Retained EU Law (Revocation and Reform) Bill

Lord Collins of Highbury Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I congratulate my noble friend Lady O’Grady on her maiden speech. She showed what a real champion for equality and fairness she is. I must admit that little did I know when I interviewed her for her first job in the trade union movement in the 1980s, working with my noble friend Lady Prosser, that she would go on to break the glass ceiling and become the first woman general secretary of the TUC. I am immensely proud of her. I also congratulate the noble Baroness, Lady Bray of Coln, and certainly I found her speech inspiring. I like the idea that she values debate and respects all sides of that debate, and I look forward to her future contributions in the Chamber.

The theme of this debate is clearly about ensuring certainty that avoids chaos. I must admit that reading the Sunday Telegraph this week, we have all had recent experience of how uncertainty can create chaos, and that is something that we certainly want to avoid. Of course, EU law which applied to the UK was turned into domestic law to provide the maximum certainty after Brexit—as we have heard in this debate, laws related to farming, food standards, the environment, employment, financial services, privacy and much more. Reference has been made to CBI director-general Tony Danker, who said that this Bill is creating huge uncertainty for UK firms and risks throwing industry into some chaos. The Law Society said it could see a devastating impact on legal certainty in the UK and a negative impact on its status as an internationally competitive business environment.

Where did we start? Where was the policy? In the Explanatory Note to the European Union (Withdrawal) Act 2018, as the DPRRC report reminds us, the Government’s policy on repealing and replacing retained EU law was that it would be for democratically elected representatives in the UK to decide on changes after full scrutiny and proper debate. No one disputes the need to consider the status of those laws whose placed on our statute book depended on our EU membership.

Noble Lords in this debate have made it very clear: this should not be an ideological debate. This is not about Brexiteers and remainers; it is about how we make our laws. That should be something that unites us all. This rushed and chaotic process, putting power over huge swathes of law in the hands of Ministers without parliamentary oversight, is simply not right.

As we have heard, this Bill seeks to: sunset most retained EU law by the end of 2023; change the way in which any retained EU law that Ministers decide to keep is interpreted; and provide Ministers with wide-ranging powers to restate, revoke or replace retained EU law. If Ministers want retained EU law to fall away—the noble Lord, Lord Kerr, made the point so effectively—all they need to do is nothing: take no action. The decision to take no action is not subject to parliamentary scrutiny.

The 28th report of the SLSC draws attention to the risk of “inadvertent omission” because departments have failed to identify key laws, and to the absence of parliamentary scrutiny of retained EU law that Ministers have decided should be sunsetted. Far from creating new, high standards of regulatory framework, the replacement legislation cannot increase standards; as we have heard in the debate, it can only keep them the same or make them lower. Reducing standards or allowing key pieces of legislation to simply lapse risks the UK’s trading relationship with the EU at a time when we can ill afford it.

As we have heard, the uncertainty is: what are we talking about? The Explanatory Notes first cited 3,200 bits of REUL legislation. The dashboard refers to 3,745 bits. It grows each week as we examine it. We do not know what we are leading ourselves towards.

The Minister constantly states that he is proud of the UK’s record on employment standards, which, he says, were never dependent on us mirroring the same rules as the EU. Well, what is at risk? Why do workers and their representatives remain concerned? The TUC lists examples of rights that could be lost, and we have heard noble Lords refer to them today: holiday pay; agency workers’ rights; data protection rights; protection of pregnant workers, and rights to maternity and parental leave; protection of part-time and fixed-term workers; rights relating to working time, including rights to daily and weekly rest; maximum weekly working time; paid annual leave and measures to protect night workers; protection of workers’ rights on the insolvency of their employer; rights to a written statement of terms and conditions; collective consultation with workers’ representatives when redundancies are proposed; and protections of terms and conditions for workers whose employment is transferred to another employer.

I remind noble Lords that, last week, my noble friend Lord Woodley raised this matter, and he raised it again today: the protection known as TUPE. He asked the Minister a straightforward question: will he guarantee that TUPE protections will not be scrapped? The response he got was what all government Ministers across Whitehall appear to be saying, which is, “We will look at that and see whether it is appropriate for the UK economy and, if necessary, we will modernise, update or replace it”.

That is why workers are concerned. Statements such as that raise uncertainty and concern. I hope the Minister will answer that direct question tonight: will he keep that protection for workers who are threatened because, through no fault of their own, somebody has bought their company or it has been transferred? We need to have those guarantees. On part-time workers, the prevention of less favourable treatment regulations was raised by noble friend Lord Prentis last week—and he got absolutely no response on that either.

Perversely, the Minister argues that the sunset date provides certainty—a target by which departments can look at their body of retained EU law and decide whether it needs replacing, retaining or updating. A sunset clause is arbitrary. It leads to all kinds of errors and mistakes. The Minister argues that Parliament is not being refused the opportunity to discuss these issues, and that regulations that are updated or changed will come back to Parliament for approval. He forgets to mention that retained EU laws will simply fall away by being sunsetted.

We have heard in this debate from the noble Lord, Lord Hodgson. I echo the remarks that he made on 12 January in the debate on the Select Committee report Democracy Denied? By the way, those reports are excellent reading. I also recommend that people look at that debate on 12 January. The noble Lord said:

“Nobody … could reasonably argue that secondary legislation is as effectively scrutinised as primary. … Secondary legislation is unamendable: it can be passed or rejected but it cannot be amended.”


In that same debate, the noble Lord, Lord Blencathra, a former Government Whip and Minister, said that

“when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual.”

He also reminded us that:

“The excuse that excessive delegated powers are needed because Parliament cannot move quickly enough has been proved false on many occasions, not least by Parliament’s reaction to Covid legislation.”—[Official Report, 12/12/23; cols. 1532-37.]


We have heard Covid mentioned a lot in today’s debate, but it was Parliament that made those decisions and reviewed those instruments. We should not forget that.

The DPRRC’s clause-by-clause examination of the Bill is devastating. I have never read a report like it. The committee recommends that, of the six most important delegated powers contained in the Bill, five should be removed from it altogether. It argues that the shortcomings of this hyper-skeletal Bill justify its approach. I am sure that in the coming weeks we will see noble Lords from across the House speaking up for democracy by seeking legal certainty regarding all the rights and protections that this legislation will impact, and for the restoration of direct parliamentary oversight and accountability.

The overwhelming view expressed in this debate is that a reasonable balance can be struck between an efficient process for managing the transposition of legislation and ensuring democratic accountability where changes to rights are intended. None of the changes argued for today would prevent the Government from reviewing, reconsidering and, where necessary, replacing retained law, but Members from across this House want to ensure that the process used to do so is transparent, accountable and, above all, driven by the will of Parliament. We are here not to frustrate this legislation but to fix it together so that we can take back control to our democratic institutions.