Retained EU Law (Revocation and Reform) Bill

Lord Bruce of Bennachie Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

Moved by

[Lord Bruce of Bennachie]

117: Clause 15, page 18, line 38, at end insert—
“(3A) Regulations under subsections (2) or (3) may not be made if they apply to an instrument, or a provision of an instrument, which is subject to an agreed Common Framework unless it has been subject to the full process agreed between His Majesty’s Government and the devolved administrations for that instrument.”Member's explanatory statement
This amendment is to probe the application of Common Framework Agreements to retained EU law.

[Lord Bruce of Bennachie (LD)]

My Lords, Amendment 117 is in my name and that of my noble friend Lady Randerson. I apologise to noble Lords that I have not spoken on the Bill so far—it is not for want of interest but because of conflicting engagements. I tabled this amendment because, although common frameworks have already been debated in Committee, I and other members of the Common Frameworks Scrutiny Committee remain concerned about the uncertainties attaching to them.

Our committee has been absolutely crucial to the progress of common frameworks, which might have somewhat run into the sand if we had not had such an active committee and energetic chair, making sure that the departments were following through. On many occasions, we pushed departments back more than once to get sufficient detail and to get them to engage in the process, in which they sometimes appeared to show a lack of interest.

I also have to say—this is a slightly more topical issue—that the process among the civil servants has been led, of course, by Sue Gray. With the departure of Sue Gray, it would be good to know who is going to take over that responsibility. I think the committee accepted that she was, in evidence that she has given to us, extremely vigorous in ensuring that at least the civil servants were engaging in it in a serious amount of detail. The commitment of Ministers has been, at best, somewhat variable.

The problem, too, is that different Administrations have had a different direction on common frameworks. In our engagement with Wales, you have an Administration who desperately want devolution to work, and to work effectively, and are frustrated that the UK Government do not appear to be quite as committed to that. In Scotland, of course, the Government do not want devolution to work, do not believe in devolution and try to pretend that Scotland is independent, claiming that any engagement from the UK Government is somehow an interference in Scotland’s sovereign right, which many of us feel fails to understand the common interest that Scotland has with the rest of the UK.

It is a fact that common frameworks have been designed to get all the relevant partners—and I know that my noble friend Lady Randerson is particularly concerned that that includes stakeholders—to be brought together to try to work out how devolution will work in a post-Brexit world, where previously the umbrella of the EU was the framework for operation. Apart from agreeing how the policies would be laid out and setting out in detail a framework, they all also had dispute resolution mechanisms: detailed and systematic mechanisms to ensure that disputes could be resolved and, wherever possible—and to date that has been the case—without even necessarily having the engagement of Ministers.

In many ways, we have been impressed by those processes, which could apply outside common frameworks much more widely. The remaining flaw in all that, of course, is that the ultimate final appeal rests with the UK Minister and, on occasion, it seems that UK Ministers, knowing that to be the fact, are less engaged with the concerns and anxieties of the devolved Administrations—and I would suggest that that really has to stop.

Before this Bill came along, we had the internal market Bill—now Act—which also cut across common frameworks. Fortunately, the noble and learned Lord, Lord Hope, secured an amendment in this House to allow for divergence opt-outs to be agreed, albeit at the discretion of UK Ministers. That has been used in the case of single-use plastics, but I suggest that UK and Scottish Ministers have rather stumbled in relation to the deposit return scheme. The Secretary of State for Scotland, Alister Jack, said that he was minded to reject the scheme, but did so before it was revealed that the responsible Minister in the Scottish Government, Lorna Slater, had not even asked for a departure. I suggest that the Secretary of State was overeager and that she was rather behind the curve—the net result being that we are still in some degree of confusion.

In the leadership contest that is going on north of the border, one candidate has implied that somehow UK Ministers are itching to overturn devolution decisions by Ministers at every twist and turn. I genuinely do not believe that to be the case, but it is genuinely important that the UK Government do not give the impression that that is the case and that they recognise that they have to tread with respect and carefully in trying to ensure agreed and respectful decisions sometimes to differ.

I come to my final point. Having had that Bill, we now have this Bill and a total lack of clarity—apart from the fact that the Bill is totally devoid of clarity in any case—as to how any decisions that Ministers might make could impact on these common frameworks, not all of which have been completed but which, thanks to the committee, have been worked through, painstakingly and in considerable detail, to make sure that devolution can proceed in a constructive, fair-minded way, with proper ways of resolving disputes and taking decisions beforehand.

The purpose of this amendment is to seek clear reassurance that the Government will not proceed with measures under this Bill that cut across common frameworks and, in particular, the dispute resolution mechanisms within those frameworks. It is a very simple proposition and one that I think the Minister ought to be able to accept. I beg to move.

[Baroness Humphreys (LD)]

My Lords, my Amendment 118 brings us, once again, to the issue of devolution, the powers of the devolved legislatures and the protection of those powers by legislative consent Motions.

I have spoken to a number of amendments in Committee and expressed my concerns about the way that confidence in the Sewel convention has been eroded over the last few years and how legislative consent Motions have been degraded and disregarded. At each stage, the Minister has sought to reassure me that my fears for the future of our devolved settlements are unfounded but, as I have said before, our experience often tells us a different story. I have therefore tabled Amendment 118 to Clause 15, seeking to ensure that a legislative consent Motion be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to revoke or replace secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.

Three of your Lordships’ committees have published reports that have included criticism of Clause 15; the issues that they have highlighted are serious and deserve to be debated. The Delegated Powers Committee has recommended that Clause 15 be removed from the Bill because it

“contains an inappropriate delegation of legislative power”.

It says that Clause 15 is

“the most arresting clause in the Bill for its width, novelty and uncertainty.”

Why is this clause arresting? It gives Ministers extraordinarily wide discretion in relation to thousands of secondary EU laws; for example, one option under this clause allows Ministers, as the committee says,

“by regulations to … revoke any secondary REUL and make such alternative provision as Ministers consider appropriate, including with completely different objectives.”

This is, the report says,

“a power to do anything Ministers wish to do”

with retained EU law until 2026.

I appreciate that the Minister has spent time in Committee reassuring me and other noble Lords that the powers of the devolved legislatures are not under threat. I would like to believe that he believes what he says but can he explain, if this clause were to pass, how certain I could be that some other Minister would not use it to make regulations to revoke or replace any piece of secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature?

Ministers will have the power under this part of Clause 15 to do anything, so who or what will stop them acting in devolved areas if they so choose? We received a letter this morning from the noble Baroness the Minister, and I am sure that she or the noble Lord the Minister will summarise the points it contains in their response in relation to these powers.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

Certainly, more relevant Ministers will be meeting all the time, as well as officials, to discuss these issues, and they are probably the best and most appropriate channels of communication.

[Lord Bruce of Bennachie (LD)]

My Lords, this has been an interesting debate covering a number of topics. I welcome the Minister’s assurances, which I accept in good faith, about wanting to work constructively with the devolved Administrations. However, I am sure she will recognise that there are still a lot of questions hanging in the air.

To take the point made by the noble Lord, Lord Dodds, if the Government know that there are 3,700 pieces of legislation then they ought to be able to tell us what they are. The impression one gets is that the Government claim they know exactly what they are doing but are not prepared to tell anyone else what it is. We need to get a little further down the road on that.

The Minister said that some of the laws were no longer fit for purpose, and we need to know which those are; others need to be updated, and we need to know which those are; and others are UK-wide. Well, the devolved Administrations still need to know which they are, because, clearly, they have an impact throughout the United Kingdom.

This debate has been useful, but there are still issues that we need to press the Government on. In the meantime, I beg leave to withdraw the amendment.

Amendment 117 withdrawn.