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.

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[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?

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[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.

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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.

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[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.