Retained EU Law (Revocation and Reform) Bill

Lord Carlile of Berriew Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Beith (LD)]

Was it Tuesday? The dates of this Bill are becoming a blur in my mind.

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.]


He repeated that later in the proceedings, and I think we were all pleased to hear it, particularly as it related to environmental legislation, public health and other important things. It was a very significant thing he said, but it is not how the Bill is constructed; the Bill is constructed to make it so easy to repeal the legislation that a Minister does not really have to do anything other than not put it in the box marked “reform” or “reintroduce”. I would like to feel that the attitude taken by one Defra Minister will not only be supported and reinforced by the Leader of the House and others on the Front Bench but might start to colour the attitude of other government departments as they see how undesirable it is for law to be removed or dispensed with at the whim of Ministers or simply because everything goes that way unless selected otherwise. This is not an acceptable way to proceed.

[Lord Carlile of Berriew (CB)]

My Lords, I will speak to my Amendment 44. I am grateful for the explicit support of the noble Lord, Lord Kirkhope, who apologises for having had to leave for an engagement in the north.

About three weeks ago, I stepped from the golden sands of the Cross Benches into my first meeting of the Delegated Powers and Regulatory Reform Committee. I pay tribute to the noble Lord, Lord McLoughlin, for his objective and clear chairing of that committee, which I found very helpful as a newcomer. The first meeting that I attended took me straight into constitutional quicksand, rather than golden sands, in which I was looking at provisions which seemed to do the exact opposite of what we were told was the purpose of Brexit. The report of the Select Committee, which I recommend strongly to noble Lords, is clear that much of the Bill is nothing else than a dilution of parliamentary scrutiny and, therefore, a dilution of parliamentary democracy itself.

I hope that this debate will not develop into a discussion about whether we should have Brexited or whether we should remain, because that is not my intention at all. For me, this is a debate about what Brexit is intended to achieve and whether we are achieving it in a way that is consistent with parliamentary practice—a key part of our constitution. As I recall, the slogans of Brexit were undeniable. I overheard one about “bringing our democracy home”. However, the Bill actually sends our democracy from this building to the intellectual suburbs, where it will not be part of our law-making process. My Amendment 44, which is a probing amendment, is an attempt to show how easily a solution can be reached which does not dilute our democracy. To devise Amendment 44, I reached into my metaphorical bathroom cupboard and pulled from it the sharpest, but non-existent, instrument: what somebody else called Occam’s razor. That is the principle by which you look at a complicated problem and see if there is a series of simple solutions; you usually find that they are much the best way of solving that problem.

I respectfully suggest to your Lordships that we should set up an independent body led by a judicial figure, preferably a serving Court of Appeal judge—as leads, for example, the Law Commission, although this would be a different kind of commission from the Law Commission. With colleagues and staff, that body would consider the questioned laws in real time on the basis of the demands of time placed by this legislation. It would produce reports with recommendations, including for modification, and those recommendations would be placed before—yes—Parliament for the approval or otherwise of both Houses. Thus, we would sustain parliamentary democracy entirely by this simple process; it is Occam’s razor at work. Ministers would of course play their part; they would take part in the discussions with the commission, would be able to suggest changes and objections, and would be free to make representations to both the commission and Parliament—but Parliament would decide.

I have seen an opinion of Sir Jeffrey Jowell KCMG KC on the Bill, on the instructions of a number of respected NGOs. I do not simply use Sir Jeffrey as an argument ad maiorem; he is a most distinguished and authoritative figure of the law on constitutional matters. I will quote some of what he said in that opinion:

“The claim that the Bill promotes sovereignty is hollow, as it is an exceptional example of Parliament relinquishing its key responsibilities … Insofar as the Bill may be justified by some procedures being in place for the scrutiny of Statutory Instruments by Parliament, this rings equally hollow, since those procedures provide no opportunity to amend the secondary legislation and in practice have rarely been effective in halting its passage … The Bill also offends the rule of law which requires our law to be accessible, clear and predictable.”


Those citations, and there are many more in his opinion, really tell the story about the Bill and what is at its centre. My draft new clause may be the right or wrong template—I do not mind whether my amendment or some other amendment passes—but we have to try to agree something that sustains parliamentary sovereignty, which the Bill does not. Let us not sully Brexit by the criticism that is available at the moment that it has diluted and damaged our democracy at home.