Retained EU Law (Revocation and Reform) Bill

Lord Lucas Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I rise to speak to Amendment 118A in my name. I thank my noble friend Lady Chapman for her kind words about my modest amendment, and other noble Lords. From the discussion at Second Reading when my noble friend Lady Crawley referred to human rights and equality, and from earlier in Committee, it became clear to me that it is necessary to provide protection for human rights and equality and their infrastructure in the UK in the Bill.

I actually have been on the dashboard. I went to have a look to see whether I could gain some knowledge and possibly reassurance about the consequences of the Bill. I spent an hour or so putting questions about a variety of issues; of course, human rights and equalities are not a government department so I had to work out how to identify them across the variety of departments concerned. Digging into workers’ rights, I found descriptions of all kinds, many of which have been mentioned in the Committee over the past few days—maternity rights, trade union rights, and so on—but what I could not find out was what might be retained, what might be changed and what might be abandoned, so clearly I either need to spend more time communing with the dashboard or perhaps the criticism levelled at it in earlier debates has been borne out.

As a result, like other noble Lords I decided that the only safe solution was to require, as the noble Lord, Lord Krebs, proposed earlier today for the Food Standards Agency, that any proposed change, revocation or alternative provision should require an opinion from the EHRC on its impact on equalities and human rights before the powers can be used. Parliament gave the EHRC powers to advise on the equality and human rights implications of laws and proposed laws and to publish information and advice, including to Parliament, on any matter relating to equality and human rights. The breadth of law within the scope of the Bill is considerable and has considerable implications for equality and human rights. They include, but are not limited to, parental leave, annual leave, rights for part-time workers, maximum hours for heavy goods vehicle drivers, and other employment rights. The Bill could also impact on laws on minimum rights for refugees and disabled people’s access to rail and air transport.

So rather than going into detail about all the things that might be affected by this, I thought it would be worth putting on the record five concerns that the EHRC has about the Bill and why this amendment is important. These are:

“Uncertainty about the Government’s policy intentions and potential effects on equality and human rights protections … lack of parliamentary scrutiny of potential changes … limited time available before the proposed ‘sunset’ date … Legal uncertainty resulting from the Bill … implications for devolution and the Union”,


which are immense. So it seems to me that this amendment should help the Government. It is a logical answer to those concerns, and I hope that the Minister might see it in that light.

[Lord Lucas (Con)]

My Lords, I am much more a supporter of this bit of Bill than some, but even I am astonished by Clause 15(5), which seems to introduce uncertainty and immense delays in the process without offering any great benefit. After all, what we are talking about here is essentially declaratory legislation. It is the Government saying, “We are not going to increase the burden of regulation by what we do under this Bill”. It is a political promise. It will, by and large—unless the Government chose to commit suicide, which is always possible—be delivered before the next election, so there is no benefit to be gained from this declaration. The Government will do it anyway and they will make the changes they wish to make, but the Bill introduces huge uncertainties.

I go back to my previous intervention when I queried the letter that we got as a result of the first day in Committee, which I think misinterpreted the way this subsection works. It is clear to me that, in deciding whether you are allowed to deregulate, you have to look at all the previous regulations made under this section within that subject area and decide whether your particular regulation plus all those adds up to something deregulatory.

It is going to get challenged in judicial review. If you give a water company a couple of hundred million quid fine for dumping turds in the Thames, you will find that its lawyers look at opportunities. Through this section we have introduced so much vagueness, such widespread uncertainty, that whether the regulation is in any way valid can be questioned at enormous length—including, as the noble Baroness, Lady Chapman, says: what is the subject area? Has the Minister got it right? Should it have been narrower? Should it have been larger? What is the right way of measuring these things, of all the things that can be taken into account in regulatory burden? Have they been weighed correctly?

It is total apples and pears mathematics anyway. How on earth do you summon these things to produce a single-digit answer? There is no formula in here as to how you can weigh an obstacle to trade and innovation against an administrative inconvenience. There is no way you can use this clause to arrive at a safe answer. The Government will never know—because of Clause 15(5)—whether any legislation that they have passed through Clause 15 is valid. It will be open to endless challenge. Because of that, in deciding whether to bring forward regulations under this clause, civil servants will have to go through the most enormously detailed and tiresome exercise to discover whether they will be able to make this balance work. That must add hugely to the delays.

I entirely appreciate what my noble friend on the Front Bench said on our previous day in Committee: that the Government want to get on with this and that he has his suspicions—which I hope do not embrace me—that there are people who do not want him to get on with it quite as quickly as he would like. I want these things to happen with speed and accuracy but the work that will have to go in to satisfy Clause 15(5) is huge, and an enormous diversion of effort away from the purposes of this Bill.

As the noble Lord, Lord Clement-Jones, pointed out, the only way of avoiding it is to introduce some whacking bit of deregulation smack in the middle of the most important subject areas, such as—let us take the environment since that is something I am heavily involved in—some enormous bit of environmental deregulation; then you know that you are safe because the rest of it cannot add up to excessive regulation.

We have been promised that that is not going to happen, in any segment of the Bill, so that is not open to the Government. They will have to weigh these little changes, pluses and minuses, in detail, every single time—to achieve what? As I said, to achieve nothing, because all of this is totally in the Government’s control. They can choose whether a particular instrument increases or decreases the regulatory burden and they will do it all within their term in office. There is absolutely no net benefit at the end of the day for all the work, difficulty and uncertainty of this, except that it will reduce the chances that my noble friend will achieve what he says are his objectives.

Of course, I am well used to getting things wrong in this House, and it may well be that I have here. In that case, I have Amendment 134, which mimics Clause 15(5) and says, “If you’re going to do this and we’re going to have declaratory legislation, then let’s do it for the environment”. Let us put in this Bill the promises the Government have made in front of us in this Committee about their environmental legislation, and then we can all be comfortable and spend the rest of the decade challenging their interpretation of that.

[Lord Hacking (Lab)]

My Lords, I want to draw attention to two paragraphs in Clause 15 to which there has not been any reference in our Committee. Indeed, I do not think there has been any reference to them since Second Reading, but concern was certainly raised then about Clause 15(4)(c) and (d), and it is those that I now want to address.

We should remind ourselves that immense powers are vested in the Minister under Clause 15. Subsection (1) allows them to

“revoke any secondary retained EU law without replacing it”,

while subsection (2) allows them to

“revoke any secondary retained EU law and replace it with such provision as the relevant national authority”—

that is, the relevant Minister—

“considers to be appropriate and to achieve the same or similar objectives.”

That is a power, without reference to Parliament, resting entirely in the hands of the Minister.

I now turn, more precisely, to Clause 15(4)(c) and (d). I shall read those paragraphs out to your Lordships. When replacing revoked secondary EU law, the Minister has the power to

“create a criminal offence that corresponds or is similar to a criminal offence created by secondary retained EU law revoked by the regulations”,

and, in paragraph (d), to

“provide for the imposition of monetary penalties in cases that correspond or are similar to cases in which secondary retained EU law revoked by the regulations enables monetary penalties to be imposed”.

It has been a cardinal feature of our law that the creation of criminal offences and the penalties that arise from the breach of those offences rest entirely in primary legislation. If, hidden under some carpet, there have been EU regulations that create a criminal offence or monetary penalties, then I am ashamed and embarrassed. But for the Government now to seek powers to replace them—again, without putting that before Parliament—is another wrong. My simple contention to your Lordships is that two wrongs do not make a right.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

I think the safeguards were in relation to the clause as a whole, but I will certainly write to the noble Baroness. This has been an important discussion, but for now I ask the noble Baroness, Lady Chapman, to withdraw the amendment.

[Lord Lucas (Con)]

My Lords, the Government are taking huge powers in the Bill to abolish EU legislation and are asking us to believe the promises they have made; for instance, on environmental law, that they will not decrease environmental protection. I entirely accept those promises. This is a well-run Government who are capable of controlling what they do and living up to their promises. In that case, what is the problem with just saying, “And we’re not going to increase the regulatory burden”? We would say, “Okay, we believe you; we don’t need you to have a power to stop yourselves doing that”. What kind of Government need to legislate to stop themselves behaving well?

[Baroness Chapman of Darlington (Lab)]

This clause has got to the guts of the Bill. It is a real mistake for the Government to be quite so certain in their position on this and to not give even the slightest indication that they want to consider some of the suggestions made by noble Lords in this debate. I think the Government may come to regret batting things back without really taking on board the very serious and well-considered points that have been made. This is certainly something we will return to on Report.

I have worked on a lot of Bills—not as many as others in this place—but never one where nobody has turned up to support their Front Bench on the Government side on anything.