I beg to move amendment 1, in schedule 3, page 30, line 5, leave out paragraph 2 and insert—
“2 (1) Sub-paragraph (2) applies to a statutory instrument containing regulations under this Act which is subject to a procedure before Parliament for the approval of the instrument in draft before it is made.
(2) The statutory instrument may also include regulations under this Act or another enactment which are made by statutory instrument which is not subject to the procedure mentioned in sub-paragraph (1) (whether or not it is subject to any other procedure before Parliament).
(3) Where regulations are included as mentioned in sub-paragraph (2), the statutory instrument is subject to the procedure mentioned in sub-paragraph (1) (and is not subject to any other procedure before Parliament).
(4) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument containing regulations under this Act which is subject to a procedure before Senedd Cymru as they apply in relation to a statutory instrument containing regulations under this Act which is subject to a procedure before Parliament, but as if references to Parliament were references to the Senedd.
(5) Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply in relation to a statutory instrument but as if references to Parliament were references to the Northern Ireland Assembly.
(6) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument containing regulations under this Act which is subject to a procedure before a devolved legislature as well as a procedure before Parliament as they apply in relation to a statutory instrument containing regulations under this Act which is subject to a procedure before Parliament, but as if references to Parliament were references to Parliament and the devolved legislature.
(7) In sub-paragraph (6) ‘devolved legislature’ means the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly.
(8) Nothing in this paragraph prevents the inclusion of other regulations in a statutory instrument or statutory rule which contains regulations under this Act.”
This amendment enables regulations under this Act subject to the draft affirmative procedure to be combined with regulations that are not subject to that procedure.
This is a technical amendment necessary to ensure that the mechanism for combining statutory instruments in the Bill functions correctly. The intent behind the Bill is to enable regulations made under different powers in the Bill to be combined into a single statutory instrument where it would be more appropriate to do so. This technical amendment will allow provisions made under any powers in the Bill and other enactments to be combined with regulations under the Bill that require a draft affirmative instrument.
Where such provisions are combined, the default procedure will be the higher procedure, which is the draft affirmative. That will enable statutory instruments to be combined more effectively, which will save resource and reduce the future burden on parliamentary business. The amendment also makes equivalent provision for the devolved legislatures. I commend the amendment to the Committee.
I am grateful to the Minister for providing an explanation of the technical nature of the amendment. It actually quite an important amendment for the Government if they are to have any chance of meeting their self-imposed deadline in a year’s time. Being able to link together different instruments that require different procedures will, as the Minister said, be a helpful tool to limit the amount of parliamentary time taken up, although that may come at the cost of scrutiny. I am, however, encouraged by the Minister’s confirmation that the affirmative procedure will be used in those circumstances. It is almost as if there will be levelling up of regulations so that the higher standard of scrutiny will apply.
Will the Minister tell us whether there has been any assessment of on how many occasions it is anticipated that the amendment will be used? It is worth saying, once again, that if the Government had not created this artificial cliff edge and put themselves up against the clock so steadfastly, the amendment would not be necessary.
I will not oppose the amendment, but I need to put on record that the fact that such a detailed technical amendment is needed is clear evidence that the people who draft legislation do not always get it right first time. Is it not lucky that we have a Bill Committee, so that errors, omissions and oversights in the drafting of the Bill can be put right before it comes into force? The 4,000 or so—at the latest estimate—bits of legislation that the Bill will tear up and throw in the fire will be replaced by things that we will not get a second chance to put right in Bill Committee.
When, as will almost certainly be the case, the Government end up repealing bits of legislation that nobody knew existed, we will not have a Bill Committee to put things on hold in order to correct any mistakes. The fact that the Government have already had to table this and so many other amendments and we have no idea what else they will have to introduce on Report or in the House of Lords does not represent a criticism of those who drafted the legislation. It is simply an illustration of an uncomfortable fact: no matter how good we are at drafting legislation, we do not get it right first time. If this Bill passes in the form in which the Government are determined to pass it, there are potential catastrophic impacts from Parliament repealing legislation that it did not even know existed.
I am glad that there is, I think, acceptance that this amendment is a practical and sensible measure. By bringing procedures together in one and having the affirmative procedure, we can ensure that Parliament can scrutinise in a more holistic manner, to address some of the concerns that have been raised by the Scottish nationalist spokesman. As to precisely how often, I do not have an estimate on that, but I expect it to be on numerous occasions, because, as has been said, there is a substantial amount of retained EU law. If that can be brought together and scrutinised in an effective manner that allows full and proper scrutiny but does so in a way that does not waste parliamentary time, I hope we will have something that works for all parts of the House and is seen as practical and proportionate.
I beg to move amendment 88, in schedule 3, page 31, line 6, leave out from “15” to the end of line 8 and insert—
“(d) regulations under section 16.”
This amendment, together with Amendment 89, would make all regulations under Clause 15 (regulations that are intended to achieve the same or similar objectives as the REUL being replaced) and under section 16 (technological developments) subject to affirmative procedure.
We have already spoken at length about the lack of effective parliamentary scrutiny provided for in the Bill. Our amendments 88 and 89 would ensure that any instruments made by Ministers to replace retained EU law under clause 15 or to update it under clause 16 were subject to the affirmative procedure and had to be approved by both Houses. At present, schedule 3 does not provide for the affirmative procedure for clause 16 instruments at all; for clause 15, it provides for the affirmative procedure to apply only in the case of revocation or for much more limited cases where the clause 15 powers are used for sub-delegation or to create a new criminal offence.
It seems to us, as well as to many of those who have submitted written evidence, that the powers in both clauses are potentially extremely significant even if they are not being used for wholesale revocation. Updating and replacing retained EU law might well involve alterations to existing and long-established rights and protections—alterations that we feel Parliament should be asked to positively agree to before they pass into law. The Minister himself just said that this Bill covers a substantial number of regulations, so it is only right and proper that we have the correct level of scrutiny and process in this place.
Can the Minister explain the circumstances in which he envisages the powers to replace and update being used? Can he also provide examples of the replacement or updated legislation that Departments are planning to take through, using these powers? I ask because we have heard very little, but we know that civil servants are busy preparing regulations for this procedure.
Good morning, Sir Gary. It is a pleasure to serve under your chairmanship this morning on this Bill. You have missed some real treats, I venture to suggest, about the future of decision making in this place.
Members who have been on this Committee for the whole marathon rather than the last couple of miles will know that Opposition Members have been raising consistent concerns about how we do what we were all promised we would be able to do—take back control. The amendments before us this morning are about exactly that, because one of the central concerns that we have about this legislation is that it does not take back control to the British people; it simply takes back control to the back rooms of Downing Street and Departments. These provisions, these amendments, show why that concern is merited.
All of us have sat through statutory instrument Committees in our time in Parliament. It is a joy to receive the message, at the last minute, that you have been selected, Sir Gary, for what pleasures—what delights—await you and what information you will learn on one of those Committees. But they are a vital part of our parliamentary scrutiny process. After all, they offer the opportunity for Ministers to set out clearly the purpose behind any amendments; the recognition that not everything needs to be debated on the Floor of the House; and clarity about the Government’s thinking. Many of us who have sat through court cases will recognise how important that is when it comes to the application of the law.
As we have discussed previously in Committee, this legislation will delete overnight potentially 4,000 laws. It could be more, or it could be slightly less—who knows? We probably should know before we pass the Bill. We have had that debate and the Government still do not think it is important, but they have always told us that they wanted to take away unaccountable European bureaucrats and give us the opportunity to have British bureaucrats making legislation. The amendment challenges that process. It would give back to us, as parliamentarians, the responsibility for holding the Government to account.
Committees considering statutory instruments offer the opportunity to ask Ministers questions. I see the Minister in his place, and he and I have been on statutory instrument Committees through the years. I know I have always enjoyed hearing his answers, even if he has not always enjoyed my questions. By clarifying that this process must be used on statutory instruments, we would set an important principle that perhaps would take us closer to taking back control.
As has been pointed out by my Front-Bench colleague, my hon. Friend the Member for Leeds North West, clause 15 allows that only in the case of revocation. We have already heard in Committee the Government’s plans simply to let some legislation drop, but why have that power only in respect of revocation when the Government might want to admit publicly that they are going to abandon a key piece of legislation? Who knows what that legislation might be? Might it be the working time directive? Might it be bank holidays? Might it be maternity rights? Might it be environmental protections? Who knows?
Perhaps, then, the Minister will publish and confirm for all of us who have been on the Committee—he is new to these debates, but I am afraid he is going to hear this concern repeated at length—what comes next. Without clarity over what comes next, it is difficult to be confident that the legislation will not be a destructive disaster. I see he is already enjoying the fact that he is on duty today.
Having this power only for revocation undermines other powers the Bill gives to Ministers, because it is a power both to ignore and to amend legislation. Taking back control and returning it to the back rooms to allow Ministers to write legislation and then simply put it before us in a “like it or lump it” proposal is not really taking back control.
I also venture to say that it is worth ensuring that we have this procedure for all forms of legislation that are affected by the Bill—not for some grand political design so we can have these wonderful debates, but because, as we have already seen with this Bill, not everything is going to be perfect. Departments make mistakes. Drafting can contain errors. I am reminded of the tale, which is completely true, of the Belgian legislature that managed to put a recipe for asparagus into Belgian law because it was cut and pasted into legislation by accident. That genuinely happened—I am sure the Minister will google it—in 2021.
Statutory instruments give us an opportunity to pick up drafting errors, as well as to hold Ministers to account, and to challenge and query legislation—for example, one of those so-called technical amendments, although we know the Bill represents not technical amendments, but, potentially, serious changes to rights, rules and regulations that people have relied on and recognised for generations. Having such a procedure would give us the chance to identify actions, and possibly to identify the asparagus.
If the Minister will not accept the amendment, he is saying two things: first, that taking back control is not about Parliament, but simply about the back rooms, and, secondly, that we never get things wrong. We have all met in life individuals, and perhaps even organisations, who say, “I never get things wrong,” and we know that that is the most worrying thing that anybody can say. Drafting errors are part and parcel of trying to get right even one or two pieces of legislation, but the Government, potentially, are setting us up to try to get 4,000 right to replace the laws they are deleting overnight.
Statutory instruments and the use of processes and amendments are an important part of the process of trying to ensure that that is done with the greatest possible skill. Removing those powers, or not clarifying that they are part of those processes, and giving Ministers the opportunity to decide whether they want to put themselves up for parliamentary scrutiny is like letting contestants in “The X Factor” avoid the judges’ houses stage. This all forms an important part of the process.
I have a horrible feeling that the Minister is not going accept the amendment, so in responding to the queries and questions we have raised, and in reflecting on why the amendment has been tabled, will he consider why—when we are discussing potentially significant and meaningful changes, and when we know he can only water down regulation because the Bill says that regulation can only be something that does not create a burden—he believes our constituents should be denied that representation and that voice in the process? That is what not including such a provision, or not having any form of it, means.
We saw that in the pandemic, when statutory instruments were not receiving appropriate scrutiny. In December 2020, a new set of covid restrictions that would have criminalised a child going to school in tier 4, despite schools remaining open, were implemented without any parliamentary scrutiny. In that case, due to the extraordinary public scrutiny these regulations faced, the issue was finally identified before the schools returned from the Christmas break for one day. Despite what they might think, however, it is not normal for commentators on Twitter to go through legislation at this level. Such errors are not minor—they are not just asparagus—but could have real life implications. They happen and they happen in this place, and not having proper scrutiny of SIs is the foundation of such errors.
I hope the Minister will do more than laugh at the asparagus. I hope he will act on these concerns and finally agree, if not to this amendment, to the tabling of the Government’s own amendment in the other place to ensure we finally take back some control. I say to my colleagues on the Government Back Benches that at some point, somebody will turn up in their constituency surgeries asking about the outcome and implication of this legislation, and they will have to say, “Well, I didn’t vote through any changes. I did not recognise the problems with the sunset. I was pretty confident about not knowing what laws this would affect and I did not even vote through any powers to be able to scrutinise what happens next. I just thought it would all be fine because this Government never make mistakes.” It simply will not wash.
I urge the Committee to reject amendments 88 and 89. Alongside the other powers in the Bill, the power to revoke or replace in clause 15 is an important, cross-cutting enabler of reform in the Bill. The power to update in clause 16 is an essential, ongoing power that will facilitate technical updates to retained EU law to take account of changes in technology or developments in scientific understanding. We recognise Parliament’s important role in scrutinising legislation, and the Bill ensures the appropriate scrutiny of all amendments and revocations of retained EU law using the powers in the Bill, including the powers provided for in clauses 15 and 16.
When discussing matters of scrutiny, I feel it is important to note the negligible scrutiny that most of the legislation we are discussing today—with such high-falutin’ language from the Opposition—received when it was created. When our democratically elected Government of the people of the United Kingdom take decisions, for which they are accountable at the ballot box, that is what I mean by taking back control. The people who are elected are responsible for what happens. That is what we have, and we are accountable at the ballot box. When they go to the ballot box now, British people will know who to hold responsible: us. It is not some pooled whatever system in Brussels; it is here in the United Kingdom. Power sits within this legislature, which is elected by the people of this country; it is not about precisely where the powers sit within our legislature. That is why it seems ironic that the Opposition parties had so little concern when powers were exercised on the other side of the channel, but apparently it is outrageous when those powers are exercised here by a democratically elected Government.
I am not going to give way. If I was, I would certainly let them know, Sir Gary. [Hon. Members: “Lack of scrutiny!”] More important than issues around lack of scrutiny is the Minister’s failure to keep everyone calm. I recognise that is a significant misstep on my part.
Let me first turn to clause 15. Any regulations made under subsection 15(2) that recreate a power to make subordinate legislation or a criminal offence present in the retained EU law that is being replaced are already subject to the affirmative procedure, as are those regulations making alternative provision to the REUL being replaced under subsection 15(3). The power to update has been crafted so that we can do this in the right way. I must underscore this by saying that the power is intended to enable UK legislation to be updated to reflect future advances in science and technology, rather than to provide for any fundamental policy changes.
Given the scope of the power and the amendments that we expect to be made to regulations under this power, we judge the negative procedure to be the proportionate level of scrutiny. We therefore do not assess that it is necessary or appropriate for all regulations made under clauses 15 or 16 to be subject to the draft affirmative procedure. To do so would place additional pressure on parliamentary time and detract from the legislative agenda, and indeed from the scrutiny of substantive measures that should be subject to that positive scrutiny that we are talking about. I therefore ask the hon. Gentleman to withdraw the amendments.
Thank you, Sir Gary, for calling me to speak. You will be aware that I attempted to intervene on the Minister to correct his mistake, because we are not in the same position with this Bill as we were with European legislation. The reason that Parliament did not do more to scrutinise the action of British Government Ministers in making legislation on our behalf while we were in the European Union is that, for most of the time, Parliament under any Government was completely supine. This Parliament is set up in such a way that it does what the Government tell it to do. It is headline news around the world if Parliament does not do what the Government tell it to do. Parliament had the power to rein in Ministers, but shamefully it repeatedly failed to do so. If this Bill goes through, Parliament will not have that power; Ministers will be able to do pretty much what they like.
The Minister talks very grandly about the fact that people have the chance to hold the Government to account. It is not a debate for just now perhaps, although some of us think that it is a debate for every day of the week, but the people of Scotland have been holding this Conservative party to account since 1955 and they just cannot get rid of them. He will perhaps understand why we can have no confidence in a legislative process that puts powers into the hands of a group of Ministers who people in Scotland have rejected at every opportunity they have been given since before I was born.
I want to just pick up on the idea that before 2016, or before early 2020 anyway, the regulations that we are talking about were somehow just created out of thin air—that an EU Commissioner decided one day that that was the regulation and that was it, and suddenly it was law in this country. That is a long way from the truth. The regulations had to go through the Council of Ministers, on which a UK Minister sat; they had to go through the European Parliament, where UK MEPs sat and provided scrutiny; and then they had to go through this House and the whole process here in the UK Parliament. When they related to devolved bodies, they also had to go through the devolved Administrations. I do not understand the argument that somehow there was a lack of scrutiny and process before, and now there is proper scrutiny and proper process. What our amendments would do is introduce the affirmative procedure.
Does my hon. Friend agree that there is a heavy irony in a Minister who refuses to take interventions and to be held accountable for what he says suggesting that nobody should be worried about the details of parliamentary scrutiny, who then cloaks himself in an argument that somehow the scrutiny mechanisms within the European Union were not acceptable?
That is a theme running through the whole Bill. First, Ministers want to take powers for themselves—for the Executive—and away from Parliament. I understand that the Executive in this country is elected, at least in part—that is, down at this end of the building. Secondly, even in the microcosm of this Bill Committee, this is the third part of the Bill on which Ministers have refused to take interventions from the Opposition. They are not prepared to allow relevant scrutiny, which creates an even stronger argument as to why we need protections.
Does my hon. Friend agree that although we hear an awful lot about how terrible the processes were and about these laws being imposed on us, as we discussed at length, we never hear which specific laws the Government object to?
As we do not know, there might be more than 4,000 of these regulations. We would all like lists of the various different types of regulations; I would certainly like to see which of the regulations did not receive adequate democratic process and scrutiny.
In conclusion, all of the arguments that we have heard make it even more important that the Committee accepts these two amendments.
I beg to move amendment 69, in schedule 3, page 33, line 10, at end insert—
“Consent of Scottish Ministers
8A Before making regulations to which this Part of this Schedule applies, a Minister of the Crown must obtain the consent of the Scottish Ministers.”
Amendment 69, tabled in my name and that of my hon. Friend the Member for Glenrothes, simply adds a line to the end of schedule 3 that, in layman’s terms, would prevent the UK Government from acting in areas of devolved competence without the consent of the relevant Scottish Government Minister or Ministers. In previous sessions, we have discussed how the UK Government plan to avoid parliamentary scrutiny by packing Delegated Legislation Committees of this House, and using secondary legislation to dispose of thousands of pieces of retained EU law.
The Minister has heard that we on these Benches are deeply concerned about the lack of parliamentary scrutiny. Although we who work in this Parliament might be concerned, it is completely unacceptable that the Governments and parliamentarians across these islands will be excluded from those Committees and will have to sit and watch us. My hon. Friend the Member for Glenrothes pointed out that they will have to watch as members of a party that has not won an election in Scotland since 1955 push through change after change to legislation in areas that have been—and are—wholly devolved, and which the people of Scotland and its democratically elected Government do not want changed.
It is yet another example of things being done to us, against our wishes, by a Government who we did not elect. I say to the UK Government that amendment 69 is another opportunity to show the people of Scotland that you value their opinion, you respect their Parliament and Government, and you wish to respect the devolution settlement. I urge you to accept this amendment. If you do, then maybe you will go some way to letting the people of Scotland know that you are not coming for our Parliament or our powers.
I urge the members of the Committee to reject the amendment. As they are aware, the Bill contains a sunset date of
The Minister appears to be admitting that the ideological, arbitrary and unnecessary deadline of the end of next year is more important than the basic processes of democracy and of courtesy towards the devolution settlement. Is that correct? Is that what he is saying?
I congratulate the hon. Gentleman and his colleague, the hon. Member for Argyll and Bute, on the mental and political gymnastics through which they put themselves in order to make out that perfectly reasonable, fair, proportionate and devolution-friendly legislation is somehow an affront to the Scottish people and devolution. It takes a particular turn of mind and will to twist everything into a grievance, even when that is not borne out as a reasonable outcome.
The UK Government take into account a variety of factors when seeking delegated powers in devolved areas. Each Bill is drafted according to its specific policy intent and the most appropriate way to effect those policy changes. The powers for the UK Government to make statutory instruments in devolved areas are not new, and have been used across a wide range of policy areas since the advent of devolution. That is because it is often appropriate for the UK Government to amend existing, or introduce new UK-wide regulations, including in devolved areas. That approach is more efficient and ensures greater coherence across the UK, as well as making it easier for our stakeholders.
Furthermore, the amendment would impose on UK Ministers a consent requirement from Scottish Ministers for provisions in areas of devolved competence. As I said, the boundaries are not always clearcut and could give rise to litigation, which might result in regulations being struck down by the courts.
The Bill is not intended to take powers from the devolved Governments and nothing in our proposed legislation affects the devolution settlements. In fact, the powers under the Bill will give the devolved Governments greater flexibility to decide how they will regulate those areas governed by retained EU law in the future. That will enable the Scottish Government to make active decisions about retained EU law within their devolved competence for the benefit of citizens and businesses in Scotland. What a shame that we did not hear any of that reflected in the contribution of the SNP spokesman, the hon. Member for Argyll and Bute.
The Government remain committed to continuing discussions with the devolved Governments throughout the passage of the Bill to ensure that the most efficient and appropriate approach to REUL reform can be taken in every situation in a way that works and provides certainty for all parts of the UK. As I said and do not apologise for repeating, the Scottish Government will be able to make active decisions about retained EU law within their competence. They need to get on with that and not have their representatives in this Parliament making out inaccurately that the Bill makes impositions on Scotland that it does not.
It is nice to see the Minister revert to type. Having been regaled for the past two or three days by someone with a slightly more considered approach, it is nice to see that the Government’s gloves have finally come off. We are getting down to the nitty-gritty of the Bill.
Let us be absolutely clear: this Bill is a full-on attack on the devolution settlement. Coupled with the United Kingdom Internal Market Act 2020, this is an attack on our Parliament and our power. The idea that the Bill is “devolution-friendly” is literally laughable, as he heard from the reaction to it of me and my hon. Friend the Member for Glenrothes.
To be clear, that date of
Despite all the Minister has said, I urge him yet again to accept the amendment. If he does not, however, I will not press it to a vote.
It is not only in their debate style that we have seen a complete contrast between the Minister and his colleague the Minister for Industry and Investment Security, who was in Committee last week. We should remember what the Minister’s colleague said last week about the need for the
If the Minister is concerned that a month’s delay is too long and if the Government are really on top of the problem, as they keep telling us they are, they could send a message to the devolved Governments today to say: “These are the parts of retained EU law that we think have got a direct impact on your devolved powers. We only need to give you a month to decide whether or not to give consent. But because the Government are in control and we know what we are doing, we can give you six months. If you come back in six months and tell us whether you consent, we still have three months to negotiate any differences and then a full three months to put the legislation in place.” That is how the Government would manage the situation if, first, they really were in control and knew what they were doing, of which we have seen very little evidence so far, and secondly, if they really believed in and respected the spirit of devolution.
The spirit of devolution is that there will be different answers in the four different nations of the United Kingdom because there are different needs, different priorities and, as we see, more and more different expressions of political will. On that point, the Minister keeps referring to the suggestion that Government Members understand and respect the will of the people of Scotland. We are prepared to put that to the test at any date of the Government’s choosing. The Government are running away from the will of the people of Scotland.
It is worth spending a little time on schedule 3 because it is the engine underneath the dashboard of the vehicle that will drive us off the cliff edge at the end of next year. It gives the Government the ability to use regulations to carry out the heavy lifting required by the Bill. As we have discussed many times already, we know the potential ramifications of that for the huge range of protections that our constituents currently enjoy and for the lack of parliamentary oversight that there will be in that process.
We have said all this before, but the broad changes that will be carried out under the regulations will mainly fall under the negative procedure. Offering only the affirmative procedure to a small proportion of the changes envisaged by the Bill falls far below the standard of scrutiny that we would expect. When one considers the sheer number of regulations required to make the changes, which we have talked about, and of course the risk that laws will fall by default because the relevant Department has not identified them, the concerns over lack of scrutiny multiply.
Does my hon. Friend agree that what is so critical is that we depend on Ministers knowing what is affected and what is not? I am struck by the fact that the Minister tried to tell us on Second Reading that airline safety rules would not be included and therefore we did not need to worry about the regulations. In fact, subsequent written parliamentary questions have confirmed that the SIs around airline safety were part of the Bill and therefore not contained in the Civil Aviation Act. Does my hon. Friend agree with me that making sure the engine underneath is roadworthy is perhaps one of the most critical things we can do in Committee, given that Ministers themselves perhaps should not be at the wheel?
I think I have got rather lost in the number of analogies there; I might want to pull over and take a breather. The point is that we just do not know the full extent of the Bill. If we do not know, and if the Ministers and civil servants do not know, we cannot be confident that there will be no unintended consequences, which is why the level of scrutiny that the Bill affords is inadequate.
The wider problem is the way the Bill is framed. It seeks to provide the wrong answer to, essentially, the right question—“What do we do about all the retained EU law?”—but I am afraid that the answer we have come up with is wholly inappropriate. It does not uphold principles of scrutiny or parliamentary supremacy; actually, it makes Parliament a bystander in large parts of the process.
I refer to the words of the former Secretary of State, the right hon. Member for North East Somerset. When he was Leader of the House, he said that the frequent use of skeleton Bills, which is what the Bill is, did not
“necessarily provide a model example of how Parliament would like to see legislation brought forward”, and that he would be
“encouraging them to minimise the use of delegated powers where possible”.
I wish he had taken his own advice. In its written evidence, the Bar Council said:
“It is a matter of great public interest that, where it applies, REUL should be as certain as possible. It is also important as a matter of democratic principle—as well as ensuring that replacement legislation in areas of great importance to business and the wider public is effective in achieving its goals—that replacement legislation be carefully considered and properly scrutinised before it is enacted.”
And in its written evidence, the Civil Society Alliance said the Bill
“gives staggeringly broad delegated powers”, as we see under this schedule,
“to repeal and replace parliamentary laws with policy that is subject to little or no democratic scrutiny, introduced at an alarming pace.”
We have already made our position clear. We do not believe that Parliament’s role should be reduced. No doubt Government Members will tell us that that is our way of stopping Brexit. Of course it is not because we have already left the EU—that is a fact. Our position is about how we determine Parliament’s role in shaping the future of this country. One of the reasons people campaigned so enthusiastically to leave was so Parliament—this House—could take back control of its decision making, and that is all we are seeking to uphold with our amendments.
I know Government Members will not be moved by any of my words, given the way votes have gone so far, but will the Minister offer some clarity on a couple of points about the schedule? There is a degree of uncertainty about how Parliament’s sifting procedure will operate. Will the Minister confirm whether the process that will be undertaken will be similar to that used during the enactment of the European Union (Withdrawal) Act 2018? That has some important consequences for the Bill.
The Hansard Society’s evidence contained some interesting comments about the decisions to be made about which Committee is appropriate to undertake the sifting work. It identified two likely options: the European Scrutiny Committee and the European Statutory Instruments Committee.
Were the European Scrutiny Committee to be chosen, it expressed “considerable concern” that that Committee had not operated such a function previously, given that its role is solely focused on EU documents and it has never sifted UK regulations before, so that would be a departure from its current role.
The European Statutory Instruments Committee sifted regulations under the withdrawal Act, but it has traditionally been used to scrutinise deficiencies that are subject to the negative scrutiny procedure. Therefore, it has largely focused on what we might consider dry, technical matters, although perhaps lawyers might be excited by them.
Powers contained in the Bill mean that, under the proposed regulations, the sifting will deal with far more sensitive and politically salient areas of policy, not just dry, technical matters. The process is not about amending a small number of instruments under the negative procedure, but about amending or replacing whole areas of legislation that touch on every part of our lives and determine important protections. Does the Minister consider either of those Committees appropriate to deal with the significant sifting process proposed by the Bill?
The answer is not about which Committee deals with that, but about putting far greater levels of scrutiny into the Bill in the first place. I remind the Committee about some of Minister’s comments from last week. She said she did not want to see changes to the Bill because
“That would disempower Departments, hindering their ability to pursue the REUL reform that they judged to be necessary.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee,
That takes us back to the central point: we are not here to empower Departments. We are here to empower Parliament, to empower the people we represent, and to provide the correct level of scrutiny and challenge that any Government ought to welcome in a democracy. The Minister said this morning that the Bill was designed to provide impetus for the changes that we need. We are not here to provide impetus to Departments that might not be moving as quickly as Ministers would like. We are here to scrutinise and challenge the Government on their decisions. I am afraid that this Bill, whatever way we consider it, makes that challenge harder, which is why we are concerned about the schedule, and the whole Bill.
Schedule 3 specifies how the powers in the Bill will be exercised through regulations made by statutory instrument or the relevant equivalent in the devolved Administrations. The schedule sets out the parliamentary procedure applicable to specific powers in the Bill, including in cases where instruments contain combined provisions using a number of powers. It provides for equivalent procedures to apply in the devolved legislatures and for joint procedures to be available when Ministers of the Crown are making regulations jointly with devolved authorities.
The hon. Gentleman asked about the sifting procedure. The sifting procedure will apply to legislation made under clause 12, the power to restate retained EU law; clause 13, the power to restate assimilated law or sunsetted EU rights, powers, liabilities and so on; and clause 15, powers to revoke or replace, where Ministers decide to use the negative procedure. The sifting procedure largely corresponds with the sifting procedure under the European Union (Withdrawal) Act 2018 and under the European Union (Future Relationship) Act 2020. In both cases, sifting was effectively used to ensure proportionate parliamentary scrutiny on legislation regarding EU exit.
Under the procedure, recommendations on the appropriate procedure from both Committees, in the House of Lords and House of Commons, must be received before the instrument can be made. If either Committee recommends that the instrument should be subject to the draft affirmative procedure, the Minister must either follow that recommendation or publish a written statement explaining why they disagree with the Committee’s recommendations. If no recommendations have been received from the Committees after 10 days, the legislation can be made under the proposed procedure.
The sifting procedure will provide additional scrutiny of the powers while retaining the flexibility of using the negative procedure when and only when there are good reasons for doing so. The Government recognises the significant role Parliament has played in scrutinising instruments subject to these sifting procedures and are committed to ensuring the appropriate scrutiny of any secondary legislation made under the delegated powers in the Bill.