Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

Moved by

[Lord Callanan]

That the Bill be now read a second time.

Relevant documents: 28th Report from the Secondary Legislation Scrutiny Committee, 25th Report from the Delegated Powers Committee

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, before I get into my speech, I note with great anticipation that we will be hearing not one but two maiden speeches today. We are indeed blessed. Let me first warmly welcome my noble friend Lady Bray of Coln and the noble Baroness, Lady O’Grady of Upper Holloway. I am delighted to note that Lady O’Grady has come from advocating for a people’s assembly in 2013 to joining us here today—quite the journey. I look forward to both their contributions to this debate.

First, I thank the Minister for Industry and Investment Security for ensuring that the Bill has been sent to us in this place following much reasoned and thorough debate in the other place. At all stages there were commitments made across a number of issues, including our international obligations, employment rights and environmental protections. I reiterate those commitments now and of course will continue to do so throughout the passage of the Bill.

The retained EU law Bill is the next step in reasserting the sovereignty of Parliament and untangling the United Kingdom from nearly 50 years of EU membership. Retained EU law was never intended to sit on our statute book indefinitely. Indeed, the time is now right to review retained EU law and end it as a special legal category. The Bill will achieve this by enabling the Government to more easily amend, revoke or replace retained EU law by the end of 2023. This will ensure that the Government are able to create legislation which better suits the UK without taking decades of parliamentary time to achieve.

The Bill enables the UK to fully grasp the myriad opportunities to create modern and agile regulation, to support the ambitions of our sovereign nation. There are countless opportunities for reform ahead of us, ranging from financial services to data, and from artificial intelligence to transport and energy. Through the Bill, the Government will work to develop a new, pro-growth, high-standards regulatory framework that gives businesses the confidence to innovate, invest, scale up and therefore to create more jobs.

Clause 1 lays the groundwork for an ambitious and efficient overhaul of all retained EU law. It establishes 31 December 2023 as the sunset date on which retained EU law will cease to exist, unless there is further action by government and Parliament to preserve it as “assimilated law” without its special EU law features. In this way, the sunset ensures that outdated and unnecessary laws are quickly and easily repealed. It will also provide government departments with a clear timeline to seize reform opportunities. Indeed, a sunset is the quickest and most effective way to accelerate reform across over 400 policy areas and deliver the rapid repeal of retained EU law.

It is only right to set the sunset of retained EU law as the default position. This ensures that we are proactively choosing to preserve laws inherited from our membership of the EU only where they work in the best interests of the United Kingdom. Some retained EU law is of course inoperable and removing it from the statute book is merely good democratic governance.

The sunset extension mechanism, found in Clause 2, will allow specified instruments or specified descriptions of retained EU law to continue in force beyond the sunset date where that is necessary and in our interests. The sunset date cannot be extended beyond the end of 23 June 2026. It is my hope that this clause proves unnecessary, but it would be irresponsible not to include a clause to allow for unforeseen circumstances. Together, these two clauses will facilitate reforms that will help to grow our economy, deliver the opportunities Brexit provides and support advances in technology and science.

From the end of 2023, the Bill will end the special status of retained EU law on our statute book. Clauses 3 to 5 will ensure that EU rights, obligations and remedies retained by Section 4 of the withdrawal Act will cease to apply and that the application of the principle of supremacy and general principles of EU law as rules of interpretation will end. The retention of these principles provided legal continuity at the end of the transition period, but it would be constitutionally inappropriate to leave these retained EU law principles on the UK statute book in perpetuity. In many cases, the principles and rights in question already overlap with well-established provisions in domestic law. This has the potential to undermine the clarity of our law. To reflect these changes, Clause 6 renames retained EU law which has not been sunset as “assimilated law” after the end of 2023. This is not, as some have said, a simple “rebranding” exercise but is a new body of law without the EU law rules of interpretation.

Where further provision is necessary, the Bill provides powers in Clause 8 and Clauses 12 to 14 to codify specific rights and interpretive effects clearly and accessibly in domestic statute. We are proud of the history of the UK legal system, in which common-law principles and legislation are well established. These reforms will continue that tradition and ensure that our law continues to develop as one best suited to the UK context.

Past judgments of the courts have set too high a bar for UK courts to depart from retained case law and the judgments of EU courts. Now that we have left the European Union, we must reassess when it is right to depart from retained case law and establish more UK-focused precedents. The retained EU law Bill will free our courts to develop case law on retained EU law in a way that is right for the United Kingdom. Clause 7 introduces new tests for higher courts to apply when considering departure from retained case law. The tests give higher courts greater clarity on the factors to consider, and greater freedom to decide when it is appropriate to depart from that retained case law. The clause will also facilitate more decisions on departure from retained case law. It empowers lower courts to refer points of law to higher courts for a decision on whether to depart. It also confers on the law officers of the UK and on the devolved Governments similar reference powers and gives them the right to join cases to argue with regard to departure from retained case law.

Clause 9 gives the judiciary powers in connection with the ending of the supremacy of EU law. Courts and tribunals will issue incompatibility orders and will be able to grant appropriate remedies in legal proceedings where retained direct EU legislation cannot be read consistently with other pieces of domestic legislation.

Retained direct EU legislation, composed mainly of EU regulations over which the UK Parliament had no real say, often does not reflect the UK’s priorities or objectives to drive growth. We are currently forced to treat some of this legislation as equivalent to an Act of Parliament when amending it. This limits our ability to make vital reforms and is constitutionally inappropriate.

[Viscount Hailsham (Con)]

In respect of the legislation that is to be revoked or re-enacted, is my noble friend going to tell the House what consultation there will be with the various stakeholders, who must run into the thousands?

[Lord Callanan (Con)]

When secondary law is implemented there is a well-established procedure for appropriate consultations, which of course will take place. All those stakeholders are able to have their say through many Members of both Houses of Parliament as well.

Clause 10 will therefore ensure that retained direct principal EU legislation and Section 4 EU withdrawal Act rights are downgraded, ensuring that they are treated as equivalent to secondary legislation for the purposes of amendment.

It is critical to ensure that this body of law can be updated, amended and reformed using appropriate delegated powers. Without these measures, thousands of regulations will become stagnant—unable to stay up to date, react to new information or implement new international agreements without requiring a new Act of Parliament. Clauses 10 and 11 support this Government’s commitment to taking the necessary steps to put the UK statute book on a sustainable footing, guaranteeing that we can seize all the opportunities that leaving the EU supplies.

The powers in the Bill, combined with the downgrading of retained direct principal legislation, will make it easier for Ministers to amend or repeal retained EU law without the need for primary legislation. The powers have also been designed to deal with matters arising in relation to the sunset and the ending of retained EU law as a legal category at the end of 2023. It has become increasingly clear that there is a lack of subordinate legislation-making powers to remove retained EU law from the statute book. It is appropriate to take powers in the Bill to address this.

The retained EU law dashboard has identified over 3,700 pieces of retained EU law across 16 departments. While some of these laws will be preserved, of course, many are outdated, some are unduly burdensome, and others are increasingly unsuited to the UK’s economic circumstances. Therefore, it is necessary to have powers in the Bill that are capable of acting on a wide range of retained EU law covering a variety of different policy areas. This is not a power grab by the Government.

[Noble Lords]

Oh!

[Lord Callanan (Con)]

Rather, the powers in the Bill will enable us to seize the opportunities of Brexit through reviewing the laws that were imposed on us by Brussels during our membership of the European Union. Sectoral-specific legislation simply cannot be passed in a timely enough manner to ensure that these regulations are made suitable for the United Kingdom.

The powers in the Bill will enable the Government to more easily replace retained EU law with domestic laws that are tailored to the UK and, importantly, work in the interests of the United Kingdom, while the power to update will ensure that the UK keeps pace with advances in science and technology over time.

The Government recognise the importance of ensuring that legislation undergoes the appropriate level of scrutiny.

[Noble Lords]

Oh!

[Lord Callanan (Con)]

Well, it is more than some of the EU legislation did. I did not mean to start a debate on this.

[Lord Hannay of Chiswick (CB)]

My Lords—

[Lord Hannay of Chiswick (CB)]

My name is on the list.

[Lord Callanan (Con)]

I will take the noble Lord’s point.

[Lord Hannay of Chiswick (CB)]

I merely want to ask the Minister: what proportion of the legislation was, as he described it, imposed? Presumably, it was only the laws that we voted against.

[Lord Callanan (Con)]

Given his direct experience, the noble Lord knows exactly how the procedures work in Brussels. The point I was making was that the vast majority was introduced into UK law directly, without any appropriate scrutiny from Parliament beforehand. Obviously, there were lots of discussions in Brussels. He took part in some on behalf of the Council, and I took part in many in the European Parliament as well. But there was no scrutiny in this Parliament for much of that legislation.

[The Earl of Kinnoull (CB)]

I do not mean to be discourteous; I really am not. But the European Union Committee of this House and the European Scrutiny Committee of the other place sat for nearly 50 years doing the scrutiny that the Minister is saying did not take place. It was very heavy: it used 72 Peers from this Chamber in its structure. There was quite a lot of scrutiny going on.

[Lord Callanan (Con)]

There was scrutiny but no ability for Parliament to amend any of it, of course.

[Noble Lords]

Oh!

[Lord Callanan (Con)]

We will have this debate as we progress with the legislation, I am sure.

As I was saying, the Government recognise the importance of ensuring that legislation undergoes the appropriate level of scrutiny. The Bill has been drafted to ensure there are robust scrutiny measures and safeguards in place. This includes a sifting procedure for regulations proposed to be made under the powers to restate and the powers to revoke or replace.

Now that we have left the EU and regained our sovereignty, it is important that the UK has a regulatory system designed to benefit UK consumers and businesses. To ensure that the UK makes the most of the opportunities outside the EU, and as outlined in the The Benefits of Brexit report published in January last year, the UK is reforming how it monitors and evaluates future regulation.

It is important that we repeal the business impact target, which has too narrow a focus on the impacts of regulation. Our new system will ensure earlier scrutiny of proposed regulation; a more holistic assessment of its impacts on UK households, businesses and consumers; and a regulatory framework that is therefore fit for purpose.

We have seen how our legislature has evolved since leaving the EU. It is right that we now take the next step and relinquish from our statute book retained EU laws that do not work in the interests of the United Kingdom. The Bill ensures that we can achieve that, by seizing the freedoms afforded to us by Brexit.

The Government have read with interest the reports from the DPRRC and the Secondary Legislation Scrutiny Committee. I look forward to hearing reasoned comments on these from many noble Lords, particularly my noble friend Lord McLoughlin and members of both of those committees.

The Bill will benefit people and businesses across our country, reassert our sovereign approach to law and regulation, and support the interests of our United Kingdom, rather than those of Brussels. I know that many noble Lords in this Chamber will agree with me when I say that, in this current climate, protecting the UK’s best interests is of the utmost importance. We must therefore continue to surge forward to ensure that our statute book is put on a sustainable footing for all four sovereign nations of the United Kingdom. I beg to move.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, this has been a characteristically excellent debate which I think reflects the importance of the Bill. Before I get on to the substance of the issues raised, I will congratulate our two maidens, the noble Baroness, Lady O’Grady, and my noble friend Lady Bray, on their fine maiden speeches. I hope that the House is a similarly engaged audience to the one that my noble friend Lady Bray had when she was presenting for the British Forces Broadcasting Service in Gibraltar. I noted with interest that she studied medieval history at St Andrews. I am also told that she was fired as a PPS in the other place in 2012 for voting against the coalition Government’s plans to reform this House. With those two bits of excellent experience, she will clearly make an excellent Member of this House.

Then we come on to excellent contribution from the noble Baroness, Lady O’Grady. I profoundly disagreed with all of it, of course, but she put it extremely well. I think it was the noble Baroness, Lady Andrews, who referred to her choice of “A Change Is Gonna Come” on “Desert Island Discs”. I was slightly more concerned by two of her other music choices on that programme—“Pieces of a Man” and “Burn It Down”. I hope neither of them is an omen for me or the House on some of our future debates. I congratulate both maiden speakers; I thought they did extremely well.

As we have had 60 speakers today, I am afraid noble Lords will understand that I cannot answer every Peer directly. I am sure that many of the points will come up again in Committee. I seem to have heard an awful lot of them in the Brexit withdrawal debates from essentially the same people, but I am sure we will raise the points again.

Before I turn to the wider contributions, let me first address the regret amendments tabled today by the noble Lord, Lord Fox, and the noble Baroness, Lady Chapman. I am sure it will come as no surprise to either noble Lord that I disagree with the amendments on all points. I do not accept the characterisation that these powers are unprecedented or weaken the scrutiny of Parliament. Indeed, as has been said many times, many of these laws were brought into force with no scrutiny of any kind by this Parliament and were merely directly imposed by Brussels. I noted with interest my noble friend Lord Lilley’s remarks on how this process really worked in practice from the point of view of a UK Cabinet Minister.

Furthermore, the sifting committee for the more substantial powers will ensure that Parliament can debate and vote where it deems appropriate. The scrutiny role of Parliament is not reduced but rather enhanced through this Bill. Of course, we respect the role of the devolved Administrations, which is why the majority of the powers contained in the Bill are conferred on devolved Ministers. It will be up to the devolved Ministers and Administrations to decide which direction they take their stock of retained EU law.

On the final two points of the regret amendments, we should of course aim to complete these reforms as quickly as practically possible. They are necessary to seize the benefits of Brexit and I do not accept that this will cause significant uncertainty nor that, if it did, uncertainty alone is a reason not to make these legislative changes. With regard to environmental law, workers’ rights and the other areas that noble Lords have referred to, I refer all noble Lords to the commitments that have been made by me in this House so far—and I will no doubt do so many times in the Committee debates to come—and by Government Ministers in the other place.

I move now to the substantive points raised in the debate. I thank my noble friend Lord Frost for setting into motion the two reviews into retained EU law that have culminated in the Bill—he has a lot to be proud of—and for explaining the importance of removing REUL from the statute book.

I also pay tribute to the remarks of my noble friends Lord Hannan, Lord Lilley and Lord Jackson for making the obvious point that Parliament will have much more say over this legislation than it did during our time in the EU, when direct EU legislation did not receive full parliamentary scrutiny before it became law in the UK. Had we not left the EU, much of this legislation would be amendable by the EU as if it were secondary legislation, without any direct input from this Parliament at all. By treating this legislation in the same way as domestic secondary legislation for amendment purposes, it can be amended much more easily by delegated powers. It is therefore appropriate that the changes to this body of legislation can be done via secondary legislation. Requiring REUL reform to be subject to primary legislation would take decades in many cases and would see a marked reduction in the UK’s dynamism. My noble friend Lord Dobbs amplified this point, emphasising that the Bill has come through the elected Chamber of this Parliament with only government amendments. It is only right and proper that we view the Bill in light of that majority.

I also commend the excellent speech of my noble friend Lord Jackson, who was right to note the majority that the Bill received at Third Reading in the other place and the lack of concern that this House often showed to powers that were exercised under the European Communities Act—another point also made by my noble friend Lord Hannan.

My noble friend Lord Howard of Rising made it clear that there are many opportunities for us to seize as part of Brexit. He is right to laud the success of our vaccine programme and to note, in the same vein as my noble friend Lord Lilley, that Parliament will have much more of a say in regulation that works on behalf of the UK.

I was disappointed by the remarks of the noble Lord, Lord Rooker, about parliamentary counsel and their work and approach. He is correct that parliamentary counsel are civil servants working for, and delivering the priorities of, the Government of the day. However, although I acknowledge the strength of the noble Lord’s views, it is not in keeping with the customary courtesy of Members to criticise those who cannot defend themselves in this Chamber.

The noble Baroness, Lady Chapman, and my noble friend Lord Hamilton of Epsom raised questions about why we are changing the EU withdrawal Act only five years after its passage. It was a bridging measure and was never intended to be on the statute book indefinitely; we discussed it at length at the time. Now that our future relationship with the EU is known and we have established a sense of legal certainty, it is right for us to review retained EU law. The Bill ensures that only retained EU law that we judge is right for the UK is assimilated into our statute book.

The noble and learned Lord, Lord Judge, the noble Lord, Lord Beith, and many others are concerned that the sunset could be a regulatory cliff edge. In our judgment, a sunset is the quickest and most effective way to accelerate the review of the majority of retained EU law. A major cross-government programme is already under way to identify retained EU law that can be reformed, repealed or replaced. When the Bill receives Royal Assent, a cross-government legislative programme will commence to sensibly manage change ahead of that sunset date. Without the sunset as a default for retained EU law, we risk unsuitable or obsolete EU laws still being on our statute book in 10, 15 or even 20 years’ time, which should not be acceptable to anyone in this House. We do not need regulations on the issuing of a certificate for the export of cheeses that the UK has never exported. Nor do we need regulations that grant additional aid for the consumption of butter, or hundreds of other obsolete EU regulations. A sunset ensures that we can quickly and easily remove outdated legislation of this nature.

Many noble Lords, including the noble Earl, Lord Kinnoull, and the noble Baroness, Lady Chapman, made claims that the Government will need to pass nearly 4,000 SIs before the end of this year. That is absolutely not the case. Our work to date has indicated that the number of SIs would be in the hundreds, not the thousands. Of course, this is still a significant task, but it is certainly not the impossible one that has been portrayed today. My noble friend Lord Udny-Lister is right that our first-rate Civil Service and legal service are more than capable of delivering the work required.

A number of noble Lords raised environmental concerns, as they often do, including the noble Baronesses, Lady Parminter, Lady Young of Old Scone and Lady Bennett, who all claimed that this will somehow remove environmental protections. I can absolutely provide the reassurance that my rightly cynical noble friend Lord Randall was looking for. The Government will ensure that we continue to improve environmental outcomes for this country. The UK has a long record of environmental protection, most of which was never dependent on the EU. The Bill will not change that, nor will it change the world-leading Environment Act that this Conservative Government are proud to have passed.

The noble Lord, Lord Trees, questioned whether this means that we are resiling from our commitment to food standards, and the noble Baroness, Lady Boycott, questioned what this means for the FSA. The Government remain committed to promoting robust food standards, both nationally and internationally, to protect consumer interests, to facilitate international trade and to ensure that consumers can have confidence in the food they buy.

The trade unionists, the noble Lords, Lord Monks, Lord Hendy and Lord Woodley, have claimed that the Bill will lead to a downgrading of UK workers’ rights. We have had similar debates a number of times across this Chamber, and I have no doubt that we will continue to have them on issues such as TUPE. As I have said many times before, their claim could not be further from the case. We are proud of the UK’s excellent record on labour standards. We have one of the best workers’ rights records in the world, one of the lowest rates of unemployment and one of the highest minimum wages. As I have repeated many times, our high standards were never dependent on our membership of the European Union; indeed, in many areas, the UK provides for stronger protections for workers than are required by minimum EU standards.

The noble Earl, Lord Kinnoull, and the noble Baronesses, Lady Randerson and Lady Andrews, raised the important issue of the impacts of the Bill on devolution. The provisions in the Bill do not affect the devolution settlements, and they are not intended to restrict the competence of either the devolved legislatures or the devolved Governments. Rather, the majority of the powers will be conferred concurrently on the devolved Governments, enabling devolved Ministers to make active decisions on retained EU law in their respective areas of devolved competence. The UK Government are committed to respect the devolution settlements to safeguard the union and to ensure that the provisions in the Bill work for all parts of the UK, and we will continue our discussions with the devolved Administrations with that in mind. When using the powers in the Bill, we will use the appropriate mechanisms, such as the common frameworks, to engage with the devolved Governments to allow for proper joined-up decision-making across this United Kingdom.

Speaking of devolution, the noble Baronesses, Lady Chapman and Lady Hoey, raised concerns about the specific impacts of the Bill on Northern Ireland. The territorial scope of the Bill will be UK-wide. It is constitutionally appropriate that the core measures in the Bill apply across all parts of the United Kingdom. As my honourable colleagues in the other place have committed, the UK Government will ensure that the necessary legislation is in place to uphold the UK’s international obligations, including the Northern Ireland protocol and the trade and co-operation agreement, after the sunset date.

To answer the specific question from the noble Lord, Lord Fox, on case law, the REUL Bill does not require the creation of brand-new case law across the piece. The Bill’s measures facilitate UK courts to treat retained case law in a similar way to judgments of other foreign jurisdictions by encouraging departure from retained case law in a careful and managed way to allow for the proper development of UK law.

Many noble Lords and noble Baronesses, including the noble Baroness, Lady O’Grady, have expressed concern about Clause 15(5) through the somewhat misplaced fear that it means that standards can only be lowered. Let me be clear: that is not a correct interpretation. By removing unnecessary or unsuitable regulations, or by consolidating multiple regulations into one, it will be perfectly possible to add new regulations with higher standards under the powers to revoke, provided that the overall regulatory burden is not increased. My noble friends Lady Bray and Lady Lea recognised that point in their speeches, noting that we can keep our high standards with the Bill. I can confirm that the Government share their ambition to ensure that the body of legislation is better suited to the UK. The review of legislation will enable us to improve regulation for business and the economy, which I also hope addresses the concerns of the noble Lord, Lord Hannay, although I suspect that it will not.

On business and trade, my noble friend Lady McIntosh raised the issue of imports and exports. I can confirm that we have already modified EU legislation covering the use of export restrictions to manage short supply, to make it effective in the UK following our exit from the European Union.

My noble friends Lord McLoughlin and Lord Hodgson spoke eloquently about their respective committee reports. The Government welcome the publication of the reports and I look forward to engaging with the recommendations that have been made. I hope my noble friends will understand that, given the reports’ recent publications, I cannot yet comment on what position the Government will take on the recommendations, but I will carefully study them and a formal response will be made in the usual manner.

Turning to the many comments on impact assessments and post-implementation reviews made by many noble Lords, including my noble friend Lord Hodgson, we recognise their importance and departments will be expected to take a proportionate approach to analysing the impact of SIs. For smaller-impact measures, this could include the completion of the impact section in an Explanatory Memorandum, a de minimis assessment or a fuller impact assessment, dependent on the regulation in question. Where expected business impacts exceed the current threshold of £5 million of annual business impacts, in the usual way departments will need to submit a full impact assessment for independent scrutiny if their change is a regulatory provision, as defined in the current better regulation framework, to which we are fully committed.

I am, of course, grateful for the recent recommendations of the Secondary Legislation Scrutiny Committee on impact assessments and will ensure that my officials make clear to departments the expectations for providing enough information to Parliament when studying new regulations. Departments will be expected to conduct proportionate monitoring and evaluation of their measures up to and including full post-implementation review. My officials will be providing more guidance on this to departments shortly.

I would like to reassure my noble friend Lord Balfe that the Government are committed to maintaining comprehensive safety standards, as he would expect, including in civil aviation and all manner of transport. Similarly, I can reassure the noble Baroness, Lady Ludford—although again I suspect she will not accept the reassurance—that, while I do not agree with her assessment of the level of scrutiny that laws received within the EU institutions, I can confirm that the Government will not, of course, weaken building safety standards.

This Bill will ensure that we can end retained EU law as a legal category, simplifying and bringing certainty to our statute book. It will also ensure that we can bring forward genuine reform, now ensuring that the UK’s regulatory system is suited to our needs. The Government are determined to see the opportunities of Brexit and I know that the Bill delivers that result.

--- Later in debate ---

Moved by

[Lord Callanan]

That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order: Clauses 1 to 6, Schedule 1, Clauses 7 to 10, Schedule 2, Clauses 11 to 20, Schedules 3 and 4, Clauses 21 to 23, Title.

Motion agreed.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Collins of Highbury (Lab)]

The noble Lord may want to re-open the debate on the referendum and EU membership, but I do not. I want to focus on people’s rights now; that is the important point. That is why I appeal, across the House, to people who may have supported Brexit and people who did not. I think the House can unite on this sort of issue. As we have heard, this is not the way to do it; there is a better way to review retained EU law and a better way to create certainty and understanding on the part of the public.

That is why these amendments are so critical, in that they ask for specifics. I am pretty certain that, sadly, the Minister will give us the same mantra that we heard in the other place: “Trust us, this is a process; we have a time constraint.” Why they have put this time constraint in place, God only knows. But the Minister will not give us an idea about the specifics, and that is really important.

As my noble friend Lady Crawley, the noble Lord, Lord Fox, and others have mentioned, this is not just about regulations; this is about case law as well. That is vital. I cannot beat the illustration of my noble friend Lady O’Grady. All Governments of all colours have had to be persuaded to give these rights. It has not been an easy journey for workers, particularly women workers, and that is the other thing about this. Hard-won rights, particularly on equal pay and equal rights at work, are under threat here. That is something that the public need to hear very firmly.

I conclude with a simple request of the noble Lord, Lord Callanan. He has assured us that UK employment rights do not depend on EU law, and we have heard the arguments in this debate. Can he confirm which of the regulations that I have listed in Amendment 40 are not covered by Clause 1? Can he give us that guarantee? I suspect that he will not; he will make some excuse. But this will not go away; this debate will continue because the public out there need to know whether they can trust this Government. I suspect that they will answer no; what they want is Parliament to decide.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I thank everybody who has contributed. I suppose we had to have the debate in principle at some stage, and we have had it on Clause 1. I will attempt to provide some reassurance to noble Lords. I suspect that those who think that somehow the Government have malign intentions will not be convinced, but let me try my arguments anyway.

As my noble friend Lord Frost made clear, this is of course an enabling Bill. The measures in it, including the sunset, will provide for UK and devolved Ministers to make decisions to review, amend or repeal retained EU law as they see fit. I agree with my noble friend Lord Frost’s point. I understand that the Opposition will want to portray all EU law as perfect and ideally suited for the UK’s circumstances, but most of my time in the European Parliament was spent during the period of the last Labour Government. There were numerous occasions when UK Ministers, and civil servant at the behest of UK Ministers, came to give me examples of where the regulations were not suited to the UK and not in the UK’s interests. Many times, as a Conservative, I agreed with them, and we did our best to change or amend them. Often, we were not successful. This legislation gives us the opportunity—

[Lord Fox (LD)]

My Lords—

[Lord Callanan (Con)]

I will let the noble Lord come back in a moment, but let me make a little progress—I might answer some of his points, you never know.

Let us not pretend that it is all perfect. I accept that the Opposition have a principled difference with us on how we go about this process, but at least let us have the debate and, I hope, make some progress. The sunset is not intended to restrict decision-making; rather, it will accelerate the review of retained EU law across all sectors, as my noble friend Lord Hamilton made clear. The Bill will allow for additional flexibility and discretion to make decisions in the best interests of this country.

I start with Amendment 1, in the name of the noble Lord, Lord Fox. I take this opportunity, as I have done many times in this Chamber before, to reassure him and the noble Baroness, Lady Burt, and the Committee, that the repeal of maternity rights is not and never has been the UK Government’s policy. As I have said many times before, our higher standards in this area were never dependent on our membership of the European Union. Indeed, the UK provides stronger protection for workers than is required by EU law. I have made this point many times, and the opposition parties do not seem to want to accept it.

[Lord Fox (LD)]

My Lords—

[Lord Callanan (Con)]

I am going to make this point and then I will allow the noble Lord to intervene.

Our high standards were never dependent on our membership of the European Union. We provide stronger protection for workers than is required by EU law, both under previous Governments and under this Government. Let me give the Committee some examples. We have one of the highest minimum wages in Europe. On 1 April this year, the Government will increase the national living wage by 9.7% to £10.42—higher than most other European countries. UK workers are entitled to 5.6 weeks of annual leave, compared with the EU requirement of four weeks. We provide a year of maternity leave, with the option to convert to shared parental leave to enable parents to share care, whereas EU maternity leave is just 14 weeks. The right to request flexible working for all employees was introduced in the UK in the early 2000s; the EU agreed rules only recently and will offer the right to parents and carers only. The UK introduced two weeks of paid paternity leave in 2003; the EU has legislated for this only recently. Let there be no doubt about the commitment of this Government to enhancing and providing for workers’ rights.

[Lord Fox (LD)]

I am afraid I can wait no longer. I am somewhat surprised that I still do not really understand what the Minister is saying. We did not put on the dashboard the regulations and laws set out so ably by the noble Lord, Lord Collins, and by my noble friend and others; the Government put them on the dashboard. If the Minister is saying that these do not affect British employment regulations, how can that be true? It is simply not true. What the Minister is saying is wrong. They are on the dashboard and they will sunset if nothing is done. They affect day-to-day employee rights, and therefore the Bill potentially affects those employee rights because these regulations are on the Government’s dashboard.

[Lord Callanan (Con)]

They are on the dashboard if they are retained EU law. I noticed that, in all the statements and speeches from Members opposite, the words “if” and “could” were doing an awful lot of heavy lifting. I accept that there is no trust from the Opposition in the intentions of the Government and that they want to make their political attacks. The reason I outlined UK employment rights and standards was to demonstrate the commitment of this Government to those rights. The point that the noble Lord, Lord Fox, made earlier is essentially correct: while we have some very high standards, of which we are proud and will maintain, there is a complicated mishmash of laws in this area between some elements of EU and domestic law.

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Callanan (Con)]

If the noble Lord will sit down, I will come to him in a second. I will make this point and then I will give way.

UK rights were provided in the complicated mishmash of UK law, with higher standards often based on minimum standards and provisions that were in EU law originally. That is why they have been included on the dashboard. We will conduct a review of all these regulations—which this legislation provides for—and we will do so in the context of the high standards that the UK already has.

[Lord Kerr of Kinlochard (CB)]

I think I understand the noble Lord’s argument, and that he is therefore going to end by saying that he accepts Amendments 1, 23 and 40. If our standards are so high, there can be no question of the Government reducing our standards or amending or sunsetting the legislation spelled out in Amendments 1, 23 and 40. If the Minister is not prepared to accept these amendments, will he explain why, if they are in the Government’s view good, they have to be in doubt until the end of the year and then possibly dead?

[Lord Callanan (Con)]

As the noble Lord knows very well, that is not what I am saying. The reason that I am not saying that goes back to two points made earlier in the debate. First, there is a complicated mishmash of rights and responsibilities across these particular laws, but we will maintain our high standards. Secondly, it goes back to the argument the noble Lord, Lord Fox, made about interpretive effects. If the interpretive effects are being abolished to bring them in line with the rest of UK common law and to reduce some that have the status of primary legislation to secondary legislation, we need to review the whole panoply of employment law as a whole—which we will do, but we will do it in the context of the high standards that we have and will maintain. That is the point I am making

[Lord Hope of Craighead (CB)]

I am very grateful to the noble Lord for giving way. It is a question of the sunset and whether one can achieve what the Minister is suggesting in time. A lot of the worries we have are that the Government are trying to move too fast. We are trying to create a new rulebook for ourselves. I quite understand the desire for that, and I quite see the value of a timetable, because, if you do not have a timetable, things will drift into the far future, which is not desirable in view of the objective the Government have. However, they are trying to move too fast. The more we debate these issues, the more complicated they become, and the more people have to be consulted. That is the basic problem. I hope very much that, when we come to look at the sunset, the Minister will take account of these things and be a little more relaxed about the date for the sunset, otherwise we will be moving far too fast and destroying so many rights because of mistakes and misadventures.

[Lord Callanan (Con)]

The noble and learned Lord knows I have tremendous respect for him and there is a great deal of sense in what he says. If we are getting into a discussion about the sunset, it is my view and the Government’s view that we can do all of this, given the current sunset. Work is under way across Whitehall in the new business department on employment law and in Defra on environmental regulations to do exactly that.

[Baroness Young of Old Scone (Lab)]

My Lords—

[Lord Callanan (Con)]

I will give way in a second; let me answer the previous point before the noble Baroness makes another. I think it is perfectly possible and work is under way in the business department and in Defra, which have many of these retained EU laws, to do precisely that. As Committee proceeds, I hope to be able—maybe I will not be able, but I will do my best—to convince the Committee that we will be able to do this in time, with the given sunset. I give way to the noble Baroness.

[Baroness Young of Old Scone (Lab)]

Would the noble Lord perhaps admit that the only way in which the timetable can be met is by not undertaking the sort of consultation we have come to expect, and indeed enjoyed, during the passage of all this legislation over many years, which has resulted in it being EU retained legislation? My personal sphere of knowledge is the work in Defra. I am desperately worried that many of the things emerging from Defra that are purportedly a replacement for EU law are not being portrayed as that when they come out, and they are not being consulted on in any way whatever. I do not believe that the EU retained law workload can be done by Defra in time without it being a fait accompli by Ministers that is not consulted on and does not go through a process in this House that allows us to have any influence on it. So I would like the Minister to assure us that there will be a full process of consultation that can be contained by the deadline.

[Lord Callanan (Con)]

“Yes” is the answer to the noble Baroness’s question. All new regulations will be subject to a period of consultation. I have to say, with great respect, I would have a little more sympathy for the noble Baroness’s argument had any of these regulations been introduced into UK law in the first place with a period of consultation—but, of course, we all know they were not. Many of the people complaining now that these regulations are so valuable never said anything at the time about the process by which they were introduced. But I accept that is a difference of principle between us.

As I said, our high standards do not and never have depended on EU law. Ministers will have the power to preserve such retained EU law from the sunset where appropriate. Building on some of the earlier points made by the noble Baroness, Lady Humphreys, this includes Ministers in the devolved Governments. As such, it is the Government’s contention—I suspect it is one that will not draw much sympathy from the Opposition—that there is simply no need for any carve-outs for individual departments, specific policy areas or sectors, particularly when I have been able to reassure the Committee on the principles of maternity rights and employment law as a whole.

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, one reason we have such concerns about the timetable is that, as we have heard in exchanges today, there is no agreement on the evidence base we are working to. Part of solving that would be going back to the drawing board on the impact assessment, which, as we heard, was red rated and deemed not fit for purpose. Could the Minister explain at what point we will be looking again at that impact assessment and dealing with the criticisms of the one that received the red rating? What impact could that have on the timetable? If we could agree more and have dialogue on the evidence base, perhaps we might be able to make more progress.

[Lord Callanan (Con)]

I totally understand the point the noble Baroness is making. I have looked at this—indeed, I was the Minster responsible until very recently for the Regulatory Policy Committee, which does some fantastic work. But of course it is very difficult to produce an impact assessment for what is essentially an enabling framework Bill. I think what would be more relevant to the noble Baroness, and what she would be more interested in seeing, are the detailed impact assessments that will be produced on the particular regulations. If regulations are just carried on and essentially replaced, there will be no need to bring an impact assessment because there is no change. However, if change is proposed, of course the relevant departments will produce impact assessments for those particular regulations. I am sure the noble Baroness will have great enjoyment in reading those.

[Lord Davies of Brixton (Lab)]

My Lords, perhaps the Minister will take on board that, when he says there is no need for carve-outs, his own Amendment 45 creates a carve-out for financial services. We can have a substantial debate on that issue when we get to that amendment, but the idea that you do not have carve-outs is clearly wrong; the Government’s own amendment creates one.

[Lord Callanan (Con)]

We will get to that debate on those technical amendments later.

[Noble Lords]

Oh!

[Lord Callanan (Con)]

I think it was the noble Lord, Lord Davies, who talked about the Financial Services and Markets Bill, which repealed a number of EU regulations and produced regulations that were more suitable for the UK.

Moving to the specific amendments we are debating, Amendment 23 relates to the transfer of undertakings regulations. It is up to Ministers and the devolved Governments to decide what to do on specific pieces of policy. This Bill, as a framework Bill, creates the tools for departments. Plans will be approved by a Minister of the Crown, or the devolved authority where appropriate, and will be shared when that work has been done, given that it is an iterative process that is still ongoing. As part of the retained EU law programme of work, as I said earlier in response to the noble Lord, Lord Fox, the Government are conducting a comprehensive review of all retained EU employment law in the context of the very high standards the UK already has to ensure that our regulations are specifically tailored to the needs of the UK economy, are workable in UK common law and help to create the conditions for growth and investment. That review includes the transfer of undertaking protection of employment regulations.

[Lord Collins of Highbury (Lab)]

Can I ask a simple question on TUPE? My fear is that we are not getting straight answers. Does the noble Lord think that it sets a good standard to protect workers in difficult circumstances? If he does, where does it need to be improved? If he is unable to answer those two questions, what are we to conclude?

[Lord Callanan (Con)]

I have already given the noble Lord examples of where UK worker standards and employment regulations are superior to the base standards of the EU. I cannot give him a specific answer to his question, as he well understands, because that work is ongoing, but it is ongoing in the context of the high standards that we already have. If any changes are proposed to that regulation—it may be that the change of interpretive effect will require some ongoing changes to the regulation; I do not know because that work is currently ongoing—the regulation will be presented to this House, when the noble Lord will no doubt want to comment on it.

--- Later in debate ---

[Lord Lucas (Con)]

In the context of some of the arguments advanced by my noble friend, has he considered extending the principle embodied in Clause 15(5), which says that, in particular subject areas, changes cannot increase the regulatory burden? This would address some of the points made in the amendments by giving an overall protection that workers’ rights will not be reduced by the changes made as a result of the Bill. It might give some comfort to those of us who support the Bill and do not doubt the Government’s intentions to see them embedded in law, in just the same way as they propose in Clause 15(5).

More generally, I am disappointed that my noble friend does not address the issue of the role of Parliament. To my mind, it is a great demonstration of the need for the House of Lords that this Bill has arrived in our House in this shape, and if we let it go out of this House in the same shape, we will demonstrate why we ought to be replaced.

[Lord Callanan (Con)]

I totally understand the point my noble friend makes; I am a passionate believer in the rights of this House and have happily stated on many occasions within government that in many cases we do a much better job of scrutinising legislation than the other House. It sometimes makes life a little uncomfortable for Ministers such as me defending this, but when I talk to some of my colleagues in the Commons, I realise how relatively little time is given to some legislation compared to this House.

I also understand my noble friend’s first point. I reiterate that it is certainly not the Government’s intention to reduce workers’ rights. The House will get tired of hearing me repeat it, but we have higher standards than most of the rest of Europe and we have every intention of maintaining that.

[Baroness Andrews (Lab)]

My Lords, before the Minister sits down, I should like to ask him one question. He has addressed the issue of the sunset clause in different ways; we have different opinions about that. Why were the Welsh and Scottish Ministers not given the same power to amend the sunset clause? They were not consulted about the Bill and have no powers in this respect.

[Lord Callanan (Con)]

They certainly have the power to examine, repeal or change EU law within their specific areas of competence.

[Baroness Andrews (Lab)]

The reason I raise this is because we are talking about the capacity of the Civil Service to do the things the Government are requiring of it. That challenge is infinitely greater for the devolved Administrations. One issue raised by the Bill is the impact the Bill has, deliberately or accidentally, not on the devolution settlement but on the capacity of Wales and Scotland to influence the way in which decisions about whether to retain, remove or amend instruments will be made. It is an extremely important point, and it deserves a serious response.

[Lord Callanan (Con)]

I thought I had given the noble Baroness a serious response. Within the area of devolved competence, the devolved Administrations have the same rights as the UK Government to amend, repeal or replace retained EU law.

[Lord Fox (LD)]

My Lords, I am assuming the Minister has now sat down. He touched on the interpretive effects that I raised in the set of amendments, but I do not think the answer was as full as we need. I think there will be other opportunities for the Minister to come back, and I will certainly press them. In the end, my assumption is that it will be up to the courts to decide which cases are in and which are out; it will be up to the courts and the lawyers who are pressing the courts to reinterpret or allow interpretations to continue. We need to know from the Government what is their assessment of the effect of that on this body of law and others across the spectrum we are discussing.

All Governments have to make choices, and the day-to-day push and pull of government can throw up many difficult dilemmas and severely stretch the national bandwidth for decision-making, but with this Bill, the Government are giving themselves 4,000 more choices they did not need to make. In opting to make these choices alone, without debate, discussion or consensus, each of these choices is bound to become a battleground, and each will be down to a Secretary of State—decisions that will call down attention from every corner of civil, legal, commercial and social society. So good luck with that, Minister.

The first amendment in the group illustrates some of the places where these battles will be fought across the country. No matter how close to their chest the Government play this, the arguments will not go away; indeed, the more secrecy and circumspection, the more suspicion will rise. The right reverend Prelate spoke about using the specifics to test the general, and this was an opportunity for the Minister to be more specific so that we could judge the general better. I do not think he has yet achieved that; however, we have six groups in very much in the same vein, so perhaps the Minister can work on his performance. In the meantime, I beg leave to withdraw Amendment 1.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

My Lords, I shall be relatively brief. These two regulations were covered in my Amendment 40, so it could be argued that I have already addressed them.

I want to focus on the points raised by the noble Lord, Lord Fox, and particularly by my noble friend Lady O’Grady about the impact of these regulations on women. I know that my noble friend was part of this because we were working together on the same campaign, when my noble friend Lady Prosser launched the campaign for part-time and temporary workers’ rights within the Transport and General Workers’ Union going out. We took it to Europe to try to persuade MEPs to support us. It would be good to hear whether the Minister responded positively to the campaign to protect part-time and temporary workers when he was an MEP.

These rights have had the most effect on women. Women often choose to work part time for all kinds of reasons, but there is no reason they should have less pay and poorer conditions as a consequence. I had the same conversations with the noble Baroness, Lady Neville-Rolfe, when she was part of Tesco. Tesco is one of the biggest employers of part-time workers and many women were thus able to support their families.

It comes back to the fundamental issue raised by the noble Baroness, Lady Altmann. Here we have a situation where we risk these regulations simply falling off the shelf because of an arbitrary date for a sunset clause. These are fundamental rights which have changed the lives of women and their families. If they fall off, we will have no say in it. If the Minister changes them and we do not like the changes, all we can do in this Parliament is to say no—which means we do not have the rights at all again. That cannot be right. I hope the Minister can reassure us again on the specifics.

[Lord Callanan (Con)]

I thank all those who have contributed. I listened with interest to my noble friend Lady Altmann but I am afraid that her points were incorrect. I will not repeat the points that I made on the first group about how UK standards are superior. Those standards were introduced in UK law by Governments of both persuasions and approved by the UK Parliament. I am tired of repeating this point, but they did not, and do not, depend on EU law. My noble friend obviously was not listening to the points that I made on the first group.

Let me respond to the noble Lord, Lord Fox, on Amendment 2. I apologise if I am repeating the same points as I made on the first group. We are essentially covering the same ground as Members opposite seek to probe me on specific regulations. As I said on the first group, it is the Government’s position that there is no need for specific exemptions or exceptions to the sunset clause.

There are something like 4,700 identified pieces of law—I hope that we are not going to go through this debate for all 4,700 of them, although maybe it would suit the Opposition to do just that. The Bill provides the tools to remove or reform retained EU law in secondary legislation, but—and this point is crucial—it also enables the Government to preserve and restate retained EU law. This allows for the preservation of the status quo and no change at all to the policy operation where it has been reviewed and deemed fit for purpose for our benefit here in the UK.

As part of this process, and as the Bill allows, the Government are reviewing all retained EU employment law to ensure that our regulations, including the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, meet the needs of the UK economy. We are doing so on the back of the fact that we already have much superior standards to most other countries in the European Union, and far in excess of what EU law legislates for. I appreciate that there is a principled difference between us on this, but I will keep repeating that point as many times as noble Lords ask me for exemptions.

Let me pick up the point made by the noble Earl, Lord Clancarty. I agree with him that the creative industries have made a substantial and sustained contribution to economic growth and job creation across the UK, growing, on average, at nearly twice the rate of the wider economy. The Government are completely committed to supporting these vital industries.

Let me repeat again that it is up to departments and the devolved Administrations as to what they wish to do with specific pieces of policy. With that, I hope that noble Lords will be content to withdraw or not to press their amendments.

[Baroness Altmann (Con)]

My Lords, I am struggling to understand my noble friend’s comments. If UK law is already stronger than retained EU law, why do we need to get rid of the retained EU law? What is the problem with retaining it on the statute book and going with our stronger protections?

[Lord Callanan (Con)]

I am sorry that my noble friend does not seem able to understand this, but the Bill provides the tools to remove or retain EU law. It also enables the Government—I repeat this point again—to preserve and restate retained EU law. If my noble friend had listened to our debate on the first group, she would know that I made the point to the noble Lord, Lord Fox, that there is some retained EU law in this area, and a lot of UK domestic legislation that builds on and intertwines with it. There is also the interpretative effects, which were originally aligned. Therefore, while maintaining the high standards that this Parliament has legislated for, and possibly extending those standards in some areas, it is incumbent on us, in order to tidy up the statute book, to make sure that all our laws work for the best interests of this country.

[Baroness Altmann (Con)]

My Lords—

[Lord Callanan (Con)]

Let me make the point to my noble friend before I give way to her again. Many of these regulations will indeed be preserved, retained or replaced. If it is the case that the Government come forward with such proposals, those regulations will be consulted on, and debated in the other place and debated here. My noble friend will have the opportunity to comment on them then.

[Baroness Altmann (Con)]

I thank my noble friend. I am still not quite sure what we can say to women, who currently have hard-won protections in the labour market, about where their future rights and protections will end up. We do not have a list of all the things that are going to be changed; the Government themselves have already said they do not necessarily know all the wider ramifications of this. If those protections are, in the view of a Minister, in need of change, and presumably being weakened, Parliament will have the opportunity to look at them. However, as the noble Lord opposite said, if they do not like them, they lose the whole lot.

[Lord Callanan (Con)]

My noble friend asks what she can say to women. She can tell them that they have one of the highest minimum wages in Europe as a result of the policies of this Government, that they are entitled to 5.6 weeks of annual leave compared with an EU requirement of four weeks, and that they are entitled to a year of maternity leave in the UK whereas the EU minimum is only 14 weeks—that is what she can say to women workers.

[Lord Fox (LD)]

My Lords, I believe I owe the Committee an apology. In withdrawing my previous amendment I said there were 4,000 unnecessary decisions facing the Government. I am afraid I was wrong. I have listened to the Minister and I understand now that it is 4,700 unnecessary decisions, on which the Government will be using important legislative and administrative bandwidth. I believe there are better things to be doing than this process, and perhaps in one of his other comments the Minister can explain why all this time is being wasted if, as he says, nothing will change—and that is our point.

When it comes to the question of interpretative effects, it is strike two. The noble Baroness, Lady O’Grady, and indeed the Minister himself, set out this intermingling of UK-derived, EU-derived and case law, and the fact that if we start pulling one piece of string there is a very great chance of it unravelling. The Minister has acknowledged there are interpretative effects, but we need a more detailed assessment of how the Government expect those to pan out as the courts get their teeth into the post-2023 situation. When I ask this in the next group, it might be better if the Minister undertakes to write a very detailed letter—possibly assisted by the department’s lawyers—that explains the legal view on how this is going to work. That is perhaps a way of avoiding me asking the question another few times.

At the end of the previous group, there was a very interesting intervention from the Minister’s own Benches on Clause 15(5), and how changes to the wording of that clause could begin to draw the sting of some of the arguments that we have heard so far and will hear later. The Minister might take to heart the advice that came from his own Benches.

We heard in the debate about the disproportionate effect that the stifling of this legislation could have on women, minorities, the creative industries and a wide group of people. That is why it was important to have this amendment in a separate group. However, given the nature of the debate, I beg leave to withdraw Amendment 2.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Baroness Crawley (Lab)]

My Lords, I shall speak to Amendment 145 in the name of the noble Earl, Lord Lindsay. This amendment, to which my name has been added, has the backing of the Safeguarding Our Standards consumer protection campaign and continues the theme of other exclusion or carve-out amendments in this group, in that it would ensure that the Bill will not apply to any regulations relevant to the Government’s forthcoming digital markets, competition and consumer Bill. Many believe that this DMCC Bill represents the most significant reform of UK competition and consumer protection law in years.

The noble Earl, Lord Lindsay, who cannot be here today, and I work closely together with the Chartered Trading Standards Institute, of which he is president and I am a former president. We thank both CTSI and Which? for their support and advice on this amendment. In the Autumn Statement, the Government committed to bringing forward the DMCC Bill in this Session of Parliament, and it would be good to know from the Minister when that Bill will be published—it is supposed to be imminent. It will provide important reforms to competition and consumer protection law, including providing the Competition and Markets Authority with significant new powers to promote and tackle anti-competition practices and, indeed, updating retained EU law, such as the Consumer Protection from Unfair Trading Regulations 2008, with measures to combat fake reviews and subscription traps. It is likely that businesses around the country will be reviewing their current approach to sales and marketing, given the expected new powers the CMA will impose as far as fines are concerned in relation to consumer law breaches through that Bill.

However, there is a very serious risk that the REUL Bill in front of us today will cut across what the Government are trying to achieve through the digital markets, competition and consumer Bill. That is why we believe that regulations that are in scope of the digital markets, competition and consumer Bill should be excluded from the retained EU law Bill. There is already a precedent for this, as the Financial Services and Markets Bill currently going through Parliament, which has already been talked about today, is excluded from the scope of the retained EU law Bill to avoid the risk of the two different pieces of legislation contradicting one another. We have not yet had a proper answer as to why this precedent is still there. The organisation Which? is, however, on record as arguing that the relevant clauses and schedule in the FSM Bill need to be improved to ensure that decisions about any remaining financial services retained EU law are accompanied by effective consultation as well as parliamentary and stakeholder scrutiny.

I urge the Minister to look carefully at this amendment in light of the need for robust competition and consumer law going forward in a very difficult economic time for many people and businesses.

[Lord Callanan (Con)]

My Lords, this debate has demonstrated what we already knew: there is retained EU law across all sectors of the economy, some of which is out of date and unfit for purpose. The Government have taken a sensible approach by requiring that this retained EU law is reviewed and updated equally and in the same timeframe. This makes sure that no specific policy areas get left behind. We have had essentially the same debate on all groups—with Opposition Members highlighting certain areas and saying, “This is very important”, and of course we agree with them, then asking for specific carve-outs, which is impossible until we have done the work reviewing it.

We reject Amendment 6. We think it is unnecessary and ask that it be withdrawn. The amendment would see legislation on artists’ resale rights excluded from the sunset provision. However, the UK Government have already committed to ensure that the necessary legislation to uphold the UK’s international obligations after the sunset date will remain in place. This can also be accommodated using the broader powers contained in the Bill. Again, we contend that there is no need for any carve-outs for specific policy areas.

Similarly, I disagree with the noble Lord’s additional Amendments 13 to 15, which would put various copyright computer programs and database regulations outside the scope of the sunset. The Government believe that an effective and efficient intellectual property system—

[Baroness Brinton (LD)]

I apologise, I was not quite clear about something the Minister said. He made reference to the issues relating to the creative industries being covered by broader powers. Could he help the Committee by explaining what those broader powers are?

[Lord Callanan (Con)]

There are a number of broader powers in different pieces of legislation. I can get the noble Baroness confirmation in writing, but clearly if it is retained EU law it is also subject to the powers in this Bill.

As I was saying, an effective and efficient intellectual property system is fundamental to the Government’s economic ambition. In common with the rest of the Committee, we continue to support a strong and effective IP system that delivers for all those who rely on it. As part of that, assessing retained EU law on intellectual property as a consequence of this Bill will only help to ensure that this remains the same.

Ministers across government are already working closely with their devolved Government counterparts on their retained EU law plans, taking decisions on whether to preserve, reform or revoke legislation, and developing delivery plans to ensure that all necessary action is taken well before the sunset date. Once this process is complete, the Government will update the House on their intentions for the areas where they will focus on reform.

Finally, I turn to Amendment 145, tabled by the noble Earl, Lord Lindsay. A digital markets, competition and consumer Act is not expected to exist when this Bill receives Royal Assent. As such, it is not possible for this Bill to reference that Act if it does not exist. The powers in the Bill will be used as necessary to ensure that all reforms proposed by a forthcoming digital markets Act will operate as intended. I hope that has provided noble Lords with reassurance and that the noble Lord will feel able to withdraw his amendment and the others will not be moved.

[Baroness Wheatcroft (CB)]

Forgive me for interrupting at this late stage, but could the Minister tell the Committee how much time he thinks will be necessary to update the House on what is happening to the 4,700—and growing—pieces of legislation?

[Lord Callanan (Con)]

If the noble Baroness has been listening to the debate so far, she can reference the dashboard with the 4,700 pieces that are listed. As has been said in previous debates—we have been through this at great length now—the dashboard will be updated as the Government’s intentions, once this review has been carried out, become clear.

[Baroness Wheatcroft (CB)]

The Minister said that, once decisions had been taken, he would update the House on the outcome for the 4,700 pieces of legislation. It was that I was querying.

[The Earl of Clancarty (CB)]

The Minister mentioned that a decision had been made to continue artists’ resale rights. Where was that original decision made and will it continue in the same form that it is now?

[Lord Callanan (Con)]

The Government have signalled our general intention and the importance of the IP protection regime, which of course involves artist resale rights. We have stated our intention for that regime to continue, and we will of course update the House as soon as we have more information.

[Baroness Brinton (LD)]

My Lords, I thank the Minister for his reply. Like other noble Lords, I thank all three Ministers for responding to a Committee that is clearly concerned about what is going on in the Bill. The hour is late, so I will be brief.

The noble Earl, Lord Clancarty, was right to be concerned about the consequences for artists after 1 January next year. I was particularly concerned about the definition of “broader powers”, and I recognise that other noble Lords have made comments or asked questions about what is happening first. The real message from this is that it is a great shame that we are rushing a group of amendments on the creative industries, which are vital to the growth of UK plc. None of the Bill seems to deal with law that is out of date, and that needs to be looked at.

The message for the day from all these groups is that the Government really should consider pausing the Bill. On every amendment we have debated today, there has been concern about the order of information coming out, so that Parliament, stakeholders or consumers can be aware of what is going on. It feels like this is all happening back to front. So I hope that the Government will take that seriously.

[Lord Callanan (Con)]

I will issue a clarification: it is actually 3,700 pieces of retained EU law, not 4,700, as I inadvertently said.

[Baroness Brinton (LD)]

I am grateful for that clarification, but it exactly makes the point that every noble Lord made this afternoon.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Hendy (Lab)]

I shall speak to Amendment 63, to which I added my name to those of the three noble Baronesses, Lady Jolly, Lady McIntosh and Lady Finlay. Amendment 63 would protect health and safety by requiring a health and safety assessment of each piece of legislation which will, or may be, repealed or revoked by the Bill. I shall confine my comments this evening to a subset of legislation which might have an impact on health and safety, and that is the law relating to health and safety at work. Obviously, I support the arguments so eloquently advanced by the noble Baronesses, but I should like to advance a different argument. It is a matter that has been raised in debates on the Bill a number of times, but in general terms: the EU-UK Trade and Cooperation Agreement. I should like to deal with that specifically in relation to health and safety at work.

I shall read to the Committee the relevant words of the trade and co-operation agreement, beginning with Article 386. It is only a few sentences; no one need fear that I shall keep them here for hours. Article 386.1 states:

“For the purposes of this Chapter, ‘labour and social levels of protection’ means the levels of protection provided overall in a Party’s law and standards in each of the following areas”.


It sets out a number of areas, of which paragraph (b) is

“occupational health and safety standards”.

Article 387.2 states:

“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.”


So the United Kingdom has signed up in a treaty to not weakening or reducing its occupational health and safety standards in a manner which might affect trade or investment. Bearing in mind what the noble Lord, Lord Clarke of Nottingham, said earlier this evening about the objective of the Bill being to reduce costs—one would add, in order to make British industry more competitive—it is clear that this article is engaged.

There is just one more article to which I draw attention, Article 399.5, which says:

“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted”.


There, the commitment of the United Kingdom is the implementation of ILO conventions and European Social Charter provisions ratified by the UK. I can assist on what those are in relation to occupational health and safety; there are only three passages that I need to share with your Lordships. First, there is ILO Convention No. 187, the Promotional Framework for Occupational Safety and Health Convention 2006, which was ratified by the United Kingdom. Article 2 of it states:

“Each Member—


each member state, that is—

“which ratifies this Convention shall promote continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths, by the development, in consultation with the most representative organizations of employers and workers, of a national policy, national system and national programme.”

Article 3 says:

“Each Member shall promote a safe and healthy working environment by formulating a national policy … Each Member shall promote and advance, at all relevant levels, the right of workers to a safe and healthy working environment … In formulating its national policy, each Member, in light of national conditions and practice and in consultation with the most representative organizations of employers and workers, shall promote basic principles such as assessing occupational risks or hazards; combating occupational risks or hazards at source; and developing a national preventative safety and health culture that includes information, consultation and training.”


Article 4 says:

“The national system for occupational safety and health shall include among others … laws and regulations, collective agreements where appropriate, and any other relevant instruments on occupational safety and health”.


The European Social Charter is even clearer. Article 3, which was specifically ratified by the United Kingdom, on

“The right to safe and healthy working conditions”,


states:

“With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Contracting Parties undertake … to issue safety and health regulations … to provide for the enforcement of such regulations by measures of supervision … to consult, as appropriate, employers’ and workers’ organisations on measures intended to improve industrial safety and health.”


It is quite clear that, if the current raft of provisions on health and safety at work, some of which I listed at Second Reading, is revoked or diminished, we will be in breach of the EU-UK Trade and Cooperation Agreement. The only way we can avoid that is by the Government exempting health and safety at work in the same way as they propose to exempt the financial sector through Amendment 45. Will the Minister give that assurance?

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, we have had almost an hour on this topic.

[Lord Davies of Brixton (Lab)]

My Lords—

[Baroness Bloomfield of Hinton Waldrist (Con)]

The Minister must be allowed to speak.

[Lord Callanan (Con)]

I will start by speaking to government Amendments 31, 41, 45, 52, 138 and 144. Amendments 31, 41 and 144 remove relevant subsections from the Bill as they are now included in the new clause. These are purely for drafting clarity and therefore do not change the policy intent or effect of this Bill in any way.

[Lord Davies of Brixton (Lab)]

My Lords, I am being denied my right to speak.

[Lord Callanan (Con)]

The proposed new clause tabled in Amendment 45 sets out clearly and in one place all the exceptions to the sunset in Clause 1. It includes exceptions that were previously located elsewhere in this Bill.

[Lord Davies of Brixton (Lab)]

This is outrageous.

[Baroness Chapman of Darlington (Lab)]

I was quite happy not to speak in this debate. I did not table an amendment. I would like to have spoken to amendments tabled by the noble Baroness, Lady McIntosh of Pickering, and other noble Lords, but I have denied myself that. Much as I would like to go home, the same as everyone else, I find it quite extraordinary that the Minister is not willing to allow a noble Lord who has sat here since the beginning of this debate and during earlier groups too to make even a couple of short remarks.

[Lord Callanan (Con)]

They are not short remarks. They are nothing to do with the amendments in question. The noble Lord, Lord Hendy, has just spoken for about 10 minutes on issues that are totally unrelated to the subject in question. On group 1, we discussed all the labour law provisions at great length. They are raising irrelevant points.

[Lord Davies of Brixton (Lab)]

On the previous day in Committee, I raised the issue and the Minister said explicitly that we could debate it at a later stage on this clause. He is now breaking his word. He explicitly said that we could discuss the issue that I wished to raise.

[Lord Callanan (Con)]

Okay, let the noble Lord raise his point.

[Lord Davies of Brixton (Lab)]

I wish to address subsection (1)(a) of the new clause. It is about process rather than the issues. I support the issues that have been raised by my noble friends, but the issue of process is important and comes up under this section.

I was unable to be present at Second Reading because I was taking part in Committee of the Financial Services and Markets Bill, which is directly relevant to this clause, as the Minister well knows, because the clause excludes the European regulations covered by that other Bill. I asked in Committee on that Bill why there was a difference in treatment. Why do we have one Bill for these regulations and another for the other regulations? In that debate, the Minister, the noble Baroness, Lady Penn, said that unlike the approach taken with this Bill, that Bill repeals retained EU law in financial services. She continued:

“The Government will continue to repeal and replace the contents of Schedule 1 until we have an established a comprehensive FSMA model of regulation.”—[Official Report, 25/1/23; col. GC 71.]


The important point is that the Financial Services and Markets Bill had an extensive two-year period of consultation, on the principal legislation and on the regulations. There were two formal consultations; the Bill had 346 pages; there was a Public Bill Committee session of nine meetings, eight oral witnesses, 54 items of written evidence, an Explanatory Memorandum, and extensive debate and discussion.

At Second Reading of this Bill, the Minister said:

“Without the sunset as a default for retained EU law, we risk unsuitable or obsolete EU laws still being on our statute book in 10, 15 or even 20 years’ time.”—[Official Report, 6/2/23; col. 1080.]


What is the difference between the rules under the two Bills? It is not a simple technical issue; it goes to the heart. It is the process being adopted. I want a satisfactory answer from the Minister on what the difference is between the two Bills. The crucial difference is that in the financial services Bill, there is no sunset clause. I could go on at length. In view of the time, I simply ask that question.

[Lord Callanan (Con)]

I will address the noble Lord’s point at the end of my remarks, after I have moved the government amendments.

I think I had got to the new clause tabled as Amendment 45. The new clause sets out clearly and in one place all the exceptions to the sunset in Clause 1. I will explain the financial services issue at the end.

It includes exceptions that were previously located elsewhere in the Bill but have now been consolidated into the proposed new clause, such as exceptions for instruments specified in regulations—the preservation power—and for relevant financial services law. It also contains a number of amendments that will help departments deliver our ambitious EU law reform programme. The first of these is to ensure that, when a decision is taken to preserve retained EU law, any legislation that is made or has effect under it will also be preserved alongside the parent legislation, without it having to be individually specified in regulations. The parent legislation establishing a regime, for example, would still be reviewed under the programme but, once a decision to keep such a regime is made, it will not be necessary to reassess every single licence, for instance, or decision issued under that regime.

The second of these amendments allows for the preservation of a description of minor instruments, without the requirement to individually identify and specify them. This includes where these instruments are made directly under primary legislation that is not in scope of the sunset. This and the previous amendment remove the need to individually list large numbers of what might not be traditionally considered legislative instruments in order to preserve them.

A third minor amendment would remove any existing “transitional, transitory or saving” provisions from the scope of the sunset. In a number of areas we have already reformed retained EU law and, in some cases, we have made “transitional, transitory or saving” provisions, whereby some aspects of the previous legislation were saved to support implementation of or transition to the new regime. The aim of the Bill is not to undo or revoke retained EU law reform that has already been made. Thus, this amendment will ensure the continued legal operation of retained EU law that has been identified as necessary to serve a particular purpose, often for a time-limited period.

Finally, this proposed new clause introduces new wording to ensure that references to instruments or provisions in preservation SIs apply only so far as the provisions would otherwise sunset. Consequently, this puts beyond doubt that, where an SI references instruments that contain provisions that are not in scope of the sunset, the instrument is still lawfully made within the power.

Ultimately, this new clause provides drafting clarity. It will make the exemptions to the sunset much clearer, gathering them all in one place. It also introduces four minor and technical amendments that I have just explained in detail but that do not change the overall policy. They facilitate departments to preserve legislation more easily, where they deem it appropriate to do so, and respond to many of the points made in the debates on previous groups.

Amendment 138 is also minor and technical, and serves merely to change the reference to Clause 1 in Part 3 of Schedule 4 to a reference to the new clause created by Amendment 45.

Amendment 52 will update the drafting of the new clause, but in Clause 2. It will insert the wording “so far” after “section 1”. In effect, this will ensure that references to specified instruments or provisions in extension SIs apply only to those provisions so far as they are in scope of the sunset, and do not relate to any provisions not in scope of the sunset.

These amendments are all minor drafting clarifications or changes and do not change the scope of the sunset or the policy of the Bill. I hope noble Lords will look at Hansard if they want the details of them.

There are a large number of other amendments that seek to limit the ambitions of the sunset or to insert additional complex processes into the operation of the sunset clause. It is our belief that none of these is appropriate for this Bill and that they are likely only to hamper efforts to realise the opportunities that the Bill presents.

To start with, Amendments 46 and 47 tabled by the noble Baroness, Lady Young, aim to amend government Amendment 45, which I have already discussed. To reiterate, the exceptions within Amendment 45 are only sector-specific in the case of financial services, where the retained EU law in question will be reviewed via the separate legislation to which the noble Lord, Lord Davies, already referred, which is already being planned and implemented. The legislation put forward by the noble Baroness would not be appropriate to remove from the scope of the sunset. We just had a very long debate on the issues with exempting specific environmental legislation from the scope of the sunset, and I hope noble Lords accept that we do not need to repeat that on this group.

I turn to Amendments 26 and 48, tabled by the noble Lord, Lord Fox. The consulting and reporting requirements introduced by these amendments would limit the sunset as a key driver of reform and would therefore narrow the ambition.

A significant minority of retained EU law is also legally inoperable. Removing it from the statute book swiftly is good democratic governance. Requiring the Government to undergo complex and unnecessary parliamentary processes to remove legally inoperable retained EU law that is unnecessary and no longer fit for purpose is not good governance.

Where reforms are being made to retained EU law, the normal processes of consultation will of course be followed where appropriate and the relevant reforming legislation scrutinised as usual. It is not necessary to add additional complexity to the existing legislative process.

[Baroness Bennett of Manor Castle (GP)]

The Minister referred to Amendment 26 and 48 as additional complex processes. Does he not acknowledge that these would protect the Government from themselves, in that the implementation would ensure that regulations—which might not be on the dashboard, or might be unspecified or, as others have called them, “unknown unknowns”—would not lapse? They would ensure that everything that was going to lapse was identified, because if it had not been identified and had this report, it would not lapse.

Furthermore, the Government are relying entirely on the knowledge of the department. If they have a consultation before anything is removed, that would draw on the knowledge of all of civil society and the expert community to ensure that there is full knowledge before any changes are made.

--- Later in debate ---

[Lord Callanan (Con)]

No, I do not accept that, because the vast majority of the rule that would be allowed to sunset is now legally inoperable and not working. My noble friend Lord Benyon gave some examples earlier of the kinds of measures that we are thinking about. All of the major legislation that everybody is concerned about, and which has been raised at great length, will be subject to the existing provisions. It can be saved if it is appropriate, or it can be allowed to be reformed, in which case there will be the normal processes of consultation and approval of both Houses that everybody has been concerned about.

I turn to Amendment 63 from the noble Baroness, Lady Jolly. Again, it is not necessary to add a lengthy and complex process to every revocation of retained EU law. The Bill already contains appropriate scrutiny mechanisms to ensure good democratic governance.

Amendments 27 and 28 are proposals to push back the sunset date to 2028. Again, we do not think that these amendments are appropriate. I suppose I am grateful to my noble friend Lady McIntosh of Pickering for acknowledging that we actually need a sunset. The principle of it is agreed, but we disagree on whether 2023 will work. I submit that it will. I understand that many noble Lords are concerned about the timelines in the Bill, and that this amendment seeks to push back what is wrongly perceived as a “cliff edge” date. Firstly, the 2023 sunset date was chosen because it is the quickest and most efficient way to enact retained EU law reform. It will allow us to swiftly remove retained EU laws that are no longer appropriate and are not in the best interests of UK businesses and consumers.

Secondly, I reassure the House that this is not a new programme. Work is well under way in each department and has been for over a year. Departments are continuing to draw up plans for every piece of retained EU law in scope of the sunset. Noble Lords heard earlier about Defra’s plans, and departments will provide further detail on their own particular plans in due course. Of course, the Department for Business and Trade will continue working closely with other government departments and the devolved Governments to ensure that all appropriate actions are taken well ahead of the sunset date.

As further reassurance, let me remind the Committee that the extension mechanism in Clause 2 ensures that, should more time be required to review and amend retained EU law, the sunset can be extended for specified pieces of legislation until 23 June 2026. This will give departments plenty of time if there is more complex reform that they want to undertake.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think it is just a way of describing the 10-year anniversary of the referendum vote. It is just vernacular—

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

The process is finally complete.

[Baroness Bloomfield of Hinton Waldrist (Con)]

The process is finally complete, as my noble friend suggests.

On impact assessments, properly assessing the impact of government policy is an important principle of good governance, and the Government will continue to be committed to the appraisal of any regulatory changes relating to retained EU law. The nature of this appraisal will depend on the type of changes the departments make and the expected significance of the impacts. Where measures are being revoked, departments will be expected to undertake proportionate analytical appraisal, and we are exploring the appropriate steps we can take to appraise the resulting impacts.

I am fully conscious that a number of other specific points were raised, but I undertake that we will write back, particularly on methodology and definitions. However, for the reasons I have outlined, I ask the noble Baroness, Lady Humphreys, to withdraw her amendment.

--- Later in debate ---

Moved by

[Lord Callanan]

31: Clause 1, page 1, line 7, leave out subsection (2)
Member's explanatory statement
This amendment removes a power to except things from the sunset. The power is contained in new Clause (Exceptions to sunset under section 1).

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Crawley (Lab)]

My Lords, very briefly, I support this group of important amendments. In particular, I support Amendment 43 in the names of my noble friend Lady Chapman of Darlington and the noble Lord, Lord Fox. Through it, only legislation identified and approved by Parliament could be revoked, and that is the responsible, democratic and considered way to proceed.

Amendment 43 would put responsibility for a timetable of revocation back with Parliament, so that the Government cannot claim that it is an open-ended approach. It also begins to answer the very important questions around the complete lack of executive accountability raised by our Delegated Powers and Regulatory Reform Committee and Secondary Legislation Scrutiny Committee. So many sectors and people are affected by the Bill and do not want Parliament to be taken for granted, as the noble Lord, Lord Hodgson of Astley Abbotts, put it.

I will concentrate for half a minute on consumer protection. As the vice-president of the Chartered Trading Standards Institute, I will reflect some of the fears raised with me over the past weeks and months.

[Lord Callanan (Con)]

My Lords—

[Baroness Crawley (Lab)]

The Minister is heckling me from a sedentary position.

--- Later in debate ---

[Lord Callanan (Con)]

We discussed consumer protections in an earlier group. The noble Baroness may have made the same points then. I do not see the point of repeating the same arguments yet again. If she has some points to make on the amendments we are discussing today, perhaps she would like to make them.

[Baroness Crawley (Lab)]

The Minister has not heard what points I make; I do not know how he can say I am making the same points. The Bill affects sectors right across the UK—people, businesses, trade unions and consumers—and that is why I am raising this. I think the Minister should not have intervened. It is Committee and I have every right to make a minute’s worth of comment.

[Baroness Chapman of Darlington (Lab)]

I shall be very brief, because I can see we are testing the Minister’s patience. He perhaps needs to indulge in some breathing exercises or something—maybe yoga, I do not know. We are not deliberately detaining Ministers here; we are trying to do our jobs thoroughly.

I quite rudely interrupted the noble Lord, Lord Kerr, earlier, in my enthusiasm to understand the point he was trying to make. He needed no help from me in making his case, but I do not want the point to get lost when the Minister responds. The noble Lord asked a really important question about what is going to happen if a piece of law is lost because the search process did not identify it. How will a court know that it should not be adjudicating based on that piece of law? How will a citizen know that a piece of law is no longer applicable because it was lost as a result of this process? This is such an important point that has not come up before this group of amendments. It will be very difficult for us to engage positively with subsequent groups without having a full, comprehensive answer to the question of the noble Lord, Lord Kerr. I do not want that to get lost in what I am sure is going to be a comprehensive and enlightening response from the Minister.

[Lord Callanan (Con)]

I thank the noble Baroness for her suggestion of doing some breathing exercises. I apologise to the noble Baroness, Lady Crawley, if I was maybe a bit short, but I was seeking to make the point that we had a debate on consumer protection policies on an earlier day in Committee, and I thought she was about to repeat the points that had been made. I am trying to get the House to focus on the amendments we are discussing, because we are making very slow progress. Be that as it may, I realise that noble Lords want to make their general points as well.

Yet again, we have had a lively debate. I and other Ministers have listened closely to the points that noble Lords have made; I hope I will satisfy the noble Baroness, Lady Ludford, in that I will not be dismissive of them. It is my job to set out the Government’s position on the amendments we are discussing. I am not dismissing noble Lords’ concerns at all, but I suspect that we will have a difference of opinion. Nevertheless, let me give it a go.

I start with Amendment 32 in the name of the noble and learned Lord, Lord Judge, relating to the operation of the sunset clause and additional layers of scrutiny. It is similar to Amendment 50 in the name of the noble Lord, Lord Fox, which would in effect ensure that retained EU law remains on the statute book unless specified by regulations which have gone through a super-affirmative procedure. In essence, this amendment would block—I think he knows this—the UK from conducting the economic reforms we want to see to drive much-needed growth. Our position is that making it harder to remove regulations—I understand why noble Lords want to do that—would hamper the UK’s growth, be detrimental to the UK and fundamentally undermine the aims of the Bill. I understand that many noble Lords want fundamentally to undermine the aims of the Bill, but this is not something that the Government can accept.

I agree with noble Lords; it is of course right that we ensure that any reforms to retained EU law receive proper scrutiny. That is why we have already ensured that the Bill contains robust mechanisms that will enable the appropriate level of scrutiny of any amendments to retained EU law made by the powers included in the Bill. This includes a sifting procedure that will apply to regulations under Clauses 12, 13 and 15 to ensure that Parliament can assess the suitability of the procedures being used for statutory instruments.

Once the Bill—I hope—receives Royal Assent, work on reform will continue in individual departments. They will prioritise some of the work they are already doing in areas of retained EU law reform and lay all the appropriate statutory instruments. The process will include, as appropriate, designing policy and services, conducting all the necessary stakeholder consultations, drafting the necessary impact assessments and supporting any individuals who may be impacted by any such reform.

Amendments 42 and 43 propose to remove the sunset entirely and replace it with systems individually to revoke each piece of retained EU law, with specifications for unnecessary parliamentary approval or limitations that mean that legislation can be revoked only in line with a fairly cumbersome and, in my view, needlessly complex list of criteria. Again, I do not expect noble Lords to agree with me on this, but the Government’s position is that the sunset is an integral part of the Bill’s policy. It ensures that we are proactively choosing to preserve EU laws only when they are in the best interests of the United Kingdom. However, I appreciate that the public should know how much legislation is derived from the EU and the progress the Government are making to reform it. For that reason, we have published the dashboard containing this list of government retained EU law, about which there has been much discussion.

This dashboard will also document the Government’s progress on reforming retained EU law and will be updated regularly to reflect plans and actions taken. We intend to be clear and transparent throughout the process and when exercising the powers in the Bill, if they are approved by Parliament. In our view, introducing another burdensome process that does not efficiently allow us to remove inoperable and outdated legislation is not good practice.

Amendment 44, tabled by the noble Lord, Lord Carlile, would entirely undermine the ambition of the Bill by replacing the sunset with a full-time commission that would consider retained EU law over—I think it is fair to say—a much longer period. Considering that work to review and take action on retained EU law before the sunset date is already well under way across all departments and is being done by those who already have the expertise in these policy areas, I submit to the noble Lord that this alternative is entirely unnecessary. It would be little more than a talking shop at a time when the UK should be focused on this sensible reform which will help the economy to grow.

--- Later in debate ---

[Lord Krebs (CB)]

Can the Minister provide us with the documentary evidence that this Bill will support growth?

[Lord Callanan (Con)]

It is a long-established principle that removing and reforming unnecessary and outdated regulation will help the economy to grow. I certainly believe that; the noble Lord might disagree with me but that is my position.

[Lord Krebs (CB)]

My question was whether he could bring evidence before the House—not an assertion but evidence.

[Lord Callanan (Con)]

Ultimately, this is a political point. The most successful economies in the world are those which have relatively low levels of regulation. The noble Lord and I may have a political difference, but I am sure that we can all propose lots of different examples from think tanks and studies for our different political positions.

[Baroness O’Grady of Upper Holloway (Lab)]

Can the Minister explain exactly what will be retained and what will not? He said that work was under way in departments and implied that stakeholder consultation would be a critical part of that. Can he confirm whether there has been any consultation with trade unions on, for example, the working time directive? Although there has been discussion about active removal of legislation, there is real concern that vital protections will be actively allowed to fall off that cliff edge, such as the working time directive. Has there been any consultation with key stakeholders so far? Which particular pieces of legislation will be allowed to fall off as opposed to just falling off by accident? Currently, employers and unions certainly do not know.

[Lord Callanan (Con)]

I know that the noble Baroness feels passionately about labour regulations. We had an extensive debate about this in the first grouping, on labour law. I am happy to go through the issues with her again if she wishes but she knows that the Government’s position is that UK workers’ rights on maternity provision, holiday pay, the minimum wage and so on substantially exceed the basic standards in EU law and those in many other EU countries. Our commitment to workers’ rights is substantial, as I said to the noble Baroness when we discussed this at great length the other day. The department is currently reviewing labour law in the context of maintaining high standards on workers’ rights. When that work is complete, if any new statutory instruments are brought forward, the normal process of consultation will apply. I am sure that that will result in consultations with the trade unions as well.

[Lord Hope of Craighead (CB)]

I am not quite sure that the Minister has grasped the point of the noble Baroness. She is asking about legislation that will disappear. The problem with this is that it may involve legislation that requires people to spend money or conduct some other activity; they will not know that it has disappeared and will go on spending the money, and there is no way to get it back again. The noble Baroness raises quite a serious point about the lack of knowledge and the difficulty of things disappearing without their being identified before the disappearance happens.

[Lord Callanan (Con)]

I know that many noble Lords want to make the point that, somehow, major pieces of retained EU law will suddenly just accidentally disappear from the statute book. We have conducted a very authoritative process of assessing what is retained EU law and what is not, and we are very satisfied that departments know exactly the legislation for which they are responsible.

It is not entirely clear—this goes back to a point that the noble Baroness, Lady Ludford, made the other day, with which I agree—because successive Governments over the years have used different processes to assimilate what was an EU obligation into UK law. Even if departments know what law they are responsible for, they do not necessarily know the process by which it was introduced, or whether that law was as a result of an EU obligation or not. The Government introduced earlier amendments to remove any legal risk of an SI being quashed if it contained a provision preserved as REUL that later turned out not to be one. Our advice to departments is that where they are not sure, it should be preserved.

[Lord Fox (LD)]

My Lords—

[Lord Callanan (Con)]

Can I explain this point please, and then I will take the intervention from the noble Lord?

We are satisfied that departments know the law for which they are responsible. They do not yet know whether it is a retained EU law—in other words, whether it was done in respect of an EU obligation or not. The default position that we are suggesting is that it should be retained if they are not sure, but we have tabled an SI to put that position beyond doubt. I will take one more intervention on this.

[Lord Fox (LD)]

I apologise for my enthusiasm causing a truncation of the Minister’s response. Does he at least understand, if he does not accept, that as long as the Government resist suggestions such as come through in these amendments, whereby a list of the laws that are covered by the Bill is laid before Parliament and officially and definitively made available—not a catalogue, as we have been promised but a definitive and complete list, of the sort of laws that not only the noble Baroness but all of us feel passionately about—we are bound to be fuelled by distrust?

[Baroness Ludford (LD)]

Before the Minister replies, I add that what the Minister is saying now directly contradicts the letter we had the other day from the noble Baroness, Lady Bloomfield, which we discussed. The distinction is made by the Government between an authoritative catalogue and a comprehensive list. The Government admit that the dashboard is not comprehensive, so how can each department possibly know all the EU law it is responsible for? As anyone can, I can give examples—and I am grateful to the organisation Justice, of which I should declare I am a vice-president, for giving two examples of direct effect treaty articles and directive clauses which are not on the dashboard, which cites only 28 in that category. That is Article 157 of the treaty and a clause of the habitats directive. They are not on the dashboard, so how are we meant to believe that departments know exactly what law they are dealing with?

[Lord Callanan (Con)]

I just explained that point in my earlier answer. The noble Baroness can look at Hansard and come back to me if she is not satisfied with that explanation.

To go back to the intervention from the noble Lord, Lord Fox, let us accept for the purposes of making his point that, as he said, huge swathes of vital REUL will somehow accidentally disappear. The Government do not accept that; we think it is extremely unlikely. However, I understand the point he makes. I refer him to the answer that my noble friend Lady Neville-Rolfe gave to a similar question yesterday. We understand the point that noble Lords are making, we will reflect on that issue and, if necessary, come back to it. Without making any promises, we will reflect on whether that is possible. Obviously, being a member of the Government, I trust them, but I accept that other noble Lords may not have the same faith in what we are doing. It is essentially intended to be a constructive process.

Moving on, Amendment 44A seeks to omit the sunset from the Bill and allow the repeal, revocation or amendment of retained EU law to be carried out only via primary legislation. Currently we are unable to keep retained direct EU legislation up to date with new advances, precisely because of that problem—because some of it is regarded as primary legislation. For those who still wish us to reflect EU law, we cannot even update it in line with any EU changes or new advances because, if we decided to do so, we would need to do it through primary legislation, and parliamentary time does not allow for that. This is creating more legal and business uncertainty, as regulations become more and more out of date and burdensome. The Bill is therefore designed to rectify this issue. This amendment, however, would instead maintain the status quo, which we do not believe is either helpful or beneficial to anyone. Again, I understand that, if people wanted to undermine the fundamental purpose of the Bill, they would support that amendment.

[Lord Deben (Con)]

Does my noble friend accept that that is an argument against democracy? Evidently, because it is difficult, we are going to change the law without asking Parliament. My noble friend has made an argument against democracy; that is what we are arguing about.

[Lord Callanan (Con)]

I am afraid that the noble Lord is talking nonsense, as he often does, on this regulation.

[Noble Lords]

Oh!

[Lord Callanan (Con)]

Let me explain the position. We are downgrading the status, if it needs to be changed through primary legislation—if it was introduced by the EU, through what I would submit was a relatively undemocratic process, in that Parliament had no say on it in the first place—so that if we wish to change the law, it will be changed through secondary legislation, which, as my noble friend very well knows, Parliament will of course get a say on. There are approximately 3,700 pieces of secondary retained EU law. Some of these are inoperable, outdated or not the best fit for our economy. Amending secondary retained EU legislation through sector-specific primary legislation, where it cannot be amended by existing delegated powers, would take decades and would not allow the UK to seize the opportunities of Brexit swiftly. Let me give the Committee an example to help noble Lords understand how long it would take to change all these pieces of law through primary legislation. The Procurement Bill was introduced in May 2022 and addresses only four pieces of retained EU law but contains more than 350 separate EU regulations.

Amendment 62A would replace the repeal of Section 4 with a committee providing advice to Parliament on actions over a five-year period. This would unnecessarily delay the actions being taken by this Bill to bring clarity to the complex legal effects that currently apply to business and citizens in this country. The amendment may be seeking to effect a broader replacement of the Bill’s sunset of retained EU law, although the amendment concerns Clause 3 only. The arguments on the sunset have already been addressed, although I highlight again that, in our view, a sunset is the quickest and most efficient way to achieve much-needed reform and planning for future regulatory changes. I therefore hope that the noble Lord, Lord Whitty, will agree not to press his amendment.

Finally, I will move on to Amendment 141A in the name of the noble Lord, Lord Lisvane. The amendment would impose a set of criteria with which Ministers must comply to exercise the powers to revoke or replace. These criteria would result in legislation that is made under the powers being subject to the super-affirmative procedure. The purpose of this Bill is to ensure that we have in place the right regulations that we think are the right fit for the whole of the United Kingdom. It is our view that it is only right that unduly burdensome and outdated regulations can be revoked or replaced with regulations that are proportionate. Requiring that the powers are subject to additional scrutiny is not appropriate, in our view, and requiring that legislation be subject to further scrutiny through the super-affirmative procedure would not be an effective use of parliamentary time and would result in delaying departmental delivery plans for REUL reform. This would place additional pressure on parliamentary time and could delay the Bill in delivering its objective of bringing about REUL reform. For that reason, the Government cannot accept this amendment.

In summary, Clause 1 is the backbone of this Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law that remains, in my view, a far too prominent feature of the UK’s statute book.

[Lord Kerr of Kinlochard (CB)]

I think I understood from what the Minister said a few moments ago that I will not get an answer to the question I posed on Tuesday. This time I think he said that he understood the point and would reflect on it. I do not quite know what that means but it is certainly an advance on Tuesday’s position, when the Government were just going to reflect. If we have now reached understanding the point, then we are on the right track.

The point about default is whether we are risking a situation where the courts next year, and in the following years, will have to rule in cases on whether a newly discovered piece of law was retained EU law and therefore died at the end of this year or was not retained EU law and is therefore still in effect. Is it sensible that the default is that the Act is dead? Would not a more sensible default position be that the currently undiscovered but in due course discovered Act remains in force until it is repealed, amended or prolonged? I just do not understand why that uncertainty must be introduced.

[Lord Callanan (Con)]

For the purposes of clarification, I was merely repeating a similar point to the one made by my noble friend Lady Neville-Rolfe. We will reflect on whether it is possible to publish a comprehensive list of laws that might sunset.

I return to the point I made earlier: we are satisfied that the department has identified all the laws for which it is responsible. Lawyers are currently going through it all and our advice to them is that if they are not sure whether or not a law is retained EU law, they should default to preserving it if they think it is important. I hope that answers the noble Lord’s point.

As I was saying, Clause 1 is the backbone of the Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law. The amendments tabled by noble Lords would add unnecessary time and complex burdens to this process, which, of course, may be the purpose of many of them.

[Baroness Chapman of Darlington (Lab)]

I do not think the Minister referred to my Amendment 43. Can he do that before he sits down?

[Lord Callanan (Con)]

Can somebody remind me what Amendment 43 is, please? I thought it was in my notes.

[Baroness Chapman of Darlington (Lab)]

Amendment 43 puts a safety net around measures that may be lost because they were not identified by the Government. The situation that the noble Lord, Lord Kerr, identified sounds horrific. You would be in a situation where the Government have, through this Bill, decided that something is revoked but nobody has told anybody that it is revoked. The Government have not even told themselves that it is revoked, so is it revoked? My amendment would help deal with that. The Minister might be attracted to at least considering that.

[Lord Callanan (Con)]

I think I referred to that in an earlier part of my speech. I addressed Amendments 42 and 43, but it all comes back to this central point of the so-called accidental sunsetting that noble Lords have raised. The noble Baroness’s amendments propose to remove the sunset entirely and replace it with systems to individually revoke each piece of EU law. I did refer to that earlier, but I will look back at what I said and if I did not refer to that directly, I will write to her. The Government think that the sunset is appropriate. I entirely accept that many Members of this House do not, but the elected House of Commons certainly did, by large majorities.

I think that I have covered most of the points now. Noble Lords might not like the answers very much but that is the Government’s position.

[Baroness Butler-Sloss (CB)]

One issue that I have not understood the Minister to have dealt with is the issue raised by the noble Lord, Lord Deben, on democracy.

[Lord Callanan (Con)]

I think the noble Lord, Lord Deben, and I had a political difference on that point. He seems to think that secondary legislation is somehow undemocratic. If those making this complaint were to look back through Hansard to see whether they made the same complaint about the way that the law was introduced into UK law in the first place, I would have a little more sympathy with their argument. This is an essentially political disagreement about which is the most appropriate way to proceed. The Government have been elected with a big majority. One of the backbones of our programme was to get Brexit done.

[Noble Lords]

Order!

[Lord Callanan (Con)]

I think I have already taken two interventions from the noble Lord, Lord Fox, but I will take one more.

[Lord Fox (LD)]

I thank the Minister; I appreciate it. I thought he dealt with the democracy issue, to some extent, and cited that it was inconvenient to have to have primary law. The Minister used the Procurement Bill as his paradigm. Sitting next to him is the Lord Privy Seal, who, in a previous guise, brought forward the Procurement Bill—along with the 350-plus government amendments that accompanied it, because it was so badly drafted. If that Bill is a paradigm for anything, it is a paradigm for this Bill and the poor drafting of legislation.

[Lord Callanan (Con)]

I do not think I ever used the word “inconvenient”, but reforming all this by primary legislation, whatever view you take of it, would take many years, if not decades.

[Lord Beith (LD)]

My Lords—

[Lord Callanan (Con)]

I have given the Government’s response to these amendments and, if noble Lords will forgive me, I will not take any more interventions. The points being made do not address individual amendments; they are general debating points, many of which were dealt with at Second Reading.

[Noble Lords]

Order!

[Lord Callanan (Con)]

I will take the intervention from the noble Lord, Lord Beith.

[The Lord Privy Seal (Lord True) (Con)]

My Lords, if it would help the Committee, I understand that this is an extremely controversial Bill for many Members of your Lordships’ House. A good deal of time is being taken over it, which is your Lordships’ pleasure. On the question of interruptions, this is Committee and Members are free to speak more than once, but we make good progress if we allow all noble Lords to develop and complete an argument.

While the Companion says:

“A member of the House who is speaking may be interrupted with a brief question for clarification”—


not a speech—it also says:

“Giving way accords with the traditions and customary courtesy of the House.”


I think that is absolutely correct. The Companion continues:

“It is, however, recognised that a member may justifiably refuse to give way”.


It gives various circumstances, including

“in the middle of an argument, or to repeated interruption”.

The Committee must allow the Minister latitude to complete his argument. If a noble Lord has a new concrete point to put forward to the Committee afterwards, that is reasonable. I also remind the Committee that the Companion says:

“Lengthy or frequent interventions should not be made, even with the consent of the member speaking.”

[Lord Beith (LD)]

My Lords, I do not make lengthy or frequent interventions, but I welcome the Leader of the House giving your Lordships some guidance on this subject, which is helpful from time to time.

I raised a point that the Minister has not covered on the position of Defra, which clearly does not take the view that its corpus of material must be changed urgently. The noble Lord, Lord Benyon, said:

“Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it.”—[Official Report, 28/2/23; col. 205.]


Will the Minister comment on that?

[Lord Callanan (Con)]

I listened to my noble friend Lord Benyon’s earlier statements and they are entirely in accordance with the provisions of the Bill. It is for Defra’s Secretary of State and Ministers to take a position on what they want to do with Defra’s large body of retained EU law. They are examining it closely. I think my noble friend said that the Defra Secretary of State said her position is that most of it is appropriate and she wants to retain it. If the Bill is passed, she can use the powers granted to her and other Ministers by the Bill to achieve that aim. I do not see any inconsistency at all.

[Lord Hacking (Lab)]

My Lords, I have one question before the Minister sits down. He said twice that Clause 1 is the backbone of the Bill. Can we take it that, if Clause 1 is removed, the Minister will withdraw the Bill altogether?

[Lord Callanan (Con)]

Let us wait to see what happens, but the Government are committed to the Bill. As I said, it had a big majority in the elected House, so I hope noble Lords think carefully before they remove key elements of it. It is up to the House what it does with the amendments tabled.

[Lord Lucas (Con)]

My Lords, I am sad that the Government have chosen not to address the points made by this Committee concerning democracy and the proper role of this House in reviewing legislation, and are stepping away from the conversation that has been offered by the Opposition. I see this as a Bill which is headed for the Parliament Act—I cannot see any other option being offered by the Government. I hope that they will step away from that; I think that we can achieve a better result if all sides looked at how the role of this House can be properly fulfilled with this sort of legislation. I think that is really important for this House and for democracy, and therefore I personally very much hope that the noble and learned Lord, Lord Judge, will persist with his amendment—not today, obviously.

[Lord Callanan (Con)]

With that one final intervention, let me say to my noble friend that he knows I greatly respect his view. I think the Government’s record, certainly on all legislation that I have been responsible for taking through this House, shows that the Government always listen carefully. The Lord Privy Seal will agree that I am always very frank with the advice that I give to colleagues within Government about what is possible within the Government’s legislative sphere. We always listen very carefully to what the House has to say. The Government want to get their business through, obviously. We will reflect, as we have done, on amendments that are passed and proposed in this House, and will of course seek an alternative opinion from the House of Commons if amendments are passed. But I think that our record shows that, on some very controversial pieces of legislation, the Government listen to what the House has to say.

[Lord Judge (CB)]

I wonder if anybody else wants to make an intervention?

Well, tempers have got slightly frayed, have they not? But can I just feel inspired by the thought that it is either the noble Lord, Lord Hamilton of Epsom, or the noble and learned Lord, Lord Judge, who has had a conversion on the road to Damascus? I would like to have a cup of tea to discuss which one of us it was, and also, more importantly, to examine the suggestion that he made at Second Reading about how we should examine this Bill which, if I may say so, I regard as a very serious suggestion which may help to implement the proposals in the amendments in this group.

I am disappointed that the Minister said, and obviously believes, that the purpose of this group of amendments is to undermine the aims of the Bill. That is not the aim of those of us who signed up to Amendment 32, nor I think is it the aim of anybody who has put his or her name down to any amendments in this group. We want the way in which we create laws to be better organised and given to Parliament for control. The Minister’s argument is that parliamentary control arrives through all the various methods that we have for looking at statutory instruments and controlling them. I am sorry to go back to something that noble Lords have all heard me go on about, but the last time that the Commons rejected a statutory instrument was in 1979. It may be a consequence of having gone into the Common Market in the first place, because the 1972 provision was that we had to accept whatever came from the Common Market and introduce it into our own legal system. We did so, as the noble Lord, Lord Deben, pointed out, by putting it into a statutory instrument.

Maybe it is a human fact that, if you have a whole raft of statutory instruments which you cannot amend, because the law does not allow you to amend them, you get rather bored at the idea of trying to amend laws created by your own Parliament. But whatever the reason, the idea that we are suddenly going to wake up, after 50 years of somnolence, to the idea that Parliament is suddenly going to start having effective control over statutory instruments, is—I mean this with great respect, but I am still going to say it—a bit of a fairy tale. It is a fairy tale because it is like the story of Sleeping Beauty. There she is, fast asleep, year after year, and suddenly along comes a handsome prince who brings her back to life with a kiss. I do not see any ministerial princes in relation to this issue whose kisses would bring anyone to life, and I respectfully suggest that the proposal in the Bill would involve giving Sleeping Beauty another sleeping pill, to keep her asleep for another 50 years.

--- Later in debate ---

Moved by

[Lord Callanan]

41: Clause 1, page 2, line 4, leave out subsection (6)
Member's explanatory statement
See the statement relating to the Minister’s amendment at Clause 1, page 1, line 7.

--- Later in debate ---

Moved by

[Lord Callanan]

45: After Clause 1, insert the following new Clause—
“Exceptions to sunset under section 1(1) Section 1(1) does not apply (so far as it would otherwise apply) to—(a) relevant financial services law; (b) any specified instrument or provision of an instrument or anything having effect under the specified instrument or provision;(c) any specified description of minor instruments;(d) transitional, transitory or saving provision.(2) In this section—“minor instrument” means an instrument other than any Order in Council, order, rules, regulations, scheme, warrant or byelaw;“relevant financial services law” means—(a) anything referred to in Schedule 1 to the Financial Services and Markets Act 2022, ignoring any regulations made under section 1(5) of that Act;(b) any rules made by the Financial Conduct Authority, the Prudential Regulation Authority or the Bank of England;(c) any generally applicable requirements (within the meaning of Part 5 of the Financial Services (Banking Reform) Act 2013), or directions of general application, imposed by the Payment Systems Regulator;“specified” means specified in regulations made by a relevant national authority;“transitional, transitory or saving provision” includes any EU-derived subordinate legislation (within the meaning of section 1) or retained direct EU legislation so far as it continues to have effect or a particular effect, despite a revocation or amendment, by virtue of transitional, transitory or saving provision other than section 1B or 2 of the European Union (Withdrawal) Act 2018.(3) Any reference in subsection (1) or in regulations under this section to a thing is, unless otherwise stated, to the thing as it subsists immediately before the time when the revocation under section 1(1) would otherwise apply in relation to it.”Member's explanatory statement
This new clause contains new exceptions to the Clause 1 sunset (subsection (1)(c) and (d)). It also contains existing exceptions to that sunset, which are currently in subsection (2) of Clause 1 and subsection (5) of Clause 22. The exception which is currently in subsection (2) of Clause 1 is extended to include anything having effect under a specified instrument or provision.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

My Lords, in this Committee, as the Minister has constantly been reacting to, we seem to keep going over the same old ground. The good thing about Committee is that it is not about saying whether you support something or not; the most important part of this stage of our proceedings is to probe and better understand what the policy objectives are behind any particular legislative change. I want to focus on that.

I hear the argument from the noble Lord, Lord Hamilton, about the sunset clause—he has made it at every stage in Committee—being an incentive. However, I agree with my noble friend that, at the end of the day, as I think the noble Lord appreciates, we do not have a complete list. We do not know what we are talking about. Until we do, we should not be making changes to the law. That is the key to this: how does this country make its laws and how do we change our laws? It is Parliament that does that, not the Executive. The Executive might control the way we consider the proposals for changing it, but it is fundamentally a matter for Parliament.

I will pick up the point made by the noble and learned Lord, Lord Thomas. He is absolutely right: it is about how the policy objective will impact on people’s perception of how we build and maintain our union of the United Kingdom. That is really important. There has been a consistency among Governments in the settlement that we have had. The noble Baroness, Lady Ludford, referred to the EU withdrawal Act. The question is, post referendum, how we deal with laws that we have had for the last 50 years. I think it is incumbent on the Government to be very clear about what that Act said. It did not just talk about Parliament. What it said is quoted in the Delegated Powers and Regulatory Reform Committee’s report:

“Parliament (and, within devolved competence, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once the UK has left the EU.”


What is wrong with that principle? What is wrong with that legislation, which this Parliament agreed? Why are we considering something different? Why are we considering a truncated skeleton Bill that gives the power to the Secretary of State?

That is why the amendments of the noble Baroness, Lady McIntosh of Pickering, are so important. She is absolutely right to raise this—not as a question of whether we support the principle, but we should ask why there has been a policy change. Why do the Government no longer think that the principles established in the 2018 Act should apply? We need to know, because, as I think the noble and learned Lord, Lord Thomas, said, it brings into question whether it is about trust, competency or resources. All these things need to be answered, and we have not had any answers so far. The Minister should give us some reassurance about that and not simply say that it is an exercise of trying to improve efficiency, because, for many people, the laws of the land protect them at work, at home and on the road. As my noble friend Lady O’Grady said, there are key provisions that we need to understand will continue to protect the people of our union.

[Lord Callanan (Con)]

If the noble Lord, Lord Collins, will forgive me, I do not propose to go back over previous discussions about the dashboard, sunsetting of laws, et cetera. He knows our position, and I am well aware of the Opposition’s, so if he will forgive me I will concentrate on the amendments in this group, which are all related to Clause 2, on the extension mechanism.

--- Later in debate ---

[Baroness Humphreys (LD)]

I appreciate that the noble Lord has been talking about the extension to 2026, but he has not explained why that is not available to the Welsh Government or the other devolved nations. Can he clarify that for me?

[Lord Callanan (Con)]

If the noble Baroness has some patience, I will come on to those amendments shortly.

Turning to Amendments 51, 54, 57 and 58, the power exercisable under Clause 2 will allow Ministers of the Crown to extend the sunset for specified legislation, both in reserved and devolved areas, up to 23 June 2026. This includes areas of devolved competence, and we could act on behalf of devolved Ministers if they wish to request that. Clause 2 allows for the extension of a “description of legislation”, and conferring the power on devolved Governments would, in our view, introduce additional legal complexity. Descriptions of retained EU law may cover a mix of both reserved and devolved policy areas, and this could result in retained EU law in similar areas expiring at different times in different jurisdictions in the UK, across both reserved and devolved areas. We feel that this could create additional legal uncertainty.

Devolved Ministers will of course still be able to legislate to preserve, restate or reform their retained EU law using all the other powers in the Bill. As I said, the UK Government are of course committed to working closely with the devolved Governments on all aspects of the retained EU law revoke and reform programme, including the exercising of this extension power where appropriate.

Regarding the question on the devolved Administrations, which a number of Members raised in considering earlier clauses, I met with the devolved Ministers on behalf of my previous BEIS department a few weeks ago and we discussed a number of legislative areas of concern to them, including—the noble Baroness, Lady O’Grady, will be pleased to know—the MSL Bill, and they did not raise the REUL Bill. I am not saying that means they do not have any concerns—clearly, both the Senedd and the Scottish Parliament are concerned —but when they had the opportunity to raise it with me in a formal meeting designed to discuss legislation, they declined to do so.

Amendment 53 tabled by my noble friend would, I assume, be intended to operate in tandem with amendments to Clause 1 that propose a change in the sunset date. This will be debated in other amendment groupings and, as I have already said, proposing to change the sunset date through the extension power alone would not be appropriate.

Amendment 56A in the name of the noble Lord, Lord Whitty, would require the Government to publish a dashboard of all EU law which remains in force and which has not been superseded by domestic legislation within three months of the Bill being passed. I am sure the noble Lord knows what I am going to say to this: I draw his attention to the public dashboard of retained EU law that the Government published in June last year, and about which we have already had extensive discussions.

Without wishing to annoy the noble Baroness, Lady Ludford, again, that dashboard is an authoritative assessment of the various types—I am worried she will reach for her thesaurus yet again and start quoting definitions at me—of retained EU law across all government departments. It is split over 400 policy areas and 21 sectors of the economy and is categorised accordingly. The dashboard was updated in January, as we have said, and we are committed to updating it regularly through 2023; the next update is planned for spring of this year. Departments are continuing their work on retained EU law, aided—again, I risk provoking the noble Baroness, Lady Chapman—by the National Archives, and we anticipate an increase in the volume of retained EU law in the next publication.

[Lord Thomas of Cwmgiedd (CB)]

The Minister is very keen on timetables and dates. As we know, spring is movable. Can we have a firm date? If the Minister wants to hold people to timetables, he ought to have a timetable to produce a firm list. Could he please go back and ask the lawyers, in whom he has such great trust, when they can produce a list and a comprehensive explanation? I am sorry to press the Minister on this but he cannot expect everyone else to have a timetable and not adopt one himself.

[Lord Callanan (Con)]

I am not sure I want to go on the public record saying that I have great faith in lawyers, given some of the debates we have had in this House. I explained the position on the dashboard in the previous grouping. I know that many Members want to categorise this as a device by which huge swathes of essential legislation will be allowed to sunset. I have explained on three different groupings now—I will not go back there again—that we will update the dashboard as often as we can. Where possible, this will also reflect the ownership of retained EU law across the new departments created by the Prime Minister in the machinery of government changes earlier last month.

Finally, on Amendment 136, this power is subject to the negative procedure, which is the appropriate level of parliamentary scrutiny for a power that only maintains the status quo and cannot enact any policy changes. The power is intended as a failsafe in case the reform of retained EU law is delayed by the parliamentary process or extenuating circumstances. I therefore do not believe that the listed amendments are necessary or appropriate for the Bill and hope that the noble Baroness will be able to withdraw her amendment.

[Lord Collins of Highbury (Lab)]

I seek clarification about the amendments of the noble Baroness, Lady McIntosh, and the noble and learned Lord, Lord Hope, on the power that Secretaries of State have on extension, and so on. The Minister said that it would be if the devolved Administrations request it. Does that mean that the request will be granted? This affects the settlement we have on devolution and our union. As he says, for everything for which they have responsibility they will change, amend or keep it, but if they want an extension on the sunset, they have to request it. Does that mean that, if they request it, it could be refused?

[Lord Callanan (Con)]

I thought I had explained this in my earlier statements. I am saying that the power to extend rests with UK Ministers. Many of these areas of law cut across both UK-wide and devolved competence. We have said, as the noble Lord, Lord Collins, acknowledged, that there is a power for them to just restate that law, to continue it, if they wish to do so. We would want any extension to be discussed between the Administrations. As I said, there are regular meetings between both officials and Ministers to discuss these areas, so it is certainly something we would consider. I am not giving the noble Lord an absolute assurance; I am saying it is something we would consider.

[Lord Collins of Highbury]

I think it is a fundamental question. If they have the power to maintain and amend, specifically something that is totally the competency of either the Scottish Parliament or the Welsh Senedd, and if they simply want the same power as the Secretary of State on a matter that is within their competency—I am not talking about those grey areas where you might say, “You’d best request”—is the Minister satisfied in saying that they must request it? That means there is the power to refuse, and I think that brings into question trust and confidence in our devolved institutions.

[Lord Callanan (Con)]

I do not agree with the noble Lord’s characterisation. If they wish, it is perfectly possible for them, before the sunset date, to renew that legislation. The extension mechanism is of course something that we will discuss with them as appropriate.

[Baroness McIntosh of Pickering (Con)]

I have to say that that is a little disappointing as a summing-up. I take responsibility for not giving proper hearing to the amendments in the name of the noble and learned Lord, Lord Hope—I had not realised he had slipped away, and I had promised to speak to them, so I am very grateful to the noble and learned Lord, Lord Thomas, for speaking to Amendment 58.

In summing up, my noble friend did not refer to the fact that the Scottish Parliament have removed their consent from the Bill—news which reached us only a week ago. My noble friend did not respond on what the Government’s approach will be to the amendments. That would help us in our deliberations.

I am extremely grateful to the noble Lord, Lord Collins, for probing as eloquently as he has, because that is the purpose of Committee. It would be helpful to know at this stage how the Government intend to respond to the amendments from the Scottish Parliament, though they are not before us today but in a different procedure.

Obviously, I prefer my deadline to that of my noble friend, but I am very grateful to her for tabling the amendment for debate. Equally, the noble Baroness, Lady Humphreys, spoke very eloquently about the position in Wales.

I am slightly at a loss here. I have been a UK parliamentarian for a while now but I was born in Scotland, and it grieves me that the UK Government do not appear to be making proper commitments in what was the internal market Bill and other Acts that we have passed, not just the Bill before us today. I feel that the Government’s work is cut out for them on this group of amendments.

I am sure that we will wish to return to these issues at a later stage but, for the moment, I beg leave to withdraw Amendment 51.

--- Later in debate ---

Moved by

[Lord Callanan]

52: Clause 2, page 2, line 9, after “section 1,” insert “so far”
Member’s explanatory statement
This amendment ensures that regulations under subsection (1) may specify an instrument or description of legislation in cases where it is not clear whether the sunset applies in relation to the instrument or description. The effect of doing so would be to extend the sunset date so far as the instrument or description of legislation is subject to the sunset.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

My Lords, I thought the Bill was bad, but this debate has been quite shocking. I really do not think the Government know what they are doing with these clauses. I do not think that, when the Bill was initially proposed while the Government were having their moment of madness last autumn, we thought that something like Clause 3 would be before Parliament in March the following year. Reckless does not quite cover it; it is as if the Government got completely drunk and now we have a hell of a hangover to deal with.

It is clear from the debate we had earlier in the week, and from the letter, that the Government have not appreciated what the impact of this clause will be. It would be very helpful if we could have a statement or a letter from the Government explaining exactly what they intend to happen as a consequence of this clause, because, listening to the debate, I think that things will emerge that Ministers have not fully taken into account. I thank the noble Baroness, Lady Ludford, most sincerely for her Amendment 62; it is at least an attempt to put some safeguards around what could be about to happen. I am particularly concerned by the high-handed and nonchalant way in which Ministers are dealing with the issue of Northern Ireland. I have seen no evidence at all that the Government have appreciated the impact that what they are about to do could have on the agreement that they have only just entered into with the EU.

I have not read the full text of the agreement—I do not pretend to have done—but I have read the political declaration. It seems very clear that, underpinning the political declaration of the Windsor Framework, limited divergence will be permitted between the EU and the UK, to maintain the soft border arrangements on the island of Ireland. That is clearly what is intended by the political declaration; I expect that is why the noble Lord, Lord Frost, is so upset about it and does not seem to want to support it. That limited divergence is put at risk by the measures in the Bill.

The Minister earlier today did not want to engage with that. She said she was absolutely certain that I was wrong. I think that I am right and she is wrong. I would like a letter from the Minister for the Library explaining why the Government are so sure of themselves on that issue, because these are incredibly important questions; we cannot just be expected to skirt over them and take flippant assurances from the Benches opposite. Clearly, the consequences of Clause 3 and the following clauses may have dramatic impacts. They create great uncertainty. I just do not understand how Ministers can be so sure or even expect us to engage sensibly in this discussion, given what we have just heard.

My noble friend Lady Ritchie’s comments and her amendment are incredibly important. I hope the Government will reflect seriously on this debate. How can the Government think that the rights, liabilities and powers in Clause 3 will ever be reflected properly in the dashboard process? How is that supposed to work? Unless it works, how on earth are judges or citizens expected to make decisions, or employers expected to know what their responsibilities and duties are, if we go ahead with this clause?

Ministers will no doubt say that we are worrying unnecessarily and are taking too much time—that it is 7.05 pm. I do not care that it is 7.05 pm; these issues are just so important. I ask the Minister, please, not to treat this House in the high-handed way that Ministers do on occasion. It is not just him; I am sure others do too. These are critical questions that we are asking. If he cannot answer adequately today, please can he commit to going away and coming back with something more substantial? I can tell him now: this clause does not leave this House and go back to the other end given the debate that we have just heard. The mood of the Committee seems to be one of not wanting this to go forward. We are going to face this on Report.

I will be asked by my Chief Whip to prioritise votes and make sure that we do not have too many. I think that is going to be quite a challenge given what we have heard today, so the more the Government can themselves reflect and consider what has been said—particularly on the issues around Northern Ireland—the better. They must show us that they have done some proper thinking about that and appreciate the consequences of the Bill in relation to the agreement that was made only on Monday. That is the only way in which we can move forward.

I apologise for taking up a little more of the Minister’s time, but I am very patient, and I will sit here until he has given us the assurances we need. He can expect some interventions—irritating though he finds them—if he attempts not to answer the questions raised by noble Lords as part of this discussion.

[Lord Callanan (Con)]

I am very happy to stay as long and late as the House requires. I was very happy to stay later the other night as well, but I believe it is the noble Baroness’s party that said it wanted to go home early and that we therefore needed to finish.

[Noble Lords]

Not early!

[Lord Collins of Highbury (Lab)]

There is no need for these sorts of insults; we have agreed times.

[Lord Callanan (Con)]

Hang on a second—I made that point because the noble Baroness, Lady Chapman, said that I was being dismissive of her points and that it was 7.05 pm and that I wanted to go. I have relayed that I am very happy to stay as long as the House requires, but I believe it was the Labour Party that said it wanted to finish early the other night, and at 7 pm tonight.

[Noble Lords]

No!

[Lord Callanan (Con)]

Anyway, let us move on to the issues.

Let me first introduce government Amendments 65 and 66, which work together to remove a cross-reference in this Bill to Section 183A of the Data Protection Act 2018. This new Section 183A is due to be inserted into the Data Protection Act by the Data Protection and Digital Information Bill. Since the DPDI Bill is not anticipated to receive Royal Assent in this parliamentary Session, new Section 183A will not exist when this Bill receives Royal Assent. As such, noble Lords will understand that, for practical reasons, it is necessary to remove the cross-reference. Let me reassure the House that the Government are committed to maintaining high data protection standards and a functioning data protection regime. At this stage, we are minded to use the DPDI Bill to insert the reference to Section 183A of the Data Protection Act into Section 5(A3) of the European Union (Withdrawal) Act 2018.

Amendments 73, 77, 78, 79 and 80 are to Clause 6 of and Schedule 1 to the Bill. These amendments are consequential to the Bill policy in Clause 6 which establishes “assimilated law” as a new body of law from the end of 2023. These changes are required to end the special status of retained EU law. Amendments 73 and 77 rename two further terms related to retained EU law, so that from the end of 2023 they will be renamed as terms related to “assimilated law”. The consequential Amendments 78, 79 and 80 make textual amendments to individual references in priority pieces of primary legislation which support the interpretation of retained EU law on the statute book, so that from the end of 2023 the identified references to retained EU law and related terms will be changed to references to “assimilated law” and related terms. These amendments are being tabled now purely for purposes of legal clarity and legal accessibility.

Turning to the non-government amendments, I start with Clause 3, which, as noble Lords have observed, repeals Section 4 of the European Union (Withdrawal) Act. Amendments to this clause seek to delay that repeal and thus a core part of the Government’s ambitious programme of retained EU law reform.

The matters saved by Section 4 consist largely of rights, obligations and remedies which overlap with rights already well established by domestic law. In our view, these overlaps can cause confusion, so we should no longer perpetuate this situation. Work is already well under way across departments to identify the implications of the repeal of Section 4 of the 2018 Act, and the Bill provides adequate powers to codify and safeguard relevant rights in domestic statute as needed.

Indeed, as Sir Stephen Laws, ex-First Parliamentary Counsel, said:

“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.”


That will not mean the blanket removal of rights. Rather, combined with other measures in our Bill, it will result in the codification of rights in specific policy areas. This clarification will provide certainty for businesses and citizens in this country.

On Amendment 59 in the name of my noble friend Lady McIntosh, although I appreciate the concerns about the ambitious timetable we have set, I can assure her that the retained EU law reform programme is well under way and will ensure that the necessary legislation is in place by the sunset deadline.

Turning to Amendment 60, removing just Clause 3(2), as the amendment aims to do, would reduce legal certainty. We consider that this amendment is intended to operate in conjunction with Amendment 61, which seeks to delay the repeal of Section 4, so let me turn to that amendment.

We do not believe it is necessary to delay the repeal of Section 4. Where required, the Government will use the powers in the Bill to codify specific rights clearly and accessibly in domestic statute, and work is indeed under way to do so. These powers are also conferred on the devolved Governments, with whom we will of course continue to work closely to ensure that the most efficient and appropriate approach to exercising powers is taken in a way that provides certainty for all parts of our United Kingdom.

Amendments 61A, 61B and 61C in the name of the noble Lord, Lord Whitty—I know he is no longer in his place but he apologised for having to leave, so I will address his points—relate to policy-specific carve-outs from the measures in Clause 3 and from the sunset clauses more broadly. We have already discussed carve-outs extensively in previous groupings, and I do wish to rehash the same arguments. However, I reiterate that the Government do not see the need for carve-outs in individual departments, policy areas or sectors.

The intention of the proposed new clause under Amendment 62, put forward by the noble Baroness, Lady Ludford, is to leave matters saved by Section 4 of the 2018 Act on our statute book for longer—perhaps in some cases indefinitely. The noble Baroness mentioned in particular Article 157 of the Treaty on the Functioning of the European Union, which is on equal work for equal pay. Equal pay already exists in UK statute. However, we recognise that here, the expression of the EU-based right can be slightly wider than its expression in UK legislation. That is why we have put powers in the Bill to codify the policy intent of these interpretive effects, such as Section 4 rights, where we need to. It would be for the Government Equalities Office and other government departments to decide whether to use the restatement powers in Clauses 12 and 13 to codify those principles.

The noble Baroness also mentioned Article 6—

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[Lord Callanan (Con)]

As I said, the work is under way at the moment across all the rights codified in those sections. As the noble Lord said in his speech, this is a complicated area of law. I do not want to get into a complicated legal argument, so it is perhaps best if I seek advice from the lawyers and write to him, as he suggested, on the legal technicalities of that area.

[Lord Anderson of Ipswich (CB)]

I think I must have failed to get across, when I addressed the Committee earlier, that we are not here dealing with legal technicalities but with massive uncertainties at the very heart of the Bill, uncertainties that relate not to legislation but belong to legal principle. I tried to help by saying how I thought Clauses 3 to 5 related to Clause 7. If I was right about that, the task of applying any European authority under Clause 7 becomes astonishingly difficult, because a court has to read every one and see whether it contains general principles, direct effects or supremacy before it can even decide whether it is going to apply it or not. I hope I did not leave the Minister with the impression that these are legal technicalities, and I hope that, if he writes to the Committee about this, we will have a full explanation of how Clauses 3 to 5 and Clause 7 are intended to relate to each other.

[Lord Callanan (Con)]

I will talk to the lawyers and attempt to get the noble Lord an answer to his concerns.

The noble Baroness, Lady Ludford, mentioned the habitats directive. I am slightly loath to go back there, after the long discussion with my noble friend Lord Benyon on Tuesday, but let me restate again for the benefit of the record that the Government have been clear about the importance of environmental protection across the UK, not least through the Environment Act, which includes a legally binding target to halt the decline of nature by 2030. As I emphasised earlier in the debate, we are committed to meeting this target and we will of course not undermine our obligations to the environment.

[Baroness Ludford (LD)]

I apologise to the Minister, but that is not the point I was asking about. I am no expert on the habitats directive, but a specific clause has been interpreted in case law as imposing a preventive, proactive duty—in our case, on the Environment Agency. Will that be retained?

[Lord Callanan (Con)]

Case law is being retained. Case law is not being abolished, it will still exist, and courts will still be able to take account of it. Removing the complex and opaque legal gloss associated with Section 4 of the 2018 Act will improve the clarity of our domestic law. It would be, in our view, inappropriate, to leave these provisions on our statute book, and we wish to end them as soon as reasonably practicable. We consequently also oppose Amendment 137, which specifies that any regulation made under the power conferred by Amendment 62 would be subject to the draft affirmative procedure.

[Lord Fox (LD)]

I think the Minister is departing from Clause 3. This sounds like small beer compared to some of the issues that colleagues have raised, but I asked a specific question about the difference in approach to the extension of sunsetting between Clauses 1 and 3, and I hoped the Minister would address that—if he was intending to.

[Lord Callanan (Con)]

I have some more remarks on Clause 3. Let me come to the end of them and, if the noble Lord does not feel that he has got an answer, we can talk about that further then.

I was going to move on to the point of the noble Baroness, Lady Ritchie, who tabled notice of her intention to oppose Clause 3 stand part of the Bill. For the reasons set out, the repeal of Section 4 of the 2018 Act is, in our view, a crucial part of the Government’s agenda to take back control of our statute book and improve legal clarity. I completely agree with the points made by the noble Baroness, Lady Chapman, about the Windsor Framework. We do not think this Bill has any effect on the agreements made. Of course, we will examine the text of that very closely, but it goes without saying that the Government are completely committed to the agreement and we would not wish to do anything in either this or future legislation to impinge on what I view as a fantastic agreement.

Moving on, Clause 4 abolishes the principle of the supremacy of EU law. I do not think that I have any notes to address the points made by the noble Lord, Lord Fox, so let me say that we will include that in the general write-around about—well, I will not refer to them as legal technicalities because the noble Lord, Lord Anderson, will tell me that they are extremely important legal principles. I will seek legal advice and get a proper answer for the Committee.

[Lord Anderson of Ipswich (CB)]

The Committee heard from a former Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, that these principles go to the heart of how common law is applied in this country. I do not think that that is a legal technicality.

[Lord Callanan (Con)]

I acknowledge the noble Lord’s point but I will get him a proper answer from the lawyers.

[Baroness Chapman of Darlington (Lab)]

When the Minister gets us that proper answer, I would be grateful if he could explain—I do not understand this, but I do not know whether others do; perhaps some noble and learned Lords understand it—the difference between the “interpretive effects” that were mentioned in the letter from the noble Baroness, Lady Bloomfield, and case law. What is the impact of that difference? The noble Baroness’s letter clearly states that the Bill will

“repeal retained EU interpretive effects.”

I am not clear what that means; I wonder whether the Minister could include that in his letter.

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[Lord Callanan (Con)]

I would be happy to include it in the letter. I hesitate to give what I think is a legal definition in front of so many noble and learned Lords but I am told that interpretive effects are not case law. As I understand them, the interpretive effects are the general principles of EU law that have been used to apply to the interpretation of retained EU law because it was EU-originated. We wish to abolish interpretive effects, but that does not impinge on the case law, which of course remains.

Moving on, Clause 4 abolishes the principle of the supremacy of EU law for the end of 2023 in so far as it still applies to pre-2021 legislation. Amendment 64 would delay the abolition of the retained principle of EU supremacy until the end of 2028. There is cross-party support for the end of supremacy. In the House of Commons, Justin Madders MP—he is a spokesman for the Labour Party, I believe—said:

“Overall, we agree that there has to be an end to EU supremacy in UK law”.—[Official Report, Commons, Public Bill Committee, 24/11/22; col. 186.]


If left unreformed, supremacy would remain a constitutional anachronism on our statute book. We believe that it is simply incompatible with our status as an independent, sovereign nation, and we therefore wish to end it as soon as we can.

[Baroness Chapman of Darlington (Lab)]

Can I just explain Justin’s comments? The Minister has provoked me. Clearly, the shadow Minister was talking about a sane, considered process by which this matter is dealt with, not the lunacy that the Minister is trying to promote today.

[Lord Callanan (Con)]

I do not think he said that; he said that there has to be an end to EU supremacy in UK law. While we are all swapping letters, perhaps the Labour Party might want to write us a letter to clarify what he meant. I am not being serious, of course; it is not the Labour Party’s job to do that.

Amendment 142 in the name of the noble Baroness, Lady Ritchie, seeks to clarify that this Bill does not disturb Section 7A of the European Union (Withdrawal) Act 2018. That section makes the rights and obligations in the withdrawal agreement available in domestic law. It also provides that domestic legislation must be read and given effect subject to those rights and obligations. I can reassure the noble Baroness that this Bill will not disturb Section 7A of the 2018 Act. I can also assure her that the Bill provides powers to restate rights and obligations required for Article 2 of the Northern Ireland protocol as needed. The Government will ensure that all necessary legislation is in place by the Bill’s sunset date to uphold all the commitments made under Article 2.

Amendment 100, tabled by my noble friend Lady McIntosh, would remove the sunset date for the compatibility power in Clause 8. It is not necessary to have a power to specify legislative hierarchies beyond 23 June 2026, by which time the Government will have exercised the power as needed.

I move on to Clause 5. I understand that the noble Lord, Lord Fox, has given notice of his intention to oppose the question that Clause 5 stand part of the Bill. General principles of EU law were developed in CJEU case law, with which EU institutions and member states must comply. I submit that it is clearly no longer suitable for our status as an independent nation outside the EU—however much the Liberal Democrats wish that not to be the case—for these specific principles to continue forming part of UK law. The powers in the Bill allow the Government to codify clearly any necessary effects to bring clarity to our domestic statute book.

[Baroness Ludford (LD)]

I am sorry to interrupt the Minister but that remark was gratuitous. The point is about legal certainty. It is not about whether we as a party, or anybody else, would have wanted to remain in the EU—it is clear that we would. It is about whether the law will be clear, and whether the judges will be able to operate it, and whether businesses, unions and whoever will know what they are supposed to be doing. That is the point that we have been trying to make over four days on this Bill. Brexit is irrelevant to this discussion, and I do not believe I have used the word once in these proceedings. What is important is whether the law will be able to be operated with certainty, clarity and predictability.

[Lord Callanan (Con)]

That is fair enough; it was a slightly gratuitous point. I actually agree with the noble Baroness—we want the law to be as clear and accessible as possible. That is why we do not believe that the general principles of EU law, which of course were developed by the CJEU for use primarily by EU institutions and member states, should be relevant to the UK now that we are an independent nation, whatever our differences of opinion might have been on that.

[Lord Fox (LD)]

I think I failed to explain why I think that they are relevant. They are relevant because of the EU retained law part of the Minister’s mishmash, which gets assimilated into UK law. The interpretation of that EU part, which is now UK law, somehow loses the basis upon which the interpretation was made. I explained that I understood why the Government wanted to do this, but the fact that they become separated is an issue. I suggested a way for those interpretations to be ported across, specifically and explicitly for each one. If that is not the way it will be done and the Minister says that somehow this is going to happen, then at some point in this debate we need to understand. If it is not in the letter, then it needs to be later in this debate.

[Lord Callanan (Con)]

I made the point earlier that, when departments are reviewing their legislation and any modifications they might need to make to statutory instruments, they will of course want to take account of the fact that the general principles of EU law will no longer apply in the UK and make any modifications that would be required.

I move on to the somewhat related point raised by the noble Baroness, Lady O’Grady. Let me be clear that retained case law—this comes back to the point made by the noble Baroness, Lady Chapman—is not and cannot be directly sunsetted, as it consists of judges’ judgments, which are essentially statements of historical fact. Where general principles and other interpretive effects are removed by the Bill in Clauses 3 to 5, it would be expected that courts would continue to consider relevant case law where it is clear from the restatement that that is the intention.

Amendment 67 would introduce an extension power for the removal of general principles of EU law, as well as the abolition of supremacy and the repeal of Section 4 of the 2018 Act, as I have already set out. Removing these complex legal glosses will, in my view, satisfy the noble Baroness, Lady Ludford, and improve the clarity of our domestic law. It is imperative that we end them as soon as is reasonably practicable.

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[Lord Callanan (Con)]

I am not going to give an absolute commitment, but I will talk to the lawyers. On the famous letter from my noble friend Lady Bloomfield, I actually pushed officials to try to assimilate the contents of the letter and get it out to the Committee as quickly as possible, because I thought noble Lords would want to see it before we considered the Bill on a further day. They worked very late into the evening to get the letter out, after going through all the necessary approvals that the Government need to go through. Given some of the criticisms, I wish I had not bothered. Nevertheless, I still think it was helpful to noble Lords and will do my best to get them the letter to which the noble Baroness referred.

[Baroness McIntosh of Pickering (Con)]

My Lords, this has been an excellent debate. It reflects not least the concerns of the legal practitioners, who will be left to interpret the status of the laws. But what concerns me is that the Minister and the department are perhaps in denial about the level of concern that has been expressed not just in the Committee this afternoon but in those examples from various sectors that we have heard today. This has been a beneficial session in probing where we can reach agreement before Report to help the Government get the Bill through. I know that my noble friend cares very deeply and passionately about that.

The Committee accepts that the supremacy of EU law will go but my noble friend needs to consider whether the abolition of this principle will affect the interpretation of EU law when it comes to being assimilated. Is that not a factor to take into account in how we assimilate that law? I leave my noble friend and the Committee with that thought.

However, I believe that we have established some ground rules during this debate, so that we can regroup before Report. I, among others, look forward to receiving the letter from my noble friend and, at this stage, beg leave to withdraw my amendment.

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Moved by

[Lord Callanan]

65: Clause 4, page 3, line 2, leave out “183A and”
Member's explanatory statement
This amendment leaves out a reference to section 183A of the Data Protection Act 2018 (inserted by clause 43 of the Data Protection and Digital Information Bill) from section 5(A3) of the European Union (Withdrawal) Act 2018 (inserted by Clause 4 of the Bill).

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

Moved by

[Lord Callanan]

That the House do now resolve itself into Committee.

Amendment to the Motion

Tabled by

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[Lord Collins of Highbury (Lab)]

My Lords, I too am extremely grateful to the Minister for his letter; I actually got it on Friday. I certainly welcome it. One of the sentences in the letter that struck me—it hit me in the face, as it were—was in the paragraph at the bottom of the second page:

“The Government is intent on bringing clarity to the statute book, and for citizens and businesses so that they are clear as to the rights that they rely on”.


That is the fundamental issue here; it is certainly the one that I want to concentrate on in our debate on this group. By the way, I am not going to repeat the points about the potential impact as we have had lots of discussion about that.

We are dealing here with known unknowns, if you like. As the noble Lord, Lord Kerr, just said, it is about the idea that we do not know quite what impact the case law and common law that has developed over 50 years has had. Of course we had a very detailed discussion on Clause 1, but Clause 3 is potentially even more serious because it deals not with specific regulations that might be identified on the dashboard—it is now approaching 4,000 pieces of legislation—but with areas where we are not sure whether the legislation is EU-derived, are not sure about the impact of EU law on them, and where decisions will undoubtedly have a huge impact.

These amendments are trying to assist the Government in how to ensure a proper process for identifying these things before anything falls off a cliff edge ahead of this date, and how to ensure proper parliamentary scrutiny. It is a reasonable question in relation to process. This is not about trying to frustrate the Government, as noble Lords have already commented. It is about how we assist the Government in avoiding chaos.

Certainly, this clause requires more than simply cataloguing instruments. It requires us to look into how courts have interpreted decisions and what impacts that will have. Whether it is the Law Commission or another body, the Government must ensure that proper time is allocated to research this so that, coming back to the letter, we have certainty, because businesses require certainty. We have had that debate. Workers require certainty as to their rights. Consumers require certainty. All those things have been impacted by decisions through common law.

Nobody disputes that there may be EU rights, powers, liabilities, obligations, restrictions, remedies and procedures that we could do better without. There is no doubt about that, but let us have a proper procedure for determining it. It cannot be right that we simply have a cliff edge with a dashboard that the Minister repeatedly refers to that does not even quantify them. I think there are 28 in the dashboard that you can consider impacted by Clause 3 out of the 4,000. There are clearly lots more examples.

I am attracted to Amendment 69A signed by my noble friend Lady Chapman, the noble Baroness, Lady Ludford, and the noble Lord, Lord Fox. It provides a clear structure and timetable for us to work through that will ensure a transparent way of dealing with people’s rights. That is the most important element of these groups of amendments. Let us not frustrate what the Government want, but let us do this in a proper way that does not lead to the confusion and chaos which undoubtedly Clause 3 would.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

I thank all Peers who have contributed to the debate. I was getting a bit concerned about the subject of my famous correspondence with the House, but I took on board the observations of the noble Baroness, Lady Chapman, at the end of the last day in Committee, about wanting to see the letter in advance. I am pleased that the noble Lord, Lord Collins, got his on Friday afternoon; I approved it in draft on Friday afternoon. I am sorry that the noble Lord, Lord Kerr, did not get his until noon today. I received it on my parliamentary email at 10 am, so perhaps his email is a bit slow. I did attempt to get it out as early as possible because I suspected that it might come up and I knew that noble Lords would want to read it before the debate. I am sorry that the noble Lord thinks that it is gobbledegook, but that is lawyers for you.

The amendments in this group are Amendment 68 tabled by the noble Baroness, Lady Ludford, and the noble Lord, Lord Fox, Amendment 69 tabled by the noble Baroness, Lady Chapman, and Amendment 69A tabled by all three noble Lords. These would set unnecessary conditions on the commencement of Clauses 3, 4 and 5. Let me start by drawing noble Lords’ attention to why we are making the changes in these clauses. Each of the clauses is vital to the Government’s programme of reforming retained EU law.

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[Lord Kerr of Kinlochard (CB)]

I am grateful to the Minister for giving way. Before he sits down, I refer him to the second paragraph on page 2 of his letter—for which I was grateful, joking apart:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … Instead, we expect them to apply domestic principles of interpretation”.


What are these domestic principles?

[Lord Callanan (Con)]

They are the domestic principles of interpretation that have been used by the courts since time immemorial: the normal procedures they use to apply their scrutiny of UK law. That is the point we are making. It is important that the general principles of EU law, which were introduced into UK law with our accession and which have applied to retained—[Interruption.] Will the noble Lord let me finish making my point before he intervenes again?

[Lord Kerr of Kinlochard (CB)]

In time immemorial, we were not members of the European Union. Is the Minister saying that we all should go back to pre-1972, and that anything that happened when Denning salt water was coming up the estuaries—anything that happened in the last 50 years—is to be ignored by the courts?

[Lord Callanan (Con)]

No, I am not saying that at all. Case law is not abolished: courts will still be able to take case law into account. We will use the power of restatement where necessary. Departments will look at whether the general principle of EU law, which we are abolishing with this legislation, affects the particular statutes that they are retaining, and they will adjust them accordingly so that the same policy effect is maintained. Of course I am not suggesting that we go back on what was agreed. The principles of case law will remain.

[Lord Kerr of Kinlochard (CB)]

We are talking about the courts and cases. Surely the courts will have to look at the domestic principles of interpretation which they are going to apply. Will they be given any guidance?

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[Lord Callanan (Con)]

The courts will use the same principles they have used for the interpretation of UK statute for many hundreds of years.

[Lord Collins of Highbury (Lab)]

Workers will want to know precisely which of their rights will be impacted by this clause. Of the current numbers, can the Minister identify how many regulations in the dashboard will be impacted by Clauses 3 to 5?

[Lord Callanan (Con)]

We will keep the dashboard updated as work progresses. As the noble Lord knows, we had this debate in the first grouping on workers’ rights. We are proud of our record and have given a commitment that the UK will not go back on our excellent principle of workers’ rights, which are far in excess of that guaranteed by European law. I see that the noble Baroness, Lady O’Grady, is smiling.

We have had this debate on the issue of the dashboard, which noble Lords have raised on many occasions, but let me restate the Government’s position. We are happy that departments know what legislation they are responsible for. Their lawyers are still going through it to determine which is or is not retained EU law, but we have introduced technical amendments to make it clear that, by default, if they are not sure, they should retain that law. No detriment or challenge could be made if they did that.

[Lord Kirkhope of Harrogate (Con)]

I have just realised that my noble friend referred a moment ago to this Parliament’s lack of involvement in EU matters or legislation. He and others here are always putting forward that Ministers of this Government are accountable to Parliament—although, we sometimes argue, not sufficiently. Of course, they make up the Council of Ministers, which they attend in order to approve all European legislation. He surely therefore recognises that Parliament is almost directly linked to European legislation, but he says that there is no UK parliamentary input. I just wanted to correct that point.

[Lord Callanan (Con)]

It is slightly off the point, but I hope the noble Lord is not trying to argue that the UK Parliament is President in the Council of Ministers.

[Lord Collins of Highbury (Lab)]

My Lords, the point that I want to probe a bit more is the known unknowns. We do not really know what will be impacted. I will read from the noble Lord’s letter:

“A comprehensive review of all retained EU law on the UK statute book began in September 2021, and work is well underway by departments to assess line by line, the desired policy intent and effects of retained EU law on the statute book and to ensure that REUL that needs to be preserved, is preserved”.


What and who decides the policy intent? The Bill does not tell us anything. That is the biggest concern and why these amendments try to assist the Government by providing a process where we can have greater transparency. The noble Lord is unable to give an answer at this stage of the game, and we are not far away from the cliff edge that we have all been talking about. He cannot tell me what the dashboard numbers are. Can he tell us the policy intent identified in his letter?

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[Lord Callanan (Con)]

The reference in that is to the policy intent of the particular piece of retained EU law. The point we are making is that if the abolition of the principles of EU law, the supremacy and interpretive effects, changes the policy intent of that particular piece that is worth retaining then of course it will be changed using the powers in the Bill—the powers of restatement, which we will debate later—to preserve the original policy intent, as would have been approved by Parliament, if Parliament had any role in approving that in the first place.

[Baroness Brinton (LD)]

This takes us back to the Delegated Powers and Regulatory Reform Committee report, which specifically made the point that there is not,

“an indication of which legal or policy areas the Government think should be retained, amended or revoked”.

It says absolutely specifically:

“The Government need to explain how they propose to use the powers in the Bill. They also need to explain what is behind the headlong rush and the impending and arbitrary end-of-year deadline”.


With the greatest of respect to the noble Lord, the letter does not say that. I think noble Lords would agree that we have not had that explanation over the last three days in Committee either.

[Lord Callanan (Con)]

I am sorry if the noble Baroness believes that. We have debated the principle of the sunset. I accept that she presumably has a different position from mine, but I have stated the Government’s position on numerous occasions. The dashboard will continue to be updated as departments come to decisions on what they want to do with their stock of retained EU law.

[Baroness Ludford (LD)]

My Lords, while it is in my mind, I am not sure the Minister answered my noble friend Lady Brinton’s question, which was, in citing the Delegated Powers Committee report, to ask what was the policy intention and to point out that the Bill is a blank sheet of paper as far as that is concerned. That is what is completely worrying us, because of its effect on the real world and the lack of any parliamentary grip on this process.

For him to say that Amendment 69A would involve the Law Commission in Government policy misrepresents the amendment—no doubt inadvertently—which talks about asking the Law Commission to report on,

“the effect of sections 3, 4 and 5 … on legal certainty, and the clarity and predictability of the law.”

That is surely within the purview of the Law Commission. That would not involve the Law Commission in policy. I fear that the Minister misrepresented Amendment 69A, perhaps in his enthusiasm.

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Moved by

[Lord Callanan]

73: Clause 6, page 4, line 15, at end insert—

“Retained EU law governing the CAP direct payment schemes Retained direct EU CAP legislation

Assimilated law governing the CAP direct payment schemes Assimilated direct CAP legislation”

Member’s explanatory statement
This amendment renames bodies of law relating to direct payments to farmers as regards times after the end of 2023.

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Moved by

[Lord Callanan]

77: Clause 6, page 5, line 7, at end insert—
““retained EU law governing the CAP direct payment schemes” and “retained direct EU CAP legislation” have the meaning given by section 2 of the Direct Payments to Farmers (Legislative Continuity) Act 2020 (as it has effect on the day on which this Act is passed).”Member’s explanatory statement
This amendment is consequential on the Minister’s amendment to Clause 6, page 4, line 15 .

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Ludford, in particular, for her speech. She said a lot of the things that I was going to say, and noble Lords should all be grateful to her, because she has saved them listening to me. We agree that we have real problems with Clauses 12 to 14. Our concerns about Clauses 12 and 13 are mainly about the extent of the powers that are going to be held by Ministers for national authorities, and the lack of consultation. I also want to mention Amendment 103 in the name of the noble Baroness, Lady Humphreys, because it seems appropriate, on the face of it, for the devolved Administrations to have rather more involvement than these clauses, as currently drafted, seem to allow for.

In Clause 12, it would be good to get a bit more clarity from Ministers on this issue of restatement. I am not entirely clear what is meant by restatement. It is rewriting, I think, because if it were not some sort of rewriting, it would just be “retain”; we would not be having another category called “restate”. Can the Minister define what is meant by “restate”? Obviously, it means that the language can be changed, which could change the meaning, the scope, the power of the law. It could be altered, maybe inadvertently or perhaps intentionally; so who is going to check that the restatement has the effect that Ministers would want, that the devolved Administration would want, that those who are subject to the law would want, or that Parliament would want? I understand if it is about wanting to bring different pieces of law together, perhaps, or to resolve some sort of ambiguity, but how is the Minister going to determine that something is ambiguous? If it is ambiguous, by definition that must mean that there is more than one way of interpreting this piece of law; if there was not, it would not be ambiguous. So how are they going to determine what the right answer to that should be?

The DPRRC is very helpful and clear about this. Apart from anything else, it says that both Clause 12 and Clause 13 should be removed from the Bill—we think it is completely right—because they “inappropriately” delegate legislative power and give

“Ministers powers to legislate to achieve effects that ought instead to belong to Parliament and be achieved in … primary legislation.”

But they also refer to restatement, as the noble Baroness, Lady Ludford, drew to our attention. We are concerned that that could take the Government somewhere they perhaps do not intend to go. Given the pressures on time, which we have already discussed at length—do not worry, Minister, I am not going to go through all of that again—restatement could have a different outcome from that intended. That is before we even get to the powers to revoke, which in some ways might be more concerning. That is a real problem for the Government, and it would be good to know whether they have recognised that potential issue and if so, what measures they have put in place to help prevent any undesirable outcomes that may arise.

I will leave it at that because we will probably come on to similar arguments in the next group. We are very concerned. We do not generally have clause stand part debates, but we are very worried about these two clauses in particular.

[Lord Callanan (Con)]

I thank all noble Lords who have spoken, and I will do my best to assuage the concerns of the noble Baroness, Lady Chapman. The main objective of this Bill is to end REUL as a legal category, as we have said many times. We view the powers to restate as critical to ensuring that the Bill delivers this vital objective, while at the same time ensuring that UK legislation is clear, accessible and improves legal certainty.

I will start by addressing the amendment in the name of the noble Lord, Lord Fox, which the noble Baroness, Lady Ludford, spoke to. Clause 12 is critical in ensuring that the UK and, crucially for the noble Baroness, Lady Humphreys, who I do not think is in the Chamber any more, devolved Ministers—

[Noble Lords]

She is over there.

[Lord Callanan (Con)]

Oh, she is! I apologise to the noble Baroness. She was sat somewhere else earlier.

My point is that devolved Ministers would also have this power and are able to clarify, consolidate, codify and restate any secondary retained EU law to preserve the effect of the current law, while removing it from the category of retained EU law. Removing this power will remove the ability of departments to restate retained EU law to preserve the effects of retained EU-derived principles of interpretation in order to maintain the existing policy effect where it is considered appropriate for the UK in a post-Brexit setting.

The noble Baroness, Lady Ludford, queried whether restatements were just bringing back principles removed by the Bill. I can understand why she might think that, but other parts of the Bill are clear that supremacy and general principles are being abolished and Section 4 of the EU withdrawal Act is being reprieved. These principles or rights will not be recreated in general terms; rather, this power is limited to restating specific individual effects of these principles in particular case law. Indeed, this power will, I submit, provide greater legal certainty to the UK statute book by enabling Ministers—both UK and devolved Ministers—to restate REUL and codify the effects of retained EU case law or EU-derived interpretive effects in a clear and more accessible way.

On the query from the noble Baroness, Lady Chapman, the general legal definition of “restate” is to articulate the principles of REUL for a specific area of law—which is in fact what these powers do. I submit that there is no need to remove this clause from the Bill.

Turning to Amendment 102, tabled by my noble friend Lady McIntosh, I assure her that we have sought to ensure that the Bill contains robust scrutiny mechanisms, including for the power to restate under Clause 12. The noble Baroness, Lady Ludford, cited the comments from the Delegated Powers and Regulatory Reform Committee. I reassure her that the restatement power—I think this also goes to the heart of the query from the noble Baroness, Lady Chapman—can be used only to retain a current policy effect of specific individual implications of interpretive effects or retained case law; that is, it maintains the policy status quo, so there would be no changes to the underlying policy.

Regarding consultations, our expectation is that departments will follow the standard procedures with the devolved Governments during policy development. The UK Government are, as always, committed to respecting the devolution settlements and the Sewel convention. Indeed, as I said earlier, the majority of the powers in the Bill—including the powers to restate under Clauses 12 and 13—are indeed conferred concurrently on the devolved Governments. We will of course continue discussions with the devolved Governments moving forward to ensure that the most efficient and appropriate approach to REUL can be taken in a way that provides certainty for all parts of our nation. Therefore, we do not consider that adding a requirement to consult on the face of the Bill is necessary.

Amendment 103 would prevent the power to restate from being able to operate fully on devolved REUL. It is pivotal that there are no impediments or delays in delivering this much-needed REUL reform. I recognise the points that the noble Baroness, Lady Humphreys, made. Indeed, she may have concerns about the potential impacts of the power to restate within areas of devolved competence. However, I will endeavour to convince her that her concerns are unfounded. None of the provisions in the Bill, including the power to restate REUL, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments.

I turn now to amendments relating to Clause 13 and the powers to restate assimilated law, starting with the Clause 13 stand part notice; the noble Lord, Lord Fox, cannot be here, so the noble Baroness, Lady Ludford, spoke to it. Clause 13 is critical to ensuring that the Government are able to reproduce the effects of retained case law and EU-derived principles on the body of law that was REUL and becomes assimilated law at the end of 2023. This is essential to ensure that a consistent approach to the UK statute book can be taken following the sunset by enabling Ministers to exercise this power on former retained EU law that has not been revoked by the sunset and which remains on the UK statute book as assimilated law.

On Amendment 105, I reiterate that this Government recognise the importance of ensuring that legislation undergoes the appropriate level of scrutiny and consultation, and we are committed to working collaboratively and constructively with the devolved Administrations. Therefore, we do not consider it appropriate or necessary to add a requirement to consult to the Bill, because doing so would limit the ability of departments to use the power before it sunsets on 26 June 2026.

Amendment 106, tabled by the noble Baroness, Lady Humphreys, would require legislative consent to be sought from the devolved legislatures before a UK Minister makes regulations under the power to restate assimilated law in areas of devolved competence. I reassure the House again that none of the provisions in the Bill, including the power to restate assimilated law, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments. The majority of the powers in the Bill, as I have said, will be conferred concurrently on the devolved Governments. This will enable them to make active decisions regarding their retained EU law or assimilated law within their areas of devolved competence, and it will provide them with greater flexibility to decide how to regulate those areas currently governed by REUL within their competence.

I will move on to Amendment 107. As I have said, we are committed to devolution and to working collaboratively and constructively. We are committed to continuing discussions with the devolved Governments moving forward to ensure that the most efficient and appropriate REUL can be taken to every situation in a way that provides certainty for all parts of the UK.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

I also agree with him in terms of PIRs. Certainly, I have been on committees where he has made this point before. What we tend to have now under these skeleton Bills—I think that the noble Lord, Lord Lisvane, made this point—is legislation, then a debate on policy. Well, if it is going to be that way round, these PIRs are even more important and fundamental, particularly as we have heard in this debate. So we certainly support them, and I hope the Minister will be able to answer the question I have put to him.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

I thank all three speakers. I first thank my noble friend Lord Hodgson; I know he takes this subject extremely seriously, as do I. It was a pleasure, albeit a gruelling experience, to give evidence to his committee. He knows my personal commitment on impact assessments is substantial; I do believe that they are important. As he said, I did have responsibility for it before the machinery of government changes, and I did my best working with the Regulatory Policy Committee to impress on other government departments the importance of producing impact assessments for some quite major pieces of legislation. Some Secretaries of State have chosen not to. My noble friend Lady Neville-Rolfe, talking from a sedentary position here, has just said, “I hope you produced one for the Procurement Bill”.

So, let me address the points that my noble friend has made on Amendments 134ZA and 134B. I hope to explain to my noble friend why we are taking the actions that we are. Starting with Amendment 134ZA, my noble friend’s amendment seeks to reintroduce a duty to insert review provisions in secondary legislation by removing the Bill’s proposed exemption to Section 28 of the Small Business, Enterprise and Employment Act 2015—which, as my noble friend said, was produced by my noble friend Lady Neville-Rolfe. It is amazing how these things come around.

It is correct that the Government should commit to review any new regulatory provisions that may arise from the use of powers in this Bill, including by secondary legislation. However, if we were to reintroduce Section 28, there are concerns that at a future date there will be a huge surge in the volume of reviews requiring assessment in a fairly limited window of time, which would put tremendous pressure on the Civil Service and independent resources. The amendment also calls for a requirement for a review within 3 years. This is in fact more frequent than the current review process of five years. It is my submission that, for some policies, a review at this point would be based on too small a data sample to make a meaningful judgment.

Finally, many of the relevant instruments are in an existing review cycle that is due to be undertaken within the next three years. I hope my noble friend will accept that forcing a further regulatory review would create duplicate or conflicting review cycles. Therefore, for new regulatory provisions introduced under this Bill, we are proposing a bespoke approach to our REUL analysis. Where applicable, such as when retained EU law is being amended significantly via a statutory instrument, departments may be subject to additional independent scrutiny. If the expected economic impact of REUL changes is of £5 million or more, departments will be expected to submit the impact assessment for independent scrutiny by the Regulatory Policy Committee, as in general happens now.

Where measures are being sunset, departments will undertake proportionate analytical appraisal. Each department will be expected to produce an aggregate analysis of REUL that it is choosing to sunset. This aggregate analysis will be published by departments. Each department’s aggregate analysis will be divided into groupings, such as “inoperable” or “defunct”. No doubt the noble Lord, Lord Fox, will study my noble friend Lord Benyon’s famous examples with great interest for the impact on the fighting bulls of the West Country.

Should the total impact of any grouping exceed the de minimis threshold of plus or minus £5 million, which is the limit used, then the department should submit an impact assessment to the RPC for independent scrutiny. This approach balances efficiency by requiring reviews only where necessary, alongside delivering an ambitious programme of REUL reforms which we hope will deliver real economic benefit for UK businesses and citizens.

My noble friend’s other amendment, Amendment 134B, seeks to introduce a duty for departments to conduct a regulatory impact assessment when they lay a statutory instrument or a draft of a statutory instrument containing regulations via the powers in this Bill. To address the question raised by the noble Lord, Lord Fox, properly assessing the impact of government policy is an important principle of good governance, and this Government will continue to be committed to the appraisal of any regulatory changes relating to retained EU law. The nature of the appraisal will depend on the type of changes that departments make and the expected significance of the impacts.

Where applicable, such as when retained EU law is a regulatory provision and is being amended significantly via a statutory instrument, departments will be expected to put their measures through the Government’s systems for regulatory scrutiny, which is the better regulation framework. Where measures are being revoked, departments will be expected to undertake proportionate analytical appraisal. We are currently exploring the appropriate steps we can take to appraise the resulting impacts. Furthermore, the Government have, as the Committee knows, published an impact assessment relating to the Bill as a whole. The noble Baroness, Lady Chapman, referred to it extensively. In addition, an internal exercise is under way between departments and the Ministry of Justice to appraise potential impacts on the justice system from the Bill.

However, given that proper and proportionate cost-benefit analysis will be undertaken by departments in relation to amendments to retained EU law, and efforts are under way to understand potential impacts of sunsetting, I hope my noble friend will agree that there is no need to include in the Bill the amendment that he has proposed. I hope I have been able to reassure him and that he will feel able to withdraw his amendment.

[Lord Hodgson of Astley Abbotts (Con)]

I am grateful to the Minister, to the Opposition Front Bench for its support, and to the noble Lord, Lord Fox, for his inquiries. Clearly, my interviewing of my noble friend at the committee was not gruelling enough in the light of the answers he has given me, but never mind. I accept the three to five years issue.

Then I get quite excited, because I hear about a bespoke approach. That sounds quite good, but then we hear “proportionate” and “only where necessary”. So we will set up something that we all would agree is great—even my successor as chairman of the SLSC, my noble friend Lord Hunt—but then we have so many escape clauses. Although I would not say that it is not worth the paper it is written on, I would say words to that effect. However, it is late. I will read carefully what my noble friend the Minister said, reflect on it, and then decide what further action needs to be taken. I beg leave to withdraw the amendment.

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Moved by

[Lord Callanan]

138: Schedule 4, page 37, line 37, leave out “1” and insert “(Exceptions to sunset under section 1)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendments at Clause 1, page 1, line 7 and After Clause 1. It also makes procedural provision in relation to subsection (1)(c) of new Clause (Exceptions to sunset under section 1).

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[Baroness Chapman of Darlington (Lab)]

Uncharacteristic but very welcome—I hope he does not take that the wrong way.

We support this measure, for the reasons that have been very well laid out about giving stakeholders a chance to get involved. We do not think that accepting one of these amendments or something like them would affect the Government’s ability to fulfil their objectives.

The noble Baroness, Lady Randerson, made some good points about the argument regarding practicality, based on experiences laid out very well in the committee report. I thought her concerns about the unintended consequence of sticking with 10 days—that it might actually make the process slower because more things would get referred—were strong. Her point about the need to probe policy that may come about as a result of the SIs coming from this Bill has persuaded us as well.

I would have thought this was something on which the Government could accept a change and bring something back on Report. If they do not, we will be happy to work with noble Lords on all sides to try to table something ourselves. I think this may perhaps be an occasion where the Government could show willing, and listen and respond positively.

[Lord Callanan (Con)]

I thank the speakers. We have finally reached the last grouping, which is a source of considerable relief.

Amendments 139 and 140, tabled and ably moved by my noble friend Lord Hodgson, both propose introducing further scrutiny procedures for legislation made under powers within Clauses 12, 13 and 15. Both amendments would essentially do the same thing: they propose extending the period of time after which legislation is made under these clauses and is subject to scrutiny from the House of Commons and the House of Lords as part of the sifting procedure. Specifically, they seek to extend the time limit within which both Houses can make recommendations on the appropriate procedure used for the instrument laid as part of the sifting procedure.

As drafted, the relevant committees of the Lords and the Commons have 10 sitting days, as both my noble friends and others said, to make recommendations on the appropriate procedure after an instrument has been laid. This is actually in line with the level of sifting under the EU withdrawal Act. I note my noble friend’s comments that it was not enough time, but I was impressed by the incredible work that the committee did during that time and I do not recall it being a particular issue.

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Moved by

[Lord Callanan]

144: Clause 22, page 23, line 40, leave out subsection (5)
Member's explanatory statement
This amendment removes an exception from the Clause 1 sunset. The exception is contained in new clause (Exceptions to sunset under section 1).

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

Moved by

[Lord Callanan]

1: Clause 1, page 1, line 4, leave out subsection (1) and insert—
“(1) Legislation listed in Schedule (Sunset of subordinate legislation and retained direct EU legislation) is revoked at the end of 2023, to the extent specified there.(1A) In that Schedule—(a) Part 1 lists subordinate legislation;(b) Part 2 lists retained direct EU legislation.”Member's explanatory statement
This amendment provides that the legislation to be revoked by Clause 1 is the legislation listed in the Minister’s new Schedule.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, we have listened to the concerns of this House and today we are tabling a number of amendments to modify the first three clauses of the Bill.

Amendment 1 provides that the sunset in Clause 1 will be updated with a revocation schedule. This schedule will list retained EU law that will be revoked on 31 December this year. The revocation schedule includes around 600 pieces of legislation provided from departments across government and spans a huge number of policy areas. This will provide the legal clarity and certainty that many Members called for in Committee. The revocation schedule will provide certainty by listing exactly which pieces of REUL will be revoked at the end of the year. One of the main advantages of the schedule is the ability to efficiently and cleanly remove superfluous legislation without taking up disproportionate amounts of parliamentary time. It will thus allow us to remove legislation inherited from the EU that the UK no longer requires in an efficient and transparent way by the end of the year.

Retained EU law not included in the schedule will still be stripped of EU interpretive effects after 31 December 2023 and therefore assimilated into domestic legislation as per Clauses 4 to 7. This means we will still be removing the effects of general principles of EU law as an aid to interpretation, ceasing the application of supremacy and repealing directly effective EU rights so that they no longer have any effect in relation to these provisions. Consequently, nothing on our domestic statute book will be considered as retained EU law and the special status of retained EU law in the UK will come to an end.

Amendment 5 serves to remove subsections (3) and (4) of Clause 1 and insert a power for a relevant national authority to exclude legislation from revocation. This amendment ensures that we retain a limited preservation power in the Bill to enable Ministers and devolved authorities to preserve specific retained EU law so far as it would otherwise be revoked under Clause 1. The devolved authorities will therefore be able to exercise this power to preserve legislation so far as it is within their devolved competence. This power will be time-limited; it cannot be used beyond 31 October this year. These amendments set out the operation and principle of the schedule’s approach. I look forward to discussing the content of the schedule in our debates on Wednesday.

Amendment 68 provides that the preservation power inserted by Amendment 5 will be subject to the draft affirmative procedure. In effect, this means that any preservation SI laid would need to be actively supported by both Houses of Parliament. This will ensure that, should a piece of legislation need to be preserved from the schedule list, this could be done only if there was broad approval across both Houses, avoiding the risk that this power is overused or not properly scrutinised if enacted.

Amendment 13 removes Clause 3, which contains the sunset extension power. Following the removal of the sunset in Clause 1 and the introduction of a revocation schedule, an extension power to the sunset is no longer needed and, by extension, neither is the clause as a whole.

I turn to the other amendment that I am supporting, which was tabled by the noble Baroness, Lady Chapman. I had every intention of laying this very amendment given Amendment 1, but the noble Baroness beat me to the punch on this occasion with her Amendment 9, which removes Clause 2 from the Bill. This clause contains all exceptions to the sunset. Much like Amendment 13, this is a consequential amendment; Clause 2 will no longer be needed given the introduction of a revocation schedule. Removing redundant clauses to enable the effective operation of the Government’s schedule makes sense. As such, I agree with this amendment and will support it. I beg to move.

Amendment 2 (to Amendment 1)

Moved by

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We welcome the Government’s amendments, but this Bill really ought to serve as a lesson to lawmakers—now and in the future—that legislating in a factional interest, rather than the national interest, is always a mistake.

[Lord Callanan (Con)]

I thank all noble Lords who have contributed to this debate. I find myself standing here bathed in sunlight; I am not sure whether that is a sign.

[Lord Fox (LD)]

My Lords—

[Lord Callanan (Con)]

I do not require the noble Lord’s advice on this.

I will start with Amendment 2 from the noble and learned Lord, Lord Hope, which requires that legislation listed in the revocation schedule be referred to a Joint Committee of both Houses and be considered by the committee for a period of at least 30 sitting days. Should the Joint Committee consider that the revocation of the legislation listed would substantially alter UK law, a Minister of the Crown must ensure that the revocation be debated and voted on by both Houses prior to 31 December.

I start by reassuring noble Lords that it is the Government’s view that this amendment is unnecessary. Every piece of retained EU law in the schedule has been thoroughly reviewed, and will be reviewed and debated alongside Amendment 64, which has been tabled. I am confident that the changes to Clause 1 that we have introduced have alleviated the substantial concerns raised by Members across this House during the passage of the Bill and provided the legal clarity and certainty that has been called for.

Although I know that a number of noble Lords have not yet had the chance to see it, today we have published an extensive schedule explainer—again, responding to the concerns that many Members have raised; officials have been working hard on this all weekend—which explains, line by line, why each of the, in total, 587 pieces of legislation has been deemed suitable for inclusion on the schedule. That has been sent to every Member in advance of the debate on Wednesday. I hope that this will alleviate the concerns raised in this debate, including by my noble friend Lord Hodgson and the noble Lord, Lord Kerr, and other noble Lords, about the amount of information that has now been made publicly available.

In addition, the preservation power in Clause 1 will enable relevant national authorities to preserve legislation on the revocation schedule where they deem it necessary and where the relevant procedures and timescales have been adhered to. This provides a proportionate safeguard against unforeseen consequences of legislation listed on the schedule being revoked. The purpose of our amendment is to provide that legal certainty and clarity as efficiently as possible. To require yet further referrals and debates, and approvals to the list which can be scrutinised during the Bill’s passage, is unnecessary.

On Amendment 4, I have introduced changes to the Bill that I hope will reassure the noble and learned Lord, Lord Hope of Craighead—I think they have done—that his proposed changes to the functioning of the Bill are not necessary. Indeed, the revocation schedule I have laid guarantees that only a set amount of retained EU law will be revoked, which is clearly set out in the Bill. This is very similar to the mechanism proposed in this amendment that would see instruments or provisions expressly listed in a ministerial Statement. However, for a number of reasons, I believe that my proposed revocation schedule is better equipped to deliver this amendment’s desired outcome.

For similar reasons I am opposed to Amendment 6. This amendment would introduce changes to Clause 1 that are reflective of those already introduced by the Government. Indeed, the revocation schedule in Amendments 1 and 5 seeks to accomplish similar goals to Amendment 6 but in a more comprehensive way. This amendment would require a list to be compiled in order to be revoked and would open the door for multiple such lists being laid over the coming months. Again, the proposed revocation schedule is already drafted, has been vetted and is ready, and I believe it is a more appropriate solution. Finally, the amendment has unclear timelines and does not offer as much certainty as the revocation schedule, which is clear about when the revocation of pieces of retained EU law would occur and works in step with other timings in the Bill, such as the expiry of the powers on 23 June 2026.

I was going to refer to the amendment in the name of the noble Lord, Lord Hacking, but he said that he will not press it.

Amendment 8 attempts to exempt any pieces of legislation from the sunset should they be identified after the end of 2023. As I already outlined, this amendment is now unnecessary.

Amendments 10, 11 and 12 all concern the devolved Administrations and their preservation power in what was Clause 3. However, given that under my proposal Clauses 1 and 2 have been removed from the Bill and a revocation schedule has replaced the sunset, these three amendments are defunct and we ask that they are not pressed.

Amendment 16 seeks to oblige the Secretary of State to publish a health and safety impact assessment for any retained EU law which is to be revoked, at least 90 days before the revocation. All legislation listed on the revocation schedule has been considered by the relevant departments and checked by the relevant teams. As such, a health and safety impact assessment is not needed, given the depth of the work that has already been carried out.

We have introduced this Bill to help us realise the opportunities of Brexit. I reassure my noble friend Lord Jackson and other noble Lords that the Government remain committed to a reform programme. Legislation that has been identified on this schedule had already been identified and would have been allowed to sunset anyway. We are still committed to making the opportunities of the reform programme, and we retain the ambition and fundamental purpose behind this work.

I hope that the noble and learned Lord will feel able to withdraw his amendment and that other noble Lords will not press theirs and will support the government amendments.

[Baroness McIntosh of Pickering (Con)]

Before my noble friend sits down, will he respond to my question about sufficient consultation time being allowed? The Food Standards Agency has accepted all the legislation that relates to it which falls in the revocation schedule to which my noble friend referred, subject to sufficient time for consultation. Can my noble friend say, hand on heart, that, by the time the Bill is concluded, there will be enough time for consultation before the schedule applies?

[Lord Callanan (Con)]

I have seen the letter from the Food Standards Agency to which my noble friend refers. The schedule is published and we have now published the explainer, so people can see what is on it. The vast majority of legislation published on the schedule is unnecessary and redundant, and can be safely revoked.

[Baroness Bakewell of Hardington Mandeville (LD)]

Before the Minister sits down, I listened very carefully but I did not hear what he had to say about Amendment 14 and the reassurances I was seeking.

[Lord Callanan (Con)]

Can the noble Baroness remind me what her Amendment 14 is about, please?

[Baroness Bakewell of Hardington Mandeville (LD)]

Water directives.

[Lord Callanan (Con)]

The directives she seeks an explanation on are not listed on the revocation schedule. Therefore, they continue to be in operation. They will be subject to a reform programme, but that is a question she will need to direct towards the Secretary of State at Defra.

[Lord Hope of Craighead (CB)]

My Lords, I have listened very carefully to what the Minister said. I have not seen the additional information which has apparently been circulated to some Members of this House, and I think many Members have no idea what it contains. That makes my point for me: proper parliamentary scrutiny is essential. That is what my amendment is all about and, with great respect to the Minister, I do not think he has really answered that point of principle. Having moved Amendment 2, I wish to test the opinion of the House.

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[Lord Fox (LD)]

It is the Minister’s turn.

[Lord Callanan (Con)]

Thank you; I did not get up because I thought the Opposition Front Bench was going to speak. I reject Amendments 3, 36, 38 and 42 to 44, tabled by my noble friend Lady McIntosh.

I will deal with the point raised by the noble and learned Baroness, Lady Butler-Sloss, and give an explanation to my noble friend Lord Hamilton. A notion seems to be springing up that the Government and departments somehow did not know what legislation they actually had responsibility for. They knew very well what legislation they had; what was sometimes unclear was whether that legislation was as a result of an EU obligation and therefore was retained EU law. This was because, over the 40-odd years of our membership, different Governments had different policies. Only a small part of EU legislation was introduced through the so-called Section 2(2) pipeline of the European Communities Act. If it is those regulations, that is very obvious—people know where that has come from—but Governments often did not want to say that legislation was introduced as a result of an EU obligation. It was therefore introduced under various instruments, under either domestic legislation or normal domestic secondary legislation. Therefore, the difficulty that departments faced was identifying what was an EU obligation. It is not that they did not know what legislation they were responsible for, were somehow finding legislation down the back of the sofa or anything else. That has been the issue: the definition of what was retained EU law. I hope that explanation is helpful.

Amendment 3 seeks to change the sunset date, pushing it back to the end of 2028. Given the amendments to the Bill that we have already discussed and the significant changes to the operation of the sunset, I hope my noble friend recognises that it is therefore not necessary to also change the sunset date. The current scope of the sunset in Clause 1 will no longer be relevant, as it will be replaced with a schedule to the Bill. The schedule will list retained EU law that departments have identified for removal. This is the only legislation that will be revoked on 31 December 2023.

Similarly, Amendments 36 and 38 seek to change the date of the powers to restate under Clauses 13 and 14. Amendment 36 would mean that Clause 13 was capable of acting on retained EU law until 31 December 2028. Pieces of retained EU law that are not included in the revocation schedule will, of course, not be revoked on 31 December 2023, but they will be stripped of their EU interpretative effects and assimilated in domestic legislation.

Consequently, those pieces of legislation will no longer be retained EU law. They will be assimilated law as part of the normal law of the United Kingdom, and the status of retained EU law on the UK statute book will come to an end. There will be no more REUL after 31 December. As retained EU law will end as a legal category at the end of this year, it is right that this power, which is capable of acting only on REUL, expires then. I am not clear why my noble friend wants to extend the sunset date of a power that will no longer be required.

Amendment 38 seeks to change the date on which the power to restate assimilated law under Clause 14 will expire from 23 June 2026 to 31 December 2028. It is in my view entirely right and appropriate that this power should be available for a time-limited window up to 23 June 2026. This is consistent with the powers to revoke or replace in Clause 16. I am confident that the time window currently set out in Clause 14 will provide sufficient time for the power to be exercised on all the necessary legislation.

Amendment 42 changes the date on which the powers to revoke or replace within Clause 16 are capable of acting on REUL from 23 June 2026 to 31 December 2028. Similarly, Amendment 43 changes the date that the powers to revoke or replace can act on assimilated law to 31 December 2028. Amendment 44 changes the date in Clause 16(11) from the end of 2023 to the end of 2028 so that the references to retained EU law in Clause 16(8) can be read as a reference to assimilated law until 31 December 2028. Again, this group of amendments is no longer necessary due to the revocation schedule. There is more than adequate time for the use of the powers on assimilated law within the timescales provided for in the Bill. The powers to revoke or replace will enable UK and devolved Ministers to remove those regulations that are no longer fit for purpose and replace them with regulations that are more tailored to the UK within a timely manner, and the Government are committed to achieving these much-needed reforms by 2026. That is why the powers are restricted in their use and available only for a time-limited window, up to 23 June 2026. I hope that, with the explanations I have been able to provide, my noble friend will withdraw her amendment.

[Lord Hacking (Lab)]

Before the Minister sits down, can he explain assimilated law? The present position—it is clearly shown in the schedule—is that either the European provision turns up as a statutory instrument or it is referred to precisely by the regulation number of the EEC or EU regulations. How are we going to find this assimilated law?

[Lord Callanan (Con)]

The noble Lord is confusing two things. The schedule is the retained EU law that we are proposing to allow to be revoked on 31 December this year. Assimilated law will be that retained EU law, stripped of its interpretive effects, that will remain on the statute book. We will end the special category of retained EU law that has existed because of our membership of the European Union. The noble Lord is confusing two things. The items listed in the schedule will disappear, and the rest, which is not revoked, will become assimilated law. The powers that remain can act on that law to change or modify it. That will be subject to approval by Parliament through the normal process.

[Lord Hacking (Lab)]

How do we identify the assimilated law on our statute book?

[Lord Callanan (Con)]

The dashboard lists all the pieces of retained EU law that have been identified; the schedule lists those that are being revoked.

[Baroness McIntosh of Pickering (Con)]

My Lords, while I am extremely grateful to my noble friend, I think he has made a bit of an own goal because I think it is still the case that the dashboard is simply not comprehensive. My concern, and I think that of the noble Lord, Lord Hacking, the noble and learned Baroness, Lady Butler-Sloss, and others, is that there are a number of items of EU law that are simply not on the dashboard. As we speak today, I am unclear about what the legal status of the dashboard is.

What I do take comfort from, based on what I understand my noble friend to have said, is that, if, for example, there is a piece of Defra retained EU law that does not appear in the revocation schedule on which we are going to vote, it will remain on the statute book and, even more importantly, it cannot be amended. So it can neither be revoked nor amended. If that is not the case, I would ask my noble friend to rise to the Dispatch Box and explain where I am wrong.

As he has not risen, I am taking it that any Defra or other retained EU law that is currently on the statute book and not in the schedule will remain part of retained EU law and, furthermore, cannot be amended. I am grateful to my noble friend for his clarification in that regard. I shall beg leave to withdraw my amendment on the understanding that what I have said is correct. If I am wrong, I believe that my noble friend must stand at the Dispatch Box and say that it is possible to amend retained EU law that is not on the revocation schedule before us today. That is an extremely important legal point.

[Lord Callanan (Con)]

I have explained this, but I will do so again. The powers to modify, change or update the assimilated law remain in the proposals. Obviously, the measures that are in the schedule will be revoked, but there are powers to modify, or restate. To take an example, interpretive effects are being abolished and, in some pieces of legislation, that will require minor changes to that legislation, to update it, because of the removal of interpretive effects. The policy intent will stay the same, but it is possible that some minor changes will be required, which is why the Government need this power. So the noble Baroness is partially correct to say that existing measures that are not being revoked will become part of assimilated law; but the Government do have the power to modify or change them.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am not sure that that is entirely clear, but I have pressed the point as much as I can at this stage. I beg leave to withdraw my amendment.

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Moved by

[Lord Callanan]

5: Clause 1, page 1, line 10, leave out subsections (3) and (4) and insert—
“(3) Subsection (1) does not apply to anything specified in regulations made by a relevant national authority.(4) No regulations may be made under subsection (3) after 31 October 2023.”Member’s explanatory statement
This amendment leaves out subsections (3) and (4), in consequence of the Minister’s amendment at page 1, line 4, and inserts a power for a relevant national authority to exclude legislation listed in the Schedule from revocation under this Clause.

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Moved by

[Lord Callanan]

13: Leave out Clause 3
Member’s explanatory statement
This amendment leaves out clause 3 (extension of sunset under clause 1).

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[Lord Collins of Highbury (Lab)]

My Lords, to pick up that point, we have heard in every debate a recognition that the Government have moved, which has been very important and welcome.

Some people want to continue a debate about Brexit. These amendments are not about that. That is why I totally support the noble Lords, Lord Hamilton and Lord Hodgson, who have previously participated in debates in this House on the nature of secondary legislation and how it has increased, and how it empowers the Executive. This is a unique situation; we have established the principle in the first group but, if we are to make changes—revise, reform and revoke—how will we ensure that the people with the responsibility to legislate have the responsibility properly to scrutinise and amend if necessary? People jump up and down and ask whether this is the right place to have a debate about secondary legislation. I am not too bothered about that. I am concerned about outcomes. Parliament should have the opportunity properly to scrutinise the changes and powers in this legislation. The noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Hope, have offered us a process in this Bill for those changes to be made.

The noble Lord, Lord Hodgson, has pushed me on numerous occasions, particularly when we debated his committee’s report, on whether a future Government would adopt this for statutory instruments. I cannot make that commitment, but I know that, if we adopt Amendment 76, it will establish a practice that people might see is beneficial for future arrangements. We can have a win-win situation. This debate is not about Brexit. It is about who has responsibility to legislate in this country. It is not the Government; it is our duty. That is why we should support Amendments 76 and 15.

[Lord Callanan (Con)]

My Lords, Amendment 15 tabled by the noble Lord, Lord Anderson, and moved by the noble and learned Lord, Lord Hope, effectively seeks to delay a vital part of the Government’s retained EU law reform programme whereby EU rights, obligations and remedies saved by Section 4 of the European Union (Withdrawal) Act 2018 will cease to apply in the UK after 31 December 2023. The matters saved by Section 4 consist largely of rights, obligations and remedies developed in the case law of the Court of Justice of the European Union. Many of these overlap with rights already well established by domestic law in this country, and those overlaps can cause confusion.

Where the UK and devolved Governments consider that there is a need to codify any specific rights that may otherwise cease to apply, this can be done under the Bill’s powers. These codified rights will be placed on a sustainable UK footing, providing certainty and therefore safeguarding and enhancing them in domestic statute. The Bill is ending the current situation whereby citizens must rely in some cases on an unclear category of law and complex legal glosses to enforce their rights. Sadly, the proposed amendment seeks to perpetuate this situation, which the Government consider unacceptable. I hope the noble and learned Lord will withdraw his amendment.

Amendments 69, 76, 73 and 74 relate to Schedule 4 and parliamentary scrutiny. Amendments 73 and 74, tabled by my noble friend Lord Hodgson of Astley Abbotts, relate to the sifting procedure and seek to extend the period during which committees of this House and the House of Commons can make a recommendation about the relevant scrutiny procedure for regulations made under Clauses 13, 14 and 16. Specifically, these amendments seek to change the time limit under which both Houses can make recommendations on the appropriate procedure to be used when an instrument is laid and subject to the sifting procedure.

As the provision is drafted, relevant committees of this House and the Commons have a period of 10 sitting days to make recommendations on the appropriate scrutiny procedures. This starts on the first day on which both Houses are sitting after the instrument has been laid. If the period of 10 sitting days does not cover the same dates for both Houses, the end date of the relevant period will be the later of the two dates. Amendment 73 extends the number of sitting days in the period from 10 to 15 for the House of Commons, while Amendment 74 does the same for this House.

As I have been reminded by a number of noble Lords, particularly my noble friends Lord Hodgson and Lord Hunt, I committed in Committee to review the 10-day scrutiny period for sifting. I engaged in extensive discussions not just in the department but with the business managers about whether a 10-day sifting period was sufficient. As my noble friend Lord Hodgson intimated, I was not successful in persuading them. The Government’s position remains that a 10-day sifting procedure is sufficient for SIs laid under the powers in the Bill.

It is also worth pointing out that we had that debate under the old provisions of the Bill. Under the new schedule approach, the total volume of statutory instruments to be delivered via the reform programme has been significantly reduced. My noble friend’s concern that there was not enough time to consider them properly will have been to some extent allayed, given the previously very large volume of SIs.

From previous experience, the 10-day period worked quite well during the programme of SIs for EU exit and is in line with the sifting procedures and legislation introduced under the European Union (Withdrawal) Act. I have some confidence that it will continue to work well in this scenario. Therefore, I am afraid the Government do not consider it necessary to extend the time limit within which an instrument is scrutinised as part of the sifting procedure.

I turn now to Amendments 69 and 76 from the noble and learned Lord, Lord Hope. These amendments put a somewhat novel scrutiny procedure in place for the powers under Clauses 13, 14 and 16. Specifically, Amendment 69 removes the requirement for certain regulations made under those clauses to be subject to the affirmative procedure. In consequence of this, Ministers would be left with a choice between the negative or affirmative procedures, with the former subject to the sifting procedure.

Amendment 76 imposes this novel and untested scrutiny requirement on regulations made. This takes the form of an enhanced sifting procedure—not dissimilar to the super-affirmative procedure—under which Parliament may make amendments to a proposed instrument. The Government believe that the purpose of this Bill is to ensure that we have the right regulations in place which are right for the whole of the UK. The House can be assured that the Government will ensure that any significant retained EU law reforms will receive the appropriate level of scrutiny by the relevant legislatures and will be subject to all of the usual processes for consultation and impact assessment. However, we also believe that we have to ensure that the limited amount of parliamentary time that is available is used most appropriately and most effectively. Requiring that the powers be subject to additional scrutiny is neither appropriate nor necessary in this case.

The sifting procedure that we suggested was purposely drafted as a safeguarding measure for these powers. The sifting procedure will give the UK Parliament the opportunity to take an active role in the development of this legislation. It is a tried and tested method of parliamentary scrutiny which delivers—in my view—good results for everyone and does draw on the expertise of our various parliamentary committees. Requiring that legislation to be subject to novel, untried, untested and onerous scrutiny, such as this enhanced sifting mechanism would—in my view—not be an effective use of parliamentary time. It would result in delaying departments delivering their REUL reform programmes and would delay the Bill in delivering its objective of bringing about much-needed REUL reform. For all those reasons, the Government cannot support Amendments 69, 76, 73 and 74.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have spoken in the course of this debate. I do not want to go over the arguments again. On the criticisms the Minister has made about my two amendments, I have only two points to make.

First, I think he said that the purpose of Amendment 15 was to delay the process that Clause 4 is talking about. That is simply not true. We have kept within the timetable that Clause 4 itself lays down. As I made clear, the aim throughout our amendments is to try to achieve what is required as quickly as possible. The sunset date in Clause 4 remains, according to our amendment. So, to say that we are delaying anything is, with great respect, not the case.

Secondly, to describe Amendment 76 as novel and untested is not a criticism that meets the situation. We are dealing with an entirely new situation where we are having to redesign an enormous quantity of EU law which we have inherited. Of course, the system we have devised is new because we are dealing with something we have never encountered before. That itself is no answer to the point that we were making throughout: parliamentary scrutiny is essential. The noble Lord, Lord Kerr, drew attention to provisions in Clause 16 which absolutely emphasise the essential nature of that. So I move Amendment 15 and, if it is not agreed to, I wish to test the opinion of the House.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I was surprised when I saw this amendment. I have now spent 13 years in opposition in this and the other place, tabling such amendments at just about every opportunity. When you know that the Government are not going to do what you want them to do, one of the things left to you is to ask the Government to report annually or six-monthly to both Houses on whatever the issue might be. I have done this on everything from women’s justice to food standards to access to medicines. It is an in your back pocket kind of amendment—the sort that Ministers usually bat away quite easily. They talk about the cost and how much Civil Service time would be taken up in preparation. They do not want to use up valuable parliamentary time to debate these things, nor to distract Ministers with these sorts of fripperies.

On this occasion, it seems that the Government have decided that they can afford the time, money and resources to compile this list—to keep the argument alive for some people within the Conservative Party. What has happened to the noble Lords, Lord Frost and Lord Jackson? The tigers of Brexit are being bought off by an annual report to both Houses of Parliament. This is the sort of thing that the Opposition would have settled for at any point. There they are, taking this at what is meant to be the climax of their Brexit mission. I am quite disappointed that this is all the noble Lords have sought to achieve at the end of all this. They must be quite disappointed, although at least they get to have their report each year, to raise things and to ask why this or that regulation has not yet been dealt with. This is not going to be a red-letter day in my diary but, if it keeps the flame burning for others, then so be it.

I have to ask the Minister the same questions that he would ask me if the roles were reversed. Who will be compiling this list of regulations? How much time will they be spending on it? What is the cost? Will there be an opportunity to debate this report in Parliament each year? What format will this take, or will it go to a Select Committee? I wonder about the Government’s priorities. They find time to undertake this task when mortgages are soaring, inflation is still high, people are dying waiting for treatment, unable to see their GP and are pulling their own teeth out. This is what is going on in the country and yet the Government make this a priority.

I understand that the Government intend to accept this amendment, despite everything they have managed to do. They have completely rewritten their Bill. They have shown a little bit of backbone in doing that. I give credit where it is due. Now, at the 11th hour, they think that this is going to get them over the final hurdle. I am disappointed in the Minister for falling at the final fence. I am particularly disappointed in the noble Lords, Lord Frost and Lord Jackson, for settling quite so easily. There we are. I do not think we will bother to oppose the Government on this. Given everything else that has been going on, it does not seem worth the time of the Chamber to do so. This was quite a surprising, last-minute event in the process of this Bill.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I thank the noble Baroness, Lady Chapman, for what must be the most cynical speech I have heard on this Bill so far. We have seen just how committed the Opposition are to any kind of serious reform. They were perfectly to accept all this legislation which was imposed by the European Union through the various processes—before the noble Baroness, Lady Ludford, corrects me. Now Labour is not interested in any kind of reform of it. It is perfectly happy to live with it. It shows the true colours of the Opposition.

Nevertheless, I am of course pleased to say that the Government have already reformed or revoked more than 1,000 pieces of retained EU law. But I agree with the contributions of my noble friends Lady Noakes, Lord Jackson, Lady Lawlor, Lord Frost and Lord Shinkwin—but this should not be the limit of our ambition. The answer to the noble Baroness, Lady Chapman, is that the retained EU law is already listed in the famous schedule, and, if she accesses this internet thingy, she can get a list of all the remaining retained EU law. Departments will continue to review all the retained EU law that has not already been revoked, reformed or planned for revocation this year, to identify further opportunities for reform. We want to do this because we want to reduce the burdens on business, generate more jobs and unlock the potential for economic growth. Again, we can see where the Opposition’s true priorities are in that agenda.

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Moved by

[Lord Callanan]

52: Clause 20, page 22, line 9, leave out “Minister of the Crown” and insert “relevant national authority”
Member’s explanatory statement
This amendment extends the consequential power in clause 20 to devolved authorities.

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Moved by

[Lord Callanan]

54: Clause 21, page 22, line 14, leave out “the preceding provisions of”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 24, line 14 to leave out “Minister of the Crown” and insert “relevant national authority”.

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Moved by

[Lord Callanan]

57: Clause 23, page 24, line 12, leave out from “regulations” to the end of line 13 and insert “appoint.”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 24, line 14 to leave out “Minister of the Crown” and insert “relevant national authority”.

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Moved by

[Lord Callanan]

64: Before Schedule 1, insert the following new Schedule—

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This amendment inserts a new Schedule listing the legislation to be revoked by Clause 1 at the end of 2023.

[Lord Callanan (Con)]

My Lords, Amendment 64 introduces a new schedule to the Bill that will serve as the revocation schedule. The amendment, in effect, introduces the pieces of legislation due to be revoked by the Bill, as trailed in the amendments in my name, which we discussed on Report on Monday. There are 587 pieces of legislation on the revocation schedule. Each instrument has been included following a thorough review by officials and Ministers. For clarity, it is split into two parts, the first covering EU-derived subordinate legislation and the second encompassing retained direct EU legislation.

I will now speak to a few of the specific entries in which noble Lords have expressed some interest. Amendment 64A would remove Regulations 9 and 10 of the National Emission Ceilings Regulations 2018 (S.I. 2018/129), which are no longer in force. Similarly, Amendment 64B would remove the Commission Implementing Decision (EU) 2018/1522, which is no longer in force, from the revocation schedule, thereby preserving it in domestic law.

The relevant regulations and implementing decision relate to the preparation of a national air pollution control plan, which was required by the national emission ceilings directive. As such, these two pieces of legislation are intertwined, and therefore I will speak to them together.

The NAPCP is a common format required of all EU member states to set out the policies and measures being considered to meet the national emission ceilings targets. The current format of the NAPCP is long, complicated, resource intensive and duplicative. Removal of the regulations relating to the NAPCP will allow us to move away from the overly burdensome system that we inherited from the EU. A large majority of the information in the NAPCP is reflected in individual national strategies and more accessible documents, including the Environmental Improvement Plan for England. Removing the NAPCP would therefore remove this duplication in the public domain, streamline communications on the air pollution policy with existing national strategies and better focus on what will actually help to clean up our air.

As we are appealing only Regulations 9 and 10 of the National Emission Ceilings Regulations, the rest of these provisions will remain in force, including the national emission reduction targets, which are set for five key pollutants, and the requirements to publish UK-wide emissions inventories and projections. With that explanation, I hope that the noble Baroness, Lady Hayman, will not move her amendments.

Amendment 64ZA would remove the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003, which are no longer in force, from the revocation schedule. These regulations were intended to complete the implementation of the environmental impact assessment directive for certain agricultural water resources projects. The regulations impose procedural environmental impact assessment requirements on water resources management projects for agriculture, including agricultural irrigation projects and water abstraction projects that are not accepted under Section 27 of the Water Resources Act 1991 and that are not subject to environmental impact assessment under other regulations.

When these regulations were made in 2003, it was considered that there might be a potential gap in our environmental assessment of agricultural water management projects. This was because a project might well proceed and not be linked to land use, the planning processes or the need for environmental assessment. Moreover, it might not be linked to the need for environmental assessment linked to the requirement to obtain water abstraction or impounding licence from the Environment Agency in accordance with the Water Resources Act 1991. In fact, this gap in regulation was never realised in practice and was filled when we removed water abstraction licence exemptions from all forms of irrigation from 1 January 2018 by commencing provisions in the Water Act 2003. Accordingly, therefore, Defra officials do not consider that there are any other types of agricultural water management projects for which an environmental assessment is required that are not already covered by abstraction and impounding licences or other EIA regulation and would be a relevant project under regulations. Therefore, these regulations are no longer required, which is why they are proposed for revocation. In addition, we understand that no environmental impact assessments have been made under the regulations since 2003. Therefore, I hope that the noble Baroness, Lady Bakewell, will not move her amendment.

Amendment 64ZB would remove the Foodstuffs Suitable for People Intolerant to Gluten (England) Regulations 2010, which are no longer in force, from the revocation schedule. This has been raised a number of times by the noble Baroness, Lady Brinton, who has been in contact with the FSA on this issue. We have also been working closely with the FSA, which has assured us that it has carefully examined the eight pieces of legislation that it has put on the schedule, and that removing them will not impact on the safety or standards of UK food. The regulations referenced in Amendment 64ZB provided for the execution and enforcement in England of Commission regulation (EC) 41/2009 concerning the composition and labelling of foodstuffs suitable for people intolerant to gluten, in particular as regards the use of the terms “very low gluten” or “gluten-free”. However, the Commission decision was repealed by the EU in 2016 and replaced by EU regulation 828/2014. As such, the regulations that are proposed to be revoked via the schedule are, in fact, legally inoperable. With that information, I hope that the noble Baroness will not move her amendment, as it would be a retrograde step to keep on the statute book laws that are, in fact, legally inoperable.

Amendment 64ZA (to Amendment 64)

Moved by

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There has been a collective sigh of relief from charities, businesses, environmental organisations and food producers, following the months of pointless uncertainty caused by this Bill. As the noble Baroness, Lady Hayman, said, there has not been the consultation or engagement on important issues which would give us the confidence to wave this schedule through. It cannot be right that noble Lords are asked to agree a list in a matter of days. I commend the noble Baronesses, Lady Bakewell, Lady Brinton and Lady Hayman, for spotting regulations that need further consideration. I say to the noble Baroness, Lady Foster of Oxton, and to those who agree with her, that is not the job of civil servants to have done this work and to have decided which regulations should stay and which laws should be our laws. This is the job of Ministers, of Members of this and the other place. This is what Parliament is for. I look forward to everyone who believes in this principle on these Benches and on the Benches opposite joining us in the Content Lobby after this debate in voting for Amendment 76 in the name of the noble and learned Lord, Lord Hope.

[Lord Callanan (Con)]

My Lords, I thank the House for yet another fascinating debate, only a small part of which had anything to do with the amendments we were discussing.

I will make an observation before we get into debating the amendments. I have had the privilege of being in government since 2017—for six years in three different departments. I have worked with some excellent officials, who have provided me with nothing but unstinting support. As an example, we tabled this schedule late last week—in response, I might say, to concerns expressed in this House, in an attempt by me, as the Minister, and the Government to allay the concerns that many in this House had expressed about legislation being repealed by accident. That was never our intention. It would never have happened. These regulations would have been revoked anyway but we thought it would be helpful and for the benefit of the House to set them out.

A number of Members then asked for further details about the individual regulations. Officials across government, in the Bill team and elsewhere, worked tirelessly all weekend to get the explainer to this schedule done so as to answer the concerns of Members. They worked very hard and are a credit to the Civil Service. Let me be clear, the responsibility lies with Ministers. Civil servants produced the advice, but I approved the revocation schedule for my department, DESNZ—the Department for Energy Security and Net Zero. Other Ministers approved it in their departments. Responsibility is clearly at a political level, and I will have nothing said against the Civil Service. Certainly, the Bill team worked incredibly hard all weekend, as they have done throughout the production of this Bill.

I turn to the amendments under discussion. As I said, we published the explainer to give an extensive line-by-line explanation that provides a clear justification, for the benefit of Members, for each entry on that schedule. I outlined the rationale for including the regulations flagged up by the noble Baroness, Lady Hayman of Ullock, in my opening speech. I hope that she does not want me to repeat those points on the national air pollution control plan and the national emissions ceiling directive, which are no longer in force. These depend on one another. The current format of the NAPCP is long, complicated, resource-intensive and duplicative. Removal of these particular regulations will allow us to move away from the overly burdensome system that we inherited.

Similarly, in my opener, I explained why Amendment 64ZA, from the noble Baroness, Lady Bakewell, is also duplicative, given other active environmental impact assessment regulations. No environmental impact assessment regulations have been made under those particular regulations since 2003. It is no longer necessary to have this on our statute book.

On Amendment 64ZB, I spoke to the specifics of the food-labelling regulations referenced, but I reassure the noble Baroness, Lady Brinton, that the laws to be revoked within the FSA’s remit have generally been superseded by new legislation and no longer need to remain on the statute book. Even the EU has revoked the regulations. Some have already had their operative provisions revoked, and others exist to amend or enforce legislation that has itself already been revoked.

The noble Baroness also raised enforcement. We provided additional details to her by email, but, as she knows, Commission Implementing Regulation (EU) 828/2014 laid down harmonised requirements for the provision of information to consumers on the absence or reduced presence of gluten in food, by setting out the conditions under which foods may be labelled “gluten-free” or “very low gluten”. That particular regulation remains in force and will be preserved as part of the retained EU law process. Sufficient powers are already in place under general food law to enforce the definitions. The chair of the Food Standards Agency wrote to us last week to confirm this position and to reinforce that removing them will help to make the body of law on food safety and standards clearer, while being entirely consistent with the principles agreed by the FSA board.

[Baroness Brinton (LD)]

I am grateful for the Minister’s response. I forwarded to him and his officials the response that I received from both the FSA and Coeliac UK, which said that this was a temporary arrangement, until 828/2014 could be introduced as a regulation under UK legislation; in other words, it is still needed. So I repeat my question: the Government consulted in 2016, and it is now seven years on, so when will that regulation be shown to the House?

[Lord Callanan (Con)]

I will pass the noble Baroness’s comments on to Defra, which will write to her again, but she has already received replies to her concerns in emails and she has spoken to Bill team officials about this. As I said, the FSA has said that it is entirely happy that this regulation should be revoked.

[Lord Kerr of Kinlochard (CB)]

I wonder whether I can help the Minister. I support what he said today, and I congratulate him on how he started and what he said about the Civil Service. But I wonder whether he might want to think, before Third Reading, about the addition of an emergency brake. I share the worries of the noble and learned Lord, Lord Hope: supposing it turns out that something is needed and that, before the deadline—before they disappear—a real case is established, could the Government not give themselves the power, by statutory instrument, to leave a particular regulation off the schedule, or to amend the schedule by statutory instrument before the deadline, simply to remove a regulation that it turns out is there in error? I do not ask for an instant reaction, but perhaps the Minister might like to think about this before Third Reading.

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[Lord Callanan (Con)]

We are on Report. We do not need to wait until the next stage; I can tell the noble Lord now that there is a power in the amendments to allow exactly that. He does not need to have any further concerns about it.

In response to the noble Baroness, Lady Jones, I say that the UK remains committed to international agreements on air pollution, to which we are an independent signatory. We set new, legally binding targets under the Environment Act and the environmental improvement plan to halt and to reverse nature’s decline. The stretching targets mean that any reform to retained EU law must deliver positive environmental outcomes, and nothing in this schedule alters those commitments. I hope that reassures the noble Baroness.

In response to the noble Lord, Lord Fox, and his famous salt mine example, I am sorry to tell him that he is wrong. The National Archives found its pieces of retained EU law in its EU legislation database, which is now online. The noble Lord might want to consult the internet next time, rather than crawling down his salt mine. One of my officials said that she would have loved to have gone down a salt mine—it would have been a very interesting experience—but she did not need to.

[Lord Fox (LD)]

I think the Minister should check that.

[Lord Callanan (Con)]

I can absolutely assure him: she would have been delighted to go down a salt mine. I will not name her, but she messaged me to say that she was very keen to do so. Perhaps the noble Lord would want to arrange it for her.

The noble Lord also mentioned several regulations which are good examples of EU-inherited provisions that we may no longer need. He may not realise it, but some regulations perform multiple functions—we want to revoke some and to keep or reform others. To update and improve the regulations, we of course need to keep them for now, so that we can make those changes.

I had a feeling that the noble Lord might ask me about the famous reindeer regulation. Indeed, Regulation 1308/2013 of the European Parliament and of the Council includes provisions on reindeer, which we want to revoke because, the last time I looked, there were not many in the United Kingdom for which we need to have responsibility—perhaps even the noble Lord could agree with that. But there are other aspects of the regulation that we want to keep; therefore, in due course, there will be a reform programme which will alter that regulation. Of course, the House will get to see that through a statutory instrument at the time. I have no doubt that the noble Lord will want to engage with the Defra Minister in a meaningful debate on how important it is for the Liberal Democrats to preserve the preservation of reindeer in Lapland.

Finally, I turn to the issue of interpretative effects. My noble friend Lady McIntosh asked again for clarity on the Government’s intention. I assure her that the Government’s intentions have not changed in this regard. As she will be aware, the House agreed to Amendment 15 in the name of the noble Lord, Lord Anderson, on Monday, which seeks to replace the sunset of Section 4 of the EU withdrawal Act at the end of each year with a requirement for the Secretary of State to make a statement on the Section 4 rights and obligations which will be sunsetted at the end of this year. The House can be assured that the Government will address that.

Clauses 5 and 6, which relate to the ending of the principle of supremacy, including the principle of consistent interpretation or indirect effect and ending the application of general principles of EU law, will stand part of the Bill, as agreed by the House.

[Baroness Hayman of Ullock (Lab)]

Before the noble Lord sits down, I remind him that I asked a number of questions about areas other than air pollution—for example, on flooding. I wonder if the Minister could look through Hansard and write to me with a response to those questions before we reach Third Reading.

[Lord Callanan (Con)]

I will certainly look again at the noble Baroness’s questions.

[Baroness Bakewell of Hardington Mandeville (LD)]

I thank the Minister for his response and the noble Baroness, Lady Hayman of Ullock, for her support. I thank all noble Lords who took part in this very lively debate, particularly the noble and learned Lord, Lord Hope, whose concerns I share completely.

In the time available, it has been impossible for most of us to go into detail on the schedule to the extent that my noble friend Lady Brinton did, and I commend her for her efforts in that respect. The Minister will have realised from the debate that there is concern across the House at the lack of opportunity to scrutinise these regulations. I do not share the comments of the noble Baroness, Lady Foster of Oxton, that this is all the fault of the Civil Service.

The Civil Service is under pressure, and occasionally mistakes do occur, but the dire situation we are in now is not its fault: it is the fault of the way in which the Government have gone about this piece of legislation, and I admire the Minister for his acceptance of that responsibility. The number of Defra’s instruments in the Marshalled List before us is overwhelming. I thank my noble friend Lord Fox for his very stirring summing up, which I cannot hope to match. The Minister set out his case at the start of the debate, and it is regrettable that he is not prepared to move on these issues. In the interests of time, and in the face of that, I beg leave to withdraw my amendment.

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Moved by

[Lord Callanan]

65: Schedule 4, page 45, line 6, leave out “any of sections 1 to 20” and insert “this Act”
Member's explanatory statement
This amendment is consequential on the Minister’s amendments at page 24, line 14.

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Moved by

[Lord Callanan]

70: Schedule 4, page 47, line 8, at end insert—
“(e) regulations under section 20 which amend, repeal or revoke primary legislation.”Member's explanatory statement
This amendment makes procedural provision in light of the Minister’s amendment at page 22, line 9 which extends the consequential power in clause 20 to devolved authorities.

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Moved by

[Lord Callanan]

77: Schedule 4, page 53, line 25, at end insert—
“Transitional, transitory or saving provision
19 This Part of this Schedule does not apply in relation to regulations under section 23(4).”Member’s explanatory statement
This amendment is consequential on the Minister’s amendments at page 24, line 14.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

3rd reading
Monday 22nd May 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I am disappointed to inform the House that both the Scottish Parliament and the Senedd Cymru have voted to withhold consent for the REUL Bill.

[Noble Lords]

Hooray!

[Lord Callanan (Con)]

I am sure we are all shocked to hear that. We acknowledge the concerns of both Parliaments regarding the Bill and the potential impacts on devolved areas. However, it is right and constitutionally appropriate that the REUL Bill applies UK-wide. This will ensure that the benefits of Brexit can be realised by citizens and businesses throughout the whole United Kingdom. The Government therefore intend to proceed with the Bill without their consent. As noble Lords will be aware, the ongoing absence of the Northern Ireland Executive and the Assembly means that it has not been possible to seek legislative consent from the Northern Ireland Assembly on this Bill.

I reassure the House that it was never our intention to proceed with the Bill without consent in place. Our preference would have been to secure legislative consent Motions from the devolved legislatures. The Government have sought to engage proactively with the devolved Administrations on the REUL Bill since March last year. We have listened to their concerns and sought to make meaningful changes to the Bill in response. This includes the amendment to the sunset and the conferral of the powers to make consequential and transitional, transitory and savings provisions to the devolved authorities and devolved Ministers.

The decisions of the Scottish Parliament and the Senedd, while regrettable, will never mark the end of our engagement with the devolved Administrations on retained EU law. We remain committed to supporting sustained engagement with them on the REUL Bill and the REUL reform programme going forward.

Amendment 1

Moved by

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[Baroness Chapman of Darlington (Lab)]

My Lords, the noble Baroness, Lady Noakes, commented that we were rather less than enthusiastic when we discussed this issue last week. I can see why we have got to the position where this amendment has been agreed between the noble Baroness and the Government, and I am very happy for her that she feels satisfied with the movement that the Government have made in getting here. I am afraid that the concerns we have had throughout this process are a long way from being satisfied by the amendment. We do not oppose it particularly, but we are not particularly in favour of it. It does not really do all that much to the substance of what we have been disagreeing about during the passage of the Bill. However, if it helps with some internal political management on the government Benches, that is something that the Minister is entitled to attempt to do.

[Lord Callanan (Con)]

Well, my Lords, if the Opposition are not enthusiastic about my noble friend’s amendment, I am.

Before I address the amendment, I shall deal with some of the points that Members have raised. First, on the point made by the noble and learned Lord, Lord Hope, the noble Lord, Lord Fox, and my noble friend Lady McIntosh about post-devolution rule, that is rule for the devolved Administrations. The reality is that they have not wanted to add anything to the dashboard, and of course we are in no position—and do not wish to force them—to do so. If they wish to add some of their rule to the dashboard then they can, but for now it is just rule made by Her Majesty’s Government. It of course contains UK government legislation that has been made post devolution—just not the rule made by the devolved Administrations.

To answer my noble friend Lady McIntosh’s point, the dashboard has no legal status as such; it is just a list of retained EU law.

Moving on to the main points about my noble friend Lady Noakes’s amendment, the Government have already reformed or revoked over 1,000 pieces of retained EU law, but that is not the limit of our ambition. Departments will continue to review the rule that is not already revoked, reformed or planned for revocation this year in order to identify further opportunities for reform, and we are committed to reducing the burdens on businesses and unlocking the economic growth that will flow from that. As a down payment on our commitment to deliver meaningful reform, the 10 May policy paper Smarter Regulation to Grow the Economy set out our intention to reform regulations and remove burdens on businesses.

We announced changes that will reduce disproportionate EU-derived reporting requirements and could save businesses around £1billion a year. This will just be the first in a series of announcements that the Government will be making in the coming months on reforming regulation in order to drive growth. In addition to the revocation schedule, the powers in the Bill will still enable us to revoke, replace or reform any outdated EU laws that remain on our statute book right through until 2026. This new approach will provide the space for longer-term and more ambitious reforms and the Government intend to do just that. It will also mean that fewer statutory instruments will be required to preserve EU laws that are deemed appropriate or necessary to maintain.

The Brexit Opportunities Unit, spearheaded by the Secretary of State for Business and Trade, has been pivotal in driving the development and delivery of the Retained EU Law (Revocation and Reform) Bill and the wider associated retained EU law reform programme. These efforts are being supported by specialist legal expertise from outside government. Parliament will be able to easily monitor government progress on REUL reform, as we update the dashboard every quarter. That answers the point made by the noble Lord, Lord Fox: we will continue to update the dashboard.

[Baroness Jones of Moulsecoomb (GP)]

Did I understand the Minister correctly? Has he just boasted that there will be less parliamentary scrutiny and that we can look it up online?

[Lord Callanan (Con)]

You can look up progress online, but of course there will be parliamentary scrutiny. If we propose to make any changes to retained EU law using the powers in the Bill, they will come to Parliament in the normal process of the examination of secondary legislation.

The Brexit Opportunities Unit drove the aforementioned 10 May regulatory reform announcement, setting out a long-term plan to reform UK regulation over the coming months. Furthermore, we have committed to future announcements on how we will reform regulations to reduce the cost of living, deliver choice to consumers, establish trailblazing regulation to catalyse innovation and make the UK a science superpower, and remove obstacles to building world-class infrastructure.

However, it is crucial that Parliament and the public are able to hold the Government’s feet to the fire and ensure that our momentum continues with regard to the retained EU law reform programme. I am therefore delighted to support Amendments 1, 2 and 3, tabled by my noble friend Lady Noakes, to which I have added my name. These amendments insert a new clause into the Bill requiring the Secretary of State to update the retained EU law dashboard and to report on the revocation and reform of retained EU law in periods up to 23 June 2026, at which point, of course, the main powers in the Bill will sunset, and the vast majority of retained EU law reform will have been completed. The reports will summarise the REUL dashboard data, provide an update on whether and how REUL on the dashboard has been revoked and reformed, and detail future plans for further revocation and reform.

I thank in particular my noble friend Lady Noakes for her collegiate engagement in preparing the amendments that she has tabled today. I also extend my thanks to my noble friends Lord Frost, Lord Jackson and Lady Lawlor for their valuable engagement on this matter. These amendments will hold the Government to account in providing the additional transparency both Parliament and the public need to scrutinise the Government’s progress and future plans on retained EU law reform. I therefore hope the House will join me in supporting these amendments.

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. He has just told us that these amendments will hold Parliament to account. If Parliament is not satisfied with the account it is given under these amendments, what advice would he give to Parliament as to how Ministers can be prevented from carrying out what they have tried to do?

[Lord Callanan (Con)]

Well, they will hold the Government to account. Of course, Parliament is able to hold the Government to account in many different ways, but particularly, with the reform programme, there would be an extensive programme of statutory instruments. Parliament would be able to debate and accept those instruments or not, as it usually does.

[Baroness Noakes (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I thank my noble friend Lord Callanan in particular for answering the points raised on devolution. I do not think he answered the points raised by the noble Lord, Lord Pannick, on subsection (4), which is a useful addition because it means that if a report is not laid, we get another opportunity to be told that it has not been laid, and thereby to trigger any accountability mechanisms. I regard it as an important additional subsection, and I shall certainly be using it as a precedent in amendments to other Bills in future.

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Moved by

[Lord Callanan]

That the Bill do now pass.

[Lord Callanan (Con)]

My Lords, this Bill is crucial in ensuring, as I said earlier, that we can seize the regulatory reform opportunities of Brexit. It is the next step in reasserting the sovereignty of Parliament and untangling the United Kingdom from nearly 50 years of EU membership. Through the Bill we will improve legal certainty, removing confusion from our statute book where EU principles of interpretation overlap with those of UK domestic principles. This fulfils an important constitutional objective: that our law is clear and accessible, so that citizens can understand it and regulate their conduct accordingly.

There is a long list of people whom I wish to thank for their help on the Bill. Let me start with my noble friend Lady Bloomfield of Hinton Waldrist. Sadly, my noble friend is leaving the Front Bench and she will be missed by us all. My chances of getting to the Chamber on time are greatly reduced without the hurry-up texts from my noble friend Lady Bloomfield, who has kept me right many times in this Chamber and when we have debated statutory instruments in the Grand Committee. I am hugely grateful for all the help and support that she has given to me; I am sure other members of the Front Bench feel the same. She will be a great loss to the Government.

Let me also thank my noble friends Lady Neville-Rolfe and Lord Benyon, and my noble and learned friend Lord Bellamy, for their support during the Bill’s passage. I fear I would have continuously sat on this Bench for a great many days in addition to those when I did without their help and support, which has been greatly appreciated.

Let me also give my thanks to the Bill team. All the Bill teams I have worked with have worked extremely well and tirelessly, but I can tell the House that this Bill team in particular has gone above and beyond the call of duty. I said this when there were some frankly ill-considered remarks about the Civil Service while we were on Report, but many of them really did work all weekend to get the explainer out for the benefit of noble Lords when we were discussing the schedule. Their assistance has been great and their legal advice superb. If there were legal errors in anything that I said, I can assure noble Lords that it was not their fault. The fault was entirely mine, as they did a great job in trying to explain some of these complicated concepts.

I also thank members of the Opposition, including the noble Baroness, Lady Chapman, the noble and learned Lord, Lord Hope, my noble friend Lord Hodgson—who is of course not a member of the Opposition but is on our own Benches and played a big role in the Bill—and the noble Lord, Lord Fox, among many others who contributed to its passage. We did not always agree on many parts of it, of course; I apologise if, from my point of view, I sometimes expressed a little bit of irritation with some of the speeches that were made. Nevertheless, I do accept that it is the job of the House to scrutinise the Government, to look at our legislation closely and to propose amendments. If we could perhaps have a bit more constructive opposition sometimes, I would appreciate it.

[Noble Lords]

Oh!

[Lord Callanan (Con)]

Nevertheless, the contributions are appreciated.

The Government have of course sought to address the concerns raised, notably around the sunset and courts provisions. We listened to the points made in the House and addressed those concerns via the amendments that we brought forward on Report. I hope that the House recognises how significant a move this was from the Government and takes that movement in the spirit in which it was intended. We really did try to alter the Bill to take account of many of the concerns that were addressed.

The House has also made its views known on some other areas of the Bill on which the Government do not agree, including the reform and repeal powers we believe are crucial to the ambitions we have in this space. Our work in producing the retained EU law dashboard highlighted that there are many defunct laws on our statute book relating to activities that the UK does not conduct, such as my famous example of regulating reindeer herdsmen in Lapland. Now that we have taken back control of our statute book, it is appropriate to update it by amending, repealing or replacing REUL that is no longer fit for the UK.

I do not think there is much argument on all sides of the House about the list of measures we have produced that deserve to be repealed. This will allow us to create new pro-growth, high-standard regulatory frameworks that give businesses the opportunities and confidence to innovate, invest and ultimately to create jobs. This Bill delivers, in addition to providing clarity and certainty. It provides the powers for the Government to make legislative changes that will benefit all of us in the United Kingdom. With that, I beg to move that the Bill do now pass.

[Lord Fox (LD)]

My Lords, I thank the Minister for his speech. His answer to the question asked by the noble Lord, Lord Carlile, indicates why what I will call the Hope-Hamilton amendments are so important. I hope it is clear to the Minister that your Lordships’ House considers these to be very important and that they should be retained rather than reversed when they head to the other place.

Any Commons reversal of Amendment 48 will be seen as a show of intention by the Conservative Party on environmental legislation. Again, it would not be wise, given the very good reassurance we have had from the noble Lords, Lord Benyon and Lord Callanan, on retaining that legislation. Pushing out Amendment 48 would be moving things in the opposite direction.

Overall, the work of this House has achieved a major change and a U-turn. As I said before, it has achieved a reverse in the polarity of this Bill, and noble Lords should be very proud of that. It has been a fraught debate at times. I owe a mea culpa to the noble Baroness, Lady Fox. In the hubbub I misrepresented her use of the term “blob”, and I am happy to put the record straight—so apologies there. During that debate there was also a to and fro, which was very important. The Minister is right to say that that is the role of this House.

I thank the Ministers—the noble Baronesses, Lady Bloomfield and Lady Neville-Rolfe, and the noble Lords, Lord Benyon and Lord Bellamy—for their hard work in trying to bring us along; they have not often or always succeeded, of course. The Bill team, when we have met, have always been very helpful and courteous; they are a credit to their service. I hope that, for those of the team who want to visit the Cheshire salt mines, I have in some way helped them head that direction.

His Majesty’s Opposition have been a pleasure to work with: I thank the noble Baroness, Lady Chapman, the noble Lord, Lord Collins, and of course the team in their Whips’ Office. Many Cross-Benchers and other noble Lords across the House have participated fully. It would be difficult to mention them all, but for his virtuoso display during Report, the noble and learned Lord, Lord Hope, deserves the full gratitude of your Lordships’ House.

Quite a few Liberal Democrats have participated in the Bill, not least those who were mobilised over the weekend to try to review 600 laws and work out what they did. I am not going to name them all, but I thank them for their support. I will name my noble friend Lady Ludford, who unfortunately cannot be here; she has been able company for me on the Front Bench. Finally, I thank Elizabeth Plummer in our Whips’ Office, whose grasp of this Bill has been beyond compare.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

Moved by

[Lord Callanan]

That this House do agree with the Commons in their Amendment 1A.

1A: Leave out subsections (1B) to (1D)

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, in moving Motion A, I will also speak to the other Motions in this group. It feels very recent that we had Third Reading on the Bill, as the other place has returned it remarkably quickly.

Motion A covers this House’s Amendment 1. The original amendment was to require a Joint Committee to consider the revocation list and to arrange debates in both Houses with respect to anything that represented a change to the law before the legislation on it could be revoked. I thank the noble Lords who sponsored this amendment for not pushing it again today.

Motions B and B1 cover the Commons disagreement to Lords Amendment 6. I sympathise with the amendment proposed by the noble Lord, Lord Anderson, in lieu of Amendment 6 on its intent to help establish legal clarity. Indeed, one of the main purposes of the Bill is to simplify the statute book. However, in my view, such an amendment is not necessary. The amendment seeks to clarify that the new clause “Retained EU law dashboard and report”, inserted by Lords Amendment 16, will include those rights, powers and liabilities referred to in Section 4 of the European Union (Withdrawal) Act 2018. I am happy to reassure the noble Lord, Lord Anderson, today that the Government intend to ensure that rights, powers, and liabilities referred to in Section 4 of the 2018 Act will be included in future dashboard updates and accompanying reporting. The Government will include those rights, powers and liabilities that they have explicitly codified or intend to codify, as well as those they have decided not to codify because they are no longer fit for purpose. I hope that this provides the necessary clarity around which matters, originally retained under Section 4 of the 2018 Act, will be codified into domestic law. I thank the noble Lord for his valuable and collegiate engagement on this matter. I hope that this commitment provides him with the reassurance he is looking for and that he therefore will not press his Motion.

Turning to the Motion to amend the drafting of what was Amendment 16, I know that many noble Lords have strong views on Amendment 16 and the Motions concerning it. The other place inserted further measures to strengthen the reporting requirements and to ensure that the Government inform Parliament of their progress on using the powers in the Bill and their forthcoming plans on a more frequent basis. The Motion in my name therefore simply tidies that drafting and, on that basis, I hope that the House is able to support it.

Finally, I call on the House to reject the amendment proposed by the noble Lord, Lord Anderson. The Government recognise the significant role that Parliament has played in scrutinising instruments and are committed to ensuring the appropriate scrutiny under the delegated powers in the Bill, including any instruments made under the powers to revoke or replace. This amendment would impose a novel and untested scrutiny procedure on regulations proposed to be made using the powers to revoke or replace. This novel approach is, in our view, simply unnecessary.

The Government will ensure that any significant retained EU law reforms will receive the appropriate level of scrutiny by the relevant legislatures and are subject to all the usual processes for consultation and impact assessment. However, it is important that we ensure that the limited amount of parliamentary time available is used appropriately and effectively.

The existing sifting procedures in the Bill have been purposely drafted as a safeguarding measure for these powers and already contain adequate scrutiny. They allow for additional scrutiny for the exercise of the power to revoke or replace, while retaining the flexibility of using the negative procedure where there are good reasons to do so—for example, in repealing redundant rules that no longer have any purpose on the UK statute book.

In addition, in certain situations, notably the use of subsection (3), the affirmative procedure continues to be required. The existing procedure will give the UK Parliament the opportunity to take an active role in the development of this legislation. It is a tried and tested method of parliamentary scrutiny which, in my view, delivers good results for everyone and draws on the experience of our parliamentary committees. We will, of course, respect the judgment of the sifting committees relevant to the Bill, in the same way as we did for the EU withdrawal Act. Therefore, I do not consider the proposed amendments to be necessary. I hope this provides the House with sufficient reassurance on this matter.

[Lord Anderson of Ipswich (CB)]

My Lords, I will speak to Motions B1 and E1 in my name in this group. Having heard the Minister, I can be brief on Motion B1, which concerns a sometimes-neglected part of the Bill. Clause 3 is headed “Revocation of retained EU rights, powers, liabilities etc”. That clause is unaffected by the Government’s concession on the sunset and continues to provide for all directly affected provisions of EU law—whether they are found in the treaty, in directives, or in international agreements—to be revoked at the end of the year. My concern in tabling this amendment has been to know precisely what is being revoked and what will be proposed by way of replacement.

To that end, Motion B1, which builds on the helpful amendment originally proposed by the noble Baroness, Lady Noakes, seeks a guarantee that the directly affected provisions will be fully included in dashboard updates, as they have not been to date, and that the Government will give us clear warning in advance of those which they intend to carry over into our law and those which they may have decided not to carry over.

Unpicking provisions so deeply embedded in our law will not be a simple business. I declare an interest as a lawyer who sometimes needs to advise in this area. Such a commitment will be helpful to anyone who needs to understand what our law provides and how it is intended to be changed. I am grateful to the Minister and the Bill team for their constructive engagement on this issue, and for the clear commitments that he has just offered. In the circumstances, I am confident that I do not need to trouble the House with a Division on this issue.

Motion E1 is of a constitutional nature and concerns what, to some of us, has always been the most troubling feature of the Bill. It is nothing to do with the dashboard, direct effect or even the end-of-year sunset. It is rather the delegated superpower, headed “Powers to revoke or replace”, which currently appears as Clause 14. I remind the House of its most remarkable feature, subsection (3), which states:

“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.


That power will last until June 2026, which even we in the ivory tower of these Benches understand is some time after the next general election. It allows the Government to make regulations that Parliament cannot amend or, in practice, block, even when those regulations have quite different objectives from the laws that they replace, as the Bill makes clear.

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[Baroness Chapman of Darlington (Lab)]

My Lords, I want to speak briefly to Motion E1 and to start by thanking the noble Lord, Lord Anderson, for his work on this amendment and throughout consideration of the Bill. Noble Lords will be aware that the amendment differs from the one we debated in Committee and on Report. They will also know that, since the Bill was first published, we have been concerned that it gives Ministers far too much power without reference to Parliament. Clause 15 was especially difficult for parliamentarians to accept, given the extraordinarily wide-ranging powers to rewrite regulations which, in effect, could have similar power to primary legislation. This point was made by the noble Lord, Lord Anderson, but it is worth repeating.

Motion E1 allows for a committee to consider regulations when they are rewritten by Ministers and, where necessary, to refer them to the House for consideration. This is a more modest suggestion than that proposed and agreed by this House at Report. As we have heard, a not dissimilar process was used for the Civil Contingencies Act 2004 and, as the noble Lord, Lord Lisvane, informed us, the Census Act.

Our view is that this approach is proportionate, not obstructive of the Government’s intentions and should be acceptable to them. We are concerned that the Commons has so far continued to push back on parliamentary scrutiny and views the procedure proposed by this House as inappropriate, but we hope that the newly constructed amendment proposed by the noble Lord, Lord Anderson, will be welcomed by the Government and the other place.

The Commons has expressed a view, but we are returning to it a compromise. We on these Benches consider it to be the appropriate, reasonable and responsible thing to do. Following the question of the noble Lord, Lord Jackson, about whether we are imposing ourselves on the other place, I note that it adjourned a couple of hours ago and seems to have adequate time in its schedule to consider a rather modest suggestion from this House.

[Lord Callanan (Con)]

My Lords, once again, we have had a full, worthy debate on the Bill. I will keep my response brief, as many of these points are well worn and we have largely covered them in opening the debate.

I say to the House that this is not just an ordinary legislative amendment; it is about the procedures of Parliament. It is not even about the procedures of this House; it is about the procedures of the other place. The amendment seeks for this House to say to the House of Commons, “We think that you should set up by legislation an entirely untested and novel way of conducting your scrutiny of secondary legislation”, when the House of Commons has already said it does not wish to do that and does not think it appropriate. It is entirely inappropriate for us to do that when we have already heard the answer once.

The Bill is vital, and now that we have taken back control of our statute book, it is essential to update and modernise by amending, repealing or replacing those rules and regulations that are no longer fit or were never fit for the UK. This will allow us to create a new pro-growth, high-standards regulatory framework to give businesses the confidence to innovate, invest and create jobs. It will provide legal certainty and clarity across the statute book, ensuring we have consistent rules of interpretation across the UK body of law.

Let me mention briefly some of the points raised in the debate. On Motions B and B1, I thank the noble Lord, Lord Anderson, for his speech. I hope that the House will move forward with Motion B.

Let me reply briefly to the question from the noble Baroness, Lady Ludford, on the timescale for this work. We will add Section 4 rights to the dashboard as identified at least as frequently as every six months, as per the reporting requirement clause that is already in the Bill.

With regards to Motion E1, as I have already said, the Government listened to the views of this House on a number of issues in the Bill. We have already modified the schedule massively to take account of the many concerns that were addressed. I have to say, I consider it an unfair characterisation that the Government have ignored this House—far from it. It is much to the contrary.

On the Motion itself, I can only stress to the House that we believe this proposed novel scrutiny procedure to be unnecessary. The House of Commons has said that it also believes it to be unnecessary. With the reporting requirements already in the Bill and the proven sifting committee procedure that we have already agreed, Parliament will have strong provisions to scrutinise any legislation that is brought forward under this Bill. In the Government’s view, the appropriate balance between the need for scrutiny and the need for reform has been struck. I therefore hope that noble Lords will not push forward this amendment.

Motion A agreed.

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Moved by

[Lord Callanan]

That this House do not insist on its Amendment 6, to which the Commons have disagreed for their Reason 6A.

6A: Because the retention of anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 would be inconsistent with the abolition of the principle of supremacy of EU law.

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Moved by

[Lord Callanan]

That this House do not insist on its Amendment 15, to which the Commons have disagreed for their Reason 15A.

15A: Because the Commons do not consider the Lords Amendment necessary in order to maintain environmental protection or food standards.

[Lord Callanan (Con)]

My Lords, in moving Motion C, I will also speak to Motion C1, both of which relate to Lords Amendment 15.

We have had myriad discussions on environmental protections during the passage of the REUL Bill. I can only stress once again that the Government have no intention of lowering environmental standards, nor of breaching their international obligations. This not only makes the restrictions that this amendment places on the usage of the reforming powers with regard to the environment unnecessary; it also risks delaying or even preventing reform where it would be beneficial to do so. Indeed, as drafted, this amendment may in fact also make it more difficult for departments to ensure that the policy effect of environmental regulations can be maintained at the end of the year through exercising the restatement power. By doing so, it could actively undermine the purpose that it seeks to achieve.

As I and Ministers in the other place have set out previously, the Government are fully committed to upholding environmental standards. Defra has already reformed retained EU law in a number of key areas through flagship legislation, such as the Fisheries Act 2020 and the Agriculture Act 2020. In addition, since leaving the EU, the Government have also passed the landmark Environment Act 2021 and published strategies including the Environmental Improvement Plan 2023. Any changes to legislation will need to support these ambitions as well as be consistent with our international obligations. Furthermore, Defra has in many areas already reformed its retained EU law to streamline and update it without diminishing—in fact, strengthening in some cases—our levels of environmental protection.

We are very clear that this sets a direction of travel on environmental regulation that makes this amendment unnecessary and, as I said, the amendment may make it more difficult to reach the ambition on environmental protections that I am sure is shared widely across the House. I therefore ask the House to support Motion C and the noble Lord, Lord Krebs, to withdraw his Motion C1.

Motion C1 (as an amendment to Motion C)

Moved by

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As the noble Lord, Lord Krebs, said, this is very uncontroversial. I await the Minister’s response with interest, but if the noble Lord, Lord Krebs, wishes to test the opinion of the House, he will have our strong support.

[Lord Callanan (Con)]

My Lords, I can keep my response brief. I have lost track of the number of times during the passage of the Bill that we have had this debate. We had it in Committee, on Report and we are having it now—and of course it was repeated in the House of Commons. The House of Commons has heard the assurances of the Government. I suspect that nothing else I can say will change most Members’ minds but, for the benefit of the noble Lord, Lord Krebs, I will repeat the arguments again.

The noble Lord’s Motion proposes to insert additional measures into the Bill on environmental protections. I appreciate the sentiment, and we recognise the importance of maintaining our environmental standards, but the Government do not believe this amendment to be necessary. The UK is a world leader in environmental protection, despite what the noble Baroness, Lady Jones, wants to tell us, and we will continue to uphold our environmental protections. Furthermore, in a debate in the other place, the House of Commons rejected essentially a similar amendment by a majority of 77.

We are committed to our environmental protections. Nothing in this Bill changes that commitment. As I referenced in my opening speech, we have substantive concerns that this amendment, in the way that it is worded, would actually make it more difficult to uphold those environmental commitments. I hope that, if the Motion is moved to a vote, the House will reject it.

[Lord Krebs (CB)]

I thank all noble Lords who have taken part in this short debate, and I thank the Minister for his response. I will not speak for very long but I want to make three specific comments in response to particular points that have been made.

The noble Lord, Lord Hamilton, referred to food standards. I remind noble Lords that this version of the amendment does not include food, so the noble Lord can relax in his seat and not worry about food.

The noble Baroness, Lady Lawlor, seemed to imply that the amendment would somehow fossilise existing regulations in relation to the environment. It is not about fossilising existing regulations; it is about allowing change and improvement as long as they do not dilute environmental protection and as long as they are made in consultation with, and on the advice of, experts, and that that advice is published. This is not trying to freeze things in 2023 at all. I hope that provides reassurance.

As a final point, in response to the Minister, who repeated the oft-quoted mantra that the UK is “world-leading” in environmental protection, I remind him of what I read out less than half an hour ago from the Government’s own watchdog. It makes grim reading. We are failing on all the targets that the OEP looked at. We are not world-leading; we are struggling. This simple and modest amendment aims to put further legal protections around what the Government claim they are doing anyway; it is simple, modest and straight- forward.

I would not like to be the one going home to explain to my children and grandchildren that I stood up and voted against protecting our environment. I hope that other noble Lords feel the same—that those who have children or grandchildren and are thinking of the future would want to protect the environment on their behalf. Therefore, I wish to ask the House to agree to Motion C1.

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Moved by

[Lord Callanan]

That this House do disagree with the Commons in their Amendment 16A, do agree with the Commons in their Amendment 16B, and do propose Amendment 16C as an amendment to Lords Amendment 16 in lieu of Commons Amendment 16A—

16A: In subsection (2)(c), at end insert “including specifying in a list such provisions of retained EU law as is intended to be revoked or reformed”

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Moved by

[Lord Callanan]

That this House do not insist on its Amendment 42, to which the Commons have disagreed for their Reason 42A.

42A: Because the Commons consider the scrutiny procedure imposed by the Lords Amendment to be inappropriate.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Consideration of Commons amendments
Tuesday 20th June 2023 Lords Chamber

Moved by

[Lord Callanan]

That this House do not insist on its Amendment 15B, to which the Commons have disagreed for their Reason 15C.

15C: Because the Commons do not consider the Lords Amendment necessary in order to maintain environmental protection.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, with the leave of the House, at the same time as moving Motion A I will speak to Motion B.

The retained EU law Bill has once again returned to this House from the other place. I am pleased to say that the other place has accepted the final drafting change to Amendment 16, so that matter is now closed. This amendment significantly adds to the scrutiny that Parliament can conduct on this Bill.

However, the House of Commons has now been very clear, for the second time, that it is firm in its position on the remaining two amendments. Noble Lords asked the Commons to think again, and it has reached exactly the same conclusion. Indeed, the Solicitor-General noted the many ways in which the Government have already moved on the Bill to reflect the thoughts and concerns of this House. Therefore, today I propose Motions to accept the Commons position on the Bill and accede to the wishes of the elected House.

With regard to the other Motions in front of us today, Amendment 42D looks to be loosely based on one of the scrutiny provisions of the Legislative and Regulatory Reform Act 2006. However, its use in that Act relates to the legislative reform order power, which is much broader. It can act on any piece of legislation, including Acts of Parliament, whereas the revoke and replace power in this Bill can operate only on secondary retained EU law—in other words, retained EU law that is not primary legislation. We have taken steps to make clear what this retained EU law is by publishing and updating the retained EU law dashboard, and we will be reporting regularly to Parliament on our intentions to reform it. This will allow Parliament a substantial amount of time to scrutinise and report on reforming legislation, if Parliament wishes to do so. As such, these powers are clearly not comparable in terms of scope.

Furthermore, the legislative reform order process is not time-limited. It is still ongoing and available after 17 years, whereas this power will expire three years and three days from today. This is crucial when you consider how long parliamentary processes can take. Amendment 42D envisages up to 60 sitting days for Parliament to consider and debate proposals for statutory instruments, and potentially time after that for further scrutiny before the SIs can be made. We have supported and encouraged the initiative, which started in this House, to maximise transparency around the Government’s plans for retained EU law reform via regular reports to Parliament. In our view, this additional 60-day pre-scrutiny period is simply not required.

Therefore, the Government cannot accept a requirement that would place such a significant time restraint on the usage of the power. Doing so would substantially reduce the time available for the power to be used, which is clearly not an appropriate balance between scrutiny and reform. The clause currently provides for this balance in a much more sustainable way; the third limb of the power already requires the affirmative procedure by default, and the second limb is automatically pushed to the affirmative procedure under specific circumstances. For all other circumstances, the sifting committee exists to recommend upgrading the scrutiny procedure, if Parliament judges it necessary. For all these reasons, the Government cannot accept the amendment.

On Motion A1, of the noble Lord, Lord Krebs, I am once again clear that Amendment 15D is unnecessary. I and many other Ministers have committed to uphold our environmental protections. Equally, the consultation part of the amendment is also irrelevant, as the Government remain committed to consulting on major policy changes, in line with usual practice. We take Dispatch Box commitments very seriously as a Government and will not shirk away from the commitments we have already made during the passage of this Bill.

This amendment is therefore unnecessary. The Government are clear that we have set a strong direction of travel on environmental regulation with our actions across this Parliament, and nothing in this Bill will change that. I therefore ask noble Lords to support Motions A and B on the Order Paper today. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

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[Baroness Chapman of Darlington (Lab)]

My Lords, I will speak briefly because I agree with everything that the noble Lord, Lord Fox, just said. We are grateful to the Minister for what he said in his introduction to this debate and to all noble Lords who have contributed and engaged with this Bill since the beginning. However, we on these Benches think that the Government should join us in insisting on Lords Amendments 15B and 42D, as they now are. We agree with noble Lords that their amendments in lieu are sensible compromises and remain deeply concerned by the potential for the protection of our environment, in particular, to be watered down without such protection on the face of the Bill. It seems slightly odd that the Government have compromised on the fundamental purpose and shape of this Bill in removing the sunset, which was a huge thing for them to do. It is strange that they are now determined to hold out on these two relatively minor outstanding issues, which are about improved scrutiny and environmental protection.

The proposal from the noble and learned Lord, Lord Hope, is a proportionate and necessary compromise. The noble Lord, Lord Krebs, is correct to highlight the inadequacy of the verbal commitment offered by the Minister, which obviously may not stand the test of time. These are important principles. Should the noble and learned Lord and the noble Lord wish to test the opinion of the House, we on these Benches will support them.

[Lord Callanan (Con)]

My Lords, we have had this debate numerous times now, so the House will be delighted to know that I can keep my response fairly brief. I have responded to all the points made previously because noble Lords have repeated many of the points that they made in earlier debates.

Interestingly, the one person who did not repeat the points that he made in earlier debates was the noble Lord, Lord Fox; I was surprised to hear him say that he will support the Anderson/Hope amendment because, in the previous round, in response to a similar point about endless ping-pong made by my noble friend Lord Hamilton, the noble Lord, Lord Fox, said:

“I respectfully suggest that we are not proposing”


endless ping-pong but that

“we are proposing one more ping and one more pong”.—[Official Report, 6/6/23; col. 1262.]

Unlike some of the sceptics behind me, I have faith in what the Liberal Democrats say. I am absolutely certain that, because that is what the noble Lord, Lord Fox, said last time, he will join us in the Lobby this evening. We have hope yet; I am sure that the Liberal Democrats would not want to go back on their word.

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Moved by

[Lord Callanan]

That this House do not insist on its Amendment 42B, to which the Commons have disagreed for their Reason 42C.

42C: Because the Commons consider the scrutiny procedure imposed by the Lords Amendment to be inappropriate.

Retained EU Law (Revocation and Reform) Bill

Lord Callanan Excerpts

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

Moved by

[Lord Callanan]

That this House do not insist on its Amendment 15D, to which the Commons have disagreed for their Reason 15E.

15E: Because the Commons do not consider the Lords Amendment necessary in order to maintain environmental protection.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, with the leave of the House, I will also speak to Motion B. The House will be pleased to know that I can be brief again today. We have extensively debated these issues on a number of occasions.

The reality is that the House of Commons has considered this Bill once more and has come to the same conclusions as previously, again with significant majorities. This is now the third time that it has made its will clear. It is the elected House and has been firm in its position. We have to take that into account, along with its democratic legitimacy.

I welcome that the noble and learned Lord, Lord Hope, recognises our constitutional position. I hope that the noble Lord, Lord Krebs, will be able to do the same. The other place would find it extremely difficult to understand if, on the amendment of the noble Lord, this unelected House sent a Bill back to it yet again.

Noble Lords have seen that the Government have moved on a number of issues during the passage of the Bill, both on Report and subsequently. Crucially, we have provided transparency on our plans on what retained EU law we intend to revoke this year—I remind the House that this was a key demand from this House during the Bill’s passage—by publishing a schedule of retained EU law that is to be removed from our statute book by the end of 2023. This addressed the concerns raised by many noble Lords and, of course, provided greater legal certainty.

We have been clear throughout the passage of the Bill that the Government will not row back on our world-leading environmental protections. In reviewing our retained EU law, we want environmental law to be fit for purpose for the UK’s unique environment and able to drive improved environmental outcomes, as we have set out in our Environment Act targets, while ensuring that regulators can act efficiently. Any changes to environmental regulations across government will be driven with those goals in mind.

In addition, I emphasise that it is standard practice to consult on major policy changes for the environment. It is right that Secretaries of State may exercise discretion when it comes to consultation. Any such discretion must be exercised in accordance with the law and guided by the consultation principles published by the Government. Those principles ensure an efficient and proportionate burden on government, while facilitating meaningful consultation.

Furthermore, it is worth noting the new legal framework created by the Environment Act 2021, our ambitious environmental plans created under it and the legally binding targets set under Sections 1 to 3 of that Act. This is the context in which the REUL Bill and its regulation-making powers will operate.

Moreover, from 1 November there will also be a legal duty on Ministers to have due regard to the environmental principles policy statement when making policies using the Bill’s powers. This Government use expert advice, including that of many independent experts, when making provisions that relate to the environment.

The UK continues to play a leading role on the international stage, driving increased ambition in environmental international law. Most recently, at the 15th meeting of the Conference of the Parties to the Convention on Biological Diversity, UK leadership was instrumental in securing global agreement to stretching targets to halt and reverse biodiversity loss. We will remain a world leader on the environment. Nothing in this Bill alters that fact.

Let me now turn to Amendment 42F. I thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, for their dedication on this amendment. I am sure I speak for us all in this House when I say that parliamentary scrutiny is, and always will be, the pivotal foundation of our democracy. Their commitment and expertise on this matter is, of course, admirable. As I have said throughout the passage of the Bill, the Government recognise the significant role that Parliament has played in scrutinising instruments, including throughout the EU exit process. I firmly believe that UK citizens voted to leave the EU to re-establish the sovereignty of our UK Parliament. At its heart, the Bill seeks to do exactly that. It is for this reason that we have included the process of sifting committees for the powers to revoke or replace, among others in the Bill.

To further reassure the House, let me put it beyond any doubt. On each and every occasion to date, we have always followed the sifting committee’s recommendations. We will continue to adopt the same practice of following the recommendations that the sifting committee makes to upgrade the scrutiny procedure attached to instruments made under the powers in this Bill. Where the committee considers that a statutory instrument should be subject to the affirmative procedure, we will ensure that it is laid in draft before Parliament so that it can be debated in both Houses. This will ensure that Members are able to debate all reforms which the committee considers merit the highest level of scrutiny, to ensure that Members have the opportunity to properly scrutinise those reforms and that Ministers are aware of their arguments, ideas and recommendations. It will of course be at the Minister’s discretion, but where significant reforms are planned on which there is particular interest from the House, Ministers will be able to publish draft instruments, alongside any relevant statements and consultation responses, ahead of laying those statutory instruments.

In addition, I can commit today that, where the Government are making significant reforms to retain EU law, using the replace limbs of the powers in Clause 14, we will follow the usual protocols on public consultation. These will be run in the usual way, as is already a ministerial duty. I reassure the House that the results of such consultation will be made available to Members of both Houses in the established manner.

Finally, as noble Lords will know, we have committed in this Bill to publish a report on retained EU law reform and the use of the powers to Parliament every six months. In this report we will provide Parliament with a six-month forward-look at major reforms which will utilise the powers under Clause 14. This will provide Parliament ample time to ask the Government questions on these reforms through the normal procedures of Parliamentary Questions and correspondence. It will also provide the relevant Select Committees with the time to initiate inquiries on reforms where they deem it necessary and to provide the Government with recommendations, which as usual we will respond to.

Taken together, these measures will allow parliamentarians, both in this House and the other place, an additional opportunity to review our reform plans ahead of any debates. They will provide an opportunity and time for this House, as well as the general public and UK businesses, to let their views on reforms be known. After all, this is the fundamental benefit of Brexit: we will ensure that our statute book reflects the best interests of the UK, rather than some of the compromises of all EU member states. This will allow our citizens, our businesses and, importantly, our parliamentarians to make their voices heard in this important reform process.

I hope that I have sufficiently reassured the House of the Government’s intentions, and that both noble Lords now feel able not to press their Motions and to allow this Bill to progress to Royal Assent. This is an important piece of legislation. Let me repeat once again that the Government have already made significant amendments in the light of many of your Lordships’ concerns. Frankly, it is now time that the Bill reached the statute book. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

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[Baroness Chapman of Darlington (Lab)]

My Lords, we agree with Amendments 15F and 42F from the noble Lord, Lord Krebs, and the noble and learned Lord, Lord Hope. We are sorry that the Government take the attitude they do to the involvement of Parliament in the scrutiny of retained law, especially as this House has been proved right on these issues. This House has given the Government good advice that they have largely ended up taking.

The amendment in lieu in the name of the noble and learned Lord, Lord Hope, simply asks that the Minister considers how regulations might best be dealt with. We note the assurances from the Minister; they have been, as the noble Lord, Lord Fox, rightly pointed out, hard-won. We thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, in particular for the sterling work they have done over many months to get as far as we have.

The amendment in the name of the noble Lord, Lord Krebs, would protect law on environmental standards. We think there are clear and obvious reasons to want to do this, not least because we want to see the environment protected. It is worth adding that the Government’s failure to support this point as fully as they could have done still leaves further uncertainty for business and potential investors about the exact nature of the framework that they would have to comply with. We are sorry about the approach the Government have taken.

We are very grateful to our Cross-Bench colleagues in particular for the work that they have put in. The Bill is in a much better place now than it was when we first encountered it—noble Lords will remember the sunset clause and the lengthy arguments we had over that. The Government did listen in the end, though initially with some reluctance. I hope that in time Ministers will see that that was the right decision. We have got to a better place this afternoon.

[Lord Callanan (Con)]

My Lords, I thank everyone who contributed to today’s debate. I will respond to some of the points that have been made. First, we take Dispatch Box commitments extremely seriously. I reiterate that this Government will not row back on our world-leading environmental protections, as I mentioned in my opening remarks.

To respond directly to the point made by the noble Lords, Lord Krebs and Lord Fox, and the noble Baroness, Lady Bennett, on this issue of non-regression, the fundamental problem is that nobody know what non-regression actually means. We all think we do, but putting it in primary legislation invites every change to environmental regulations to be challenged, as they inevitably would be, in the courts. The courts would then be asked to take a view on whether a particular change was regression or not. In effect, we would be transferring the legislative process from Parliament to the courts, on every individual regulation. Although we are content to say that we will not row back on environmental protections, that is the reason we are unwilling to see such a phrase placed in primary legislation. I am sure some of the environmental lobbyists and their lawyers would be very happy about all the work it would generate for them if we were to do so, but this is not the way to make legislation. We have to be clear about what we mean in Parliament. As I have said before, any regulation would have to be approved by this House and the other place, which is the appropriate place for these things to be decided. Great though the courts in this country are, it is not their job to legislate.

On the question raised by the noble and learned Lord, Lord Hope, paragraph (6)(12) of Schedule 5 to the Bill clarifies that the provisions of paragraph (6), which sets out processes relating to an instrument proposed as a negative instrument and subject to sifting, would not prevent a Minister deciding that another scrutiny procedure should apply to a particular instrument any time before that instrument is made. In deciding which other procedure should apply, the provisions of the Bill give a Minister a choice between the negative and the draft affirmative procedure, and in practice would give a Minister the ability to upgrade the scrutiny procedure from the negative to the draft affirmative procedure. The sifting committees already have the ability to recommend that regulations which the Government are proposing to make via the negative procedure are of such importance in their content that they should be upgraded to the affirmative procedure, which would then allow them to be debated as normal in both Houses. As I have set out today, and I am happy to repeat it again, on each and every occasion to date we have followed the sifting committee’s recommendations, and we will continue to do so if utilising the powers under this Bill.

We have debated these matters long and hard on many different occasions, as the noble Baroness, Lady Chapman, acknowledged. We have listened to the House; we have amended the Bill quite considerably in response to some of the concerns raised by noble Lords. This House has done its job in scrutinising the Bill. This House has asked the House of Commons to think again on a number of different occasions. It has thought again and it has responded. It is now time to let this Bill pass to Royal Assent.

[Lord Krebs (CB)]

My Lords, I thank all noble Lords who have taken part in this short debate today, and also on the previous occasions when we have debated these two amendments. I do not want to highlight any particular contribution, although I thank the noble Lord, Lord Fox, for introducing cricket last week and canaries this week; sport and birds are two of my favourite occupations, so I thank him very much for that. I thank the Minister for his patience throughout the many hours of debate, with its recursive nature that meant we kept coming back to the same arguments.

I do not totally buy what the Minister has just said about non-regression handing this over to the courts, and that the environmental groups would have a field day. Such groups could equally have a field day over the words that the Minister himself used about maintaining our high environmental standards. Surely the Bill could have defined what non-regression means in this context.

I do not buy the argument and I remain disappointed. Luckily for me, when I became head of an Oxford college 15 or so years ago, somebody bought me a book on how to deal with disappointment; that has come in very handy this afternoon so I am not going to throw a wobbly. In accepting the Government’s response, I think they will be aware, of course, that it is not just Members of your Lordships’ House who will be watching carefully to ensure that environmental standards are upheld; it is the wider public. We have only to look at the number of people who belong to organisations with an environmental interest, such as the National Trust and the Royal Society for the Protection of Birds, to realise that a very powerful force is out there.

There will be scrutiny of what the Government do. They will be held to account on “non-regression” or “maintaining high environmental standards”. I am sure that Ministers in this Administration and any future Administration will be fully aware of the public concern about the state of our environment, which was so eloquently illustrated by the noble Baroness, Lady Bennett of Manor Castle, a few minutes ago. Nevertheless, at this point, I beg leave to withdraw Motion A1.

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Moved by

[Lord Callanan]

That this House do not insist on its Amendment 42D, to which the Commons have disagreed for their Reason 42E.

42E: Because the Commons consider the scrutiny procedure imposed by the Lords Amendment to be inappropriate.