Retained EU Law (Revocation and Reform) Bill

Robert Buckland Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[The Solicitor General]

I will not give way at the moment. I am going to make some progress, because I am conscious that a number of people want to speak in the debate. As I was saying, all retained EU law in the schedule will be revoked on 31 December 2023.

There is a clear additional advantage to a schedule, and this was a point I made earlier to the hon. Member for Walthamstow (Stella Creasy): rather than using precious parliamentary time passing SIs to save laws that no one would ever let sunset, it is right to be clear in a schedule what retained EU law will revoked, while letting the rest be reformed. Instead of our focusing on passing significant numbers of SIs just to preserve the status quo, the schedule will allow the Government to get on with reforming and revoking regulations that are not fit for purpose for the UK.

[Sir Robert Buckland (South Swindon) (Con)]

My hon. and learned Friend is bringing me a lot of déjà vu, as one of his predecessors who dealt with EU withdrawal and retained EU law. There will be more on that later, but I want to ask him about the point he has just made. Was there not a danger that, in confusing haste with speed, we were going to end up with a cut-and-paste operation, where civil servants were just going to replicate existing SIs and leave them on the statute book to be reformed at some undefined date in the future? Is his approach guaranteed to avoid that unhappy set of circumstances from coming about?

[The Solicitor General]

I am grateful to my predecessor, who has indeed spent many hours at this Dispatch Box debating legislation such as this over the past years. He is absolutely right in what he says; this approach allows the Government to get on with reforming and revoking, rather than having the cut-and-paste to which he referred.

We want to expand both the scrutiny and the breadth of experience that we are drawing on when it comes to revocation and reform. My hon. Friend the Member for Stone (Sir William Cash) anticipated this point, and I thank him for the work done by him and his Committee, a number of whose members are in the Chamber today. Indeed, I used to be a member of that Committee and the Government look forward to engaging with it. I am pleased to give him a commitment that we will present a report to the European Scrutiny Committee on a six-monthly basis on the progress and plans the Government are making on the repeal of retained EU law. Any retained EU law not included in the schedule will be stripped of EU interpretative effects after 31 December 2023. I repeat that it is important to expand both the scrutiny and breadth of experience, as the Secretary of State for Business and Trade has said from this Dispatch Box and elsewhere. This is vital, and it means that we will still be removing the effects of general principles of EU law as an aid to interpretation, ceasing the application of supremacy and repealing directly effective EU rights so that they no longer have any effect in relation to those provisions.

--- Later in debate ---

[Alyn Smith]

The hon. Gentleman makes an interesting point. I have to say that I do not agree with him. The intention of the amendment is clearly about protecting the devolved settlement. It does do that, and that is certainly the SNP’s interpretation of it. We do not have Members in the Lords, but if there was scope for redrafting that provision, we would be open to it. Our position, however, is that it defends the devolved settlement. I do not think there is any serious risk to any other provision.

[Sir Robert Buckland]

I am delighted to engage with the hon. Gentleman, and he is engaging closely on an important detail. The governing provision is section 4 of the European Union (Withdrawal) Act 2018, which in effect deals with the generic issues under section 2(1) of the European Communities Act 1972. There is no specific reference in there to devolved matters. Does that not reinforce the point being made by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) about the danger of this Lords amendment 6 not being as precise or as clear as it ought to be?

[Alyn Smith]

In a spirit of intellectual honesty, I will take that point on board. I hope their lordships will, too, because I suspect that this is not the end of the discussion. For today, we will support the amendment to make it clear that we want to defend the devolved settlement from a power grab. I suspect we will come back to this matter, and I am genuinely grateful for those constructive points.

Lords amendment 15, on non-regression from existing environmental standards, takes the statements of UK Government Ministers and various members of the leave campaign at face value that we will not revoke or pull back from our very high environmental standards, some of which derive from EU law and some of which do not. If we are not going to dilute them and there is no intention from those on the Treasury Bench to do so, let us bang that into the Bill and make it explicit.

Lords amendment 42 is an attempt to improve scrutiny, and I come back to the thoughtful points that were made about the possibility that it might introduce friction into the Bill. I would counter that by saying that the Bill goes around the normal legislative scrutiny by which we would deal with these things. I accept that the amendment is an innovative idea, but it is merited, and those on the Treasury Bench should take it as showing the scale of disquiet about the potential for a power grab with the Bill. We will support that amendment.

I will close; I was hoping to be briefer than I have been. We do not like this Bill. We do not like what it is trying to do or how it is trying to do it. From our perspective, it is not in Scotland’s interests, and it is not in Scotland’s name either, with Holyrood having refused consent. I urge colleagues to match their talk of democratic deficits through their actions. If by their actions they prove my party right today, Scotland has a different path to choose if we are serious about democracy in these islands. My party has a clear vision of Scotland’s best future; I do not see a clear vision of any future in this legislation. Scotland has a better choice to make.

Retained EU Law (Revocation and Reform) Bill

Robert Buckland Excerpts

Consideration of Lords message
Monday 12th June 2023 Commons Chamber

[Mr Deputy Speaker (Mr Nigel Evans)]

Alyn, thank you for your co-operation—I appreciate it. Whoever is on their feet at 4.37 pm I will ask to resume their seat, because I am going to give the Minister two minutes to respond to contributions.

[Sir Robert Buckland (South Swindon) (Con)]

It is a pleasure to follow the hon. Member for Stirling (Alyn Smith). His remarks are always couched in a pithy and clear way, but I disagree fundamentally with his point about a legislative consent motion. It is entirely within the rights of the devolved Administrations and their Parliaments to consent or not, but the very fact that a consent has not been granted should not be regarded as either legally or politically fatal to a Bill that clearly deals with the competences that lie here at Westminster.

I am afraid that the characterisation of the hon. Gentleman and the nationalists—the SNP and nationalist parties elsewhere—that this is a power grab away from Cardiff and Edinburgh in favour of Westminster is a complete misreading of the situation. These powers lay in Brussels, at the European level, and they are coming back to the next level of Government. That is not in any way some sort of reverse grab away from the devolved Administrations. It cannot be, and it does not follow. I speak not only using my experience as a lawyer, but as a former territorial Secretary of State. That characterisation has to be resisted at every turn.

I will now deal with the three particular issues that we have before us today.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Before my right hon. and learned Friend departs from his remarks in response to the hon. Member for Stirling (Alyn Smith) about Scotland, does he agree that, if laws are passed in Europe, they are a compromise representing the interests of 27 different countries? There is an opportunity for some smart deregulation, and that would be as beneficial to Scotland as to any other part of the UK.

[Sir Robert Buckland]

I entirely agree with my right hon. and learned Friend. At the risk of invoking the ire of my hon. Friend the Member for Stone (Sir William Cash), the new Companion of Honour, it is right to say that, although consensus was indeed the means by which regulations were agreed by the Council of Ministers, it usually involved the UK and its assent to that consensus. I know that is not quite the narrative that he agrees with, but we risk fighting the old battles that he and I were on either side of.

[Sir William Cash]

Not today!

[Sir Robert Buckland]

No, we are not going to do that today, but I will end on this basis: my hon. Friend knows I am right.

In my next breath, I want to violently agree with my hon. Friend about his work on the dashboard and the amendment that we now have to make a particular tweak to Lords amendment 16. I entirely support the new clause under Lords amendment 16. The dashboard has been a source of much concern in recent months, which was then reflected by the Secretary of State’s wise decision to change course. That dashboard has to be authoritative, so I am glad to see it in law, but it now needs to work. We need to make sure that it is populated, that the National Archives is very much part of it, that we are not given any more surprises and—my hon. and learned Friend the Minister will get this—that we do not end up with repeal by accident, which is bad for the rule of law, bad for certainty and bad for investment. We all agree on that.

To deal in short order with Lords amendment 15, with the best will in the world, on one level, it seems to be a sincere attempt to reflect the legitimate aspirations of the British people about food and environmental standards. Frankly, they are the aspirations of the British Government, too. It is not right to say that at any time, any Minister on the Treasury Bench under this Government has said that they want to use the Bill as an attempt to railroad the undermining of strict environmental protection and food standards. One therefore has to ask: what is the purpose of this particular amendment? Some of its purpose I am afraid is nakedly political. It seeks to make a political point that imputes to this Government a motive that they just do not have. In addition, it is beset by problems. The particular way in which it is structured, and the requirements for consultation in particular, seem to me to be a litigator’s paradise.

[Jim Shannon (Strangford) (DUP)]

On the point about the environment and how important it is, the right hon. and learned Gentleman will have got the same circular as the rest of us. It states:

“Many of the laws that could be weakened using the powers contained in the Bill as currently drafted are vital to nature’s recovery. They help improve the quality of our rivers and coasts, keep dangerous chemical use at bay, and protect some of our rarest and most important habitats and species.”

Does he believe that the Minister is going to deliver on that? I think he will, but does the right hon. and learned Gentleman think that as well?

[Sir Robert Buckland]

Well, answer that! I entirely agree with the hon. Member. There is no evidence at all that this Government seek to take a different course from their stated aim of protecting world-leading environmental protection and food standards. Therefore, we have to ask what the purpose of Lords amendment 15 is. It seems to me that many parts to the amendment would give rise to a significant amount of litigation. I do not think that is at all what the drafters of the amendment want, and it certainly does not help with regard to clarity of the law.

That brings me to new Lords amendment 16C, which, with absolute candour, seems to me to be a step back by their lordships from the previous iteration of that amendment. It is now narrowed down just to clause 15. I understand the concerns that the noble Lords have about the use of the power in clause 15 because it is, on the face of it, a dramatic power that the Government would have. On one level, the power of revocation seems to me to be welcome. I note within it particular caveats about the creation of new functions, particularly the creation of criminal offences. There has been a long-established convention about the use of such powers, and we all have a concern about the creation of criminal offences that are more serious than ones they seek to replace or, indeed, are serious new offences. I note the taxation and public authority restrictions as well, so a lot of the normal restrictions are built into the provision, which are welcome.

What the noble Lords are asking for is more reassurance about the process. I do not criticise them at all for that, because it does not seem unreasonable to me that there should be at least some process, particularly when new regulations are being created. I would gently press the Minister to consider that discrete point. It may well be, in response to anything that I or other hon. Members say, that he has an opportunity to enlarge on that. It does seem to me not unreasonable to ask for that further check and balance. I do not think it is the sort of unwelcome additional bureaucracy that perhaps he and others are concerned about. Fundamentally, we have a duty as parliamentarians to protect the role of this place in particular in the scrutiny of the passage of important new regulations, whatever form they may take.

If we take Brexit out of this and take the temperature right down, I do not think that is an unreasonable point at all. I do not accept the characterisation that a number of noble Lords are embarking upon some mission here to frustrate the approach that the Government are taking in the Bill. It is a Bill I have supported, and a Bill I have said is absolutely necessary as a special mechanism to deal with retained EU law. We all agreed that this was a particular area of law that needed to be held in suspense and then looked at carefully in its individual parts. Lords amendment 16C does seem to me to reflect that and respect that. The other two matters I have dealt with, and I am more than satisfied with the Minister’s response to that, but I do press him on that particular aspect and that particular amendment. I will not trouble the House any further.

[Stella Creasy]

Getting any detail out of this Government about what they intend to use the powers in the Bill for has been like pulling hens’ teeth. Even now, with the Bill before us today, about to be passed imminently, we still do not know the full effect it will have. I will make a few brief comments.

The right hon. and learned Member for South Swindon (Sir Robert Buckland) talked about the Government’s recognition that we need to know not just the regulations but the direct effect cases that are being deleted. In the other place last week, the Government said they

“will add Section 4 rights to the dashboard as identified at least as frequently as every six months, as per the reporting requirement clause that is already in the Bill.”—[Official Report, House of Lords, 6 June 2023; Vol. 830, c. 1263.]

Nothing has changed since last week, so we still do not know what legal judgments the Government intend to delete—legal judgments that cover multiple rights including employment rights and environmental standards.

Retained EU Law (Revocation and Reform) Bill

Robert Buckland Excerpts

Consideration of Lords message
Wednesday 21st June 2023 Commons Chamber

[Alyn Smith (Stirling) (SNP)]

Here we are again—plus ça change, plus c’est la même chose. I always remember that nobody ever criticised a speech for being too short, and I think I can excel myself this afternoon.

Our position, like the Government’s, has not changed in relation to the Bill. We think the Bill is unnecessary. Retained EU law became law when we left the European Union. The special status that we have heard so much about does not, I believe, stand any sort of academic analysis. It is open to the Government to retain, repeal or change any measure on the statute book without this provision. We think this provision augments the powers of the Executive in relation to this body of law, not on the basis of what the law does, how effective it is or how up to date it is, but on the basis of where it came from. That is a poor premise.

I find myself in the strange position of backing the Lords amendments. The SNP does not send Members to the House of Lords because we have issues with the democratic legitimacy of the place, but I am glad of their work on this. Where I say this is a bad Bill, and where I fear it will be bad law, I would also put on record my appreciation of the very hard-working Clerks and others who have got it to where it is today. I disagree with the politics of this, not their work.

On amendments 15D and 42D, the environmental non-regression clause, that is taking Ministers at face value. If Ministers do not want to regress, then let us put that on the face of the Bill, which would reassure an awful lot of people.

Scrutiny measures are foreseen within the Bill. We acknowledge that, but we do not think they are enough. This is a new set of powers for the Government and I think it needs a new set of scrutiny powers for this place and for the House of Lords, to make sure that there are brakes on what they might do with those powers so given.

The legislative consent motions have been denied by the Holyrood Parliament and the Welsh Senedd. That should give any Unionist in this place cause for concern about the Bill, both in the way it is being taken forward and the attitude that it shows to the devolved settlement. So we are against the Bill and we are backing the Lords amendments to make the Bill a little less bad. I am weary of our entrenched position and a dialogue of the death, so I draw my remarks to a close.

[Sir Robert Buckland (South Swindon) (Con)]

In another attempt to recreate complete déjà vu, I follow the hon. Member for Stirling (Alyn Smith) again, as I did some weeks ago. I will not repeat the point I made to him about his remarks on devolution, in an otherwise beautifully constructed speech, with which I respectfully completely disagree.

We are left with two issues. The first issue can be dealt with fairly swiftly. I do not see the need to put on the face of primary legislation a non-regression clause. The Government have been crystal clear about their approach to environmental standards and I know from my own inbox experiences, and from those of many other right hon. and hon. Members, that the British public just will not have a regression from high environmental or food safety standards. They are the sort of standards where we have led global opinion about regulation. With respect to Lord Krebs, I do not see the need for that amendment.

However, I will press the Solicitor General, my hon. and learned Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), on amendment 42D. While I accept that in its detail there might be some further work, I think 60 days is a long time. In effect, that would mean 60 working days, so if one started in late July, the matter may not be resolved until October or November. I can see that is an issue, but I pray in aid what the noble Lords said about the need to disaggregate this issue from the issue of Brexit. It does not matter about the source of the law or where it comes from; this is a question of the ability of this place—Parliament—to scrutinise the operations and decisions of the Executive.

I am always interested to listen to the careful words of my hon. Friend the Member for Stone (Sir William Cash). I thought that his exposition of Lord Hope’s position on parliamentary sovereignty was a fair one. He and I actually agree quite strongly about parliamentary sovereignty and the need to avoid the trend in the noughties—before the current Supreme Court—to downplay the role of parliamentary sovereignty to suggest that, somehow, we have moved on from the age of Dicey, and the role is no longer unqualified. I think he and I agree on that—we are both defenders of sovereignty—but to pray in aid an argument about ceding powers of the judiciary is rather odd bearing in mind the context of the amendment. The amendment is all about giving more power to this place and, indirectly, I accept, to the other place.

[Sir William Cash]

I made a very careful distinction. I appreciate the point that my right hon. and learned Friend is trying to make, and accept, of course, that Lord Hope of Craighead is a very distinguished judge and a member of the Supreme Court. I thought that it might just be relevant to draw attention to the fact that, in the context of parliamentary sovereignty, Lord Bingham used some quite trenchant words with regard to the judgments that he had observed both from Lady Hale and from Lord Hope. That was all.

[Sir Robert Buckland]

I entirely agree with my hon. Friend’s analysis. I think that we are on the same side on this. I have always been extremely vigilant in observing, scrutinising, criticising and making my own comments in lectures outside this place about the dangers of going down that road and of not understanding that, far from being mutually contradictory, the rule of law and parliamentary sovereignty are both sides of the same coin. If we do not have strong parliamentary sovereignty, the rule of law itself is undermined. The rule of law is a political concept rather than the law itself, and, I think, that that is sometimes misunderstood. It is the duty of Conservatives, from my hon. Friend right through to me, to remind this place and other places about the importance of these principles. We agree on that, but that is not the precise context of this amendment. The amendment is legitimately and properly seeking to make sure that this place has a role in the scrutiny of the revocation of legislation.

I do not accept the arguments that there is an attempt, certainly by the mover of this amendment or of some of the others who spoke in the debate, to try to frustrate the purpose of this important Bill, which I support. We are at a stage now where, with the greatest respect to my hon. Friend, we should not concern ourselves with the Salisbury Acts, because the Lords have given us a Second and Third Reading, and that convention relates to the commanding heights of a Bill, but we are now down to the dirty detail, and that is what we are talking about. Therefore, it is important that we lean into this process in as sensible a way as possible to see whether there is a potential compromise—either by a reduction in the number of days, which I would agree with, or, indeed, by looking again at the precise role of the other place with regard to the approval or otherwise of any regulation. That is what I would be seeking to do if I were in my hon. Friend’s place, because I detect that there is, if not a head of steam, a determination by the noble Lords to press the Government on this particular issue.

As I have said before, if we start to take the “B” word out of this issue and look at it on the basis of parliamentary scrutiny, then perhaps we can take the heat out of the debate and have something far more considered and reasonable.

[Sir William Cash]

My right hon. and learned Friend may be just ducking an issue, which is that, actually, it is not about the “B” word or Brexit as such; it is about parliamentary democracy and sovereignty, the general election and the referendum as well. We are talking about a massive amount of law. I am glad to note that the Government accepted my proposal that we should examine the list and have a proper list. However, having said that, I am afraid that I do not agree with my right hon. and learned Friend. He is doing his best to find a compromise, but I do not think that a compromise is legitimate in these circumstances.

[Sir Robert Buckland]

I listened with care to my hon. Friend. Although he and I are on other sides of the argument, we have always had, I think, a very strong mutual regard for each other’s position and the way in which we put our arguments. I am afraid that I do not agree. It is absolutely right to pray in aid the democratic decisions that have been made by the British people and this House, but we are also here, I think, as guardians of this place. It is important to note that, when we created retained EU law, which he and I were heavily involved with, we said at the time, either explicitly or implicitly, that we would, in good order, look carefully at the body of retained EU law, and that we would get rid of what we do not need—I am absolutely up for that, as it would be good, tidy law-making and doing service to the statute book—but at the same time we would retain what we regard as important safeguards or regulations that underpin particular activities. That is good for the rule of law and good for certainty, and we should remember that. I do not think that the bulldozer approach is the right one; the scalpel surely should be applied to these regulations, so that we get it right.

Therefore, in closing, I ask my hon. and learned Friend the Solicitor General to consider carefully whether, through further amendment and change, we can strike the right balance between the need to fulfil the objectives of this important Bill and to make sure that this place is not lost in the rush to revoke or amend regulations. There may be a time, even with sunsetting, that we will no longer be the party of government and we need to remember that we should be here to defend the position of this House irrespective of who might sit on the Treasury Bench. On that note, I urge my hon. and learned Friend to think again about amendment 42D, but, otherwise, I am in full support of his remarks.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

It is a pleasure to follow the right hon. and learned Member for South Swindon (Sir Robert Buckland). I have much sympathy for him and his attempts to speak to deaf ears.

We are back dealing with the renegade masters of this Government and their ill behaviour—the arrogance they have yet again expressed towards the concept of parliamentary scrutiny. People watching these proceedings —few, I am sure, on a lovely Wednesday sunny afternoon—will understand what is being said: “Our way, or no way at all.” The amendments are a reasonable way of trying to address the loss of parliamentary scrutiny—the ministerial power grab—that this Bill represents.

It is seven years since we were told that Brexit was all about taking back control; seven years that we have been waiting for any kind of benefit at all; and seven years in which our constituents have certainly seen the damage that has been done. The only benefit that the Bill will bring is to Downing Street. It takes back power not to the people, but to the Prime Minister. That is why thousands of people have been writing to their MPs, begging and pleading them to look at the damage that the Bill would do to the powers in this place and to their voice in that process. Following the logic of the hon. Member for Stone (Sir William Cash), we could call anything Brexit. He wants to say, “Well, we had a referendum, so this piece of legislation, as it is currently written, must go through this place unamended.” Well, I would quite like all the money that we were promised for the NHS also to go through this place, but we cannot always get what we want. My constituents are concerned about democracy; that is why people writing to us; that is why there is a concern about the process that the Bill would set up. The powers that it gives, that continue way beyond any sunset date at the end of this year, are over consumer rights, environmental standards and employment rights.

Let us be honest: in a week when the reputation of Parliament could not get much lower, any attempt to restore the ability of a Member of Parliament to represent their constituents, propose amendments or participate in scrutiny—not just shout at Ministers about something that they will pass without challenge—cannot be a bad thing. I welcome their lordships having stood up for the role we could play. We have seen a week in which some MPs would rather have gone to watch the cricket than come to Westminster to do their job, but some of us still think that there is a job worth turning up for and that we should do that job.

[Sir Robert Buckland]

rose—

[Stella Creasy]

I know that the right hon. and learned Gentleman agrees. I have never seen him at the cricket. I will gladly give way.

[Sir Robert Buckland]

Some of us, including my hon. Friend the Member for Stone (Sir William Cash), love cricket, but we can do both, and that is why we are here.

[Stella Creasy]

In fairness to the hon. Member for Stone, I recognise that he was here on Monday and is here today. On the powers of this Bill, he is like the Earl of Lucan—leading his cavalry into the charge of the Light Brigade—because he has already seen the arrogance of Ministers in responding to his concerns. I will never understand why he is giving away the power that he has as a Back-Bench MP to challenge for things—things that I might disagree with, but that, in a democracy, I would stand up for his right to argue for—but he is doing that today and he has done so consistently because he thinks this Bill is Brexit. It is not.

This Bill is a complete break-up of our parliamentary system, because it gives Ministers powers over 4,000 areas of legislation, using statutory instrument Committees with hand-picked groups of MPs to wave through any changes that Ministers want to make. And what has the hon. Gentleman got out of the process? He has got a list of the things that are not going to be deleted that he would like to see deleted. What a glorious victory that is. Little wonder the Earl of Cardigan would be looking at him—