Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Hamilton of Epsom (Con)]

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

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

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

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

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

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

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

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

[Lord Kerr of Kinlochard (CB)]

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

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

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

[Baroness Chapman of Darlington (Lab)]

The noble Lord’s speech is quite intriguing. I have a question for him, although I do not know whether he will be able to answer it here and now. Is he suggesting that, if a piece of law were to be revoked because it was not included on the dashboard and had not been discovered through the search process, and that piece of law is later identified by a citizen and relied on in order to take a case to a court, that court would then have to determine whether that piece of law was retained EU law? What effect would that have on the deliberations of that court at that point?

[Lord Kerr of Kinlochard (CB)]

That is exactly the point I was going to address under my second heading, “default”. As I read the Bill, those laws that are not identified in time automatically vanish. As I read the Bill, when the clock strikes midnight at the end of the year, anything that has been omitted but is still the law of the land on 31 December is not the law of the land on 1 January. That is bizarre. I think the Government have to accept something to deal with that problem. It is dealt with in Amendments 39 and 42. It is not quite dealt with in Amendment 43, but that amendment could easily be expanded to deal with it. It seems to me that, when they respond to this debate, the Government need to tell us what the answer to that question is as well as, I hope, telling us the answer to the question I asked on Tuesday.

[Lord Bach (Lab)]

My Lords, I apologise to the Committee for having not spoken at Second Reading, but I am keen to support the principle behind this group of amendments, and I am pleased to have put my name to Amendment 141A, tabled by the noble Lord, Lord Lisvane. At an earlier stage of this Bill, the noble Lord, Lord Lisvane, described it as a beta-gamma piece of legislation. I think he was being a bit kind. Omega strikes me as being more suitable. I agree with what the noble Lord, Lord Deben, said at an earlier stage as well, although I obviously say that from a different political view. He wanted to understand how a Conservative Government could produce this Bill. I cannot understand how any Government could produce this Bill, Conservative or otherwise.

However, the Bill is with us and at the very least it needs amending severely. All the amendments are in different ways saying very much the same thing: give Parliament its proper role in deciding what legislation should be repealed or replaced. I do not understand how a Government who only this week have, perhaps rightly, boasted of their democratic credentials in terms of an important announcement can produce a piece of legislation like this that just gives power to the Executive and, frankly, bypasses Parliament. If it was not so serious, you would think this was a toytown Bill and a toytown piece of legislation. It is really not worthy of any British Government, which is why I very much support the principle behind these amendments and hope even more that the Government will see the good sense in them.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I think I understood from what the Minister said a few moments ago that I will not get an answer to the question I posed on Tuesday. This time I think he said that he understood the point and would reflect on it. I do not quite know what that means but it is certainly an advance on Tuesday’s position, when the Government were just going to reflect. If we have now reached understanding the point, then we are on the right track.

The point about default is whether we are risking a situation where the courts next year, and in the following years, will have to rule in cases on whether a newly discovered piece of law was retained EU law and therefore died at the end of this year or was not retained EU law and is therefore still in effect. Is it sensible that the default is that the Act is dead? Would not a more sensible default position be that the currently undiscovered but in due course discovered Act remains in force until it is repealed, amended or prolonged? I just do not understand why that uncertainty must be introduced.

[Lord Callanan (Con)]

For the purposes of clarification, I was merely repeating a similar point to the one made by my noble friend Lady Neville-Rolfe. We will reflect on whether it is possible to publish a comprehensive list of laws that might sunset.

I return to the point I made earlier: we are satisfied that the department has identified all the laws for which it is responsible. Lawyers are currently going through it all and our advice to them is that if they are not sure whether or not a law is retained EU law, they should default to preserving it if they think it is important. I hope that answers the noble Lord’s point.

As I was saying, Clause 1 is the backbone of the Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law. The amendments tabled by noble Lords would add unnecessary time and complex burdens to this process, which, of course, may be the purpose of many of them.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

My Lords, I support the amendment from the noble Baroness, Lady McIntosh, but I am afraid that I do not agree with the amendment in the name of the noble Baroness, Lady Lawlor. I also support the amendment tabled by the noble Lord, Lord Whitty, and that in the names of the noble Lord, Lord Fox, and the noble Baronesses, Lady Ludford and Lady Chapman.

I will make two points. First, I need to resume my adulatory exchanges with the noble Lord, Lord Hamilton. He is quite right that the Government are very bad at sifting the law and getting rid of old bits that are not needed any more. However, he is quite wrong to blame the Civil Service for that. The reason the Government spend very little time on thinning the statute book is that Ministers have innumerable ideas for increasing its size, and they do not wish civil servants to do anything other than carry out their wishes. It is rather like the Law Commission; it writes wonderful reports recommending simplification, but nothing happens with them. It is clear to civil servants which bits of the law, for which they are responsible, should be taken away, but they have to spend their time writing new laws, many of which are completely unnecessary and have the purpose of sending a message or setting a legally binding target in the distant future—as if a Government could bind their successor.

Secondly, there is something in the argument by the noble Lord, Lord Hamilton, that setting an early sunset date concentrates the mind. This is the Dr Johnson argument that

“when a man knows he is to be hanged in a fortnight, it concentrates his mind”.

The problem is that we are dealing with the real world and real laws, and, by moving so fast, we will make terrible mistakes.

I believe that it is right to go for something such as the amendment tabled by the noble Baroness, Lady McIntosh, but we need to bear in mind that, while it is necessary, it is not sufficient—it does not put the Bill right. The discussion we had on the last group of amendments, for example, needs to be reflected in major changes to the Bill. That requirement would be in no way reduced by the Government accepting her amendment and extending the sunset clause. This is a necessary change, but not a sufficient one.

[Lord Collins of Highbury (Lab)]

My Lords, in this Committee, as the Minister has constantly been reacting to, we seem to keep going over the same old ground. The good thing about Committee is that it is not about saying whether you support something or not; the most important part of this stage of our proceedings is to probe and better understand what the policy objectives are behind any particular legislative change. I want to focus on that.

I hear the argument from the noble Lord, Lord Hamilton, about the sunset clause—he has made it at every stage in Committee—being an incentive. However, I agree with my noble friend that, at the end of the day, as I think the noble Lord appreciates, we do not have a complete list. We do not know what we are talking about. Until we do, we should not be making changes to the law. That is the key to this: how does this country make its laws and how do we change our laws? It is Parliament that does that, not the Executive. The Executive might control the way we consider the proposals for changing it, but it is fundamentally a matter for Parliament.

I will pick up the point made by the noble and learned Lord, Lord Thomas. He is absolutely right: it is about how the policy objective will impact on people’s perception of how we build and maintain our union of the United Kingdom. That is really important. There has been a consistency among Governments in the settlement that we have had. The noble Baroness, Lady Ludford, referred to the EU withdrawal Act. The question is, post referendum, how we deal with laws that we have had for the last 50 years. I think it is incumbent on the Government to be very clear about what that Act said. It did not just talk about Parliament. What it said is quoted in the Delegated Powers and Regulatory Reform Committee’s report:

“Parliament (and, within devolved competence, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once the UK has left the EU.”


What is wrong with that principle? What is wrong with that legislation, which this Parliament agreed? Why are we considering something different? Why are we considering a truncated skeleton Bill that gives the power to the Secretary of State?

That is why the amendments of the noble Baroness, Lady McIntosh of Pickering, are so important. She is absolutely right to raise this—not as a question of whether we support the principle, but we should ask why there has been a policy change. Why do the Government no longer think that the principles established in the 2018 Act should apply? We need to know, because, as I think the noble and learned Lord, Lord Thomas, said, it brings into question whether it is about trust, competency or resources. All these things need to be answered, and we have not had any answers so far. The Minister should give us some reassurance about that and not simply say that it is an exercise of trying to improve efficiency, because, for many people, the laws of the land protect them at work, at home and on the road. As my noble friend Lady O’Grady said, there are key provisions that we need to understand will continue to protect the people of our union.