Retained EU Law (Revocation and Reform) Bill

Lord Clement-Jones Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

The noble Baroness, Lady McIntosh, has been generous in allowing me to introduce this group, but I will get a chance to sum up at the end, so I will leave it there for now. I think this is the moment to get to the bottom of this issue about regulatory burden, categories and how to get this done in a way that avoids some potentially regrettable errors. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I will speak to Amendments 114 and 120 in the name of my noble friend Lord Fox, who, as the Committee knows, is unable to be with us today, sadly. I will also speak to the clause stand part notice.

As the noble Baroness, Lady Chapman, said, this clause is fundamental to discussion of the Bill. She referred to the DPRRC report and, if we thought that it was scathing about Clauses 12 and 13, as the noble Baroness rightly said, it is extremely concerned about Clause 15. Not only was there the phrase that she mentioned, but its conclusions were pretty damning, at the end of the day. It said:

“Clause 15 contains an inappropriate delegation of legislative power and should be removed from the Bill. It gives Ministers an extraordinarily wide discretion to revoke and replace secondary REUL merely where Ministers regard it as appropriate to do so. Clause 15 contravenes the commitment given at the time of the 2018 Act, a commitment that was enshrined in section 8 of the 2018 Act, that substantial policy changes to REUL should be for Parliament in primary legislation rather than for Ministers in secondary legislation … We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether.”


This is a very strong recommendation from the DPRRC, whose conclusions we always take extremely seriously in this House. The noble Baroness also referred to the difference between effects and objectives. That was the purpose of Amendment 114.

I really want to speak about some of the impacts of Clause 15(5), also mentioned by the noble Baroness. During our extensive debate on Clause 1, on Thursday 23 February, I mentioned the potential sunsetting of product and consumer safety regulations as an example of the extreme danger posed by the Bill and that, far from there being a need to deregulate, there is in fact scope for improvement in safety standards, particularly regarding online transactions.

Under current product safety legislation, online marketplaces are not accountable for the safety of products being sold by third parties, which enables non-compliant and unsafe toys to be sold in the UK. I went on to give some examples of products, particularly one involving magnets and a young girl called Rebecca McCarthy, who was left critically injured after swallowing 14 magnets that were above the legal limit. I referred also to the fact that Which? has regularly found unsafe products offered for sale in online marketplaces, including Christmas tree lights that were a fire and safety hazard, baby carriers that posed a suffocation risk and electric blankets that were so poorly made that they risked giving electric shocks.

I mentioned a recent report by the National Audit Office that found that product safety regulations had not kept pace with the trends in online commerce; it noted that online marketplaces were used by about nine in 10 adults but were not responsible for the safety of goods sold by third parties. I also pointed out that the Office for Product Safety and Standards had been consulting on the UK’s product safety framework, in particular addressing the lack of obligations on online marketplaces to place only safe products on the market, in a similar way to how obligations apply to traditional retailers.

A number of noble Lords, including the noble Baroness, Lady Thornton, mentioned the review at the time. Of course, that makes the ambit of Clause 15, the subject of this debate, particularly relevant: not only is sunsetting available under the Bill but there is the right to revoke until 2026, as we see in the clause.

We can debate changes to Clause 15, such as those contained in Amendments 114 and 120, but it is the whole clause that creates the damage. In her letter of 28 February, the noble Baroness, Lady Bloomfield, refers to the review of the Office for Product Safety and Standards and seeks to reassure us about the ambit of Clause 15. I recognise that this letter has not had universal acclaim. I think that perhaps one of the kindest comments was made by the noble Lord, Lord Carlile of Berriew, who said it was

“a letter which can be described only as obfuscatory, tautological gobbledegook”.—[Official Report, 28/2/23; col. 169.]

If that is the kindest thing that we can say, we have more to discuss.

In the letter, the noble Baroness explicitly says that

“it is possible for additional regulations and higher standards to be introduced through the powers to revoke or replace, so long as”—

this is the crucial bit—

“the package of reforms contained within each statutory instrument does not increase the overall regulatory burden for that particular subject area”.

My bafflement is equal to that of the noble Baroness, Lady Chapman. The letter continues:

“For example, through removing unnecessary or unsuitable regulations or consolidating multiple regulations into one, it will be possible to add new regulations with higher standards provided that the overall regulatory burden is not increased Therefore, it will be possible for a single instrument made under the power in clause 15 to increase the regulatory burden, so long as this increase is offset by a decrease of regulation in the same subject area”.


Here is the rub:

“It will be for the relevant Minister or devolved authority to decide if they are satisfied that the use of the power does not increase the overall regulatory burden in a subject area”.


So it is for the Minister to decide—itself hugely objectional, as discussed on the third day of Committee—but let me set the Minister a hypothetical if he is to decide in this area. If the product safety review recommends that we need a major increase in product safety regulation to cover products sold on online marketplaces, how on earth is that going be balanced by a decrease in regulation within the same package of reforms so that it does not fall foul of Clause 15(5), especially given the definition of burden under subsection (10), which is pretty extraordinary in itself and which I am not going to quote? What would the Minister suggest? Some heavy deregulation on toy safety perhaps, or for baby carriers?

This clause is nonsense and potentially extremely dangerous nonsense. However, in the debate on Amendment 16, the noble Baroness tried to reassure us that the Government are committed to protecting consumers from unsafe products. How on earth could and should something as desirable as product safety for internet-purchased products need to be balanced by deregulation on product safety elsewhere?

It begs the question of how wide the package is within which the Minister will make a judgment. This is the nub of what the noble Baroness was hoping to elicit at some stage—I hope she does. How wide is the package within which the Minister will make a judgment? Is it across the whole of what we described in the debate on the first day as “a bucket”? If so, what is the potential size of a bucket, dear Liza? This is especially relevant as the Minister’s letter says the search is still on for retained EU law. It is the hunting of the Snark, clearly.

Finally, the DPRRC made it clear that we should delete Clause 15. I have a particular objection to subsection (5). I very much hope that, if we have a satisfactory debate today, we will move on to Report and delete Clause 15 at that stage.

[Lord Hannay of Chiswick (CB)]

My Lords, I support the opposition to Clause 15 standing part. Other noble Lords have explained potently why it should not. It is the epicentre of taking back power to the Executive and not to Parliament. It is at the heart of the debate we have been having for three days—it is now the fourth day and the fifth is to come. If Clause 15 stands part, the taking back of control to the Executive and not to Parliament will have been consecrated by Parliament, and that would be a terrible error.

The clause contains a bizarre reference to the overall regulatory burden not being increased. This is a phrase in legislation without a metric. There is no description whatever of how this will be judged. I can perfectly well see a Minister from the Front Bench, whenever an attempt is made to change a government proposal, nodding his head sadly and saying, “Ah, yes, I’m afraid you can’t do that, because the regulatory burden will be increased”. It is just a catch-all, kill-all argument yet again for the Executive to have absolute authority. Those are the reasons why I argue that Clause 15 should not stand part.

--- Later in debate ---

[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

My Lords, this has been a good debate, probing our powers to revoke or replace, which are important cross-cutting enablers of the REUL reform in the Bill. They will allow the Government to overhaul retained EU laws in secondary legislation across many sectors of the economy, as we have heard, and replace them with domestic laws that are tailored to and beneficial for the UK.

It would make sense to begin with the debate on the clause stand part notice, which was introduced by the noble Lord, Lord Clement-Jones, and supported by the noble Lord, Lord Hannay, and explain why we believe that Clause 15 must stand part of the Bill. Retained EU law no longer aligns with EU law, nor does it keep pace with the evolving needs of the UK’s citizens or businesses. That is why reform is needed. Although the Government recognise the importance of ensuring that delegated powers are appropriately limited and have the necessary safeguards in place, we judge the powers under Clause 15 to be necessary in order to deliver this reform. I am afraid we do not agree with the DPRRC recommendation to remove Clause 15 from the Bill.

At present, the problem is that there is a distinct lack of subordinate legislation-making powers to remove retained EU law from the statute book. This is an oddity. It results from our EU membership and it is appropriate to take a power which covers the gap. Removing Clause 15 would significantly damage the UK’s legislative dynamism and potentially hinder the UK’s ability to regulate adequately. There must be scope for reform over the next two to three years if we are to deliver post-Brexit benefits.

I note that the noble Baroness, Lady Chapman, raised concerns in particular around Clause 15(3). We recognise that the power under Clause 15(3) is a broad one, but we want to ensure that departments have the necessary tools to create a regulatory environment which is the right fit for the UK. In addition, Clause 15(3) may still provide only “alternative provision” to the retained EU law or assimilated law being replaced. Any replacement legislation must therefore cover similar ground to the retained EU law or the assimilated law it replaces. Therefore, the power cannot be used to create new regulations in wholly unrelated policy areas, for example. Moreover, I add that nothing in this legislation prevents the Government introducing sector-specific primary legislation where that is considered necessary and appropriate for that subject area, as exemplified by the Procurement Bill, the Agriculture Bill and the Environment Bill in recent times.

I turn to Amendment 112, introduced by the noble Baroness, Lady Chapman, and tabled by the noble Baroness, Lady Mcintosh of Pickering. Although the latter has gone home, I listened to this with care. The amendment would hinder the removal of regulations that have been identified as outdated and unsuitable for UK citizens and businesses, which we do not think would be efficient lawmaking. As I touched on before, we do not consider adding to the Bill a requirement to consult to be appropriate or necessary. Equally, I understand the concerns that have been raised.

I turn to Amendment 113, tabled by the noble Baroness, Lady Chapman. Honourable Members—sorry, noble Lords: exempting regulations and judgments on customer protections, which range from aviation to pensions and, indeed, to toy safety, which the noble Lord, Lord Clement-Jones, spoke to, from this power would obviously reduce the scope for reform that the Bill sets out to deliver in an orderly manner. There is simply no need for any carve-outs for individual departments or specific policy areas or sectors. Doing that would prevent the UK Government carrying out the necessary work to overhaul secondary retained EU law, which sits across so many different sectors of the economy.

I think my noble and learned friend Lord Bellamy talked about tides and how EU law had become entrenched in UK law. Where protections are necessary, these will be kept, but there is an opportunity to improve and in some places simplify laws passed over many years in Brussels.

Turning to Amendment 114, introduced by the noble Lord, Lord Clement-Jones, Clause 15(2) has already been restricted such that any replacement legislation must be appropriate and must

“achieve the same or similar objectives”

as the legislation it is replacing. This amendment seeks to further restrict that subsection. The use of the word “effects” instead of “objectives” would further restrict the functionality of this limb of the power and prevent departments undertaking reforms that would adjust the existing policy to better fit the UK context. It is important that we ensure departments are able to amend their legislation to better fit that UK context, so this is an important clause.

Amendments 120 and 121, tabled by my noble friend Lord Lindsay, both seek to amend the limitation on Clause 15 that states that the replacement legislation must not add to the overall regulatory burden—so allowing extra burdens. In seeking to remove Clause 15(5) and (6), both amendments would increase the scope of the powers and enable them to be used to introduce additional regulation. Consequently, they would create a wider power than the Government have proposed or intended. As such, these subsections are a necessary check on our powers. Comments have been made that Clause 15(5) and (6) mean that regulation made under these powers could be challenged by the courts. That is of course correct, and like any delegated legislation, an entirely appropriate check.

We recognise that it will not always be a scientific test precisely to establish what the value of regulatory burdens are, or to balance one burden against another. That is why we have sought to ensure an appropriate level of discretion for Ministers in the interpretation of Clause 15(5) and (6). When doing so, the Minister is required to act reasonably and to take into account relevant factors. This strikes the right balance between limiting the scope of the powers and providing Ministers with a pragmatic degree of discretion in deciding whether the regulatory burden test has been met. The restriction to the powers to revoke or replace set out in Clause 15(5) and (6) will help the UK to establish a more UK-specific regulatory approach in order to go further and seize the opportunities of Brexit.

We have sought to ensure that the powers to revoke or replace cannot be used to add to the overall regulatory burden for a particular subject area. However, it will be for the relevant authority to decide. I thought I would share with noble Lords a hypothetical example from my own experience. There may be instances where there are multiple reporting requirements for businesses across a number of regulations in a similar area. Through consolidating these reporting requirements in a single regulation—aligning dates, for example—it can be administratively easier for businesses to comply with the regulations, and it may be possible thus to lower the regulatory burden while maintaining exactly the same standards and, indeed, possibly providing better enforcement. I hope that example reassures my noble friend Lord Lindsay, who I know does so much to try to tackle overburdensome regulation.

In responding to the interesting point made by the noble Lord, Lord, Hacking, about the ability of the powers under Clause 15 to create a criminal offence and provide for monetary penalties, I hope I can be reassuring. Any offences or penalties must correspond to, or be similar to, those which the revoked provisions provided. In that sense, the power does not provide licence to create wholly new offences or penalties, but rather allows like-for-like replacements for what already exists: for example, similar conditions for the commission of an offence and similar penalties. Furthermore, any instruments made under Clause 15(3) will be subject to the affirmative procedure, as well as any instruments made under Clause 15(2) which recreate a delegated power or create a criminal offence present in retained EU law.

To conclude, it is right—

[Lord Clement-Jones (LD)]

My Lords, I wanted to interrupt the Minister before she got much further because I was much struck by her phrase “damaging legislative dynamism”. What would be more dynamic than changing retained EU law in product safety so that it covered online marketplaces? If that is legislative dynamism—very desirable legislative dynamism—what would prevent it? Well, Clause 15(5) would prevent it. How could it be possibly balanced against any other form of deregulation, however much discretion the Minister had? That would be around the edges. Can the Minister answer the hypothetical that I put in my speech?

[Baroness Neville-Rolfe (Con)]

There is a balance here. What we have got are powers that allow us to make changes, such as the example that I gave, which will improve the state of regulation. There may be a bit of an extra burden at the margins, but if you are bringing regulation into a new area, which I think is what we are talking about, in my opinion—and I am not an expert in this particular area—that might be a case for primary legislation. Of course, we are about to have further primary legislation in the digital area in the coming months.