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.