Amendment 2 (to Amendment 1)

Retained EU Law (Revocation and Reform) Bill - Report (1st Day) – in the House of Lords at 3:19 pm on 15 May 2023.

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Lord Hope of Craighead:

Moved by Lord Hope of Craighead

2: At end, insert—“(1B) Subsection (1) will only take effect if—(a) the legislation listed in Schedule (Sunset of subordinate legislation and retained direct EU legislation) has been referred to a Joint Committee of both Houses, and(b) a period of at least 30 days has elapsed after that referral, not including any period during which Parliament is dissolved or prorogued or either House is adjourned for more than four days.(1C) If the Joint Committee, after considering any legislation included in this Schedule, finds that the revocation of any item of legislation represents a substantial change to current UK law, a Minister of the Crown must arrange for the revocation of such legislation to be debated on the floor of each House and voted on before the date in subsection (1).(1D) If the revocation of any legislation is not approved by both Houses before the date in subsection (1), it is retained.”Member's explanatory statementThis amendment to the amendment in the name of Lord Callanan provides for the Schedule of retained EU law which is to be revoked to be referred to a Joint Committee of both Houses for sifting so that, in the case of those which represent a significant change from the preceding retained EU law, Parliament will be enabled to differ from the Executive and express its own view as to their contents.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, I think it will start our debate if I speak to Amendment 2 at this stage. That amendment, of course, is in my name and the names of the noble Lords, Lord Hamilton of Epsom and Lord Hodgson of Astley Abbotts.

I do not need to take up time by speaking to Amendments 10, 11 and 12 in this group—which are also in my name, and to which the noble Lord, Lord Murphy of Torfaen, and the noble Baronesses, Lady Randerson and Lady Humphreys, have added their names. The issues raised in Amendments 10 and 12 are no longer live in view of the removal of the sunset provision from Clause 1 and the Government’s proposal that Clause 3 should be deleted. This is also the case regarding the need to postpone the sunset date in the case of legislation relevant to common frameworks, which Amendment 11 seeks to do—although others of your Lordships may have something to say about this. Amendment 4 relates to a provision which the Government are proposing to remove from the Bill, so I do not need to say anything about that either. That leaves me with Amendment 2, to which I do wish to speak.

I am sure that I am not alone in welcoming government Amendments 1, 5, 12 and 68. This really is a victory for common sense. It was obvious to many of us in this House, especially those in touch with the devolved Administrations, that the scheme laid down in the Bill was never going to work within the time given to it. I reject the suggestion that the reason this is now being acknowledged is because of a failure of effort by civil servants. The fact is that however hard to civil servants tried, there was a real problem about getting the job done across all parts of the United Kingdom. There was always going to be a risk that work under the pressure of time would give rise to errors. Any error in this field, such as the removal of regulations that require or authorise the spending of money, could have grave consequences that could be hard to reverse. Care is needed, and that takes time. The devolved Administrations are in a particular difficulty. Their post-devolution regulations are not and cannot be listed on the dashboard; their legislative timetables are not equipped for the task within the timescale. That is the reality.

The Secretary of State deserves to be commended for the steps she has taken, but there remains a very significant gap which my amendments in this group—and in groups 3 and 6—are designed to address. This is that there is no provision for parliamentary scrutiny in the proper sense of those words. It is the greatest of ironies that taking back control over our laws—which is what Brexit was all about—has resulted in handing back this control to Ministers and civil servants, and not to Parliament. The parliamentary scrutiny over what they are doing is not there, other than in the most superficial way, as our power over delegated legislation is so limited. This has been described as an unprecedented transfer from Parliament to the Executive.

I think that all of us who were present at Second Reading can recall how strongly my noble and learned friend Lord Judge—whose absence I regret—felt about this subject. I am sure he would not object to my reminding your Lordships of what he said. It was short and to the point; it directed attention to what he thought was really happening. With his tongue firmly in his cheek, he said that he had received a letter by special messenger called “Restoring Parliamentary control”. It went over the key provisions of this Bill, one by one, and ended with this assertion:

“By agreeing to all these separate surrenders, Parliament will have taken back control. We trust you agree”.—[Official Report, 6/2/23; col. 1001.]

My Amendment 2 is based on amendments that were put down for Committee by my noble and learned friend Lord Judge, and my noble friend Lord Lisvane, who I am glad to see in his place. They provide for the referral of the list in the schedule to a Joint Committee of both Houses. In the event that the committee finds that the revocation of any item of legislation represents a substantial change of the law, it provides for that revocation to be debated on the Floor of each House and voted on.

Photo of Viscount Hailsham Viscount Hailsham Conservative

The trigger point in the amendment is quite a narrow one: “substantial change”. Has the noble and learned Lord contemplated enlarging the power of the committee to require it to be put to the House if there was other substantial reason?

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, “substantial change” probably accommodates what the noble Lord was thinking about. I am following a formula which the noble Lord, Lord Lisvane, thought was appropriate, bearing in mind that there are limits to the extent to which this House can lay down procedures for the other place.

Anyway, the point of the amendment is to give what we require, which is that Parliament should control what is in the list, no more and no less. A quick reading of the schedule suggests that many of the items listed in it are things we can well do without. But my point is that it is for Parliament in the proper way to take that decision.

I should give notice that, when the time comes for me to move this amendment, I will seek to test the opinion of the House.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 3:30, 15 May 2023

My Lords, I will speak to my Amendment 8. Before I do so, and in the interest of brevity, I entirely associate myself with the words of the noble and learned Lord, Lord Hope, because he encapsulated many of the ongoing concerns of the amendments in this group.

To a large extent Amendment 8 is redundant now that I support the amendments to delete Clause 2 that are consequential on the government amendments—I take the opportunity to congratulate my noble friend Lord Callanan and indeed the Secretary of State on having the good sense to table the amendments which the Government are moving in this group.

On government Amendment 1 and the others my noble friend referred to, can he say on what basis the secondary legislation and retained direct EU legislation contained in Schedule 1 have been chosen and what consultation the Government have undertaken to determine the contents of that list?

Briefly on my Amendment 8, I am grateful to the Law Society of Scotland for helping me draft the amendment and for the briefing I received from it in that regard. What the amendment has identified remains an issue with one category of legislation that is not covered by other amendments in the group. The purpose of Amendment 8 was to ensure that any retained EU law which is not identified as such until after the sunset date is excepted from the sunset provisions in Clause 1. The review of REUL was announced by my noble friend Lord Frost, looking at the UK Government retained EU law dashboard from Tableau Public, as referred to at paragraph 13 of the Explanatory Notes, which states that the Government are now

“in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens”.

I support entirely the opportunity given to us today to do that.

However, the Bill intends to go further to facilitate the review and provides that it should be carried out by the end of 2023. Given that we now know there are almost 5,000 pieces of retained EU law, as identified in the EU law dashboard, the Government must confirm whether the most recent Explanatory Note is correct or whether they expect the number to rise again.

I refer to the briefing I received from the FSA—the Food Standards Agency—which itemised in an extremely helpful tableau the reasons why it supports those pieces of legislation included in Schedule 1. However, the FSA says:

“We have had long-standing ambitions to reform the food and feed regulatory system and we welcome the opportunity to focus our attention on this. We recognise that meaningful reform must include consultation with the food industry, consumers and stakeholders, and I look forward to working with you”.

So the question I put to my noble friend is: have the Government allowed sufficient time to ensure that the consultation that the Food Standards Agency wishes to conduct will be permitted to take place by the time Royal Assent is achieved?

My final question to the Minister is: if such a category comes to light within the three categories that have been identified as forming the retained EU law that forms the subject of the Bill after the Bill leaves this place and obtains Royal Assent, what opportunities are there to revisit that to ensure that that category is included the sunset clause, or can we assume that it will continue in existence in its current form, as currently on the statute book?

Photo of Lord Lisvane Lord Lisvane Chair, AI in Weapon Systems Committee, Chair, AI in Weapon Systems Committee

My Lords, I thank the noble and learned Lord, Lord Hope, for his kind reference to what I said in Committee and subsequently. In order to set the mind of the noble Viscount at rest, I suggest that the wording relating to the Joint Committee in Amendment 2 is entirely correct.

It is a very bad idea to try to regulate parliamentary proceedings by means of statute, and it very often ends in tears or worse. In this case, should Amendment 2 survive into the final version of the Bill presented for assent, it will be for the Houses to set up a Joint Committee. That Joint Committee, following the ancient practice that the interpretation of the orders of reference of the committee is a matter for that committee, will take a view on what constitutes “substantial”, so there will be a certain amount of flexibility available at that point. It will also not be justiciable, because the operation of Article 9 of the Bill of Rights would prevent a court second-guessing what the committee decided.

Photo of Viscount Hailsham Viscount Hailsham Conservative

I thank the noble Lord for giving way, and I hate to cross swords with him on this matter, but the trigger point of “substantial change” is quite narrow. My noble friend Lady McIntosh spoke about lack of consultation, or inadequate consultation. That might surely be a reason for using the trigger power.

Photo of Lord Lisvane Lord Lisvane Chair, AI in Weapon Systems Committee, Chair, AI in Weapon Systems Committee

I absolutely agree and, as the noble Viscount has made clear, a number of things could be interpreted as of sufficient gravity to trigger, we hope, the powers in the Bill, then the Act, and it would be for the Joint Committee to decide—as a number of committees of your Lordships’ House already decide—that the lack of consultation is a serious flaw in the bringing forward of proposals for, for example, delegated legislation. So I hope I have set the noble Viscount’s mind at rest, but I am happy to talk to him outside the Chamber if further reassurance is required.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Non-affiliated

My Lords, I ask noble Lords who support Amendment 2 how it is that they now wish to involve Parliament and our democracy in getting rid of these laws when they were perfectly happy to see them imposed in a wholly anti-democratic process. I describe it as such because all the laws which the Government now wisely wish to cancel were proposed in secret in the European Commission. Their national interest was then negotiated in secret in the Committee of Permanent Representatives, after which they were signed off in the European Council and Parliament, which could not change them. Our Select Committees could indeed scrutinise a tiny sample of them, or even recommend them for debate in the Commons or Lords, but, once those debates, which could not change them, had taken place, they became our law. So why do the proposers and friends of Amendment 2 now wish to subject the process of their abolition to our democratic processes? And, talking of which, what do they say about the fact that the Bill has already been through the Commons?

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I want to make a single point. In his opening remarks, the Minister referred to the affirmative procedure as though it is a perfectly satisfactory way of dealing with these very substantial ministerial powers to deal with retained European law. As a former member of the Delegated Powers Committee, I want to say that that is absolutely not the case. Under the affirmative procedure, Parliament has no power to amend any proposals coming from Ministers. It is therefore absolutely essential that this House approves Amendment 2 in the names of the noble and learned Lord, Lord Hope, and others. I very much hope that it does so.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Non-affiliated

My Lords, I am sure that the House will approve Amendment 2. I am not sure that the noble Baroness grasped the point I was trying to make, so, if I may, I will finish it.

I accept that the Government were in danger of biting off more than they could chew with their original proposals but those now seem eminently achievable, especially if our civil self-servants rise to the occasion in identifying the EU laws that we might want to retain—very few, I submit, so the effort should not exhaust them too much. But perhaps the Daily Telegraph was right in its headline on 10 May, which read:

Whitehall ‘blob’ thwarts bonfire of Brexit laws”.

I support the whole Government wholeheartedly in their endeavours.

Photo of Baroness Altmann Baroness Altmann Conservative

May I clarify something? In his initial remarks, the noble Lord suggested that the problems he believes this Bill is designed to address stem from the fact that laws were imposed on this country. Whether or not one agrees with that statement, his proposal is that laws were imposed on this country without parliamentary scrutiny, and therefore without democratic accountability. If one accepts that that is the case, how is it then right to perpetuate that wrong by trying to get rid of those laws through a process that is itself without parliamentary scrutiny? The amendments are trying to impose parliamentary scrutiny; indeed, one of the reasons for our departure from the EU was to take back control to our Parliament, which is what these amendments seek to do.

Photo of Baroness Andrews Baroness Andrews Chair, Common Frameworks Scrutiny Committee, Chair, Common Frameworks Scrutiny Committee

My Lords, in following on from what the noble Lord, Lord Pearson, said, let me say that we had that debate at Second Reading; it was exhaustive and the noble Lord’s argument was, I think, properly demolished.

I welcome the Government’s amendment. The Minister will know that I have been a fairly regular critic of the Government. I am afraid that I have to quote back to him now a letter that he kindly wrote on 5 April to the Common Frameworks Scrutiny Committee—I declare my interest as chair of that committee—because it will illustrate the scale and speed at which the Government have moved here. We had asked a raft of detailed questions and sought further clarity. This is what the Minister said,

“the sunset clause is the backbone of the Bill. It lays the groundwork for an ambitious and efficient overhaul of all REUL. The sunset date is the quickest and most effective way to end REUL as a legal category and will incentivise genuine … reform in a way that works best for the whole of the UK”.

That really does illustrate how far the Government have moved on this. The Bill has lost its backbone—but we must remember that it was described as “hyper-skeletal” by one of our scrutiny committees, so there was not much backbone to be lost.

I think we all welcome the fact that, if the Government have had the courage and common sense to renege on this issue, it will not be much of a loss. Most importantly, they have removed the critical risk that we reiterated time and again throughout Committee. They have not removed all the risk, not by any means—we need much more clarity on the processes going forward and on the use to which ministerial powers may be put, which will come in later amendments—but the risk of chaotic, accidental, fatal mistakes being made and not being able to be recovered has been removed.

Regulations designed to protect people from harm and protect their rights were threatened with going over a cliff edge. I pick up the point of the noble and learned Lord, Lord Hope, that among those that might be lost is the web of interrelated regulations that enable common frameworks to function across the whole of the UK, balancing our need for harmony across the union with the necessity of divergence.

One of the good outcomes of the Bill is that those of us who laboured for three years in the vineyard of common frameworks, which were very far apart in the landscape, will finally have our moment in the sun when it is recognised how important they are for the future and health of the union. That has come about through the Bill with the hundreds of regulations that underpin the common frameworks.

I have some questions on this point—

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 3:45, 15 May 2023

My Lords, I have one clarification for the noble Baroness. The point was made that this is not a Second Reading, but it has also been recognised that the amendments to the original Bill are substantial. The difficulty I have is how we hold this Bill to account when it is different from the Bill that we were holding to account. In many ways, it has been gutted, and we have had four days to assess it. I am not suggesting lots of Second Reading speeches; I simply wanted to reflect, as the noble Baroness already has, that this is a big change to the Bill. How do we deal with that in this discussion?

Photo of The Earl of Courtown The Earl of Courtown Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

I apologise for interrupting the noble Baroness, but I remind the whole House that, as we are on Report, there cannot be any interruptions apart from material descriptions of various features.

Photo of Baroness Andrews Baroness Andrews Chair, Common Frameworks Scrutiny Committee, Chair, Common Frameworks Scrutiny Committee

I am grateful to the noble Lord. It is a measure of the speed with which the Bill has gone through every stage that these questions should be raised in the first place, but I leave it to the Government to reply.

I also wish to pick up the point made by the noble Lord, Lord Pearson, about whose fault it is that this process has been so slow. I was appalled by the comments of a previous leader of the House of Commons; I thought he traduced civil servants who cannot answer for themselves. In our committee, we have seen these officials working day and night, against the clock, to make some sense of a process which has simply not been sensible. To suggest that they have somehow been subversive, deliberately slow or incompetent is a real slur on the professionalism of officials and of the Civil Service. I hope that every Member of this House agrees with that.

My question to the Minister is this. I am grateful for what has been achieved, but I look at that list of 600 and am reminded of the 600 people going into the valley of death, bravely being sacrificed. There are some in this list that refer to common frameworks—for example, safety of food and emissions. There is no apparent reason why they are in there and I do not know how many there are. On behalf of our committee, I would like a list which tells us—

Photo of Baroness Andrews Baroness Andrews Chair, Common Frameworks Scrutiny Committee, Chair, Common Frameworks Scrutiny Committee

I am out of date already. That is excellent; I am very grateful and withdraw my question. I am delighted the Government have been so responsive.

My final point is on parliamentary control. I will certainly be supporting the amendment in the name of the noble and learned Lord, Lord Hope. It identifies two key risks. The Government have agreed in principle to a sifting mechanism, and it makes no sense for this batch of amendments to be left out of that sifting mechanism for the very reasons which the noble and learned Lord put and which I am now putting to the House: there are still elements of this list which require explanation, transparency and understanding. I would like the opportunity to see that process in place, as it affects these first regulations. This is a modest proposal and it is perfectly reasonable that the Government should do that.

There is also the much larger and more powerful question of parliamentary control. We have had very dramatic language from the two scrutiny committees of the House and we debated this at length in Committee. The case has been partially conceded, but by no means wholly. It once again reveals the limitations we face with secondary legislation and the way that primary legislation has been stripped out. It is essential that this batch goes before the sifting committee, in good faith, so that we can test the process and see whether it works and is fit for purpose for the more complex ones that will come later. I agree with the amendment.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

My Lords, I shall speak to the amendments to which I have added my name, Amendments 2 and 4. Like my noble friend the Minister, we campaigned to leave the EU and we found that people decided to leave for a number of different reasons. One of those reasons was the resentment people felt that laws were being passed in Europe and delivered to us here, and we had no say on them whatever. I very much echo the words of my noble friend Lady Altmann.

We scrutinised this legislation. I was on an EU scrutiny committee and we wrote a number of reports, some of which were somewhat hostile about the legislation going through, and of course, they made absolutely no difference whatever. Therefore, if we had said to the people on the doorstep who were concerned that they had no say on much of the legislation coming on to our statute book, and over which Parliament had no say, “Well, we have a great plan: we are going to bypass Parliament almost completely”—

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

I greatly enjoyed serving jointly with the noble Lord on the EU Select Committee. I point out that I was woken up three times on a Sunday evening by Delors asking me what the House of Lords European Union Select Committee had meant by a particular report on a particular piece of legislation. These reports were not a waste of time.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

I slightly wonder what effect they had on the statute book. The legislation went through, nothing was amended, nothing was voted down—it could not be, under the EU accession treaty—so, if you do not achieve any change in the legislation, I am not sure you can claim any great credit for having done anything to it. So I do not really accept that. This is one of the problems, and people did find it very frustrating that they had no say over what EU legislation went through.

We have passed over the making of our legislation from an unelected Commission in the EU to the Executive. Who are the Executive? The Executive are made up of Ministers, and civil servants who, in my view, will have much more influence over what happens to this legislation than Ministers will. The Civil Service used to be regarded as a Rolls-Royce. I am not absolutely sure that definition would apply today; it looks rather like an old banger in need of a serious MOT. Let us face it, the Civil Service has not done well in trying to locate retained EU law. It was given endless opportunities to dig this stuff out, and what happened? Virtually nothing, until panic set in when this Bill was being debated.

It is the job of departments to know what legislation they have. This applies not only to EU law but to all law, and one has been given the impression over the past few months that they have absolutely no idea whatever what is on the statute book. Are these the right people to whom to pass all responsibility for EU law, without Parliament having any say? The answer is of course no. Parliament has to regain control of the legislative process. We have to make sure that Parliament decides what happens to this legislation, and that is why I am supporting Amendments 2 and 4 and subsequent amendments. I hope your Lordships will follow me through the Division Lobby.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, it is a pleasure to follow the noble Lord, Lord Hamilton, in what he said. My only passing thought is to award my noble friend, for his intervention, the “name-dropping of the week” prize.

I am not enthusiastic about disagreeing with the Minister, the noble Lord, Lord Callanan, because I know from listening to him many times that he is a great supporter of the rights of your Lordships’ House to amend legislation, scrutinise what is before us and ensure that its powers are not somehow elided with those of the other place. However, this did bring me back to something that happened earlier in my life. For a period, I had one of those unusual characters, a senior clerk of great wisdom, in my barristers’ chambers. When I was a Member of the other place, he used to say to me as I left chambers, “You’re off to do your bit for democracy, are you?” That was a sort of pessimistic adieu as I left the office. When I became a Member of your Lordships’ House, he used to issue me with the optimistic adieu, “So you’re off to save democracy, are you?” That seems very apposite in relation to this debate. Indeed, what that great senior clerk, now sadly deceased, used to say to me really gives the answer to the extraordinary statement of the noble Lord, Lord Pearson, which we heard expressed by others in another debate just last week: that if the House of Commons decides to pass something, we should just roll over and take it as we lie in that supine position. That, of course, is not what we do in your Lordships’ House.

I ask the noble Lord, Lord Callanan, what is to be lost by accepting Amendment 2? Even if it is a bit of an ad maiorem argument, what particular attention has he paid to the fact that my very distinguished noble and learned friends Lord Hope, who has moved Amendment 2 today, and Lord Judge—who unfortunately is unwell; otherwise, he would have been in a similar position today—have been the great movers behind this attempt to introduce an element of parliamentary scrutiny that has been drafted with great critical faculty, as opposed to requiring us to look at a long list and treat it as though it had some special wisdom in itself? For those reasons, if my noble and learned friend asks for the opinion of this House on Amendment 2, I—and I am sure many others who take a perhaps legalistic, but proportionately legalistic, viewpoint—will support him in the Lobby.

Photo of Baroness Bakewell of Hardington Mandeville Baroness Bakewell of Hardington Mandeville Liberal Democrat Lords Spokesperson (Environment, Food and Rural Affairs)

My Lords, I will speak briefly to Amendment 14 in my name, to which the noble Baronesses, Lady Hayman of Ullock and Lady Altmann, and the noble Duke, the Duke of Wellington, have added their names.

I broadly welcome the government amendments tabled on 10 May but continue to be concerned about the ongoing lack of parliamentary scrutiny. While it is welcome that the Bathing Water Regulations 2013 and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 are not listed in the Government’s extensive list of statutory instruments to be deleted this year, this does not indicate whether at some future point these two SIs will not be brought forward for deletion without any parliamentary scrutiny.

Several Members of your Lordships’ House have spoken passionately and repeatedly about the need to improve water quality across all areas, especially, as we approach the warmer weather, through the Bathing Water Regulations. The noble Duke, the Duke of Wellington, has raised the issue of British surfers being forced to leave the country to pursue their sport in Spain due to the appalling level of pollution in and around our coastal waters caused by sewage overflows. While this subject is extremely important, I do not intend to expand the debate, given that both your Lordships and the Minister have heard all the arguments and evidence on previous occasions. That evidence has not changed. However, I am looking for a firm assurance from the Minister that both these statutory instruments will be retained on the statute book. This will ensure that our children and others can feel a degree of confidence when they swim in our coastal waters and inland lakes that they will not be damaged by an unpleasant environment and that their health will be preserved. I look forward to a positive response, and hope that I and others can be satisfied that the Government support the view of those for whom this is a vital issue.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I have a very brief observation about Amendment 2, which I support and seems to have this other great advantage. Statutory instruments are largely drawn by officials and are not subject to great scrutiny by Ministers. That is my experience. Indeed, if noble Lords look at the schedule they will see a large number of statutory instruments. I very much doubt that Ministers have crawled over them in detail. If the trigger is exercised in accordance with the provisions of Amendment 2, Ministers will have to become engaged. It is much more likely at that point that you would get a proper response to the concerns expressed by the committee. That is an additional advantage that I would pray in aid.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 4:00, 15 May 2023

My Lords, in case anyone is thinking of voting against Amendment 2—even the Minister—it is worth remembering that Jacob Rees-Mogg said today that this Government gerrymandered the ID vote because they want to corrupt the voting system here in Britain. They wanted a government advantage from the voter ID and they found that they did not have it. We cannot trust this Government on any level on any issue, so Amendment 2 is vital.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

My Lords, I put my name to this amendment from the noble and learned Lord, Lord Hope. I will address the question—or possibly accusation—from the noble Lord, Lord Pearson, head-on: I voted for Brexit, because I support policies designed to give the UK more freedom to operate in the world without the inhibitions that came with our membership of the European Union.

One of the reasons for my voting for Brexit was that I wanted to make some attempt to reduce what I saw as the marginalisation of the UK Parliament—that it was, under the system then prevailing, more or less reduced to a cipher, as my noble friend Lord Hamilton pointed out. My noble friend the Minister has made some significant changes. I, like other Members of the House, thank him for that. A lot has happened in the last few days and it might be that I have not understood fully what he is proposing and its implications, but as I read it at present it does not seem significantly to enhance Parliament’s power.

I have one more reason why the House needs to be extremely careful about this matter. We are entering a brave new world in which, for better or for worse, we have greater control over our legislative process. This Bill could create a dangerous precedent as to how, in this brave new world, the Executive feel able to treat the legislature—the two Houses of Parliament.

For the rest of my remarks, I will briefly probe a little deeper the thinking behind the Government’s approach and the level of parliamentary scrutiny of and involvement in the Bill. One of my last tasks before I handed over the chairmanship of the Secondary Legislation Scrutiny Committee to my noble friend Lord Hunt of Wirral at the end of January was to sign off the committee’s report on this Bill, which the House may recall was entitled Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. The Government are required to provide a response to the recommendations made in reports from your Lordships’ House, and they have done so. I am extremely grateful to my noble friend and his officials for the extensive and detailed 10-page reply. However, it is dated 10 May—last Wednesday—so again, if I have not been able to absorb the full implications of what he is saying, I stand ready to be corrected when he comes to reply.

There are two specific points that I would like to draw to the House’s attention. The first is in paragraph 31 of our report and touches on the point made by the noble Baroness, Lady Andrews. We lay out a reason as to why, even if

“a definitive list of the relevant law were eventually compiled in time”,

the House would be insufficiently informed unless something was said about the “individual piece” of legislation; to produce a list is not the same.

The Government’s response was:

The Schedule approach means that a definitive list of REUL to be sunset has, in fact, been compiled. This Schedule is subject to parliamentary debate and approval”.

My concern is that the House approving the schedule—the long list of 600 or so SIs—is affording only the most tangential level of parliamentary involvement and approval. Do I assume that in giving my approval to the schedule I am automatically endorsing every one of the constituent SIs, or do the Government intend to bring forward an explanatory note on the reason for including each individual regulation on the schedule, many of which I agree are probably quite trivial, to be considered by both Houses? Without this, Parliament has no real understanding of what it is approving, and it is this uncertainty that makes the amendment moved by the noble and learned Lord, Lord Hope, so important.

My second and final point relates to the recommendation made in paragraph 33. Our report said:

“It is generally acknowledged that the scrutiny of secondary legislation falls very far short of the scrutiny afforded primary legislation. Downgrading the status of direct principal retained EU legislation so that it can be amended by ‘ordinary powers to amend secondary legislation’ … means therefore a corresponding downgrading of effective parliamentary scrutiny. Suggesting that this will have the advantage of saving parliamentary time does not make the Government’s justification for this change any more persuasive. It is a matter for Parliament to decide how it should use its time”.

The Government’s response is:

“The Government disagrees that the scrutiny of secondary legislation falls short of the scrutiny of primary legislation. The scrutiny procedures for secondary legislation are long standing and are endorsed by Parliament during the passage of legislation”.

I find this continuing government assertion that the scrutiny of secondary legislation is equivalent to that of primary legislation astonishing—jaw-dropping, to be frank. My noble friend’s letter says that the scrutiny procedures for secondary legislation are long-standing, and he is right, but those long-standing procedures were designed for an earlier age when Governments used secondary legislation for what it says on the tin: to deal with issues of secondary importance and avoid gumming up the legislative machine. But successive Governments have used secondary legislation to pass into law—law that applies to every one of us—decisions too important to be left to secondary procedures with their “take it or leave it” unamendable approach. As I have said before, if the Government want to take a little they have to give a little, and so far the Government appear unable or unwilling to do this.

My concluding remarks are these: Parliament will stop this continuing shift in the balance of power towards the Executive and away from the legislature only by constantly explaining how fundamental to the health of our system of government it is, no matter how difficult, embarrassing or controversial it may be to do so. That is why it is essential that the House supports the amendment moved by the noble and learned Lord, Lord Hope.

Photo of Baroness Lawlor Baroness Lawlor Conservative

My Lords, I thank my noble friend the Minister for explaining so fully his amendment to the Bill. I am slightly saddened on two counts. First, I wish the list he provided in the schedule was a little more ambitious and extensive in the number of regulations and rules included. Secondly, I am saddened by the response of some Members of your Lordships’ House.

I particularly oppose Amendment 2. The idea that there is an initial committee is hardly more than camouflage, because the committee is charged with putting any but the most negligible changes to both Houses.

The subsequent requirement in the amendment that a majority of both Houses has to approve the removal gives, in effect, the power of veto to an unelected Chamber, in a way that goes contrary to the constitutional arrangements of a democratic country whose voters explicitly chose withdrawal from the EU and its laws, at the referendum and again in 2019. They voted overwhelmingly for a government pledge to carry out that mandate. The Executive have a mandate—a direct mandate—from the electorate to end EU law. That mandate must be respected, and must be respected by this House.

A much more extensive arrangement was put to the House of Commons, which passed at Second Reading by over 60 votes. I am very concerned that this House will, yet again, obstruct the will of the people, expressed in 2016—

Noble Lords:


Photo of Baroness Lawlor Baroness Lawlor Conservative

I am sorry, my Lords, but it was clearly expressed, and it was expressed again in 2019. A mandate was given to the Executive to remove EU laws; it was not given to this Chamber to hold it up.

Photo of Lord Hendy Lord Hendy Labour

My Lords, I doubt very much whether the will of the people was to remove the rights of working people. I doubt very much whether those who voted for Brexit voted to remove the rights and entitlements that they had inherited from EU law.

I too support the amendment in the name of the noble and learned Lord, Lord Hope. Last Wednesday, 10 May, to which the noble Lord, Lord Hodgson of Astley Abbotts, referred a moment ago, was a busy day for the Government. On that day, in the other place, the Secretary of State for Business and Trade made a Written Statement about this Bill, pointing out that amendments would be tabled to it. At the end of the Statement, she said:

“As part of this drive for deregulation, today I can announce that we will make improvements to employment law which could help save businesses around £1 billion a year, while safeguarding the rights of workers”.—[Official Report, Commons, 10/5/23; col. 16WS.]

And she gave some indication of what those changes might be.

On that same day, the Department for Business and Trade also published a booklet called Smarter Regulation to Grow the Economy. From the last couple of pages of that we learn what is in the Government’s mind: first, the requirement under the working time regulations to keep records of hours worked is to be removed. How businesses and their workers will be able to ensure compliance with the remainder of the regulations was not explained. Secondly, eight days of UK holiday are to be added to the 20 days of EU holiday for workers; but, it appears, this may result in economic loss, as the days allowed by the EU are paid on a different, higher basis than the UK days. Thirdly, rolled up-holiday pay—a technicality of employment law—is to be permitted, but the effect is to remove what was introduced as a protection for workers. Fourthly, the obligation to consult over redundancies is to be removed for small businesses.

Those changes are not very great, although they may be significant for some. In the vast number of amendments to this Bill that have been tabled—in particular, the 600 pieces of EU-derived legislation identified by the Government for removal or partial removal—I have looked at where those weakened employment rights are to be found. They are not there. The reason they are not there is that they will be introduced by statutory instrument after the Bill has become law.

We in Parliament need the chance to scrutinise what will otherwise be a constant stream of statutory instruments removing and weakening workers’ employment rights and health and safety at work rights. That is why I support the important amendment from the noble and learned Lord, Lord Hope.

Photo of Baroness Noakes Baroness Noakes Conservative 4:15, 15 May 2023

My Lords, as a committed Brexiteer I was a strong supporter of this Bill, and it will not surprise noble Lords that my initial reaction to last week’s announcement of the amendments that my noble friend has so ably just introduced was a big disappointment. It would have been a marvellous achievement had we achieved by the end of this year an understanding of what to do with retained EU law—in terms of retaining it, modifying it or repealing it—but in my heart of hearts I never actually thought we would get to that position, so I completely accept on pragmatic grounds that what my noble friend has brought forward today is the right thing to do, and I fully support that.

I completely understand what lies behind the sentiments expressed by the noble and learned Lord, Lord Hope, in his amendment, supported by other noble Lords who have spoken, but I think that noble Lords have missed the big picture here. There were problems with the existing Bill, such as not knowing exactly which bits of retained EU law were going to be included, because that number seemed to have a shape-shifting quality and it was very unsatisfactory for parliamentarians to legislate with a lack of certainty. It was also troubling that large swathes of law could have just disappeared from the statute book without any parliamentary intervention whatever. In addition, there was the possibility of a tsunami of statutory instruments modifying EU law by the end of the year, which would have put our procedures under great strain, whatever sifting or other mechanisms were put in place to ameliorate it. So the Government have made significant changes with the amendments that my noble friend has brought forward today. If the noble Lords put it in that context, they will see that the Government have been very responsive to the issues that have been raised by noble Lords during the passage of the Bill, and I hope they will not let the best be the enemy of the good with the amendments that they have tabled.

With the absence of the sunsetting, we have another problem: how do we know that we are ever going to finish the task of examining, and deciding what to do with, retained EU law? We have 600 laws in the new schedule, but we know nothing about what is going to happen to the other pieces of retained EU law. That is why I have tabled an amendment, which we will not reach until Wednesday, asking for some form of reporting by the Government so that at least we keep under scrutiny the nature of that process. I hope that between now and our next Report day—

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, there are references—for example, in Clause 16—to a sunsetting date, so there are parts of the Bill that retain sunsetting and it has not entirely been departed from. I see the value of sunsetting and I am in favour of reforming our rules book, but it would be a mistake to think that we were taking the brake off completely; that is not the way the Bill is constructed.

Photo of Baroness Noakes Baroness Noakes Conservative

With the greatest respect to the noble and learned Lord, I think the main substance of sunsetting has been removed by the amendments put forward by my noble friend because we do not reach a cliff edge at the end of this year, or such a later date as might have been put in place, for the whole of retained EU law to disappear if it had not been dealt with. That is the issue that I was referring to.

Perhaps I could just complete what I was saying. I hope that between now and our next day on Report we can have some constructive dialogue with my noble friend the Minister about how we can have some kind of process, information sources, or whatever, to ensure that what we have lost with these amendments—which is ensuring that we deal with the whole of retained EU law—can be salvaged.

Photo of Viscount Stansgate Viscount Stansgate Labour

My Lords, it is not my intention to detain the House for long, because I think the House wants to move to a decision, but I will make one point about what might be described as the big picture. Today’s debate takes its place in the long history of debates about Europe and will be interesting to read afterwards. However, about a couple of weeks ago—I forget exactly how long ago it was—we had a short debate in this Chamber on the state of parliamentary democracy. The noble Baroness, Lady Neville-Rolfe, replied to it as the Minister. We did not have enough time, but it was a useful debate to have. I suggest to the House only that the sense expressed during that debate, that over a long period Parliament has lost power to the Executive and that what we need is to reclaim power for Parliament over the Executive, is best encapsulated by Amendment 2 in the name of the noble and learned Lord, Lord Hope. I very much hope that the House passes it.

Photo of Baroness Jolly Baroness Jolly Liberal Democrat

My Lords, I will speak briefly in support of Amendment 16, tabled in my name alongside those of the noble Baroness, Lady Finlay of Llandaff. and the noble Lords, Lord Clarke of Nottingham and Lord Collins of Highbury. I declare an interest as president of the Royal Society for the Prevention of Accidents, RoSPA. I am sure I speak on behalf of many Peers from across the House in expressing relief at the U-turn. It is testament to the House, as well as to organisations such as RoSPA, that swathes of life-saving health and safety legislation are saved from the REUL bonfire.

Health and safety impacts every area of our lives and it is not limited to certain sectors. I hope the debate around the specifics of the Bill has shone a light on the need for a holistic approach when addressing these issues. The House will have heard me say before that the UK is a global beacon for safety. Thanks to the Minister’s amendment, I am hugely reassured and say that this continues to be the case.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, very briefly, I too added my name to Amendment 16, so well introduced by the noble Baroness, Lady Jolly. I simply remind the House that, when we remove legislation and regulations, it can have unintended consequences. There is evidence that accidents happen. For example, if we abandon working time directives and regulations, when people are overtired their accidents can be fatal—and there have been fatal accidents. Let us not lose sight of the clear evidence of harms when regulations are no longer in place, because lost lives cannot be reclaimed or replaced. The amendment proposed by the noble and learned Lord, Lord Hope, provides a check mechanism for Parliament to look at regulations and allow scrutiny before things are abandoned. Therefore, although I do not anticipate Amendment 16 being pressed to a vote, I strongly support Amendment 2.

Photo of Lord Jackson of Peterborough Lord Jackson of Peterborough Conservative

My Lords, I will speak—briefly, I hope—to the Government’s Amendment 1. I direct your Lordships back to the comments of the noble Baroness, Lady Fox, who is absolutely right: this Bill, in its current position on the Order Paper, is substantially different from the Bill that was considered by the House of Commons and at Second Reading by this House. If we are to properly scrutinise and analyse the Bill, and have proper oversight of it, we have to be cognisant of that fact.

Notwithstanding the comments of my noble friend the Deputy Chief Whip, where else are we going to acknowledge the very substantial and significant change that has come as a result of the Government’s announcement last week? It is a reasonable point to make. If this were any other Bill—any other potentially epoch-making primary legislation—your Lordships would be up in arms about the fact that we are rushing through on Report the Government’s amendment to Clause 1, which effectively rips up the Government’s policy on the Bill.

I defer to no one in my admiration for my noble friend Lord Callanan, the Minister. I worked with him in DExEU in the run-up to Article 50 and the TCA. He is one of the most gifted Minsters. He has obviously had a very difficult time in your Lordships’ House, putting a viewpoint that has not always been universally popular.

However, the wider context is very important, as put forward by my noble friend Lady Noakes. The Prime Minister did say that in his first 100 days as PM we would review or repeal post-Brexit EU laws. Indeed, that bastion of blue in tooth and claw Conservatism, the Independent newspaper, described the government retreat as a course of action that

“turns the logic of the bill on its head”.

I do not underestimate the task that we as a Government—or this House and the Government—gave to civil servants. In fact, the agency Thomson Reuters estimated in 2017 that 52,741 laws were introduced in the UK as a result of EU legislation between 1990 and 2017. Many of them of course were worthwhile and much needed, but many were about protecting boondoggle schemes, market distortions, oligopolistic behaviour and were designed to ossify market dominance, restrict the need for innovation and lock out more agile and dynamic competitors.

Notwithstanding that, I welcome the Government’s sincere endeavours to both review the regulations and to deregulate more broadly. But we have seen that 52,000 shrink to 600. Most EU laws will remain on the statute book, seven and a half years after in the EU referendum we decided to take back control and trust our own elected politicians rather than a foreign legal entity—in this case the European Court of Justice.

Ministers pray in aid the capacity and capability—or not—of civil servants to scrutinise, prioritise and audit so much of our retained corpus of EU law. But I saw, in my role as a special adviser in the run-up to the TCA and the Article 50 process, that with firm and principled political direction and drive, so much more could have been achieved with vision rather than capitulation.

In fairness, it is not solely the responsibility of this Administration. I concede in all fairness—it would be churlish not to—that the previous Johnson Administration could and should have legislated for a Bill in 2021 rather than last autumn. The Government have resiled from a well-understood political commitment, which voters supported with a strong mandate, and which passed, as my noble friend Lady Lawlor said, in January in the Commons.

No one ever voted for these proposals. The Government have picked a side: big business, senior civil servants, special interests, well-remunerated lobbyists and the ex-Mandarin cohorts ably represented in this House. Leave was the biggest vote in British electoral history, but that counts for nothing as opposed to the pearl-clutching vapours of big business, self-interest and shareholder value dressed up as defending parliamentary sovereignty and concern for “significant uncertainty”. Whither the vision of self-government, independence, democratic renewal and sovereignty of June 2016? Instead, we have the cold pragmatism and cynicism of a technocratic elite.

This has not been handled well by the Government. I refer in particular to the lack of proper scrutiny by the European Scrutiny Committee in the other place, and the failure of the Minister to properly attend to those issues.

I will finish by making reference to Schedule 1. We are offered the mere scraps from the table with the new schedule. It is not so much a bonfire of regulations but a damp, fizzing Catherine wheel. There is no fundamental interest in that schedule in the governance of our country.

The people rejected consensus in 2016 and demanded change, but what we get is the removal of: regulations on levies on cereal, wheat, rye flour, groats and meal; the regulation on the importation of the Atlantic bigeye tuna from Equatorial Guinea; special measures regarding tuna loins in Kenya; a regulation on anchovy fishing in the Bay of Biscay; and—this might have caught our Lord and saviour Jesus Christ in his capacity as a fisherman in the Sea of Galilee—a directive recognising the Hashemite Kingdom of Jordan with regard to systems for training and certification of seafarers. I know that the EU was very interested in regulatory overreach.

It is with regret and huge disappointment that, notwithstanding all those things, I will support the Government on this. But I think that voters feel aggrieved and disillusioned—

Noble Lords:


Photo of Lord Jackson of Peterborough Lord Jackson of Peterborough Conservative

I will have my say; plenty of people have had a say on the other side.

The disillusionment of people who supported Brexit in good faith is bad for democracy. People are beginning to ask, “Does democracy work?”

Photo of Lord Hacking Lord Hacking Labour

My Lords, I will move the House away from the Bay of Biscay and back to this Bill. I tabled Amendment 7, that Clause 1 should not be retained, but I will not move it in view of the radical changes that the Government have brought to the Bill. I therefore easily support the noble and learned Lord, Lord Hope, on his Amendment 2. However, I do so with a substantial caveat: that whatever decisions are made by way of advice from the Joint Committee. We must remember that the Joint Committee’s central role is to decide whether the item of legislation before it will bring about a substantial change to current UK law, although the Joint Committee will also bring other considerations.

Important as that is, this is only part of our duty; indeed, our duty is to the whole of the Bill and to the whole of the new schedule before Schedule 1. The Minister referred to 600 specified pieces of EU law, which are represented in the long list represented in the long list before Schedule 1. I have done the arithmetic—even though my arithmetic has never been quite perfect—and the total is 928. We have a responsibility for every one of those 928 EU measures.

I ask your Lordships to concentrate on our wider responsibility, such as whether there is a need to revoke a particular piece of legislation. Is it causing any harm? There are a number of other tests which your Lordships should apply, but which will not fall under the remit of the Joint Committee. I draw noble Lords’ attention to the six sets of Habitat (Salt-Marsh) Regulations stretching over pages 24 and 25 of the Marshalled List. The question, for which we have a responsibility to answer, is: are they defective? If so, how?

Noble Lords:


Photo of Lord Hacking Lord Hacking Labour

Is somebody correcting me?

Photo of Lord Liddle Lord Liddle Labour

We will discuss it on Wednesday.

Photo of Lord Hacking Lord Hacking Labour

I got a prompt from beneath me that we are discussing this on Wednesday. I will not go into further detail; I just wanted to bring your Lordships’ attention to one example out of the 928 EU measures which fall under the new schedule before Schedule 1. The same test could easily be applied to the Civil Aviation (Safety of Third Country Aircraft) Regulations, which is on line 177 of page 27 of the Marshalled List. We have wider responsibilities, and we should exercise our influence over them during the passage of the Bill.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, I am happy to follow the noble Lord, Lord Hacking, and I agree with both his points. I have the strong impression, having read through the list of titles, that the great bulk of the legislation to be eradicated, listed on the 57 pages of the new schedule, is in fact defunct and can perfectly reasonably be removed. That is the impression that I get—but that is from reading the titles. I cannot remember the details even of the particular pieces of law that I was involved in drafting, and there are a few of them here. We have a duty to establish a sensible procedure. It could be that there are unintended consequences. I strongly support Amendment 1, the government amendment, but a necessary corollary to that amendment is that we must pass Amendments 2 and 4.

Photo of Lord McLoughlin Lord McLoughlin Chair, Joint Committee on the Fixed-Term Parliaments Act, Chair, Joint Committee on the Fixed-Term Parliaments Act, Chair, Delegated Powers and Regulatory Reform Committee, Chair, Delegated Powers and Regulatory Reform Committee

My Lords, I very much welcome the changes that the Government have brought forward, but I also think that the amendment moved by the noble and learned Lord, Lord Hope, is one that the Government should very seriously consider, and I shall support it later on this evening—and I shall support it for a simple reason. The question as to whether or not we leave the European Union has been settled. I was on a different side to my noble friend Lord Hamilton—I believed that we should remain in—but I accept that that debate has gone and that I lost it. We now have to move on, and we must find a way in which to give the House of Commons and the House of Lords a say over the legislation that is going to replace it.

The sad story of this Bill so far is that we were told that there were 3,000 pieces of legislation, then it was 4,000 pieces—and we now have 900 pieces that can be got rid of very quickly. One thing that is changing dramatically is how a lot of detailed changes have to be made at pace, and it is not always going to be the case that there will be time for primary legislation going through both Houses of Parliament. That is why we need to adapt ourselves to a very different mode of doing regulations. Some of the regulations are technical and the House will not necessarily want to take a particular view but, when they are of a more practical nature, I think that there should be a Joint Committee of both Houses that says to the Government: “Hold on, let’s discuss this”. That is what happened when we had the initial withdrawal Bill and, in a way, the proposals that have been put forward today are mirror images of those particular ways forward.

The changes that the Minister has brought forward, which are very welcome, came very late in the day, and nobody really knew what was happening until late last week—and we are debating them here this afternoon. So I very much hope that the amendment proposed by the noble and learned Lord, Lord Hope, will give the Government time to reflect and see that they have nothing to fear from a Joint Committee of both Houses looking at these matters. After all, if the Government have a majority, it will probably have one on that committee as well—and that is a sensible way forward, giving that parliamentary accountability that we all wish to see.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, I would like to focus my probing on Amendment 1—

Photo of Lord Davies of Gower Lord Davies of Gower Lord in Waiting (HM Household) (Whip)

My Lords, the noble Baroness has spoken once in this debate, and the good book says that it is one opportunity at Report.

Noble Lords:

Front Bench!

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

I think that I have been encouraged to go ahead. Is that appropriate?

Noble Lords:


Photo of Lord Lilley Lord Lilley Conservative

My Lords, very briefly, the case for what we are doing was put best by the noble Lord, Lord King, former Governor of the Bank of England. He said that there was a case for remaining in the EU to retain some influence, albeit small, over European legislation and there was a case for leaving to enable us to revise EU laws. There was no case for leaving and not using our opportunity to revise those laws.

A paradox arose in previous stages whereby those who, apparently with no problems at all, had allowed laws to be passed with little or no say by Parliament for 44 years became, overnight, welcome champions of full parliamentary process. Those on the pro-Brexit side of the campaign found themselves in the difficult position of arguing for rather streamlined and inadequate processes of parliamentary scrutiny, partly because there was a trade-off: there was a case for taking more time to maximise the thoroughness of scrutiny and a case for seeking speedy completion of the process to minimise uncertainty.

Amendment 2 gives us the opportunity for a degree of more thorough parliamentary scrutiny, which I think both sides welcome, but I would like an assurance from the Government that it will not prolong uncertainty for too long. The fewer the measures in the schedule, the more measures are outside it and could be liable to a process of reform or even removal over a longer period, therefore prolonging uncertainty. I would like to know before Wednesday why the some 2,000 laws that the Civil Service did not know existed have not been put in the schedule. If no one knew that they were there, what harm can there be in removing at least some of them?

More seriously, part of the process of this Bill is surely to enable us to transform legislation that we retain on the statute book into a more common-law process, more suited to Britain and our procedures. I would like some assurance that that will happen and an explanation of why, given that in most common-law countries there is little or no product legislation—they must be of merchandisable quality, safe and not harmful, but the law does not specify how or why they are made, in the way that the EU rules that we inherited do, largely for protectionist reasons—there is no removal of product legislation in this schedule. Surely it would be possible and bring us into line with much of the world.

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

My Lords, this has been a very extensive debate. The noble Lord, Lord Jackson, mentioned churlishness in a different context; it would be very churlish for these Benches not to welcome the government amendments in this group and the fact that the Minister has co-signed Amendment 9 in my name and that of the noble Baroness, Lady Chapman.

We owe the Minister a debt of gratitude. All through the grinding Committee, he stuck poker-faced to the party line, but then it seems he sprang into action; he took the spirit of what he heard in your Lordships’ House and, using his not inconsiderable powers of persuasion on the Secretary of State, he ensured that the whole government position flipped by 180 degrees. We need to thank him for listening to your Lordships in Committee.

We heard some concern about what is in the new schedule, which we will debate on Wednesday. Some of us received at 2.40 pm some explanation as to why particular regulations were put in. Clearly, that was late—we should have had it a lot earlier—but Amendment 2 takes the place of our having to work through the night on that spreadsheet. Should the noble and learned Lord, Lord Hope, seek the opinion of the House, we on these Benches will support him. Part of the road can be travelled with this group, as long as the noble and learned Lord’s amendment is included.

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, it has been a bit of a saga getting to where we are, but it is incredibly welcome that Ministers have tabled the amendments before us today. This means that we do not need to debate my Amendment 6, which would have had a similar effect to the Government’s amendments. I also welcome the Government’s acceptance of my Amendment 9, which deletes Clause 2.

There are still major problems with the Bill. The first issue is this. On Wednesday evening the Government published a schedule of retained law that departments have identified for removal on 31 December this year. This list of 650 pieces of law came without explanation of why each item is to be revoked, whether it is redundant or duplicated elsewhere and, if so, where we can find the relevant successor legislation. We will debate items in the schedule more fully later—and, clearly, we are pleased that the automatic sunset has been removed—but it is ridiculous to publish the revocation list so late in the day. I now have the explainer—as does the noble Lord, Lord Fox, I think—but I believe other noble Lords still do not have it. We did not get it until 2.26 pm today. We should not really have had to ask for it; all noble Lords should have had it before now.

We note that Ministers have given themselves and the devolved authorities until 31 October as a cooling-off period, in case there are still mistakes in this list. Perhaps we could be more confident in the contents of the list had it been available sooner and included the rationale for each decision earlier. Supposing for a minute there is no dispute over the contents of the schedule, the problem remains that there is still great uncertainty about the Government’s intentions. Statements are made to the press implying that regulations such as working time directives will be removed, and assurances are given to Parliament that workers’ rights are safe in the Government’s hands. We are not helped by the Government’s refusal so far to allow adequate parliamentary scrutiny of changes to important regulations that will come about as a result of the Bill. This is continuing to cause concern inside and outside this House.

We on these Benches therefore strongly support Amendment 2 in the name of the noble and learned Lord, Lord Hope. I am not going to repeat his argument. It is a straightforward process of sifting so that any items identified as substantial and listed for revocation can be considered properly. I do not see this as a huge burden on the Government. Ministers themselves are clearly concerned that there are errors in the list, or they would not have given themselves until 31 October to correct any mistakes. I hope the noble and learned Lord, Lord Hope, puts his amendment to a vote as he will have the support of these Benches. It would be even better for the Minister to indicate that the Government are willing to accept the idea.

We welcome the Government’s amendments, but this Bill really ought to serve as a lesson to lawmakers—now and in the future—that legislating in a factional interest, rather than the national interest, is always a mistake.

Photo of Lord Callanan Lord Callanan Parliamentary Under Secretary of State (Department for Energy Security and Net Zero) 4:45, 15 May 2023

I thank all noble Lords who have contributed to this debate. I find myself standing here bathed in sunlight; I am not sure whether that is a sign.

Photo of Lord Callanan Lord Callanan Parliamentary Under Secretary of State (Department for Energy Security and Net Zero)

I do not require the noble Lord’s advice on this.

I will start with Amendment 2 from the noble and learned Lord, Lord Hope, which requires that legislation listed in the revocation schedule be referred to a Joint Committee of both Houses and be considered by the committee for a period of at least 30 sitting days. Should the Joint Committee consider that the revocation of the legislation listed would substantially alter UK law, a Minister of the Crown must ensure that the revocation be debated and voted on by both Houses prior to 31 December.

I start by reassuring noble Lords that it is the Government’s view that this amendment is unnecessary. Every piece of retained EU law in the schedule has been thoroughly reviewed, and will be reviewed and debated alongside Amendment 64, which has been tabled. I am confident that the changes to Clause 1 that we have introduced have alleviated the substantial concerns raised by Members across this House during the passage of the Bill and provided the legal clarity and certainty that has been called for.

Although I know that a number of noble Lords have not yet had the chance to see it, today we have published an extensive schedule explainer—again, responding to the concerns that many Members have raised; officials have been working hard on this all weekend—which explains, line by line, why each of the, in total, 587 pieces of legislation has been deemed suitable for inclusion on the schedule. That has been sent to every Member in advance of the debate on Wednesday. I hope that this will alleviate the concerns raised in this debate, including by my noble friend Lord Hodgson and the noble Lord, Lord Kerr, and other noble Lords, about the amount of information that has now been made publicly available.

In addition, the preservation power in Clause 1 will enable relevant national authorities to preserve legislation on the revocation schedule where they deem it necessary and where the relevant procedures and timescales have been adhered to. This provides a proportionate safeguard against unforeseen consequences of legislation listed on the schedule being revoked. The purpose of our amendment is to provide that legal certainty and clarity as efficiently as possible. To require yet further referrals and debates, and approvals to the list which can be scrutinised during the Bill’s passage, is unnecessary.

On Amendment 4, I have introduced changes to the Bill that I hope will reassure the noble and learned Lord, Lord Hope of Craighead—I think they have done—that his proposed changes to the functioning of the Bill are not necessary. Indeed, the revocation schedule I have laid guarantees that only a set amount of retained EU law will be revoked, which is clearly set out in the Bill. This is very similar to the mechanism proposed in this amendment that would see instruments or provisions expressly listed in a ministerial Statement. However, for a number of reasons, I believe that my proposed revocation schedule is better equipped to deliver this amendment’s desired outcome.

For similar reasons I am opposed to Amendment 6. This amendment would introduce changes to Clause 1 that are reflective of those already introduced by the Government. Indeed, the revocation schedule in Amendments 1 and 5 seeks to accomplish similar goals to Amendment 6 but in a more comprehensive way. This amendment would require a list to be compiled in order to be revoked and would open the door for multiple such lists being laid over the coming months. Again, the proposed revocation schedule is already drafted, has been vetted and is ready, and I believe it is a more appropriate solution. Finally, the amendment has unclear timelines and does not offer as much certainty as the revocation schedule, which is clear about when the revocation of pieces of retained EU law would occur and works in step with other timings in the Bill, such as the expiry of the powers on 23 June 2026.

I was going to refer to the amendment in the name of the noble Lord, Lord Hacking, but he said that he will not press it.

Amendment 8 attempts to exempt any pieces of legislation from the sunset should they be identified after the end of 2023. As I already outlined, this amendment is now unnecessary.

Amendments 10, 11 and 12 all concern the devolved Administrations and their preservation power in what was Clause 3. However, given that under my proposal Clauses 1 and 2 have been removed from the Bill and a revocation schedule has replaced the sunset, these three amendments are defunct and we ask that they are not pressed.

Amendment 16 seeks to oblige the Secretary of State to publish a health and safety impact assessment for any retained EU law which is to be revoked, at least 90 days before the revocation. All legislation listed on the revocation schedule has been considered by the relevant departments and checked by the relevant teams. As such, a health and safety impact assessment is not needed, given the depth of the work that has already been carried out.

We have introduced this Bill to help us realise the opportunities of Brexit. I reassure my noble friend Lord Jackson and other noble Lords that the Government remain committed to a reform programme. Legislation that has been identified on this schedule had already been identified and would have been allowed to sunset anyway. We are still committed to making the opportunities of the reform programme, and we retain the ambition and fundamental purpose behind this work.

I hope that the noble and learned Lord will feel able to withdraw his amendment and that other noble Lords will not press theirs and will support the government amendments.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

Before my noble friend sits down, will he respond to my question about sufficient consultation time being allowed? The Food Standards Agency has accepted all the legislation that relates to it which falls in the revocation schedule to which my noble friend referred, subject to sufficient time for consultation. Can my noble friend say, hand on heart, that, by the time the Bill is concluded, there will be enough time for consultation before the schedule applies?

Photo of Lord Callanan Lord Callanan Parliamentary Under Secretary of State (Department for Energy Security and Net Zero)

I have seen the letter from the Food Standards Agency to which my noble friend refers. The schedule is published and we have now published the explainer, so people can see what is on it. The vast majority of legislation published on the schedule is unnecessary and redundant, and can be safely revoked.

Photo of Baroness Bakewell of Hardington Mandeville Baroness Bakewell of Hardington Mandeville Liberal Democrat Lords Spokesperson (Environment, Food and Rural Affairs)

Before the Minister sits down, I listened very carefully but I did not hear what he had to say about Amendment 14 and the reassurances I was seeking.

Photo of Lord Callanan Lord Callanan Parliamentary Under Secretary of State (Department for Energy Security and Net Zero)

The directives she seeks an explanation on are not listed on the revocation schedule. Therefore, they continue to be in operation. They will be subject to a reform programme, but that is a question she will need to direct towards the Secretary of State at Defra.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, I have listened very carefully to what the Minister said. I have not seen the additional information which has apparently been circulated to some Members of this House, and I think many Members have no idea what it contains. That makes my point for me: proper parliamentary scrutiny is essential. That is what my amendment is all about and, with great respect to the Minister, I do not think he has really answered that point of principle. Having moved Amendment 2, I wish to test the opinion of the House.

Ayes 245, Noes 154.

Division number 1 Retained EU Law (Revocation and Reform) Bill - Report (1st Day) — Amendment 2 (to Amendment 1)

Aye: 243 Members of the House of Lords

No: 152 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Amendment 2 agreed.

Amendment 1, as amended, agreed.