Retained EU Law (Revocation and Reform) Bill

Lord Krebs Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

The lack of communication on what will happen to retained EU law across the board is creating not only massive uncertainty for businesses against an already tough economic backdrop, as we have heard, but real dangers for consumers and, in particular, for children. Does the Minister have answers to any of these questions? If not, why not?

[Lord Krebs (CB)]

My Lords, it has been a long day of debate and I will invite noble Lords to pause and think about tea—maybe the tea in the Peers’ Dining Room—and about one particular ingredient in their tea: milk. You may have milk in your drink or in the form of butter; you may even have a cream tea with clotted cream on your scone. Whichever of those you have, you make the assumption that the milk and the products derived from the milk are safe—and you are right to make that assumption. But it has not always been like that. Turning the clock back 90 years to the 1930s, an estimated 2,500 people a year in this country died of bovine tuberculosis, mostly contracted from drinking unpasteurised milk. Yet the Parliament of the time concluded that that risk did not justify introducing mandatory pasteurisation. It was not until 1949 that Dr Edith Summerskill, Parliamentary Secretary at the Ministry of Food, finally introduced the pasteurisation Bill. She said that pasteurisation had been prevented by “ignorance, prejudice and selfishness”.

Amendments 30, 39 and 146 are jointly in my name and that of the noble Lord, Lord Rooker, whom I thank. They are designed to prevent ignorance, prejudice and selfishness inadvertently or deliberately making our food less safe and of lower standard than we are used to. There is ignorance, because we do not know the precise number, nature and impact of the rules that are potentially being removed at the end of this year. There is prejudice, because, as the noble Lord, Lord Clement-Jones, said, the plan to sunset is driven by ideology and not logic. There is selfishness, because ideology is trumping the protection of the public. As my noble friend Lord Kerr of Kinlochard said earlier, the reason our food is so safe today is a raft of legislation, 90% of which is derived from the EU. Without proper scrutiny and consideration, these protections could be lost.

Interestingly, the noble Lord, Lord Benyon, in a separate debate on food shortages earlier today, listed food safety as one of the three priorities for the Government. In light of that, I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:

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


She also said that the FSA was facing “substantial headwinds” and “real challenges over resources” to scrutinise properly the more than 150 pieces of relevant legislation. According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.

I declare my interests as in the register. As one of the leading retailers said to me yesterday, as soon as protections are lost, the criminals are keen to fill the gap. The noble Lord, Lord Rooker, who was also at one stage chair of the Food Standards Agency, will know as well as I do that the food industry is not totally clean. There are crooks around. This is starkly illustrated by what happened at Dover as a consequence of the lack of post-Brexit border controls. Last October, a 24-hour crackdown on imports from the EU at Dover revealed that 21 out of 22 lorries coming from eastern Europe contained a truly disgusting mixture of rotting raw meat kept at room temperature, mixed with products such as crisps, cheese and cake. This food was destined not for places where you or I shop but for cheap, independent outlets and markets where the most disadvantaged people in this country get their food.

My amendments take three approaches. Amendment 30 refers to the Trade and Co-operation Agreement. Amendment 39 carves out 14 regulations from the sunset clause. I also support Amendment 4, which we have already debated, and Amendments 20 and 38, which are similar or overlapping carve-out amendments. Amendment 146 in my name refers to the Food Safety Act 1990.

I will start with Amendment 30, which simply requires the Government to commit to abide by the Trade and Co-operation Agreement they signed with the European Union a little over two years ago. Surely that is not a big ask. I am sure that many noble Lords know the Trade and Co-operation Agreement off by heart. For those who may like a reminder, I will explain it very briefly. Chapter 3 of the TCA is entitled “Sanitary and Phytosanitary Measures”, usually known as SPS for short. The term “sanitary and phytosanitary” may deserve explanation. Despite its name, it is not to do with the provision of bathroom appliances. The WTO puts it like this:

“How do you ensure that your country’s consumers are being supplied with food that is safe to eat —‘safe’ by the standards you consider appropriate? And at the same time, how can you ensure that strict health and safety regulations are not being used as an excuse for protecting domestic producers? …The Agreement on the Application of Sanitary and Phytosanitary Measures sets out the basic rules for food safety and animal and plant health standards”.


The TCA that we signed with the European Union sets out seven objectives, which include protecting human, animal and plant life or health, enhancing co-operation between the parties in the fight against antimicrobial resistance et cetera, and enhanced co-operation with the relevant international organisations to develop international standards.

This simple amendment asks the Government to continue to adhere to that agreement, whatever it does with sunsetting in the Bill. I very much hope that the noble Baroness will confirm that the Government do intend to adhere to the Trade and Co-operation Agreement. If they do not, I will consider the counterfactual, which would in effect be saying, “I know we signed up in December 2020, but we’ve now changed our minds”. If the Minister cannot confirm that we will abide by the Trade and Co-operation Agreement, what does she think that the food industry, UK consumers and our EU neighbours will see as their response?

I turn to Amendment 39. It lists a series of EU-derived regulations that provide vital protections for food safety and consumer information. We have already discussed some of these, so I shall keep it very short. My list covers food additives, contaminants, health claims and nutritional information. The list is by no means comprehensive—as I have already said, there are more than 150 EU-derived regulations—but it makes the point. As we have heard in earlier debates, these are all things that consumers simply take for granted when they buy food. They would be shocked to hear that the Government might even consider ditching the protections provided by these regulations.

Amendment 146 takes a different approach. It aims to ensure that any changes to food law as a result of this Bill do not alter the protections provided by the Food Safety Act 1990. The Minister explained that she was involved in that Act, so she will be very well aware of what I am talking about. To summarise it, the Act covers all businesses involved in selling food; buying with a view to sell, as intermediates; supplying food; consigning or delivering it; and in preparing, presenting, labelling, storing, transporting, importing or exporting food. It makes it an offence for anyone to sell or process food for sale which is harmful to health.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

We will give as much further clarification as we can.

[Lord Krebs (CB)]

I am sorry to interrupt the Minister yet again but I was pleased to hear that she has agreed to write to the noble Lord, Lord Fox, to clarify this question, which was asked by the noble Baroness, Lady Chapman of Darlington. Can the Minister include in that letter a couple of worked examples to fix this in our minds? When it is all very abstract—increase a bit here, subtract a bit there—what is the common currency? How do you combine the four or five different criteria for burden into a single unit? I am a scientist so I like to be able to measure things. If she could just give us a couple of worked examples in her letter, that would be great.

[Lord Harris of Haringey (Lab)]

My Lords, while the Minister is considering her response to that, may I say that the noble Lord, Lord Krebs, has just made an extremely important point? It strikes me that, when you are defining regulatory burden, you need to decide whether the regulatory burden on, for example, one very small group of businesses ranks the same as something that affects every workplace in the country. The calculation becomes vital if the Government are now saying, as seems to be the case, that the regulatory burden has to be looked at in the totality of all these regulations.

Retained EU Law (Revocation and Reform) Bill

Lord Krebs Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Baroness Ludford (LD)]

Absolutely. George Peretz refers to the bits of an SI that were not made to implement an EU obligation. Do they remain as what he calls “bleeding chunks”, because of the “so far as” caveat? He calls them Frankenstein SIs, which may or may not make any sense as law. If an SI has been partially made to implement an EU obligation, will it be on the catalogue or list or whatever?

In a meeting yesterday I mentioned one problem, and I shall mention it here now. I had a Liberal Democrat colleague in the European Parliament, Chris Davies, who consistently raised the question of what were called in the jargon “correlation tables”. What that meant was traceability—being able to see how EU law was being implemented in all the member states. That had various advantages, and one advantage that it would have now is that we would not have hundreds of civil servants scurrying around Whitehall who should be doing more important work than trying desperately to find out what is retained EU law, because the EU measure being implemented is not cited in the SI or even in primary legislation.

That is one problem that we have now—and I will repeat an example that I have given before, which is something that I know something about. The Extradition Act 2003 implemented the European arrest warrant. You will not find the term “European arrest warrant” in the Act, which just referred to Part 1 and Part 2 countries for extradition. Part 1 was broadly about European arrest warrant countries, but an ordinary person opening up the Extradition Act would not have had a clue that it was implementing the European arrest warrant. So I am afraid that successive Governments have made a rod for the back of the present Government, and all those poor civil servants, and the National Archives and everybody else who is being dragged into this absurd exercise.

There has been a failure for a variety of reasons, one of which is the gold plating. There would be some dusty project in a Whitehall drawer somewhere, and then an EU measure would come along that was a wonderful vehicle for it. They could never justify to Ministers putting it through in a Bill, so they thought, “Aha, nobody will notice. When we implement it through Section 2(2), we’ll blame the EU or we’ll kind of hide it among all this stuff”. So I am afraid that chickens are coming home to roost with regard to the 4,000 or however many thousand measures. We do not know what is in the scope of this Bill. More importantly, all the people out there in the real economy—the businesses, the trade unions, consumer organisations and travel firms—do not know what EU law they are going to be continuing to operate, and that frankly is a disgrace.

[Lord Krebs (CB)]

My Lords, I return to the by now infamous letter, which I too opened a few minutes ago. As the noble Lord, Lord Fox, said, when we talked about regulatory burden we asked for some worked examples, because it is only when you have the worked example with the actual numbers—maths homework—that you can actually see how it is going to operate. When I opened the letter, I thought for a moment it was a spoof, because it says:

“There is no definition of regulatory burden in the Bill, as … such a definition could unnecessarily constrain departments”.


It also says—this is helpful—that decisions about the regulatory burden

“will take place on a case by case basis and it will be an ‘in the round’ consideration that encompasses the vector of considerations in clause 15(10).”

If that is the worked example then, my God, we need a bit of help. I hope that when we get the real letter, rather than a spoof letter, it will actually tell us how this trade-off between a bit more regulation there and a bit less regulation over here is going to work.

[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.

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[Baroness Neville-Rolfe (Con)]

In fairness, the noble Lord is right: there is the scope for some sunsetting, but the direction of travel has very much been—

[Lord Krebs (CB)]

I seek clarification. Is it the case that Parliament can or cannot amend an SI?

[Baroness Neville-Rolfe (Con)]

The Government cannot amend an SI but they can debate one. We will debate these arrangements in our debate on a future group.

[Lord Krebs (CB)]

The question was whether Parliament can amend an SI, not whether the Government can amend an SI.

[Baroness Neville-Rolfe (Con)]

I think the Minister confirmed that Parliament cannot amend an SI. We can block an SI.

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[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.

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[The Earl of Caithness (Con)]

My Lords, I will speak very briefly. This has been an interesting hour and a half, but the Government have brought it on themselves by not telling us what regulations will be in what bucket. Can my noble friend tell me what Defra regulations are going to be kept, what are going to be amended and what are going to be disposed of? If we had known that, we would have saved an hour and a half.

I want to pick up on something that relates to Amendment 10 on the habitats directive. The noble Baroness, Lady Parminter, said that it was one of the fundamental building blocks and that we would not meet environmental targets without it. But we will not meet environmental targets with the habitats directive. We have had it for 30-odd years and it has been a disaster. Biodiversity and habitats have gone down continually in this country.

That takes me to the point made by my noble friend Lord Inglewood, who is absolutely right. It is not rocket science—it is land management. To get high-quality food to feed an ever-growing population and increase biodiversity, you need habitat and food for the species at the right time, particularly now in these lean winter months.

[Lord Krebs (CB)]

Because this has cropped up a couple of times, I think it is important that we distinguish between a regulation or a rule and its implementation or enforcement. So, we might say, when housebreaking levels go up, that the laws against housebreaking are completely ineffective. That is not the case: it is the implementation or enforcement of those laws that is ineffective. It is not a critique of the habitats directive; it is a critique of the way we in this country have enforced it, or failed to enforce it.

[The Earl of Caithness (Con)]

My Lords, that is exactly the point I have been trying to make: it is how we manage the land that is important. We can improve biodiversity in this country and we can produce the food on the same land, working together, because that will give us the right answer—but it is not relying on directives. Where I probably disagree with the noble Lord, Lord Krebs, is that the result of the various directives has been that we have pockets of land that have special protection and we do not join up those pockets: we have barren deserts in between. That is something that I know my noble friend Lord Benyon is working on with the ELM scheme, but that has to complement the directives and we have to get back to a whole-land approach, rather than just a spot approach.

Will my noble friend confirm that future amendments and changes to directives will be done with best science and not emotion? Defra made too many decisions on emotion and not enough on science in the past. Will he confirm, on a point raised by the noble Lord, Lord, Kerr of Kinlochard, on the last group, whether Parliament will have any say on which regulations Defra is going to drop? If Defra mistakenly decides to drop something and we have not had a chance to look at it, we cannot be culpable, but Defra will be, and it is much better that we all look at it.

Retained EU Law (Revocation and Reform) Bill

Lord Krebs Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Krebs (CB)]

Can the Minister provide us with the documentary evidence that this Bill will support growth?

[Lord Callanan (Con)]

It is a long-established principle that removing and reforming unnecessary and outdated regulation will help the economy to grow. I certainly believe that; the noble Lord might disagree with me but that is my position.

[Lord Krebs (CB)]

My question was whether he could bring evidence before the House—not an assertion but evidence.

[Lord Callanan (Con)]

Ultimately, this is a political point. The most successful economies in the world are those which have relatively low levels of regulation. The noble Lord and I may have a political difference, but I am sure that we can all propose lots of different examples from think tanks and studies for our different political positions.

Retained EU Law (Revocation and Reform) Bill

Lord Krebs Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

I am concerned about aspects of this Bill from a delegated powers point of view, as I have been on a range of Bills that we have had in this House. Maybe it is because, as in the previous intervention, it was made clear to me that there is a disagreement about what democracy is. I do not think that while we were in the European Union that was a democratic, accountable form of lawmaking. I did not make that point. That point has just been made back to me. I am saying that although I understand that the arguments put forward say that they are not replaying a lot of discussions from the past, I think that argument has been implicit in a lot of the discussions. That was certainly what I heard at Second Reading and I have picked it up.

I am also making the point that if there was a genuine enthusiasm from this House about how we can take the opportunity of having left the European Union to now study and look at all of those laws, there might be less cynicism outside this House. That was my point.

I also was making a different point about timing. I have not heard from this House, either while I have been in it or before I got in it and was watching it from the outside, an enthusiasm to rush things through, as soon as we voted in 2016, to say, “Let’s take all the laws. Let’s look at the EU retained laws. Let’s now make a decision about what we do with these laws.” People did not want to do that because they did not accept the decision. Now, people are saying that it is too rushed and that there is a danger that this will come over—as it is doing—as an attempt at blocking taking back control.

As to the delegated powers and the power grab, I am afraid that that is something I have broadly been worried about from this Government, not just with this Bill. I have spoken on it many a time.

[Lord Krebs (CB)]

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

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

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

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

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


I then said:

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


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

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


She added that

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

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

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

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

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


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


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

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

[Lord Hamilton of Epsom (Con)]

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

[Lord Krebs (CB)]

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

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

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

[Lord Collins of Highbury (Lab)]

My Lords, I will not detain the Committee for long. Obviously, my noble friend and the Front Bench team oppose Clause 10 standing part of the Bill, for very good reasons, as outlined by the Delegated Powers Committee. I shall just address the noble Lord, Lord Hamilton, on this point: no one disputes that what the country and the Government wanted was a transition. They voted for a transition, returning to Parliament the powers to make laws. That was actually what was contained in the 2018 withdrawal Act, and we now have a policy change: it will no longer be the responsibility of Parliament to revoke, retain or advise; it will be a government Minister.

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[Lord Krebs (CB)]

To wind back a few sentences, the Minister quite rightly said that the Department of Health would be responsible ultimately for changes in the law that affect food safety and standards. However, my amendment was not questioning that issue; it was questioning where the Department of Health is going to get its expert advice from. I did not hear the Minister say that the Department of Health would not propose any changes unless the Food Standards Agency and Food Standards Scotland had agreed that they would not compromise consumer protections in relation to food, whether it is to do with safety information or health. Could she therefore confirm whether that is the Government’s intention?

[Baroness Neville-Rolfe (Con)]

I am sure the Ministers responsible at the Department of Health and in the devolved nations will consult the Food Standards Agency. In the work I do with the Department of Health which involves food, the Food Standards Agency is an incredibly important part of the decision-making process.

Retained EU Law (Revocation and Reform) Bill

Lord Krebs Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[The Deputy Speaker (Baroness Finlay of Llandaff) (CB)]

My Lords, I must inform that House that, if Amendment 48 is agreed to, I will not be able to call Amendment 49 due to pre-emption.

[Lord Krebs (CB)]

My Lords, I will speak to the cross-party Amendment 48 in my name and those of the noble Baronesses, Lady Parminter and Lady Hayman of Ullock, and the noble Lord, Lord Duncan of Springbank. As always, it is a great pleasure to follow the noble Earl, Lord Caithness; he gave me a namecheck in his speech which I hope to add to my CV, so that for my next job application I can say, “As quoted by the noble Earl, Lord Caithness”.

I support in large part what he said about the importance of rigorous scientific evidence to underpin policy—he referred to the environment, but I would say more broadly. I will add a note of caution from my personal experience. As many noble Lords will know, I was responsible for instigating the randomised badger culling trials, the so-called “Krebs trials”, which were meant definitively to determine whether killing badgers was a good way of controlling bovine tuberculosis. The trial was probably the largest ecological experiment ever done in this country; it did produce results, but it did not settle the arguments or the policy. So science has an important role to play, and I support the noble Earl’s amendment, but we must recognise that political decisions come in as well.

I turn now to Amendment 48. I want to keep it brief so I will say what it is not and what it is. It is not an attempt to block any change. It is also not an alternative to the earlier proposals that came from my noble and learned friend Lord Hope of Craighead to involve Parliament in future decisions. It is not either of those. It supports the Government in their declared ambitions for the environment and for food. In doing so, it also ensures that the Government make good decisions rather than bad decisions. The amendment is about protecting the environment and consumer interests in relation to food.

These two areas—food and environment—are crucial to the REUL Bill, as between them they account for approximately half of the 4,900 regulations that come under REUL according to the current dashboard. At its board meeting in December 2022, the Food Standards Agency noted 800 items related to food and feed. The REUL dashboard reports about 1,700 items related to Defra, most of which concern environmental protection. These two areas are also crucial because of public concern. You have to think only of sewage in rivers, outbreaks of food-borne illness or GM foods to realise that these areas—environment and food—resonate with the public. These two areas also attracted a great deal of debate from your Lordships in Committee.

The amendment that I have proposed has three elements: first, non-regression—which we have already heard about from the noble Lord, Lord Lucas, and the noble Baroness, Lady Bennett of Manor Castle. Any future changes, according to Amendment 48, should not reduce or water down current levels of environmental protection or food safety standards. Nor should they contravene any international agreements to which the UK has committed.

My second point is expert input. This resonates with the amendment in the name of the noble Earl, Lord Caithness. Regulations should not be changed without consulting the relevant experts. These should include the Office for Environmental Protection, the Food Standards Agency and their cognate bodies in Scotland.

The third element is transparency. The amendment would require the Government to publish a report showing how any changes do not reduce environmental or food protections and what advice was received from the experts consulted. As a further transparency measure, the amendment also requires the Food Standards Agency, together with Food Standards Scotland, to report on the impact of any changes resulting from the implementation of this Bill on food safety and other consumer interests in relation to food.

The proposals in these three areas—non-regression, expert advice and transparency—are totally in line with the Government’s own commitments. They have said over and over again that they do not want to weaken environmental protection or compromise food safety and standards. The noble Lord, Lord Benyon, who I am delighted to see is going to respond to this grouping, has himself said that on more than one occasion in your Lordships’ House. This amendment simply formalises these commitments in the Bill. As we heard earlier, Clauses 13, 14, 16 and 17 leave Ministers a great deal of discretionary power. While, of course, we totally trust current Ministers to keep their word, who knows who will be in charge in future? This amendment will ensure that, in the future, Governments will build on the good work that has been done up to now and the promises that have been made.

Outside this House, who supports this amendment? Let me give noble Lords some examples. I asked the Food and Drink Federation whether it supported the food parts of this amendment. The FDF, with more than 1,000 members ranging from global brands to innovative start-ups, represents the UK’s largest manufacturing sector. It says in writing that it is happy to be quoted as supporting this amendment. If the Government wish to be business friendly—and I have heard that said—here is a good place to start: accept an amendment that has the weight of nearly half a million jobs behind it.

Equally, non-regression of environmental protections is supported by the Government’s statutory advisers, the Office for Environmental Protection and the Climate Change Committee, which both said in recent written statements that it is important that the REUL Bill includes a non-regression clause.

The amendment applies to the whole of the UK, and in that context it is noteworthy that the Scottish Government have also written to express their support for Amendment 48.

I hope that in this brief introduction I have said enough to convince your Lordships that this amendment is sensible, proportionate and fully supportive of the Government’s declared commitments on the environment and food. Indeed, I cannot see why on earth the Government would not accept it, and I very much look forward to the Minister agreeing with me. However, if that agreement is not forthcoming, and recognising from Committee that there was widespread support from across the House for the areas of environmental and food protections, I will wish to test the opinion of the House.

[Lord Whitty (Lab)]

My Lords, I have the third amendment in this group, Amendment 49. Colleagues will have detected that there is a considerable overlap with the amendment in the name of the noble Lord, Lord Krebs, and I was proposing to withdraw my amendment formally in favour of his. He has moved that very ably, and therefore I need not repeat most of the arguments he made.

It is very important, now we have the Joint Committee procedure and all the other changes that the amendments in the name of the noble and learned Lord, Lord Hope, have built into the Bill, that we give some guidance as to how they are to proceed. In relation to issues of the environment and food, the amendment in the name of the noble Lord, Lord Krebs, would make it clear how in part they are to receive guidance on carrying out that function.

I will add just one point to the considerations your Lordships have already heard from the noble Lord, Lord Krebs. These areas are very important for our trade agreements. Environmental standards increasingly appear in our trade agreements, particularly with the EU but with other countries as well. Therefore, any regression of those standards needs to be clear not just from an environmental but from a trade point of view. It is absolutely clear that this must be the case for food. We have an important food manufacturing and agricultural industry, which needs to ensure that the standards to which it produces are the same as or equivalent to those of our trading partners. If that is not the case, some of our best trade agreements will be precarious. The references to international standards and international bodies of advice are very important for the proposed Joint Committee to follow. I therefore hope that those considerations can be taken into account by the House and that the Government will accept the amendment in the name of the noble Lord, Lord Krebs.

--- Later in debate ---

Moved by

[Lord Krebs]

48: After Clause 17, insert the following new Clause—
“Environmental protection and food standards(1) Regulations may not be made by a relevant national authority under section 13, 14, 16 or 17 unless the relevant national authority is satisfied that the regulations do not—(a) reduce the level of environmental protection arising from the EU retained law to which the provision relates;(b) reduce the level of protection of consumers in relation to the safety, composition or labelling of food arising from the EU retained law to which the provision relates;(c) conflict with any relevant international environmental agreements to which the United Kingdom is party.(2) Prior to making any provision to which this section applies, the relevant national authority must—(a) seek advice from persons who are independent of the authority and have relevant expertise,(b) seek advice from, as appropriate, the Office for Environmental Protection, Environmental Standards Scotland, a devolved environmental governance body or another person exercising similar functions, the Food Standards Agency and Food Standards Scotland, and(c) publish a report setting out—(i) how the provision does not reduce the level of environmental or consumer protection in accordance with subsection (1), and(ii) how the authority has taken into account the advice from the persons referred to in paragraphs (a) and (b) of this subsection.(3) In section 4 (annual and other reports) of the Food Standards Act 1999, after subsection (1) insert—“(1A) The report prepared under subsection (1) must include a detailed assessment, drawn up after seeking advice from such other persons or bodies with relevant expertise as the Agency considers appropriate, of the impact of the implementation of sections 13, 14, 16 and 17 of the Retained EU Law (Revocation and Reform) Act 2023 in the areas of food safety, composition, and labelling and other relevant areas of concern to consumers related to food.”(4) In this section “relevant international environmental agreements” means—(a) the UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus, 25 June 1998);(b) the Council of Europe’s Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979);(c) the UN Convention on Biodiversity (Rio, 1992);(d) the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979);(e) the Convention for the Protection of the Marine Environment of the North-East Atlantic (1992);(f) the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar, 1971).”Member's explanatory statement
This new Clause creates additional conditions to be satisfied before the powers in Clauses 13, 14, 16 or 17 can be exercised where the subject matter of their exercise concerns law relating to environmental protection or food standards. It would also require the Government to seek the advice of the relevant independent expert statutory bodies, and the Food Standards Agency to include in its annual report to Parliament an assessment of the impact of the implementation of these provisions in areas of concern to consumers related to food.

Retained EU Law (Revocation and Reform) Bill

Lord Krebs Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

Moved by

[Lord Krebs]

At end insert “, and do propose Amendment 15B in lieu—

15B: After Clause 16, insert the following new Clause—
“Environmental protection (1) Regulations may not be made by a relevant national authority under section 12, 13, 15 or 16 unless the relevant national authority is satisfied that the regulations do not— (a) reduce the level of environmental protection arising from the retained EU law to which the provision relates; (b) conflict with any relevant international environmental agreements to which the United Kingdom is party. (2) Prior to making any provision to which this section applies, the relevant national authority must— (a) seek advice from persons who are independent of the authority and have relevant expertise, and (b) publish a report setting out— (i) how the provision does not reduce the level of environmental protection in accordance with subsection (1), and (ii) how the authority has taken into account the advice from the persons referred to in paragraph (a) of this subsection. (3) In this section “relevant international environmental agreements” includes but is not limited to— (a) the UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus, 25 June 1998); (b) the Council of Europe’s Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979); (c) the UN Convention on Biological Diversity (Rio, 1992); (d) the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979); (e) the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR, 1992); (f) the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar, 1971).””

[Lord Krebs (CB)]

My Lords, my proposed new clause represents a simplified and shortened version of the amendment passed by your Lordships’ House on Report on 15 May. Before I explain the simplification, I want to thank the noble Baroness, Lady Neville-Rolfe, and officials from the Bill team for their helpful discussion—although I am disappointed that we did not manage to reach a compromise, which I had hoped we would be able to do.

I will briefly recap the purpose of the amendment and explain the differences between my new proposal and the previous version. The core purpose remains the same: to ensure that any changes to EU laws do not dilute environmental protection or contravene relevant international environmental agreements, to ensure that expert advice is sought and to ensure transparency by requiring the publication of an explanation of how any changes do not reduce environmental protection and how expert advice supports this assertion.

The principles embodied in the amendment—non-regression, expert advice and transparency—are so non-controversial that I am at a loss to understand why the Government find them unacceptable. The new amendment differs from the version on Report in three principal ways. First, it leaves out food standards and is concerned exclusively with environmental protection. I would have preferred to leave food in, but the chair of the Food Standards Agency said it was unnecessary, and I defer to her advice. Secondly, the requirement to consult experts is less prescriptive than in the earlier version and is modelled on the wording in Sections 112(7) and 4(1) of the Environment Act 2021. Thirdly, acknowledging a point made on Report by the noble Lord, Lord Benyon, the new version of the amendment recognises that the list of international environmental agreements is not exhaustive; they are simply examples.

What are the Government’s arguments against the amendments? On Report the noble Lord, Lord Benyon, for whom I have the highest regard, said that my amendment was “burdensome” and “unnecessary”. As my noble friend Lord Kerr of Kinlochard pointed out to me, it is difficult for the amendment to be both at once. If it is unnecessary because it happens anyway, it cannot be burdensome. If it is imposing an extra burden on Ministers by introducing further steps required before changing the law, that may well be a good and necessary thing.

In explaining in the other place why the amendment should be rejected, the Solicitor-General said:

“Ministers have made it clear repeatedly at every stage of this Bill’s passage in both Houses that we will not lower environmental protections or standards”.—[Official Report, Commons, 24/5/23; col. 328.]


The Minister made essentially the same point a few moments ago. The question for me is whether the assertions that Ministers have made are matched by the reality. If they are not, surely there is a case for securing an extra layer of guarantee in the Bill.

What does the Government’s own statutory watchdog, the Office for Environmental Protection, say about current environmental standards? Are the Government living up to their promises? The 2023 statutory report from the Office for Environmental Protection, Progress in Improving the Natural Environment in England, 2021/2022, makes for grim reading. It says:

“We have little good news to report … We assessed 32 trends across the breadth of the natural environment; nine trends were improving, eleven were static, and eight were deteriorating … We assessed 23 environmental targets and found none where Government’s progress was demonstrably on track … Overall, we do not think the current pace and scale of action will deliver the changes necessary to improve the environment in England significantly, as required by the Environment Act 2021”.


It is no use saying, “We already have an Environment Act, and therefore the amendment is unnecessary”, because the Government’s own watchdog is saying that action is not matching the rhetoric. We are not on track to meet the targets in the Environment Act. While I have the highest confidence in the noble Lord, Lord Benyon, as an Environment Minister and in his commitment to the environment, the OEP’s report shows that, more widely, the Government are failing miserably to protect our environment.

Furthermore, this is about the longer term. As was said in a previous debate, even if present Ministers may be committed to not diluting environmental standards, how do we know what future Administrations might decide to do? In its briefing for this debate, the Law Society said:

“It is imperative that business and the public can be certain that following the revocation of the EU laws, environmental protections and standards are upheld. Uncertainty is not only detrimental to the UK’s transition to net zero but also this country’s status as an attractive place to do business. Unless these standards are protected in law, we are concerned that future administrations could roll back on our commitments, thus creating uncertainty”.


In my view, there is thus an indisputable case to add a clause that would help to ensure that future changes to retained EU law do not further harm our already badly damaged natural environment. I will listen carefully to the Minister’s reply but, at the moment, my intention is to test the opinion of the House. I beg to move.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, I can keep my response brief. I have lost track of the number of times during the passage of the Bill that we have had this debate. We had it in Committee, on Report and we are having it now—and of course it was repeated in the House of Commons. The House of Commons has heard the assurances of the Government. I suspect that nothing else I can say will change most Members’ minds but, for the benefit of the noble Lord, Lord Krebs, I will repeat the arguments again.

The noble Lord’s Motion proposes to insert additional measures into the Bill on environmental protections. I appreciate the sentiment, and we recognise the importance of maintaining our environmental standards, but the Government do not believe this amendment to be necessary. The UK is a world leader in environmental protection, despite what the noble Baroness, Lady Jones, wants to tell us, and we will continue to uphold our environmental protections. Furthermore, in a debate in the other place, the House of Commons rejected essentially a similar amendment by a majority of 77.

We are committed to our environmental protections. Nothing in this Bill changes that commitment. As I referenced in my opening speech, we have substantive concerns that this amendment, in the way that it is worded, would actually make it more difficult to uphold those environmental commitments. I hope that, if the Motion is moved to a vote, the House will reject it.

[Lord Krebs (CB)]

I thank all noble Lords who have taken part in this short debate, and I thank the Minister for his response. I will not speak for very long but I want to make three specific comments in response to particular points that have been made.

The noble Lord, Lord Hamilton, referred to food standards. I remind noble Lords that this version of the amendment does not include food, so the noble Lord can relax in his seat and not worry about food.

The noble Baroness, Lady Lawlor, seemed to imply that the amendment would somehow fossilise existing regulations in relation to the environment. It is not about fossilising existing regulations; it is about allowing change and improvement as long as they do not dilute environmental protection and as long as they are made in consultation with, and on the advice of, experts, and that that advice is published. This is not trying to freeze things in 2023 at all. I hope that provides reassurance.

As a final point, in response to the Minister, who repeated the oft-quoted mantra that the UK is “world-leading” in environmental protection, I remind him of what I read out less than half an hour ago from the Government’s own watchdog. It makes grim reading. We are failing on all the targets that the OEP looked at. We are not world-leading; we are struggling. This simple and modest amendment aims to put further legal protections around what the Government claim they are doing anyway; it is simple, modest and straight- forward.

I would not like to be the one going home to explain to my children and grandchildren that I stood up and voted against protecting our environment. I hope that other noble Lords feel the same—that those who have children or grandchildren and are thinking of the future would want to protect the environment on their behalf. Therefore, I wish to ask the House to agree to Motion C1.

Retained EU Law (Revocation and Reform) Bill

Lord Krebs Excerpts

Consideration of Commons amendments
Tuesday 20th June 2023 Lords Chamber

Moved by

[Lord Krebs]

At end insert “, and do propose Amendment 15D in lieu—

15D: After Clause 16, insert the following new Clause—
“Environmental protection
(1) Regulations may be made by a relevant national authority under section 12, 13, 15 or 16 only if the relevant national authority is satisfied that the regulations do not reduce the level of environmental protection arising from the EU retained law to which the provision relates.
(2) Prior to making any provision to which this section applies, the relevant national authority must seek advice from persons who are independent of the authority and have relevant expertise.””

[Lord Krebs (CB)]

My Lords, I will be brief, because we have debated this many times before. I will simply explain why I found it necessary to come back yet again with an amendment on environmental protection.

In the previous round of ping-pong, on 6 June, the Minister, in urging your Lordships to reject a previous version of my amendment, said:

“we have substantive concerns that this amendment, in the way that it is worded, would actually make it more difficult to uphold those environmental commitments”. [Official Report, 6/6/23; col. 1271.]

When I heard this, I was puzzled. It appeared that the Minister was saying that the problem was with the wording of the amendment, rather than the substance. I wondered which bit of the wording would make it more difficult for the Government to ensure that their policies do not lower standards of environmental protection.

Was it the non-regression element, requiring the Government to commit to not lowering standards if and when retained EU law is changed? Was it the requirement to consult relevant experts before making changes? We know from the past record that, when experts were not consulted, mistakes were made. Back in 2019, when Defra removed a protection under EU law relating to endocrine-disrupting pesticides, and it was pointed out that it had made a mistake, Defra quickly corrected its mistake and re-introduced the regulation. Was it the requirement for transparency—the need to publish the reasons for any change, and the advice received? Or was it, fourthly, the requirement to comply with international environmental treaties to which the UK is a signatory?

None of these four requirements seems to me to stand in the way of the policies designed to protect the environment, so I decided to try to find out. I requested a meeting with Ministers to help me understand how a change to the wording of the amendment would achieve my objective of ensuring that environmental standards are not lowered, without making it more difficult to achieve this end. However, I regret to say that Ministers were not prepared to discuss this with me or to come up with an alternative form of words. Therefore, I have redrafted the amendment to make it even simpler than before, in the hope that I have succeeded in overcoming the objection the Minister raised last time around.

--- Later in debate ---

Turning to Amendment 15C, I will repeat the arguments that I have made previously and that the House of Commons has supported. The noble Lord’s Motion proposes to insert additional measures into the Bill on environmental protection. I do appreciate the sentiment, but the noble Lord also knows very well the Government’s position on this and the importance we attach to maintaining environmental standards. We do not believe that this amendment is necessary, and in light of the many commitments we have made in this House and the other place, I hope noble Lords will reject both.

[Lord Krebs (CB)]

My Lords, I thank the noble Lords who have contributed to the debate on my amendment, as well as on the amendment of my noble and learned friend Lord Hope of Craighead. A key word that was mentioned in the contribution by the noble Baroness, Lady Chapman of Darlington, was “compromise”. When my amendment passed at the last round of ping-pong, I asked Ministers whether we could talk about it and try to find a compromise wording that would satisfy the Government and the majority of Members of this House who supported the previous amendment; but no compromise was forthcoming. I thought that when you have a disagreement among reasonable adults, you talk it through and try to reach a compromise. That is not what the Government are trying to do, so I am left with little option but to test the opinion of the House.

I would also briefly like to thank the noble Baroness, Lady Jones of Moulsecoomb, for fulfilling her duty of making me look reasonable, so I thank her for that. I also thank the noble Baroness, Lady Parminter, for reminding us of the important fact that protecting our environment is of huge public concern. I am sure there will be noble Lords who will want to vote against my amendment, and I would like them to ask themselves whether they would be prepared to stand up in front of a television camera and explain to David Attenborough why they think it is not necessary for this Government to maintain our current standards of environmental protections. I wish to test the opinion of the House.

Retained EU Law (Revocation and Reform) Bill

Lord Krebs Excerpts

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

Moved by

[Lord Krebs]

At end insert “, and do propose Amendment 15F in lieu—

15F: After Clause 15, insert the following new Clause—
“Environmental protection
(1) Regulations may be made by a relevant national authority under section 15 only if the relevant national authority is satisfied that the regulations do not reduce the level of environmental protection arising from the EU retained law to which the provision relates.
(2) Prior to making any provision to which this section applies, the relevant national authority must seek advice from persons who are independent of the authority and have relevant expertise.””.

[Lord Krebs (CB)]

My Lords, the debates we have had on the various amendments that I have put forward to ensure environmental protection remind me of the train journey from Oxford to London in recent months, due to disruption of the Paddington line. The journey takes longer than you would have wished and you do not end up at the destination that you had hoped to end up at.

This is the fourth time that my amendment has been debated, including on Report, and each time I have made concessions. I have reduced the scope of the amendment and this time I have made a further concession. The Government are still unwilling to accept the amendment, which is a source of disappointment to me. However, I did have a positive meeting with the noble Lord, Lord Benyon, and the noble Baroness, Lady Neville-Rolfe, last week, when we talked about points that could be made from the Dispatch Box that would provide a level of reassurance. For example, my amendment refers to the need to take independent advice before changing any rules that protect the environment—and the noble Lord, Lord Callanan, indeed said that in his speech a few moments ago. He made reference to the environmental principles, which is a very positive step—although I note that the principles do not come into effect until later this year, so there will be a gap between the approval of this law, assuming it goes through, and the application of the environmental principles. There is a short window of worry there.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, I thank everyone who contributed to today’s debate. I will respond to some of the points that have been made. First, we take Dispatch Box commitments extremely seriously. I reiterate that this Government will not row back on our world-leading environmental protections, as I mentioned in my opening remarks.

To respond directly to the point made by the noble Lords, Lord Krebs and Lord Fox, and the noble Baroness, Lady Bennett, on this issue of non-regression, the fundamental problem is that nobody know what non-regression actually means. We all think we do, but putting it in primary legislation invites every change to environmental regulations to be challenged, as they inevitably would be, in the courts. The courts would then be asked to take a view on whether a particular change was regression or not. In effect, we would be transferring the legislative process from Parliament to the courts, on every individual regulation. Although we are content to say that we will not row back on environmental protections, that is the reason we are unwilling to see such a phrase placed in primary legislation. I am sure some of the environmental lobbyists and their lawyers would be very happy about all the work it would generate for them if we were to do so, but this is not the way to make legislation. We have to be clear about what we mean in Parliament. As I have said before, any regulation would have to be approved by this House and the other place, which is the appropriate place for these things to be decided. Great though the courts in this country are, it is not their job to legislate.

On the question raised by the noble and learned Lord, Lord Hope, paragraph (6)(12) of Schedule 5 to the Bill clarifies that the provisions of paragraph (6), which sets out processes relating to an instrument proposed as a negative instrument and subject to sifting, would not prevent a Minister deciding that another scrutiny procedure should apply to a particular instrument any time before that instrument is made. In deciding which other procedure should apply, the provisions of the Bill give a Minister a choice between the negative and the draft affirmative procedure, and in practice would give a Minister the ability to upgrade the scrutiny procedure from the negative to the draft affirmative procedure. The sifting committees already have the ability to recommend that regulations which the Government are proposing to make via the negative procedure are of such importance in their content that they should be upgraded to the affirmative procedure, which would then allow them to be debated as normal in both Houses. As I have set out today, and I am happy to repeat it again, on each and every occasion to date we have followed the sifting committee’s recommendations, and we will continue to do so if utilising the powers under this Bill.

We have debated these matters long and hard on many different occasions, as the noble Baroness, Lady Chapman, acknowledged. We have listened to the House; we have amended the Bill quite considerably in response to some of the concerns raised by noble Lords. This House has done its job in scrutinising the Bill. This House has asked the House of Commons to think again on a number of different occasions. It has thought again and it has responded. It is now time to let this Bill pass to Royal Assent.

[Lord Krebs (CB)]

My Lords, I thank all noble Lords who have taken part in this short debate today, and also on the previous occasions when we have debated these two amendments. I do not want to highlight any particular contribution, although I thank the noble Lord, Lord Fox, for introducing cricket last week and canaries this week; sport and birds are two of my favourite occupations, so I thank him very much for that. I thank the Minister for his patience throughout the many hours of debate, with its recursive nature that meant we kept coming back to the same arguments.

I do not totally buy what the Minister has just said about non-regression handing this over to the courts, and that the environmental groups would have a field day. Such groups could equally have a field day over the words that the Minister himself used about maintaining our high environmental standards. Surely the Bill could have defined what non-regression means in this context.

I do not buy the argument and I remain disappointed. Luckily for me, when I became head of an Oxford college 15 or so years ago, somebody bought me a book on how to deal with disappointment; that has come in very handy this afternoon so I am not going to throw a wobbly. In accepting the Government’s response, I think they will be aware, of course, that it is not just Members of your Lordships’ House who will be watching carefully to ensure that environmental standards are upheld; it is the wider public. We have only to look at the number of people who belong to organisations with an environmental interest, such as the National Trust and the Royal Society for the Protection of Birds, to realise that a very powerful force is out there.

There will be scrutiny of what the Government do. They will be held to account on “non-regression” or “maintaining high environmental standards”. I am sure that Ministers in this Administration and any future Administration will be fully aware of the public concern about the state of our environment, which was so eloquently illustrated by the noble Baroness, Lady Bennett of Manor Castle, a few minutes ago. Nevertheless, at this point, I beg leave to withdraw Motion A1.

Motion A1 withdrawn.