Retained EU Law (Revocation and Reform) Bill

Stella Creasy Excerpts

2nd reading
Tuesday 25th October 2022 Commons Chamber

[Dean Russell]

I will give way in a little while; I want to make some progress. The Bill will enable outdated and often undemocratic retained EU law to be amended, repealed and replaced more quickly and easily than before. That will remove burdens on business, and create a more agile and sustainable legislative framework to boost economic growth.

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

Will the Minister be honest with the House? He says that the Bill will allow us to have the highest standards, but clause 15 formally confirms that we can only go down, and we can only have a race to the bottom, because it talks explicitly about not increasing burdens. Will the Minister tell the House who voted to lower our environmental protections in the referendum?

[Dean Russell]

I can be very honest in saying that the Bill will ensure that we have the highest standards, and within the process of this framework we will ensure that the burdens of delivering the best possible regulatory scheme are removed, while ensuring that we have the highest standards across all we do.

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[Jonathan Reynolds]

I certainly can. I have always said, for instance, that Solvency II could be improved by having to do the regulation on a basis in this country. If we look at the Government’s approach to that area through the financial services and markets legislation, we see that they are taking exactly what might be termed a more sensible approach, going on a sector-by-sector basis, putting forward positive proposals, rather than following the sunset clause procedure, which is so reckless and uncertain. I say genuinely to the right hon. Gentleman: please have the humility to look at the damage done in the past four weeks, and the role of Government Members in that, and perhaps think, “What if we are wrong, and what are the consequences if we are?”

[Stella Creasy]

Might one of the reasons why businesses are so confused about the impact that the legislation will have be because the Minister is? He tried to claim to the House that all the laws affected are published on the dashboard and will have full transparency. However, 24 hours ago in answer to my written question, the Minister admitted that the dashboard provided an “authoritative, not comprehensive” list. Does my hon. Friend agree that, when businesses and consumers are already struggling with the cost of living crisis, the last thing that we need is to not even know what a piece of legislation is deleting?

[Jonathan Reynolds]

My hon. Friend is absolutely correct. The retained EU law dashboard, although useful, is not and never has been a comprehensive list of all the retained law that this Bill affects—[Interruption.] Government Members say that they never said it was. It does not clearly distinguish where retained EU law has been devolved, much to the frustration of the Welsh and Scottish Governments. However, it still lists more than 2,400 sources of law. If the Government want to put a blanket sunset clause on all of this, should they not be able to list exactly what is covered?

The practical case that the Government have put forward for the sunset clause is that they cannot find the time to use primary legislation to amend these laws. Why not? The Government have a majority of 70, at least for the time being. Where the law needs to be changed, what is preventing the Government from doing so? The fear is that what they really want to do is to reduce key regulations entirely, which brings me to my next point—that the Bill poses a threat to core British rights and protections.

There is no question but that the scale of the Bill is large. The policy areas affected cover not only employment law, but environmental protection, consumer protection, agriculture, fisheries, transport, data protection and much, much more. That is why a huge variety of organisations, from the TUC to the RSPB, have signalled their alarm. I am sure that Members on both sides of the House will raise their own worries about those issues during the debate.

The situation in relation to employment law is particularly alarming. Most of the UK’s core labour law protections are contained in regulations originally made under section 2 of the European Communities Act 1972, rather than in primary legislation. They are not cumbersome red tape; they are things that British workers expect, including the Working Time Regulations 1998, the Maternity and Parental Leave etc. Regulations 1999, the Transfer of Undertakings (Protection of Employment) Regulations 2006 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. On all of them, the Government are saying, “Trust us.” Why should we?

This is a Government who have not kept their promise of an employment Bill to ensure workers’ rights post Brexit and who do not keep their manifesto promises at all. This is a Government in which we do not know who will be in each job from one week to the next—and I wrote that bit before the right hon. Member for North East Somerset (Mr Rees-Mogg) resigned as Secretary of State for Business, Energy and Industrial Strategy a few hours ago. I am afraid that we cannot in good conscience hand the Government powers to arbitrarily decide matters that are of fundamental importance to the lives of working people in this country, not least because we have no idea whether any Ministers will still be in position in 24 hours, let alone 12 months.

Under the terms of the Government’s trade and co-operation agreement, the UK must maintain a level playing field with the single market. Such provisions are important to the UK: they protect against a global race to the bottom in standards and protections. We can only guess how the Government will use these powers, but the powers in the Bill are clearly deregulatory in tone.

This goes to the heart of the Conservative party’s simplistic and inaccurate understanding of regulation. When I ask a business what attracts it to invest in the UK, good regulators are always on the list. Businesses simply do not want the fantasy deregulatory agenda that lives only in the mind of so many Tory MPs. After the events of the past month, in which the financial markets themselves rejected the Conservative party’s allegedly pro-market agenda, I would have hoped for a little more wisdom and insight from the Government, but unfortunately I doubt that that will be forthcoming.

Finally, there is the issue of how Parliament will go about changing the law in future. The Government have already been severely criticised for how little power they have returned to Parliament since we left the European Union, and the Bill continues that approach. The use of negative statutory instruments, so that MPs have to actively object to prevent something from becoming law, is very poor practice indeed. When it comes to future proposals, the use of a sunset clause to cover such a large and complex body of law effectively puts a gun to Parliament’s head. Anyone who wishes to scrutinise or object to any future legislation replacing retained law will be taking a gamble, because unless that legislation is passed in time, the current law in its entirety will simply fall away. That is not conducive to good laws being made.

The obvious question is “Why not proceed on a policy-by-policy basis or, if appropriate, a sector-by-sector basis?” As we have already discovered, the Financial Services and Markets Bill does exactly that. Why not bring forward positive replacement proposals where the law needs to change or where something can be done better?

The fact is that this Government are out of ideas. They are more intent on their own survival than on putting in place the positive changes that we need. At a time when the British people are crying out for stable, competent government by a Government who recognise that economic growth comes from working people and businesses and from stability and certainty, not from the fantasy economics of the Conservative party, the Bill is not just wide of the mark, but wantonly destructive.

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[Stella Creasy]

Does the right hon. Gentleman recognise that some of us may be a little bit sceptical about the definition of democratic engagement that he has just set out? He is arguing that, for example, taking away laws that require cosmetics not to contain cancer-causing chemicals or laws on illegal trading—as well as maternity rights and TUPE—is a matter that does not require the scrutiny of the House, but only that of statutory instrument Committees. If he had been so wedded to restoring democracy, might he not have at least written the affirmative resolution procedure into these statutory instruments? Why he is taking back control, not for this House and the great democratic institutions—and he is now joining us on the Back Benches—but to No. 10?

[Mr Rees-Mogg]

I do not accept that construction of what is actually happening. The House will have the ability to focus on issues on which it thinks the Government are going in the wrong direction. Let me pick at random one of the retained EU laws that may be reformed or become redundant:

“a common methodology for the calculation of annual sales of portable batteries and accumulators to end-users”.

Does the hon. Lady really think that deserves primary legislation—a count of batteries? That is what is in the 2,400 statutory instruments on the dashboard, and, as has been pointed out, that is not necessarily the full list.

There are all sorts of minor and unimportant things that need to be dealt with. As for those that are of major significance, it was said clearly at the Dispatch Box that environmental protections would be maintained. That is fundamentally important. It is a commitment from His Majesty’s Government to this House. The Bill will allow those protections to become UK law—which I use as shorthand to cover the three different types of law in the United Kingdom—to ensure that they can be enforced logically and sensibly by our courts in accordance with our legal maxims. That must be a right and certain means of proceeding.

It is interesting that people, having been told this, are still opposing the Bill. I come back to the conclusion that those who are opposing it actually do not like Brexit altogether.

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

It is a pleasure to follow the hon. Member for Taunton Deane (Rebecca Pow). I hope she will appreciate that I listened to what she said and responded in my comments.

We have all done it: we have all accidently hit “Delete”, broken something or not saved a document that we meant to save. Or, even worse, we have been in workplaces where somebody has done that and all that institutional memory and knowledge has gone. Then we face a choice: either come clean that all that information is lost, or try to pretend that it did not matter. In taking the latter option, the Government are putting at risk thousands of rights that have been the fabric of everyday life for all our constituents.

In opposing the Bill, let me be clear that that is not talking about Brexit. It is not talking about rerunning a referendum. It is not to argue that we must go back. I am sorry that the right hon. Member for North East Somerset (Mr Rees-Mogg) is not in his usual place—I am not sorry, really—because it is also not about supremacy. It is about sanity and the business of doing government. In the time that I have, I want to set out that I and Opposition Members will oppose the Bill because of both what it does and how it does it. I urge Government Members to look at how the Bill operates, because all the powers, promises and ambitions in the legislation cannot be achieved.

We do not really know what the Bill does, because we really do not know what it covers. I am sorry that the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Dean Russell), is not in his place—who knows whether he is still a Minister and whether, when he comes back, he will be on the Front Bench or the Back Benches—because being honest about the fact that we do not know the levels of European law is critical.

It is not just minor changes, as the former Secretary of State tried to suggest; there are serious, important pieces of legislation that many in the House, and especially those who care about environmental issues, have discovered are not on the retained EU law dashboard. The conservation of habitats and species regulation does not appear on the Government’s dashboard. Therefore, as a starting point, we have literally no idea which rules are being abolished by the Bill because the Government do not know—they have not found them all. That is what the parliamentary question admitted yesterday with its authoritative but not comprehensive list. Call me an old- fashioned democrat, but I would quite like to know what I was voting to abolish and be able to tell my constituents about that before being asked to do so.

It is also not clear how the legislation will operate in the devolved legislatures. Of course, that matters in making sure that laws are tenable if they are to cross borders, let alone for our colleagues in Northern Ireland who face multiple legislative processes—all that red tape that we were told we could get rid of by leaving the European Union.

Above all, the Bill asks us to play the worst game of “Snog, marry, avoid” that I have ever seen for any piece of Government legislation; in deciding whether something is kept, amended or simply abolished. Let us have a go at that and see whether our constituents really want to play when they see what is at stake.

Let us talk first, nice and simply, about those things that we probably want to keep. I presume—maybe I have misread things—that there will be general agreement across the House that it is a bad idea to have cancer-causing chemicals in cosmetics, so we should retain rules that keep those out. Again, we all think that insider trading is a bad idea, but the legislation will rip up all the rules on that. On airline safety—by that I mean literally the rules that require a plane to be worthy to go in the air—we probably agree across the House that having rules that ensure that planes are safe is a good thing, so we could take a bipartisan approach. Again, we probably all agree on preventing food manufacturers from making false claims about the nutritional content of their food, and on tackling illegal firearms smuggling. One question from many of us might be: when we have a cost of living crisis and a Government who are in chaos, why on earth are we spending time rewriting laws that, on the whole, we all agree with?

That is where the rub is in the legislation: what the Government want to avoid and abolish. They need to come clean to our constituents. They are asking us to approve powers that would let them get rid of the rules around a whole plethora of issues, including those that require major sporting events to be free to air. I was very troubled to discover at the weekend that the Department for Digital, Culture, Media and Sport was trying to claim that was not the case. Clearly, Government Departments have not looked at the legislation on which they have depended. Disease control for bird flu is suddenly up for abolition, along with compensation rules for lost luggage and delayed trains. I guess if a Government are dealing with privatised rail industries and are unable to help them, they think that removing those basic consumer protections will somehow be good for them. However, they should be honest with our constituents if that is what they intend. The payout that comes if someone’s firm goes bust and the entitlement to 50% of their pension pot—let alone TUPE protections if their job is outsourced, paid holiday rights and maternity rights—are up for abolition through the Bill. I am sorry that the right hon. Member for North East Somerset is not in his place, because we could have a conversation about exactly how the EU protected women’s basic maternity rights against decisions by the UK Government.

On part-time workers’ rights, the hon. Member for Taunton Deane says she has had assurances from the Government. Well, I thought the Conservative manifesto was an assurance about what the Government were going to do, but that seems to have been ripped up. The Bill will give the Government carte blanche powers across 2,500 pieces of legislation and 300 policy areas. Can she really, hand on heart, be confident that all of those will be retained? She does not have in the Bill any recourse if those pledges come to nought, so she is taking a huge gamble.

Secondly, one might agree that all those things need to be up for grabs and that it no longer matters—I would love to see the referendum leaflet that said abolishing paid holiday leave would be a good thing; I will sit down if the Government can show me that—but the Bill hits delete through a sunset clause, abolishing everything all at once. As my right hon. Friend the Member for Leeds Central (Hilary Benn) says, that creates a power for Governments to abolish pieces of legislation just by doing nothing, with no judicial review powers if those rights are important.

I am sorry that the hon. Member for Stone (Sir William Cash) is not here. The Bill hands powers to those very Ministers who were in the Council meetings he objected to, to make those laws. In which case, we must all ask, “What help are they getting?” We have talked about 570 different pieces of legislation from DEFRA to be revised. At the moment, there are three DEFRA civil servants dealing with 570 pieces of legislation. It is the same across other Government Departments: two officials in the Department of Health and Social Care dealing with 137 regulations covering healthcare; nobody in the Department for Work and Pensions, which has 208 regulations to rewrite; and nobody in the Treasury, which has 602 regulations to review—snog, marry, avoid—in the next year and decide whether we will keep, or amend, them. The Department for Transport could not even confirm how many staff it had working on this issue. It does not even know who is responsible for it. That is not really a surprise. Of the 2,500 pieces of law that are being ripped up, on which we have been dependent for decades, 800 have no direct ministerial lead to even worry about whether we should keep them.

Ministers will decide what happens to those pieces of legislation—they can water down protections and any promises made to the hon. Member for Taunton Deane, or simply drop them without any form of scrutiny. I am disappointed that the right hon. Member for North East Somerset is not in his place, because those of us who are democrats believe passionately that the only people who are anti-democracy are those trying to take back control to Downing Street rather than to this place. It is simply not true to say to the British public that, through this Bill, Brexit is giving the House powers—let alone the trade war it could easily start, because we signed agreements in good faith with the European Union under the TCA that we would have a level playing field on areas such as food safety and employment rights. The Bill could lead to retaliatory tariffs.

What the hon. Member for Taunton Deane and her colleagues should reflect on most of all, perhaps, is clause 15, which enshrines deregulation. I would be with her in the Lobby on introducing higher environmental standards, but the Bill formally requires that that cannot happen. The direction of travel is only one way—to water down and reduce rights.

[Joanna Cherry]

The hon. Lady will have seen that I put that point to the Minister earlier and he said that clause 15(5) was just a minor detail. Does she agree that that is absolutely wrong and that it is absolutely central to the Bill?

[Stella Creasy]

Clause 15(5) is why the Bill is the anti- growth coalition. Businesses, consumers and environmental organisations alike are against no regulation. No regulation is a recipe for less competition. It is a recipe for a wild west. They want better regulation. Clause 15(5) rules that out and gives Ministers the responsibility not only of finding legislation, but then doing something with it without any scrutiny from this place. There are plenty of parliamentary mechanisms that could change that. There are many different ways that could work. It is not just about the sunset clause; it is about affirmative regulations. There are ways we could reduce red tape, but they are not written into the Bill.

The new Prime Minister says he will fix the mistakes of the past. He could do no better than to abandon the Bill and rethink it, because, as we all know, when we hit delete and do not save, it is a mess for all concerned.

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

Stella Creasy Excerpts

Committee stage
Tuesday 8th November 2022 Public Bill Committees

[The Chair]

There is time for one quick question, if anyone is bursting to ask one. Ah! I call Stella Creasy.

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

Q Thank you, Chair. I apologise; I am afraid a very grumpy toddler would not let me come in. On the subject of grumpy toddlers, our witness has just suggested that the Bill will allow for scrutiny of laws in “a parliamentary forum”. Can he explain how statutory instruments introduced by Ministers allow for appropriate parliamentary scrutiny? Is that not giving a lot of power to Ministers, rather than Parliament taking back control ?

[The Chair]

You have 30 seconds, Sir Stephen.

Sir Stephen Laws: It is possible to underestimate the influence Parliament has, even if the procedures are relatively formal. In the last six years, we have seen that Governments who try to do things that do not have the approval of Parliament get themselves into a lot of trouble. By now, they have probably learned the lesson—indeed, I think they have always known the lesson— that Governments do not propose things to Parliament that they know Parliament will not, in the end, want to agree to.

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[Peter Grant]

Thank you.

[Stella Creasy]

Q We have talked a little bit about the content, but could we talk a little about the process? You have just highlighted that there are actually another 1,400 pieces of legislation affected. The process then gives ministerial—not parliamentary—control about what happens next. Could you give us your reflections on that process and the scrutiny of it, and some of the practicalities? For example, which Ministers will retain responsibility for which pieces of legislation?

It would be quite helpful to know, with the extra 1,400, who has drawn the short straw? Are they all in one particular Department or across the Departments? A previous witness claimed that there would be adequate parliamentary scrutiny, and if Parliament did not like what Ministers were doing, it would intervene. What would this process mean for our ability to influence the content produced as a result of the Bill?

Professor Barnard: On the first point, as you rightly point out, there are provisions in the Bill to allow Ministers, by regulations, to keep retained EU law, which will eventually be called assimilated law, but what is not at all clear is the process by which the Minister decides to engage in that process. Remember, if the Minister decides to sit on his or her hands, the default kicks in, which is that those all those provisions will go. In reality, we understand that Government Departments have a reasonable idea of the law in their area, and civil servants will need to go through that law statutory instrument by statutory instrument.

There is a real issue about capacity in Government Departments. Jacob Rees-Mogg himself said that his own Department for Business, Energy and Industrial Strategy had identified that it needed 400 civil servants to be working on the 300 or so pieces of legislation that had then been identified. Presumably, now they have discovered an extra 1,400 that number will increase. It is a huge amount of civil service time. The issue is even more acute in the Department for Environment, Food and Rural Affairs, which is the Department most affected by retained EU law. The question is, what is the internal process? Even if the Secretary of State in DEFRA decides that he or she wants to retain all the legislation because it is so important in different forms, what happens? Does it go to the Cabinet? Is there some sort of star chamber that looks at what is being proposed by the Departments? We know none of that, and we know none of the detail about whether there will be any consultation with external stakeholders, which is particularly important in the field of agriculture, where a large number of stakeholders are affected.

[Stella Creasy]

Professor Young, do you want to add anything?

Professor Young: We also have to think about how ministerial Departments will liaise with each other, because those different Departments might be looking at the same statutory instrument that might regulate bits that fall within the ambit of their respective Departments. Something will also be required in Government to keep track of that and to work out what the process should be.

With regard to parliamentary scrutiny, under the Bill the default position would be the negative resolution procedure. Obviously, there are some exceptions, for example, if a measure is used to modify primary legislation, to create a power to enact subordinate legislation or to create a criminal offence in certain circumstances. There is an ability to bump that up to the affirmative resolution procedure, but it will be very difficult for Parliament necessarily to keep track of all this, because so much is coming through. As I am sure you are all aware, it is very difficult for either of the Houses to actually pass a resolution to say that they disagree with a particular provision. Because of the demands on parliamentary time, it will be even more difficult when you have so many provisions coming through. Although there is a process for parliamentary oversight, it will be difficult in the timeframe to ensure that that oversight can be exercised in a manner that enables Parliament properly to scrutinise the measures as they come through.

[Stella Creasy]

Q We know that the last time the Commons overturned a negative statutory instrument was in 1979, and that the Lords has not done so since 2000.

Professor Young: Exactly.

[Stella Creasy]

In your opinion, then, the ability of parliamentarians, as opposed to Ministers, to influence what laws come next, if they are enacted at all, is limited. Can you suggest, or are there examples from your experience, how parliamentary scrutiny could be strengthened in this Bill?

Professor Young: Obviously we have elements that we saw under the European Union (Withdrawal) Act 2018, which allowed for aspects of enhanced scrutiny in certain circumstances as well as the ability to exercise the affirmative resolution procedures. There can be procedures that you can use whereby you put forward drafts of delegated legislation and allow parliamentarians to scrutinise them. Obviously it is difficult to set that up and to have the time to do so.

I think we need to think about two issues. First, we need to think about what is the appropriate procedure that enables parliamentarians to have adequate scrutiny and we also need to think about how we ensure that parliamentarians have sufficient time to perform that scrutiny. That is why you accurately quoted the information relating to the last time that either the House of Commons or the House of Lords voted against a particular resolution. Perhaps that shows the very great difficulty of actually achieving the time to get that on the parliamentary agenda.

[Stella Creasy]

Q To clarify that point, obviously all of that requires a Minister to bring forward a proposal for any parliamentary scrutiny.

Professor Young: Yes.

[Stella Creasy]

Q So in your reading of the legislation, to confirm our reading of it, if a Minister chooses not to bring forward a replacement to a piece of legislation, there is no parliamentary scrutiny of that decision in and of itself at all?

Professor Young: That’s it; absolutely. The only way perhaps to get around that would be to ensure that different departmental Select Committees could go away and look at the area of their law, and perhaps write reports to propose that there should be changes or provisions should be retained or revoked. Obviously, that would only be a report and not necessarily something that a Minister would have to follow in any way, shape or form.

Professor Barnard: If I may just put a footnote to your questions, of course if Parliament did decide to vote by resolution against a statutory instrument, that risks running out of time. Therefore the default kicks in and the sunset kicks in, so you lose a measure all together.

[The Chair]

Thank you. I call Alex Sobel.

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[The Chair]

Thank you. Colleagues, any further questions? Stella Creasy.

[Stella Creasy]

Q I just want to follow up on that. Clause 15(5) specifies that no replacement legislation can increase the burden on businesses. That looks very much like it is locking in lower standards as one can only secure either parity or something reduced. Is that a correct interpretation or could burden be rewritten to allow us to have the higher standards that we were promised if we left the European Union because we could set our own standards? Professor Young, you looked like the one who was nodding most vociferously.

Professor Young: The problem with that particular provision is that it is that element of not reducing burdens, which includes elements of administrative inconvenience, as well as obstacles to trade or innovations or obstacles to efficiency, productivity or profitability. The difficulty is what would or would not be increasing burdens in these circumstances. On the one hand, you are right; this is incentivising a reduction in these burdens and the potential follow-on we would see is a reduction in standards, particularly because it is looking at obstacles to trade or obstacles to efficiency, productivity and profitability. Another way of potentially reading it is to say that if I take a number of earlier burdens, turn them into one burden with a higher standard, that is also not increasing the burden. The difficulty is that the clause could be quite ambiguous, which could, in some senses, perhaps alleviate some of the risk that that might incentivise towards removing burdens. However, that is going to leave these particular measures open to potential legal challenges because people will argue “This has increased my burden in these circumstances.” That, in turn, could add to legal uncertainty.

[Stella Creasy]

Q That is where the lawyers make their millions. In your interpretation of burdens, the TCA talks about us not using changes in our regulatory processes to undercut each other. So is there a risk in that interpretation that we may affect the TCA itself? How do you feel that this legislation interacts with those other forms of legislation?

Professor Barnard: Yes, you are absolutely right. That is one of the reasons we proposed carving out, for example, environmental law and employment law, because those are the two areas that are subject to the so-called level playing field provisions in the trade and co-operation agreement. We are free to lower our standards—that is our choice—but if we do and, depending on the provision, that materially affects trade between the UK and the EU, the EU can start the dispute mechanism in the TCA. In respect of the so-called rebalancing dimension in the level playing field, the retaliation is brutal, quick and immediate.

[The Chair]

Final question to Justin Madders.

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[Peter Grant]

Q Does that not mean there is significantly less opportunity for parliamentary scrutiny if all that Parliament is allowed is: we do this or we do not do it? Does that not mean that, almost by definition, there is less opportunity for parliamentary scrutiny with secondary legislation than there would be with a Bill?

Martin Howe: Indeed. By its nature, there is much less opportunity than with a Bill, which you go through line by line, but all the legislation that is within the scope of the Bill to be potentially corrected, changed or left out by secondary legislation was introduced by secondary legislation. The primary legislation is not covered by the powers.

Tom Sharpe: Remember what we are discussing. I think it is very unlikely that there will be a wholesale slash and burn—to use the academic term that we heard earlier—of all EU retained legislation or assimilated legislation; a good deal of it will remain. I do not recognise the gloomy picture of businesspeople clawing their way to the bottom. I understand the theory, but in the course of a year I advise dozens of CEOs and chairmen, and not one has said: “We have a terrific opportunity to make extra money out of the consumer.”

What is missing here is public scrutiny and reputation, and we have to be balanced and less shrill about this: not everything will change; not everything will change at once; and some things will be changed—in particular under clause 15(3) where, respectfully, the real issues arise for parliamentary scrutiny. There, as you heard, some will be determined by affirmative resolution and others will go through the sifting procedure, which requires the Minister to come to Parliament to justify the choice of a negative procedure. You will have an opportunity to deal with that.

[Stella Creasy]

Q Martin, I was interested to hear you talk about how you were happy with the scrutiny mechanism in the Bill, because I note that in your evidence to the European Scrutiny Committee you argued for the need to have a delegated power to revise retained law and then suggested a commission to propose what should be done. That would be much more scrutiny than you are talking about now. What made you change your mind about the requirement for scrutiny that you previously advocated? I thought that the argument you made before was compelling.

Martin Howe: The argument I was putting forward was for a practical way to speed up the process. Frankly, it was a suggestion that I floated, a possible—

[Stella Creasy]

Q Are you disappointed that there is no scrutiny mechanism in the legislation, as you floated?

Martin Howe: What I was then proposing was not so much a scrutiny mechanism as a sort of motor to get the process going—

[Stella Creasy]

Q You made quite a strong argument, did you not, that there was a case for being able to look? You were advocating the superfluity of some of this legislation, but now the Bill contains none of that. Are you disappointed?

Martin Howe: No, because the main thing—the important thing—is to get the job done. What I am disappointed about is that I published a paper in July 2016, a month after the referendum, arguing that we should start a systematic process of review of European Union laws. I naively suggested that that would be with a view to revising what we needed to revise by the time of exit two and a half years later—

[Stella Creasy]

Q You felt it was naive to know what we were revising.

Martin Howe: No. I was naive to think that the process of revision would be started. I share Tom’s view that it would have been better had this process been started earlier, but it does need to be done.

[Stella Creasy]

Q You also said that there were limited respects—and gave two examples from your own practice—where you thought it was a good idea to retain EU law over pre-Brexit legislation. Do you accept that there might be other areas of law where it might be a good idea to retain some of those laws? In which case, would that not be helpful to us as parliamentarians? Your colleague dismissed the idea that the Bill will lead to slash and burn, but it has slash-and-burn powers within it. Surely it would be good practice—as you have argued—to know what it is that we are slashing and burning, and to have some process of exploring that as parliamentarians, if we are to be taking back control for this House?

Martin Howe: Well, it is a matter for Parliament as to what you press Ministers on with regards to their plans and intentions.

[Stella Creasy]

Q But we do not have powers to press them; we only have a negative resolution procedure. You made such a compelling case and argued in your previous evidence for several areas of law where you think we should retain. What has changed now?

Martin Howe: To be clear, I was not suggesting that they be retained in the long term. Those areas need revising and converting into coherent UK-based law. Elements of EU law should not be retained into the indefinite future.

[Stella Creasy]

Q You make a case for being able to change your mind yourself and having a process for changing your view on this legislation. Would it not be beneficial for this place to have powers to change the minds of Ministers? Like you, Ministers may make decisions that they come to regret.

Martin Howe: Sorry, I have not changed my mind on the relationship between retained EU treaty law and other EU law. The point is that that should be converted into domestic law, but our domestic legal system can cope with the question of precedence of one law over the other. I have never been in favour of indefinite retention.

[Stella Creasy]

Apologies, but you did propose—

[The Chair]

Stella, you have asked a lot of questions. We are moving on, and we will come back to you if there is time.

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[Stella Creasy]

Q I will just say that we are all free to take advice from competing lawyers, but I do not think we are free in this place to treat our witnesses with contempt, regardless of whether we agree or disagree with what they have written.

All the lawyers have talked this morning about the approach of working with businesses and whether a regulatory burden could be created, which clause 15(5) is designed to avoid. We do not have any business witnesses coming forward, but we have heard that businesses are talking about risk being a drag on growth. Can you give us some examples of where you have worked with businesses with legal uncertainty? You have all talked about uncertainty, but can you explain what it could do to your clients?

[The Chair]

I am afraid we have 40 seconds left.

Mark Fenhalls: In 10 seconds, an organisation such as TheCityUK, which represents a range of financial services, accountancy, law and consultancy firms, will tell you that all its international clients are saying, “We don’t know what the rules are going to be; therefore, we are troubled.” There are business organisations out there from which you may choose to try to take evidence, and they may be useful to the Committee.

Eleonor Duhs: That is exactly what I am hearing too. They want to invest, but you cannot invest if you do not know what the law is going to be.

George Peretz: This is not my area of practice, but colleagues of mine at the Bar have made that point. If you are involved in a large development project—

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

Stella Creasy Excerpts

Committee stage
Tuesday 8th November 2022 Public Bill Committees

[The Chair]

Do you want to come in on that question, Mr Reynolds?

Barney Reynolds: The provision is drafted in a very limiting and narrow way. It gives three examples of things that the court should have regard to when considering whether to depart from EU case law, and those three are pretty extreme instances. The first is that you are not banned. The second is a change in circumstances, but it is possible to make a departure under our system anyway if there is a change in circumstances. And the third is if we think that the retention of the EU case law decisions begin to affect adversely the development of our law. Again, that is pretty narrow. I do not think that the Bill as drafted is going to have a dramatic effect. In fact, I would even consider going further in the text by adding to those examples.

It seems to me that—this is true of the Bill as a whole—there is a tension here between lawyers wanting legal certainty, continuity and so on, which is all perfectly justifiable, and the fact that we are going through a constitutional change and need to effect that change. India has taken until only recently to get rid of its version of the Companies Act 1948, but that is a fellow common law country. We are moving from an alien legal system to our own, and our methods are different. The sooner we get on with it, the better.

That transition—this is just in the context of case law, and the same goes with the provisions—inevitably involves some element of change and some element of legal uncertainty. But I think our lawyers will coalesce with the judges around revised interpretations of provisions very quickly. I observe that, in terms of expanding the provision in clause 7(3), for instance, one of the key methods of interpretation that the EU adopts is its own version of the purposive method of interpretation, which of course—

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

It is hard to hear you. I wonder whether it is because you are between two microphones. I am sorry.

Barney Reynolds: One of the EU’s methods of interpretation is its version of the purposive method of interpretation, which we also have—we look at Hansard and so on when things are not entirely clear—but it is very limited in its use here. We basically go on the meanings of the words on the page, whereas in the EU, the purposive method, which they leap to pretty quickly in the courts, involves trying to work out the intentions of the legislators behind provisions. In the EU context, that includes ever closer union and various other purposes that are alien to our country and our system—as it now is, at the very least.

As I say, it seems to me that the sooner we get on with it, the better. Clause 7(3) is pretty anodyne. I would consider expanding it, and I would not get too troubled by the fact that moving from A to B—that is, where we are now to where we want to get to—potentially involves some element of legal uncertainty that would not otherwise arise. If we wanted perfect legal certainty, we would do nothing.

[Justin Madders]

Q As an aside, when I quoted Hansard when I was in practice, I usually felt that that was because I did not have much else to go on. I go back to what Sir Richard said about the cost to parties of litigating these references. A lot of the EU regulations are consumer or employment rights-based. Unless you are a member of a trade union or have legal expenses insurance, you are not likely to have the resources to litigate cases upwards. Will that create an issue regarding access to justice if some of these issues get taken up?

Sir Richard Aikens: It is difficult to say. I cannot give you express examples, of course, and I am concerned only with the process, rather than any particular provisions that might be tested. Here, after all, we are looking at the issue of what the case law says, and how the case law has interpreted any particular EU regulation, directive and so on. It may be rather more limited, but as soon as you get into litigation, there are costs. We cannot get away from that.

--- Later in debate ---

[The Chair]

I call Stella Creasy.

[Stella Creasy]

Q Thank you, Sir Gary. It is a pleasure to serve under your chairmanship this afternoon as much as it was this morning. This is a very interesting discussion about how we make law. You are talking about how case law then informs outcomes for our constituents. I am struck by the picture that you paint of the powers that might then fall to judges by default, without clear ministerial or parliamentary direction.

Perhaps Abu Dhabi, as part of an authoritarian state, is not the best example for us democrats of how we might wish to proceed. I wonder if you could talk a little bit more about some of the barriers created in the Bill for judges because of the lack of parliamentary scrutiny, and if there are other examples of legislation that you have seen that may offer us a way forward. Perhaps we start with Jack, as you look most interested by the question, then go across the panel.

Jack Williams: It is extraordinarily difficult to think of ways that the Bill tells judges exactly how and how not to do things. Ironically, one of the ways that the Brexit legislation is going is to codify almost into a civil system exactly how judges should interpret certain matters. The roles of the court are only in clause 7 provisions, which say in their own terms that they may have regard to certain things, but do not give a definitive list. Those that are listed are nudging towards departure, as I said earlier.

I do not think there is anything in the Bill that gives judges the power to preserve or save certain rights. What I would say is that it puts them in a very tricky political position because they will be asked to depart from case law and make all sorts of policy decisions. That is slightly ironic when a lot of the political discussions over the past few years have been to save judges from stepping into the political arena.

I very much agree with Sir Richard that the outcome of the Bill is to generate litigation, because the vast majority of the laws that come out of it will be secondary laws, which are susceptible to challenge. One will be arguing, for example in relation to clause 15, whether the similar objectives were being met by regulations that replaced the earlier retained EU law, and whether that has been met by the new rules. That is an incredibly difficult task, and one that could end up in lots of litigation. I think that we will end up with a lot more cases on those sorts of issues.

Sir Richard Aikens: I agree with what Jack said. As I read clause 7(7), the factors that the court must have regard to are not exclusive. In other words, they can have regard to other factors as well, which Parliament has not identified and has left to the judges to decide whether they might be relevant. So I would like to make two points. First, this is not exclusive, and it may well be that, in future cases, appeal courts will introduce other factors, maybe on a case-by-case basis, which are only relevant to that particular case, but there may be a development of more general factors, which, once you get that at a Court of Appeal or above level, will then tend to be repeated thereafter.

The second point, as has been made by both my colleagues already, is that EU case law necessarily involves a consideration of the way that the Court of Justice of the European Union looks at regulations and its previous case law. In my view, the CJEU is a much more active court in terms of both interpretation of EU instruments, to use the phrase that is in the Bill, and its previous case law. It tends to develop principles derived from both instruments and case law in a rather more positive way than the UK courts do. I can only speak for the English courts, of course.

The problem, therefore, that the judges are going to have to deal with is: do they carry on with that approach, as in the case law of the EU, or do they somehow retreat from that? Although they have got these factors here that are laid out, they do not really deal with that aspect at all. That, again, puts the judges in a difficult position, because they have not got the guidance from Parliament. They have got this body of law—the acquis of the retained EU case law—but do not really know quite how to push it on, or not push it on. I think it will make life quite difficult for the judges.

Jack Williams: As a footnote to that, on the Court of Appeal for the reference procedure, the Court will not even have decided facts, so it is quite ironic that what is being imported with the national reference procedure is like the preliminary reference procedure under EU law at the moment where you ask a court a legal question—an abstract legal question here—on whether to depart from retained case law. And yet, very unlike common law reasoning, one would not actually have a judgment from below with a factual position working out how the case law is applying to a certain set of facts, so it is even harder for the judges, because you are asking them a pure abstract question: should we depart as a matter of law from that EU case law without understanding the full factual matrix? That is very unlike common law reasoning where you incrementally grow and apply to the facts.

[The Chair]

Order. I have three colleagues bursting to get in and we have only about seven minutes left, so short answers to short questions, please.

Barney Reynolds: In short, I am not suggesting we follow another country. The court interpretation provision is unprecedented. Abu Dhabi created something from scratch. It was not a transition from what they have got, which was based on the French-Egyptian model, to the common law model. We should do our own thing that works for the UK, and using our methods. I agree with that.

I agree with my colleagues on the uncertainties that can potentially arise. As a lawyer, I think we need to be very careful about those. I am concerned with them. My solution is to expand clause 7 and the list of things that should be borne in mind in order to execute an adroit shift to our common law method in a way that does not involve interpretation too much. I do not think you can remove the necessity for judges to exercise interpretative powers to execute the shift. Ultimately, this shift involves trusting the judiciary, which I do. I am fine doing that, and I do not think that there is a shortcut or a way in which we can box people in so they cannot use any discretion and nevertheless get to the same place. We have to trust people to do it.

--- Later in debate ---

[Ms Ghani]

Q I feel that this is the right time to correct the record, because I am sure that Dr Fox would not want to say anything inaccurate on the record. Earlier, you referenced a National Archives story in the press, Dr Fox. We do not often talk about leaks, but I think you said either that it was “uncovered” or that it was “discovered”. For the record and for the Opposition’s understanding, the Government commissioned the National Archives to investigate whether anything else needed to be explored, and the number of the laws still in force has not been verified. I do not think it is appropriate to continue to use misleading language about a story that has not yet been verified, or to leave people in doubt about where the work came from.

Dr Fox and Sir Jonathan, you are not comfortable with what the Bill proposes, but I get the feeling that you are probably just not comfortable that we are trying stop EU law continuing to sit on the UK statute books for ever without us having any power to amend it. Is that the case, or do you see a time in the future when it would be appropriate to move EU laws off the UK statute books? I will come to you first, Dr Fox.

Dr Fox: I reject that. I am up for change and quite embrace it. This was the purpose of Brexit, was it not? We should therefore get on with it. I do not object to your objectives; I object to the particular nature of the process and procedure by which you are proposing to achieve them, which is unduly risky.

If, for example, you do not find a regulation or a piece of retained EU law and so do not deal with it by next December, it will fall away. You cannot know the implications of that if you do not know about, and have not dealt with, the existence of the regulation—that is my concern. As I set out in our written evidence, I think you could achieve your objectives, and indeed my objectives, in a different way.

Sir Jonathan Jones: I agree with that. Plainly, I have no objection to Parliament changing any law it wants, be it former EU law or any other law. I am sure that the EU law that we inherited when we left the EU is a mixed bag, and that some of it is ripe for review and change.

Like Dr Fox, the difficulty I have with the Bill is twofold. First, it creates a huge amount of uncertainty as to what the law will actually be by the end of 2023 or thereafter, because there are no policy parameters on what might change, what might stay or what might fall away. That is quite aside from the risk you have heard about—that some law might fall away simply by accident, because it has been missed, which creates a huge amount of uncertainty for users of the law.

The second issue that I have difficulty with is the lack of scrutiny—an issue that I know you keep coming back to and that Dr Fox touched on—by Parliament itself of the process. In the Bill, Parliament is not being invited to consider particular policy areas or particular changes to the law; it is simply signing off on a principle and a process, and I would say that the principle and process carry with them all that legal risk as to what the outcome will be. Those are the difficulties that I have. It is not a difficulty with Parliament being able to change any law it wants, including former EU law, whenever it wants to; it is the process being followed that I have difficulty with.

[Stella Creasy]

Q Another question we could ask is whether it is reasonable for Parliament to ensure that Ministers know the consequences of their legislation. What the National Archives work shows is that that is possibly not the case with the Bill.

I say that as someone who this week received something I had never, ever received before—I wonder, Dr Fox, whether you can advise me if this is common: a ministerial correction to an answer to a written question. The written question was to the Department for Environment, Food and Rural Affairs about the application of the legislation to the Avian Influenza and Influenza of Avian Origin in Mammals (England) (No 2) Order 2006. Originally, Ministers told me that the order was not made under section 2 of the European Communities Act 1972 and therefore did not fall within the scope of clause 1 of the Bill, but they issued me with a ministerial correction to admit that it did. Have there been other instances of Ministers not knowing the consequences of their legislation? What impact do you think that has on our ability to scrutinise legislation as parliamentarians?

Dr Fox: I cannot give you a number, but I am sure that there have been corrections of that kind. We also see that in respect of statutory instruments, where instruments have to be withdrawn and re-laid because of errors.

Clearly, one of our problems is that the complexity of law now, and the layering of regulations on regulations, coupled with inadequate scrutiny procedures, makes the whole scrutiny process incredibly difficult. Another problem is that the breadth of the powers in Bills which enable Ministers to take action, but do not define on the face of the Bill the limits and scope of that action, are very broadly drawn. That makes scrutiny incredibly difficult.

We also have amendment of legislation going through both Houses, and that adds layers of complexity. Particularly in the House of Lords, Members seek to introduce scrutiny constraints of the kind we have talked about in respect of the European Union (Withdrawal) Act. That is just additional complexity, which then hits civil servants trying to work out which powers they should be laying instruments under, and which scrutiny measures apply. For people who have to interpret and implement the law, it becomes ever more difficult.

I hope that one aspect of the review process would be to simplify some of those areas, with things like consolidation and so on, to help the process. However, given the scope and scale, I do not think that can be done by December of next year.

[Stella Creasy]

Q Sir Jonathan, a similar question to you: what impact does that have on the ability of Departments to operate and, indeed, on Parliament’s ability to scrutinise, if it is not clear what legislation is effective? For example, the dashboard does not currently contain the Conservation of Habitats and Species Regulations 2017, but that is a piece of European retained law that will have an impact on environmental concerns. In your experience, what is the impact on civil servants being able to advise Ministers and to provide information to Parliament? I note that Ministers told me that the dashboard is an authoritative but not comprehensive list of laws to be affected. What impact might those absences and omissions have on the ability of civil servants to do their job for us?

Sir Jonathan Jones: I am not in the civil service, as you know; I am on the other side, advising clients about what the effect of the Bill will be on their businesses and so on. This was always going to be a very complicated exercise, including for the civil service. We are leaving one legal order and, in one sense, we are out of it—we are free—but the legal constitutional consequences of that were always going to be very complicated, because we had this huge body of law that over decades had been integrated into UK law. We were not keeping a running tally throughout that time of the laws that we might one day want to change, because they had come from a particular source. They were enmeshed it all sorts of different ways with UK law.

As soon as we left, we had to begin the process set out in the European Union (Withdrawal) Act 2018, which was about identifying what retained EU law needed to be changed in order for it to work operationally and technically. That was the process that was done with the 2018 Act, and it involved, as I think you have heard, many hundreds of sets of regulations to cure deficiencies in the language of that legislation. That was complicated enough, and it is possible that things were missed. There are certainly examples of some changes having to be made multiple times because they were not got right the first time.

That was complicated enough but at least, if something was missed, the law did not fall away altogether; it could be corrected later. What was being done then was an essentially technical exercise to keep the pre-existing law and to make it work as far as possible, in a way that provided continuity and certainty for users. What we are talking about now is an exercise of a completely different order. This is about changing policy, potentially getting rid of some laws and, in some cases, deciding what replaces them.

This is an immensely more complicated exercise even than the one that has already been done, and the civil service will not have started with a pre-existing list, however authoritative they are trying to make it. There is therefore a risk that as Departments perform an audit, or as the National Archives help with that process, additional laws will be found. There must be a risk that some will be missed altogether. If that is so, again as you have heard, the consequence of the Bill is that the law will fall away altogether on the sunset date, and you will not have the option of making a correction. Ministers, if they wanted to, would have to come back to Parliament with a Bill to replace or change the law. That is the complexity of the exercise.

[Mr Fysh]

Q I am very much in favour of injecting urgency into the process of transition from one order to the other, as you have described, and I am well aware of the complexity involved in that, which is one of the reasons why I have been making the argument for taskforces that involve more than just civil servants and Ministers in the process. I encourage Ministers to get very good advice from outside—from practitioners, and so on.

I have two questions. First, how else could you inject such urgency to get this done quickly, other than through what has been proposed? Secondly, we have heard a lot about the permanence of the falling away—this is your contention—of the laws because of the sunset, but is it not the case that in various clauses, such as clause 2(1), and clauses 12 and 13, there are powers for a restatement or reproduction of different things up until 2026 should it become necessary? Is that not an adequate safeguard mechanism should there turn out to be something that the taskforce approach, which should be very competent, has missed?

Dr Fox: On the latter point, yes—there is provision to extend the sunset through, as you say, to 2026, but that applies to the piece of retained EU law that you know about and are saving and assimilating, and that you will then have the option to amend later. The concern is that if you have not identified and saved it, it could fall away and you could then have that problem. There is also the prospect that you end up with a patchwork quilt of sunset dates, because it could be before 2026.

There are issues about at what point in that process, prior to December 2023, the Government would identify what they intend to do, either with the individual pieces of retained EU law or sections of retained EU law, which will introduce uncertainty. What we have proposed is to do that in a slightly different way: that is, take away the cliff edge where everything falls away—unless you choose to save it—and use Parliament as an ally in that process.

I completely understand the concern about internal inertia, particularly in the final two years of a Parliament and in these current socioeconomic conditions, where there are lots of capacity pressures. However, it seems to me that you could use Parliament as an ally by, instead of having cliff edge dates where legislation and law falls away, having dates in the process, possibly linked to your taskforces, where there are statutory reporting requirements to Parliament by Government Ministers and Departments and where Select Committees could be engaged in that process by scrutinising those reports.

You could set out what you want the Government to report on—what are their plans, what is their implementation timetable, what progress are they making, as with the EU withdrawal Act process for the statutory instrument programme; you could engage the National Audit Office in monitoring implementation of that; and you could have reporting. One of the things that wakes up permanent secretaries and others in the civil service is the possibility of having to appear before a departmental Select Committee and report on a lack of progress, or the fact that their plans are failing. Your model of taskforces to ensure consultation, coupled with statutory reporting requirements, through to a deadline of 2026 or 2028—whatever you choose—would be a better approach, because you could still achieve what you want to achieve but reduce the risk of missing something.

--- Later in debate ---

[The Chair]

I call Stella Creasy.

[Stella Creasy]

Q I thought the Minister helpfully set out a whole range of employment protections that are rooted in retained EU law when it comes to women’s rights. Removing the foundation of those laws that have been applied in UK law creates the legal uncertainty that you alluded to. The answer is therefore a commitment, clarity and a confirmation to all those who depend on these laws that, as the Government say, they are going to be retained. But exactly which ones are going to be retained? What is the point of this legislation if we are just going to delete everything and start again? Have you, the organisations that work on employment rights, had any confirmation or commitment about these specific pieces of legislation?

Tim Sharp: No, we have not had those conversations. We are still in the dark. We are really concerned about the array of rights that have been set out so far today. There are lots of health and safety laws as well and things like protection for pregnant workers—there are lots of protections—but, so far, we do not know. It seems we are taking a shortcut to an unknown destination.

[Stella Creasy]

Q Just so we are clear, the reason why that bank holiday entitlement exists in UK law is because EU legislation required it, and we have written proposals for bank holidays into law on the basis of EU legislation. If we remove that basis and that law is not retained, could an employer challenge the right of an employee in the next year to take a bank holiday?

Shantha David: Just to clarify, the 20 days are derived from Europe. The additional eight days were because, historically, those eight days were incorporated into the 20 days. To ensure that people had the additional eight days of bank holiday, they were allowed for under UK law, but it is contained within the same piece of legislation, which is where the confusion might arise.

[Stella Creasy]

Q In terms of my specific question, it seems we would be going down to 12 days. Could an employer challenge the right of an employee to take a bank holiday if the Government do not rewrite this piece of legislation?

Shantha David: I think it is worse than that, actually; we will not have the 20 days at all. We will have the eight days of bank holiday only if they are taken out of the current regulations, presumably, and put somewhere else. If the regulations go altogether, regulation 13A, which talks about the bank holidays, will go with them.

[Mr Fysh]

Q I am quite sure that the Government and their Ministers will be keen to ensure that the rights that people have enjoyed thus far are preserved. I cannot personally imagine a scenario in which they would not be careful about those things. I point out again that under clause 13(8), should anything inadvertently go that was not meant to go or have effects that were really bad, there is a power that could be used by a future Government to reproduce anything that was retained EU law in the European Union (Withdrawal) Act 2018. I just wanted to share my strong belief that that is not where the Government would go. I cannot speak for them, because I am not a member of the Government, but I would be amazed if there was anything different.

Shantha David: It would be helpful, though, if that were in writing. I am grateful for your words, but as a lawyer it would be helpful to have a full list of what is included. If that piece of legislation, say, is sunsetted and introduced at a later date, there will be workers who do not have access to those laws. That is a breach of access to justice as well.

--- Later in debate ---

[The Chair]

I feel an amendment in Committee coming on.

[Stella Creasy]

Q I appreciate that this is something that people feel strongly about, because they are concerned for their constituents. Can the representative of the trade unions tell us what it was like when the Beecroft report came out? It talked about some of these issues, so if there is a concern to get not just a promise but a commitment in writing to protect these rights, would such an amendment be welcome? Would that be enough, given that Beecroft shows a direction of travel that this Government have previously considered?

[The Chair]

Let us not stray too widely into Beecroft, because we are considering this Bill, but an answer would be helpful if it is relevant to this.

[Stella Creasy]

But it is relevant as an element of employment rights.

Shantha David: The difficulty we have here is the speed at which this thing is happening. It is not about whether you want EU-derived legislation to exist; it is about being able to have a considered view on the employment provisions that exist for workers, and to ensure that employees and employers are not mired in litigation forever and a day. The costs of this are incredible, and I think that is not completely understood. The costs of litigation are profound. If there are to be clear exceptions, and if it is very obvious that certain employment legislation will survive this cull, perhaps that should be specified. That would be very helpful.

[The Chair]

Marcus Fysh has the final question.

--- Later in debate ---

[The Chair]

That is clear, thank you. I will bring Ruth in on this, and then we will go to Stella Creasy. Ruth, you wanted to come in.

Ruth Chambers: Thank you, Chair. I have two points of clarification to make. First, I confirm that Greener UK as a coalition also wishes the Bill to be paused and withdrawn. That is not inconsistent with our position that we also believe that the body of retained EU law could be improved and that a process could be devised to do so. I feel that there was a little conflation of those two points but, to be absolutely clear, they are not the same thing.

Secondly, Minister, may I come back to your point about environmental targets, the 2030 species recovery target and the relationship with REUL? The relationship is a rather straightforward one: the opportunity costs that will inevitably come with the Department having to review, assimilate and reform such a large body of law. In fact, the Government have already missed their first legal milestone on environmental targets, on 31 October. That is just one example of how this can have a serious impact—because of the sheer deliverability challenges.

[Stella Creasy]

Q David, may I turn to you? Earlier in this session, you will have heard me say that I had a ministerial correction for the first time ever as a parliamentarian—old dogs and new tricks, all the time—[Interruption.]

[The Chair]

Order. We will come back to your point.

--- Later in debate ---

[The Chair]

We are all reunited, more or less. Stella has the floor. We will let you know in a moment what the ending time for this witness panel will be; we are still trying to work it out.

[Stella Creasy]

Q Thank you, Chair. We were not actually discussing shrimp when we were rudely interrupted by the Division bell; we were just about to talk about avian flu. David, could you update us? Originally, Ministers said that the requirements around avian flu control—something I feel strongly about, because we have it in my local community—were not within the scope of this legislation, but they have issued a ministerial correction to say that it is. That seems a good example of legal uncertainty. What is the practical impact of having legal uncertainty about the requirements when it comes to environmental protections? Could you give us examples of where there has been legal uncertainty?

David Bowles: There are many examples. I mentioned at the beginning of the session that there are 44 different animal welfare laws, but that is my assessment; if you look at the dashboard that the Government have set up, there are 16 that are not on the dashboard but are on my list. That gives you an indication of the uncertainty, although to be fair, the dashboard is one of the most opaque measures of what the Government are doing. It does not seem to be in alphabetical or chronological order, and going through the 570 laws under the Department for Environment, Food and Rural Affairs tab is quite onerous. I think it is uncertain about where it is.

The Bill applies not just to the UK, but to Wales, and probably 31 of 44 laws in my area of animal welfare are devolved. The Senedd and the Scottish Government, who have responsibility for them, are uncertain as well, because they are taking their lead from DEFRA. Yesterday the Welsh Government said they were not minded to work out which laws were devolved, which were not, and which came under retained law. They were going to leave that up to the UK Government. That just fuels the uncertainty.

[Stella Creasy]

Q On the point about uncertainty and the approach we should take, you all seem to be making the case for a sunrise clause rather than a sunset clause, so that we start with everything and work backwards. You have found 16 laws that are definitely not on the dashboard. I feel inferior now; I found only one: the Conservation of Habitats and Species Regulations 2017. However, the Conservation of Habitats and Species and Planning (Various Amendments) (England and Wales) Regulations 2018 is on the dashboard. From the point of view of layperson who is not legally qualified, how much variation is there between those orders? What sort of omissions could we be talking about? What uncertainty might be created when there are gaps because laws are not on the dashboard? “Enmeshed” was the word that Dr Benwell used?

David Bowles: It could create huge uncertainty. Two things need to be worked out. First, what does retained EU law mean? As we saw today from the article in the newspaper, there seem to be more such laws coming forward. Secondly, which are devolved and which are not devolved? There could be a huge discussion about that. The Bill will have huge implications. There is not just the devolution issue, but the common frameworks issue, which is how the three Governments work out how to move forward on specific pieces of legislation. There is also the matter of the United Kingdom Internal Markets Act 2020, which is the legislation that allows free trade within Great Britain. There are huge implications for all those issues.

[Stella Creasy]

Q Finally, a big question to all four of you. We were all promised that on leaving the European Union we could have higher standards, particularly in environmental protections. I think that people across the House would want them; we are all very keen on defending them. Clause 15(5) talks about burdens. What is your interpretation of where a burden might impact our ability to provide environmental protection? I am thinking particularly of town and planning orders; environmental requirements are part of the planning process. When you read about that concept of burdens, do you have concerns about maintaining standards, let alone increasing them? what impact could that word have on laws that are not immediately considered to be environmental, but do have an environmental impact? We will start with you, Ruth, to give David a break.

Ruth Chambers: That is a really important question. Clause 15 and how it defines “burden” is one of our biggest concerns about the Bill. If you look at the passage that defines “burden”, it is everything from an administrative inconvenience to something that causes issues to do with profitability. What does it actually mean? It also does not seem to sit readily with the answer that DEFRA Ministers have given, which is that their intention, in reviewing that body of rules, is to improve environmental outcomes. How does that sit with reducing regulatory burdens?

Not many weeks ago, some Government Ministers were suggesting that environmental protections were regulatory burdens and should be removed. That is not the case, we believe, with the current Government and current set of Ministers, but it shows that things can move quite quickly. That is why the Bill needs to be watertight on these issues.

[The Chair]

Shall we move down the table? Dr Benwell.

Dr Benwell: This is a really problematic part of the Bill because, as has been said, “burden” is defined in purely financial and business terms. It imagines that the small cost that business might incur is not worth it for the environmental benefits that come out the other end. Of course even critical laws, such as the habitats regulations, can be improved. For example, you could define projects and plans better, so that you could take intensive land management in as well. Those are conversations we are actively having with DEFRA, and we want to find ways to do that, but those proposals simply could not be given effect through the Bill because of clause 15, which sort of sets out a deregulatory agenda. Altogether you see a lock-in of deregulation where you might otherwise find improvements. We want to improve the law, but the Bill does not allow us to do that.

David Bowles: I concur with the two previous witnesses. The Government came in with a manifesto commitment to improve animal welfare, and indeed they are looking, hopefully, to get rid of cages for laying hens and pigs, but because we are so uncertain about the status of the conventional ban on battery hens, which was agreed in 1999 and finally came into force in 2012, we do not know if that ban is to be scrapped. The Government are almost looking two ways on the issue, and that worries us.

We need reassurance that there is a transparent process for filtering the 570 DEFRA Bills, and a time period in which to do that. I concur with the other witnesses: we are not against improving legislation; of course we want to do that. We are not saying that the legislation is perfect, but there are a number of caveats, including the time period, the filtering process and the impact on devolution. All of that is so unclear that we need reassurance.

Phoebe Clay: You put your finger on it when you mentioned the word “burden”, Stella. That is a really problematic word from our perspective. If we were to frame the discussion around environmental, social and human protections, the Bill would probably be less problematic. We know that people see the rules as protections, and conceive of them as things that keep them safe, particularly at a time when people are feeling incredibly uncertain and under-protected. Shifting away from the idea that regulations are necessarily burdensome would be a really important step forward.

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[The Chair]

Thank you very much. We have one minute left. I am keen to bring in Stella Creasy for a quick question, and then Angus for a quick answer, please.

[Stella Creasy]

Q Angus, I understand why you suggest that the challenge is that we need a practical response because our constituents will cross borders, but so will Dikerogammarus villosus, which is a killer shrimp. Although that species has not been found in the River Tweed, is it not better—rather than not involving devolved areas—to look at how we could redo the whole process so that constituents and shrimp crossing borders do not come a cropper?

Angus Robertson: I am all in favour of good intergovernmental relations. I have been doing this job since last year, and I have gone into conversations in good faith about any and every potential challenge. If that is one of them, I am happy to do so again.

The wider point is that we are supposed to have a range of measures that we can use to make devolution work, including the Sewel convention. We have subsequently agreed ways in which Governments in the UK should work together to push through potential challenges, and common frameworks and the like are supposed to deal with some of these issues. I wish the UK Government would live up to their promises to work with the devolved Administrations across the UK, as I am keen to do. They have an opportunity to do so by respecting the Sewel convention in this particular piece of legislation.

[The Chair]

Thank you so much. Your evidence has been very clear, but sadly we have run out of time. It is very nice to see you again.

Angus Robertson: Thanks for having me.

Examination of Witnesses

Michael Clancy OBE, Charles Whitmore and Dr Viviane Gravey gave evidence.

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

Stella Creasy Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

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

It is a pleasure to serve under your chairmanship this morning, Sir George, as indeed I believe it will be throughout the Bill Committee. I am sure that we will have a wonderful and detailed discussion. Government Members are laughing about that idea. Maybe that is the irony about all of this, because, when we were told that Brexit should happen, it was about “taking back control” for this place. Well, let us give some control to this place in the proper scrutiny of this legislation. I support the comments of my Front Bench colleague, my hon. Friend the Member for Ellesmere Port and Neston, and of the hon. Members from further north than me—the hon. Members for Glenrothes and for Argyll and Bute—on these amendments.

Amendments 26 and 28 are critical. Let us start this debate by being absolutely clear; this Bill has nothing to do with Brexit. Brexit has happened. It may be continuing to cause many problems, but it has actually happened. However, the Bill is not what Brexit was about, because the Bill is a process and it has everything to do with a knee-jerk obsession with the idea that something with the word “Europe” in must be bad. That obsession will cause catastrophic devastation for our constituents, because the process that the Bill brings forward is incredibly destructive.

As my hon. Friend the Member for Ellesmere Port and Neston said, it is a deadline in search of a headline. That seems a rather poetic attempt to say something simpler, which is that nobody quite understands why the Government are doing it in this way. After all, when we look at the amendments that have been tabled, and at the evidence that has been given, not a single piece of evidence has been provided in support of this approach. That is a startling thing to recognise. Nobody knows why these particular laws are up for abolition, all in one go, apart from the fact that they contain “Europe” at some point in their titles.

That knee-jerk reaction is incredibly dangerous because it means that we will delete things that we did not even know were on the statute book, as things stand. Yesterday, I had the pleasure of serving in a Delegated Legislation Committee—I suspect that we will have thousands more if this legislation goes through—where the Ministers were not aware of the foundations of the laws that they were trying to amend. They were technical amendments, they said, to do with pollutants, rooted in European legislation.

Now, that is not a case for staying in the European Union; as I said, we have left. I would take up the challenge of the right hon. Member for Clwyd West, who talked about other laws we would want to change. Of course, there are laws we want to change in this place; nobody ever says that the statute book is the preserve of being correct, apart from Governments who are frightened of scrutiny.

The amendments have a simple, pragmatic basis: what this Government are trying to do is too big to do in one year. It is a very simple proposition, and we want to hold the Government accountable for the consequences of trying to delete everything all at once. One might look at the amendment paper and think that there are 50 ways to leave the European Union using this legislation, given all the different amendments that have been tabled. I prefer to think of Warren G, and his debate around “Regulate”, because this Bill is ultimately about the regulations that we have in this country—everyday rules that make such a massive difference to the people of this country.

I know we will come on to those, Sir George, so I will not test your patience by listing them, but that is why this sunset clause matters. When the Government are putting up for grabs people’s rights not just to a paid holiday or maternity rights, but to compensation, to not have cancer-causing chemicals in their cosmetics, to be able to watch the Olympics free of charge, or around compensation if they are artists—thousands and thousands of regulations that have been part of the social fabric of this country for generations—it is right to ask whether deleting all of them in one year, with no guarantee about what will come next, is the right way to approach the matter.

The debate we had yesterday in a Delegated Legislation Committee on the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2022 was a classic example of what the folly is. Not only was it not clear to the Minister which amendments would be deleted by the legislation we are debating, which then underpinned the Statutory Instrument that the Minster was presenting, but she could not clarify what would come next. She made a strong case about the importance of protecting us and protecting against the ways in which pollutants might be used within the chemical industry, but if we do not amend the legislation, that case will fall in a year’s time—by the sheer fact that the very legislation which underpinned the proposals, the technical amendments the Minister was trying to make, will also fall, because the Government are deleting absolutely everything.

During the passage of the Bill, let no one say that the concerns being raised are about whether Brexit should have happened. Brexit is done. This is about the folly of hitting “delete”, “control” and “alt” at the same time—then hoping we can remember what was taken out and that in a single year everything can be replaced. Six hundred statutory instruments were introduced during the Brexit process and anyone who was here at the time—I know that not everyone was—will remember the hours we spent in Committee Rooms. Here we have five times the number in a single year.

Some may suggest that Members of Parliament are lazy, that they do not do very much. Some even suggest that Ministers—current or former—might have time to go into a jungle. I know, however, that no one thinks it really feasible that we will have 167 days of non-stop Delegated Legislation Committees, yet that is exactly what this legislation will require if we stick to this particular sunset clause for everything. At the moment, given the way in which the Bill is drafted, it does indeed cover everything—and that is without beginning the process of what we want to keep and what we want to get rid of. The point of all this is that there are things the Government want to change. Those of us who are democrats believe that the Government ought to set out what regulations they intend to remove, because that is what taking back control really meant. Again, if we have only one year in which people are to understand quite how the Government wish to change their rights to paid holiday, it seems not unreasonable to expect the Minister to give us some idea of the direction of travel before we hit delete—but, again, we have nothing.

The amendment is simply about setting a calmer course of action. I think we owe that to all our constituents. I do not think there is a single member of the Committee who in recent weeks and months has not dealt with constituents who are terrified about the status quo, terrified about what is happening now and worried whether they will get through Christmas. It is not unreasonable to say that our primary focus is stabilising the economy and we will not do anything that would undermine that. Whether someone is a passionate believer that Brexit still brings opportunities—and I say good luck to them, and also, “We all know of a good therapist”—or whether they were worried at the time that this was a high risk to take, recognition that the pace of change is best tackled in a measured and orderly fashion is something I am sure we can all agree on. The amendment is about the pace of change, not the change itself. It is about recognising that in an economy that is struggling, we cannot rip up every single regulation, not provide any clarity about what comes next in under a year, then expect Parliament to find the time to write all those regulations—or, indeed, to find all the regulations; we will come on to the question of whether we know about everything that is going to be deleted. Yesterday, Ministers from DEFRA certainly did not; and the Whips even suggested that it was a problem for the Department for Business, Energy and Industrial Strategy rather than for DEFRA. I am sure it was news to the Minister in that Committee that she is now responsible for persistent organic pollutants on top of everything else.

I urge Government Members not to see this as about stopping Brexit, because Brexit has happened; but, rather, to see this as the best course of action to show that Brexit could work for this country. That means taking a simple proposal about how best to look at the legislation and its rubric. If we are going to find 4,000 hours of parliamentary scrutiny for delegated legislation, what are Ministers not going to be able to do? If we are going to find the civil servants to be able to deal with all this legislation, what else are they not going to be able to do? Are we confident that the next year will not bring further crises that will require our time, effort and energy? Are we confident that what is happening in Europe right now will not lead to further challenges that we would be better off putting our time, effort and energy towards?

I know that Government Members want to believe that the amendments are about opposing Brexit, but they are about opposing chaos. Government Members will have to explain to people how we will find parliamentary time, let alone find all the regulations. I note that the Minister said she would tell us what other regulations would be affected after we had passed the legislation, which does not inspire massive confidence. If not today, I hope that Government Members will reflect, and perhaps use the opportunity of those press reports to urge a calmer course of action. I think that all our constituents would thank us for it at a later date.

[Mr Marcus Fysh (Yeovil) (Con)]

On a point of order, Sir George. The hon. Member for Walthamstow mentioned at the beginning of her speech that Government Members were laughing. That was not true. I wonder whether we could ask the Hansard Reporters to strike that from the record.

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[The Chair]

I am grateful to the hon. Lady, but I think I have already dealt with the point.

[Stella Creasy]

Further to that point of order, Sir George. I merely rise to clarify that if somebody had a twinkle in their eye, I would consider that to be laughing. It might not have been heard by everyone, but I did not mean to suggest that anybody does not think that this is a serious matter; it was merely a wry reflection on the challenge ahead of us. I hope that the rest of the Committee’s proceedings will follow in good spirit and humour accordingly.

[The Chair]

I think the hon. Lady is trying to restore the calm that she referred to in her speech. I am sure that she has done so.

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[Ms Ghani]

I am not sure exactly what the hon. Member wants to speak about with regard to the Bill. I am here to perform my role and deliver this piece of legislation. We have a Secretary of State and we know that the Prime Minister is delivering on this piece of legislation as well. I am not sure what further contact the hon. Member needs.

Alongside amendment 26, amendment 28 would have very little impact, as clause 2 would still specify that 2026 was the maximum date that an extension could be set for. If we combined these amendments with amendment 29 or amendment 32, which we will debate later, that would result in the extension mechanism being able to extend specific provisions or descriptions of retained EU law beyond 31 December 2026. The extension power’s very nature is to mitigate any risks posed by the current sunset date. I recognise that, without an extension, there is a risk that Departments would not have sufficient time to perform the legislative and administrative procedures required for retained EU legislation in certain complex areas.

[Stella Creasy]

If we cannot play a game of “Guess Who?” as to who will then be responsible for the implementation of this legislation if it is passed, let me ask this. The Minister wrote to us to say that the Government were still scoping out which laws would be covered by it, so how can she be confident that everything is in place to cover the full gamut of what would be covered by this legislation if she cannot at this point tell us how many laws will be covered? It is a reasonable question to ask, is it not? How much work is there to be done? If the Minister cannot tell us now or at least confirm how many laws are covered, it is not unreasonable to worry that equally she cannot confirm that the Government have put in place the people and the processes to do it all within a year.

[Ms Ghani]

The dashboard is there to identify the pieces of legislation that need to be uncovered, but of course we will constantly look, constantly dig and constantly ask Departments to see what else is in place. I do not think it is unreasonable to ask Departments to explore what pieces of legislation are in place, which ones are valid, which ones have already come to the end of their lifespan and what more we need to do. I think it is really healthy to ask Departments, to ask across Whitehall, what further work needs to be done. That work will then continue, and on the anxiety over the sunset clause, we have the extension in place as well.

Combined, the amendments would thwart the Bill and retain REUL as a distinct category of law on the UK statute book. I therefore ask that the amendments be withdrawn or not pressed.

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[Justin Madders]

I thank the hon. Member for his intervention. I think we start from the point that this should be a matter of logic. If an issue is within devolved competence, it should be for the devolved Administration to determine, but I wait to hear the Minister’s explanation for leaving that proposition to one side for the purposes of the Bill. We suspect the Government have done this because of the political imperative that Ministers will be able to say they have got rid of everything they do not want by the arbitrary deadline of 31 December 2023. If this amendment is accepted and it is something the Government accept is a valid argument, we would expect similar measures to come forward for Wales.

Another consideration is that we do not actually know at this stage which laws are within the competence of Scotland. We do not know which laws are covered, because there is no list anywhere. We just have the dashboard, but that does not give us any clues as to which pieces of regulation are considered to be within the devolved nations’ competence. Can the Minister justify the power to extend the sunset having to reside only in Westminster when it deals with matters of devolved competence? Can she also explain what the process will be in Government with the Brexit Opportunities Minister, when appointed, for identifying the laws that are within devolved competence, and the procedure to be followed for resolving any disputes about ownership of those pieces of legislation and which authority has competence?

[Stella Creasy]

This is a good example of the challenge we faced yesterday in the Delegated Legislation Committee on persistent organic pollutants, where it was not clear what legislation was covered by this Bill and what would be deleted and, therefore, whether it was worth rewriting any legislation. The Minister got into a tangle. We would be talking about such a tangle on a more widespread scale across our devolved Administrations.

I echo the point made about my Front-Bench colleague, my hon. Friend the Member for Ellesmere Port and Neston, about the importance of recognising our colleagues in the Senedd as well. That is the challenge with this legislation. Because we do not know the full extent of what it will do, we do not know how it will affect devolution. We do not know where the lines between devolved powers and powers held at Westminster will be drawn and what will be retained. These amendments reflect that. It is not unreasonable to ask Government Ministers to clarify how they see this all working.

One of the concerns over the last couple of years has been the fractures in devolution and the pressure we have put on our devolved Administrations in making the decision to leave the European Union. I would ask the Minister to set out not just why she thinks Westminster should supersede any of the devolved Administrations, but also what her plans would be, should in that subsequent, updated, rolling list of laws a piece of retained law come up that had perhaps not been previously identified but that is quite clearly about devolved powers. How would she look to manage that?

The Minister’s colleagues yesterday were rather intemperate, shall we say, when it was pointed out that they were passing a statutory instrument that rested on legislation that would no longer exist at the end of the next year, 50% of which had not yet been identified as being on the dashboard but was clearly part of the regulations the Government had put forward. How does the Minister feel that will affect our relationships across the United Kingdom and our ability to speak up for the Union if the Westminster Government puts Government Ministers across the devolved Assemblies and the Scottish Parliament in the same position for 4,000 pieces of legislation?

I hope the Minister will recognise that these amendments and concerns about devolution come, yet again, not from a desire to stop Brexit, because Brexit has happened, but from a desire to protect the Union and ensure that people in any part of the United Kingdom have confidence that Government Ministers know exactly what they are doing.

[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.

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The reason why the Regulatory Policy Committee was so damning about the initial impact assessment—I do not think, by the way, that it thought that the revised one was much better—was not that those writing the impact assessments are no good at their job. The impact assessment was so lacking because the Bill itself is so lacking. No amount of polishing can put a shine on something that is fundamentally flawed in the first place. That is why the amendments will add a little shine, if not sanity, to a Bill that is in desperate need of improvement.

[Stella Creasy]

Government Members may find this incomprehensible, but at some point it is not inconceivable that they may be in opposition. When they are, and they are presented with a Government Bill and literally nobody knows the full extent of what it does, that will seem similarly incomprehensible. I know that many Government Members have never contemplated the wilderness of opposition. For other Members, such as myself, it is all that we have ever known—but we have never known a situation where to ask Ministers to set out what a piece of legislation covers is considered an inconvenience at best or offensive at worst. The amendment is about rectifying that—not to put Ministers on the spot, but because it is completely reasonable and rational in a democracy to expect to know what Parliament is being asked to do.

The fact that we have to state that—my colleague on the Front Bench, my hon. Friend the Member for Ellesmere Port and Neston, gave an admirably gentle and mild version of what I am about to say—is a reflection of the difficulties of a Government who are struggling on after 12 years and cannot explain themselves. Our constituents could look at the consequences of not knowing what the legislation does as either—in what I believe is the common parlance—cock-up or conspiracy. That is precisely what will happen if we do not know what laws will be covered. Yet the Minister has admitted that she does not know. She wants to tell us some time next year, after the legislation will apparently have passed through Parliament.

I do not know about you, Sir George, but I am pretty sure that the Netflix special is already being written, because there must be some conspiracy behind this. Why do the Government not want to tell us what laws they want to get rid of? After all, we have just been told that actually the Bill is all about Brexit. Those of us who think that this is a bad process and that Brexit could be done in 101 other ways are clearly mistaken. There must be a conspiracy at stake here. The true width of what is happening must be something that could rival “Designated Survivor”. The alternative—that the Government have put forward a Bill with a timetable and pace that mean they literally do not know what will happen next—is frankly disrespectful to our constituents. This amendment is about the confidence that the Government have in their own work. I turn again to the wondrous words of Warren G, when he said about being a regulator,

“you can’t be any geek off the street”.

Surely there must be some competency involved in this role. That competency is knowing what the legislation does. That is why with every other piece of legislation we have an impact assessment. It is not unreasonable for us as parliamentarians to ask for that. After all, we will have to justify it to our constituents—well, we Opposition Members will not, but those currently sitting in the glorious offices of Government will. They will have to explain to their constituents why they passed a piece of legislation while not realising what it would do. At this point in time, nobody in this House can explain what it will do. Nobody, as the Minister yesterday discovered, could explain what would replace it. Nobody in this room can tell us exactly what is on that list. It is indescribable.

I do not think that in 12 years—that makes me a grandee in Labour terms at this rate—I have ever seen a piece of legislation where we as the Opposition have to ask for the extent of its impact. I want to warn Government Members: some day this may well happen to them. I know that must seem a gross insult, but they too will want Governments who are able to explain what they are intending to do, even if they do not agree with it, because they would then be able to go and tell their constituents why they do not agree with it. It is a reasonable proposition.

Amendment 90 asks the Government to set out a comprehensive list of retained EU law. After all, it is on the face of the Bill that that is what this legislation does. I apologise, Sir George, because I am now laughing. I am laughing at the absurdity of our being at a point where we have to ask the Government to set out what they are going to do. There is the concept of an “authoritative but not comprehensive” list—those words are worthy not just of “Yes Minister” but of “Blackadder” in their pomposity and stupidity. It is stupidity because it is incredibly dangerous to give the Government powers that they do not know what they are going to do with. Let me be clear that I am talking about the stupidity of the legislation, not the people.

I am talking about stupidity in terms of accidental intent—the cock-up element of this, rather than conspiracy. That is what I fear most of all. A conspiracy means somebody at least has a plan. As I am sure we will come on to later, the conspiracy is that the Government intend to rip up thousands of rights that people have relied on, such as by ending people’s right to bank holidays, leaving them as an option, and ripping up maternity rights. After all, some of us in the House remember the Beecroft report well, so we know this is something Government have talked about before. That would be the conspiracy.

The cock-up is in creating a piece of legislation that deletes things and the Government then not realising they have deleted them until somebody comes forward to point it out. The statutory instrument I spoke to yesterday, which I really hope Ministers go and look at, was also about correcting deficiencies in how legislation was written. That is to say, things had been missed off. It happens, but asking the Government to set out clearly what legislation the Bill will amend—whether that be deleting, replacing or amending it—is not an unreasonable request. Our constituents should expect us to know what it is we are going to be legislating on.

On Second Reading, the previous Minister—not the Minister in front of us, to be clear—tried to claim that I should not be worried that this legislation would have an impact on airline safety, as that was a matter contained in primary legislation, so not subject to the sunset. In reality, we have now replaced that provision of civil aviation legislation with a range of secondary legislation, meaning precisely that airline safety is up for grabs and we will need to find time to rewrite that legislation.

If the Ministers responsible for this legislation do not themselves know its extent, how can we expect all those civil servants—who the Minister cannot clarify are working on this legislation—to know the full extent, let alone the colleagues she cannot name who are working on it? What will happen when a Minister is suddenly presented with a piece of legislation that has been abolished, which was not on the dashboard, not identified and not set out in the legislation? A Minister presented with that scenario will have no recourse—it will have happened, unless we pass amendments that give everybody clarity and confidence. It is not unreasonable to want to set out a workload for Government so that they know what they are doing.

Amendment 91 allows us to work out how the amendments happen. Again, I am laughing at the absurdity of our being in a position where we have to set out an understanding of how things might be changed and who we might want to talk to—perhaps industry experts. I am sure Government Members who stood on platforms where they supported things such as Beecroft have no problem with watering down the working time directive. I am sure they will tell us later when we come to debate that.

What about standards regulations—those incredibly technical but incredibly dull pieces of legislation that, if we are all honest, we have not spent a lot of time looking at, but we look to industry experts to be able to tell us about? How is it unreasonable to set out a process by which those people will be consulted? What have we got against experts in this country? Frankly, at this point in time, some expertise on legislation, given that the Government have to admit they do not know the full extent of the Bill, would be welcome.

In my 12 years as an MP, we have always expected to have impact assessments and to know roughly what is in scope in legislation. Clerks cannot tell us that because Clerks do not know the full extent of the legislation, because we do not have a full list. We keep coming back to the themes of the amendment, but we also have to recognise that removing the entire body of EU-based legislation at a stroke, without clarity about what replaces it, will also have a wider impact. It could impact on the TCA itself, because it could be considered to breach regulations that we put into the TCA to show that we were not going to reduce or water down rights in order to make sure we did not start a trade war. Again, setting out what laws are up for grabs would help mitigate that impact.

Government Members can be as blind as they like or as deaf to the idea that there could be any problem with passing a piece of legislation where we literally have no idea of what it covers. But mark my words, Sir George: if and when they find themselves in opposition, they will rue the day they set the precedent that it is possible for Government Ministers not only to have such sweeping powers, but not to be told what it is they can use those powers for.

The amendments are not unreasonable; I will wager that when the Bill comes to the House of Lords, if the Ministers today are adamant about turning down the amendments, we might see something similar. I hope that Members across the House will support them if only for the sanity of being able to remove the idea that there is some sort of conspiracy, and we can go back to expecting a common or garden cock-up in how legislation in this place is written.

In the meantime, I urge Government Members to support the amendments. If they cannot explain to their constituents what they are doing in Committee today, they certainly would not be able to explain it when we come to the election to decide which side of the House any of us sits on, and that will be a very testing moment indeed.

[Ms Ghani]

I ask hon. Members to reject amendments 90 and 91 as well as the introduction of new schedule 1. The amendments undermine the central sunset policy of clause 1 and the Bill as a whole. The sunset provision was drafted to incentivise Departments to review their retained EU legislation and actively make a decision on whether to preserve something. Amendment 90 creates the preservation of a default position and therefore removes the key impetus for reform. Allowing outdated retained EU laws to languish on our statute book where they do not work in the best interests of the UK is irresponsible.

The sunset is the backbone of the Bill as it accelerates reform and planning for future regulatory changes. Without it, the benefits and the potential to bolster economic growth might not be realised at all, as sunset ensures that a single cohesive domestic statute book will exist following the sunset deadline. We have already committed to abolishing retained EU laws that stifle growth and are not in the best interests of UK businesses and consumers. The sunset is our fulfilment of that commitment.

I want to quickly respond to some of the questions raised. I do not have a list of TV or Netflix programmes or movies to contrast my responses. To crush the conspiracy about the laws that have been recognised, I refer hon. Members to the dashboard, which has the retained EU laws available, collected as part of a cross-Government collaborative exercise. The process was led by the Brexit Opportunities Unit, and it is where retained EU law sits across over 300 policy areas and 21 sectors of the economy. Hopefully, that conspiracy theory can die very quickly.

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[Stella Creasy]

I thank my hon. Friend for giving way. Given that we are debating whether Ministers are capable of scrutiny, not to take any questions rather proves the point. Does my hon. Friend agree with me that he has already set out a number of instances of regulations that are not on the dashboard? I wish to add the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012. Is there a number for the regulations that are not currently on the dashboard that people can feel comfortable with? Is there a margin of error that the shadow Minister can set out, given that the Government will not answer that question? Or given that businesses want better rather than no regulation, is it not completely unreasonable not to know what is up for grabs?

[Justin Madders]

Businesses want certainty and, with this Bill, we are as far away from that as is possible. I do not know if there is going to be a margin of error. Indeed, I do not think there should be any margin for error when talking about legislation in this place. We should all know exactly what we are voting for and signing up for. At the moment, the Bill does none of those things. The Minister said that the amendments would undermine the Bill. Absolutely they would. They are intended to create some parliamentary scrutiny, which the Bill sorely lacks. The Minister also said that the Bill’s drafting aims to incentivise Departments to hurry along and decide which laws they want to retain, but I am afraid that if we are using legislation as a management tool for civil servants we are in a pretty poor place

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[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.

[Stella Creasy]

Can my hon. Friend have any confidence in the dashboard itself if Ministers are not prepared to put it on a statutory footing by at least listing the laws that are creating it? The Minister tells us to have confidence in the dashboard process, saying that it is a wonderful tool for people to be able to learn what is going on, but not so wonderful that it can be transplanted in legislation. Does my hon. Friend agree that that rather undermines any confidence that people might have in the dashboard, even as an authoritative if not comprehensive list of the legislation affected?

[Justin Madders]

I will use a hip-hop lyric in response, seeing as that is the road we are going down. LL Cool J once said

“you can’t gain or maintain…Unless you say my name”,

and that is the point of this amendment. We cannot actually say, scrutinise or understand the effect of the Bill if we do not have a comprehensive list. The Minister has said that the dashboard is the panacea for our criticism, concerns and, indeed, conspiracies about what is going on here, but when the Government themselves admit that the dashboard is not a full list of the laws, it cannot be acceptable or tenable that that is the basis on which they intend to proceed. We do not legislate in this place by website; we legislate by legislation, and the intention of the legislation should be clear.

I will pick up one other point that the Minister made. She said that we continue to support the values of the EU, even though we are leaving it. I am afraid that clause 5 does not do that; it specifically says that we will no longer be following the principles of EU law as we leave. I accept it is a legitimate position, but that is the fact of the matter. I appreciate that we have dealt with this matter to the nth degree, so I will finish by saying that I intend to push this amendment to a vote. We cannot have a situation where we do not know what legislation covers, where we do not what know what the Government intend to do with the legislation, or where the Government will not talk to anyone about what they intend to do with it.

We cannot have the Government changing the law on a whim; there must be proper accountability and scrutiny. We cannot have unaccountable Ministers changing the rules without reference to anyone else. That is not what taking back control was supposed to mean. I am afraid that says that the Government are not confident about their intentions and, frankly, that is a completely unacceptable situation, which this amendment would go some way to putting right.

Question put, That the amendment be made.

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

Stella Creasy Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

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

I know there was bated breath and anticipation as we returned this afternoon. I hope we have as joyous and entertaining a debate as we had this morning about such an important piece of legislation.

We are getting to the meat of the matter this afternoon, which is what the legislation will do and what the Government’s intention actually is. It is only fair for the Government to come clean on their intentions. They keep saying that those of us who are raising concerns are scaremongering, but it is our job to probe the Government. As much as the Minister might not like these questions, our constituents deserve better than vague pledges that the Government would not possibly do something that we know in the past this Government and its Members have tried precisely to do.

Let us start with workers’ rights. These amendments are about a perfectly reasonable parliamentary process of fleshing out the Government’s intentions. This morning, we heard that there is, of course, time for the replacement of all the legislation that will be deleted by the Bill. We heard that none of us should have any concerns about the timetable or process or persons unknown who will be responsible for this legislation. The reasons for our concerns are to do not with Brexit but with the content of the Bills that are going to be deleted. They are Bills and rights on which our constituents have depended for generations, and workers’ rights are an absolute case in point because they safeguard the right to a decent workplace and decent employers. Businesses do not want employment rights to be watered down. They want certainty so that they can get on with rebuilding their businesses in this difficult economic climate.

As we have seen in the responses that we have received, many businesses agree with the rights that the Bill puts at risk of deletion. The Working Time Regulations 1998 include the right to paid time off, including bank holidays. This is a very simple proposition for Conservative Members: if they do not vote with us to remove these laws from this Bill, they will put the right to a bank holiday up for deletion. The Government have been very clear that they will not provide any guarantees as to what will replace or amend any of the laws that they are deleting. If they join us, they will make things a lot clearer for our constituents.

It is not just about the working time directive. My hon. Friend the Member for Ellesmere Port and Neston said this morning that he was not sure how many people benefit from TUPE. I can tell him that 30,000 people a year benefit from TUPE protections, yet the Beecroft report suggested that TUPE legislation should be watered down. It is not unreasonable for those of us who have had concerns for many years about this Government’s approach to workers’ rights to be concerned that this Bill deletes TUPE in its entirety, which is something that Beecroft only dreamed of.

The Management of Health and Safety at Work Regulations 1999 protect, among other rights, the requirement for an employer to perform a risk assessment for all workers, and specify that that must include a risk assessment once an employee falls pregnant. If Conservative Members think that those rights should be protected, they should vote in favour of them today, send a clear message to their Government colleagues to remove the measure from the Bill and put beyond doubt the fact that it is reasonable to require an employer to carry out a risk assessment when an employee falls pregnant. We must protect health and safety regulations. Each year many of us commemorate those who have lost their lives in the workplace, but this Bill deletes important legislation at a stroke and Ministers have not given any assurances or details as to which regulations they will bring back in their entirety.

The children and young person working time regulations protect a child’s right to access education by preventing the employment of children. Ministers and Conservative Members will say that it is scaremongering to talk of sending children back down the mines or up a chimney, but that legislation was brought in precisely to protect children. Why on earth would we not want to put it beyond doubt that we want to keep those protections, unless the Government either want to water them down or abolish them altogether? Voting for the amendment would put that beyond doubt.

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ensure that millions of our constituents are not discriminated against in the workplace. It is predominantly women who are protected by those regulations. Nearly a fifth more women than men are on temporary contracts, and more than twice as many women are in part-time employment than men. When this Bill is enacted, the rights that they have relied on to protect them in the workplace will be dissolved at a stroke. It is not unreasonable for us to give them the comfort that those rights will remain by ensuring that they are not removed by the Bill.

The Maternity and Parental Leave etc. Regulations 1999 protect women in the workplace from unequal treatment on account of maternity leave, pregnancy or childbirth. We know that 50,000 women a year experience pregnancy discrimination, even with that legislation in place. Removing it and refusing to keep it will result in even more women experiencing pregnancy discrimination. That is a critical point. Nobody is suggesting that these laws are perfect or that they do not require amendment and should not change with the times we are in, but that does not mean that they should be abolished and that we should hope that a future Minister remembers that they were on the list and comes up with some proposals. The 50,000 women already experiencing pregnancy discrimination need to know that the law is going to move forwards, not backwards, and this Bill can only be a retrograde step.

Conservative Members should come clean to their constituents. If they do not think these rights are important, they should put them up for abolition and hope that Ministers will come forward with alternatives. They should be clear with their constituents, because we will hold every single Member in this House to account if they delete the right to have a bank holiday or not be discriminated against as a pregnant woman or new mother.

[Lia Nici (Great Grimsby) (Con)]

indicated dissent.

[Stella Creasy]

I can see the hon. Lady shaking her head—I am sure everyone can—but that is exactly what the legislation does. It is important to our constituents that we either do not deny that that is a possibility or we act to remove it. This amendment gives Conservative Members the ability to offer more than just words on this matter—to make a deed and ensure they protect the workers’ rights their constituents depend on.

We are very clear: if Government Members do not vote for this amendment, we will hold them to account and ensure that their constituents know that they voted to put those rights up for grabs with no guarantee that they will be protected. I can see Conservative Members smiling. Those smiles will not be smiles when our constituents ask why they put their rights into a process that will mangle them with 4,000 other pieces of legislation, with no guarantee that parliamentary time can be found and no guarantee of what it means for their employers. The right hon. Member for Clwyd West asked if it was scaremongering. It is not scaremongering. It is called accountability, and it is about time the Government listened to it.

[Mr Jones]

The hon. Lady will know that this Government have consistently improved the rights of workers. It is a process that has continued over the last 12 years since this party has been in Government. Frankly, it does her no credit at all to raise these concerns with probably very vulnerable people, who will now be concerned about what she has said. She will have to be accountable for what she has said.

[Stella Creasy]

I thank the right hon. Gentleman for his intervention. He was part of a Government who brought forward the Beecroft report, so I will take absolutely no lectures about frightening vulnerable people.

What I see before me is a piece of legislation that deletes those rights. That is beyond doubt. The question is whether they are going to be replaced. The right hon. Gentleman could argue that that is what Ministers have committed to. I am sure that is what the Minister will try to say—that we should not worry and that these rights will be replaced—but at this point in time when we are being asked to pass this legislation, there are no guarantees. There is nothing on the statute book. There have been no specific pledges on these rights.

We have a Government with a track record of seeking to try to delete and dilute rights. They were prevented from doing so by being members of the European Union at the time. Brexit has happened. Now the entire responsibility and onus on protecting those rights relies on Government Ministers and Members of Parliament holding the Government to account. That is exactly what we are doing today. Vulnerable people deserve to know the truth of what the outcome of this legislation will be.

[Dr Luke Evans (Bosworth) (Con)]

The hon. Lady is making a very good point about ensuring we have protections in place. Is she not missing the point and being slightly mischievous, because this is setting out a framework of how to deal with the problem, not the specifics? Those can still come later. She is right to argue that anyone in the House could make those changes, but the whole principle here is laying out the framework to enact these rights.

[Stella Creasy]

The hon. Gentleman comes so close, yet does not quite score his goal. He has said that it is about setting out a framework so these things could happen. There is no guarantee about what comes next. That is the challenge for his constituents. That is why the amendment puts in place what could come next by removing these particular rights from that process. The hon. Gentleman is right to say that it sets out a process. The point is what is the impact of that process. If he cannot read this legislation, he needs to read all the submissions we have had from people setting out their concerns.

[Paul Blomfield (Sheffield Central) (Lab)]

My hon. Friend is right in her response to the question of process. Does she agree that it was a previous Conservative Government—there have been so many—that set out a process in the withdrawal Act? That process was to embrace the principle of retained law so that we did not risk losing the rights and protections we had collectively agreed over 43 years and would then have the opportunity, as and when the chance arose or it would seem fit, to change or improve that law. That process would be set against the safety net of not losing what we already had. That was the process the Conservative Government put in place and which this Bill is now ripping apart.

[Stella Creasy]

My hon. Friend speaks with the experience and frustration of having seen this all before. That is the challenge. The hon. Member for Bosworth is relatively new to this experience, but many of us who have had to deal with this Government in its various incarnations over employment rights—and, indeed, over legislative processes—have seen the deterioration in their respect for and approach towards the parliamentary process, whereby Members could be confident about the Government’s direction of travel.

In this morning’s sitting I mentioned the words “cock-up” or “conspiracy”. A cock-up would be accidentally losing some of these pieces of legislation. That is why this amendment is so important: it sets out specifically all those pieces of legislation and provides a safety net. We could then have a sunrise approach to this legislation. If the Government wish to amend things, at least the legislation would be retained until it is amended. The conspiracy element comes from the previous experience of dealing with this Government, and the bemusement as to why Ministers and Back Benchers claim that we are scare-mongering, but refuse to give that commitment.

If the Minister will give a specific commitment today that every single one of those rights will be rewritten into UK legislation to give our constituents the same protection that they have now, I will happily support her, but she is not likely to do so. In that absence, it falls to all of us to make sure that our constituents—the vulnerable people we are concerned about—do not worry that their rights, precious as they are, are about to be abandoned. They have to hope that it is better to have a cock-up than a conspiracy, and that they might still be saved at some point, rather than that there is a deliberate attempt to reintroduce Beecroft by the back door—because that is what the Bill looks like, and that is what the amendment protects us against.

[Brendan O’Hara (Argyll and Bute) (SNP)]

I will speak to amendments 60, 67 and new clause 4, tabled in my name and that of my hon. Friend the Member for Glenrothes. The amendments would oblige the Secretary of State to publish a full list of workers’ rights that could be put at risk under this legislation by 1 January 2023. It is a pleasure to follow the hon. Members for Ellesmere Port and Neston, and for Walthamstow. I fully agree with everything they said. If they press their amendment to a Division, our support is guaranteed.

We have heard several times today that the Bill gives UK Government Ministers unprecedented powers to rewrite and replace huge swathes of domestic law, covering matters such as environmental protection, consumer rights, and of course those long-established, hard-won workers’ rights. The right hon. Member for Clwyd West, and indeed the Government generally, have been at pains throughout the passage of the Bill to say that there will be no diminution of workers’ rights, but given that they have failed to produce an accessible list of exactly what will stay and what will go as a result of the Bill, coupled with the fact that so many stakeholders see the Bill as the starter pistol for a deregulatory race to the bottom, they will fully understand the scepticism that exists not just here, but outside this place, over any promise that workers’ rights will be protected.

Although we have heard the Government’s vague promises that everything will be okay, and the reassuring words, “Trust us, we’ll see you okay”, that is not good enough. Workers across the country will fear that the Government are going down a one-way road towards deregulation that will certainly not benefit workers or protect their rights.

We heard in the oral evidence session that the trade unions are particularly sceptical about what the Government have planned for workers’ rights. They have serious concerns that, among those 3,800—so far—discovered pieces of legislation that are due to be sunsetted in 13 months’ time, there could be legislation covering annual leave entitlement, women returning to the workplace, the treatment of part-time workers, protection from dismissal, holiday pay, legislation on working hours, and rights to parental leave. As the hon. Member for Ellesmere Port and Neston said earlier, the fact that this legislation was the brainchild of, and initially piloted by, the right hon. Member for North East Somerset (Mr Rees-Mogg) sets alarm bells ringing—with some justification, given that back in 2013 he was quoted as saying,

“It is hard to believe that the right to paid holiday is an absolute moral right; it is something that comes about because of political pressure at the time”—[Official Report, 1 March 2013; Vol. 559, c. 605.]

If that is not evidence enough of the direction of travel—or, at least, the suggested direction of travel—in which this Government are heading, I do not know what is. The Government have to accept that they have a long way to go in addressing the concerns of the trade unions, who explained much of their fear was based on being unable to find out exactly which pieces of legislation will stay and which will go. Shantha David of Unison said that the dashboard is

“the most incomprehensible piece of equipment. You have to put in random words to try and identify whether certain pieces of legislation will remain or go.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 58, Q91.]

It is a completely unsatisfactory position. All that new clause 4 would do is oblige the Government to provide trade unions, individuals and other organisations with a comprehensive list of every piece of employment legislation that could be impacted by the Bill. I do not think for a minute that that is too much to ask, or indeed too much to expect, the Government to provide. If the Government are serious and they want us to believe that the Bill will not put workers’ rights under threat, that is a very small and simple step to at least signal they are moving in the right direction.

--- Later in debate ---

[Justin Madders]

I have quite a few things to say. First, the rehashing of the old arguments about a lack of scrutiny when the laws covered by the amendment were introduced is, as I said at length this morning, not correct. Even if people think that, the answer is certainly not to make it harder to scrutinise laws now.

[Stella Creasy]

Will my hon. Friend comment on the irony that the Minister has argued that we need to do this because we were never able to refuse a piece of legislation from the European Union, but at the same time is defending a piece of legislation that will not take back control to Parliament, but will give it to Ministers? Under the Bill, MPs will not be able to refuse or amend a piece of legislation that, like it or lump it, will come from No. 10 rather than Brussels. How is that taking back control?

[Justin Madders]

It is not taking back control, is it? Anyone who has read the Bill will understand that Parliament’s role will be severely restricted, and that is why the Opposition are worried about what will happen. The Minister cited a long list of measures that strengthened employment rights, many of them introduced under a Labour Government of course. Not all of them came from Europe—the minimum wage is not derived from European law. We want to see such rights protected.

I think the Minister is sincere in her desire to support equality, but her exact words were that there is no intention to remove any necessary equality law. I just question whose definition is used to decide what is necessary or unnecessary. What does that mean? That is why it is so important that we have a proper scrutiny process. If it is decided that no equality laws are unnecessary, they should be removed from the terms of the Bill all together.

--- Later in debate ---

[Justin Madders]

It may be news to the hon. Lady, but we left some time ago. I find that intervention interesting, because it rather suggests that there is an intention to weaken some workers’ rights. We have concerns, and I am afraid that the debate has heightened them.

[Stella Creasy]

Does my hon. Friend agree that it is worth having concerns when not only do Government Members prioritise removing anything that includes the word “Europe”, but the Minister seems not to know the complete history of maternity and pregnancy discrimination legislation in this country? The European Union held the UK Government to account with the pregnant workers directive in the 1990s because the UK Government sought to water down the protection of women. I am sure that Government Members would support the legislation on maternity discrimination introduced by their colleague, the right hon. Member for Basingstoke (Dame Maria Miller), which sought to move things forward, but we have not seen progress on that from the Government.

Ministers seem not to be fully aware of the history of European legislation when it comes to maternity rights and pregnancy discrimination; there has been a lack of action in response to proposals from Government Members; and we now have a piece of legislation that deletes rules simply because they have the word “Europe” in, with no guarantee of what comes next. Given all that, we understand why organisations such as Pregnant Then Screwed are campaigning on maternity and pregnancy discrimination. It is happening now, under this Government, and the Government are doing very little about it.

[Justin Madders]

I thank my hon. Friend for her intervention. I think there was a question in there somewhere. I agree with the general point that the fight for equality does not stop. It is always ongoing, and we have to look forward and ask ourselves what kind of country we want to be now that we have left the European Union. Do we want stronger workplace rights? Do we want equality in the workplace? Do we want to end discrimination? If we agree with those things, and certainly the Opposition do, the way to guarantee that we at least maintain the status quo is to vote for the amendment. My constituents will be considerably poorer over the next few years as a result of the economic decisions made by the Government. I do not want them to be poorer in rights as well, and that is why I will press the amendment to a vote.

--- Later in debate ---

[Alex Sobel]

We now come to the impact of the Bill on laws that fall within the remit of the Department for Environment, Food and Rural Affairs. The Government’s dashboard lists only 570 laws that DEFRA identified as falling in scope of the Bill; that figure alone would make DEFRA the most heavily impacted Department in Government. However, we understand that DEFRA officials have privately revealed that more than 1,000 individual laws are at risk of being revoked by the Bill’s sunset clause. How do the Government plan to resource DEFRA to enable officials to properly examine each of these laws in the time remaining before the sunset sweeps them away?

The Department is already beset by delay and overwhelmed by consultation responses. The supposed Government priorities of environmental action and animal welfare are long past their due dates; on 31 October, for example, the Government missed a legal deadline to publish environmental targets. Instead of clogging up the entire Department with months of pointless work reviewing lists of laws that no one wants to drop, the Government should prioritise their environmental commitments in the Environment Act 2021 and the 25-year environment plan, including the actions and policies necessary to deliver nature’s recovery by 2030.

The sample of 19 laws listed in these amendments cover a vast range of important policy areas about which the public feel passionately. They include animal welfare, water quality, the treatment and discharge of sewage, the protection of wildlife, the safe use of chemicals and pesticides, the protection of human health from the impacts of air pollution, the use of animals in scientific testing and the prevention of the spread of animal diseases, such as the bird flu that is devastating poultry businesses and our precious wild bird populations. The regulations listed in amendments 74 and 77 should therefore be seen as a non-exhaustive list of the key examples of law that it is vital to retain to maintain standards. The regulations listed in the amendments represent some of the most prominent environmental protections, but many potentially vital but not always easily identifiable protections will remain at risk.

A definitive list of environmentally important measures does not exist. One could say that the Government have been naughty by nature, but I would not do that. However, we know that it is even more extensive than the comparable list of the retained EU law that provides critical protections for workers’ rights and conditions, which we have debated in relation to amendments 73 and 76. The inventory of workers’ rights legislation is shorter and more easily identified, so there are important differences between the three domains of rights and protections highlighted by our amendments.

The environmental retained EU laws covered by the Bill include major protections that we rely on for clean air, clean water and safe food, as well as providing crucial safeguards for a struggling natural world. Under the Bill, critical environmental protections face the prospect of being revoked without replacement or replaced by weaker regulations, because of the extremely limited time available to consider and draft workable replacements before the application of the sunset clause, and because of the lack of parliamentary oversight and public consultation—those are the focus of other amendments.

The Government have said that they are committed to maintaining environmental protections. For instance, the former Business Secretary, the right hon. Member for North East Somerset, said that

“the Government is committed to maintain all the environmental protections that currently exist and met a number of the environmental lobby groups to confirm this”.

I will go into a little more detail about how we believe the Bill will completely undermine those commitments and place at risk the safety of chemicals.

REACH stands for the registration, evaluation, authorisation and restriction of chemicals. Under the European Union (Withdrawal) Act 2018, the EU REACH regulation was brought into UK law on 1 January 2021 and is now known as UK REACH, but the UK and EU REACH regulations operate independently from each other. Most industries must therefore comply with both sets of regulations if they want to trade in both the UK and the EU. Furthermore, UK REACH regulates only chemicals placed on the market in GB, and, under the terms of the Northern Ireland protocol, EU REACH continues to apply in Northern Ireland.

The HSE website explains that REACH is

“a regulation that applies to the majority of chemical substances that are manufactured in or imported into Great Britain (GB)…This can be…A substance on its own…A substance in a mixture, for example ink or paint”

or a

“substance that makes up an ‘article’—an object that is produced with a special shape, surface or design, for example a car, furniture or clothes.”

The chemicals legislation in the amendments works closely with the 2008 classification, labelling and packaging of chemicals regulations, which are about the responsibility for identifying and communicating hazardous properties of chemicals. That legislation also works with other chemicals regulations listed on the Government dashboard, such as the Toys (Safety) Regulations 2011 and the Cosmetic Products Enforcement Regulations 2013, which restrict the use of certain chemicals in those products.

REACH places restrictions on the use of more than 2,000 harmful chemicals on which it has taken more than 13 years to legislate at EU level. That has helped to drive innovation in the development of safer alternatives and delivered considerable benefits for our health and environment. Lifting or weakening those restrictions could result in the import of everyday products—from sofas and paint to cosmetics and toys—that contain chemicals that are linked to cancer or affect intellectual development, and that are restricted in the EU but sold in other parts of the world.

The UK was one of the driving forces behind the creation of EU REACH in 2006. That was acknowledged during proceedings on the Environment Act by the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Taunton Deane (Rebecca Pow), who said that

“we were instrumental in designing the whole process in the first place, which we kicked off during our presidency in 1990.”––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]

Perhaps the Minister who is with us today will argue that revoking REACH would nevertheless realise Brexit opportunities. However, businesses are not asking for the revocation of REACH; quite the reverse.

Last week, the chief executive officer of the Chemical Industries Association said:

“We are not in the market for any regulatory bonfire”.

Far from helping to drive economic growth—that is the intention behind the Bill—throwing UK rules into doubt will create uncertainty and instability for businesses, and it will very likely deter investment. Businesses will essentially be left with three costly options: to comply with two regimes at once; to end exports to the EU; or to remain aligned to EU standards, in which case why attempt to deregulate UK REACH?

If Ministers think that the Bill is needed to provide the flexibility to adapt the regulations to a UK context, they seem not to realise that legislative powers for updating and adapting REACH for a UK context already exist under schedule 21 of the Environment Act. Those Environment Act powers include important safeguards for public health and the environment that the Government have not necessarily thought to include in the Bill. Furthermore, work to review and adapt REACH to a UK context has been ongoing pre and post EU exit. The Bill will pointlessly divert that work. For example, we are still waiting for a UK chemicals strategy, which was first promised in the 25-year environment plan more than four years ago.

Without a strategy, the various parallel Department for Environment, Food and Rural Affairs reviews lack strategic direction. A strategy is urgently needed to set out much-needed measures to improve the regulation to address our growing chemical pollution crisis. Why does REACH need the amending powers in the Bill, unless it is to deregulate and to lower standards? The hon. Member for Taunton Deane previously assured us that we would maintain

“high standards of protection for the environment, consumers and workers”

while having

“the autonomy to decide how best to achieve that for Great Britain.”––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]

The status quo in the Environment Act already does that, but the Bill could only be designed to usher in low environmental standards.

Labour tabled an amendment to provide a non-regression mechanism to schedule 21 powers in the Environment Bill. The response from the hon. Member for Taunton Deane was that there was no intention to regress. She pointed to proper safeguards in the powers to ensure that, including protected provisions

“that cannot be changed…relating to the fundamental principles of REACH”.––[Official Report, Environment Public Bill Committee, 19 November 2020; c. 598.]

Those principles include core principles of good chemicals regulation such as “no data, no market” and the precautionary principle. It is difficult not to see the “malign opportunities” that she rejected when she highlighted the safeguards in the powers two years ago. If the aim is a sensible review and updating of our laws, the Government should allow her Department to get on with it.

We already know that there is a serious lack of capacity and expertise in the HSE to do its job. That has resulted in declining safety standards on chemicals in the UK. A recent NAO review found that a lack of operational capacity and loss of data is having a negative impact on HSE’s ability to assess risks and carry out its work, and that it would not be able to achieve its long-term objectives unless that were addressed. How can the Government even contemplate piling even more work on to the HSE’s already overstretched workforce by requiring it to review and rewrite the retained EU law elements of our chemicals regulation?

On top of that, Ministers seem to completely ignore the additional burden on UK business. The pressure on HSE already results in UK REACH considering far fewer protections for health and the environment from harmful substances. For example, the UK has initiated only two restrictions on hazardous substances compared with the five that have been implemented in the EU since UK exit, and a further 20 are in the EU pipeline. Specifically, it has rejected 10 protections that have been targeted by its European counterpart. That includes a restriction on concentration limits for eight polycyclic aromatic hydrocarbons used as infill and in loose form in synthetic football pitches and playgrounds.

[Stella Creasy]

Say it again!

[Alex Sobel]

You will have to intervene if you want me to say it again. Those chemicals are linked to an increased cancer risk, putting our children’s health at risk.

The protective gap between the UK and the EU could become a chasm over the years ahead as the EU takes forward its chemicals strategy for sustainability. That is likely to result in the dumping of harmful chemical products on the UK market, with the divergence harming UK businesses.

There is a severe lack of chemical safety data. This is the central challenge of a separate, stand-alone system and it still has not been resolved. Deadlines for companies to submit vital safety data on the UK market are due to be put back for the second time, while the chemical safety database will not be complete for eight or nine years. The Government’s own latest figures estimate that the chemicals industry faces £2 billion of post-Brexit red tape—twice the cost of initial estimates. During proceedings on the Environment Act, Labour pushed for a minimum standard of protection under UK REACH. We have major concerns that the UK system is already considerably weaker than EU REACH, and the Secretary of State has taken sweeping powers to further reduce the level of protection for the public and environment from hazardous chemicals.

I will now turn much more briefly to other important environmental protections, a sample of which are listed in the amendments. The Government have been dragging their heels on protecting our animals for years, with lots of press releases but little action. Many of the animal welfare measures in the last Queen’s Speech were lifted directly from Labour’s animal welfare manifesto, but the Government have repeatedly stalled and delayed on taking through Parliament the limited selection that they have so far committed to, such as the missing-without-a-trace Animal Welfare (Kept Animals) Bill and the unkept promises to ban the imports of fur and foie gras.

We can have little confidence in this Government’s commitment to animal welfare. Their manifesto promised not to compromise on Britain’s high standards in trade deals, but the Australian trade deal and the precedent it has set risk bulldozing through our standards for animal welfare and environmental protections as well as impoverishing our farmers. As the Committee heard from David Bowles of the RSPCA, there are 44 individual pieces of animal welfare legislation that could be dropped or weakened because of the Bill.

Amendments 74 and 77 list an illustrative sample of just four of these: directive 2010/63 on the protection of animals used for scientific purposes; directive 1999/74 laying down minimum standards for the protection of laying hens; regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof; and the Welfare of Animals (Transport) (England) Order 2006.

As we have explained, the whole purpose of the Bill is to weaken and reduce regulations that ideological purists in the Conservative party see as an irredeemable burden. However, directive 2010/63 sets standards for the accommodation and care of animals used for research, and lowering these standards would increase suffering among lab animals. Article 14 of the directive requires, where possible, animal experiments to be carried out under general or local anaesthesia. The removal of this requirement could greatly increase the pain and suffering of animals undergoing experiments.

Directive 1999/74 banned the use of barren cages for laying hens. Weakening it could change acceptable cage standards for laying hens, allowing the expansion of battery chicken farming through the back door. Regulation 139/2013 stops the importation of wild-caught birds for the pet trade. Its introduction across the EU in 2005 reduced the volume of wild bird trading to about 10% of its former level. In addition to increasing the risk of the importation of wild bird diseases such as avian flu, weakening the regulation could breathe new life into the trade in wild-caught birds, and renewed UK demand could provoke further devastation of wild bird populations in South America, Africa and Asia.

Finally, the Welfare of Animals (Transport) (England) Order 2006 set basic welfare conditions for the live transportation of animals. Weakening the order could see UK welfare standards for animal transportation fall below those of our neighbours in the EU. It would also mark the complete reversal of the UK Government’s plans to increase welfare standards in transportation following Brexit—already stalled through the halting of the Animal Welfare (Kept Animals) Bill.

I turn to the conservation of rare and endangered wildlife and the precious habitats inhabited by vulnerable species. The Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017 include a crucial provision preventing any development that could adversely affect the integrity of our most precious nature sites. We have already seen this Government threaten our areas of outstanding natural beauty through scrapping protections when they fall in a so-called investment zone. Now, with this Bill, we face the prospect of a much more widespread weakening to allow unsustainable development to go ahead on or around important nature sites, even when it would cause damage to them. This damage could include more pollution reaching water habitats and the shrinking of terrestrial habitats. Nationally and internationally important nature sites on land and at sea in England, including Ashdown Forest, Braunton Burrows and Dogger Bank, will become more vulnerable.

Amendments 74 and 77 list the following laws that are part of the legal framework protecting our waterways from pollution: the Urban Waste Water Treatment (England and Wales) Regulations 1994; the Bathing Waters Regulations 2013; the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017; the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010; and the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018. Those regulations provide the legislative underpinning for efforts to protect and clean up our rivers.

The Urban Waste Water Treatment (England and Wales) Regulations 1994 are important for keeping up the pressure on water companies and developers to provide sufficient primary waste water infrastructure to meet the needs of urban areas, especially when they are growing. If those regulations end up weaker as a result of the Bill, there will be an increased risk of insufficiently treated waste water from urban areas spreading pollution across the fresh water network. Weakening the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 and the Bathing Water Regulations 2013 would undercut the measures that drive frontline organisations, especially water companies, to take holistic action to improve water quality.

--- Later in debate ---

I have just talked about a sample of 20 regulations of the 570, and there are probably many more. That shows the work required if the Government’s task is to be completed by the sunset date next December. It illustrates why we need to agree to the amendments, and future amendments; unfortunately, there were others that were not agreed to today.

[Stella Creasy]

I pay testament to my hon. Friend for working through that list, and for introducing us all to the concept of killer shrimp. I am sure that we will have nightmares about them, as we might about the legislation and the Committee sittings.

I hope that we can find common ground in Committee, because many of us have had to deal with the consequences of animal welfare legislation in our constituencies, particularly in relation to avian flu. As a local MP, I never thought that I would say regularly, “Don’t touch the ducks!” but that has become a refrain in my community because of problems we have had with avian botulism and avian flu. That is why I am convinced that it is important we parliamentarians should understand legislation—just as we should the Schleswig-Holstein question—and the intricacies and details of the negotiations behind the laws that protect us.

I see that Regulation (EU) No 139/2013, which lays down the animal health conditions governing the importation of birds and their quarantine conditions, is up for deletion under the Bill. I know, however, that in Bosworth last year, Wealden earlier this year, and recently in Clwyd West, members of the Committee had the same experience and I have of bird flu in their constituency. They know about the importance of the regulation. We recognise the concern that if that regulation is simply torn up and no commitment is made to it, the means of addressing that very live issue in our communities is at stake. Consider the work that is done to protect our bird life, our wildfowl and other wildlife. In particular, consider the avian influenza prevention zones, which have had an impact in many constituencies across the House. All that work is underpinned by that EU regulation, so the idea of deleting it when we have such a live issue with bird flu in the UK causes concern.

My hon. Friend the Member for Leeds North West referred to the National Emission Ceilings Regulations 2018. Many of us will have seen the horrific case this week of the child who died in a damp property, but we also remember Ella Kissi-Debrah’s death in February 2013, which was found to be caused by acute respiratory failure and severe asthma. As MPs we deal with such issues—damp, mould, air quality—and complaints about them daily. The retained European law has underpinned the regulations and standards to which we have held our local authorities and, indeed, our national Government. Nobody is saying that that is why we should not have left the EU—that has happened. We are simply saying that deleting laws on such live issues without making a commitment to replace them creates uncertainty at a time when our constituents are asking for action on air quality and avian flu.

Anyone who has been an MP for any length of time also knows that when animal welfare issues come up in the House, our inboxes explode. It is an old chestnut. The Bill deletes all the protections offered on animal welfare, and brings back something that I have not seen since I was a teenager—not terrible ’90s fringes or blue lipstick, but live animal exports. I never thought that we would have to debate that again in the House, because I thought that there was agreement that we would not see that practice return. The Bill, however, deletes the very laws that made that debate go away and made clear what we wanted to see as a country. The Minister may say to us that the Government have no plans to remove such laws, but at the moment, the only plan on the table is the plan to remove them. That is the challenge here.

My hon. Friend the Member for Leeds North West did an incredible job in setting out the range of laws at risk. Supporting the amendment would be the first step towards taking 3,500 laws, possibly more, that would need to be rewritten, off the table. There is common agreement. Perhaps I am naive, but I have yet to meet anyone in this place who wants to reinstate live animal exports, or battery farming for hens. Those are settled matters, and yet we will now have to find parliamentary time for them, unless we can pass the amendment and take those issues off the table.

I am sure that there were firm words among Ministers after the Statutory Instrument Committee that sat yesterday. My hon. Friend talked about REACH and the chemicals regulations. Those chemicals regulations, which were part of another piece of legislation, were not known to DEFRA officials. The Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Taunton Deane (Rebecca Pow) said she knew that at least 800 pieces of legislation were up for grabs, but what that means in terms of the ability to do business next year, let alone in the years to come, is questionable. Taking major pieces of legislation off the table, including some that are not on the dashboard but we know will be affected by the Bill, will make the Government’s life simpler.

I plead with the Government to see sense, if not for the ducks in my local park, Lloyd Park, which are struggling, then for the hens and sheep that were being exported when I was a mere 15-year-old. Involvement in politics was then just a glint in my eye, but I was getting up early to shout at the docks. Those issues are not contentious, because there is a commitment to animal welfare across the House. Why would we put them up for grabs? Why would we raise the prospect of reducing our standards, or having to spend parliamentary time to rewrite regulations on them? Why not take those regulations off the table and move on? The point of the amendments is to take off the table the things that we all thought were not contentious. I suspect that our environmental colleagues who are listening in will hear this loudly.

If the Government do not do this, they are sending a clear message that they want to put these issues up for grabs, revisit old arguments, and water down animal welfare and conservation regulations, with all the chaos that will come with that. So many laws such as planning laws rest on those regulations. That is quite apart from the fact that colleagues in DEFRA are having nightmares about the effect on those 800 laws.

I hope that the Minister will give us some more positive news. She did not really take up my offer to suss out which employment protections the Government will absolutely keep, so that my constituents could be confident in supporting her, but perhaps she will do so on the environmental protections, and will reassure us that the ducks are safe and the killer shrimps will be defeated.

[Ms Ghani]

Hon. Members will not be surprised to hear that I will reject amendments 74 and 77. It has been an absolute joy to hear a new shadow Minister, the hon. Member for Leeds North West, who shadows DEFRA. I have a couple of powerful responses to make to his points, but I will need time to go through them; as he knows, I am not a DEFRA Minister.

I do not understand why the Opposition are trying to create a huge amount of fear. Fundamentally, that comes from their standpoint of being part of the anti-Brexit brigade. We are simply trying to finally finish the process finally. As Members know, because I have said it many times, the Bill is enabling legislation. The measures in it, including the sunset, will provide for UK and devolved Ministers to make decisions to review, amend or repeal their REUL as they see fit. Where Ministers see fit, they have the power to preserve REUL that would otherwise be in scope of the sunset. That includes Ministers in the devolved Governments. There is no need to have specific exemptions. I am responding directly to amendments 74 and 77.

Secondary REUL that is outdated and no longer fit for purpose can be revoked or replaced. Such REUL can also be restated to maintain policy intent. As such, there is simply no need for any carve-outs for individual Departments, specific policy areas or sectors. REUL across all sectors of the economy in the UK is unfit for purpose, and it is right that it be reviewed and updated equally in all sectors and in the same timeframe.

A point was made about scrutiny. Departments will be expected to develop and deliver plans that outline their intention for each piece of retained EU law. The Brexit Opportunities Unit team will work with Departments to draw up those delivery plans and to ensure that the legislative process proceeds smoothly. The delivery plans will be subject to scrutiny via the internal Government or ministerial stock-take process. More information will follow, including on how to factor such processes into statutory instrument timetables.

There is no doubt that this is a considerable amount of work, but we do not enter politics or Government to be work-shy. The work will definitely be done. The sunset empowers all to think boldly about these regulations, and provides an impetus for Departments to remove unnecessary regulatory burdens.

Turning to amendment 77, the Bill will allow Departments to unleash innovation, and will propel growth across every area of our economy. The power in clause 15 to revoke or replace is an important, cross-cutting enabler of reform. Exempting regulations associated with environmental protections from the power will reduce the genuine reform that the Bill sets out to deliver. The UK is a world leader when it comes to environmental protection. In reviewing our retained EU law, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. We remain committed to delivering on our legally binding target to halt nature’s decline by 2030. The Bill will not alter that. That is why we do not consider the proposed carve-out for environmental regulations to be necessary.

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[Alex Sobel]

It was interesting to see the proclamations by the right hon. Member for Camborne and Redruth on various aspects. I mentioned the Australia trade deal in my speech, and last week the right hon. Member was very derogatory about the terms of that trade deal for the UK and UK farmers. We are now hearing from him what really happened behind the scenes, and we are going to see an unfurling of some of the work that took place and the disagreements around the Cabinet table. I do not want to prejudge the speech of my hon. Friend the Member for Ellesmere Port and Neston, but we might hear about some of the consequences of the Government carrying on with this Bill. We might see some of the same commentary as that from the right hon. Member for Camborne and Redruth from other Members who have left ministerial offices. We have had a lot of churn recently, have we not?

[Stella Creasy]

Does my hon. Friend think this is also a live issue for current DEFRA Ministers? In the Delegated Legislation Committee yesterday on the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations, the Minister was not able to say what would happen with them, given that the regulations are based on legislation that is not on the dashboard in some areas and on it in others. She could not give a commitment as to what would happen to those regulations post 2023. As DEFRA has most of the regulation, does he think that DEFRA Ministers probably have the most to offer in terms of understanding why taking some of these regulations off the rule book altogether would make life a lot simpler for them?

[Alex Sobel]

I do not want to rehash the debate we have already had, but we were talking about maybe as many as 500 or more regulations not currently on the dashboard, with effects that we cannot predict. I would not want to be a Minister in the Government staring down the line at that, but that is exactly what Ministers in DEFRA are doing, so they have my sympathy in that regard.

The 20 sets of regulations that we want to carve out represent a small fraction of the canon of DEFRA legislation that the Bill could sweep away at the end of next year or leave at risk of being weakened. Amendments 74 and 77 list only a tiny sample of the protections that could be swept away because of the reckless and incompetent approach the Government have chosen to take with this Bill. There are hundreds of items of retained environmental law, in a complex web sitting within and alongside domestic legislation, some with significant case law attached to them. The Minister is making the argument that the amendments are unnecessary, but I am looking to the future progress of the Bill and seeing how that will unfurl and how many of these Bills will potentially be swept away, whether by the present set of Ministers or those who might follow.

Question put, That the amendment be made.

--- Later in debate ---

There is a choice here: Members can vote this down—as they probably will do—and place these important regulations in a form of purgatory, or they can vote for the amendments, remove them from the sunset and allow for a reasoned and considered process that ensures the vital protections enjoyed by our constituents will remain. If the Government are serious about their claim to be strengthening the protections and making the most of the opportunities facilitated by exiting from the EU, they will surely see that the amendment is nothing for them to fear at all.

[Stella Creasy]

We come to a list of things that surely leads Members of different parties to think, “Of course we’re going to retain these pieces of legislation. Why even give it a second glance?” I am absolutely confident that Government Members will say to us, “Don’t scaremonger. Of course people will still be able to get compensation if their flight is delayed.” The trouble is that we do not have from the Government anything like a list of what will exist post 2023. That is the challenge, as these are probably the pieces of legislation that our constituents rely on most of all, because they deal with people’s everyday transactions. They are matters about which people get extremely agitated, because it feels incredibly unfair if someone’s flight is delayed or they suddenly discover that they have bought something that is faulty. People expect to be able to get redress as a matter of course.

In a former lifetime, I had the sheer joy of being the shadow consumer Minister. I encourage all Members to come shopping with me—if nothing else, most employers try to get me out of the shop quickly by offering a very good deal by the end of the transaction, because I was involved in writing the Consumer Rights Act 2015. These sorts of requirements shaped that piece of legislation, and they did so with good reason, because where is the partisan argument about the Electrical Equipment (Safety) Regulations 2016? We may disagree about the impact of workers’ rights on our economy—clearly, we do. Government Members did not want to save bank holidays, and that is their call, but surely we all agree that somebody should be able to plug in a toaster and not have it blow up or cause them harm, and that having regulations is not onerous but sets a level playing field. Most businesses, which are good actors, want to be confident that they will not be undercut by somebody selling faulty goods.

I know that the hon. Member for Bosworth will be relieved to hear that the regulations do not cover charging cables for phones and iPads—so they can play as much music as they like. However, they do cover whether goods are of a certain standard. Having goods of a certain standard is surely not something that we want to put up for grabs, because if we do, over the course of the next year—assuming that we find time for all the DEFRA pieces of legislation and for working out whether workers’ rights will be replaced or changed—we will then have to find time to deal with all these pieces of legislation.

Members may feel more strongly about some pieces of legislation than others. As I say, not being able to get a refund when someone has been mis-sold something, or has experienced a delay, is a cause of high concern for many people. Often, it is something that they will come to their Member of Parliament about, so I would not want to be the MP explaining that I had deleted people’s right to compensation and did not know what was going to come next. I would be giving a green light—unusually for some of these companies, because many of them operate with red lights.

[Justin Madders]

It just strikes me that the idea of someone coming to their Member of Parliament and saying, “This isn’t what we asked for, and we would like a refund,” is what we are dealing with in the Bill. I do not think that many people who voted to leave the European Union voted to remove all the laws that we are talking about.

[Stella Creasy]

I would certainly be happy to refer them to any consumer champion, because I think they would have a very strong case that they were not getting compensation in reasonable time and in a reasonable format, which is obviously what the Consumer Rights Act—it is a piece of UK legislation, but it echoes the requirements—does.

There are other things on the list, which is not comprehensive but is authoritative—after all, we have been told that that is acceptable—about the sorts of things that surely we should all want to put beyond doubt, such as when people’s pensions are at risk. We have all had cases in our constituencies of pensioners whose pensions were put at risk. They may have worked for companies that went bust, and now they need protection. I absolutely want to take up the challenge about not frightening vulnerable people. The pension protection fund itself would not disappear, because that is part of UK legislation, but the challenge is that the Bauer and Hampshire judgments set out what that fund can do. The issue is not that there would not be someone to whom we could refer our constituents, but let us be clear: if we delete the relevant legislation and do not replace it, that organisation will start to query what it can do to help our constituents. That may mean that they end up with a lower level of compensation.

It could be the same when it comes to people having their flight or train delayed. The Delay Repay claims have given most people a level of certainty and confidence about their travelling, and I think we all want to see that reinforced—we all think people should have a fair deal. Why would we therefore spend parliamentary time rewriting something that works? Why would we put up for grabs the amount that people can be charged for using a debit card, when many of our constituents are trying to use them to manage their finances because there is too much month at the end of their money? Why would we do that?

Why would we again put the content of chocolate up for grabs? Come on. We have seen what happened to Cadbury; we have all tasted the difference. Anyone here knows the limitations of Hershey. Yet here we are again, rewriting laws that we brought in to protect things so that consumers could have confidence and go about their business every day. That is the point about all this. It is not about leaving the EU; that has happened. It is not about an objection to leaving the EU; that debate has happened. It is about an objection to deleting laws we all agree on, and the waste of time that the legislation creates, especially in terms of consumer protection.

Again, I offer the hand of friendship to the Minister, although I am sure she will bite it off with glee at this point in the afternoon. If she can tell us precisely what will replace the regulations listed in the amendment, and commit that our constituents will retain the protection of those standards, she will have my support. That is the purpose of the amendments. If she can tell us what will happen to the Representation of the People (England and Wales) Regulations 2001, she will have our support, because people want that certainty. The parts of EU law to which the amendment relates refer to those bits of everyday life where people do not want the headache of uncertainty. I hope that the Minister will take up that offer, finally, as we consider the third list of regulations.

Now that we have been through some of the laws in question, I hope the Minister’s colleagues understand what is at stake. This might be a process, but we must remember the impact of it and the uncertainty that it creates. There is a risk that Ministers and MPs will sign off a piece of legislation only to find themselves having to explain to their constituents, “Ah yes, I was told that there wouldn’t be a dilution of your rights to compensation, but the Minister came forward with a change and, like with those pesky EU regulations I said I could not amend, the Minister has told me that I’ve got to like it or lump it.” Remember, the Bill does not offer any scope for amendment. I do not think Conservative Members would want to be in that constituency surgery explaining to somebody that, if they have been done over by Mastercard, they have been done over, or that their chocolate will have to taste bitter. That would be a bittersweet conversation.

[Ms Ghani]

I urge the Committee to reject amendments 75 and 78. The issue of scrutiny has come up again, and I find myself repeating that, as well as the dashboard, Departments will be expected to develop a delivery plan to outline their intention for each piece of retained EU law. I will try to go through each of the points raised to satisfy some of the questions.

A question was raised about electrical equipment and toy safety. Our current product safety framework is largely a mix of retained EU law, domestic law and industry standards. As a result, it can be complex and difficult to understand. The Government remain committed to protecting consumers from unsafe products being placed on the market now and in the future. Although the Bill is unlikely to give us the powers needed to implement a new framework, we hope that the powers in it will make it possible to amend or remove outdated EU-derived regulations and give us the ability to make some changes to reduce burdens for business.

--- Later in debate ---

The Hampshire judgment was also raised. The Hampshire judgment is a clear example of where an EU judgment conflicts with the United Kingdom Government’s policies. Removing the effects of the judgment will help to restore the system to the way it was intended to be.

[Stella Creasy]

Will the Minister give way?

[Ms Ghani]

As I mentioned earlier, it is up to Departments and devolved Administrations as to what they would do on specific pieces of policy. The Bill creates the tools for Departments. Plans will be approved by a Minister of the Crown—I know that Opposition Members object to that—or a devolved authority where appropriate, and will be shared when ready, given that this is an iterative process that is still ongoing. I therefore ask the hon. Member for Ellesmere Port and Neston to withdraw the amendment.

[Justin Madders]

I think we got a real mix there of things that the Government intend to continue with, but also—I am particularly concerned about how this relates to the Bauer judgment—things that they do not wish to continue with. But the underlying theme, the stock answer or explanation, was that Departments will put forward their delivery plans in respect of these REULs in due course, and that simply is not good enough.

[Stella Creasy]

Given that the Minister would not let me intervene on her earlier, I want to clarify that she appeared to give us our first piece of evidence about what the Government intend to do with this Bill, when she said that they do not intend to continue with the Bauer and Hampshire judgments, which require pension protection funds to pay out half the value of people’s pension if their employer goes bust. Does my hon. Friend agree that we have finally seen, for the first time today, what the consequences of this legislation are? That is why we are all so worried: because protection for employees is being withdrawn by this Government. The Minister has just confirmed that—perhaps she wants to intervene to say that that is not the case, although that is what she said, and she does not look like she is about to get up. Does my hon. Friend therefore agree that at least now we have seen why we should all be so worried by this legislation?

[Justin Madders]

I thank my hon. Friend for that intervention. It has taken us perhaps five or six hours to get to that point. We now finally see why we are right to be concerned about this process, why it is important that we put in proper scrutiny safeguards, and why we want to see certain pieces of legislation exited from the Bill so that they are not lost. Pension protection is an important issue. My predecessor, the late Andrew Miller, did an awful lot in that regard when he represented Ellesmere Port and Neston. An awful lot of people in my constituency have benefited from the Pension Protection Fund. If we are to see a reduction, we will no doubt explore that with the relevant Department. For now, we will do our bit to protect these regulations and the others mentioned in the amendment by pressing it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Ms Ghani]

The hon. Gentleman might have been in Parliament longer than I have and might have sat on Committees longer than I have, but it is not unusual to amend pieces of legislation in Committee. I have known that in legislation from many Departments. It is not unusual; it is just the process that we are in.

[Stella Creasy]

Will the Minister give way?

[Ms Ghani]

Government amendment 4 clarifies the power to make transitional provisions for the sunset. Transitional provisions are provisions that regulate transition from the existing law to the law as it will be amended by the Bill. For instance, transitional provisions could be made to ensure that laws that fall away after the sunset will continue to apply to certain types of ongoing contracts after the sunset date if the contracts were entered into on the basis of those laws applying. Consequently, the amendment ensures consistency for businesses and citizens following the sunset’s effects. That is highly important, given the role the Bill will play as a key driver for growth. I trust that Committee Members will support consistency and growth for British business and citizens, and I ask them to support these amendments.

[Justin Madders]

I will not speak for long. Will the Minister explain what the procedure will be, particularly for dealing with amendments to regulations under Government amendment 4? That is important. I think I understood the Minister’s train of thought, but if she could explain what that process will be and what opportunity there will be for parliamentary scrutiny, I would be grateful.

[Stella Creasy]

The Minister is not allowing questions, so will she provide clarification? It is absolutely normal to have amendments to legislation, but it is not normal to delete all the legislation and then try to amend in a lacuna. Will she clarify whether she recognises that these amendments need to be put forward because the legislation, as currently drafted, is not correct? She will know of other legislation that has had to be drafted—indeed, statutory instruments have come forward. What provision—what backstop or safety net—is in place, should something be deleted and should a change need to be made by this legislation in that absence? Will that law remain on the statute book, or will we simply see potentially thousands of amendments needing to be made but no legislation to be amended? If the Minister could take questions, she could probably reassure all of us on these questions. I do not think they are unreasonable ones to ask—she has raised the point.

[Peter Grant]

Before the comments from the hon. Member for Walthamstow, the Minister thought she was winning the argument. She said that there was nothing unusual in legislation having to be amended by the Government in Committee. That is exactly the problem. It is not unusual; in fact, it is almost inevitable. It is happening so many times in this 23-clause Bill, which runs to 30-something pages, but we are expected to believe that anything up to 4,000 pieces of legislation can be wiped out and that they will all be properly and adequately replaced, when this Public Bill Committee stage, which is allowing the defects in the original Bill to be corrected, will be removed from all of them. That is why this is such a reckless and cavalier way to go about changing the laws of these islands. We are not talking about one or two pieces of secondary legislation being introduced to replace or amend what was there before. We are talking about thousands of pieces of legislation needing to be enacted to replace a blank set of paper—in order to replace complete anarchy. Does the Minister now understand that that is why, with the best will in the world, the civil servants will not get them all right? If we go ahead with clause 1 and the rest of the Bill, as the Minister insists, there will be defects in the legislation that is put in place. Bits will be missed out that no one wanted to miss out. Businesses will suffer as a result.

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

Stella Creasy Excerpts

Committee stage
Thursday 24th November 2022 Public Bill Committees

[Justin Madders]

We can try.

I want to say a few words about the clause, which will fit in with the discussion we will have on the following clauses. All these clauses pertain to the future of our law after the removal of the legal effects of EU law. I will try not to repeat myself and to focus specifically on the terms of this clause.

I begin by stating the obvious: as we untie ourselves from the European Union, we will clearly need a new settlement of legal principles. Nevertheless, we ought to treat the clause with some scepticism and scrutinise the impact it will have on our country’s legal system. In doing so, we must consider why it was decided to take a snapshot at the end of 2020 in the first place.

When the country entered the transition period for leaving the EU, the potential for a legal vacuum to emerge rapidly became apparent, as the process of preserving EU legislation and EU-derived legislation made under section 2 of the European Communities Act 1972 began. Section 4 of the European Union (Withdrawal) Act 2018 was therefore designed to prevent such a legal vacuum once the 1972 Act was repealed, by catching everything that might have been missed and its legal effects.

I am saying that to highlight an important feature of the 2018 Act, which has been to maintain the smooth operation of our legal system while we formally left the EU. Clearly, it still has importance. Unless the Government are able to use the powers in clauses 12 to 15 to replace the effects of EU law exactly—although it is clear that they do not want to do that—we face the prospect of a legal vacuum.

I have a couple of questions for the Minister. First, does she agree that section 4 of the EU (Withdrawal) Act has provided an important function over the previous years in creating stability and certainty? Secondly, does she recognise the risk of a legal vacuum opening after 2023, and can she provide any assessment the Government have made of that risk?

As a matter of interest, I have just read on the front page of today’s Financial Times that a wide range of groups, from the TUC to the CBI, have written to the Prime Minister requesting that the Bill be withdrawn. One reason they give is that it will create a vacuum and a great amount of legal uncertainty. I suspect that the Minister has not yet had a chance to discuss the contents of that letter with the Prime Minister, but if she has, will she update us? [Interruption.] The Minister’s response suggests that she has not had that opportunity.

Such questions naturally lead us to the identification problem that we discussed on Tuesday. My understanding is that the dashboard sought to capture the examples under section 4 of the 2018 Act on retaining

“rights, powers, liabilities, obligations, restrictions, remedies and procedures”.

Due to the dashboard’s catch-all nature, however, can we be certain that all those have been picked up, given that even the Government admit that not all the regulations have been captured? How on earth can we be certain that serious vacuums will not be left by the removal of section 4 if we cannot be sure that we have identified everything affected by it? That is an important point.

Linking again to our debate on Tuesday about the timeframe in which such legal effects and legislative provisions need to be restated, replaced or revoked under clauses 12 to 15, we must not treat clause 3 in isolation. We must remember that what happens alongside the mountain of other pieces of EU legislation that need to be processed will be key to how the country moves forward. At the very least the Minister must try to offer us some reassurance—or, better yet, a plan that shows—that the Government have the matter in hand and will deal with all the legislative provisions and legal decisions before the 2023 deadline.

Overall, we agree that there has to be an end to EU supremacy in UK law, but we still have concerns about how that will operate in practice. We want to avoid a situation that the Government have known was coming for at least two years. I would be grateful if the Minister could provide some assurances to the Committee that action on the concerns that have been expressed by a wide body of representative groups is in hand.

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

Good morning, Sir George. I rise to support the comments made by my hon. Friend the Member for Ellesmere Port and Neston. I also think that the debate on the clause sums up some of the practical challenges with the legislation. The retained EU law dashboard has identified just 28 pieces of directly effective retained law under section 4 of the EU withdrawal Act—a mere amuse-bouche of laws that will be affected by the Bill overall. Given that the number is so small in comparison with the at least 2,500 that have been identified, and the possible 4,000, why could the Minister not show us what will happen next? After all, our debates on Tuesday were all about what would happen if we deleted every piece of legislation. There are no guarantees about what would happen next. Rather than assuming that all these pieces of legislation should go at the end of 2023, surely Ministers could commit to reviewing the 28 now and showing us the way ahead—whether some will be retained, amended or indeed abolished. Then the clause would not be required.

All of this does make a difference. For example, on Tuesday the Government gave their very first commitment on what will happen to one of the 4,000 pieces of legislation—the Bauer and Hampshire judgments about pensions. To remind Government Members, who may well have constituents coming to them about this, those are the requirements—the pieces of case law—that mean that if a company goes bust, people are entitled to at least 50% of their pension fund. The Government committed on Tuesday to abolishing those pieces of legislation, but they are affected by the clause.

The 28 pieces of legislation are not insubstantial; they could be the way forward for the Minister. Instead of requiring the clause, she could say, “We’re going to look at the 28 and tell you what we’re going to do with them,” so that people can have confidence that we have an administrative process for these pieces of legislation and the suggestion that there has been scaremongering can be put aside. She could say, “Here are 28 examples of what we’re going to do, and the fact that they are rights under section 4 of the EU withdrawal Act helps us to contain them as a piece of work.”

The Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019 are another of the 28. Given that the Government are getting rid of the Bauer and Hampshire judgments, thereby affecting the pension rights and protections of our constituents, could the Minister set out what might happen on that one? She was very kind on Tuesday to set out an example of what will happen to one of the 28. It would be incredibly helpful for us as a Committee to understand the impact of the legislation and to perhaps start, if not to allay our concerns—I think Opposition Members are concerned when people’s pension protections are being not just watered down but, frankly, abolished—then to understand what the Government’s intentions are in using these powers.

I simply ask the Minister to use the clause stand part debate to explain why the 28 pieces of legislation could not have been dealt with in advance of the Bill, given that they stand on the EU withdrawal Act, and to tell us a bit about what will happen to them, to give us an indication of what horrors are to come or perhaps to reassure us. Government Members want to use the term “scaremongering”. I use the term “accountability”. I am looking forward to what the Minister has to say.

[Ms Ghani]

It is curious that Opposition Members say they do not want to prevent Brexit or accept the supremacy of EU law, but then they come up with every which way to stop these things actually being delivered.

The matters saved by section 4 of the EU withdrawal Act consist largely of rights, obligations and remedies developed in the case law of the Court of Justice of the European Union. Many of those overlap with rights already well established by domestic law, and those overlaps can cause confusion. The Bill allows the Government to codify any specific rights that may otherwise cease to apply if they consider it a requirement.

A question was raised about whether we are ending section 4 rights; that is not the case. Section 4 of the EU withdrawal Act incorporated the effect and interpretation of certain rights that previously had effect in the UK legal system through section 2(1) of the European Communities Act 1972. Section 4 rights largely overlap with rights that are already available in UK domestic law, and it is domestic legislation where they should be clearly expressed. This Bill seeks to rectify that constitutional anomaly by repealing section 4 of the 2018 Act. That does not mean the blanket removal of individual rights; rather, combined with other measures in the Bill, it will result in the codification of rights in specific policy.

Ministers in each Department, which will be responsible for their own elements of the Bill, will work with the appropriate bodies to ensure that they share what they will be assimilating, repealing and updating. All of that will provide additional clarity, making rights clearly accessible in UK law. That is why I recommend that the clause stand part of the Bill.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4

Abolition of supremacy of EU law

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Paul Blomfield (Sheffield Central) (Lab)]

I wish to make a relatively brief point, anticipating what the Minister might say on the basis of her response to comments on clause 3. It is worrying, when we are trying to have a serious consideration of the Bill, that serious questions either from our Front Bench or from my hon. Friend the Member for Walthamstow are met with the suggestion that we are, in some way, trying to deny Brexit.

I think we need to be clear on this: we campaigned to remain in the European Union; the majority of Conservative Members campaigned to remain in the European Union; but we lost and we left. There is no going back; none of us is arguing for it—no rejoining the EU, no rejoining the single market, no rejoining the customs union. But there are choices in the way that we manage our future outside of the EU. That is what we are trying to deal with, because we want to make the right choices, and are worried that the Government are not.

I have come to this session from a meeting of the UK Trade and Business Commission, which is a cross-party, cross-industry body looking at the trade opportunities and trade implications of our departure from the European Union. Both the British Chambers of Commerce, which gave evidence to us this morning, and the TUC expressed huge concern about the uncertainty created by the provisions in clauses 4 to 7 and the potential for businesses and workers to get lost in a legal quagmire from which, as my hon. Friend the Member for Ellesmere Port and Neston says, only the lawyers will benefit. Given the current backlog of such cases in our courts, that uncertainty will last for some time.

Will the Minister address the concerns that were raised by the Bar Council, whose evidence I know she will have read? It warns about,

“creating uncertainty as to the meaning and status of such REUL by removing established principles by which it is to be interpreted, altering its status vis-à-vis other law, and nudging the courts towards departing from EU case-law that interprets it.”

I hope that the Minister will respond to the questions asked by my hon. Friend the Member for Ellesmere Port and Neston, because the evidence then says:

“We detect no sign that any assessment has been done as to the legal effect of those changes on the regulations concerned (despite their importance) and can therefore detect no policy rationale for those changes whatsoever.”

I hope that, in her remarks, the Minister will address those points.

[Stella Creasy]

My hon. Friend the Member for Sheffield Central is absolutely right. This is not about whether Brexit has happened. We all know that Brexit has happened. We have left the European Union, and, frankly, it reflects an intellectual insecurity about the legislation if that is the only response that the Government can come up with—if they cannot actually engage in defending their proposals but try to take us on to a completely different debate.

That matters because millions of people across the country are dealing with the consequences of Brexit on a daily basis, none more so than our friends and family in Northern Ireland. I rise to ask the Minister to put aside the constant talk about, “Well, if you disagree with this, if you want to ask these questions, it’s cos you didn’t agree with Brexit,” and to do justice to the people of Northern Ireland.

--- Later in debate ---

[Justin Madders]

I will first address the intervention of the right hon. Member for Clwyd West. The point of clause 4 is that it removes the ability of the courts to refer to precedents from any decisions that have been taken in accordance with EU law, so it is worrying that the right hon. Member makes such comments.

The Minister said that we must decide whether we accept the supremacy of Parliament. We absolutely do, which is why so many of the amendments that we have tabled are about giving Parliament back control, not handing power to Ministers or, in the case of this clause, handing power to lawyers and judges to decide how our law moves forward.

I thank the Minister for promoting me to a right hon. Member—that was very kind of her. She also said that new clause 8 would delay matters. It will not. If the Government are on top of things, which I would like to think they were, they should be doing this work anyway. They should be doing this analysis in a way that enables Parliament to scrutinise the effect of the Bill.

[Stella Creasy]

Does my hon. Friend recognise that the Minister did not utter the words “Northern Ireland”, and did not at all address the question of how supremacy will be resolved in Northern Ireland, which follows both EU and UK legislation? I see that she is being given a note, so perhaps she can do us the courtesy of responding to that question.

[Ms Ghani]

rose—

--- Later in debate ---

[Alex Sobel]

We will not push the amendment to a vote, but the Minister did not give us sufficient clarification. I am sure that when we progress we will continue to hear the opinions of other bodies in relation to retained case law. That is really important as the Bill progresses through the House and into the other place.

[Stella Creasy]

The Government might not listen to Opposition Members, but they might listen to the Office for Environmental Protection, which, after all, they set up. It said:

“In making it easier for courts to depart from environmental retained case law, the Bill is likely to lead to uncertainty as it will be unclear whether long-established precedents will continue to be followed. This could result in unnecessary, costly legal proceedings. Consideration should also be given to whether this could also result in a reduction in environmental protection (where protections have been established through case law) and how this will be addressed.”

Does my hon. Friend agree that those critical points need to be addressed?

[Alex Sobel]

Absolutely. Agencies such as the Environment Agency, Natural England and the Office for Environmental Protection use these regulations and case law all the time. They have evolved over time in many areas—water, nature and so on. There is now a real danger to those provisions, so I hope the Minister will consult with her colleagues in the Department for Environment, Food and Rural Affairs and ensure we are not unable to undertake regulatory and enforcement action on the environment.

--- Later in debate ---

[Alex Sobel]

I know from my brief in the shadow DEFRA team that some very important enforcement actions are extrapolated from European case law, because we were under the aegis of the European Court of Justice for a very long time. It is important that we are mindful of that.

[Stella Creasy]

Obviously the Bill also enshrines the idea that protections can only be watered down, because it says that nothing can be brought in that increases burdens. Of course, courts are free to set new precedents, but when this Bill is enacted only precedents that reduce protection can be set. That is why the Office for Environmental Protection is concerned.

[Alex Sobel]

I fear we may be straying into future debates. I will not take much longer—I take your lead, Sir George. We will have further discussions about burdens and regression, so I will not labour that point. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Ms Ghani]

The Government have already committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the Northern Ireland protocol. The UK is committed to ensuring that rights and equality protections continue to be upheld in Northern Ireland. I therefore ask the Committee to reject this amendment.

Article 2’s reference to

“no diminution of rights, safeguards and equality of opportunity”

demonstrates the UK Government’s commitment to ensuring that the protections currently in place in Northern Ireland of the rights, safeguards and equality of opportunity provisions set out in the relevant chapter of the Belfast/Good Friday agreement are not diminished as a result of the UK leaving the EU. The provisions in the Bill enable the Government to ensure that the retained EU law that gives effect to article 2 of the protocol is preserved beyond the sunset, or that an alternative provision is created to meet such requirements. The restatement power will also allow the UK and devolved Governments to codify case law and other interpretative effects where it is considered necessary to maintain article 2 commitments.

Clause 7’s provisions concerning case law do not apply in relation to obligations under the protocol. Section 6(6A) of the European Union (Withdrawal) Act continues to apply, so that our new test for departing from retained EU case law is subject to the rights and obligations in the protocol. The House already has its usual robust and effective scrutiny processes in place to hold Ministers accountable in relation to the Government’s commitments under the Northern Ireland protocol. In addition, these are bespoke arrangements in relation to the EU Withdrawal Agreement Joint Committee where the UK and EU jointly oversee each other’s implementation, application and interpretation of the withdrawal agreement, including the Northern Ireland protocol—for example, the publication of the annual report of the Joint Committee to aid Members’ scrutiny.

Adequate processes are already in place, and the introduction of a new statutory reporting requirement is not an appropriate use of Government or parliamentary time. I therefore ask the hon. Member for Argyll and Bute to withdraw the amendment.

[Stella Creasy]

It would be incredibly helpful if the Minister could clarify what she said about bespoke arrangements for Northern Ireland. Under article 2 of the protocol we have an obligation to uphold the institutions, including the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. Is she therefore saying that there are instances in which EU law will be retained because of the Northern Ireland protocol? Is she committing to upholding EU law where those institutions propose that it is part of upholding the Good Friday agreement? She said they were bespoke arrangements. Can she clarify that? It is quite an important point.

[Ms Ghani]

The preservation and restatement powers in the Bill or other existing domestic powers, such as section 8C of the European Union (Withdrawal) Act, will ensure that retained EU law that gives effect to article 2 rights is either maintained beyond the sunset or the alternative provision is created to meet such requirements. The delegated powers in the Bill, particularly the restatement powers, will provide the ability to recreate the effects of secondary retained EU law, including the interpretative effects of case law and general principles of supremacy where it is necessary to uphold article 2 rights. That provides a mechanism through which national authorities might implement article 2 obligations. As I said earlier, I asked the hon. Member for Argyll and Bute to withdraw the amendment.

[Brendan O’Hara]

I will not push the amendment to a vote, but we will return to it on Report. I remain completely unclear, given the timeframe, how EU law will be removed by the Bill, but be maintained and reaffirmed in the protocol. I am unclear how that actually works.

[Stella Creasy]

The hon. Member is making a fair point. The people of Northern Ireland deserve some clarity because, if the Bill takes away the supremacy of EU law, as we discussed earlier, but the Government are committing that there will be instances in which article 2 rights will be upheld, it would be helpful to understand what those instances are and what the process is. Who will determine what EU law can be retained? The Northern Ireland Human Rights Commission, for example, could be part of that, but it is not clear how the process works. Does the hon. Gentleman agree that we owe it to the people of Northern Ireland to set out that process now?

[Brendan O’Hara]

I absolutely agree with the hon. Lady. Such muddled thinking and the unintended consequences of pushing it through so quickly go to the heart of the Bill. There are consequences to setting a ridiculously unachievable sunset clause. The thinking time that should have gone into the Bill has not happened. Although I will not push the amendment to a vote now, I strongly urge the Government to work on it to be able to explain on Report exactly how the measure will work. It is far too important to the people of Northern Ireland to let it wither on the vine and hope it does not come back. This is hugely important, but I will not press it a vote.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

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

Stella Creasy Excerpts

Committee stage
Thursday 24th November 2022 Public Bill Committees

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

rose—

[The Chair]

Sorry, I call Stella Creasy.

[Stella Creasy]

Apologies, Sir George, I was waiting for an affirmative action—in the same way I am waiting for an affirmative version of scrutiny from this legislation.

I rise to support amendment 81 because it is the nub of the issue, isn’t it? This is exactly what taking back control was supposed to be all about. It was about giving this place the powers that it was claimed had been cruelly taken from us by being part of the European Union. It is a while now, if we are honest, since we had the Brexit debates, but I do not recall a single leaflet that said, “Taking back control to Downing Street. Taking back control to a civil service office that would advise a Minister to pass an SI.” Yet, that is exactly what this piece of legislation will do on thousands and thousands of laws that our constituents care about because they have depended on them existing for generations.

I totally understand the challenge for Government MPs. Whether they were elected in 2019 or before, their experience of this Government has been of stability—of confidence in every decision and every piece of legislation that has been introduced. So they have never felt the need to question things or to have a mechanism whereby they could have a voice. What I often hear them loudly saying is, “In Downing Street we trust”—

[Justin Madders]

Whoever is in it this week.

[Stella Creasy]

Whoever is in it at any point—this week, next week, come what may.

The point is that parliamentary scrutiny is not a bad thing. Those of us who are democrats think it is quite a good and healthy thing.

[Paul Blomfield (Sheffield Central) (Lab)]

My hon. Friend is making a powerful point. Does she recognise the way this procedure contrasts with the way these laws were originally made? Obviously, under the co-decision making in the European Union, laws are not made only by the Commission, which is characterised as the bureaucrats. They can be passed only with the active engagement and approval of the Council of Ministers, consisting of elected representatives from each member state, and the European Parliament, consisting of directly elected Members. Does it not appear that, when Government Members talk about taking back control, the democratic deficit that they once spoke of, pointing their fingers at Brussels, will now be pointed out here?

[Stella Creasy]

My hon. Friend has alighted on the fundamental challenge here. Obviously, it is a case of Council of Ministers—bad; individual Minister—no problem whatever. That seems to be what this Bill is doing and the process that MPs are setting up. As somebody who is hopeful that—not too long from now—Labour Members will be sitting on the Government side of this room, I still think it is a good idea for Back-Bench MPs to be able to raise questions, to table amendments and to have a voice. I thought taking back control was very much about saying that we did not trust Ministers when they joined a Council, but we did trust them when they had to face parliamentary scrutiny and to be in front of MPs who could ask them questions—difficult or otherwise, approved by the Whips or not. I know that my Whip, my hon. Friend the Member for North Tyneside, will catch my eye at this point. Amendment 81 would restore the scrutiny powers that we all agreed to in the EU withdrawal Act in the end and that were part of a process of giving people in this place more opportunity to influence what would happen next.

There is a practical challenge here. If we have all accepted that we do not even know which laws will be covered, because the dashboard will not be updated until next year, will all of us on this Committee be completely confident when a constituent comes to us and says, “You did X, but your Parliament did Y. Tell me the reason for that. Did you vote for that? Where were you when laws were passed that led to Facebook stopping working in the UK? Where were you when laws were passed that led to pension protections being deleted? What did you say? Did you vote for it? How did you represent me in that process?”—and answer there comes none, because the powers were entirely with Ministers, and the power of scrutiny, which MPs in this place could have saved and given to colleagues, was abandoned?

--- Later in debate ---

[Justin Madders]

The convention is of course that Ministers give way when asked to in Bill Committee, because that is the point of a Bill Committee—that we have the opportunity to scrutinise legislation and question the Minister on its intent. I think the record will show that that has not been possible on every occasion.

That is why this amendment is so important, because the Government are obsessed with keeping power for themselves. The idea that the decision to leave the EU was about taking back control was not about the people of this country; it was about Ministers in Parliament making decisions that they do not have to address the elected representatives of this country on and that they do not have to justify. They are hiding away from proper accountability. That is not what taking back control is about.

My hon. Friend the Member for Walthamstow said it is clear that Government Members have no scintilla of doubt about the intentions of the Government and are confident that nothing untoward will happen. Well, if the last scintilla of doubt has ridden out of town for them, it is certainly very much in the high street for us, because we are concerned about the Government’s intentions. We have plenty of reasons to be concerned that they will not maintain laws that we want maintained and that our constituents expect to see maintained. So we want to push this amendment to a vote.

[Stella Creasy]

Does my hon. Friend agree that it is quite worrying that the Minister is conflating scrutiny of the Bill, and Opposition Members raising concerns about the process set out in it, with scrutiny of the subsequent statutory instruments that will be laid by Ministers under the Bill to address the 4,000 pieces of legislation that will be deleted by it? The Committee is scrutinising the Bill itself, not its impact. That the two are being conflated—the idea being that no further scrutiny should be required—is troubling. We do not know what impact the Bill will have, only the powers that it asks for. Does my hon. Friend agree that separating out those two things is important in taking back control?

[Justin Madders]

I agree, and I hope that by the time the Bill reaches its conclusion we have clearer answers on how Parliament will be able to properly scrutinise many of the powers that the Government are awarding themselves in the Bill. I will press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[The Chair]

I call—[Interruption.] Oh, the hon. Member for Yeovil is leaving.

[Stella Creasy]

I have a horrible feeling that it is because of something I am about to say. I rise to support amendment 82. To go back to the theme of this afternoon, if we are taking back control, then surely control should rest with this place. That means that this place needs the relevant information and powers to do its job. Amendment 82 would require consultation on any restatement of retained EU law, including on whether it affects rights and protections.

The right hon. Member for Clwyd West will find that amendment 82 finally satisfies his concern that we are all scaremongering. If we are scaremongering, it should not be a big deal for Government to restate and confirm that the laws they are replacing will not change any protections; that will reassure those of us who might otherwise trouble vulnerable people.

Amendment 82 does two things. First, it helps with the reality, which is that no Government—shock, horror!—is perfect. No Government get everything right all the time, so sometimes, with the best will in the world, and the best grace in the world, corrections need to be made. We have all sat on Delegated Legislation Committees to do that.

Consultation on draft regulations will help identify minor issues, unintended consequences and drafting errors before a law comes into force; that ensures that it is better legislation before parliamentary time is committed to it. We agreed on Tuesday that this would take 4,000 hours of parliamentary time—267 days, if we sat 24 hours a day. The Minister looks surprised at that; I hope she has done some maths on how we will pass all these SIs before the deadline in the Bill. It will require some parliamentary time, at least.

Consultation can be incredibly helpful. It can identify quirks, and experts come up with points. We might have strong views on workers’ rights, but SIs will come up regarding standards, and there are experts out there who spend their lives being obsessed with electrical standards. Surely asking them to double-check what we have written down would be good.

Restatements are subject to less scrutiny, because they should not make substantive changes to regulations. That takes me to my second point, and the more substantive—dare I say it, “conspiracy, rather than cock-up”—moment in all this. It would be simple and straightforward for the Government to affirm that there will be no change in protections or rights if they did not intend to use the powers in the Bill to water down workers’ rights; to reduce environmental protections that we all believe are important; or to reduce fundamental consumer protections that resolve knotty problems, such as whether, at this time, when everyone is trying to book a train, we will get compensation from Avanti. We live in hope. Why would the Government not commit to doing that, and reassure us all? All amendment 82 does is hold the Government to the pledges that they are making, and ensure that every single time a piece of legislation is brought before the House, it does what it says on the tin. I have forgotten the name of the company I am thinking of. It is not Dulux; it is the other one—the one that has to do with paving.

[Justin Madders]

Ronseal.

[Stella Creasy]

Ronseal, that’s it; I am showing my age. This should be a Ronseal moment—it does what it says on the tin. I have a horrible feeling that the Minister will reject the amendment. I hope that she recognises that the concern comes in when the Government reject relatively benign proposals, such as the suggestion that they should simply say, “Yep, this legislation is like-for-like; it does not water down protections.”

As we saw on Tuesday, the Government have already started to decide, in private, which pieces of EU retained law they will not continue with, so we know that some things will change. Some legislation will fall, and we understand that; the whole point of leaving the European Union was to have the power to reject things. Knowing what will or will not be taken out is surely the epitome of taking back control. Each of us should be able, in our constituency surgeries, when we are inevitably asked about a piece of legislation and its impact, to say, “Ah, yes. Well, that is where this decision came from, and this is what we were told at the time.” Parliamentary scrutiny, done well—even done at all—is taking back control, so let us see some of it in this Bill, for a change.

[Peter Grant]

I rise to speak to amendments 55 and 56 in my name and that of my hon. Friend the Member for Argyll and Bute. This is an attempt to, once again, restrict the Executive’s power grab and to limit, to some small extent, the extent to which the Government are taking powers away from this Parliament and for themselves. It is an attempt to limit the use of Henry VIII powers.

First, the amendments seek to remove subsection (5) to clause 14. I make no apology for raising this point every time I see such a provision in any legislation. It is a bad idea to allow a Minister of the Crown to change any Act of Parliament that they fancy without having to present a Bill in the House of Commons that amends it. The whole House should need to approve the change, after giving it appropriate consideration, and after every single Member has had a chance to comment on it. Subsection (5) essentially seeks to do that. Interestingly, its text is now fairly standard in Bills featuring the Henry VIII powers that the Government are putting through. At some point, the Government spotted something that worries them. They have discovered a part of an Act of Parliament that they are terrified a Minister could ever change, so they have tabled Government amendment 14 to stop that happening.

--- Later in debate ---

Given such a depressing record of endemic delay and of blithely ignoring legally required deadlines, we feel it is necessary for the Bill to be clear that no action can be taken to revoke or replace existing environmental protections until DEFRA has at least completed the work it already has on its overloaded plate. Amendment 94 would therefore require any revocation or replacement to lead to an increase in environmental protection; for the OEP and equivalent devolved bodies to be consulted, and any advice published; for no revocation or replacement to be made before the statutory policy statement on environmental principles has been laid before Parliament or the relevant devolved legislature; and for no revocation or replacement to be made until the legally binding targets required under the Environment Act 2021 have been published. Those targets are now, by my count, 25 days late and counting.

[Stella Creasy]

We come to the rub of the matter. When Brexit happened, we were told that we wanted to make our own laws. Any of us who were concerned that that might lead to a reduction in standards or protections were told we need not worry: being out of the EU, which was holding us back from making our own laws, was also holding us back from having higher standards.

Fast forward to 2022 and clause 15, and we know the truth. The clause writes the obsession with deregulation into law. If the Bill passes in its current form, all that our constituents can look forward to is the slow trickle of their rights being watered down and washed away—all in the name, allegedly, of reducing burdens on business. Let us be very clear: business does not want a no-regulation environment. That is a recipe not for competition, creativity and entrepreneurship, but for bad actors running riot over well-established industries and ruining entrepreneurship and creativity. Business wants better regulation. It wants good regulation.

When a law talks of a “regulatory burden”, we know that it does not speak to our economy; it speaks to an ideology that is holding this country back. At a time of economic boom, that would not be a sensible measure. At a time of economic crisis, it is genuinely destructive. Clause 15 means that all the things we were told during the Brexit referendum about higher standards were not true. It means that the promises that environmental protections would be better if we left the European Union will not be kept.

For the avoidance of doubt, that is not an argument about returning to the European Union or undermining the referendum, and nor is it saying that we should not have left the European Union—that debate has been had. It is an argument for holding to account all who claimed during the referendum campaign that somehow things would be better. The Bill demands that they must not be, because it insists that a regulatory burden cannot be created, and what it defines as a regulatory burden is a better standard.

The amendments in this group are therefore designed not just to hold to account all those Brexiteers who made such rash claims, but to protect the right of the British public to have the standards that they want, especially when it comes to the environment, workers’ rights or consumer protections. On Tuesday, Ministers spent much of the time telling us about their record of improving our legal standards and the rights of our constituents. Indeed, the Minister said:

“The UK regime sets some of the highest standards of consumer protection in the world, and this will continue to be the case.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 168.]

This clause means that that is not necessarily the case.

The clause says that we cannot improve our consumer protections. Indeed, we have already seen that from how the Government have reacted since we left the European Union. The European Union tried to bring in various regulations about sustainability of goods—frankly, about ensuring that if someone is sold something, it is not tat. Our Government have refused to implement those regulations. Indeed, if the Bill is passed as drafted, we could not introduce them. In this brave new world, we could be sold as much tat as we like and not know that it is tat, all because the Government are determined that deregulation is what the country wants. Again, that is not something I ever saw on the leaflets that came out during the referendum campaign.

Amendment 85 deletes the ratchet provision, and amendment 86 is consequential to it. Between them, the amendments would allow Ministers to replace existing retained EU law with more stringent measures to allow us to have the higher standards that we all say we want on environmental issues, so that we can protect and conserve our precious species—dare I say it, even the killer shrimp. That would help to make the promise a reality.

The Minister might suggest that new burdens should not be pushed through without consultation, and that the minimal parliamentary scrutiny given the potential impact is not a problem, but deregulation is not value-neutral. The loss of a protection can and will create as much of a burden for businesses as not having a burden would do. When we open the door to lower standards, we open the door to bad actors. Good legal protections for workers’ rights, consumer rights and environmental rights help to ensure that the market is fairer. They give businesses certainty and encourage creativity, because they allow people to plan without worrying that they will be undercut.

Given that, the Minister needs to be clear about the definition of a burden in what the Government are doing. For example, is it a burden for a business to pay new parents during their parental leave, regardless of how long they have been employed? In that case, is it deemed undesirable? Is it a burden to have to record whether any materials known to be harmful to human health are involved in a cosmetic product, and therefore is it something undesirable? Are rules governing how many hours employees are allowed to take off possibly a burden? Is reporting on the ethnicity pay gap in an organisation a burden, and therefore something deemed undesirable by the Bill?

If we are reviewing all retained law—it is debatable whether we even have the time to do so in the timetable set out by the Government—we should use the opportunity to usher in the higher protections that Ministers have assured us are the Government’s ambitions. They are things that my and all our constituents deserve. Here are some of the places where, without subsections (5) and (6), Government regulations could improve rights and standards in the UK.

We could have stronger protections for agency workers, many of whom work in the creative industries and have been hit hard by covid and the cutting of our ties with the European Union. That is something that many musicians, actors and performers would benefit from.

We could have higher standards on equal pay. I was born shortly after the equal pay legislation was introduced in this country, and it is a source of shame for many of us that we still do not have equal pay. However, we could finally use the freedom that comes from taking back control to do that. The Government have fallen behind on their own commitments, and that is nothing to do with retained EU law—they failed to publish a report on the gender pay gap, which we were promised. We could use this gap and the fact that we are abolishing all the existing laws to bring in higher standards. On Tuesday, the Minister spoke passionately on how she has been supporting those campaigns.

We could bring in the legislation sponsored by the right hon. Member for Basingstoke (Dame Maria Miller), and ensure that pregnancy and maternity discrimination does not happen in this country.

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

Stella Creasy Excerpts

Committee stage
Tuesday 29th November 2022 Public Bill Committees

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

Good morning, Sir Gary. It is a pleasure to serve under your chairmanship this morning on this Bill. You have missed some real treats, I venture to suggest, about the future of decision making in this place.

Members who have been on this Committee for the whole marathon rather than the last couple of miles will know that Opposition Members have been raising consistent concerns about how we do what we were all promised we would be able to do—take back control. The amendments before us this morning are about exactly that, because one of the central concerns that we have about this legislation is that it does not take back control to the British people; it simply takes back control to the back rooms of Downing Street and Departments. These provisions, these amendments, show why that concern is merited.

All of us have sat through statutory instrument Committees in our time in Parliament. It is a joy to receive the message, at the last minute, that you have been selected, Sir Gary, for what pleasures—what delights—await you and what information you will learn on one of those Committees. But they are a vital part of our parliamentary scrutiny process. After all, they offer the opportunity for Ministers to set out clearly the purpose behind any amendments; the recognition that not everything needs to be debated on the Floor of the House; and clarity about the Government’s thinking. Many of us who have sat through court cases will recognise how important that is when it comes to the application of the law.

As we have discussed previously in Committee, this legislation will delete overnight potentially 4,000 laws. It could be more, or it could be slightly less—who knows? We probably should know before we pass the Bill. We have had that debate and the Government still do not think it is important, but they have always told us that they wanted to take away unaccountable European bureaucrats and give us the opportunity to have British bureaucrats making legislation. The amendment challenges that process. It would give back to us, as parliamentarians, the responsibility for holding the Government to account.

--- Later in debate ---

[Stella Creasy]

Perhaps, then, the Minister will publish and confirm for all of us who have been on the Committee—he is new to these debates, but I am afraid he is going to hear this concern repeated at length—what comes next. Without clarity over what comes next, it is difficult to be confident that the legislation will not be a destructive disaster. I see he is already enjoying the fact that he is on duty today.

Having this power only for revocation undermines other powers the Bill gives to Ministers, because it is a power both to ignore and to amend legislation. Taking back control and returning it to the back rooms to allow Ministers to write legislation and then simply put it before us in a “like it or lump it” proposal is not really taking back control.

I also venture to say that it is worth ensuring that we have this procedure for all forms of legislation that are affected by the Bill—not for some grand political design so we can have these wonderful debates, but because, as we have already seen with this Bill, not everything is going to be perfect. Departments make mistakes. Drafting can contain errors. I am reminded of the tale, which is completely true, of the Belgian legislature that managed to put a recipe for asparagus into Belgian law because it was cut and pasted into legislation by accident. That genuinely happened—I am sure the Minister will google it—in 2021.

Statutory instruments give us an opportunity to pick up drafting errors, as well as to hold Ministers to account, and to challenge and query legislation—for example, one of those so-called technical amendments, although we know the Bill represents not technical amendments, but, potentially, serious changes to rights, rules and regulations that people have relied on and recognised for generations. Having such a procedure would give us the chance to identify actions, and possibly to identify the asparagus.

If the Minister will not accept the amendment, he is saying two things: first, that taking back control is not about Parliament, but simply about the back rooms, and, secondly, that we never get things wrong. We have all met in life individuals, and perhaps even organisations, who say, “I never get things wrong,” and we know that that is the most worrying thing that anybody can say. Drafting errors are part and parcel of trying to get right even one or two pieces of legislation, but the Government, potentially, are setting us up to try to get 4,000 right to replace the laws they are deleting overnight.

Statutory instruments and the use of processes and amendments are an important part of the process of trying to ensure that that is done with the greatest possible skill. Removing those powers, or not clarifying that they are part of those processes, and giving Ministers the opportunity to decide whether they want to put themselves up for parliamentary scrutiny is like letting contestants in “The X Factor” avoid the judges’ houses stage. This all forms an important part of the process.

I have a horrible feeling that the Minister is not going accept the amendment, so in responding to the queries and questions we have raised, and in reflecting on why the amendment has been tabled, will he consider why—when we are discussing potentially significant and meaningful changes, and when we know he can only water down regulation because the Bill says that regulation can only be something that does not create a burden—he believes our constituents should be denied that representation and that voice in the process? That is what not including such a provision, or not having any form of it, means.

We saw that in the pandemic, when statutory instruments were not receiving appropriate scrutiny. In December 2020, a new set of covid restrictions that would have criminalised a child going to school in tier 4, despite schools remaining open, were implemented without any parliamentary scrutiny. In that case, due to the extraordinary public scrutiny these regulations faced, the issue was finally identified before the schools returned from the Christmas break for one day. Despite what they might think, however, it is not normal for commentators on Twitter to go through legislation at this level. Such errors are not minor—they are not just asparagus—but could have real life implications. They happen and they happen in this place, and not having proper scrutiny of SIs is the foundation of such errors.

I hope the Minister will do more than laugh at the asparagus. I hope he will act on these concerns and finally agree, if not to this amendment, to the tabling of the Government’s own amendment in the other place to ensure we finally take back some control. I say to my colleagues on the Government Back Benches that at some point, somebody will turn up in their constituency surgeries asking about the outcome and implication of this legislation, and they will have to say, “Well, I didn’t vote through any changes. I did not recognise the problems with the sunset. I was pretty confident about not knowing what laws this would affect and I did not even vote through any powers to be able to scrutinise what happens next. I just thought it would all be fine because this Government never make mistakes.” It simply will not wash.

[Graham Stuart]

I urge the Committee to reject amendments 88 and 89. Alongside the other powers in the Bill, the power to revoke or replace in clause 15 is an important, cross-cutting enabler of reform in the Bill. The power to update in clause 16 is an essential, ongoing power that will facilitate technical updates to retained EU law to take account of changes in technology or developments in scientific understanding. We recognise Parliament’s important role in scrutinising legislation, and the Bill ensures the appropriate scrutiny of all amendments and revocations of retained EU law using the powers in the Bill, including the powers provided for in clauses 15 and 16.

When discussing matters of scrutiny, I feel it is important to note the negligible scrutiny that most of the legislation we are discussing today—with such high-falutin’ language from the Opposition—received when it was created. When our democratically elected Government of the people of the United Kingdom take decisions, for which they are accountable at the ballot box, that is what I mean by taking back control. The people who are elected are responsible for what happens. That is what we have, and we are accountable at the ballot box. When they go to the ballot box now, British people will know who to hold responsible: us. It is not some pooled whatever system in Brussels; it is here in the United Kingdom. Power sits within this legislature, which is elected by the people of this country; it is not about precisely where the powers sit within our legislature. That is why it seems ironic that the Opposition parties had so little concern when powers were exercised on the other side of the channel, but apparently it is outrageous when those powers are exercised here by a democratically elected Government.

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[Alex Sobel]

I want to just pick up on the idea that before 2016, or before early 2020 anyway, the regulations that we are talking about were somehow just created out of thin air—that an EU Commissioner decided one day that that was the regulation and that was it, and suddenly it was law in this country. That is a long way from the truth. The regulations had to go through the Council of Ministers, on which a UK Minister sat; they had to go through the European Parliament, where UK MEPs sat and provided scrutiny; and then they had to go through this House and the whole process here in the UK Parliament. When they related to devolved bodies, they also had to go through the devolved Administrations. I do not understand the argument that somehow there was a lack of scrutiny and process before, and now there is proper scrutiny and proper process. What our amendments would do is introduce the affirmative procedure.

[Stella Creasy]

Does my hon. Friend agree that there is a heavy irony in a Minister who refuses to take interventions and to be held accountable for what he says suggesting that nobody should be worried about the details of parliamentary scrutiny, who then cloaks himself in an argument that somehow the scrutiny mechanisms within the European Union were not acceptable?

[Alex Sobel]

That is a theme running through the whole Bill. First, Ministers want to take powers for themselves—for the Executive—and away from Parliament. I understand that the Executive in this country is elected, at least in part—that is, down at this end of the building. Secondly, even in the microcosm of this Bill Committee, this is the third part of the Bill on which Ministers have refused to take interventions from the Opposition. They are not prepared to allow relevant scrutiny, which creates an even stronger argument as to why we need protections.

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[Justin Madders]

It is worth spending a little time on schedule 3 because it is the engine underneath the dashboard of the vehicle that will drive us off the cliff edge at the end of next year. It gives the Government the ability to use regulations to carry out the heavy lifting required by the Bill. As we have discussed many times already, we know the potential ramifications of that for the huge range of protections that our constituents currently enjoy and for the lack of parliamentary oversight that there will be in that process.

We have said all this before, but the broad changes that will be carried out under the regulations will mainly fall under the negative procedure. Offering only the affirmative procedure to a small proportion of the changes envisaged by the Bill falls far below the standard of scrutiny that we would expect. When one considers the sheer number of regulations required to make the changes, which we have talked about, and of course the risk that laws will fall by default because the relevant Department has not identified them, the concerns over lack of scrutiny multiply.

[Stella Creasy]

Does my hon. Friend agree that what is so critical is that we depend on Ministers knowing what is affected and what is not? I am struck by the fact that the Minister tried to tell us on Second Reading that airline safety rules would not be included and therefore we did not need to worry about the regulations. In fact, subsequent written parliamentary questions have confirmed that the SIs around airline safety were part of the Bill and therefore not contained in the Civil Aviation Act. Does my hon. Friend agree with me that making sure the engine underneath is roadworthy is perhaps one of the most critical things we can do in Committee, given that Ministers themselves perhaps should not be at the wheel?

Retained EU Law (Revocation and Reform) Bill

Stella Creasy Excerpts

Report stage
Wednesday 18th January 2023 Commons Chamber

[Ms Ghani]

I think many people coming into the debate today think that this is the start of something, but this process has been in place for more than 18 months, and DEFRA has committed to maintain or enhance standards. The constant misinformation given out over what is happening on the environment is simply incorrect. DEFRA has already taken decisive action to reform areas of retained EU law and it already has flagship legislation on our statute book, including the Environment Act 2021, the Fisheries Act 2020 and the Agriculture Act 2020, all on powers that the SNP wants to give back to Brussels. The Environment Act strengthens our environmental protections while respecting our international obligations. It is simply incorrect to suggest that the Government will be weakening any of those protections. The Environment Act has set new legally binding targets, including to halt and reverse nature’s decline. Those targets, with oversight from the Office for Environmental Protection, will ensure that any reform to retained EU law delivers positive environmental outcomes. DEFRA will also conduct proportionate analysis of the expected impacts, so it is absolutely incorrect to misrepresent this Bill.

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

The hon. Member for Rochford and Southend East (Sir James Duddridge) talked about statutory instrument Committees. I think all of us have sat on statutory instrument Committees, where we know that it is a question of like it or lump it when it comes to what is being proposed. Under this Bill, Ministers will have powers over key issues that our constituents care about. The Minister talks about the dashboard and admits that it still needs to be updated. As a matter of good democratic practice, will she give us, here and now, today, the exact number of laws covered by this Bill, so Members of this House can at least have some sense of the task that they are voting for? If she cannot tell us how many laws are covered, it is definitely not clear to us how any of us can influence them.

[Ms Ghani]

The hon. Member was very astute in Committee, and we spent many hours together discussing this. The dashboard is public. It has had more than 100,000 views to date. I was on it only last night. It has thousands of laws on it, and it will be updated again this month. There is a process within each Department, which is why a unit has been established to work with each Department across Whitehall. Every EU law that is identified will be put on the dashboard. So it is public, it is accessible, and all the information is out there.

I must just respond to another point that the hon. Member raised, once again, about scrutiny in this place, because it is being misrepresented—[Interruption.] Unfortunately, it is. The Bill will follow the usual channels for when laws are being either amended or revoked. The Leaders of the two Houses will meet and the business managers will take a decision. The Delegated Powers and Regulatory Reform Committee in the House of Lords has already said that it is comfortable with the way the Bill will progress and the laws will be scrutinised, and the European Statutory Instruments Committee has said that it is comfortable with the way the laws will be scrutinised and assessed. So there is a process in place, as there was for a no-deal Brexit. The crunch is: if you do not like Brexit and if you did not like the way the Brexit vote that took place, you are not going to like any elements of this Bill.

--- Later in debate ---

[Ms Ghani]

We are working across Departments to cover laws that will either be assimilated, amended or revoked. We are finding that a number of those laws are obsolete, and the fact we are still identifying them is good. We are putting them on the dashboard as soon as we can, and we will update the dashboard again this month. It is right that we conduct this exercise to know where we are and to ensure that we refer to UK law where we assimilate, and that we amend it to improve the situation for our communities and businesses. If the laws are not operable in the UK, we can revoke them.

The hon. Lady mentioned maternity rights, which is one of the unfortunate misinformation campaigns on this Bill. I struggle with the fact that colleagues are sharing misinformation, as people who may be vulnerable are made more vulnerable by such misinformation. The UK has one of the best workers’ rights records in the world, and our high standards were never dependent on our membership of the EU.

Indeed, the UK provides far stronger protections for workers than are required by EU law. For example, UK workers are entitled to 5.6 weeks of annual leave compared with the EU requirement of four weeks—we are doing better here. We provide a year of maternity leave, with the option to convert it to shared parental leave. The EU requirement for maternity leave is just 14 weeks—we are doing better here. The right to flexible working for all employees was introduced in the UK in the early 2000s, whereas the EU agreed its rules only recently and offers the right only to parents and carers—we are doing better here. The UK introduced two weeks’ paid paternity leave back in 2003. Who can remember then? The EU legislated for this only recently—once again, we are doing better here. I ask Members please not to hold up Brussels as a bastion of virtue, as that is most definitely not the case.

[Stella Creasy]

Will the Minister give way?

[Ms Ghani]

I will make a little progress.

Significant reform will be needed in other areas, which is why the powers in the Bill are necessary. The people of the UK expect and deserve positive regulatory reform to boost the economy. Via this Bill, we will deliver reform across more than 300 policy areas. We cannot be beholden to a body of law that grows more obsolete by the day just because some in this House see the EU as the fount of all wisdom.

--- Later in debate ---

[Stella Creasy]

I think everybody agrees that, as we have left the European Union, we need to look at the foundation of the laws that we have in this country. One challenge of this legislation is that, because we do not know precisely what laws are covered, we do not know the laws that we need to look at. Does my hon. Friend agree that people are concerned not because the law says “Europe” on it, but because it is about things such as maternity rights and employment rights? [Interruption.] The Minister is chuntering from a sedentary position. She needs to talk to her colleagues who, when we have asked about these explicit regulations and whether they are going to retain, replace or revoke them, have said that they do not know. They do know on other legislation. Does he agree that, if Ministers have made up their minds on some things but not others, they should be honest with the British public that they are asking us to give them the power to make that decision and take it away from this place? That is not taking back control.

[Justin Madders]

I am grateful for that intervention. That is exactly the problem here. If Ministers decide to remove laws, there will be no opportunity for us to challenge it, which is why we are concerned. The Minister told us in Committee that the sunset date was chosen because it is the quickest and most efficient way to enact retained EU law without taking up additional parliamentary time—so the Government are doing us all a favour by giving us less work to do.

In this context I refer to the written evidence of the Bar Council, which raised the alarm when it said:

“The setting of an arbitrary, and in all the circumstances, impractical sunset date, with the consequent and entirely unnecessary risk of the disappearance of rules of critical importance to businesses, consumers, employees and the environment (some of which, due to their sheer numbers, may only be missed once lost) without adequate consideration or any consultation, and conferring an entirely unfettered and unscrutinised discretion to Ministers to disapply or delay the sunset provision or not; as well as the attendant risk of rushed replacement legislation”.

That sums up exactly why we should be voting against the Bill.

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[Craig Whittaker]

First, I would like to put on record my support for this Bill. I fully understand the huge opportunities it presents for UK plc. I do not agree with those who believe this is a Bill to strip away rights and hard-fought-for gains in various legislation. Those who detract seem to forget that, when the UK was part of the EU, often, legislative change was led by this country to improve rights for all people in the EU, and it is because of this country’s input that many of these pieces of legislation are in place today in the EU. On that basis, there is no reason why we cannot enhance some of these laws further. This Bill will give us as a nation every opportunity to do so.

However, I would like to ask the Minister to ensure that, when changes are made, we take every opportunity to enhance laws beyond what we currently see. As well as doing that, can we ensure we have a swift mechanism so that when we do not get it right—in some instances we will not get it right—we can swiftly plug any loopholes? Today, I want to briefly highlight one sector that is being exploited not by the Europeans, but by far eastern countries as a result of us being too liberal—with good intention, I might add—from the outset after Brexit.

Currently, a member of the Chartered Institute of Trade Mark Attorneys who is EU qualified but does not currently reside in the EU, cannot practise on EU trade marks in the EU, or in this country for that matter. When Brexit happened, the only criteria we adopted to represent a client here in the UK was the need to have a UK address—so the criteria are different from those under which we traditionally operated. The change, while it had every intention of making the system more open, actually has brought huge unintended consequences, with tens of thousands of additional applications clogging up the system. We see far eastern companies and others setting up a PO box in this country, which counts as having a UK address. On the face of it, that does not seem to be an issue, until of course you need to contact them, which you cannot.

Prior to Brexit, if a trade mark was breached in this country, a company would employ a trade mark attorney, who then would negotiate with the company or the attorney of the company breaching the trade mark or trying to apply for a similar trade mark. An agreement generally would be reached before having to go to court and the cost to UK business was more of an irritant than a substantial cost. Now we have a multitude of PO boxes where a company’s attorney cannot even get a reply by email from those so-called companies. That means it has to go to court on virtually every occasion. That is many times more costly for UK companies, not to mention the huge amounts of frustration and irritation that comes with the current process.

To highlight how huge this issue is, these foreign-based firms with PO boxes now account for 39% of all UK trade mark applications at the UK Intellectual Property Office, compared with just 19% prior to Brexit in 2019. If we are not careful, we will have a situation where trade mark-intensive industries, which by the way account for £770 billion of our GDP each year, may be completely undermined by what appears on paper to be a good change of legislation, but which in reality has the ability to totally undermine the sector and a huge part of our GDP.

Without taking any more of the House’s time, I would like to ask the Minister to reiterate what safeguards will be in place to ensure unintended consequences, such as those happening to the trade mark and intellectual property sector, do not happen. What can the Minister do to ensure we have a system in place where legislation can be changed quickly, as in the case of CITMA, when we totally miss the unintended consequences?

[Stella Creasy]

I rise to raise amendment 36, tabled in my name and in the name of the right hon. Member for Haltemprice and Howden (Mr Davis) and many other Members across the House.

As far as I can see, there have been three responses to the Bill in Parliament. First, there are those who have not paid attention because—let’s face it—many years on from the Brexit referendum still anything that involves Europe is cold cup of sick territory. That is understandable but not excusable because it means that those people have not woken up to the fact that this is nothing to do with Brexit and everything to do with an audacious ministerial power grab.

The second group are those who have read the Bill and are completely happy with the idea that the Government should just hit delete on all legislation with the word “Europe” in it, with all the confusion, chaos and complications that will cause for our constituents, because it is a price worth paying. That is not understandable, but it is excusable, because they do not see the laws at stake here—they just see the word “Europe”. There is an honesty in being so hellbent on the idea that anything we have ever shared with Europe is bad and it does not matter whether people value it—employment rights, environmental protections, consumer standards, flight safety rules. For them, if the choice is cake or death, it is death every time.

The third group of people are the people I am trying to appeal to today. They know this is not the right way to deal with retained EU law, but they hope that somebody else will step in and sort it out—the Opposition, other MPs, the Lords or perhaps even some divine intervention from the Lord himself. That is not understandable or excusable, because if the Bill goes through unamended it will stop us doing our job and it is our job to speak up for our constituents.

Today’s debate is not about how the Europeans make legislation. We have left the European Union. This debate is about exactly what taking back control meant, and about whether we will be able to speak up for our constituents on the issues that they care about. The emails in our inboxes show that they care. What was promised during the Brexit referendum campaign was not a sovereign Whitehall or taking back control in Downing Street, but that is exactly what the Bill does—and it does it in a way that is beyond parody. Personally, I think that the dashboard was created as a way to keep the then Business Secretary occupied putting random words into it. It is a farce that, as my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) said, we are legislating by website.

It matters that the scope of legislation is correct, which is what amendment 36 would ensure. Let me help Ministers out here, because they do not know how many laws are missing. We have already found many, including the Conservation of Habitats and Species Regulations 2017, the Conservation of Offshore Marine Habitats and Species Regulations 2017, the Marine Strategy Regulations 2010, the Marine Works (Environmental Impact Assessment) Regulations 2007 and the Welfare of Animals (Transport) (England) Order 2006.

In other cases, the dashboard lists regulations that are no longer laws, so some poor civil servant is going through them even though they no longer exist. The Financial Services and Markets Bill seeks to revoke at least four sets of EC regulations that do not appear on the dashboard. Two of the first five statutory instruments that it seeks to revoke are not listed on the dashboard either.

It is estimated that the process will cost the taxpayer tens of millions of pounds, at a time when we are all being told to tighten our belts because of the Government’s mismanagement of the economy. There are 3,500 pieces of legislation involved—that is the estimate, but there could be more, and I suspect that that is why the Minister does not want to be honest with us—in comparison with the 600 that we made during the Brexit process.

The Minister says that the dashboard will be updated, but it will be updated after the point at which we are being asked to approve the process. I will withdraw my amendment if Ministers can just give us a clear number and a clear list of what is in scope. I do not understand why that is an unreasonable proposition. Frankly, Back Benchers of any political party should be worried about the precedent set by legislation that allows the Government to give themselves an enabling power without defining its limitations.

That is before we even get on to who makes the decision about what happens next. Ministers want to tell me that I am scaremongering when I raise concerns about how they will use these powers—they say, “Of course we wouldn’t get rid of these laws.” Well, let us have a look at that scaremongering. I have been tabling parliamentary questions to try to understand what will happen to rights that all our constituents care about, such as paid annual leave, bathing water quality, sharps rules in hospitals, consumer protection from unfair trading, food hygiene and toy safety legislation. Those are surely things that Ministers would want to put beyond reach, so nobody could say that they might be revoked or accidentally lost down the back of the ministerial sofa, along with the 800 sets of regulations that have no ministerial leads and are quite likely to get lost in the process.

The problem I have is that Ministers are clear that there are some regulations that they are going to revoke and some they are going to keep. So they do know what they want to do with the power that Members are going to hand them; they just do not want to be honest about it. Why do they know that they want to keep the regulations on bird flu, but not those on maternity and paternity leave? The Minister ought to talk to her colleague the Minister for Food, Farming and Fisheries, who wrote back to me clearly saying that the Government were reviewing that.

That is the problem: Conservative Members may trust their Government colleagues to do the right thing, in the same way that they might trust a 17-year-old when they ask for the keys to a Porsche “just to polish it”, but those of us who have been here and seen Governments of different colours, and the temptation that comes with ministerial power, know that the point about taking back control was parliamentary sovereignty. That starts with knowing what we are being asked to hand over: we are being asked to hand over oversight of an unknown number of laws. That is what amendment 36 asks for clarity on.

We also have to hope that our colleagues in the other place will make it clear that we can have influence—and not just in like-it-or-lump-it statutory instrument Committees; don’t kid anybody who has sat on one that they are a good or effective version of parliamentary scrutiny—and that we can speak up for our constituents. It may feel like cold cup of sick territory when we see something with the word “Europe” in it, but with all the rights and regulations up for deletion under the Bill, I promise that our constituents will not forgive us if we do not stand up for parliamentary sovereignty and support amendment 36.

[Mr Rees-Mogg]

May I begin by thanking the fantastic Bill team, some of whom may be listening to our proceedings this afternoon? This was an extremely difficult piece of work to pull together. The hard work that they have put in to achieve that in a timely way shows, it has to be said, the British civil service at its best. I am sometimes quite critical of the British civil service, so it is nice to be able to put on record in Hansard my grateful thanks for the deeply impressive work that has been done.

The Bill is being enormously overinterpreted by Opposition Members, and—it has to be said, as my hon. Friend the Minister did—mainly by people who never wanted to leave the European Union anyway. I think the laws of physics are being rewritten by the opponents of Brexit, because as far as I am aware, things do not expand in black holes; that is rather the point of them. Things are sucked in, and even light is trapped by the gravity.

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[Mr David Davis (Haltemprice and Howden) (Con)]

I will be brief. My arguments will be simple and they will go straight to amendment 36.

When the right hon. Member for Leeds Central (Hilary Benn) spoke, I had a flash of déjà vu, back to the days when I co-operated with his father, thwarting the Blairite attempts to bypass Parliament some years ago. It came back to me that his father and I also shared a view on the European Union, with both of us knowing that it was undemocratic. We knew that both from ministerial experience and because we had read out history; Monnet and Schuman had designed it to be undemocratic, which was why we wanted to leave.

I say to the Minister, given what was said before from the Front Bench, that I come at this as a convinced and campaigning Brexiteer. I remind the House, given the substance of this Bill, that I resigned from Cabinet to preserve the right to diverge from the EU. So I agree with the aims of the Bill, but I also agree with the SNP spokesman, the hon. Member for Stirling (Alyn Smith), about its effectiveness in delivering those aims. I voted and campaigned to improve democracy; I wanted to take back control in order to give it to Westminster, not to Whitehall. However, that is what we have here.

When the Minister was speaking earlier, she talked about the consultations, but they were not with us—they were with the Scottish Government, the Welsh Government, the Departments of State and not with us. But we are the people who are responsible for this legislation. What is more, we are being asked to sign a blank cheque—one might almost say a pig in a poke—because we do not even know how many pieces of legislation are going through on the back of this Bill, let alone what they are. That, of course, is not democratic. We have heard the anoraks talking about this SI Committee, that sifting Committee and so on. That is not the Floor of this House. These issues are sufficiently important—some of them, not all of them—to be debated in the Chamber. Just glancing down the list, I see: aviation safety; compensation rules; insider trading; protecting a pensioner’s payout when a company goes bust—I cannot think of anything more significant to our constituents than that; and preventing the trafficking of illegal weapons. These are substantive issues that need to come to us.

[Stella Creasy]

I hesitate to stop the right hon. Gentleman, but does he therefore agree with me that the fact that Ministers have already unilaterally decided to revoke the piece of legislation that protects our constituents getting 50% of a pension pot if their company goes bust, without any consultation with us because they will use the powers in the Bill simply to let it be deleted, makes exactly his case as to why this is not democracy or taking back control?

[Mr Davis]

If the hon. Lady had given me 30 seconds, I would have made exactly that point. I agree with her. This morning, or last night, we had No. 10 rushing to brief the papers and to write to us saying that the Bill will not remove existing rights and protections, which is plainly not true, and that it will not impinge on environmental rights and so on. That demonstrates what a great hole there is in the middle of this legislation. If those matters were covered in the law, we would not need to have that assurance. All of the non-governmental organisations that are concerned—I do not agree with all of them—would not have had to have their say either.

--- Later in debate ---

[Stella Creasy]

The Minister is setting out a number of laws, and she has just said on the record that she has verified 3,200 pieces of legislation. The dashboard still says 2,400, and she says the ultimate number will be 4,000. Can she just clarify that she is asking us today to vote for her Ministers to have power over 1,600 undefined, un-public pieces of regulation? She is shaking her head, but that is the maths, and she has to be open with people about what is at stake with this legislation. Is it 1,600 pieces that are missing, or is the number higher or lower?

[Ms Ghani]

The dashboard will always be updated as new EU law is being discovered. The fact that it has to be discovered and that we need to go and identify it tells us that there is a problem. We have verified a substantial amount. It could be up to 4,000 laws, but this gives each Department time to assess, amend, assimilate or revoke.

On new clause 1, the sunset is a fundamental aspect of the Bill. The sunset date of 31 December 2023 was chosen to incentivise and accelerate a programme of reform that is well under way. Although 2023 may be an ambitious deadline, it has been years since we voted in favour of leaving the EU, as colleagues across the House have noted, so it is absolutely right for our constituents to expect us to be able to remove outdated laws in that time. There is also an extension, up to 2026, if Departments need more time to consult and take decisions on the EU laws that they wish to amend or repeal. That has always been in the Bill. To deliver those reforms, each Department will take its own view on how to prioritise and timetable pieces of REUL to ensure delivery before the sunset date. The Government will ensure that that work is appropriately resourced.

The criticism about the Bill enshrining a race to the bottom is just incorrect. We have sought to ensure that the powers to revoke or replace cannot be used to add to the overall regulatory burden for any particular subject area, but they do not preclude the introduction of higher standards. That will help to ensure that the UK takes a more modern, agile and proportionate approach to making regulations, and establishes a more nimble, innovative and UK-specific regulatory approach to go further and faster and in seizing the opportunities of Brexit.

On the concerns raised by my hon. Friend the Member for Calder Valley, the Government will ensure the continued functioning of the intellectual property framework, given its importance both in underpinning investment and in supporting international trade. We recognise the importance attached to stability and certainty in the area of intellectual property. Those will be prominent considerations for the Government when making decisions on REUL in this area.

Suggestions that we have delivered, or will deliver, a bonfire of workers’ rights are absolutely inaccurate. As I mentioned earlier, we are proud of the UK’s excellent record on labour standards. We have the best workers’ rights record in the world, and our high standards were never dependent on our membership of the EU. Indeed, the UK provides stronger protections for workers than those required by EU law. I thank my right hon. Friend the Member for North East Somerset for setting out that Parliament has been legislating to protect workers’ rights for hundreds of years.

--- Later in debate ---

[Stella Creasy]

I put on record my thanks to all the civil servants who have answered our questions on this Bill, to all the members of the Committee and the Minister for taking questions—I think in years to come her diaries will be a revelation about what she really thinks of this legislation.

We should make a pledge tonight, because this House has started to hear the voices of the British public, who recognise that legislation like this is us not doing our job. It is us taking away the job and putting power in the hands of the shadowy elite behind the back of Downing Street. It is not parliamentary sovereignty. We will make a pledge tonight in this House to keep hearing their voices—to keep hearing the many campaign groups who have spoken with one voice and said, “There is a better way to do this,” to hold all of us to account, to work with our colleagues in the other place to ensure that we truly do take back control to this place and uphold parliamentary sovereignty.

Those of us on the Opposition side know how valuable that is to our democracy, and we invite all those on the Government side who recognise that to join us. A sinner that repenteth is still a sinner that repenteth.

Question put, That the Bill be now read the Third time.

Retained EU Law (Revocation and Reform) Bill

Stella Creasy Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[The Solicitor General]

I am grateful to my right hon. Friend for his intervention. He has spent a lifetime working on these issues and I look forward to his continuing contribution to this debate. The fact is that by having a schedule, we can set out incredibly clearly what laws will be sunset and when—I will turn to that point in a moment—and we provide certainty. Importantly, it does not prevent our making further reforms in due course, and I will address that point in a few minutes.

Amendment 1 is an amended version of an initial Government amendment. The Government tabled that amendment on Report in the Lords to remove the automatic nature of the sunset clause, as we have heard. This approach will provide legal certainty on which EU laws will fall away at the end of the year and will ensure that Parliament, Ministers and officials are freed to focus on more reform of retained EU law and to do this faster. Let me respond further to my right hon. Friend by saying that that is the great advantage of this approach: we are not going to be upstairs in Delegated Legislation Committees between now and the end of the year. Instead, we will be able to focus important time looking at where we want to make real and proper reforms. The goal of this Bill—to enable revocation and reform, and to end the supremacy and special status of retained EU law—remains fully intact.

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

rose—

[Sir William Cash (Stone) (Con)]

rose—

[The Solicitor General]

I will give way to the hon. Lady first and then of course I will give way to my hon. Friend.

[Stella Creasy]

I hope I may be defending the rights of the hon. Member for Stone (Sir William Cash) and the right hon. Member for Wokingham (John Redwood) here. The Minister has just said how wonderful it will be that we will not be in these SI Committees. Is it not the case that Members of this House with strong feelings about any of this legislation will be reduced to pleading, through question sessions such as this, trying to catch a Minister in the Lobby or lobbying one of those backroom civil servants, to try to amend the SIs that are being put forward? This piece of legislation might set out what the Government plan to revoke at this point in time, but there will still not be any scrutiny in this Chamber or any opportunity for an MP to put forward proposals to challenge them. That is not taking back control—it is giving it away.

--- Later in debate ---

[The Solicitor General]

I am grateful again to my hon. Friend; I am glad I gave way to him twice and did not leave him there, asking without receiving an answer. I can simply repeat the assurances that Ministers have given—ad nauseam, dare I say—that our environmental standards are world leading and will continue to be so. In reviewing its retained EU law, DEFRA’s aim is to ensure that environmental law is fit for purpose and is able to drive improved environmental outcomes. In light of that, I ask the House to reject amendment 15.

I turn now to Lords amendment 42—I think this is the last one, if I have counted correctly. This amendment inserted a new paragraph into schedule 4 and would require a novel procedure to apply to the use of the powers contained in the Bill. I repeat that the procedures are novel and untested. This Government do not accept the principle that Parliament should be able to amend statutory instruments.

In addition, the procedure would have significant implications for both parliamentary time and the ability of Government to deliver their business. It would bring significant delay to the clarification of our statute books through restatement, and delay much-needed regulatory reform. There is already provision for scrutiny measures within the Bill. All those powers will already be subject either to the affirmative procedure, meaning they must be debated in and approved by both Houses, or to the findings of a sifting Committee in each House. That is a sufficient safeguard.

[Stella Creasy]

Will the Solicitor General give way?

[The Solicitor General]

I will not. The sifting procedure will provide additional scrutiny of the powers, while retaining the flexibility of using the negative procedure when there are good reasons for doing so. I therefore ask the House to reject this amendment. I have set out the Government’s position today—

[Stella Creasy]

On a point of order, Madam Deputy Speaker, the Solicitor General just suggested that amendable SIs was a novel procedure—

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. Stop. That is not a point of order. The hon. Lady has tried to intervene on the Minister. The Minister has already taken her intervention and he is not taking another. It is not a point of order for the Chair. The hon. Lady should not abuse the procedures of the House in this way. I call the Minister.

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[Jonathan Reynolds]

I absolutely agree. If the right hon. Lady has positive proposals that she wishes to bring forward to amend the law, and if she is making the case that UK food standards are currently onerous to the point of adding expense to her constituents and mine, I will listen to that case—I might not agree with her, but I will listen to it. If that is the case that she is making, surely it is incumbent on her to bring forward such proposals, and reveal which regulations would be necessary to change that and where she thinks the law is going wrong. I accept, and I think the Government accept, that the major driver of food-price inflation has been the war in Ukraine. That is a reasonable point. [Interruption.] I can hear some chuntering on the Government Benches. Many of us recognise that point. When the Government see inflation rise, they claim—reasonably—that international factors are the drivers of that, but when some of that peaks, supply chains change and inflation comes down, the Government often seek to claim the credit for that, which, I think she will agree, is unreasonable. But I accept her point. I hope that that clarifies for her how I believe the law in that area should be approached.

Finally, rather than allowing future pieces of retained EU law that the Government wish to restate, revoke, replace or update to be slipped in by the back door via statutory instrument, Lords amendment 42 would give Parliament the proper role that it deserves in such matters.

[Stella Creasy]

Does my hon. Friend agree that the Minister may wish to use different wording or perhaps even correct the record? He suggested that such powers would be novel, but amendable SIs were in fact part of the Census Act 1920, which is over 100 years old, and were most notably present in section 27 of the Civil Contingencies Act 2004. The idea that we might actually involve those who were brought to this place to make legislation in amending it is not a new one. This law removes that idea. Does my hon. Friend agree that the Minister may do well to read his constitutional history before he dismisses it so easily?

[Jonathan Reynolds]

I welcome my hon. Friend’s intervention. I will take her word for it on the Civil Contingencies Act, about which I fear she may have a level of expertise that exceeds mine. To be frank, I thought that the Minister’s whole defence of that area was somewhat questionable. Much of what we are talking about is a relatively novel set of procedures that relate to the unique situation that we find ourselves in. Indeed, the Government’s whole approach is based on the uniqueness of the need to have a position on retained EU law following the mechanisms that we chose to adopt as a country when we left the European Union. I thought that that was a somewhat weak defence. If my hon. Friend has information contrary to what the Minister said on the record, I am sure that he will seek to amend that and put forward the correct form of affairs—perhaps if he receives wisdom on the Front Bench at some point in the next four hours.

Our colleagues in the House of Lords have, through all their amendments, sought fundamentally and in good faith to make sense of what was an embarrassing set of proposals whose only aim appeared to be to pacify the hardliners on the Government Back Benches. I appreciate that those Members do not look happy today.

--- Later in debate ---

[Alyn Smith]

Can anybody explain to me what additional power, focus or agenda this Bill gives to the power that exists already by this Parliament being sovereign—that is not my worldview, but it is the worldview of many Members? I do not see this as necessary.

[Stella Creasy]

I thank the hon. Member for letting me take up his challenge about additional powers: the Bill gives the Government the ability to ignore the rather inconvenient matter of Members of Parliament and any views or concerns they might have by removing powers. Indeed, the Prime Minister himself talked about an elected Government taking decisions on law rather than this Chamber. Instead of removing powers, it adds them to Government to bypass this Chamber and our democracy. I hope that helps the hon. Gentleman.

[Alyn Smith]

It helps me get to the second page of my speech, as I was going to say that not only is the Bill unnecessary, but it is bad law. It is open in the normal way for Government to amend legislation, but that would be subject to the normal scrutiny. Another reason why we dislike the Bill is that it bypasses that scrutiny.

--- Later in debate ---

[Stella Creasy]

Obviously, we already have Joint Committees and models of how a Joint Committee could work. We have the Joint Committee on Human Rights and the Joint Committee on Statutory Instruments, so we have a model for that way of working. However, is the right hon. and learned Member not making the argument that we in this Chamber need to signal our agreement about what is missing from this process? I notice he is making an argument about the lack of scrutiny from Europe, and we may disagree on that, but surely two wrongs do not make a right. The argument we are making today is that we need to improve this process, and that when there are changes—and we must set out more clearly what “substantial” means—this Chamber wishes to work with the other Chamber in bringing back parliamentary sovereignty to this process.

[Sir Jeremy Wright]

I understand the points the hon. Lady is making, and I will take them in reverse order. On the point I made about the difference in the scrutiny that these laws may have on the way out, as it were, compared with the scrutiny they would have on the way in, I accept that two wrongs do not make a right. However, it would be odd, if nothing else, to take the view that we should give the vast bulk of laws—some of which, as I think we have agreed across this Chamber, do not require a huge amount of scrutiny, because they are technical and somewhat inevitable changes as a result of leaving the European Union—a process involving greater scrutiny and greater friction, as I would choose to describe it, than the process that was used to bring them in in the first place.

On the hon. Lady’s point about a Joint Committee, I accept that there are Joint Committees, but the role of the Joint Committee on Human Rights, for example, is very different from the role that Lords amendment 1 sets out for a Joint Committee in this context. If we set up Joint Committees as scrutiny bodies, that is one thing, but if we are devolving authority to a Joint Committee to make judgments about what is and is not a substantial change to UK law, it seems to me that we ought at the very least to understand what substantial means in that context. Again, I am afraid that we can only decide on the basis of the wording we have in front of us, but the wording we have in front of us seems to me to require some greater clarification before anyone ought to support it.

--- Later in debate ---

In conclusion, I will support the Government in the votes on the Lords amendments this evening. I welcome the Bill, which will end the supremacy of EU law in UK statute and ensure that the courts no longer have to interpret legislation using EU case law after December 2023. It will also lighten the regulatory burden and spur economic growth across the length and breadth of the UK.

[Stella Creasy]

This piece of legislation and the Government’s approach to these amendments are a masterclass in misdirection. Members across the House have been talking about the sunset clauses, but the honest truth is that if they are going to burn somebody’s house down, it does not matter whether they do it at the end of this year or give themselves the matches to be able to do it next year; they are still going to burn down the house. This legislation, as it is still currently drafted, gives Ministers those powers. It does not take back control from Brussels, but gives it to No. 10 and the Executive.

I am sorry that the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright) is not in his seat, because in responding to the amendments, I want to set out a few very clear issues that I am sure Conservative Members will be thinking about having heard my initial comments. While I might be the chair of the Labour Movement for Europe, I know that Brexit has happened and I know we need this piece of legislation. However, I am a democrat as well as an internationalist, and my concern is the way this legislation drives a sledgehammer through this place and through British democracy.

Let us not look at these amendments through the prism of whether we voted in a particular way in 2016, or even how we voted in the various long-drawn-out Lobby nights we had up until 2019. Let us look at what is before us: the question of how to deal with retained EU law. I am sorry the hon. Member for Stone (Sir William Cash) is not in his place, because I like to think that in his mind it is like Japanese knotweed and must be rooted out at every opportunity. Whether we agree with that or not, if we are democrats, we believe that the final decision on those changes that affect our constituents should be made in this Chamber, by us, the people who were elected by our constituents to represent them in those decisions. This Bill removes that basic principle.

If the hon. Member for Stone wishes to argue that this piece of legislation somehow promotes Brexit, I have a timeshare to sell him, because it is not taking back control; it is doing the reverse. I listened to the argument he made about Lords amendment 16, that somehow bringing a list to his Committee as opposed to the Committee that will actually be looking at the legislation is somehow a win for him. I wanted gently to ask him what he will do if a law he believes should be deleted is not on that list. Will he complain bitterly? He tried that with the Secretary of State, and look where that got us.

There is a basic rule in life, “Fool me once, shame on you; fool me again, shame on me.” I wish the hon. Gentleman would listen to that. Everyone in this country has been fooled by Brexit. The British economy has been fooled by Brexit. Oddly enough, Brexit has not brought the benefits that we were told it would. We have seen exports collapsing, food prices increasing, our children sitting in coaches at the border for hours on end and businesses saying that trade with Europe is now almost impossible because of the amount of paperwork that they have to deal with.

This Bill kills the idea that Brexit was somehow about taking back control and kills the claims that were made—claims that the Government, under the last but one Prime Minister, were still making in 2022—that somehow Brexit was

“returning democratic accountability to our own institutions”,

and that it had restored

“democratic control over our lawmaking”,

and given

“the power to make and scrutinise the laws that apply to us back to our Parliament.”

The Bill does the opposite.

The Government have already shown in their approach to this piece of legislation why it would be so dangerous to pass it without the amendments. Ministers have refused to appear before Committees; they have failed to respond to questions; they have been evasive about how they might use the powers—but they have already decided how they will use them. We have already seen in this place what has happened to the use of statutory instruments, which is why our colleagues in the other place are so concerned—colleagues who are passionate defenders of Brexit. The Government have used statutory instruments to push through unpopular changes on student loan charges and welfare reform, and the entirety of the covid regulations that many in this place objected to. This Bill is that process on acid. It will apply to 5,000 areas of regulation.

[George Eustice]

Is the hon. Lady not missing an important point? The tertiary legislation that came down from the European Union was largely put in place using section 2(2) of the European Communities Act 1972, and that provision could even, with no scrutiny at all, amend domestic legislation—Acts of Parliament; primary legislation—made in this House. The bulk would be either implementing Acts that came from the European Union or delegated Acts, about which there was no real democratic process—not even within the European Union. Where was her voice when section 2(2) of the European Communities Act was running riot with the laws made in this House?

[Stella Creasy]

I was lobbying our elected representatives in the European Union—our Members of the European Parliament—to challenge that. I am sad that the right hon. Gentleman was not in his place when I had this very discussion with the right hon. and learned Member for Kenilworth and Southam. Two wrongs do not make a right. Those who claimed that they wanted to wrest back control from Brussels cannot then give it away to “the blob” in Downing Street, but that is exactly what will happen.

Anybody who has sat on a statutory instrument Committee knows full well that they are the Henry Ford of democracy. MPs are chosen by Whips to sit on those Committees, like it or lump it. A Member may have concerns about the statutory instrument before the Committee, and although the Minister nods approvingly and talks about writing to them afterwards, the legislation still goes through. The most a Member might be able to do is rail against the dying of the light. The Bill will extend that process.

The right hon. Member for Camborne and Redruth (George Eustice) talks about what it will apply to: not just to EU delegated legislation, but to all legislation that gives effect to it. That is a massive power grab by the Government. The amendment tabled by colleagues across the Commons and the Lords represent not anger about the outcome of Brexit but concern for the future of democracy. That is why I urge colleagues, no matter what side they were on in that debate, to proceed with caution and look at what the House of Lords is trying to do in this process. In the light of how willingly the Government have used SIs to bypass this Chamber when they have had such powers—as with covid, for example—it is not unreasonable to be concerned about how much more that process could happen.

[Sammy Wilson (East Antrim) (DUP)]

In the unfortunate event that the hon. Lady’s party wins the next election, would Ministers from her party be prepared to hand all those powers back to Parliament, or would they exercise them in the way intended in the Bill?

[Stella Creasy]

As a Back Bencher who expects to continue being a Back-Bencher under whatever Government, I want power to be in this place—I believe that that is good. Giving Ministers unfettered power without appropriate checks and balances is a bit like giving a 17-year-old the keys to a Porsche and asking them just to polish it: it always ends in a democratic car crash. That is what we see before us.

The right hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who is also no longer in his place, was at least honest about how he would like the Government to use those powers: to bring back chlorinated chicken, remove paid holidays and destroy the habitat directive. I do not know what he has against seals, but clearly he believes that we should be able to build houses on them. Wherever we stand on those debates, surely it is right that, if our constituents come to us about those issues, we have levers that allow us to represent their concerns, beyond trying desperately to grab a Minister during votes— there might only be one or two left if the legislation goes through—to ask them to think again.

The democratic powers that each of us was elected to exercise were our ability to table amendments, to scrutinise and to hold Governments of any colour to account. That is what the amendments would do. After all, we have already seen in how Ministers are proceeding with the powers that they believe the Bill will give them how little respect they have for their colleagues.

[George Eustice]

Will the hon. Lady give way?

[Stella Creasy]

I am very conscious of time, so I will give way briefly, but I hope the right hon. Gentleman understands that I want to make progress.

[George Eustice]

Another point that the hon. Lady is missing is that there is already a lot of domestic legislation in these areas. Seals have been mentioned twice, but the Conservation of Seals Act 1970 is what gives seals protection in this country, not any legacy EU directive.

[Mr Deputy Speaker (Mr Nigel Evans)]

Stella Creasy is the last Opposition speaker, so I will give her a little latitude.

[Stella Creasy]

Perhaps the right hon. Member for Camborne and Redruth will tell the right hon. Member for North East Somerset that his ambitions to build on top of seal habitats may have to wait a little longer.

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[Simon Hoare]

Bromley and Chislehurst.

[Stella Creasy]

That’s it—apologies. The hon. Member for Bromley and Chislehurst (Sir Robert Neill) talked about unintentional deletions. Again, that is absolutely right. The Bill is not just about direct EU regulations; it is also about direct effect cases. It is a piece of case law that protects our constituents’ right to 50% of their pension pot that is being deleted without any parliamentary scrutiny of the process. That is the challenge.

According to the dashboard, those pieces of direct effect law that Lords amendment 6 would require the Government to set out, in the same way they have set out the EU regulations that they are going to delete, make up just 0.5% of retained EU law. It should not be difficult to at least tell us what case law is going to be deleted. For example, they are going to delete the direct comparator law that protects people in discrimination cases, so when our constituents come to us because they have been victims of discrimination in the workplace, basic protections that we might encourage them to look at and talk to their lawyers about will no longer exist. Again, they will ask us, “What did you do to make sure that this piece of law, whether or not it was a good idea, was scrutinised properly?” Amendment 6 would at least allow us to point to the place where it was deleted.

Lords amendment 15 is about Ministers who keep telling us that they do not want to water down any environmental regulations, whatever their colleagues who clearly have a vendetta against seals may think. It is simply a way of holding them to account, and this goes to the broader issue: whether or not Members agree with the habitats directive—whether or not they think there is room for change—surely it should be this place that deals with it, through a clear process.

I would wager that across the House, we would probably want to retain many of these pieces of legislation—again, I go back to airline safety and seatbelt rules. I am pleased that the Government have already said that they are going to retain those rules. Lords amendment 42 and other Lords amendments would pull together a Committee of both Houses that would do the sifting. It could simply say, “Yes, fine. Press on with using an SI Committee, those 15 people who have been hand-picked by the Whips, to nod it through and crack on with it.” However, where there is change—where Ministers are doing something for which we will be held to account by our constituents—it would bring in amendable SIs. It worries me that Ministers do not know that amendable SIs already exist in our constitution. The Hansard Society has supported that proposal. No statutory instrument has been voted down in this place since 1979, so it is simply not the case that using an SI Committee, whether under the negative or the affirmative procedure, would be democracy.

Brexiteers and remainers alike have supported the Lords amendments, because they recognise that taking back control ought to be about us doing our job. If Ministers and MPs vote down the amendments tonight, we will be voting ourselves out of a role. It may not take effect yet, but our constituents will not forgive us for removing their voices from this place. I urge Government Members, wherever they were on that debate, to at least abstain and indicate to Members in the House of Lords that there is a willingness to look at these processes and get them right. All of us who value democracy will be the stronger for it.

[Vicky Ford (Chelmsford) (Con)]

I wish to speak about the Government amendments and amendment 15. As colleagues will know, I spent many years as a British Member of the European Parliament, representing UK constituents. During that time, I served on the industry, research and energy committee, the economic affairs committee and the environment committee, and I chaired the single market committee. As such, I have had the opportunity to see how EU legislation can play an important role, especially in areas such as food safety, workers’ rights, consumer protection and the environment.

However, when I spoke on Third Reading, I also reminded people that I am very aware that EU legislation is not always perfect in all regards. The UK did play a key part in negotiating much EU law, but not every single element of EU law fitted perfectly to the needs of the UK. Indeed, due to the need to get a consensus across the 28 member states, we sometimes needed to have a one-size-fits-all and lowest common denominator approach. Therefore, I have always agreed with the principle of the Bill: that all of Whitehall needs to look again at EU retained law and ensure that it fits our needs.

On Third Reading, I also made the point that businesses and others need certainty, and I asked for businesses to get advance notice of which laws will drop away by the end of the year. I also urged Ministers to not be fearful of taking the time that was needed to get this right, so I am very glad that the Government have tabled the amendments that they have, which will set out a schedule of exactly which laws are to drop away by the end of this year and remove the sunset clause.

I also pointed out on Third Reading that unnecessary regulation can produce additional costs, which are often passed on to consumers. Amendment 15 deals with important issues such as food safety and the environment, but I have listened carefully to what has been said by Ministers in the other place and Government Members: that the way in which the amendment is drafted would add bureaucracy and delay in the making of new laws, and create legal uncertainty. That would add costs to the process, which would be borne by either the taxpayer or the consumer. At a time when our constituents are particularly concerned about the cost of their food bills, we need to be aware of that.

By voting against amendment 15 tonight, it is not the fact that I and others on the Conservative Benches do not care about the environment or food safety. I am very proud to be a founder member of the Conservative Environment Network, a caucus that brings together over 150 Members on these Benches and in the other place, and I am very proud to have stood on a Conservative manifesto that promised to introduce the most ambitious environmental programme of any country in the world. I am thankful to Ministers for saying throughout the passage of the Bill that the Government will not weaken environmental protection. None the less, some of our constituents have concerns.

The hon. Member for Walthamstow (Stella Creasy) just said this Bill will destroy the habitats directive. She has no evidence for that. The habitats directive has been a very important piece of legislation for many decades in trying to protect species. It was introduced in Europe by a Conservative MEP, who happens to be the father of a recent Conservative Prime Minister. However, species decline has continued across Europe despite that directive. We now have the opportunity to have a more outcome-focused, tailored approach to UK needs, and I gently say to Ministers that to reassure our constituents who care about biodiversity, it would be helpful for them as soon as possible to give more clarity about how they intend to reform the EU habitats directive—I know that a DEFRA consultation is going on at present.

The UK Government have gone much further than the EU in protecting habitats. In particular, we have been the first country in the world to commit to a legal deadline to halt species decline, and we have said we will do that by 2030. The landmark Environment Act 2021 also includes a new biodiversity net gain obligation for all new developments.

In my constituency, there is a new development of 342 dwellings. It is near the river in an area of wet grassland with hedges and copses. It is important habitat for many species including migrant birds, dragonflies, aquatic mammals and amphibians, and areas of higher ground in the undeveloped land are key refuges for small mammals and reptiles to escape to when the river floods. Because of the net biodiversity gain obligation, the planners and developers had worked with ecologists to introduce plans for new reedbeds, native trees and ponds, reinforcing hedges, increasing the woodland cover and making provision for bird and bat boxes and so forth. I did not think that was enough, because I was contacted by a constituent who is an ornithologist who has been watching this land for a long time. Because of the net gain initiative, the developers and their ecologists met my local ornithologist, and as a result the grass strip is going to be enhanced along the corridor where the barn owls hunt; the cycle path will be moved away to create a buffer from the trees where the nightingales nest; and the watercourse corridor will include scrapes for the water voles. All these are very important species: the nightingale and the water vole are red-listed species in the UK.

None of that action would have been taken if we had just relied on the habitats directive. This much more focused, devil-in-the-detail approach that we need to protect our nature and biodiversity is happening because of what this Conservative Government have introduced by putting that net gain responsibility on our developers.

I have a funny feeling that when we on this side of the House walk through the Lobby tonight to vote against amendment 15, those opposite will try to say that the Conservatives do not care about nature, species and the environment, but the actions of this Government show that that could not be further from the truth.

--- Later in debate ---

[Simon Hoare]

I do not know who is going to sit down first out of shock, but I fundamentally agree with the right hon. Gentleman, and I have to say that that is possibly a first. He is absolutely right that that would be political suicide. On any casual analysis or audit of our inboxes or mailbags, or of people coming to our surgeries or stopping us in the street, he is absolutely right. People are not pressing for a race to the bottom, and they are not talking about a degradation of environmental standards. He is absolutely right, and any party that advocated that would quite rightly be consigned to the electoral dustbin. There would be no recycling of that party; it would be totally incinerated, and rightly so. He is right to make that point.

[Stella Creasy]

Does the hon. Member recognise that the way the Bill is currently drafted, with or without the sunset clause, still transfers a direct power to Ministers to use statutory instruments to make legislative changes to those 5,000 laws? Doing so might be electoral suicide, but it is possible, and the sunset clause is not what would stop it; it is just the date at which it would happen. That is the distinction we are making. Nobody is saying what might or might not happen; the point is the democratic deficit this will create.

[Simon Hoare]

There is more that unites the hon. Lady with my right hon. Friend the Member for North East Somerset, because they are both tilting at windmills that do not exist. Any Government might do something—of course they might. I will come to the main thrust of what I want to say, but me deal with “anybody might.” Anybody who passes a driving test and owns a car might lose control of the vehicle and might run somebody down. Anybody who buys rat poison might give it to their cat and kill the cat, so do we not sell rat poison? Surely the hon. Lady is not suggesting that because, reductio ad absurdum, people might do something, we should not allow things. With the usual checks and balances of this place, in a bicameral system and with a transparent free media and an independent court system, surely to goodness we have not reached that nadir of political trust in this place between Back Benchers—whether on the governing side or on the Opposition Benches—and the intentions of His Majesty’s Government, from whichever party that might happen to be made up.

[Simon Hoare]

My hon. Friend—[Interruption.]. Yes, I will give him a tip. He makes a similar point to the right hon. Member for East Antrim (Sammy Wilson). That is, in essence, which party worth its salt, seeking some form of re-election, will knock on doors and attend church and parish meetings to say, “The great thing that we’ve achieved—the great jewel in our crown—is that we’ve removed your holiday entitlement and your statutory sick pay. Please vote for us, because that’s just the start. You wait until we’ve finished—we are going to have boys up chimneys and limbs lying on the factory floor because we will repeal the Factories Act”? Where does that end? It is utter nonsense.

The direction of travel in the mindset of this country, like, I would suggest, in most advanced civilised democracies, is for a more protective system for the individual, a safer working environment and a cleaner, greener environment. The idea that any party with a sensible prospectus for government would try to fly in the face of that and buck the trend in the interests that it might be quite interesting to see a four-year-old shoved up a chimney with a brush, is for the birds. But, unfortunately, there are one or two people out in the country who will believe that, and this place does no service to our constituents by setting those entirely spurious, false, bogus and misleading ideas in the public mind. It might make a Facebook click, and it might make some sort of Twitter advert with somebody saying something or another, but it is not serious politics, and it demeans this place.

But—[Interruption.] This is a but, because I want to deal with this seriously.

[Stella Creasy]

That’s rude.

[Simon Hoare]

It is not rude at all.

[Stella Creasy]

No. That is what your colleagues are doing.

[Simon Hoare]

It might be hyperbolic, but it is not rude. I say to the hon. Lady and others—this is a point that Government Members must face up to—that, as I said in an intervention on my right hon. Friend the Member for North East Somerset, I have, as many do, huge sympathy with the idea that this great canon of work should have been far more progressed than it has been, but for reasons that we do not need to dwell upon, I am afraid that last year, in terms of delivering political process, was a wasted year. We all know, understand and have some frustration with that, but we are where we are. The decision that the Government bravely and sensibly took was to say that the arbitrary date that previously—but still, I suggest, theoretically and unrealistically—we thought was in grasp for this huge and important piece of work, now is not. When the facts change the circumstances must change. This is not a U-turn: this is the Government saying that the important work of reviewing to check on appropriateness —whether something is appropriate or inappropriate, or should be upgraded or changed to bring it into a UK arena—will still be done, but it will be done in a more sensible timeframe to ensure that we get it right.

Retained EU Law (Revocation and Reform) Bill

Stella Creasy Excerpts

Consideration of Lords message
Monday 12th June 2023 Commons Chamber

[The Solicitor General]

May I express exactly the same sentiments as you, Mr Speaker? I know that the hon. Lady’s campaigns will continue outside the Chamber, and I know that she will have plenty to offer between now and the election in any event, not least during this debate. However, I disagree with what she has said, not just because the procedures are novel, although they are. I followed the debate in the Lords very closely, and it is fair to say that it is accepted that these are new measures, but they are also unnecessary, and this is why.

The amendment would unreasonably and unnecessarily delay our important reforms. It would introduce what my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) termed “extra friction” during our previous consideration of Lords amendments. He was right to say that, and right to say that the amendment would delay the meaningful reforms that can now be achieved as a result of Brexit. I do not believe that the public would accept those delays, and nor, in my view, should we.

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

Will the Solicitor General give way?

[The Solicitor General]

I will give way to the hon. Lady, because that will give her an opportunity to apologise for getting the Government’s position on pension reforms so wrong.

[Stella Creasy]

I hope that the Solicitor General will speak to his colleagues in the Department for Business and Trade, who made it clear in Committee on, I believe, 22 November that they were intending to abolish the Bauer and Hampshire judgments. Perhaps he will ask his colleagues to amend that, rather than suggest that I was misleading the House.

I also note—and it is welcome—that the Solicitor General now accepts that there is a parliamentary precedent for amendable statutory instruments. He talks about “friction”. Another way of describing that would be Members of Parliament holding the Government to account if they come up with proposals that their constituents do not like. When Ministers were in front of the European Scrutiny Committee, they seemed to think that it was an impertinence for MPs to have concerns and questions about what might be on the list of measures to be deleted. Is this another name for what we are calling parliamentary sovereignty?

[The Solicitor General]

No, not at all; the hon. Lady is wrong, I am afraid. I will come in a moment to the detail of the parliamentary scrutiny that is already inbuilt in the Bill and the schedule to the Bill. The hon. Lady’s comments over the weekend about pension reform were also wrong, and that is important because people will have been scared by what she said. The Hampshire case clarified that all scheme members should receive at least 50% of their expected benefits in the event of the employer’s insolvency. The Secretary of State has been crystal clear on this and we have announced our intention to retain the Hampshire judgment beyond the sunset clause. The hon. Lady was wrong on that and she is wrong on the provisions in the Bill. I will explain why in a few moments.

--- Later in debate ---

[Justin Madders]

I thank my hon. Friend for that intervention, as he sets out what this amendment is attempting to secure, which is a bit of security.

I shall make some progress, as I am aware that a number of people wish to speak. As we have heard, Lords amendment 15B seeks to introduce conditions on some of the powers in sections 12, 13,15 and 16 relating to the environment. As my hon. Friend says, it stipulates that any regulations made may not

“reduce the level of environmental protections”

or

“conflict with any…international environmental agreements to which the United Kingdom is party”.

It also sets requirements on consultation. Given that the Government are supposedly committed to maintaining the highest environmental standards, one might think that those conditions are uncontroversial; they are the actions I would expect any Government committed to maintaining high standards would want to undertake. That view is shared by a range of experts, including, but certainly not limited to, the Government’s own watchdog, the Office for Environmental Protection. Its written evidence submission endorsed all three of those suggested conditions, with its chair, Glenys Stacey, remarking:

“Worryingly, the Bill does not offer any safety net, there is no requirement to maintain existing levels of environmental protection.”

The Government are not listening to their own watchdog and have instead chosen to refer to those conditions as “burdensome” and “unnecessary”. I have yet to hear any rational explanation as to how the conditions in the Lords amendment can be both of those things at the same time; if these steps are, as the Government tell us, things that they would be doing in any event, how can they possibly be an additional burden as well? When we are met with illogical and unconvincing arguments such as that, we are right to be concerned. I note the assurances given at the Dispatch Box on this and previous occasions, but, as we have seen with this Bill in particular, Ministers come and go, and if we were to rely on everything said at the Dispatch Box as having the same weight as actual legislation, Acts of Parliament might be half the length that they are. There is a reason we do not do that.

Of course, we can all imagine what might be said by the public if the worst was to happen and environmental standards were to slip as a result of this Bill. We would say to our constituents, “But we were promised this wouldn’t happen” and our constituents could point to the 40 hospitals not having been built, Northern Powerhouse Rail not having been started, the ditching of the Animal Welfare (Kept Animals) Bill or any number of other broken promises, and they would call us naive at best. So we are right to insist that these protections stay in the Bill.

Lords amendment 42B tackles one of the most controversial clauses, the one that the Hansard Society referred to in its written evidence as the “do anything we want” powers for Ministers. The Hansard Society is not prone to exaggeration and its comments have merit. As we know, clause 15 empowers Ministers to revoke regulations and not replace them; replace them with another measure which they consider appropriate

“to achieve the same or similar objectives”;

or

“make such alternative provision as the…national authority considers appropriate”.

In the face of such untrammelled concentrations of power in the Executive, Lords amendment 42B seeks to put a democratic check on the use of those powers. Actually requiring a Minister who wishes to use these powers to set out their proposals before each House is entry-level transparency that should have been part of the procedure to start with. Allowing a Committee of this House to consider them seems a fairly uncontroversial suggestion, even if some people now think that Committees cannot act in a bipartisan way. Of course, giving a Committee the power to request a debate on the Floor of the House will be reliant on its making the judgment that such a debate is necessary, but this does secure a degree of scrutiny over ministerial decisions. It also hands at least some power back to Parliament, which was, of course, for some, what Brexit was all about.

[Stella Creasy]

Does the debate about the Bauer and Hampshire judgments not make the case that my hon. Friend is making? I hope Mr Speaker will forgive me here, but the Minister said that I was wrong and that is perhaps unparliamentary. Let me read into the record what the shadow Minister and I heard in Committee. The Minister of State, Department for Business and Trade, the hon. Member for Wealden (Ms Ghani) said:

“the Department for Work and Pensions does not intend to implement the Bauer judgment through the benefits system…The Hampshire judgment is a clear example of where an EU judgment conflicts with the United Kingdom Government’s policies. Removing the effects of the judgment will help to restore the system to the way it was intended to be.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 168-69.]

If Ministers are changing their minds now about using the powers in this Bill to revoke these protections for the pensions of our constituents, it is only because they have been caught out doing it and using the powers in this Bill. Does this not make the case—

[Mr Speaker]

Order. I am not going to have this private debate carrying on. You have put it on the record and the Minister has put it on the record, but people can be accidentally wrong. I do not need a lecture on what is wrong and what is not. In the end, you have put the case, and we have a lot of people who want to speak in the debate, including yourself.

--- Later in debate ---

[Sir William Cash]

With respect to the question of how the laws are made in the first place, that is what I am saying. The reason the Bill is so important is the need to overtake and, effectively, deal with the mistakes made in the past, over that 40 or 50-year period, whereby the laws were made in the way that I have described—and they were. They were done by consensus, because everybody knew before they walked into the room that the majority vote would work against them. I have spent a lot of time scrutinising such things—I was going to say a lifetime, and I almost have—and all that I can say is that nobody would seriously doubt that that is how the system operated at that time.

We are talking about these laws because we want to revoke or modify them. We are not going to get rid of all of them—we will modify some and revoke others, and that will be by a simple test. That test will not be whether or not it was decided by 27 other countries to which we were subjugated by law—[Interruption.] We did that in the European Communities Act 1972, which was a great mistake. We have moved to a situation as the result of a general election in this country, the result of which is that we are allowed to make our own laws here in this House on behalf of our constituents. I think that is a very reasonable position. It is not only reasonable but absolutely essential, because it is about democracy and sovereignty and self-government. That is what the people decided in the referendum.

[Stella Creasy]

rose—

[Sir William Cash]

I always give way to the hon. Lady.

[Stella Creasy]

And I thank the hon. Gentleman for it. I note his comments, although I also note that the legislation already provides for a Committee to look at the statutory instruments generated by the Bill. That is not a novel procedure. He says that it will be this House that determines matters, but it will only be this House reflecting what Ministers bring to us in a Delegated Legislation Committee, will it not? Unless Lords amendment 42B is passed, MPs will not be able to influence the content of an SI. The hon. Gentleman says that he did not like that in the European Parliament, so why does he want to take back control to Downing Street rather than to this Chamber with a process whereby, when changes are substantial, MPs have influence over them?

[Sir William Cash]

First, I did not say the European Parliament; I actually said the European Council of Ministers. There is a big difference and I am sure that she understands that, because that is where the law making is done. Secondly, with great respect, it is a bit disingenuous to suggest that this will all be decided by the Committee. I think it would be my Committee that would do this, but if we leave that aside the real point is that the amendment goes on to say that even if that Committee

“determines that special attention should be drawn to the regulations in question, a Minister of the Crown must arrange for the instrument to be debated on the floor of each House and voted on”.

That is the point. In other words, the lock is created by the House of Lords—

--- Later in debate ---

[Stella Creasy]

No, it is not.

[Sir William Cash]

Of course it is. If I may say so to the hon. Lady, with the greatest of respect, that is the intention that lies behind it. I know that she is quite obsessive about this point, but, with the greatest respect, she does not seem to quite understand how it is— [Interruption.] I am trying to be factual about this. The fact is that when the original regulations were made, they were made as statutory instruments implementing the laws made in the way I have just described, behind closed doors and so on.

Those regulations came in that way and it is perfectly legitimate, in the light of the fact that those laws were not made in the manner in which we would traditionally expect them to be made and, constitutionally, should be required to have them made, which is by this House, these Members of Parliament—including current Opposition Members of Parliament if they are in government—and for those decisions to be taken democratically on behalf of our electorate, who happened to say that they wanted to leave the European Union and endorsed it with a general election in 2019. The position is perfectly clear: what we are doing in this Bill is not only completely legitimate, but constitutionally correct. That is a big difference. Robin Cook once said to me, “Legitimacy is one thing, Bill; constitutionally, it is quite another matter.” That is not a constitutional way of doing things. What came into this Parliament and affected the voters of this country for 40 or 50 years was done in a manner that was completely, totally and utterly objectionable in democratic terms, because those laws were not made by our voters and our Members of Parliament representing those electors in this House.

I will simply say that I am not going to buy into this at all. I think I have probably made myself pretty clear but, having said that, I recognise the way in which the Minister has handled the Bill. I am extremely impressed and grateful to him for not only his comments, but the fact that he has handled the Bill so well.

--- Later in debate ---

[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.

--- Later in debate ---

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. I am sure the hon. Lady knows what she did; please withdraw any accusation of dishonesty.

[Stella Creasy]

Of course I withdraw that; I meant to say “open”. I want the hon. Member for Stone to be open, but he has not even bothered to have the courtesy to read Lords amendment 42B. If he had, his objection to the idea of a Statutory Instrument Committee looking at these amendments—[Interruption.] Well, I am sure he has made complaints to the Government, who have already written to the other European statutory instruments scrutiny Committee to say they will be doing exactly that. He opposes the idea of a report about what impact a statutory instrument might have. In any other language that is called an impact assessment; we get them on all sorts of pieces of legislation, but not on this.

[Sir William Cash]

Will the hon. Lady give way?

[Stella Creasy]

I have listened to the hon. Gentleman. I listened to him tell us at length about the European Union, but he has failed to tell us why he is opposing an amendment that gives this Chamber primacy over what happens when legislation changes. As the right hon. and learned Member for South Swindon says, it matters.

The hon. Member for Stone opposes the Lords being able to come back with SI amendments. Actually, this House would be able to override them under Lords amendment 42B. If he had bothered to have the courtesy to look at what the Lords had said, and bothered to listen to a former parliamentary Clerk of the House who helped draft it—not a great remainer by any means, but somebody who cares passionately about parliamentary democracy—he would recognise that this is about trying to make the process better. He would recognise that our constituents deserve better than a simple email saying, “We have no idea what’s being deleted and we could not stop it anyway,” because that is the point about SI Committees.

I am done with being lectured that this is somehow about Brexit and that those of us who have concerns about parliamentary democracy in 2023 should look at the 1972 Act, because I can see what could happen in 2024 and 2025, and my constituents deserve better than this. We cannot have a legislative process that simply says we have to trust the chaps and chapesses who are Ministers and in Downing Street to do the decent thing. If the hon. Gentleman had sat in his own Committee and listened to Ministers dismiss his own concerns, he would know the folly of such a position.

Conservative Members will vote down these amendments yet again, and they will go back to their constituents and tell them not to worry, but the truth is that they should be worried because we do not know what rights will be affected. As far as I can see, given that Ministers committed to abolishing them, the only reason why the Bauer and Hampshire judgments are now being kept is because they have been caught red-handed using a Bill to override something they know our constituents would want us as MPs to speak up about. We must never let anybody on the Conservative Benches or who said they were speaking up for democracy through Brexit tell us ever again that Brexit was about taking back control. It is taking back control to Downing Street, not this place, and our constituents deserve to know that truth.

[Several hon. Members rose—]

Retained EU Law (Revocation and Reform) Bill

Stella Creasy Excerpts

Consideration of Lords message
Wednesday 21st June 2023 Commons Chamber

[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—

[Sir William Cash]

Will the hon. Lady give way?

[Stella Creasy]

With the greatest respect, I have listened at length to the hon. Gentleman and I am conscious of time. I simply recognise the parallel with the charge of the Light Brigade in that, at first, the cavalry was lauded, and only later did we see the damage and destruction and only then did the British people hold them accountable. It will be the same when he argues against the very principle of ping-pong, which is about scrutiny.

The hon. Gentleman matches the arrogance of the Minister, who first of all challenged the proposals put forward by the Lords on the basis that they were a novel process—they were not; they were based and rooted in parliamentary expertise from a former parliamentary Clerk, who had plenty of experience of the different mechanisms of scrutiny that can be brought to bear—and now complains that the Lords, having listened to the debate in this place and tried to find a compromise, have come forward with another proposal. That is not good enough for him either.

Yet, all along, the Minister wants to claim that the Government have listened, while the Government have failed to table a single alternative proposal or to make a single suggestion to reassure those of us concerned that, if we give up 4,000 areas of legislation to Ministers to use SI Committees, we may as well all go home, because we will be bystanders to the parliamentary process. It is sheer arrogance to suggest that scrutiny is additional friction; it is called asking questions. Even Back-Bench Conservative MPs would think that that is a good idea, because it is a mistake to think any Government get it right all the time. That is why we have scrutiny and a process of trying and testing legislation.

“Computer says no” speaks to the real truth behind Brexit and behind this legislation, which is that the Government never intended to listen to the British people at all, because they never intended to give powers to the people who represent them. That is why it is an insult to democracy to see all this. Constituents across the country will be deeply concerned about a Bill that will allow the Government to revoke or water down legislation without any scrutiny at all, beyond possibly waving it through a five-minute Committee sitting.

People are concerned about environmental standards, which Lord Krebs is trying so hard to protect, and which the Government say they will protect—yet they will not write that down. That should be very telling, because we shall see that that becomes a developers’ charter. We shall see, for example, people trying to develop Holton Heath, which I am sure the Minister is well aware of, a site of protected heathland in his own constituency. Development was refused for that site on the basis of the special protection areas and special areas of conservation—both regulations that will be abolished under the Bill, unless the Government write them back in.

That development attempt was rebuffed, but the Minister’s constituents can have no confidence that development will not be proposed on that site again if we lose those pieces of legislation. The fact that Ministers will not write in the Bill that that absolutely will not happen, and the fact that we have not had that clarity over those pieces of legislation, should give his constituents pause. It would certainly give my constituents concerns about somebody seeking to develop the Walthamstow wetlands, for example.

The proposals before us today reflect the Lords listening and trying to find a way forward. They are talking about a non-binding form of legislative scrutiny, whereby the Commons could suggest amendments to a statutory instrument. The Government could even refuse to accept those amendments, but it would be a process of scrutiny and accountability—the mildest form we have seen—and yet, still, computer says no.

The Minister might think it is acceptable to be this arrogant about the concept of parliamentary sovereignty. Conservative Members might shake their heads and say, “The good chaps and chapesses of this Government could not possibly do anything wrong. Of course they will be sensitive to the electorate.” I am not sure the electorate think that that is the case. If the only opportunity for challenge and scrutiny is at a referendum or election, our capacity to make good laws—the whole point of this place—is gone.

I am sure, based on what he just said, that the hon. Member for Stone will now be leading the campaign for the abolition of the House of Lords—or at least for an elected House of Lords. Certainly I presume he will not take up a seat in the other place when he leaves the Commons. But that is the point, is it not? Our time here might be fleeting but, if we start unpicking the strands of parliamentary scrutiny, the processes that exist and our capacity to speak up for our constituents when their rights are affected, the damage will be everlasting.

The Minister might dismiss people such as me, still looking for those elusive benefits of Brexit seven years on, but he cannot dismiss the concerns of thousands of constituents. I hope he will finally engage in a serious process with the Members of the House of Lords and stop dismissing them, because they come with the very best of intentions. If we are absent at work and not doing our job of defending democracy, somebody else must do so. I hope that this House will support Lords amendments 15D and 42D, because our environment and our parliamentary democracy deserve better.

[The Solicitor General]

With the leave of the House, I thank all right hon., right hon. and learned and hon. Members for their contributions to this debate. I was going to say I need not go into the fine details but, as my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) mentioned the “dirty detail”, perhaps I can touch on one or two of them.

I thank the shadow Minister for his engagement, as always, and for giving a welcome to the change of approach—although not a full welcome, of course—during today’s debate. I am grateful to him for his words. I thank my hon. Friend the Member for Stone (Sir William Cash) for reminding us about parliamentary sovereignty and the wise words of Lord Bingham. I know that his words will be studied carefully. I always enjoy listening to the hon. Member for Stirling (Alyn Smith) during the course of these debates; he is right that he is consistent, as the Government have been consistent throughout the process.

I disagree fundamentally with what the hon. Member for Walthamstow (Stella Creasy) says. She reminds us of the charge of the Light Brigade, which my right hon. and learned Friend the Member for South Swindon first introduced to the debates on this Bill some two debates ago. She mentioned friction and made a complaint about Back Benchers, but the suggestion of friction came from a Back Bencher, as I mentioned in my opening speech.

The hon. Lady says there is a failure to listen, but I disagree. There is a lot of listening and there is a disagreement. It is not the same. One can listen and one can still disagree; I disagree, having listened to what she says. One thing I am grateful to her for, though, is bringing cricket into this debate. That is always a welcome subject of distraction, so I am grateful to her for that and I look forward to reading it back.

If I may engage directly with my right hon. and learned Friend the Member for South Swindon, I am grateful to him for his words. I agree with him that the example he gave, of 60 sitting days starting in July, is a significant period of time. I am afraid he and I will not agree entirely on that, and he will not be surprised by that. I encourage him to look at schedule 5 and the sifting Committee. I know he understands the point and he heard my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones), who explained two debates ago the detailed work that his European Statutory Instruments Committee does. He diligently gets on with that work—he described it as dry work, but it is important work and I know he will continue that work with his Committee.

I was delighted to see agreement between my hon. Friend the Member for Stone and my right hon. and learned Friend the Member for South Swindon; it was similar to the agreement between my hon. Friend and neighbour the Member for North Dorset (Simon Hoare) and the right hon. Member for East Antrim (Sammy Wilson)—a rare moment, but an enjoyable one nonetheless. I simply repeat to my right hon. and learned Friend the Member for South Swindon that our concern with the approach is that, by adding such a significant amount of time, the amendment would place in doubt the effective use of the repeal and replace powers before they expire, and that is an important part of the Government’s programme for smarter regulation.

It is vital that we bring this most important Bill to Royal Assent as quickly as possible. This House has made its view clear twice before and I ask that it makes its view clear for a third time. I encourage their lordships to take note of the strong view from this House and the fact that the will of this House should be respected.

Question put, That this House disagrees with Lords amendment 15D.