Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, people watching these proceedings will be astonished that this House seems minded to obstruct this Bill and to fail to fully engage with the difficult and messy process of self-government as an independent, sovereign parliamentary democracy, arising from the largest plebiscite in British history in 2016.

The Bill should be seen in the wider context of what went before and what is proposed, a wider historical context—what I might call the Benn challenge. In his valedictory speech to the House of Commons in March 2001, Tony Benn asked of those tasked with exercising power:

“What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?”—[Official Report, Commons, 22/3/01; col. 510.]


Is that not the fundamental question at hand in considering the Bill today? The fact that the EU failed to answer that question is why Brexit happened.

The Bill’s opponents are mostly well-meaning and sincere, and I accept that, but many observers will see an effort to thwart Brexit and render it a failure. Some noble Lords pray in aid the need for scrutiny and oversight, but they were silent when 265,490 EU laws, judgments, directives, regulations and decisions—the mythical EU acquis—mostly taken behind closed doors and rubber-stamped by the European Council of Ministers, were forced on our sovereign Parliament between 1973 and 2020 by virtue of one Act of Parliament: the European Communities Act 1972, Section 2. No one voted for that, unlike Brexit and the Conservative Party manifesto in 2019, and the elected House just last month, which gave this Bill a healthy Third Reading majority.

The withdrawal Act 2020 specifically and formally recognises in Section 38 the right of the UK to exercise—in its own way, within its autonomy and independence through a sovereign Parliament—its own legal regime. It was also well understood in 2018 that the withdrawal Act was iterative and transitional legislation, so a sunset clause is both logical and inevitable, although perhaps arbitrary, and any attempt to extend it beyond either 2023 or 2026 will be viewed as lacking democratic legitimacy.

There is no evidence—this is the Chicken Licken argument—that the Bill will inevitably lead to a weakening of our own domestic legal rights and protections. In any case, no Government can bind the hands of their successors. Any policy development that is against the interests of working people in this country will be judged harshly, and the efficacy of those policies will be judged at a general election. That is the basis of democracy. It is not our place to second-guess the views of the electorate at a forthcoming general election.

We now have opportunities to develop new policies and make our own laws on animal welfare, on vaccine rollout, on freeports and on diverging from EU solvency rules. The Bill honours the commitment made to the British people in 2016 and 2019. I regret that I have not been able to rebut the findings of the committee report published last Thursday, but in due course we will do that in Committee and on Report. Essentially, EU legal and political supremacy has no place in a mature, independent, self-governing democracy.

Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, that is exactly the point I have been trying to make: it is how we manage the land that is important. We can improve biodiversity in this country and we can produce the food on the same land, working together, because that will give us the right answer—but it is not relying on directives. Where I probably disagree with the noble Lord, Lord Krebs, is that the result of the various directives has been that we have pockets of land that have special protection and we do not join up those pockets: we have barren deserts in between. That is something that I know my noble friend Lord Benyon is working on with the ELM scheme, but that has to complement the directives and we have to get back to a whole-land approach, rather than just a spot approach.

Will my noble friend confirm that future amendments and changes to directives will be done with best science and not emotion? Defra made too many decisions on emotion and not enough on science in the past. Will he confirm, on a point raised by the noble Lord, Lord, Kerr of Kinlochard, on the last group, whether Parliament will have any say on which regulations Defra is going to drop? If Defra mistakenly decides to drop something and we have not had a chance to look at it, we cannot be culpable, but Defra will be, and it is much better that we all look at it.

[Lord Jackson of Peterborough (Con)]

My Lords, I was not intending to speak, but I was prompted by the challenge from the noble Baroness who represents the Greens, who spoke with great erudition, expertise and passion and is a credit to the House for that. It is important that we look at the general principles. Of course, we are talking about environmental regulations amendments, but I sometimes feel that I am the only sane person in the asylum, frankly. We are a sovereign Parliament, yet we are pushing back on the idea of governing and holding the Executive to account, as if we are not able to do that.

If noble Lords look at the preamble to the Bill, it is not about casting aside these regulations; it is not about traducing those regulations and the Great British tradition of environmental protection and health and safety; it is about modifying, restating, replacing and updating. The fact is that even the EU, when developing regulations, was always developing them on an iterative basis; it did not have the regulations ossified 30 or 40 years ago; it was always developing them—even the REACH regulations that the noble Viscount, Lord Stansgate, mentioned earlier. Therefore, it is exactly the same process that this Government are going to pursue.

The idea that Ministers are not accountable at the Dispatch Box for bringing forward or updating regulations is clearly nonsense: they will always be. I have to disabuse the noble Lord, Lord Kerr, of the idea that this has not been properly debated in the other place. First, it passed Third Reading by 53 votes, and he may not know that there was an enormous campaign from NGOs and charities aimed at wavering Members of Parliament. So the idea that it was sneaked through and disregarded by the greater electorate is absolutely not the case.

There is an idea, too, that we are writing a blank cheque. Having considered the Bill in the other place and here, and having considered other committee reports, including from the Delegated Powers and Regulatory Reform Committee and the Select Committee on the Constitution, there have been hours and hours of debate. To then, when it gets to this House, say “We don’t like the Bill, so let’s just ignore it”, would plunge this House into a very bad place in terms of democratic accountability.

The criticism from the people in this country is that our politicians are not up to the job of governing, and, at the end of the day, that is what we have to do. We have to govern. We have to make a decision. The challenge, as was shown only yesterday in what the Prime Minister brought back in the Windsor agreement, is that we can make Brexit work. It is not ignoble for many Members to take a view that Brexit was a mistake—many Members in this Committee take that view—but, nevertheless, this is a Bill about accountability and keeping that bond of democratic accountability and trust with the electorate. I think some Members of your Lordships’ House need to understand and concede my final point, which is that this Government would be crazy to go into a process of reducing—

[Lord Clarke of Nottingham (Con)]

I do admire my noble friend’s defence of the impeccable parliamentary democracy which lies behind the Bill, but I think the author of it was Jacob Rees-Mogg, and I think his principal aims were to make sure that all law was British law and none of it was foreign law, for ideological reasons. I think he thought of it as deregulatory, producing lower and, in his opinion, less costly standards, which is why a rule was put into the Bill that it could not actually raise any of our standards. My noble friend’s present passion in defending it does not actually reflect the motives behind the Bill, and yesterday’s triumph was an abandonment of an otherwise similarly absurd approach, epitomised by the Northern Ireland Protocol Bill.

[Lord Jackson of Peterborough (Con)]

I thank my noble friend for making that point, but mea culpas go both ways. Some of us were saying four years ago that some of those technical solutions could have been tried then, and we were accused of magical thinking. In fact, we were actually right. So just to wind up—because I know the Minister, for whom I have an enormous amount of respect, is staring at me—I think the Bill should go through. It would be offensive to democracy for it not to go through, and I look forward to a position where it gets Royal Assent eventually.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is offensive for democracy if it does go through.

Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, very briefly, I too added my name to Amendment 16, so well introduced by the noble Baroness, Lady Jolly. I simply remind the House that, when we remove legislation and regulations, it can have unintended consequences. There is evidence that accidents happen. For example, if we abandon working time directives and regulations, when people are overtired their accidents can be fatal—and there have been fatal accidents. Let us not lose sight of the clear evidence of harms when regulations are no longer in place, because lost lives cannot be reclaimed or replaced. The amendment proposed by the noble and learned Lord, Lord Hope, provides a check mechanism for Parliament to look at regulations and allow scrutiny before things are abandoned. Therefore, although I do not anticipate Amendment 16 being pressed to a vote, I strongly support Amendment 2.

[Lord Jackson of Peterborough (Con)]

My Lords, I will speak—briefly, I hope—to the Government’s Amendment 1. I direct your Lordships back to the comments of the noble Baroness, Lady Fox, who is absolutely right: this Bill, in its current position on the Order Paper, is substantially different from the Bill that was considered by the House of Commons and at Second Reading by this House. If we are to properly scrutinise and analyse the Bill, and have proper oversight of it, we have to be cognisant of that fact.

Notwithstanding the comments of my noble friend the Deputy Chief Whip, where else are we going to acknowledge the very substantial and significant change that has come as a result of the Government’s announcement last week? It is a reasonable point to make. If this were any other Bill—any other potentially epoch-making primary legislation—your Lordships would be up in arms about the fact that we are rushing through on Report the Government’s amendment to Clause 1, which effectively rips up the Government’s policy on the Bill.

I defer to no one in my admiration for my noble friend Lord Callanan, the Minister. I worked with him in DExEU in the run-up to Article 50 and the TCA. He is one of the most gifted Minsters. He has obviously had a very difficult time in your Lordships’ House, putting a viewpoint that has not always been universally popular.

However, the wider context is very important, as put forward by my noble friend Lady Noakes. The Prime Minister did say that in his first 100 days as PM we would review or repeal post-Brexit EU laws. Indeed, that bastion of blue in tooth and claw Conservatism, the Independent newspaper, described the government retreat as a course of action that

“turns the logic of the bill on its head”.

I do not underestimate the task that we as a Government—or this House and the Government—gave to civil servants. In fact, the agency Thomson Reuters estimated in 2017 that 52,741 laws were introduced in the UK as a result of EU legislation between 1990 and 2017. Many of them of course were worthwhile and much needed, but many were about protecting boondoggle schemes, market distortions, oligopolistic behaviour and were designed to ossify market dominance, restrict the need for innovation and lock out more agile and dynamic competitors.

Notwithstanding that, I welcome the Government’s sincere endeavours to both review the regulations and to deregulate more broadly. But we have seen that 52,000 shrink to 600. Most EU laws will remain on the statute book, seven and a half years after in the EU referendum we decided to take back control and trust our own elected politicians rather than a foreign legal entity—in this case the European Court of Justice.

Ministers pray in aid the capacity and capability—or not—of civil servants to scrutinise, prioritise and audit so much of our retained corpus of EU law. But I saw, in my role as a special adviser in the run-up to the TCA and the Article 50 process, that with firm and principled political direction and drive, so much more could have been achieved with vision rather than capitulation.

In fairness, it is not solely the responsibility of this Administration. I concede in all fairness—it would be churlish not to—that the previous Johnson Administration could and should have legislated for a Bill in 2021 rather than last autumn. The Government have resiled from a well-understood political commitment, which voters supported with a strong mandate, and which passed, as my noble friend Lady Lawlor said, in January in the Commons.

No one ever voted for these proposals. The Government have picked a side: big business, senior civil servants, special interests, well-remunerated lobbyists and the ex-Mandarin cohorts ably represented in this House. Leave was the biggest vote in British electoral history, but that counts for nothing as opposed to the pearl-clutching vapours of big business, self-interest and shareholder value dressed up as defending parliamentary sovereignty and concern for “significant uncertainty”. Whither the vision of self-government, independence, democratic renewal and sovereignty of June 2016? Instead, we have the cold pragmatism and cynicism of a technocratic elite.

This has not been handled well by the Government. I refer in particular to the lack of proper scrutiny by the European Scrutiny Committee in the other place, and the failure of the Minister to properly attend to those issues.

I will finish by making reference to Schedule 1. We are offered the mere scraps from the table with the new schedule. It is not so much a bonfire of regulations but a damp, fizzing Catherine wheel. There is no fundamental interest in that schedule in the governance of our country.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Jackson of Peterborough (Con)]

I will have my say; plenty of people have had a say on the other side.

The disillusionment of people who supported Brexit in good faith is bad for democracy. People are beginning to ask, “Does democracy work?”

[Lord Hacking (Lab)]

My Lords, I will move the House away from the Bay of Biscay and back to this Bill. I tabled Amendment 7, that Clause 1 should not be retained, but I will not move it in view of the radical changes that the Government have brought to the Bill. I therefore easily support the noble and learned Lord, Lord Hope, on his Amendment 2. However, I do so with a substantial caveat: that whatever decisions are made by way of advice from the Joint Committee. We must remember that the Joint Committee’s central role is to decide whether the item of legislation before it will bring about a substantial change to current UK law, although the Joint Committee will also bring other considerations.

Important as that is, this is only part of our duty; indeed, our duty is to the whole of the Bill and to the whole of the new schedule before Schedule 1. The Minister referred to 600 specified pieces of EU law, which are represented in the long list represented in the long list before Schedule 1. I have done the arithmetic—even though my arithmetic has never been quite perfect—and the total is 928. We have a responsibility for every one of those 928 EU measures.

I ask your Lordships to concentrate on our wider responsibility, such as whether there is a need to revoke a particular piece of legislation. Is it causing any harm? There are a number of other tests which your Lordships should apply, but which will not fall under the remit of the Joint Committee. I draw noble Lords’ attention to the six sets of Habitat (Salt-Marsh) Regulations stretching over pages 24 and 25 of the Marshalled List. The question, for which we have a responsibility to answer, is: are they defective? If so, how?

Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I am grateful to my noble friends Lord Jackson of Peterborough, Lord Frost and Lady Lawlor for adding their names to Amendment 51A.

The Government have made very significant changes to the Bill, with the new schedule revoking around 600 pieces of retained EU law, in place of the previous plan to revoke all extant EU law, broadly, at the end of this year. As I said on Monday, I welcome this pragmatic approach, but it has created a new need for visibility of progress in dealing with the total population of retained EU law, and my Amendment 51A tries to give that visibility.

Specifically, my amendment introduces a new clause which calls for the Secretary of State to prepare a report within six months of the Bill passing and every 12 months thereafter. That report should show the status of all items of retained EU law, other than those being revoked by the Bill, together with the Government’s plans for dealing with them. Subsection (2) of the new clause proposed by my amendment requires the reports to be laid before Parliament, and subsection (3) says that the reports should continue until all the items of retained EU law have been dealt with.

Last week, the Secretary of State for Business and Trade assured the other place that the revocation of the 600 bits of EU law in the new schedule was not the limit of the Government’s ambition, and I would certainly like to believe that. My fear is that once the Bill is passed, government departments will heave a sigh of relief and move on to things that are more interesting than working out what to do with their retained EU law.

Legislation cannot make the government machine complete the task, but it can provide for transparency, and I see this as having two benefits. First, the Secretary of State for Business and Trade will have a tool at her disposal to keep the pressure up on her Cabinet colleagues to do their part. Secondly, and perhaps as importantly, Parliament will have information which it can use to hold the Executive to account.

I was already concerned about how to monitor progress on dealing with retained EU financial services legislation. That legislation has been carved out of the Bill and is dealt with in the separate Financial Services and Markets Bill. In the other place last week, the Secretary of State for Business and Trade claimed that 500 pieces of retained EU law will be repealed by the Financial Services and Markets Bill by the end of this year. Unfortunately, this is not true. Schedule 1 to that Bill contains long lists of financial services laws which are identified for repeal, but repeal will be activated only when the Treasury decides to do so, and it will certainly not be by the end of this year. The Treasury has been clear that the process will take “a number of years”, and it has no plan or timetable to complete the work. I already have some amendments ready for Report on the Financial Services and Markets Bill next month.

Given the initial drafting of the Bill, I thought that the Treasury’s approach to retained EU law was going to be the exception, but it now appears to be the new normal. What happens to retained EU law and when it will be determined by the various government departments is not clear at the moment. I want to ensure that progress on dealing with retained EU law across the whole of government is kept in sharp focus.

I drafted this amendment in haste once the Government had tabled their own amendments to the Bill last week. I am fairly sure that the Minister’s lawyers will be able to tear it apart, but I hope he will see it as an opportunity to create a transparency and oversight mechanism that will complement the Government’s new approach to retained EU law. I beg to move.

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to follow my noble friend Lady Noakes on this issue, and I am delighted to have had the opportunity to support her by adding my name to the amendment. Noble Lords will remember that during the passage of the EU withdrawal Bill there was a great deal of discussion about whether this House sought to gain for itself executive powers—that is, to become the Government in directing government policy with respect to the withdrawal Act and exiting from the European Union, rather than performing its proper constitutional role, which we all concede is effective scrutiny and oversight.

This amendment is a helpful compromise in seeking to direct Ministers, the Government and the Civil Service to a place where we can all agree. I am sure that noble Lords who earlier this week supported Amendments 2 and 4 and spoke to Amendment 76, which I gather later today we are likely to divide on, will welcome this amendment—you need congestion charging on the road to Damascus, because the traffic is quite heavy at the moment. Those who were happy to turn a blind eye to the huge corpus of EU legislation from 1973 to 2020 are now praying in aid the importance of scrutiny and oversight. That being so, this is a good vehicle to give effect to that, particularly the need for periodic reviews of the Government’s progress on the dashboard.

As I made clear when I spoke earlier in the week, people are watching how this House and the Government ensure that the decision they made in 2016 is given proper effect. While I understand that this House cannot instruct the Government, this is a good way of achieving compromise. I expect a majority on all sides of the House to give my noble friend’s amendment their strong and emphatic support, and I fully expect, since the Minister has an opportunity so to do, an amendment to be laid at Third Reading that consolidates this amendment. If that is possible, I think there will be a strong consensus as the Bill goes forward. In the meantime, I strongly support the amendment and I hope noble Lords will give it their support.

[Baroness Lawlor (Con)]

I have added my name to my noble friend Lady Noakes’s Amendment 51A, and I would like to follow on from what she has said. It is important that the legislative momentum for sunsetting, removing or revoking EU legislation be kept up. The reporting requirement on the Government will, as she said, keep up the momentum and help the Government and indeed Parliament to keep track of what has gone, what is yet to go and how further regulations, if any, will be modified.

There is a very good reason for doing this, and it relates to cost. Ultimately, it is people who bear the costs, either through what they pay for goods and services or through their taxes for government compliance costs in dealing, as now, with two systems of law: EU retained law and our own common law.

I hope the reporting requirement will enable us all to know where we are going and help us keep track of getting rid of that which the Government have pledged to get rid of or modify where necessary. That is very important in the interests of efficiency, for everyone, not just businesses. It is also important for transparency. Not only does regular reporting help the momentum; it will make for fairness so that we are all clear about the rules. I hope it will mean greater prosperity, which we need to encourage. In my view, we need to move back more thoroughly to our common-law system, and that is something on which I hope to touch when we consider the next group of amendments.

Retained EU Law (Revocation and Reform) Bill

Lord Jackson of Peterborough Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

[Lord Cormack (Con)]

My Lords, “Do not take to yourself powers that you would not wish your opponents to have” is the substance of the noble Baroness’s speech, and I agree with that. I greatly admired the speech made by my noble friend Lord Hamilton at Second Reading. I admired his courage in putting his name to the amendment and I totally respect his view that one has to consider and judge how long ping-pong should go on. So, there is no disagreement between us on this issue, even though we were on opposite sides in the Brexit argument.

But I come down very strongly in favour of the points made by the noble Lord, Lord Lisvane, who, remember, is a very distinguished former clerk of the House of Commons and understands these procedural matters perhaps more than any of us. The noble Lord, Lord Anderson, called in aid the noble and learned Lord, Lord Judge, and we do indeed all miss his presence today and wish him a speedy return to full health and to vigorous debating in this Chamber. He has, perhaps above all of us, talked of the danger of Parliament becoming the creature of the Executive. That is to turn our constitution on its head, and it is something that none of us should be complicit in.

We do have a duty in this House, if we think the other place has got it wrong, to say, “Please reconsider”, and it is not in any way an aggressive use of our limited powers if we think their rethink, which did not take very long, has not been adequate. Therefore, I believe it would be entirely consistent with our relationship with the other place, and with our duty to Parliament, of which we are the second House, to say to our friends and neighbours along the Corridor, “We think you have got this wrong: you are giving power to the Executive which no Executive, be it Labour or Conservative, should have”. I do not want them to have it if they come into government, and I do not think it is right that we should have it. For those reasons, I shall support the noble Lord, Lord Anderson.

[Lord Jackson of Peterborough (Con)]

My Lords, I oppose the Motion in the name of the noble Lord, Lord Anderson of Ipswich. For what it is worth, I support the new iteration of Amendment 16, to which I put my name on Report, in Motion D.

I very much respect the noble Lord, Lord Lisvane, and indeed my noble friend Lord Cormack, but I think we are missing the bigger picture here. We are effectively asking the other place to invalidate a Bill, for reasons I will develop shortly, which it passed by 53 votes when the will of that House was last tested. As I have said before in this House, I think there is a danger of legislative overreach—of assuming powers and of imposing responsibilities and obligations on the elected House, fettering its discretion and, by so doing, interfering in its rights and obligations. Notwithstanding what my noble friend Lord Cormack said, yes, it is our duty and responsibility to ask the other place to think again, but we have already done that. It has thought again and debated the issue. I have to agree with my noble friend the Minister. He is far too polite to describe the approach outlined by the noble Lord as it truly is: extremely radical. He described it as a “novel” approach.

Let us think about what this Motion would mean in practice. If we are in the business of improving governance by scrutiny and oversight, unless we vote for a fatal Motion to kill the Bill—which is very unlikely, because the Opposition Front Bench would not support such a move—surely the logical corollary is that we want to improve it. The perverse application of the noble Lord’s amendment would result in quite the opposite. The opportunities to revoke and, importantly, to reform the caucus of EU retained legislation would be slowed. There would be a process of delay and obfuscation, and it would not be effective government. In fact, it would be a betrayal of the responsibilities and duties we have as the upper House in scrutiny and oversight. Indeed, even above that, the Motion would invalidate the very raison d’être of the Bill, which has to exist. The noble Lord’s amendment is too rigid. It is instructive, and it would assume the powers of Ministers. In some respects, it would make this House itself part of the Executive in a way that Amendment 16 did not, which was much more permissive, declaratory and flexible in seeking to get to the same objectives.

For those reasons of legislative overreach, inadequate scrutiny and oversight, and delay and obfuscation if we were to go down the path of this Motion, I respectfully ask your Lordships’ House to reject it and support the Government.

[Lord Inglewood (Non-Afl)]

My Lords, having sat quietly listening to the debate, which has focused on all kinds of minutiae over the past few weeks, I cannot help but conclude, taking an overview, that if we look at the history of Parliament we see that for hundreds of years it has had a tense relationship with the Executive. Over that period, it has developed a framework within which, in the interests of the British people as a whole, the Executive exercise their powers. We have had civil wars over it; people have died in that cause. Now we are being asked, it seems to me, to put that process into reverse. We are being asked that Parliament should move in the opposite direction and return to a system of governance where the Executive have ever more increasing control over everyone’s lives. I do not think that is the way we in this Parliament should respond to those kinds of circumstances, and it is my personal view that to do so is craven.