Retained EU Law (Revocation and Reform) Bill (Third sitting)

Peter Grant Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[Peter Grant (Glenrothes) (SNP)]

Like my hon. Friend, I have been puzzling over why the Government are so determined to die in a ditch over this 2023 date. Does he think it is because instead of admitting to the public that they made promises in 2019 they could not possibly keep— having realised that the promise in 2019 to get Brexit done was completely unrealistic—they are prepared to crash the economy in order to go into a 2024 election saying they have got Brexit done?

[Brendan O’Hara]

I look forward to hearing what the Government have to say by way of explanation. I agree with my hon. Friend. It makes absolutely no sense, unless the arbitrary deadline is purely ideologically driven and there to appease the true believers, who have now resumed languishing on the Back Benches.

In response to the sunset clause of the Bill, the Scottish warned that it

“carries an unacceptable risk that vital law, on which the smooth functioning of sectors of the economy and society depends, simply drops off the UK statute book.”

If the Government will not listen to us, perhaps they will take heed of the warning from the right hon. Member for Camborne and Redruth (George Eustice), who said that the Australia and New Zealand trade deals were so poor because of the Government’s self-imposed arbitrary targets. Of course, Members on the Government Benches will say that there are extensions available if they are applied for, but that ignores the fact that the relevant Departments still have to go through and identify at least 3,800 pieces of pertinent legislation, and then someone has to decide what happens next.

Even then, it is far from clear. Does the Secretary of State get to decide that an extension is allowed? Will a decision be made by the Cabinet or at a Cabinet Sub-Committee? Will a separate body be set up to specifically to examine which legislation can and cannot be granted an extension? Let us not forget that if this is not all done and dusted in 13 months, every piece of EU retained legislation will by default fall off the statute book, leaving huge holes in our domestic legislation.

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[Ms Ghani]

If the hon. Member gives me a moment to expand a little more I can explain; I will then take interventions from the birthday boy. Officials have catalogued retained EU law across Government, which has been collated, as part of the cross-varietal substance review of retained EU law, into the dashboard that was published on 22 June. Crucially, powers in the Bill have been drafted to ensure that the current date is workable. The preservation power enables UK Ministers and devolved authorities to keep specific pieces of legislation that would otherwise be subject to sunset where the legislation meets a desired policy effect, without having fully to restate or otherwise amend the legislation.

The power to revoke or replace the compatibility power and the power to restate assimilated law will be available until 23 June 2026, while the power to update will be a continuous power. These powers have the ability to amend assimilated law once the sunset date has passed and retained EU law is no longer a legal category; that means that Departments can preserve their retained EU law so that it becomes assimilated law after the sunset date, and amend it further beyond that date if required. In addition, the Department for Business, Energy and Industrial Strategy will be working closely with other Government Departments, as well as devolved Governments, to ensure that appropriate actions are taken before the sunset date. Finally, the extension mechanism in clause 2 ensures that, should more time be required fully to review the changes needed to retained EU law, the sunset can be extended for specific provisions or descriptions of retained EU law until 23 June 2026.

[Peter Grant]

The Minister has tried heroically but unsuccessfully, I am afraid, to argue that this arbitrary deadline will not place enormous strain on a civil service that is already under enormous strain. Can she look at it from the opposite direction? Can she explain why it would be bad to set an absolute deadline of 2026? If Departments and Ministers are able to sort things out by the end of 2023, they can do so in a safe environment where they are not under pressure to get it done quickly, with the possible consequence that it would then be done wrong.

[Ms Ghani]

I simply do not recognise that the added burden means that the programme of work cannot be deliverable. I mentioned the fact that we have an ability to provide an extension, depending on what that piece of legislation is. What we do not want to do is undermine focus on delivering the bulk of the work by the sunset date that is in place at the moment.

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[Justin Madders]

We have some sympathy with amendment 68. From what we can determine, it tries to equalise the approach to the current anomaly whereby under clause 1(2) the power to remove the sunset is granted both to Westminster and to devolved authorities, but the power to extend the sunset under clause 2(1) is just for Ministers in Westminster. I do not know the reasons for the difference in that approach.

I suggest that the evidence sessions did not reveal a particular state of readiness in the Scottish Parliament for the administrative burden that the Bill will leave it with. That is not, by the way, a criticism of the Scottish Parliament; it is a reflection of the timescales that we face. The current powers in the Bill leave the Scottish Parliament in a position in which it would have to remove the sunset entirely, whereas perhaps an option could be for it to extend the sunset for reasons of capacity. That would be a much more measured approach.

[Peter Grant]

My recollection, which may help the hon. Member on his first point, is that Angus Robertson said they had not had a chance to begin to quantify the amount of legislation. He was saying not that it was because there was not very much but because there was so much of it. Can the hon. Member be clear as to what Labour’s current position is? If a piece of retained EU law related exclusively to one of the devolved competences—either the Scottish Parliament, Senedd Cymru or the Northern Irish Assembly—is it Labour’s position that that retained law should be removed from the devolved legislatures only with their explicit consent, or does Labour support the Government, who think this Parliament can legislate away in fields of devolved competence without the consent of the devolved Administrations?

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[Ms Ghani]

The Committee should reject the amendments, which would exempt devolved legislation within Scotland’s legislative competence from the sunset, and amend the territorial extent of the Bill so that it does not extend to Scotland. A sunset is the quickest and most effective way to accelerate the review of the majority of rules on the UK statute book by a specific date in the near future. That will incentivise genuine rule reform in a way that will work best for all parts of the UK.

The territorial scope of the Bill is UK-wide. It is therefore constitutionally appropriate that the sunset applies across all four sovereign nations in the UK. That approach is consistent with other EU exit legislation, and will enable the devolved Governments to make provisions for addressing retained EU law in areas of devolved competence. Every nation of the UK should have the opportunity to review the retained EU law and have the powers to reform the legislation in a way that is appropriate and best suited to its citizens and businesses. Nothing in the sunset provision affects the devolution settlement. It is not intended to restrict the competence of either the devolved legislatures or the devolved Governments.

[Peter Grant]

I put it to the Minister that rejecting the amendment very much affects the devolution settlement. It means that the priorities on which the Scottish, Welsh and Northern Ireland civil service work will no longer be those set by their democratically elected Parliaments and Governments, but the policies set by the UK Government. Angus Robertson made it clear that the Scottish Government believe that there will be a substantial burden of administration on the Scottish civil service. What gives Ministers in this Parliament the right to tell the Scottish civil service to do what they tell them to, not their elected Ministers?

[Ms Ghani]

We are delivering. A crucial part of Brexit was ensuring that our law is the most sovereign law in the land. That is what we are delivering. It is not a diversion from any other policy.

[Peter Grant]

rose—

[Ms Ghani]

I will continue.

A question was raised earlier, as the hon. Member raised just now, about a power grab. When using the powers under the Bill, the Government will use the appropriate mechanisms, such as the common frameworks, to engage with the devolved Governments. That will ensure that we are able to take account of the wider context and allow for joined-up decision making across the UK. If any disputes arise, we are committed to using the appropriate processes set out in the review of intergovernmental relations.

Nothing in the sunset provision affects the devolution settlement. It is not intended to restrict the competence of either the devolved legislatures or the devolved Governments; rather, it will enable the Scottish Government to make active decisions about the retained EU law within their devolved competence for the benefit of citizens and businesses throughout Scotland. I therefore ask the hon. Member for Argyll and Bute to withdraw the amendment.

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Finally, the statement must also set out the likely effect of the revocation of that instrument on the operation of the protocol on Northern Ireland in the EU withdrawal agreement. I think that is fairly self-explanatory.

[Peter Grant]

I have a great deal of sympathy with amendment 90, but amendment 91 seems to be telling the devolved Administrations how to do their job. Does the hon. Gentleman not think that if we want to allow the devolved Administrations to decide whether to vote for a particular piece of retained EU law, we should also leave it to them to decide the process by which they do it?

[Justin Madders]

If the hon. Member does not think that doing proper consultations is the way the Scottish Parliament wants to go, that is a matter for him, but we would like consistency of approach across all Departments and nations of this United Kingdom. Subsections (2C) and (2D) in amendment 91 would effectively create a failsafe so that any attempts to frustrate the will of the devolved nations cannot be made by the inaction of a recalcitrant Secretary of State. I hope the hon. Member can at least take some reassurance from that—any exercises of the devolved nations would, under the amendment, be honoured by Westminster.

We have already heard arguments that some of these laws were not brought into force in a truly democratic manner. Therefore, they do not need the same level of scrutiny that would ordinarily be afforded to other laws passed by this Parliament. Frankly, I find that argument nonsense. It is like saying, “I object to my neighbour planting leylandii in their garden, so I am going to do exactly the same.” If the complaint is that the level of accountability and scrutiny was insufficient when the laws were brought in, surely those making that argument would want accountability and scrutiny when those laws are reviewed. Is taking back control not about us—this Parliament—having a fuller role in the legislative process?

As it happens, I do not accept that characterisation of how these laws were introduced in the first place. In its written evidence, the Bar Council said that

“the EU legislative process, whilst certainly capable of much improvement, contains a number of democratic checks and balances: for the vast bulk of EU subordinate legislation, the co-legislators, both of whom must adopt the final text by (normally weighted) majority, are the Council, comprised of elected Ministers from the Member States, and the European Parliament”,

which is democratically elected, of course, and whose membership included until 2020 Members who were democratically elected from the UK. It continues:

“Important Commission legislative proposals are preceded by impact assessments and so-called roadmaps, and often accompanied by Staff Working Documents, all publicly available and setting out the policy intent. In addition, public consultations and stakeholder meetings are frequent features of the process, whether concerning binding or non-binding measures.”

I do not know whether the criticisms of this process are about the quality of representation that we had over there. A number of former MEPs are now Members of these Houses of Parliament, and they all seem pretty capable people to me. Let us not forget that once the EU issued its directives, we in this place had the European Scrutiny Committee and other Select Committees to examine any proposals. It is simply wrong to say that our politicians, stakeholders and policymakers did not have ample opportunity to exert influence on the development of EU policy and secondary legislation.

There are many examples where EU legislation was supported, and even promoted, by the UK Government of the day. One example—I am sure you will remember this, Sir George—was the social chapter. That was clearly telegraphed by the Labour party as something it would introduce if it got into power back in the 1990s; it was in the manifesto. Of course, Labour won that election and those laws were introduced, including rights on parental leave and working hours. Nobody can say those rules were forced on us without our consent. It should therefore be a matter of agreement for everyone who wants to see democracy prosper that the replacement legislation under this Bill should be made by Parliament after proper consultation, public debate and scrutiny, not simply a ministerial decision—or, as the case may be, ministerial non-decision.

The best idea we have at the moment regarding how the Government intend to approach this mammoth task is a statement from Lord Frost, who said the policy intention was

“to amend, replace or repeal all retained EU law that is not right for the UK.”—[Official Report, House of Lords, 16 September 2021; Vol. 814, c. 1533.]

“Not right”—is that the best we can do? This centuries-old Parliament, taking a historic decision to wrestle back control from those unelected Brussels bureaucrats, finds itself in the ludicrous position of having another unelected person tell us that laws will be changed if they are “not right”. Surely the Minister can see that could mean absolutely anything. That is the equivalent of a dictator waking up one morning and saying, “I don’t think it’s right that people in my country are allowed to wear hats, so from today we will outlaw that.” Clearly that is an extreme example, but that is the consequence of having a Government who have the power to dispense with laws with no consultation or scrutiny because they do not think those laws are right. Surely as a Parliament we can do better than that. Surely we should hold ourselves to a high standard when we want to change legislation. We should not legislate on a whim, and Parliament should not hand powers to Ministers that enable them to do just that.

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[Peter Grant]

I note that the hon. Gentleman’s incredulity is almost as great as mine with respect to a Minister who a minute ago said that we can deal properly with 4,000 bits of legislation in just over a year, but then said that the Government cannot take stuff from their own dashboard and transpose it somewhere else.

Am I correct to think that, essentially, the purpose of the amendment is to give the Government some insurance cover to prevent them from revoking useful legislation by mistake? What does it say about the arrogance of a Government that they refuse to accept such an offer of help and prefer to see legislation that could have unintended damaging consequences, rather than simply having the humility to accept such a proposal, which they seem to reject purely because of where it comes from, rather than any benefit it might contain?

[Justin Madders]

I hope the Minister will learn that I always try to be helpful with my amendments. We are genuinely trying to get the Bill into some kind of shape whereby it might restore faith in parliamentary democracy. We will not be the ones to bear the consequences of accidental omissions; it will be our constituents. They will rightly ask, “What were you doing? Where were you when the Bill was passed?” It will be clear that we raised our concerns and pointed out the terrible potential consequences of not doing this correctly.