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.

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[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.

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[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.

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[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.