Retained EU Law (Revocation and Reform) Bill - Committee (4th Day) – in the House of Lords at 9:00 pm on 6th March 2023.
Baroness Chapman of Darlington:
Moved by Baroness Chapman of Darlington
112: Clause 15, page 18, line 31, at end insert— “(1A) Before making regulations under subsection (1) a relevant national authority must consult with any person who may be affected by the proposed regulations.(1B) If a Minister of the Crown proposes to make regulations under subsection (1) which concern devolved matters the Minister must before making the regulations consult with the relevant national authority.(1C) A relevant national authority and, where subsection (1B) applies, a Minister of the Crown must publish the results of any consultation conducted under subsection (1A) or (1B).”Member's explanatory statementThis amendment requires a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations under subsection 15(1) before making them. All relevant national authorities are required to publish the results of the consultation.
My Lords, I am happy to briefly introduce Amendment 112 on behalf of the noble Baroness, Lady McIntosh. It is a pleasure and I thank her for inviting me to do so. Amendment 112 would require a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations under Clause 15(1) before making them. All relevant national authorities would be required to publish the results of the consultation.
We have been discussing Clause 15 on and off since we started. It is about the power to revoke and has caused a great deal of interest among noble Lords as we have gone through this. We have tabled Amendment 113, which would remove some important measures from the scope of Clause 15. We went for what we thought were the least controversial topics imaginable, so we have the Cocoa and Chocolate Products (England) Regulations 2003, some regulations on toy safety, regulations on the control of asbestos—which we discussed at length on day one—and the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005.
What we are trying to get at here is this issue of desired policy effect. Repeatedly, we have been assured by Ministers that we have nothing to worry about; every time we raise a particular measure, we are told, “No, that’s all fine; we are going to keep that one.” If that were the case, then an amendment such as Amendment 113 would pose no threat to Ministers because they would be able to back up their assurances with something within the Bill that would mean something.
Not anticipating that that is about to happen, I thought that I should explain a little further why we are quite so concerned about this. Clause 15(2) talks about the right of the relevant national authority to
“revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives.”
It is quite a broad power to be able to revoke a law and replace it with something else that the national authority thinks is appropriate—never mind what anybody else, this House or the other place might think. Achieving similar objectives is all very well, but the Bill does not say that the replacement law must have the same effect, which is very different. The DPRRC draws our attention to this as well. In fact, the committee says:
“Clause 15 is the most arresting clause in the Bill for its width, novelty and uncertainty,” which is pretty strong language for this kind of report. This is something that we will definitely want to come back to at a future stage.
I find Clause 15(3) to be the most concerning thing. It states:
“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision”, but it does not say what the desired policy effect would have to be. The Government do not set out anywhere what their policy outcomes are intended to be, so we cannot challenge the Government by saying that their replacement law is or is not going to meet their policy objective.
We have touched before on the issues raised by Clause 15(5). Ministers know that we are very worried about the last part of that subsection, which says that any changes must
“not increase the regulatory burden”.
A law can be revoked and replaced, but the regulatory burden must not be increased. When we have touched on this previously, we have been told that our understanding is not quite correct, because we were talking about categories of law and the burden must be the same in total across a category of law; a particular measure may result, on its own, in an increase in burden. The “burden” is defined as a financial cost; an administrative inconvenience; an obstacle to trade; an obstacle to efficiency, productivity or profitability; or a sanction, criminal or otherwise. That seemed very odd to us. We are not clear what a “category of law” is and, as far as I can see, it is not stated anywhere in the Bill. This would seem an appropriate set of amendments where the Minister might further explain exactly what is intended.
While I am on my feet, I will mention a couple of other amendments. My noble friend Lady Thornton has a very good amendment, which revokes the power in Clause 15(3) that I referred to earlier. Her amendment would require an opinion from the EHRC
“on the impact on equalities and human rights” before these powers could be used. That is just the sort of safeguard that we are interested in, because equalities law, as with many other areas of law, has grown over time. The intention of the people who made the law in the first place, whoever they might be, may not be clear to somebody reading the law now. The policy impact of it could be misunderstood if this is done in a hurry. A report from the EHRC would be an important safeguard, but that could equally be applied to many other areas of law.
My noble friend Lord Whitty’s amendment is a good one to refer to: it removes the requirement that any redrafting of the law would have to reduce regulatory burdens and business costs, with no regard to effectiveness. It matters that what the Government want to do is borne out by what goes into these new laws, and we are concerned that that may not happen with the method that the Government are adopting in their approach to this task—not just because of the speed, although the speed is certainly not going to help, but because of a lack of engagement with anybody outside the Minister’s head. I am also concerned that, with the best will in the world, Ministers will not be sufficiently on top of each and every measure and a lot of this will be left to the discretion of officials. I am sure that they will approach this with the diligence and care that it needs, but that is not the right way to go about this task, with so little opportunity for this House or the other place to have any input.
The noble Baroness, Lady McIntosh, has been generous in allowing me to introduce this group, but I will get a chance to sum up at the end, so I will leave it there for now. I think this is the moment to get to the bottom of this issue about regulatory burden, categories and how to get this done in a way that avoids some potentially regrettable errors. I beg to move.
My Lords, I will speak to Amendments 114 and 120 in the name of my noble friend Lord Fox, who, as the Committee knows, is unable to be with us today, sadly. I will also speak to the clause stand part notice.
As the noble Baroness, Lady Chapman, said, this clause is fundamental to discussion of the Bill. She referred to the DPRRC report and, if we thought that it was scathing about Clauses 12 and 13, as the noble Baroness rightly said, it is extremely concerned about Clause 15. Not only was there the phrase that she mentioned, but its conclusions were pretty damning, at the end of the day. It said:
“Clause 15 contains an inappropriate delegation of legislative power and should be removed from the Bill. It gives Ministers an extraordinarily wide discretion to revoke and replace secondary REUL merely where Ministers regard it as appropriate to do so. Clause 15 contravenes the commitment given at the time of the 2018 Act, a commitment that was enshrined in section 8 of the 2018 Act, that substantial policy changes to REUL should be for Parliament in primary legislation rather than for Ministers in secondary legislation … We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether.”
This is a very strong recommendation from the DPRRC, whose conclusions we always take extremely seriously in this House. The noble Baroness also referred to the difference between effects and objectives. That was the purpose of Amendment 114.
I really want to speak about some of the impacts of Clause 15(5), also mentioned by the noble Baroness. During our extensive debate on Clause 1, on Thursday
Under current product safety legislation, online marketplaces are not accountable for the safety of products being sold by third parties, which enables non-compliant and unsafe toys to be sold in the UK. I went on to give some examples of products, particularly one involving magnets and a young girl called Rebecca McCarthy, who was left critically injured after swallowing 14 magnets that were above the legal limit. I referred also to the fact that Which? has regularly found unsafe products offered for sale in online marketplaces, including Christmas tree lights that were a fire and safety hazard, baby carriers that posed a suffocation risk and electric blankets that were so poorly made that they risked giving electric shocks.
I mentioned a recent report by the National Audit Office that found that product safety regulations had not kept pace with the trends in online commerce; it noted that online marketplaces were used by about nine in 10 adults but were not responsible for the safety of goods sold by third parties. I also pointed out that the Office for Product Safety and Standards had been consulting on the UK’s product safety framework, in particular addressing the lack of obligations on online marketplaces to place only safe products on the market, in a similar way to how obligations apply to traditional retailers.
A number of noble Lords, including the noble Baroness, Lady Thornton, mentioned the review at the time. Of course, that makes the ambit of Clause 15, the subject of this debate, particularly relevant: not only is sunsetting available under the Bill but there is the right to revoke until 2026, as we see in the clause.
We can debate changes to Clause 15, such as those contained in Amendments 114 and 120, but it is the whole clause that creates the damage. In her letter of
“a letter which can be described only as obfuscatory, tautological gobbledegook”.—[Official Report, 28/2/23; col. 169.]
If that is the kindest thing that we can say, we have more to discuss.
In the letter, the noble Baroness explicitly says that
“it is possible for additional regulations and higher standards to be introduced through the powers to revoke or replace, so long as”— this is the crucial bit—
“the package of reforms contained within each statutory instrument does not increase the overall regulatory burden for that particular subject area”.
My bafflement is equal to that of the noble Baroness, Lady Chapman. The letter continues:
“For example, through removing unnecessary or unsuitable regulations or consolidating multiple regulations into one, it will be possible to add new regulations with higher standards provided that the overall regulatory burden is not increased Therefore, it will be possible for a single instrument made under the power in clause 15 to increase the regulatory burden, so long as this increase is offset by a decrease of regulation in the same subject area”.
Here is the rub:
“It will be for the relevant Minister or devolved authority to decide if they are satisfied that the use of the power does not increase the overall regulatory burden in a subject area”.
So it is for the Minister to decide—itself hugely objectional, as discussed on the third day of Committee—but let me set the Minister a hypothetical if he is to decide in this area. If the product safety review recommends that we need a major increase in product safety regulation to cover products sold on online marketplaces, how on earth is that going be balanced by a decrease in regulation within the same package of reforms so that it does not fall foul of Clause 15(5), especially given the definition of burden under subsection (10), which is pretty extraordinary in itself and which I am not going to quote? What would the Minister suggest? Some heavy deregulation on toy safety perhaps, or for baby carriers?
This clause is nonsense and potentially extremely dangerous nonsense. However, in the debate on Amendment 16, the noble Baroness tried to reassure us that the Government are committed to protecting consumers from unsafe products. How on earth could and should something as desirable as product safety for internet-purchased products need to be balanced by deregulation on product safety elsewhere?
It begs the question of how wide the package is within which the Minister will make a judgment. This is the nub of what the noble Baroness was hoping to elicit at some stage—I hope she does. How wide is the package within which the Minister will make a judgment? Is it across the whole of what we described in the debate on the first day as “a bucket”? If so, what is the potential size of a bucket, dear Liza? This is especially relevant as the Minister’s letter says the search is still on for retained EU law. It is the hunting of the Snark, clearly.
Finally, the DPRRC made it clear that we should delete Clause 15. I have a particular objection to subsection (5). I very much hope that, if we have a satisfactory debate today, we will move on to Report and delete Clause 15 at that stage.
My Lords, I support the opposition to Clause 15 standing part. Other noble Lords have explained potently why it should not. It is the epicentre of taking back power to the Executive and not to Parliament. It is at the heart of the debate we have been having for three days—it is now the fourth day and the fifth is to come. If Clause 15 stands part, the taking back of control to the Executive and not to Parliament will have been consecrated by Parliament, and that would be a terrible error.
The clause contains a bizarre reference to the overall regulatory burden not being increased. This is a phrase in legislation without a metric. There is no description whatever of how this will be judged. I can perfectly well see a Minister from the Front Bench, whenever an attempt is made to change a government proposal, nodding his head sadly and saying, “Ah, yes, I’m afraid you can’t do that, because the regulatory burden will be increased”. It is just a catch-all, kill-all argument yet again for the Executive to have absolute authority. Those are the reasons why I argue that Clause 15 should not stand part.
My Lords, I rise to speak to Amendment 118A in my name. I thank my noble friend Lady Chapman for her kind words about my modest amendment, and other noble Lords. From the discussion at Second Reading when my noble friend Lady Crawley referred to human rights and equality, and from earlier in Committee, it became clear to me that it is necessary to provide protection for human rights and equality and their infrastructure in the UK in the Bill.
I actually have been on the dashboard. I went to have a look to see whether I could gain some knowledge and possibly reassurance about the consequences of the Bill. I spent an hour or so putting questions about a variety of issues; of course, human rights and equalities are not a government department so I had to work out how to identify them across the variety of departments concerned. Digging into workers’ rights, I found descriptions of all kinds, many of which have been mentioned in the Committee over the past few days—maternity rights, trade union rights, and so on—but what I could not find out was what might be retained, what might be changed and what might be abandoned, so clearly I either need to spend more time communing with the dashboard or perhaps the criticism levelled at it in earlier debates has been borne out.
As a result, like other noble Lords I decided that the only safe solution was to require, as the noble Lord, Lord Krebs, proposed earlier today for the Food Standards Agency, that any proposed change, revocation or alternative provision should require an opinion from the EHRC on its impact on equalities and human rights before the powers can be used. Parliament gave the EHRC powers to advise on the equality and human rights implications of laws and proposed laws and to publish information and advice, including to Parliament, on any matter relating to equality and human rights. The breadth of law within the scope of the Bill is considerable and has considerable implications for equality and human rights. They include, but are not limited to, parental leave, annual leave, rights for part-time workers, maximum hours for heavy goods vehicle drivers, and other employment rights. The Bill could also impact on laws on minimum rights for refugees and disabled people’s access to rail and air transport.
So rather than going into detail about all the things that might be affected by this, I thought it would be worth putting on the record five concerns that the EHRC has about the Bill and why this amendment is important. These are:
“Uncertainty about the Government’s policy intentions and potential effects on equality and human rights protections … lack of parliamentary scrutiny of potential changes … limited time available before the proposed ‘sunset’ date … Legal uncertainty resulting from the Bill … implications for devolution and the Union”, which are immense. So it seems to me that this amendment should help the Government. It is a logical answer to those concerns, and I hope that the Minister might see it in that light.
My Lords, I am much more a supporter of this bit of Bill than some, but even I am astonished by Clause 15(5), which seems to introduce uncertainty and immense delays in the process without offering any great benefit. After all, what we are talking about here is essentially declaratory legislation. It is the Government saying, “We are not going to increase the burden of regulation by what we do under this Bill”. It is a political promise. It will, by and large—unless the Government chose to commit suicide, which is always possible—be delivered before the next election, so there is no benefit to be gained from this declaration. The Government will do it anyway and they will make the changes they wish to make, but the Bill introduces huge uncertainties.
I go back to my previous intervention when I queried the letter that we got as a result of the first day in Committee, which I think misinterpreted the way this subsection works. It is clear to me that, in deciding whether you are allowed to deregulate, you have to look at all the previous regulations made under this section within that subject area and decide whether your particular regulation plus all those adds up to something deregulatory.
It is going to get challenged in judicial review. If you give a water company a couple of hundred million quid fine for dumping turds in the Thames, you will find that its lawyers look at opportunities. Through this section we have introduced so much vagueness, such widespread uncertainty, that whether the regulation is in any way valid can be questioned at enormous length—including, as the noble Baroness, Lady Chapman, says: what is the subject area? Has the Minister got it right? Should it have been narrower? Should it have been larger? What is the right way of measuring these things, of all the things that can be taken into account in regulatory burden? Have they been weighed correctly?
It is total apples and pears mathematics anyway. How on earth do you summon these things to produce a single-digit answer? There is no formula in here as to how you can weigh an obstacle to trade and innovation against an administrative inconvenience. There is no way you can use this clause to arrive at a safe answer. The Government will never know—because of Clause 15(5)—whether any legislation that they have passed through Clause 15 is valid. It will be open to endless challenge. Because of that, in deciding whether to bring forward regulations under this clause, civil servants will have to go through the most enormously detailed and tiresome exercise to discover whether they will be able to make this balance work. That must add hugely to the delays.
I entirely appreciate what my noble friend on the Front Bench said on our previous day in Committee: that the Government want to get on with this and that he has his suspicions—which I hope do not embrace me—that there are people who do not want him to get on with it quite as quickly as he would like. I want these things to happen with speed and accuracy but the work that will have to go in to satisfy Clause 15(5) is huge, and an enormous diversion of effort away from the purposes of this Bill.
As the noble Lord, Lord Clement-Jones, pointed out, the only way of avoiding it is to introduce some whacking bit of deregulation smack in the middle of the most important subject areas, such as—let us take the environment since that is something I am heavily involved in—some enormous bit of environmental deregulation; then you know that you are safe because the rest of it cannot add up to excessive regulation.
We have been promised that that is not going to happen, in any segment of the Bill, so that is not open to the Government. They will have to weigh these little changes, pluses and minuses, in detail, every single time—to achieve what? As I said, to achieve nothing, because all of this is totally in the Government’s control. They can choose whether a particular instrument increases or decreases the regulatory burden and they will do it all within their term in office. There is absolutely no net benefit at the end of the day for all the work, difficulty and uncertainty of this, except that it will reduce the chances that my noble friend will achieve what he says are his objectives.
Of course, I am well used to getting things wrong in this House, and it may well be that I have here. In that case, I have Amendment 134, which mimics Clause 15(5) and says, “If you’re going to do this and we’re going to have declaratory legislation, then let’s do it for the environment”. Let us put in this Bill the promises the Government have made in front of us in this Committee about their environmental legislation, and then we can all be comfortable and spend the rest of the decade challenging their interpretation of that.
My Lords, I want to draw attention to two paragraphs in Clause 15 to which there has not been any reference in our Committee. Indeed, I do not think there has been any reference to them since Second Reading, but concern was certainly raised then about Clause 15(4)(c) and (d), and it is those that I now want to address.
We should remind ourselves that immense powers are vested in the Minister under Clause 15. Subsection (1) allows them to
“revoke any secondary retained EU law without replacing it”, while subsection (2) allows them to
“revoke any secondary retained EU law and replace it with such provision as the relevant national authority”— that is, the relevant Minister—
“considers to be appropriate and to achieve the same or similar objectives.”
That is a power, without reference to Parliament, resting entirely in the hands of the Minister.
I now turn, more precisely, to Clause 15(4)(c) and (d). I shall read those paragraphs out to your Lordships. When replacing revoked secondary EU law, the Minister has the power to
“create a criminal offence that corresponds or is similar to a criminal offence created by secondary retained EU law revoked by the regulations”, and, in paragraph (d), to
“provide for the imposition of monetary penalties in cases that correspond or are similar to cases in which secondary retained EU law revoked by the regulations enables monetary penalties to be imposed”.
It has been a cardinal feature of our law that the creation of criminal offences and the penalties that arise from the breach of those offences rest entirely in primary legislation. If, hidden under some carpet, there have been EU regulations that create a criminal offence or monetary penalties, then I am ashamed and embarrassed. But for the Government now to seek powers to replace them—again, without putting that before Parliament—is another wrong. My simple contention to your Lordships is that two wrongs do not make a right.
My Lords, I shall speak to Amendments 121 and 123 in my name and that of the noble Baroness, Lady Crawley. At Second Reading I welcomed the opportunity created by the Bill to review, improve and update a wide-ranging tranche of important legislation. However, I expressed some concerns about process, and one of those is the constraint that I believe Clause 15 imposes on improving and updating existing legislation. That constraint is also a concern to the Chartered Trading Standards Institute and Which?, among others. Here I should declare an interest as the president of the CTSI, my predecessor in that role being the noble Baroness, Lady Crawley.
The principal constraint I am referring to has been well articulated by the noble Baroness, Lady Chapman, the noble Lord, Lord Clement-Jones, and others: Clause 15(5) —namely, the proposed requirement that any changes to retained EU law should have an overall effect of not increasing the regulatory burden. I say immediately that I am a long-term advocate of better regulation. Over the years, I have served on the better regulation commission and various other bodies advising government on what better regulation looks like and the framework for its development and oversight. I fundamentally believe that regulation should be avoided wherever there is an effective alternative and that, when there is no alternative, it should be designed so that it achieves its desired effect with the least possible burden.
Equally, as a better regulation enthusiast I also believe that where existing regulation is not achieving its desired effect—in other words, where it is failing to deliver the intended regulatory benefit—it should be redesigned so that it does. In some instances where existing regulation is weak or deficient, improving or updating it might unavoidably increase its regulatory burden if it is to achieve its purpose. Consumers, competition and the economy can all suffer from weak and deficient regulations. The noble Lord, Lord Clement-Jones, gave a good example of this when he informed the House that the retained EU law on product safety is not adequately addressing the lack of obligations on online marketplaces to place only safe products on the market, in a similar way to those applying to more traditional retailers. This is a serious concern to organisations such as CTSI and Which? and a serious detriment to consumers and law-abiding businesses, and as the noble Lord pointed out, there are considerable consumer safety and public safety issues.
Preventing ineffective or out-of-date legislation being improved or modernised where, by so doing, the regulatory burden attached to that legislation might increase does not make sense and represents a missed opportunity. Removing that constraint and enabling a more flexible approach to designing replacement regulations would benefit the economy, consumers and the public.
I also believe that a more flexible approach would benefit the Government. The Office for Product Safety and Standards, which is a part of the Department for Business and Trade, is due to publish the results of a wide-ranging product safety review. It is likely that this review will identify areas of existing legislation or regulation that will need strengthening, and it would be surprising if its recommendations did not in part involve legislation and regulation that fall within the scope of this Bill.
I close with the hope that my noble friend may be able to reassure me that my concerns are unfounded, that I have misinterpreted the wording of Clause 15 and that it will not in fact prevent individual regulations that are ineffective or out of date from being modernised and improved, simply on the grounds that the regulatory burden attached to them might increase. If this is not the case, Amendments 121 and 123 would enable the Government to take a more flexible approach to designing replacement regulations and charting a post-Brexit regulatory landscape that seeks to enhance the economy while supporting consumer rights and protections.
My Lords, I would also like to speak in support of the amendments on the definition of regulatory burden, because the truth is that throughout our history, one person’s burden has also possibly been somebody else’s vital protection. This is particularly true in respect of employment rights.
It was good to hear the Minister talking positively about the living wage, which started life as the national minimum wage. As somebody who campaigned for it, I vividly remember huge opposition and resistance to the introduction of a national minimum wage, precisely on the grounds that it would be a burden on employers, cost too much and so on. Of course, today, it is now seen as one of the most successful policy innovations this country has ever delivered. I might add that it has been delivered on the advice of one of our few remaining tripartite bodies to make recommendations to government—the Low Pay Commission.
I am also particularly concerned about this clause’s impact on equality. Equal rights for part-time workers, which we also campaigned for, meant that, for the first time, millions of women in particular had access to occupational pension schemes. Without doubt, some might describe that as an administrative burden and an added cost for employers. I would argue that driving up labour standards is good for productivity, protects the decent employer against the bad and is ultimately good for our country. We want a country where people can work and retire with dignity. This clause is really unhelpful: the definition of “burdens” is unhelpful and does not appear to consider the impact on ordinary working people at all. It would be wise to drop it.
My Lords, we have heard some excellent contributions in this debate, not least the latest one from the noble Baroness, Lady O’Grady, and those of the noble Lord, Lord Lucas, and the noble Earl, Lord Lindsay. My noble friend Lord Clement-Jones made an extremely powerful case on product safety in online marketplaces. In the course of his contribution, he, like others, tested or tried to probe what “subject area” means—the Bill says, “a particular subject area”. I am afraid we are rather used to this, but the letter that we received from the Minister simply repeated that and did not explain it. It said:
“it will be possible for a single instrument made under … clause 15 to increase the regulatory burden, so long as this increase is offset by a decrease of regulation in the same subject area.”
But it did not enlighten us about the scope of a subject area, because that is a very subjective definition.
The noble Lord, Lord Lucas, said that if civil servants were considering one new measure they would have to look at all of the past measures. I suggest that they would have to look at all of the anticipated future measures as well and be Mystic Meg, because they need to know what is coming down the track to take any kind of view of what a single instrument might do to the weighting of the scales in the balance and amount of regulation. It is a bit of a lottery whether any single measure will fall foul of the overall regulatory burden test.
I note that the Minister’s letter admitted that
“There is no definition of regulatory burden in the Bill, as the Government considered that such a definition could unnecessarily constrain departments given the considerable variety in what is covered in regulations across Government.”
This is not the first time that we have been told that we must not unnecessarily constrain departments—which means unnecessarily constrain Ministers. So consultation, analysis, publication of the results of consultation and the role of Parliament all have to fall by the wayside because we must not unnecessarily—that is a loaded word—constrain departments: that is, constrain Ministers. The Government are acting in a very arrogant and high-handed way. They are getting too big for their boots by saying that nothing should be allowed to constrain ministerial powers. I am quite fed up with it.
So we are not getting any satisfactory explanation of how Clause 15 will be applied, and we cannot have any confidence, given the factors in Clause 15(5), that it will not lead to a de facto lowering of standards. That is the whole thrust of what has been talked about, and the whole rhetoric around the Bill, which started as the Brexit freedoms Bill, so it is very difficult to trust the assurances we have had that Ministers do not intend to lower standards.
During an evidence session with the House of Lords Environment and Climate Change Committee, the Secretary of State for Defra referred to the goal of the Environment Agency
“to change quite a lot of the water framework directive”.
That immediately makes one somewhat worried. It may well be that we need a sensible approach to looking at the water framework—and even my favourite one, the urban waste water treatment directive—but it is well known, and a source of great public concern given the state of our rivers and seas because of the discharge of raw sewage, that tackling the dire state of our waters will not be possible without substantial investment, which would trigger both a financial cost and the profitability limbs of Clause 15(5). So how will Clause 15 be a route through which the Government deliver improved environmental outcomes? There is a simple contradiction at the heart of all this.
The noble Lord, Lord Benyon, has told the Committee several times that the Government are committed to maintaining high environmental standards and that they want to see standards improve in future, but the whole thrust of Clause 15, particularly subsection (5), pulls in the opposite direction. You can just see water companies coming along and saying, if we require them to improve our pipes—which are bursting all the time, not least in my neck of the woods in Islington—and to stop raw sewage discharges by having better treatment facilities, that it will reduce their profits, which are of course being creamed off, with no benefit to consumers and citizens. So it is clear that the thrust of all this is towards a lowering of standards, and it is really impossible to believe the opposite of the case.
Finally, I will speak to the weakness of the “same or similar objectives” test. The reason for us wanting to replace “objectives” with “effects” is because you could have a law which might have the same or similar objectives of protecting consumers, but which will achieve the objectives in ways which are controversially different. I will leave noble Lords with the example of parental leave. The noble Baroness, Lady O’Grady, talked about various employment areas, and one of those rights is to parental leave. If Ministers wanted to have replacement regulations under Clause 15, they could argue that they could decide to give employers the right to refuse leave rather than just postponing it, as they are able to do in narrow circumstances where the operation of the business would be unduly disrupted. The Government could say, “Oh, well, we would be pursuing a similar objective of creating provision for parental leave while protecting businesses from being disrupted”. But if you gave employers the right to refuse leave—pursuing the similar objective because it is about parental leave—you would be driving a coach and horses through the parental leave rights.
Clause 15 is riddled with weaknesses and dangers; it is a “Here be dragons” clause, and it should be removed. It cannot be improved, and it should be taken out of the Bill.
My Lords, this has been a good debate, probing our powers to revoke or replace, which are important cross-cutting enablers of the REUL reform in the Bill. They will allow the Government to overhaul retained EU laws in secondary legislation across many sectors of the economy, as we have heard, and replace them with domestic laws that are tailored to and beneficial for the UK.
It would make sense to begin with the debate on the clause stand part notice, which was introduced by the noble Lord, Lord Clement-Jones, and supported by the noble Lord, Lord Hannay, and explain why we believe that Clause 15 must stand part of the Bill. Retained EU law no longer aligns with EU law, nor does it keep pace with the evolving needs of the UK’s citizens or businesses. That is why reform is needed. Although the Government recognise the importance of ensuring that delegated powers are appropriately limited and have the necessary safeguards in place, we judge the powers under Clause 15 to be necessary in order to deliver this reform. I am afraid we do not agree with the DPRRC recommendation to remove Clause 15 from the Bill.
At present, the problem is that there is a distinct lack of subordinate legislation-making powers to remove retained EU law from the statute book. This is an oddity. It results from our EU membership and it is appropriate to take a power which covers the gap. Removing Clause 15 would significantly damage the UK’s legislative dynamism and potentially hinder the UK’s ability to regulate adequately. There must be scope for reform over the next two to three years if we are to deliver post-Brexit benefits.
I note that the noble Baroness, Lady Chapman, raised concerns in particular around Clause 15(3). We recognise that the power under Clause 15(3) is a broad one, but we want to ensure that departments have the necessary tools to create a regulatory environment which is the right fit for the UK. In addition, Clause 15(3) may still provide only “alternative provision” to the retained EU law or assimilated law being replaced. Any replacement legislation must therefore cover similar ground to the retained EU law or the assimilated law it replaces. Therefore, the power cannot be used to create new regulations in wholly unrelated policy areas, for example. Moreover, I add that nothing in this legislation prevents the Government introducing sector-specific primary legislation where that is considered necessary and appropriate for that subject area, as exemplified by the Procurement Bill, the Agriculture Bill and the Environment Bill in recent times.
I turn to Amendment 112, introduced by the noble Baroness, Lady Chapman, and tabled by the noble Baroness, Lady Mcintosh of Pickering. Although the latter has gone home, I listened to this with care. The amendment would hinder the removal of regulations that have been identified as outdated and unsuitable for UK citizens and businesses, which we do not think would be efficient lawmaking. As I touched on before, we do not consider adding to the Bill a requirement to consult to be appropriate or necessary. Equally, I understand the concerns that have been raised.
I turn to Amendment 113, tabled by the noble Baroness, Lady Chapman. Honourable Members—sorry, noble Lords: exempting regulations and judgments on customer protections, which range from aviation to pensions and, indeed, to toy safety, which the noble Lord, Lord Clement-Jones, spoke to, from this power would obviously reduce the scope for reform that the Bill sets out to deliver in an orderly manner. There is simply no need for any carve-outs for individual departments or specific policy areas or sectors. Doing that would prevent the UK Government carrying out the necessary work to overhaul secondary retained EU law, which sits across so many different sectors of the economy.
I think my noble and learned friend Lord Bellamy talked about tides and how EU law had become entrenched in UK law. Where protections are necessary, these will be kept, but there is an opportunity to improve and in some places simplify laws passed over many years in Brussels.
Turning to Amendment 114, introduced by the noble Lord, Lord Clement-Jones, Clause 15(2) has already been restricted such that any replacement legislation must be appropriate and must
“achieve the same or similar objectives” as the legislation it is replacing. This amendment seeks to further restrict that subsection. The use of the word “effects” instead of “objectives” would further restrict the functionality of this limb of the power and prevent departments undertaking reforms that would adjust the existing policy to better fit the UK context. It is important that we ensure departments are able to amend their legislation to better fit that UK context, so this is an important clause.
Amendments 120 and 121, tabled by my noble friend Lord Lindsay, both seek to amend the limitation on Clause 15 that states that the replacement legislation must not add to the overall regulatory burden—so allowing extra burdens. In seeking to remove Clause 15(5) and (6), both amendments would increase the scope of the powers and enable them to be used to introduce additional regulation. Consequently, they would create a wider power than the Government have proposed or intended. As such, these subsections are a necessary check on our powers. Comments have been made that Clause 15(5) and (6) mean that regulation made under these powers could be challenged by the courts. That is of course correct, and like any delegated legislation, an entirely appropriate check.
We recognise that it will not always be a scientific test precisely to establish what the value of regulatory burdens are, or to balance one burden against another. That is why we have sought to ensure an appropriate level of discretion for Ministers in the interpretation of Clause 15(5) and (6). When doing so, the Minister is required to act reasonably and to take into account relevant factors. This strikes the right balance between limiting the scope of the powers and providing Ministers with a pragmatic degree of discretion in deciding whether the regulatory burden test has been met. The restriction to the powers to revoke or replace set out in Clause 15(5) and (6) will help the UK to establish a more UK-specific regulatory approach in order to go further and seize the opportunities of Brexit.
We have sought to ensure that the powers to revoke or replace cannot be used to add to the overall regulatory burden for a particular subject area. However, it will be for the relevant authority to decide. I thought I would share with noble Lords a hypothetical example from my own experience. There may be instances where there are multiple reporting requirements for businesses across a number of regulations in a similar area. Through consolidating these reporting requirements in a single regulation—aligning dates, for example—it can be administratively easier for businesses to comply with the regulations, and it may be possible thus to lower the regulatory burden while maintaining exactly the same standards and, indeed, possibly providing better enforcement. I hope that example reassures my noble friend Lord Lindsay, who I know does so much to try to tackle overburdensome regulation.
In responding to the interesting point made by the noble Lord, Lord, Hacking, about the ability of the powers under Clause 15 to create a criminal offence and provide for monetary penalties, I hope I can be reassuring. Any offences or penalties must correspond to, or be similar to, those which the revoked provisions provided. In that sense, the power does not provide licence to create wholly new offences or penalties, but rather allows like-for-like replacements for what already exists: for example, similar conditions for the commission of an offence and similar penalties. Furthermore, any instruments made under Clause 15(3) will be subject to the affirmative procedure, as well as any instruments made under Clause 15(2) which recreate a delegated power or create a criminal offence present in retained EU law.
To conclude, it is right—
My Lords, I wanted to interrupt the Minister before she got much further because I was much struck by her phrase “damaging legislative dynamism”. What would be more dynamic than changing retained EU law in product safety so that it covered online marketplaces? If that is legislative dynamism—very desirable legislative dynamism—what would prevent it? Well, Clause 15(5) would prevent it. How could it be possibly balanced against any other form of deregulation, however much discretion the Minister had? That would be around the edges. Can the Minister answer the hypothetical that I put in my speech?
There is a balance here. What we have got are powers that allow us to make changes, such as the example that I gave, which will improve the state of regulation. There may be a bit of an extra burden at the margins, but if you are bringing regulation into a new area, which I think is what we are talking about, in my opinion—and I am not an expert in this particular area—that might be a case for primary legislation. Of course, we are about to have further primary legislation in the digital area in the coming months.
I thank the Minister very much indeed for sitting down. The Minister did not quite answer my cardinal point that it is well-established in our law that all criminal offences, and all penalties arising out of those criminal offences, are part of primary law, not secondary law. That means that, if there are EU regulations that are creating criminal offences and penalties, they are no more right than the current proposal that Ministers will now do it. Both are wrong.
The point I was making is that we are not creating new offences with these provisions. I will look further at Hansard, but I think that what I said was right and not a cause for concern—obviously, there were penalties attached to Section 2(2) and so on, in my experience.
I need to move on. Amendment 121A was tabled in the name of the noble Lord, Lord Whitty. As I made clear in relation to the previous amendments, the restrictions to the powers set out in subsections (5) and (6), combined with a non-exhaustive list under subsection (10), will help the UK to establish a more nimble and innovative approach to seize Brexit opportunities. Furthermore, the ability for the powers to act on assimilated law after the sunset date will enable the Government to have sufficient time to undertake necessary reform. However, the Government agree with the principle that adequate limitation should be in place on the exercise of powers. We have sought to ensure the powers are restricted in their use and are available only in a time-limited window—this ends on
In the same spirit, Amendment 123, tabled by the noble Earl, Lord Lindsay, seeks to remove the non-exhaustive list in Clause 15(10). Let me again assure the Committee that the requirement not to add to the overall regulatory burden has been drafted in a manner which will allow the relevant national authority to determine how best to achieve the desirable policy outcome.
I turn to Amendment 134A, in the name of my noble friend Lord Lucas and pick up on the comments of the noble Baroness, Lady Ludford. Honourable Members—sorry, I should say noble Lords. I think I need to pay 50p for any such mistakes; I am sorry about that. As outlined by my noble friend Lord Benyon on day two of Committee, the Bill will not alter our commitments to the environment. The Minister made it clear in his speech that the default position of Defra is to retain EU laws. This will allow us to keep protections in place, providing certainty to businesses and stakeholders, and to make reforms tailored to our needs. The Government also recently announced the environment improvement plan, on
Lastly, I turn to Amendment 118A—it was the last amendment to be tabled so I have come to it last—for which I thank the noble Baroness, Lady Thornton. Her proposed criteria include a requirement to share the draft instrument with the Equality and Human Rights Commission, and for the commission to provide an assessment setting out the potential legal impact on human rights and equalities, including in relation to the Equality Act 2010 and the Human Rights Act 1998. As such, no replacement provision could be made under Clause 15(2) and (3) unless the Equality and Human Rights Commission had confirmed that there was no negative impact as a result of the proposed draft instrument.
We fully intend to maintain the UK’s leading role in the promotion and protection of human rights and the rule of law. We have a long, proud and diverse history of freedoms and we will ensure that our international human rights obligations continue to be met. The powers to revoke or replace are important cross-cutting enablers of retained EU law reform in the Bill. Clause 15 has been purposefully drafted to be broad in scope, and we have sought to ensure that there are important safeguards in place. This amendment would restrict the ability for the powers under Clause 15 to be used to undertake important REUL reform, so we do not believe that it is necessary.
Could the Minister write to tell me what the safeguards she is referring to are? She probably does not want to explain them at this time of night, but I cannot see anything in the Bill that tells us what safeguards there are. Perhaps she could write and tell the House what they are.
My Lords, the Government are taking huge powers in the Bill to abolish EU legislation and are asking us to believe the promises they have made; for instance, on environmental law, that they will not decrease environmental protection. I entirely accept those promises. This is a well-run Government who are capable of controlling what they do and living up to their promises. In that case, what is the problem with just saying, “And we’re not going to increase the regulatory burden”? We would say, “Okay, we believe you; we don’t need you to have a power to stop yourselves doing that”. What kind of Government need to legislate to stop themselves behaving well?
This clause has got to the guts of the Bill. It is a real mistake for the Government to be quite so certain in their position on this and to not give even the slightest indication that they want to consider some of the suggestions made by noble Lords in this debate. I think the Government may come to regret batting things back without really taking on board the very serious and well-considered points that have been made. This is certainly something we will return to on Report.
I have worked on a lot of Bills—not as many as others in this place—but never one where nobody has turned up to support their Front Bench on the Government side on anything.
Even the support there has been has been heavily caveated, and it has hardly been what you could describe as overwhelming and unquestioning support. I would say it has been very questioning support. I think that noble Lords on all sides are looking for a bit more from the Government on this clause in particular, but the same applies to most of the groups we have debated on all four days. Your Lordships might say that I rush to criticise the Government sometimes; I do not think I do. Other people are much more reluctant to do so, but their criticism is there none the less. I genuinely think that Ministers ought to reflect on this.
We are very disappointed with the failure of the Government to engage with the DPRRC on any of its findings and to recognise that the power in Clause 15(3) is very wide. This issue about categories or subject areas and that the regulations must be “similar”—whatever that means—is going to have to be looked at again. If we need to force the Government to do that through votes in this place, we would be very happy to work with noble Lords on all sides to work out the best way to do that.
The Minister said a couple of times that there would be no carve-outs but there is a carve-out for financial services and it looks like judges are getting one for their pensions. It is interesting to think about how the Government set priorities for themselves when these issues are being exempted but the environment and consumer protection are not. It is no wonder that noble Lords are a little reluctant to take all this on trust. Whatever the noble Lord, Lord Benyon, says—I am sure he is a Minister who says everything with the utmost sincerity—there is no default position for Defra of retention. That is not possible in this Bill. It is a real shame that a basic understanding of what is going on here seems to be being overlooked, perhaps wilfully, from time to time.
We are disappointed. We are going to come back to this issue. I urge Ministers to have some further thoughts and deliberations, and perhaps come back with something a bit more sensible on Report.
Amendment 112 withdrawn.
Amendments 113 to 116 not moved.
House adjourned at 10.22 pm.