Retained EU Law (Revocation and Reform) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

Departments have been looking at these regulations for a number of years. Some time ago, when I was previously a Minister, I was looking at the regulations to see how they might be changed post Brexit. I have tried to explain that we have 3,700 regulations. They have been gone through and most of the regulations are there, but we are also looking with the National Archives to see if there are others. If they are known only to the National Archives, the chances of them being really important is—to express a personal view—probably quite small, but of course I could be proved wrong.

[Lord Thomas of Cwmgiedd (CB)]

On a technical, legal point, it would be helpful if the Government could set out the methodology that they have used to ensure that everything—whether it be by directive, by tertiary legislation or by any other way—has been identified. A detailed analysis of the methodology would be extremely helpful because we need to know how it has been done to know what level of assurance we can have in it. I have tried it myself and found it quite difficult. I would like to know what has been done. It obviously cannot be done now, but a detailed methodology would be very helpful.

[Baroness Neville-Rolfe (Con)]

As always, the noble and learned Lord is very helpful. I will think about that and about what we can say about the methodology that has been adopted. It is helpful that he mentioned that it was not the easiest thing for him to find this. That is confirmatory.

Retained EU Law (Revocation and Reform) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I am going to return to a subject that I raised the other day with the noble Baroness, Lady Neville-Rolfe, and this follows on from what the noble and learned Lord, Lord Hope, said earlier today. The noble Baroness, Lady Finlay of Llandaff, cannot be in her place today, so I shall say something about Amendment 49. This goes to three questions that I want to ask and the extent of what we do and do not know.

The first issue that arises is the extent of our knowledge of what is EU retained law. Behind the very helpful dashboard there is a spreadsheet. Like most spreadsheets, it is searchable, so it is extremely helpful in that respect. Under column L, one can find the designation “Territorial application”. When you look down it, you find that some are UK-wide, some are GB-wide and some apply to the Isle of Man, but you also find that some instances are “Scotland only” or “Wales only”. I thought I would see which ones related to Wales only, and they are all Defra ones. I may have made a mistake, because I had to do this research on my own, as I do not have a band of civil servants to cross-check it, but one could see that each of those instruments apart from one had been made prior to 1999—that is to say, when Defra, as opposed to the territorial Secretaries of State, would probably have had responsibility. Some of them are very specialist, dealing with the designation of areas with the Llŷn peninsula, for example, or dealing with the Welsh language.

It seems plain to me from examining that schedule that the Government have gone through the Whitehall departments, department by department, and unearthed what they have. I would like to know if that is right, because I could not find anything in the list that dealt with the territorial offices. The first question that arises relates to pre-1999 legislation, prior to devolution coming into effect. Where is it? It must have been made by either the Secretary of State for Scotland, the Secretary of State for Northern Ireland, or departments in Whitehall. Where is all that material? Whose responsibility is it to find it out? That was work done in London by the UK Government at that stage. Of course, the further one goes back, the more difficult it is to find. If it has all been transferred to the respective devolved legislatures, one hopes that nothing got lost on the way, because one knows that the risk in moving papers around is that you lose them. It would be helpful to have some explanation of who is responsible for pre-1999 legislation.

The second part of that question probably arises more in respect of Wales than in the other two devolved nations. Because the Welsh settlement has moved more over the years, whose responsibility is it to find out things that were the responsibility of, say, a London department before it was moved, and where it is now?

The third part of that question is: who is looking at the post-1999 instruments made by the devolved nations? Obviously, that requires substantial resources. I hope that I have understood correctly, from looking at the spreadsheet, that there is nothing on that spreadsheet—and, in consequence, nothing on the screen that is more helpfully looked at by some—that deals with devolved instruments, but it would be very helpful to know that. The fact that the territorial Secretaries of State are not on the spreadsheet shows that there is a potentially very large lacuna. I will come to why that is so important in a moment.

The second question that arises is in relation to consequential amendments made by statutory instruments. We are all familiar with Bills, these days, and statutory instruments that have provision for consequential amendments. Sometimes whole Bills are made-up of consequentials. I looked through the spreadsheet to see whether I could find any statutory instruments where it was clear that there have to be consequential amendments. I could not find any, so I did the exercise the other way around: I put into one of the commercial search engines the number of a directive, and then tried to see what it threw up. I did this in relation to one of the instruments mentioned in the common frameworks—one of the waste directives—and the search engine threw up three categories of result. The first was the possibility of amendment to primary legislation. That is not a problem, because the Bill exempts that, wherever the legislation was made. Secondly, it threw up the instrument itself but, thirdly, it also threw up consequential amendments. I do not entirely understand how consequential amendments are to be dealt with, because they are not in the spreadsheet.

That is extremely important, because the instrument that I happened to pick on contained an awful lot of consequential amendments to other instruments that used the definition in the directive, by reference to the directive itself, of what waste was. If you miss one of those consequential amendments, what is the position? You have got rid of the EU retained law, and there does not seem to be a saving provision in the Act to save measures that people have overlooked. I will come to explain how that arises in a moment. It seems to me that it is only really this House that can look at what is involved and judge the practicality of doing all this by the end of the year, or even by 2026.

The question then turns to resources. What resources are being made available to the devolved Governments? I think it is a matter of common knowledge that Whitehall is pretty tight on resources—or so it is said, and I believe with truth, by many who work for our Civil Service—but one knows that the devolved Governments are in even greater difficulty. So what money and what number of lawyers, research assistants or whoever is being found to help the devolved Governments?

Why does this matter? I have been involved in what I call legal archaeology in a number of instances. The first related to latent damage policies. That is not entirely irrelevant since, when asbestosis came along, because of the way in which policies were written, one had to go and find what had happened prior to the war. There were all sorts of problems with that: floods, fires and—something that of course would not arise in relation to the EU—bomb damage. I have also been involved in this in various islands in the West Indies, where trying to find out what has happened in the period since their independence has actually been very difficult.

Thirdly, and most relevantly, I was personally involved in working on the legislation that resulted from the decision to abolish the office of Lord Chancellor. It is interesting to know that the legislation was first envisaged as abolishing it but was quickly changed to the reform of the office of the Lord Chancellor. Now, why was that? One is not, of course, concerned with the centuries since the creation of that office in pre-Norman, or at least in Norman, times—it is thought to go back over that span of time. However, it was an immense task to find out what the Lord Chancellor had accreted over the years.

In a way, I am sorry that the noble Lord the Leader of the House is not in his place. He would recall that I had a discussion with him in relation to one of the Boundary Commission Bills as to the fact that one piece that was overlooked, I am fairly certain from my own recollection, was about the person who appointed the office of the deputy chairman. It was thought inappropriate that the Lord Chancellor could have a selection over a judge. I raised this as an amendment and it went to ping-pong, but we did not get anywhere. What it shows is that you can overlook things, but of course in that case it did not matter because the now Sir Robert Buckland was there; he could take on the job and discharge the appointment with absolute impartiality.

In this case, once we have abolished something and taken it away, there is nothing there. If the Government really are insistent on any of this, why can we not have some sort of saving clause so that, if some mistake has been made, it can be rectified? It took a very long time—from 2005 to 2019, I think—for the mistake in relation to the appointment of the deputy chairman of the Boundary Commission to be appreciated.

I do not expect the Minister to be able to answer these very detailed questions on methods of search and what is there, which all needs setting out. However, I say three things. First, the House must have this information. We cannot go on in the dark any longer. We need to know the search methods, the limitations and what is excluded.

[Lord Deben (Con)]

If something does not exist because it has been overlooked, how would case law which refers to it work? As I understand it, that case law is to be abolished, so we cannot actually use any of it. What would happen then?

[Lord Thomas of Cwmgiedd (CB)]

We will probably come to the whole question of case law in the next set of amendments and I do not want to trespass on anyone else’s thunder. The real difficulty with this provision is, as regards the devolved and other legislatures, that if there is a reference in other legislation to something that someone has overlooked, what actually happens? I do not know the answer but, presumably, there is just a void in the statute. I am sorry that I am unable to answer the noble Lord.

To go back to my three points, we must have, first, a proper and detailed explanation of what the search methods do and do not cover, and how we are to address these problems. Secondly, we must have an assurance that there are enough bodies to do the work. When we know what the problem is and the number of bodies available, we can then judge more accurately—this is very important for the amendments to which we are coming—the amount of time that will be required. Thirdly, what do we do if there is a mistake? I do not believe that infallibility rests in any sense within, and never would be claimed by, any Government these days.

Retained EU Law (Revocation and Reform) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise because neither the noble and learned Lord, Lord Hope, nor the noble Baroness, Lady Finlay, can be in their place to speak to Amendment 58. In one sense, it is neutral and designed to achieve what I hope would not be the subject of controversy: equality of treatment between the various Governments of the United Kingdom.

I have asked myself the question: why can Government Ministers have the power to extend the date—it does not matter what the date is—but that is denied to the Welsh and the Scots? There is one possible answer, and I have been so encouraged by what the Minister said today about his certainty in the infallibility of civil servants and lawyers and that nothing has been lost. But he obviously has—or might appear to have—even greater confidence in the Welsh Ministers and civil servants, because he believes that they can find everything out this year, and it is only the rather slower civil servants and lawyers in Whitehall who need longer. For reasons I tried to explain this morning, I do not believe that that can be the answer, but I may be wrong.

It is rather unpleasant to have to say this, but the second possible reason is that the Ministers in Wales and Scotland need to be incentivised by putting a gun to their head. You normally do not do that to people you want to work with to achieve a stronger union. Worse, is it that the Government do not trust them? Is that the way to build a union? Alternatively, is it that they want the Welsh and Scottish Ministers who run into difficulties because they have not been provided with the resources—I pointed out this morning that it is pretty clear that none of what the Welsh Ministers will have to deal with is on the dashboard—to come cap in hand to Whitehall to ask for dispensation? They might have overlooked the fact that where that leads to is disastrous for a union in terms of judicial review. You do not build strong unions by litigating, as one can see in other countries.

I am therefore at a complete loss to understand why the Government will not accord to the Scottish and Welsh Ministers the power they obviously think is necessary for themselves to have. I would hope that the amendment in the name of the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay of Llandaff, would be uncontroversial, because it would be the clearest sign of the new attitude being taken by the present Government under the new Prime Minister, who has spoken warmly of the union. What better statement of the intent to treat them as equals and to treat them properly in this respect could there be than the Minister saying that this is an amendment that he readily accepts?

--- Later in debate ---

[Lord Callanan (Con)]

If the noble Baroness has some patience, I will come on to those amendments shortly.

Turning to Amendments 51, 54, 57 and 58, the power exercisable under Clause 2 will allow Ministers of the Crown to extend the sunset for specified legislation, both in reserved and devolved areas, up to 23 June 2026. This includes areas of devolved competence, and we could act on behalf of devolved Ministers if they wish to request that. Clause 2 allows for the extension of a “description of legislation”, and conferring the power on devolved Governments would, in our view, introduce additional legal complexity. Descriptions of retained EU law may cover a mix of both reserved and devolved policy areas, and this could result in retained EU law in similar areas expiring at different times in different jurisdictions in the UK, across both reserved and devolved areas. We feel that this could create additional legal uncertainty.

Devolved Ministers will of course still be able to legislate to preserve, restate or reform their retained EU law using all the other powers in the Bill. As I said, the UK Government are of course committed to working closely with the devolved Governments on all aspects of the retained EU law revoke and reform programme, including the exercising of this extension power where appropriate.

Regarding the question on the devolved Administrations, which a number of Members raised in considering earlier clauses, I met with the devolved Ministers on behalf of my previous BEIS department a few weeks ago and we discussed a number of legislative areas of concern to them, including—the noble Baroness, Lady O’Grady, will be pleased to know—the MSL Bill, and they did not raise the REUL Bill. I am not saying that means they do not have any concerns—clearly, both the Senedd and the Scottish Parliament are concerned —but when they had the opportunity to raise it with me in a formal meeting designed to discuss legislation, they declined to do so.

Amendment 53 tabled by my noble friend would, I assume, be intended to operate in tandem with amendments to Clause 1 that propose a change in the sunset date. This will be debated in other amendment groupings and, as I have already said, proposing to change the sunset date through the extension power alone would not be appropriate.

Amendment 56A in the name of the noble Lord, Lord Whitty, would require the Government to publish a dashboard of all EU law which remains in force and which has not been superseded by domestic legislation within three months of the Bill being passed. I am sure the noble Lord knows what I am going to say to this: I draw his attention to the public dashboard of retained EU law that the Government published in June last year, and about which we have already had extensive discussions.

Without wishing to annoy the noble Baroness, Lady Ludford, again, that dashboard is an authoritative assessment of the various types—I am worried she will reach for her thesaurus yet again and start quoting definitions at me—of retained EU law across all government departments. It is split over 400 policy areas and 21 sectors of the economy and is categorised accordingly. The dashboard was updated in January, as we have said, and we are committed to updating it regularly through 2023; the next update is planned for spring of this year. Departments are continuing their work on retained EU law, aided—again, I risk provoking the noble Baroness, Lady Chapman—by the National Archives, and we anticipate an increase in the volume of retained EU law in the next publication.

[Lord Thomas of Cwmgiedd (CB)]

The Minister is very keen on timetables and dates. As we know, spring is movable. Can we have a firm date? If the Minister wants to hold people to timetables, he ought to have a timetable to produce a firm list. Could he please go back and ask the lawyers, in whom he has such great trust, when they can produce a list and a comprehensive explanation? I am sorry to press the Minister on this but he cannot expect everyone else to have a timetable and not adopt one himself.

[Lord Callanan (Con)]

I am not sure I want to go on the public record saying that I have great faith in lawyers, given some of the debates we have had in this House. I explained the position on the dashboard in the previous grouping. I know that many Members want to categorise this as a device by which huge swathes of essential legislation will be allowed to sunset. I have explained on three different groupings now—I will not go back there again—that we will update the dashboard as often as we can. Where possible, this will also reflect the ownership of retained EU law across the new departments created by the Prime Minister in the machinery of government changes earlier last month.

Finally, on Amendment 136, this power is subject to the negative procedure, which is the appropriate level of parliamentary scrutiny for a power that only maintains the status quo and cannot enact any policy changes. The power is intended as a failsafe in case the reform of retained EU law is delayed by the parliamentary process or extenuating circumstances. I therefore do not believe that the listed amendments are necessary or appropriate for the Bill and hope that the noble Baroness will be able to withdraw her amendment.

--- Later in debate ---

[Lord Hannay of Chiswick (CB)]

My Lords, I would like briefly to refer to this group of amendments, particularly to the aspects which seek to give the Government some flexibility as they go along this road. I am not wishing to address the cut-off dates, because that has been liberally described and debated already in earlier amendments, but the points that the noble Lord, Lord Whitty, made.

I am sorry to see that the noble Lord, Lord Callanan, is leaving the Chamber as I was about to address a question to him. I will address it to his colleague instead. I wanted to get on to the ground covered by the noble Lord, Lord Whitty. He talked about the possibility that some of the actions the Government wish to take will cut across our obligations under the trade and co-operation agreement or other international agreements and treaties, and will put the Government of the day in a very awkward and difficult position. Flexibility would give them a way of handling that.

I know that the author of this Bill wanted, like Ulysses, to stop his ears with wax and tie himself to the mast—the only difference being that he would not be on the boat when it hit the rocks. Other than that, that was what he was trying to do, and I do not think that is a sensible thing to do. Some flexibility, as suggested by some of these amendments, would be better. I say that because, until the events of Monday this week and the announcement of the Windsor Framework, one could imagine that the Government would have just said too bad, or words that are not repeatable in this Committee used by the former Prime Minister. However, I do not think that is the situation we are in now. We are in a situation where the Prime Minister and the Government have said that they wish to move in the direction of greater co-operation and flexibility, working with the EU. But here they are, stopping their ears with wax, tying themselves to the mast and making it very difficult to do that.

Here are my questions. It is no secret that the ambassadors of member states and of the Commission are deeply disturbed by this Bill. Anyone who has had any contact with them will know that. Could the Government say if they have received any representations about this Bill from any of the member states or the Commission? If so, what was the nature of those representations and what has their response been? I know the Minister does not much like being interrupted when he is winding up, so I hope he will answer that question because it will save me the trouble of interrupting him. His colleague, the noble Baroness, Lady Neville-Rolfe, will no doubt tell him what the question was. I would be grateful to hear the answer.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak briefly in support of Amendment 76, as the noble Baroness, Lady Finlay of Llandaff, cannot be in her place. I made all the arguments in relation to Amendment 58, and I do not intend to repeat them. I await with great interest the ingenious answer that will come out this time for treating the nations with inequality.

I will take one minute to support Amendment 62 most strongly. So far, we have been dealing with known knowns: we know that there is legislation. There is a bit of the known that needs due diligence, but that falls within the same category, and we should get there on legislation. But I will not be satisfied about that until I see how it has been searched for. However, in this area, we move into the known unknowns. The Bill shows a profound misunderstanding of the genius of the common law and the huge benefit of it and our way of doing things in this country. We are like magpies: we take good things from places and adapt them.

Retained EU Law (Revocation and Reform) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Baroness Randerson (LD)]

My Lords, my noble friends Lord Bruce, Lady Suttie and Lady Humphreys have explained the different approaches and situations of the devolved Administrations, thereby demonstrating the need for a sensitive approach from Ministers. I particularly welcome the reference by the noble Baroness, Lady Ritchie, and my noble friend Lady Suttie to the application of the Bill in Northern Ireland. Because of the situation there, we discuss the Administration far too infrequently, and that issue needs to be addressed.

On Amendment 117, to which I have added my name, I am very grateful to the Minister for his recent letter which specified that any REUL to be extended will need to be specified by its full title or by “specifying a description”. That phrase is not defined in the Bill, which means it is another thing that has been left to the judgment of Ministers; indeed, the Minister’s letter actually uses that phrase, saying that it will be left as “a judgement for Ministers”. It says that this description

“could encompass a description of legislation in scope of the Common Frameworks”

and gives the example of common frameworks relating to food and feed safety. That is extremely helpful information for those of us who have been members of the Common Frameworks Scrutiny Committee for some years.

By logical progression, am I right to assume that Ministers could decide to include all common frameworks in one umbrella description in the Bill, or to provide a list of all the agreed common frameworks? Surely, that is the logical conclusion. There are very good reasons to do that. First, it would end the unnecessary uncertainty caused by the Bill and the economic damage it is doing to industries in Britain. Secondly, there can be no clusters of legislation that have been more thoroughly and comprehensively—and very recently—looked at than those subject to common frameworks. They have been subject to scrutiny by all four nations of the UK and by a wide variety of stakeholders. All those clusters have been deemed by the UK Government and by the Administrations in the devolved nations to be up to date and fit for purpose. The Minister has said that that was the reason why some legislation might need to fall, and we would all understand that, but it does not apply to the legislation subject to common frameworks. If something unforeseen arises, there is a mechanism to resolve disputes.

There is no doubt that this legislation is not fit for purpose. The UK Government have nothing to fear because they have the last word on common frameworks and have led the process of establishing them. So I urge the Minister to table amendments on Report that clarify the future place of common frameworks and that specify which ones will be exempt from the sunset.

I have one other thing to probe. In his letter, the Minister used the example of food safety legislation. The extensive catalogue of this has grown since the 19th century. Back then, lead was put in Red Leicester cheese to make it red, copper was put in butter to make it yellow, and chalk and water were put in milk to make it go further. Even if the food was kept in normal circumstances, those normal circumstances were often so poor that it went off and made people seriously ill or killed them. We have moved on from that to a vast catalogue of food safety legislation, but we are still nowhere near perfection or peak knowledge on food safety. Our understanding improves all the time. Recently, there has been research showing that there are plastic particles in bottled water. That is something that we did not understand a couple of years ago. We do now.

Can the Minister tell us how further regulations on food and upgrading regulations on food will be viewed by the Government? Will it be regarded as an additional burden on business? Will it be regarded as increasing regulatory burdens and therefore be excluded by the Bill? If we are not allowed to update our legislation, surely we will lag behind. We will be the country that still has the substandard plastic bottles, just as we would be the country with cars that are less fuel-efficient and toys that are more dangerous, to take examples from earlier debates.

On Amendments 135 and 143 in the name of the noble and learned Lord, Lord Hope, which I support, I refer to the fourth report of the Procedure and Privileges Committee, which followed up on the Constitution Committee’s report of January 2022. That report recommended that we in the House should give greater prominence to legislative consent Motions. The Procedure and Privileges Committee has now agreed to a very welcome and comprehensive process for reporting the decisions of devolved Administrations on LCMs and situations where the UK Government have not sought consent but the devolved Administrations have given or withheld it. This is significant because, as my noble friend has said, in the last few years there has been a huge erosion of the 1998 decision that the UK Government would not normally legislate in matters within the competence of a devolved parliament without its consent. It used to be the case that the Government went to enormous lengths to take the Sewel convention into account. That has been eroded, to the great detriment of good relationships across the UK. This Bill does nothing to improve relationships.

I fully support those amendments tabled by the noble and learned Lord, Lord Hope, which seek to restore a small part of the devolved powers that have been undermined by the Government in recent years. Those amendments and the recent decisions of the Procedure and Privileges Committee will make it more difficult for us to remain unaware of the views of the devolved Administrations.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will add a brief word on two of the amendments, because I agree with everything that has been said but do not wish to prolong the debate. I wish to say something about Amendments 135 and 143 as, in my view, they go to the spirit of the union. I know that the noble Baroness the Minister has done much to try to ensure that we are governed in a union where there is respect and equal treatment. I thank her very much for that. I also welcome the attitude of the Prime Minister, which is in complete contrast to that of the last but one Prime Minister.

The spirit of the union is encapsulated in both these amendments. First, on Amendment 135, if something is devolved, please get consent. That seems a matter of ordinary courtesy that strengthens the union. It is not a big ask. Secondly, on Amendment 143, why should the Welsh and Scottish Ministers not have the same powers? The answer was given by the noble Lord the Minister to a similar question I raised. Although the Government may not say what they are going to do, I very much hope that they look at these amendments as showing a determination to govern our union in the spirit of co-operation, equality and respect.

[Baroness Crawley (Lab)]

My Lords, I support this group of amendments, particularly, as a member of the Common Frameworks Scrutiny Committee, Amendment 117, which tries to tease out the application of common framework agreements to retained EU law and how they will be impacted by the Bill. These frameworks work right across the devolved Administrations, as noble Lords have said, and are underpinned by retained EU law. As my noble friend Lady Andrews has said during Committee, that underpinning is a cat’s-cradle of hundreds if not thousands of complicated and interrelated SIs. How much instability will the Bill, and its obvious legal uncertainties, bring to the common framework agreements between the devolved Administrations?

The noble Baroness, Lady Neville-Rolfe, wrote to the noble and learned Lord, Lord Thomas—and to all of us, in fact—to answer several questions. We appreciate that. One of the questions was on methodology. What competence do the UK Government have to affect the methodology of seeking retained EU law within the devolved Administrations?