Amendment 3

Retained EU Law (Revocation and Reform) Bill - Committee (1st Day) (Continued) – in the House of Lords at 3:06 pm on 23 February 2023.

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Baroness Brinton:

Moved by Baroness Brinton

3: Clause 1, page 1, line 4, at beginning insert “Except for the European Qualifications (Health and Social Care Professions) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/593),”Member's explanatory statementThis amendment excludes the European Qualifications (Health and Social Care Professions) (Amendment etc.) (EU Exit) Regulations 2019 from the sunset in Clause 1.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat

I apologise to the Committee for not being able to speak at Second Reading because of another commitment. I attended part of that debate and have read Hansard’s record of it. In this group, I particularly thank the General Medical Council and Food Standards Scotland, as well as many other organisations, for their excellent and helpful briefings.

It is worth noting that, in The Benefits of Brexit, published in January 2022 by this Government, they set out their principles for regulation, including:

“Recognising what works. We will thoroughly analyse our interventions based on the outcomes they produce in the real world and where regulation does not achieve its objectives or does so at unacceptable cost, we will ensure it is revised or removed.”

Like many other Peers, I echo concerns that the Bill contains severe risks to our democracy and laws and even to the role of Parliament. Once again, we have seen that the Bill gives widespread executive powers, and that has an impact for the amendments in this group. Department by department, the number of regulations continues to increase, as the debate at the end of the last group demonstrated, and I suspect it will increase again.

The three amendments in this group relate to health, but each covers completely different areas affected by the REUL Bill. This is because they are on the dashboard; it is all about what is and is not included on the dashboard, and, frankly, it appears to be universally confusing, including to government departments, which is worrying. So, if my questions to the Minister for all three are broadly similar, I suspect that that will be reflected by other noble Lords during the passage of the Bill. I hope that she will forgive me.

Amendment 3 looks at the European qualifications for health and social care professions, as amended by further regulations made in 2020. These govern the way that the UK recognises qualifications obtained in the EEA. As the General Medical Council—GMC—said, this is done in two distinct ways: via amendments that were made to our legislation and by four substantive provisions. The legislation route included a pathway to registration, known as the “relevant European qualification pathway”, which is a streamlined way for doctors with European qualifications to get registrations with us.

We on these Benches laid this probing amendment because of concerns about the scope. Before I come to that, I will make a brief comment on why it is vital that the Government get this right. Today’s Times front page says:

NHS wants to double medical school places”.

This is because of the current shortfall in doctors—I note the past Government here as well. But training our own doctors does not happen overnight and, when there are shortages, we rely on doctors from overseas, including from the EEA. Getting that speedy recognition of equivalent qualifications right is absolutely vital. Only last month, the Government had to introduce changes to the pathway and process for the recognition of overseas dentists to be registered, as the General Dental Council was held back by the previous UK legislation, meaning that it took months and months to process an initial application. This is all at a time when there is a severe shortage of homegrown UK dentists.

In response to recent shortages, not least the number of EU doctors leaving the UK after Brexit, but also because our own trained doctors are leaving faster than their successors can be trained, this is particularly pertinent at the moment. In 2021, the Government increased medical school places by 1,500 to 9,000 a year and have boasted about it at the Dispatch Box ever since. However, last month the Government told universities to stop training so many doctors. We have a problem. If we do not have access to foreign doctors coming from overseas and the Government are seriously proposing to reduce the number of doctors under training, how will we manage to get ourselves out of the current NHS crisis?

That is the background. Returning to the legislation, the GMC says in its briefing that it is very worried that

“the Government may consider the standstill amendments which operate the REQ pathway as being in scope of the REUL Bill and seek to remove this pathway from the Medical Act at the end of the year.”

It goes on to say at point 9 in its briefing,

“We have exchanged with the Department of Health and Social Care (DHSC) to establish whether the standstill amendments fall within the scope of the REUL Bill and, if so, what this could mean for us and our pathway to registration for holders of EEA qualifications.”

It continues at point 10:

“DHSC have been unable to confirm the position but have intimated that the standstill amendments do fall in scope of the Bill and that an ongoing government review of these regulations will determine whether the Secretary of State grants an extension to the 2023 sunset deadline… This means that, without an explicit government extension granted, the amendments and the pathway would be removed at the end of this year—the Government think this would happen automatically.”

I come back: given the current pressures on the NHS, ending the arrangements for holders of EEA qualifications to register could lead to very severe outcomes for our NHS. I just remind your Lordships that the GMC received over 2,800 applications for registrations from doctors holding EEA or Swiss primary medical qualifications last year.

I think it is understood that the REUL Bill should have no effect on the amendments made to the Medical Act and other regulations but there are four provisions in the standstill regulations which have their own substantive effect as opposed to amending other provisions. Our understanding is that this Bill therefore presents a risk in relation to these provisions because they would be revoked at the end of 2023 unless action was taken to extend that deadline to preserve the effects of the provision.

My questions for the Minister are as follows. First, is what I have said correct that the standstill amendments are in scope, or not? If even the DHSC cannot work it out, there is a major problem.

Secondly, can the Minister confirm that amendments made to the Medical Act for the regulations will not be automatically repealed at the end of 2023? If the answer is, “No, they could be repealed”, what are the consequences? Would it be a perfect copy of these regulations or a new version to reflect this Government’s choices and views, which most Governments with a mandate would argue was entirely valid? We got to these by very wide consultation with stakeholders, including all the royal colleges, all the universities and, above all, the wider public. How does that fit into a scale between now and the end of the year, at a time when the NHS and the Department of Health and Social Care can barely cope with yet another distraction? It cannot be done as a negative instrument just to move things through.

I turn now to Amendment 4 on food labelling, which

“excludes Regulation (EU) No. 1169/2011 from the sunset in Clause 1. The Regulation requires that packaged food and drink provides a product name and list of ingredients, including allergens.”

This is because the third recital of the regulation says:

“In order to achieve a high level of health protection for consumers and to guarantee their right to information, it should be ensured that consumers are appropriately informed as regards the food they consume. Consumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations.”

Regulations in relation to food labelling need to protect the public from the risks to health which may arise in connection with the consumption of food, to improve the extent to which members of public have diets which are conducive to good health, and to protect other interests to consumers in relation to food. It is much more than sticking a label on a product. Because of the global trade world we live in, many of the standards developed under EU law, on which we often led the way when we were in the EU, still need to maintain those international standards.

One of the great benefits of the regulation has been to provide a baseline of core information that is recognised by consumers all over Europe and frankly much further. I know this personally because I was diagnosed as a coeliac 50 years ago this year, and, until this regulation, which was supported by the UK Government and many organisations, I had to be able to find out exactly what was in food, whether it was in a shop, restaurant, cafeteria or even a hospital, because it was not always labelled. If I ate the wrong thing, the consequences could have been fairly serious. It also made international travel particularly trying at the best of times.

Now the situation is completely different—and that is the point: these regulations work. When they fail to work, as in the case when some people die as a result of eating allergens, there is now an accountability through the courts because the standards and regulations are well known. So without this regulation, and without the very careful and long-considered detail that sits behind it, consumers will have no confidence. Can the Minister confirm whether this regulation is planned for complete and thorough replacement before the end of the year, including the consultation with the many stakeholders on what you want to change and to keep? Or is the plan to let it sunset, or for parts of it to sunset, as with the previous amendment? In that case, where is the impact assessment for the consequences to vulnerable consumers and public health?

I turn now to Amendment 17 on the purchase of PPE. It refers to accepting EU regulation 2016/425

“on personal protective equipment and repealing Council Directive 89/686/EEC, and the Personal Protective Equipment (Enforcement) Regulations 2018”.

During the debate on Biocidal Products (Health and Safety) (Amendment) Regulations on 21 November last year, it emerged that the chemicals division of the Health and Safety Executive was struggling to manage the new certification process for chemicals since we left the EU, and, in essence, the instrument was asking for extra time. Ministers had decided that the UK would move straight away to its own certification for chemicals, despite the fact that very many organisations and companies were already certified under the old system and still trading with the EU.

As I have already said, the amendment to the regulation was to give the HSE more time to cope with the administrative burden, both for applicants and for the HSE. Worse, the HSE discovered too late that it could not have access to the EU chemicals database after we had left, because the Government had demanded a clean break. When I asked the Minister how the HSE was managing with its resources, he said that its chemicals division budget was now 40% higher and that this would be needed for the foreseeable future. So when we talk about impact assessment, it is not always just about the impact on the public. It can also be about the impact on government spending and business spending.

While the arrangements for the withdrawal Act were struggling to make progress, one of the key protective equipment regulations was updated. This is on the Government’s dashboard and website. Sections 9 and 10 talk about the pre and post 31 December 2024 arrangements and the regulation was updated again in 2018, taking the withdrawal Act into account. The problem is that it is not clear from this Bill whether the sunset clause can override this, because the Government have not explicitly set out their plans for any of the many thousands of regulations they have now found they wish to do that with. As was discussed in a previous group, that number is increasing on an almost daily basis. So I ask the Minister: for each piece of REUL that is on the dashboard, including this one, should Parliament assume that it will be revoked at the end of the year, unless the Government decide to keep it or to change it in a way no one knows about yet? If that is the case, when will the timetable for all these new, important regulations be published, with impact and cost assessments for having to comply with a different set of standards? I beg to move.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 3:15, 23 February 2023

My Lords, I wish to raise a point about Amendment 4. It relates to the interaction of this Bill with common frameworks. I believe—though I am open to correction—that EU regulation 1169/2011 is the foundation of a series of statutory instruments made by the United Kingdom Government, the Welsh Assembly and the Scottish Parliament, which all relate to what is called food labelling and compositional standards. That is one of the frameworks on the list of 32 which the Common Frameworks Scrutiny Committee has been scrutinising. My first question is: am I right that this regulation is part of this particular framework? If it is, it raises another question of great importance. What do the Government propose to do about legislation which is part of and built into a common framework?

The word “common” is used in the expression because these frameworks are common to the four Administrations that make up the United Kingdom. This is a method of creating an internal market which is a little more relaxed than that created by the internal market Act. The point is that all four Administrations consult each other about changes that may be needed and about the composition of the frameworks themselves.

I hope that the Minister will be able to say that the Government’s intention is simply to replace the regulation and the SIs that follow behind it so that they become part of assimilated law and lose their connection with EU law. I do not think that replacement would create problems, provided it is accurate. There is concern about Clause 15(3), which talks about alternative provision. If the proposal is to make alternative provision to any legislation which forms part of a common framework, to any extent or for whatever reason, it raises a question as to how it is to be done, while respecting the way in which the framework scheme operates. The essential part of the framework system is consultation between all four parties with a view to seeing whether there is a divergence, and, if there is, whether it can be accommodated by agreement between the parties? Where there is no divergence, one need do nothing about it—but it is all a matter of consultation.

I suppose my question is this: is it proposed to make any alternative provision in relation to this particular framework? If not, or if, as I said before, it is just a matter of replacing it, then I can see very little problem there. Any attempt to reform or make alternative provision raises a question of timing, which goes back to a point raised earlier today about whether the sunset is capable of being met. It is not just a matter of identifying the instruments and deciding what might be done about them; you have to have time to consult the devolved Administrations and secure their agreement. If there is disagreement, there needs to be time to go through a process for the resolution of disputes, which is built into the frameworks. It is a carefully designed system.

If the Government are proposing to maintain the common frameworks—I understood from the noble Lord, Lord Callanan, quite some time ago that that is their intention, which I very much welcome—then it raises questions as to how exactly that process will be handled. I support the noble Baroness, Lady Brinton, on the points that she made, but this is a very specific issue. We will come back to the handling of common frameworks in later groups, but I raise it now because it is very much in point in relation to this specific regulation, which we will examine and see how this is going to be dealt with.

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business)

My Lords, my noble friend Lady Brinton has done a fantastic job of explaining why these three amendments have been put forward. I was going to apologise to the noble Lord, Lord Davies of Brixton, for stealing his clothes, but I feel less guilty now—he was here just now but has popped out.

I welcome the Minister to her seat; I do not know what she has done to deserve this slot, but I see that the Lord Privy Seal is here to make sure that she turned up. I think that she was here earlier when the noble Lord, Lord Davies, brought up Amendment 45, which would explicitly exempt the financial services industry from the effects of the sunset. I would have thought that, at a time when the health service is under the stress that it is and is stretching every sinew to try to deal with the situation that it finds itself in, this would be a sector to qualify for exemption. I suggest to the Minister that she might like to go back to colleagues and accept an amendment to Amendment 45, which will no doubt come from somewhere, that exempts health service regulations from the sunset arrangement. As we have pointed out, it seems that the precedent has been set by the Government, so let us look at worthy causes for exemption. If the health service is not top of that list, I would like to know what is. That is my modest suggestion to help the Government out on that particular issue. It does not make sense to call into question the qualifications of the doctors we actually have when we are trying to get so many more. Perhaps that is a solution.

My noble friend, in speaking to Amendment 4, mentioned REACH and the UK version of chemicals regulation. I probably should not point it out, but the issue of the non-portability of data was brought up repeatedly by many of us on the Floor of your Lordships’ House and so it should not have come as a surprise. The fact that it is now costing substantially more to do what we were doing anyway also should not be a surprise. It is a lesson that perhaps has not been learned but could be learned.

Amendment 4 relates to EU-derived laws that ensure the safety and standards of food in the UK. Removing them would pose a serious threat to consumers and undermine protections that prevent loss of life, as my noble friend so clearly illustrated. That is why we have put this particular regulation in this group of amendments and suggested it should be exempted from the sunset.

On PPE, I think the performance of PPE speaks for itself.

I would like to come back to the extremely apposite point made by the noble and learned Lord, Lord Hope, on frameworks. We will come back to it when we are talking about some of the devolution issues, and I hope he will be in his seat when we have those debates.

I should correct myself slightly; when I was talking about the interpretation of case law, I talked about British law, and of course it is not British law—it is English law and Scottish law. That is a further complication. How these changes are interpreted both in the English courts and the Scottish courts may not be the same. The noble and learned Lord was right to bring up frameworks, and I would like to extend the question I asked the noble Lord, Lord Callanan, about how case law is affected by this to include the divide that could occur between English and Scottish law.

That said, I am happy to support all of these amendments, each of which bears my name in some form or another. I hope that the Minister will give them due attention. These are really important issues that affect real people, every day, and we want to know if they are going to be retained as they are, amended or revoked.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench 3:30, 23 February 2023

I too welcome the Minister to her role. I knew her first as a very distinguished civil servant in the Ministry of Agriculture, Fisheries and Food, so know that she will understand far better than I do what I am now going to touch on.

It seems to me that this Bill has flown under the radar so far, as far as public opinion is concerned. It came through the other place with very little public attention. I do not think many people realise how much of the statute book that is directly relevant to them is in play and will stay in play until some Minister has decided whether it is to be amended, replaced or die. When the public get to know that this is the case, I think they are going to react rather badly. I wonder about the politics of this, late in a Parliament, but that is not my business.

The issue arises first very clearly in relation to Amendment 4, and later in relation Amendment 20. Food safety is a real concern, right across public opinion. The idea that food labelling and safety rules could be in play will have considerable resonance, in a negative sense, across the country. When people were talking in an overexcited way about how we might have a free trade agreement with the United States, I was struck by the issues that really had public resonance, which were those concerning chlorinated chicken and the hormones in beef. As a member of the International Agreements Committee, I am struck that what is of most interest to the public in free trade agreements are food imports and whether their standards will be equivalent to ours.

I learn from the Consumers’ Association that 90% of our food law is retained EU law. Unless the Government accept amendments such as Amendments 4 and 20, in play will be a raft of legislation which is important to people. They take it seriously; they want to know what is in the food they are going to give the kids. It would be in the Government’s interest to look seriously at these amendments and at the sunset clause, which just does not work, as the noble and learned Lord, Lord Hope, said earlier.

Particularly in relation to food safety, people think, “salus populi suprema lex”—I try that on the Minister because she is a great classical scholar—that is what they believe. Therefore, what the rest of us are doing now, along with singularly few on the Government Benches— the boy stood on the burning deck,

Whence all but he had fled— will have considerable resonance out there.

Photo of Lord Whitty Lord Whitty Labour

My Lords, I want to follow the noble Lord, Lord Kerr, in intervening on this issue because this is the first consumer protection part of the Bill. I was once a consumer champion—I hope I continue to be so privately—and this amendment and many in the next group relate to food safety. The noble Lord is absolutely right: this is one of the most acutely difficult areas of consumer protection, and labelling in particular has caused a certain amount of controversy. But there is settled law here, and the bulk of it originates from Europe.

There are other areas of consumer law where UK law is better than EU law, but here, our scientists, our food industry and the Europeans have come up with an agreement which goes right across Europe. We have to remember that processed food and fresh food is a very well-traded commodity, probably the biggest trading commodity within the European continent, and we need some commonality. The threat of this being changed is surely a real difficulty for the food industry—although the Minister can answer that—and certainly for consumers. It is difficult enough to follow the labelling and consumer information currently required; if we have different labelling and requirements for things originating in France and in the UK—or for those originating in the Republic of Ireland and in Northern Ireland—we will have huge difficulties.

But there is something more behind this. When the Government presented the European Union (Withdrawal) Act 2018, I think we all accepted that whether we liked Brexit or not, we would have to have a process whereby government looked at whether some of these laws continued. The real difficulty with this legislation is that it does not provide for a steady look at what the highest priority is for government to intervene on over the next few years, in order to see in a broader context whether we ought to change it. There is the threat that every single regulation and law mentioned in these amendments and in subsequent groups will end on 31 December this year without any replacement, whether with consideration or not.

We are on Clause 1, which deals with the sunset. The noble Lord, Lord Kerr, has referred to the relatively sparsely populated Government Benches. I ask Ministers if during their lunch break they have taken note of the points made by the noble Baroness, Lady Altmann, and the noble Lord, Lord Lucas. If they are taken on board, that would reduce the anxiety here and in civil society about this approach. If the sunset clause disappears, and with it the threat of regulations entirely disappearing at the end of this year, we would give the Government credit for being able to make a proper assessment of whether those rules are needed.

Regarding the suggestion of the noble Lord, Lord Lucas, if we had an amendment to Clause 15 which, broadly speaking, said “no regression”, the level of anxiety would again be greatly relieved, at least in relation to some of the regulations we are talking about.

So I hope the Minister took the opportunity of the 50-minute adjournment to think about what his colleagues were saying, and that he will come back to us, either now or subsequently, with an assurance that there will not be the death of all these regulations as of 31 December, and that regression will not occur in relation to any of them, particularly those dealing with food labelling information and the protection of consumers whenever they go to the supermarket.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Shadow Spokesperson (Business and Trade), Shadow Spokesperson (Treasury)

My Lords, I support all the amendments in this group. The noble Lords, Lord Fox and Lord Clement-Jones, and the noble Baroness, Lady Brinton, in the way she introduced them, have done a very good job of bringing these important issues to our attention. I want to make a couple of points that have not yet been made about this process. We have had a lot of discussion on process, as we do on Bills that are all about enabling rather than substance. That is inevitably what our debates end up focusing on; we use these issues as a prism to look through. It helps us to realise just how dreadful an approach the Government are choosing to adopt.

As we all said at Second Reading, I do not think anybody objects to the Government looking at retained EU law and asking Parliament to make changes to it. That is what Governments are there to do: to improve the law of the land. We respect this Government’s right to do that. We might not like it, but that is what they are there to do. However, we feel that to do it in this way is just wrong in principle, and the usefulness of these three amendments is that they make that point very well.

When I was looking at Amendment 3, I noticed that in February last year the Government presented an SI dealing with health professional qualifications. They said that it was needed because the measures concerned had been dealt with in a hurry as we left the EU. At that point, in that SI, the word “pharmacist” had been used instead of “dentist”. That is quite an error. I raise this for a couple of reasons. The first, obviously, is to demonstrate that the Government can and do change regulations arising from our exit from the EU as a matter of course. It is a perfectly normal thing for both Houses to do. I myself, and I am sure everybody else in the Chamber today, have had the great honour, privilege and delight of taking part in many SI debates. It is what we do. Even when things are not done in a crazy rush, trying to get hundreds or thousands of these done by Christmas, significant errors are made and things are put into the law of this country that were never intended to be there and should not be there. I also raise this because I wanted to highlight that however brilliant our civil servants are—as I think they are—and however diligent and hard-working they definitely are, errors are made by civil servants too. I am not someone who has described our Civil Service as “broken”, “lazy” or “bloated”, but government Ministers have, very recently; yet they are asking civil servants to undertake this Herculean process. There is a tension there.

Amendment 4 and the issue of food labelling is important; I am not surprised that that is what the majority of the contributions on this group have focused on. There are multiple examples of deaths occurring as a consequence of food labelling not being right. I am very supportive of an examination of our food labelling laws. I am very happy that this could be done by the UK Government—ideally in consultation, at the very least, with the devolved Administrations.

I noticed that the coroner for Avon recently called for robust allergen labelling following the death of Celia Marsh. Sadly, she died from a reaction to dairy after eating a sandwich which was incorrectly labelled. This is not an isolated case. I know that the Minister will be aware of that. The Government ought to be consulting, engaging and encouraging participation in the improvement of the current labelling rules. We would like to engage in and support this. There is an opportunity for us to do that now as the UK, and we would quite like to see that happen. However, that is not what this is doing.

The fact is that we are not really taking powers from the EU and giving them to this Parliament, because this Parliament will not get to take a meaningful part in this process. We will hear that again and again as we go through these debates. We are not just taking powers from Parliament and giving them to Ministers, which is what the Bill does. If we are completely honest, we are giving them to civil servants to do. Fine though our Ministers are, respect them as I do, and highly accomplished, talented and hard-working as they are no doubt, there is no way to make this number of decisions well in this timeframe, and to make them decisions of quality which endure and improve the situation for the people of our country. That cannot credibly be achieved through the mechanism suggested in this Bill. The Minister will be responsible for these decisions—I hope that she is happy about that; I certainly would not be—but the people undertaking them will be unelected, unaccountable and invisible. The Minister will have her name on some of the decisions, perhaps, but no one thinks that the Ministers will be handling 4,000 of these choices—though who knows where we will end up with this?—which are needed by the end of the year, and probably more.

Using a sunset clause such as this is completely extraordinary. I have tried to get the Government to use sunset clauses in the past when I have had brilliant ideas for amendments to Bills which they have not been enthusiastic about. I have thought, “I know: let’s put in a sunset clause, and it might make it easier for Ministers to swallow”, because usually you would use a sunset clause if you were doing something in a hurry. Maybe there is a crisis and you have to make some change there and then; you put in a sunset clause to reassure people that it is not a permanent change. You might use it to ensure some kind of post-legislative scrutiny—a very good thing that would be. However, with this, there will be minimal scrutiny, if any. Ministers may be able to alert Parliament to what they are doing if they themselves are alerted to what they are doing.

The Government have created this fast-moving conveyor belt with all these measures on it and Ministers are frantically grabbing what they can, if they spot it, keeping the power to revoke, retain, rewrite or whatever they want to do, but it is so risky and unnecessary. Because we are talking about these three amendments, I pose the question again, which my noble friend Lord Collins posed earlier in relation to workers’ rights. Intention here is everything. We want to know so we can then assess whether this Bill will enable the Government to deliver their intention, but we do not understand the intention of the Government. On these three issues—health and social care professions, food labelling, and personal protective equipment—will the Government retain these measures? Will they revoke these measures, or will there be some change done by the Government? That is all that we would like to know.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 3:45, 23 February 2023

Before the noble Baroness sits down, I wonder whether she accepts my point about the common framework relating to food labelling and standards, because it does raise a different dimension. In that case, the UK Ministers do not have a free hand if the framework system is to survive. Every change has to be discussed, and preferably agreed, with the devolved Administrations. If there is disagreement, then that has to go through a resolution process, which may ultimately end up with the UK Minister. But it is quite a complicated process, which is designed to make sure that there can be some divergence, but an agreed divergence, across the Administrations, which is in the interests of everybody. So I wonder whether she accepts my point that this is another dimension which really has to be explored, and of course has a bearing on the sunset point.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Shadow Spokesperson (Business and Trade), Shadow Spokesperson (Treasury)

I very much accept that. It might be that we want to discuss later in the Bill whether or not any of the issues that devolved Administrations have a view on, or have responsibility for, ought to be dealt with in a different way, because the devolved Administrations, as of today, are deeply concerned about the way that the Government are proceeding. So I very much agree with the noble Lord’s point.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, may I just respond to the noble Baroness, Lady Chapman? She said that we just need to know whether the Government want to retain the protections in terms of health, PPE and food labelling, or whether they want to change it or reform it and so on, and that that is all we need to know. It is unbelievable to me that we are having that sort of discussion in this House, rather than requiring it to be very clearly specified in the Bill in relation to these incredibly important issues, and indeed the thousands of other important issues, exactly what the Government’s policies are in terms of retaining, reforming—and, if so, what reform—and the rest of it.

This takes me back to the comments from much earlier made by my noble friend Lord Wilson, when he said that this is lazy government and an unacceptable failure to prepare the policy for this Bill before bringing it. It has already gone through the House of Commons like a flash without any proper discussion. As he would say, there is a reason that we have democracy and the UK Parliament; it is in order for the British people to be consulted, to understand and to be able to anticipate and know what their Government are doing and why. So we are having these debates—as I said earlier, I do not want to repeat myself—but it just takes me back to asking what on earth we are doing, rather than saying, “Government, O Government, please take this Bill back; do the homework, prepare your policies in relation to this Bill and then set out your policies in the Bill; and let us see whether Parliament will pass it.”

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Shadow Spokesperson (Business and Trade), Shadow Spokesperson (Treasury)

What an extraordinarily old-fashioned way of looking at how to run a country. The idea that the Government Minister would be required to stand here, in front of your Lordships, and explain what the Government intend to do—I have never heard of such a thing.

I think that the noble Lord, Lord Wilson, was absolutely right to say that this is lazy government. It is lazy, but the reason that the Minister is about to stand up and give some sort of platitudes or vague assurances is because the Government do not know what they want to do. We saw this with the Schools Bill and with the Northern Ireland Protocol Bill. I am sure we have seen it with many other Bills which I have not been quite so closely involved with, but this is a pattern—a pattern which I think the public have got ever so slightly wise to. I would sincerely advise the Minister, whom I hold in utmost respect, not to try to fob this Committee off with some kind of vague assurance. We do want specifics, and we do want to know what the Government are planning to do.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

My Lords, it is actually a great pleasure to join this debate on this important Bill. There are four of us on the Front Bench to listen to concerns expressed today—weighty Front-Benchers. I very much believe in the rights of this House and our work to review legislation, which I have done with many noble Lords over the last 10 years.

I will not repeat everything that my noble friend Lord Callanan has said. But I would say that the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens. We should not forget this, while, of course, maintaining necessary protections. That includes food safety, as the noble Lord, Lord Kerr of Kinlochard, explained so clearly. The noble Lord, Lord Whitty, rightly pointed out that food moves across frontiers, which need to be taken into account, of course, in any review.

Of course, all protections will not disappear. That is not what we are debating. As the noble Baroness said, the Government are here to improve the law of the land and we need to avoid error.

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business)

I thank the Minister for giving way. She said that not all protections will fall away. Can she tell us which protections will fall away?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

I said we would be maintaining the necessary protections. I was debating. People were saying that all protections would disappear; I wanted to make it clear that that was not the case. I am going to talk in a minute about the two or three areas raised by the noble Lord, Lord Fox.

The sunset clause, as we have said already, is not intended to restrict or influence decision-making. It will be for Ministers and devolved Governments to decide what action to take in their specific policy areas.

Even those of us who were remainers and who participated in discussions in the making of European regulations over many years were very frustrated by the bureaucracy and duplication of some regulations, and some of the compromises that we had to make were unwelcome. That was true for Governments over a long period; it was not only a matter of this Government’ concerns.

It is only right, in my view, that retained EU law is reviewed equally across all sectors of the economy and then, if necessary, reformed or preserved. To respond to one of the points made about carve-outs, we do not want to leave any area unreviewed. That includes financial services, but they are being reviewed in the context of another Bill that is going through the House at this time.

We think it is right to review all the areas, including health—

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Shadow Spokesperson (Business and Trade), Shadow Spokesperson (Treasury)

I am just curious. What decision process resulted in financial services being dealt with in a different way from everything else? It would help us if we could understand that.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

As I said, we are determined to have a review and to make the changes that we can, and the two Bills are going through concurrently. A decision was taken—I think rightly—to take advantage of that process.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Shadow Spokesperson (Business and Trade), Shadow Spokesperson (Treasury)

We are trying to understand why that is. What is different about financial services and food safety to warrant them being dealt with in such different ways?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

I think our overriding concern is to make sure that all the areas are reviewed and that is behind this whole process, including the sunset. Let me move on, if I may, and make a bit of progress.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

I hope the Minister will forgive me but before she moves on, I want to add to the question from the noble Baroness, Lady Chapman. The Financial Services and Markets Bill is not only primary legislation but there has been consultation, proper scrutiny and so on, and listed in the schedule to the Bill are all the measures that are being removed. That is essentially what is being asked for by critics of this Bill. Please will the Minister tell us what the Government are doing with individual measures—the 4,000 or whatever?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office) 4:00, 23 February 2023

We have a process for those measures. Obviously, there is a lot of retained EU law. We are going through it very carefully. Departments are doing that and are working out what should be preserved, what should be amended and where there is duplication. As I said, there is a case for change, and I think that has been accepted on the other Benches. In some cases, there is parallel legislation, such as the Environment Bill, which has brought in new powers.

If I might turn to Amendment 3 in the name of the noble Baroness, Lady Brinton, I think she will be glad to hear that the European qualifications she refers to in the amendment do not, in fact, fall in scope of Clause 1. Therefore, this amendment is not necessary and, indeed, would have no effect. This is because the regulations concerned were made under domestic powers to come into force after the transition period and therefore do not fall within the definition of EU-derived subordinate legislation in scope of the sunset. The sunset captures only regulations made or operated immediately before the transition period for the purpose of implementing an EU obligation.

Turning to Amendment 4, I am sorry to hear about the noble Baroness’s coeliac condition. I remember developing special lines for coeliacs in my time at Tesco, which has been referenced earlier in the debate. We are in the process of reviewing retained EU law. The Government’s aim is to ensure that food law is fit for purpose and that the UK regulatory framework is appropriate for and tailored to the needs of UK consumers and businesses. A specific exemption for these regulations is not appropriate. The Government are in the process of analysing and assessing retained EU law to determine what should be preserved and what should be repealed or amended. That work will determine how we use the powers in the Bill. The UK has world-leading standards of food safety and quality, backed by a rigorous legislative framework. I know because I did the first Bill of this kind, the Food Safety Act 1990. It is only right that we should re-evaluate REUL to ensure that it continues to meet our needs.

I was asked about intention. The Government remain committed to promoting robust food standards nationally and internationally to protect consumer interests, facilitate international trade and ensure that consumers can have confidence in the food they buy.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

I have followed this debate, although I have not yet spoken in it. I would just like to clarify something. Is my understanding correct that Defra, or indeed any other department, could apply to have its own date for sunset clauses? If that is the case, what is the mechanism that would be used in terms of legislation? Also, when the Minister refers to food standards, what is the role of the Food Standards Agency in England and Food Standards Scotland to maintain them, not just for food in this country but to ensure that imported foods meet those standards under the revised legislation?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

I will try to answer my noble friend’s question. Defra has a programme looking at all this. It needs to decide what to preserve and what might need to be amended. I think the Bill has some scope for extension from 2023 into 2026. Perhaps I could now move on to Amendment 17 in the name of the noble Lord, Lord Clement-Jones.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

Before the Minister moves to Amendment 17, Amendment 4 raises the issue of common frameworks. I can well understand the Government’s wish to have a fresh look at standards overall, but it is a massive task, and if the Government are adhering to the structure of the common frameworks, that cannot be done without consultation with the devolved Administrations. Are we dealing with common frameworks in the area that Amendment 4 is concerned with and, if so, how do the Government propose to handle it? Are they proposing to adhere to the mechanisms in the common frameworks? If so, can the Government assure us that they can achieve what is necessary before the sunset date?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

I was going to respond at the end on common frameworks, partly to say what our hope is, and partly to say that this may well come up under future amendments on the Bill in the next few days. I wanted to be reassuring. Obviously, our ambition is that government departments and devolved government counterparts work together to agree their approaches to individual pieces of REUL. The delegated powers in Bill could then be used to preserve, extend, amend or repeal REUL as required via statutory instrument. Of course, as has been said, the devolved Administrations also have statutory instruments that they need to look at.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Shadow Spokesperson (Business and Trade), Shadow Spokesperson (Treasury)

It is interesting to look at the expertise of the people who will be making these decisions. In the case that I referred to earlier, the coroner made some specific recommendations about food labelling and obligations to report anaphylaxis. Will things such as that be taken into account by civil servants when they are looking at what to recommend to Ministers in terms of revocation or rewriting?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

Clearly, when civil servants are reviewing the body of law, they will look at individual points that have been raised, not least those that have been raised by this House. That is part of the process of review that takes place. I was seeking to explain that I do not think that REUL reform poses a threat to the common frameworks programme. Carving out retained EU law and the scope of common frameworks from the sunset would effectively remove a key driver of the very regulatory divergence that common frameworks are designed to manage, and which I think are improving matters. The devolved Governments would be able to make active decisions regarding their REUL and decide which REUL to preserve and assimilate or let sunset within their respective areas of competence. We will come back to this issue, no doubt, because I think there are some amendments in a later group. I am very happy to discuss these points further with the noble and learned Lord.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Shadow Spokesperson (Business and Trade), Shadow Spokesperson (Treasury)

Before the noble Baroness sits down, I am sorry to keep popping up and down, but it is Committee and that is sort of what this is about anyway. I may have intervened at slightly the wrong point. She was trying to respond to a point about common frameworks, and my question was not really about that. She said in response that there would be an ability for this House to contribute to review and to bring to the Minister’s attention some of the important things we have discovered—from recommendations by a coroner in this case, but there will be many other points that are important too. I do not understand; I do not see how the Bill as proposed really does enable that to happen. She says it does, and I wonder whether she could explain a little bit more fully what she meant by that.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

What I meant is that, when Bills are going through and noble Lords raise points, it is my experience, having done many Bills both as a civil servant and as a Minister, that these points are picked up and considered. Specific points were made, and I can certainly give an assurance that those points will be passed on to the departmental teams looking at the matters on food safety.

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business)

My Lords, coming in on that point—I thank the noble Baroness, Lady Chapman, for starting the process—and bearing in mind that the number of regulations and laws we are discussing today with respect to Clause 1 is a very small percentage of the 4,700 that the Government have on their list, how does the Minister suggest we raise some of the others that we have not put before your Lordships’ House as amendments? I am happy to come up with some more amendments if that is the best way of doing it. If it is not the best way, perhaps a forum—we could call it “Parliament”—could discuss it.

Photo of Baroness Neville-Jones Baroness Neville-Jones Conservative

Let me reflect further with the lead Minister on this matter and come back. The point that I was making is that the suggestion that nobody is listened to is not right. We are listening and we are concerned to make sure that necessary protections are extended. That is the intention.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I just say to the noble Baroness on the issue of common frameworks and the devolved Administrations that your Lordships’ European Affairs Committee, in the form of our chair and two other members, went to Cardiff and Edinburgh to take evidence on a completely different matter. Both in Cardiff and in Edinburgh, we were told there was absolute dismay at the way they were not being told what was going on with REUL, and that there seemed to be an unwillingness to recognise that some of legislation had actually been devolved. They were just being told, “Well, it will have gone”. This is quite serious stuff, frankly. I am not expecting the Minister to answer this question now, but will she please say that intensified discussions will go on with the devolved Administrations about the implications of the Bill for them? Otherwise, there is a lot of trouble ahead—and these were not people from opposing parties; they were people from the Minister’s own party as well.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

I find it difficult to answer that. My understanding is that there has been extensive dialogue with officials across all these portfolios, as noble Lords would expect: that is how government runs. In my areas of responsibility, which do not include food these days, there is extensive dialogue between departments, and that is very helpful. That has been the process here and will continue to be the process.

Photo of Baroness Crawley Baroness Crawley Labour

If there has been extensive dialogue between officials, and presumably organisations that advise the Government, such as Food Standards Scotland, why are they lobbying us about the defects of the Bill?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

I have had correspondence with these bodies. Certainly, in my other work I deal with the Food Standards Agency. It is very helpful and it links with government. If I may, I think I will now move on.

Photo of Baroness O'Grady of Upper Holloway Baroness O'Grady of Upper Holloway Labour

My Lords, I have a really practical question. Many people around the Committee have expressed the view that Parliament should have proper scrutiny and accountability, but, even on the Government’s own terms, I genuinely do not understand at what point people in the real world get to hear whether the deadline for the sunset has been extended. When it comes to food labels or workers’ rights, I know that the Minister personally understands that manufacturing companies, for example, cannot just turn things around overnight; they have to know what they are doing. This has a real impact in the real world, so how much notice will we be given, if the Government press ahead on these terms, on whether there is going to be an extension of the sunset clause?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

There is a process in place. The Minister explained earlier how it is working and that we will be giving more information, as we should. I was trying to reassure the Committee that, in advance of that, discussions are going on at official level, which I am sure will reassure people. There will be a process. Anything significant that needs to change will need to be the subject of a statutory instrument, which will come before the House in the normal way.

I am now going to move on to Amendment 17.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

One of the more entertaining bits of the Minister’s elegant reply was the opening bit, in which she gave us a new rationale for the sunset clause: it was necessary in order to get obscurantist, idle civil servants to actually go through the statute book and decide which bits should go. Is this habit going to catch on? The next time we have a defence review, shall we start with a sunset clause that would remove frigates? I think the noble Lord, Lord West, would be particularly good in that discussion.

The point that matters is the one that has just been made by the noble Baroness, Lady O’Grady. Out there, across the economy and in households—though households have not really noticed yet; they will be horrified when they do—economic operators do not know whether their relevant regulation is in play or not. They do not know how much of it falls under your definition of REUL. They do not know what you are going to do with it by definition. They do not even know what it is, because you still have not published a list of the regulation that is now in play, and you do not know how much there is. You do not know when you are going to be able to tell us how much it is or when you will publish a list which will enable economic operators to have reduced uncertainty. The question you have just been asked—when are we going to know what it is going to be?—is really important.

Photo of Lord True Lord True Leader of the House of Lords and Lord Privy Seal 4:15, 23 February 2023

My Lords, I remind the noble Lord, who I listen to with great respect, that it is not the custom in this House to address remarks personally as “you” to an individual Minister who is trying to answer. You may certainly make charges—you have made many—against His Majesty’s Government but please let us not personalise our dialogue.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

The rebuke is absolutely correct, and I withdraw my remarks. When I said “you” I meant the Government vicariously, but I may have elided from first referring to the Minister personally into talking about the Government. The Leader is quite right to stamp me down.

I hope that the Government will be able to tell us soon the answer to the question the noble Baroness, Lady O’Grady, has asked. The uncertainty across the country is what will do the most damage.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

That is why we have published the dashboard and why we will improve it. It is why we want to get this Bill through, so that the SI process can start in good time for the end of the year. I should say that I know that government departments have been working on this process for a long time. When I was a Minister in the Brexit days, the process of considering what might be done for the future was already under consideration. A lot of thought has been given to this and we need to get on. I would encourage noble Lords to support that.

On Amendment 17, there is no need for a specific exception for regulations on PPE. On intent, we of course remain committed to protecting consumers from unsafe PPE and will continue to ensure that only safe and effective PPE products are being placed on the market now and in the future. Ministers will be using available legislative powers, including those within this Bill, to take the necessary steps ahead of the sunset date to ensure that we meet this commitment.

We have dwelt on this for a long time. I hope noble Lords will feel able to withdraw and not to press their amendments and move on to the next group.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat

My Lords, I thank all noble Lords who have contributed to the debate and engaged directly with the Minister. It has been very helpful, not just to these three amendments but to the wider understanding of the Bill. I thank them for it.

I want to pick up the point about the common framework, because it reinforces the point around trying to do complex issues at speed—worse than that, complex issues that not just Parliament but even civil servants are not yet aware of. If more regulations are going to be put on to the dashboard, as the Minister responding to the last group before lunch said, we presumably expect more to emerge. One of the worries is the point at which the dashboard will freeze. Is it on 15 December or 30 December? What happens at that point to scrutiny?

My noble friend Lord Fox asked, only half in jest, whether we will have to go through every single regulation on the dashboard and lay amendments in order to get things discussed. We are doing that now at the end of February. If another 1,000 regulations are added in the middle of the summer, how on earth can we respond through the normal channels of Parliament and through scrutiny? I am really grateful to the Minister who, with her usual professionalism and concern, has tried to respond, but the core message that we have been getting all day in Committee is that there is no time to do this work before the sunset without really poor and unintended consequences.

I come back briefly to the issue of common frameworks. Fairly late on, during the passage of the Health and Care Bill—the noble Baroness, Lady Meacher, may have been one of the signatories to the amendment I am thinking of—we laid an amendment that was supported throughout the House. We were told that, because of time, agreement had been premade with the three devolved nations and therefore we could not have the amendment because it affected the common framework. That is absolutely not democracy. My real concern is that time is galloping by and more and more regulations are emerging.

I want to respond to each of the points that the Minister made. On doctors, I hope that she will read the GMC briefing, particularly the comments I cited about the Department of Health and Social Care being unclear. Although she may be clear, civil servants in that department are not. As long as that is the case, it needs to be clarified.

On food labelling, I am grateful for the reference the Minister made to making sure that Defra picks up its side of this. However, the reason it is mentioned is because there is a fairly large health impact. On our reading of it, there are issues. I do not think she quite answered my specific question on whether the sunset is there for part of it or all of it, or whether all of it is all right.

The same is true for PPE. The specific question I asked was because of the complexity around whether the sunset can override the regulation that has been put in place. I got a different answer to the question, but this is at the core of misunderstandings and is why I made a point about impact assessments and costings when I spoke on each of these issues. Food Standards Scotland, the GMC and the BMA in all their briefings said that they did not find what the Government intend to do at all clear. For the GMC, that is very serious. It is a big regulatory body, and the people it regulates hold people’s lives in their hands; it is important that it understands.

It is not fair to expect the Minister to answer in too much detail on the specific regulations, but the general points have been made time and again. From the health perspective, I completely agree with my noble friend Lord Fox, at the very least because of the condition that our health service finds itself in at the moment. It is really important, and I beg the Minister to consider relaxing the sunset on all health issues, given everything else that the department and the NHS are living with at the moment. In the meantime, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4 not moved.