Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

Moved by

[Lord Fox]

At end insert “but regrets that the Bill (1) weakens the scrutiny role of Parliament and proposes unparalleled delegated powers be given to Ministers of the Crown, (2) does not respect the constitutional role of the devolved administrations, (3) sets an arbitrary deadline for the revocation of many hundreds of laws protecting the United Kingdom’s high environmental standards, as well as employment and consumer rights and safety standards, with no indication of the rules that will replace them, and (4) imposes a cliff-edge at the end of 2023 that will create uncertainty for people and businesses”.

[Lord Fox (LD)]

My Lords, I draw attention to my non-pecuniary interests as a vice-president of the German-British Chamber of Commerce and a director of the German British Forum. I associate my thoughts with the Minister in anticipation of the two maiden speeches by the noble Baronesses.

As we have heard, the Bill seeks to make major changes to the body of retained EU law in UK domestic law. It aims to automatically revoke, or sunset, most retained EU law at the end of 2023. Any retained EU law that still applies after the end of 2023 would be renamed as assimilated law. At this point, I stop agreeing with the Minister, because this Bill hands huge powers to Ministers at the expense of elected MPs.

Your Lordships might have become immune to the Henry VIII clauses that have been propagated by Bill after Bill coming before this House, but this Bill represents a new, unprecedented level of transfer of power from Parliament to the Executive. It gives Ministers powers to legislate in areas that affect every aspect of our daily lives without any meaningful democratic input. Far from creating new high standards, as has been promised by Minister after Minister, the replacement legislation cannot increase standards: it can only keep them the same or make them lower. Moreover, the impractical timetable imposed by the sunset clause indicates clearly that this Government know that their race is run.

The reaction across key communities and committees across Parliament is very clear—I have never received so much comment from civil society as I have on this Bill. It is not only anti-democratic; it is ill thought through and badly drafted. For example, the impact assessment was roundly criticised by the Regulatory Policy Committee. Then, just last week, the Delegated Powers and Regulatory Reform Committee issued its verdict, which is damning. I am sure your Lordships will refer to it in more detail, but crucially, to my mind, the DPRRC highlights the false dichotomy epitomised by the Bill.

As the committee explains, the Government create such a dichotomy by saying that replacing all retained EU law purely through sector-specific primary legislation would take decades. That might be so, but the committee also notes that this is a false choice between replacing all such legislation with primary legislation and replacing all of it with regulations made by Ministers. There is another way. The choice is not all primary legislation or all ministerial edict. The advice of the Bar Council is a useful suggestion for the way we should go forward. It says of the legislation under review

“the question should be whether it remains fit for purpose: would alternative UK regulation achieve different and preferable goals, be better or more cost-effective in achieving its goals, or more certain in its application?”


In other words, this approach is to improve legislation where appropriate, which reflects the thinking on these Benches.

The Bar Council also outlines two overarching concerns regarding the Bill. First, it says, as do many others, that it is anti-democratic, noting:

“Important changes to our law should be made by Parliament after proper consultation, public debate, and scrutiny.”


This echoes many of the comments that we have heard. Secondly, the Bar Council says:

“The Bill and the attendant legal uncertainty that will follow its adoption as currently drafted will damage the UK’s reputation for regulatory stability, predictability, and competence, on which growth-promoting investment in critical sectors of our economy depends.”


I will be interested to hear what the lawyers in your Lordships’ House have to say about the need to establish brand-new case law right across the piece. For my part, I note that the Bill also grabs back power from the devolved authorities. I am sure my noble friend Lady Randerson will expand on that theme later today.

However you look at it, this is an unprecedented upheaval of the nation’s laws, yet when I listen to the Minister and his colleagues across Parliament, somehow it is depicted as a sort of tidying-up process. Indeed, Jacob Rees-Mogg described it as a “technical tidying up operation”. I do not know what tidying up looks like in the Rees-Mogg household, but this is not light dusting. To stretch a metaphor, it is the equivalent of tidying up the family nursery by completely dismantling Casa Mogg brick by brick and then putting it back together again. That is quite a task, and there is no guarantee of what comes out at the end.

In this case, what is rebuilt is up to Secretaries of State and them alone, and we all know how such grand designs end: in cost overruns, changes, delays and unexpected problems, but, unlike with the TV programme, there is no guarantee that this real and present story has any pleasing outcome—none whatever.

The tidy-up story would perhaps have a shred of credibility if Ministers were not at the same time pandering to the likes of Sir Bill Cash, who expressed the views of the ultras very well when he said that retained EU law is

“a massive ball and chain”,—[Official Report, Commons, 18/1/23; col. 419.]

implying that the UK must remove this regulation. Only last month, we also heard the Chancellor of the Exchequer talking up the need to remove, reform and take away regulations. This Bill makes all that possible without Parliament and elected MPs getting in the way, which is music to the ears of Sir Bill and his deregulating colleagues.

Of course, this process also effectively does away with much of the legislation delivered by thousands of statutory instruments passing through your Lordships’ House. As your Lordships no doubt recall, these incorporated retained EU law into British law to avoid what was then described as a chaotic bonfire of regulation as we left the EU, but it seems we delayed that bonfire a few years because a bonfire is what is now proposed in this Bill. This fire will impact a vast range of areas, including consumer rights, safety regulations of all kinds, protecting the environment and, of course, employment rights. No doubt many noble Lords will have detailed examples of these issues as we debate the Bill today.

As well as a power grab and a deregulator’s paradise, this Bill is also likely to deliver something that this Government have excelled at, which is chaos. The Bill, say Ministers, is designed to support business interests—indeed, we heard the Minister say that just now—but we hear from business that it will create chaos and poor governance, rather than stability. This will undermine confidence and will be likely to have a negative impact on business investment in the economy, something I am sure the Minister would prefer to be going in the opposite direction.

Speaking last month, Tony Danker, the director-general of the CBI, argued that scrapping these 4,000 or so EU-derived laws by the end of 2023, as facilitated by the Bill, was

“creating huge uncertainty for UK firms”.

As he put it:

“Do we really want to subject the public—and industry—to another round of mass confusion and disruption, just when we’re trying to exit recession?”


In his view, and ours, EU laws should be reviewed and, where needed, repealed as part of a wider strategy to deliver smart and better regulation. He noted that the Chief Scientific Adviser, Sir Patrick Vallance, is currently reviewing how the UK can better regulate emerging technologies—for example, some of those that the Minister reeled off. The sensible thing, said Danker, would be to wait for that review and act on it systematically. We see the same attitude and response across business. The Federation of Small Businesses, the car makers and most of UK manufacturing do not want the confusion that this Bill will deliver.

Your Lordships’ Secondary Legislation Scrutiny Committee has worked fast, and should be credited for that, to ensure that its extensive report is available to inform this debate. The committee focuses on the sunset provisions and the lack of effective scrutiny of secondary legislation, but in a broader sense, its view is important and something I would like your Lordships to take on board. It said:

“Amending the Bill so that the shift in power between Parliament and the executive is reversed will require a great deal of thought and creativity, and commitment to the overarching aim of redressing the current imbalance of power.”


In other words, there is a lot to do to this Bill to make it acceptable. We agree that this going to be a difficult job, but we commit to doing it, because we feel it is vital to ensure that MPs maintain a grip on the legislative process rather than, as the Bill commands, hand decisions solely to Ministers.

This amendment highlights why this Bill is wrong. It is wrong because it weakens the scrutiny role of Parliament and gives unparalleled delegated powers to Ministers. It is wrong because it does not respect the constitutional role of the devolved Administrations. It is wrong because it sets an arbitrary deadline for the repeal of numerous laws that protect the UK’s environmental standards, safety standards, employment rights and consumer rights, and it is wrong because it creates uncertainty for businesses and individuals. I beg to move.

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[Lord Howard of Rising (Con)]

My Lords, Monsieur Barnier recently warned Britain not to tear up EU laws—well, he would, wouldn’t he? This should come as no surprise. For all its trumpeted advantages, the EU is performing worse than Britain. Whatever way you look at it, Britain is doing better. As Britain escapes the cloying and destructive stranglehold of EU regulations and red tape, we will leave the EU trailing even further behind. It is no wonder that Monsieur Barnier is nervous.

Many claim that Britain has suffered economically from leaving the European Union. That is nonsense, driven by those who wish for us to rejoin the European Union. Last year, Britain’s GDP grew faster than those of Germany, France and Italy. Our economy has grown by 5.7% since 2016—the same as that of Germany, the financial powerhouse of the EU. Yet, in 2022, real wages fell further in Germany than they did in the UK. While food prices are up by 19.9% in Britain, they have risen by 21.1% in the eurozone and 24.1% across the whole of Europe.

However badly the British economy might be faring in these challenging times, the European Union is doing worse. That is in relation not only to economics; our Covid vaccine development, procurement and rollout is a good example of what can be achieved free from EU restrictions. It was such a success that the EU tried to keep it for itself and to block shipments to Britain. By March 2021, Britain had vaccinated 40% of its population, while the EU had vaccinated only 12% to 14%. Just think how much more the rest of our life sciences sector and other industries can achieve when they are fully freed from the EU’s shackles.

We must support the Bill; it will help to remove the remaining EU bureaucracy from our statute book that continues to impede our economy and society. Some noble Lords may complain, as indeed they have today, that too much discretion is being given to Ministers, but we should remember that the retained EU laws only exist because edict after edict was imposed on the UK without this country being able to alter so much as a comma. Noble Lords have far more scrutiny now, and under the Bill, than they ever did when the legislation was created.

[Lord Fox (LD)]

Nonsense.

[Lord Howard of Rising (Con)]

It is not nonsense; it is true.

Above all, we should celebrate that our country is a sovereign nation and be grateful that we are not subject to the 25,163 new EU laws created since we left. I urge noble Lords to support the Bill, which recognises that our country is now governed from Westminster and not by faceless bureaucrats in Brussels.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I have been given permission to speak in the gap, which I will do very briefly. I will start with how I come into this issue. When I first arrived in the House of Lords in 1972, there was the European Communities Act. I served on the European Community Committee, which later changed its name to the European Union Committee. Your Lordships will remember the brief intervention at the beginning of this debate by the noble Earl, Lord Kinnoull, when the Minister was speaking. He might find it more awkward, now that he is on the Woolsack, to intervene when the Minister speaks again. However, his intervention drew attention to the work of the European committees, in this place and the other place.

What did we do? We were given drafts from the European Union of directives and regulations. We were then given the opportunity to comment. We called evidence, we wrote a report, we sent it back to the Commission in Brussels and surprisingly, you may think, a lot of our recommendations were accepted. Therefore, when the Minister said that the European committees had no power to veto the drafting—I have forgotten his exact words—that got missed out, because we did have a good opportunity to do so in looking at the drafts.

Where are we now? I have heard every speech except one. I begin by giving the score. Only 10 speakers have spoken permanently pro Bill. One or two others have hesitantly spoken pro Bill, out of a total of 58 speakers. That gives a message, does it not? My noble friend Lady Young of Old Scone said that we should not pass this Bill. I suggested to my Front Bench that we should oppose the Bill—that we should not allow it to go any further. I am afraid that I was told that this was not the policy. I then moved towards the Liberal Democrat Benches. I got more favourable noises but certainly not “We should not pass this Bill”.

[Lord Fox (LD)]

The noble Lord did not talk to the Front Bench.

[Lord Hacking (Lab)]

I am sorry. I was tempted then to move over to the noble and learned Lord, Lord Judge, and his flock, the Cross Benches. He did not say that to me, but I am a former Cross-Bencher and I think that his answer was, “I have no control over the Cross Benches”. I even thought that, under the generalship of the noble Lord, Lord Heseltine, there might be a cohort from the Government Benches to move that this Bill do not pass. I am afraid that I failed in all those endeavours, but that is clearly my wish.

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[Lord Fox (LD)]

My Lords, it has been an absorbing and long debate and I will not extend it more than a few seconds. I did not expect the Minister to embrace my regret amendment and I am pretty sure that the noble Baroness, Lady Chapman, did not expect him to embrace hers either; however, noble Lords around the House picked up on all the issues set out in both amendments and amplified them in a very strong way. The scale of the disquiet over the Bill has really been emphasised in this debate, and if the Minister was in any doubt as to the level of disquiet the Bill is generating, then that has been dispelled. But the extent of this concern is itself an opportunity for all of us to work across the Chamber to produce the amendments and the changes that the Bill needs to make it fit for purpose. We on these Benches undertake to work with everybody, across parties and across Benches, to try to make sure that in Committee and particularly on Report, those changes are brought forward to your Lordships’ House. In the meantime, I beg leave to withdraw my amendment.

Lord Fox’s amendment to the Motion withdrawn.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Hamilton of Epsom (Con)]

I am very grateful to the noble Lord for letting me in. Does he not accept, though, that, when this Bill was printed with the sunset clauses in it, that was the only point at which all this legislation started to appear? They had done nothing up until that time to actually dig it out.

[Lord Fox (LD)]

My Lords, it seems the debate has started quite strongly already, as I think we expected. I am indebted to the noble Baroness, Lady Meacher, for her intervention, which I think puts in context quite a lot of what we will hear today. This group of amendments is part of a series, as the noble Baroness will have seen, that highlight how this is not a tidying-up exercise, as it was characterised by Rees-Mogg, and is not about reindeer-related legislation. It is about a fundamental set of changes that could affect almost everybody, potentially seriously detrimentally.

Each of these groups sets out different areas of concern; that is the point of what we are doing here today. Together, they indicate the breadth and the importance of the legislation that is being cast into doubt by this Bill. It is all very well the noble Lord, Lord Frost, saying, “Trust us”—we do not, and we will not until all these laws are ruled in, because until they are ruled in, they may very well be ruled out or amended. That is our purpose here today: to use specific examples to explain that this is real, and affects real people and real lives. That is what we are here to do.

I rise to move Amendment 23, which is in my name, and to support Amendment 1, which is also in my name and the names of my noble friend Lady Burt and the noble Baroness, Lady Crawley. I also support Amendment 40, in the name of the noble Lord, Lord Collins. This set of amendments concerns employee rights; Amendments 1 and 23 deliberately focus on one of the suite of employee rights that could be swept away by the effects of the Bill. These rights could be lost as a result of the deliberate actions of the Government, bent on winding back the national clock, or they could happen as a result of accidental changes that are not picked up—legislative commission, or legislative omission. In either case, Parliament is all but bypassed in the process.

Amendment 1, as we have heard set out thoroughly by almost all the people speaking today, on parental leave, is really vital to the lives of so many people, and an important enabler to working families. It is so vital that we do not think it should be risked in the potential pitfalls that this legislation sets out. That is why we propose to exempt it from the sunset, to make sure that UK working families get the opportunities they so need with their children at the start of life.

Turning to Amendment 23, which I know no one has yet spoken about, that looks at a different but equally important employee right: the Transfer of Undertakings (Protection of Employment) Regulations 2006, known as TUPE. I am sure that noble Lords are more than familiar with this; I certainly am from my business life, and I am sure that many noble Lords are from their different experiences. To be clear, it means that when one business buys another business, there is a reasonable certainty as to which workers transfer to the new business, so that the purchaser knows what employees they are getting and what they will cost, and workers know that they cannot just be dismissed because of the transfer. This is about fairness and peace of mind, and ensuring that employees caught in an outsourcing, for example, are not driven out of work as costs are slashed.

We saw with P&O Ferries that this law has serious limitations, but it is better than nothing and we need it to endure through this process. This is also business-friendly, because it allows businesses planning that are acquisitions to know what they will be buying. Similarly, businesses that are pitching for outsourced work now, to be carried out next year, need to know what rules they will have when that work starts. So this amendment gives both workers and businesses certainty.

On Wednesday 1 February, in answer to a question regarding employee rights from the noble Lord, Lord Woodley, the Minister, the noble Lord, Lord Callanan, said that

“our workers’ rights, of which we are very proud, do not and did not depend on our membership of the EU … let me repeat: UK standards did not depend on EU law”.—[Official Report, 1/2/23; cols. 658-59.]

That spirit has been reflected by speakers opposite, but, as evidenced by these two specific regulations—real regulations that exist now—the Minister was not correct. It is very clear that, as the Minister indicated, there are UK-derived laws, but these work in tandem with, and are interwoven with, laws that were imported into the UK from the EU. These work together to deliver the suite of workers’ rights that we have today.

Parental leave and TUPE are not the only important worker protections that are in danger; they are illustrative of a whole raft of legislation that is up for grabs. For example, I would emphasise the right of NHS workers, who have worked through the pandemic, to be able to carry over annual leave that they have been unable to take; maximum hours, not just for office workers but for safety-critical workers such as airline workers, deep-sea fishermen and HGV drivers; and the obligation on employers to make an assessment of health and safety risks to their workers and to keep such risk assessments up to date—I think the noble Lord, Lord Berkeley, referred to that. In the second group of amendments, we will also reflect on part-time work and agency workers, which is another important area.

There are a number of other laws that are set out by the noble Lord, Lord Collins, in Amendment 40. However, I am aware that this is not an exhaustive list, so can the Minister confirm that the Government now know all the laws that will be in scope of Clause 1? How many concern, first, employment rights and, secondly, workplace health and safety? We would be very pleased to know the numbers there.

As the noble Baroness, Lady Crawley, set out, many of these laws impact women more than they do men. The Bill’s equality impact assessment confirms that the Government’s commitment to upholding high standards in equalities does not expressly acknowledge the potential disparate impact of revoking these regulations. As we know, unless the Government positively act to save a regulation, it will be abolished at the end of 2023—although the Government can decide to extend that into 2026; that is a voluntary act.

In his answer to the noble Lord, Lord Woodley, earlier this month, the Minister also said:

“Regarding the regulations the noble Lord mentions, as with all retained EU law 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”.—[Official Report, 1/2/23; col. 658.]


Well, these are amendments about specifics. Will the Government be retaining these specific laws as they are or do they find it necessary to modernise, update or replace them? We would like specific answers on these specific laws.

I fear there is a further complication, which I would like to probe in this amendment—and here I thank the Employment Lawyers Association for some very detailed help. There is a third factor, and that is case law. On the face of it, the least disruptive course that the Government could choose is to take current law and assimilate it directly into UK law—essentially making no fundamental changes but perhaps tweaking some of the language. Surprisingly, that does not finish the uncertainty. That is because the Bill does not just turn off regulations; it turns off EU law that the European Union (Withdrawal) Act 2018 kept in British law. Examples of the law that would be turned off are wide-ranging. The Bill also turns off the direct effect of many parts of EU law that the courts use to interpret regulations in domestic law, and this is what I wish to interrogate.

The turning off of this type of EU law is amplified by the Bill abolishing the principle of the supremacy of EU law in Clause 4, together with the general principles of EU law in Clause 5. The new Bill sets a new default that removes three principles from British law at the end of 2023. The Bill will erase the interpretive principles and settled decisions that courts have relied on to give settled and predictable meaning to hundreds of employment law rights and obligations that are derived from EU law. To be clear, the three principles are these: the direct effect, supremacy of EU law and the general principles of EU law.

Abolishing the direct effect removes rights such as a facet of equal pay law which is being used by tens of thousands of women to claim equality with better-paid men. This is because equal pay rights in the Equality Act 2010 do not go as far as the current case law, as since 1976 the Act has been supplemented by EU law. Abolishing the direct effect sets a default to abolish rights such as the right to normal pay during holiday—enjoyed by millions of workers—or the ability to carry over holiday, and with it holiday pay, from one year to another when sick. It sets a default to remove from UK law the legal reasoning that has helped extend anti-discrimination law and other protections to atypical and gig workers.

Abolishing the principle of supremacy, together with abolishing the general principles of law and the removal of the direct effect, means that the settled meaning of not only EU regulations but primary Acts of the UK Parliament, such as the Equality Act 2010, will not be the same after 2023. The Bill affects primary Acts of Parliament as they may be interpreted in the future. An employment dispute centred on the meaning of a legal right in December 2023 may have a completely different outcome from one that arises in January 2024. In other words, all the existing case law can fall away and new case law has to be built up from scratch. That will create huge legal uncertainty and a bulge of cases in the country’s courts.

These regulations, and ones like them, are used every day by workers and employers in courts and tribunals. Lawyers are asked to advise on them and use the certainty of past decisions to be able to give answers to clients that allow them to conduct their business and resolve their disputes in a settled, stable and well-understood framework of law. This reduces disputes and litigation. The settled and predictable meaning of a considerable body of employment law will be wiped away, creating unpredictability. It will be up to the courts to decide whether case law carries over or whether it changes. Legal uncertainty will undermine any plan that the Government might have for growth, as neither employers nor employees will have any clarity on the meaning of large parts of employment law that affect investment and the cost of labour. I ask the Minister to give us a very detailed response to this because it is one of the most important elements and has so far not been debated very much by the general public.

As I have said, these amendments are the first in a series that illustrate how everyday lives will be affected. They also bring into stark relief the risks inherent in this Bill of disturbing settled understandings of the law, turning legal certainty, clarity and predictability on their heads. Will the Minister please give the Committee a detailed response to this amendment, particularly setting out the view of government lawyers on the implications of removing direct effect, the supremacy of EU law and the general principles of EU law?

I repeat my question. Will the Government be retaining the specific laws set out in these amendments—parental leave and TUPE—or do they believe that there is a necessity, in the Minister’s words, to modernise, update or replace?

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

Does the noble Lord agree that it took trade unions years, representing cases, to win a definition of normal pay that included, when workers were normally working and were required to work overtime, that overtime? That money matters to thousands of workers, but if this Bill passes, all that case law, and all those years of hard work to win workers justice, will be swept away and we will have to start from scratch, as the noble Lord said. I hope he agrees that that would have a catastrophic impact on working families who are already struggling to manage.

[Lord Fox (LD)]

I thank the noble Baroness for her intervention. To be brutally honest, it was her I was thinking of when I made that reference, because I know how hard she worked on that issue in her former life. Of course I agree, and that is why we bring it up. This is not about reindeer farming; this is about people’s lives.

[Lord Wilson of Dinton (CB)]

I support the wise and well-expressed advice and views of my noble friend Lady Meacher. I was not going to speak but I am deeply disturbed by this legislation.

I said at Second Reading that I thought that this was bad government. I repeat that. Of course the noble Lord, Lord Hamilton, is right: we need to know what EU-derived laws the Government propose to keep, amend or abolish. But this is not the way to do it. The Government should do the work first. This is lazy government and it is very improper.

It is 50 years since I first sat in the Box as a Private Secretary to a noble Lord, and I have been here for many Bills and attended many sessions in this House. I have never heard this kind of debate or seen this kind of Bill. It is shameful that the Government have not done the work. The right thing to do is for the Government to withdraw the Bill, go away and do the work, and decide what they want to keep, what they want to amend and what they want to abolish, and then tell Parliament so that it can debate and scrutinise what the Government want to do—and it can be a proper process with consultation. That will take longer, but the Government are taking on a very big job with huge complexity and scale. What you do not do is take sweeping powers which largely ignore Parliament, with the Government simply saying what they want the law to be.

I find great irony in the argument of the noble Lord, Lord Frost, that we never were consulted before. The Government, having complained about the EU being tyrannical and dictating our laws, want to substitute the Government having the same tyranny themselves. I do not think that works. Brexit was based on the return of sovereignty to Parliament. Do the Government still believe that? If so, will they act on it in relation to this Bill?

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[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.

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[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.

Amendment 1 withdrawn.

Moved by

[Lord Fox]

2: Clause 1, page 1, line 4, at beginning insert “Except for the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (S.I. 2000/1551) and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034),”
Member's explanatory statement
This amendment excludes the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 from the sunset in Clause 1. These Regulations give part-time workers the right not to be treated less favourably than a comparable full-time worker and fixed-term workers the right to be treated no less favourably than a comparable permanent employee.

[Lord Fox (LD)]

I move Amendment 2 in my name and those of my noble friend Lord Clement-Jones, the noble Earl, Lord Clancarty, and the noble Baroness, Lady Bennett of Manor Castle.

We talked about some important employment law specifics in the first group, and we have some more in this one. The TUC, unions and employment lawyers have told us that they are particularly concerned about vulnerable workers, who would be hard hit by the potential removal of protections that the Bill can deliver, because a number of important rights originated in EU legislation—I come back to the point of contention between us and the Minister. That is why we have chosen to highlight the importance of the protection of part-time and fixed-term workers in this amendment.

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 gave part-time workers the right not to be treated less favourably than a comparable full-time worker with regard to the terms of their contract. Part-time employees should benefit from the same terms and conditions as full-time employees unless the employer can justify that different treatment.

Likewise, the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 established protection for fixed-term workers, giving them the right to be treated no less favourably than a comparable permanent employee, unless, again, the employer can justify a different treatment. The employee can insist that the fixed-term contract be converted into a permanent one in certain circumstances, and they are entitled to be informed of certain permanent vacancies.

Any or all of these rights could be lost under the Bill, with women being particularly likely to be impacted. Some 8.2 million part-time workers in the UK fall into the most at-risk category. Some 72% of part-time UK workers are women, whereas only 40% of full-time UK workers are women. Some 750,000 workers are on fixed-term contracts, of which 56% are women. They would face an uncertain future without protection from the EU-derived Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The provisions of the Bill could see part-time and fixed-term workers treated differently from their peers in areas such as pay, holiday entitlement, pensions, and training and career development.

Not covered by this amendment, but equally vulnerable, are agency workers, of whom there are nearly 750,000 in the UK. Of these, nearly one-third work part-time, with 28,000 on fixed-term contracts, so they also have protection from part-time and fixed-term contract regulations derived from the EU. They also have the Agency Workers Regulations 2010, which could be lost at the end of this year. These provide agency workers with a right to the same basic working and employment conditions as direct employees.

As was said at Second Reading, the outlook is particularly bleak for creative workers in particular. The Government seem to have a poor understanding of what is meant by the creative sector and what the impact would be. In the impact assessment for the Bill, the definition on the dashboard states that 177,000 businesses and 658,000 jobs will be impacted. However, the DCMS definition of “creative industries” accounts for 300,000 businesses and 2.2 million jobs. Which is the correct figure? If the Government cannot work this out, how can we trust them on any aspect of the Bill or how the legislation will affect these people? Where is the audit of exactly which body of employment law is retained EU law and subject to the Bill? The noble Lord, Lord Callanan, seems to think that the figure is zero. If so, what are these regulations doing on the dashboard?

As Creative UK says, the creative industries are characterised by small and

“micro businesses and freelancers undertaking project-based work”.

Although proposed changes to workers’ rights will affect all sectors, the make-up of the creative industries means that the impact of any change on the protection of part-time and fixed-term workers is particularly important for freelance workers in the creative industries.

Of course, it is not just these regulations that are at risk as a result of the Bill: all the precedents and EU case law and principles, such as effectiveness and proportionality, by which these rights have been interpreted, will be swept away, as I outlined in the first group. The Employment Lawyers Association says:

“Abolishing the principle of supremacy, together with abolishing the general principles of EU law and the removal of direct effect means that the settled meaning not only of EU Regulations but also any primary Acts of Parliament (such as, for instance, the Equality Act 2010) will not be the same after 2023.”


I do not apologise for repeating that, because it is extremely important and apposite to our discussions. This will create a legal vacuum and huge uncertainty, not just for employees but for employers. Thousands of SMEs, many without dedicated HR resource, will potentially have to grapple with new laws or new interpretations of existing regulations. Given the sweeping away of European precedent, already overburdened tribunals will be asked to rule afresh on any regulation that is retained, at great expense to employees and employers alike. This is a waste of money and time and a huge opportunity cost. No wonder employers are overwhelmingly in support of keeping the existing regulations and the supporting case law as they are.

--- Later in debate ---

[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.

Amendment 2 withdrawn.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I wish to raise a point about Amendment 4. It relates to the interaction of this Bill with common frameworks. I believe—though I am open to correction—that EU regulation 1169/2011 is the foundation of a series of statutory instruments made by the United Kingdom Government, the Welsh Assembly and the Scottish Parliament, which all relate to what is called food labelling and compositional standards. That is one of the frameworks on the list of 32 which the Common Frameworks Scrutiny Committee has been scrutinising. My first question is: am I right that this regulation is part of this particular framework? If it is, it raises another question of great importance. What do the Government propose to do about legislation which is part of and built into a common framework?

The word “common” is used in the expression because these frameworks are common to the four Administrations that make up the United Kingdom. This is a method of creating an internal market which is a little more relaxed than that created by the internal market Act. The point is that all four Administrations consult each other about changes that may be needed and about the composition of the frameworks themselves.

I hope that the Minister will be able to say that the Government’s intention is simply to replace the regulation and the SIs that follow behind it so that they become part of assimilated law and lose their connection with EU law. I do not think that replacement would create problems, provided it is accurate. There is concern about Clause 15(3), which talks about alternative provision. If the proposal is to make alternative provision to any legislation which forms part of a common framework, to any extent or for whatever reason, it raises a question as to how it is to be done, while respecting the way in which the framework scheme operates. The essential part of the framework system is consultation between all four parties with a view to seeing whether there is a divergence, and, if there is, whether it can be accommodated by agreement between the parties? Where there is no divergence, one need do nothing about it—but it is all a matter of consultation.

I suppose my question is this: is it proposed to make any alternative provision in relation to this particular framework? If not, or if, as I said before, it is just a matter of replacing it, then I can see very little problem there. Any attempt to reform or make alternative provision raises a question of timing, which goes back to a point raised earlier today about whether the sunset is capable of being met. It is not just a matter of identifying the instruments and deciding what might be done about them; you have to have time to consult the devolved Administrations and secure their agreement. If there is disagreement, there needs to be time to go through a process for the resolution of disputes, which is built into the frameworks. It is a carefully designed system.

If the Government are proposing to maintain the common frameworks—I understood from the noble Lord, Lord Callanan, quite some time ago that that is their intention, which I very much welcome—then it raises questions as to how exactly that process will be handled. I support the noble Baroness, Lady Brinton, on the points that she made, but this is a very specific issue. We will come back to the handling of common frameworks in later groups, but I raise it now because it is very much in point in relation to this specific regulation, which we will examine and see how this is going to be dealt with.

[Lord Fox (LD)]

My Lords, my noble friend Lady Brinton has done a fantastic job of explaining why these three amendments have been put forward. I was going to apologise to the noble Lord, Lord Davies of Brixton, for stealing his clothes, but I feel less guilty now—he was here just now but has popped out.

I welcome the Minister to her seat; I do not know what she has done to deserve this slot, but I see that the Lord Privy Seal is here to make sure that she turned up. I think that she was here earlier when the noble Lord, Lord Davies, brought up Amendment 45, which would explicitly exempt the financial services industry from the effects of the sunset. I would have thought that, at a time when the health service is under the stress that it is and is stretching every sinew to try to deal with the situation that it finds itself in, this would be a sector to qualify for exemption. I suggest to the Minister that she might like to go back to colleagues and accept an amendment to Amendment 45, which will no doubt come from somewhere, that exempts health service regulations from the sunset arrangement. As we have pointed out, it seems that the precedent has been set by the Government, so let us look at worthy causes for exemption. If the health service is not top of that list, I would like to know what is. That is my modest suggestion to help the Government out on that particular issue. It does not make sense to call into question the qualifications of the doctors we actually have when we are trying to get so many more. Perhaps that is a solution.

My noble friend, in speaking to Amendment 4, mentioned REACH and the UK version of chemicals regulation. I probably should not point it out, but the issue of the non-portability of data was brought up repeatedly by many of us on the Floor of your Lordships’ House and so it should not have come as a surprise. The fact that it is now costing substantially more to do what we were doing anyway also should not be a surprise. It is a lesson that perhaps has not been learned but could be learned.

Amendment 4 relates to EU-derived laws that ensure the safety and standards of food in the UK. Removing them would pose a serious threat to consumers and undermine protections that prevent loss of life, as my noble friend so clearly illustrated. That is why we have put this particular regulation in this group of amendments and suggested it should be exempted from the sunset.

On PPE, I think the performance of PPE speaks for itself.

--- Later in debate ---

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

My Lords, it is actually a great pleasure to join this debate on this important Bill. There are four of us on the Front Bench to listen to concerns expressed today—weighty Front-Benchers. I very much believe in the rights of this House and our work to review legislation, which I have done with many noble Lords over the last 10 years.

I will not repeat everything that my noble friend Lord Callanan has said. But I would say that the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens. We should not forget this, while, of course, maintaining necessary protections. That includes food safety, as the noble Lord, Lord Kerr of Kinlochard, explained so clearly. The noble Lord, Lord Whitty, rightly pointed out that food moves across frontiers, which need to be taken into account, of course, in any review.

Of course, all protections will not disappear. That is not what we are debating. As the noble Baroness said, the Government are here to improve the law of the land and we need to avoid error.

[Lord Fox (LD)]

I thank the Minister for giving way. She said that not all protections will fall away. Can she tell us which protections will fall away?

[Baroness Neville-Rolfe (Con)]

I said we would be maintaining the necessary protections. I was debating. People were saying that all protections would disappear; I wanted to make it clear that that was not the case. I am going to talk in a minute about the two or three areas raised by the noble Lord, Lord Fox.

The sunset clause, as we have said already, is not intended to restrict or influence decision-making. It will be for Ministers and devolved Governments to decide what action to take in their specific policy areas.

Even those of us who were remainers and who participated in discussions in the making of European regulations over many years were very frustrated by the bureaucracy and duplication of some regulations, and some of the compromises that we had to make were unwelcome. That was true for Governments over a long period; it was not only a matter of this Government’ concerns.

It is only right, in my view, that retained EU law is reviewed equally across all sectors of the economy and then, if necessary, reformed or preserved. To respond to one of the points made about carve-outs, we do not want to leave any area unreviewed. That includes financial services, but they are being reviewed in the context of another Bill that is going through the House at this time.

We think it is right to review all the areas, including health—

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

What I meant is that, when Bills are going through and noble Lords raise points, it is my experience, having done many Bills both as a civil servant and as a Minister, that these points are picked up and considered. Specific points were made, and I can certainly give an assurance that those points will be passed on to the departmental teams looking at the matters on food safety.

[Lord Fox (LD)]

My Lords, coming in on that point—I thank the noble Baroness, Lady Chapman, for starting the process—and bearing in mind that the number of regulations and laws we are discussing today with respect to Clause 1 is a very small percentage of the 4,700 that the Government have on their list, how does the Minister suggest we raise some of the others that we have not put before your Lordships’ House as amendments? I am happy to come up with some more amendments if that is the best way of doing it. If it is not the best way, perhaps a forum—we could call it “Parliament”—could discuss it.

[Baroness Neville-Rolfe (Con)]

Let me reflect further with the lead Minister on this matter and come back. The point that I was making is that the suggestion that nobody is listened to is not right. We are listening and we are concerned to make sure that necessary protections are extended. That is the intention.

--- Later in debate ---

[Lord Inglewood (Non-Afl)]

My Lords, when I came into this debate, I did not anticipate saying anything, but I wear two hats—one as a farmer and one as a lawyer. I will not put my lawyer’s hat on. I would like to comment on the remarks, which were entirely to the point, of the noble Lords, Lord Rooker and Lord Hannay.

I have been actively involved, in one way or another, in agricultural businesses since the 1970s. I remember the damage, which the noble Lord, Lord Rooker, described, to my livestock business—as an aside, it was subsequently destroyed in the hecatomb of foot and mouth. It goes to the bottom line of farmers’ businesses. As is well known, farmers are under the financial cosh because of all the changes being brought about on environmental payments and support systems, which are really hitting their incomes.

We are told by the Government that one of the desirable consequences of Brexit will be that British agriculture will be able to find markets elsewhere around the globe. In order to do that, there are two essentials. First, the other parties to these transactions must have long-term confidence in the quality and character of the product coming from this country. Secondly, they need to be sure that whatever rules are in place will remain, because these businesses depend on long-term supply agreements. The uncertainty hanging over the agricultural industry as a result of—if I may put it this way—clever-clever intellectual games by politicians and lawyers will damage their business. That is very unfair, not only for its own sake but because it will have a particular effect on those whose businesses are already being damaged by current government policies.

[Lord Fox (LD)]

My Lords, this has been a very long debate and I think there have been a lot of excellent speeches across the Committee. I was struck by the noble Lord, Lord Hacking, displaying his underlying humanity in expressing concern for the welfare of the Government Front Bench. I was also worried about which of them will receive the Defra buckets; I am hopeful that they will not receive the shovel of the noble Baroness, Lady Young, at the same time.

I shall speak to Amendment 25, which is in my name, and more generally on the issue of safety in the workplace, which is a subject we have yet to discuss today. The noble Lord, Lord Inglewood, talked about harm to business; this is about harm to people at work. My background for more than 30 years was in manufacturing industries, where the potential for harm to employees is very high and the role of employers and regulation in their supply chain is a very important part of making sure that nobody who goes to work comes home damaged that evening, because nobody should be harmed by the work they do.

Amendment 25 deals with asbestos and its safe handling. It would exclude the Control of Asbestos Regulations 2012 from the sunset clause. The regulations create the framework for the management of asbestos. These regulations form the framework for the management of asbestos, with provision ranging from building owners to those removing it or analysing samples which may contain asbestos fibres. Asbestos is a very serious issue in this country. Asbestos is the single greatest cause of work-related deaths in the UK. Asbestos-related diseases currently kill around 5,000 people a year in Great Britain. This is a really important regulation.

First, we should note that the British Occupational Hygiene Society, a leading scientific body in this field and the chartered society for worker health protection, has welcomed the findings of a review by the Health and Safety Executive of the current Control of Asbestos Regulations. The Health and Safety Executive’s review findings highlighted that the regulations were broadly effective and should be retained. In essence, they seem to do the job, although it of course suggested refinements to improve them. However, those bodies have raised the alarm—I am sure your Lordships will not be surprised—that these regulations get thrown into the mix by the Bill. What will happen at the end of this year? Will they be retained, modified or revoked? We need to understand the future of this really important piece of legislation.

Of course, other major regulations protecting health in the workplace are also in danger of falling off the statute book. In 2021-22, 123 workers were killed in work-related accidents, many others received life-changing accidents and many thousands died from work-related ill-health. Lots more needs to be done to ensure that working people, their families and their friends do not suffer the pain and bereavement that workplace accidents can cause.

Can the Government explain why they are proposing that these laws should be put in doubt? That is what this Bill does, in the same way that it does to all the other 4,700 regulations: it puts them into play. For any of these to be moved back, forgotten or revoked will push the country back decades; that is what the automatic expiry of these laws could create.

I am taking the Minister’s advice to make sure that we put on record the laws we are concerned about. I was not going to mention them, but I need to make sure that everybody knows we care about them because, as we know, this is the only forum we may get to talk about them. I shall talk about the so-called “six pack” of laws that forms the core of the country’s workplace safety regime—it was mentioned en passant by the noble Lord, Lord Hendy, when he spoke to the first group. For reference, the “six pack” are: the Management of Health and Safety at Work Regulations, the Manual Handling Operations Regulations, the display screen equipment regulations, the Workplace (Health, Safety, and Welfare) Regulations, the Provision and Use of Work Equipment Regulations and the Personal Protective Equipment at Work Regulations. All of them form the centrepiece of how businesses are regulated on safety.

The best businesses operate above the law; that is how you improve safety. From my own experience of working within these businesses, I know that safety awareness goes beyond these regulations. But this is a minimum standard: it is, almost literally, a safety net, and it has to be retained. There are no grounds for calling into question these laws going forward. As the British Occupational Hygiene Society chief executive, Kevin Bampton, puts it:

“Asbestos, noise, radiation, gas safety and indeed the whole mechanism for management of health in the workplace are listed as retained EU law to be repealed, restated or amended. Most of these standards have been pioneered in the UK. The UK fought the European Commission over decades to retain its unique and effective approach to Health and Safety Management and the REUL Bill is likely to throw this all away”.


That is why I proposed this amendment and why I want to bring workers’ safety to the fore.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am afraid that I will have to write to the noble Baroness on that; we do not have an answer at this stage. The consultation is a new initiative and will be launched soon.

Amendment 25 tabled by the noble Lord, Lord Fox, relates to the control of asbestos regulations. The noble Lord has provided a good example of an area where we regained the ability to regulate autonomously upon leaving the EU. Both the post-implementation review 2022 and the Work and Pensions Select Committee evidence suggest that further clarity around the categorisation of asbestos works, particularly regarding non-notifiable licenced work, would be beneficial, and the Health and Safety Executive has committed to considering how this could be developed further. HSE will undertake research and engage with stakeholders to consider an evidence base for the introduction of mandatory accreditation for asbestos surveyors. If this is taken forward, it will be as a result of a change to the CAR. Indeed—

[Lord Fox (LD)]

How does the Bill make that happen, when Clause 15 does not allow an increase in regulatory burden? The Bill does not facilitate what was just stated at the Dispatch Box: it cannot happen as a result of the Bill; indeed, the Bill stops it from happening.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I did not suggest that it was happening as a result of the Bill; it is happening anyway, and that will inform our decisions on further regulations.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am afraid that the Government’s position is that we simply do not accept that interpretation of the totality. Of the 4,000 pieces of retained EU law, we will be repealing a number of things. We are talking about not increasing the totality of the regulatory burden because some of that will be falling away and may just simply not be appropriate, not just on asbestos but on many other fronts as well.

[Lord Fox (LD)]

My Lords, I think that we have just introduced a whole other confusion. Clause 15 talks about not increasing the regulatory burden. Is the Minister now proposing that it is the total across all 4,700, which is what she just said? She has an opportunity to correct that and explain what not increasing the regulatory burden really means.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I think the best thing I can do is commit to giving the noble Lord a definition of “regulatory burden” in writing in due course.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

I thank the noble Lord for his intervention. Of course it would make all our lives easier, and they will be published in due course. I am not going to go further than that.

[Lord Fox (LD)]

This is new information. I have yet to hear from the Dispatch Box that this list will be published. I am delighted, but it would be very helpful if the noble Baroness could tell us when the list will be published.

[Baroness Bloomfield of Hinton Waldrist (Con)]

As the noble Lord will appreciate, it will be published when the work is complete. The work is ongoing within all departments—the noble Baroness looks shocked.

--- Later in debate ---

[Baroness Young of Old Scone (Lab)]

It is good to hear that the dashboard is nearly finished; it has been interesting watching it emerge. Your Lordships will be glad to hear that I have read every single environmental provision in the original documentation that is on that list.

I wonder if the Minister could tell us about what happens when the buckets are published—not the list but the buckets we are sorting into. I do not know if your Lordships have ever watched that telly programme, “Snog Marry Avoid?”—that shows how intellectual I am on a Friday night—but I kind of typify the buckets like that. The “avoid” one is for the ones that we are going to get rid of because nobody really wants them; the “marry” one is for the ones that we all think are wonderful and we are going to just give a straight run through; and the “snog” one is for the ones that we have to spend a bit of time on to find out whether they are really up to it or not. The quicker we can get the buckets published, the better. Will the buckets come out early enough for this Parliament to play a proper role in coming to some conclusions and helping the Government decide whether they have everything in the right bucket? There might be a little desirable treasure tucked away at the bottom of one of the wrong buckets that we all cherish.

[Lord Fox (LD)]

I am sorry to keep labouring this point, but the Minister keeps introducing new information. In referring to the dashboard, the Minister implied that the dashboard is the list. Nowhere in this legislation is the dashboard referred to. What is the legal status of the dashboard with respect to the sunset?

[Baroness Bloomfield of Hinton Waldrist (Con)]

The dashboard has all the retained EU law which is subject to the provisions of the Bill; it is a working document.

[Lord Fox (LD)]

It is not in the Bill.

[Baroness Randerson (LD)]

I cannot resist, I am afraid, intervening on this. I was in a Common Frameworks Scrutiny Committee meeting this week when it was indicated that the dashboard was just a tool and, as far as I understood it, did not have a legal status. While I am on my feet, can I ask where and in which bucket the legislation passed by the devolved Administrations is—which are, I believe, at a very much earlier stage in identifying the numbers for the dashboard?

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

The dashboard is ongoing work. It does not put things into buckets, but just includes all the EU laws that are subject to review. That will be published but it will certainly not have the buckets that I think the noble Baroness, Lady Young, is asking for.

[Lord Fox (LD)]

There is an outstanding point here. How is the dashboard connected to the Bill? There is no legal connection between the two, so how will the Government connect them? Currently, there is nothing that joins the dashboard to this law.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I do not accept the noble Lord’s point. The dashboard is just a list of retained EU law that will be subject to the provisions of the Bill but will not be part of the Bill.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

Not in terms of regulatory review, but those decisions will be taken within departments, and they will be sunsetted.

[Lord Fox (LD)]

My Lords, it seems that we will know at about one minute to midnight on 31 December, because it will not have been retained or amended; it will simply be revoked.

[Baroness Bloomfield of Hinton Waldrist (Con)]

With respect, it will be updated.

--- Later in debate ---

[Baroness Brinton (LD)]

To conclude, I feel that a rather large number of amendments from today will return in some form on Report, with possibly thousands more, as my noble friend Lord Fox outlined—

[Lord Fox (LD)]

It might be 1,000 fewer than we thought.

[Baroness Brinton (LD)]

Even if it is 1,000 fewer, a large number will return. On that basis, I withdraw Amendment 6.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

These are just four examples from the 424 pieces of Department for Transport-related EU legislation. I look forward to the Minister’s response and to the rest of the debate.

[Lord Fox (LD)]

My Lords, I support Amendments 7 to 9 and 24 in this group, signed by me and my noble friend Lady Randerson, who gave an excellent speech setting out very serious points on these issues.

During the last Committee session, a number of serious points were raised. Aside from the unmitigated chaos that sometimes emerged on the Government Front Bench, there were three major, standout learnings. I make no apology for retreading them slightly because they apply to this and some other groups of amendments that we will debate. The Minister himself described British law as a “mishmash” of UK and EU-derived laws that operate together. That point, made by many of your Lordships, is also our point: how can you change one part of the mishmash without it having an effect on everything else?

Many of us raised the element of case law—the legal interpretation of the Minister’s mishmash. Last week highlighted the vital point that even assimilated law, essentially the same as the EU-derived law it replaces, loses the case law that was built around it to date. The Government seem not to have found a way of porting legal interpretations to new, assimilated laws under this Bill. We await further details of the Government’s plans from the Minister, as promised.

As my noble friend said, we got a letter from the noble Baroness, Lady Bloomfield, some moments before we arrived here; some of us were already in here when we received it. It sheds some light on some of the other points that I was going to raise. The first is around the dashboard. There was complete confusion as to the status of this dashboard and when a definitive list of the retained EU law covered by this Bill would be published or available. We now have clarity. The dashboard

“presents an authoritative catalogue of retained EU law, not a comprehensive list of retained EU law.”

Can the Minister explain what an authoritative catalogue is in relation to a comprehensive list?

If, as the Minister describes it, it is “not a comprehensive list”, we are back to square one. When will we get a comprehensive list of all the laws covered by this Bill—and how long before the end of the period when these laws are automatically revoked? At the moment there seems to be no intention to publish an authoritative list, so we will never know some of the laws that are going to be revoked. We suggest that any such list should be tabled in Parliament, and there are a number of amendments coming up that will seek to achieve that change.

The third point that is also addressed in the letter is the status of Clause 15 and how regulatory burden is to be measured. Is it law by law, or will there be some net figure across a group of laws? As my noble friend pointed out, it was suggested from the Front Bench last week that it was going to be all of them, but now we hear that the laws are going to be divided up by SI, and each SI bundle will be allowed to have ups and downs as long as the net total is no more than the Government’s calculation of what a regulatory burden is.

It is still not clear to me how you calculate or rate a regulatory burden. How do you weigh a burden on two people versus a burden on 3,000 or 3 million? How do you rate one burden that saves lives against another that merely enforces a less life-saving regulation? The noble Lord, Lord Callanan, promised a letter about this issue, with worked examples. We look forward to that letter and to those workings. I do not know whether noble Lords remember maths exams where you had to show your workings, but this is definitely a situation where the Government have to show their workings.

There was one further point in the letter regarding the product safety review, which the noble Baroness, Lady Bloomfield, responded to. In a sense, safety is one of the issues in this group. The noble Baroness stated that that review would be published later this spring. That is welcome, although it is about a year later than we were expecting. Can the Minister confirm that that is the case and perhaps give us a clear timetable for how the product safety review might come to your Lordships’ House and then be put into effect, given the nature of the Bill, the regulatory burdens that we have just been talking about and the point that my noble friend Lady Randerson made?

Last week the noble Baroness, Lady Neville-Rolfe, said from the Front Bench:

“I would say that the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens”.—[Official Report, 23/2/23; col. 1821.]


I request to know—I believe there was a request last week as well—what guidance departments are receiving when it comes to regulatory burdens, how they will be calculated and what is expected of them.

As long those these three questions remain open, it is impossible for any Minister to stand at the Dispatch Box and say that the Government will maintain this or that law and this or that regulation. Quite obviously, it is not in the Government’s gift. All retained laws, even the assimilated ones, are open to interpretive change. In any case, we may never have a definitive list of all the laws that will be changed or revoked until it suddenly happens, and we do not yet know what constraints Clause 15 actually puts on the changes and amendments that will happen to those laws that are amended. This uncertainty is as true for this group as it was for the previous ones that we have debated so far.

Given the Minister’s excellent brief, I am not going to focus on specific areas, but I would like to talk about non-compliance. Speaking today, the Lord Privy Seal said, with regard to the Windsor Framework, that

“we will take further steps to avoid regulatory divergence in future”.

Very good—so what further steps to avoid regulatory divergence will there be in this regulation? This specifically points in the exact opposite direction to the direction signalled by the Lord Privy Seal not an hour ago. Could the Minister please explain how those two particular things are squared?

Various UK Ministers have committed to ensure that the operation of the Bill does not jeopardise international and environmental commitments—we will be talking about the environmental ones shortly—but, as a matter of law, these statements provide no real reassurance or protections. One area that I come back to is manufacturing in the automotive sector. I am on the executive of the All-Party Motor Group, so it is something I know something about.

The automotive industry is subject to a large number of sector-specific regulations, as well as many cross-sector business regulations. These are held across several government departments. The critical regulatory framework underpinning the industry and its huge economic contribution must not be put at risk—but that is what could happen, as my noble friend Lady Randerson alluded to. There needs to be a concerted process of detailed work to make sure that we do not accidentally end up in non-compliance, with our industry unable to access external markets because of deliberate or accidental regulatory divergence. That requires of course the Government and the industry to understand the scope, function and potential interdependency of all legislation in scope of the Bill. Can the Minister confirm that those talks will open up with that industry, and indeed other industries where this will become an important factor in whether these businesses can make things in this country and export them to the European Union?

Regulatory reform and development should occur in a managed way, with clearly defined road maps and priorities. Even a potential extension to June 2026 under the Bill is extremely challenging in any timescale to try to do that managed process. It needs proper regulatory reform on a scale that requires industry consultation and real scrutiny. So can the Minister confirm that this is understood and that proper consultation with industry will open up?

Once again, this group of amendments illustrates the complexity that the Bill brings to just one facet of our life and national livelihoods. Once again, it gives the lie to Mr Rees-Mogg’s declaration that this is a technical tidy-up. This is not tidy.

[Baroness Thornton (Lab)]

My Lords, I pay tribute to the noble Baroness, Lady Randerson, for her expertise in this area. I intend to speak not as an expert in transport at all but as somebody who goes on holiday and flies to places in Europe. I would like to know whether I am going to be able to claim compensation next year if my plane is delayed or my luggage is lost.

As all noble Lords will know, European Union regulation 261/2004 gives us rights to compensation, care, assistance and information in case of cancellation, involuntary denied boarding or delay. Has that continued as a right that we all have as air travellers? It is retained EU law and it continues—this bit is from Google—“for the foreseeable future”, which presumably in this case means October, December or whenever, to give passengers the same rights that they previously had.

Many noble Lords will remember those rights being introduced, because you can get a reasonable amount of money in compensation and it is fairly straightforward to claim it. This

“includes rights created by past EU case law (such as the right to compensation for delay created in the controversial Sturgeon case), which will continue to bind lower UK courts”.

I mention that because it raises the question which the two noble Lords who have already spoken asked: what happened to case law in this case?

I suppose one question is: what does the travel industry have to say about this? ABTA and Which? have certainly said that they are very concerned about it. What do we do when we are booking our holidays in 2024? Thousands of flights and millions of people are affected by this regulation and what happens to it. I know that the Minister will not be able to say whether this is in or out, because the Government are not telling us that. But it is worth saying, as ordinary consumers, that this is a matter of some concern to us.

--- Later in debate ---

[Baroness Ludford (LD)]

I could not possibly comment on any wriggle room that the Government are giving themselves. However, because there is some justice in what the noble Viscount has said, I still want an explanation on the record from the Minister of how it can be authoritative if it is not comprehensive. Indeed, it cannot be authoritative at the moment because we know that it is still in the process of being added to.

[Lord Fox (LD)]

When is a catalogue not a list?

[Baroness Ludford (LD)]

Yes, indeed, when is a catalogue not a list? It would be really helpful if the Government could explain that.

The noble Lord, Lord Deben, referred to how this is not a Conservative Bill because it is revolutionary. Yesterday, I found myself using the adjective “anarchic”, because the Bill is revolutionary and anarchic; we have an anarchist revolution from a Conservative Government, which is quite an interesting development. Another way of putting it is that it is a complete mess.

[Lord Fox (LD)]

Chaos.

[Baroness Ludford (LD)]

It is a chaotic mess. They are making it up as they go along. We understand that officials are not only still dabbling around desperately trying to find EU law but thinking about what to do with each instrument once they have found it—whether it should be junked, preserved or altered. That is an odd way of putting the cart before the horse. Why was the Bill ever submitted if there was no idea of what was going to happen to EU law? I will add to my adjectives: the Bill is higgledy-piggledy and all over the place.

Finally, I wanted to raise another point for the Minister to answer. I am grateful to George Peretz KC for raising this point. We will come back to Clause 1 in future groups, but it is entirely relevant here to raise it. The definition of EU-derived subordinate legislation that is to be sunsetted in Clause 1(4) is

“any domestic subordinate legislation so far as … it was made under section 2(2)”

or another provision of the

“European Communities Act 1972, or … it was made”

otherwise, in

“implementation of EU obligations”.

But one problem is that sometimes an SI was made partly under Section 2(2) of the ECA and partly on another legal basis. Are those all going to be, whether this list is authoritative or comprehensive, or when it is finally arrived at—

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

I hear the noble Lord, and I just want to clarify that I did speak to the specific amendments, because I was talking about transport and travel. I am particularly concerned about the impact that the Bill will have on the tourism and aviation industry, which has suffered a lot. I was talking about why we need to ensure continuity and stability in a market that has been affected. The problem is that without being very clear that we are going to keep that EU regulation to protect this industry, people cannot have confidence in booking their holidays for next year; some people book it even further in advance than that. That is why I am talking to the specifics here. However, we cannot ignore the fact that when we are talking about the specifics, we have had a letter literally presented to us that throws even more doubt on what the Government are doing. That is why we need to make that general point.

[Lord Fox (LD)]

Just to add to that, I say to the noble Lord that if he reads back through Hansard, he will see that my noble friend Lady Randerson dealt specifically with all four of those amendments in detail. I believe that that was not a very fair assessment of her contribution.

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

My Lords, I shall start on a slightly different note by sharing in the tributes that have been made to the noble Baroness, Lady Boothroyd. She was a real inspiration for young women like me at the time who were learning to contribute to public life in different ways.

Turning to this group, we have already made it clear during this Committee stage that the Bill is an enabling Bill. The measures in it, including the sunset, will provide for the UK and devolved Governments to review and then preserve, amend or revoke their retained EU law as they see fit. There is no inherent need for policy or legislative exclusions to the sunset in the Bill. To respond to my noble friend Lord Deben, I feel comfortable with what we are doing as a Conservative and as someone, as he knows, who understands regulation. We will be making our legislation more appropriate, updating it where necessary, improving the quality and getting away from gold-plating as appropriate—while maintaining, as I said, necessary protections.

[Baroness Neville-Rolfe (Con)]

A sunset gives us an idea of the timing of the measures. It has precedent elsewhere. We have brought forward the Bill, and I think it has great value, because we are now looking across the board at the 3,700 regulations that are the subject of this debate.

Just to finish my point to my noble friend Lord Deben, he will remember from his own time in Brussels, which was extensive, as was mine—we were sometimes there together—that some of the regulations that were made could be improved, with others preserved and extended. To respond to what has been said, each department is carrying out a review of its own regulations and will do so responsibly. The National Archives has come in, if you like, as a cross-check, as it retains the Government’s regulatory records. EU law, as we all know, goes back to the 1970s, so to bring the National Archives in and make sure that we look at its records to add to the list seems to me to have been a very sensible thing to do.

The noble Lord, Lord Collins, is right to say that it can be useful to look at examples and that we should move on to transport and try to clarify things there. As my noble friend Lord Kirkhope said, we should try to tackle specifics, so let me turn to Amendment 7, which I think is in the name of the noble Lord, Lord Clement-Jones, but was spoken to by the noble Baroness, Lady Randerson—no?

[Lord Fox (LD)]

It is in the name of my noble friend Lady Randerson.

[Baroness Neville-Rolfe (Con)]

Okay—I apologise.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

I thank the noble Baroness for raising that; I will have to take it up with the Department for Transport and get back to her.

On Amendment 24 in the name of the noble Lord, Lord Fox, the Road Vehicles (Approval) Regulations 2020 are part of the recently created GB type approval scheme. These regulations were made under Section 2(2) of the European Communities Act and therefore fall within the scope of the sunset as EU-derived subordinate legislation; they are essential to ensure that the GB type approval scheme can be enforced. The Department for Transport is committed to ensuring that our vehicle type approval scheme creates high standards of safety for vehicles and road users, is robust and will remain fit for purpose alongside future developments in road vehicles. We are developing an ambitious plan supported by evidence and engagement with our stakeholders to reform the way in which vehicles are regulated, creating an agile system that keeps pace with technological developments and innovation in a dynamic and rapidly evolving landscape.

I hope this provides some reassurance. We do recognise the importance of many of these regulations.

[Lord Fox (LD)]

I do not think the Minister was coming on to this point; if she was, I apologise. I asked a specific question about regulatory divergence. The Lord Privy Seal was clear that, going forward, the Government will put in place steps to avoid regulatory divergence with respect to the Windsor Framework. What steps are being put in place in this Bill to avoid regulatory divergence?

[Baroness Neville-Rolfe (Con)]

I thank the noble Lord. His was a general question; I was not going to seek to reply to it. Obviously, the extent of divergence that we might or might not have depends on different areas.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

The Minister raised the question of aviation. It is one of the most serious points here because it is about business confidence, consumer confidence and consumer protection. The problem I have, and which she can take back to the Department for Transport, is this. We had a consultation that started at the beginning of last year on changing levels of compensation. Ideas were thrown up in that about reducing it substantially for domestic aviation. We had a summary of the responses published in July last year, and nothing from the Department for Transport about what its true intentions are. That raises serious issues about what the Government’s intentions are around the EU regulations that protect us all when booking holidays abroad next year. I hope that the Minister can go back to the Department of Transport and ask to be told what the true intentions are. People need to know. The simple fact is that this Bill and these clauses create huge uncertainty for a very vital industry of this country.

[Lord Fox (LD)]

The presence here of the noble Lord, Lord Benyon, is a good indicator of what we will get in the next group: the appropriate department covering the appropriate amendments. These amendments were not put down yesterday. This is not a letter that you receive from a Minister—we gave warning of these amendments. A Minister from the relevant department, the Department for Transport, should and could have been here to answer the questions, instead of a Minister saying, “It’s not my department. I can’t answer”. I am pleased to welcome the noble Lord for the next group but perhaps, as a lesson going forward, we could have the right Ministers here.

[Baroness Andrews (Lab)]

We have been searching for some clue as to the criteria for what will be retained and what will be revoked, but we have not had any clarity—hence these hours of debate on safety of seat belts and so on. The Minister used the term “unnecessary” regulations and, in the famous letter, we have the line:

“For example, through removing unnecessary or unsuitable regulations or consolidating multiple regulations into one, it will be possible”,


and so on. Can we have a definition, in writing, of what the Government consider to be an unnecessary or unsuitable regulation? That may give us a clue as to the direction of travel on which regulations will be kept and which will be lost.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is offensive for democracy if it does go through.

[Lord Fox (LD)]

Very briefly, the reason we are welcoming the noble Lord, Lord Benyon, is not because we have grown fed up with the noble Lord, Lord Callanan; it is because he is the major shareholder in this Bill as regards the number of amendments. I hope that, as well as dealing with the 24 particular laws that are in this group, he will use his response to explain the process that his department is going to undergo in order to deal with the other 1,757 laws that are not included in this group. I think it will be very important if he is able to do that.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

I am very grateful to noble Lords for what has been a very thorough debate. Before getting into the meat of this, I thought I would just set the scene on why this legislation is important. I entirely agree with the point made by my noble friend Lord Inglewood, and also by somebody from the Benches opposite, about the need for good regulation. Business and the public respect proper, good regulation. They like it because it pushes out the bad actors; it focuses what the Government’s role is; and it gives that crucial word that my noble friend used, clarity, which is what we want to see.

The noble Baroness, Lady Bennett, talked about the economics of these issues. She is absolutely right. The Dasgupta review, the first piece of work into biodiversity, commissioned by a finance department, the Treasury, is something I find quoted at me when I go all around the world, to COPs and other environmental events. It is an extraordinary piece of work, because it shows how nature and biodiversity underpin our economy. We cannot have social stability or economic growth if we do not have a sound environmental and biodiverse nature: that is my starting point.

I was a Minister when we were in the EU. I may have voted differently from my noble friend in the referendum, but I remember regulations coming from Brussels over which we had no say. They were rubber-stamped. Occasionally the European Scrutiny Committee would suggest that they might be debated, and we might have a debate, but by and large most of the regulations—

--- Later in debate ---

[Lord Benyon (Con)]

That would be the extension point. We will assess them on a case-by-case basis and apply the extension where we need to, because we want to get this right.

[Lord Fox (LD)]

That assessment process is part of what I was hoping the Minister could shed some light on. It is an awful lot of assessment, so could he let us know what proportion of his department’s resources are now focused on that process of assessment? Is it 10%, 1%, 30%, 40% or something else? How can he be sure that this assessment gets scrutiny at the right level, both politically and operationally, to make sure that the right decisions are being made?

[Lord Benyon (Con)]

There is a core team of Defra civil servants co-ordinating this but every policy area is involved, so it is impossible to say precisely how many full-time equivalents are being apportioned to this on a weekly or monthly basis or how many will be over the next six months. However, I assure the noble Lord that this is an absolute priority for my department. We have separated the different areas of REUL to suit Ministers’ areas of responsibility; we are working through them and making sure that we rigorously examine whether we have them in the right frameworks for retaining, removing or any other aspect of this process.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Bloomfield of Hinton Waldrist (Con)]

I will have to send that sort of detail out in writing, along with the other letters we are going to be writing in response to other questions.

[Lord Fox (LD)]

I apologise for intervening. I think what I heard is that Clause 2 gives the Government the power to do this; I did not hear from the noble Baroness that the Government have any inclination to actually use that power. Will she explain what criteria the Government would use to actually apply the power that she has just revealed to the Committee?

--- Later in debate ---

In response to concern from the noble Baroness, Lady Anderson, about the choice of sunset date as June 2026—oh, I am not sure that was her.

[Lord Fox (LD)]

It was my noble friend Lady Randerson.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am sorry. I assure the noble Baroness, Lady Randerson, that there was no Machiavellian intent; rather, that date provides a ceiling for the presence of retained EU law on the UK’s statute book and gives adequate time to complete reform of the most ambitious nature in all areas. The 10th anniversary of the referendum vote served this purpose and offers a full-circle moment by which the UK can proudly proclaim that it has regained its sovereignty and has a fully independent domestic statute book—

[Lord Fox (LD)]

My Lords, I am unfamiliar with modern parlance. Could the Minister please define a “full-circle moment”?

[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—

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I follow the speech of the noble Lord, Lord Hodgson, which was incredibly helpful and really got to the heart of what this group of amendments seeks to do. I could support any one of them; they all try to do a similar thing in slightly different ways.

The amendment I have tabled, with the support of the noble Lord, Lord Fox, seeks to deal with perhaps the most dangerous element of the way the Government are approaching this task, in that it would prevent what the noble Lord, Lord Lisvane, described as the unannounced revocation of law. Things happening by accident is what we are increasingly concerned about, especially given the contribution of the noble and learned Lord, Lord Thomas, about the inadequacies of the way the Government may be—we hope to find out more about what they are doing—endeavouring to identify all the retained EU law.

There are many concerns about the Bill, which colleagues have described in detail in this debate, but there are three which stood out to me above some of the others when I first read the Bill. The first is the total lack of clarity about which laws are going to be revoked. The second is the regulatory cliff edge which means that all retained law will be revoked by default—no matter what the noble Lord, Lord Benyon, said—at the end of this year. The third is the complete lack of parliamentary accountability and consent in the process. This amendment addresses those three concerns. Clearly, other concerns are addressed by other amendments, which I also support.

Amendment 43 is as simple as we could craft it. It is based on common-sense principles that I believe noble Lords from all sides can agree: that if the Government want to revoke a law, they should be able to, but they should be able to tell Parliament which law it is that they want to remove. The removal of the law should be an active choice, not a passive default, and should require Parliament’s consent. There is nothing in this amendment that prevents the Government achieving their stated aim of dealing with all retained EU law. Our amendment requires simply that, if the Government wish to revoke a retained piece of EU law, they must proactively submit to Parliament a list of the specific items they wish to revoke. We are not stopping anything happening; we just want this to be done in a much safer way. Both Houses would then need to vote to approve that list. Law which is not specifically revoked is retained. That is it.

As was said at Second Reading, it is perfectly reasonable for the Government to review law that has been retained from our long period as a member of the European Union. We have no argument with this. We might not like what the Government want to do and the decisions that they might make, but we do not argue with the Government’s intention to examine this class of law—although it is just UK law. It is a bit like, I suppose, if the Labour Party were to win an election and say, “Do you know what? We did not like the way that last Government behaved. We’re going to sunset everything they did and hope for the best”. I should say that that will not be in our manifesto; I say it just to highlight the insanity of the way this Government are going about this.

The amendment does not frustrate the fundamental process. It would require the Government to follow a very reasonable, proportionate approach. It could be done in a timely way—I know time is important to the Minister, who wants this to be done quickly, and this could be done relatively quickly. Through this amendment, we would have a very simple but democratic mechanism for changing EU law. It would ensure that the process of reviewing retained law does not cause as much uncertainty as the Government’s regulatory cliff edge is generating today. It would mean that important decisions about workers’ rights, environmental standards and consumer protections cannot happen by default, or worse, by accident. It would restore Parliament’s proper, sovereign role.

I know some have objected to the processes that created these EU laws in the first place. The Minister is one of them, I think, and I respect that view. He has said that he regarded that process as distant and undemocratic. I do not agree but he is entitled to hold that view. However, it is really difficult to take those complaints seriously when the Government are choosing to support the nonsensical, undemocratic Executive power grab that this Bill, as currently drafted, represents. It is reckless.

Your Lordships’ House, or the Government, should amend the Bill with a simple, straightforward process that sits much better within our constitutional traditions. My amendment is a common-sense amendment that respects the sovereignty of this Parliament, and I commend it. However, I would be very happy to work with noble Lords from all sides—indeed, I look forward to it—on coming together should the Government choose not to take the recommendation embodied by this group of amendments. We would be neglectful if we allowed this Bill to proceed any further without the safeguards that the amendments in this group would provide.

[Lord Fox (LD)]

My Lords, I will speak to Amendments 42, 43 and 50 and the Clause 1 stand part debate, to which I have added my name.

What was clear from last week’s debate—we have alluded to it a number of times since then—is that the Government have absolutely no intention of providing a comprehensive list of retained EU law under the jurisdiction of this Bill. It is clear that the decisions taken by departments to retain, amend or revoke will be announced unilaterally via the dashboard. In the case of revoking, it is an act of either commission or omission—we will not know until we see it on the dashboard. However, if there is no list then we will not even know that something has been revoked. The former—the lack of a list—informs the latter: the fact that we will not know whether laws have been revoked or otherwise.

That is why this set of amendments, in the number of forms that we have seen, is so important. Through Amendment 32, we have heard from the noble and learned Lord, Lord Judge, my noble friend Lord Beith, the noble Lord, Lord Hodgson, and the noble Baroness, Lady Taylor, how the Government should set out in advance what they are seeking to do and give Parliament a chance to overrule the Executive and choose to retain specific named instruments, rather than waiting for the automatic disposal of these laws. The noble Lords, Lord Carlile and Lord Kirkhope, in Amendment 44, and the noble Lord, Lord Lisvane, in Amendment 141A, set out other ways of seeking to achieve a similar end. The point has been made that there are a number of ways of doing this.

It was a pleasure to hear the noble Baroness, Lady Chapman, set out Amendment 43, to which I have added my name; I was happy to do so because, in the amendment, she sets out very ably a process by which Parliament can retain its control over what is going on in this law. It would avoid the really important issue, to which I and other Peers have already alluded, of the unknown repeal of laws—that is, the accidental revocation or deliberate obfuscation of revocation that may happen as a result of this law. This is a well-drafted amendment that we would be very happy to see go forward.

Amendment 42, in my name and that of my noble friend Lady Ludford, complements what we have heard already about a process of consultation, about how these laws and regulations should be consulted on. It sets out four objectives for the consultation. The first is to consider whether the legislation under review is fit for purpose. It may not be. Ministers have talked about reindeer and whatnot. I am sure that we do not really need those but there cannot be many of the 4,000 or so laws that refer to reindeer. Let us assume that that the majority of them are addressing areas of concern to the greater public. Are they fit for purpose?

The second objective is to consider whether alternative regulation would achieve different or preferable goals. The third objective is to consider whether alternative regulation would provide greater benefits to consumers, workers, businesses, the environment, animal welfare, and public safety, to name a few. The fourth objective is to consider whether alternative regulation would provide greater legal certainty, and there is a great deal of legal uncertainty coming the way of this Bill if it stays as it is. I cannot see why this approach is unreasonable, and I am sure that the Minister will agree with me and adopt this straightaway.

Much has been said about sunsetting. Some speakers on the Government Benches have set out their view that without sunsetting, departments would somehow be dragging their heels. The Minister, the noble Baroness, Lady Neville-Rolfe, said last week to your Lordships that

“the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens.”—[Official Report, 23/2/15; col. 1820.]

Just before lunch, we heard the Minister, the noble Baroness, Lady Bloomfield, say that the sunset’s purpose is to “incentivise genuine reform”. These confirm that the purpose of the sunset is, in the Government’s view, to get civil servants to get on with it. That may be so, but what is it that are they getting on with, or that the Government would have them get on with? I suggest that they are injecting the largest single slug of legislative uncertainty into national life that any of us can remember. I say to my noble friend Lord Beith that I am afraid that I do not go back to the 1600s, when it last happened—

[Baroness Hayman of Ullock (Lab)]

Neither does the noble Lord, Lord Beith!

[Lord Fox (LD)]

I beg my noble friend’s pardon. Perhaps there is a reason why the departments might favour a slower, stepwise and consultative approach. We have also tabled an amendment that opposes Clause 1 standing part of the Bill. That is to give time to have that stepwise, considered and consultative approach, as many of us believe it should be. It removes the sunset altogether and it gives us time. Clearly, this element of the Bill, if not the others, was the product of the imagination of the Conservative MP for North East Somerset. This Bill is a legacy from his short-lived time in BEIS and, like almost everything produced in that thankfully brief period of administration, it delivers chaos and an unworkable Bill. The Government Front Bench might appreciate our help in removing this very difficult thing, for what will become a very difficult effort.

Finally in this group, my noble friend Lady Ludford and I have tabled Amendment 50, which seeks to deliver a super-affirmative process. I should point out that the dash comes between “super” and “affirmative”; it is the affirmation that is super, not the process. The process is for revoking EU-derived subordinate legislation or retained direct EU legislation. It was referred to by the noble Lord, Lord Lisvane, earlier. Once again, this is about parliamentary scrutiny. The amendment seeks to address the huge democratic shortcomings of this Bill, as outlined by the Delegated Powers and Regulatory Reform Committee. In the “Bypassing Parliament” section of its report, the committee observes:

“The Bill gives to Ministers (rather than Parliament) the power to decide, in relation to a considerable amount of REUL, what is to be … revoked and not replaced … revoked and replaced with something broadly similar … revoked and replaced with something very different, or … retained.”


That is, in a nutshell, what we are discussing. The committee also noted:

“Parliament will not know, at the time it grants the powers, what the Government intend to do with those powers.”


I will not dwell on this amendment to create the super-affirmative process, except to highlight a couple of features. The first, under proposed new subsection (2), is:

“For each instrument that is proposed to be revoked, a Minister of the Crown must lay before Parliament … a draft of the regulations; and … a document which explains the draft regulations.”


As the noble Lord, Lord Lisvane, said, there is a period of 30 days for this process.

--- Later in debate ---

[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?

--- Later in debate ---

[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.

--- Later in debate ---

On what this clause seeks to do, this amendment is so important because you do not know what you are doing—you do not know which bricks you are taking out. I implore the Government: the one industry that is extremely internationally successful in this country is our legal services industry. Please do not damage it by a failure to deal with these very general areas of law. A solution is provided for you; please take it. No ideological fanaticism should prevent a sensible approach to dealing with the genius of our common law.

[Lord Fox (LD)]

My Lords, I will speak to the two amendments in my name. It is late, and I will try to keep this as short as possible, first addressing Amendment 67. Amendment 62, in the names of my noble friend Lady Ludford and the noble Lord, Lord Anderson, focuses on much of the same ground as Amendment 67, and there has been a lot of wise discussion in that area. I support their points but do not need to echo them. However, I add that Clause 3 has the effect of sunsetting retained EU rights, powers, liabilities, et cetera. Unlike Clause 1, the Bill does not allow the Clause 3 deadline to be extended, which increases the likelihood of accidental deletions. Why is that extension not advanced for Clause 3?

I will focus on the proposal that Clause 5 should not stand part of the Bill. This is intended to probe the effect of abolishing the general principles of EU law—we briefly heard from the noble Lord, Lord Anderson, on that process, and the noble Baroness, Lady McIntosh, also alluded to this. I remind your Lordships that we have established that much EU law is, as the Minister described it, a “mishmash” of interwoven UK and EU-derived law. I think that that is what the noble Lord, Lord Anderson, called, rather more alarmingly, the “interpenetration” of law. Until now, the general principles of EU law have been used by lawyers, court and tribunals in the UK to interpret the EU part of that mishmash. These general principles include legal certainty, equal treatment, proportionality, non-retroactivity, effectiveness, equivalence and respect for fundamental rights, among others—like the noble Lord, Lord Anderson, I was unable to find a definitive list.

A further example of a general principle of EU law is the Marleasing principle. Looking at experienced lawyers opposite, I feel I am probably entering terrible territory by even mentioning this. But my understanding is that the application of this principle means that, if no national law at all has been passed to comply with a directive, it was held that having national legislation passed specifically in the name of the directive was not necessary. In any case, the Bill does away with this, so there may be some lasting effect. So this amendment probes the practical effect of abolishing direct-effect supremacy, and the general principles of EU law, taken together.

As we know, the UK regulations set out the letter of a law, the bare bones. However, in spite of the excellent work done in this Chamber to achieve clarity in those laws, there is often uncertainty—noble Lords will find that hard to believe—as to what the words actually mean.

Where the regulations give effect to a directive, such as the working time directive, the courts use the directive to help them understand the meaning of the regulations. Directives, unlike UK law, set out their purpose and their aims. Those aims help a court or tribunal to interpret the regulation. My understanding is that during the process of assimilation, new assimilated law loses contact with the EU directive and the EU-derived part of the law in that mishmash. It loses the basis for ongoing interpretation.

I can understand, post Brexit, why on the face of it the Government wish to sweep away all mention of EU law and EU directives—I get that. However, the meaning and understanding of the regulations, as we now have them—the Minister’s mishmash—has taken years and many different appeal cases, and much individual expense, to give the level of understanding of the law and the regulation that we now enjoy.

For example, litigation began in 2001 over whether workers were able to carry over their annual leave when they were too sick to take it. This was finally settled many cases later by Plumb in 2015—14 years later—with a carryover right. This is not unusual. Common law incrementally decides issues before a settled understanding emerges. The default of the Bill is to sweep away all this accrued understanding or at least put it in question and not provide any clear statement of what the law will be going forward.

If the Government do not want to change the settled meaning of UK law as it is interpreted today, my understanding is that they would need to audit all the conforming interpretations that have affected regulations from court decisions and translate those court decisions into the body of the new or replacement regulations. Is that what the Minister intends? If so, that intention should be inserted in the Bill. However, I suspect this is not the plan. In that case, even if all the regulations were preserved in assimilated law, the abolition of direct application, supremacy and general principles will result in the UK waking up on 1 January 2024 to a new year with large swathes of law that no lawyer will be able accurately to predict or advise on, causing great uncertainty—the sort of uncertainty that the noble and learned Lord, Lord Thomas, alluded to.

A colleague said to me as I was trying to explain this, “Surely no judge would want to throw out all that case law.” That is where we come to the interrelation of Clause 7. However, we will not know what the judges decide until a case has been brought. Let us not forget that there are thousands of laws here, which could mean thousands of potential tests. We will not know how the test will end until a judge rules on it—probably more than once, as experience shows.

Can the Minister explain why there is no plan to port the interpretation and case of the laws that we have within the mishmash into the assimilated law as we go forward? If there are plans, could he explain what they are?

[Lord Hacking (Lab)]

It is quite clear from what the noble Lord said to the Committee that he is in favour of Amendment 62. It seems to me that, as a result of what he has said, he must be opposed to Clause 3 standing part of the Bill. I wonder whether he could confirm that.

[Lord Fox (LD)]

Yes, absolutely. I made the point about Clause 3 missing out on the sunset laws. That is clearly part of my dissatisfaction. I also said that I supported, but did not echo, the wise words on Amendment 62. In the interests of brevity, I was trying not to cover everything.

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[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.

--- Later in debate ---

[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.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

My final question to my noble friend the Minister on this is: why should these powers that apply, under the Bill as currently drafted, to the Minister of the Crown not also be extended to Scottish and Welsh Ministers, and indeed devolved Ministers in the Northern Ireland Assembly where that is the case? I am struggling to understand why this power has been reserved exclusively in Clause 19 to a Minister of the Crown. Again, this goes to arguments that have been rehearsed on other groups, including very eloquently by the noble Baroness, Lady Humphreys, about why the Minister of the Crown is put on a pedestal over and above Ministers of the devolved Administrations. I believe it is a hostage to fortune that the Government do not have regard to the fact that these powers should be exercised equally by Ministers of those devolved Administrations. With those few remarks, I beg to move.

[Lord Fox (LD)]

My Lords, we are indebted to the noble Baroness, Lady McIntosh, for again bringing forward some detail and being a conduit for the important work that the Law Society of Scotland provides to a number of different Bill Committees on which I have found myself. I am not going to speak to the clause stand part debate or her first amendment, but I shall speak briefly on Amendment 134. She herself linked it to the first group that we spoke about today. In the words read out by the noble Baroness, Lady Bloomfield, in response to that group, I failed to recognise the description of the relationship that currently exists between the Government in Westminster and the devolved authorities when discussing this Bill. A picture appeared to be painted of some quite progressive and happy discussions, which is not my impression of what is actually going on. The noble Baroness’s Amendment 134 is another way of trying to link back to the devolved authorities. It is clear at the moment that the devolved authorities are very sore about how they are being treated by the Bill, so any measures that reach back to them are important. That is why we on these Benches particularly support Amendment 134.

[Baroness Chapman of Darlington (Lab)]

My Lords, I agree with what the noble Lord, Lord Fox, said about the helpfulness of the noble Baroness, Lady McIntosh, in tabling these amendments. It is curious that, in this clause, changes in technology and developments in scientific understanding are allowed to be taken account of but other factors are not. I would have thought, given the Windsor Framework, that we ought to be taking account of developments in the economies of our trading partners and their regulatory developments, because under that framework they are going to have an impact on what we are able to do in the UK and our approach to regulation and divergence. That is becoming increasingly clear, which is why we are seeing questions such as that asked by the noble Lord, Lord Moylan, of the noble Lord, Lord Caine, yesterday at Oral Questions. We do not yet have a sense that the Government are on top of this. It is as if they have done this Bill and then done something somewhere else, and no one has asked about how those two things will overlap.

When I first saw this clause, I thought, “This is a real problem because Ministers are going to get too much power to do things without accountability, rather like the discussions we have had before”, but actually even more questions are raised about the privileging of technology and scientific understanding ahead of anything else. It would be good to understand where that has come from and what Ministers had in mind when they included it in the Bill. Might they come to regret not making clear that this is not an exhaustive list, or something like that, as they have in other clauses? We are not clear what is meant by the phrase

“considers appropriate to take account of”,

so perhaps some examples might be in order.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I will move Amendment 134ZA and speak to Amendment 134B.

We have had pretty extensive debates over the past four days in Committee about how we need to improve the parliamentary involvement of both Houses on this framework, skeleton Bill. These two amendments shift the Committee’s attention to the existing scrutiny procedures which, while generally regarded as inadequate, do at least provide some level of scrutiny, and therefore hold the Government to account. However, even with these existing procedures, the Government are, as I shall explain, behaving increasingly casually and often ignoring existing statutory obligations.

Amendment 134B concerns impact assessments, which are required to be produced at the same time as the relevant regulation is published. Amendment 134ZA is concerned with post-implementation reviews. Together, they implement two of the recommendations made in the Secondary Legislation Scrutiny Committee’s report, Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill.

I will deal first with Amendment 134B, concerning impact assessments. This requires an impact assessment to be laid simultaneously—an important word—with the laying of each regulation. Impact assessments were introduced by the Small Business, Enterprise and Employment Act 2015—I think my noble friend Lady Neville-Rolfe was the Minister at the time. The impact assessments are to be produced whenever the impact of a particular regulation exceeds £5 million.

A good impact assessment should inform policy development and evolve with it. This enables both Houses of Parliament to see and evaluate the various methods for dealing with a particular policy issue that the Government have thought about and then explains why a particular selection was made to give the policy effect. No less important, publishing an impact assessment in a timely manner gives people outside Parliament who will be particularly affected by a proposal a chance to make their views known. This narrows the gap between the governors and the governed, which some people feel has grown in recent years. As people often say, law that has been consulted on is often better law and is nearly always better-accepted law, because people feel that they have a chance to make their views known.

I will give two examples of the sorts of issues that are affected by how the Government have been rather casual about impact assessments. The Misuse of Drugs (Amendment) (Revocation) (England, Wales and Scotland) Regulations 2022 may sound a dull title, but in this the Home Office was going to revoke the ability to license a chemical because it could also be used as a drug. The Home Office believed that there were only 65 firms that used it and would be affected by it. When they produced the impact assessment, they found that there were about 7,500. Therefore, the effect of the impact assessment was to make sure that those 7,500 firms were not deleteriously affected.

My noble friend the Minister will no doubt say that this shows that the system is working—to which I would reply that it is effective when the impact assessment is provided. Too often, impact assessments are produced too late to be effective or, in some cases, not produced at all. Let me give an example of each, briefly: first, on an impact assessment being too late to be effective.

The Committee will recall that a big decision was made about whether we should require care home staff to be compulsorily vaccinated. There was considerable concern about how many members of staff would resign as a result, either because they had religious beliefs against vaccination or because they were young women concerned about the impact on their fertility. When the regulation was published, no impact assessment was provided at all, so the SLSC asked the Minister to give evidence and explain why. The regulation having been published in late June, he came to see the committee in July and, after what I like to think was a fairly thorough grilling, he agreed and undertook to bring forward an impact assessment. He did, but he brought it forward in November. By then, everybody had been vaccinated or had not been, and the reason for producing the impact assessment was completely vitiated.

As an example of the latter—no impact assessment at all—a Minister from the Department for Transport told the SLSC, during an evidence session on the draft Motor Vehicles (Driving Licences) (Amendment) Regulations:

“It did not cause delay because the regulations went through without the impact assessment.”


In the committee’s report, titled Losing Impact: Why the Government’s Impact Assessment System is Failing Parliament and the Public, there are 20 or 30 examples. I have given just a couple to show the extent and prevalence of the problem.

Each department has a Minister responsible for making sure that SIs and their attached impact assessments are produced properly and to time. Each of those Ministers reports to a Minister at the centre. Until two or three weeks ago, my noble friend Lord Callanan was that luckless Minister trying to corral this herd of cats. He gave evidence to the committee and he said that he was keen to prioritise, and I do not doubt that at all, and that

“because we have no statutory means of enforcing the writ of impact assessments, we are relying on peer pressure to encourage and cajole departments to do it”.

I hope that my noble friends Lord Callanan and Lady Neville-Rolfe—she is going to reply—are pleased to see Amendment 134B riding to their rescue by inserting the words “at the same time” into the clause. It says that

“under this Act … laid before Parliament, the instrument, or draft instrument, must be accompanied at the same time by a regulatory impact assessment”;

in other words, no impact assessment, no regulation. By any measure, the level of parliamentary scrutiny of the outcome of the Bill is low. If the Government avoid producing IAs at the right moment, promptly, it will be another nail in the coffin of scrutiny. That was my amendment on impact assessments.

My Amendment 134ZA concerns post-implementation reviews—PIRs. I have long since lost count of the number of times I have sat in committees or in the Chamber and heard Members of your Lordships’ House say that post-legislative scrutiny is a really important way of holding the Government to account. It measures performance against promises; it provides a Bill’s institutional memory, as to what worked and what did not; and it enables those outside Parliament to understand the effect, deleterious or otherwise, of any particular regulation. In essence, PIRs are post-legislative scrutiny for regulations.

Sections 28 to 32 of the Small Business, Enterprise and Employment Act, to which I have already referred, require that any regulatory provision that passes the impact assessment test—the £5 million threshold—should be reviewed five years after commencement and every five years thereafter. Despite this being a statutory provision, it is something that we are very far from being able to rely on. We took evidence from Christopher Carr of the Better Regulation Executive. He suggested that between only 25% and 40% of regulations that required PIRs were getting them. In fairness to my noble friend, he wrote to say that he thought the figure was 72%, so I put that on the record.

However, with Clause 20(5) the Government are writing off the PIR system. It has gone. I strongly believe that this is a mistake. PIRs, properly conducted and publicised, play a very important role in monitoring, and so improving, government performance. If they play an important role in general, they do a great deal more in the particular circumstances of this Bill, because all parties, even the Government, recognise that we are entering terra incognita—unknown territory—with the provisions of the Bill. It is impossible to foretell how these decisions, inevitably taken quickly under the pressure of the 31 December deadline, will work out in practice. It must surely be sensible for the Government and Parliament to have in place a formal process to review the real-life results. This amendment simply restores the requirement for there to be a PIR, undertaken and published for each regulation, three years after the regulation comes into force.

To conclude, an age ago—actually a week ago, but it feels like an age ago—in my remarks on Amendment 32, I said that during my three years as chairman of the SLSC

“I have seen the sands of power and influence trickling through Parliament’s fingers”,—[Official Report, 2/3/23; col. 433.]

weakening Parliament’s relative power against the Executive, the Government. This is yet another example of mission creep on behalf of the Government. It is wrong in principle and in practice, and I hope the Government think again. I beg to move.

[Lord Fox (LD)]

My Lords, I thank the noble Lord, Lord Hodgson, for his very comprehensive review of two important amendments. It is a shame that we have got to the last sands of the Bill here. I am not going to add to what he has said, particularly on Amendment 134B, but I have a question that formed when I read the Bill in the first place: why is Clause 20(5) in the Bill; in other words, why did the Government actively choose to disapply this process? What made them think that they want to do this?

If I were a conspiracy theorist, I would say, with all the assurances that we have had that most things would stay the same and therefore not require the treatment that the noble Lord just described, this would not be an onerous task. However, if there was wide-scale revocation of regulations—including those that go beyond tagging the ears of fighting bulls, reindeer and all the others we are told about—that have an effect in the United Kingdom today, and if there is reformation, another word for change, a great deal of reviews would be required for those regulations to continue. Why was it decided to include Clause 20(5) in the legislation as drafted?

[Lord Collins of Highbury (Lab)]

My Lords, it is always a great pleasure to support the noble Lord, Lord Hodgson. It has been a frequent occurrence on my part because of his excellent work on the committee that he chaired; there have been some excellent reports that I think have done a great service to this House. I am not going to repeat the points he has made; he has done an excellent introduction. I just want to seek clarification from the Minister in relation to his response to the committee.

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[Baroness Chapman of Darlington (Lab)]

My Lords, there is not really much to add, so I will not say very much. I notice that the noble Lord, Lord Fox, has denied himself the opportunity to speak on this last group, which is—

[Lord Fox (LD)]

Surprising.

[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.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Andrews (Lab)]

I am grateful to the noble Lord. It is a measure of the speed with which the Bill has gone through every stage that these questions should be raised in the first place, but I leave it to the Government to reply.

I also wish to pick up the point made by the noble Lord, Lord Pearson, about whose fault it is that this process has been so slow. I was appalled by the comments of a previous leader of the House of Commons; I thought he traduced civil servants who cannot answer for themselves. In our committee, we have seen these officials working day and night, against the clock, to make some sense of a process which has simply not been sensible. To suggest that they have somehow been subversive, deliberately slow or incompetent is a real slur on the professionalism of officials and of the Civil Service. I hope that every Member of this House agrees with that.

My question to the Minister is this. I am grateful for what has been achieved, but I look at that list of 600 and am reminded of the 600 people going into the valley of death, bravely being sacrificed. There are some in this list that refer to common frameworks—for example, safety of food and emissions. There is no apparent reason why they are in there and I do not know how many there are. On behalf of our committee, I would like a list which tells us—

[Lord Fox (LD)]

We have a list; there are 240.

[Baroness Andrews (Lab)]

I am out of date already. That is excellent; I am very grateful and withdraw my question. I am delighted the Government have been so responsive.

My final point is on parliamentary control. I will certainly be supporting the amendment in the name of the noble and learned Lord, Lord Hope. It identifies two key risks. The Government have agreed in principle to a sifting mechanism, and it makes no sense for this batch of amendments to be left out of that sifting mechanism for the very reasons which the noble and learned Lord put and which I am now putting to the House: there are still elements of this list which require explanation, transparency and understanding. I would like the opportunity to see that process in place, as it affects these first regulations. This is a modest proposal and it is perfectly reasonable that the Government should do that.

There is also the much larger and more powerful question of parliamentary control. We have had very dramatic language from the two scrutiny committees of the House and we debated this at length in Committee. The case has been partially conceded, but by no means wholly. It once again reveals the limitations we face with secondary legislation and the way that primary legislation has been stripped out. It is essential that this batch goes before the sifting committee, in good faith, so that we can test the process and see whether it works and is fit for purpose for the more complex ones that will come later. I agree with the amendment.

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[Lord Lilley (Con)]

My Lords, very briefly, the case for what we are doing was put best by the noble Lord, Lord King, former Governor of the Bank of England. He said that there was a case for remaining in the EU to retain some influence, albeit small, over European legislation and there was a case for leaving to enable us to revise EU laws. There was no case for leaving and not using our opportunity to revise those laws.

A paradox arose in previous stages whereby those who, apparently with no problems at all, had allowed laws to be passed with little or no say by Parliament for 44 years became, overnight, welcome champions of full parliamentary process. Those on the pro-Brexit side of the campaign found themselves in the difficult position of arguing for rather streamlined and inadequate processes of parliamentary scrutiny, partly because there was a trade-off: there was a case for taking more time to maximise the thoroughness of scrutiny and a case for seeking speedy completion of the process to minimise uncertainty.

Amendment 2 gives us the opportunity for a degree of more thorough parliamentary scrutiny, which I think both sides welcome, but I would like an assurance from the Government that it will not prolong uncertainty for too long. The fewer the measures in the schedule, the more measures are outside it and could be liable to a process of reform or even removal over a longer period, therefore prolonging uncertainty. I would like to know before Wednesday why the some 2,000 laws that the Civil Service did not know existed have not been put in the schedule. If no one knew that they were there, what harm can there be in removing at least some of them?

More seriously, part of the process of this Bill is surely to enable us to transform legislation that we retain on the statute book into a more common-law process, more suited to Britain and our procedures. I would like some assurance that that will happen and an explanation of why, given that in most common-law countries there is little or no product legislation—they must be of merchandisable quality, safe and not harmful, but the law does not specify how or why they are made, in the way that the EU rules that we inherited do, largely for protectionist reasons—there is no removal of product legislation in this schedule. Surely it would be possible and bring us into line with much of the world.

[Lord Fox (LD)]

My Lords, this has been a very extensive debate. The noble Lord, Lord Jackson, mentioned churlishness in a different context; it would be very churlish for these Benches not to welcome the government amendments in this group and the fact that the Minister has co-signed Amendment 9 in my name and that of the noble Baroness, Lady Chapman.

We owe the Minister a debt of gratitude. All through the grinding Committee, he stuck poker-faced to the party line, but then it seems he sprang into action; he took the spirit of what he heard in your Lordships’ House and, using his not inconsiderable powers of persuasion on the Secretary of State, he ensured that the whole government position flipped by 180 degrees. We need to thank him for listening to your Lordships in Committee.

We heard some concern about what is in the new schedule, which we will debate on Wednesday. Some of us received at 2.40 pm some explanation as to why particular regulations were put in. Clearly, that was late—we should have had it a lot earlier—but Amendment 2 takes the place of our having to work through the night on that spreadsheet. Should the noble and learned Lord, Lord Hope, seek the opinion of the House, we on these Benches will support him. Part of the road can be travelled with this group, as long as the noble and learned Lord’s amendment is included.

[Baroness Chapman of Darlington (Lab)]

My Lords, it has been a bit of a saga getting to where we are, but it is incredibly welcome that Ministers have tabled the amendments before us today. This means that we do not need to debate my Amendment 6, which would have had a similar effect to the Government’s amendments. I also welcome the Government’s acceptance of my Amendment 9, which deletes Clause 2.

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[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.

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[Baroness Butler-Sloss (CB)]

I welcome that 500 of the regulations will be dealt with on Wednesday with a view to them being revoked, but what worries me is that there must be at least another 3,000. What will happen to them? At what point, if ever, will this House have an opportunity to comment on them?

[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.

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[Lord Hunt of Wirral (Con)]

My Lords, I shall say a brief word. Having taken over from my noble friend Lord Hodgson of Astley Abbotts of chair of the Secondary Legislation Scrutiny Committee, I would like to support his words and the words of my colleague, the noble Baroness, Lady Randerson, with regard to Amendments 73 and 74.

As we have heard, under the European Union (Withdrawal) Act 2018 the committee was charged with an additional function—the scrutiny of what are called proposed negative instruments laid under the new sifting mechanism. The committee had 10 days to report on those proposed instruments and, to the immense credit of the committee and of the talent of the staff concerned, it rose to that considerable challenge of meeting a demanding deadline under the leadership of my noble friend. But this was not an easy matter. In its report on the Bill, the committee warned that the task of sifting would be even more challenging under this Bill because of the potential significance and complexity of the instruments to be sifted.

During the debate in Committee, in which I participated in support of my noble friend, the Minister gave us some hope that he understood the persuasiveness of the case for extending the scrutiny period. Sadly, that was not to be, and the Government in their response to the committee’s report on the Bill said that they did not accept the need for the period to be extended. This is very disappointing indeed. As I said in Committee, the committee would not expect to use the full 15 days for every proposed negative instrument—far from it. What is being asked for is an extension of the deadline in recognition of the fact that the Bill has the potential for generating more complex and far-reaching policy changes through instruments subject to the sifting mechanism than the 2018 Act has.

I warned my noble friend the Minister that when he got back to the department, after his warm words in support of my noble friend and other noble Lords who participated, people would tell him that it was impossible, because it would set a terrible precedent—and I think that that is probably what happened. I would ask him just to think again, because I do not think that it sets a precedent at all; it is a unique occasion. If the Government are to demonstrate their support for effective parliamentary scrutiny—and, in particular, effective use of the sifting mechanism—I would urge him to think again and accept these amendments.

[Lord Fox (LD)]

My Lords, this has again been a lively debate. The Government’s concession on Amendment 1 ensures that the bulk of retained EU law will remain on the statute book as assimilated law at least for a while, but there are no moves in the Government’s amendments to change the Bill’s proposal for the Executive to sunset retained EU rights, powers and liabilities. Amendment 15, proposed by the noble Lord, Lord Anderson, and moved by the noble and learned Lord, Lord Hope, would ensure that it is Parliament rather than the Executive that will have the final say over whether those rights, powers and liabilities should be revoked at the end of the year. That is very important and that is why we will support that amendment, if it is put to the vote.

I turn to Amendment 76. Speaking in the Commons last week, after the Government had announced their plans in the press and, latterly, to the Commons, the Secretary of State said that

“the Bill provides business certainty and legal certainty”.

It does not provide either of those. Despite the U-turn on sunsetting, the Bill still retains those powers that will enable Ministers to amend retained EU law, now assimilated law, by statutory instrument when they deem it to be appropriate. As the Secretary of State also said last week:

“Most importantly, it gives us the space to focus on the reform programme”.—[Official Report, Commons, 11/5/23; col. 447.]


So all the thousands of pieces of legislation that are assimilated automatically by this amended Bill can be revoked or reformed with almost no opportunity for debate or amendment in this crucial legislation.

As we have heard, this represents a huge gathering of power to the Executive. Amendment 76 from the noble and learned Lord, Lord Hope, ensures that any SIs the Government propose to make using this power are referred to a Joint Committee of both Houses for scrutiny. If the Joint Committee finds that a significant change to the law is proposed, then the SI must be debated on the Floor of each House. This is what Parliament is here to do. There is also a provision to ensure that amendments to such SIs can be agreed by both Houses. We had a lively debate in three corners of the House about that. When the time comes, these Benches will support this amendment.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I agree with the entirety of Amendment 41A from the noble Lord, Lord Lucas, while agreeing with only half his reasoning. I entirely agree that, as we discussed at length in Committee, this is essentially impossible to calculate and creates a great deal of legal uncertainty. Where I disagree with him is that I would very much like to have seen non-regression clauses for the environment, public health, workers’ rights and a whole range of other things in the Bill.

Practically, what we are doing with the clause at the moment, if it is implemented, is creating a guaranteed regression of workers’ rights, food standards and environmental standards. If we do not have regulation of business, we will certainly see at least some cowboy businesses taking advantage of a reduction in regulation. That of course will not be in the interests of businesses that want to do the right thing on the environment, public health or workers’ rights.

I spent a great deal of time during the passage of the Environment Act and the Agriculture Act arguing for non-regression clauses. What the Government are currently giving us is a guaranteed regression clause, and that really should not be acceptable.

[Lord Fox (LD)]

My Lords, as the proposer of Amendment 45, which is also in the names of the noble Baroness, Lady Chapman, and the noble Lord, Lord Hacking, I feel a terrible weight resting on my shoulders as a result of the preface from the noble and learned Lord, Lord Hope, because this is the amendment that seeks to remove Clause 16 and I fear that I am not going to reach the billing that he gave us.

Over the course of this session, we have heard numerous arguments about the way in which the Bill more and more removes Parliament from the process of revocation and reform. I am not going to rehearse all those arguments again, because your Lordships have heard them both on Report and in Committee. Clause 16 is one of the key parts of the machinery in the Bill to govern how retained EU law can be reformed. There is an argument for removing the clause altogether, but I have bowed to the spirit of scrutiny rather than total oblivion and, as such, I do not intend to move the amendment.

As we have already heard in advance from the noble Lord, Lord Lucas, the provision that causes most concern is Clause 16(5), which mandates the nature of any reform of REUL to be deregulation—and deregulation only. The point the noble Lord made is about how we measure the sum of regulation. There was all sorts of debate in Committee. Is it the total of the changes across a group of amendments or a section of amendments? Is it each amendment by itself? These questions were never satisfactorily answered in Committee, so perhaps during Report the Minister can tell us how the amount of regulation will be measured. In other words, can one increase in regulation be balanced by two decreases in regulation through adjacent provisions, for example? We have not had answers to that.

Essentially, the spirit of the Bill is that there can be no increase in the “burden”—according to the Bill—caused by this reformed retained EU law. Clause 16(10) defines burden, with its paragraph (b) including “administrative inconvenience”, but one person’s administrative inconvenience is another’s life-saving safety measure. It depends on which direction you look at it. Clause 16(10)(d) includes

“an obstacle to efficiency, productivity or profitability”

as a burden. Again, what may seem an obstacle to one group may be existentially important to another.

As I said, I am not aiming to push this amendment to a vote. We are seeing amendments that are putting some safeguards in place. The noble Lord mentioned Amendment 76, which we anticipate. I am anticipating Amendment 48 in the name of the noble Lord, Lord Krebs, where we will talk about non-regression, and Amendment 50, which will come up shortly. These are other important pieces to put in place to try to draw the majority of the sting from Clause 16.

[Lord Hacking (Lab)]

Clause 16 has always been the most offensive clause in the Bill because it was giving excessive power to the Executive and no power to Parliament. But on the horse, if I may put it that way, of the amendments of the noble and learned Lord, Lord Hope, who really has provided enormous assistance to us during the passage of the Bill, and knowing therefore that the assimilated law to which we are now directed will also be subject to the provisions to which he has already succeeded—twice over now—in getting the acceptance of the House, we are protected. Because of our protection under the noble and learned Lord’s amendments, I am happy with this amendment not being moved. I joined the noble Lord, Lord Fox, and my noble friend Lady Chapman of Darlington in signing it but, on the basis only of the work that the noble and learned Lord, Lord Hope, has provided, I am prepared to join the noble Lord, Lord Fox, in not moving this amendment.

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[Lord Hendy (Lab)]

My Lords, I support Amendment 50, as well as Amendment 51, which bears my name. Amendment 51 is an elaboration of Amendment 50, so I will speak only to Amendment 50. I endorse everything that my noble friend Lord Collins has said. The object of Amendment 50 is, as it states in proposed new subsection (1)(a), to prevent the reduction of

“the level of protection for workers”.

As my noble friend said, this is not simply to protect workers but to protect good employers from being undercut by bad employers. It speaks of the level of protection for workers, in respect not just of employment rights but of health and safety at work rights.

In spite of the warm words of the Government and the promises of an employment Bill over the last three or four years, there is a suspicion that the Government will try to take advantage of Brexit to undermine and water down workers’ rights. That fear is not helped by the fact that, last week, on 10 May, as I mentioned earlier today, the Department for Business and Trade published its booklet, Smarter Regulation to Grow the Economy. This contains no less than four proposals to water down the Working Time Regulations and Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, which guarantees the right of workers to be consulted when collective redundancies are proposed.

The proposals to water down those rights are not contained in the Bill, as they could have been among the 928 proposals in the schedule. They are yet to come, in the form of statutory instruments that we have not seen, cannot examine and, when it comes to it—notwithstanding the excellent amendments from the noble and learned Lord, Lord Hope, earlier on—may have difficulty in seeking to amend. The purpose of Amendment 50, and indeed Amendment 51, is to ensure that workers’ rights are not watered down and that the obligations contained in Articles 387(2) and 399(5) of the trade and co-operation agreement, against regression, are honoured.

[Lord Fox (LD)]

My Lords, my name is on both of these amendments and I am happy to support them both. The proposers will be pleased to know that I do not intend to speak for long, because I have heard two excellent speeches that set out the reasons why supporting these amendments is important.

The noble Lord, Lord Hendy, talked about the danger of back-door watering down of legislation. It may not be this Government; once this is in statute, it could be any Government going forward. We do not necessarily have to distrust the people we see before us—I personally do not—but we do not know who in future will be able to use these measures.

If the Government want to water down workers’ conditions, that should be done through primary legislation, straight up, and negotiated and scrutinised properly. It should not be put through the backdoor, which could happen here. Throughout the process of the Bill, the noble Lord, Lord Callanan, has said over and over again that it is not the Government’s intention to water down workers’ rights. By supporting Amendment 50, the Government can make sure that they are absolutely as good as their word.

[Lord Hannan of Kingsclere (Con)]

My Lords, one of the worst objections that I had when I was a Member of the European Parliament was to the doctrine of the occupied field—the idea that you could never withdraw from a field in which you had once legislated. So the acquis communautaire can only ever grow; it could go only in in one direction. You could call it a ratchet, a one-way street or, as its supporters did, a bicycle that has to go forward, but the objection was fundamentally the same: it lifted certain issues out of the democratic field and made them immune to the political process.

For what it is worth, I have never had much time for the idea that our workers’ rights come from the EU—the EU did not travel back in time and pass Barbara Castle’s Equal Pay Act 1970 or Neville Chamberlain’s Holidays with Pay Act 1938—but, whatever view you take of it, these are precisely the sorts of issues that ought to be determined by our national democratic mechanisms and procedures. You can take the view, as the noble Lords, Lord Collins and Lord Hendy, did, that this is wonderful, helps employers and all the rest of it, which is a perfectly respectable position, or you can take the view that there comes a point where too many workers’ rights means fewer workers—but surely that is a debate that ought to be had here and in another place, not something that is effectively made invulnerable to the ballot box.

Retained EU Law (Revocation and Reform) Bill

Lord Fox Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, the amendment makes no reference to the devolved Administrations, and they have a considerable burden themselves to bear. I hope the Minister has been very careful to have regard to the interests of the devolved Administrations and will consider their position when he decides what to make of this amendment.

[Lord Fox (LD)]

My Lords, first I would like to associate myself with those last two comments and those of the noble Lord, Lord Carlile. This amendment should not in any way be conflated with the amendments that we have passed and, I hope, we will pass later today. Rising to speak to this amendment rather feels like gate-crashing someone else’s private argument. I beg your pardon, but I am going to continue.

In normal circumstances, if there was anyone I would send out to reduce bureaucracy, it would be the noble Baroness, Lady Noakes. Sadly, she seems to have broken from her norm with this amendment—perhaps she has been egged on or even corrupted by the co-signatories of this amendment. However, it does seem like it is one fight too many for the Government, and I understand that to some extent the Minister will be conceding on this. No doubt in the Government’s estimation this is perhaps a bone that can be thrown to one part of their own party without actually causing too many problems for the rest of the Bill—so good luck to the Minister on that one.

To what end will we have this list? I am a little curious as to what we will be listing. The noble Baroness, Lady Lawlor, raised this to some extent. I think it would be helpful for your Lordships if the Minister could confirm at what point in the process of this Bill retained EU law that is not revoked by the schedule becomes assimilated law. In other words, when will this happen? When in the process of this Bill do Clauses 4, 5 and 6 cause these laws to slough off the links they have with the ECJ and all those interpretations based on EU values, which noble Lords opposite object to? At what point are these laws rendered just as susceptible to British common law as any other law on the statute? It would be helpful to know the dates when those things will happen because, once that has happened, it seems there will no longer be any retained EU law: it will be assimilated law formerly known as retained EU law.

An intriguing vision visited me when I was pondering this. In the popular motion picture “Blade Runner”, the hero, Harrison Ford, is tasked with rooting out and eliminating replicants. As I am sure the noble Baroness, Lady Noakes, will remember from when she queued to enter the cinema, the replicants are essentially synthetic humans, indistinguishable from and which function as real humans—hence, they are rather hard to find. In a sense, the noble Baroness, Lady Noakes, is seeking to brand these laws in order that they do not become indistinguishable replicants once they enter the canon of British law. Of course, that is her point; she has to maintain a difference between these laws in order to continue to have a conflict. This is, of course, a conflict between and among her parliamentary colleagues rather than the rest of us.

If, instead of focusing on where these laws came from, they focused on what they do, the whole process would be more worth while. Some of this assimilated law will need revoking or reforming, but similarly so do swathes of laws that were directly made by this Parliament. The invaluable time spent on the process in the amendment tabled by the noble Baroness, Lady Noakes—her annual census of the replicants perhaps—would be better spent actually doing the sort of things we need to do to make regulations smarter, as was noted by noble Lords just now.

The noble Baroness, Lady Noakes, mentioned the Financial Services and Markets Bill. She may be dissatisfied with what is going on there, but that seems to be a model of how this process should go. If you take a sector, the job of Parliament is to assess all of the relevant laws pertinent to that particular sector. Some of them will need retaining; some of them will need revoking; some will need reforming, and there will be a need for new laws. At the end of it, Parliament will have gone through the whole process—irrespective of where those laws came from. It is not about where they came from; it is about what they do. This is unnecessary and it is essentially an irrelevant piece of legislation designed to create an argument within the party opposite.

It is the sort of clause that the noble Baroness, Lady Noakes, would normally come down on like a ton of bricks. It is a list that the noble Baroness, Lady Noakes, and her colleagues on this amendment can use to fuel a fight with other members of the Conservative Party and nothing more—so good luck with that.

[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.

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[Baroness Lawlor (Con)]

My Lords, I shall speak to Amendment 64 and the other amendments in this group. I am grateful to my noble friend the Minister for the amendment, which, as far as I can count, includes around 120 pieces of subordinate legislation. I welcome it on the grounds of principle and practice.

In practice, it is important to end the limbo between two legal systems for cost, compliance and otherwise. Moreover, there are other good reasons for doing so. The uncertainty of the EU’s codified arrangements, adopted or absorbed into our own laws, results in two overlapping systems that add cost and compliance burdens to all concerned and, I am afraid, often lack clarity. I hesitate to mention such arrangements in your Lordships’ House, given the presence of so many eminent members of the judiciary, but perhaps I might do so as an ordinary person who has had to have recourse to both systems of law.

In my experience, our law is clear; it gives people the power to seek a remedy where another party breaks the law to our disadvantage. Under the European system, of which I have also had experience, despite its code-based arrangements and its precautionary principle, which seeks to cover every eventuality, not only does it sometimes fail to do so but there is often no remedy available to people or small businesses if a wrong is done to them. There are just more codes, more compliance, more directives and more consultations with the lawyers to be paid for, and little in the end to be done other than put up with it and hope it will be righted in due course.

For this reason, I welcome the sentiment behind the noble Baronesses’ proposals in their carve-out amendments on the National Emission Ceilings Regulations and the Water Resources (Environmental Impact Assessment) Regulations. I am very sympathetic to their aims and have spoken on that in earlier debates. However, I am sceptical as to whether this is the best way of achieving such aims. I believe it is important to respect our own laws and have greater confidence that the principles on which they rest will reflect the interests of the people in whose name they are made. This country is second to none generally in its commitment to caring for its environment and, having heard noble Lords talk about chairing the Woodland Trust and so on, it is clear that there is huge voluntary support for protecting our environment. I believe our own laws will reflect that interest and we really must get on with giving them a chance.

In the Environment Act 2021 and its impact assessment of December 2019, the principle is clear that the polluter pays. Yes, precautions must be taken and problems righted at source, but the polluter pays principle means that instead of victims, others are having to suffer the consequences. Rather than the polluter being penalised, other people would have to suffer the consequences and pay the price, and I think that our system will be clear and fairer.

I am not sure, either, that the EU regulations covering emissions are necessarily effective. I draw on the historic case of the Volkswagen emissions scandal, when there were clear directives from 2008—updated in 2012—covering the emissions from cars. These were neglected or not enforced, and the knowledge that that was happening went right up to the Government. I am confident in our own system of law, and I think it does work.

I hate to disagree with such a distinguished civil servant as the noble Lord, Lord Wilson, but I am not going to take sides on the question of who is to blame for non-rapidity. I worked with the head of the German hospital division in the decade after the unification of Germany. The country was unified at the stroke of a pen, so it can be done. I only know about the health system there, not all the other areas such as the economy, where historic problems were inherited.

I welcome the commitment to revoke the legislation listed. I hope the noble Baronesses will put their trust in our own laws and give their energies to an aim which I share. It is important for a more effective system and for clarity and efficiency, so that people, businesses, charities and government departments know where they stand.

[Lord Fox (LD)]

My Lords, I dare say that the Conservative Party could use the experience the noble Baroness, Lady Lawlor, has in unifying Germany to perhaps unify itself.

This has been a rancorous debate and before I join in, I have a bit of housekeeping to do with the Minister. When he was still trying to push 5,000 laws over a cliff edge at the end of last year, on a number of occasions he used examples to illustrate the intrinsically trivial nature of all 5,000. One of the examples he used was legislation referring to reindeers and another was legislation referring to olive trees. I have studied the list, alongside the noble Lord, Lord Hacking, and I find no mention of reindeers or olive trees. Can I assume that those laws will remain on the statute book—or did they not in fact exist in the first place?

As we heard from my noble friends Lady Bakewell and Lady Brinton, we on these Benches really welcome the Government’s 180 degree U-turn. However, the breathless nature of that U-turn brought with it problems. We are debating those problems now because, in choosing not to eliminate 5,000 anonymous regulations—in essence, regulations that we did not need to know about—and in having to choose the regulations that will be revoked, the Government have had to publish this schedule very late and, even later, give us guidance on the decision-making process that went into putting those regulations on that list.

My noble friend Lady Brinton’s experience in trying to track a legacy of statutory instruments and regulations that did not get properly documented, in a way that was easy to follow, completely illustrates what the Civil Service was seeking to do 5,000 times—and many of those cases were even more complex, I dare say, than the case my noble friend Lady Brinton dealt with. In order to do that, the first thing the Civil Service had to do was to find those regulations and laws.

When the noble Lord, Lord Hamilton, talked about it being the Civil Service’s role to dig up these regulations, he was not far from the truth. Many of these regulations were located at the bottom of a salt mine in an archive—I am not joking—in the north-west of this country. They had to don their safety gear and go underground to seek out these regulations. That is the level of digging-out that had to happen in order to do this.

That is why it is extraordinarily unfair to then put the blame on people who do not have a voice and are not able to answer back. They are lucky to have the noble Lord, Lord Wilson, to stand up for them, but it is bullying behaviour to bully people who do not have a voice. To my namesake, the noble Baroness, Lady Fox, and others, I say that “the blob” is an entirely derogatory term. These are people who do a job, and to roll them up and call them a blob is deeply offensive and against those people’s welfare.

The noble and learned Lord, Lord Hope, set up exactly the problem we have here. I have hope in “Hope’s amendments”—that we can at least regain some control. I remind noble Lords that we also passed a non-regression amendment that should deal with some of these issues. It is, as the noble and learned Lord said, not an ideal situation.

I look forward to the Minister’s response on the specifics, but deep in the heart of this whole process is a problem. The problem is that the Government set out to do something in too short a time, when they did not even know how big the job was in the first place. When they found out, they drew back. Now, they are trying to blame other people. The Government have no one but themselves to blame for the mess over which they are now officiating.

[Baroness Chapman of Darlington (Lab)]

My Lords, the final debate on this Bill has highlighted just what a shambolic process this has been. We were glad to receive the explainer that the Government produced to accompany the new schedule, which is what we are supposed to be arguing about now in this group. But it was late, badly formatted and, as we have heard, not easily usable by some colleagues.

What we are experiencing this afternoon is the frustration that we have all felt with that element of the process and with this Bill since its introduction. At the climax of the process, we find ourselves just as confused and concerned as at the outset. There has not been adequate time to examine the contents of the schedule. Noble Lords have had to use this Report debate to try to get answers from Ministers on some of the specifics. This is exactly what we thought would happen. It is why we supported the amendment from the noble and learned Lord, Lord Hope, on Monday, and why we will support his Amendment 76. We have debated it already. It will be voted on immediately after this group. We need the safeguards that these amendments provide. Given the way in which this Bill has been handled, the Government need these safeguards too.

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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.

Retained EU Law (Revocation and Reform) Bill

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3rd reading
Monday 22nd May 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am afraid that a few amendments will not improve this Bill. It is a disastrous Bill, and not because of the laws that are being taken out this time—those few hundred do not seem significant. The big problem is the power grab by Ministers; that is really quite unnerving. I wonder what will happen when the Labour Party forms a Government. Will the Conservative Opposition go into trauma every time a Minister decides something?

When I voted for Brexit and taking back control, I did not mean taking back control for a small number of Ministers, who may or may not have their own ideas of what democracy is or what is appropriate for the people of Britain. The fact is that this is a bad Bill. It gives powers to Ministers that they ought never to have, and now, of course, it raises problems with the devolved authorities.

[Lord Fox (LD)]

My Lords, I congratulate the noble Baroness, Lady Noakes, on persuading the Minister—though I am not sure how much persuasion was required—to incorporate the spirit of her amendment, and I congratulate the Minister on making it more elegant. The noble Baroness, Lady Noakes, has invited me to like it; I will do my best, but I do not think I will manage that.

The most interesting thing about the amendment, in my view, is not what happens to the list but what is on the list. The nature of the Bill has been turned on its head. At one point, being on the list was essential to try to avoid being revoked. Now, being on the list makes a law a target to be revoked. So we are in a world that has revolved 180 degrees; we have passed through the looking-glass.

I have two questions for the Minister, and I ask the noble Baroness, Lady Noakes, to excuse me but I suspect it is the Minister who can answer them. First, to pick up on the point made by the noble and learned Lord, Lord Hope, which I was also going to make, is it the Minister’s understanding that no post-devolution legislation will now get put on to the list? We do not have legislative consent from the devolved authorities. They are apparently the authorities that would put post-devolution legislation on the list—if they had access to the database, although there is some question over whether they do. Can we assume that there will be no post-devolution legislation on the list?

Secondly, when will the list be fixed for these purposes? Is work still under way in all the departments of government in order to add new things to the dashboard, or is that it?

[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.

--- Later in debate ---

[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

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Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

[Viscount Stansgate (Lab)]

My Lords, I was not intending to speak so I shall be brief. This House is not elected—we know that—but that is not to say that it does not have a role, which it does. We heard a speech just a moment ago suggesting that ping-pong, the stage in which we are at the moment, is a game that should have just one exchange and leave it at that. There is no urgency about the time that it might take to ask the elected Chamber to think again. I am in favour of allowing the other place to think again. When you consider the wider history—we have just had reference made to it, quite rightly—we are going to allow a Bill of such magnitude to go through, shifting the balance of power between the Executive and the legislature in such a way, that people later on will look back and wonder why on earth the House did not express some degree of steadfastness in its view that the Government should think again. I shall vote for the amendment for that reason.

[Lord Fox (LD)]

My Lords, this has been a fascinating debate, and I will not prolong it much. On Motion B1, the noble Lord, Lord Anderson, and indeed the noble and learned Lord, Lord Hope, who is unable to be here today, deserve, as they have already received, great congratulations. The Minister also should be commended on his flexibility in assuring and reassuring us that we will get the information we need. I hope the Minister can either talk to my noble friend’s question as to the timing and mechanics of keeping the dashboard up to date or give us a detailed letter at some point to let us know how that would happen; that would be helpful.

The substantive debate is around Motion E1. Again, the noble Lord, Lord Anderson, outlined with great detail and clarity the mechanics of how his amendment would work. He made it very clear that the debate in the Commons on the previous amendment has been taken on board very thoroughly in the formulation of this further amendment.

The noble Lord, Lord Jackson, used the word “invalidate” twice, but if he looks at this amendment again he will find that it does not invalidate anything around the purpose and intent of the Bill. What it would do is bring Parliament back into the frame, which is what the majority of your Lordships have been talking about today. That is important. Clause 15 takes very wide powers to revoke and replace retained EU regulation, and as the noble Lord, Lord Anderson, said, the level of this regulation is not normal bits-and-pieces regulation but is essentially primary law. It is not appropriate for statutory instruments to be used to not just change but completely replace primary law without a substantial role for Parliament.

The Minister talked about parliamentary scrutiny being at an appropriate level. It is clear that your Lordships have set out that we do not consider the current level to be appropriate, which is why this amendment is very important. The Government see it as a slippery slope, and will use that argument, but clearly, the exceptional nature of this situation means that it is not so.

--- Later in debate ---

[Lord Fox (LD)]

My Lords, the debate on this amendment has been somewhat shorter. It would be easier to support the amendment from the noble Lord, Lord Krebs, were it not for the very explicit reference to regulatory burden. It is very clear in the Bill as it is now that the regulatory burden cannot increase. It is not clear how it is measured, whether as a particular regulation, a range of regulations or an entire statute book of regulations. But, in total, financial costs cannot go up; administrative inconvenience cannot go up; obstacles to trade or innovation cannot go up; obstacles to efficiency, productivity or profitability cannot go up; and a sanction that affects the carrying out of a lawful activity cannot go up.

It is in that context—the context of the Bill—that those of us who have heard the very reassuring words of the noble Lord, Lord Benyon, whom we all respect in this House, are caused to be suspicious. When the Government kick back so hard and so thoroughly on what I think the noble Lord, Lord Krebs, very rightly characterised as a modest amendment, we become more suspicious yet. The very fact that the Government are resisting this amendment is the reason we need it.

[Lord Deben (Con)]

My Lords, I wonder whether we could reflect on the House of Commons Select Committee’s report on the state of things at the moment in Defra. One of my worries is whether the Government are in a position, frankly, to understand just where we are on this. After all, it turns out from that very powerful Select Committee report that Defra actually transacted 14 million transactions manually because its systems do not actually cover what needs to be done. In those circumstances, I am not sure that any of us can be sure that the Government can assess where they are on these matters, because of the difficulties which they have with not funding satisfactorily the department which is supposed to deal with this, or any of its agencies such as the Environment Agency and Natural England. In those circumstances, I very much hope that the Minister will be kind enough to help me on this, in his usual charming way—

Retained EU Law (Revocation and Reform) Bill

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Consideration of Commons amendments
Tuesday 20th June 2023 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, I totally agree with the sentiments of the noble Baroness, Lady Meacher, my noble friend Lady Altmann, and the noble and learned Baroness, Lady Butler-Sloss. However, at the end of the day, the House of Commons is the elected House, and it has the right, as the elected House, to be wrong. I am afraid we have to accept that.

If we go on throwing this back, saying it should think again—and the House of Commons thinks again and comes up with yet another quite substantial majority in favour of the status quo—all we are doing is antagonising the other place unnecessarily. I cannot understand why the other place is giving away the powers that it is—in the way that it seems happy to let the Executive take over everything—but that is what it has decided to do. It is the elected House and we should live with it.

[Lord Fox (LD)]

My Lords, it is an honour to follow so many wise speeches. I am not going to attempt to lengthen this debate or trump that wisdom. In the various iterations of this discussion, we have benefited from having either the noble and learned Lord, Lord Hope, or the noble Lord, Lord Anderson; today, we have both of them in their places. Although I associate myself with my noble friend Lady Parminter’s comments regarding the amendment in the name of the noble Lord, Lord Krebs, I will speak to the amendment in the name of the noble and learned Lord, Lord Hope.

I want to make just two points. First, the objection in the Commons largely and often dwelt on the unprecedented nature of the amendment that was being brought to them by your Lordships last time. In this case, the noble and learned Lord, Lord Hope, has dealt with that issue. This is not an unprecedented situation. It speaks a little to the point made by the noble Lord, Lord Hamilton: it is not that we are bringing back the same amendment, rewritten in different ways. Your Lordships are being asked to re-present a different proposition to the one that was presented last time. The Leader of the House can shake his head but, if he reads the amendments, he will see that they are fundamentally different; I am sure that he knows that in his heart. We are asking your Lordships not to be stubborn, in the words of William Cash, but to offer the Commons a different alternative. Stubbornness is doing the same thing over and over again. This is not the same thing; it is markedly different.

The other point that I want to address, which no one else has addressed, is the one made by the Minister about how much time this would take. I accept that it may take time, but we have to look at what we are doing. First, we are doing important things that Parliament should retain an ambit over. Secondly, the things that we are dealing with are things that we have lived with for many years—indeed, decades. This is not a burning platform; it is stuff that already exists. We are co-existing with it. It is not something that has a blue light on and must be rushed down the road as fast as possible. The argument about time does not count, in my view.

It is clear from what I and my colleagues have said that we support this amendment and will certainly vote for it when the noble and learned Lord, Lord Hope, presses it.

Retained EU Law (Revocation and Reform) Bill

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Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, for the record, my advice was to not apply the Parliament Acts.

The substantive point of this debate is to look at the two amendments and, in particular, to listen and understand what the Minister has said in response to those amendments. I am grateful for the interpretations of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Krebs.

I turn first to the amendment in the name of the noble Lord, Lord Krebs. It is clear that your Lordships have repeatedly expressed their concern about potential regression, especially around environmental rules. We have heard fulsome and completely true undertakings from the noble Lords, Lord Callanan and Lord Benyon, and others from the Dispatch Box in seeking to allay your Lordships’ fears. However, not every ministry and every Secretary of State has been represented. We only have to look at what happened over the weekend, when a Government Minister from the Department for Levelling Up took aim at pollution rules with a view to development issues, to know that there are potential problems around this. My noble friend Lady Parminter talked about canaries in coalmines; that was a canary. We have to hope and trust that the undertakings made by the noble Lords, Lord Callanan and Lord Benyon, are applied right across His Majesty’s Government. It is clear that, after repeated discussions, we will not be voting on this today.

I turn to the amendment in the name of the noble and learned Lord, Lord Hope. Your Lordships should thank not just the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, but the noble Lords, Lord Hamilton and Lord Hodgson, who have identified the issue of parliamentary sovereignty and worked hard to try to resolve it. The Minister himself spoke about the number of times this has come back. If it had not come back this time, the Minister would not have given the undertaking he just gave from the Dispatch Box which satisfied the noble and learned Lord, Lord Hope. The fact that it satisfied the noble and learned Lord means that it satisfies me.

We have been through a long journey but I do not think this journey has been in any way frivolous. It has been worthwhile, and it has exacted, as the Minister set out, many changes to the Bill. Your Lordships need to be proud of the work they have done on this Bill.

[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.