Retained EU Law (Revocation and Reform) Bill

Lord Hannay of Chiswick Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Callanan (Con)]

Well, it is more than some of the EU legislation did. I did not mean to start a debate on this.

[Lord Hannay of Chiswick (CB)]

My Lords—

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, while not forbidden, it is considered discourteous to interrupt the Minister in his opening speech. If the noble Lord wishes to speak, he should put his name down for the gap.

[Lord Hannay of Chiswick (CB)]

My name is on the list.

[Lord Callanan (Con)]

I will take the noble Lord’s point.

[Lord Hannay of Chiswick (CB)]

I merely want to ask the Minister: what proportion of the legislation was, as he described it, imposed? Presumably, it was only the laws that we voted against.

[Lord Callanan (Con)]

Given his direct experience, the noble Lord knows exactly how the procedures work in Brussels. The point I was making was that the vast majority was introduced into UK law directly, without any appropriate scrutiny from Parliament beforehand. Obviously, there were lots of discussions in Brussels. He took part in some on behalf of the Council, and I took part in many in the European Parliament as well. But there was no scrutiny in this Parliament for much of that legislation.

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[Lord Hannay of Chiswick (CB)]

My Lords, the Bill we are debating today surely represents the triumph of ideology over common sense and pragmatism. A huge number of existing laws are to be scrapped at the end of this year not because they are bad laws or inadequate laws, but simply because they are laws based on decisions taken collectively by EU institutions of which we were a full and active part when they were adopted. They are to be scrapped irrespective of whether by that date they have been replaced by a new statute or not.

To look first at the quantum of laws to be scrapped in this way, even the Government do not know the exact number. It is somewhere in the region of 3,000 to 4,000, and the figure is augmented by new discoveries in the National Archives which means it keeps going up. To initiate a vast scrappage scheme without knowing what you are scrapping is surely unprecedented. Whatever the final figure turns out to be, the replacement of this massive body of law will absorb the Civil Service and Parliament to the exclusion of other, perhaps higher, legislative priorities. Is that a sensible choice of priorities? If an oversight is discovered later this year or after the guillotine comes down at the end of it, there will be a void in our statute book on a matter that could be of great significance and importance for people’s everyday lives.

Secondly, look at the replacement process proposed in the Bill. This represents a massive extension of executive power, with Parliament having little or no say given the inadequacies of parliamentary oversight in the statutory instrument process. You might think it is an odd interpretation of taking back control. There will be little or no time to conduct the wide consultancy processes which ought to precede legislating on complex or sensitive matters.

Add to those drawbacks a third category: the implications for devolution and the relationships with the devolved Assemblies. Many of the laws to be scrapped cover matters that have been devolved to Scotland and Wales. What say will they have in the decision to scrap one of their laws? They will have none, so those devolution complications will necessarily take a good deal of sorting out.

Fourthly, what will be the implications for our relationship with the EU if the replacement legislation diverges too sharply from that of the EU on matters that fall within the ambit of the trade and co-operation agreement? That agreement has provisions for what is known as a level playing field, and it has provisions for the other side to compensate itself for any failure to maintain that, possibly leading to worsening of the already suboptimal conditions for trade between us in goods and services for what remains our biggest overseas market.

Of the four major categories of defects in the Bill I have identified, on not one are the Government in a position to provide clarity or reassurance at this point in time. They really are offering an irrevocable leap in the dark with this overhasty legislation. What will be the consequences for investment, so necessary if we are to achieve the growth the Government are promising? Sharply negative if the view of the director-general of the CBI is anything to go by.

The conclusion surely is that this Bill in its present form, with its detailed provisions and cut-off deadlines, requires meticulous scrutiny and, very probably, considerable amendment. No one, so far as I can see—and no one who has spoken—is arguing that no retained EU law should be replaced. This is simply not the best way to do it. Would not a sectoral approach be better than this sledgehammer method? Would not a longer timetable make sense? If we legislate in this way in haste, repentance will be painful and durable for an economy not currently in particularly robust condition.

Retained EU Law (Revocation and Reform) Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

Let me reflect further with the lead Minister on this matter and come back. The point that I was making is that the suggestion that nobody is listened to is not right. We are listening and we are concerned to make sure that necessary protections are extended. That is the intention.

[Lord Hannay of Chiswick (CB)]

I just say to the noble Baroness on the issue of common frameworks and the devolved Administrations that your Lordships’ European Affairs Committee, in the form of our chair and two other members, went to Cardiff and Edinburgh to take evidence on a completely different matter. Both in Cardiff and in Edinburgh, we were told there was absolute dismay at the way they were not being told what was going on with REUL, and that there seemed to be an unwillingness to recognise that some of legislation had actually been devolved. They were just being told, “Well, it will have gone”. This is quite serious stuff, frankly. I am not expecting the Minister to answer this question now, but will she please say that intensified discussions will go on with the devolved Administrations about the implications of the Bill for them? Otherwise, there is a lot of trouble ahead—and these were not people from opposing parties; they were people from the Minister’s own party as well.

[Baroness Neville-Rolfe (Con)]

I find it difficult to answer that. My understanding is that there has been extensive dialogue with officials across all these portfolios, as noble Lords would expect: that is how government runs. In my areas of responsibility, which do not include food these days, there is extensive dialogue between departments, and that is very helpful. That has been the process here and will continue to be the process.

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So, as many people have said, there are ways in which your Lordships’ House can make the Bill less bad. A “no regression” clause saying that none of the changes will weaken the protections would be something, although pretty complicated, I suspect. Removing the sunset clause, ensuring that departments have time carefully to consider the changes, would be another, but it is very clear that the best possible outcome would be no Bill at all.

[Lord Hannay of Chiswick (CB)]

My Lords, I want to pick up on the amendments of the noble Lord, Lord Rooker, and, particularly, my noble friend Lord Krebs, which I support.

The debate so far seems to have illustrated two points which have perhaps not come out fully in Committee so far. One is how much better it would have been had the Government taken a sectoral approach and legislated sector by sector. This is shown by the reference made recently in the debate to the Financial Services Bill going through this House now. That Bill replaces a large amount of European legislation, and it is going through without any problem at all because the Government have taken a careful, considered approach, have consulted all the interests concerned and have come forward with proposals which, broadly, are going to get the approval of both Houses. That sectoral approach would, frankly, work infinitely better than the across-the-board approach being applied now, and to which these amendments seek to make exceptions.

The second area on which our debate on these amendments has thrown a lot of light, and on which the government contributions so far to these debates have not thrown much light, is the potential implications for the trade and co-operation agreement with the European Union. These are extremely far-reaching, as has been made clear by various noble Lords, including my noble friend Lord Krebs. If we diverge substantially from the legislation that we and the European Union had when we signed the trade and co-operation agreement, there will be trouble. There will be negative implications for our trade with the European Union. Trade in the food and agricultural areas which a lot of these amendments are talking about has been one in which Britain’s exports have been rising steadily for 45 years, since we joined the European Union. They could be hampered.

They have already been hampered by the Government’s refusal to sign an SPS agreement with the European Union, which we could do perfectly easily and which would remove quite a lot of the problems and suffering under the Northern Ireland protocol. An SPS agreement would remove the additional bureaucracy and the problems that there have been with our exports, but that would be before there is any divergence at all, because we still have the same legislation as they have on the other side of the channel. However, because we are not prepared to test things either coming in or going out, or to have an agreement which says that we do not need to, our trade has already been damaged quite a bit. That is nothing compared to what will happen if the Government decide to diverge sharply from the legislation that we currently have and are seeking to abolish.

When the Minister replies to the debate, it would be good if she could say what consideration the Government have given to and what impact assessments they have made on the potential for damage to our trade under the trade and co-operation agreement if the European Union should consider that we are diverging to an extent which invalidates what we signed in 2020.

[Lord Inglewood (Non-Afl)]

My Lords, when I came into this debate, I did not anticipate saying anything, but I wear two hats—one as a farmer and one as a lawyer. I will not put my lawyer’s hat on. I would like to comment on the remarks, which were entirely to the point, of the noble Lords, Lord Rooker and Lord Hannay.

I have been actively involved, in one way or another, in agricultural businesses since the 1970s. I remember the damage, which the noble Lord, Lord Rooker, described, to my livestock business—as an aside, it was subsequently destroyed in the hecatomb of foot and mouth. It goes to the bottom line of farmers’ businesses. As is well known, farmers are under the financial cosh because of all the changes being brought about on environmental payments and support systems, which are really hitting their incomes.

We are told by the Government that one of the desirable consequences of Brexit will be that British agriculture will be able to find markets elsewhere around the globe. In order to do that, there are two essentials. First, the other parties to these transactions must have long-term confidence in the quality and character of the product coming from this country. Secondly, they need to be sure that whatever rules are in place will remain, because these businesses depend on long-term supply agreements. The uncertainty hanging over the agricultural industry as a result of—if I may put it this way—clever-clever intellectual games by politicians and lawyers will damage their business. That is very unfair, not only for its own sake but because it will have a particular effect on those whose businesses are already being damaged by current government policies.

Retained EU Law (Revocation and Reform) Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I added my name to Amendment 27, in the name of the noble Baroness, Lady McIntosh of Pickering, and I am grateful to her for putting it down and for what she said.

I am sure the Minister will remember that, when we mentioned time limits and sunsets on Thursday, I agreed with the noble Lord, Lord Hamilton of Epsom, that it was sensible to have a sunset in view of the task set before us. The question is whether the sunset is in the right place. This amendment addresses that issue. The point is that the Government are trying to move too fast without having done the homework in the first place to establish that the sunset is one that they could meet.

Last Thursday, the noble Lord, Lord Wilson of Dinton, said that the Government should “do the work first”. As he put it:

“The right thing to do is for the Government to withdraw the Bill, go away and do the work, and decide what they want to keep, what they want to amend and what they want to abolish, and then tell Parliament so that it can debate and scrutinise what the Government want to do—and it can be a proper process with consultation. That will take longer, but the Government are taking on a very big job with huge complexity and scale.”—[Official Report, 23/2/23; col. 1774.]


I do not suppose the Government will withdraw the Bill, but the fact is—it has been staring us in the face ever since we started these debates—that the job that they are taking on is immensely complex. However hard they try to pretend otherwise, they seem to be making it up as they go along—the figures keep enlarging, indicating that the necessary work was not done at the outset, before the timetable was decided upon.

The Bill had its First Reading in the House of Commons on 22 September 2022. All the signs are that even a reduced or very preliminary version of the information that is now on the dashboard was not yet available. The Government seem to have been playing catch-up ever since they became aware of the questions being asked of them. To introduce a Bill with a sunset clause without having arrived at a clear understanding at the outset of the scale of the task that all four Governments are being asked to undertake is, to say the least, bad planning. The noble Lord, Lord Wilson, said that it was “lazy government”, and one might also say that it is bad government.

Mention was made of Clause 2 and the extension of the sunset clause providing an escape clause, but it is a carefully framed and narrowly drawn provision that requires an understanding of the legislation, or the descriptions of the legislation, that is to be put into the provisions allowed by Clause 2. It has to be specified; it does not allow for a general let-out just because the work has not been done on time and unknown instruments are yet to be discovered—if you have not discovered them, you cannot specify them. So this is not a complete answer to the problem that the very strict and early sunset, set from the outset of the Bill, is trying to solve.

The solution that the noble Baroness has offered, which I agree with, is to extend the sunset to a later date. It is worth mentioning that there is reason to be concerned about the same time limit in Clause 12, which gives power to restate retained EU law, but it is subject to the provision in subsection (7) that

“No regulations may be made under this section after the end of 2023”,


which is exactly the same date that the noble Baroness, Lady McIntosh, directed her amendment at. These two clauses march hand in hand, and if a government amendment is made to Clause 1, as I suggest it should be, one should also be made to Clause 12.

I hope that the Minister will reflect carefully on the sunset clause. An extension of it, even by a year, would provide a much better timetable to which to work, given the enormity of the task being faced. I very much support this amendment, and I hope it will be supported across the Committee.

[Lord Hannay of Chiswick (CB)]

My Lords, I will speak in support of Amendments 26 and 27. Amendment 26 moved by the noble Baroness, Lady Ludford, is about consultation. You can have your views on the value of consultation, the amount of time taken up by it and so on, but it is a normal practice in legislating in our time. To move away from it, which is what the Government will do with the replacement provisions they may move forward, seems aberrant and contrary to all normal practice.

The trouble is that the two amendments are a bit linked, because if you accept Amendment 26 it is even clearer than it is now—it is clear beyond peradventure—that you are not going to get through all that by the end of this year. I can see why the Government are driven to refusing to commit themselves to consultation, because it simply cannot be done in the time available. In my view, that is an argument in favour of Amendment 27 in the name of the noble Baroness, Lady McIntosh of Pickering. I hope the Government can give some ground on the consultation issue; otherwise, we will probably get some legislative proposals that not only are very hasty but have not been tested by the people to whom they will be applied. That seems entirely contrary to our practice these days in bringing forward legislation.

On Amendment 27, I find it very odd that the Government are clinging to the sunset of the end of 2023. It seems unrealisable—some would say suicidal—and it will bring nothing but discredit on the Government when the chaos that is caused actually supervenes. In any case, whether you think that or not, just reflect on something that the noble Lord, Lord Benyon, said to us in the debate on the last group of amendments. He told us that four teams of officials are working on deciding which of the instruments to be caught by the cut-off should be postponed until 2026 and which should go ahead. If you removed the 2023 sunset, you would save those four teams all their work; all they would need to do is work out what to do by 2026—or, as the noble Baroness suggests, by 2028. I am less sure of that; to my mind, it would be quite sufficient simply to remove 2023 and to leave 2026, as it is in the legislation. That offers a reasonable amount of time to carry out an exercise.

It also demonstrates that those of us tabling or supporting these amendments are not refusing to replace European Union law. Quite the contrary—we understand the basic logic behind what is being done, but we find that the timing is absurd and damaging to our economy. I hope that the Minister will respond positively, both on consultation and on removing the 2023 sunset, even if he does not find 2028 very beguiling.

[Baroness Young of Old Scone (Lab)]

My Lords, I will speak to my Amendments 46 and 47 to the Minister’s Amendment 45, which no doubt he will speak to soon. My amendments add environmental measures to the Minister’s amendment, which exempts financial services measures. Tabling the amendment was rather a flight of mischief, because I thought that, as imitation is the sincerest form of flattery and since the Minister had tabled a fine amendment to get financial services out of the Bill, perhaps I could just follow his good example. I thank him very much for giving me that good idea.

I am sure that the Minister will say he tabled his amendment because the Financial Services and Markets Bill provided a considered and more sensible approach, which it did—but we perhaps need a considered and more sensible approach for all the important issues covered by EU legislation and caught by this Bill. I am talking not just about environmental issues but about consumer and trading standards and workers’ rights. Do they not justify a more considered and sensible approach, rather than this wholesale gallop towards a self-imposed deadline for a constantly shifting number of pieces of law, as listed on the dashboard, which continues to change and presumably will do so right up to the arbitrary deadline? It is a gallop that is diverting huge amounts of civil servants’ time, and all because a few Conservative MPs are allergic to anything that has “EU” in it.

Retained EU Law (Revocation and Reform) Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

Nobody has thought this through, and the accidental collateral damage is potentially very serious. The Minister has already said that common frameworks will be used to make REUL reform a success. If he means that, the least he can do is accept these amendments today.

[Lord Hannay of Chiswick (CB)]

My Lords, I rise to support Amendment 29 in the names of my noble and learned friend Lord Hope and others.

A couple of weeks ago your Lordships’ European Affairs Committee, on which I have the honour to serve, went to Cardiff and Edinburgh to take evidence in the context of our current inquiry into the future of UK-EU relations. During those visits, on which we talked to Members of the Senedd and the Parliament in Edinburgh, the points about this Bill, and above all the points covered by my noble and learned friend’s amendment, were raised forcefully with us by representatives of all parties, including the party that supports the Government, in both Cardiff and Edinburgh. They told us they were completely in the dark about the application of this Bill if it became an Act, and in particular about how it would impact on the areas that my noble and learned friend has drawn attention to, which are devolved and are the responsibility of the Scottish and Welsh Governments. They said they were really worried that this would lead to many unforeseen negative consequences.

They said there had been no contact or discussion at the political level between either the Welsh or Scottish Government and Whitehall about these measures. There had been contact at official level, of course, and in previous parts of the debate on the Bill here, Ministers have said, “Oh, well, there are some jolly good contacts going on at official level and civil servants are talking to each other”. That will not do; it is not enough. There must be a dialogue with the Welsh and Scottish Governments about this issue; it deeply concerns them.

I hope that the Minister, when he comes to reply to the debate on this amendment, will give certain undertakings in that respect. Above all, I hope he will commit and say categorically that if this amendment is not put to a decision today—it is of course axiomatic that it will not be—these contacts at political level with the Welsh and Scottish Governments will take place between today and Report and he will report back to this House what has passed in those contacts. Without that, we are just heading towards greater and completely unnecessary discord. I hope this point can be taken on board. I do not think it a great deal to ask the Minister to commit himself to. Frankly, it is astonishing that it has not happened already.

One of the things that was quite clear from our contacts in both Cardiff and Edinburgh was that this absence of certainty about what is covered by the sunset clause is itself extremely damaging. Nobody has been able to tell them the list of measures that would be affected by the sunset clause. So I hope the Minister can respond positively when he comes to reply to this debate.

[Baroness Ludford (LD)]

My Lords, I rise to give a few words of support to the amendments in this group, particularly those led by my noble friends Lady Humphreys and Lady Randerson. To pick up the phrase just used by the noble Lord, Lord Hannay, it is astonishing that the Government are proposing to create such discord with this Bill and by their failure to respect the devolved Administrations and include them in the processes of consideration.

As an Englishwoman, though with roots throughout these islands, I am no expert either on the devolution settlement or on common frameworks—very far from it—but our party is a unionist one, which surely means fostering, respecting and supporting the operation of the union.

In paragraph 60 of the Explanatory Notes to the Bill, there is a very clear statement:

“The Government also remains committed to respecting the devolution settlements and the Sewel Convention, and has ensured that the Bill will not alter the devolution settlements”—


that does not appear to be the case—

“and will not intrinsically create greater intra-UK divergence”.

Quite a lot of weight is put on “intrinsically” in that sentence, because it has great potential to create intra-UK divergence and thus seems very contrary to government policy. On Monday we heard the Prime Minister deliver a passionate statement of support for unionism. He passionately said, “I am a unionist”—he also said, “I am a Brexiter”, but I was not so keen on that bit. The Bill does not illustrate that passionate unionism from the Government.

Coming specifically to the effect on Northern Ireland, I fully agreed with the contribution of the noble Baroness, Lady Ritchie. We on these Benches are also extremely concerned about the Bill’s impact on the Northern Ireland protocol, and in particular on Article 2 on the upholding of rights under EU law, including human rights. We hear with great concern the view of the Northern Ireland Human Rights Commission, which argues that the Bill risks the basis of the Good Friday agreement. That cannot be at all overlooked.

I have a few questions in reference to the Windsor Framework that I hope the Minister can answer. First, will the Stormont brake apply to any laws affected by the REUL Bill or only to new legislation? Has the Prime Minister agreed with the EU to retain all EU law affected by this Bill in Northern Ireland as part of the Windsor Framework? If not, will that not undermine the Windsor Framework? Have the Government agreed to amend this Bill as part of the deal done on Monday in the Windsor Framework on the Northern Ireland protocol?

Practically speaking—given that, sadly, there is no sign yet that the Northern Ireland Executive will be up and running soon—who will be making decisions on which EU law is protected from the sunset? The situation in Northern Ireland is of course very delicate. Given that either removing retained EU law or pulling the Stormont brake could trigger a breakdown in trade between Northern Ireland and the Irish Republic, will the Minister commit that that will happen only when there is cross-community support for doing so? That question is perhaps more on the framework.

With regard to the Bill, there are major concerns about the devolution settlements, the common frameworks and, not least arising from the Windsor Framework, the effect specifically on Northern Ireland. I hope that the Minister can cover all those concerns in his response.

Retained EU Law (Revocation and Reform) Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

However, they could be rescued by the Government and that is why I am delighted the Lord Privy Seal is here. He is having a chat at the moment, but if I could just address him. He is of course in the Cabinet where I am sure he is influential. The Government Chief Whip is here—another critical member of the Government. They are in a position to convey to the Cabinet and the Government that this is an unsatisfactory Bill. Perhaps through their good advocacy we will lose this Bill altogether, and be grateful.

[Lord Hannay of Chiswick (CB)]

My Lords, I support Amendment 32 in the name of my noble and learned friend Lord Judge, and Amendments 42, 43, 44 and 141A.

I will make two very short points because so many of the points have been made more eloquently by previous speakers. First, the amendments we are discussing are not substitutes for removing the cut-off at the end of 2023. They are complementary to it for two reasons. The processes quite rightly being proposed could not all be got through in the time available before the end of this year; you also solve the cart and horses problem by removing the 2023 date. I hope we will not forget that when we come back to all this on Report, and we will see these two things as complementary.

Secondly, the arguments about the EU-based legislation that is completely immaterial to us—on reindeers, lemon exports and so on—are completely irrelevant. If you go back through the last 500 years of statutes past, the statute book is full of things that are completely irrelevant to the way we live now, and which are not enforced or implemented in any way. We do not seem to lose any sleep over it. Let us not lose any sleep over the reindeers or they will not bring the Christmas stocking with them.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have not signed any amendments in this group—I was not asked, and I was not quick enough to get my name down. All of the issues have been covered absolutely amazingly by other noble Lords, so I will restrict myself to talking about the politics. The politics of this particular Bill are extremely interesting. I support all the amendments in the first group, simply because they are sensible and practical, and I like practical outcomes. But, at the same time, we ought to throw the whole clause out, and I do not see any option to do that. We want a democracy when we have finished voting on the Bill and, if it goes through as it is, we will not have one.

I will ask two political questions. First, why do we have the Bill at all? Quite honestly, it is terrible piece of legislation that is absolutely outrageous. In the 10 years I have been here, I have almost never had a glimmer of sympathy for the Government. But, having seen the Bill, I do: it is like the last gasp of a dying creature, and that dying creature is the popular Tory party of 2019, when it actually had some credibility and popularity, as I said. That has seeped and ebbed away, to the point that it is now in the most extraordinary position and putting forward legislation like this. It is an ideological monstrosity that caters to the worst parts of the right wing of the Tory party, and it will not have support.

I think the Conservative Party expects to run out into the streets and say, “We did it—we got rid of all EU law. Brexit has finally happened”. But, of course, that is simply not true: a lot of this is not EU law but British law. I am sure that the Minister himself had a hand in producing some of it, as a Member of the European Parliament. For anyone who has been in the European Parliament to say that this is pure EU law is complete nonsense. I do not want to accuse the Minister of telling lies, but it is nonsense. So why is it here? Is it here because the Conservative Party wants to get some sort of popularity or something? Why is it here? It is not a worthwhile Bill; it is a ludicrous Bill to bring here. There has been so much learned opposition, but still the Government insist on pushing it through.

My second political question is: what happens afterwards? Of course, it is all very well to put this through, but what happens when Labour is in government? Will the Conservative Party really be happy that Labour has these powers and can just whip out a piece of legislation and give Ministers all these powers? It is not a democracy when you give so much power to Ministers. That is not what Brexit was about—and I say that as somebody who voted for Brexit. I say to the noble Lord, Lord Deben, that he is perhaps a rejoiner now, not a remoaner—sorry, I mean remainer. It is perhaps time we understood that the damage has been done and this just creates more damage. It is time to drop the Bill. We will not have a democracy if it goes through.

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[Baroness Ritchie of Downpatrick (Lab)]

My Lords, this has been a very interesting debate so far. I want to speak to Clause 3 standing part and Amendment 142, which is in my name and that of the noble Baroness, Lady Suttie. We are both of the firm view not only that the Bill should be withdrawn but, in particular, that it should be amended to remove Clause 3 or to retain Section 4 of the European Union (Withdrawal Act) 2018 to the extent that it preserves retained EU law which gives effect to human rights, equality and environmental protections in Northern Ireland, including all legislation that falls within the scope of protocol Article 2. The noble Baroness, Lady Ludford, has already referred to that point.

Why is that the case? Undoubtedly, Clause 3 removes an additional layer of protection for human rights and equality provisions in domestic law. For example, in research undertaken for the Northern Ireland Human Rights Commission, rights under the EU trafficking directive, which the commission has identified as falling within the scope of protocol Article 2, were identified as being safeguarded in UK law by Section 4 of the European Union (Withdrawal Act) 2018. The repeal of Section 4 of that Act would have no bearing on enduring obligations under protocol Article 2 but it would create a risk of confusion in this regard. I do not think your Lordships can afford to tolerate that fact.

A complex, inaccessible and confusing statute book could lead to an inadvertent breach of these obligations, particularly for organisations that have statutory duties conferred on them by the UK Government to look into Article 2 provisions as they relate back to the Good Friday agreement. Moreover, where there are measures that protect equality and human rights which were retained EU law by virtue of Section 4 of the 2018 Act and which are outside the scope of protocol Article 2, these safeguards will fall unless otherwise preserved, resulting in a loss of rights.

In this regard, I have three questions for the Minister. I ask him for an assurance—perhaps in writing—that the provisions of the Bill are without prejudice to Section 7A of the European Union (Withdrawal Act) 2018, in the absence of this clarification being included in the Bill; and that the UK Government or the devolved authority will, before the Bill takes effect, establish a comprehensive notification process for the law that is to be sunsetted, extended or preserved. In the case of Northern Ireland, we do not have institutions at the moment. What consideration was given by the Government to compliance with Article 2 of the protocol in the development of the Bill? It seems clear to me that one hand does not know what the other hand is doing according to legislation.

Amendment 142 seeks conformity with Section 7A of the EU withdrawal Act which gives domestic effect to the UK-EU withdrawal agreement. The Minister, when responding, needs to demonstrate to your Lordships’ Committee how the Bill will be in compliance with Article 2 of the protocol. Unfortunately, the Explanatory Memorandum does not show how this will happen.

The Minister also needs to demonstrate how the Government can seek consent from Northern Ireland with the lack of an Executive and Assembly. How will the process of reviewing, revoking, replacing or restating retained EU law by 2023—some nine and a half months down the road—be carried out in Northern Ireland? Those special considerations must be taken into account. Therefore, Clause 3 should not stand part of the Bill.

[Lord Hannay of Chiswick (CB)]

My Lords, I would like briefly to refer to this group of amendments, particularly to the aspects which seek to give the Government some flexibility as they go along this road. I am not wishing to address the cut-off dates, because that has been liberally described and debated already in earlier amendments, but the points that the noble Lord, Lord Whitty, made.

I am sorry to see that the noble Lord, Lord Callanan, is leaving the Chamber as I was about to address a question to him. I will address it to his colleague instead. I wanted to get on to the ground covered by the noble Lord, Lord Whitty. He talked about the possibility that some of the actions the Government wish to take will cut across our obligations under the trade and co-operation agreement or other international agreements and treaties, and will put the Government of the day in a very awkward and difficult position. Flexibility would give them a way of handling that.

I know that the author of this Bill wanted, like Ulysses, to stop his ears with wax and tie himself to the mast—the only difference being that he would not be on the boat when it hit the rocks. Other than that, that was what he was trying to do, and I do not think that is a sensible thing to do. Some flexibility, as suggested by some of these amendments, would be better. I say that because, until the events of Monday this week and the announcement of the Windsor Framework, one could imagine that the Government would have just said too bad, or words that are not repeatable in this Committee used by the former Prime Minister. However, I do not think that is the situation we are in now. We are in a situation where the Prime Minister and the Government have said that they wish to move in the direction of greater co-operation and flexibility, working with the EU. But here they are, stopping their ears with wax, tying themselves to the mast and making it very difficult to do that.

Here are my questions. It is no secret that the ambassadors of member states and of the Commission are deeply disturbed by this Bill. Anyone who has had any contact with them will know that. Could the Government say if they have received any representations about this Bill from any of the member states or the Commission? If so, what was the nature of those representations and what has their response been? I know the Minister does not much like being interrupted when he is winding up, so I hope he will answer that question because it will save me the trouble of interrupting him. His colleague, the noble Baroness, Lady Neville-Rolfe, will no doubt tell him what the question was. I would be grateful to hear the answer.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak briefly in support of Amendment 76, as the noble Baroness, Lady Finlay of Llandaff, cannot be in her place. I made all the arguments in relation to Amendment 58, and I do not intend to repeat them. I await with great interest the ingenious answer that will come out this time for treating the nations with inequality.

I will take one minute to support Amendment 62 most strongly. So far, we have been dealing with known knowns: we know that there is legislation. There is a bit of the known that needs due diligence, but that falls within the same category, and we should get there on legislation. But I will not be satisfied about that until I see how it has been searched for. However, in this area, we move into the known unknowns. The Bill shows a profound misunderstanding of the genius of the common law and the huge benefit of it and our way of doing things in this country. We are like magpies: we take good things from places and adapt them.

Retained EU Law (Revocation and Reform) Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I understand. I am very grateful to the noble Baroness for trying to help to move things forward; we are certainly keen to do that. Clearly, this enabling Bill is going through Parliament ahead of the some of the work that has been going on around the dashboard and the individual governmental plans, which is perhaps a pity. I think my noble friend the Minister said that he would try to make more information available as that became possible. Indeed, we have given an extra couple of days for debates in Committee. Progress is being made all the time in departments on their plans. We have these two processes—

[Lord Hannay of Chiswick (CB)]

As the noble Baroness, Lady Chapman, said, the Minister has turned down every single amendment in this group, whether it is for more consultation or for the Food Standards Agency to have a proper say. Every time, she has simply said, “That would take decades”. I am not sure whether an impact assessment has been done to work out what lies behind that phrase; I suspect it is just a throwaway phrase which is meant to cast dust in our eyes. However, it is not terribly convincing, because not a single amendment on the Marshalled List suggests putting the cut-off date beyond 2028, as the amendments in the name of the noble Baroness, Lady McIntosh, suggest. Nobody is suggesting a period of decades. What those of us who support these amendments are suggesting is that the Government should follow the normal procedure, which we have always had in this country before, of consultation and legislation. Could we please not dismiss everything by saying that it would take decades?

[Baroness Neville-Rolfe (Con)]

I think I said “decades” once. This is of course a bit different from the normal laws that we debate and put through this Parliament, because it is dealing with retained EU law, and we think that there is a need for special arrangements. Equally, there is also a need for your Lordships to understand what our plans are. This is Committee; it is quite conventional at this stage to explain the problems with amendments, which I have obviously been doing.

Picking up on what has just been said, perhaps I should move on to the final issue in this group, which is timing. Amendment 104, in the name of my noble friend Lady McIntosh of Pickering, relates to Clause 12 and seeks to change the date on which the power to restate under Clause 12 is capable of acting on retained EU law from the sunset date—the end of 2023—extending it to 2028. The existing power to restate under Clause 13, which is exercisable up to 2026, provides an adequate opportunity for the reform of retained EU law and assimilated law while providing a deadline to ensure that retained EU law does not languish on our statute book indefinitely.

I turn to Amendment 108A in the name of my noble friend Lady Lawlor. Although she did not speak to it on this occasion, I am glad that one of her early interventions as a Member of this House has been on this important Bill. Her amendment seeks to bring forward the date on which the power to restate assimilated law expires to the end of 2024. This power already puts a protection in place after the sunset by allowing departments to reproduce the effects of retained case law and EU-derived principles of interpretation in relation to specific provisions of restated assimilated law, which sunset at the end of 2023 up to 23 June 2026.

Although I understand where my noble friend is coming from, I believe that it is necessary to make the power to restate assimilated law available for a sufficient window of time following the sunset date to ensure that the Government can mitigate any unintended consequences associated with the sunset in 2023. While we expect the power to be used only in exceptional cases, it would be irresponsible for the Government not to have a protection in place. Bringing forward the expiration date of the power to restate assimilated law to the end of 2024 would provide a limited time window for departments to use this power and could result in provisions not being restated that are necessary to maintain the desired policy effect.

Amendments 122 and 122A are also on timing. Amendment 122 in the name of my noble friend Lady McIntosh of Pickering would change the date on which the powers to revoke or replace are capable of acting on REUL and post-sunset secondary assimilated law, extending it to 2028. Exercising the powers to revoke or replace will allow the Government to seize our new regulatory autonomy and ensure that REUL can be tailored to meet the UK’s needs in a timely manner. We need to complete that important process.

The powers to revoke or replace are important, cross-cutting enablers. They will allow the Government to overhaul EU laws in secondary legislation across the many different sectors of the economy where, if left, many pieces of REUL risk becoming fixed features of the statute book that are ill suited to the UK. As my noble friend Lord Hamilton said, extending the date to 2028 would also add to uncertainty. The noble Baroness, Lady Fox, was right to remind us that some of the public think that the process of EU reform is sluggish, but I think that 2026 gives us ample time.

Lastly, I turn to Amendments 124 and 125 in the name of my noble friend Lady McIntosh of Pickering. In broad terms, they would change the dates that enable the power to act upon assimilated law. I will not go through the detail of why these amendments do not work because I have already explained it quite clearly. The powers to revoke or replace are already capable of acting on assimilated law for an additional two and a half years after the sunset, which is adequate time to complete REUL reform and provide greater legal certainty UK-wide.

I am sorry to have spoken at length but there were a lot of amendments in this group. I hope this has provided noble Lords with some reassurance on the powers in the Bill, their timeframes and the way in which scrutiny will work, as I tried to set out at the beginning of my speech. With this in mind, I ask noble Lords to withdraw or not press their amendments.

Retained EU Law (Revocation and Reform) Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I will speak to Amendments 114 and 120 in the name of my noble friend Lord Fox, who, as the Committee knows, is unable to be with us today, sadly. I will also speak to the clause stand part notice.

As the noble Baroness, Lady Chapman, said, this clause is fundamental to discussion of the Bill. She referred to the DPRRC report and, if we thought that it was scathing about Clauses 12 and 13, as the noble Baroness rightly said, it is extremely concerned about Clause 15. Not only was there the phrase that she mentioned, but its conclusions were pretty damning, at the end of the day. It said:

“Clause 15 contains an inappropriate delegation of legislative power and should be removed from the Bill. It gives Ministers an extraordinarily wide discretion to revoke and replace secondary REUL merely where Ministers regard it as appropriate to do so. Clause 15 contravenes the commitment given at the time of the 2018 Act, a commitment that was enshrined in section 8 of the 2018 Act, that substantial policy changes to REUL should be for Parliament in primary legislation rather than for Ministers in secondary legislation … We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether.”


This is a very strong recommendation from the DPRRC, whose conclusions we always take extremely seriously in this House. The noble Baroness also referred to the difference between effects and objectives. That was the purpose of Amendment 114.

I really want to speak about some of the impacts of Clause 15(5), also mentioned by the noble Baroness. During our extensive debate on Clause 1, on Thursday 23 February, I mentioned the potential sunsetting of product and consumer safety regulations as an example of the extreme danger posed by the Bill and that, far from there being a need to deregulate, there is in fact scope for improvement in safety standards, particularly regarding online transactions.

Under current product safety legislation, online marketplaces are not accountable for the safety of products being sold by third parties, which enables non-compliant and unsafe toys to be sold in the UK. I went on to give some examples of products, particularly one involving magnets and a young girl called Rebecca McCarthy, who was left critically injured after swallowing 14 magnets that were above the legal limit. I referred also to the fact that Which? has regularly found unsafe products offered for sale in online marketplaces, including Christmas tree lights that were a fire and safety hazard, baby carriers that posed a suffocation risk and electric blankets that were so poorly made that they risked giving electric shocks.

I mentioned a recent report by the National Audit Office that found that product safety regulations had not kept pace with the trends in online commerce; it noted that online marketplaces were used by about nine in 10 adults but were not responsible for the safety of goods sold by third parties. I also pointed out that the Office for Product Safety and Standards had been consulting on the UK’s product safety framework, in particular addressing the lack of obligations on online marketplaces to place only safe products on the market, in a similar way to how obligations apply to traditional retailers.

A number of noble Lords, including the noble Baroness, Lady Thornton, mentioned the review at the time. Of course, that makes the ambit of Clause 15, the subject of this debate, particularly relevant: not only is sunsetting available under the Bill but there is the right to revoke until 2026, as we see in the clause.

We can debate changes to Clause 15, such as those contained in Amendments 114 and 120, but it is the whole clause that creates the damage. In her letter of 28 February, the noble Baroness, Lady Bloomfield, refers to the review of the Office for Product Safety and Standards and seeks to reassure us about the ambit of Clause 15. I recognise that this letter has not had universal acclaim. I think that perhaps one of the kindest comments was made by the noble Lord, Lord Carlile of Berriew, who said it was

“a letter which can be described only as obfuscatory, tautological gobbledegook”.—[Official Report, 28/2/23; col. 169.]

If that is the kindest thing that we can say, we have more to discuss.

In the letter, the noble Baroness explicitly says that

“it is possible for additional regulations and higher standards to be introduced through the powers to revoke or replace, so long as”—

this is the crucial bit—

“the package of reforms contained within each statutory instrument does not increase the overall regulatory burden for that particular subject area”.

My bafflement is equal to that of the noble Baroness, Lady Chapman. The letter continues:

“For example, through removing unnecessary or unsuitable regulations or consolidating multiple regulations into one, it will be possible to add new regulations with higher standards provided that the overall regulatory burden is not increased Therefore, it will be possible for a single instrument made under the power in clause 15 to increase the regulatory burden, so long as this increase is offset by a decrease of regulation in the same subject area”.


Here is the rub:

“It will be for the relevant Minister or devolved authority to decide if they are satisfied that the use of the power does not increase the overall regulatory burden in a subject area”.


So it is for the Minister to decide—itself hugely objectional, as discussed on the third day of Committee—but let me set the Minister a hypothetical if he is to decide in this area. If the product safety review recommends that we need a major increase in product safety regulation to cover products sold on online marketplaces, how on earth is that going be balanced by a decrease in regulation within the same package of reforms so that it does not fall foul of Clause 15(5), especially given the definition of burden under subsection (10), which is pretty extraordinary in itself and which I am not going to quote? What would the Minister suggest? Some heavy deregulation on toy safety perhaps, or for baby carriers?

This clause is nonsense and potentially extremely dangerous nonsense. However, in the debate on Amendment 16, the noble Baroness tried to reassure us that the Government are committed to protecting consumers from unsafe products. How on earth could and should something as desirable as product safety for internet-purchased products need to be balanced by deregulation on product safety elsewhere?

It begs the question of how wide the package is within which the Minister will make a judgment. This is the nub of what the noble Baroness was hoping to elicit at some stage—I hope she does. How wide is the package within which the Minister will make a judgment? Is it across the whole of what we described in the debate on the first day as “a bucket”? If so, what is the potential size of a bucket, dear Liza? This is especially relevant as the Minister’s letter says the search is still on for retained EU law. It is the hunting of the Snark, clearly.

Finally, the DPRRC made it clear that we should delete Clause 15. I have a particular objection to subsection (5). I very much hope that, if we have a satisfactory debate today, we will move on to Report and delete Clause 15 at that stage.

[Lord Hannay of Chiswick (CB)]

My Lords, I support the opposition to Clause 15 standing part. Other noble Lords have explained potently why it should not. It is the epicentre of taking back power to the Executive and not to Parliament. It is at the heart of the debate we have been having for three days—it is now the fourth day and the fifth is to come. If Clause 15 stands part, the taking back of control to the Executive and not to Parliament will have been consecrated by Parliament, and that would be a terrible error.

The clause contains a bizarre reference to the overall regulatory burden not being increased. This is a phrase in legislation without a metric. There is no description whatever of how this will be judged. I can perfectly well see a Minister from the Front Bench, whenever an attempt is made to change a government proposal, nodding his head sadly and saying, “Ah, yes, I’m afraid you can’t do that, because the regulatory burden will be increased”. It is just a catch-all, kill-all argument yet again for the Executive to have absolute authority. Those are the reasons why I argue that Clause 15 should not stand part.