Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[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I am out of date already.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.

[Lord Hamilton of Epsom (Con)]

My Lords, I shall speak to the amendments to which I have added my name, Amendments 2 and 4. Like my noble friend the Minister, we campaigned to leave the EU and we found that people decided to leave for a number of different reasons. One of those reasons was the resentment people felt that laws were being passed in Europe and delivered to us here, and we had no say on them whatever. I very much echo the words of my noble friend Lady Altmann.

We scrutinised this legislation. I was on an EU scrutiny committee and we wrote a number of reports, some of which were somewhat hostile about the legislation going through, and of course, they made absolutely no difference whatever. Therefore, if we had said to the people on the doorstep who were concerned that they had no say on much of the legislation coming on to our statute book, and over which Parliament had no say, “Well, we have a great plan: we are going to bypass Parliament almost completely”—

[Lord Kerr of Kinlochard (CB)]

I greatly enjoyed serving jointly with the noble Lord on the EU Select Committee. I point out that I was woken up three times on a Sunday evening by Delors asking me what the House of Lords European Union Select Committee had meant by a particular report on a particular piece of legislation. These reports were not a waste of time.

[Lord Hamilton of Epsom (Con)]

I slightly wonder what effect they had on the statute book. The legislation went through, nothing was amended, nothing was voted down—it could not be, under the EU accession treaty—so, if you do not achieve any change in the legislation, I am not sure you can claim any great credit for having done anything to it. So I do not really accept that. This is one of the problems, and people did find it very frustrating that they had no say over what EU legislation went through.

We have passed over the making of our legislation from an unelected Commission in the EU to the Executive. Who are the Executive? The Executive are made up of Ministers, and civil servants who, in my view, will have much more influence over what happens to this legislation than Ministers will. The Civil Service used to be regarded as a Rolls-Royce. I am not absolutely sure that definition would apply today; it looks rather like an old banger in need of a serious MOT. Let us face it, the Civil Service has not done well in trying to locate retained EU law. It was given endless opportunities to dig this stuff out, and what happened? Virtually nothing, until panic set in when this Bill was being debated.

It is the job of departments to know what legislation they have. This applies not only to EU law but to all law, and one has been given the impression over the past few months that they have absolutely no idea whatever what is on the statute book. Are these the right people to whom to pass all responsibility for EU law, without Parliament having any say? The answer is of course no. Parliament has to regain control of the legislative process. We have to make sure that Parliament decides what happens to this legislation, and that is why I am supporting Amendments 2 and 4 and subsequent amendments. I hope your Lordships will follow me through the Division Lobby.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Hamilton, in what he said. My only passing thought is to award my noble friend, for his intervention, the “name-dropping of the week” prize.

I am not enthusiastic about disagreeing with the Minister, the noble Lord, Lord Callanan, because I know from listening to him many times that he is a great supporter of the rights of your Lordships’ House to amend legislation, scrutinise what is before us and ensure that its powers are not somehow elided with those of the other place. However, this did bring me back to something that happened earlier in my life. For a period, I had one of those unusual characters, a senior clerk of great wisdom, in my barristers’ chambers. When I was a Member of the other place, he used to say to me as I left chambers, “You’re off to do your bit for democracy, are you?” That was a sort of pessimistic adieu as I left the office. When I became a Member of your Lordships’ House, he used to issue me with the optimistic adieu, “So you’re off to save democracy, are you?” That seems very apposite in relation to this debate. Indeed, what that great senior clerk, now sadly deceased, used to say to me really gives the answer to the extraordinary statement of the noble Lord, Lord Pearson, which we heard expressed by others in another debate just last week: that if the House of Commons decides to pass something, we should just roll over and take it as we lie in that supine position. That, of course, is not what we do in your Lordships’ House.

I ask the noble Lord, Lord Callanan, what is to be lost by accepting Amendment 2? Even if it is a bit of an ad maiorem argument, what particular attention has he paid to the fact that my very distinguished noble and learned friends Lord Hope, who has moved Amendment 2 today, and Lord Judge—who unfortunately is unwell; otherwise, he would have been in a similar position today—have been the great movers behind this attempt to introduce an element of parliamentary scrutiny that has been drafted with great critical faculty, as opposed to requiring us to look at a long list and treat it as though it had some special wisdom in itself? For those reasons, if my noble and learned friend asks for the opinion of this House on Amendment 2, I—and I am sure many others who take a perhaps legalistic, but proportionately legalistic, viewpoint—will support him in the Lobby.

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[Lord Hacking (Lab)]

My Lords, as the Minister will recognise, the noble Baroness, Lady McIntosh, has taken a close part in all our discussions throughout the Bill’s passage. She has been wholly consistent in arguing that we, or the country, should be given more time to fully process its contents. I hope my Front Bench will support her.

[Lord Hamilton of Epsom (Con)]

My Lords, I wish I could support my noble friend but I am afraid I cannot. She shows a total misunderstanding of the way in which bureaucratic minds work: if you extend a deadline, they do nothing until they are approaching it. All that happens is that you prolong the whole thing. Let us face it, we would not be considering the whole business of how many laws we should be retaining or binning if there had not been a sunset clause in the original drafting of the Bill. That concentrated minds in Whitehall and got them to start finding out how much legislation they have. I think some of them were quite surprised how much there was. I certainly cannot support this amendment.

[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?

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[Baroness Ludford (LD)]

My Lords, these are rather strange goings-on.

From these Benches, we support all the amendments in this group and I thank the noble and learned Lord, Lord Hope, for introducing them. If he chooses to test the opinion of this House, we will support him on Amendment 15 and, later, on Amendment 76.

Rather like group 5, which we will come to later and is about the powers of courts, this group is about trying to introduce some legal stability and certainty into what has been a bumpy process for this Bill. One could say that the Bill is no way to run a whelk-stall. As my noble friend Lord Fox said, we did get some explanations for the measures to be revoked in the schedule, but it was only just before—or just after—we started to debate Clause 1, and we only got the amendments to the Bill four days ago. It has been a bit of a rollercoaster, and any effort to introduce some certainty and predictability is to be welcomed.

I will speak exclusively to Amendment 15, which is very important. The Government may be retaining a lot more EU law, but they have insisted—indeed, the Minister keeps repeating that they are proud of this—on playing fast and loose with the way that retained EU law will be interpreted, such as ending the much misrepresented supremacy of EU law and the general principles which guide it, as well as EU rights, which this amendment is particularly about. It is quite a mystery as to how the retained law is to be interpreted.

No one, least of all the Government, knows what the impact of this abolition will have on legal certainty and continuity. Mr Jacob Rees-Mogg’s flippant response that “life is uncertain” was typically unhelpful. Can the Minister tell us what assessment the Government have made of the loss of any interpretive effects in the measures to be revoked? What effect will abolishing any interpretive effects in the revoked list have on laws which are retained and assimilated? Are the Government going to put interpretative effects back into SIs on amended, restated, retained and assimilated law, and how will that work? I hesitate to say that it could come back by the backdoor because, quite honestly, any retention could well be helpful to lawyers, the courts and so on. At the moment, we just do not know and are in considerable uncertainty about what the Government’s regulatory intentions are.

We know from Clause 16, which we will come to later, that the Government do not want to increase regulatory burdens. Some of us are a little wary of their definition of burden. According to the smarter regulation document of last week and the consultation on employment law, which I think came out on Friday, it includes the burden of recording working hours, which is odd, and calculating holiday pay. All of that could have a considerable impact on quite a lot of people.

The Government also want regulators to have a growth duty, to

“prioritise growth alongside … their core functions, such as protecting consumers or our natural environment”.

Indeed, they have cited Ofwat, Ofgem and Ofcom in this context. Some of us are a bit concerned that, particularly in the water industry, regulators have already given too much leeway to water companies’ growth, particularly in dividends and bosses’ pay—though perhaps not so much in sewage treatment capacity. There is quite a lot of concern about how all these regulatory intentions, which we are finding in statements and consultation documents, fit the professed commitment to maintain higher standards—I think the noble Lord, Lord Hendy, mentioned this earlier. But if higher standards are kept, particularly those which derive from EU law, how are they going to be interpreted? Some clarity from the Government would be very desirable this afternoon.

[Lord Hamilton of Epsom (Con)]

My Lords, I added my name to Amendments 15 and 76. Amendment 76 is in the name of the noble and learned Lord, Lord Hope. This, of course, is what puts meat on the bones of the whole business of restoring parliamentary sovereignty. It is very important that we get back the sovereignty of Parliament, and this is a great opportunity to do it.

There has been a steady erosion, as my noble friend Lord Hodgson has commented, in which statutory instruments are being used to a greater extent. This merely moves power from Parliament to the bureaucracy of this country. This is not a situation that any of us should welcome. If we want to restore our democracy, we should have a Joint Committee of both Houses to look at this legislation. It is very important that we concentrate on the future of this country and of our Parliament and start to restore some of its influence in the world today.

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[Baroness Fox of Buckley (Non-Afl)]

I am simply asking whether that is the solution to resolving the problems that we face in terms of our disentanglement from the European Union’s lawmaking.

[Lord Hamilton of Epsom (Con)]

Before the noble Baroness sits down, could she tell us, then, what Bill is the ideal Bill to bring an end to the constant use of statutory instruments?