Scottish Devolution Settlement: Retained EU Law

Patrick Grady Excerpts

Wednesday 19th October 2022 Westminster Hall

[Patrick Grady (Glasgow North) (Ind)]

It is a pleasure to serve under your chairmanship, Mrs Murray, and to welcome the Minister to his post. He will be missed from the Speaker’s Advisory Committee on Works of Art, which he has chaired so ably for the past few months or more. It is a pity he is not enjoying the solidarity of his colleagues from the Scottish Conservatives, who might have wanted to show an interest in this issue, stand up to defend the Government and extol the virtues of Brexit, which so few people in Scotland supported—but, apparently, there is no sign of them.

I congratulate my hon. Friend the Member for Argyll and Bute (Brendan O'Hara) on securing the debate. It is particularly important, given the chaos engulfing the Conservative Government and Westminster more generally right now, that we take this opportunity to shine a spotlight on an issue that might risk going under the radar. Perhaps that is what the Government—and particularly the Secretary of State—are hoping for: to dress it up as a relatively technocratic, legalistic reform of the statute book and hope that nobody pays too much attention.

However, as my hon. Friend the Member for Argyll and Bute has said, many stakeholders—not just those who might be dismissed as part of the anti-growth coalition, which now appears to include the President of the United States and the Chancellor—and a whole range of financial services are particularly concerned about the impact of so much regulation simply dropping off the statute book without any clear mechanism for its being replaced. As we have heard, it is not a technocratic, legalistic reform of the statute book. The Government’s proposals to reform retained EU law represent an Executive power grab on a colossal scale: a power grab from Parliament, from the devolved legislatures—particularly Scotland—and a complete mockery of the claims that Brexit was ever about the House of Commons taking back control of anything.

The concept of EU retained law was created by the European Union (Withdrawal) Act 2018. Members might recall that the vast majority of MPs from Scotland took quite a bit of exception to that Bill when it was progressing through the House. I looked back at Hansard and, although the Minister will not remember because he was not here at the time, the House was detained on multiple points of order on 12 June 2018, when the Government railroaded through amendments to the Bill that undermined the powers of the Scottish Parliament. The next day, my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) led the majority of Scotland’s MPs out of the Chamber during Prime Minister’s Questions in protest at the power grab that had been enacted.

The precariousness of the Government’s position during the 2017-19 Parliament meant that they were forced to make certain concessions in passing the Act, including the establishment of the European Statutory Instruments Committee, which made a nod in the direction of enhanced parliamentary scrutiny. In reality, the EUWA itself represented a significant power grab, with the UK Government taking on powers over legislation that would otherwise have been subject to scrutiny across the EU institutions by our representatives in the European Parliament, and by this Parliament and the devolved legislatures. That is why the Act also enacted a significant undermining of the devolution settlement by reserving powers for Westminster that should otherwise have been devolved to Scotland and the other devolved institutions as the UK left the European Union.

Of course, as my hon. Friend the Member for Argyll and Bute said, Scotland never voted to leave the European Union in the first place. The blatant disregard shown by the UK Government of the differential in results across these islands, their unwillingness to compromise on issues such as membership of the single market, instead rushing headlong into the hardest of Brexits that nobody could have had evidence to vote for and did not represent what had been proposed by several of the Leave campaigns; all of that demonstrated a contempt for devolution and any notion of a respect agenda.

Now, having invented the concept of retained EU law, the UK Government want to abolish it. They want to introduce a concept of assimilated law, which to the “Star Trek” fans among us will probably have a particularly sinister overtone—the legislative distinctiveness will be added to our own, as the Borg queen may or may not say. They think that by introducing this concept they can erase the legacy of the UK’s time in the EU. Of course, it is not by some strange doublethink that they want to erase the legacy of EU membership: they literally want to sunset every provision accumulated over the past 50 years if it is not reviewed or retained by the end of next year. Never mind that we do not know who the Prime Minister will be at the end of next week, or that the House has sat for little more than four weeks since July; the Government seem to expect us to believe that they can effectively and efficiently revise and update this entire corpus of law in less than 12 months.

They do not pretend that there will be much of a role for this House. As my hon. Friend the Member for Argyll and Bute said, they want to create massive powers to railroad through statutory instruments and other secondary legislation, or let retained EU regulations drop off of the statute book completely. Never mind if they provide fundamental protection for workers’ rights, food standards or the natural environment across all of these islands; the arbitrary deadline from the Secretary of State cannot be met, so off they will go, without any consideration of the consequences for businesses or organisations that are trying to operate or trade in a legislative vacuum. The Secretary of State was previously the Minister for Government efficiency, but this is not efficiency: this is ideology.

That brings us to the specific impact on Scotland and the other devolved administrations. The Northern Ireland Assembly is barely functioning, so it has practically no path of resistance or opposition to this. Sensible voices are already calling for the expansion of the capacity and powers of Senedd Cymru, but the Tories seem determined to stand in the way. That leaves Scotland; because Scotland already has the greatest degree of devolution on these islands, it faces the biggest power grab of all from the Retained EU Law (Revocation and Reform) Bill. As my hon. Friend the Member for Argyll and Bute said, the UK Government asserted primacy over a whole suite of policy areas that were previously understood to be devolved. All of the concerns about the capacity and time available for scrutiny in this place apply equally to Scotland’s Parliament. The Scottish Government already have their work cut out trying to mitigate the most devastating impacts of Tory economic and social policies in Scotland, and now they need to find time and space to deal with everything coming down or coming up the road in this Bill.

The Scottish Government have committed to remaining aligned with European Union regulation wherever possible. Alignment makes trade in goods and services easier and more beneficial for all. It will also make the process of Scotland rejoining the European Union as an independent country much more straightforward. Perhaps it is not surprising that the UK Government want to ensure that as much of the UK as possible diverges as much as possible from the EU acquis as quickly as possible.

Surely the whole point of Brexit freedom, if that is what the Government think this is, should be to identify naturally and organically where reform of retained law was needed, through the usual processes of engagement with our constituents, consultation with stakeholders and the small matter of political debate and deliberation in Parliament. Instead, what we see exposed is the ideological determination of this Government to erase the UK’s membership of the EU from history, irrespective of the outcomes.

We heard from my hon. Friend the Member for Argyll and Bute that the Second Reading of the Bill might take place as early as next week. Will the Minister tell us whether it is the Government’s intention to commit that Bill to a Public Bill Committee for scrutiny, or whether, like the European Union (Withdrawal) Act 2018, it will be committed to the whole House for scrutiny? That Act received eight days of scrutiny in a Committee of the whole House and two days on Report, because the Government recognised its constitutional significance.

If this Bill is as significant as the Government try to claim, it should be subject to the scrutiny of the whole House through all its stages. In reality, I do not think that is what the Government are interested in. The explanatory notes are always a riveting read, and I pay tribute to the civil servants who pull them together for the benefit of those of us trying to get our head round the legislation. The explanatory notes say it all. Paragraph 28 says:

“There is no definitive list of general principles recognised in the Court of Justice of the European Union case law, but examples include the protection of fundamental rights, and the equality principle.”

Paragraph 30 says:

“This Bill abolishes these general principles in UK law by the end of 2023, so that they no longer influence the interpretation of legislation on the UK statute book.”

That is the abolition of fundamental rights and the abolition of the equality principle. Brexit really does mean Brexit after all.

Among the Westminster chaos, the people of Scotland can see what is happening and want no part of it. Their chance for a different kind of repeal Bill—repeal of the Act of Union 1707—is coming very soon indeed.

--- Later in debate ---

[Dean Russell]

Thank you.

The Bill will abolish the constitutional and outdated special status that retained EU law currently has on our statute book by 31 December 2023. It will empower the UK and devolved Governments to amend, repeal and replace their retained EU law more quickly. It will also include a sunset date by which all remaining retained EU law will either be repealed or, if a decision is made to keep it, stripped of interpretive provisions associated with retained EU law, and assimilated. I noted the comment of the hon. Member for Glasgow North, being a fellow “Star Trek” fan; although I disagree with his analogy, I understood the concept of the Borg, which probably has not been mentioned in Parliament very often. The key point is that any retained EU law that we keep will be assimilated into domestic law.

The Bill will enable the Government and, where appropriate, the devolved Governments to take back control of the UK statute book. The powers in the Bill will enable swift reform of the laws—more than 2,500 in total—derived from the UK’s membership of the EU. Many of those laws are outdated; some are even inoperable or not fit for the UK’s economic circumstances. That is why reform is needed.

Without the Bill, there is a risk that retained EU law becomes an immutable category of law on the statute book. The European Union (Withdrawal) Act 2018 preserved EU laws as if they had effect in domestic law immediately before the end of the transition period following the UK’s withdrawal from the EU. It is manifestly sensible that we all have the power to repeal or reform those laws and that we do so without delay.

[Patrick Grady]

Surely the point is that if this Parliament has regained sovereignty, in the way that the Brexiteers claimed it has, it has that power and can do it on a case-by-case, piece-by-piece basis, as people come forward with allegedly sensible improvements to the retained EU law. Having the end of next year as a sunset clause is just completely arbitrary; it is not necessary. The whole point of the Brexit case, as I understood it, was that this Parliament could take its time and assert its sovereignty, and change these hangover regulations as and when it saw fit, and not with an arbitrary sunset clause.

[Dean Russell]

I thank the hon. Member for his comments, but no—we need to make sure that there is certainty on this issue. Having that date is absolutely essential to make sure that we are working towards it and ensuring that there is commonality in the way we work across these regulations and laws. Ultimately, however, this is what the British people—people across the United Kingdom—voted for. I appreciate that saying that may open up a whole load of new interventions, so I will hesitate to go down that rabbit hole.

This Bill will provide both the UK Government and the devolved Governments with the powers to amend, repeal and replace these laws more quickly and more easily than before. It will enable the devolved Governments to establish a more nimble, innovative and UK-specific regulatory approach, in order to go further and faster to seize the opportunities of Brexit.

The hon. Member for Argyll and Bute mentioned devolved Governments quite a few times and I understand the reasons for that. I just want to make it absolutely clear, and I will reiterate this because it is so important, that the decisions for those in devolved Governments to make—the choice to preserve, amend or repeal retained EU law in their areas—are theirs to make. I will come on to this again a bit later in my comments.

The measures in the Bill are UK-wide. This will ensure that citizens and businesses across all four nations of the UK are able to realise the benefits of Brexit. Nothing in our proposed legislation affects the devolution settlements. The proposed legislation will not restrict the competence of either the devolved legislatures or the devolved Governments. In fact, the powers in the Bill will give the devolved Governments greater flexibility to decide how they should regulate those areas that are currently governed by retained EU law in the future.