Retained EU Law (Revocation and Reform) Bill

Lord Whitty Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Whitty (Lab)]

My Lords, I have two amendments in this group, of which Amendment 62A is the key one. It covers much the same ground as that of the noble Lord, Lord Lisvane. It would bring this whole process back under parliamentary scrutiny by establishing a Joint Committee of both Houses which would do the review that we understand is currently taking a lot of the time of civil servants in Whitehall: their work would be absolutely germane to the work of this committee. My Joint Committee is similar to that proposed by the noble Lord, Lord Lisvane; the only substantive difference is that my amendments in this group are actually remnants of a rather more ambitious original intention—namely, to delete all the first three clauses of the Bill and establish, right from the beginning, that this was a parliamentary process, not a process by the Executive alone. I still think there is merit in attaching this concept right at the beginning, before we go into more detail.

The other amendments in this group all attempt to bring some control back to Parliament. My noble friend Lady Chapman and the noble and learned Lord, Lord Judge, wish to clarify what laws fall into which groups; then we would have a process for dealing with them systematically—through the Joint Committee, in my view, in the first instance, and then being brought back, with that Joint Committee’s recommendations, to Parliament. Of course, it is not intended that that would preclude any other initiative by the Government. If the Government wish to do this more urgently, they have every right to bring legislation, either in the form of an Act or a statutory instrument, in the normal way. The Government have raised the issue of reviewing the totality of anything that has any smell of Europe about it but, if that is what they intend, let us do it in a parliamentary way.

I just want to recall two episodes of history which might perhaps remind those who oppose departing from the Government’s view of this. The first is relatively recent. In 2018, when we were still in bitter post-Brexit arguments, many of us nevertheless accepted that we had to clarify the position of European-derived law in this House and in Parliament as a whole. We accepted the suggestion of the Government that they would make clear that EU law that had been accepted during the 50 years of our membership of the European Union and its predecessors would be part of UK law. We did not realise at the time that it was not quite the same as the rest of EU law. The reasons we accepted it were, first, that we needed some stability, for business and other elements of society, immediately following the completion of Brexit; and, secondly, that the Government needed a bit of time to consider how they would deal with that law—whether they wanted to change it, amend it or revoke it. We never contemplated, at that time, that we would have a process that completely departed from normal practice in Parliament and effectively put so much power into the hands of Ministers. That power, if it were through a statutory instrument, would be subject to only minimal scrutiny—but perhaps more importantly, and equally or rather more worryingly to parties outside, is that a whole chunk of what was European law, and is now deemed to be retained EU law, could actually fall in less than 10 months’ time, without any discussion whatever in this House or another place. That also needs to be dealt with at this stage. We need to delete the sunset clause for the end of this year and, if people think it is necessary to have an eventual sunset clause, then let us accept what the noble Baroness, Lady McIntosh, was arguing in our last sitting.

The other episode of history is perhaps a bit more esoteric, but it might appeal to some on the Conservative Back Benches and the Brexiteer press, if I can put it that way, who claim that we have escaped the tyranny and domination of Brussels. There are plenty of precedents in history for this. When all the countries of the British Empire attained their independence from the old Commonwealth—the old dominions in Canada, Australia and New Zealand, more than a century ago, and even the establishment of the Irish Free State, right through to the countries of Africa and the Caribbean—part of that independent settlement, except where it was surrounded by war, was always that the rules which applied during the colonial period would continue to apply until the new independent judiciary and legislature changed them in Jamaica or the Irish Free State, for example. That remained the case in almost every country which gained independence from the British Empire. Those that did not follow this precept—Zimbabwe, for example—are usually crucified by the right wing in this country for doing so.

In most cases, there was a peaceful transfer of power, as there has been a peaceful transfer of power from Brussels back to this Parliament. We should follow the example of the Macmillans and the others who gave independence to all those countries. Even with the establishment of the Irish Free State, as I said, you still get Irish lawyers in the Irish courts quoting case law from Victorian times. This issue has an implication for case law as well, which we will come to at a later stage.

I hope that whatever the Government do in relation to this debate, they will see all the different proposals in this group and elsewhere and bring back on Report a proposition of their own which restores the systematic assessment of EU retained law to Parliament—with decisions resting with Parliament, not in the hands of Ministers—and prevents it from disappearing as the bells chime on New Year’s Eve later this year.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have put my name to two amendments in this group: Amendment 32 tabled by the noble and learned Lord, Lord Judge, and Amendment 141A tabled by the noble Lord, Lord Lisvane. I have done so because, if the Government were to accept them, they would significantly enhance the ability of Parliament to scrutinise the legislation arising out of this Bill more effectively. They would do so by introducing for the first time the beginnings of a triaging system, which would enable the House to focus its efforts on those probably relatively fewer bits of legislation that really matter and ignore the rather larger number that do not.

My noble friend on the Front Bench has taken a lot of “incoming” over the past couple of days. I have some sympathy with the conflicting advice he has been given. If I were to distil what he has been criticised for, I would say that the concerns about the Bill relate to uncertainty about the Government’s approach to specific policy areas on the one hand, and the lack of parliamentary involvement on the other. These two amendments—and indeed some others in this group—would go a long way to answering those criticisms and concerns. I hope my noble friend will listen carefully to the arguments being put forward, because he might catch the sound of the cavalry arriving to bring some help to his rather beleaguered post.

We have heard a magisterial speech from the noble and learned Lord, Lord Judge, on Amendment 32. I am not a lawyer, and in such circumstances, to try to add to a speech made by a past Lord Chief Justice would indeed invite an accusation of hubris. Therefore I hope that Members of the Committee will come with me, if not into the weeds then into the grass—the long grass—and explore on a more practical level what I believe these amendments will achieve, how important they are in ensuring that Parliament is not taken for granted, and how they will lead to a greater level of public acceptance of the implications of particular policy choices, so reducing disconnect between the governors and the governed. Finally, in consequence of all this, I will explain why I hope my noble friend on the Front Bench and the Government will give very serious consideration to what the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, have proposed.

I want to draw on my experience of the past three years as chairman of the Secondary Legislation Scrutiny Committee. During that time I have seen the sands of power and influence trickling through Parliament’s fingers, which has meant that the Government have gained more power at the expense of Parliament. This has long roots here. It probably began with the Blair Government, who had a very substantial majority and thought they could use secondary legislation to push stuff through quickly. It has had twists along the way with things such as the pandemic, where emergency legislation has been used for purposes for which it was not originally intended. However, the real game-changer has of course been, as we all know, the emergence of skeleton Bills—framework Bills—of which what we are discussing today is a classic example.

It is worth pausing momentarily to think about what my noble friend is going to say on why this group of amendments should not be accepted. I think the first thing the Government will claim is that, if they were to be accepted, it would be likely to lead to the government machinery being gummed up by additional legislative time taken. I reject that—it is not true. In the 600 or 700 instruments that the SLSC looks at every year, between two-thirds and three-quarters are entirely uncontroversial—they are essentially technical—and I am firmly of the view that no lesser a proportion of the regulations that will come from the Bill will fall under the same category. They will essentially be technical and uncontroversial and will not give rise to controversy, which means that your Lordships’ House and the Government will have a much smaller population of instruments on which to focus their attention.

The second thing that I think the Government will allege is of course that both Houses give their consent to each regulation. We have all heard the noble Lord, Lord Krebs, who is not in his place today, on the question of amendability, and the noble Lord who just spoke referred to that as well. Technically, we know it is true, but the consent is the equivalent of having a pistol at your forehead which will fire bullets marked “constitutional crisis” and “the Strathclyde review”. In those circumstances, I argue that the consent is grudging at best.

What is really valuable about these amendments and indeed the others is that for the first time we can begin to concentrate on what really matters. This is by any standards an immensely complex Bill, and the actions taken under it will set the course for this country for many years. This House—indeed, Parliament as a whole—is entitled to know what the Government is thinking, not just in broad statements of principle but in their detailed application, which is, after all, what really matters to every citizen. If my noble friend and the Government are concerned about the generally adverse reaction to the Bill, I gently remind them that sunshine will be the best answer and these two amendments represent sunshine.

I am not against the Bill—I voted to leave the European Union and I believe it was the right thing to do—but I am also a democrat, and I voted to bring back powers to the United Kingdom. Although this is happening, sadly, as my noble friend Lord Young of Cookham memorably pointed out at Second Reading, those powers have been sent to the wrong address. If I may continue with his analogy, I regard these two amendments as attempts to redirect the repatriation of powers to their proper destination, and that is why I support them.

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[Lord Hamilton of Epsom (Con)]

My Lords, I support my noble friend in her amendment. I take the view, as the Committee well knows, that if you give the bureaucracy longer to implement all of this, it will use the time. Therefore, the shorter the time we can make it, the better.

I ask my noble friend the Minister whether he considers the fact that the sunset clause is operating at the end of this year as almost the sole reason we now know roughly how many bit of retained EU legislation there are. If the sunset clause had not been in there, I do not believe that the bureaucracy of this country—pace the noble Lord, Lord Wilson—would have come up with the answer at all.

[Lord Whitty (Lab)]

My Lords, I have Amendment 56A in this group. Noble Lords have probably gathered by now that I profoundly hope that the Bill never reaches the statute book. However, if it does, we need to know what the heck we are talking about. My Amendment 56A requires the Government, within three months of the passage of the Bill into law, to ensure that all of us here and those whom they are going to consult out there—the businesses, consumers, workers and everyone else whom the Bill may affect—know what we are talking about; namely, by providing a definitive dashboard at that point, preferably with an indication of how the Government intend to deal with different bits of the dashboard. But, in any case, it requires that they provide a “definitive list”. If we do not have that, no one will know how we will behave, whatever the deadline.

I support the deadline proposed by the noble Baroness, Lady McIntosh, which is reasonable, given that we are talking about 4,000 pieces of legislation, at the last count. I do not agree with the deadline in the Bill or with extending it by only one year, as the noble Baroness, Lady Lawlor, suggested. The key point of my amendment is that the world needs to know what the Bill means, what it is about and, preferably, how the Government will deal with it. I do not think that the word “dashboard” has appeared in many pieces of legislation, but we need something based on the dashboard as it is currently. Noble Lords who have tried to use it will have found it rather difficult and certainly not yet definitive. So we are giving the civil servants—I can go along with the noble Lord, Lord Hamilton, on this to some extent—three months from the passage of the Bill to produce a definitive list of what we are talking about, and we need that.

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[The Deputy Chairman of Committees (Baroness Barker) (LD)]

Your Lordships should know that, if Amendment 59 is agreed, I cannot call Amendments 61 or 67 for reasons of pre-emption.

[Lord Whitty (Lab)]

My Lords, I have three amendments in this group, Amendments 61A, 61B and 61C. I first apologise to the Committee: at the rate things are going, I may not be here by the end of the group. No discourtesy is intended. I hope to be here, but it depends on the length of your Lordships’ speeches.

These three amendments seek to exempt from the sunset in Clause 3 various categories of retained European law. These categories and why they are so important were extensively debated earlier in Committee, but they also need to be excluded from this part of the Bill. These areas relate to employment, environment, food and transport safety, and I pick them out for two reasons. First, these are the areas on which noble Lords have received most representations from organisations, businesses and others anxious about whether key areas of retained law will fall on 31 December.

Secondly, and maybe this has more appeal to the Government, each of those three areas has profound implications for international relations. They are either traded issues, such as food, issues which are clearly covered, for example by the trade agreement with the EU that we will not lessen standards, or else areas which are very complicated in their origins. I take for example transport safety, and aviation and shipping safety in particular. They are partially British laws, partially EU laws and partially international laws coming from the ICAO and various conventions. Unravelling that in any way which diminishes the effect of those laws will have very significant implications for international travel and transport, and organisations which operate in those fields.