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.