Retained EU Law

Lord Frost Excerpts

Thursday 18th November 2021 Lords Chamber

[Baroness Ludford]

To ask Her Majesty’s Government, further to the Statement by the Minister of State at the Cabinet Office (Lord Frost) on 16 September (HL Deb, col 1533), whether the review of the substantive content of retained European Union law has commenced; and what engagement they are planning to undertake with stakeholders, including those in Northern Ireland.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, I have now launched two reviews: one into the substance of retained EU law and one into its status in law. As regards the substantive review, departments have been asked to review and map the content of retained EU law that falls within their responsibility in order to be clear where the heaviest concentrations are and what the effect is. Departments are responsible for consulting stakeholders as appropriate in order to complete this task, including, of course, those in Northern Ireland.

[Baroness Ludford (LD)]

My Lords, the freezing of EU law in domestic law at the end of last year delivered legal certainty and stability, including for the position of Northern Ireland in relation to the EU single market. Will the Government take great care in unravelling that? How do they intend to implement any change to retained EU law? Will they commit to doing so through primary legislation only?

[Lord Frost (Con)]

My Lords, as regards Northern Ireland, we will of course proceed with an eye on stability and with predictability, as we have made clear on many occasions. On retained EU law more broadly, I noted in my Statement on 16 September that many such laws had not been discussed or agreed to in this Parliament in any way during the course of our EU membership and any amendments to those laws in future would need to reflect that reality.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, the Minister visited Northern Ireland yesterday and the day before and I understand that he met various people. Who were those stakeholders? Did he discuss this issue about the review of retained EU law? Did he also discuss the need, in his own words, to provide political stability and sustainability and the need to promote the benefits of the protocol through access to the EU single market and the UK internal market?

[Lord Frost (Con)]

My Lords, I indeed met a wide range of people in Northern Ireland yesterday, as I always try to. It is fair to say that I heard a lot of concerns about the way the protocol is being implemented. I heard some concerns about the democratic legitimacy of laws being imposed without consent and a great wish to do something about the current situation, which is what we are trying to do.

[Baroness Smith of Newnham (LD)]

My Lords, in answering my noble friend Lady Ludford, I am not sure that the Minister actually dealt with the question of whether any changes to retained law would be dealt with through primary legislation. Could he possibly try again? He suggested that the retained law had not necessarily been scrutinised by Parliament before and that any changes needed to reflect that reality. But surely, if we are taking back control, this House and the other place should be able to decide any changes to retained law. If so, how are the Government Whips going to find parliamentary time to do so?

[Lord Frost (Con)]

My Lords, the best way I can answer the question is to refer back to what I said on 16 September, when I referred to the democratic deficit issue of such law, and note that

“we will look at developing a tailored mechanism for accelerating the repeal or amendment of this retained EU law in a way which reflects the fact that, as I have made clear, laws agreed elsewhere have intrinsically less democratic legitimacy than laws initiated by the Government of this country.”—[Official Report, 16/9/21; col. 1533.]

There are various ways of achieving that end, and that is what we are working on.

[The Lord Speaker (Lord McFall of Alcluith)]

The noble Lord, Lord Lilley, is not present, so I call the noble Lord, Lord Dodds of Duncairn.

[Lord Dodds of Duncairn (DUP)]

My Lords, a bonfire of regulation or a selective shredding of EU retained law here in Great Britain will of course not apply to Northern Ireland because we still remain under EU control and EU laws and, as the Minister has said, with no democratic input whatever from anyone elected in Northern Ireland. How is Northern Ireland going to remain competitive or even on a level playing field if Britain diverges from it continuously, not just now but over years and decades to come, unless the protocol is changed?

[Lord Frost (Con)]

The noble Lord raises a very good question. It is indeed one of the difficulties with the protocol, as constructed, that EU law, in areas of the single market for goods, is imposed without any agreement by the institutions in Northern Ireland. That is a situation we are seeking to remedy in the negotiations I am currently conducting.

[Baroness Chapman of Darlington (Lab)]

My Lords, the Minister is being rather slippery in his responses to questions about retained EU law. The reason I say this is that we were promised—in the other place at least and, I am sure, in here too—that changes to retained EU law would be subject to primary legislation, and I can remember vividly Secretaries of State Raab, Barclay and Davis saying in terms at the Dispatch Box that this would be the case. Is the Minister now overriding that commitment?

[Lord Frost (Con)]

A number of things have happened since those commitments were made, including a general election, which we won with a clear set of policies. Our policy on this matter was as I set out on 16 September in my Statement, and we are considering the best way of delivering that policy.

[Lord Wallace of Saltaire (LD)]

I recall an earlier review of the balance of competences between the UK and the EU. Does the Minister recall that one of the most prolific submitters of evidence was the Scotch Whisky Association, of which he was then, I believe, director? All of them argued in favour of the advantages of the single market and shared regulation. Can he explain when, why and how he went through a damascene conversion from the evidence that was then submitted to his current extraordinary ideological position?

[Lord Frost (Con)]

My Lords, actually, I was not CEO of the Scotch Whisky Association at the time; I was an official, working on the very review the noble Lord refers to. The policy of the Government at the time was to remain in the European Union, and therefore it is not surprising that the review reached that conclusion.

[Baroness McIntosh of Pickering (Con)]

Will my noble friend ensure that any such review of retained EU legislation will be based on fact and science? He will recall that when the EU nitrates directive was adopted, the bar was set very high to prevent any recurrence of blue babies. There has been no blue baby for 400 years. Why then are we actually extending the nitrates provisions and making them even more stringent on our farmers, when we should be reducing the restrictions?

[Lord Frost (Con)]

My Lords, I am not familiar with the detail of the points my noble friend raises. The general point that the EU tends to legislate in a highly risk-averse way, which has economic consequences, is a good one, and we will obviously have it in mind as we take this review forward.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, one of the key tenets of Brexit was the removal of substantive undemocratic layers above sovereign lawmaking to enhance democratic accountability. But does the Minister recognise that this control over laws is not yet a real, live felt experience for voters? If so, does he appreciate that the retained EU law review is an opportunity for a democratic engagement with voters—not stakeholders—about what they believe should be prioritised in the legislation, and that it should not be left to committees?

[Lord Frost (Con)]

My Lords, the noble Baroness makes an extremely good point, and it is our wish to widen this debate as far as we can. One of the ways of doing it, we hope, will be the standing commission on deregulation, which I referred to in my Statement of 16 September, on which I hope to be able to update the House fairly shortly.

[Baroness Hoey (Non-Afl)]

My Lords, the Minister talks repeatedly about stability in Northern Ireland, which is very important. How can he possibly think there will be stability in the future if Northern Ireland, under all these retained laws, will not get the benefit of them? Will he say now whether he actually contemplates Northern Ireland remaining under the EU’s VAT rules, for example?

[Lord Frost (Con)]

My Lords, we set out our position in the Command Paper of 21 July on VAT and many other points. Having two different systems of lawmaking on important points within the United Kingdom is likely to build up tension and divergence and create difficulties over time. We are trying to design a system in these negotiations that will resolve that. I wish we were making a bit more progress, but we will keep trying.