confidence that things will be done properly.

[Several hon. Members rose—]

[Justin Madders]

If you do not mind, Mr Deputy Speaker, I am not going to take any more interventions for a while, because I appreciate a lot of people wish to speak.

Just for a minute, I ask hon. Members to imagine they are a business trying to plan for the next year and having to navigate a dashboard that is not complete, but might be updated at some point. That business is looking at the dashboard just to understand what rules might be changed under the auspices of the Bill, never mind whether they should be changed or whether those changes will affect the business.

If the Government do not even know what the Bill covers, how can they expect anyone looking to invest to do so? That is an absurd way to proceed. No wonder groups as diverse as the TUC and the Institute of Directors oppose this Bill. We do not legislate in this place by website; we legislate by legislation, and the intention of that legislation should be clear.

There is a solution in sight to this rather unsatisfactory state of affairs, in the shape of amendment 36 in the name of my hon. Friend the Member for Walthamstow (Stella Creasy), which would at least enable us to see what laws Ministers want to revoke and allow Parliament—yes, Parliament—to express a view on whether it wishes to see those laws taken off the statute book, in the true spirit of taking back control. Crucially, the amendment would require Ministers, at least three months before the cliff edge, to set out which laws they intend to revoke.

One would hope that, by September this year, Ministers would have formed a view on which laws they wanted to keep and which they did not. It would be nice if they had done so by then—it would be even nicer if they let Parliament know, and nicer still if they afforded that courtesy to the rest of the country, so that people were able to plan.

We cannot have the Government changing the law on a whim. There must be proper accountability and scrutiny. We cannot have unaccountable Ministers changing the rules without reference to anyone else—that is not what taking back control was supposed to look like. When this Bill was first mooted and Lord Frost was still a Government Minister, he said that the policy intention behind the Bill was

“to amend, replace or repeal all retained EU law that is not right for the UK.”

I think we need something a bit more detailed than a general feeling that something is not right for the UK. This centuries-old Parliament, having taken a historic decision to wrestle back control from those unelected Brussels bureaucrats, finds itself in the ludicrous position of having another unelected person telling us that laws will be changed if they are “not right”. What that phrase gains in brevity it loses in clarity. It can mean absolutely anything, and of course—crucially for this place—it puts all the power in the hands of Ministers. Surely, as a Parliament, we can do better than that; surely we want to hold ourselves to a higher standard when we change legislation. We should not legislate on a whim, and Parliament should not hand powers to Ministers enabling them to do just that. The Regulatory Policy Committee described the Bill’s impact assessment as either “weak” or “very weak” in every aspect, so any Member who is thinking of handing over those powers should, in the light of that warning, think very carefully before doing so.

--- Later in debate ---

[Andrew Jones]

It is clearly right to have parliamentary scrutiny of these measures and those that will come as a consequence of this legislation, but why has Labour not filled its places on the European Statutory Instruments Committee? If the hon. Gentleman is so keen to see parliamentary scrutiny, why has his party not taken the opportunity that it has?

[Justin Madders]

I direct the hon. Gentleman to the Whips Office around the corner. He can have a word with them and see what is going on.

I do not accept the characterisation of how these laws were introduced in the first place. As we know, the vast bulk of EU subordinate legislation was adopted by the member states and the European Parliament, of course, both of which had representatives from the United Kingdom—indeed, our MEPs were democratically elected until 2020—so it is simply wrong to say that politicians, stakeholders and policymakers did not have ample opportunity to exert influence on the development of EU policy and secondary legislation.

In fact, there are many examples of where EU legislation was supported and even promoted by the UK Government of the day. One good example is the social chapter, which the Labour party’s 1997 manifesto pledged to introduce. It included rights on parental leave and working hours. Nobody can say that those rules were forced on us without our consent. Conservative Members may not have liked them—that is clear—but there was a clear democratic pathway to their introduction.

Amendment 36 is about Parliament taking back control, but new clause 2, which is on the amendment paper, goes one step further. It would require Ministers to set out their analysis of the impact of the removal of EU laws and the abolition of the application of EU principles to our laws. As our amendment 26 sets out, there needs to be some recognition that tearing up 50 years of legal development overnight might just create a little bit of uncertainty—as, of course, will revoking thousands of laws. New clause 2 would require some thought to be given to what the impact of all that might be and, crucially, would require it to be shared with everyone else.

We therefore think that it ought to be a matter of agreement among everyone who wants to see democracy prosper that the replacement regulations under the Bill should be made by Parliament after proper consultation, public debate and scrutiny, not simply by ministerial decision—or, as the case may be, by non-decision. All we are asking Ministers to do is to publish their work on how these laws will affect our constituents, which they ought to be doing anyway. Or will we have to wait until the end the year to find that some law that has slipped off the books is causing problems with, for example, the trade and co-operation agreement? Is it not better for us to know about that now? Ministers will know what the issues are, so why do they not share that knowledge with the rest of us? New clause 2 would give Parliament sufficient time to express a view on all that, putting power back into the hands of Parliament, which is what I thought all those who campaigned to leave the EU actually wanted to happen.

Likewise, new clause 3 would create a requirement for there to be genuine consultation if the powers under sections 15 and 16 are to be exercised in revoking, replacing or updating a regulation, and, again, for Parliament to be sighted on that consultation and on the Government’s assessment of the proposed changes. I hope that we are not being too revolutionary by wanting accountability and transparency for Ministers’ actions.

While we are on the regulations, why are we tying Ministers’ hands—we have already touched on this—by insisting that anything that replaces them cannot add to the regulatory burden? Why is the language of rights and protections always expressed as a burden? Of course, the whole thrust of the Bill is to reduce the number of EU regulations in our system, which in itself will reduce the regulatory burden, but when Ministers are looking to update or replace these rules, why must we insist that they do not add to the burden? What even counts as a burden? I am saddened that Conservative Members think it a burden to ensure that our workplaces are safe and that people are protected against discrimination, and to protect natural habitats.

If it was thought that reviewing the laws on maternity discrimination, for example, was actually a good opportunity to strengthen protections—possibly along the lines of the private Member’s Bill of my hon. Friend the Member for Barnsley Central (Dan Jarvis)— this Bill would not allow that. If my hon. Friend’s Bill navigates the private Member’s Bill lottery, it would extend the time period for protection against unfair redundancy to a six-month period after the return to work from maternity, adoption or shared parental leave. That is, by the way, something that the Government committed to in 2019, but under this Bill they would not be allowed to implement it because it would increase the burden. I am not sure how that circle will be squared, but it illustrates the point that this Bill could prevent the Government from implementing their own policies. Although most of us on the Opposition side would want that to apply to just about everything this Government introduce, when it is confined to things that might actually benefit our constituents, it is a cause for concern.

That brings us neatly to our amendment 20, which deals with workers’ rights. The regulations that it lists represent, as far as we can identify, all the major employment rights within the ambit of the Bill—rights that people enjoy every day; rights that nobody voted to squash; rights that those on the Labour Benches will do everything in our power to protect. To protect them and remove any scintilla of doubt, we need to take them outside the scope of the Bill.

I heard what the Minister said about there being no plans to remove those rights, which ought to mean that she has no problem with voting for the amendment. After all, if that is what the Government are going to do anyway, what is there to lose?

[Craig Whittaker (Calder Valley) (Con)]

The hon. Gentleman has already said that the UK’s elected processes already had input into EU laws and protections and rights for workers. I will go one step further and say that this country actually led on a lot of those EU rights and protections for workers, so why does he not believe that this place can enhance those rights and protections, driving them forward for workers in this country?

[Justin Madders]

Well, a Government who have been promising an employment Bill for five years and allowed the scandal of 800 P&O workers being dismissed without any notice are not a Government who can really claim to be on the side of workers. If the hon. Gentleman is genuine about supporting workers’ rights, he will support our amendment to ensure that they are protected.

Let us look at some of those rights. The first regulations listed in amendment 20 are the Management of Health and Safety at Work Regulations 1999, which ensure, among other things, that an employer must perform a risk assessment for all workers, and that there must also be a specific risk assessment if an employee becomes pregnant. I sincerely hope that the requirement to conduct risk assessments to ensure that people work in a safe environment is not something that the Government consider an unnecessary burden. Do we not think that everyone has a right to work in a safe environment, and that employers should take steps to ensure that?

Those regulations ensure that employees have the important right to be consulted on health and safety, and to receive paid time off to carry out health and safety training and other duties. They also have the right to protection from discrimination or victimisation for carrying out health and safety duties. It is just as important as the requirement for a safe working environment that those who put themselves forward as health and safety representatives can do so without fear of reprisal.

In Committee, the Minister talked about modernising health and safety law, which is not, of course, the same as promising to keep those laws. The term “modernising” can mean any number of things—it certainly does not always mean that a law will be improved or a right increased. As we know, the Bill specifically prevents an increase in the regulatory burden. I know that health and safety is often characterised by Conservative Members as a burden. I do not think that; I think it is absolutely essential. If Members agree with me on that, they should vote with us on amendment 20.

On the part-time employee regulations that are included in the amendment, more than twice as many women than men are in part-time employment. Why would we want to open the door to greater discrimination against women by getting rid of protections for part-time workers?

The Maternity and Parental Leave etc. Regulations 1999 protect women who might be pregnant or taking maternity leave from workplace discrimination, ensure that they have the right to return to the same job once they return from maternity leave, and, of course, make it unfair to sack someone because they are pregnant. Surely Conservative Members want to ensure that those regulations are protected under the Bill?

[Vicky Ford]

The hon. Member is suggesting that this Government want to get rid of a huge number of workers’ rights. The Minister wrote to all Members this morning making it clear that the Government have no intention of abandoning workers’ rights. Is he suggesting that this Minister is not true to her word?

[Justin Madders]

If the Minister is true to her word, she will vote with us and make sure that that is exactly what happens. I refer to the impact assessment, which recognises in three separate paragraphs that the Bill contains a threat to equality, so this is not something we are making up out of our own heads; it is something that is there and to be concerned about.

One set of protections definitely in the sights of those who see employment rights as a burden include the working time regulations, the introduction of the right to paid annual leave, limits on weekly working hours and a legal entitlement to daily and weekly rest breaks. They are some of the greatest achievements of the previous Labour Government, and for Members who are not aware, those regulations originated from concern about workers’ health and safety and the risks associated with working excessively long hours. I am proud that my party tackled that. Do we want to turn the clock back to when people worked 70 or 80 hours a week? We know that some on the Government Benches think there is no moral right to annual leave, but on these Benches we could not disagree more. Also included in our amendment are the Transfer of Undertakings (Protection of Employment) Regulations 2006.

[Mike Amesbury]

I am after my hon. Friend’s help on this: was it a figment of my imagination, or did those on the Government Benches drive through a piece of legislation that curtailed the fundamental freedom and right to strike in the past few days? I just seek his help on that.

[Justin Madders]

Yes, I think that Bill also gives employers the power to sack striking nurses, teachers and doctors. Those are not the actions of a Government who want to protect employment rights.

The amendment includes the 2006 TUPE regulations, which ensure that when one business buys another, there is reasonable certainty about which workers transfer to that new business, so that the purchaser knows which employees it is getting and, critically, workers know that they cannot be dismissed or have their terms and conditions slashed just because they are working for a new employer. Let us make it crystal clear that TUPE will stay. That would ensure protection and certainty for employees, but also certainty for employers. How on earth would someone thinking of buying a business in 2023 know whether to proceed with the purchase if they did not know whether they were obliged to take on the workforce with it? We have a stable, settled, well understood framework of law that helps businesses to operate. Why put that in jeopardy, particularly if, as is claimed, Ministers have no intention of removing it?

To make a general point on employment rights, they are not a burden. They are an essential ingredient of a civilised society. If we want our citizens to play an active role in the country moving forward and in future economic growth, our citizens have to be rewarded fairly and treated fairly. Security and respect at work are the cornerstone of any success we will have as a nation. A secure and happy workforce is a productive workforce. Giving people dignity, certainty and fairness in the workplace is not a burden on businesses; it is what good businesses do, and what good businesses will see the fruits of, if they are allowed to operate on a level playing field.

My constituents will be considerably poorer over the next few years as a result of the economic decisions made by this Government. I do not want them to be poorer in terms of rights, as well. Employment rights ensure that people can participate in the labour market without facing unfair discrimination. They give vulnerable workers more job security and stability of income. They help to encourage a committed workforce and the retention of skilled workers. They are not just about individual dignity and respect in the workplace; they also have social and economic value and are an essential component of a healthy, stable and progressive country.

We need a country where people have the security of knowing that if they do a good job and their employer runs its business well, they will be rewarded properly and be able to stay in work. What we have instead is a culture of disposable commodities and fire and rehire, where loyalty counts for nothing. It is time to draw a line in the sand and say, “No further.” Let us not allow this Bill to open up another line of attack on working people. Let us close it off now once and for all and support amendment 19.

Oral Answers to Questions

Justin Madders Excerpts

Tuesday 17th January 2023 Commons Chamber

[Mr Speaker]

I call the shadow Minister.

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

Tomorrow, the Retained EU Law (Revocation and Reform) Bill comes back before us. It will see vital employment rights such as holiday pay, TUPE and maternity protections scrapped at the end of this year if Ministers do not act. Labour Members believe in strong employment protections, so will the Government vote with us tomorrow to ensure that those vital rights are saved?

[Grant Shapps]

There is absolutely no truth whatsoever in this idea that employment rights, environmental rights or other rights will be scrapped, and the sooner the Opposition stop peddling this stuff the better.

Employment and the High Street

Justin Madders Excerpts

Wednesday 7th December 2022 Westminster Hall

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

It is an absolute pleasure to see you in the Chair, Mrs Cummins. I congratulate my hon. Friend the Member for Hornsey and Wood Green (Catherine West) on securing this really important debate.

This debate is apposite, because only last week Barclays bank announced that it is going to close its branch in Ellesmere Port. What is particularly frustrating about that is that I was approached a couple of months ago by a constituent who told me that when they went into the branch they were discouraged from using the counter services. In fact, they were told that it was not available to personal customers and that there were other options available. Lo and behold, two months later Barclays bank says, “We don’t really have people coming into the branch any more, so we don’t need to keep it open.” I am afraid this drive to online services is being used by banks that can frankly afford to keep those branches open. It is part of a wider trend.

We will now go through a 12-week consultation period that has been described as nothing more than a box-ticking exercise. I am pretty clear that Barclays is not going to change its mind. Has any bank ever decided to remain open after announcing its closure? The code of practice needs to be looked at seriously, because we are being treated as a box-ticking exercise. The wider impact of such decisions on our communities needs to be considered much more.

It was 20 years ago that Barclays closed its branch in Little Sutton. It told us then, “It’s not a problem because you can still use the branch in Ellesmere Port.” Now my constituents will be sent further and further afield. HSBC announced that it would close its branch in Ellesmere Port back in March. It said, “You can go and use the branch in Bromborough, about five miles away,” but this week it announced that it is going to close the Bromborough branch. The cumulative effect is there for all to see. It seems that we are powerless to stop this trend, and our high streets are the worse for it.

Some banks say that post offices can be used, but we are seeing closure after closure of post offices. In my constituency, two have announced their closure in the past couple of months. The Post Office’s flawed model means that they will reopen only if there is commercial partner. That means the great likelihood is the people of Great Sutton and Elton will not see those branches reopen. The people of Elton have already suffered: they had to wait more than a year for a commercial partner to be found the previous time their branch closed, and the people of Neston had the same problem. The Post Office needs to completely reappraise its responsibility to communities, instead of operating on a completely commercial basis.

Barclays made £2 billion profit in the last quarter, so frankly it can afford to keep open every single branch that in recent weeks it announced would close. We need to draw a line in the sand. Will we continue to accept these closures? Will we continue to accept the decline of the high street? Or will we ask these organisations to take a bit more corporate responsibility for their areas, for the communities they are supposed to serve and for people who cannot go online for many understandable reasons?

Councils are not able to offer a solution while they are restricted by ever-shrinking budget rounds and competitive bids that are not always successful. We need a sustainable, long-term strategy for our high streets that requires big anchor organisations, such as banks and post offices, to serve their communities. Without that, the civic pride that people feel in their high streets will continue to erode, and we will all be the poorer for that.

Retained EU Law (Revocation and Reform) Bill (Fifth 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 pleasure to serve under your chairmanship once again, Sir George. The clause is a vital part of the Government’s retained EU law reform programme and will make sure that EU rights, obligations and remedies saved by section 4 of the European Union (Withdrawal) Act 2018 cease to apply in the UK after 31 December 2023.

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

It is a pleasure to see you in the Chair this morning, Sir George. Members will note that I am a little hoarse —please do not give me a sugar cube. I hope that means I will not be quite as lengthy as I was on Tuesday.

[Hon. Members]

Shame!

[Justin Madders]

We can try.

I want to say a few words about the clause, which will fit in with the discussion we will have on the following clauses. All these clauses pertain to the future of our law after the removal of the legal effects of EU law. I will try not to repeat myself and to focus specifically on the terms of this clause.

I begin by stating the obvious: as we untie ourselves from the European Union, we will clearly need a new settlement of legal principles. Nevertheless, we ought to treat the clause with some scepticism and scrutinise the impact it will have on our country’s legal system. In doing so, we must consider why it was decided to take a snapshot at the end of 2020 in the first place.

When the country entered the transition period for leaving the EU, the potential for a legal vacuum to emerge rapidly became apparent, as the process of preserving EU legislation and EU-derived legislation made under section 2 of the European Communities Act 1972 began. Section 4 of the European Union (Withdrawal) Act 2018 was therefore designed to prevent such a legal vacuum once the 1972 Act was repealed, by catching everything that might have been missed and its legal effects.

I am saying that to highlight an important feature of the 2018 Act, which has been to maintain the smooth operation of our legal system while we formally left the EU. Clearly, it still has importance. Unless the Government are able to use the powers in clauses 12 to 15 to replace the effects of EU law exactly—although it is clear that they do not want to do that—we face the prospect of a legal vacuum.

I have a couple of questions for the Minister. First, does she agree that section 4 of the EU (Withdrawal) Act has provided an important function over the previous years in creating stability and certainty? Secondly, does she recognise the risk of a legal vacuum opening after 2023, and can she provide any assessment the Government have made of that risk?

As a matter of interest, I have just read on the front page of today’s Financial Times that a wide range of groups, from the TUC to the CBI, have written to the Prime Minister requesting that the Bill be withdrawn. One reason they give is that it will create a vacuum and a great amount of legal uncertainty. I suspect that the Minister has not yet had a chance to discuss the contents of that letter with the Prime Minister, but if she has, will she update us? [Interruption.] The Minister’s response suggests that she has not had that opportunity.

Such questions naturally lead us to the identification problem that we discussed on Tuesday. My understanding is that the dashboard sought to capture the examples under section 4 of the 2018 Act on retaining

“rights, powers, liabilities, obligations, restrictions, remedies and procedures”.

Due to the dashboard’s catch-all nature, however, can we be certain that all those have been picked up, given that even the Government admit that not all the regulations have been captured? How on earth can we be certain that serious vacuums will not be left by the removal of section 4 if we cannot be sure that we have identified everything affected by it? That is an important point.

Linking again to our debate on Tuesday about the timeframe in which such legal effects and legislative provisions need to be restated, replaced or revoked under clauses 12 to 15, we must not treat clause 3 in isolation. We must remember that what happens alongside the mountain of other pieces of EU legislation that need to be processed will be key to how the country moves forward. At the very least the Minister must try to offer us some reassurance—or, better yet, a plan that shows—that the Government have the matter in hand and will deal with all the legislative provisions and legal decisions before the 2023 deadline.

Overall, we agree that there has to be an end to EU supremacy in UK law, but we still have concerns about how that will operate in practice. We want to avoid a situation that the Government have known was coming for at least two years. I would be grateful if the Minister could provide some assurances to the Committee that action on the concerns that have been expressed by a wide body of representative groups is in hand.

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

Good morning, Sir George. I rise to support the comments made by my hon. Friend the Member for Ellesmere Port and Neston. I also think that the debate on the clause sums up some of the practical challenges with the legislation. The retained EU law dashboard has identified just 28 pieces of directly effective retained law under section 4 of the EU withdrawal Act—a mere amuse-bouche of laws that will be affected by the Bill overall. Given that the number is so small in comparison with the at least 2,500 that have been identified, and the possible 4,000, why could the Minister not show us what will happen next? After all, our debates on Tuesday were all about what would happen if we deleted every piece of legislation. There are no guarantees about what would happen next. Rather than assuming that all these pieces of legislation should go at the end of 2023, surely Ministers could commit to reviewing the 28 now and showing us the way ahead—whether some will be retained, amended or indeed abolished. Then the clause would not be required.

All of this does make a difference. For example, on Tuesday the Government gave their very first commitment on what will happen to one of the 4,000 pieces of legislation—the Bauer and Hampshire judgments about pensions. To remind Government Members, who may well have constituents coming to them about this, those are the requirements—the pieces of case law—that mean that if a company goes bust, people are entitled to at least 50% of their pension fund. The Government committed on Tuesday to abolishing those pieces of legislation, but they are affected by the clause.

The 28 pieces of legislation are not insubstantial; they could be the way forward for the Minister. Instead of requiring the clause, she could say, “We’re going to look at the 28 and tell you what we’re going to do with them,” so that people can have confidence that we have an administrative process for these pieces of legislation and the suggestion that there has been scaremongering can be put aside. She could say, “Here are 28 examples of what we’re going to do, and the fact that they are rights under section 4 of the EU withdrawal Act helps us to contain them as a piece of work.”

The Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019 are another of the 28. Given that the Government are getting rid of the Bauer and Hampshire judgments, thereby affecting the pension rights and protections of our constituents, could the Minister set out what might happen on that one? She was very kind on Tuesday to set out an example of what will happen to one of the 28. It would be incredibly helpful for us as a Committee to understand the impact of the legislation and to perhaps start, if not to allay our concerns—I think Opposition Members are concerned when people’s pension protections are being not just watered down but, frankly, abolished—then to understand what the Government’s intentions are in using these powers.

I simply ask the Minister to use the clause stand part debate to explain why the 28 pieces of legislation could not have been dealt with in advance of the Bill, given that they stand on the EU withdrawal Act, and to tell us a bit about what will happen to them, to give us an indication of what horrors are to come or perhaps to reassure us. Government Members want to use the term “scaremongering”. I use the term “accountability”. I am looking forward to what the Minister has to say.

[The Chair]

With this it will be convenient to discuss the following:

Clauses 5 and 6 stand part.

New clause 8—Conditions for bringing sections 3, 4 and 5 into force—

“(1) None of sections 3, 4 or 5 may be brought into force unless all the following conditions have been satisfied.

(2) The first condition is that a Minister of the Crown has, after consulting organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, that section on a draft of that report, laid a report before each House of Parliament setting out, with reasons, the Minister’s view as to the likely advantages and disadvantages of bringing that section into force, setting out in particular the effect of that section on—

(a) the rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare;

(b) legal certainty, and the clarity and predictability of the law;

(c) the operation of the Trade and Cooperation agreement between the United Kingdom and the EU, and UK exports of goods and services to the European Economic Area; and

(d) the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.

(3) In relation to section 4, that report must take into account any regulation made or likely to be made by a relevant national authority under section 8(1).

(4) The second condition is that a period of sixty days has passed since that report was laid before Parliament, with no account to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.

(5) The third condition is that, after the end of that period, both Houses of Parliament have approved a resolution that that section come into force.

(6) If both Houses of Parliament have approved a resolution that that section should not come into force unless it is amended in a way set out in that resolution, then the Minister may by regulation amend that section accordingly, and that section may not be brought into force until that amendment has been made.”

This new clause requires Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles. It also includes opportunity for Parliamentary approval and timeframes for laying reports before both Houses.

[Justin Madders]

I rise to speak to new clause 8, but before that I will address clauses 4, 5 and 6.

Clause 4 is a Ronseal clause: with regard to abolishing the supremacy of the EU, it does exactly what it says on the tin. However, unlike putting a coat of varnish on a fence, it will not be a case of simply walking away once it is done. It is inevitable that courts will need to consider case law that we have previously regarded as settled, because that law was settled when EU law was supreme, and it no longer will be. The reality is that none of us know where this clause is going to take us.

Most lawyers practising today know no other legal environment. The world has moved on in the last 50 years in ways that we could not have foreseen, and the law has moved with it, so any reinterpretation of the law needs to be done carefully. It must strike a balance between making changes where appropriate, based on our new position outside the EU, and maintaining some consistency and predictability for businesses and individuals who are trying to conduct their working and private lives within the ambit of the law. That is why some of our other amendments have attempted to create stability in terms of what the Government can control with these regulations, because we recognise that not even this Government can control the courts and which issues are litigated.

Section 5(2) of the European Union (Withdrawal) Act 2018 stated that the principle of the supremacy of EU law will continue to apply

“so far as relevant to the interpretation, disapplication or quashing of any enactment...passed or made before exit day.”

That means that retained EU regulations would take precedence over pre-existing domestic legislation that is inconsistent with them. It also makes it clear that this does not apply to anything passed after 31 December 2020, so to some extent, supremacy of EU law has already entered history. What analysis has been done on the legal consequences of retrospectively altering the relationship between retained EU law and domestic legislation passed before 31 December 2020? Have the Government have done any analysis of this, and can they anticipate which areas will be prone to more legal challenge on the issue of supremacy?

I suspect that it will be impossible for any of us to say whether the consequences of removing the principle of supremacy would reduce the clarity of the law or change its effect in any particular case. However, the overall effect is that there will be a reduction in certainty and a risk of unpredicted—and perhaps entirely undesirable and unjust—consequences. What assessment has been made of the impact of the new level of uncertainty on business investment?

--- Later in debate ---

[Ms Ghani]

This is turning into a very interesting morning indeed, Chairman.

I rise to resist new clause 8. This new clause seeks to set conditions on the commencement of clauses 3, 4 and 5 of the Bill. I will explain to the right hon. Member for Ellesmere Port and Neston why we are making the changes in these clauses.

Each clause is vital to this Government’s programme to reform retained EU law. That there are still circumstances where retained EU law takes precedence over UK law is not consistent with our status as an independent nation. The principle of EU supremacy must be ended without delay. These amendments would add further delay by requiring the Government to write reports on items to which we have already committed. As set out already, the Government have committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, which includes maintaining the UK’s obligations under the trade and co-operation agreement or the Northern Ireland protocol. We will come on to consider an amendment that will allow us to spend more time discussing that issue.

This Bill will not lead to legal uncertainty—to have perfect legal certainty would mean that we would forever keep the same laws. Our approach is to improve accessibility and legal clarity by codifying, where necessary, rights and principles expressly into domestic statute.

With regard to the delegated powers in the Bill, the Government are committed to ensuring robust scrutiny for the secondary legislation made under these powers while ensuring the most effective use of Parliamentary time; I believe, Chairman, that we spent many hours discussing this issue just on Tuesday. This means that legislation made using the delegated powers in the Bill will be subject to either the negative or draft affirmative procedure, depending on the legislation that is being amended and the power used. A sifting procedure will also apply to regulations to be made under the power to restate, which affords additional scrutiny of the use of power.

Clause 4 ends the principle of supremacy of retained EU law in so far as it applies to pre-2021 legislation. The clause establishes a new priority rule, which ensures domestic legislation prevails over retained direct EU legislation where there is a conflict. Thanks to the clause, an Act of Parliament will once again be the foremost law in the land. Clause 5 ensures general principles of EU law will no longer be part of the UK statute book from the end of 2023. Clause 6 establishes that after the end of 2023 all retained EU law preserved from the sunset provisions will be known as “assimilated law”.

In response to some of the questions raised, I put on the record once again that the rulebook does not seek to remove rights. In most instances, those rights already operate and are available in domestic legislation. The rulebook contains provisions to enable the UK Government and the devolved Administrations to safeguard the rights and protections of citizens of the United Kingdom. The Bill includes a restatement power so that Departments can codify rights into domestic legislation.

On Tuesday, we spoke at length about scrutiny, the sifting process and the role that Parliament will play, so I am not sure what further response I can make today. That programme has been made clear. The Government recognise Parliament’s significant role in scrutinising statutory instruments to date and are committed to ensure appropriate scrutiny of any secondary legislation made under the Bill’s delegated powers.

Changes in the law can give rise to litigation—that is normal—but we would never change the law if people wanted no change whatsoever. The risk will be mitigated in areas where Departments use the Bill’s powers to maintain the effect of our current law, if necessary, for desired policy outcomes. In other cases, proactive management of the removal of retained EU law will allow a controlled and positive introduction of a new legal regime that seeks to mitigate any risks posed by increases in litigation. For instance, the Bill contains powers allowing the Government to retain the current legislative hierarchy between specified pieces of legislation. The effects of repealing supremacy will only be considered relevant to matters arising after the enactment of policy. The change is not retrospective, and cases that have already been concluded will not reopen. Upon finding that pre-2021 domestic law is incompatible with retained EU law, courts may place conditions in the incompatibility order to mitigate the effect of that finding.

[Justin Madders]

I did posit in my opening remarks the principles of EU law that will be jettisoned. In the example of legal certainty and equal treatment, does the Minister consider that those principles should no longer be part of UK law?

[Ms Ghani]

That assumes that we would not be treating people equally and fairly, and that is not the case when we legislate in the UK. I do not buy the idea that without EU law we are incapable of governing fairly in the UK. We are all elected to Parliament to represent our constituents, and we want to go home and tell our constituents, regardless of who they are and where they are from, that we are legislating fairly for everybody.

Why are we removing the principle of EU supremacy? That principle means that pre-2021 domestic law must give way to some pieces of retained EU law when the two conflict. That ensured legal continuity at the end of the transition period, but it is constitutionally anomalous and inappropriate, as some domestic laws, including Acts of Parliament, are subordinate to some pieces of retained law. That is the nub of the issue. We either accept the supremacy of the EU or accept the supremacy of this place. We can go round and round, but only one can prevail, and the Government believe that this Parliament should be supreme.

On the protection of fundamental rights and the equality principle, the principle of fundamental rights is generally not the exclusive preserve of the EU. We are proud of the history of the UK legal systems in which common law principles and legislation are well established to protect fundamental rights. For example, the principle of equality before the law is rooted deeply in British law. It was in 1215 that Magna Carta first acknowledged that British people had legal rights and that laws could apply to kings and queens too. The Equality Act 2010 has, to date, brought together more than 116 pieces of legislation into a single Act—a streamlined legal framework to protect the rights of individuals and to advance equality of opportunity for all. There is no equivalent to that Act in EU law, which shows how important it is that we are able to express principles such as equality before the law in a UK statute rather than relying on principles of EU law.

[Ms Ghani]

Exactly. My right hon. Friend is incredibly knowledgeable on all those issues, and I am more than happy to defer to him; he is absolutely right. We reject new clause 8.

[Justin Madders]

I will first address the intervention of the right hon. Member for Clwyd West. The point of clause 4 is that it removes the ability of the courts to refer to precedents from any decisions that have been taken in accordance with EU law, so it is worrying that the right hon. Member makes such comments.

The Minister said that we must decide whether we accept the supremacy of Parliament. We absolutely do, which is why so many of the amendments that we have tabled are about giving Parliament back control, not handing power to Ministers or, in the case of this clause, handing power to lawyers and judges to decide how our law moves forward.

I thank the Minister for promoting me to a right hon. Member—that was very kind of her. She also said that new clause 8 would delay matters. It will not. If the Government are on top of things, which I would like to think they were, they should be doing this work anyway. They should be doing this analysis in a way that enables Parliament to scrutinise the effect of the Bill.

[Stella Creasy]

Does my hon. Friend recognise that the Minister did not utter the words “Northern Ireland”, and did not at all address the question of how supremacy will be resolved in Northern Ireland, which follows both EU and UK legislation? I see that she is being given a note, so perhaps she can do us the courtesy of responding to that question.

[Ms Ghani]

rose—

[Justin Madders]

I can allow the Minister to intervene on me.

[Ms Ghani]

On a point of order, Sir George.

--- Later in debate ---

[The Chair]

I am grateful to the Minister for the clarification.

[Justin Madders]

We will be returning to Northern Ireland, as the Minister says. She said that the Bill will not add legal uncertainty. I am afraid that that is exactly what it will do, and it is exactly what the bulk of evidence from every legal representative who has contacted the Committee shows. By abolishing principles that have been in formation for half a century, we will be in a new era and will have to develop new legal principles. That can only create uncertainty.

It is worth reflecting on the letter to which I referred earlier, which is reported in the Financial Times today. It was sent by about a dozen organisations, including the Trades Union Congress and the Chartered Institute of Personnel and Development, that have a huge interest in ensuring that the law is fair and certain. The letter warns that the Bill

“would upend ‘decades-worth of case law’ and create ‘a huge risk of poor or potentially detrimental law entering the statute book’”.

We should be listening to these people; they know what they are talking about. They have looked at the effect of the Bill and believe it will not do what some think it will. It will not be a rerun of 2019, although the Conservatives would like us to go back to 2019, because they were ahead in the polls then. We have left the EU. This legislation is about how we move forward, but I am afraid that there has been a complete failure to address the consequences of its provisions. We will be coming back to the issue for years to come, because there has been a shocking lack of forethought about the Bill’s implications. I will press new clause 8 to a vote.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clauses 5 and 6 ordered to stand part of the Bill.

Clause 7

Role of courts

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

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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

Justin Madders Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[Brendan O’Hara]

The right hon. Gentleman misses the point. It is about a much wider area: the principle of sunsetting by the end of next year. It is a legal minefield. If we are determined to travel through it, let nobody come back in a year’s time and say, “We didn’t know”, because it is perfectly obvious. The case has been made perfectly clear; sunsetting by December 2023 is well-nigh impossible and will lead to huge dangers. It is a disaster waiting to happen. Today the Government have the chance to finally accept that the price of appeasing their true believers is a price too high. I urge them to accept our amendment.

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

It is a pleasure to see you in the Chair, Sir George. I will start by echoing the comments of the SNP spokesperson, the hon. Member for Argyll and Bute. We do not think the Bill is fit for purpose. We will try to help the Government to improve the Bill with the amendments we will be moving, but fundamentally we think its approach is flawed, not least the subject of this amendment—the unnecessary and entirely artificial cliff edge, which is driven by political considerations, not practical ones.

I have yet to hear any justification for the deadline of 31 December 2023, other than the belief—seemingly rooted in fantasy—that unless we free ourselves of the shackles of these regulations by that date, we can never prosper as a country. That is a fantasy, because whenever a Department is asked to identify which regulations it no longer wants, all we hear is silence. We are told that we must hurry along and free ourselves of the 2,400 or 3,800 regulations—or however many they turn out to be—that are holding us back. The best I have heard any Government Minister say so far is something about vacuum cleaner power, but given the chaos of the past few months I am not sure anyone can seriously say that the reason for our current economic mess is that we do not have sufficient control over our hoovers.

I do understand the need to have a finite date. I understand the importance of having a target to work towards, but the date has been plucked out of thin air, seemingly at random, and we should not accept it unless a compelling and rational case is put forward. The Regulatory Policy Committee has said that setting a deadline is not enough, and that a stronger argument is needed for choosing that particular date, and I agree. The truth is that there is no better reason for that date having been chosen than the Prime Minister of the day, or the week, being able to say, “We will have put an end to all unnecessary EU burdens by the end of next year”—never mind that the Government cannot tell us what those burdens are, or why the end of 2023 is better than the end of 2024, 2025 or 2026. What we can say for certain, though, is that there will not be sufficient capacity in the civil service for a genuinely effective appraisal of the regulations that the Bill seeks to remove. The case for the cliff edge is incredibly weak; the arguments for removing it and putting the date back are much stronger.

Let us look at the numbers for a moment—although, of course, the numbers are something of a moveable feast. If we accept the newspaper reports that 3,800 statutory instruments will come within the ambit of the Bill, and presume—because we have not heard anything to the contrary—that the Government want to keep the majority of them, more statutory instruments would need something doing to them as a result of the Bill than were passed in the whole of last year. Of course, we had many extra regulations in that year due to covid, and plenty of people think the scrutiny of those particular instruments was not at the required level, so even under the most generous interpretation, we are looking at possibly doubling from last year the number of statutory instruments, if everything is to be passed before the end of next year.

It will be in half the time, as well. Let us assume for now that the Government press on with the Bill—although there is still some doubt about that, I believe—and it gets to the Lords early next year. There will probably be a bit of to and fro, given the significant constitutional elements this legislation contains, so it will not get Royal Assent until well into the spring. At best, that gives the Government six, seven or eight months to restate all the laws that will be covered by the Bill, so will the Minister tell us how many extra staff each Department has been assigned to deal with the additional workload? Have they been given any deadlines to work to? As we know, the Financial Times reported on 27 October that the Minister’s Department, with 300 pieces of EU law, would need an extra 400 staff to review the body of retained EU law. What does that mean if we extrapolate it across the whole of Government? How many extra staff will be needed overall in anticipation of the Bill?

The Financial Times also reported that “Whitehall insiders”—I never quite know who those people are, but they obviously have sufficient insight to talk to the press—are saying that

“reviewing the majority of retained EU law by 2023 would present a massive bureaucratic burden. One senior Whitehall official estimated that between 1,000 and 1,500 statutory instruments would be required in order to convert retained EU law that was deemed necessary on to the UK statute book.”

No wonder the impact assessments are silent on the issue of the sunset date. The Regulatory Policy Committee has made clear that it believes the analysis of that sunset date is inadequate. I refer to a newspaper report in the Financial Times, which said that Government officials are considering whether to press ahead with the 2023 sunset clause. I do not know if that is news to the Minister, but it is hot off the press. According to the article, Government officials have said that the Prime Minister and the Business Secretary have “yet to decide whether to stick to the 2023 deadline or push it back.”

No. 10 said,

“It’s too early to say.”

I am afraid it is not too early to say because we are debating it right now. If the Government have plans to push back the sunset, it will be useful to hear. If the Minister is able to comment on that report when she responds, I would be obliged.

I remind the Committee what Mark Fenhalls of the Bar Council said in the evidence session:

“I am no expert in how much civil service time exists, but I would be astonished if it were remotely possible to cover but a fraction of this. I do not know why it is set up as anything other than a political problem.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 28, Q56.]

That is the nub of the issue. This is a politically generated deadline that is going to cause problems, but if the Committee needs further persuasion, I also refer to the written evidence of the Bar Council, which raised the alarm when it said:

“The setting of an arbitrary, and in all the circumstances, impractical sunset date, with the consequent and entirely unnecessary risk of the disappearance of rules of critical importance to business, consumers, employees and the environment (some of which, due to their sheer numbers, may only be missed once lost) without adequate consideration or any consultation, and conferring an entirely unfettered and unscrutinised discretion to Ministers to disapply or delay the sunset provision or not; as well as the attendant risk of rushed replacement legislation”.

Eleonor Duhs also told us in the evidence session:

“In order to get the statute book ready for Brexit, which was in some ways a much more simple task than this, it took over two years and over 600 pieces of legislation. The reason I say it was a simpler task is that we were essentially making the statute book work without the co-operation framework of the EU. We were taking out references to the European Commission and replacing them with ‘Secretary of State’—that sort of thing. That was a much simpler task than what we have here, and that took over two and a half years.

A lot of areas also have several pieces of amending legislation… There may be huge policy changes under this legislation, and the end of 2023 is simply not a realistic timeframe for the process.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 29, Q56.]

There is plenty of evidence of concern out there, indicating that we should look again at the sunset. If Members are reassured that there is departmental and civil service capacity to handle all that in the time required, perhaps they should also consider the scrutiny aspects of the sunset, and whether Parliament will be able to fulfil its role properly in the time available. As George Peretz said in the evidence session:

“the sunset clause does interrelate with the question of Minister’s powers. One of the problems with the effectiveness of parliamentary scrutiny is that although one hears that Parliament has powers—in some cases via the negative or affirmative resolution procedures—the background against which it is being asked to approve legislation means that if it votes against that legislation, the sunset clause will apply and regulations disappear completely, rather weakening Parliament’s ability to do anything.

To take an example, if Ministers decided to keep the working time rules but rewrite them to make them less favourable to employees, and came up with the new regulations in November 2023, those rewritten regulations would probably be introduced under the affirmative procedure. However, when the House of Commons voted on them, Ministers would say, ‘You may not like these revised regulations very much, but if you do not vote for them, the alternative is that we will not have any regulations at all.’ That weakens Parliament’s ability to control the exercise of ministerial power.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 32, Q61.]

I do not want to be back here in a year’s time faced with a choice between accepting a reduction in the number of days of paid holiday that people are entitled to from, say, 28 to 10, and the alternative—people having no right to paid holiday at all—because we have been forced up to a precipice due to the timescale set out in the Bill. That is not Parliament taking back control.

I am not alone in my concerns. The Delegated Powers and Regulatory Reform Committee raised concerns about primary legislation and said that

“where little of the policy is included on the face of the bill”

but where Parliament is asked

“to pass primary legislation which is so insubstantial that it leaves the real operation of legislation to be decided by ministers”,

this reduces any parliamentary scrutiny to a bare minimum, and we are left only with

“delegated legislation which Parliament cannot amend but only accept or reject, with rejection being a rare occurrence and fraught with difficulty.”

That Committee further warned that

“the abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy”.

It is a shame that the former Secretary of State, the right hon. Member for North East Somerset (Mr Rees-Mogg), did not take his own advice on that issue before he drafted the Bill. When he was Leader of the House, in response to the Committee’s report into the frequent use of skeleton Bills during the period of the pandemic, he said that it did not

“necessarily provide a model example of how Parliament would like to see legislation brought forward”,

and that he would be

“encouraging them to minimise the use of delegated powers where possible”.

However, here we are today.

Finally, I will respond to the argument that there is already provision in the Bill to address the sunset. The problem is that that can apply to laws only if we know about them in the first place. There is also the prospect that we end up with a potpourri of sunset dates, because it could be any time between now and 2026. That just creates more uncertainty and confusion, and uncertainty for businesses that are trying to invest.

In conclusion, we support the amendments because 2023 is a deadline in search of a headline. It is not a serious proposition and it should be rejected. Parliament legislated, as we were preparing to leave the EU, to avoid a cliff edge. It seems illogical and reckless in the extreme to be now deliberately creating one when we are so close to the precipice.

--- Later in debate ---

[Ms Ghani]

Every time the Government put forward a piece of legislation, Government resources are focused on that piece of legislation to ensure that it is delivered. We have a Brexit Opportunities Unit in place as well. The assumption that resources are not moved around to get a piece of legislation through is slightly absurd. We understand that it is a piece of work that needs to be done, that it is a process and we have a deadline, but the work will be done.

[Justin Madders]

rose—

[Ms Ghani]

If the hon. Member gives me a moment to expand a little more I can explain; I will then take interventions from the birthday boy. Officials have catalogued retained EU law across Government, which has been collated, as part of the cross-varietal substance review of retained EU law, into the dashboard that was published on 22 June. Crucially, powers in the Bill have been drafted to ensure that the current date is workable. The preservation power enables UK Ministers and devolved authorities to keep specific pieces of legislation that would otherwise be subject to sunset where the legislation meets a desired policy effect, without having fully to restate or otherwise amend the legislation.

The power to revoke or replace the compatibility power and the power to restate assimilated law will be available until 23 June 2026, while the power to update will be a continuous power. These powers have the ability to amend assimilated law once the sunset date has passed and retained EU law is no longer a legal category; that means that Departments can preserve their retained EU law so that it becomes assimilated law after the sunset date, and amend it further beyond that date if required. In addition, the Department for Business, Energy and Industrial Strategy will be working closely with other Government Departments, as well as devolved Governments, to ensure that appropriate actions are taken before the sunset date. Finally, the extension mechanism in clause 2 ensures that, should more time be required fully to review the changes needed to retained EU law, the sunset can be extended for specific provisions or descriptions of retained EU law until 23 June 2026.

[Ms Ghani]

I simply do not recognise that the added burden means that the programme of work cannot be deliverable. I mentioned the fact that we have an ability to provide an extension, depending on what that piece of legislation is. What we do not want to do is undermine focus on delivering the bulk of the work by the sunset date that is in place at the moment.

[Justin Madders]

I am grateful for the Minister’s references to my special day, which will now be recorded forever more. She mentioned the Brexit opportunities team. Who is the Minister responsible for that team?

[Ms Ghani]

The Brexit opportunities team sits in BEIS and it works across Whitehall. This programme of work is being delivered with the team and across all Whitehall Departments as well; the focus of the work that is taking place is across Whitehall. Any anxiety that people are not working closely or collectively is for the birds. The fact that we have a deadline means that it focused everyone’s mind and attention.

[Justin Madders]

This is a very important piece of work, as the Minister has outlined. There must be a Minister who is responsible for it. Who is that? Who can we ask and speak to about this issue, because this is clearly a matter of important scrutiny?

[Ms Ghani]

I am not sure exactly what the hon. Member wants to speak about with regard to the Bill. I am here to perform my role and deliver this piece of legislation. We have a Secretary of State and we know that the Prime Minister is delivering on this piece of legislation as well. I am not sure what further contact the hon. Member needs.

Alongside amendment 26, amendment 28 would have very little impact, as clause 2 would still specify that 2026 was the maximum date that an extension could be set for. If we combined these amendments with amendment 29 or amendment 32, which we will debate later, that would result in the extension mechanism being able to extend specific provisions or descriptions of retained EU law beyond 31 December 2026. The extension power’s very nature is to mitigate any risks posed by the current sunset date. I recognise that, without an extension, there is a risk that Departments would not have sufficient time to perform the legislative and administrative procedures required for retained EU legislation in certain complex areas.

--- Later in debate ---

[Brendan O’Hara]

I rise to speak to the amendments tabled in my name and that of my hon. Friend the Member for Glenrothes, which would remove the sunsetting of EU legislation where it falls within the competence of the Scottish Parliament.

The amendments would mean that if, defying all logic, the Government are still determined to push ahead with the dangerous sunsetting of all EU legislation by 31 December next year, the Scottish Parliament could, in respect of areas that are wholly devolved, decide to keep relevant domestic legislation aligned to that of the European Union. That would mean that, in areas such as environmental health, food standards and animal welfare, the people of Scotland could continue to enjoy the high standards and protections that we have had as members of the European Union for almost five decades.

In his oral evidence to the Committee, Angus Robertson MSP suggested that it would be perfectly possible to draft the Bill

“in such a way that it did not apply to Scotland or Wales”

by limiting

“the scope of the Bill to non-devolved areas.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 80, Q136.]

Why should it not be drafted in such a way? Let us never lose sight of the fact that this is not our Brexit. This is something that is being done to us by a Government we did not elect pursuing the hardest form of a policy that we overwhelmingly rejected. In the circumstances, it is perfectly reasonable to suggest that legislation that is the preserve of the Scottish Parliament be excluded from this one-size-fits-all approach.

Angus Robertson also told the Committee that the UK Government were still, even at this late stage, unable to tell Scottish Government Ministers exactly which areas of competence they consider devolved and which they intend to view as being reserved to this place. In his evidence, Charles Whitmore from the school of law and politics at Cardiff University warned our Committee that the Bill could lead to

“legal uncertainty, and that is compounded at the devolved level because our capacity constraints are probably more acute, so the time sensitivity is even greater”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 85, Q141.]

As I said earlier, it might be the skewed priority of this Government to instruct Departments across Whitehall to prioritise this ill-conceived bonfire of retained EU law ahead of trying to mend the broken economy or lift people out of poverty, but that is certainly not the priority of the Scottish Government nor, I suspect, of the Welsh Government. Yet, as it stands, they will be forced to set aside valuable Government and parliamentary time to take part in this exercise, which will undermine the high standards and protections that people in Scotland have enjoyed and have quite rightly come to expect from European Union membership. Given that, I intend to press amendments 68 and 21 to a vote to ensure that the sunsetting of retained EU law does not apply in areas that are devolved.

[Justin Madders]

We have some sympathy with amendment 68. From what we can determine, it tries to equalise the approach to the current anomaly whereby under clause 1(2) the power to remove the sunset is granted both to Westminster and to devolved authorities, but the power to extend the sunset under clause 2(1) is just for Ministers in Westminster. I do not know the reasons for the difference in that approach.

I suggest that the evidence sessions did not reveal a particular state of readiness in the Scottish Parliament for the administrative burden that the Bill will leave it with. That is not, by the way, a criticism of the Scottish Parliament; it is a reflection of the timescales that we face. The current powers in the Bill leave the Scottish Parliament in a position in which it would have to remove the sunset entirely, whereas perhaps an option could be for it to extend the sunset for reasons of capacity. That would be a much more measured approach.

[Peter Grant]

My recollection, which may help the hon. Member on his first point, is that Angus Robertson said they had not had a chance to begin to quantify the amount of legislation. He was saying not that it was because there was not very much but because there was so much of it. Can the hon. Member be clear as to what Labour’s current position is? If a piece of retained EU law related exclusively to one of the devolved competences—either the Scottish Parliament, Senedd Cymru or the Northern Irish Assembly—is it Labour’s position that that retained law should be removed from the devolved legislatures only with their explicit consent, or does Labour support the Government, who think this Parliament can legislate away in fields of devolved competence without the consent of the devolved Administrations?

[Justin Madders]

I thank the hon. Member for his intervention. I think we start from the point that this should be a matter of logic. If an issue is within devolved competence, it should be for the devolved Administration to determine, but I wait to hear the Minister’s explanation for leaving that proposition to one side for the purposes of the Bill. We suspect the Government have done this because of the political imperative that Ministers will be able to say they have got rid of everything they do not want by the arbitrary deadline of 31 December 2023. If this amendment is accepted and it is something the Government accept is a valid argument, we would expect similar measures to come forward for Wales.

Another consideration is that we do not actually know at this stage which laws are within the competence of Scotland. We do not know which laws are covered, because there is no list anywhere. We just have the dashboard, but that does not give us any clues as to which pieces of regulation are considered to be within the devolved nations’ competence. Can the Minister justify the power to extend the sunset having to reside only in Westminster when it deals with matters of devolved competence? Can she also explain what the process will be in Government with the Brexit Opportunities Minister, when appointed, for identifying the laws that are within devolved competence, and the procedure to be followed for resolving any disputes about ownership of those pieces of legislation and which authority has competence?

[Stella Creasy]

This is a good example of the challenge we faced yesterday in the Delegated Legislation Committee on persistent organic pollutants, where it was not clear what legislation was covered by this Bill and what would be deleted and, therefore, whether it was worth rewriting any legislation. The Minister got into a tangle. We would be talking about such a tangle on a more widespread scale across our devolved Administrations.

I echo the point made about my Front-Bench colleague, my hon. Friend the Member for Ellesmere Port and Neston, about the importance of recognising our colleagues in the Senedd as well. That is the challenge with this legislation. Because we do not know the full extent of what it will do, we do not know how it will affect devolution. We do not know where the lines between devolved powers and powers held at Westminster will be drawn and what will be retained. These amendments reflect that. It is not unreasonable to ask Government Ministers to clarify how they see this all working.

One of the concerns over the last couple of years has been the fractures in devolution and the pressure we have put on our devolved Administrations in making the decision to leave the European Union. I would ask the Minister to set out not just why she thinks Westminster should supersede any of the devolved Administrations, but also what her plans would be, should in that subsequent, updated, rolling list of laws a piece of retained law come up that had perhaps not been previously identified but that is quite clearly about devolved powers. How would she look to manage that?

The Minister’s colleagues yesterday were rather intemperate, shall we say, when it was pointed out that they were passing a statutory instrument that rested on legislation that would no longer exist at the end of the next year, 50% of which had not yet been identified as being on the dashboard but was clearly part of the regulations the Government had put forward. How does the Minister feel that will affect our relationships across the United Kingdom and our ability to speak up for the Union if the Westminster Government puts Government Ministers across the devolved Assemblies and the Scottish Parliament in the same position for 4,000 pieces of legislation?

I hope the Minister will recognise that these amendments and concerns about devolution come, yet again, not from a desire to stop Brexit, because Brexit has happened, but from a desire to protect the Union and ensure that people in any part of the United Kingdom have confidence that Government Ministers know exactly what they are doing.

--- Later in debate ---

Division 1

Ayes: 7

Noes: 9

[Justin Madders]

I beg to move amendment 90, in clause 1, page 1, line 6, at end insert—

“(1A) Schedule [the Definitive List] sets out a complete list of instruments to be revoked by subsection (1) (referred to as the ‘Definitive List’).

(1B) The Secretary of State must by regulation add all relevant instruments referred to in subsection (1), so far as they are known to the Secretary of State at that date, to the Definitive List within 14 days of the date of Royal Assent to this Act.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 91, in clause 1, page 1, line 7, leave out subsection (2) and insert—

“(2) Before 30 June 2023 a relevant national authority must consult such organisations as appear to it to be representative of interests substantially affected by the inclusion of an instrument in the Definitive List, and any other persons potentially affected as the relevant national authority considers appropriate.

(2A) Following the consultation referred to in subsection (2), where a relevant national authority considers it appropriate, it may by regulations made no later than 31 May 2023—

(a) add any EU-derived subordinate legislation or retained direct EU legislation to the Definitive List, or

(b) remove any EU-derived subordinate legislation or retained direct EU legislation from the Definitive List.

(2B) No later than 30 June 2023 the Secretary of State must publish and lay a report before Parliament setting out—

(a) a summary of the objectives and effect in law of each instrument listed in the Definitive List and of the legal consequences of its revocation;

(b) whether that instrument affords any protections for consumers, workers, businesses, the environment, or animal welfare, and, if so, whether and how that protection is to be continued when the instrument is revoked;

(c) any benefits which are expected to flow from the revocation of that instrument;

(d) the consultation undertaken as required by subsection (2), together with any representations received in the course of the consultation;

(e) the reason why the relevant national authority considers that it is appropriate to revoke the instrument having considered those representations;

(f) the likely effect of the revocation of that instrument on the operation of the Trade and Cooperation Agreement between the United Kingdom and the EU, and on UK exports of goods or services to the European Economic Area; and

(g) the likely effect of the revocation of that instrument on the operation of the Protocol on Ireland/Northern Ireland in the EU Withdrawal Agreement.

(2C) The Secretary of State must by regulations remove an instrument from the Definitive List following an order of either House of Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru, or the Northern Ireland Assembly) calling on the Secretary of State to remove that instrument from the Definitive List.

(2D) If the Secretary of State is required by subsection (2C) to make regulations removing any instrument from the Definitive List but the Secretary of State has either—

(a) not made such regulations, or

(b) has made such regulations but they will not come into force on or before 31 December 2023,

then such regulations will be deemed to have been made and to have come into force on 31 December 2023.”

New schedule 1—The Definitive List—

“This schedule sets out the Definitive List in accordance with section 1 of this Act.”

[Justin Madders]

I apologise in advance that this discussion will last longer than that on other amendments. We accept that these amendments would fundamentally change the nature of the Bill, but they would do so in such a way as to create greater transparency and accountability and ensure that Parliament was able to properly fulfil its role in relation to the regulations. I refer to the evidence of the Bar Council, which said:

“It is a matter of great public interest that, where it applies, REUL should be as certain as possible. It is also important as a matter of democratic principle—as well as ensuring that replacement legislation in areas of great importance to business and the wider public is effective in achieving its goals—that replacement legislation be carefully considered and properly scrutinised before it is enacted.”

We certainly agree with that as a starting proposition. It is clear that the Bill as currently drafted does none of those things. The first thing to do is to identify and agree on what is covered by the Bill, but I am afraid that has not been forthcoming so far. I am grateful to the Minister for writing to us on 11 November to set out her understanding of the position following reports in the Financial Times that another 1,000 or 1,400 laws that have been identified do not appear on the dashboard. The critical point, as she wrote in her letter in respect of further legislation that may be identified by the National Archives, is:

“This number has not yet been verified by the Government.”

We still do not know what the Bill covers.

The former Minister, the hon. Member for Watford (Dean Russell), told us in response to a written question on 24 October:

“The dashboard presents an authoritative, not comprehensive, catalogue of REUL. Therefore, there may be some legislation that is covered by clause 1 of the Bill that is not yet captured in the dashboard. The Government will continue to identify additional REUL and update the dashboard on a quarterly basis to reflect this.”

I am sure that I am not the only person struggling to understand how something can be authoritative but not comprehensive. The former Minister also told us in response to a written question on 21 October that

“we anticipate over 100 additional pieces of legislation will be added to the REUL dashboard.”

We now know that it may well be considerably more than that. Even if just 100 pieces of legislation are missing, that will make that dashboard neither authoritative nor comprehensive. In that same answer, the former Minister also told us:

“Government officials are currently working to quality assure this data and any amendments to the data will be reflected in an update of the dashboard this Autumn.”

The position is that the dashboard may be updated at some point in the not-too-distant future, but it is certainly not comprehensive or authoritative at the moment. With this Bill, we do not even know what we are allowing the Government to change.

As my hon. Friend the Member for Walthamstow told us in an evidence session, the Department for Environment, Food and Rural Affairs issued a ministerial correction to a written answer about the application of the Avian Influenza and Influenza of Avian Origin in Mammals (England) (No.2) Order 2006. Originally, it said that the order

“was not made under section 2(2) of the European Communities Act 1972, and therefore it does not fall within the scope of Clause 1 of the Retained EU Law (Revocation and Reform) Bill”,

but the ministerial correction confirmed that it did. Those actions hardly inspire confidence that that Department—or, indeed, any Department—has adequately identified the regulations that will be classified as retained EU law.

For good measure, the Marine Conservation Society has said that the Conservation of Offshore Marine Habitats and Species Regulations 2017, the Environmental Damage (Prevention and Remediation) (England) Regulations 2015, the REACH Enforcement Regulations 2008 and the Civil Aviation (Working Time) Regulations 2004 are all absent from the dashboard but are retained EU law.

Those are just a few of the known unknowns, so we find ourselves in the unacceptable position of setting up a framework for the removal of laws, but we do not know which laws it will apply to. It is now six and a half years since the country voted to leave the EU. Surely the Government should know by now which laws are EU-derived and which ones they want to junk. I will come to that later point in due course, because before we get to the substance of what the Government intend to do with the Bill, let us first have an agreed baseline for what is covered by it.

--- Later in debate ---

[Peter Grant]

I have a great deal of sympathy with amendment 90, but amendment 91 seems to be telling the devolved Administrations how to do their job. Does the hon. Gentleman not think that if we want to allow the devolved Administrations to decide whether to vote for a particular piece of retained EU law, we should also leave it to them to decide the process by which they do it?

[Justin Madders]

If the hon. Member does not think that doing proper consultations is the way the Scottish Parliament wants to go, that is a matter for him, but we would like consistency of approach across all Departments and nations of this United Kingdom. Subsections (2C) and (2D) in amendment 91 would effectively create a failsafe so that any attempts to frustrate the will of the devolved nations cannot be made by the inaction of a recalcitrant Secretary of State. I hope the hon. Member can at least take some reassurance from that—any exercises of the devolved nations would, under the amendment, be honoured by Westminster.

We have already heard arguments that some of these laws were not brought into force in a truly democratic manner. Therefore, they do not need the same level of scrutiny that would ordinarily be afforded to other laws passed by this Parliament. Frankly, I find that argument nonsense. It is like saying, “I object to my neighbour planting leylandii in their garden, so I am going to do exactly the same.” If the complaint is that the level of accountability and scrutiny was insufficient when the laws were brought in, surely those making that argument would want accountability and scrutiny when those laws are reviewed. Is taking back control not about us—this Parliament—having a fuller role in the legislative process?

As it happens, I do not accept that characterisation of how these laws were introduced in the first place. In its written evidence, the Bar Council said that

“the EU legislative process, whilst certainly capable of much improvement, contains a number of democratic checks and balances: for the vast bulk of EU subordinate legislation, the co-legislators, both of whom must adopt the final text by (normally weighted) majority, are the Council, comprised of elected Ministers from the Member States, and the European Parliament”,

which is democratically elected, of course, and whose membership included until 2020 Members who were democratically elected from the UK. It continues:

“Important Commission legislative proposals are preceded by impact assessments and so-called roadmaps, and often accompanied by Staff Working Documents, all publicly available and setting out the policy intent. In addition, public consultations and stakeholder meetings are frequent features of the process, whether concerning binding or non-binding measures.”

I do not know whether the criticisms of this process are about the quality of representation that we had over there. A number of former MEPs are now Members of these Houses of Parliament, and they all seem pretty capable people to me. Let us not forget that once the EU issued its directives, we in this place had the European Scrutiny Committee and other Select Committees to examine any proposals. It is simply wrong to say that our politicians, stakeholders and policymakers did not have ample opportunity to exert influence on the development of EU policy and secondary legislation.

There are many examples where EU legislation was supported, and even promoted, by the UK Government of the day. One example—I am sure you will remember this, Sir George—was the social chapter. That was clearly telegraphed by the Labour party as something it would introduce if it got into power back in the 1990s; it was in the manifesto. Of course, Labour won that election and those laws were introduced, including rights on parental leave and working hours. Nobody can say those rules were forced on us without our consent. It should therefore be a matter of agreement for everyone who wants to see democracy prosper that the replacement legislation under this Bill should be made by Parliament after proper consultation, public debate and scrutiny, not simply a ministerial decision—or, as the case may be, ministerial non-decision.

The best idea we have at the moment regarding how the Government intend to approach this mammoth task is a statement from Lord Frost, who said the policy intention was

“to amend, replace or repeal all retained EU law that is not right for the UK.”—[Official Report, House of Lords, 16 September 2021; Vol. 814, c. 1533.]

“Not right”—is that the best we can do? This centuries-old Parliament, taking a historic decision to wrestle back control from those unelected Brussels bureaucrats, finds itself in the ludicrous position of having another unelected person tell us that laws will be changed if they are “not right”. Surely the Minister can see that could mean absolutely anything. That is the equivalent of a dictator waking up one morning and saying, “I don’t think it’s right that people in my country are allowed to wear hats, so from today we will outlaw that.” Clearly that is an extreme example, but that is the consequence of having a Government who have the power to dispense with laws with no consultation or scrutiny because they do not think those laws are right. Surely as a Parliament we can do better than that. Surely we should hold ourselves to a high standard when we want to change legislation. We should not legislate on a whim, and Parliament should not hand powers to Ministers that enable them to do just that.

--- Later in debate ---

[The Chair]

I call Justin Madders.

[Justin Madders]

Thank you, Sir George. I am happy to take interventions if any hon. Members wish to intervene.

[Stella Creasy]

I thank my hon. Friend for giving way. Given that we are debating whether Ministers are capable of scrutiny, not to take any questions rather proves the point. Does my hon. Friend agree with me that he has already set out a number of instances of regulations that are not on the dashboard? I wish to add the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012. Is there a number for the regulations that are not currently on the dashboard that people can feel comfortable with? Is there a margin of error that the shadow Minister can set out, given that the Government will not answer that question? Or given that businesses want better rather than no regulation, is it not completely unreasonable not to know what is up for grabs?

[Justin Madders]

Businesses want certainty and, with this Bill, we are as far away from that as is possible. I do not know if there is going to be a margin of error. Indeed, I do not think there should be any margin for error when talking about legislation in this place. We should all know exactly what we are voting for and signing up for. At the moment, the Bill does none of those things. The Minister said that the amendments would undermine the Bill. Absolutely they would. They are intended to create some parliamentary scrutiny, which the Bill sorely lacks. The Minister also said that the Bill’s drafting aims to incentivise Departments to hurry along and decide which laws they want to retain, but I am afraid that if we are using legislation as a management tool for civil servants we are in a pretty poor place

[Paul Blomfield]

Does my hon. Friend agree that the purpose of a Public Bill Committee is to put legislation under scrutiny and that that process is enabled by Ministers answering questions? Does he further agree that the objective of the process we are involved in will not be served if the Minister refuses to take interventions?

[Justin Madders]

I thank my hon. Friend for his intervention. When a Bill is clear, and when the intention and the factual basis for proceeding are clear, it is not always necessary to have interventions, but when a Bill is as opaque and uncertain as this, it is important that the Government set out clearly their rationale for proceeding in such a way. No doubt those concerns will be picked up in the other place, where I hope they get more comprehensive answers.

[Paul Blomfield]

I understand the difficulties the Minister has in dealing with some of the questions, but on her specific point about it being too burdensome for civil servants to produce a list of laws, does my hon. Friend share my incredulity at her acceptance that undertaking a review and putting forward revised proposals, or indeed making a recommendation, to revoke all the laws is not too burdensome, although it is too difficult for the Government to list those laws?

[Justin Madders]

I agree. I, too, have sympathy for the Minister, who has been dealt a pretty poor hand, but the idea that we cannot get someone to cut and paste from the dashboard to the Bill is ludicrous.

[Peter Grant]

I note that the hon. Gentleman’s incredulity is almost as great as mine with respect to a Minister who a minute ago said that we can deal properly with 4,000 bits of legislation in just over a year, but then said that the Government cannot take stuff from their own dashboard and transpose it somewhere else.

Am I correct to think that, essentially, the purpose of the amendment is to give the Government some insurance cover to prevent them from revoking useful legislation by mistake? What does it say about the arrogance of a Government that they refuse to accept such an offer of help and prefer to see legislation that could have unintended damaging consequences, rather than simply having the humility to accept such a proposal, which they seem to reject purely because of where it comes from, rather than any benefit it might contain?

[Justin Madders]

I hope the Minister will learn that I always try to be helpful with my amendments. We are genuinely trying to get the Bill into some kind of shape whereby it might restore faith in parliamentary democracy. We will not be the ones to bear the consequences of accidental omissions; it will be our constituents. They will rightly ask, “What were you doing? Where were you when the Bill was passed?” It will be clear that we raised our concerns and pointed out the terrible potential consequences of not doing this correctly.

[Stella Creasy]

Can my hon. Friend have any confidence in the dashboard itself if Ministers are not prepared to put it on a statutory footing by at least listing the laws that are creating it? The Minister tells us to have confidence in the dashboard process, saying that it is a wonderful tool for people to be able to learn what is going on, but not so wonderful that it can be transplanted in legislation. Does my hon. Friend agree that that rather undermines any confidence that people might have in the dashboard, even as an authoritative if not comprehensive list of the legislation affected?

[Justin Madders]

I will use a hip-hop lyric in response, seeing as that is the road we are going down. LL Cool J once said

“you can’t gain or maintain…Unless you say my name”,

and that is the point of this amendment. We cannot actually say, scrutinise or understand the effect of the Bill if we do not have a comprehensive list. The Minister has said that the dashboard is the panacea for our criticism, concerns and, indeed, conspiracies about what is going on here, but when the Government themselves admit that the dashboard is not a full list of the laws, it cannot be acceptable or tenable that that is the basis on which they intend to proceed. We do not legislate in this place by website; we legislate by legislation, and the intention of the legislation should be clear.

I will pick up one other point that the Minister made. She said that we continue to support the values of the EU, even though we are leaving it. I am afraid that clause 5 does not do that; it specifically says that we will no longer be following the principles of EU law as we leave. I accept it is a legitimate position, but that is the fact of the matter. I appreciate that we have dealt with this matter to the nth degree, so I will finish by saying that I intend to push this amendment to a vote. We cannot have a situation where we do not know what legislation covers, where we do not what know what the Government intend to do with the legislation, or where the Government will not talk to anyone about what they intend to do with it.

We cannot have the Government changing the law on a whim; there must be proper accountability and scrutiny. We cannot have unaccountable Ministers changing the rules without reference to anyone else. That is not what taking back control was supposed to mean. I am afraid that says that the Government are not confident about their intentions and, frankly, that is a completely unacceptable situation, which this amendment would go some way to putting right.

Question put, That the amendment be made.

--- Later in debate ---

[Justin Madders]

The amendments acknowledge that it should not be Ministers who get to decide which laws to keep and which to chop. The Bill gives the Government widespread executive powers to rewrite affected laws through statutory instruments that require little parliamentary scrutiny, and with no mandate from the voters. There has been no guidance on, or indication of, which laws Ministers consider to be outdated, and what improvements are intended to make them

“better suited to the UK.”

Any replacement for these rights would require little parliamentary scrutiny. Core workers’ rights, key environmental protections and important consumer rights are left in the gift of Ministers. I think we have made it clear that we do not think that is acceptable.

The refrain of those who advocated for Brexit was that we should take back control—“we” meaning the people we represent, not Ministers sitting in rooms on their own, answerable to nobody, and under no requirement to explain their actions or inaction. That is not the way to go. The Government cannot argue that the Bill brings sovereignty and democratic control back to the legislative process when it demolishes the role normally undertaken by Parliament.

Any meaningful attempt to increase democratic oversight would seek to address those fundamental flaws. Parliamentary safeguards exist precisely because Ministers might always be tempted to resist scrutiny from Parliament. Those safeguards are important, if only because scrutiny and debate prevent errors, omissions—we certainly feel that there may well be omissions—and mistakes. These are important matters that will impact our constituents’ lives, and the prosperity or otherwise of the nation for years to come. Should not any Government have the courage of their convictions and open up their decisions for parliamentary approval? Should not we have a say on whatever Government decide that they are letting themselves and their citizens in for?

The Civil Society Alliance has said that this Bill will further destabilise devolution arrangements at a time when tensions between devolved and central authorities are more challenging than ever, and that will undermine the UK’s democracy and constitution, as well as the role of devolved and central Parliaments. The alliance says that the Bill gives staggeringly broad delegated powers to repeal and replace parliamentary laws with policy that is subject to little or no democratic scrutiny and is introduced at an alarming pace. We have already made clear our position: we do not agree with this. No one, whether they voted remain or leave, would want that. For that reason, we think that the amendments have some merit.

[Ms Ghani]

I ask hon. Members to reject amendments 22 to 24. Amendment 22 would fundamentally undermine the principles of the Bill by requiring individual pieces of retained EU law to be approved by a motion in the House of Commons and all the devolved legislatures before the sunset could revoke them. Notwithstanding the issue with parliamentary time, this amendment would require the UK Government to seek consent from all the devolved legislatures before revoking any secondary retained EU law, irrespective of its devolution status or territorial extent. It seems that it would in effect give the devolved legislatures a veto over retained EU law in other parts of the UK, and is therefore highly inappropriate.

Amendments 23 and 24 would hinder the efficient removal of regulations that have been identified as beign outdated, unduly burdensome and not suitable for UK citizens and businesses. The intention in this Bill is not for the Government to take on the function of the devolved authorities; nor is the Bill a power grab. I therefore ask that the amendments be withdrawn or not pressed.

[Brendan O'Hara]

I am not remotely surprised by the Minister’s reply, but I gently ask her: who knows better than the parliamentarians representing people across these islands in Edinburgh, Cardiff and Belfast about what is best for them and the people who elected them? They can also provide expertise on the damage that unintended consequences can cause. How often in this Parliament have we made the case that on occasion—or often—the views of other parts of the United Kingdom have been overlooked or ignored by the Government, and that Government officials have been unaware of them?

This is about democracy. This is about giving the other Parliaments the right to say, “No, this will not work, and these are the reasons why.” Very recent history tells us that had we adopted such an approach only six or seven years ago, we would not be in the mess we are in. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Justin Madders]

I beg to move amendment 73, in clause 1, page 1, line 9, at end insert—

“(2A) Subsection (1) does not apply to the following instruments—

(a) Management of Health and Safety at Work Regulations 1999,

(b) Children and Young Person Working Time Regulations 1933,

(c) Posted Workers (Enforcement of Employment Rights) Regulations 2020,

(d) Part Time Employees (Prevention of Less Favourable Treatment) Regulations 2000,

(e) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002,

(f) Transfer of Undertakings (Protection of Employment) Regulations 2006,

(g) Information and Consultation of Employees Regulations 2004,

(h) Road Transport (Working Time) Regulations 2005,

(i) Working Time Regulations 1998,

(j) Agency Workers Regulations 2010,

(k) Maternity and Parental Leave etc Regulations 1999,

(l) Trade Secrets (Enforcement etc) Regulations 2018,

(m) The Health and Safety (Consultation with Employees) Regulations 1996, and

(n) Information and Consultation of Employees Regulations 2004.”

This amendment would exclude certain regulations which provide for workers’ protections from the sunset in subsection (1).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 76, in clause 15, page 17, line 5, at end insert—

“(1A) Subsection (1) does not apply to the following instruments—

(a) Management of Health and Safety at Work Regulations 1999,

(b) Children and Young Person Working Time Regulations 1933,

(c) Posted Workers (Enforcement of Employment Rights) Regulations 2020,

(d) Part Time Employees (Prevention of Less Favourable Treatment) Regulations 2000,

(e) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002,

(f) Transfer of Undertakings (Protection of Employment) Regulations 2006,

(g) Information and Consultation of Employees Regulations 2004,

(h) Road Transport (Working Time) Regulations 2005,

(i) Working Time Regulations 1998,

(j) Agency Workers Regulations 2010,

(k) Maternity and Parental Leave etc Regulations 1999,

(l) Trade Secrets (Enforcement etc) Regulations 2018,

(m) The Health and Safety (Consultation with Employees) Regulations 1996, and

(n) Information and Consultation of Employees Regulations 2004.”

This amendment would exclude certain legislation which provides for workers’ protections from the power to revoke without replacement in subsection (1).

Amendment 67, Clause 22, page 21, line 42, at end insert—

“(da) section [Workers’ rights];”

Amendment 60, in clause 22, page 22, line 19, at end insert—

“(d) any regulations made under section 2 of the European Communities Act 1972 which have the effect of conferring rights or protections on workers.”

New clause 4—Workers’ rights—

“The Secretary of State must by 1 January 2023 publish a list of any provision to which this Act applies which confers rights or protections on workers which has not been—

(a) subject to regulations under section 1(2),

(b) restated under section 12 or 13,

(c) replaced under section 15(2), or

(d) revoked under section 15(3) and replaced with alternative provision

as at 1 January 2023.”

--- Later in debate ---

[Justin Madders]

Amendment 73 provides that clauses 1 to 3 and the powers under clause 15 do not apply to the list of regulations set out in the amendment. Committee members with a keen eye will notice that they all relate to employment and workers’ rights. The amendment would remove them from the sunset clause and prevent further watering down by the Government. If the Committee is minded to support the amendments, we can all leave here today safe in the knowledge that we have done our bit to protect workers’ rights from deliberate action or careless inaction.

I will not go through the effect of every one of the regulations. Some will be more familiar to Members than others. They represent, as far as we can identify, all the major employment rights in the ambit of this Bill—rights that people enjoy every day.

Paid annual leave is one of the greatest achievements of the last Labour Government. Also included are the regulations that introduced daily and weekly working limits. For Members who are not aware, that arose from a concern about workers’ health and safety. The risk of working excessively long hours has been shown time and again. The regulations listed also include a worker’s right to a 20-minute break in a shift, a break from work each day, and a day off every week or two days off every 14 days. We should not jettison those minimum standards.

Other regulations in the list oblige employers to assess health and safety risks to their workers, and to keep that risk assessment up to date. Do we not think that everyone has a right to work in a safe environment, and that employers should take steps to ensure that?

There are other laws in the list that are well worth fighting for, such as the right of part-time and fixed-time workers to be treated, pro rata, similarly to permanent workers unless the employer can justify the different treatment. Agency workers have the right after 12 weeks to receive the same basic working and employment conditions as directly employed workers. There are rights to do with taking parental, paternity and maternity leave, and of course the right not to be subject to detriment or to be dismissed for having exercised such a right. Importantly, there is the right to return to the same job that the employee had before they went on maternity leave.

Employees have the important right to be consulted on health and safety, and to paid time off to carry out health and safety training and other duties. They also have the right to protection from discrimination or victimisation for carrying out health and safety duties.

Also included are rights under the TUPE regulations, which ensure that when one business buys another, there is reasonable certainty about which workers transfer to the new business, so that the purchaser knows which employers it is getting and, critically, workers know that they cannot be dismissed or have their terms and conditions chopped just because they are working for a new employer. How many times does the TUPE regulation get applied every year? I do not have a figure, but I expect that hundreds of thousands of people have their employment changed each year under TUPE. No one has ever come to me and said that they do not think that workers deserve the protections and consideration that those regulations provide.

Having a new boss creates uncertainty, as Government Members will no doubt appreciate after the past few months, so let us not add to it. Let us make it crystal clear that TUPE will stay. Imagine if someone was thinking of buying a business in 2023. How on earth would they know whether to proceed with the purchase if they did not know whether they were obliged to take on its employees? We have a stable, settled, well-understood framework of law that helps businesses to operate more efficiently, and this amendment seeks to retain that.

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

Justin Madders Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 76, in clause 15, page 17, line 5, at end insert—

“(1A) Subsection (1) does not apply to the following instruments—

(a) Management of Health and Safety at Work Regulations 1999,

(b) Children and Young Person Working Time Regulations 1933,

(c) Posted Workers (Enforcement of Employment Rights) Regulations 2020,

(d) Part Time Employees (Prevention of Less Favourable Treatment) Regulations 2000,

(e) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002,

(f) Transfer of Undertakings (Protection of Employment) Regulations 2006,

(g) Information and Consultation of Employees Regulations 2004,

(h) Road Transport (Working Time) Regulations 2005,

(i) Working Time Regulations 1998,

(j) Agency Workers Regulations 2010,

(k) Maternity and Parental Leave etc Regulations 1999,

(l) Trade Secrets (Enforcement etc) Regulations 2018,

(m) The Health and Safety (Consultation with Employees) Regulations 1996, and

(n) Information and Consultation of Employees Regulations 2004.”

This amendment would exclude certain legislation which provides for workers’ protections from the power to revoke without replacement in subsection (1).

Amendment 67, in clause 22, page 21, line 42, at end insert—

“(da) section [Workers’ rights];”

Amendment 60, in clause 22, page 22, line 19, at end insert—

“(d) any regulations made under section 2 of the European Communities Act 1972 which have the effect of conferring rights or protections on workers.”

New clause 4—Workers’ rights—

“The Secretary of State must by 1 January 2023 publish a list of any provision to which this Act applies which confers rights or protections on workers which has not been—

(a) subject to regulations under section 1(2),

(b) restated under section 12 or 13,

(c) replaced under section 15(2), or

(d) revoked under section 15(3) and replaced with alternative provision

as at 1 January 2023.”

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

It is a pleasure to see you in the Chair this afternoon, Sir George. Before our lunch break, I was talking about some of the important employment rights that derived from EU legislation.

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

I rather wondered why the hon. Gentleman was regaling us with this list of workers’ rights. Is he seriously suggesting that this Government would sweep away all those rights? If he is, does he not accept that that is scaremongering? Does he not agree that in many respects, workers’ rights in this country are far superior to those employed in many European countries?

[Justin Madders]

If the right hon. Member wants to give the public reassurance that there is no intention to sweep away the rights, this is the perfect opportunity to do so by voting for the amendments. I remind him that over the past 12 years the Government have doubled the qualifying period for unfair dismissal, introduced employment tribunal fees and cut down on consultation requirements for collective redundancies. The track record is a mixed one to say the least. A number of prominent Brexiteers have talked extensively about the need to reduce red tape and do away with employment rights, which I will discuss shortly.

If, as the right hon. Member says, there is no intention to remove employment rights, that is welcome news. It would be more welcome if the amendments were supported, because that would be consistent with the manifesto that Conservative Members stood on in 2019, which says on page 5 that

“we will legislate to ensure high standards of workers’ rights, environmental protection and consumer rights.”

This is the chance to legislate for that, starting with amendment 76 on workers’ rights.

[Peter Grant (Glenrothes) (SNP)]

I am possibly anticipating what will be said later, but for clarification will the hon. Member confirm that retaining all this EU legislation in domestic law does not in any way prevent the Government from deciding that they want to legislate for a greater level of workers’ rights or environmental protection than is currently the norm throughout Europe? They would only need to repeal this law if they intended to weaken those protections.

[Justin Madders]

The hon. Member is exactly right. If there is no intention to do away with these laws, the Government simply have to accept the amendment with no further question or debate about it. We will be very pleased to be able to report to our constituents that their rights are protected.

We are sceptical about some of the intentions of the Conservative party. The right hon. Member for North East Somerset (Mr Rees-Mogg), the architect of the Bill, has gone on the record with what can only be described as a Victorian attitude to workers’ rights, with such classic lines as “there is no moral right to annual leave.” There were reports in The Times only a couple of months ago that he was planning to scrap both the Working Time Regulations 1998 and the Agency Workers Regulations 2010. Amendment 76 would protect both measures, putting the issue beyond doubt. The Minister does not need to the follow the right hon. Member’s lead any more; she can act today to show that she is on the side of workers, that she understands the value and importance of workers’ rights and that she can do the right thing by supporting the amendment.

When discussing these amendments it is important to acknowledge that there will almost certainly be a disproportionate impact on women if these laws are scrapped, as many of them have been of great benefit to women in the workplace. Fifty years after this country legislated for equal pay between men and women we still have not quite got there. Women face far greater challenges of discrimination at work. Let us not make an unacceptable situation any worse by reducing some of the measures that protect them.

The Bill’s own impact assessment recognises that it contain threats to equality, particularly in paragraphs 11, 25 and 41. Unison has said that the Bill will

“deliberately wipe the slate clean and create confusion around the principle of precedent that UK common law is premised on. It places ideological principles above the lived, practical needs of the UK.”

Perhaps the Minister will tell us, as the right hon. Member for Clwyd West has already suggested, that we are being melodramatic, and that the Government do indeed intend to honour their manifesto commitments to improve workers’ rights. We know what we need to do if that is the case.

As I say, I am a little suspicious about what is going on with the Bill and why it has been drafted in such a way to squirrel away debate and discussion about workers’ rights. If the Government truly intended to maintain these rights, they could have put something in the Bill along the lines of the amendments from Labour or the SNP. Better still, as we have touched on, they could have done the Bill the other way round, so that we knew what was going to be removed. The fact that they have not done that raises concerns.

When the review of retained EU law commenced, Lord Frost said that the Government were in the position to ensure that retained EU law could be revoked, replaced, restated, updated and removed or amended to remove burdens. Of course, he could have added to those comments and said that, while we want to do that with retained European law, we respect and support workers’ rights and do not need to change them. Instead, we have the language of attack—of revocation, of removing burdens—not the language of a Government intent on upholding workers’ rights.

I urge Members to consider what the Minister’s colleague, the right hon. Member for Beverley and Holderness, said on Second Reading on the subject of workers’ rights:

“In line with the UK’s track record, we will seek to modernise our regulations, including on workers’ rights, ensuring that unnecessary burdens are minimised”.—[Official Report, 25 October 2022; Vol. 721, c. 252.]

I am not sure what he meant by “modernise”, given that the Government have yet to implement the vast majority of recommendations from the Taylor review that sought to bring in new regulations to protect workers in the gig economy, but it is the latter part of that sentence that I want to examine further.

We hear far too often from those on the right of politics that employment rights are an unnecessary burden on businesses. Of course, for many, the visceral hatred of workers’ rights was a huge motivating factor for wanting to leave the EU. However, I would say that workers’ rights are not a burden, but an essential ingredient of a civilised society. If we want our citizens to play an active role in the country moving forward and in future economic growth, our citizens have to be rewarded fairly and treated fairly. Security and respect at work are the cornerstone of any success we may have as a nation. A secure and happy workforce is a productive workforce. Giving people dignity, certainty and fairness in the workplace is not a burden on businesses, but is what good businesses want to do, what good businesses will see the fruits of, if they implement it properly, and what we as Members of this House should want to see in every workplace.

We view the Government’s approach to the amendment with scepticism. I urge all members of this Committee not to pass up the opportunity that this amendment gives them to say to those who may see the Bill as a chance to weaken workers’ rights that we are not going to let that happen: these rights are not up for grabs, they are non-negotiable and they will not be dumped at the end of 2023.

--- Later in debate ---

[Ms Ghani]

The Government have no intention of abandoning our strong record on workers’ rights, having raised domestic standards over recent years to make them some of the highest in the world.

The hon. Member for Walthamstow raised the issue of maternity rights. She has done a huge amount of work for women’s rights, as have I. I just find it incredibly unfortunate that both she and I have been defending and promoting women’s rights but that we might create an anxiety based on fiction and not on fact. The repeal of maternity rights is not and has never been Government policy. The high standards of maternity rights that I mentioned earlier have never been dependent on, or even mirrored, those of the EU; we have always gone a lot further.

Taking all that into account, I ask the hon. Member for Ellesmere Port and Neston to withdraw his amendment.

[Justin Madders]

I have quite a few things to say. First, the rehashing of the old arguments about a lack of scrutiny when the laws covered by the amendment were introduced is, as I said at length this morning, not correct. Even if people think that, the answer is certainly not to make it harder to scrutinise laws now.

[Stella Creasy]

Will my hon. Friend comment on the irony that the Minister has argued that we need to do this because we were never able to refuse a piece of legislation from the European Union, but at the same time is defending a piece of legislation that will not take back control to Parliament, but will give it to Ministers? Under the Bill, MPs will not be able to refuse or amend a piece of legislation that, like it or lump it, will come from No. 10 rather than Brussels. How is that taking back control?

[Justin Madders]

It is not taking back control, is it? Anyone who has read the Bill will understand that Parliament’s role will be severely restricted, and that is why the Opposition are worried about what will happen. The Minister cited a long list of measures that strengthened employment rights, many of them introduced under a Labour Government of course. Not all of them came from Europe—the minimum wage is not derived from European law. We want to see such rights protected.

I think the Minister is sincere in her desire to support equality, but her exact words were that there is no intention to remove any necessary equality law. I just question whose definition is used to decide what is necessary or unnecessary. What does that mean? That is why it is so important that we have a proper scrutiny process. If it is decided that no equality laws are unnecessary, they should be removed from the terms of the Bill all together.

[Peter Grant]

I will ask question that the Minister chose not to hear. The Bill runs to 37 pages, and we do not know how long the Government have taken to put it together, but we know that they had a month between First and Second Reading. In that time, at least 15 mistakes were identified in the Bill, because the Government themselves have tabled 15 amendments to correct mistakes in a Bill of 37 pages. The items of legislation subject to the hon. Gentleman’s amendment run to something like 360 pages. The legislation relating to this amendment alone is nearly 10 times as long as the Bill we are currently considering, yet the Government have so far identified 15 amendments that are required to the Bill. What confidence can we have that 360 pages of revoked legislation will have been properly gone through and assessed, and all properly put back into law in just over a year from now?

[Justin Madders]

We do not have a lot of confidence. The hon. Member is right to point out the amount of legislation to which just this amendment relates. We are trying to do the Government a favour by attempting to remove various legislation from the Bill. The Minister spoke about an over-bureaucratic process, and we can help with that by removing some regulations from the Bill so that they are retained in law. There is therefore no need to go through any bureaucratic exercise.

The Minister spoke about modernising health and safety law. To me, modernising can mean any number of things, and it does not always mean that law will be improved or rights increased. As we know, the Bill specifically prevents an increase in the legislative burden, and I think a lot of people may say that health and safety is a burden, although I certainly do not think it is; I think it is an absolute essential, but we know how it is characterised in some quarters.

I want to address head-on the claim that we are scaremongering, worrying people and causing anxiety by raising the issue. In order to remove such anxieties, the simple answer is to vote for the amendment, because then there would no question about those rights being protected.

[Paul Blomfield]

My hon. Friend is right. Had I had the opportunity to intervene on the Minister, and had she accepted my intervention, I would have asked why she failed to respond to the challenge from my hon. Friend the Member for Walthamstow to reassure the House simply by committing on the record that all the legislation listed in our amendments 73 and 76 would be replicated at least in full, and perhaps made better, and not lessened in any way whatsoever. As a starting point, the Minister could commit to put the legislation through before December 2023. Would my hon. Friend welcome that if the Minister were to intervene now to give that commitment?

[Justin Madders]

I guess that we are not going to get that assurance, and that shows why we were exactly right to table the amendment, and we will put it to a vote. I do not think that even Conservative Members when campaigning for election here put on their literature that they wanted to put workers’ rights at risk. I doubt the people of Grimsby, Orpington or Yeovil actually want to see a reduction in workers’ rights. It is time now to send out that clear message.

[Lia Nici]

The hon. Member mentioned my constituents of Great Grimsby. Actually, my constituents want to see Brexit laws rescinded, so that we do not continue under EU legislation. The reality behind the Opposition’s arguments is that they do not want us to go out of the EU.

[Justin Madders]

It may be news to the hon. Lady, but we left some time ago. I find that intervention interesting, because it rather suggests that there is an intention to weaken some workers’ rights. We have concerns, and I am afraid that the debate has heightened them.

[Stella Creasy]

Does my hon. Friend agree that it is worth having concerns when not only do Government Members prioritise removing anything that includes the word “Europe”, but the Minister seems not to know the complete history of maternity and pregnancy discrimination legislation in this country? The European Union held the UK Government to account with the pregnant workers directive in the 1990s because the UK Government sought to water down the protection of women. I am sure that Government Members would support the legislation on maternity discrimination introduced by their colleague, the right hon. Member for Basingstoke (Dame Maria Miller), which sought to move things forward, but we have not seen progress on that from the Government.

Ministers seem not to be fully aware of the history of European legislation when it comes to maternity rights and pregnancy discrimination; there has been a lack of action in response to proposals from Government Members; and we now have a piece of legislation that deletes rules simply because they have the word “Europe” in, with no guarantee of what comes next. Given all that, we understand why organisations such as Pregnant Then Screwed are campaigning on maternity and pregnancy discrimination. It is happening now, under this Government, and the Government are doing very little about it.

[Justin Madders]

I thank my hon. Friend for her intervention. I think there was a question in there somewhere. I agree with the general point that the fight for equality does not stop. It is always ongoing, and we have to look forward and ask ourselves what kind of country we want to be now that we have left the European Union. Do we want stronger workplace rights? Do we want equality in the workplace? Do we want to end discrimination? If we agree with those things, and certainly the Opposition do, the way to guarantee that we at least maintain the status quo is to vote for the amendment. My constituents will be considerably poorer over the next few years as a result of the economic decisions made by the Government. I do not want them to be poorer in rights as well, and that is why I will press the amendment to a vote.

[Brendan O’Hara]

Very briefly on new clause 4, it is extremely disappointing that the Government have dismissed what I believe was an easy opportunity to show that they were listening to genuine concerns that have been brought before the Committee. The information may be out there, but the fact that it is so difficult to find and has been described as incomprehensible by a qualified solicitor acting on behalf of trade unions should raise some concerns within Government. It really is not good enough to say, “It’s there. You just have to find it.”

All Governments have a duty to make things as transparent as possible. Now that the Government have been alerted to the fact that the information is incomprehensible, their casual dismissal of such fears as ridiculous does not bode well for those in the Opposition and outside the Committee who think we are on a one-way track to deregulation and the diminution of workers’ rights.

Question put, That the amendment be made.

--- Later in debate ---

Division 4

Ayes: 7

Noes: 8

[Justin Madders]

I beg to move amendment 75, in clause 1, page 1, line 9, at end insert—

“(2A) Subsection (1) does not apply to the following instruments—

(a) The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005,

(b) Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations,

(c) The Consumer Rights (Payment Surcharges) Regulations 2012,

(d) The Electrical Equipment (Safety) Regulations 2016,

(e) The Toys (Safety) Regulations 2011,

(f) The Control of Asbestos Regulations 2012,

(g) The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015,

(h) The Cocoa and Chocolate Products (England) Regulations 2003,

(i) Commission Regulation (EU) No 748/2012 of 3 August 2012,

(j) The Representation of the People (England and Wales) Regulations 2001, and

(k) The Bauer [C-168/18] and Hampshire [C-17/17] judgements.”

This amendment would exclude certain retained EU law which provides for consumer protections from the sunset in subsection (1).

[The Chair]

With this it will be convenient to discuss amendment 78, in clause 15, page 17, line 5, at end insert—

“(1A) Subsection (1) does not apply to the following instruments—

(a) The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005,

(b) Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations,

(c) The Consumer Rights (Payment Surcharges) Regulations 2012,

(d) The Electrical Equipment (Safety) Regulations 2016,

(e) The Toys (Safety) Regulations 2011,

(f) The Control of Asbestos Regulations 2012,

(g) The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015,

(h) The Cocoa and Chocolate Products (England) Regulations 2003,

(i) Commission Regulation (EU) No 748/2012 of 3 August 2012,

(j) The Representation of the People (England and Wales) Regulations 2001, and

(k) The Bauer [C-168/18] and Hampshire [C-17/17] judgements.”

This amendment would exclude certain legislation which provides for consumer protections from the power to revoke without replacement in subsection (1).

[Justin Madders]

Now that we are done with the forces of nature, I will take Government Members to the edge of panic again with more of what they will consider to be scaremongering—this time, about consumer rights. We are not trying to worry anyone; we are just trying to protect the rules that are already in place.

Amendment 75 prevents key consumer regulations and legislation from falling off a legislative cliff edge in a little over a year’s time, and amendment 78 removes them from the scope of the powers to revoke without replacement in section 15 of the Bill. To be clear, neither of the amendments is designed to tie the hands of the Government; in fact, they could be seen as doing the opposite. Leaving barely a year to process all the retained EU law could be seen in itself as tying the hands of the Government, although they seem very comfortable with that at the moment. The amendments remove the hard deadlines for these key pieces of legislation, preventing them from being removed without replacement or being watered down. That will free the Government to find ways to improve upon these rights in a considered manner, and—as was argued during the referendum campaign—make the most of our freedom to move beyond EU regulations to better and more appropriately protect consumers’ rights. I cannot see how Conservative Members could oppose these amendments, but I have a feeling that we may again be disappointed.

Paragraphs (a) to (k) of amendment 75 deal with only a fraction of the consumer rights that come under the scope of the Bill. However, these are some of the most important rights to our consumers and constituents, and their presence on the list of rights subject to the sunset date will no doubt cause unnecessary uncertainty. Taking a lead from my hon. Friend the Member for Leeds North West, I will go through some of the legislation we are seeking to protect—I will probably not take quite as long as he did, but I will do my best.

First, the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005 enact EU regulations that uphold rights in the commercial aviation sector. Its provisions include the right to compensation when flights are cancelled or delayed or boarding is denied, and giving priority to passengers who have a disability. I ask the Minister: are those rights meaningless red tape? They are important protections for Britain’s air passengers and should be maintained, not under the threat of being sunsetted in a year’s time without any replacement.

Of course, it is not just the protection of air passengers’ rights that falls under that sunset date. Key protections for Britain’s rail passengers are also included in the retained law that implements regulation 1371/2007 of the European Parliament and the Council. It contains provisions that impact all aspects of taking a train in the UK, including, rather topically—I am sure many Members will be aware of this—stipulations on passengers’ right to receive compensation, and the amount of compensation they are entitled to, when a train is delayed or cancelled in the form of the Delay Repay system. That system is probably getting more visits than the Government’s retained law dashboard at the moment. The regulation also contains important rights to accessibility assistance at platforms and on train services, maintaining a lifeline for many of the people who rely on that form of transport. Why can the Government not accept that those rights should be retained?

Paragraphs (c), (d) and (e) of amendment 75 are all examples of how retained EU law protects the rights of our high street shoppers on a daily basis. The Consumer Rights (Payment Surcharges) Regulations 2012 prevent shops from imposing surcharges that go beyond the coverage of costs; the Electrical Equipment (Safety) Regulations 2016 are technical and sweeping, yet are crucial in protecting consumers from unsafe electrical equipment by setting standards for the testing of products and the voltages of appliances; and the Toys (Safety) Regulations 2011 impose minimum safety standards on products sold for children’s consumption.

The amendment does not only name consumer protections that maintain high-quality standards on products and services; it also deals with how to deal with disputes under the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015. Under those regulations, consumers have a clearer route for out-of-court settlements when they have a dispute over a product. In essence, they facilitate, through an impartial body, the ability to claim compensation. Given the amount of litigation that this Bill will generate, it is a good idea to continue to divert people away from the court process if an alternative is possible.

--- Later in debate ---

[Stella Creasy]

We come to a list of things that surely leads Members of different parties to think, “Of course we’re going to retain these pieces of legislation. Why even give it a second glance?” I am absolutely confident that Government Members will say to us, “Don’t scaremonger. Of course people will still be able to get compensation if their flight is delayed.” The trouble is that we do not have from the Government anything like a list of what will exist post 2023. That is the challenge, as these are probably the pieces of legislation that our constituents rely on most of all, because they deal with people’s everyday transactions. They are matters about which people get extremely agitated, because it feels incredibly unfair if someone’s flight is delayed or they suddenly discover that they have bought something that is faulty. People expect to be able to get redress as a matter of course.

In a former lifetime, I had the sheer joy of being the shadow consumer Minister. I encourage all Members to come shopping with me—if nothing else, most employers try to get me out of the shop quickly by offering a very good deal by the end of the transaction, because I was involved in writing the Consumer Rights Act 2015. These sorts of requirements shaped that piece of legislation, and they did so with good reason, because where is the partisan argument about the Electrical Equipment (Safety) Regulations 2016? We may disagree about the impact of workers’ rights on our economy—clearly, we do. Government Members did not want to save bank holidays, and that is their call, but surely we all agree that somebody should be able to plug in a toaster and not have it blow up or cause them harm, and that having regulations is not onerous but sets a level playing field. Most businesses, which are good actors, want to be confident that they will not be undercut by somebody selling faulty goods.

I know that the hon. Member for Bosworth will be relieved to hear that the regulations do not cover charging cables for phones and iPads—so they can play as much music as they like. However, they do cover whether goods are of a certain standard. Having goods of a certain standard is surely not something that we want to put up for grabs, because if we do, over the course of the next year—assuming that we find time for all the DEFRA pieces of legislation and for working out whether workers’ rights will be replaced or changed—we will then have to find time to deal with all these pieces of legislation.

Members may feel more strongly about some pieces of legislation than others. As I say, not being able to get a refund when someone has been mis-sold something, or has experienced a delay, is a cause of high concern for many people. Often, it is something that they will come to their Member of Parliament about, so I would not want to be the MP explaining that I had deleted people’s right to compensation and did not know what was going to come next. I would be giving a green light—unusually for some of these companies, because many of them operate with red lights.

[Justin Madders]

It just strikes me that the idea of someone coming to their Member of Parliament and saying, “This isn’t what we asked for, and we would like a refund,” is what we are dealing with in the Bill. I do not think that many people who voted to leave the European Union voted to remove all the laws that we are talking about.

[Stella Creasy]

I would certainly be happy to refer them to any consumer champion, because I think they would have a very strong case that they were not getting compensation in reasonable time and in a reasonable format, which is obviously what the Consumer Rights Act—it is a piece of UK legislation, but it echoes the requirements—does.

There are other things on the list, which is not comprehensive but is authoritative—after all, we have been told that that is acceptable—about the sorts of things that surely we should all want to put beyond doubt, such as when people’s pensions are at risk. We have all had cases in our constituencies of pensioners whose pensions were put at risk. They may have worked for companies that went bust, and now they need protection. I absolutely want to take up the challenge about not frightening vulnerable people. The pension protection fund itself would not disappear, because that is part of UK legislation, but the challenge is that the Bauer and Hampshire judgments set out what that fund can do. The issue is not that there would not be someone to whom we could refer our constituents, but let us be clear: if we delete the relevant legislation and do not replace it, that organisation will start to query what it can do to help our constituents. That may mean that they end up with a lower level of compensation.

It could be the same when it comes to people having their flight or train delayed. The Delay Repay claims have given most people a level of certainty and confidence about their travelling, and I think we all want to see that reinforced—we all think people should have a fair deal. Why would we therefore spend parliamentary time rewriting something that works? Why would we put up for grabs the amount that people can be charged for using a debit card, when many of our constituents are trying to use them to manage their finances because there is too much month at the end of their money? Why would we do that?

Why would we again put the content of chocolate up for grabs? Come on. We have seen what happened to Cadbury; we have all tasted the difference. Anyone here knows the limitations of Hershey. Yet here we are again, rewriting laws that we brought in to protect things so that consumers could have confidence and go about their business every day. That is the point about all this. It is not about leaving the EU; that has happened. It is not about an objection to leaving the EU; that debate has happened. It is about an objection to deleting laws we all agree on, and the waste of time that the legislation creates, especially in terms of consumer protection.

Again, I offer the hand of friendship to the Minister, although I am sure she will bite it off with glee at this point in the afternoon. If she can tell us precisely what will replace the regulations listed in the amendment, and commit that our constituents will retain the protection of those standards, she will have my support. That is the purpose of the amendments. If she can tell us what will happen to the Representation of the People (England and Wales) Regulations 2001, she will have our support, because people want that certainty. The parts of EU law to which the amendment relates refer to those bits of everyday life where people do not want the headache of uncertainty. I hope that the Minister will take up that offer, finally, as we consider the third list of regulations.

Now that we have been through some of the laws in question, I hope the Minister’s colleagues understand what is at stake. This might be a process, but we must remember the impact of it and the uncertainty that it creates. There is a risk that Ministers and MPs will sign off a piece of legislation only to find themselves having to explain to their constituents, “Ah yes, I was told that there wouldn’t be a dilution of your rights to compensation, but the Minister came forward with a change and, like with those pesky EU regulations I said I could not amend, the Minister has told me that I’ve got to like it or lump it.” Remember, the Bill does not offer any scope for amendment. I do not think Conservative Members would want to be in that constituency surgery explaining to somebody that, if they have been done over by Mastercard, they have been done over, or that their chocolate will have to taste bitter. That would be a bittersweet conversation.

[Ms Ghani]

I urge the Committee to reject amendments 75 and 78. The issue of scrutiny has come up again, and I find myself repeating that, as well as the dashboard, Departments will be expected to develop a delivery plan to outline their intention for each piece of retained EU law. I will try to go through each of the points raised to satisfy some of the questions.

A question was raised about electrical equipment and toy safety. Our current product safety framework is largely a mix of retained EU law, domestic law and industry standards. As a result, it can be complex and difficult to understand. The Government remain committed to protecting consumers from unsafe products being placed on the market now and in the future. Although the Bill is unlikely to give us the powers needed to implement a new framework, we hope that the powers in it will make it possible to amend or remove outdated EU-derived regulations and give us the ability to make some changes to reduce burdens for business.

[Justin Madders]

Can the Minister give us some examples of those outdated regulations?

[Ms Ghani]

That is the beauty of each Department putting together their delivery plan. Their own teams will be able to put forward the pieces of REUL that they will assimilate, update or remove. That is the beauty of the programme; it works across each Department.

A question was raised about consumer disputes. The Government are committed to a consumer rights framework that protects consumers and drives consumer confidence, while minimising unnecessary cost to business. Core consumer protections, as set out in the Consumer Rights Act 2015, remain unaffected by the REUL Bill. The Government will maintain their international commitments on consumer protection. We will bring forward proposals to address REUL that impacts consumer protection using the powers in the Bill or other available legislative instruments. The UK regime sets some of the highest standards of consumer protection in the world, and this will continue to be the case.

--- Later in debate ---

[Ms Ghani]

As I mentioned earlier, it is up to Departments and devolved Administrations as to what they would do on specific pieces of policy. The Bill creates the tools for Departments. Plans will be approved by a Minister of the Crown—I know that Opposition Members object to that—or a devolved authority where appropriate, and will be shared when ready, given that this is an iterative process that is still ongoing. I therefore ask the hon. Member for Ellesmere Port and Neston to withdraw the amendment.

[Justin Madders]

I think we got a real mix there of things that the Government intend to continue with, but also—I am particularly concerned about how this relates to the Bauer judgment—things that they do not wish to continue with. But the underlying theme, the stock answer or explanation, was that Departments will put forward their delivery plans in respect of these REULs in due course, and that simply is not good enough.

[Stella Creasy]

Given that the Minister would not let me intervene on her earlier, I want to clarify that she appeared to give us our first piece of evidence about what the Government intend to do with this Bill, when she said that they do not intend to continue with the Bauer and Hampshire judgments, which require pension protection funds to pay out half the value of people’s pension if their employer goes bust. Does my hon. Friend agree that we have finally seen, for the first time today, what the consequences of this legislation are? That is why we are all so worried: because protection for employees is being withdrawn by this Government. The Minister has just confirmed that—perhaps she wants to intervene to say that that is not the case, although that is what she said, and she does not look like she is about to get up. Does my hon. Friend therefore agree that at least now we have seen why we should all be so worried by this legislation?

[Justin Madders]

I thank my hon. Friend for that intervention. It has taken us perhaps five or six hours to get to that point. We now finally see why we are right to be concerned about this process, why it is important that we put in proper scrutiny safeguards, and why we want to see certain pieces of legislation exited from the Bill so that they are not lost. Pension protection is an important issue. My predecessor, the late Andrew Miller, did an awful lot in that regard when he represented Ellesmere Port and Neston. An awful lot of people in my constituency have benefited from the Pension Protection Fund. If we are to see a reduction, we will no doubt explore that with the relevant Department. For now, we will do our bit to protect these regulations and the others mentioned in the amendment by pressing it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Ms Ghani]

Government amendment 4 clarifies the power to make transitional provisions for the sunset. Transitional provisions are provisions that regulate transition from the existing law to the law as it will be amended by the Bill. For instance, transitional provisions could be made to ensure that laws that fall away after the sunset will continue to apply to certain types of ongoing contracts after the sunset date if the contracts were entered into on the basis of those laws applying. Consequently, the amendment ensures consistency for businesses and citizens following the sunset’s effects. That is highly important, given the role the Bill will play as a key driver for growth. I trust that Committee Members will support consistency and growth for British business and citizens, and I ask them to support these amendments.

[Justin Madders]

I will not speak for long. Will the Minister explain what the procedure will be, particularly for dealing with amendments to regulations under Government amendment 4? That is important. I think I understood the Minister’s train of thought, but if she could explain what that process will be and what opportunity there will be for parliamentary scrutiny, I would be grateful.

[Stella Creasy]

The Minister is not allowing questions, so will she provide clarification? It is absolutely normal to have amendments to legislation, but it is not normal to delete all the legislation and then try to amend in a lacuna. Will she clarify whether she recognises that these amendments need to be put forward because the legislation, as currently drafted, is not correct? She will know of other legislation that has had to be drafted—indeed, statutory instruments have come forward. What provision—what backstop or safety net—is in place, should something be deleted and should a change need to be made by this legislation in that absence? Will that law remain on the statute book, or will we simply see potentially thousands of amendments needing to be made but no legislation to be amended? If the Minister could take questions, she could probably reassure all of us on these questions. I do not think they are unreasonable ones to ask—she has raised the point.

--- Later in debate ---

Extension of sunset under section 1

[Justin Madders]

I beg to move amendment 72, in clause 2, page 2, line 5, leave out “Minister of the Crown” and insert “relevant national authority”.

This amendment provides devolved assemblies the power to make the decision to delay the sunset of legislation, and not just a Minister of the Crown.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 31, in clause 2, page 2, line 8, at end insert—

“(1A) Subsection (1) has effect in relation to provision which is within the competence of the Scottish Ministers as if, after “A Minister of the Crown”, there were inserted “or the Scottish Ministers”.

(1B) A provision is within the devolved competence of the Scottish Ministers for the purposes of this section if—

(a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament, or

(b) it is provision which could be made in other subordinate legislation by the Scottish Ministers, the First Minister or the Lord Advocate acting alone.”

New clause 5—Extension of sunset to 2026 under section 1 by Scottish Ministers—

“(1) The Scottish Ministers may by regulations provide that section 1, as it applies in relation to a specified instrument or a specified description of legislation within section 1(1)(a) or (b), has effect as if the reference in section 1(1) to the end of 2023 were a reference to a later specified time.

(2) In subsection (1) “specified” means specified in the regulations.

(3) Regulations under subsection (1) may not specify a time later than the end of 23 June 2026.”

This amendment would give the Scottish Ministers a power to extend the sunset date for devolved retained EU law equivalent to that conferred on a Minister of the Crown by Clause 2 of the Bill.

New clause 6—Extension of sunset to 2029 under section 1 by Scottish Ministers—

“(1) The Scottish Ministers may by regulations provide that section 1, as it applies in relation to a specified instrument or a specified description of legislation within section 1(1)(a) or (b), has effect as if the reference in section 1(1) to the end of 2026 were a reference to a later specified time.

(2) In subsection (1) “specified” means specified in the regulations.

(3) Regulations under subsection (1) may not specify a time later than the end of 23 June 2029.”

This new clause confers a power on the Scottish Ministers to modify the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation may take effect, to a date no later than 23 June 2029.

[Justin Madders]

I will not detain the Committee long. We have ventilated a lot of the arguments about amendment 72 already in relation to why the 2023 deadline —or cliff edge—is unacceptable. The amendment would give the power that UK Government Ministers feel able to retain for themselves to extend the cliff edge to 2026 to the devolved authorities. There is no reason why we should have a different approach in the devolved authorities from that of the UK Government. Again, when we get into questions of devolved competency, it is clearly appropriate that those provisions should apply to devolved nations as well. We have already discussed these issues at length so I will not detain the Committee any longer.

[Brendan O’Hara]

I shall speak to amendment 31, tabled in my name and that of my hon. Friend the Member for Glenrothes. The amendment is crucial and goes to the heart of the whole debate. It seeks to clarify exactly which provisions the UK Government consider devolved and would therefore fall under the competence of Scottish Ministers, and which provisions would be reserved to the UK Secretary of State.

When this place passed the Scotland Act 1998, it listed areas of competence that were reserved. Everything that was not on that list was considered to be devolved. Yet in terms of the Bill, and with particular reference to the Government’s published dashboard, remarkably we still do not know exactly which areas the UK Government regard as reserved and which they consider to be wholly devolved.

Of course, it could be argued with some justification that the United Kingdom Internal Market Act 2020 knowingly created that confusion, and deliberately blurred the hitherto clear lines of demarcation between powers that had been devolved and powers that were reserved. Prior to the passing of the 2020 Act, it had long been accepted that environmental health, food standards and animal welfare were wholly devolved to the Scottish Parliament, but since its passing we have seen a significant encroachment by the UK Government and Ministers into policy areas that hitherto have been wholly devolved. That not only goes completely against the spirit of devolution, but directly contravenes the Sewel convention, which in 2016 was given statutory footing in the 1998 Act.

As a result, the Bill, in tandem with the 2020 Act, threatens to further undermine the devolution settlement by giving primacy to UK law in areas that have been wholly devolved, meaning that legislation passed in the Scottish Parliament to keep us in lockstep with European Union regulations could be overruled by the Government in Westminster, so I have a number of questions for the Minister. If the Scottish Parliament decides that we will remain aligned to the European Union and re-ban the sale of chlorinated chicken, but this place decides that cheap imported chlorine-washed chicken is acceptable, will the Scottish Parliament have the power to stop lorryloads of chlorinated chicken crossing the border and appearing on our supermarket shelves—yes or no?

Similarly, should the UK agree a trade deal that allows the importation of hormone-injected meat, but the Scottish Parliament decides to protect Scottish consumers and farmers by adhering to the standards and protections that we have now, can the Minister guarantee that under the provisions of the Bill the Scottish Government will be able to prevent hormone-injected meat from reaching Scotland’s supermarkets—again, yes or no? If we decide to retain long-established best practice in the welfare and treatment of animals entering the food chain but Westminster chooses to deregulate, will she give a cast-iron guarantee that the Scottish Parliament will be able to stop animals whose provenance is unknown and whose welfare history is unaccounted for from entering the food chain—again, yes or no?

Under the terms of the devolution settlement, the answer to all those questions should be an unequivocal yes, but despite us and the Scottish Government asking several times, we have been unable to get those guarantees. That is why amendment 31 is vital. I would be enormously grateful if the Minister could give clear, precise and unambiguous answers to my questions.

--- Later in debate ---

[Peter Grant]

The Minister’s clarification in response to my hon. Friend the Member for Argyll and Bute’s questions has been about as clear as mud. On the basis of that response, I sincerely hope that my hon. Friend will stick to his guns, move his amendment and push it to a vote. Either the Minister genuinely does not get devolution, or she gets it and is trying to roll it back, because the whole point of devolution is the recognition that there are four distinct identities, at the very least—four distinct sets of needs and priorities—within the four nations of this Union. Arguably, England could be split into several autonomous regions as well if the people of those parts of England so desired.

I think the fault line is that the Minister continually expects the people of Scotland to be reassured when she says, “This is not what the Government intend to do with this new power. This is not what the Government intend to do with this new legislation.” I mean nothing personal against this particular Minister when I tell her that the people in Scotland do not trust this Government. The people in Scotland have never trusted a Tory Government and never will, so if the reassurance that the Minister wants to give my constituents and constituents of other colleagues in Scotland is “We promise you that although we’ve got this power, we will not do it to you”, that will not be enough. The one way to make that promise credible is to say, “We are so determined not to do this to you that we are not going to take the power that would allow us to do it. We are going to make a law that would prevent us from doing that.”

The Minister still has not answered my hon. Friend the Member for Argyll and Bute’s questions, so maybe I can ask them in a different way. Who does she believe should have the right to decide whether chlorine-washed chicken or hormone-injected beef should be allowed to be sold in shops in Scotland? Is that a decision that rightfully belongs with the Parliament of Scotland, or does it belong to this place?

[Justin Madders]

To follow on from what the hon. Member for Glenrothes has said, I think the Minister misunderstands the point of devolution if her main argument against these amendments is that we cannot have different deadlines and laws in different jurisdictions. The whole point of devolution is that each devolved nation is able to decide the laws that sit within its devolved competence. I will not push our amendment to a vote, but the answers we have received this evening are pretty inadequate.

[Brendan O’Hara]

We will press amendment 31 to a vote. I am far from satisfied with the answer that the Minister provided. We recognise that there is a power grab taking place and this Government are coming for the powers of our Parliament.

Shortly before Second Reading, I met the National Farmers Union Scotland in my constituency of Argyll and Bute. It recognises that this legislation is a potential death sentence for the Scottish agricultural sector. In rural areas, such as my constituency, the farmers require a hefty subsidy to manage the land, keep their lights on, provide employment and stem rural depopulation, while producing high-quality, high-value beef, lamb and dairy products. This legislation is a death sentence for Scottish agriculture.

Tomorrow morning I will again meet a delegation from the National Farmers Union Scotland here in Westminster, and I will be sorry to have to report to them that we have received no assurances whatsoever about the protections that this vital industry needs. That is why it is essential that we push amendment 31 to a vote.

[Justin Madders]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 31, in clause 2, page 2, line 8, at end insert—

“(1A) Subsection (1) has effect in relation to provision which is within the competence of the Scottish Ministers as if, after “A Minister of the Crown”, there were inserted “or the Scottish Ministers”.

(1B) A provision is within the devolved competence of the Scottish Ministers for the purposes of this section if—

(a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament, or

(b) it is provision which could be made in other subordinate legislation by the Scottish Ministers, the First Minister or the Lord Advocate acting alone.”—(Brendan O’Hara.)

Question put, That the amendment be made.

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

Justin Madders Excerpts

Committee stage
Tuesday 8th November 2022 Public Bill Committees

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

Q67 Good afternoon, Sir Gary, and good afternoon, gentlemen. You all have a great deal of experience in advising people. You will be familiar with clause 7 in particular and the impact on domestic law. Could you say a little about how significant or insignificant you feel that is going to be in terms of creating certainty, and what the impact will be on the legal system?

Jack Williams: I am happy to begin if that is okay with the other panel members. Clause 7 obviously has a number of different aspects to it. If I may, I will start with the departing from retained EU and domestic case law aspects, before turning to the domestic reference procedure, because I think the implications of both are significant.

The first is essentially a nudge to the courts—a gentle nudge but a nudge none the less—in order to encourage greater departure from retained case law. It achieves that by essentially modifying the test for when certain courts—the Court of Appeal upwards, generally speaking —may depart from retained case law, and it does so by listing three particular factors. As a normal matter of statutory interpretation, when certain factors are listed, they are to be given greater significance and weight. Each of those factors in its own terms is encouraging departure. What you do not see there, for example, which was very clear in the House of Lords practice direction, which this is moving away from, is whether it is right to depart from case law, based on legal certainty grounds and taking into account that change in case law by judges necessarily is different from changes that the politicians and Parliament bring into force prospectively. That has implications for certainty, because one does not know what cases the judges may or may not apply, but also for something that has not been discussed this morning: the separation of powers. This puts an awful lot of policy decisions in the hands of judges.

[Justin Madders]

Q Does that mean that, in essence, developments will be dictated by what case law comes before the courts?

Jack Williams: It does dictate what matters are litigated and which arguments parties run, particularly because litigators and our clients will have a number of different options going forward. Does one wait and see how the first-tier judge deploys the retained case law and whether one can convince them to depart from it directly by distinguishing it, so that one is not actually changing the law but departing from the EU principle? Or does one ask now for a reference at first instance stage, which would add in delay and costs, and go off the Court of Appeal, for example, to argue whether that case should remain the law or not? This raises a number of strategic questions that I am sure we will debate in this session.

Sir Richard Aikens: I agree with everything that Jack Williams has said, but, in my experience at least, it is likely that judges will take a very conservative view on the question of deciding whether to depart from retained EU case law, and an even more conservative view about departing from retained domestic case law, which is itself based on what was European case law as applied by judges in the United Kingdom. That is just the nature of the judicial animal: he or she is very conservative and, as Jack Williams said, they will be very reluctant to tread into areas that might be seen as policy or more political. Such departures would obviously have to take account of the statutory considerations that are set out in clause 7(3) and (4), but even when taking them into account, I suspect that judges will be very reluctant to change things—we will see.

On the other aspect, I wonder whether getting a reference to a higher court will be of any practical use at all because of the delay and expense. Unless you have two parties for whom money is no object, money is a very big consideration, especially in civil matters—these are all civil matters—in which, in the vast majority of cases, you do not have anything such as legal aid. The prospect of something going to a higher court and then perhaps coming back again is not something that parties will consider lightly. I really wonder whether it is a practical proposition.

[The Chair]

Do you want to come in on that question, Mr Reynolds?

Barney Reynolds: The provision is drafted in a very limiting and narrow way. It gives three examples of things that the court should have regard to when considering whether to depart from EU case law, and those three are pretty extreme instances. The first is that you are not banned. The second is a change in circumstances, but it is possible to make a departure under our system anyway if there is a change in circumstances. And the third is if we think that the retention of the EU case law decisions begin to affect adversely the development of our law. Again, that is pretty narrow. I do not think that the Bill as drafted is going to have a dramatic effect. In fact, I would even consider going further in the text by adding to those examples.

It seems to me that—this is true of the Bill as a whole—there is a tension here between lawyers wanting legal certainty, continuity and so on, which is all perfectly justifiable, and the fact that we are going through a constitutional change and need to effect that change. India has taken until only recently to get rid of its version of the Companies Act 1948, but that is a fellow common law country. We are moving from an alien legal system to our own, and our methods are different. The sooner we get on with it, the better.

That transition—this is just in the context of case law, and the same goes with the provisions—inevitably involves some element of change and some element of legal uncertainty. But I think our lawyers will coalesce with the judges around revised interpretations of provisions very quickly. I observe that, in terms of expanding the provision in clause 7(3), for instance, one of the key methods of interpretation that the EU adopts is its own version of the purposive method of interpretation, which of course—

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

It is hard to hear you. I wonder whether it is because you are between two microphones. I am sorry.

Barney Reynolds: One of the EU’s methods of interpretation is its version of the purposive method of interpretation, which we also have—we look at Hansard and so on when things are not entirely clear—but it is very limited in its use here. We basically go on the meanings of the words on the page, whereas in the EU, the purposive method, which they leap to pretty quickly in the courts, involves trying to work out the intentions of the legislators behind provisions. In the EU context, that includes ever closer union and various other purposes that are alien to our country and our system—as it now is, at the very least.

As I say, it seems to me that the sooner we get on with it, the better. Clause 7(3) is pretty anodyne. I would consider expanding it, and I would not get too troubled by the fact that moving from A to B—that is, where we are now to where we want to get to—potentially involves some element of legal uncertainty that would not otherwise arise. If we wanted perfect legal certainty, we would do nothing.

[Justin Madders]

Q As an aside, when I quoted Hansard when I was in practice, I usually felt that that was because I did not have much else to go on. I go back to what Sir Richard said about the cost to parties of litigating these references. A lot of the EU regulations are consumer or employment rights-based. Unless you are a member of a trade union or have legal expenses insurance, you are not likely to have the resources to litigate cases upwards. Will that create an issue regarding access to justice if some of these issues get taken up?

Sir Richard Aikens: It is difficult to say. I cannot give you express examples, of course, and I am concerned only with the process, rather than any particular provisions that might be tested. Here, after all, we are looking at the issue of what the case law says, and how the case law has interpreted any particular EU regulation, directive and so on. It may be rather more limited, but as soon as you get into litigation, there are costs. We cannot get away from that.

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

Q I apologise for my phone ringing; I have switched it off. Mr Reynolds, the evidence in front of me suggests that you know a lot about business, and you have commented on the issue for a while. As someone who works with business all the time on regulatory affairs, do you think the Bill will add unnecessary additional costs and uncertainty, as others have claimed, or do you consider any such risks to be manageable or even beneficial?

Barney Reynolds: I think it will be beneficial as soon as we get through the process. Our system delivers greater legal certainty, which business craves, than the code-based method that we are coming out of, which has swept through our law in a number of areas, including my practice area, financial services law, which is almost all from the EU. I see it day to day. When we come out the other side—how quickly we get through is up to us—I think we will get those benefits.

The transition will probably involve some element of uncertainty arising from that, inasmuch as reinterpreting provisions interpreted using these EU techniques under our system, or wondering whether a judge is going to retain some of that element of interpretation or move completely to our own method, is unclear at the very beginning. I think that very quickly, after a few early court cases, we will get certainty on that. In fact—it is very interesting to hear Sir Richard talk—I think that the judges themselves will do their absolute utmost to make sure that legal certainty is there through the transition, and I would trust that process to work well. I have no real concerns even about the transition. Yes, there could be things that go wrong. If we try to craft it so that there is no conceivable possibility of something turning out in an unexpected way, we will deny ourselves the benefits that I have mentioned.

--- Later in debate ---

[The Chair]

Thank you. We will start, as usual, with our shadow spokesman, Justin Madders.

[Justin Madders]

Q Good afternoon. I start with a question for you, Dr Fox. The Hansard Society report described this Bill as flawed. Would you like to expand on why you say that is the case?

Dr Fox: The fundamental concern we have, as you have heard from other witnesses, is with the sunset clause and its cliff-edge nature. It is also the fact that Ministers will decide which pieces of retained EU law will expire at the end of next year and Parliament will not have any oversight of what falls away. It has been variously described as being turned off, but that implies that it might be turned on again at a later date. It cannot; it will fall away and expire.

The concern is there could be pieces of retained EU law that have been missed. We have heard today that there is a possibility that a significant proportion of retained EU law has been missed from the Government’s dashboard, so we do not know exactly what the scope of retained EU law is. If pieces of legislation have not been identified and saved by the expiry date, they will fall away and we may have regulatory gaps. That is a significant concern for Parliament’s oversight of the regulatory landscape going forward. That is our primary concern: the cliff-edge nature of the sunset clause and the fact that the Government’s objectives, in our view, could be done in a different and less risky way.

[Justin Madders]

Q You referred in your report to the withdrawal of the scrutiny powers in the European Union (Withdrawal) Act 2018 in clause 11. Could you explain what that refers to and why it is a concern?

Dr Fox: There were provisions in the European Union (Withdrawal) Act providing additional consultation periods for proposed instruments under the Act. They ensured additional oversight for Parliament. Although the Government are proposing to remove those provisions, that is not a major concern for us because the Government are, frankly, right that there has not been much tangible benefit to that process, because parliamentarians have not used those oversight provisions. For example, when statutory instruments have been laid for pre-consultation for 28 days, parliamentarians have not looked at them. They have not raised issues about them and a Committee has not looked at them.

The House of Lords has done marginally better. Its Secondary Legislation Scrutiny Committee has looked at the instruments, but the Commons has not. It is hard to argue that they need to be retained. There have been problems with them from a civil service perspective because it is complex to determine which of the consultation and oversight provisions apply to the instrument in front of them. Mistakes have been made and they have had to withdraw instruments and lay them again. I do not have a major concern about that, but there are broader scrutiny issues in terms of sifting in the legislative and regulatory reform order process.

[Justin Madders]

Q Could you set out what would make a proper scrutiny process for this legislation?

Dr Fox: You are inviting me to give away the Hansard Society’s review proposals before we have published them! We all know that the delegated legislation scrutiny process is, at various points, inadequate for everybody concerned. Ministers spend a lot of time attending delegated legislation Committees, carving out significant time in their diaries. You all spend time in those Committees and feel that they are not necessarily a constructive form of scrutiny and oversight. There are lots of problems with the process.

The triage system applied to European Union (Withdrawal) Act orders was a technical sifting of instruments. Those who participated in European statutory instrument Committees found that it was a useful exercise but a very technical and legal process. We feel that that could be widened and expanded. There is no reason why sifting could not apply to all the instruments laid under the Bill rather than just to those laid under three specific clauses. That would have implications for parliamentary time and management, but it could be a way of improving scrutiny. We would certainly extend sifting to clause 16, for example, which is quite an extensive power that is not sunsetted. Those are possible ways to improve scrutiny.

[Ms Ghani]

Q I feel that this is the right time to correct the record, because I am sure that Dr Fox would not want to say anything inaccurate on the record. Earlier, you referenced a National Archives story in the press, Dr Fox. We do not often talk about leaks, but I think you said either that it was “uncovered” or that it was “discovered”. For the record and for the Opposition’s understanding, the Government commissioned the National Archives to investigate whether anything else needed to be explored, and the number of the laws still in force has not been verified. I do not think it is appropriate to continue to use misleading language about a story that has not yet been verified, or to leave people in doubt about where the work came from.

Dr Fox and Sir Jonathan, you are not comfortable with what the Bill proposes, but I get the feeling that you are probably just not comfortable that we are trying stop EU law continuing to sit on the UK statute books for ever without us having any power to amend it. Is that the case, or do you see a time in the future when it would be appropriate to move EU laws off the UK statute books? I will come to you first, Dr Fox.

Dr Fox: I reject that. I am up for change and quite embrace it. This was the purpose of Brexit, was it not? We should therefore get on with it. I do not object to your objectives; I object to the particular nature of the process and procedure by which you are proposing to achieve them, which is unduly risky.

If, for example, you do not find a regulation or a piece of retained EU law and so do not deal with it by next December, it will fall away. You cannot know the implications of that if you do not know about, and have not dealt with, the existence of the regulation—that is my concern. As I set out in our written evidence, I think you could achieve your objectives, and indeed my objectives, in a different way.

Sir Jonathan Jones: I agree with that. Plainly, I have no objection to Parliament changing any law it wants, be it former EU law or any other law. I am sure that the EU law that we inherited when we left the EU is a mixed bag, and that some of it is ripe for review and change.

Like Dr Fox, the difficulty I have with the Bill is twofold. First, it creates a huge amount of uncertainty as to what the law will actually be by the end of 2023 or thereafter, because there are no policy parameters on what might change, what might stay or what might fall away. That is quite aside from the risk you have heard about—that some law might fall away simply by accident, because it has been missed, which creates a huge amount of uncertainty for users of the law.

The second issue that I have difficulty with is the lack of scrutiny—an issue that I know you keep coming back to and that Dr Fox touched on—by Parliament itself of the process. In the Bill, Parliament is not being invited to consider particular policy areas or particular changes to the law; it is simply signing off on a principle and a process, and I would say that the principle and process carry with them all that legal risk as to what the outcome will be. Those are the difficulties that I have. It is not a difficulty with Parliament being able to change any law it wants, including former EU law, whenever it wants to; it is the process being followed that I have difficulty with.

--- Later in debate ---

[The Chair]

Thank you very much. I see no further questions, but I think a point of order is about to come.

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

On a point of order, Sir Gary. With reference to the Minister’s clarification earlier in respect of the story about the National Archives, from what she said I understand that that was work commissioned by the Department. I seek your guidance on a process by which the Committee will have the full information about that report and, in particular, on whether more laws will be covered by the ambit of the Bill. The situation is unusual, but a written statement by the Minister or a letter to the Committee might be appropriate as a way ahead.

[The Chair]

That is not a point of order for the Chair. I know the Minister—a very helpful Minister—will have heard the point, and I am sure something positive will be forthcoming.

--- Later in debate ---

[The Chair]

Thank you. I am sure that some of the questions—perhaps even some of the early questions—will draw that out from you. I call Justin Madders.

[Justin Madders]

Q Indeed. That seems a nice point to start. Could you set out your understanding of which employment laws will be covered by the Bill? Could you explain what some of the effects might be on certain groups?

Shantha David: As we know, the Bill in the abstract looks at removing EU-derived laws. What we do not understand is how, if the provisions are sunsetted, that will strip away some very basic employment rights. I thought I would set some of those out.

For example, through EU-derived provision, the UK allows for 20 days of statutory annual leave. That will no longer survive if the provision is sunsetted. There is also protection for eight additional bank holidays, which is derived from the UK but is contained in the working time regulations. It is unclear whether those provisions would go, along with the 20 days of statutory leave, leaving UK citizens with no provision and no statutory annual leave entitlement.

Other typical basic employment rights are things such as the TUPE—transfer of undertakings (protection of employment)—regulations and protections, which I am sure you will know about. Those preserve an employee’s employment where their employment is outsourced or brought back in house, or where an employer’s business is bought out by another. Those employees are protected from dismissal. Their terms and conditions are also protected from being varied because of the transfer. If TUPE legislation goes, those sorts of employees could be sacked with no legal recourse, so it is unclear what would happen to them.

Family-friendly provisions are contained in a variety of different legislation. They are derived from the EU, as well as through Acts of Parliament. It is a tapestry of rights. Basic rights to maternity and paternity leave fall under the Employment Rights Act 1996, but the specifics in terms of the length of leave, who is eligible for that leave and payment of leave comes through EU provisions. Given the lack of information, it is unclear what will survive and what will face the chop.

There are other protections, such as part-time worker regulations and fixed-term regulations, which allow for parity of treatment for those types of workers. Again, those provisions will disappear overnight.

There are other provisions, such as the Equal Pay Act 1970. There are certain facets of that Act that are derived from Europe. Where there is a single source of payment for people’s terms and conditions, an employee can compare themselves with employees at a different establishment. Again, there are cases in the tribunals and courts at the moment dealing with this particular point. Removing the principle of direct effect will mean that these women in particular can no longer rely on the principle of equal pay for work of equal value. These are just some of the rights. There are many more, but we will provide written evidence if that is helpful.

[The Chair]

That was a point very strongly made.

[Justin Madders]

Q I want to return to one point you mentioned, which was interesting because it contradicted what some of the witnesses said earlier on. They said that one reason we do not need to worry too much about parliamentary procedure for removing these rights is because we did not have proper parliamentary procedure in the first place—it was imposed on us by the EU. You gave the good example of the eight days’ holiday pay, which was a decision by the UK Government. That was not actually imposed by the EU. Are there other examples of UK Government decisions or enhancements to EU regulations that will be lost as a result of this Bill?

Shantha David: Yes, the TUPE provisions provide for certain types of service provision changes and protections, particularly for outsourcing and insourcing. These are UK-derived provisions that survived and were potentially updated in the 2014 TUPE regulations. It was interesting at that time because the consultation responses said there was a certain level of certainty in the provisions and to keep making changes was unsettling for businesses. It was businesses that came out most loudly saying, “We all know where we stand at the moment. Let’s leave this piece of legislation alone.” Removing it altogether will create a great deal of uncertainty and take us back to the ’70s and ’80s when we did not know quite what was going on. The effect will be to block up the courts and tribunals, which are already under-resourced. We know of the delays and backlogs in the court system. Trying to rectify and understand how the laws will work if TUPE is removed is very hard.

[Justin Madders]

Q On that point, Mr Sharp, with the TUC being the umbrella body for trade unions, you will be having discussions with not only everyone in the trade union movement, but employers. What conversations are taking place about what the legal landscape will look like after 2023?

Tim Sharp: Following on from what Shantha said, it is clear to us that these rights are not some sort of additional “nice to have” rights, they are crucial ones. They are particularly crucial for low-paid and vulnerable workers, and particularly the protections for part-time workers, for agency workers and for security guards and cleaners who are being transferred from one company to another.

At best, the uncertainty means that more things will be fought out in the courts. If you are a low-paid worker holding together multiple jobs, going through that process is both expensive and more than you can probably cope with. At worst, those rights go completely, so we are really worried about the impact it will have on vulnerable workers in particular. When you talk to business groups, it appears to be bad news for good bosses who want to do the right thing and follow what the law says. It is great news for bad bosses who do not care either way and they will have more freedom to do what they like. We are really worried about the impact of the legislation as it stands.

[The Chair]

It is a good time to turn to the Minister.

--- Later in debate ---

[The Chair]

I think you have pressed far enough on this, David. I would like to hear from Shantha.

Shantha David: Thank you very much. I am just going to remind Mr Jones that the equality impact assessment does identify that the removal of laws will have a detrimental effect. I am not sure that that is an assurance, because it is not. Beyond that, I do not know what help we have. I do not have access to Ministers in that way. It takes a while to get an answer.

Much like Mr Sharp was saying, the only way to clarify legislation as we go along and to get certainty in the law—we will not have it if provisions are sunsetted—is via litigation. That is something I am able to talk about. Litigation is costly, and pursuing appeals in the Senior Courts will take a long time because of the delays I mentioned. Given that tribunals and lower courts will no longer be bound by retained EU law, there is also the question of how long-established principles of precedent would work, and whether referrals would have to be made from tribunals and lower courts to the Senior Courts, which is what is envisaged in the Bill—either to go to the Courts of Appeal in Scotland, Northern Ireland and England and Wales, or to go directly to the UK Supreme Court. We are not aware—there is nothing mentioned in the paperwork, which is the only thing we have to work on—that that will be resourced in any way. We already know that it takes at least a year to get to the UK Supreme Court. There are only 11 justices. I am unclear as to who will make those decisions around interpretation.

[Justin Madders]

Q You are obviously a lawyer after my own heart, Ms David. Unless it is there in black and white, it is not worth a penny, is it? We have heard lots of assurances from various people who accept that they are not in a position to speak on behalf of the Government. Is it not the case that unless we get positive action from Ministers and things in black and white, these rights will automatically fall at the end of next year? The question is: would it not be much simpler if we put in this Bill a clause that said, “These pieces of legislation—these employment rights—will not be sunsetted”?

Shantha David: Absolutely. If it is the Government’s intention not to get rid of workers’ rights and legislation that protects employees, of course it would be a lot simpler to simply set out what is protected.

[The Chair]

I feel an amendment in Committee coming on.

--- Later in debate ---

[Saqib Bhatti]

Q Let me build on that. If Parliament is now sovereign and we are able to make our own laws, free from the shackles of European Union law, surely there is a great opportunity, as the Minister said, to make stronger environmental law. It puts us in a stronger position to do that.

Dr Benwell: Definitely, and things like the Environment Act are a brilliant sign of progress. The promise in the manifesto to have the most ambitious environmental programme on Earth was excellent, and if we can deliver the species target that is in the Environment Act to halt the decline of species by 2030, that will be the first time in the world any country has set and met a target like that—but it does not operate by itself. Delivery of that Act rests on many of the environmental provisions that are put at stake by this Bill, such as provisions on planning rules, species protection and water protection. They do not live in the Environment Act; the Environment Act builds on them.

There is definitely the chance to do things better, and to bring forward lots of the positive things that the Government have already promised in their environmental programme, but they risk being set back as a result of the amount of time that the Bill will take and the potential for mistakes that this Bill introduces. That is why we are worried about it, not because of any of the principles around sovereignty. That is not a question we have a view on. It is more a matter of the practicality and enormousness of the task in front of us.

[Justin Madders]

Q I have a quick question for Ms Clay. Your report from September, which looked at the public’s attitude to protections, suggested that there was not a great appetite out there for deregulation. May I turn that on its head? In your research, were people saying, “Well, actually, we would really like to get rid of this law or that law”? Did you get any sense of a clamour for the removal of any particular rules?

Phoebe Clay: We have asked questions very generically, as you saw in the research that was published in October, and we have asked more specific questions. We find time and again that the majority of the British public opt for strengthening rules, including members of the public who voted to leave the European Union.

We find very little evidence of significant geographical differences. People in the south and north of England, for example, have similar views. Our research has been corroborated by research by others, including by Professor John Curtice after the EU referendum, the Legatum Institute and others, so we can state with a lot of confidence that the British public do not perceive these rules as burdensome. I think there is a real sense that they are protections, including the environmental rules, and there is a general sense that protections are something that we should aspire to, exactly as the Member of Parliament just mentioned. We should be aspiring for stronger standards than we had when we were part of the European Union, rather than weaker ones.

[The Chair]

That concludes this session. Thank you to our witnesses on our expert panel. We appreciate the evidence that you have given.

Examination of Witness

Angus Robertson MSP gave evidence.

--- Later in debate ---

[The Chair]

Lovely to have you with us, Angus. The first question will be from the shadow Minister, Justin Madders.

[Justin Madders]

Q Good afternoon. For the Committee’s benefit, will you set out which areas covered by the Bill will be considered to be within the competency of the Scottish Parliament?

Angus Robertson: If you do not mind, I was told that I could briefly make a few points at the beginning of the session. If you would indulge me, I might be able to both answer the question and set out some of the concerns of the Scottish Government and, by extension, the Welsh Government—we have the same position.

Thank you for the opportunity to speak to you all. I know you have had a lot of witness sessions today, so thank you for your patience. It will come as no surprise to members of the Committee to learn that the Scottish Government have deeply held, fundamental concerns about the legislation, particularly because of the undermining of devolution. There is concern about the democratic deficit that it exemplifies, and there are concerns, as we heard in the previous session, about the potential deregulatory challenges. We would want amendments brought forward in each of those areas.

Fundamentally, the Bill is the result of Brexit, which was overwhelmingly rejected by people in Scotland and is causing real damage to our economy and our society. The Bill is yet another example of a policy agenda being imposed by the Westminster Government on people in Scotland against their consent.

Let me start with devolution and why that is important. I represent a Government who were elected with a mandate to maintain close regulatory alignment with the European Union and EU standards. I recognise that the UK Government have a different agenda, but the whole point about devolution is to allow diversity, and it would be entirely possible to reconcile the difference in approaches through agreed common frameworks. After the EU referendum, that exact approach was agreed between the devolved Governments and the UK Government, yet the United Kingdom Internal Market 2020 and now this Bill make that near impossible. The Bill would allow UK Government Ministers to act in devolved areas without the consent of Scottish Ministers or the Scottish Parliament; there is no requirement even to consult. The internal market Act is having an insidious and erosive effect on devolution; in contrast, this Bill is a direct assault on devolution.

The second concern is about democratic scrutiny. The Bill grants Ministers, including Scottish Ministers, powers to amend or abandon legislation with minimum democratic scrutiny. Mere inaction or oversight could result in important protections falling from the statute book. Far from the promise of Parliament taking back control through Brexit, the Bill sidelines proper and appropriate parliamentary scrutiny.

Thirdly, on deregulation, the UK Government have said that they want the Bill to “utilise regulatory freedoms” by “lightening their burden” on UK businesses. The businesses here that I hear from are not interested in discarding 47 years’ worth of protections. Businesses, workers, consumers and our environment all benefit from high standards and not from a race to the bottom.

In conclusion, the people of Scotland rejected Brexit by a margin of 24%, and there was a majority for remaining in the European Union in every single local authority area in the country. The more people in Scotland see of Brexit, the less they support it; a panel-based survey this summer found that 63% of people in Scotland would vote to rejoin the European Union. Given that level of support for the EU, I note with some sorrow Labour’s pro-Brexit position alongside the Tories, most recently articulated by Keir Starmer when he was in Scotland at the weekend.

To finish where I started, the Scottish Government are fundamentally opposed to the Bill and have lodged with the Scottish Parliament this very morning a recommendation that consent be withheld. Thank you very much, Sir Gary.

[The Chair]

Thank you so much for making your position crystal clear. Justin, do you have a follow-up question?

[Justin Madders]

Q Yes. I would just point out that we are pro democratic decision making in this country and we respect the outcome of the referendum.

I wanted to ask specifically about some of the inconsistencies when it comes to the powers available to you vis-à-vis the UK Government. Am I right that you will generally have the power to revoke and amend regulations, but the power to extend the sunset clause is not available to you? Do you know why that distinction has been made?

Angus Robertson: Indeed. It runs contrary to the conversation that I had with the erstwhile Cabinet Minister with responsibility for this, Jacob Rees-Mogg. He was very keen to give me assurances that devolution would not be undermined and that Scottish Ministers in the Scottish Parliament would be able to exercise maximum control to fulfil our democratic mandate: to remain aligned with the European Union.

Different powers are being assigned to UK Government Ministers and Scottish Government Ministers in important respects, and that is problematic for us—as is the point of capacity. I do not know whether you want to come on to that, but it is an absolutely massive challenge given that we are a Government who have a legislative agenda already. If we want to remain aligned with 2,000-plus or, if the Financial Times is to be believed, 3,000-plus pieces of European legislation, many of which are about devolved areas, we are talking about massive displacement activity in our Parliament here in Scotland. That is hugely challenging.

[Justin Madders]

Q I have one final question. Have your officials done an analysis and come up with a figure on the numbers of regulations covered by the Bill?

Angus Robertson: We have begun to do that. I should say that when I asked Jacob Rees-Mogg—as the proposing Minister, you would have thought he might have known—how many pieces of legislation would impact directly on the UK Government but then also on devolved policy areas, he was not able to tell me. We have still not been told the scale of the legislative impact, but it will be very considerable. Consider what is devolved—environment, rural affairs, transport and a whole series of other things. It will necessitate the legal services of the Scottish Government and the Scottish Parliament spending a lot of time dealing with the consequences of this Bill.

The problem could quite easily be solved by the UK Government simply acknowledging that there is no demand for this to happen from either the Scottish or Welsh Governments and simply carving out devolved areas. It would remain on the statute book here. If colleagues down south want to go ahead with that, I leave that up to them. We did not vote for this, and we certainly do not want it to happen, yet our parliamentary process and the way in which Government operates here is going to be deluged by trying to deal with this proposal, to which little to no thought has been given as to how it impacts on the devolved institutions of the United Kingdom.

[Ms Ghani]

Q Mr Robertson, you have been crystal clear that you do not support any aspect of the Bill. The Bill provides for broad powers that the devolved Administrations will be able to use concurrently to preserve retained EU law. Will these powers not make it easier for Scotland to align its REUL more closely to the EU if it wants to?

Angus Robertson: The Bill confers significant powers on Scottish Ministers and UK Ministers in devolved areas. Where the powers are exercised by the UK Ministers, no role is afforded to the Scottish Ministers or the Scottish Parliament. In devolved areas, it is the Scottish Parliament that has a democratic mandate to hold Government to account. That is why we have consistently argued that where the UK Government have powers in devolved areas under this Bill, they should need the consent of the Scottish Government, which is of course scrutinised by the Scottish Parliament, in order to exercise those powers.

As it stands, the powers you highlight would allow the UK Government to make broad changes in retained EU law in devolved areas, including revoking and entirely replacing standards that we have inherited from the European Union. This Bill will introduce a massive democratic disconnect. I would hope that colleagues across the parties would realise that this is a huge challenge to the basic understanding of how devolution works.

I would be interested to know, Sir Gary, because we have not yet heard, how this will work now that the Scottish and Welsh Governments have both withheld consent for this legislation. We have the ability through the Sewel convention to say that this, as it stands, is not workable, practical, proportionate, and I could go on—

--- Later in debate ---

[Justin Madders]

Q This is a question for Dr Gravey. The evidence so far has not touched very much on the effect on Northern Ireland. I understand that there are some concerns, particularly, around the protocol and the United Kingdom Internal Market Act 2020. If you have those concerns, could you talk to the Committee about them?

Dr Gravey: Thank you very much for the question. It is true that, in any case, there will be many more concerns for Northern Ireland. We have two different types of concern. First, it will be more complex for Northern Ireland, and secondly, in the absence of an Assembly or Executive, it will be harder for Northern Ireland to either participate in the retained EU law powers or to give any kind of oversight.

In terms of how it is more complex for Northern Ireland, there were some mistakes in the discussion this morning around the scope of the Bill when it comes to Northern Ireland, in clause 1(5). That is basically just about excluding, as with the rest of the UK, a primary role from the scope of the Bill. Basically, that is there because we sometimes have direct rule in Northern Ireland. There are Orders in Council, and they are not secondary legislation, but there are statutory instruments and statutory rules in Northern Ireland that will fall within the scope of the Bill.

The protocol comes in in two different ways. First, because of the protocol, we have retained EU law in Northern Ireland, but we also have a different type of EU-inspired legislation, which is directly applicable EU law, through the annex to the protocol. There is some question about the overlap between those two groups, and what will happen, for example, if we start removing or adding protocol laws that do different things from retained EU law. We have a very complex system in Northern Ireland right now. That is one of the issues.

The other issue is, as I think you have heard, about the primacy of EU law. That will be removed by the Bill, but it is maintained and reaffirmed in the Northern Ireland Protocol Bill, which is also in front of the Commons. How those two Bills will work together is one of the big questions, and I do not think anyone has an answer. Civil society and Government—Ministers and civil servants—in Northern Ireland have a lot of questions, and there are concerns that we are not getting answers or clarity from the UK Government on this.

[Justin Madders]

Q I have one supplementary question. You touched on this briefly. What impact will the Assembly not sitting have on the operation of the Bill?

Dr Gravey: Again, there are two different impacts. There is the impact on deciding on REUL, and what happens on the revoking end impacts on oversight. Before we lost our Ministers at the end of last month, some of the Departments had started work on mapping REUL. We know that the Department of Agriculture, Environment and Rural Affairs has identified around 600. The Department for Infrastructure has identified around 500. But the other Departments have not yet told us how many. It looks like the Northern Ireland Office is pushing the Departments to do something, but there is very little clarity. On a NI dashboard, for example, it is very unclear what we are going to get —if anything.

The other point is on consent and oversight for REUL. Through the UK Brexit SIs, we experienced that best efforts at involving the devolved Administrations were very limited in practice. On the environment and agriculture, for example, the experience in Northern Ireland has been that, even when the Assembly returned in 2020, the Committee for Agriculture, Environment and Rural Affairs and DAERA were getting only parts of the Brexit SIs, and they got them very late, with very little time to engage at all with stakeholders or to provide consent. That was when we had an Assembly. When we did not have an Assembly—for most of the Brexit process—there was no formal process for stakeholder engagement and involvement in the massive change that has already happened for the creation of retained EU law.

The fact that this Bill creates even more of an opportunity to change a vast amount of legislation even more deeply, and the lack of an Assembly, leads to the concern—the Scottish Minister said this earlier—that decisions will be made without the involvement of devolved citizens. That is even more the case in Northern Ireland because we do not have the mechanism for normal consent through the Assembly and the Executive.

[The Chair]

Q We have experts here from Scotland and Wales, so let us have a quick view from Mr Clancy and then your colleague about the likely impact of the Bill on Scotland and Wales.

Michael Clancy: The Law Society of Scotland’s principal concerns are about the potential for confusion and the lack of clarity about what the law is, what law applies and when it applies. In particular, we think that the sunset provisions are unduly short. We are told that the sunset will operate from the end of 2023—a phrase that lacks some statutory precision, I might say, so we will be preparing amendments to deal with that.

There is also a lack of clarity about what comes afterwards. It will be difficult for citizens and businesses to deal with even the provisions about replacement, restatement and the creation of the new category of assimilated law in a short—apparently very compressed—period of time, and without the adequate consultation that one would expect when this sort of law is changed. I hope that is helpful.

--- Later in debate ---

[The Chair]

Thank you, that is very helpful. I call Justin Madders.

[Justin Madders]

Q Do you think it would be helpful if there was some kind of protocol set out in the Bill to get legislative consent?

Michael Clancy: It might be difficult to get a protocol into the Bill, but if one recollects, in the United Kingdom Internal Market Act it was a long tussle between the Government and the other parliamentary participants in making reference to common frameworks in that measure.

One can say that under the EUWA arrangements for making retained EU law that had to be made by UK Ministers, a protocol was established between the Scottish Government and the Scottish Parliament where Scottish Ministers would indicate to the Parliament certain UK measures that would affect devolved matters. The Parliament would consider them and rank them according to whether they were significant or less so. Something like 83 separate orders were dealt with in that way, in terms of creating retained European Union law at that time over the period from 2018 to 2021.

Dr Gravey: If I can just add to that, of course a consent mechanism would be welcome, although we have seen some issues. What has been put in place for REUL around the withdrawal Act has been inter-governmental, so we are removing oversight in Parliament—both in Westminster and in the devolved Administrations—from the equation. They only come in because it is in the gift of the Scottish Government and Welsh Government to involve them, and because they have decided to involve them, but the agreement is between the UK Government and, for example, the Welsh Government.

Secondly, the absence of an Executive in Northern Ireland raises the question of how we can get consent. Can we have some kind of role for the civil service in Northern Ireland to grant consent? Can we have some role for the Northern Ireland Affairs Committee in the House of Commons to review some of this work? We do not know, but we need to think about it, because the absence of an Executive in Northern Ireland will be a rolling issue, and consent has to be rethought around that.

[The Chair]

Thank you very much—a final word from Mr Clancy.

Michael Clancy: That is a very important point about the role of intergovernmental relations in all this. We had a long period of reflection on intergovernmental relations, which resulted in the new structure being created earlier this year. One of its key aspects is that the relations should facilitate effective collaboration and regular engagement in the context of increased interaction between devolved and reserved competences in our new relationship with the EU and other global partners. The issue of intergovernmental relations has already anticipated that, and we should not necessarily want to reinvent the wheel. Instead, I suggest that we need to reflect on the structure of intergovernmental relations and see whether there is anything that can be developed or, alternatively, refocused on the issues that arise from the Bill.

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

Justin Madders Excerpts

Committee stage
Tuesday 8th November 2022 Public Bill Committees

[The Chair]

Will the witness please introduce himself for the record?

Sir Stephen Laws: My name is Stephen Laws. I was First Parliamentary Counsel from 2006 until 2012. Before that, I had been a career drafter and civil servant since 1975. I am now a senior research fellow at Policy Exchange.

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

Q Good morning, Sir Stephen. My first question is quite overarching. The Bill is set up to remove EU law by omission, in essence, rather than by a positive decision to retain it; if there is not a decision by a Minister between now and the end of 2023, it automatically falls away. Do you think that is the most sensible way to proceed with more than 2,500 statutory instruments?

Sir Stephen Laws: Yes, I think it is. The ideal for the law is that all law can be found from easily accessible sources and relied on to mean what it says without being qualified by complex, obscure or general glosses, or involving complex historical research to find out whether it is valid. The Bill, by removing everything that is subject to those disadvantages—because the ideal is not the situation at the moment for retained EU law—is an important step towards securing that the ideal is achieved, by forcing the decisions to be made about how this law can be properly integrated into UK law quickly. Things will only get worse if that does not happen.

Retained EU law is imprecise because it has been removed from the context needed to make sense of it. That will get worse because the sources become of historical interest only, and the methodologies in the UK system for dealing with EU law will become lost knowledge and of historical interest only. The law will become obscure. The Bill is a useful way to force things to become better.

[Justin Madders]

Q Are there adequate safeguards for scrutiny of the way in which this legislation will proceed?

Sir Stephen Laws: The way in which it is scrutinised is a matter for Parliament to work out. It is not something that you would expect to be wholly within the Bill. When deciding what parliamentary scrutiny there should be, it is important to decide what parliamentary scrutiny is for. There is a sort of myth that Parliament should treat itself as the author of legislation and should look at every line, and that legislation for which Parliament has not looked at every line has not been properly written. That is an unrealistic position.

Parliament is a political filter for legislation. It is important that it should identify the bits of legislation that are politically salient, and that it should provide an incentive for technical quality. The first can be achieved, as was the case with the legislation under the European Union (Withdrawal) Act 2018, by having a really rigorous system of triaging subordinate legislation made under the Bill to ensure that Parliament picks up the things that are politically salient. The second is achieved in practice already right across the board by random sampling; what keeps drafters keeping the quality of their drafting up is not that Parliament will look at every line, but the fact that they do not know which lines Parliament will look at, so they have to get them all right.

The Bill establishes the conventional methods of scrutiny, but they need to be backed up by a parliamentary process decided by Parliament and not set out in legislation, because, as we have learned in the last six years, if you put provisions about parliamentary procedure in legislation, you find yourself in the courts. That is not where the processes of Parliament should be.

[Justin Madders]

Q You referred to there being ways to identify politically salient pieces of legislation. How do you see that happening if the Bill becomes law?

Sir Stephen Laws: By the support given to the parliamentary Committees that look at legislation, and perhaps by asking the Government to make sure that their plans for legislation are exposed first, so that Parliament has an opportunity to look at the plans and say, “Well, if that’s what you’re going to do, those are the things that we want to look at in particular.”

[Justin Madders]

Q Would you accept that we do not actually know what the Government’s plans are at the moment?

Sir Stephen Laws: Yes, I would, because they have not told you what they aim to do with all this legislation that is going to be repealed. I suggest that you ask them to do that as the process proceeds.

[The Chair]

I have a feeling that that might happen.

Sir Stephen Laws: Yes, I thought that it might happen too.

--- Later in debate ---

[The Chair]

Thank you for being with us. We have a plethora of questions for you. The first is from Justin Madders.

[Justin Madders]

Q Morning, professors. My first question is for Professor Barnard. You have said in your written evidence that there is a serious risk of mistakes with the EU dashboard. Have you—or has anyone, to your knowledge—done a comprehensive audit of whether everything is on the dashboard that should be?

Professor Barnard: Thank you for that question. No, we have not. UK in a Changing Europe is trying to track the changes to retained EU law, but as we have seen from the Financial Times reports this morning, the National Archives has worked with Government and found an extra 1,400 pieces of retained EU law that the Government did not seem to know about until about last week, so it looks like there are about 3,800 pieces of law. If they found an extra 1,400 pieces after the extensive work that Government had done before that, it makes you wonder whether other things are out there. This is the issue with the sunset being the default position. As a default, it will turn off all retained EU law, even if the Government are unaware of what that retained EU law actually is.

[Justin Madders]

Q Thank you for that news; I was not aware that there are another 1,400 pieces of legislation. I hope that the National Archives will send that information to the Minister, if not the whole Committee. It highlights one of our concerns about the Bill. Your report recommends the Bill making it clear which pieces of legislation are subject to the sunset clause; and/or the Government could exempt certain policy areas from the sunset clause. Could you explain to the Committee why you think that would be a good idea?

Professor Barnard: On the first point, listing the provisions that will be turned off avoids those bits of legislation that we do not know about—that is, they have not been found, despite an exhaustive search, including by the National Archives—being accidentally turned off, and our not knowing that they have been turned off until they become an issue down the line in some sort of litigation. One way of avoiding error is to have a list of legislation—it looks like 3,800 pieces of legislation have been identified—and to say, “This is the legislation that is potentially subject to the sunset.” If you list all those in the statute, it avoids the problem of the missed bits being caught up by the sunset.

Once you have done all that, you can say, “Right, we should consult on those bits of legislation.” I am not in any way advocating, as Stephen Laws suggested, being in stasis and doing nothing—quite the contrary. One of the reasons for Brexit was to think about how we can have laws that are more suitable for the United Kingdom. The trouble is that this slash-and-burn technique means that proper consideration is not given to what a future rulebook might look like.

[Justin Madders]

Q Obviously, the vote to leave was over six years ago. Would it be reasonable for the Government to have said by now which laws they intend to retain, and which they intend to remove?

Professor Barnard: Absolutely. I am in no way advocating for no change—quite the contrary. However, the trouble is that the rather brutal approach envisaged by the sunset clause, and the lack of clarity about how the delay process in clauses 1(2) and 2 will work, will generate huge amounts of uncertainty for users. Unlike Stephen Laws, I would say that these laws cover things as fundamental as gas equipment safety and food safety—what goes into food and the listing of foods. These are things that people absolutely take for granted. The idea that manufacturers will carry on respecting the law even when they are no longer required to because the laws have been simply turned off is, I am afraid, for the birds. All businesses need to try to cut costs, and they will not necessarily comply with high standards in the absence of legislation telling them to do so.

[The Chair]

Professor Young, did you want to add anything?

Professor Young: To confirm what Professor Barnard was saying, it is important to recognise that although we have had six years to think about which laws to keep and which to remove, we have to put that against a backdrop of those not having been six usual years. We have also had to deal with covid, which generated lots of difficulties, and we are now dealing with energy crises and austerity. I fully accept that there is a need to think about which laws we retain and which laws we change, and that we need a period in which to think about that, but you have to recognise that there are other things on the legislative agenda that might make it difficult to have a complete list of all of them.

I agree that having a list of those laws that we have found will increase legal certainty. It would then also always be possible, once others are found, for the Government to enact regulations and say, “These regulations will be subject to the sunset,” or “These will be subject to a different sunset.” That would give us much more clarity, while still enabling us to change laws to build on the advantages brought by Brexit.

--- Later in debate ---

[The Chair]

Final question to Justin Madders.

[Justin Madders]

Q Just following up on the burdens issue, obviously lawyers can argue all day what a burden is. For us parliamentarians, whose opinion is it that this is reducing a burden? How would we as parliamentarians establish the basis upon which that decision has been made?

[The Chair]

Professor Young, you look like you are about to burst forth.

Professor Young: Sorry, I could not quite hear who you were asking. It would be for the Minister to decide, when they are deciding to make a regulation, whether they do or do not think it will or will not increase a burden. There is a possibility for the Minister to make a statement, but there is no requirement to do so, and it will be up to parliamentarians when they see that particular measure to scrutinise it. If you think it imposes a burden and you are concerned about it, you could use the negative resolution procedure to vote against it.

--- Later in debate ---

[The Chair]

Thank you very much. We will turn first to Justin Madders.

[Justin Madders]

Q Good morning, gentlemen. May I ask a rather specific question? I am presuming that you have read the Bill. Under clause 4, there is a reference to removing references to sections 183A to 186 of the Data Protection Act 2018. If you do not know why it is there, that is fine, but are you able to provide an explanation?

[The Chair]

Are you seeking free legal advice, Justin?

[Justin Madders]

I am indeed. It is the best type.

Tom Sharpe: The honest answer is no. However, your excellent House of Commons research paper does indeed advert to this and describes the justification, which I have forgotten.

[Justin Madders]

Q That is fine. I will refer back to that. I seek some free legal advice in relation to subsections (3) and (4) of clause 7, which are about the criteria for departing from retained law. The criteria are slightly different. Could you set out your understanding of the rationale for why that is the case?

Tom Sharpe: Slightly different between case law and—

[Justin Madders]

Yes.

Tom Sharpe: Shall I kick off? I know that Martin has some fairly strong views on this. What the Department is trying to do here is to provide some illustrative guidance as to the reasons why people can depart. They could have done nothing and left it open to the court, which would have been unsatisfactory. By and large, judges, like all of us, need some help and guidance. As to the differences, the justification is the TuneIn case, Martin, is it not?

Martin Howe: Warner against TuneIn, yes.

Tom Sharpe: Why don’t you pick this up? It is your area.

Martin Howe: One feature of the 2018 Act, as you know, is that it made European Court judgments continue to be binding after exit in the interpretation of retained EU law. I would have preferred to see them just as persuasive authority from the beginning, but that is what the Act said. It gave only a very tiny exception, allowing the Supreme Court and the High Court of Justiciary in Scotland to depart, but only in circumstances where they would depart from their own previous decisions. It was extremely narrow. That was slightly widened by a statutory instrument under the 2020 Act, which expanded that to the Court of Appeal, the Inner House of the Court of Session in Scotland and the Court of Appeal of Northern Ireland, but it still had a very narrow test. I do not think, even if you got rid of all these restrictions, that the judiciary would actually make very many changes to or departures from legislation.

That comes out from the TuneIn case, in which the Court of Appeal considered a very unsatisfactory area of jurisprudence by the Court of Justice—a very technical area on communication to the public in copyright cases—and did not feel that it wanted to depart from that law, basically because it thought that to do that you have to almost legislate to fill in what you are replacing the judgments with. Judges are naturally reluctant to do that. My view of these provisions is that they are helpful. They slightly widen the circumstances in which there can be a departure, but are unlikely to make much practical difference. They will mean very few cases that see actual departures.

Tom Sharpe: May I add a supplementary? In answer to your specific question, clearly, the case law, which is the second provision in clause 4, is much broader. All sorts of case law is affected, and some would say infected, by European principles. What this is simply doing is inviting Parliament to say that the breadth of review can be triggered by any impact or any influence. It is really very broad—“determined or influenced by”. I think that is the justification for it, and I think it is sound. What is the point of having an imperfect means by which higher courts can be seized of these matters if they are important enough to go up to the higher courts?

[Ms Ghani]

Q Good morning. There has been a lot of discussion about whether the Bill should be happening now and whether it should happen at all. My question is this: is now the right time for Government to reduce the influence of retained EU law in the UK statute books, as the Bill intends? I will turn to Mr Sharpe first.

Tom Sharpe: It is not the right time at all. This should have been started in 2016, and certainly the dashboard—the process of creation—should have happened then. When—or if and when—this is enacted, it will be, what, six years since the referendum? That is a very long time; it will probably be seven years when the Lords get hold of it. It seems to me that the promises that were made in the referendum and the obligations owed to those who voted for Brexit, which in turn, of course, were repeated in the 2019 election, have to be redeemed. It seems to me that it is appropriate for that to be done, and to be done by a means whereby good faith can be applied—that is to say, a balance between speed and comprehension, balancing the requirements of Government in order to get the legislation on the statute book with the interests of Parliament and the interests of stakeholders. It seems to me, as a general rule, that this is actually what it does.

--- Later in debate ---

[The Chair]

For this session we have until 11.25 am. George Peretz is not here yet, but if he does appear we will ask him questions as well. We turn to Justin Madders to start.

[Justin Madders]

Thank you for giving evidence today.

[Justin Madders]

Q This is probably a question primarily for you, Mark. At the moment we are in a position where we know several thousand laws will be automatically sunsetted at the end of 2023. We do not know which ones they will be or why the Government will retain, remove or amend particular laws. As we have heard today, it appears that the Government do not even know themselves which laws will be covered by the Bill. Do you see any risks with this approach?

Mark Fenhalls: There is nothing but risk. I will tell you one brief anecdote to illustrate this point. Last week I was at an international conference, working with the Ministry of Justice on selling legal services overseas, and talking to lawyers and Bar leaders from around the world. They asked me what this country’s intentions were around its laws following the departure from the European Union. I explained that I have no difficulty with change; change is a necessary thing. We all hope there is a sunlit upland where we can find better or fewer rules and regulations in the future. But when I explained about the inherent uncertainty and risks around this, they all looked and me in horror and said, “Why would we do any business with the UK”—until 2024 on the current timescales—“if we don’t know what the rules and regulations are going to be around all these issues?” There is a tremendous problem with this Bill, which was described by previous witnesses as a “framework Bill”, because we do not know what Ministers are going to do and Parliament does not have the opportunity to take control of the process or scrutinise it.

In our judgment, the Government should take the approach referred to in relation to the Financial Services and Markets Bill, where it looks as though considered, measured changes are being put forward, and there is an undertaking not to change the rules and regulations without consultation with the sector. We cannot understand why financial services are the subject of such a responsible, measured approach, which does not seem to apply to consumer protection, cosmetic and household cleaning product safety, water and air standards, and so forth. If the Government could take the same measured response, sector by sector, that would be a more sensible and less risky way to proceed.

[Justin Madders]

Q Following on from that, if the Government adopted the approach you are suggesting, how feasible would it be for there to be a considered and properly democratic approach to this before the end of 2023?

Mark Fenhalls: I am no expert in how much civil service time exists, but I would be astonished if it were remotely possible to cover but a fraction of this. I do not know why it is set up as anything other than a political problem. The reality is that this is our law. It was passed over four decades of membership while we were a part of the European Union. The previous witnesses may not like the process of scrutiny that existed, but we were part of that. We had MEPs and a Parliament that dealt with that. There was a democratic process, like it or not.

We now have a different democratic process, but these laws are part of our laws, which our businesses operate by and which provide protection to our citizens. If I may say so, I think Parliament has a responsibility not to import uncertainty and change without showing there is something better—and certainly not by just having the power to let the laws lapse.

Eleonor Duhs: Perhaps I could add something on the timeframes. In order to get the statute book ready for Brexit, which was in some ways a much more simple task than this, it took over two years and over 600 pieces of legislation. The reason I say it was a simpler task is that we were essentially making the statute book work without the co-operation framework of the EU. We were taking out references to the European Commission and replacing them with “Secretary of State”—that sort of thing. That was a much simpler task than what we have here, and that took over two and a half years.

A lot of areas also have several pieces of amending legislation. In data protection, which is the field that I work in, there are at least three pieces of legislation that amended and then re-amended the statute book—just to get it ready, from a technical perspective, for Brexit. There may be huge policy changes under this legislation, and the end of 2023 is simply not a realistic timeframe for the process.

[Justin Madders]

I see that George Peretz has joined us. I do not know whether he wanted to respond to any of the questions first of all.

[The Chair]

Yes, Mr Peretz, welcome. Did you hear the questions that were asked?

George Peretz: I had a slight technical hitch in joining. I was going to make a point about the effect of the sunset clause. Stephen Laws made the point that law reform is necessary and it happens, and one should not get stuck in defending the status quo. But there is every difference between a Government saying, “Here is the existing law, we propose to replace it with legislation, and here is the text of the proposed reform,” which is the normal process of law reform, and what is happening here. The Government are effectively saying to business and the wider world, “All of this law is open to change; we cannot tell you whether we will keep any of it. Some of it may just disappear, it may be replaced, and we cannot yet tell you what the replacement is. All of this is going to happen in 18 months.” That inevitably produces an enormous amount of uncertainty, and that is uncertainty above and beyond the inevitable uncertainty of law reform.

[Justin Madders]

Q I have one further question for Mark. There was correspondence between the previous Secretary of State—the right hon. Member for North East Somerset (Mr Rees-Mogg)—and the Justice Committee over engagement with the judiciary in respect of the Bill, particularly the effect of clauses 7 to 9. Can you tell us what kind of dialogue there has been? Do you foresee any issues with the application of those clauses?

Mark Fenhalls: I am not privy to any of that correspondence; I cannot help with that. I do not know whether either Ms Duhs or Mr Peretz is familiar with it.

Eleonor Duhs indicated dissent.

[Justin Madders]

That is fine.

[Ms Ghani]

Q Good morning, Mr Fenhalls. You talked about scrutiny quite a bit. Most retained direct EU legislation has not been through a UK parliamentary scrutiny process, but you keep going on about scrutiny. How much oversight did the UK Parliament have over laws that came into effect under section 2(1) of the European Communities Act 1972?

Mark Fenhalls: I am sorry if you think I am going on about it. All I am doing is saying that there was a democratic process, which we were party to for several decades: we were members of the European Union, and we followed the lawful processes. We now have this body of law, which Parliament owns, and we are all looking for an opportunity for Parliament to say, “Let’s now take advantage of our departure from the European Union, put aside the conflict of the past and work out a better way.” We are all delighted by that. None of us is hostile to change. We just want change in a measured and balanced way, so that we know what the alternatives are.

The effect of the Bill—I was thinking about it as I listened to the previous speakers—feels a bit like the uncertainty and the uncosted promises made by the former Chancellor, which so disrupted the bond market. [Interruption.] You asked the question, Minister. The difference between that and the Bill is that we are being told to trust Ministers to see what will happen, and we have no idea what they will do. We have no idea what is being left or what will be changed. There is conflict between current Bills before Parliament, such as the Levelling-up and Regeneration Bill, and the Bill we are discussing, and we do not know how the Government propose to address it.

Fertility Treatment and Employment Rights

Justin Madders Excerpts

Tuesday 1st November 2022 Westminster Hall

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

It is a pleasure to see you in the Chair, Sir Edward. I congratulate the hon. Member for Cities of London and Westminster (Nickie Aiken) on securing this debate and on her excellent speech. She said that there is little legal, medical, practical and emotional support for those seeking fertility treatment. That encapsulates the broad issues facing people in that situation; obviously, we are looking at a very specific issue today. I agree that IVF should not be considered on a par with cosmetic surgery—it is a very different thing altogether.

The hon. Lady really brought it home to me how far we need to go. She gave the example of her constituent who was told that she would be sacked if she undertook IVF treatment. That is the sort of thing that we would expect to have been said in the ’70s to someone who said they were pregnant. Rightly, society and the law have said that that kind of response is unacceptable. The hon. Lady summed it up well when she said that people should not be penalised for being unable to conceive naturally.

There were a lot of good speeches from Back Benchers. As always, the hon. Member for Strangford (Jim Shannon) gave a good contribution. I think everyone was pretty much in agreement about the importance of this issue.

The right hon. Member for Romsey and Southampton North (Caroline Nokes), who does an excellent job in all sorts of areas on equality in the workplace, said that we need to create a culture of openness and support for employees, and I hope this debate engenders that. She also asked about an employment Bill. The Minister is standing in today, but she may know that I have asked many previous Ministers when we can expect such a Bill. I am not expecting an answer, so to the right hon. Lady I say that I suspect it will take a Labour Government to introduce the plethora of employment legislation that this country desperately needs.

I am grateful to the hon. Member for Cities of London and Westminster for securing this debate. This issue has not traditionally received the attention it deserves because people understandably find it difficult to talk about, but we need to foster a culture of openness.

As we have heard, infertility and fertility treatment are the second most common reason for a woman to visit her GP—the most common is pregnancy. About one in seven couples are affected by infertility, which is about 3.5 million people in the UK. Since 1991, 1.3 million IVF cycles have been undertaken, resulting in 390,000 babies being born. IVF has become commonplace over those three decades: 6,700 IVF cycles took place in 1991, and 69,000 took place in 2019. I doubt that a tenfold increase in employers’ awareness has accompanied the increase in IVF treatment, which is why this debate is so important.

[Steve Brine]

It is interesting to hear those figures. There is a group who are not included in those figures, for whom all these issues around fertility challenge do not exist because they are banned from fertility treatment. Current legislation means that people living with HIV are banned from using such treatment. HIV medication is so effective these days that someone with HIV who is on it cannot pass HIV on, so their babies can be born without HIV. There is therefore no medical reason for this law to still exist. Are the Opposition aware of that situation? Do they think that law is a really brutal bit of discrimination that belongs to another age?

[Justin Madders]

I thank the hon. Gentleman for his intervention. I was not aware of that; obviously it is a matter that comes within the Department of Health’s bailiwick, so I would have to defer to my shadow colleagues in that sector. However, perhaps in a few days he will have a new role that will enable him to put a focus on this issue in a way that we have not seen so far.

We have heard a number of statistics that show why fertility treatment is such an important issue in the workplace. Fertility Network UK says that 56% of those seeking such treatment reported decreased job satisfaction; 63% admitted to reduced engagement; 36% had increased sickness absences; and 38% had seriously considered leaving their job or actually quit their job because they were trying to conceive—a statistic that should shame us all. Similarly, recent research published by Zurich found that 58% of women undergoing IVF treatment withheld that information from their employer and 12% of women left their job completely because their employer was unsupportive. These are statistics that we absolutely have to challenge and change.

It is easy to see why those undergoing fertility treatment report such experiences. Both from what we have heard today and from issues reported in the media, it is easy to see why so many people—particularly women—report feeling vulnerable and distressed about discussing these issues with their employer. I think that almost all in society are sensitive to how emotionally challenging and stigmatising seeking fertility support can be. However, having to physically administer treatment while in the workplace, and possibly while alone in a toilet stall, must be extremely difficult for those who have to do it, and fearing that a line manager might be questioning where they are while they do that can only add to the anxiety that people feel. Then there is the issue of whether someone’s treatment will negatively impact on their career, because they have an unsympathetic line manager. The experience can be very isolating. We have to change the culture to make sure that women feel supported and do not feel alone during these times.

In conclusion, the statistics that I have cited and the testimony today should give us all food for thought about whether we have got the balance right and make us consider whether there is sufficient support for those with fertility issues. The picture that has been presented today overwhelmingly suggests that we have not got that balance right at all.