Retained EU Law (Revocation and Reform) Bill

Lord Lucas Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, this quite short group of amendments is concerned with Clause 16. It is a very worrying clause, for various reasons. My amendment seeks to tie the power of the relevant national authority to exercise the regulation-making power under this clause to the provisions of Part 3 of Schedule 4.

My Amendment 76, which we have already discussed, relates to Part 3 of Schedule 4. The point is to make sure that the regulation-making power is subject to parliamentary scrutiny. That is true not only of the UK Parliament; it applies also to the Senedd in Wales and the Northern Ireland Assembly. The Scottish decision has been that the power should remain with Ministers, and that is a matter that can be left to them.

The really important point is to make sure that the regulation power is subject to Amendment 76, which I am seeking to make on Wednesday. I do not think I need to say any more about this because the more important amendment is Clause 16 stand part. I am sure that the noble Baroness, Lady Chapman, will make clear the position regarding the defects in the clause that gave rise to her amendment. She will do that far better than me so I shall simply leave it at that. I beg to move.

[Lord Lucas (Con)]

My Lords, I have Amendment 41A in this group. We discussed this issue in Committee. I said, “If the Government want to go down the route of keeping in Clause 16(5), why don’t they promise the same about the environment?” After all, the Government made the same set of promises regarding environmental legislation—that they would not do anything to damage the protection that the current regulations offered—while here in Clause 16(5) they are saying they will not do anything to increase the regulatory burden.

The Government wisely said they did not want to put in the Bill the promise that they would not damage environmental regulation. I had rather hoped that meant they would take out Clause 16(5), because to my mind that subsection offers nothing but uncertainty. How is it to be interpreted by the courts if the Government propose to use the clause and someone challenges its use in the courts, saying, “This subsection says ‘in relation to a particular subject area’. Has that been reasonably chosen and correctly defined? What is the overall effect of the changes?”? They will have to look at every piece of legislation that has passed in relation to that particular subject area. How are they to be weighed up? There is no mechanism here providing for them to be weighed.

The courts are going to be asked how one bit of legislation should be weighed against another with regard to the changes that it makes and the regulatory burden. How do you weigh one bit of regulatory burden against another if one bit of regulation imposes something on one group and the next regulation imposes something on another? How do you weigh those two things together? It seems to be asking the absolute impossible. It means that any bit of legislation passed under Clause 16 will be open to all sorts of challenges in the courts, and there will be no way of knowing what the outcome will be, because nothing in this subsection, or elsewhere in the clause, tells you how to parse it. So I hope the Government will see the good sense they had when they chose not to adopt my suggestion of doing this for environmental legislation and take Clause 16(5) and (6) out of the Bill.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I agree with the entirety of Amendment 41A from the noble Lord, Lord Lucas, while agreeing with only half his reasoning. I entirely agree that, as we discussed at length in Committee, this is essentially impossible to calculate and creates a great deal of legal uncertainty. Where I disagree with him is that I would very much like to have seen non-regression clauses for the environment, public health, workers’ rights and a whole range of other things in the Bill.

Practically, what we are doing with the clause at the moment, if it is implemented, is creating a guaranteed regression of workers’ rights, food standards and environmental standards. If we do not have regulation of business, we will certainly see at least some cowboy businesses taking advantage of a reduction in regulation. That of course will not be in the interests of businesses that want to do the right thing on the environment, public health or workers’ rights.

I spent a great deal of time during the passage of the Environment Act and the Agriculture Act arguing for non-regression clauses. What the Government are currently giving us is a guaranteed regression clause, and that really should not be acceptable.

--- Later in debate ---

[Lord Lucas (Con)]

My Lords, I am very uncertain how the wording of this amendment works. Is a regulation the whole package of regulations that is submitted to this House or each individual regulation? If a regulation makes changes so that an old provision is swept away and the new one replaces it, that sweeping away of an old provision is a diminution, but there does not appear to be a mechanism for balancing it with the better regulation that follows. If a regulation benefits one species but hurts another, how is that dealt with here? If we protect badgers more so that there are fewer hedgehogs, I do not see how the wording works. Most of all, it seems that if the Government want to keep Clause 16(5) they must want this too, so I shall support the noble Lord, Lord Krebs.

[Baroness Parminter (LD)]

It is a great pleasure to follow the noble Lord, Lord Lucas, because that is exactly the point I was going to begin on. If you are to keep Clause 16(5), you absolutely need to have this. As my noble friend Lord Fox says, the importance of this amendment is that it takes the sting out of Clause 16. If we want to protect the environment for the future, and our food standards, as was so well articulated by the noble Lord, Lord Krebs, this amendment is absolutely fundamental.

I do not want to add much more to what the noble Lord said, because he introduced it so expertly, but we on these Benches would add one other reason why we support it. It is critical that the public have confidence in environmental legislation, particularly at a time like now. If they see the Government not prepared to sign up to a non-regression clause—which is, as has been said, what the Minister says they want—they will be left with questions. We need them to be reassured that our environment is in the best possible hands, and the only way the Government can prove that in the Bill is to allow this non-regression clause.