Retained EU Law (Revocation and Reform) Bill

Robert Neill Excerpts

Report stage
Wednesday 18th January 2023 Commons Chamber

[Ms Ghani]

It is a pleasure to be here, and I thank all Members who have tabled new amendments and new clauses and who will speak in the debate. I also thank the members of the Public Bill Committee for their work.

I will address the Government new clauses and amendments first, but I will say more about them in my closing speech when other Members have had a chance to contribute. I will also address some of the concerns that have been raised, and some of the misinformation about the Bill.

The Government new clauses and amendments are minor and technical. They cover four areas. The first is updating the definition of “assimilated law” and how it should be interpreted, and, in the case law provisions, ensuring that the High Court of Justiciary is covered in all instances. I thank the Scottish Government for their engagement: there has been engagement between our officials and those in the Scottish Government, and with the Advocate General. Our new clauses also clarify the fact that the use of extension power also applies to amendments to retained EU law made between the extension regulations and the sunset, and clarify the application of clause 14 to codification as well as restatement. These are technical drafting measures, and I ask the House to support them.

Let me now explain why the Bill is crucial for the UK. My explanation will directly cover many of the new clauses and amendments. The Bill will end the special status of retained EU law on the UK statute book by the end of 2023. It constitutes a process. Considerable work has been done with officials across Whitehall and with the devolved authorities; that work has been proportionate, and has been taking place for over 18 months. I cannot stress enough the importance of achieving the 2023 deadline. Retained EU law was never intended to sit on the statute book indefinitely. It is constitutionally undesirable, as some domestic laws, including Acts of Parliament, currently remain subordinate to some retained EU law. The continued existence on our statute book of the principle of supremacy of EU law is just not right, as we are a sovereign nation with a sovereign Parliament.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

We all accept that the status of EU law must change and that it will have to be reassimilated into domestic law in due course. No one argues with that. Will the Minister not reflect that it is constitutionally unacceptable to create what the Law Society—which might know a little more about the law than politicians and civil servants—described as a “devastating impact” on legal certainty and business confidence? To do so by means of Henry VIII powers so wide that all scrutiny is, in effect, removed from this House is not taking backing control but doing the reverse of what the Government seek to do.

[Ms Ghani]

I always respect my hon. Friend’s opinion, but he is fundamentally mistaken. We have undertaken a considerable amount of consultation with our courts and have worked with them consistently. It is absolutely right that we deliver Brexit by ensuring that laws made here are sovereign over EU laws.

Retained EU Law (Revocation and Reform) Bill

Robert Neill Excerpts

2nd reading
Tuesday 25th October 2022 Commons Chamber

[Dean Russell]

I have given way quite a lot today, and I want to at least get to the end of my speech while I am still in post!

For example, there are 33 individual pieces of retained EU law relating to eco-design requirements. I posit that it would be easier for business to comply if there was just one piece of legislation covering all relevant goods, providing a strong market incentive for businesses to increase energy efficiency. There are countless examples across Whitehall of where the Bill enables positive changes, from improving the clinical trial process to establishing sensible and proportionate artificial intelligence regulation, while still being very mindful of the rules around the impact on the culture sector and on many others.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I am very grateful to the Minister for giving way and I congratulate him on doing such a sterling job under such difficult circumstances.

I recognise that it will be necessary to make changes to retained EU law that was never intended to be permanent, and there are good reasons for doing that, but there is a concern that doing it in the way proposed will add to legal uncertainty. The former Secretary of State, my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg), kindly wrote to me as Chair of the Justice Committee to say that officials from the Department had engaged with the judiciary on how the Bill will work in relation to the interpretation of retained EU law and changes to it. Can the Minister help me, having had the benefit of discussions with the judiciary, with how the proposed changes will improve legal certainty, which of course is itself important for business certainty?

[Dean Russell]

I thank my hon. Friend for his comments. One of the key things for certainty is having a clear date and a point when it will all happen. Uncertainty often comes by not knowing. We were going to have to make sure that the sunset clauses came in at some point. If I am still in post, I will gladly continue to meet him. If I am not, I will make sure that the person who comes in after me—a bit like “Doctor Who” and David Tennant emerging from the TARDIS this week—continues that work. I look forward to that.

After consideration of the retained EU law dashboard, the former Secretary of State took the decision to exclude Acts of Parliament and Acts of the devolved legislatures from the sunset. The content of those Acts largely concerns the operation of domestic policy. As they have all been properly scrutinised and reflect the will of the public as enacted through democratically elected representatives, we will make sure of that. Given the practice of qualified majority voting in the EU, the same cannot be said for most other parts of retained EU law. That is why it is right we have the review and make plans to amend that law now. I remind Members that our constituents voted for us to be here to make decisions on laws that affect them. The idea that we should not be doing that and the idea that we are trying to say, “Let us keep it as it is” feels very wrong to me.

I accept, however, that some retained EU law in the scope of the sunset is required to continue to operate our international obligations, including the trade and co-operation agreement, the withdrawal agreement and the Northern Ireland protocol. Therefore, I am very happy to make a commitment today that the Government will, as a priority, take the necessary action to safeguard the substance of any retained EU law and legal effects required to operate international obligations within domestic law. We will set out where retained EU law is required to maintain international obligations through the dashboard, so that the public can scrutinise it. However, the sunset and the powers in the Bill are not enough to fully reclaim our parliamentary sovereignty. That is why I am also delighted to confirm once again that the Bill abolishes the principle of the supremacy of EU law. It is just absolutely absurd that in certain situations foreign law takes precedence over UK statute passed before we left the EU.

--- Later in debate ---

[Paul Blomfield (Sheffield Central) (Lab)]

In last Thursday’s business questions, there was some discussion about whether the Bill should be proceeding at this time. It is a good question not simply because of the uncertainty caused by the latest episode in the Tory leadership soap opera, which of course reflects the deep divisions that have torn that party apart in recent years, for which the country has paid the cost, but because the Bill comes from the same thinking that drove the mini-Budget. It puts ideology before common sense, ignoring evidence, refusing advice, dismissing experts, and causing huge damage to the economy and to families, in pursuit of what Conservative Members described as a libertarian experiment. That approach was honed in the referendum campaign. Let us remember the way the Office for Budget Responsibility projection of the hit on our GDP was dismissed. However, as the former Governor of the Bank of England pointed out last week, in 2016, Britain’s economy was 90% the size of Germany’s and now it is less than 70%. That is where putting ideology before common sense leaves us.

The point is not to reopen the Brexit debate, despite the best attempts of some Government Members to frame every discussion on the EU in that way. We are not rejoining the EU. We are not rejoining the single market or the customs union, although major Tory donors have made that case this week. The point is that we should learn from our mistakes, but the Bill doubles down on putting ideology before common sense, and which side he falls on will be a real test for the new Prime Minister.

Let us remember why we have retained EU law—it is because the Conservative Government proposed it as a sensible way of dealing with the practical problem of the legal vacuum that we would face if we left the EU without it. Hundreds and hundreds of laws that are part of the fabric of our lives would otherwise have fallen without proper consideration. We should remember —and the hon. Member for Ruislip, Northwood and Pinner (David Simmonds) made this point—that often those laws were driven through the EU by the UK; they were shaped by us; they were laws we needed.

The principle of retained law was that, over time, we could review the legislation and, if we chose, update, amend or drop it, but there are 2,400 laws. The madness of this Bill, but also its central purpose, is the sunset clause, which will see all retained law expire next December if it has not been incorporated in UK law. Of all people, the right hon. Member for Chipping Barnet (Theresa Villiers) warned about that quite forcefully as an ardent Brexiteer.

The Bill is the brainchild of a Secretary of State who is no longer in government. We know he faced significant opposition in Cabinet when he proposed it, and for good reason: it forces every Government Department to prioritise, above everything, the review of retained law over the next 14 months, or lose it. Is that really the priority for Government? We have an economy that is tanking as a result of their actions, a cost of living crisis that will break thousands of families, a war in Europe and a climate emergency, but in the face of all of that, the Bill tells every Department that its priority is to review retained EU law. It is complete madness.

What is at risk? In a cost of living crisis, with prices rising and businesses struggling, uncertainty will push costs even higher. The regulations and standards that we risk losing at the end of next year, as civil servants are stretched with the real business of government and struggling with the issues, are necessary for confidence in businesses, purchases and markets. They provide the certainty needed for growth. Without them, we are deliberately damaging investment—who would want to bankroll ventures that might lose their viability or access to markets as regulations are set to change significantly? How do British standards remain high and of good quality if we risk their simply dissolving without consideration either by Ministers or by the House when the sunset clause is triggered?

The legal chaos unleashed by this process is wildly unproductive. By tearing up all these regulations at a time of huge pressure on our public services and Government, the potential for things to be missed, late, or poorly executed is huge. How can businesses be sure of the obligations they need to fulfil in this situation? How can they ensure health and safety standards for their employees? How can they be certain that there will not be legal repercussions for their activities if these frameworks are binned in favour of a Daily Mail headline?

The head of the Government Legal Service from 2014 to 2020—the crucial period in which we debated our departure from the EU—said this weekend that this is

“absolutely ideological and symbolic rather than about real policy...there is no indication of which areas the government is thinking of retaining and which it is getting rid of. So there is no certainty about what laws we will have and what will replace them. It is a very, very bad way to change and make law...It creates…uncertainty within a very tight, and completely self-imposed timescale.”

Business is clear too—it has enough to be getting on with, protecting jobs and livelihoods, without the Government creating more barriers to their work. The Federation of Small Businesses has said that the Bill adds

“an extra burden to already very difficult trading conditions.”

It continues:

“A year just isn’t long enough for small businesses”—

the hon. Member for Ruislip, Northwood and Pinner made that point well too—

“to work out how their operations will need to change in response to a fundamental shift in the regulatory environment, such as the one proposed by the EU revocation and reform bill.”

As a member of the UK Trade and Business Commission, chaired so well by my right hon. Friend the Member for Leeds Central (Hilary Benn)—

[Sir Robert Neill]

Will the hon. Gentleman give way? I will not be speaking later in the debate.

[Paul Blomfield]

indicated assent.

[Sir Robert Neill]

The hon. Gentleman refers to business uncertainty. Has he seen the detailed briefing that has been prepared by the Bar Council about its concerns over the creation of legal uncertainty in relation to certain clauses of the Bill? Those clauses leave doubts as to how retained law should be interpreted, and doubts as to its status and what discretion judges will have in its interpretation. Surely those things should be put right before the Bill goes any further.

[Paul Blomfield]

I have not seen that briefing, but I will now look because the hon. Gentleman makes a very strong and forceful point, as he so often does in this House.

As I was saying, through the UK Trade and Business Commission, which draws representatives from every single party in this House, we have heard many frustrations from businesses over the past two years. Those businesses have asked for many things to improve the environment in which they are operating. Not one has said, “Please, ditch EU retained law.” Laws make sense—laws that we have helped to shape, laws that we have often played a key role in creating. Laws, as described by my hon. Friend the Member for Walthamstow (Stella Creasy), protect pensions, prevent carcinogenic materials in cosmetics, protect part-time workers’ conditions and so on. They are not bureaucratic red tape, but basic laws that underpin a civilised society and a good quality of life.

Why chuck everything in a bin and set it alight? Over the past few weeks, in particular, have we not had enough of disrupters in Government? I listened to the new Prime Minister this morning. He talked about placing economic stability and confidence at the heart of the Government’s agenda. He set out priorities in which this Bill does not figure. He said that his Government will

“have integrity, professionalism and accountability at every level.”

If he is serious, he will drop this Bill. Let us legislate with purpose, not for a headline in the Daily Mail. Let us reject this Bill today.

Economic Crime (Transparency and Enforcement) Bill

Robert Neill Excerpts

Committee stage
Monday 7th March 2022 Commons Chamber

With that, I am grateful for the Committee’s attention, but really we need to do all these things in a timely fashion and some of us are just phenomenally frustrated that it has taken us so long to get here.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I am afraid that I am now going to reduce the level of excitement by returning to some rather technical and boring but I think important legal details of the Bill, because we all want to make sure that this works in practice. I am concerned that, despite what is in the Bill itself and in a number of the amendments, there still seem to be two important areas of potential loophole.

Can I start with the definition of registrable beneficial owner, largely in schedule 2? The concern that I have, and I am fortified by the briefing I have received from the Law Society of England and Wales—it mirrors the briefing that I suspect the hon. Member for Glasgow Central (Alison Thewliss) had from the Law Society of Scotland—is that there is a gap here, as the impact assessment of the Bill sets out. What has been done here is to take the existing domestic registry of persons of significant control and seek to build on that, which is fair enough, but it does not go far enough.

The problem that we have is this. There is a common misconception that analysing who the person of significant control of an entity is, is the same as analysing who the beneficial owner is. They are not the same and the objective we need to get to is: who is the economic beneficiary?

The position is this. The PSC regime seeks to establish ownership certainly, but only ownership in the context of leading to the control of the relevant entity. It does not seek to establish who the ultimate economic beneficiary of that entity is. So we could have a situation where the register disclosed the ownership of, let us say, a corporate group, but it would not then disclose who in fact are the people behind the corporate group. It might disclose individual named nominees, but it would not then disclose the people on whose behalf the nominees hold the property. There might in fact be no registrable person—no legal entity that holds significant control—so nobody would be shown up in that.

I urge the Minister to pay attention to what the Law Society suggests to get around that and to ensure the economic beneficiaries of the property are captured—the oligarchs and their families; they are the economic beneficiaries we want to get to. The trust and its beneficiaries—this will invariably be in the form of trusts of one kind or another—should also be registrable under regulation 45 or 45ZA of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017. That is a mouthful, but it would do the job. The whole point is that then we would be able to capture the beneficiaries. That is missing from the Bill as it stands and I do not think any of the current amendments deal with that point. I hope the Minister, as he is taking things away, will take that away urgently in order to plug the loophole.

That relates to the relationship between the scheme under this Bill and the scheme of the trust registration service because that same set of 2017 money laundering regulations works in conjunction with the trust registration service: that is the body through which entities meet their legal obligation to register under those money laundering regulations. Express trusts are covered by that if they are UK trusts. Non-UK express trusts are obliged to register under the 2017 regulations if they hold UK property, or derive income from a UK asset—again, that is the sort of situation of the oligarchs that we are looking at.

We must be very clear in setting out which overseas trusts are going to be caught by the legislation. Are they under the regulations or under the Bill? If we extend the definition across, we might well cover that. It is also suggested—I think there is merit in this—that guidance should be issued to honest practitioners in this field setting out which entities are in scope of the scheme and which are out of scope. That has happened in other forms of tax legislation and will be a sensible idea to take away.

The final point I make in relation to that guidance is that that would enable the Secretary of State to give better indication as to interpreting the meaning of “significant influence or control” within legislation. We have got who the beneficial owner is, capturing the economic beneficiaries, and who the person of “significant influence or control” is. We ought to make tally with the PSC regime as far as we possibly can. The logical way to do that is by introducing an amendment to introduce the same provisions we are introducing here into section 790C(7) —I am sorry, again, about the length—of the Companies Act 2006. That would enable us to bring in the equivalent PSC regimes for limited liability partnerships —again there is a gap here, as I read it—unregistered companies, and also Scottish partnerships, which have been referred to by Opposition Members.

Those are gaps that the Law Society has flagged up that could be plugged. There is plenty of time between now and next week to get that worked out. I just say this: the Government have many able lawyers—I worked with some of them when I was a Minister. Specialism in detailed trust law is not necessarily a core Government legal business. The Law Society, both north and south of the border, has access to real expertise in this field, objectively. It has written to say that it would be very happy to work with the Government in helping to fine-tune the legislation. I hope the Government will think about that. Not all wisdom purely comes from within Whitehall and we ought to look to experience in the sector to take that on board.

I hope those suggestions will improve a Bill that is well intended, but we want to nail everything down as much as we can. In that spirit, I hope the Minister will consider them.

[Layla Moran]

I rise to speak to the amendments in my name: new clause 5 and, in particular, amendment 4, which is supported by the cross-party group that has been trying to get our ducks in a row. The Bill is welcome and timely. It is long overdue and we are all trying to pull in the same direction, but it is a bit of a Swiss cheese Bill. Much in the Bill is good, but there are a lot of loopholes, which we are seeking to close.

I will single out new clause 29 in the name of the right hon. Member for Haltemprice and Howden (Mr Davis) and the amendments relating to clause 31 that were tabled by the hon. Member for Rhondda (Chris Bryant). I heard what the Minister said about “Economic Crime Bill 2”. It sounds like the promise of the good sequel after the film—it is coming and it will be even bigger and better, with bigger stars than the first one—but we all know how sometimes part 2 can be a flop. I sincerely hope that part 2 will come sooner. I remember when the Minister was on his feet claiming that this Bill would wait until the next Session, and here we are debating it now. I welcome that. I wonder whether we might want to try to do that with part 2 and part 3 and get the sequels out as quickly as possible because each one will be pretty meaty and need time.

New clause 5 asks the Government to release the names of those who in the last year have been lobbying the Government against these measures. That is important because it helps on the SLAPPs amendments, which I wholly support. These people need to now be named and shamed. It is not enough to name the oligarchs; we need to name the PR companies and the lawyers—those who seek to water down or create loopholes in this legislation. I tabled a parliamentary question to the Foreign, Commonwealth and Development Office—it was passed to the Home Office—asking it to provide and publish the names of those who had been doing that. The answer was:

“The information requested could not be obtained without disproportionate cost.”

Forget about the cost—do the Government have the list? If they do, those people deserve to be named and shamed, like in the speech by the hon. Member for Isle of Wight (Bob Seely) the other day. I hope that “Economic Crime Bill 2” will have all the necessary powers to clamp down on that activity.

Amendment 4, like amendment 26, looks small. It is very small; it just deletes a line in clause 18. It relates to the bit of the Bill that talks about exemptions. There are three ways in which an individual can become exempt if the Secretary of State wants them to be. Two of them are reasonable. They are

“in the interests of national security”

and

“for the purposes of preventing or detecting serious crime.”

Absolutely fine. Some people think we should just get rid of them all, but I can live with those. However, the third, in clause 18(1)(b), says that the Government can exempt an individual if satisfied that it is necessary to do so

“in the interests of the economic wellbeing of the United Kingdom”.

These are high net worth individuals. Many of them own companies that potentially employ thousands of people in this country. I do not understand why the Government want to give themselves that headache. Why do they want these enabling lawyers to look at clause 18(1)(b) and say, “I’m going to lobby Government to exempt me under 18(1)(b)”?

It is not just a loophole. People keep talking about horses bolting after the gates have been closed. This is hitching a coach to the horse, putting the oligarchs in it with their lawyers and allowing them to drive their way through the Bill. It makes no sense at sall.

Corporate Transparency and Economic Crime

Robert Neill Excerpts

Monday 28th February 2022 Commons Chamber

[Kwasi Kwarteng]

What the right hon. Member says about Companies House reform is not accurate at all. This set of measures will be the biggest reform to Companies House in 200 years. It is something significant. It has not been done in 200 years and it is something which we are very proud to have expedited—[Laughter.] I would have thought there would be a bit more recognition of the fact that this is vitally important legislation that is going to be brought in in a timely way.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

The Secretary of State is right to draw a distinction between that which needs to be done immediately to deal with the appalling behaviour of Putin and his cronies and the long-term reforms that are really important to the business structures of the United Kingdom, for our competitiveness and for company law as a whole, which should rightly not be rushed. In relation to the more urgent and pressing matters, will he undertake to work closely not just with the City but with the large amount of expertise we have in financial and legal services? For example, the Financial Markets Law Committee and others have a great deal of expertise, particularly around such issues as crypto-currency, and we need to harness that. The City and the financial sector want good regulation, because it is in Britain’s interests to have a clean and effective set-up and we should not be misled by those who suggest otherwise.

[Kwasi Kwarteng]

My hon. Friend is right. This idea that the City of London does not want regulation is a travesty and a disgrace. It is a slur on the reputation of our financial services. He is also right to say that there is a distinction to be drawn between what needs to be done immediately and can be done expeditiously, and other matters that need a great deal of thought and consultation, on which I am happy to engage with him and other colleagues.

Coronavirus Business Interruption Loan Scheme

Robert Neill Excerpts

Thursday 5th November 2020 Commons Chamber

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Much of what I was going to say has already been said, so I shall be as succinct as any lawyer can be in these circumstances. I too pay tribute to the effectiveness of the loan scheme. It has certainly saved many firms and many jobs in my constituency of Bromley and Chislehurst. One forgets that London suburbs, although in the prosperous south-east, have many small firms among their number—many family firms and many SMEs—and they have struggled just as much as any other part of the country during this time, particularly as there has always been a problem for many of them with access to capital. I hope we can learn long-term lessons from this.

I congratulate the hon. Member for Midlothian (Owen Thompson) on securing the debate, because it is on an important issue. There are some things I hope we can embed in the system, and my hon. Friend the Member for Broadland (Jerome Mayhew) made a number of important points in relation to that. His father, as a distinguished former Member of this House and distinguished lawyer, would, dare I say it, be very proud of him.

It is fair to say that the key thing going forward is perhaps to ensure that the business loan scheme works effectively with the other measures we are putting in place, and that is where the changes that have just been referred to—the greater flexibility around repayments and moving away from the straight line capital—will be important.

I hope, too, that we can see how that scheme links with some of the other assistance that is being given. For example, an issue that has been raised with me by firms in my constituency is that they have been able to defer tax payments in relation to corporation tax, national insurance contributions and others, but there is still some lack of certainty as to whether there will be any interest charged or any penalty charges in some types of tax deferment. There have been mixed messages as far as that is concerned, and it would be bizarre if we were supporting businesses through the business loan and then some of that was going back to pay the same public purse, in effect, through penalties and interest charges on things we have given them the opportunity to take up. That might in some marginal cases make a difference to firms. Can we therefore ensure that is fully aligned so we are not robbing Peter to pay Paul, in a sense?

The other area, which I think we have now resolved, but must be careful about going forward—the hon. Member for Strangford (Jim Shannon) referred to this—is that some of the banks were at one time charging commercial rates of interest based on their own underwriting criteria, which is wholly unacceptable, given that there is 80% underwriting by the Government in these matters. I hope that the Treasury, the Bank and the Department will be absolutely rigorous in policing this and saying that it is not acceptable behaviour.

The majority of the British banking sector is responsible, but there have been a number of instances where it has not been, and it cannot be right to charge those rates of interest. Initially, for example, we had instances of banks declining to give a business loan, but then offering a commercial loan at about 5%. When I raised it with the banks, they said it was a misunderstanding and backed off, but we should not be getting into that situation to start with. Ensuring that there is rigorous policing and the full co-operation of the banking sector in spirit, as well as in the letter of the law, will be very important.

There is a final matter that we could look at, and this is a rather sad story of a business that had been going for some 21 years in my constituency and which was not able to survive. It was in the travel sector and it perhaps had particular problems, but the issue that put it under was the requirement that its paid-up share capital, less the accumulated losses, should be 50%. In this case, although the business was clearly viable and had a good book of orders, its accumulated share capital, less the losses, was 43.3%. It was a family firm, and to make that difference the directors would have had to, and were prepared to try to, raise the better part of £58,000 to get themselves to 50%, but that cannot be done quickly. They would have had to raise equity—in their homes was the most likely route in this example; other people might have had to issue shares—and they ran out of time by the deadline. I hope that we could have some flexibility in that regard. There might be some means of bridging that, where a business can demonstrate and rigorously prove that it is still viable so that it does not fail for want of being able to access a scheme that otherwise it would have been entitled to. There may have been perfectly good reasons why the share capital was under 50% at the time.

Those were the points that I wanted to make in addition to those that have already been made. All in all, it is great credit to the Government that we have done this. It has made a real difference to people, businesses and livelihoods and to the communities that those businesses serve. We should not forget that either. It is just about saying gently: can we keep an eye on some of those things and continue to refine, tweak and improve the system as we go forward?