Retained EU Law (Revocation and Reform) Bill

Lord Kirkhope of Harrogate Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, setting out on a journey when you do not know where you are going seems somewhat unwise. Politicians sometimes have to pursue careers without certainty as to the outcome, but as legislators we really should have some idea of where we are going.

Here we are considering a rare situation: a complex Bill that sets out to abolish many regulations and accepted and important rules, without the foggiest idea of what may or may not replace them. The Government do not intend to replace some at all, but others are vital to businesses big and small and critical to other processes. They are to be abandoned without proper scrutiny or thought-through replacements. How many pieces of EU-derived legislation are we talking about? The Government do not know.

However, my concerns with this Bill are not about the principle but about the process. The scale of the task in the proposed timescale is enormous, and I am yet to hear a convincing argument as to why the end of 2023 has been chosen as a date for disposal in all cases. This creates significant resource issues and there is insufficient capacity in our Civil Service to deal with this effectively. Surely, it is also a distraction at a time when the Government’s focus should be on matters of much greater importance.

A danger presented by the sunset clause is that, as the default position, swathes of retained EU law could expire without our knowing it, leading to many unintended consequences such as gaps in the law and important protections inadvertently dropping out of regulation. Provisions in the Bill will also allow the Government to amend or revoke retained EU law by means of secondary legislation, much spoken of today, effectively sidelining Parliament and removing any form of scrutiny. We have spoken up about this “executive grab” on many occasions before, but this would be a stage too far. Maybe the other place has lost its appetite for proper scrutiny, but this House has not and must not. As my noble friend Lord Young said earlier, it is also noteworthy that its own independent Regulatory Policy Committee has called an impact assessment conducted by the Department for Business “not fit for purpose”.

The breadth of legislation affected is well reflected by the groups that have expressed deep concerns: the National Farmers’ Union, the Bar Council, the Institute of Directors—I could go on. We know that British business needs certainty, continuity and transparent regulatory processes. This Bill kills that concept. There is also the impact on the UK to consider. Given that the Bill will confer powers on both the UK Government and, where applicable, the devolved Administrations, there is concern that different approaches may be taken, producing uncertainty and divergence between our constituent nations.

The vast majority of retained EU law, which the UK—and I as an MEP—played a key role in shaping as part of a democratic process, is vital in many spheres. It would be better to look at the small proportion of retained EU law that the Government believe is not working and rewrite it under primary legislation once the impact of such changes is fully considered by Parliament.

Of course, those who are promoting this legislation claim that removing the influence of the ECJ and replacing it with the British courts in relation to derived laws is justification itself. Lawyers here will hardly—for once—be grateful for the confusion and uncertainty created by these new powers. Some areas of the law do need improving, but this must be done in a considered manner. The Government must extend the 2023 deadline, or at least allow Parliament the opportunity to consider what laws need replacement and what alternatives are to be put in place to maintain stability.

Retained EU Law (Revocation and Reform) Bill

Lord Kirkhope of Harrogate Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I think we could debate this for much longer. I do not believe in conspiracy theories but I definitely believe in the cock-up theory of history, and this is certainly one of those cases. When I was thinking about how to respond to the debate, I decided that the subject matter of these amendments is vital, because it is about confidence—the confidence of business, the confidence of consumers—and people knowing what the law will be. And not tomorrow; they want to know what is going to happen next year. These are businesses that rely on planning one or two years ahead, and possibly more. One thing I realised is that we have constantly used Committee to seek clarity and a better understanding of what is behind this.

Take aviation, for example. My noble friend raised a question about booking holidays. We know what the EU regulations provide for, and people have some confidence in that. When we left the EU and we had the Bill that kept retained law on the statute book, the travel industry did not face a cliff edge then; everyone understood that continuity was important.

By the way, I am not a Conservative, as the noble Lord will know. I call myself old-fashioned new Labour, and that is exactly what this is about. Sadly, we have a situation here where I do not think that the Government know what they are doing. I think this should unite us all, across the Benches, whether you are a Brexiteer or a remainer—those are debates we have had in the past. On this legislation, we should all be united about its impact.

Aviation is an important industry, and it has already suffered huge consequences. It relies on the confidence of the people who book their holidays, and they are certainly not getting that. One of the things I did before we came down was to read Aviation Consumer Policy Reform, the consultation that the Department for Transport issued last January. It took it a long time to assess the responses to that consultation, and then we got the summary in July. There has been no idea since July about what the department is going to do about that, although all the indications are that the protection that is being offered through EU regulation will not apply to domestic flights—the sorts of protection that we get. A business or consumer will be thinking, “What does this Bill really mean?” They hear Ministers saying that we will keep the good bits, but when they look at the practice of the Department for Transport they cannot be filled with confidence. It is just crazy.

Let us turn to the letter, because it is really important. I assumed that this Government knew what they were doing when they published this Bill and that each department would have the responsibility for examining the regulations within its responsibility and thinking of the way ahead. That is not the case. What examination is taking place? This letter says that the National Archives is doing a search of what regulations exist. I suspect that it has done a word search and come up with all the regulations with “EU” in their titles. There has been no proper analysis by a department. Can the Minister—he is shaking his head—tell us what departments have properly examined that dashboard? What are its implications? We do not know whether it is an exhaustive list or what it will or will not include, and we are stuck with a timetable that is impossible for departments to meet. We also have that description of how this list and dashboard have come about.

On the regulatory powers, as the noble Lord mentioned, the letter says:

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


It is absolutely crazy. I do not understand what that will mean. What are the implications for the transport and aviation industries? Tell us what the implications are. It seems as though, if we keep that benefit of retained EU law, we will lose something else in the aviation industry. Do not book your holiday next year because you do not know what will be protecting you. That is what the Government are saying to the people of this country and it is totally unacceptable.

At the end of the letter, which we got as we started this discussion in Committee, we read about the preserved law and what is retained. As the noble Lord, Lord Deben, said, we have a history of legal regulations that have been interpreted by our courts—no one else—and they have agreed case law that has been established. Now the Government are telling us that they will keep that EU regulation but all that history and continuity that has been built up will be thrown out of the window. It is like year zero. What are we talking about? Is this the way to introduce and maintain laws? This is not the way that this country has done it.

It is absolutely appalling that the Government have produced this Bill without any idea of its consequences. They have not thought it through, and it should be thrown out by all sides.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I am sorry to intervene at this point. I think everybody on my side knows that I do not like this Bill and that I have amendments later to discuss the general principles that apply to it. Therefore, I am rather disappointed that those who have put forward amendments in Committee on specific exemptions from the sunset clause, such as on package travel and linked travel arrangements and the issues of assistance to passengers denied boarding and cancellation or long delay of flights, et cetera, do not seem to have made a case at all on the specifics of their amendments. Am I wrong, or is it not right that in Committee we deal with specific amendments and make the justification for them, and then deal with the principles when amendments that contain discussion and arguments on the principles come up?

Retained EU Law (Revocation and Reform) Bill

Lord Kirkhope of Harrogate Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

I believe that these are important amendments. The Government need to explain to us what the legal consequences will be and to seek, if they can, to reassure us that there is not going to be a legal mess which somebody—the courts, lawyers and all of us—will have to try to sort out. In their enthusiasm for the provisions of the Bill the Government seem to have cast aside, as we have said constantly in the four days of proceedings, the principles of good governance, good policy-making, consultation and reasoned analysis. That is what these amendments call for.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I have not contributed at all in this Committee and I am going to say only a very few words, which I hope I can keep as simple as possible. I very much support Amendment 69A here, because I think it is particularly relevant. I hope it is of help to my noble friend the Minister, who last week dismissed out of hand Amendment 44, to which I had added my name. I hope he will understand that I am trying to be helpful in supporting this. With the legal uncertainty that we seem to have here, it is terribly important that the Government, and indeed Ministers, protect themselves in some way.

The suggestion last week was that we should have a commission set up for the purposes of looking at these proposals and at what effect they might have, and move them to parliamentary scrutiny in the appropriate manner. Now we have a proposal in subsection 2 of the proposed new clause introduced by Amendment 69A that would make it a condition that

“a Minister of the Crown has asked the Law Commission”,

as it is presently constituted,

“to report on the effect of … this Act on legal certainty, and the clarity and predictability of the law.”

I am sure I do not need to remind my noble friend of the importance of certainty, and how important it is in the law to have that. We do not have so many comparisons here. I use the term “void for uncertainty” in relation to legislation. For instance, in the United States, all legislation that is “void for vagueness”, as is the term, cannot proceed. In the European Union, it is quite clear that there has to be clear certainty in the imposition of laws on the people who have to obey and follow them. Here we have a situation where we have nothing of the sort. It is important, therefore, that the Government find a way in which they can, if necessary, protect themselves; otherwise, we are going to get in due course a considerable amount of legal interest, as the noble Baroness, Lady Ludford, just referred to. Whether that is through judicial review or other means, it will be so complex and convoluted that, while it might please some lawyers, other lawyers such as myself, of a rather more modest disposition, would find it quite appalling to see this happen. I ask my noble friend perhaps not to dismiss this amendment quite as easily as he dismissed Amendment 44.

Throughout the proceedings I have watched so far in Committee, there have been many references to the democracy which is necessary—and that the Government wish to pursue—compared with the lack of democracy that the Government allege in the European Union. As a Member of the European Parliament—as my noble friend the Minister was too, although for a shorter period—I think it is very difficult to make out a good case for a lack of democracy in the work that was done by me and my other colleagues from Britain in the European Parliament. This is particularly the case in recent years where the European Parliament has had co-decision and a right to block legislation from the Commission. The proposals of the Government at the moment—if they are not put to some form of independent assessment—would leave us with a situation where the secondary legislation lacks every single shred of evidence of democracy. Therefore, I ask my noble friend to seriously consider conceding Amendment 69A when he comes to respond.

[Baroness Wheatcroft (CB)]

My Lords, I will speak briefly to both Amendments 68 and 69. This Bill, as others have said, creates huge uncertainty for business at a time when business is struggling to cope with so many uncertainties that are outside the control of the Government. But the Government do have control of this. Both amendments require the Government to report on the likely advantages and disadvantages of taking the action they propose. What could be more reasonable? What member of society would expect the Government not to have weighed up the advantages and disadvantages of taking any particular action? How on earth can it be justified to go ahead and do away with protections and rights bestowed by European law, without actually having done some consultation as to what the results are likely to be? There might be disadvantages but, unless the work is done, who knows what advantages will be thrown away. What justification can there possibly be for taking such rash and foolhardy action?

Amendment 68 also requires a resolution in Parliament as to whether such action should go ahead. It is all about bringing back control to Parliament. Why would the Government—who are so keen on bringing back control to the UK—not wish to give Parliament the say on whether EU retained rights and protections should remain? Why should consumers not have the protection of a vote in Parliament? Perhaps the Minister could tell us why he does not want to know what the advantages and disadvantages of legislating would be and does not want consumers to have their rights taken into account.

--- Later in debate ---

[Lord Callanan (Con)]

We will keep the dashboard updated as work progresses. As the noble Lord knows, we had this debate in the first grouping on workers’ rights. We are proud of our record and have given a commitment that the UK will not go back on our excellent principle of workers’ rights, which are far in excess of that guaranteed by European law. I see that the noble Baroness, Lady O’Grady, is smiling.

We have had this debate on the issue of the dashboard, which noble Lords have raised on many occasions, but let me restate the Government’s position. We are happy that departments know what legislation they are responsible for. Their lawyers are still going through it to determine which is or is not retained EU law, but we have introduced technical amendments to make it clear that, by default, if they are not sure, they should retain that law. No detriment or challenge could be made if they did that.

[Lord Kirkhope of Harrogate (Con)]

I have just realised that my noble friend referred a moment ago to this Parliament’s lack of involvement in EU matters or legislation. He and others here are always putting forward that Ministers of this Government are accountable to Parliament—although, we sometimes argue, not sufficiently. Of course, they make up the Council of Ministers, which they attend in order to approve all European legislation. He surely therefore recognises that Parliament is almost directly linked to European legislation, but he says that there is no UK parliamentary input. I just wanted to correct that point.

[Lord Callanan (Con)]

It is slightly off the point, but I hope the noble Lord is not trying to argue that the UK Parliament is President in the Council of Ministers.