European Union (Withdrawal) Bill

Lord Elton Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Lord Callanan]

My Lords, we now reach a point that has been of considerable interest throughout the Bill’s passage in Parliament: how retained EU law, once it forms part of our domestic law, will be amended and how those amendments can be scrutinised to ensure that rights remain protected. There is no doubt that retained EU law, including EU-derived domestic legislation, retained direct EU legislation and anything saved by virtue of Clause 4 will contain within it important rights and protections that are currently relied upon daily by individuals and businesses. As such, for the Bill to achieve its aim of continuity within UK law following exit day, it is crucial that these rights and protections are not diluted or weakened as we withdraw from the EU.

I believe that that is what the noble Lady, Baroness Hayter, aims to achieve with her Amendment 11, which seeks to put in place an enhanced scrutiny procedure for regulations made under powers that amend retained EU law in certain defined policy areas—both powers in the Bill and those that exist or will exist elsewhere. As we have heard, the policy areas covered are employment, equality, consumer standards, health and safety standards and environmental standards.

As I have said, I understand and support the noble Baroness’s intention to protect this law, and I and my ministerial colleagues have all repeated the Government’s commitment to effective parliamentary scrutiny and to maintaining the UK’s long-standing tradition of upholding the rights and protections in these vital areas. However, I believe the Government have already taken steps to address those concerns, potentially in ways that are even stronger than the noble Baroness’s amendment. Through the package of amendments that we tabled for Report, which will be discussed in more detail on a later day, the Government have actively and constructively responded to the concerns that have been raised in this House and have proposed putting in place suitable protections against the erosion of rights within retained EU law.

For example, by the powers contained in Clauses 7, 8 and 9, modifications to all retained EU law, not just in the specific policy areas listed in Amendment 11, will be subject to numerous scrutiny procedures, including where relevant the new sifting committees within both Houses. Ministers will also have to comply with a number of important statement requirements for each piece of secondary legislation, which will be published in the Explanatory Memorandum when the SI is laid, to explain fully why the instrument has been made for the consideration of Parliament and the public.

The Government, recognising and responding to the concerns on how retained direct EU legislation will be amended beyond the life of the Bill powers, have also tabled further amendments that address the use of existing and future delegated powers to modify this law. These amendments alter the circumstances and procedures concerning how it is or is not possible to amend retained direct EU legislation by other domestic powers, reflecting the hierarchy of EU law. EU regulations and rights that are saved by Clause 4, which are higher up this hierarchy and are likely to contain more fundamental rights, rules and provisions, will therefore be amendable in a way akin to primary legislation. EU tertiary legislation and decisions, on the other hand, which contain more technical and detailed provisions, will be amendable in a way akin to subordinate legislation.

I believe that in many ways those amendments can be seen to go a step beyond the noble Baroness’s amendment, in that they seek to protect all the rights and protections contained in EU regulations and those that are retained by virtue of Clause 4, not just rights within a particular policy area. I also believe the Government’s amendments represent a more effective approach. Referring to broad but undefined policy areas could produce unclear or differing views about which provisions of retained EU law would actually be covered. This would not only lead to uncertainty within our domestic statute book but risk creating significant litigation as individuals and businesses sought clarity about how retained EU law should be treated.

I look forward to discussing in detail the Government’s amendments on this subject during later days. I believe they strike the right balance between protecting retained EU law from erosion and allowing us sufficient flexibility to ensure that we can deliver an operative and stable domestic statute book. Having said that, beyond the Government’s amendment I cannot give false hope that I will reflect further on this issue between now and Third Reading, so if the noble Baroness wishes to test the opinion of the House, as I suspect she does, she should do so now.

[Lord Elton (Con)]

If this amendment is accepted, will it prevent the passage of the Minister’s amendment that covers the same ground?

[Lord Callanan]

No, I do not think they are mutually exclusive. I think the amendments can both stand.