Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

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

Lord Hamilton of Epsom Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I am delighted to support Motion E1 in the name of my noble friend Lord Anderson of Ipswich. At a time when there is increasing concern about the balance between Parliament and the Executive, I was rather surprised that the elected House rejected the idea of a Joint Committee to sift proposals, which might well be of disadvantage to their constituents. I was also surprised—perhaps “saddened” might be the better word—that the Government saw fit to take that view of the amendment in the Commons. This Motion, as my noble friend outlined, returns to the charge, but provides a Commons-only Select Committee—a sifting committee—rather than a Joint Committee.

There has been much talk about amendable SIs. It may be part of the Government’s case, or be seen by the Government as strengthening their case, to portray them as a whole new category of legislative procedure, where SIs become like mini-Bills, with all the complications that would ensue.

Much as I appreciate the noble Viscount’s wish that these would be broad, sunlit uplands, I do not think that this is the case in this instance. As far as I am aware, there are only two examples of statute providing for amendable SIs, via Section 1(2) of the Census Act 1920 and Section 27(3) of the Civil Contingencies Act 2004. SIs under either of those Acts are truly amendable because, if an amendment is approved, it becomes immediately effective.

What this Motion proposes is a little different; it is much closer to the super-affirmative procedure applied to legislative reform and regulatory reform orders, which does not seem to have frightened the horses in either House. There is a difference, yes, because in that super-affirmative procedure it is a matter of discretion as to whether the Minister accepts the advice of the sifting committee as to amendments that might be made. Commons Standing Orders 141 and 142 provide for that difference of opinion between the Minister and the sifting committee. The Motion before your Lordships would remove that ministerial discretion—but I find it hard to see how allowing the two Houses to take the decision would be such a dreadful thing, unless of course the Government see it as infringing upon the prerogative of the Executive, which would confirm the worst fears of many.

Whatever one’s views on the issue, it is very important to keep a sense of proportion. I cannot imagine the heavy weaponry that is implied by some in this Motion being deployed at all often. The Government, if they had any sense, would want to reach agreement with a sifting committee rather than seeking the adversarial outcome of a vote on the Floor of the House. In any event, what would be so wrong about accepting the view of an all-party committee which had identified in a government proposal hazards for business, the environment, civil liberties or any of the other fields in which Parliament is supposed to be the guardian of our citizens’ interests?

The Minister criticised the proposal on the basis that it was novel and untested. If one is going to improve the effectiveness of Parliament, there will from time to time be procedures that are novel. If it were not the case, we would be living the rest of our lives encased in a sort of parliamentary aspic. He also said that it was untested. In a parliamentary environment, you cannot have a novel procedure unless it is untested so, with great respect to the Minister, I would dismiss that criticism.

I conclude with a short look ahead, as the noble Lord, Lord Anderson, invited your Lordships to do, to the further stages that might ensue. There is an urban myth to the effect that two exchanges is the limit. I had some involvement with the Corporate Manslaughter and Corporate Homicide Bill in 2007, and on that occasion there were seven exchanges between the two Houses. Other Bills have demonstrated more than two exchanges on a number of occasions. On something that raises an issue of constitutional principle—and I borrow the description of the noble Lord, Lord Anderson, in speaking to his Motion—it would be right if the Commons were invited on several occasions to consider whether it had got this right after all.

[Lord Hamilton of Epsom (Con)]

I congratulate the noble Lord, Lord Anderson, as did the noble Baroness, Lady Ludford, on the work that he has put into this. As he knows, I supported the original amendment and put my name to it, and I congratulate him on all the work that he has done since. I totally sympathise with all the sentiments that everybody has expressed. It is most regrettable—and I say this as somebody who campaigned to leave the EU—that we took the very undemocratically imposed EU law given to both Houses of Parliament, which we could neither amend nor reject, and now we are replacing that by giving that power to the Executive through statutory instruments under the negative procedure, which means that we cannot amend them or do anything about them at all. I do not think that that was what people voted for when they voted to leave the EU; I think that they wanted to restore parliamentary sovereignty, and this does not do it.

Having said all that, we are a revising Chamber; we asked the Commons to think again; they have thought again. It is a matter of regret to me that I have not even persuaded my leave colleagues in this House to support the amendment, let alone in the other place, and I do not think it is our job to play endless ping-pong. The House of Commons is elected; it has spoken, and I think we should go along with what it says.

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[Baroness Jones of Moulsecoomb (GP)]

I support Motion C1. It is interesting, because all the constitutional arguments we heard earlier apply equally to this Motion. It gives Ministers the powers to delete or rewrite thousands of laws almost without any parliamentary scrutiny.

There is a vast ecosystem of about 1,600 environmental laws that are threatened by this Bill. These laws protect humans, animals and the broader environment. The Minister stood up and—forgive me for using this word —boasted about the Government’s credentials on environmental issues. I am sorry to inform him that, among the environmental lobby within the UK and worldwide, this Government have zero credibility on environmental issues. I am very happy to list them if necessary.

I accept that some of these laws are probably defunct or could be improved; that would be acceptable. What would be unacceptable is for the Government to weaken or delete laws that we need and that protect us and our environment. Although this is a constitutional issue, it is also about life. Forgive me if I am a bit emotional about this, but this is about the health of people and the planet. Without the planet, we do not exist. If we do not support our bees, we do not exist. If we do not think about our food standards, we will cease to exist. So it is incredibly important that this Motion is agreed to. We have to say to the Commons that it has got this dreadfully wrong.

[Lord Hamilton of Epsom (Con)]

My Lords, on Report I had a bit of a spat with the noble Lord, Lord Krebs, on this issue. It strikes me that it would be very odd if the Government wanted to put the health of their citizens at risk by not adopting these measures, so I am sure that they will. On top of that, not adhering to high food standards would completely undermine our exports to other countries. I do not quite see the point of this amendment and I will certainly vote against it.

COP 28

Lord Hamilton of Epsom Excerpts

Wednesday 17th May 2023 Lords Chamber

[Lord Callanan (Con)]

We are committed to phasing out fossil fuels and I outlined in a previous answer the progress we are making. But it is a transition: we have a requirement for fossil fuels during that transition period and have had exchanges about that before. I do not know the details of the declaration that the noble Baroness refers to, but I will certainly have a look at it.

[Lord Hamilton of Epsom (Con)]

My noble friend made reference to our co-operation with other countries. Do they include China and India, which continue to build coal-fired power stations and make the attainment of net zero pretty unlikely?

[Lord Callanan (Con)]

My noble friend makes an important point. We continue to liaise with and talk to those countries, as we do many others. The situation is complicated. While it is true that China continues to expand its coal-fired generation, it has also massively increased use of renewables. In fact, it has the largest offshore wind sector in the world now; it took over our lead on that.

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Lord Wilson of Dinton (CB)]

My Lords, as a former head of the Civil Service, I feel bound to say that the criticisms of the Civil Service which have been made are ill-judged and grossly unfair. The Civil Service will ride out these criticisms—it has a thick skin, it will put its head down and go on doing its duty—but there is a serious worry underneath this debate.

It took us 10, 15 or 20 years to join the Common Market/European Union. It was only reaching the Home Office when I became Permanent Secretary in 1994. It will take us 10, 15 or 20 years to leave the European Union. Brexit, whatever your views on it, was undertaken without a proper appraisal of what it entailed—the work and the consequences—and we are living with it with this Bill. It is the most terrible experiment with government and an enormous learning experience for the Government. It will not be done quickly, and what will slow it down is not the Civil Service but the huge volume of work involved in it.

We are dealing with 50 years of complex, detailed regulation that has been put together in consultation with vested interests and public authorities and reaches into every household in the country. I tell Ministers on the Front Bench that there are things buried in these 500-and-whatever-it-is regulations that will embarrass them, will have unforeseen consequences and will go wrong. We are in an impossible position. We cannot look at this schedule in the detail required. It is not the fault of the Civil Service but the responsibility of the Government. The consequences of it will be severe and will take years. History will write this up. It will read these debates and think about the moral involved, which is, “Do the work before you implement the policy”. I will sit down now, but I wanted to defend the Civil Service. It is not its fault that this is such a terrible and deeply worrying mess.

[Lord Hamilton of Epsom (Con)]

My Lords, I support my noble friend Lady Foster and I do not totally agree with the noble Lord, Lord Wilson. My right honourable friend Jacob Rees-Mogg made it clear that he wanted all EU legislation dug out of departments and revealed by the Civil Service. Very little happened. I thought it was the job of the Civil Service to obey the instructions of Ministers.

[Lord Reid of Cardowan (Lab)]

I commend to those on the other side who share the view of the noble Lord, Lord Hamilton, an article this morning by the Conservative Peer, the noble Lord, Lord Finkelstein. It is in the Times and it is worth reading. It is about the tendency to set impossible demands and then to blame the failure to achieve them on the blob. It is the finest article I have read on this tendency and, in terms of education, I think it would be well worth some people on the other side reading their noble colleague’s comments.

All I can say, and I held office in nine departments of state, is that there were occasions when I would have liked to ask civil servants to give me a plan to double expenditure on the Armed Forces, to build 500,000 houses, to make everyone happy. Noble Lords will not be surprised to know that I did not ask them so to do, not because I thought they were a blob and would resist it but because I knew it was an impossible demand I was placing on them. In all nine departments, when I made some challenging demands, the civil servants responded—but I would not ask them to do something that was impossible, or to take a course of action for which the work had not been done in advance, or where I disregarded the consequentials, the downstream incidentals, that I had not thought about. The Government did all three of those things with Brexit, and they are now paying the price.

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?

Climate Change: Net Zero Strategy

Lord Hamilton of Epsom Excerpts

Wednesday 3rd May 2023 Lords Chamber

[Lord Hamilton of Epsom (Con)]

Does my noble friend accept that the chances of reaching global net zero are almost nil as long as the Chinese and Indians go on building coal-fired power stations?

[Lord Callanan (Con)]

I understand the point my noble friend is making. Of course, we continue to engage with China and India about the folly of building new coal-fired power stations. Incidentally, picking up my last example, because the German Government accepted the advice of the Greens and phased out their nuclear power programme, last year 30% of German electricity was met by coal-fired generation. In the UK, it was less than 2% and next year it will be zero.

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendments 104, 115, 116, 122, 124 and 125 in my name, and in support of Amendment 141 in the name of the noble and learned Lord, Lord Hope. Amendment 104 again substitutes the end of 31 December 2028 in place of 2023, as the statutory deadline, to enable more means for the Government or any of the devolved Administrations to consult, to analyse the results of such a consultation and to prepare legislation. This would also enable Parliament or the devolved legislatures to consider and pass the legislation. By the time the Bill receives Royal Assent, there simply would not be enough time, given the parliamentary recesses in place, to conclude such an exercise. So, in my humble submission, the deadline needs to be extended to allow time for proper legislative practice to be completed.

Amendment 115—

[Lord Hamilton of Epsom (Con)]

Before my noble friend proceeds to the next amendment, she has gone on about the uncertainty created by revising this legislation, but surely the longer the period you create to consider all of that, the more uncertainty you cause.

[Baroness McIntosh of Pickering (Con)]

I would agree with my noble friend if we knew which bits of REUL were being repealed, which were being revoked and which were being reformed—but, as we speak, we do not. As we know, many devolved measures are simply not on the dashboard at the moment, which makes that time even more unacceptable.

Amendment 115 requires a “relevant national authority” or “Minister of the Crown” to consult those who may be affected by regulations under Clause 15(2) before making them. All relevant national authorities will be required to publish the results of this consultation. The idea is to oblige the Minister of the Crown to consult the devolved Administrations before making regulations that concern them.

Amendment 116 makes similar provisions under Clause 15(3), so the same comments apply there. Amendment 122 also extends the statutory deadline from 23 June 2026 to a similar deadline of 31 December 2028, allowing more time than permitted under the present deadline to ensure that all legislation which will be encapsulated will be covered through a consultation, and to allow time for consulting and analysing the results of such a provision. Amendments 124 and 125 are simply consequential to that.

I do not know if the noble Baroness, Lady Meacher, will speak to Amendment 141 in the name of the noble and learned Lord, Lord Hope, but I conclude by saying that I support his amendment, to which the noble Baroness, Lady Humphreys, has added her name. I welcome the fact that the

“amendment modifies the powers conferred on Ministers of the Crown when making regulations in devolved areas under this Schedule so that the power may only be exercised with the consent of the Scottish or Welsh Ministers.”

I hope that my noble friend the Minister, when summing up, will look favourably on those amendments in this group.

[Baroness Brinton (LD)]

My Lords, it is an honour to follow the noble Baroness, Lady Meacher; I agree with everything she said. I also very much agree with the previous speakers, including my noble friend Lady Ludford.

I will make a point in response to the points made by the noble Lord, Lord Hamilton, when he questioned the noble Baroness, Lady McIntosh, on whether her amendments would delay the process and whether that would be a problem. The fundamental problem we have is set out very clearly by the Delegated Powers and Regulatory Reform Committee in paragraph 35 of its 25th report, which quotes from the RDEUL memorandum:

“Overall, the change in status will make it possible to amend or repeal a greater amount of RDEUL using secondary legislation, which will enhance the ability for amending RDEUL more quickly without the need for primary legislation. This is a more proportionate status for RDEUL, as when made it was not subject to the same degree of UK Parliamentary scrutiny as an Act of Parliament or even domestic secondary legislation.”


However, the committee goes on to say that

“RDEUL has a special status because much of it is of considerable significance in policy terms.”

Once again, we have spent most of the last three Committee days discussing issues relating to policy and asking for clarification on when that will be nailed down and understood and when Parliament can look at it before final decisions about the Bill are made.

I return to the question I asked on the first day of Committee: at what point will the dashboard be frozen? After it is frozen, how long will it be before it comes into law? Will it be 31 July, October or 30 December? How do Ministers respond to the issue that Parliament will have to give up a significant role in key policy terms, which is normally part of primary legislation, and which would be moved into secondary legislation under this clause? At the moment, we still do not have an answer as to when Parliament will be able to look at the detail of the dashboard to make decisions on it.

[Lord Hamilton of Epsom (Con)]

Before the noble Baroness finishes her remarks, I would be grateful if she could answer my question: if you delay the implementation of considering this legislation, do you not create greater uncertainty?

[Baroness Brinton (LD)]

It is fairly straightforward. Those of us with extreme concerns about the Bill do not want a Bill passed where time after time people, especially the wider public, realise that regulations have been sunsetted without their understanding of the consequences—and without our own Parliament’s understanding of the consequences. Frankly, that is the one delay that really should be put in place, because we do not know what is going to happen.

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[Lord Krebs (CB)]

My Lords, I will speak to Amendments 129 and 131 in this group in my name and those of the noble Lord, Lord Rooker, and my noble friend Lady Boycott, who, I am sorry to say, are not in their places. These two amendments are about transparency, accountability, and scrutiny, so, in a way, they follow neatly from some of the points the noble Baroness, Lady Fox, was making a few moments ago.

Transparency, accountability and scrutiny are surely not contentious concepts so I hope that the Government would agree and therefore sign up to these amendments. Amendment 129, very simply, would require the Government to seek advice from the Food Standards Agency and Food Standards Scotland as to whether any proposed changes to the regulations will reduce food safety or other consumer protections in relation to food.

Noble Lords will recall that the Food Standards Agency is the non-ministerial department in England, Wales and Northern Ireland with responsibility for food safety and consumer protection in relation to food. It would surely be bizarre beyond belief not to consult the relevant department and its Scottish counterpart before making any changes to retained EU law. The importance of this underlined by referring back to a previous debate in Committee. I quote from Hansard. I said on 23 February that

“I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:

‘In the FSA, we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health’.”


I then said:

“According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.”—[Official Report, 23/2/23; col. 1832.]


I will now quote the Minister’s reply because she did indeed deny it by saying:

“Let me assure noble Lords that any decision on REUL reform will not come at the expense of our high standards.”


She added that

“our commitment to not reducing consumer protection remains in place.”—[Official Report, 23/2/23; cols. 1856-57.]

Here you have it in black and white. The head of the relevant government department, Professor Susan Jebb, says that we cannot sunset EU-derived laws without sacrificing consumer safety and other protections. The Minister told this House on 23 February that, in effect, that is a load of rubbish. Who would you believe? I know where my trust lies. It is with the department that has the responsibility and accountability for and expertise in protecting consumers’ interests in relation to food. There could not be a clearer demonstration of why Amendment 129 is essential

Lest this be thought to be some sort of political point, I want to say that when I was chairman of the Food Standards Agency, with a Government of a different political complexion, Ministers were keen to rush to reassure the public on issues to do with food safety, whether it was BSE or foot and mouth disease, and I really had to stand up against pressure from Ministers and say, “No, we can’t provide reassurance on safety”. If this amendment is accepted, it will ensure that the proper expertise, lines of accountability and scrutiny are in place to review any proposed changes in food law.

I turn now to Amendment 131, which is about transparency. As the noble Lord, Lord Rooker, reminded noble Lords earlier in Committee, the Food Standards Agency and Food Standards Scotland published their first annual report on food safety and standards across the UK, entitled Our Food 2021, in June. Here is a quotation from the introduction:

“At a time when the UK is taking on new responsibilities for food following our departure from the European Union … consumers need strong watchdogs looking out for whether standards are being protected. This report—the first in a series to be published annually—will help us do so by providing an objective, data-driven assessment of the safety and standards of food over time.


Why us? Because the Food Standards Agency … and Food Standards Scotland … are together responsible for food standards across the whole of the UK—this is an important, long-term collaboration between our two organisations that should provide greater transparency and accountability for food quality across the four nations. This, in turn, will help us work with food businesses, local authorities and other partners to address any emerging threats or vulnerabilities.”


Amendment 131 simply seeks to put this annual report, or a slightly modified version of it, on a statutory basis. It will tell the public, businesses, the Government and others whether, as result of changes to our laws, food standards and safety are being compromised. How on earth could one object to this transparency?

As the noble Lord, Lord Rooker, reminded us the other day in Committee, transparency is one of the keys to trust. It has taken years of work by the Food Standards Agency to rebuild public trust in the UK food system after the disasters of the 1990s, including BSE and salmonella in eggs. Indeed, that is why all parties supported the creation of the Food Standards Agency, so it could be a department that puts consumers’ interests first and rebuilds trust in our food system. Why would the Government wish to squander those gains now? I therefore look forward to the Minister warmly welcoming both my amendments, and to assuring us that the FSA and FSS will have the necessary resources to fulfil the duties that are implied by them. These are very modest changes to the Bill, aimed at improving it, and I hope that, if the Minister does not welcome them, he will at least agree to meet me and others to discuss the implications of not accepting them.

[Lord Hamilton of Epsom (Con)]

Will the noble Lord explain why the Government would want to compromise the health of the consuming public of this country and undermine our food exports abroad?

[Lord Krebs (CB)]

That is an extremely good question and I thank the noble Lord for asking it. That is precisely what I would say too. Therefore, if the Government do not want to risk undermining public safety or public confidence in our food businesses, and therefore our food exports, they should accept these amendments. After all, the chairman of the FSA could not have said it more clearly, and I shall just repeat it once more:

“we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health.”

It is not me who is saying this; it is the head of the government department with this responsibility.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

Before the Minister leaves the question of allowing Clause 10 to stand part, I am surprised at her disagreement with the Delegated Powers and Regulatory Reform Committee—a dangerously radical body containing wild revolutionaries such as the noble Lords, Lord Janvrin and Lord Goodlad, and the noble Earl, Lord Lindsay. Their view was clearly set out in their report: that Clause 10

“effects a significant transfer of power to Ministers”,

contrary to what was set out in the European Union (Withdrawal) Act 2018. The Act said it would be for Parliament to decide changes in primary legislation, rather than for Ministers to do so in secondary legislation.

I understand the argument the Minister is making, but it is not one likely to find much support across the House. We think we have a role in deciding what should be on the statute book; it is not simply for the Executive. I can see the point made by the noble Lord, Lord Hamilton—yet another dangerous radical—that it will take time so there will be, in a sense, continuing uncertainty. This is why I support an extension of the sunset deadlines—although that is not a sufficient cure, I think it is a necessary one for the Bill. But the noble Lord has to recognise that there is huge uncertainty now for economic operators across the country: they do not know which laws are to be amended, which are to be retained and which are to be extinguished. Once we know, perhaps it would be sensible to discuss how long it will take to make the necessary changes.

[Lord Hamilton of Epsom (Con)]

Surely the thing that concerns businesses is how legislation is going to be amended, not whether it is or not.

[Baroness Neville-Rolfe (Con)]

I thank the noble Lords for their interventions. I did say that I understood the concerns of the Committee. I was trying to explain that, in this particular case, we need to go forward with the arrangements we have because of the situation the EU law of 2018 has left us in and the need to tidy up the statute book, which, otherwise, would take decades to do.

Amendments 115 and 116 in the name of my noble friend Lady McIntosh of Pickering would insert a requirement to consult any interested persons or relevant devolved Governments before any secondary retained EU law could be revoked or replaced. Amendment 115 would require that no regulations may be made under Clause 15(2) unless Ministers comply with a set of conditions, including a requirement to consult any interested persons in relevant devolved Governments before any REUL can be revoked or replaced. Amendment 116 would insert the same consultation requirements regarding regulations made under Clause 15(3). These amendments would hinder the efficient removal of outdated and unnecessary burdens and regulations and their replacement with regulations that are more fit for purpose.

Furthermore, we have sought, as I have explained, to ensure that the Bill contains robust scrutiny mechanisms, including for the powers to revoke or replace. In particular, the sifting procedure will apply to those regulations proposed to be made under the negative procedure. The sifting procedure largely corresponds with the procedure under the EUWA and the European Union (Future Relationship) Act 2020. In both cases, sifting has been effectively used to ensure proportionate parliamentary scrutiny of legislation regarding EU exit. We are scheduled to debate the sifting procedure in more detail on Wednesday, and obviously I look forward to that debate. In addition, it is our expectation that the departments concerned will follow standard procedures regarding consultation and engagement with the devolved Governments during policy development, so I do not consider adding a requirement to consult on the face of the Bill to be appropriate or necessary.

Amendment 128, tabled by the noble Baroness, Lady Ludford, would create a new clause introducing additional restrictions on the use of powers under Clauses 15 and 16. Among the proposed extensive conditions is a requirement that Ministers provide a report outlining an assessment of the potential impact of proposed new regulations. This would include the difference between current and proposed new regulations for protections for consumers, workers, businesses, the environment, animal welfare, any changes to the regulatory burden, and whether the UK’s international commitments to the trade and co-operation agreement and the Northern Ireland protocol continue to be met. Such conditions are unnecessary. The Bill has been drafted to ensure that legislation made under these powers is subject to scrutiny procedures that are proportionate to the scope of the powers. It is our expectation that departments will follow the standard procedures for consultation and impact assessment where it is undertaken. Adding these conditions would significantly delay the process of REUL reform, impact departments’ delivery plans and could prevent departments maximising the use of the powers in Clauses 15 and 16.

Before coming to the sunsets, I turn to Amendment 129, tabled by the noble Lord, Lord Krebs, which seeks to add a clause to the Bill introducing additional restrictions for food standards legislation. It is only right to have powers in the Bill which will help put the UK statute book on a sustainable footing. The powers will facilitate the much-needed review and reform of outdated retained EU law that not is fit for the UK, and they will ensure that we can capitalise on the benefits of Brexit. As I have said, the powers to amend are not intended to undermine the UK’s already high food standards. I say again that this Government are committed to promoting robust food standards nationally and internationally, so that we can continue to protect consumer interests, facilitate trade and ensure that consumers can have confidence in the food they buy. I also value the work of the food standards agencies, for all the reasons the noble Lord, Lord Krebs, has outlined, but that is not a reason to amend this general Bill.

To respond to the noble Lord, Lord Krebs, the Hansard that he referred to reflects the position that retained EU law that needs to be kept will be preserved. The FSA is saying publicly that retained EU law on food standards should be preserved. It is for the relevant department—the Department of Health—and the devolved nations to decide whether retained EU law in their area should be preserved. Therefore, I humbly suggest that the two statements are not in conflict.

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

This clause has got to the guts of the Bill. It is a real mistake for the Government to be quite so certain in their position on this and to not give even the slightest indication that they want to consider some of the suggestions made by noble Lords in this debate. I think the Government may come to regret batting things back without really taking on board the very serious and well-considered points that have been made. This is certainly something we will return to on Report.

I have worked on a lot of Bills—not as many as others in this place—but never one where nobody has turned up to support their Front Bench on the Government side on anything.

[Lord Hamilton of Epsom (Con)]

I have!

[Baroness Chapman of Darlington (Lab)]

Even the support there has been has been heavily caveated, and it has hardly been what you could describe as overwhelming and unquestioning support. I would say it has been very questioning support. I think that noble Lords on all sides are looking for a bit more from the Government on this clause in particular, but the same applies to most of the groups we have debated on all four days. Your Lordships might say that I rush to criticise the Government sometimes; I do not think I do. Other people are much more reluctant to do so, but their criticism is there none the less. I genuinely think that Ministers ought to reflect on this.

We are very disappointed with the failure of the Government to engage with the DPRRC on any of its findings and to recognise that the power in Clause 15(3) is very wide. This issue about categories or subject areas and that the regulations must be “similar”—whatever that means—is going to have to be looked at again. If we need to force the Government to do that through votes in this place, we would be very happy to work with noble Lords on all sides to work out the best way to do that.

The Minister said a couple of times that there would be no carve-outs but there is a carve-out for financial services and it looks like judges are getting one for their pensions. It is interesting to think about how the Government set priorities for themselves when these issues are being exempted but the environment and consumer protection are not. It is no wonder that noble Lords are a little reluctant to take all this on trust. Whatever the noble Lord, Lord Benyon, says—I am sure he is a Minister who says everything with the utmost sincerity—there is no default position for Defra of retention. That is not possible in this Bill. It is a real shame that a basic understanding of what is going on here seems to be being overlooked, perhaps wilfully, from time to time.

We are disappointed. We are going to come back to this issue. I urge Ministers to have some further thoughts and deliberations, and perhaps come back with something a bit more sensible on Report.

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

At the end of Committee on the Professional Qualifications Bill, it was clear that there were huge problems at the heart of it. The Minister, the noble Lord, Lord Grimstone, stood up and agreed with that. He then said—and I believe this is a quote—“We have to take this Bill on a holiday”. That is what the noble Lord did and the Bill was substantially revised and massively improved over that period of reflection, before it came back on Report. The Government Front Bench could think about that process very hard, because we are dealing with an even more substandard Bill here than we had with the Professional Qualifications Bill.

[Lord Hamilton of Epsom (Con)]

My Lords, I am absolutely amazed that the noble Lord, Lord Fox, has such faith in the bureaucrats of this country such that, if you do not give them deadlines, they will still keep to the timescale. It is remarkable when you think that one of the tasks of all our departments is to review their legislation to see whether it is still current. At intervals, Ministers have said that they will produce only one new law in return for two revoked, but nothing ever happens. This is one of the inadequacies of the system in which we live, but we will let that pass.

I listened to the remarks of the noble and learned Lord, Lord Judge, with great attention, as I always do. But this is the first time I actually agreed with most of them. Unlike the noble and learned Lord, I campaigned to leave the EU. I did not actually stand on people’s doorsteps and say, “We have a wonderful scheme here. We have a drastically undemocratic system of people living in Europe dictating the laws that we should have in this land. But we are not going to restore parliamentary democracy; we are going to hand over all this power to the Executive.” If I had said that on doorsteps, and people like me who wanted to leave the EU had put that argument forward widely, it is quite possible that we would not have left the EU at all.

I am spoiled for choice with the amendments I could back in this group, but I very much support the noble Lord, Lord Whitty, and his Amendment 62A. I think that we need a sifting committee and the all-party one that he advocates is very much one that I would support.

I have been told that at least 40% of our retained EU legislation will be put back on the statute book unchanged. I suspect that that is a rather low estimate and will rise, particularly given what my noble friend Lord Benyon said about retention being the default position. There will not be much controversy about that and the committee of the noble Lord, Lord Whitty, could decide to do that by secondary legislation.

We then come to EU law that is completely irrelevant to this country. Isolated cases have been brought up, such as reindeer between Denmark and Sweden, and fishing in waters nowhere near the United Kingdom, as my noble friend Lord Benyon mentioned. We have also got the export of lemons. I do not think we are going to be doing a lot of that in the future—though with global warming, you never know, do you? Then we have got olive oil; I do not quite see us growing that number of olive trees in the near future, but it is obviously very important to the southern countries of the EU. All of that can certainly be binned, and I would not have thought that there would be any controversy about that whatever.

I suspect that the other amount of law that the Government are thinking of getting rid of, which is more difficult, is the area where there is already legislation in the United Kingdom which does this job better than the EU legislation. That is something which will have to be argued out, which is why I think the role of this cross-party committee could be critical.

We then come to other regulations which need very minor amendments. As we know, one person’s minor amendment is somebody else’s major amendment, so I would be more than happy that the committee viewed that legislation as well. If it was happy that the amendments were very minor—just changing dates and things of that sort—they could allow that through statutory instruments and secondary legislation. What is much more concerning is the ability that the Government seem to be giving themselves to scrap an EU law and introduce a completely new one. This is not what we voted for when we voted to leave the EU and is an extraordinary transfer of power. That is where I hoped that this committee would come in and say, “No, this must be dealt with by primary legislation.”

To sum up, I would be more than happy to back an amendment similar, if not identical, to that of the noble Lord, Lord Whitty. I will campaign among all the people I know to actually support it as well—and I think that I possibly represent one or two of the people who left the EU. If we do that, we might get an overwhelming majority which might make this Government change their mind.

[Lord Kerr of Kinlochard (CB)]

I am very glad that I gave way to the noble Lord, Lord Hamilton. I hope that the Government will reflect on such criticism coming from such a quarter. The noble Lord, Lord Hamilton, and I disagreed violently over Brexit, but the criticisms that he is making now, much more clearly than I could, are the criticisms that I want to make now. So the opposition to the Bill does not come under the remainer/leaver axis—it comes under the “good Government” axis.

There are just two points that I want to raise. I support the amendments in this group, particularly the amendments in the name of the noble and learned Lord, Lord Judge, the noble Lord, Lord Fox, and the noble Baroness, Lady Chapman, Amendments 39, 42 and 43. The first point I want to make is about unannounced repeal—the point made by the noble Lord, Lord Beith—although it is unannounced and undiscussed repeal that really bothers me. The other is about default.

On unannounced and undiscussed repeal, when we were last in Committee, on Tuesday, I asked what Parliamentary procedure would be available when a Minister decides that a piece of our law should be abolished. What procedure will enable Parliament to debate that decision? The Minister replying to the debate said that she would reflect on the point that I had made. I have not yet heard an answer, but it seems to me rather a significant point. Here we have a situation which I believe is improper in constitutional terms—and it is certainly absurd in practical terms that laws should disappear by administrative fiat, privately. I do not know how courts will be expected to apply that, and I do not know how citizens are expected to behave in relation to the law, if changes in the law have been made by administrative fiat, privately. I think it is constitutionally improper that that should happen without the opportunity for some discussion in this this place and the other place. I think it is important to address the question that has been raised by the noble Lord, Lord Beith, and I hope we are about to hear an answer.

--- Later in debate ---

[Baroness Lawlor (Con)]

My Lords, I am pleased to follow my noble friend Lady McIntosh of Pickering and the noble Baroness, Lady Humphreys, to whom I have listened with great interest. My Amendment 56ZA is to bring forward the extension date in Clause 2(4) to the end of 2024. There are political and practical reasons for doing so.

Politically, a general election must be held by 12 December 2024. It is important that the Government elected in 2019 not only honour their commitments to deal with inherited EU law but bring forward the extension date to coincide with, or be within striking distance of, the end of this Parliament. This is not a matter of ideology, as has been suggested by some noble Lords in respect of the sunsetting of legislation, but of working within the normal political timetable: a Government are elected, they set about implementing their programme and, when the time comes, they go to the country for the people to judge. That is how this democracy functions.

When people vote, they take a punt on the party they vote for and they vote for it to govern, for general or specific reasons. Political theorists may, and do, disagree about the extent to which voters’ knowledge of detailed programmes or their expectations are at play, but there is little argument among them that people vote for a party to become a Government, and to enact the programme or the cause with which they are identified. The current Government have, sadly, lost much time in restoring UK law; now they are finally moving to do so.

Far from being disparaged for following what is called ideology, the Government should be encouraged to honour the promise on which they were elected. They are doing so in this Bill, by providing for the sunset of EU-derived subordinate legislation and some retained direct EU law, and doing so within the current Parliament, despite the pandemic. However, they should also ensure that, even in those cases where an extension is envisaged, that extension falls within striking distance of the parliamentary timetable.

Practically, it is sensible to have the extension date as close as possible to the sunset date. Indeed, given the rapid and efficient work of civil servants, who have continued to prepare for and publish on the dashboard identified pieces of legislation, we now have sight of thousands of rules which formed part of the corpus of EU law—the acquis. Our officials are familiar with and understand these matters. I understand that some departments have been working on it for almost five years. They are well equipped to move to the next stage. It is better this happens by, or near, the end of this Parliament for the benefit of good government, for the certainty it brings to all concerned, and for the effective and efficient working of government, and that it happens without the interruption of a Dissolution, or the distraction for officials of having to prepare the program for an incoming Government. I have confidence that the UK will do a better job in protecting the many legitimate concerns which have been raised by your Lordships.

Moving swiftly will give certainty to all involved, irrespective of the vagaries of political life. In addition, there is the constitutional question, to which many noble Lords have continued to refer—probably most of the noble Lords who have spoken in Committee. This has also been raised in the two recent reports from the Secondary Legislation Scrutiny Committee and the Constitution Committee, both of which illuminate a range of complex matters and considerations. I am most grateful to both committees for doing so.

None the less, I disagree with the implied role that Parliament—the legislature—should play in the matters addressed in this Bill. I urge the Government to capitalise on the work of departments for the dashboard and submit the list to Parliament, indicating which will be adopted into or adapted for UK law, and which will go. That would bring reassurance and make for greater transparency. It may also help noble Lords to engage in the sifting process, on which they will be paramount. However, there is a danger of seeing legislative scrutiny as an end in itself rather than as a means to holding the Executive to account. That has not changed. If the Government fail to command a majority in Parliament, their days are numbered.

For over a century, there has been debate about the relative significance of the relationship between the people of this country and their Government, on the one hand, and that with their Parliaments, on the other. Dicey alluded to this in 1910, as did Lord Hailsham and Tony Benn in 1978, and that debate has continued, having been given a tremendous boost by the referendum. My view is that, on the matter of retained EU law covered by this Bill, the Executive have direct authority to act. They were given it in December 2019 by the electorate, who made clear that they preferred to deal with the Executive, the Government, who appealed to them directly over the legislature, which had appeared to ignore the decision of the referendum more than three years earlier or to obstruct its execution.

On all three grounds therefore—political, practical and constitutional—not only do I support the Bill’s approach but, for the reasons given, I ask my noble friend the Minister to accept that there are also grounds for moving more rapidly to advance the extension date in Clause 2 to within striking distance of the lifetime of this Parliament.

[Lord Hamilton of Epsom (Con)]

My Lords, I support my noble friend in her amendment. I take the view, as the Committee well knows, that if you give the bureaucracy longer to implement all of this, it will use the time. Therefore, the shorter the time we can make it, the better.

I ask my noble friend the Minister whether he considers the fact that the sunset clause is operating at the end of this year as almost the sole reason we now know roughly how many bit of retained EU legislation there are. If the sunset clause had not been in there, I do not believe that the bureaucracy of this country—pace the noble Lord, Lord Wilson—would have come up with the answer at all.

[Lord Whitty (Lab)]

My Lords, I have Amendment 56A in this group. Noble Lords have probably gathered by now that I profoundly hope that the Bill never reaches the statute book. However, if it does, we need to know what the heck we are talking about. My Amendment 56A requires the Government, within three months of the passage of the Bill into law, to ensure that all of us here and those whom they are going to consult out there—the businesses, consumers, workers and everyone else whom the Bill may affect—know what we are talking about; namely, by providing a definitive dashboard at that point, preferably with an indication of how the Government intend to deal with different bits of the dashboard. But, in any case, it requires that they provide a “definitive list”. If we do not have that, no one will know how we will behave, whatever the deadline.

I support the deadline proposed by the noble Baroness, Lady McIntosh, which is reasonable, given that we are talking about 4,000 pieces of legislation, at the last count. I do not agree with the deadline in the Bill or with extending it by only one year, as the noble Baroness, Lady Lawlor, suggested. The key point of my amendment is that the world needs to know what the Bill means, what it is about and, preferably, how the Government will deal with it. I do not think that the word “dashboard” has appeared in many pieces of legislation, but we need something based on the dashboard as it is currently. Noble Lords who have tried to use it will have found it rather difficult and certainly not yet definitive. So we are giving the civil servants—I can go along with the noble Lord, Lord Hamilton, on this to some extent—three months from the passage of the Bill to produce a definitive list of what we are talking about, and we need that.

Retained EU Law (Revocation and Reform) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

Those are just some examples of pieces of legislation which, at the moment, people are worried about possibly being lost in the transfer and not being preserved. It becomes difficult to understand why—if it applies to the Defra legislation—it is not the default to retain EU legislation and then slowly work through it afterwards to decide what will go, because the health and social care costs are probably vastly greater than anyone has yet estimated.

[Lord Hamilton of Epsom (Con)]

My Lords, I speak to Amendment 27 in the name of my noble friend Lady McIntosh of Pickering and the noble and learned Lord, Lord Hope. I have always had great reservations about extending the sunset clause by any time at all, and I am quite surprised that nobody has mentioned this. The Bill gives the Government astronomical powers to use secondary legislation not only to amend EU law but to create completely new laws. I have great worries about doing this for any longer than is absolutely necessary. We have to think very carefully about whether we want to extend this period at all.

The noble Lord, Lord Benyon, has said—at least, it has been attributed to him— that, by default, if we cannot think what else we are going to do with these laws, we will keep them. If the Government keep just to the sunset clause of the end of this year, they will have to keep virtually everything—I do not know why anybody has an argument with that—and they can then revise it under primary legislation later if we do not have this extension at all. We have to very seriously think about this.

The real solution to all this is, of course, Amendment 44 in the name of the noble Lord, Lord Carlile, which says that we must have a sifting system to decide what we do with all this legislation. An awful lot of it can go through under secondary legislation, particularly if we are keeping it, but, at the same time, some bits of legislation will make major changes to EU law, and that should be done under primary legislation. If we have that as a sifting system—I am not sure I agree with the mechanism that he suggests, but I agree in principle with his amendment—all this falls by the side, because we then have a system where all this can be dealt with. We can extend the period beyond the end of this year and it can all be dealt with sensibly like that. As long as we are viewing this amendment on its own, I certainly could not support it and would advocate for saying that we should have sudden death at the end of this year, concentrate the minds of everybody and either keep this law or get rid of it, but do not muck about with it for endless years to come.

[Lord Hendy (Lab)]

I shall speak to Amendment 63, to which I added my name to those of the three noble Baronesses, Lady Jolly, Lady McIntosh and Lady Finlay. Amendment 63 would protect health and safety by requiring a health and safety assessment of each piece of legislation which will, or may be, repealed or revoked by the Bill. I shall confine my comments this evening to a subset of legislation which might have an impact on health and safety, and that is the law relating to health and safety at work. Obviously, I support the arguments so eloquently advanced by the noble Baronesses, but I should like to advance a different argument. It is a matter that has been raised in debates on the Bill a number of times, but in general terms: the EU-UK Trade and Cooperation Agreement. I should like to deal with that specifically in relation to health and safety at work.

I shall read to the Committee the relevant words of the trade and co-operation agreement, beginning with Article 386. It is only a few sentences; no one need fear that I shall keep them here for hours. Article 386.1 states:

“For the purposes of this Chapter, ‘labour and social levels of protection’ means the levels of protection provided overall in a Party’s law and standards in each of the following areas”.


It sets out a number of areas, of which paragraph (b) is

“occupational health and safety standards”.

Article 387.2 states:

“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.”


So the United Kingdom has signed up in a treaty to not weakening or reducing its occupational health and safety standards in a manner which might affect trade or investment. Bearing in mind what the noble Lord, Lord Clarke of Nottingham, said earlier this evening about the objective of the Bill being to reduce costs—one would add, in order to make British industry more competitive—it is clear that this article is engaged.

There is just one more article to which I draw attention, Article 399.5, which says:

“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted”.


There, the commitment of the United Kingdom is the implementation of ILO conventions and European Social Charter provisions ratified by the UK. I can assist on what those are in relation to occupational health and safety; there are only three passages that I need to share with your Lordships. First, there is ILO Convention No. 187, the Promotional Framework for Occupational Safety and Health Convention 2006, which was ratified by the United Kingdom. Article 2 of it states:

“Each Member—


each member state, that is—

“which ratifies this Convention shall promote continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths, by the development, in consultation with the most representative organizations of employers and workers, of a national policy, national system and national programme.”

Article 3 says:

“Each Member shall promote a safe and healthy working environment by formulating a national policy … Each Member shall promote and advance, at all relevant levels, the right of workers to a safe and healthy working environment … In formulating its national policy, each Member, in light of national conditions and practice and in consultation with the most representative organizations of employers and workers, shall promote basic principles such as assessing occupational risks or hazards; combating occupational risks or hazards at source; and developing a national preventative safety and health culture that includes information, consultation and training.”


Article 4 says:

“The national system for occupational safety and health shall include among others … laws and regulations, collective agreements where appropriate, and any other relevant instruments on occupational safety and health”.


The European Social Charter is even clearer. Article 3, which was specifically ratified by the United Kingdom, on

“The right to safe and healthy working conditions”,


states:

“With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Contracting Parties undertake … to issue safety and health regulations … to provide for the enforcement of such regulations by measures of supervision … to consult, as appropriate, employers’ and workers’ organisations on measures intended to improve industrial safety and health.”


It is quite clear that, if the current raft of provisions on health and safety at work, some of which I listed at Second Reading, is revoked or diminished, we will be in breach of the EU-UK Trade and Cooperation Agreement. The only way we can avoid that is by the Government exempting health and safety at work in the same way as they propose to exempt the financial sector through Amendment 45. Will the Minister give that assurance?