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.

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[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—

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[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.

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[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.

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[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.

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[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—

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[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.