Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

2nd reading
Tuesday 25th October 2022 Commons Chamber

[Sir William Cash (Stone) (Con)]

I add my personal best wishes to my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg) following his resignation from his post. I commend the Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Watford (Dean Russell), for his excellent opening speech that he delivered at such short notice, and for his dexterity in answering questions.

Over the past 45 years, before we left the European Union, we were governed by and subjugated to European laws that were made behind closed doors by majority vote and without any transcript, such as we have here every day in our own Hansard in our own Parliament. Manifestly, that was not democratic and it was rejected in a referendum of all the people in this country and in the general election of 2019. Nobody can now justify returning to that undemocratic system of Government and the EU system of law making. It does not work, as we can see from the political resistance and national democratic changes that are taking place now throughout the European community, such as in France, Italy and Poland and throughout the whole continent. President Macron’s bid to create European sovereignty in his recent elections has paralysed his Government.

The sovereignty of our democracy and of the United Kingdom is guaranteed by section 38 of the European Union (Withdrawal Agreement) Act 2020. This sovereignty is not theoretical or constitutional; it is our democracy and is in line with the referendum result of 2016, which was endorsed by the results of the general election of 2019. We were elected on a manifesto, which I am glad the Prime Minister emphatically endorsed this morning as being, as he put it, at the “heart” of our mandate, including embracing “the opportunities of Brexit”, encouraging competitiveness, investment, productivity and some deregulation and innovation, such as our world- beating roll-out of vaccines, including the AstraZeneca vaccine, which, by the way, the EU tried to stop altogether.

We now have the opportunity to deliver those commitments and to stabilise this country against the background of the £400 billion spent on covid, and the increases in inflation, interest rates and the cost of living brought about by President Putin’s energy deal with Germany, which I predicted would create geopolitical and European instability in an article in 2001, which was commended by The Times. Covid and Ukraine were external factors; they were not caused by this Government, and they are at the root of our current problems.

Most other countries in Europe are experiencing a worse cost of living crisis and economic downturn. Our unemployment rate, for example, is running at only 3.5% and our job vacancies, according to the latest figures, stand at approximately 1.2 million. There are those who claim that we need legal certainty—I have heard that argument—but what is certain is that it would be untenable and hopelessly uncertain to have two statute books and two systems of interpretation.

As the Government have said, retained EU law was never intended to remain on the statute book indefinitely, but was preserved as a temporary bridging measure following Britain’s exit from the European Union. This Bill is an essential component in resolving that. It gives us the opportunity to remove unnecessary laws that restrict our competitiveness and growth and enables us to realise our potential as a sovereign independent nation, making our own laws through our own Members of Parliament, from all parts of the House, who were elected by the voters of this country in the general election. This is the fundamental issue that we have to address. This EU-derived law did not have UK levels of parliamentary scrutiny, as our traditional domestic, sovereign legislation demands, and was made subject to goings-on in Brussels behind closed doors. It is right that we should have full control over our domestic legislation.

My right hon. Friend the Member for North East Somerset mentioned the ports directive, and I remember it terribly well. It was opposed by every single person in this House who had representative objections put to them by people from the trade unions, from the Government and from the ports employers. Every single sector involved in the ports legislation refused to accept it, but it made no difference; it went through anyway. Indeed, I can honestly say that, since 1972, and certainly 1984, since I have been in the House, not a single piece of European legislation passed under the auspices and direction of section 2 of the European Communities Act 1972 has ever been rejected by this House. This is an opportunity to put right that democratic absurdity. The simple fact is that retained EU law currently on the statute book lacks the legitimacy that we have in our Acts of Parliament. This Bill removes the supremacy of EU-derived law, much of which was created by the Council of Ministers, as I have pointed out, behind closed doors and without a transcript.

I was pleased to read in the Government response to our latest report, “Retained EU Law: Where next?”, that:

“The Government recognises the incongruous nature of Retained EU Law, particularly the principle of EU supremacy, which has no place in the legal system of an independent, sovereign nation”.

I am glad that that is clearly the basis on which the Prime Minister made his comments this morning, and I was actually encouraged, somewhat ironically—because I do not put too much trust in them, to say the least—by the remarks made about Brexit from the Opposition Front Bench.

The European Scrutiny Committee recommended that

“when retained EU law is modified by domestic legislation, the Government ensures that the amending legislation clearly indicates whether the modified legislation is to keep the status of retained EU law. We consider that the status should not continue.”

I am pleased that the Bill makes provision for that, and I welcome the inclusion of the sunset provisions to provide clarity and an effective timeframe for the repeal of all EU retained law, which is essential.

The director of the CBI on the “Today” programme this morning basically agreed that the Government have, as he put it, levers at their disposal that can support the growth push that we will need. He actually used the words:

“The growth imperative is bigger than before”.

He specifically mentioned, as part of that growth imperative, “different kinds of regulation”, and put growth at the heart of what he was talking about, because he knows it is true, Conservative Members know it is true and Opposition Members know it is true. We need growth and productivity. It is essential that we deploy these levers to achieve that growth, and in unity, to realise our potential and improve our competitiveness and our capacity for investment. I strongly support the Second Reading of this Bill.

[Hilary Benn (Leeds Central) (Lab)]

Here we go again: another piece of legislation introduced in the name of Brexit, which we were repeatedly told was about restoring Parliament’s sovereignty and supremacy, and yet one that gives Ministers absolute control over whole swathes of legislation that impact upon our national life by cutting Members of Parliament out of the process almost altogether, and the public as well. This is what the Hansard Society had to say:

“The Bill…Sidelines Parliament because it proposes to let all REUL expire on the sunset deadline unless Ministers decide to save it, with no parliamentary input or oversight.”

This is a shocking Bill. As I see it, one of the main purposes of the Bill is presentational: it is trying to remove the words “Europe”, “European” and “EU” from the statute book. It is a form of linguistic and legislative purge, which may make those who argued to leave the EU feel better, but it does not add to the sum total of human happiness. The former Business Secretary, the right hon. Member for North East Somerset (Mr Rees-Mogg), who has just left the Chamber, made it crystal clear what the aim was when he wrote to me on 13 October and said that the Bill will require Departments

“to remove unnecessary or burdensome laws which encumber business and no longer meet the Government’s policy objectives.”

I remind the House that one person’s burdensome law is another person’s safe working conditions; it is their right to take parental leave.

At a time of great uncertainty and economic difficulty, what the Bill does is simply add to the uncertainty. This point was brilliantly made by my hon. Friend the Member for Stalybridge and Hyde (Jonathan Reynolds). What businesses want to know is what the rules are and what the framework is, because that knowledge provides them with certainty, on the basis of which they can invest and carry out their work. The Government are doing the absolute opposite with this Bill. They are saying to every one of those businesses and would-be investors, “We just need to point out that the laws, regulations and rules that are in place today may not be in place in the same form after Christmas 2023 if we don’t get round to saving them.” I cannot think of an approach more calculated to undermine confidence in the British economy and to deter would-be investors than the one in this Bill. I point out that we are not doing very well on inward investment—we have the lowest level of inward investment in the whole G7.

Part of the problem is that we have no idea, and I do not think the Government have any idea, which bits of EU law the Government want to scrap, which bits they want to amend and retain and which bits they want to keep in their entirety. We know that there is a list; reference has been made to it. It is not a little list—it is a jolly big list, and it is found on the famous dashboard. I echo the plea made by other Members: I really hope that the Government have counted everything. To paraphrase Lord Denning’s famous phrase, now that the incoming tide of EU law has ebbed away, have Ministers and civil servants searched every estuary, every river, every tributary and every salt marsh to make sure they have found all the bits of legislation that will be subject to this Bill? It is really important that they have done so, because if they have missed anything, that bit of legislation will fall in December next year—it will disappear from the statute book, whether Ministers want it to or not.

The next thing that is objectionable about the Bill is that, for the first time I can recall, it allows Ministers to change the law of this country by doing nothing—by simply watching the clock move and the pages of the calendar fall until December 2023 comes around. Even if Government Members agree with the aim of reviewing these laws—and there is an argument to be had for that—it is extraordinary that Ministers are asking the House to give them this power. The Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Dean Russell), who is no longer in his place, did a good job of moving the Bill’s Second Reading having come to it very recently, but he had no answer to the point I put to him, and I have yet to hear one in the debate, about why Ministers should be allowed to get rid of law simply by sitting on their hands.

[Sir William Cash]

The right hon. Gentleman is rather avoiding the point that the legislation came in with exactly the same arrangements and was imposed upon us by the Council of Ministers, by majority vote behind closed doors, and he knows it.

[Hilary Benn]

Well, what I do know is that I sat on the Council of Ministers for seven years as a Cabinet Minister and took part in discussions and decisions about directives. That is a point the hon. Gentleman never, ever mentions; it is like everybody was locked out of the room. He makes that argument to avoid addressing what is in the Bill. Saying that something in the past was not perfect—I happen to agree with him about the fact that we were not allowed to watch the Council of Ministers at work—is not an argument for what is proposed in the legislation before us today.

What is more, are Ministers seriously arguing that, given all the pressures and the things that the new Prime Minister no doubt wants to do, civil servants should spend time going through 2,417 pieces of legislation? I say good luck to the new Secretary of State for Environment, Food and Rural Affairs, whose Department has 570 pieces of legislation—the Department for Transport has 424 and the Treasury has 374—and who will have between now and next Christmas to decide what on earth to do about them. While they are valiantly trying to do that, there is absolutely no provision in the Bill for public consultation and there will be no impact assessment on any changes that they are proposing to make. It takes a particular type of genius to make an enemy of worthy organisations such as the Wildlife and Countryside Link, the Green Alliance and others by threatening that which we and they value in pursuit of a headline.

What about workers’ rights? What exactly is the Government’s intention, in detail, when it comes to the working time directive? We have often heard Ministers complain about some of the consequences of the working time directive, but at other times we have heard them say, “Under no circumstances will we weaken workers’ protections.” The Minister acknowledged that we have entered into certain commitments as a country—although that does not mean that the Government will keep to them, if the Northern Ireland Protocol Bill is anything to go by—and that certain employment and environmental legislative commitments are engaged by the trade and co-operation agreement.

We all know that, if we act in a way that the EU thinks gives us an unfair competitive advantage, it can retaliate. How will it help economic growth if we are inviting the prospect of that happening? I listened carefully to the commitment that the Minister made from the Dispatch Box on environmental and employment laws, but I am sorry to say that it is still not clear what he means by that. It is the detail that matters, so what will be changed and what will be kept the same?

The Bill does its best to tell the courts what they can and cannot take into account when considering cases before them. The Government tried to do that previously with the European Union (Withdrawal) Act 2018 and they are back to have another go. One part in particular is extraordinary; clause 7(3) proposes to amend section 6(5) of the 2018 Act by substituting it with:

“In deciding whether to depart from any retained EU case law…the higher court concerned must (among other things) have regard to…the extent to which the retained EU case law restricts the proper development of domestic law.”

What on earth does that mean? Can any hon. Member explain what the proper development of domestic law is? I think that clause 7 is trying to kick the judiciary again into being more enthusiastic about Brexit, but Ministers know that in the end, the courts will take into account the things that they think are relevant.

I will say what I think will happen after this song and dance and all the chest beating about the wonderful new freedom. The Bill has not just one sunset clause, but three: 31 December 2023, 30 June 2026 and forever. Under clause 1(2), Ministers can decide to retain EU law in perpetuity or until such time as they choose to change it. I wager, therefore, that as next December approaches, many Ministers will find lots of reasons to use clause 1(2), because they will not have had time to decide what to do with the legislation.

In conclusion, this is a bad Bill. It threatens lots of laws that people value; it creates uncertainty; it takes powers away from the House; and it allows Ministers to repeal the law by doing nothing. For all those reasons, it should be rejected.

Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

Report stage
Wednesday 18th January 2023 Commons Chamber

[Mr Deputy Speaker (Sir Roger Gale)]

Order. Take out your mental editing pens, ladies and gentlemen, because you are going to have to start cutting your speeches in a big way. We have heard two very lengthy opening statements and a number of lengthy interventions. There are some 30 Members still wishing to take part and the wind-up speeches will start at 5.30 pm. I am going to call the Chairman of the European Scrutiny Committee and the SNP Front-Bench spokesperson, upon both of whom I would urge brevity, after which I shall impose a six-minute time limit on speeches, which may drop further under Mr Evans later on. I call the Chairman of the Select Committee.

[Sir William Cash (Stone) (Con)]

Having endured the last 40 minutes, I am bound to say, as Chairman of the European Scrutiny Committee, that although I will be relatively brief there are important matters that need to be discussed. I will raise them and give the House the opportunity to reflect on what I have to say.

This Bill was passed by this House without amendment. There were no amendments on Second Reading or in the Public Bill Committee. I have been Chairman of the European Scrutiny Committee for many years, and I have been on this Committee since 1985. I draw the attention of the House to the European Scrutiny Committee report tagged to this debate, published on 21 July last year. As the Minister said, EU retained law was never intended to remain part of our domestic statute book. I am deeply grateful to the Government for today’s round robin letter to all Members and to my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg) for his work on the genesis of this Bill.

We left the European Union with section 38 of the European Union (Withdrawal Agreement) Act 2020 guaranteeing UK sovereignty and democracy, and therefore UK democracy itself. It was the culmination of a process that began with my sovereignty amendment to the Single European Act in 1986, which, at that time, I was not even allowed to debate. In turn, that was followed by the Maastricht treaty and a whole series of treaties, enactments and debates on the Nice, Amsterdam and Lisbon treaties.

Incidentally, on the question of maternity pay—the only interesting thing mentioned by the hon. Member for Ellesmere Port and Neston (Justin Madders)—the UK actually has 52 weeks of maternity pay, while the EU has merely eight. On holiday pay, we have six weeks; the EU has four.

The views of the British people, as expressed ultimately in the 2016 referendum, repudiated the idea of our remaining in the EU by democratic vote, and the general election that endorsed that decision, under my right hon. Friend the Member for Uxbridge and South Ruislip (Boris Johnson) as Prime Minister, gave the present Conservative Government a large majority. The democracy that we enjoy is based on our unique and universally envied constitutional arrangements, whereby laws are passed in this House by a simple majority of MPs representing individual constituencies, who derive their authority exclusively from those who voted them into the House of Commons.

[Sir John Hayes]

This is the essence of the misunder-standing of the hon. Member for Ellesmere Port and Neston. The relationship between the Executive and the legislature is such that the Government receive a mandate from the people, but Ministers are answerable to this House. I am amazed that the hon. Gentleman has not grasped that constitutional fundamental.

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[Sir William Cash]

I am grateful for that intervention, because nothing could have been more obvious than the fact that the hon. Member for Ellesmere Port and Neston, and indeed many Opposition Members, simply do not have a clue about how the operations of the European Union function. I will deal with them in a minute, as the hon. Gentleman will find out—I would be interested if he would like to intervene and repudiate what I am about to say.

The Lords themselves—unelected, of course—are subject to the Parliament Acts, which may well prove necessary in relation to this Bill. This is therefore an issue of democracy.

I have watched and participated in the evolution of change in relation to European matters both in this House and outside, in referendum campaigns and the like, for the best part of 38 years. It is essential for those who are not so well acquainted with the manner in which EU law is made, which became more objectionable as the competencies in each of the treaties expanded, to appreciate just how undemocratic and unaccountable the EU system unequivocally is. I have to say that my own party is responsible for many of the problems that were created, but I am delighted to say that the democratic decisions of the British people have now demonstrated the need for this Bill, along with the fact that we have left the European Union.

The democratic deficit is one of the most important reasons—if not the most important reason—why we had to leave and why the Northern Ireland protocol arrangements and the Northern Ireland Protocol Bill are in need of immediate resolution. That Bill, which has passed all its stages in this House, is now becalmed like the Mary Celeste in the House of Lords, with nobody on board, pending agreement from the European Union to change its mandate and resolve this outrageous democratic deficit immediately.

As Con O’Neill, who negotiated our entry into the European Union, admitted in his 1983 report to Lord Hume—by then, far too late—the Government simply did not understand the undemocratic system that was and remains employed by the European Union. Many people, as is quite obvious from what we have heard in the past 40 minutes, do not have the foggiest idea what that means in practice and the way in which the European Union actually functions.

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

Will my hon. Friend give way?

[Sir William Cash]

No. In a nutshell, every single law that goes to the Council of Ministers, which is the ultimate law-making body, does so by a majority vote of the 27 member stated behind closed doors, without even so much as a transcript and in total secrecy. Indeed, I had an exchange with the noble Lord Clarke of Nottingham on this matter when he was still in this House in 2017. He made it abundantly clear in his response to an intervention that the real legislative power of the Council of Ministers was exercised in private, going on to say,

“I used to find that the best business at the European Council was usually done over lunch”,—[Official Report, 14 November 2017; Vol. 631, c. 215.]

which is fundamentally different from the way in which we have legislated since we left the EU and in this actual debate today. By contrast, we are conducting business today, and taking democratic decisions, by a majority of this House, which is proof in itself that it works.

In practice, in the context of the sunset arrangements in this Bill, clauses 12 to 16 provide delegated powers to restate, revoke and/or replace and update certain retained EU laws, which are secondary retained EU law and a new category of “secondary assimilated law”. Many of these powers are subject to the negative procedure, but the affirmative procedure is required where primary legislation is being amended or substantive policy change implemented. Some primary legislation is in the Bill. Where the negative procedure applies, the scrutiny system is similar to the work done by the European Statutory Instruments Committee, and it will be for the House to decide how that evolves in line with the democratic decision taken by this House today.

When the original proposals for the first withdrawal agreement Act were brought into effect, at my suggestion—I introduced a Bill on the subject—all EU law was then deemed to be UK law. But then remainers got to work and came up with the concept of retained EU law, which asserted the supremacy of the principles of EU law and decisions by the European Court. We may have left the EU, but a massive ball and chain was embedded in that Act preventing us from making our own sovereign laws on our own terms. I add, by way of parenthesis, that the Prime Minister responsible for that Act resigned—thanks to the Spartans.

Those laws had been made under sections 2 and 3 of the European Communities Act 1972. It is certainly true to say that since that date, not one single European law was ever repudiated by this House, because the provisions of that 1972 Act prevented it. We were therefore subjugated to the European Union and decisions of the European Court of Justice by our own irresponsible, voluntary abdication of the inherent and democratic procedures that evolved in this House over the best part of 400 years.

Our entry into the EU in 1972 was therefore a blind step into the void of an undemocratic and unaccountable system of government. These thousands of laws lack inherent democratic legitimacy, and must therefore be removed from and/or replaced on our statute book. The Bill also allows us to move back to the certainty implicit in the UK common-law way of doing things, as compared with the purposive interpretation of law by our judges, as laid down by the principles of EU law. Nobody can dispute that.

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[Mr Deputy Speaker (Sir Roger Gale)]

I have already exercised that judgment. If I thought that the hon. Gentleman was out of order, I would have ruled him out of order.

[Sir William Cash]

Thank you, Mr Deputy Speaker. So much for that.

Our system has relied uniquely on a large bench of high-quality, independent judges, who address points that are brought before them when people or businesses apply to the courts for remedies for perceived damage or misconduct. Through our traditional decision-making process, which must be interpreted in accordance with what is precisely set out in our sovereign Parliament, the judges must develop what is generally regarded as a fair and equitable system of redress, and set standards of care and determine consequences of breach in matters of responsibility and duty.

We therefore have to strip away vast amounts of inherited EU law, which operates on the constitutional code-based model that is alien to our system, so that we once again have a single common law system in our country—provided, of course, that we have the right people doing it, such as the Brexit opportunities unit, and that the task can be performed smoothly. In addition, economic research shows that this step will considerably enhance the UK growth rate, not by lowering standards but by removing or replacing voluminous, poorly drafted, generalised, purposive EU texts.

If we miss this opportunity, we will have shirked the core and inevitable consequence of the democratic decision that was taken by the people of this country. We must make our own sovereign democratic laws on our own terms, although on occasion, we may well decide to complement laws made in the US, parts of the EU or parts of the Commonwealth. Exchange across different constitutional arrangements sometimes leads to improved ways of doing things and improved laws, which is a good thing.

Ultimately, however, the simple test is what this House decides as the democratic law-making system under which we are governed; what the judges determine in the best tradition of our constitutional arrangements, which have been built up over many centuries; and how they interpret those laws in line with what our sovereign Parliament has decided. The work of the Brexit opportunities unit and of my right hon. Friend the Member for North East Somerset, to whom I pay tribute, as well as the work of my Committee, is absolutely enormous.

The principle of the Bill was agreed on Second Reading and, as I said, in the Public Bill Committee. I pay tribute to the Prime Minister and the Government for listening to the strong advice that I and others have offered. The Bill not only is justified democratically but, as enacted, will continue to be so. The freedoms that it will provide, in creating new opportunities for legislation, competitiveness and innovation, are self-explanatory.

[Mr Deputy Speaker]

I call the SNP spokesperson.

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[Sir William Cash]

I jib very strongly at the suggestion of avoiding the procedures whereby these laws were made. It is not just a question of their origin, because it is the EU and some people do not like it very much. It is rather because of the manner in which the procedures operate.

[Alyn Smith]

That is a point on which we flatly disagree. These legislative instruments were for over 40 or 50 years accepted by the UK Government in this House and latterly in the Scottish Parliament, the Welsh Senedd and others. They were also incorporated by the hon. Gentleman’s Government into domestic law in order to provide ongoing continuity in legal sentencing. So where there are pieces of legislation that are not fit for purpose—or are somehow holding the country back from this brave new world we are all excited about—then get rid of them, but do not say that vast swathes of legislative instruments on our statute book should just somehow stop without any thought about their replacement or anything else; that is not a sensible way to go.

These are significant points. I accept there has been some hyperbole in describing what is at risk, but what is at risk is fundamental to how the citizens of our countries lead their lives: labour rights; rights to clean air and water; product safety; consumer protection; food quality; protection for women in the workplace; protection of biodiversity; trading standards; and health and safety. I could go on—there is a lot more, and colleagues will come on to that—but there are deeply held principles that our party cherished which under this Bill will be subject to a reversal process which we reject.

Turning to what we are looking to do and focus upon, we will support amendment 36 and also the Labour amendments on workers’ rights and other matters; we need a united front on this. Our focus, however, given that we are the SNP, is Scotland’s democracy. The Minister made a number of points about the increased power for the Scottish Parliament, and there are some powers, but if we are being fully intellectually robust about that process we also need to look at the interaction with the United Kingdom Internal Market Act 2020 and the fact that just yesterday a section 35 order was made by this Government. That is implicit in the devolution settlement; that makes clear that the reality of devolution is that anything done by the Scotland Parliament can be called in by the UK Ministers. I do not like that, but it is the reality of devolution, but the UK Internal Market Act makes clear that any future law of any Scottish emanation of government could be subject to calling in on political grounds in order to maintain the coherence of the UK internal market. That means every single power of the Scottish Parliament and every local authority, health service, university and all the rest is subject to a gainsaying that upends the fundamental principle of devolution.

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[Dean Russell]

I enjoyed working with the hon. Lady on the Online Safety Bill, which made huge progress yesterday and is now going to the Lords. The key point here is that there are many laws—and many pieces of what I would consider to be red tape—on the statute book, some of which even those who wanted us to stay in the EU do not know exist. We need to go through a process to identify that. The Bill is about amending, repealing or replacing that legislation. One part of that is about ensuring that case law that currently refers to pieces of EU case law and others refers to UK pieces. There is legislation that will become rapidly out of date because it refers to old EU legislation, priorities and policies. That cannot be right. We need to ensure that our legislation is fit for purpose and up to date.

[Sir William Cash]

On a small point that was just raised, may I mention that the Online Safety Bill is not retained EU law? There is a law in the European Union, but our Bill does not relate to that.

[Dean Russell]

I agree with my hon. Friend.

I am conscious of time. The bit that I really want to touch on is this legislation’s role with regard to growth and small businesses. In the different world that we live in nowadays, it is essential that our small businesses—I believe that they are about 99% of all our businesses—can be nimble. We used to talk about having a shop on every corner, and we now have businesses that can be in every corner of the world. We need to ensure that they can grow and that they are not burdened with spending most of their time doing admin and back-office stuff to fulfil legislation that is out of date and unnecessary. We need to know what that legislation is.

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[Ms Ghani]

My right hon. Friend hits the nail on the head. We are elected to govern. Of course, it will take some work, but the outcome is that we can take the decisions here. Whether we choose to take those decisions, are anxious about taking decisions, or do not even want to know what these EU laws are—that is just a very ignorant way to be—we need to be aware so that we can take those decisions.

My hon. Friend the Member for Waveney talked about 2023 being a cliff edge. That is the time by which we wish to sunset, but there is an extension to 2026 for the bits of EU law for which Departments need more time to consult. The process has already been around for 18 months, and it has been and will continue to be considered. Department officials will continue to work together on that.

My hon. Friend the Member for Great Grimsby spoke about her constituents’ concerns and anxieties about the Labour party doing everything it can to take us back into the EU. There has been a lot of fearmongering from the Labour party in the amendments that it has tabled, but in this instance, I would argue that maybe her constituents should be afraid, as I am told that the Labour leader has attempted to block Brexit at least 48 times.

[Sir William Cash]

Does my hon. Friend, in the light of what she has just said, recall “Project Fear”, with George Osborne and others saying, for example, how many hundreds of thousands of unemployed we would have, how the financial markets would dissolve, how the City of London would become a ghost town, and all that sort of nonsense? Does she remember all that, and where are we now?

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[Sir William Cash]

After 38 years in this House, I simply say a profound thank you to the British electorate—the 17 million who voted to leave the European Union in the referendum and endorsed that in the general election of 2019. I congratulate the Government, the Ministers and all the people in this House who have supported the idea of leaving the European Union. Above all else, I thank the British electorate.

Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[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.

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[The Solicitor General]

I disagree entirely with the hon. Lady. I know that she is an assiduous Member of this House; I have served on many Bill Committees with her and know how seriously she takes her work and this role. I know that she would not be unwilling, and indeed neither would I, to sit upstairs on SI Committees, but that should be only if it is necessary. If it is not necessary, and if all we are doing is, in effect, retaining the status quo, it is much better to free up parliamentary time, and the time of Ministers and officials, to look at where real reform can be made.

[Sir William Cash]

I simply ask the Solicitor General whether he would be good enough to give an assurance to the European Scrutiny Committee, in the light of recent events, on its interaction with the Bill and its outcome and operation.

[The Solicitor General]

My hon. Friend pre-empts me, because I will be turning to the important role of the European Scrutiny Committee. I know he will forgive me, because it is important to take this in the proper order and so I will come to that point in due course.

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[The Solicitor General]

I sort of agree—although that is a little bit of a facetious way to put it from the hon. Gentleman, but there it is. To deliver clarity, to remove the principle of supremacy in international law, the House must remove this amendment and restore the original clause to the Bill.

[Sir William Cash]

On the question of legal certainty, does my hon. and learned Friend not agree that it would be almost impossible to imagine how uncertain it would be if we had two sets of statute books, one of which was post Brexit and the other of which was the retained law as passed by the European Union over all those years? The method of interpretation—the difference between the purposive method and our own method—is absolutely crucial to this, does he not agree?

[The Solicitor General]

I do agree with my hon. Friend, who is absolutely right. That is the whole purpose of this Bill and the reason we are ending the supremacy of retained EU law.

I turn now to Lords amendment 15, which sets out a number of conditions relating to environmental protections and food standards that the Minister must meet when intending to use the powers of this Bill. That is unnecessary. Ministers have made it clear repeatedly at every stage of this Bill’s passage in both Houses that we will not lower environmental protections or standards.

Equally, the delegated powers in the Bill are not intended to undermine the UK’s already high standards on food, nor will they do so; indeed, this Government are committed to promoting robust food standards nationally and internationally. Rather, we can use these powers to simplify and improve regulation, making it simpler and administratively easier to comply with, without lowering standards. Those reforms, among others, are vital to allowing the UK to drive genuine reform and to seize the opportunities of Brexit.

--- Later in debate ---

[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.

[Sir William Cash]

rose—

[Jonathan Reynolds]

I imagine that that is because they feel that they are being led by the grand old Duke of York. He was happy to march them up to the top of the hill, promising in his leadership video a bonfire of all retained EU law, but of course, he has had to march them all back down again. Now, they are neither up nor down. On that point, I will give way to the hon. Member for Stone (Sir William Cash).

[Sir William Cash]

It is a disappointment according to the hon. Gentleman, but I have to say that I am extremely glad that the supremacy of EU law is going, I am extremely glad that the deregulation is remaining, and I am also very glad that my amendment has been selected for discussion so that we can have a proper list and do the job properly.

[Jonathan Reynolds]

I am delighted that the hon. Gentleman is happy. Maybe that means one fewer letter towards the 54 that the Prime Minister needs to think about for the duration of the day.

This Bill was always a farce designed to appease the constant, constant, constant Conservative melodrama. It has neither set forward a positive vision of a post-Brexit Britain, nor appeased most of the Government’s Back Benchers, with the exception of the hon. Member for Stone. This country is desperately in need of a Government who can provide clarity, consistency and stability for businesses to invest and pull us out of the low-growth, high-tax quagmire of the last 13 years. Equally, the UK’s workers deserve to see fulfilled the promise that the UK’s post-Brexit employment framework would mean no reduction in rights and protections.

The legislation revealed a Government with fundamentally the wrong approach—they could not even correctly diagnose the problem, let alone provide solutions. It would have been better for them simply to abandon the Bill altogether. However, by inserting the Government’s amendment, and then supporting the excellent work of their lordships in the other place, we can get it to a substantially better place than the chaos that was proposed before. On behalf of Britain’s businesses and workers, I urge all colleagues to do so.

[Sir William Cash]

I will speak to my very short amendment to the very short new clause in Lords amendment 16, on the retained EU law dashboard and report. The new clause requires the Government to report on their plan to revoke and reform, while my amendment seeks for that report to include a list of EU provisions to be revoked or reformed. In other words, it adds to the benefits of the new clause and to the Government’s proposals. The new clause was adopted as a Government amendment in the House of Lords a couple of days ago.

I am very grateful to colleagues who signed my amendment, and I know that many more want to do so. I am also glad that the Secretary of State has agreed—no doubt having received some good advice from my hon. and learned Friend the Solicitor General and others, unnamed—to put her name to the amendment. That means, I am glad to say, that it is now Government amendment (a). Procedurally, that is a very great prize, because if the amendment had not received Government support it would almost certainly not have been selected for debate and we would not have been able to vote on it. I mention that as a matter of significance. I am deeply grateful to my hon. and learned Friend for attending meetings with me and for the dedicated way in which he goes about his job.

We need to make sure that this new structure actually works so that we can put the painful recent past behind us and get on with the job in hand of getting rid of EU supremacy and insisting on the freedom to deregulate. We also need to get to the bottom of which laws should be reformed or revoked. That process is in hand, but it is moving far too slowly and not being done with the degree of experience and skill that needs to be applied to it.

I am also very glad to report that, after a few refusals—but I do not want to dwell on that—the Secretary of State will appear before the European Scrutiny Committee in the week beginning 5 June. That is a very important step forward.

[John Redwood]

I am grateful to my hon. Friend for all the work he does, and I am glad that the Secretary of State will at last appear before Parliament on this crucial change of policy. Has he had any assurances that the many ideas that I and others have put to the Government on repeal and improvement of EU law will be not only read but implemented? What is the delay?

[Sir William Cash]

I agree very much with and share the sentiment expressed by my right hon. Friend. We need to move forward and have a proper list and the opportunity to examine the manner in which that list is prepared. The important matters to which he specifically refers include economic freedoms and the ability to reduce taxation where necessary. If they are not on that new list, there will be a lot of people asking for them to be included. That is the next step. It has unfortunately taken a long time to get to this point, but I think that we are now beginning to get there.

The new clause prescribes arrangements for Parliament to be properly informed as to the need for a full and hopefully, at last, accurate and relevant list of retained EU law along the lines of economic freedom and competitiveness and many other things. I and many colleagues, including those on the European Scrutiny Committee, have been severely pressing, for a long time, for a full and accurate list. We have invited the Secretary of State to come before our Committee many times without success, but she is now coming, and we are glad of it. We asked for progress in relation to all EU retained law. We did not get it, but we are now going to.

I also proposed to the Secretary of State that there needs to be an experienced tsar, or commander in chief, of the operations, because by the sound of it there has been something of a problem inside the civil service and it has led to difficulty in getting the job done. This person would need to know and understand the process of European scrutiny, what to do and how to go about it. I have written to other Ministers as well, and explained to them that there are archives in Kew that will be part of the list, not to mention individual Government departmental archives, parliamentary counsel office archives and, of course, our own very special European Scrutiny Committee archives, which date back to 1973 and are extremely comprehensive, including the explanatory notes that were produced to my Committee as individual regulations and laws were being negotiated. They also explained the Government’s position on particular points, but I will come on to that in a moment.

When I hear people suggest that they have not had the time to do all this and get the job done properly, I despair at their lack of drive, energy, commitment and, perhaps, unawareness of the Conservative manifesto. The new clause will provide an obligatory framework for the completion of the task.

It was profoundly disturbing to look at the schedule attached to the new Bill. It restructures the Bill in radical ways, but this debate is not the time to go into the history of all that. We have had a lot of discussion about it, so I am not going to do so. This Bill, as it has come from the House of Lords, is a mixture of the good, the bad and the ugly. The good is the ending of the supremacy of EU law and methods of interpretation, and also the provisions relating to deregulation. The ugly lies in the reformed structure and the manner in which we only heard about that at very short notice on 10 May. But, as I have said, we now have to move on. The bad lies in the amendments by the House of Lords, which if passed would have profound consequences undermining our national interest. We also need a coherent statute book. We cannot have two statute books, with one dealing with laws passed during our time in the European Union, pre Brexit, and the other dealing with laws passed afterwards. That would be most peculiar, and it would not work. It would be incoherent and create great legal uncertainty.

The new clause that the Government have adopted requires the Secretary of State to update, within specified periods, the EU law dashboard and publish a report on the revocation and reform of retained EU law. This report must provide a summary of the dashboard, set out progress already made in revoking and reforming, and set out the Government’s plans to revoke and reform those laws. In effect, it sets obligations and a timetable.

It is always interesting to know what people’s “plans” are, but having a plan does not mean that we know what is in it before we see it, and nor does it mean that it will ever happen. What does matter is that it is listed, and that is the point of my amendment. The list can be examined to see what modifications or revocations are required under clause 14. Only then can we decide their relevance in the national interest. It also makes the Secretary of State properly accountable to do the job properly within the framework of our parliamentary and scrutiny procedures, including my Committee; I am grateful to my hon. and learned Friend the Solicitor General for the assurance he has given on the Floor of the House to work with my Committee. It also creates a deadline and pressure to get on with the job.

I have written separately to the Government not only about the tsar but about the efficient delivery by external sources, in a comprehensive manner, by May next year. That is doable, but it requires political will, and diligence on the part of the civil service. That is why my amendment states that the plan must specifically include in a list those provisions of retained EU law that the Government intend to revoke or reform. On the face of it, this is a simple amendment, but it carries with it the need to do the job properly. I assure the House that the European Scrutiny Committee will examine the content of that list and its implications with an eagle eye. It is an enormous shame—in fact, I would almost call it a disgrace—that the current schedule to the Bill consists of what could politely be described as junk, with very few exceptions. I have been through the list; actually, I did so during the Eurovision song contest. I turned to my wife and said, “I really cannot tell which is worse: this schedule or the Eurovision song contest.”

--- Later in debate ---

[Bim Afolami]

I defer to my hon. Friend’s knowledge and judgment on what he is speaking about, but may I press him on this particular aspect of the Bill? Of course, a lot of regulations may seem redundant or trivial, and he has named a couple, but part of an improved regulatory system is cleaning up regulations that may be redundant or trivial, in addition to doing the work properly of making sure that when we do get rid of things and reform them, we do so for the right reasons for the entire regulatory system. The Secretary of State has proposed that by the end of this year, we are likely to have removed roughly 2,000 of the total 5,000 regulations; the remaining 3,000 will be done in a proper way, looking strategically at our whole regulatory system. Does my hon. Friend not accept that that is a reasonable approach for the Government to take, bearing in mind the position that we are in at this time?

[Sir William Cash]

I think it is perfectly reasonable to do it now, because it has not been done before: that is where the problem lies. I would also slightly correct my hon. Friend regarding the relevance of, for example, fishery arrangements between the EU and the Government of the Cook Islands—they are administered by New Zealand, I believe. Such arrangements have nothing at all to do with us, and could not conceivably be included in a list that was intended to demonstrate relevant revocation and reform of these laws.

Expunging EU laws from our statute book frees our voters, our businesses, our Parliament, our sovereignty and our democracy from their subjugation to the EU for 50 years. Those laws were made and engineered by the European Union, the European Commission and the Council of Ministers behind closed doors by qualified majority voting—without even a transcript, as I have said so many times—but usually came about by way of consensus. The veto was promised and guaranteed in the 1971 White Paper, which hon. Members can look up for themselves, but it was whittled away. When EU laws came to be discussed behind those doors, we generally ended up with consensus; they certainly were not our own laws passed by our own Parliament. That operation has been described by a famous economist as “regulatory collusion”.

The making of all those laws, as I said earlier, was accompanied by an explanatory memorandum, which is a useful reference point for determining what mattered at the time. Not one single piece of EU legislation was ever rejected or amended during the entire course of our membership. Interestingly, one of the five provisions that I have mentioned that are relevant to this debate is the port services directive, which was opposed by every single one of the port employers, by every single one of the trade unions, and by the Government. What could they do about it? Nothing. That is the point, and that almost summarises the reasons for the exercise that has been conducted under the Bill.

[John Redwood]

Does my hon. Friend recall that—certainly when I was single market Minister some years ago—quite often we did not want the regulation or law at all, but the Government then decided that it did not look good because we did not have a veto to enforce our wish, and we ended up trying to negotiate the version that was least damaging? Why is it that collective memory has forgotten all this, and why do people only recall the laws they want to keep? Why can they not recall the laws we never wanted?

[Sir William Cash]

Fortunately, the collective memory includes me, because I was first put on the European Scrutiny Committee in 1985. I have been on it ever since, and I have been Chair for 10 years. However, I totally agree with my right hon. Friend. The question of whether these laws mattered and whether they were going to go by consensus was driven by the fact that the people sitting around the table knew beforehand whether there was going to be a majority vote, and whether they would lose. As it was a dead certainty that the UK was going to lose, they entered into that consensus.

The real objective of the European Union in all this was to harmonise laws across Europe, creating a fundamental shift to European integration. That is one of the reasons why I tabled a sovereignty clause to the Single European Act 1986, which eventually found its way on to the statute book in 2020. Essentially, all these laws lack the kind of democratic legitimacy that we would expect in our traditional, constitutional, common-law system. We must therefore judge the laws that are now in the list, as set out in my amendment. Where they are capable of being modified, let them be modified, but as I have said, many of them were passed by majority vote and were certainly not in the UK’s national interest. Indeed, the chief negotiator for our entry to the EU under Edward Heath, Sir Con O’Neill, stated of his own failure to understand the system that

“I am sorry to say we probably also thought that it was not fundamentally important.”

Tragically, it was important, and the thousands of laws that now need to be reformed and revoked were the product of his and the then Government’s failure, and those who persisted in it until we left the European Union.

Sadly, for decades after our entry to the EU, the passing of laws in the European Council of Ministers continued to churn out thousands that did not have democratic legitimacy, and which we now have to modify or revoke. I am glad that the noble Lord, Lord Callanan, said on Monday that

“it is crucial that Parliament and the public are able to hold the Government’s feet to the fire and ensure that our momentum continues”.—[Official Report, House of Lords, 22 May 2023; Vol. 830, c. 609.]

It is also important that the Brexit Opportunities Unit has discussions with the European Scrutiny Committee about methods and co-ordination, including the tsar I have mentioned alongside a team of external experts. Resources will be needed, yes, but the need is absolutely vital. I am therefore glad that the Government and the Secretary of State have agreed to adopt the amendment that stands in my name and those of many colleagues. I believe that the clause, when amended by this and other amendments, will be one of the main levers for making a success of this entire operation.

[Alyn Smith (Stirling) (SNP)]

It is a mixed pleasure to speak in this debate for the Scottish National party, it is safe to say, but it is a pleasure to follow the hon. Member for Stone (Sir William Cash). Much as we disagree on some things, I did not realise we were both Eurovision fans; perhaps we can organise a viewing party next year, as I have an outfit he would look fabulous in. [Interruption.] It will not be a kilt, I assure the hon. Gentleman.

I will speak to amendments 6, 1, 15 and 42. I referred light-heartedly to the hon. Gentleman, and it is possible to have differences of opinion; indeed, I hope I have demonstrated that I respect differences of opinion, but this Bill goes to a matter of deep, fundamental difference of philosophy and worldview. I am very proud to be part of the most pro-European party in this Parliament. I am a committed European as much as I am a committed independence supporter for Scotland. I think Scotland’s best future is back into the European Union. We did not view the EU as a prison to leave; we did not view EU legislation as an imposition to be fought against. I was a member of the European Parliament for 16 years; I passed many of these laws and the description we heard about unelected bureaucrats and things done behind closed doors is not my honest and true experience of how it works. However, I respect different views, much as I think they may be coming from entirely different philosophical points.

We do not like this Bill; I have been open about that. We think it is unnecessary and does not deliver what was promised. We have heard much about the need for a dynamic regulatory regime for the UK, and I agree, but there is plenty of redundant domestic law on the statute book as well. I will come on to the matter of retained EU law, but the deletion of redundant law is something Parliament should be doing on a daily basis and it is not that much of an achievement—and it does damn all to make the competitive position of the UK any better in any significant way at all.

The following point was made eloquently by my hon. Friend the Member for Glasgow North (Patrick Grady), who has had to go to a Committee, I believe: by virtue of leaving the EU, retained EU law does not have a meaningfully special place in our statute book. It is open to this Parliament to amend, repeal, revoke or change, or whatever else it wants to do, any piece of domestic legislation wherever derived from. So this Bill seems to be answering a question that has not been asked.

[Sir William Cash]

I think I heard the hon. Gentleman say that that was possible. While we were in the European Union, it was impossible because of section 2 of the European Communities Act 1972, which the hon. Gentleman, as a very good lawyer, might look at. It makes it absolutely clear that we would accept all European law, however made, in the Council of Ministers, and also, for that matter, all European case law; it is there in section 3.

[Alyn Smith]

I will choose my words: the hon. Member is right in what he says, but he misses the point that we have left the EU and that did not apply from that point onwards. What he says was correct about two years ago, but what I am saying is correct now. It is open to this Parliament to revoke any piece of legislation wherever it came from. This Bill is borne of malice rather than being a constructive blueprint for the UK’s future.

--- Later in debate ---

[Sir Jeremy Wright]

I will focus on Lords amendment 1, Government amendment (a) to Lords amendment 1 and Lords amendment 42.

Before I do, I want to close the loop on Lords amendment 6. It is a pleasure to follow the hon. Member for Stirling (Alyn Smith), who made an interesting set of observations. As he would expect, I do not agree with all of them, but if I may say so, he is engaging in this debate in exactly the way we ought to when considering matters this complex and important.

Just to finish the thought, the hon. Gentleman is right to say that their lordships may want to consider the matter further, as of course may we. I suspect that the noble Lord Hope, who I think drafted the clause in Lords amendment 6—that gives me considerable hesitation in criticising it in any way, because it is unlikely he has got much wrong—is intending a deal of weight to be put on the phrase

“as the case may be”.

Subsections (2) and (3) refer to a

“responsible Minister of a relevant national authority”

and to

“both Houses of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, as the case may be”.

I suspect Lord Hope would say that that indicates that in the case of retained law, the body would be the House of Commons and the House of Lords, and in the case of devolved competencies, it would be the relevant devolved body. Before we sign up fully to the wording of the amendment as it stands, we should have clarity about that, because it is an important point in the hon. Gentleman’s argument about the reinforcement of the devolution settlement.

We do not want to subtly change the devolution settlement by accident. I suspect that the hon. Gentleman would be quite happy to change the devolution settlement either by accident or by design, and perhaps not so subtly, but in the context of the Bill, we had better be clear what we are talking about. For that reason, I certainly will not support Lords amendment 6 at this stage, though I will listen carefully to what their lordships have to say when they clarify the point.

There seem to be similar points to make in relation to Lords amendment 1, Government amendment (a) to Lords amendment 1 and Lords amendment 42. Were we to support amendment (a), it would restate, because the Government have already made their position clear, their new approach that rather than repeal a whole swathe of EU-origin retained law in effect by default, it would be better to list specifically those things that it is intended should be repealed by a certain point, such as the end of this year, unless further action is taken before that point. That is a much more sensible approach, although I will say it was somewhat inevitable, as others have said.

It was always inconceivable that the Government would be able to manage the process of considering properly all the retained EU law in scope of the Bill before the deadline of the end of this year. Therefore, the Government have done the eminently sensible thing and should be congratulated on doing so. I will certainly support Government amendment (a) to Lords amendment 1, because it regularises the position in a much more reasonable way.

The irony is that I rather suspect proceeding in the way originally intended would have led to the retention of far more retained EU law than will be the case under the Government’s revised approach. In fear of losing something vital, it is highly likely that the Government would have had to roll over—by default and before the deadline—a good portion of legislation, just to be sure they had not missed something. This approach is much more sensible and will rather better support the intentions of those who supported our departure from the European Union than the approach originally intended.

If the rest of Lords amendment 1 were passed by this House—not just the part that amendment (a) retains—we would introduce exactly the friction that I mentioned earlier when intervening on the hon. Member for Stirling. It would introduce a Joint Committee process and then debates and votes on the Floor of both Houses. I appreciate that, depending on which side of the argument someone is, they may regard those as additional safeguards or additional procedural friction, but it appears to me that it is more the latter than the former. That process is far more than is likely to have been done in the consideration of any of these laws when they were originally brought into British law. When that happened—my hon. Friend the Member for Stone (Sir William Cash) is the world expert on this—we would have seen that, despite their EU origin, the level of scrutiny and attention those laws got from Parliament was far lower than the level proposed in the amendment.

[Sir William Cash]

To respond briefly to my right hon. and learned Friend on this issue, I am afraid that the idea of a Joint Committee is just not a workable proposition. This is not the kind of forum to deal with the issues at stake and, if I may say so, for that reason alone it is impossible to accept Lords amendment 1. It just would not work.

[Sir Jeremy Wright]

Well, I entirely agree with my hon. Friend. I think this is probably not the appropriate mechanism, as he says, but it would also duplicate to a large extent what his Committee already does. So I do not think it is an attractive mechanism, as he says.

Of course, those who propose this amendment and those who speak for it today may say to me, “Look, it would only be in the case of substantial changes that some, at least, of these additional procedures would apply”, but it seems to me there are two points to make about that. First, it would be the Joint Committee’s assessment of what is a substantial change to the law, not anybody else’s. Secondly, we would, would we not, have to get into what the word “substantial” means in that context. If we were to say that a Joint Committee should be established to determine initially whether there is a substantial change of the law in prospect, it would have to determine that and it would have to decide what substantial means. Does it mean, for example, that a large number of laws are consequentially affected when a change is made, or does it mean that a few laws would be affected but in a very significant way? I think it is important, if we want to do this, that we are very clear about the definitions that we apply, because just as other Members of this place are worried about the level of authority to be devolved to Ministers, there would be a significant level of authority to be devolved to a Joint Committee, and if we were not clear about the basis on which it was to exercise our authority, we may run into difficulty.

Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

Consideration of Lords message
Monday 12th June 2023 Commons Chamber

[The Solicitor General]

I am sorry that the hon. Gentleman was not in the Chamber for the exchange when my hon. Friend the Member for Harrogate and Knaresborough gently pointed out that Labour Members had not taken up their places on the EUSI Committee. As Chairman of the Committee, he rightly encouraged Labour Members to take up their places on that Committee and I would add to that encouragement.

[Sir William Cash (Stone) (Con)]

Will the Minister give way?

[The Solicitor General]

I will give way but I am conscious that a number people want to speak, so I will then make some progress.

[Mr Speaker]

indicated assent.

[Sir William Cash]

With the greatest respect, I just want to say through the Minister to the hon. Member for Chesterfield (Mr Perkins) that, although the European Parliament does its job, the laws are actually made by the Council of Ministers behind closed doors, by qualified majority vote and without even a transcript in Hansard. That is not a basis on which one could make any assumption that we would ever agree to them. It was always done by consensus.

[The Solicitor General]

Mr Speaker, you were absolutely right to encourage me to take that intervention, and I am grateful to my hon. Friend the Member for Stone (Sir William Cash). I pay tribute to him for all his work in this House. His announcement over the weekend came as a great sadness, shock and surprise. I know that he has a lot of work to do between now and the next election, and I look forward to these debates in the future. Thank you for encouraging me to take his intervention, Mr Speaker.

Lords amendment 42B is both unnecessary and potentially detrimental to this country’s environmental standards. We have made a commitment at every stage of this Bill that we will not lower environmental protections, and that we will ensure the continued implementation of our international obligations. Indeed, I am reminded of the rare moment of agreement between my hon. Friend the Member for North Dorset (Simon Hoare) and the right hon. Member for East Antrim (Sammy Wilson) during our last outing. They found common accord, and they are both right that there is simply no reason or incentive for the Government not to uphold our high environmental standards, of which we are rightly proud. It is simply not necessary for this commitment to be on the face of the Bill, especially not in a way that would make it more difficult to achieve any meaningful reforms that benefit the UK.

I will not try your patience, Mr Speaker, by listing all the Government’s post-Brexit achievements, but some of the steps we are taking go above and beyond EU law. [Hon. Members: “What are they?”] The Opposition are encouraging me to do so, and who am I to say no?

--- Later in debate ---

[Justin Madders]

I remember that exchange very well, not least because it was on my 50th birthday. It certainly shows the importance of having proper scrutiny and transparency about ministerial decisions, which has been one of our main critiques of this bill throughout. I remind hon. Members that it was said in 2016 that we needed to reassert parliamentary sovereignty and that that was what taking back control was all about. However, I said in Committee, “we” does not mean

“Ministers sitting in rooms on their own, answerable to nobody, and under no requirement to explain their actions”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 126.]

“We” means this place.

I know that the oft-repeated and erroneous argument, which we have heard again today, that those laws were passed without proper democratic involvement in the first place has been offered as a reason why we should not follow such a process now. To make a pithy comment on that, two wrongs do not make a right. I would have expected those who were shouting the loudest about our sovereignty back in 2016 to be with us today.

The lack of transparency and desire to bypass scrutiny that are the hallmark of this Bill demonstrate a lack of confidence from the Government in their own programme. It is clear that either they do not know, or they do not want to tell us what they intend to do with the powers conferred by the Bill. Even the addition of a schedule listing regulations to be revoked does not really offer any clues about how the Government plan to approach the bulk of retained EU law.

In her recent appearance before the European Scrutiny Committee, the Secretary of State for Business and Trade referred to that list as merely containing regulations

“that are redundant, rather than things that are holding us back”,

meaning that we still do not know what the substantive changes will be. Maybe one day we will find out what exactly it is that has been holding us back.

If the Government cannot tell us what they intend to do with the powers they hand themselves under this Bill, and they clearly do not want the light of scrutiny shone on their intentions, it is even more important that this amendment is passed. It also suggests that this Government are not confident about what the public or indeed Parliament will have to say when their intentions become clear. That is why as many safeguards and as much transparency as possible should be injected into this Bill.

In closing, I refer again to the evidence given by the Secretary of State to the European Scrutiny Committee, because if anything sums up the shambolic approach to this Bill by the Government it is her comment:

“The retained EU law Bill became a process of retaining EU law. That is not what we wanted.”

I do not know whether to laugh or cry at such comments. What I can say for sure is that, if anything sums up just what a tired, out-of-touch and broken Government we have, that is it.

[Sir William Cash]

I have a strange sense of déjà vu about the speech I have just heard from the hon. Member for Ellesmere Port and Neston (Justin Madders). I am afraid that he does not quite get it. I have made the same point with regard to the hon. Member for Chesterfield (Mr Perkins); the fact that I happen to rather like him, and always have done—I come from Sheffield—does not alter the fact that I fundamentally disagree with him.

The way the House of Lords has dealt with these amendments demonstrates that the Lords are determined to try, by hook or by crook, to obstruct the House of Commons, which is the democratic Chamber in these matters as far as the electorate is concerned, in pursuance not only of the referendum on leaving the European Union, but also of the Bill as a whole—which I do support, as it has moved forward. I had some reservations in the past, but we have made a lot of progress.

I congratulate the Minister very much on his calm common sense and the way he has approached the subject. I also agree with the tweet he referred to. Parliamentary counsel are rather like holy priests, if I may say so, and they have their own particular way of wanting to deal with something. I would not want in any way to criticise the way they have gone about this, because it comes to exactly the same thing that I proposed when the Government adopted my own amendment.

Coming to the question of parliamentary scrutiny, the new clause introduced by Lords amendment 42B places a prohibition on the making of regulations under section 15, unless

“a document containing a proposal for those regulations has been laid before each House of Parliament”.

It goes on to say that the document is to be

“referred to, and considered by, a Committee of the House of Commons”.

That sounds suspiciously as if it might fall within the remit of the European Scrutiny Committee. If it does not, that creates a problem with our Standing Orders for a start. It is not defined, so what on earth that Committee will do, and how it relates to the functions of the European Scrutiny Committee and/or to any other Committee of the House of Commons, is so completely vague and impossible to understand. That, in itself, condemns that new clause.

The amendment goes on to say:

“a period of at least 30 days has elapsed after that referral”.

When it turns to the next question, it says:

“If the Committee—

the Committee of the House of Commons—

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”.

They “must”; there is no option on that.

Suddenly, we move into a completely new dimension for each House. If the Committee—my own Committee, were it to be the Committee in question—makes a decision about special attention, that is then thrown to the mercy of each House of Parliament. We know from everything that we have heard over the last few weeks on the Bill that there is an intransigence—a stubbornness, if I may say so politely—from our noble Friends in the House of Lords in the face of any attempt to get rid of retained EU law in the way in which we are proposing, through revoking or reforming it.

By taking that particular course in the clause, all the Lords are doing is saying, “We want to take back control. We want to put this whole procedure into a cul-de-sac that will be effectively controlled.” I would go so far as to say that, by the sounds of it, the House of Lords will try, to use that hallowed expression, to “take back control.” They will try to take back control of this to the House of Lords. That is what this is all about, and we are not so stupid that we will fall for this one, let me assure the House.

Let me come to the question of regulations and statutory instruments, and the way in which they areb made. I have spent a lot of time on that, as I have said before. I am most grateful to you and others, Mr Speaker, for referring to the fact that I will retire from the House of Commons at the next election, but I have a lot of work to do between now and then. This debate is part of that, by seeing the Bill brought to a conclusion through its elimination of the supremacy of EU law and the opportunity to diverge and create economic growth and competitiveness. All these matters are part of that.

I find it really astonishing that the Lords do not seem to understand—it is as if they are trying to take us for fools, which I can assure the House we are not. I have sat on the European Scrutiny Committee since way back in 1985. Day in, day out, every single week, regulations and statutory instruments were brought in to implement decisions made behind closed doors in the Council of Ministers, as I said to the hon. Member for Chesterfield. Those decisions were made by majority vote of the other countries—there used to be fewer but then the number went up to 27—and without even a transcript. I challenge any Labour or SNP Member to get up and say that they think that is a very good idea, and that they would love to tell their constituents that they should be governed in that way, with all their laws for made for 50 years by that method of completely closet operation and without a transcript. It is unbelievable.

What are we doing here other than having a debate in this Chamber? I challenge Opposition Members to go out and say to their constituents: “We want to have you governed in that manner, behind closed doors and without a transcript.”

[Justin Madders]

indicated dissent.

[Sir William Cash]

It is no good the shadow Minister shaking his head, because he will not ask that question and nor will the hon. Member for Chesterfield, because their constituents would very quickly turn around and tell them to get lost.

[Justin Madders]

I just point out to the hon. Gentleman that my constituents would wonder why we are rehashing the arguments from 2016 when we have this Bill before us today.

[Sir William Cash]

I am so delighted that the hon. Gentleman asks that question. It is very simple: we had a general election that gave us a massive majority on the basis of getting Brexit done—and this gets Brexit done. We are doing exactly what so many of his constituents voted for, even though, I am sure, he got a reasonable majority. There are people who are now not in this House and were driven out because they did not respect the views of the people in that referendum. That is a very simple and straightforward answer to his point.

[Hywel Williams (Arfon) (PC)]

The hon. Gentleman is referring to processes in the past in Brussels, but the Lords amendment suggests that a Committee should examine such matters. I believe that in this place Committees meet in public.

[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—

[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]

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

[Sir William Cash]

Not today!

[Sir Robert Buckland]

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

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

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

--- Later in debate ---

[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.

Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

Consideration of Lords message
Wednesday 21st June 2023 Commons Chamber

[The Solicitor General]

I am delighted to have given way to the hon. Gentleman, not least because I like him a lot and because of his smile, but also because of his warm welcome for the Government’s position. I entirely disagree with him; he is wrong. On the last occasion he intervened, he did not hear the whole debate. I invite him to do so this time because, when he does, he will see precisely what the Government’s position is.

I make it clear that we are not rejecting these amendments out of hand. As I stressed in our last debate on the Bill, and as acknowledged by Baroness Chapman in the other place, we have listened to their lordships’ views. We have worked collaboratively on a number of issues and made fundamental changes to the Bill. There has also been significant collegiate working on the reporting requirements that will provide robust scrutiny. Parliament will be able to examine the Government’s plans for reform up to six months ahead of the legislation being tabled, thanks to the regular reporting brought in by that amendment.

Lords amendment 42D is based on the process contained in the Legislative and Regulatory Reform Act 2006, which is a very different beast from a very different Bill designed for a completely incomparable power. A legislative reform order is capable of operating on any statute, including Acts of Parliament, whereas the relevant regulation-making power here is limited to secondary retained EU law, which is not primary legislation.

Further, I respectfully disagree with the noble Lord Hope when, in the other place, he described the process in his amendment as “light touch”, not least because of the fundamental issue of time, which is crucial when we consider how long parliamentary processes can take. Lords amendment 42D envisages up to 60 sitting days for Parliament to consider and debate proposals for statutory instruments, and potentially time after that for further scrutiny before an SI can be made. By adding such significant time for additional scrutiny, this amendment would place in doubt the effective use of the repeal and replace powers before they expire.

Perhaps that is the intention. This is the additional friction that was so neatly alighted upon by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) during one of our previous debates. Additional, deliberate friction, as my noble Friend Lord Callanan said in the other place

“is not about additional parliamentary scrutiny; this is actually about stopping Parliament acting in this area.”—[Official Report, House of Lords, 20 June 2023; Vol. 831, c. 117.]

It is perhaps worth noting that, since 2008, only 35 LROs have been brought forward.

[Sir William Cash (Stone) (Con)]

My hon. and learned Friend is making some excellent points. He has just referred to Parliament as a whole but, in this particular context, a difficulty arises in subsections (6) to (8), which confer a power on the House of Lords to, let us be honest, effectively block proposals if it decides so to do. That is an inherent objection.

[The Solicitor General]

I am grateful to my hon. Friend. Knowing him, he will develop those points in due course. He agrees with what my noble Friend Lord Callanan said in the other place, that this is not about additional scrutiny so much as about preventing Parliament from acting.

It is right to say that Lords amendment 42D has been given serious consideration, as were other iterations previously before this House. It is disappointing and hardly conducive to constructive conversation or detailed debate to resort to insulting hon. and right hon. Members, as unfortunately happened in their lordships’ House yesterday. Apart from my noble Friend Lord Callanan, their lordships have not grappled with the provisions already in the Bill for a sifting committee, the detail of which is found in schedule 5, and which will result in significantly more scrutiny than EU law had when it was first introduced into our law.

On Lords amendment 15D, I have little to add to what has been said many times. We have repeatedly made commitments, at every stage of parliamentary passage, that we will not lower environmental protections. Our environmental standards are first class: the Agriculture Act 2020, the Fisheries Act 2020 and the landmark and world-leading Environment Act 2021.

The Labour party has a choice, both in this House and in the other place. Will it choose to frustrate this necessary post-Brexit legislation, this natural next step that was always going to have to happen? Will it continue to delay the delivery of the significant opportunities that await us? The Government want to get on with the job. Enough is enough.

--- Later in debate ---

[Justin Madders]

I thank my hon. Friend for her intervention. I agree with it, which is why we are continuing to support the Lords on this amendment.

The Minister has referred to the conditions of previous iterations of this amendment as both “burdensome” and “unnecessary”. It is of course complete nonsense that something can be both of those things at the same time. A burden would be an additional requirement, but the Government also consider such amendments unnecessary. That implies that these are things they intend to do in any case, yet in their eyes they somehow remain a burden. I am sorry to say that I have yet to alight on any rational explanation for that stance, and poor Lord Krebs has stripped away his amendment to the bare minimum now in the futile search for common ground. His new version of the amendment has just two elements, instead of the four in the previous version. The remaining ones are non-regression on environmental protections and consultation with relevant experts; he has dropped the requirements for compliance with international obligations and transparency in reporting on expert advice. I would have thought that the two dropped conditions ought not to have been considered too troublesome for a Government committed to maintaining environmental protections, but we are where we are.

The Lords amendment therefore simply puts in the Bill what the Government say they intend to do in any event, yet the objections remain. We should be mindful of what the Government’s own watchdog, the Office for Environmental Protection, said in its evidence on this Bill, which was that it

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

I find myself both bemused and alarmed by the Government’s intransigence on this issue. When they are not listening to their own watchdog and instead present arguments that disintegrate on the barest of examinations, it is right that we should continue to press for this amendment. If everything that was said at the Dispatch Box became law, we would not need legislation, but I am afraid the longer this goes on and the more unreasonable the objections become, the stronger the case becomes for putting in the Bill the protections the Government say they want to see.

The confidence that the public have in this place has been severely tested in recent years. If our democracy is to work, and if we want people to engage and participate in the democratic process, what a Government say has to be honoured and has to be seen through, otherwise we risk forever losing trust in the political process. Once that trust has died, it cannot be brought back to life by magic or by good intentions. So I say to Conservative Members: think very carefully about how you vote on this Lords amendment. If they trust the Government to keep their word and can find a way to reconcile that blind faith with the Government’s refusal to put those promises in law, they should vote down the amendment. But if that word is broken, they should not ever expect anyone to trust the Conservative party to stick to its promises on the environment or any other matter, ever again.

Lords Amendment 42D tackles one of the most controversial clauses in the Bill, clause 15, which the Hansard Society called the

“‘do anything we want’ powers for Ministers.”

I remind Members that the Hansard Society is a body whose opinion ought to mean something. It describes clause 15 as that because, as has been extensively covered previously, it empowers Ministers to revoke regulations and not replace them; replace them with another measure that they consider

“appropriate…to achieve the same or similar objectives”;

or to “make such alternative provision” as they consider “appropriate”. Those are extremely broad powers covering broad areas of policy.

If this Bill has taught us anything, it is that the reach of EU regulations permeates every aspect of life and covers many important issues that most people would expect Parliament to have a say over: consumer rights; public health; the environment; and, of course, employment rights. These regulations cover many things that many people would want to see protected, and many more things that nobody said would be removed or watered down back in 2016.

I pay tribute to Lord Hope for trying to find a compromise that the Government can accept. I fear that, as with Lord Krebs, his efforts will be in vain. In short, this latest amendment would see a Committee of this place sift regulations made under the clause, following an explanation by the relevant Minister as to why that particular regulation is required or desirable. It should be noted that Lord Hope made it clear in the other place that this Committee would be a Commons one only; how ironic that an unelected Lord is the one pushing an amendment to give the elected Commons more say in how our laws are decided, and that the Commons is resisting this move. Perhaps he, at least, understands what taking back control was meant to be about.

The Lords amendment further provides that once the Committee has considered the Minister’s explanation, it can, if it wishes—it is not required to—draw special attention to the regulations in question, following which the Minister must arrange for them to be debated on the Floor of each House. The Minister must then have regard to any resolution of either House and may, but is not required to, amend their proposal in the light of what has been resolved. The Committee can also recommend that the proposal should not be proceeded with, but, in the true spirit of taking back control, this House will get the final say on that. Is this not what the true spirit of Brexit was really about: the democratically elected Members of this House asserting influence and passing our laws?

I am sure that we will hear, once again, the fallacious arguments that because these laws were passed in the first place without proper democratic involvement, that means, by some twisted logic, that it is fine now to hand all the power over these laws to Ministers, without any reference to Parliament. Those arguments do not wash because they come from a place that says that anything that originates from the EU is bad and we therefore do not need it. Tell that to the millions of people enjoying paid holidays for the first time, to the disabled passengers who were given priority on transport for the first time and to the millions of people who have kept their job because of TUPE protections. I do not believe anyone who voted to leave the EU voted to dispense with those rights. If it is the Government’s intention to change any of those protections, or the thousands of others that our citizens enjoy, it is only right that this place has a say in that.

I am afraid the lack of transparency that this Bill represents, and the sidelining of genuine scrutiny, show up all those arguments that were made back in 2016 about sovereignty for what they are: a fig leaf for a select few to shape and determine the future of this country without reference to Parliament, and certainly without reference to the people they are supposed to represent. Democracy in the 21st century does not die in one swift act, but erodes over time, bit by bit. This Bill is another example of that, and until this Government restore basic democratic principles, we will do all we can to oppose it.

[Sir William Cash]

I have read with great interest the record of the proceedings yesterday in the House of Lords, noting some extremely wise and democratically well judged comments by those such as Lord Hodgson of Astley Abbotts and Lord Hamilton of Epsom. I note, however, that Lord Clarke of Nottingham, with whom I have crossed swords a few times in the past, to say the least, was conspicuous in his support of Lordusb Hope of Craighead’s amendment, as were a number of others I do not have time to mention, although their appearance in the Division list was entirely predictable.

I wish to add that the wise words of the Lord Hodgson and Lord Hamilton reflect not only a question of parliamentary sovereignty in relation to the elected House, but the elected will of the people, both in the referendum in 2016, the anniversary of which is almost upon us, and in the general election of December 2019, where there was a massive majority to get Brexit done. It is therefore also a manifesto commitment, clear and unequivocal, which invokes the Salisbury doctrine. The Government have stood firm in these proceedings; I was extremely glad to hear my hon. and learned Friend the Solicitor General yet again showing the degree of diligence and determination that is necessary, and I know he will continue to do so in this matter of retained EU law. I also speak as Chairman of the European Scrutiny Committee, whose report was unequivocal on the subject. I am glad to say that the Government supported the amendment I proposed, which is part of this exchange between the Lords and the Commons.

Lord Hope of Craighead and Lord Pannick are on the same page with regard to what they term a “constitutional principle”. I note the judicial and legal enthusiasm for the amendment they have put forward, which demonstrates the issue of parliamentary sovereignty. Indeed, Lord Hodgson rightly referred to “parliamentary sovereignty” when he read out what I had said in the House of Commons on the subject the other day, about the Lords’ “intransigence” in this matter. The amendment is a matter of democracy, as well as constitutional principle, because it involves the elected House and its majority view.

--- Later in debate ---

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

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

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

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

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

[Sir William Cash]

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

[Sir Robert Buckland]

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

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

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

[Sir William Cash]

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

[Sir Robert Buckland]

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

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

--- Later in debate ---

[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.