Retained EU Law (Revocation and Reform) Bill

Lord McLoughlin Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord McLoughlin (Con)]

My Lords, this Bill has come in for sustained criticism, not least from the Delegated Powers and Regulatory Reform Committee, which I have the privilege and honour of chairing. I would like to say a few words about the report that we published last week but also say that I hope that the Government are very much in listening mode. I very much welcome the fact that the Attorney-General has been at the Bar of the House for a very long time during this debate.

This Bill represents a significant departure from the line that the Government have taken since 2018. Once we had left the EU, they said that it would be for Parliament, rather than just Ministers, to decide which elements of EU law would be kept, amended or repealed. The Government have now backtracked on that, which I very much regret.

Secondly, we felt that the Bill was so lacking in detail that it was not possible to describe it as skeleton or skeletonian; it is basically just a framework for allowing Ministers to decide what happens to whole swathes of EU-retained law. The devil will be in the detail and, unfortunately, the detail does not appear in the Bill. It will be in unamendable statutory instruments later this year and possibly even up to 2026. From the Government’s point of view, all the scare stories that will arise during that period as to what changes may or may not take place will cause them a great deal of trouble.

Thirdly, Parliament is very much bypassed. The main constitutional argument for Brexit, for that utopia that was going to be reached, was that Parliament would take back control of making our laws from the EU. However, many of the changes to the EU-retained law foreshadowed in this Bill will not be for Parliament in primary legislation but for Ministers—and Ministers come and go, as we have seen. Civil servants and parliamentary counsel stay there for a very long time, able to apply the slant that they wish. There must be a way in which scrutiny takes a much stronger role in these matters.

Fourthly, talking of scrutiny, the delegated powers in this Bill are only subject to the negative procedures unless they amend an Act of Parliament, in which case affirmative procedure will apply. I am glad that the Government have been applying the affirmative procedure where statutory instruments amend Acts of Parliament, and I am glad that there is a sifting procedure enabling negative legislation to be upped to the affirmative procedure. However, there are likely to be many important and controversial changes in the pipeline that will not amend Acts of Parliament. In those cases, and only subject to sifting, will the negative procedure apply, meaning that changes will not be debated in Parliament at all.

There is talk of this Bill being extended to 2026. Obviously, a general election will fall in 2025 at the latest. The Government should think very carefully about what is already in the Bill. A lot has come forward from this debate so far which shows how very unsatisfactory this is. Everybody accepts that new procedures will now be necessary, but they should be procedures which enable Parliament to have some scrutiny. At the moment, this Bill is an “all powers, no policy” Bill. That is not acceptable and should not be acceptable to Parliament.