Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Callanan (Con)]

As the noble Lord knows very well, that is not what I am saying. The reason that I am not saying that goes back to two points made earlier in the debate. First, there is a complicated mishmash of rights and responsibilities across these particular laws, but we will maintain our high standards. Secondly, it goes back to the argument the noble Lord, Lord Fox, made about interpretive effects. If the interpretive effects are being abolished to bring them in line with the rest of UK common law and to reduce some that have the status of primary legislation to secondary legislation, we need to review the whole panoply of employment law as a whole—which we will do, but we will do it in the context of the high standards that we have and will maintain. That is the point I am making

[Lord Hope of Craighead (CB)]

I am very grateful to the noble Lord for giving way. It is a question of the sunset and whether one can achieve what the Minister is suggesting in time. A lot of the worries we have are that the Government are trying to move too fast. We are trying to create a new rulebook for ourselves. I quite understand the desire for that, and I quite see the value of a timetable, because, if you do not have a timetable, things will drift into the far future, which is not desirable in view of the objective the Government have. However, they are trying to move too fast. The more we debate these issues, the more complicated they become, and the more people have to be consulted. That is the basic problem. I hope very much that, when we come to look at the sunset, the Minister will take account of these things and be a little more relaxed about the date for the sunset, otherwise we will be moving far too fast and destroying so many rights because of mistakes and misadventures.

[Lord Callanan (Con)]

The noble and learned Lord knows I have tremendous respect for him and there is a great deal of sense in what he says. If we are getting into a discussion about the sunset, it is my view and the Government’s view that we can do all of this, given the current sunset. Work is under way across Whitehall in the new business department on employment law and in Defra on environmental regulations to do exactly that.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

While the arrangements for the withdrawal Act were struggling to make progress, one of the key protective equipment regulations was updated. This is on the Government’s dashboard and website. Sections 9 and 10 talk about the pre and post 31 December 2024 arrangements and the regulation was updated again in 2018, taking the withdrawal Act into account. The problem is that it is not clear from this Bill whether the sunset clause can override this, because the Government have not explicitly set out their plans for any of the many thousands of regulations they have now found they wish to do that with. As was discussed in a previous group, that number is increasing on an almost daily basis. So I ask the Minister: for each piece of REUL that is on the dashboard, including this one, should Parliament assume that it will be revoked at the end of the year, unless the Government decide to keep it or to change it in a way no one knows about yet? If that is the case, when will the timetable for all these new, important regulations be published, with impact and cost assessments for having to comply with a different set of standards? I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I wish to raise a point about Amendment 4. It relates to the interaction of this Bill with common frameworks. I believe—though I am open to correction—that EU regulation 1169/2011 is the foundation of a series of statutory instruments made by the United Kingdom Government, the Welsh Assembly and the Scottish Parliament, which all relate to what is called food labelling and compositional standards. That is one of the frameworks on the list of 32 which the Common Frameworks Scrutiny Committee has been scrutinising. My first question is: am I right that this regulation is part of this particular framework? If it is, it raises another question of great importance. What do the Government propose to do about legislation which is part of and built into a common framework?

The word “common” is used in the expression because these frameworks are common to the four Administrations that make up the United Kingdom. This is a method of creating an internal market which is a little more relaxed than that created by the internal market Act. The point is that all four Administrations consult each other about changes that may be needed and about the composition of the frameworks themselves.

I hope that the Minister will be able to say that the Government’s intention is simply to replace the regulation and the SIs that follow behind it so that they become part of assimilated law and lose their connection with EU law. I do not think that replacement would create problems, provided it is accurate. There is concern about Clause 15(3), which talks about alternative provision. If the proposal is to make alternative provision to any legislation which forms part of a common framework, to any extent or for whatever reason, it raises a question as to how it is to be done, while respecting the way in which the framework scheme operates. The essential part of the framework system is consultation between all four parties with a view to seeing whether there is a divergence, and, if there is, whether it can be accommodated by agreement between the parties? Where there is no divergence, one need do nothing about it—but it is all a matter of consultation.

I suppose my question is this: is it proposed to make any alternative provision in relation to this particular framework? If not, or if, as I said before, it is just a matter of replacing it, then I can see very little problem there. Any attempt to reform or make alternative provision raises a question of timing, which goes back to a point raised earlier today about whether the sunset is capable of being met. It is not just a matter of identifying the instruments and deciding what might be done about them; you have to have time to consult the devolved Administrations and secure their agreement. If there is disagreement, there needs to be time to go through a process for the resolution of disputes, which is built into the frameworks. It is a carefully designed system.

If the Government are proposing to maintain the common frameworks—I understood from the noble Lord, Lord Callanan, quite some time ago that that is their intention, which I very much welcome—then it raises questions as to how exactly that process will be handled. I support the noble Baroness, Lady Brinton, on the points that she made, but this is a very specific issue. We will come back to the handling of common frameworks in later groups, but I raise it now because it is very much in point in relation to this specific regulation, which we will examine and see how this is going to be dealt with.

[Lord Fox (LD)]

My Lords, my noble friend Lady Brinton has done a fantastic job of explaining why these three amendments have been put forward. I was going to apologise to the noble Lord, Lord Davies of Brixton, for stealing his clothes, but I feel less guilty now—he was here just now but has popped out.

I welcome the Minister to her seat; I do not know what she has done to deserve this slot, but I see that the Lord Privy Seal is here to make sure that she turned up. I think that she was here earlier when the noble Lord, Lord Davies, brought up Amendment 45, which would explicitly exempt the financial services industry from the effects of the sunset. I would have thought that, at a time when the health service is under the stress that it is and is stretching every sinew to try to deal with the situation that it finds itself in, this would be a sector to qualify for exemption. I suggest to the Minister that she might like to go back to colleagues and accept an amendment to Amendment 45, which will no doubt come from somewhere, that exempts health service regulations from the sunset arrangement. As we have pointed out, it seems that the precedent has been set by the Government, so let us look at worthy causes for exemption. If the health service is not top of that list, I would like to know what is. That is my modest suggestion to help the Government out on that particular issue. It does not make sense to call into question the qualifications of the doctors we actually have when we are trying to get so many more. Perhaps that is a solution.

My noble friend, in speaking to Amendment 4, mentioned REACH and the UK version of chemicals regulation. I probably should not point it out, but the issue of the non-portability of data was brought up repeatedly by many of us on the Floor of your Lordships’ House and so it should not have come as a surprise. The fact that it is now costing substantially more to do what we were doing anyway also should not be a surprise. It is a lesson that perhaps has not been learned but could be learned.

Amendment 4 relates to EU-derived laws that ensure the safety and standards of food in the UK. Removing them would pose a serious threat to consumers and undermine protections that prevent loss of life, as my noble friend so clearly illustrated. That is why we have put this particular regulation in this group of amendments and suggested it should be exempted from the sunset.

On PPE, I think the performance of PPE speaks for itself.

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The Government have created this fast-moving conveyor belt with all these measures on it and Ministers are frantically grabbing what they can, if they spot it, keeping the power to revoke, retain, rewrite or whatever they want to do, but it is so risky and unnecessary. Because we are talking about these three amendments, I pose the question again, which my noble friend Lord Collins posed earlier in relation to workers’ rights. Intention here is everything. We want to know so we can then assess whether this Bill will enable the Government to deliver their intention, but we do not understand the intention of the Government. On these three issues—health and social care professions, food labelling, and personal protective equipment—will the Government retain these measures? Will they revoke these measures, or will there be some change done by the Government? That is all that we would like to know.

[Lord Hope of Craighead (CB)]

Before the noble Baroness sits down, I wonder whether she accepts my point about the common framework relating to food labelling and standards, because it does raise a different dimension. In that case, the UK Ministers do not have a free hand if the framework system is to survive. Every change has to be discussed, and preferably agreed, with the devolved Administrations. If there is disagreement, then that has to go through a resolution process, which may ultimately end up with the UK Minister. But it is quite a complicated process, which is designed to make sure that there can be some divergence, but an agreed divergence, across the Administrations, which is in the interests of everybody. So I wonder whether she accepts my point that this is another dimension which really has to be explored, and of course has a bearing on the sunset point.

[Baroness Chapman of Darlington (Lab)]

I very much accept that. It might be that we want to discuss later in the Bill whether or not any of the issues that devolved Administrations have a view on, or have responsibility for, ought to be dealt with in a different way, because the devolved Administrations, as of today, are deeply concerned about the way that the Government are proceeding. So I very much agree with the noble Lord’s point.

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[Baroness Neville-Rolfe (Con)]

I will try to answer my noble friend’s question. Defra has a programme looking at all this. It needs to decide what to preserve and what might need to be amended. I think the Bill has some scope for extension from 2023 into 2026. Perhaps I could now move on to Amendment 17 in the name of the noble Lord, Lord Clement-Jones.

[Lord Hope of Craighead (CB)]

Before the Minister moves to Amendment 17, Amendment 4 raises the issue of common frameworks. I can well understand the Government’s wish to have a fresh look at standards overall, but it is a massive task, and if the Government are adhering to the structure of the common frameworks, that cannot be done without consultation with the devolved Administrations. Are we dealing with common frameworks in the area that Amendment 4 is concerned with and, if so, how do the Government propose to handle it? Are they proposing to adhere to the mechanisms in the common frameworks? If so, can the Government assure us that they can achieve what is necessary before the sunset date?

[Baroness Neville-Rolfe (Con)]

I was going to respond at the end on common frameworks, partly to say what our hope is, and partly to say that this may well come up under future amendments on the Bill in the next few days. I wanted to be reassuring. Obviously, our ambition is that government departments and devolved government counterparts work together to agree their approaches to individual pieces of REUL. The delegated powers in Bill could then be used to preserve, extend, amend or repeal REUL as required via statutory instrument. Of course, as has been said, the devolved Administrations also have statutory instruments that they need to look at.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Krebs (CB)]

My Lords, I added my name to Amendment 37 in the name of the noble Baroness, Lady Hayman of Ullock. I wish to say a few words about it and about the other amendments in this group, which I also support. First, I agree with the noble Baroness, Lady Bakewell of Hardington Mandeville, that none of us in this Chamber doubts the commitment of the noble Lord, Lord Benyon, to environmental protection and supporting the cause that we all passionately believe in, and I congratulate him on his commitment to the environment.

However, we are nevertheless worried, for at least three reasons. First, not everybody in the Minister’s party necessarily shares his commitment to the environment. We all think back to a previous Tory Prime Minister, who referred to certain environmental protections as “green crap”. I am sorry if that offends noble Lords’ ears but those were the words that he was reported to have used. We are not sure that everybody will share that commitment.

We are also worried about the number of pieces of legislation that fall under Defra’s umbrella; the figure that I have been given is 1,781. That seems a bit of spurious precision given the earlier debate about the uncertainty in the number; although it was described as a catalogue, it is not actually a catalogue on the dashboard because it is incomplete. As the noble Baroness, Lady Hayman, has said, there is a lot of legislation that Defra has to deal with. Amendment 37 is just about a small sub-sample.

The third point that keeps our worry levels up is the continuing gap between rhetoric and reality. While a lot of warm words are said about environmental protection, the “greenest Government ever” and how we want to leave the environment in a better state than we found it, the reality is in many cases very different. Whether it is the quality of our rivers, sewage in other coastal zones, loss of biodiversity or air equality, in all those areas we are not doing as well on the ground as the rhetoric would lead us to believe. That was clearly brought home in the recent report of the Office for Environmental Protection, the watchdog that is meant to snap at the heels of government.

That is why we need some reassurance that environmental protections will not be lost down the back of the sofa. I will give a couple of examples. One— I thank Greener UK for it—concerns a current application for the Ashdown Business Park in Maresfield, at postcode TN22 2HN. It is on the edge of the Ashdown Forest special protection area and special area of conservation, so is an ecologically important area. The ecological impact assessment says that you would need an appropriate assessment under the habitats directive and the habitats regulations. That is the kind of warning light for the development. However, under the heading of “Current Uncertainty Regarding Planning Applications”, the report goes on to refer to the Levelling-up and Regeneration Bill, saying that, at the same time, the UK government is pressing ahead to remove and replace European Union law on the British statute under its planned retained EU law Bill, currently at the amendment stage within Parliament.

What we are seeing there is concrete evidence that the uncertainty created by the Bill is already having an effect on, potentially, the protection of key habitats in this country that are currently protected under the habitats directive and regulations. That is why it is really important that the Government say, “No, we are not going to change those; no, we are not going to get rid of them. You still have to follow them.”

My second example refers to the fact that environmental protections are not just about tree hugging, red kites and dormice; they are about human health, because our health is intimately connected with that of the environment. The air that we breathe, the water in our rivers and the pesticides that are used on our farms can all impact on our health. We are talking here not about just about the environment but about human health. I am sure that most if not all members of the public would be horrified to think that there was any risk of diluting protections to their health as a result of the Bill.

I want to mention one concrete example that I heard about this morning. I put it in the form of a question to the Minister. He may not be able to answer it today because it is a bit of a curveball, but he may be able to write to us. It concerns environmental noise. The World Health Organization estimates that in Europe 100 million people suffer ill health as a result of environmental noise, and 1 million healthy life years are lost as a result of exposure to environmental noise. I was told this morning that there are EU regulations that require member states to map environmental noise in their country, which we are doing. However, since we left the EU, there is now an additional requirement to map the health impacts of environmental noise, but because we have left we are apparently not doing that. I would like the Minister to confirm or deny that assertion which I heard this morning. That would be a small example of how, as we slide away from EU standards, there is a danger that we will lower our protections for the environment and, importantly, for human health at the same time.

[Lord Hope of Craighead (CB)]

My Lords, I am very glad that the noble Lord, Lord Benyon, has found time to join us for the debate on this group of amendments. If he will permit me, I would like to take advantage of his presence here to ask him two questions.

The first relates to the dashboard, and I think he was present for at least some of the debate about that. One of the points made by the noble Baroness, Lady Randerson, in concluding was that there is no mention in the Defra section of the dashboard of any legislation relating to Scotland or Wales. She was not entirely right about that; I was looking at the dashboard today and I detected 30 entries that refer to Scotland and 15 to Wales, but they are all in the section of the Defra list that deals with agricultural policy. There are many other areas that Defra covers, but, so far as I can detect, none of the legislation from the devolved Administrations has yet been listed on the dashboard. Is Defra still making efforts to discover from the devolved Administrations whether they have legislation relating to the other areas for which it is responsible? It is very important that we have a complete list, at some point, of the legislation in the different policy areas.

My noble friend Lord Krebs suggested that the figure that he gave, which I think was 1,781, was slightly doubtful. The figure can be arrived at by simple arithmetic because each item in the list is given a number, and you can work down the list. The total list at the moment contains 3,746 items. I made the number of Defra items 1,780—although perhaps my arithmetic was a bit defective—so that is a major part of the list so far, which is why the Minister’s presence here is so important. Completing the list at some point is important, so is the Minister aware of other areas where the devolved Administrations are working to complete the list to include their legislation as well?

The noble Baroness, Lady Hayman of Ullock, suggested the great pressures that Defra officials were under to achieve what they are being asked to achieve, but what she said applies equally to the devolved Administrations. I understand that for Scotland to try to grapple with the Defra area so far as it refers to it, its manpower—or its workforce, I should say, to avoid gender problems—is at most 10% of that which Defra enjoys, and they have pressures of their own. They have work already going on which is under extreme pressure. Now, on top of that, we find that they have to detect where the retained EU law measures are that have to be looked at, so there is an immense problem for them. My supplementary to the dashboard point is: is the noble Lord satisfied that the devolved Administrations can achieve what they need to in order to identify the legislation in the other policy areas, and in a reasonable time to achieve the sunset? My impression at the moment is that they are under such pressure that it is highly unlikely they will be unable to do that.

The second question is rather different and relates to common frameworks. The Minister may be aware that of the 32 common frameworks that the Common Frameworks Scrutiny Committee has been dealing with, under the chairmanship of the noble Baroness, Lady Andrews, 14 are Defra-related. At least some of them seem to deal with areas that are within the list that the noble Baroness, Lady Hayman has concocted—“concocted” is the wrong word; I should say “put together”—including chemicals and pesticides; animal health and welfare; fertilisation regulation, which of course affects water quality; and the whole area of organic farming, agricultural support and so on. Can the Minister identify for us which of the items on the noble Baroness’s list fall within a common framework?

We have amendments later dealing with the need for special treatment of common frameworks because of the way in which they are organised and the system that exists for amendments to frameworks that are achieved by consensus. It is important that we know what we are dealing with. At some point we will have to know which of the various regulations on the Defra list are within common frameworks and which are not. Is it possible for the noble Lord to conduct an exercise to look at his list to identify which are common frameworks-related and which are not? I do not expect him to be able to achieve that today, but it would be extremely helpful to us on the committee chaired by the noble Baroness, Lady Andrews, to know what we are dealing with, particularly with regard to the amendments that we will discuss later on.

[Baroness Young of Old Scone (Lab)]

My Lords, I declare my interests as chairman, president or vice-president of a broad range of environmental NGOs. I too welcome the presence of the noble Lord, Lord Benyon, and look forward to his responses.

I support Amendment 10, in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville, on excluding the habitats and species regulations from the sunset clause. As the noble Baroness, Lady Parminter, said, the habitats and species regulations are fundamental to protecting sites and biodiversity in this country and environmental protection generally, and cannot be put at risk at any price.

Protected sites under the habitats regulations are the special areas of conservation and special protection areas. They are really the jewels in the crown of nature conservation in this country. They cover a tiny proportion of the land surface, less than 5%. I would be of the view that the jewels in the crown deserve a high level of protection. The regulations have been very effective in reducing loss and damage to protected sites over the last 20 years. It used to be that on average 17% of our protected sites were damaged every year. We are now down to 0.17%, which is admirable.

Those regulations were developed by Brits in the EU. The RSPB, BirdLife International, the WWF and Stanley Johnson, the former Prime Minister’s father, all worked with the Dutch and other member states. This is not unwelcome EU regulation that was forced on us but proper, welcome protections that were crafted by Brits, and rightly so, for those important sites.

Proper protection for that small number of ultimate sites and species is vital, because they make what we care about in the countryside, and what is special in the countryside, safe. If all noble Lords think of the natural and wild places that they cherish, many of them will be special areas for conservation or special protection areas under the habitats regulations.

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[Lord Benyon (Con)]

If we have to extend, that would be the subject of a secondary legislation measure, so this House would be able to review it.

[Lord Hope of Craighead (CB)]

I am sorry to disturb the noble Lord again. Following on from the noble Baroness’s point, Clause 2(1), to which the noble Lord refers, uses “specified” three times: you have to be able to specify the instrument or the class of instrument and then identify a specified time. It is not designed as a general extension to cope with the possibility that things may be overlooked. It does not deal with that; that is one of the problems. It is fine if you can specify everything and you know exactly what you are dealing with, but it is not a let-out clause of the kind that the noble Lord was perhaps suggesting.

[Lord Benyon (Con)]

I entirely agree with the noble and learned Lord: it has to be specified. That is the work we are doing, and that is how we will decide whether we need that extension.

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Before I sit down, I speak warmly in favour of Amendment 63 in the name of the noble Baroness, Lady Jolly, to which I have added my name. I will leave her to set out the excellent reasons why the Committee would wish to adopt it, but I would like to lend my strongest possible support.

[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.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Humphreys (LD)]

I am grateful to the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, for adding their names to this amendment and for their support. I will also refer briefly to Amendment 49, tabled by the noble Baroness and the noble and learned Lord.

Amendment 29 is the first in a series of amendments which will enable your Lordships to explore the position of the devolved Governments on this Bill and to examine their response to it in detail. I will be speaking about the response of the Welsh Government, of course, but I recognise that other devolved Governments will have similar experiences and different problems.

The amendment restricts the sunsetting of EU legislation so that it does not apply to legislation that is within the legislative competence of the devolved Administrations—in essence, protecting the ability of the devolved Administrations to sunset their own retained EU laws. In general, I think it fair to say that the Welsh Government and the Senedd have very serious concerns about many aspects of the Bill, echoing those expressed by many of your Lordships at Second Reading. They have so many concerns that the Counsel General for Wales went so far as to say that the Welsh Government fundamentally oppose the whole intent of the Bill.

The Welsh Government’s position is that retained EU law works well for them in their areas of devolved competence and, again in the words of the Counsel General for Wales, that they had no intention of repealing, revoking or amending retained EU law to an arbitrary deadline, preferring gradually to amend the law as appropriate with evidence-gathering, public consultation and legislative scrutiny in the normal way over time, as with any body of law. Without the certainty that Amendment 29 gives and without an extension to the sunset, which we will debate in a later group, the Bill no longer gives them that option.

Amendment 29 addresses the concerns of the Welsh Government and Senedd Members who fear that the UK Government will attempt to take some responsibility—or just responsibility—for the sunsetting of laws in Wales. In January, the Senedd’s Legislation, Justice and Constitution Committee was very concerned about the position of devolved retained EU law and asked whether the Welsh Government had received reassurance from the UK Government that they will not change or remove devolved retained EU law without the consent of the Senedd. The Counsel General had not received reassurances a month ago. Can the Minister give those reassurances today? Senedd Members are obviously concerned about the impact of the UK Government proposing legislation such as this. They believe that by default it could repeal essential economic, social and environmental protections—protections that the Welsh Government believe are essential for the operation of their policies on behalf of the people of Wales, and that this is unacceptable.

The Welsh Government have said that their prime focus is

“firstly to ensure that we analyse and retain our own EU retained law, that we focus on that law that’s been made within Wales”.

This is the primary reason for putting down this amendment. It is designed to ensure that the legislative competence of the Senedd is recognised and protected, and that responsibility for sunsetting EU-derived subordinate legislation and retained direct EU legislation lies with the Senedd.

My noble friend’s Amendment 49 asks for a progress report on the identification of EU legislation that has been incorporated into law by the devolved Administrations. I will leave my noble friend to deal with the details when she speaks to her amendment, but I will make a brief comment. I did expect this exercise to be a joint venture, with the UK Government assisting or even leading in the identification of the various pieces of legislation that fall under the Bill, but a few difficulties have arisen. This amendment has my full support and I hope the Minister will update the Committee on progress. I beg to move.

[Lord Hope of Craighead (CB)]

I have added my name to the amendment in the name of the noble Baroness, Lady Humphreys, which has my full support, but I will also speak briefly to two other amendments in this group in my name—Amendments 34 and 55—which have the support of the noble Lord, Lord Murphy.

Everything the noble Baroness said on Wales applies equally to the position in Scotland, which is just as acute and difficult. I will give some figures on the problem we face. If you examine the dashboard and look, for example, at entries that relate to the responsibilities of Defra, which cover a lot of the work done in Wales and Scotland, you will find 1,781 such entries. Mention is made in this clause of legislation relating to Wales and Scotland, but the numbers are tiny compared to those recorded for Defra itself: there are only 30 relating to Scotland and 15 to Wales, and they concern only agriculture among Defra’s much wider responsibilities. So, I detect that the no doubt authoritative information in the dashboard is incomplete, especially for the devolved Administrations, which illustrates the great problem to which these amendments direct our attention.

May I venture to suggest one other problem, which relates to the relationship with the devolved Administrations? In its report of some two years ago, the Constitution Committee indicated, with the support of the Government’s reply, that the watchwords in dealing with the devolved Administrations should be “respect” and “co-operation”, and that, indeed, is what the noble Baroness’s amendment is all about. One of the extraordinary things about the Bill is that there was no sign of any attempt to discuss the sunset date with the devolved Administrations before it was introduced last September. If I am wrong about this, I am sure I will be corrected by the Minister, but all the signs are that the work simply was not done before the sunset date was set. Indeed, before the Bill reached this House, I do not think much work was done otherwise.

I therefore have a particular question for the Minister on something to which this House is entitled to an answer anyway: what is the present state of discussions with these two devolved Administrations about the possibility of a legislative consent agreement? As the Bill stands, it is clear that neither Administration would give its consent, but the Government’s responsibility is to continue discussions with them. We need to know what work is being done, whether work is continuing to achieve agreement and what the disagreements, if any, relate to. We probably all know what they are, but the Minister needs to update the House at some point during Committee. When the matter comes back on Report, we will expect a complete account of the relationship with the devolved Administrations in relation to legislative consent.

The noble Baroness’s Amendment 29 seeks to remove all legislation that is within devolved competence from the automatic sunset. It will then be for the Government to find another date after discussion with the devolved Administrations. As I said when we discussed this on Tuesday, I believe in sunset dates to make sure there is some pressure to get the work done, but it must be a proper date that is discussed with the devolved Administrations so they can reasonably meet it.

Amendment 49, which is supported by my noble friend Lady Finlay of Llandaff, is a probing amendment seeking information that should have been in the Government’s hands long ago. It makes the same point made by the noble Baroness, Lady Humphreys, on the lack of a clear and comprehensive statement. There is a real problem here of finding out what the legislation is dealing with. Direct EU legislation is not difficult to find and, from the work we do in the Common Frameworks Scrutiny Committee, we can identify it readily. The difficulty arises with EU-derived subordinate legislation and UK legislation relating to the subject matter, which has to be sorted out and understood before one gets into identifying what EU-derived legislation needs to be dealt with. This suggests that each SI in these subject areas needs to be examined and studied very carefully to see what legislative power is being exercised.

Once again, I stress that the Committee needs to know what risks the devolved Administrations are being confronted with. We need a full, frank, detailed and honest assessment. We will come back to this matter when we discuss my noble and learned friend Lord Judge’s Amendment 32 in a later group. For these reasons, I support Amendment 29, tabled by the noble Baroness, Lady Humphreys, and Amendment 49, tabled by the noble Baroness, Lady Randerson.

I turn to an entirely different matter that is the subject of Amendments 34 and 55, which deal with sunsetting the common frameworks. Amendment 34 seeks to disapply the sunset to legislation relevant to the policy content of the common frameworks. Amendment 35, tabled by the noble Baroness, Lady McIntosh, is similar. Amendment 55 suggests a different sunset for the common frameworks, at the end of 2026.

The problem that these amendments seek to address is that, as far as I can detect, the Bill seems to ignore and thus undermine the role of the common frameworks, which are designed to be guided by consensus across all four Governments. That is what “common” means in this rather strange formula; the frameworks are common to the four Administrations, which all have a share in this process, which proceeds with discussion and common understanding. They allow for divergence for reasons of policy, as Section 10 of the United Kingdom Internal Market Act recognises, but only where there is agreement among them all. There is a dispute resolution process, but I do not believe that it was designed for the kinds of disagreements that may arise if the procedures in the Bill are applied to them. The Minister needs to consider the position of the common frameworks much more carefully regarding the work that is proposed.

I should give some indication of the ground that the common frameworks cover and their importance to the way in which the United Kingdom’s internal market is being developed, with the willing co-operation of the devolved Administrations. There are 32 common frameworks, extending over the work of seven government departments, ranging from what was BEIS to the Department for Transport. Fourteen of them relate to Defra, as I mentioned earlier, and its equivalents in the devolved Administrations. I will not set out the full list, but they include animal health and welfare, chemicals and pesticides, ozone-depleting substances and fluoridated gases, plant health, air quality, and food labelling and compositional standards. These are extremely important areas of our internal market, which are well settled in the frameworks and should not be disturbed.

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[Lord Hope of Craighead (CB)]

My Lords, what the Minister said about common frameworks is very encouraging and I absolutely understand what she has been saying in her description of the system. But is the procedure in Clause 2 capable of, let us say, exempting a particular common framework from the sunset in Clause 1? Does it fall within the formula set out in Clause 2, so that we could take, for example, the common framework on animal health, labelling or the ozone layer, and specify a common framework to be excluded? It would be encouraging if that were the case.

[Baroness Bloomfield of Hinton Waldrist (Con)]

We can, indeed, exclude a specific category of law from the REUL exclusions if it relates to a specific area such as animal health, or a particular category of common framework.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Callanan (Con)]

I know that the noble Baroness feels passionately about labour regulations. We had an extensive debate about this in the first grouping, on labour law. I am happy to go through the issues with her again if she wishes but she knows that the Government’s position is that UK workers’ rights on maternity provision, holiday pay, the minimum wage and so on substantially exceed the basic standards in EU law and those in many other EU countries. Our commitment to workers’ rights is substantial, as I said to the noble Baroness when we discussed this at great length the other day. The department is currently reviewing labour law in the context of maintaining high standards on workers’ rights. When that work is complete, if any new statutory instruments are brought forward, the normal process of consultation will apply. I am sure that that will result in consultations with the trade unions as well.

[Lord Hope of Craighead (CB)]

I am not quite sure that the Minister has grasped the point of the noble Baroness. She is asking about legislation that will disappear. The problem with this is that it may involve legislation that requires people to spend money or conduct some other activity; they will not know that it has disappeared and will go on spending the money, and there is no way to get it back again. The noble Baroness raises quite a serious point about the lack of knowledge and the difficulty of things disappearing without their being identified before the disappearance happens.

[Lord Callanan (Con)]

I know that many noble Lords want to make the point that, somehow, major pieces of retained EU law will suddenly just accidentally disappear from the statute book. We have conducted a very authoritative process of assessing what is retained EU law and what is not, and we are very satisfied that departments know exactly the legislation for which they are responsible.

It is not entirely clear—this goes back to a point that the noble Baroness, Lady Ludford, made the other day, with which I agree—because successive Governments over the years have used different processes to assimilate what was an EU obligation into UK law. Even if departments know what law they are responsible for, they do not necessarily know the process by which it was introduced, or whether that law was as a result of an EU obligation or not. The Government introduced earlier amendments to remove any legal risk of an SI being quashed if it contained a provision preserved as REUL that later turned out not to be one. Our advice to departments is that where they are not sure, it should be preserved.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

Moved by

[Lord Hope of Craighead]

2: At end, insert—
“(1B) Subsection (1) will only take effect if—(a) the legislation listed in Schedule (Sunset of subordinate legislation and retained direct EU legislation) has been referred to a Joint Committee of both Houses, and(b) a period of at least 30 days has elapsed after that referral, not including any period during which Parliament is dissolved or prorogued or either House is adjourned for more than four days.(1C) If the Joint Committee, after considering any legislation included in this Schedule, finds that the revocation of any item of legislation represents a substantial change to current UK law, a Minister of the Crown must arrange for the revocation of such legislation to be debated on the floor of each House and voted on before the date in subsection (1).(1D) If the revocation of any legislation is not approved by both Houses before the date in subsection (1), it is retained.”Member's explanatory statement
This amendment to the amendment in the name of Lord Callanan provides for the Schedule of retained EU law which is to be revoked to be referred to a Joint Committee of both Houses for sifting so that, in the case of those which represent a significant change from the preceding retained EU law, Parliament will be enabled to differ from the Executive and express its own view as to their contents.

[Lord Hope of Craighead (CB)]

My Lords, I think it will start our debate if I speak to Amendment 2 at this stage. That amendment, of course, is in my name and the names of the noble Lords, Lord Hamilton of Epsom and Lord Hodgson of Astley Abbotts.

I do not need to take up time by speaking to Amendments 10, 11 and 12 in this group—which are also in my name, and to which the noble Lord, Lord Murphy of Torfaen, and the noble Baronesses, Lady Randerson and Lady Humphreys, have added their names. The issues raised in Amendments 10 and 12 are no longer live in view of the removal of the sunset provision from Clause 1 and the Government’s proposal that Clause 3 should be deleted. This is also the case regarding the need to postpone the sunset date in the case of legislation relevant to common frameworks, which Amendment 11 seeks to do—although others of your Lordships may have something to say about this. Amendment 4 relates to a provision which the Government are proposing to remove from the Bill, so I do not need to say anything about that either. That leaves me with Amendment 2, to which I do wish to speak.

I am sure that I am not alone in welcoming government Amendments 1, 5, 12 and 68. This really is a victory for common sense. It was obvious to many of us in this House, especially those in touch with the devolved Administrations, that the scheme laid down in the Bill was never going to work within the time given to it. I reject the suggestion that the reason this is now being acknowledged is because of a failure of effort by civil servants. The fact is that however hard to civil servants tried, there was a real problem about getting the job done across all parts of the United Kingdom. There was always going to be a risk that work under the pressure of time would give rise to errors. Any error in this field, such as the removal of regulations that require or authorise the spending of money, could have grave consequences that could be hard to reverse. Care is needed, and that takes time. The devolved Administrations are in a particular difficulty. Their post-devolution regulations are not and cannot be listed on the dashboard; their legislative timetables are not equipped for the task within the timescale. That is the reality.

The Secretary of State deserves to be commended for the steps she has taken, but there remains a very significant gap which my amendments in this group—and in groups 3 and 6—are designed to address. This is that there is no provision for parliamentary scrutiny in the proper sense of those words. It is the greatest of ironies that taking back control over our laws—which is what Brexit was all about—has resulted in handing back this control to Ministers and civil servants, and not to Parliament. The parliamentary scrutiny over what they are doing is not there, other than in the most superficial way, as our power over delegated legislation is so limited. This has been described as an unprecedented transfer from Parliament to the Executive.

I think that all of us who were present at Second Reading can recall how strongly my noble and learned friend Lord Judge—whose absence I regret—felt about this subject. I am sure he would not object to my reminding your Lordships of what he said. It was short and to the point; it directed attention to what he thought was really happening. With his tongue firmly in his cheek, he said that he had received a letter by special messenger called “Restoring Parliamentary control”. It went over the key provisions of this Bill, one by one, and ended with this assertion:

“By agreeing to all these separate surrenders, Parliament will have taken back control. We trust you agree”.—[Official Report, 6/2/23; col. 1001.]


My Amendment 2 is based on amendments that were put down for Committee by my noble and learned friend Lord Judge, and my noble friend Lord Lisvane, who I am glad to see in his place. They provide for the referral of the list in the schedule to a Joint Committee of both Houses. In the event that the committee finds that the revocation of any item of legislation represents a substantial change of the law, it provides for that revocation to be debated on the Floor of each House and voted on.

[Viscount Hailsham (Con)]

The trigger point in the amendment is quite a narrow one: “substantial change”. Has the noble and learned Lord contemplated enlarging the power of the committee to require it to be put to the House if there was other substantial reason?

[Lord Hope of Craighead (CB)]

My Lords, “substantial change” probably accommodates what the noble Lord was thinking about. I am following a formula which the noble Lord, Lord Lisvane, thought was appropriate, bearing in mind that there are limits to the extent to which this House can lay down procedures for the other place.

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[Lord Hope of Craighead (CB)]

My Lords, there are references—for example, in Clause 16—to a sunsetting date, so there are parts of the Bill that retain sunsetting and it has not entirely been departed from. I see the value of sunsetting and I am in favour of reforming our rules book, but it would be a mistake to think that we were taking the brake off completely; that is not the way the Bill is constructed.

[Baroness Noakes (Con)]

With the greatest respect to the noble and learned Lord, I think the main substance of sunsetting has been removed by the amendments put forward by my noble friend because we do not reach a cliff edge at the end of this year, or such a later date as might have been put in place, for the whole of retained EU law to disappear if it had not been dealt with. That is the issue that I was referring to.

Perhaps I could just complete what I was saying. I hope that between now and our next day on Report we can have some constructive dialogue with my noble friend the Minister about how we can have some kind of process, information sources, or whatever, to ensure that what we have lost with these amendments—which is ensuring that we deal with the whole of retained EU law—can be salvaged.

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[Lord Callanan (Con)]

The directives she seeks an explanation on are not listed on the revocation schedule. Therefore, they continue to be in operation. They will be subject to a reform programme, but that is a question she will need to direct towards the Secretary of State at Defra.

[Lord Hope of Craighead (CB)]

My Lords, I have listened very carefully to what the Minister said. I have not seen the additional information which has apparently been circulated to some Members of this House, and I think many Members have no idea what it contains. That makes my point for me: proper parliamentary scrutiny is essential. That is what my amendment is all about and, with great respect to the Minister, I do not think he has really answered that point of principle. Having moved Amendment 2, I wish to test the opinion of the House.

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Moved by

[Lord Hope of Craighead]

15: Leave out Clause 4 and insert the following new Clause—
“Revocation of retained EU rights, powers, liabilities etc(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures retained by section 4 of the European Union (Withdrawal) Act 2018 are revoked at the end of 2023 in accordance with subsections (2) to (4).(2) A responsible Minister of a relevant national authority may make a statement before the end of October 2023 to, as the case may be, each House of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, identifying any rights, powers, liabilities, obligations, restrictions, remedies or procedures that the relevant national authority has decided not to restate, reproduce or replace before the end of 2023 and that it wishes to be revoked at the end of 2023.(3) If both Houses of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, as the case may be, resolve that a right, power, liability, obligation, restriction, remedy or procedure identified in the statement referred to in subsection (2) be retained, it is not to be revoked under subsection (4) at the end of 2023.(4) If, and to the extent that, no such resolution referred to in subsection (3) has been made before the end of 2023, the rights, powers, liabilities, obligations, restrictions, remedies and procedures identified in the statement referred to in subsection (2) are revoked with effect from the end of 2023.(5) Any right, power, liability, obligation, restriction, remedy or procedure that is revoked by virtue of this section is not recognised or available in domestic law at or after the end of 2023 (and, accordingly, is not to be enforced, allowed or followed).”Member’s explanatory statement
The purpose of this amendment, which is modelled on the amendment to Clause 1 in the name of Lord Hope of Craighead, is to enable Parliament and the devolved legislatures, not the Executive, to have the final decision as to whether or not rights, powers, liabilities &c. retained by section 4 of the EU (Withdrawal) Act 2018 should be revoked at the end of 2023.

[Lord Hope of Craighead (CB)]

My Lords, I will speak to two amendments in this group: Amendment 15, which I am moving, and Amendment 76, which comes later in the Marshalled List; I shall explain what that is about. One or two ancillary amendments—Amendments 69, 73 and 74—are related to Amendment 76.

This group seeks to develop further the application to this Bill of the principle of parliamentary sovereignty. Amendment 15 is in the name of the noble Lord, Anderson of Ipswich. I added my name to it, as did the noble Lords, Lord Hamilton and Lord McLoughlin. The noble Lord, Lord Anderson, is not here today, so I am moving Amendment 15 on his behalf.

Amendment 15 is directed to Clause 4, which is headed “Sunset of retained EU rights, powers, liabilities etc”. I say to the noble Baroness, Lady Noakes, that this is an example of a sunset that is still in the Bill and which we are not disputing should remain in the Bill. It provides, first, that

“Section 4 of the European Union (Withdrawal) Act 2018 … is repealed at the end of 2023”.

It then provides that

“anything which, immediately before the end of 2023, is retained EU law by virtue of that section is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed)”.

The purpose of Amendment 15 is to provide a mechanism for parliamentary scrutiny of subsection (2). There could be a great deal of law hidden behind the clause which we cannot understand or see. Therefore, it should be fully investigated by the relevant committee. The mechanism that we propose in Amendment 15 is that the law that would be affected by Clause 4(2) must be identified by the making of a Statement to Parliament before the end of October, which would then provide a basis for the matter to be debated in both Houses. The purpose of the amendment is simply to close a gap that might otherwise remain in the need for effective scrutiny.

I shall not take up time by reading out the whole of Amendment 15 as your Lordships can see what is there, but the explanatory statement says that it is modelled on the amendment to Clause 1, in my name, which has just been agreed by your Lordships,

“to enable Parliament and the devolved legislatures, not the Executive, to have the final decision as to whether or not rights, powers, liabilities … should be revoked at the end of 2023”.

I think that is all I need to say about Amendment 15. I do not want to take up further time by adding more to what I have said.

Amendment 76 in my name, along with—as I have said—those of the noble Lords, Lord Hamilton, Lord McLoughlin, and Lord Anderson, is very important because it is directed to the very heart of the Bill; this lies beyond the schedule that we will be looking at and beyond Clause 4, to which I have just been referring. It is directed to Clauses 13, 14 and 16.

I remind your Lordships that Clause 13 is headed “Power to restate retained EU law”. Clause 14 is headed “Power to restate assimilated law or reproduce sunsetted retained EU rights, powers, liabilities etc”, and Clause 16 is described as “Powers to revoke or replace”. These are extremely important powers that, as the Bill stands, are to be exercised by statutory instrument, not subject to parliamentary scrutiny, which is what we are seeking to do.

I do not wish to go over the arguments that we have debated so fully today, beyond emphasising that these are very far-reaching powers that will result in a complete rewriting of much of the law that we have kept on our departure from the EU. We do not dispute the need to do that—there has been a good deal of reference already today to the importance and indeed necessity of carrying out these exercises—but our point is that that cannot be left entirely to Ministers and civil servants without proper parliamentary scrutiny.

Amendment 76 is once again based on an amendment proposed by the noble Lord, Lord Lisvane, in Committee. It would provide for any instruments made under these three clauses to be referred to a Joint Committee of both Houses for scrutiny. Again, if that committee found that the regulations represented a substantial change to the preceding EU law or that sufficient public consultation had not been carried out, a Minister of the Crown would have to arrange for the instrument to be debated on the Floor of each House. It is contemplated that the Houses may agree to amendments, whether or not proposed by the Joint Committee.

Of course, the Minister may come up with a better scheme for subjecting those regulations to effective public scrutiny, but this is the best that, with the assistance of the noble Lord, Lord Lisvane, we have been able to devise. We have tried to keep the procedure as quick and simple as possible without disturbing the sunsetting provisions in the clauses and we are reasonably sure, on the advice of the noble Lord, that our proposal will meet these requirements.

[Viscount Hailsham (Con)]

Could the noble and learned Lord deal more fully with the amendment provision? It is a most interesting provision because hitherto my understanding has always been that statutory instruments cannot be amended. What is proposed in new paragraph 8A(3) in Amendment 76 is a power to amend a statutory instrument. I would like to know—

[Viscount Hailsham (Con)]

I am so sorry. Being rather deaf, I have to listen to what the noble and learned Lord is saying by turning towards him. I apologise. I would like to know—[Laughter] I am doing it again. I would like to know what the procedure is. Is it precedented, or is it a new concept that the House is being asked to contemplate—namely, the power to amend statutory instruments?

[Lord Hope of Craighead (CB)]

My Lords, the amendment, which I invite the noble Viscount to look at more closely, is carefully worded. All we say is that if any amendments to the regulations are agreed to—we have to be extremely careful in our proposal because we cannot direct what a Joint Committee of both Houses is going to do, which is a matter for it—we suggest that the committee may feel it appropriate to recommend that amendments should be laid. That is a matter for the Joint Committee. We are not giving a power ourselves but handing it over to the Joint Committee, which I think the noble Lord, Lord Lisvane, will confirm.

[Viscount Hailsham (Con)]

I am sorry to press the noble and learned Lord—while looking straight at your Lordships’ House—but is the concept that there will then be on the Order Paper proposed amendments to the statutory instrument, or will there be an informal recommendation by the Select Committee? Those are not the same things. I would be very pleased if they were a power to amend statutory instruments, and I would really like to know what procedure is contemplated.

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[Lord Hope of Craighead (CB)]

I am extremely grateful to the noble Lord for his explanation. I think the noble Viscount will appreciate that we have to deal with this very carefully. On the other hand, I think he will agree that, given the nature of the task being carried out, it would be extremely unfortunate if a flaw were spotted and nothing could be done about it. We are trying to suggest a mechanism by which something that is agreed by the Joint Committee, and indeed by both Houses as necessary, should be capable of being done. I hope I may leave it at that. This is a carefully drafted amendment that is doing its best to address an extremely important and, in some respects, quite delicate task.

When the time comes, if necessary, I shall seek the opinion of the House on Amendment 76. For the time being, because we have before us Amendment 15, that will be my position too, if necessary, when Amendment 15 is called.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, we have had two significant amendments proposed by the noble and learned Lord. I have Amendments 73 and 74 in this group, which are small and technical but significant in the way in which they try to enhance the scrutiny provisions that underlie the noble and learned Lord’s two amendments, which I entirely support. I will not repeat my reasons because I would be largely rehearsing the arguments that I made an hour and a half ago.

It is generally anticipated, though not certain, that the Secondary Legislation Scrutiny Committee will be one of the bodies appointed to carry out some scrutiny of the regulations, as and when this particular part of the Bill comes into force. The Bill as drafted envisages a period of 10 working days for a report to be produced by the SLSC that would then come before the House, and the House would make its mind up about its view of that report on the instrument. The Government use the example—the dreaded precedent—of the 10-day period provided under the European Union (Withdrawal) Act 2018. In the SLSC report that I referred to earlier, we proposed that the period should be extended from 10 days to 15. We said in paragraph 58:

“We know from our own experience in scrutinising proposed negatives under the 2018 Act that, depending on the day of the week on which a proposed negative has been laid, meeting that 10-day deadline could be challenging”.


Under the Bill, the regulations to be scrutinised are of an entirely different level of policy implication, importance and significance. This view and the proposal for a five-day extension—by no means a huge length of time—have been endorsed by the Hansard Society, which Members of the House will be aware is an academic expert in matters of parliamentary procedure.

In Committee on this Bill on 8 March, at col. 876, my noble friend, having heard the debate on these amendments, was kind enough to offer to go away and reflect. I have no doubt that he did his level best, but I fear that he was rebuffed because the Government said in their response to the SLSC report of 10 May:

“Having considered this carefully and in particular how the existing 10 day sifting practice works, the Government remains of the view that a 10 day sifting period is sufficient for SIs laid using the powers in the Retained EU Law Bill … The retained EU Law programme is a similar challenge”—


to 2018—

“but it is no more complex or demanding”.

I have just two points on that. First, to describe this Bill as no more complex and demanding, compared to that of 2018, is, I am afraid, plain wrong. It is a much more significant piece of legislation than the 2018 Act. Secondly, the members of the SLSC do not come to this view ex cathedra. We think about it, but we also talk and take into account the views of the highly experienced and dedicated staff, who produce excellent reports which come before your Lordships’ House every week.

To conclude, I suppose I could just about have got my mind around my noble friend’s view that it should be 10 days after all when we were under the cosh of the 31 December drop-dead end date. We do not have that now, so the time pressure that was otherwise going to be imposed has now been released and reviewed. I urge my noble friend to go back to the chateau behind the lines and ask the general commanding to think again. If the Government do not think again, it will be yet another example of how they appear intent on marginalising Parliament at every single opportunity.

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[Lord Callanan (Con)]

My Lords, Amendment 15 tabled by the noble Lord, Lord Anderson, and moved by the noble and learned Lord, Lord Hope, effectively seeks to delay a vital part of the Government’s retained EU law reform programme whereby EU rights, obligations and remedies saved by Section 4 of the European Union (Withdrawal) Act 2018 will cease to apply in the UK after 31 December 2023. The matters saved by Section 4 consist largely of rights, obligations and remedies developed in the case law of the Court of Justice of the European Union. Many of these overlap with rights already well established by domestic law in this country, and those overlaps can cause confusion.

Where the UK and devolved Governments consider that there is a need to codify any specific rights that may otherwise cease to apply, this can be done under the Bill’s powers. These codified rights will be placed on a sustainable UK footing, providing certainty and therefore safeguarding and enhancing them in domestic statute. The Bill is ending the current situation whereby citizens must rely in some cases on an unclear category of law and complex legal glosses to enforce their rights. Sadly, the proposed amendment seeks to perpetuate this situation, which the Government consider unacceptable. I hope the noble and learned Lord will withdraw his amendment.

Amendments 69, 76, 73 and 74 relate to Schedule 4 and parliamentary scrutiny. Amendments 73 and 74, tabled by my noble friend Lord Hodgson of Astley Abbotts, relate to the sifting procedure and seek to extend the period during which committees of this House and the House of Commons can make a recommendation about the relevant scrutiny procedure for regulations made under Clauses 13, 14 and 16. Specifically, these amendments seek to change the time limit under which both Houses can make recommendations on the appropriate procedure to be used when an instrument is laid and subject to the sifting procedure.

As the provision is drafted, relevant committees of this House and the Commons have a period of 10 sitting days to make recommendations on the appropriate scrutiny procedures. This starts on the first day on which both Houses are sitting after the instrument has been laid. If the period of 10 sitting days does not cover the same dates for both Houses, the end date of the relevant period will be the later of the two dates. Amendment 73 extends the number of sitting days in the period from 10 to 15 for the House of Commons, while Amendment 74 does the same for this House.

As I have been reminded by a number of noble Lords, particularly my noble friends Lord Hodgson and Lord Hunt, I committed in Committee to review the 10-day scrutiny period for sifting. I engaged in extensive discussions not just in the department but with the business managers about whether a 10-day sifting period was sufficient. As my noble friend Lord Hodgson intimated, I was not successful in persuading them. The Government’s position remains that a 10-day sifting procedure is sufficient for SIs laid under the powers in the Bill.

It is also worth pointing out that we had that debate under the old provisions of the Bill. Under the new schedule approach, the total volume of statutory instruments to be delivered via the reform programme has been significantly reduced. My noble friend’s concern that there was not enough time to consider them properly will have been to some extent allayed, given the previously very large volume of SIs.

From previous experience, the 10-day period worked quite well during the programme of SIs for EU exit and is in line with the sifting procedures and legislation introduced under the European Union (Withdrawal) Act. I have some confidence that it will continue to work well in this scenario. Therefore, I am afraid the Government do not consider it necessary to extend the time limit within which an instrument is scrutinised as part of the sifting procedure.

I turn now to Amendments 69 and 76 from the noble and learned Lord, Lord Hope. These amendments put a somewhat novel scrutiny procedure in place for the powers under Clauses 13, 14 and 16. Specifically, Amendment 69 removes the requirement for certain regulations made under those clauses to be subject to the affirmative procedure. In consequence of this, Ministers would be left with a choice between the negative or affirmative procedures, with the former subject to the sifting procedure.

Amendment 76 imposes this novel and untested scrutiny requirement on regulations made. This takes the form of an enhanced sifting procedure—not dissimilar to the super-affirmative procedure—under which Parliament may make amendments to a proposed instrument. The Government believe that the purpose of this Bill is to ensure that we have the right regulations in place which are right for the whole of the UK. The House can be assured that the Government will ensure that any significant retained EU law reforms will receive the appropriate level of scrutiny by the relevant legislatures and will be subject to all of the usual processes for consultation and impact assessment. However, we also believe that we have to ensure that the limited amount of parliamentary time that is available is used most appropriately and most effectively. Requiring that the powers be subject to additional scrutiny is neither appropriate nor necessary in this case.

The sifting procedure that we suggested was purposely drafted as a safeguarding measure for these powers. The sifting procedure will give the UK Parliament the opportunity to take an active role in the development of this legislation. It is a tried and tested method of parliamentary scrutiny which delivers—in my view—good results for everyone and does draw on the expertise of our various parliamentary committees. Requiring that legislation to be subject to novel, untried, untested and onerous scrutiny, such as this enhanced sifting mechanism would—in my view—not be an effective use of parliamentary time. It would result in delaying departments delivering their REUL reform programmes and would delay the Bill in delivering its objective of bringing about much-needed REUL reform. For all those reasons, the Government cannot support Amendments 69, 76, 73 and 74.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have spoken in the course of this debate. I do not want to go over the arguments again. On the criticisms the Minister has made about my two amendments, I have only two points to make.

First, I think he said that the purpose of Amendment 15 was to delay the process that Clause 4 is talking about. That is simply not true. We have kept within the timetable that Clause 4 itself lays down. As I made clear, the aim throughout our amendments is to try to achieve what is required as quickly as possible. The sunset date in Clause 4 remains, according to our amendment. So, to say that we are delaying anything is, with great respect, not the case.

Secondly, to describe Amendment 76 as novel and untested is not a criticism that meets the situation. We are dealing with an entirely new situation where we are having to redesign an enormous quantity of EU law which we have inherited. Of course, the system we have devised is new because we are dealing with something we have never encountered before. That itself is no answer to the point that we were making throughout: parliamentary scrutiny is essential. The noble Lord, Lord Kerr, drew attention to provisions in Clause 16 which absolutely emphasise the essential nature of that. So I move Amendment 15 and, if it is not agreed to, I wish to test the opinion of the House.

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Moved by

[Lord Hope of Craighead]

17: Clause 7, page 5, line 25, at end insert—
“(6A) The Scottish Ministers may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).(6B) The Welsh Ministers may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).(6C) A Northern Ireland department may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).”Member's explanatory statement
This amendment gives the Scottish and Welsh Ministers and a Northern Ireland Department a power, equivalent to the power of Ministers of the Crown in Clause 7(6), to amend legislation in consequence of the change in terminology from ‘retained EU law’ to ‘assimilated law’ made by Clause 7.

[Lord Hope of Craighead (CB)]

I am sorry; it falls to me to introduce this group—again.

This is about devolution. One of the concerns about the Bill as drafted is that it does not pay proper attention to the devolution settlements as regards Scotland, Wales and Northern Ireland, and to the key principle of respect and co-operation that underpins those settlements. I have several amendments in this group to which I wish to speak, as briefly as possible: Amendments 17, 35, 37, 39, 72A and 75.

Amendment 17 seeks to extend the regulation-making power under Clause 20 that is referred to in Clause 7 to Ministers in each of the three devolved Administrations. I seek clarification from the Minister as to whether this point is already met by government Amendments 57 to 60, which, among other things, extend the power in Clause 20 to make regulations to the devolved Authorities. If that is the case, I am very grateful and may not press this amendment.

Amendments 35, 37 and 39 seek to ensure that the consent of the relevant devolved legislatures is sought before a Minister of the Crown can make regulations under Clauses 13, 14 and 16 where the provisions fall within devolved competence. The principle that lies behind these amendments is very simple: respect and co-operation is key to the effective operation of the devolution settlements, and that is what these amendments seek to give effect to.

Amendment 75, to which Amendment 72A is related, seeks to apply the same principle to the powers given to a Minister of the Crown acting alone under Part 3 of Schedule 4. These powers should be exercised in devolved areas, only with the consent of Scottish or Welsh Ministers or a Northern Ireland department, as the case may be. These amendments are not intended to delay matters; they simply seek to obtain the proper respect for the devolved Administrations which is the essence of the devolved settlements.

I am open to correction; it may be that the government amendments meet what I am seeking. However, if they do not go far enough, I invite the Minister to give further thought to my amendments. I beg to move.

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[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

My Lords, I too thank the noble and learned Lord, Lord Hope of Craighead, the noble Baroness, Lady Ritchie of Downpatrick, and other noble Lords who have contributed to this debate, to all the extensive and useful debates we had in Committee, and—this is important—for the useful engagement that has taken place on the devolutionary aspects of the Bill.

The Government have listened carefully to the concerns raised both in the debates in Parliament and by the devolved Governments and have tabled the government amendments in this group in response. Amendments 52 and 53 extend the power to make consequential provision under Clause 20 for the devolved authorities. Amendment 58 extends the power to make transitional, transitory and savings provisions under Clause 23 to the devolved authorities. These amendments will make the consequential power and the power to make transitional, transitory and savings provisions concurrent powers. This will enable UK Ministers and the devolved Governments—or both acting jointly—to exercise the powers in devolved areas.

The remaining government amendments, Amendments 54, 55, 56, 57, 59, 60, 65, 66, 67, 70, 71, 72 and 77, are consequential. They will remove the requirement for the devolved Governments to request the UK Government to make such changes on their behalf. Furthermore, these amendments will align these powers with the other powers in the Bill, which are also conferred concurrently on the devolved Governments.

I hope that noble Lords will agree that this is a meaningful change to the Bill that demonstrates the UK Government’s commitment to working collaboratively with the devolved Governments—which we talked about in Committee—and ensuring that the Bill works for all parts of the UK. Amendment 71 is a further technical amendment that I think everybody is happy with.

Amendment 17, tabled by the noble and learned Lord, Lord Hope of Craighead, is to Clause 7. As we have now extended the power to make consequential provision under Clause 20 on devolved authorities, he is right that it is no longer necessary.

I turn to Amendments 35, 37, 39 and 75, which relate to powers under Clauses 13, 14 and 16 and Schedule 4. Amendment 35 requires that the power to restate REUL cannot be used to restate it in areas of devolved competence unless the relevant parliament has provided legislative consent for the retained EU law to be restated. Amendments 37 and 39 place similar requirements on the power to restate under Clause 14, and on the powers to revoke or replace under Clause 16.

In essence, these amendments would carve out regulation within areas of devolved competence in the absence of legislative consent. As has been said, Amendment 75 similarly seeks to impose a requirement for a Minister of the Crown to seek legislative consent when using the powers on legislation within areas of devolved legislative competence. These amendments are unnecessary. The UK Government are committed to ensuring that the provisions in the Bill, including its powers, are consistent with the devolution settlements and work for all parts of the UK. Indeed, the majority of the powers in the Bill are conferred concurrently on the devolved Governments, which will enable them to make active decisions regarding their retained EU law.

It is not necessary to limit the use of the powers within areas of devolved legislative competence by requiring UK Ministers to obtain legislative consent. Rest assured, the concurrent nature of the powers is not intended to affect the devolution settlements, nor to influence decision-making in devolved Governments. Rather, it is intended to reduce additional resource pressure on the devolved Governments by enabling the UK Government to legislate on behalf of a devolved Government where they do not intend to take a different position.

Let me move on and address Amendments 41 and 46, eloquently spoken to by the noble Baroness, Lady Ritchie of Downpatrick. Her amendments would restrict the exercise of the powers to revoke or replace and the power to update. They require that any replacement instruments could not effect substantial policy change relating to human rights, equality or environmental protection that has effect in Northern Ireland. The Government intend to maintain the UK’s leading role in the promotion and protection of human rights, equality, the rule of law and environmental protections. We are proud of our long and diverse history of freedoms. The Government do not intend to undermine our hard-won human rights, equality and environmental legislation through the exercise of these powers. I should perhaps add that we are committed to ensuring the UK’s compliance with our international obligations, such as our human rights obligations. I therefore do not judge that the proposed restrictions to this clause are necessary.

Amendment 61 in the name of the noble and learned Lord, Lord Hope of Craighead, is no longer necessary in the light of the amendments that the Government have tabled in relation to Clause 23.

Finally, I turn to the noble and learned Lord’s latest amendment, Amendment 72A. It relates to Amendment 76, which we discussed in the previous grouping and which seeks to insert a new paragraph in Schedule 4 to the Bill. As Amendment 76 has fallen away, this amendment is now redundant.

Let me say that we have come a long way on this part of the Bill, as has been acknowledged on all sides. For all the reasons I have outlined, I ask that these amendments be withdrawn or not pressed.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who spoke in this debate; I am particularly grateful to the noble Baroness, Lady Humphreys, for her very kind words.

I listened carefully to what the Minister said. I am grateful for her assurance that Amendment 17 is not required; that was my impression, so it is nice to have confirmation of that from her.

As far as the other amendments are concerned, I take the point that increasing pressure on resources is something that we should try to avoid. I see the value of joint working, which is really what the Minister described to us in her reply. I recognise that the Government have gone a long way in their amendments in this group, for which I am extremely grateful; I am sure that all others who care about devolution would say the same.

I will not press the amendments, but I hope that the message is still powerfully in the mind of the Government that continued co-operation and easing of the pressures round about to achieve a consensus across the board is the way to proceed if we possibly can. I think that the signs behind the scenes are that that can be achieved. I am grateful for that. For that reason, I beg leave to withdraw my amendment.

Amendment 17 withdrawn.

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Moved by

[Lord Hope of Craighead]

18: Clause 8, page 6, leave out lines 27 and 28
Member's explanatory statement
Inserted paragraph (b), which this amendment seeks to remove, could undermine legal certainty and risk bringing the judiciary into the political arena.

[Lord Hope of Craighead (CB)]

My Lords, this is an entirely different group. Amendment 18 deals with the provisions relating to the role of the courts in reforming our law in the light of our withdrawal from the European Union.

This group contains various amendments in my name, which fall into two parts. Both relate to the provisions of Clause 8, which is designed to deal with the subject matter that I just mentioned. The first part—Amendments 18 to 29—is concerned with the role that the courts will play in reforming our domestic case law as we depart from retained EU case law. The second part—Amendments 30 to 34—is concerned with the role of the Lord Advocate in the making of references to the courts on points of law regarding retained case law. The noble Lord, Lord Anderson, has kindly added his name to my amendments in the first group but, for reasons that I can well understand, he has not gone that far in relation to my amendments about the Lord Advocate.

I can be very brief about the first group because the Minister has now added his name to two of my amendments in it, for which I am grateful; these are Amendments 24 and 27. He has also added two consequential amendments of his own.

My amendments were designed to do two things. The first was to simplify the work of the courts in this potentially difficult area and preserve legal certainty. The second was to give the courts a discretion to decline to accept a reference by a lower court or tribunal on retained case law in place of the obligation to do so, which is what the Bill currently provides. The obligation was an obstacle to efficiency in the running of the courts. It never made sense for the senior courts to be so encumbered by worthless or unnecessary references as to be unable to conduct their business in the way they would wish to do.

I am very pleased that the Government have now accepted that the senior courts should have that discretion and that, in the Bill as currently drafted, “must” should be changed to “may”. It means that good sense has prevailed and that the courts will not have to accept a reference on points that have already been decided or would be better dealt with under another reference that is already pending or one that has no reasonable prospect of success. That is extremely helpful; I know that, for his part, the President of the UK Supreme Court is also grateful to Ministers for making that concession.

The Minister has not gone as far as I would have liked on my other amendments, but I am not going to look a gift horse in the mouth, if I can put it that way, so I will not press those amendments.

As for the second group, relating to the role of the Lord Advocate, the Lord Advocate has written to the Secretary of State more than once to explain her concerns, which I have tried to capture in my amendments. She is seeking parity with the UK law officers in the exercise of the functions to which this clause refers. Her point is that her role is not thought to be a political one in furtherance of Scottish government policy; nor should it be thought that she exercises her role collectively with the Scottish Ministers. She values her independence, which is crucial to the position that she occupies as the senior law officer in Scotland.

I do not think that it would assist the House if I were to develop these arguments further now, but I would be grateful if the Minister would undertake to ask the Secretary of State to look at this issue once again, one more time, so that a proper balance can be achieved. I beg to move.

[Baroness Ludford (LD)]

My Lords, I will be brief. I lend the support of these Benches to the important amendments from the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Anderson of Ipswich. They might seem perhaps a little specialised, but they are extremely important. There might not be any intention to press any of these amendments to a vote, but I do hope that the Government will see their way to taking on board more than they have already in the two amendments from the noble Lord, Lord Callanan.

These amendments are about trying to remove threats to legal certainty and therefore to increase legal certainty, respecting the courts and their ability to run their business efficiently and removing the peril of the court being asked to venture into political and policy matters. We know about the flak to which the courts have been exposed—including, it has to be said, not being defended by the person in government who should have defended them.

It therefore seems perverse that the Bill, as drafted, would increase the likelihood of the courts being exposed to being hanged, drawn and quartered, as we have seen on the front pages of certain newspapers at various times. So there is a desire to get more predictability and certainty into the law, and more discretion for the courts to run themselves as they see fit and not have to do things that would get them into shark-infested waters. So, even though it seems that these important amendments will not be determined by the House today, I hope that the Government will reflect before Third Reading and see the wisdom behind them.

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[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to the Minister for his careful reply. On the point that we are agreed upon, the change of the word “must” to “may” may seem a very minor change, but words matter a great deal and it is a very significant change indeed. That is why I express gratitude to the Minister and, on his behalf, the gratitude of the president of the court for accepting that change, because it makes a great deal of difference to the court and the way in which it can organise its business. It can be relied upon, I think, to exercise its functions under the Bill to the fullest degree in seeking to achieve the aim, which is, as speedily as possible, a return to our own system of law from what we have inherited from the European Union.

As for the retained functions of the Lord Advocate, the word “retained” is really referring to pre-devolution functions. The Minister is quite right that the principal function of the Lord Advocate before devolution, which is retained, is the right to continue the whole responsibility of conducting criminal prosecutions in Scotland. There is something that he has missed out: it is perhaps not very significant, but investigation of deaths is also a function of the Lord Advocate which is retained.

I think all I can say is that I appreciate the thought that has been given to the Lord Advocate’s request. Of course, she is disappointed that the view has been taken that everything she is asking for cannot be given to her and we will just have to see how the system works out. Of course, it is all a matter of making references to the court. No doubt, in the course of argument, things may be presented which the court can consider if they are on the fringes of what is described in the Bill, or the Act as it becomes.

Words matter: again, the court will look at the reference and see whether it is something that it can accommodate within the wording of the legislation. So, I am grateful to the Minister for his careful reply and the thought that has been given to it and I will not press those amendments. For the reasons I have given, I beg leave to withdraw Amendment 18.

Amendment 18 withdrawn.

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Moved by

[Lord Hope of Craighead]

24: Clause 8, page 7, line 39, leave out “must” and insert “may”
Member’s explanatory statement
This amendment seeks to preserve the court’s discretion to refuse to accept a reference, which is a necessary safeguard against abuse.

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Moved by

[Lord Hope of Craighead]

27: Clause 8, page 8, line 3, leave out “must” and insert “may”
Member’s explanatory statement
This amendment seeks to preserve the court’s discretion to refuse to accept a reference, which is a necessary safeguard against abuse.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

Moved by

[Lord Hope of Craighead]

40: Clause 16, page 19, line 19, at end insert—
“(3A) The power of a relevant national authority to make regulations under subsections (1), (2) and (3) is subject to the provisions of Part 3 of Schedule 4.”Member’s explanatory statement
The purpose of this amendment is to enable Parliament and the devolved legislatures to overrule the Executive and express their own view as to the contents of regulations that are to be made under this section.

[Lord Hope of Craighead (CB)]

My Lords, this quite short group of amendments is concerned with Clause 16. It is a very worrying clause, for various reasons. My amendment seeks to tie the power of the relevant national authority to exercise the regulation-making power under this clause to the provisions of Part 3 of Schedule 4.

My Amendment 76, which we have already discussed, relates to Part 3 of Schedule 4. The point is to make sure that the regulation-making power is subject to parliamentary scrutiny. That is true not only of the UK Parliament; it applies also to the Senedd in Wales and the Northern Ireland Assembly. The Scottish decision has been that the power should remain with Ministers, and that is a matter that can be left to them.

The really important point is to make sure that the regulation power is subject to Amendment 76, which I am seeking to make on Wednesday. I do not think I need to say any more about this because the more important amendment is Clause 16 stand part. I am sure that the noble Baroness, Lady Chapman, will make clear the position regarding the defects in the clause that gave rise to her amendment. She will do that far better than me so I shall simply leave it at that. I beg to move.

[Lord Lucas (Con)]

My Lords, I have Amendment 41A in this group. We discussed this issue in Committee. I said, “If the Government want to go down the route of keeping in Clause 16(5), why don’t they promise the same about the environment?” After all, the Government made the same set of promises regarding environmental legislation—that they would not do anything to damage the protection that the current regulations offered—while here in Clause 16(5) they are saying they will not do anything to increase the regulatory burden.

The Government wisely said they did not want to put in the Bill the promise that they would not damage environmental regulation. I had rather hoped that meant they would take out Clause 16(5), because to my mind that subsection offers nothing but uncertainty. How is it to be interpreted by the courts if the Government propose to use the clause and someone challenges its use in the courts, saying, “This subsection says ‘in relation to a particular subject area’. Has that been reasonably chosen and correctly defined? What is the overall effect of the changes?”? They will have to look at every piece of legislation that has passed in relation to that particular subject area. How are they to be weighed up? There is no mechanism here providing for them to be weighed.

The courts are going to be asked how one bit of legislation should be weighed against another with regard to the changes that it makes and the regulatory burden. How do you weigh one bit of regulatory burden against another if one bit of regulation imposes something on one group and the next regulation imposes something on another? How do you weigh those two things together? It seems to be asking the absolute impossible. It means that any bit of legislation passed under Clause 16 will be open to all sorts of challenges in the courts, and there will be no way of knowing what the outcome will be, because nothing in this subsection, or elsewhere in the clause, tells you how to parse it. So I hope the Government will see the good sense they had when they chose not to adopt my suggestion of doing this for environmental legislation and take Clause 16(5) and (6) out of the Bill.

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As has been set out in Clause 16(6), the creation of a voluntary scheme, which my noble friend’s amendment also queries, is not regarded as increasing the regulatory burden. The truth is that the restrictions to the powers to revoke or replace in subsections (5) and (6) will help the UK to establish a more nimble, innovative and UK-specific regulatory approach to get on and seize the opportunities of Brexit. Those of us, right across the House, who worked in Brussels were often frustrated; now is the time for us to look in a considered way at our legislative almanac, to make sure that we are moving forward sensibly. To get rid of those subsections would be to open us up to complex and burdensome changes, which might hamper growth and competitiveness and go against other comments that noble Lords have been making on Report. The whole debate has been good, but, for all those reasons, I ask that the amendments are not pressed.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to the Minister, as I am sure are others who have spoken in this debate, for her careful reply to the points that have been made. There is no doubt that the wording of Clause 16 gives rise to concern, particularly the width of subsections (2) and (3), and, according to the points made by the noble Lord, Lord Lucas, subsection (5). One cannot rule out the possibility of judicial challenge because, while primary legislation is not justiciable, delegated legislation is. I find it difficult to predict what a court would make of subsection (5) for the reasons that the noble Lord, Lord Lucas, has given.

As for subsections (2) and (3), my Amendment 76 would remove much of the concerns. What I was offering was a package. In a way, Amendment 76 remains: it will still be there whatever happens to Amendment 40; the protection we are seeking to provide will be available there. Without taking up more of your Lordships’ time, I thank the Minister for her reply and seek leave to withdraw Amendment 40.

Amendment 40 withdrawn.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, may I just support what my noble friend has said? The task contemplated by Amendment 51A is immense, and I would have thought there were better uses of the Civil Service’s time.

[Lord Hope of Craighead (CB)]

My Lords, the amendment makes no reference to the devolved Administrations, and they have a considerable burden themselves to bear. I hope the Minister has been very careful to have regard to the interests of the devolved Administrations and will consider their position when he decides what to make of this amendment.

[Lord Fox (LD)]

My Lords, first I would like to associate myself with those last two comments and those of the noble Lord, Lord Carlile. This amendment should not in any way be conflated with the amendments that we have passed and, I hope, we will pass later today. Rising to speak to this amendment rather feels like gate-crashing someone else’s private argument. I beg your pardon, but I am going to continue.

In normal circumstances, if there was anyone I would send out to reduce bureaucracy, it would be the noble Baroness, Lady Noakes. Sadly, she seems to have broken from her norm with this amendment—perhaps she has been egged on or even corrupted by the co-signatories of this amendment. However, it does seem like it is one fight too many for the Government, and I understand that to some extent the Minister will be conceding on this. No doubt in the Government’s estimation this is perhaps a bone that can be thrown to one part of their own party without actually causing too many problems for the rest of the Bill—so good luck to the Minister on that one.

To what end will we have this list? I am a little curious as to what we will be listing. The noble Baroness, Lady Lawlor, raised this to some extent. I think it would be helpful for your Lordships if the Minister could confirm at what point in the process of this Bill retained EU law that is not revoked by the schedule becomes assimilated law. In other words, when will this happen? When in the process of this Bill do Clauses 4, 5 and 6 cause these laws to slough off the links they have with the ECJ and all those interpretations based on EU values, which noble Lords opposite object to? At what point are these laws rendered just as susceptible to British common law as any other law on the statute? It would be helpful to know the dates when those things will happen because, once that has happened, it seems there will no longer be any retained EU law: it will be assimilated law formerly known as retained EU law.

An intriguing vision visited me when I was pondering this. In the popular motion picture “Blade Runner”, the hero, Harrison Ford, is tasked with rooting out and eliminating replicants. As I am sure the noble Baroness, Lady Noakes, will remember from when she queued to enter the cinema, the replicants are essentially synthetic humans, indistinguishable from and which function as real humans—hence, they are rather hard to find. In a sense, the noble Baroness, Lady Noakes, is seeking to brand these laws in order that they do not become indistinguishable replicants once they enter the canon of British law. Of course, that is her point; she has to maintain a difference between these laws in order to continue to have a conflict. This is, of course, a conflict between and among her parliamentary colleagues rather than the rest of us.

If, instead of focusing on where these laws came from, they focused on what they do, the whole process would be more worth while. Some of this assimilated law will need revoking or reforming, but similarly so do swathes of laws that were directly made by this Parliament. The invaluable time spent on the process in the amendment tabled by the noble Baroness, Lady Noakes—her annual census of the replicants perhaps—would be better spent actually doing the sort of things we need to do to make regulations smarter, as was noted by noble Lords just now.

The noble Baroness, Lady Noakes, mentioned the Financial Services and Markets Bill. She may be dissatisfied with what is going on there, but that seems to be a model of how this process should go. If you take a sector, the job of Parliament is to assess all of the relevant laws pertinent to that particular sector. Some of them will need retaining; some of them will need revoking; some will need reforming, and there will be a need for new laws. At the end of it, Parliament will have gone through the whole process—irrespective of where those laws came from. It is not about where they came from; it is about what they do. This is unnecessary and it is essentially an irrelevant piece of legislation designed to create an argument within the party opposite.

It is the sort of clause that the noble Baroness, Lady Noakes, would normally come down on like a ton of bricks. It is a list that the noble Baroness, Lady Noakes, and her colleagues on this amendment can use to fuel a fight with other members of the Conservative Party and nothing more—so good luck with that.

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[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful for the kind words from the noble Baroness, Lady Brinton. I was not going to speak, but I would like to echo the remarks she made and repeat my concern, shared by other noble Lords, that there is not going to be sufficient time for a consultation on the directives relating to gluten, flooding and other issues. The Food Standards Agency agrees with all the directives in the proposed new schedule but is concerned that, by the time the Bill receives Royal Assent, there will be a perilously short period in which to conclude the required consultations.

I echo the concerns raised by the noble Baroness, Lady Hayman of Ullock, regarding the Flood Risk Regulations 2009, at page 10, line 197 of the proposed new schedule. I stand to be corrected by my noble friend the Minister, but it is my understanding that this is not a transposition of EU law but an entirely UK measure. I would like to know, for greater clarification and understanding, why these regulations are included in the proposed new schedule.

I echo also the concerns of the noble Baroness, Lady Bakewell of Hardington Mandeville. I think we all accept that in the 1980s, the UK was known as the dirty man, or woman, of Europe, and it took a female Prime Minister, Baroness Thatcher—then Margaret Thatcher—to take the plunge and implement all the EU directives and regulations. These have moved on, and since we have left the European Union the water framework directive and others—most recently, the urban wastewater directive—are going through a further transposition. Obviously, they will no longer apply to UK water companies. I realise it is a different department but I hope Defra, along with my noble friend, will look favourably on some of the requirements set out therein, which may actually benefit the UK’s environment: bathing waters, drinking water and especially wastewater.

I seek clarification from my noble friend of something he said, as I do not think he answered the concerns I expressed on Monday. He was very clear that we are dropping the interpretative effects of retained EU law, but I would like to press him in this regard because the indirect effect of EU law is also sometimes referred to as the “consistent interpretation” of EU law. I hope that a company in this country seeking to export or conduct its business in an EU country—selling insurance policies, for example—will not be disbarred from doing so because we are not interpreting the law in the same way as EU countries. I realise that my noble friend was very clear on this point, but can he ensure that there will be no discrimination in this regard against UK companies trying to do their business and trade in an EU country?

[Lord Hope of Craighead (CB)]

My Lords, the amendments moved by the noble Baronesses leave me feeling very uneasy—not because I doubt the validity of the points they have raised, but because I am concerned about things that may have been missed out. The fact is that we have been presented on Report with an enormously long proposed schedule and a spreadsheet and, frankly, this is no way for parliamentary scrutiny to be conducted in the Chamber. It is a different matter in Committee, where we can have things on tables in front of us, but it is quite impossible to go through the proposed schedule in this Chamber with the respect and detail that it deserves on Report. That is my concern.

I confess that I have not had the time or resources to go through the whole of the proposed new schedule. I have spotted, as has been noted, a number of things that quite obviously have to be discarded. That is not in doubt. However, it is the things that need to be examined carefully in detail in order to see mistakes of the kind that these amendments draw attention to that trouble me very greatly. I just express my great concern about the process we are undertaking, which, in my respectful submission, cannot really be described as parliamentary scrutiny.

[Baroness Butler-Sloss (CB)]

My Lords, with two grandchildren who are gluten-free, I strongly support and share the concerns of the noble Baroness, Lady Brinton. Perhaps more fundamental are the points that the noble and learned Lord, Lord Hope, has just raised. Throughout this process, I have become increasingly concerned about what may be left out or partially changed. Speaking as a former lawyer, what is going to happen when these matters come to court, as we said in Committee? We discussed what would be said when these matters come to court and someone relying on a regulation finds that it no longer exists, or that it has been changed without anyone having any idea that it had happened. As the noble and learned Lord said, this is absolutely not the way to deal with retained EU law.

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Moved by

[Lord Hope of Craighead]

76: Schedule 4, page 49, line 10, at end insert—
“8A “(1) A Minister of the Crown may not make a statutory instrument containing regulations under sections 13, 14 and 16 unless— (a) a document containing a proposal for those regulations has been laid before each House of Parliament,(b) the document has been referred to a Joint Committee of both Houses, and(c) a period of at least 40 days has elapsed after that referral, not including any period during which Parliament is dissolved or prorogued or either House is adjourned for more than four days.(2) If the Joint Committee, after considering any regulations laid under this paragraph, finds that—(a) the regulations represent a substantial change to the preceding retained EU law, or(b) the Government have not carried out sufficient public consultation lasting at least six weeks before laying the draft before Parliament,a Minister of the Crown must arrange for the instrument to be debated on the floor of each House and voted on before the period in sub-paragraph (1)(c) elapses.(3) If any amendments to the regulations, whether or not proposed by the Joint Committee, are agreed by both Houses of Parliament the regulations must be made in the form so amended.(4) If one House agrees amendments to the regulations under sub-paragraph (3) the Minister may not make the relevant statutory instrument until the other House has debated and voted on a motion to agree or disagree with those amendments.”Member's explanatory statement
This amendment provides for instruments made under clauses 13, 14 and 16 to be referred to a Joint Committee of both Houses for sifting so that, in the case of those which represent a significant change from the preceding retained EU law, Parliament will be enabled to differ from the Executive and express its own view as to their contents.

[Lord Hope of Craighead (CB)]

This amendment is about parliamentary scrutiny; it was very fully debated last Monday. If it is not agreed, I will seek to test the opinion of the House. I beg to move.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

3rd reading
Monday 22nd May 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, Amendment 1 introduces a new clause after Clause 17. Amendments 2 and 3 in this group are consequential.

I am grateful to my noble friend Lord Callanan for adding his name to the amendments and I am even more grateful to my noble friend’s officials, who have produced these amendments at great speed in response to the less elegant amendment which I moved on Report last week. It is a great privilege to be given the opportunity to table these amendments in my name.

The underlying concept behind these amendments is transparency about the progress that the Government are making in dealing with retained EU law. This Bill now revokes only a portion of that law, but it will remain an important task for the Government to decide what to do with the rest of the laws on our statute book and ensure that they support the needs of the UK economy and our citizens. It represents a once in a generation opportunity to achieve significant regulatory reform.

Amendment 1 builds on the retained EU law dashboard, which pulls together all retained EU law and shows progress in reforming that law. While some have criticised the dashboard because the number of items of retained EU law continues to increase, the core information that it contains, including visual representation of progress, has been a great achievement. Subsection (1) of the proposed new clause places an obligation on the Secretary of State to update the dashboard. It also requires the Secretary of State to publish and lay before Parliament reports on the revocation and reform of EU law.

These reports will do three things: they will summarise the dashboard; they will set out progress that has been made in revoking and reforming retained EU law; and, importantly, they will set out the Government’s plans for revocation or reform. Information on the Government’s plans does not currently get reported in a comprehensive way, and so this should be a valuable data source both for parliamentarians and for those outside Parliament. The first report will be for the period up to 23 December this year, and there will be three more reports, the first two covering the years to 23 December 2024 and 23 December 2025 and a final one for the six months until 23 June 2026. The end date is, of course, the 10th anniversary of the great referendum vote and coincides with the final expiry of the powers in this Bill to reinstate or revoke EU law.

I know that noble Lords support effective accountability of the Executive to Parliament, and I believe that this new clause will improve Parliament’s ability to oversee how well the Government are delivering on their Brexit promises. I very much hope that by the time of the final report, 23 June 2026, if not earlier, the Government will have demonstrated that all retained EU law has been dealt with, whether by a positive decision to keep it intact or by revocation or reform. Last week the noble Baroness, Lady Chapman, and the noble Lord, Lord Fox, were less than enthusiastic about my amendment on Report. It is perhaps wishful thinking to think that this new and improved version will result in a change of heart, but none the less I commend it to them. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, this amendment, which I fully understand, places a lot of emphasis on the capacity of the retained EU dashboard, but there are some important deficiencies in its capacity, the most important of which is that it does not contain any post-devolution legislation. That can be demonstrated by looking at the schedule that has just been introduced into the Bill. There is not a single item of post-devolution material on it.

When the Common Frameworks Scrutiny Committee, of which I am a member, invited some officials who work on the dashboard to address us and explain how it works, we asked them whether there was any post-devolution retained EU law on the dashboard. They told us that there was not, that devolution material was not there. We asked whether it was the intention that it should include post-devolution material and they said that it was not and that it was not designed to do that.

So there is a question I would like to ask, and I think it is fair to ask the Minister, about what the position truly is on this. I do not think he has ever fully acknowledged, at least in this Chamber, the fact that the dashboard does not contain post-devolution material at all. Is it intended that the dashboard should be updated, as is the obligation in the amendment, to include post-devolution material? If so, when will that be done and is it clear that the devolved Administrations are able to do that in time to meet the first deadline, which is the end of this year? They have a great deal to do already with the amount of work which is required of them by the Bill, and to have to work on updating the dashboard as well might be beyond their resources. This is a very important issue. I am not trying to undermine the amendment, but I want to understand its capacity to do what the noble Baroness, Lady Noakes, told us it is intended to do.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments
Tuesday 20th June 2023 Lords Chamber

[Baroness Parminter (LD)]

I rise briefly to add our Benches’ support, if the noble Lord, Lord Krebs, pushes this to a vote. His amendment is a canary in a coal mine—perhaps a Cumbrian coal mine. You put a canary down a coal mine when you want to test whether essential resources that you rely on are about to be lost, to be snuffed out. This is what this is. It is about not just the essential protections for our much-depleted nature, but the essential protections that we as humans rely on: water, air quality and all the ecosystem services that nature provides.

I use that analogy for another purpose, as well. You do not see the canary in the coal mine, but if you talk to the general public about puffins and other wildlife, and all the things they care for when they see them on TV programmes, they know that they want them protected, and they want the Government to act. But we are here at the coalface, mining through the amendments, and we can see the damage that this will do to the protections for people and the animals and wildlife they care for. We are here to bring that canary to the surface. We should do that and press the matter again.

[Lord Hope of Craighead (CB)]

My Lords, Motion B1, in my name, raises an issue that has been of great concern to many in this House from the outset in our examination of the Bill: parliamentary sovereignty. The clause that causes particular concern, and to which my Motion is addressed, is Clause 15, headed “Powers to revoke or replace”. All the powers that it contains are exercisable by statutory instrument alone, with no provision for active or meaningful scrutiny by either House. That amounts to what the noble Lord, Lord Anderson, described when the issue was before us two weeks ago—without any exaggeration, I think—as a delegated superpower.

It is worth taking a moment to think about the key words that are used to describe the extent of the powers conferred on a relevant authority by this clause. For our purposes, the relevant authority is a Minister of the Crown. Clause 15(2) states that the Minister

“may by regulations revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives”.

Clause 15(3) states that the Minister

“may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.

The subsection (2) power extends not just to achieving the same objectives but to achieving objectives that the Minister considers to be similar. The decision as to whether they are similar or appropriate, about which there may reasonably be more than one view, is left entirely to the Minister.

Subsection (3) goes even further: it extends to the making of such alternative provision as the Minister considers appropriate. There is no limit here to the objectives that are to be achieved. They do not need to be similar—there is no limit to that extent—so they could be different from those of the secondary retained EU law that is being revoked. Again, there could reasonably be more than one view as to whether the alternative provision, whatever it may happen to be, was appropriate.

It is worth reflecting for a moment on the subject matter of what is open to revocation and replacement in the exercise of these powers. This is not simple, routine stuff for which delegated legislation is unquestionably appropriate. It extends to, among other things, major instruments of policy. It extends to fundamental rules relating to public health, trade and the environment, which were handed down to us by the EU and with which we have lived for several decades. It includes, for example, agricultural support, blood safety, fisheries management, food composition standards, nutrition, resources and waste, and the control of ozone-depleting and radioactive substances. Those are just some examples.

Your Lordships might consider it rather strange, given the nature and extent of what is involved, that neither House of Parliament can play any kind of active role in the scrutiny of these regulations. It really is a take-it-or-leave-it system dictated to Parliament by the Executive. The objections to this, which I need not repeat, have been set out many times, and that is what my amendment seeks to address.

I recognise that the previous amendments, which were moved first by me and later by the noble Lord, Lord Anderson, proposed a system that the Minister was right to describe as novel and untested. What I am now proposing is based on a system, as the Minister has pointed out, known as the super-affirmative procedure, which was enacted by Section 18 of the Legislative and Regulatory Reform Act 2006. I shall explain briefly what this involves.

It applies only to regulations made under Clause 15. It proposes a Commons committee—not a Joint Committee, as previously suggested—to sift regulations made under the clause in the light of an explanation by the Minister as to why the regulation is considered appropriate. If, but only if, the committee reports that there are any regulations to which special attention should be drawn, the Minister must arrange for them to be debated on the Floor of each House. The Minister must then have regard to any resolution of either House and may, but is not required to, propose a revised proposal in the light of what has been resolved. The procedure for approval in both Houses thereafter is the affirmative procedure. Finally, the committee may recommend that the Minister’s proposal should not be proceeded with, but the House of Commons has the last word, as it can reject that recommendation. If it does that, the regulations may be laid.

This is a relatively light-touch procedure, which gives Parliament some measure of oversight of what has been proposed. I offer it as a compromise, in the hope that the Minister, despite the remarks he made at the outset of this debate, will feel able to give it serious consideration. At the heart of it all is an issue of principle, which is of basic concern to this House and the other on their entitlement to take an active part in the major exercise proposed. It is in that spirit that I propose to test the opinion of the House, if necessary, when the time comes.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I would like to detain the House for no more than a minute on this issue. I have spoken about it many times in the past.

I support what the noble and learned Lord, Lord Hope, has said on the principle of what we are looking at. It is very important we remember that my noble friend the Minister said, as a defence of the government position, that the House would have a chance to look at these instruments by means of the affirmative procedure —unamendable, as we know—and that it would have the appropriate back-up information. One of the things that has moved on from the days of just framework Bills is the increasing reluctance of the Government to produce the back-up information—impact assessments and Explanatory Memoranda—in time for the House to do its job properly. The spat we had last week about the Public Order Act regulations was the result of this very question of overcasual behaviour.

My noble friend will say that of course we will have absolutely similar treatment—this is the Government’s argument—for affirmative resolutions as we do for primary legislation. I have the greatest respect for my noble friend on the Front Bench—for his patience, courtesy and diligence—but how he can say that with a straight face absolutely beats me. I am sure that the noble and learned Lord, Lord Hope, has done a very important service for Parliament—this House and the other House—in bringing back this issue for us to consider today.

But then we get to the politics—and politics does come into this. The reality is that the reforms that the noble and learned Lord, Lord Hope, many other Members of your Lordships’ House and I would like to see come about will take place only if they are led by the House of Commons. If that does not happen, the Government will immediately say that this is the unelected House trying to tell the elected House how to do its job. That, I am afraid, will be game over. That is why I voted against the fatal amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb. The House would be unwise, within one day of the Commons having passed a resolution, to immediately pass a fatal amendment.

The brutal truth is that we have been unable to get Members of Parliament in the House of Commons in sufficient numbers to understand what we are driving at: that it is not to do with EU law but is about parliamentary sovereignty, as the noble and learned Lord has said. There are stirrings there but they are only stirrings.

The case before us is further complicated by the fact that this is all going into the Brexit meat-grinder. In the debate in the House of Commons on 12 June, Sir William Cash MP said:

“The way the House of Lords has dealt with these amendments demonstrates that the Lords are determined to try, by hook or by crook, to obstruct the House of Commons, which is the democratic Chamber in these matters as far as the electorate is concerned”.


Later in the same speech he said:

“We know from everything that we have heard over the last few weeks on the Bill that there is an intransigence—a stubbornness, if I may say so politely—from our noble Friends in the House of Lords in the face of any attempt to get rid of retained EU law in the way in which we are proposing”.—[Official Report, Commons, 12/6/23; col. 34.]

--- Later in debate ---

Moved by

[Lord Hope of Craighead]

At end insert “, and do propose Amendment 42D in lieu—

42D: After Clause 15, insert the following new Clause—
“Parliamentary scrutiny
(1) This section applies to all regulations proposed to be made under section 15 by a Minister of the Crown which revoke any secondary retained EU law and –
(a) replace it with such provision to achieve the same or similar objectives, or
(b) make such alternative provision,
as a Minister of the Crown considers to be appropriate.
(2) Regulations referred to in subsection (1) may not be made (under the applicable provisions of paragraphs 7 and 8 of Schedule 4) unless a document containing a proposal for those regulations has been referred to a Committee of the House of Commons, together with a statement by the Minister of the Crown which explains why the Minister considers the replacement or the alternative provision proposed, as the case may be, is appropriate, and the other requirements of this section have been met.
(3) If the Committee reports that special attention should be drawn to the proposed regulations in question, then subsections (4) to (8) apply.
(4) A Minister of the Crown must arrange for the proposal for the regulations to be debated on the floor of each House within the relevant period referred to in subsection (5).
(5) The relevant period is a period of 60 days beginning with the day on which the proposal and the corresponding statement were referred to the Committee, not including any period during which Parliament is dissolved or prorogued or either House is adjourned for more than four days.
(6) The Minister making the regulations must have regard to any resolution of either House and to any recommendations by the Committee made during the relevant period.
(7) If, after the expiry of the relevant period, the Minister making the regulations wishes to make an instrument in the terms of the proposal (under the applicable provisions of paragraphs 7 and 8 of Schedule 4), the Minister may do so only if the proposal for those regulations is approved by a resolution of each House of Parliament.
(8) If, after the expiry of the relevant period, the Minister making the regulations wishes to make an instrument in the terms of a revised version of the proposal (under the applicable provisions of paragraphs 7 and 8 of Schedule 4), the Minister must lay before Parliament a document containing the revised proposal for the regulations together with a statement of the changes proposed and may make an instrument in the terms of the revised proposal only if the revised proposal is approved by a resolution of each House of Parliament.
(9) The Committee may, at any time before the regulations are laid in draft or made (under the applicable provisions of paragraphs 7 and 8 of Schedule 4), recommend that they should not be proceeded with.
(10) Where a recommendation is made by the Committee under subsection (9), the regulations may not be laid in draft or made unless the recommendation is rejected by a resolution of the House of Commons.””

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who spoke to my Motion B1. I have only one comment to make, which is that the noble Lord attributed to me a state of knowledge that I simply do not recognise. It is not my intention to frustrate the intentions of the Government in any way; my amendment is all about the issue of principle to which the noble Lord, Lord Pannick, referred—it is a crucial instrument. That being the point, I beg to test the opinion of the House.

Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly to express great concern about the lack of any offer on non-regression. I am going to bring this back to the absolute physical reality of the UK and the England that we are in today. In the other place, the Science, Innovation and Technology Committee has started an inquiry into the impact of insect decline on food security. If anyone wants to see the practical reality of this, I invite them to go out the back of the Foreign Office today, where a wonderful wildflower meadow has been created—they should go and look at it and ask where the insects are, because there are practically no insects there.

We have insect decline and a decline in our plants. Non-native plants now outnumber native plants in the UK: that is the state of the UK today. We have, right now, a huge, category 4 marine heatwave, which is going to have a huge impact on our marine world. It is very clear that the protections for the environment that we have now are vastly not enough, yet we are not promising even to maintain them. I ask everyone in this House to consider what people in the future will think when they look at today’s debate.

[Lord Hope of Craighead (CB)]

My Lords, I think it is appropriate that I speak to Motion B1 in my name, on the issue of parliamentary scrutiny. That issue remains as important this afternoon as it has been since the Bill first arrived in this House and the noble and learned Lord, Lord Judge, addressed us, with his usual skill, as to the importance of the issue. I have been doing my best to secure its place in the Bill at every stage, but each attempt has been rejected, either as novel and untested, which happened twice, or as incompatible with the system that the Bill lays down, on the last occasion. I regret very much that I have not been able to devise any other way of achieving that object that would be acceptable to the Government.

However, I did find two words, buried in a long and rather complicated paragraph in Schedule 5, which I think may at least open the door to something which is worth looking at more carefully, and that is the subject of my amendment. I am particularly grateful to the noble Lord, Lord Callanan, for being prepared to speak to me so that I could explain the purpose of my amendment and ask him whether he would be prepared to make a statement, in effect, giving me, in his words, what I was asking for in my amendment: words of explanation about these two words and reassurance about how the Government propose to respect the need for Parliament to be kept properly informed and consulted at each stage as the process of revocation proceeds.

The two words I am talking about, by way of explanation, are to be found in paragraph 6 of Schedule 5, which sets out an elaborate screening process in a case where a Minister is of the view that these statutory instruments should be subject to the negative procedure. The protection lies in the hands of screening committees of both Houses, which can take the view that the instrument should be subject to the affirmative procedure. If that is done, the Minister has the opportunity to give an explanation and perhaps try to persuade the committees to change their mind.

The important point for my purposes is to be found in sub-paragraph (12) and the words:

“Nothing in this paragraph prevents a Minister of the Crown from deciding at any time before a statutory instrument containing regulations under section 11, 12 or 14 is made that another procedure should apply in relation to the instrument”.


It is the words “another procedure” that caught my attention, because there is no further explanation in the schedule as to what that other procedure might be, except that in the following sub-paragraph there is a declaration that the statutory procedure for laying regulations in draft under the 1946 Act is not to apply, so we cannot have the statutory procedure of the 40-day period; that has been ruled out. My question to the Minister is: what is this other procedure that is available? The Minister has been very good in explaining in considerable detail what he builds into these words. In effect, he is providing me with exactly what my amendment is asking for. I welcome very much the clarity of his statement and we will of course bear it very closely in mind as the process proceeds.

My concern has always been that we are moving into the unknown. We have been told many times that the dashboard contains information. The dashboard sets out a list of names of the instruments, but it does not tell us, at least at the moment, what is to be done with them. That is the importance of the statement that the Minister has made today, because we need to be told, as everything proceeds, what is going on and what is planned and be able to express our views as to whether the proposals are acceptable or sensible or otherwise. I thank the Minister for his statement and I also express my warm thanks to all noble Lords who have supported me throughout my campaign and enabled me to maintain my campaign to the point I have reached today, but in the light of what the Minister has very kindly said, I am not intending to press my amendment.

[Lord Hacking (Lab)]

My Lords, I thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, for their persistence on these issues that they have brought before the House. I hear with a little disappointment that the noble and learned Lord does not intend to press further with his amendment in its current form. From their efforts, it is absolutely clear that this House strongly holds that, if the Bill is to become law, it must contain proper parliamentary scrutiny over the treatment of all EU legislation, whether that treatment is to revoke, amend or approve it. There are in the region of 4,000 regulations that need to be considered.

I remind the House of the Divisions that have resulted from these efforts. There have been three Divisions on Report and two more in our jousts with the Commons during so-called ping-pong. On each occasion, we have replied not to the Government as a whole or to the House of Commons as a whole, but to a small caucus of Government Ministers and parliamentary draftsmen. I ask noble Lords to look at the substantial numbers in the House—up to 400 Members and sometimes more—who voted on all five of these amendments. For example, on 6 June no fewer than 439 Members voted and on 20 June no fewer than 422. The majorities on each occasion ran between 91 and 60 votes.

The question is what happens now. Sadly, although most understandably, it appears that the noble and learned Lord, Lord Hope, and, I imagine, the noble Lord, Lord Anderson, are saying that this is the time to give up. This could bring the Parliament Acts into consideration. I will not go into them, but I have examined their application very carefully. I have also had good conversations with the noble Lord, Lord Fox—he need not look so startled; he must remember them—about their relevance. The serious difficulty with the Parliament Acts is that, if we held our ground, the House of Commons would have to present this Bill in its original form to the House of Lords. As the noble and learned Lord wisely commented to me, “Oh really?” I took that plainly as a riposte for us not to involve them. The question of the Parliament Acts must now arise on another occasion, which may not be far off.