Clause 14 - Powers to restate or reproduce: general

Retained EU Law (Revocation and Reform) Bill – in a Public Bill Committee at 3:00 pm on 24 November 2022.

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Photo of Alex Sobel Alex Sobel Shadow Minister (Environment, Food and Rural Affairs) 3:00, 24 November 2022

I beg to move amendment 82, in clause 14, page 16, line 18, at end insert—

“(1A) No regulations may be made under section 12 or 13 unless all the following conditions have been satisfied.

(1B) The first condition is that the relevant national authority has consulted on a draft of the regulations with organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, those regulations.

(1C) The second condition is that, after that consultation has concluded, the relevant national authority has laid a report before each House of Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru, or the Northern Ireland Assembly) setting out—

(a) the authority’s view as to whether the proposed regulations make any change in the rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare, and the reasons for that view;

(b) whether in making the regulations the national authority has considered using its discretion under section 12(6), section 13(6), or subsection (2), (3) or (4) of this section, and if so, the reason why it does or does not intend to exercise that discretion.

(1D) The third condition is that a period of sixty days has passed since that report was laid, with no account to be taken of any time during which Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru, or the Northern Ireland Assembly) is dissolved or prorogued or during which it was adjourned for more than four days, and where they were laid before Parliament, paragraph 8(11)(a) of Schedule 3 shall apply in determining the commencement of that period.”

This amendment requires the national authority to consult on a draft text of “restatement” regulations, and to set out its reasoning on the choices made when drafting those regulations to Parliament or the relevant devolved legislature.

Photo of George Howarth George Howarth Labour, Knowsley

With this it will be convenient to discuss the following:

Amendment 83, in clause 14, page 16, line 26, at end insert—

“(3A) A restatement may not be made unless such consultation with relevant stakeholders as the relevant national authority considers appropriate has taken place on whether the conditions set out in subsection (3) are met.”

This amendment ensures that relevant stakeholders are consulted to ensure that the conditions for the exercise of the power to restate set under clause 14(3) are met.

Government amendment 14.

Amendment 56, in clause 14, page 16, line 32, leave out subsection (5).

Government amendment 15.

Amendment 55, in clause 14, page 17, line 2, at end insert—

“(9) Regulations under section 12 or 13 may not be made unless the relevant national authority has consulted all parties that authority considers relevant.”

Clause stand part.

Photo of Alex Sobel Alex Sobel Shadow Minister (Environment, Food and Rural Affairs)

Our amendments 82 and 83 require the national authority to consult on a draft text of restatement regulations, and to set out to Parliament or the relevant devolved legislature its reasoning on the choices made when drafting the regulations. I am sure the Minister will want to earnestly reassure us that national authorities are bound to consider those decisions carefully. It follows that she should readily accept that their reasoning should be published.

On consultation, the Bar Council’s written evidence refers to clauses 12 to 15 and schedule 3 granting Ministers enormous power to legislate at will to replace or update retained EU law, without any requirement to consult anyone, on matters of enormous importance to business, consumers, employees and the environment. There is no requirement for any parliamentary vote; there will be only the minimal scrutiny afforded by the affirmative procedure.

Furthermore, Parliament may well be confronted with Hobson’s choice: either agree in full to unsatisfactory replacements for retained EU law, or vote out the whole lot. As a result, as we heard earlier, fundamental rights such as paid bank holidays or environmental protections to stop air or water pollution could simply disappear completely, perhaps through mistake or oversight, with little or no opportunity for public debate.

We agree with the Bar Council that important changes to our law should be made by Parliament after proper consultation, public debate, and scrutiny, not by ministerial fiat. The rushed and uncertain process for replacement or removal of REUL and the deliberate creation of legal uncertainty will seriously damage the UK’s hard-won reputation for regulatory stability, predictability, and competence, on which growth-promoting investment in critical sectors of our economy depend.

The Bar Council points out that the complete absence of any requirement to consult those affected by the exercise or non-exercise of Ministers’ powers under the Bill is incomprehensible, given that we are talking about often complex legislation, and that errors or omissions can have serious adverse consequences for business as well as consumers, workers and others. Businesses can have no confidence that they will have any ability to comment on or influence, or even any prior notice of, legislation that can profoundly affect them—a gap that, in the Bar Council’s view, which we share, would be a serious deterrent to investment.

Photo of George Howarth George Howarth Labour, Knowsley

I call—[Interruption.] Oh, the hon. Member for Yeovil is leaving.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

I have a horrible feeling that it is because of something I am about to say. I rise to support amendment 82. To go back to the theme of this afternoon, if we are taking back control, then surely control should rest with this place. That means that this place needs the relevant information and powers to do its job. Amendment 82 would require consultation on any restatement of retained EU law, including on whether it affects rights and protections.

The right hon. Member for Clwyd West will find that amendment 82 finally satisfies his concern that we are all scaremongering. If we are scaremongering, it should not be a big deal for Government to restate and confirm that the laws they are replacing will not change any protections; that will reassure those of us who might otherwise trouble vulnerable people.

Amendment 82 does two things. First, it helps with the reality, which is that no Government—shock, horror!—is perfect. No Government get everything right all the time, so sometimes, with the best will in the world, and the best grace in the world, corrections need to be made. We have all sat on Delegated Legislation Committees to do that.

Consultation on draft regulations will help identify minor issues, unintended consequences and drafting errors before a law comes into force; that ensures that it is better legislation before parliamentary time is committed to it. We agreed on Tuesday that this would take 4,000 hours of parliamentary time—267 days, if we sat 24 hours a day. The Minister looks surprised at that; I hope she has done some maths on how we will pass all these SIs before the deadline in the Bill. It will require some parliamentary time, at least.

Consultation can be incredibly helpful. It can identify quirks, and experts come up with points. We might have strong views on workers’ rights, but SIs will come up regarding standards, and there are experts out there who spend their lives being obsessed with electrical standards. Surely asking them to double-check what we have written down would be good.

Restatements are subject to less scrutiny, because they should not make substantive changes to regulations. That takes me to my second point, and the more substantive—dare I say it, “conspiracy, rather than cock-up”—moment in all this. It would be simple and straightforward for the Government to affirm that there will be no change in protections or rights if they did not intend to use the powers in the Bill to water down workers’ rights; to reduce environmental protections that we all believe are important; or to reduce fundamental consumer protections that resolve knotty problems, such as whether, at this time, when everyone is trying to book a train, we will get compensation from Avanti. We live in hope. Why would the Government not commit to doing that, and reassure us all? All amendment 82 does is hold the Government to the pledges that they are making, and ensure that every single time a piece of legislation is brought before the House, it does what it says on the tin. I have forgotten the name of the company I am thinking of. It is not Dulux; it is the other one—the one that has to do with paving.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Ronseal, that’s it; I am showing my age. This should be a Ronseal moment—it does what it says on the tin. I have a horrible feeling that the Minister will reject the amendment. I hope that she recognises that the concern comes in when the Government reject relatively benign proposals, such as the suggestion that they should simply say, “Yep, this legislation is like-for-like; it does not water down protections.”

As we saw on Tuesday, the Government have already started to decide, in private, which pieces of EU retained law they will not continue with, so we know that some things will change. Some legislation will fall, and we understand that; the whole point of leaving the European Union was to have the power to reject things. Knowing what will or will not be taken out is surely the epitome of taking back control. Each of us should be able, in our constituency surgeries, when we are inevitably asked about a piece of legislation and its impact, to say, “Ah, yes. Well, that is where this decision came from, and this is what we were told at the time.” Parliamentary scrutiny, done well—even done at all—is taking back control, so let us see some of it in this Bill, for a change.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Deputy Spokesperson (Treasury - Chief Secretary)

I rise to speak to amendments 55 and 56 in my name and that of my hon. Friend the Member for Argyll and Bute. This is an attempt to, once again, restrict the Executive’s power grab and to limit, to some small extent, the extent to which the Government are taking powers away from this Parliament and for themselves. It is an attempt to limit the use of Henry VIII powers.

First, the amendments seek to remove subsection (5) to clause 14. I make no apology for raising this point every time I see such a provision in any legislation. It is a bad idea to allow a Minister of the Crown to change any Act of Parliament that they fancy without having to present a Bill in the House of Commons that amends it. The whole House should need to approve the change, after giving it appropriate consideration, and after every single Member has had a chance to comment on it. Subsection (5) essentially seeks to do that. Interestingly, its text is now fairly standard in Bills featuring the Henry VIII powers that the Government are putting through. At some point, the Government spotted something that worries them. They have discovered a part of an Act of Parliament that they are terrified a Minister could ever change, so they have tabled Government amendment 14 to stop that happening.

The Government are quite happy for Ministers to be allowed to change any Act of Parliament that protects the rights of workers, environmental rights, or high standards of public safety and animal welfare. That can be entrusted to the Minister. However, they cannot allow a Minister to do anything that might produce a piece of legislation tainted with the smell of the European Union. Government amendment 14—if hon. Members can work their way through the gobbledegook, especially in subsection (4B)—says that the one thing that Ministers cannot do under the Henry VIII powers is anything that might look like it originated in the European Union. It is what we might call the 55 Tufton Street amendment.

The amendment is there because the Government are terrified of the cabal of secret organisations that manage to squeeze into a relatively small amount of space in central London under the guise of think-tanks, when we all know that they are actually very hard right-wing political lobbying organisations. The Government are so much in hock to them that somebody has spotted the danger, or worried about a headline in the Daily Mail stating, that secret legislation could take us back into the European Union. That is what amendment 14 is all about. Given all the things that subsection (5) gives Ministers the power to do, why is that the one thing that it is necessary to prevent Ministers from doing? After the last few weeks, we can assure her that even if the official Opposition get elected to Government, they will not do anything like that, because they have become Brexiteers, and are at least as hard-line as the Conservative party, so I am not quite sure why amendment 14 is required anymore.

Amendment 55 recognises that there can be times when the correct or proportionate way to change the law is by secondary legislation, rather than an Act of Parliament. If that is done, there should be a requirement for proper consultation to be carried out. If the Government do not accept the amendment—I know they will not, because that is always the case—they are saying that there are times when consultation should not happen, and times when the Minister knows it all and does not need to consult interested parties, or people with more expertise than them or their advisers. Refusing to accept amendment 55 will be a sign of the Government’s arrogance and its willingness to legislate at haste, knowing perfectly well that we will have to repent at leisure.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

The Government recognise the importance of ensuring legislation undergoes appropriate scrutiny and consultation, and I will set that out shortly. However, I ask that hon. Members reject amendments 82, 83, 55 and 56.

It is right that we ensure that any amendments to retained EU law or assimilated law receive appropriate scrutiny and are subject to the proper processes for consultation. That is why we have sought to ensure that the Bill contains robust scrutiny mechanisms, including for the powers to restate under clauses 12 and 13. First, the draft affirmative procedure will be applied where the powers to restate are being used to amend primary legislation. Secondly, the sifting procedure will apply to clauses 12 and 13 for the regulations that are proposed to be made under the negative procedure. The sifting procedure largely corresponds with the sifting procedure under the European Union (Withdrawal) Act 2018, and will provide for additional scrutiny of the legislation being made. Parliament can then scrutinise instruments, subject to sifting, and make active decisions regarding the legislation. It is our expectation that Departments will follow the standard procedures regarding consultation during policy development.

On amendment 56, let me be clear that the powers are not capable of restating any REUL or assimilated law that is primary legislation. Work is already ongoing across Whitehall on a REUL statutory instrument programme, which will continue after the Bill’s Royal Assent. The inclusion in the Bill of a consultation requirement for the powers, which is what the amendments seek to achieve, would build further time into the SI programme. That would disempower Departments, hindering their ability to pursue the REUL reform that they judged to be necessary. For the powers to restate in particular, that would delay the opportunity for Departments to use the powers to maintain the existing policy effect of their REUL in cases where that was judged to be necessary, by reproducing certain EU principles of interpretation that will cease to apply after the sunset.

Given that the powers to restate have been designed to enable Departments only to provide for substantially the same policy effect, when that is considered desirable and appropriate for the UK in a post-Brexit setting, the inclusion of a requirement to consult—both on the regulations proposed to be made and the purposes for their use—seems particularly unnecessary. As such, I ask the hon. Member for Leeds North West to withdraw the amendment.

The Government’s simple clarificatory amendments will ensure that the restatement powers in clauses 12 to 14 cannot be used to bring back the EU law concepts—such as the principle of supremacy or general principles—that the Bill aims to sunset, in general terms.

Photo of Alex Sobel Alex Sobel Shadow Minister (Environment, Food and Rural Affairs)

The Minister talked about both an appropriate level of scrutiny and robust scrutiny, but then went on to talk about sifting. We know that there are upwards of 4,000 regulations. That is exactly the concern we have about how much scrutiny there will be across those regulations. The Minister’s main objection seemed to be that the provision would create too lengthy a procedure for the SI programme. Our point is that it would otherwise be rushed through within a matter of months, until the 2023 sunset date, without the proper scrutiny. That is why amendments 82 and 83, and the SNP amendments 55 and 56, are necessary. I will press amendment 82 to a Division.

Question put, That the amendment be made.

Division number 10 Retained EU Law (Revocation and Reform) Bill — Clause 14 - Powers to restate or reproduce: general

Aye: 6 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

The Committee divided: Ayes 6, Noes 7.

Question accordingly negatived.

Amendments made: 14, in clause 14, page 16, line 31, at end insert—

“(4A) Regulations under section 12 or 13 may not codify or reproduce the principle of the supremacy of EU law or a retained general principle of EU law.

(4B) Nothing in subsection (4A)—

(a) prevents regulations under section 12 or 13 from codifying or reproducing, in relation to a particular enactment, an effect equivalent to an effect which is produced, or would but for sections 3 to 5 be produced, in relation to the enactment by virtue of the principle of supremacy of EU law or retained general principles of EU law, or

(b) prevents regulations under section 12 or 13 which codify or reproduce anything which is or was retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 from producing an effect equivalent to an effect which is produced, or would but for sections 3 to 5 be produced, in relation to that thing by virtue of the principle of supremacy of EU law or retained general principles of EU law.”

This amendment and Amendment 15 clarify that the powers under Clauses 12 and 13 may not be used so as to codify or reproduce the principle of supremacy of EU law or a retained general principle of EU law.

Amendment 15, in clause 14, page 16, line 40, at end insert—

“(7A) In subsections (4A) and (4B) ‘retained general principles of EU law’ has the same meaning as in section 12 or 13 (as the case may be).”—

This amendment and Amendment 14 clarify that the powers under Clauses 12 and 13 may not be used so as to codify or reproduce the principle of supremacy of EU law or a retained general principle of EU law.

Photo of George Howarth George Howarth Labour, Knowsley

Does the hon. Gentleman want to press those amendments to a vote?

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Deputy Spokesperson (Treasury - Chief Secretary)

I had intended to press both to a Division, Sir George, but to save time, and given that the Government Whip already has her great big no vote ready to hang up to make sure that Conservative Back Benchers know what they are supposed to do, there is clearly no point. We know the result already, so to save the Committee time, I will not press either amendment.

Photo of George Howarth George Howarth Labour, Knowsley

I am very grateful to the hon. Gentleman. We would have been in a bit of muddle otherwise.

Clause 14, as amended, ordered to stand part of the Bill.