13. Legislative Consent Motion on the Retained EU Law (Revocation and Reform) Bill

– in the Senedd at 6:31 pm on 28 March 2023.

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Photo of Elin Jones Elin Jones Plaid Cymru 6:31, 28 March 2023

(Translated)

Item 13 is next, the LCM on the Retained EU Law (Revocation and Reform) Bill, and I call on the Counsel General to move the motion—Mick Antoniw.

(Translated)

Motion NDM8226 Mick Antoniw

To propose that the Senedd, in accordance with Standing Order 29.6 agrees that provisions in the Retained EU Law (Revocation and Reform) Bill in so far as they fall within the legislative competence of the Senedd, should be considered by the UK Parliament.

(Translated)

Motion moved.

Photo of Mick Antoniw Mick Antoniw Labour 6:31, 28 March 2023

Thank you Presiding Officer. I move the motion.

This Bill has no legislative merit in a modern, responsible parliamentary democracy. Unlike the European Union (Withdrawal) Bill, which sought to ensure legislative continuity and consistency, this is an ideologically motivated discontinuity Bill. It serves no constructive purpose and sabotages years of parliamentary and legislative convention and democratic process. It will not improve the legislative framework or improve legislative understanding and accessibility, rather the contrary. If it continues in its current form it will create confusion and lead to as yet ill-understood and unforeseen consequences. It undermines the credibility and status of parliamentary democracy, placing immense power in the hands of Government Ministers to bypass parliamentary scrutiny and democratic accountability. It is a threat to and undermines devolution. In summary, it is a recipe for legislative chaos. Whatever a person's political perspective—left, right, centre—it makes no difference; this is just a bad, ill-thought-out, authoritarian Bill that discredits Parliament.

Photo of Mick Antoniw Mick Antoniw Labour 6:32, 28 March 2023

(Translated)

In the past months, Welsh Ministers have said time and time again to UK Ministers that this Bill needs to be prevented, or it needs to be significantly changed. But, to date, the UK Government haven't done either of those two things. The Welsh Government disagrees vehemently with the whole intention of the Bill. Generally speaking, we believe that retained EU law works well, as EU law worked well prior to that. Of course, gradual change over time, in the usual way, would make sense. But this Bill creates a rushed process of revocation or removal. It does this in an unacceptable way, without consultation and without real impact assessment, and without appropriate scrutiny of individual pieces of law. It means that pieces of retained EU law will lapse without any scrutiny unless steps are taken to prevent this. This is a waste of important Government and parliamentary time just to keep the crucial things that the Bill would otherwise remove automatically from law.

In the six months since it's appeared, the Bill has created great uncertainty and risk for everyone. UK Government Ministers still haven't clearly stated which pieces of law they want to retain and which they want to revoke. It's possible that UK Government Ministers will remove all pieces of retained EU law by the end of this year. That would have a terrible impact in the light of losing social and environmental measures that are crucial. Rather than that, we should see a more cautious process to review all pieces of retained EU law cautiously. The UK Government should work with other Governments as equal partners in order to ensure that things are consistent across the UK, but we still don't know exactly how this will evolve.

Photo of Mick Antoniw Mick Antoniw Labour 6:35, 28 March 2023

What I can say is that the Welsh Ministers have no desire to amend retained EU law in devolved areas to reduce standards using powers given to us by this Bill. We intend to maintain the protections derived from retained EU law. We will work with the Senedd and build on existing collaboration with stakeholders to address retained EU law as appropriate.

But let me take you through some of the main substantive concerns about the Bill's provisions, as we set out in our original legislative consent memorandum on 3 November 2022. There are a range of measures in the Bill that destabilise and jeopardise the devolution settlement. Firstly, we believe that any powers to amend retained EU law within devolved areas should reside in the first instance with the Welsh Ministers. Where powers under the Bill are exercisable by UK Government Ministers in devolved areas, then this should, as a minimum, be subject to an affirmative consent requirement of the Welsh Ministers in advance, and this should be on the face of the Bill. This is a fundamental point of constitutional integrity, which needs to be addressed as a priority. Any exercise of that power that could see the UK Government legislating in a devolved area without Welsh Ministers' consent would be unacceptable, both to the Welsh Government but also to the Senedd. We have pressed this with UK Ministers. They have declined to agree to this viewpoint, or even to express a view. We continue to pursue suitable amendments to the Bill.

Secondly, the arrangements for sunsetting retained EU law are unacceptable, because they would allow the UK Government to seek to sunset legislation made by the Senedd. Also, the deadline of 31 December 2023 is, of course, totally unreasonable and carries huge risks. Thirdly, if all this work cannot be completed by the sunsetting date, the Bill must give Welsh Ministers powers to extend the deadline in order to avoid undesirable and potentially calamitous gaps in the statute book, just as it does for UK Ministers. It is just constitutionally unacceptable for the Welsh Ministers to have to ask UK Ministers to exercise this power on their behalf.

Finally, as regards the devolution settlement, we cannot accept any scenario where changes in devolved areas could be restricted under the Bill's provisions. At present, there is an unfair and imprecise requirement that changes to retained EU law should not increase the regulatory burden. It is imperative that devolved Governments and legislatures are left to regulate in a way that they see fit, without interference from the UK Government in devolved matters. Any restrictions within the Bill itself or through its wider interaction with the United Kingdom Internal Market Act 2020 that would prevent devolved Governments from being able to change retained EU law to maintain or raise standards would be incompatible with devolution.

More generally, we have further concerns regarding the delivery of the Bill and its wider impacts. Firstly, the Bill is rushed and it creates a large and unwelcome administrative burden for Welsh Government, and creates additional scrutiny work in the Senedd. We are now only nine months away from a huge body of important law potentially being extinguished. It is very disturbing; there is no clear position from UK Ministers on how they intend to use the powers the Bill gives them to retain these provisions. We have such little time, not only to take actions to ensure that retained EU law we want to maintain in devolved areas is preserved, but also to consider the impact of UK Government decisions on our devolved responsibilities.

Secondly, as you know, business organisations, unions and many others have expressed concern about the UK Government's approach, especially the lack of clarity and the rushed timescale. We urge the UK Government to listen to the legitimate concerns of stakeholders who know the regulatory system well. They are keen to maintain its benefits to business, to citizens and to the natural environment, and we as Welsh Government are happy to do so with stakeholder groups in Wales as soon as the UK's position is clear and we know what we face.

Finally, we expect that, where policy is within the scope of devolved settlements and there is an appropriate common framework in place, the UK Government will live up to its commitments and that the inter-governmental mechanism will be fully engaged. I'm sure that the Senedd shares our fundamental concerns about this Bill. Diolch, Llywydd.

Photo of Darren Millar Darren Millar Conservative 6:40, 28 March 2023

I'm very sorry to hear the tone of the Government's contribution on this very important matter, because it seems to me to be nothing more than an attempt to simply try to reopen old wounds—old wounds that were healing—over the issue of Brexit. And I know you want to keep refighting those old battles, but, frankly, you've already lost. The majority of people in Wales—and I know it's an inconvenient truth that you don't like to remember, but—the majority of people in Wales voted to leave the EU, and one of the things that people have expressed concern about was the unnecessary red tape that sometimes the EU foisted upon businesses, farmers and people across Wales. And frankly, it's time to change the narrative. I'm fed up of the scratched record that is the Welsh Government bleating on constantly about Brexit. We need to start being a bit more positive, and to frame it positively—let me be clear about this, because I want to dispel some of the myths that you have further propagated today and which no doubt will be echoed by others in this Chamber later on—the truth is that this Bill will not weaken one iota any of the environmental protections we already enjoy in this country.

In addition, the UK Government has been absolutely clear that it is committed to upholding the current position on workers' rights here in Wales and across the UK. And just to put this into some sort of perspective, let's not forget that we already have better rights than most people across the whole of the EU when it comes to maternity and paternity leave and pay, when it comes to a national living wage and a national minimum wage, and when it comes to the all-important issue of annual leave, which is longer here as a minimum requirement than specified in EU law. I'll happily take the intervention.

Photo of Joyce Watson Joyce Watson Labour 6:42, 28 March 2023

I'm pleased that you're happy to take an intervention. You're trying to assure us, or reassure us, that the UK Government take workers' rights seriously, and yet, when workers were demonstrating against poor pay and conditions, the very first thing they tried to do was remove the right to be part of a trade union and the right to express their feelings. So, if on that premise you think we're going to take that as read, I don't think it's much of a promise.

Photo of Darren Millar Darren Millar Conservative

Look, I know we hear a lot of twaddle in this Chamber, but that was absolute tripe, frankly. The UK Government has not stopped anybody joining a trade union in any way, shape or form, and it's not stopped anybody being able to strike; what it has done is it's set out a very clear route to protecting minimum standards in our important public services that should be upheld from a public safety point of view.

The third thing that, of course, the UK Government has given a clear commitment to do is to take the necessary action in order to safeguard the substance of any important EU laws, so that the legal effects of those obligations under things like the EU withdrawal agreement, for example, can continue to be upheld. Now, the process of reform has already started and is already well under way. Eighteen per cent of EU law has already been reviewed and 18 per cent of EU law has already been retained, revoked or completely reformed. That's the information that's publicly available to everybody in this Chamber on the retained EU law dashboard, which is available from the UK Government for everybody to see. You can see all of the laws there that are being reviewed, the status of each and every single one of them. And I know the Welsh Government wants to just sit on its hands, do nothing and wait until the end of the year, so that it can manufacture a crisis over this. You need to pull your finger out, frankly, and start having a look at the laws that you want to be able to retain, so that you can have a dialogue with the UK Government and make it clear which parts of the EU law are important to you, so that they can make sure that they take those things into account.

We've already, of course, seen some of the benefits discussed in this Chamber of the revocation of some of the EU law in things like procurement. We've been debating procurement this afternoon. We've got huge opportunities as a result of the withdrawal of Wales and the rest of the United Kingdom from the EU as a result of that. So, I want to encourage you: stop being so negative, take a look at the dashboard, have a look, department by department, at the EU law that affects Wales that you want to see retained, make your views clear to the UK Government, and they can then be taken into account. But stop being alarmist, stop the tripe, stop the nonsense.

Photo of Elin Jones Elin Jones Plaid Cymru 6:45, 28 March 2023

I forgot to call the Chair of the constitution committee—I must have a 7.45 p.m. kick-off on my mind. The Chair of the constitution committee, Huw Irranca-Davies.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour

Diolch, Llywydd. Our committee has produced one report on the first three memoranda for this Bill. We weren't able to report on memorandum No. 4 and produce something that could have meaningfully assisted Members during this afternoon’s debate. Whilst this is unfortunate, it is a direct consequence of amendments being made at a late stage to Bills in another Parliament that affect us here in Wales.

Llywydd, our main report clearly identifies where we have reached a whole-committee view, and where we have agreed a position as a majority. But as a whole committee, we have expressed deep concerns about the Bill and the implications for this Senedd, and I want to make clear to the Senedd that this is based on the evidence that we've taken and the legal and constitutional analysis that we've diligently applied. It's also fair to say that this analysis is not unique to us, but is echoed by other authoritative committees in Westminster and in Scotland.

This Bill is not like others. It is severely lacking in providing appropriate and constitutionally acceptable oversight by Parliaments of Government action, and we have concluded that it enables an unacceptable power imbalance between the Executive and the legislature. That should concern us. The Bill presents a real risk that the Senedd will be bypassed on decisions being made in devolved areas. I repeat that: could be bypassed on decisions in devolved areas. And more generally, we are greatly concerned that the Bill would enable Ministers, rather than Parliaments, to significantly alter the UK’s regulatory and legal landscape. And furthermore, we are being asked to sign a blank cheque, because neither the UK Government nor the Welsh Government can successfully and confidently identify what is retained EU law. Just let that sentence sit with you for a moment. So, laws might fall off the statute book without the Governments having even informed the Parliaments that this has happened. We, as the Senedd, would have no way of determining whether this was by accident or by design.

So, let me briefly address a number of recommendations in our report. Recommendation 3 relates to the second sunset date in the Bill, namely 23 June 2026. If this sunset date remains in the Bill, we said that the Welsh Government should, as a matter of urgency, raise with the UK Government the unique issue of the 2026 Senedd election and its conflict with this sunset date. This is a material concern. We welcome the Counsel General’s commitment to do this, and I'd welcome an update from the Counsel General on whether this has been discussed to date.

Recommendations 7 and 8 deal with the UK Government’s dashboard of retained EU law. We’ve said that the Welsh Government should share its own list of Welsh-made retained EU law with our committee and with the UK Government as soon as possible, and that it should request that its list is added to the dashboard. Again, I welcome the Counsel General’s agreement to these recommendations.

In recommendation 9, we have said that the Bill should be amended to require Ministers to lay before the legislatures of the UK by 30 September the details of the retained EU law that they intend will fall on 31 December. There is a key chronology here, I say to colleagues. Now, I welcome the Counsel General’s commitment to pursue this with the UK Government. Again, Counsel General, I would welcome any updates that you might have.

In recommendation 10, we have called on the Welsh Government to ensure that Wales remains compliant with international obligations, as required by the devolution settlement, and, indeed, by the Welsh Government’s ministerial code. And the Counsel General has committed to come back to my committee after further discussion on this with the UK Government.

In recommendation 11, we have asked the Welsh Government to clarify with the UK Government how it will take into consideration the views of the Senedd in respect of changes to reserved retained EU law. And again, I welcome the Counsel General’s agreement to this. In recommendation 15, we said the Welsh Government should assess the Bill’s impact on Wales as a matter of urgency.

And our final recommendation—recommendation 17—said the Welsh Government must set out a frank assessment about the resource and capacity implications for the Welsh Government of implementing the Bill, and identify what legislative activity will be displaced in order to ensure the delivery of the tasks it will need to complete this by the end of 2023. And the Counsel General has committed to provide these assessments.

Members, the Senedd could be confronted with an unprecedented workload this autumn. You will recall that, in September 2022, the Senedd was placed in a difficult situation when the Welsh Government asked Members to approve regulations with known defects because of the imminent switching off of a delegated power in the European Union (Withdrawal) Act 2018. So, with this recent experience fresh in our minds, we believe, as a committee, it's critical that the Senedd is prepared to schedule additional sitting weeks this autumn, and respond with agility should it be needed. We cannot overstate our concerns as to the effect this Bill could have on the certainty and the quality of law as it applies in Wales.

A clear majority of our committee agrees with the Counsel General that the Senedd should withhold its consent to the Bill; not all members of the committee share that view. But, to conclude, I invite the Counsel General to confirm what his plans are for future memoranda and a further consent debate, if the Bill is amended again in the Lords' Report Stage. Diolch yn fawr iawn. 

Photo of Peredur Owen Griffiths Peredur Owen Griffiths Plaid Cymru 6:51, 28 March 2023

In a crowded field, the Retained EU Law (Revocation and Reform) Bill may be one of the worst pieces of legislation to come out of Westminster in living memory. By setting arbitrary and unrealistic time frames for the removal of retained EU law from the domestic statute book, regardless of its actual practical effectiveness, this UK Government has once again prioritised its reckless ideological compulsions ahead of responsible governance. It is ill conceived, impractical, and will cost taxpayers tens of millions of pounds, all because of the Tory party's irrational hatred of anything connected to the EU.

Rushing through the review of retained EU law runs the considerable risk of allowing a wide range of vital regulations on areas such as employment rights, environmental standards, food quality, health and safety, and animal welfare, to simply drop off the statute book without adequate replacement. This is the deregulatory race to the bottom that we all, on these benches, feared Brexit would precipitate. Are these consequences by design or just a good old-fashioned Tory party fiasco? You can make your own minds up about that.

As a matter of principle, Plaid Cymru is wholly opposed to the use of LCMs. Decisions affecting devolution in Wales should always, without exception, be made in full by the Senedd. What are the full implications of this Bill? The truth is we don't know yet. During his appearance before the Secondary Legislation Scrutiny Committee last year, Lord Callanan of the UK Government admitted that the full extent of the Bill would not become apparent before its passing. While the Welsh Government is now undertaking its own exercise to identify Welsh-specific retained EU law, the task will inevitably consume a considerable amount of time, energy and resource that could be far better spent actually addressing the priorities of the people of Wales.

An idea of the scale of the resource implication for the civil service came from the Department for Business, Energy and Industrial Strategy, which admitted spending £600,000 on staffing costs alone in just two months as part of the review of the Bill, despite holding responsibility for only 318 pieces of retained EU law. With this in mind, I would like to know the Welsh Government's current estimate of the resource demands, both in terms of cost and staffing, that arise from the ongoing review of Welsh-specific retained EU law.

Another troubling aspect of this Bill is its concentration of powers in the hands of Ministers at the expense of proper parliamentary scrutiny. This is, of course, apparent in terms of the power dynamic between Westminster and Welsh Government, given the fact that the Bill opens the door for UK Ministers to unilaterally legislate in devolved areas. With good reason, therefore, this Bill can be regarded as further evidence of this Tory Government's centralising tendencies and predisposition for treating the devolved settlement with contempt.

Yet again, taking back control means, in reality, the clawing back of power away from Wales and towards Westminster. So, it's not just the public finances that the Tory Government is seeking to take from us. Although we acknowledge the fact that Welsh Government did not seek these powers in the first place, it is nevertheless essential that the Welsh Government exerts every effort to ensure that the bad practices that have become par for the course for this Tory Government do not creep into our democracy here in Wales.

To close, I ask this: has the Welsh Government made any recommendations to the UK Government regarding the strengthening of Senedd oversight over the powers granted to Ministers through the retained EU law Bill? Diolch yn fawr.

Photo of Rhys ab Owen Rhys ab Owen Plaid Cymru 6:55, 28 March 2023

This has nothing to do with reopening old wounds. There’s nothing to do about not accepting the Brexit result. This Bill is a recipe for terrible law making. It will create uncertainty on what the law is, it will bypass parliamentary scrutiny across the United Kingdom, and it is yet another example of a UK Bill that undermines the devolution settlement.

How on earth does any Government think it’s a good idea to revoke law before even knowing what that law is? By analogy, it’s like me opening a very large statute book, blindfolded, trying to guess that I’m in the right area, and then start ripping out pages of that book and just hope for the best that I’ve revoked the proper law, the right law. And don’t take my word for it: as Peredur Owen Griffiths mentioned, when Lord Callanan was challenged about this, when he was asked how much significant European law would be kept, changed or altered before the Bill is passed, he said he did not know. The UK Government does not know the answer. I have no confidence that this UK Government has thought through the implications of this poor Bill. This is a move driven by ideology rather than by good law making.

The fact, as Huw Irranca-Davies pointed out, that the sunset clause can be delayed until 23 June 2026 shows that the Senedd and its election is totally forgotten or totally unimportant, or both, in Whitehall. Obviously, the date has been decided as some sort of 10-year celebration of Brexit rather than serious law making that shows respect to the devolved legislatures of the United Kingdom.

I’ll go a step further than my colleague Peredur Owen Griffiths when he said about bringing back control. That was a rallying call of Brexit, wasn’t it? Bring back control. But it’s more than bring back control to Westminster; it’s bring back control to the hands of the UK Ministers. It’s not to the national Parliament, but to the UK Government itself. Fortunately—fortunately—there’s been cross-party support across UK Parliaments for greater parliamentary scrutiny. It’s such a shame that the Welsh Conservatives don’t reflect the views of Tory peers at the House of Lords. Does the Counsel General agree with that call, and what steps will he take to strengthen the role of this Senedd to scrutinise the powers exercised by Welsh Ministers?

This Bill is not some sort of niche constitutional argument; it impacts basic human rights. As has been mentioned by colleagues already, important areas in employment law, environmental law and consumer protection, such as hard-fought-for rights to paid annual leave, parental leave and protection against fire and re-hire, could be lost. And again, don’t take my word for it, as the highly respected independent legal charity, the Public Law Project, said this: the Bill’s ministerial powers constitute

'a blank cheque to rewrite or repeal valued rights and protections.'

This isn’t a politically motivated argument from our point of view. This is serious. The UK Government has no idea what they’re doing, no idea of the complex areas they are going into by doing this ideologically motivated move.

Counsel General, a final question: how will the Welsh Government ensure that it complies with its duties under the Equality Act 2010 and protect the rights of the citizens of Wales? Diolch yn fawr.

Photo of Mick Antoniw Mick Antoniw Labour

In closing, Llywydd, I’d first of all like to thank the four Senedd committees who took such an interest in the Bill and have written to me and other Welsh Ministers. I’m particularly grateful to the Legislation, Justice and Constitution Committee for its scrutiny in respect of the LCM and the supplementary LCMs and their detailed report, much of which I agree with, as has already been noted in my response of 9 March.

As I tried to explain, we are in a very undesirable situation not of our own making. As the Welsh Government, we continue to explain to the UK Government what is wrong with the Bill and to seek the most effective changes that we can, and we are still fighting to secure mitigation of some of the worst impacts. I'll update the Senedd if and when there is any progress. Also, as a responsible Government, our priority is to deal with the Bill in order to minimise the damage it will cause to Wales. That point has been made, and I confirm we will do all that we can, as the Bill proceeds through the House of Lords, in terms of representations with regard to the sort of changes that need to be made. Again, I'll continue to share detailed thinking with the Senedd. 

I'll just comment very briefly on a few of the points that were made. To Darren Millar's points: Darren, this is about parliamentary democracy. It's about the bypassing of Parliament, it's about the undermining of Parliament, and it's about putting powers into hands of Ministers with no accountability or scrutiny. I'm sure you all agree deep down that you know that that is undemocratic. 

Photo of Darren Millar Darren Millar Conservative

It is important that we have parliamentary democracy and that things are properly scrutinised. This piece of legislation, of course, is being scrutinised by the UK Parliament, in which there are 40 Members sent from Wales. But I did not hear, at any point, while we were members of the European Union, any complaint or gripe about the fact that you were not able to scrutinise much of the Commission's law making, which was impacting on the people of Wales. Why is it that you have a different attitude now, even though the UK Parliament is able to scrutinise matters?  

Photo of Mick Antoniw Mick Antoniw Labour

First of all, with the EU legislation, of course, there was scrutiny and it was scrutinised within Parliament. But secondly, the point that we particularly make here is that all this legislation is not going to be scrutinised by the UK Government, it is giving authoritarian powers to UK Government Ministers, and, indeed, to Welsh Ministers, and that has got to be unacceptable. It is certainly not taking back control. This is what David Davis, Brexit campaigner and former Brexit Secretary, said:

'we are being asked to sign a blank cheque—one might almost say a pig in a poke—because we do not even know how many pieces of legislation are going through on the back of this Bill, let alone what they are. That, of course, is not democratic.'

You said the UK Government have already looked at 18 per cent of the Bills. What about the remaining 3,800 pieces of legislation that no-one has a clue what they mean, what the contain and how they will be relevant? That has to be done by the end of December.

In respect of the comments made by Rhys ab Owen and Huw, I have, of course, given detailed responses in writing to the Legislation, Justice and Constitution Committee, and I will, of course, no doubt give further sessions. But, of course, one of the concerns we do have is the impact all of this will have on our own legislative capacity, on the demands that will be on the Senedd. I have to say that the task, as expressed by the Welsh Government and by the Scottish Government, is an almost impossible task, and that is also something that is recognised in Parliament. 

Photo of Mick Antoniw Mick Antoniw Labour 7:03, 28 March 2023

(Translated)

Unfortunately, whatever changes we have requested to date, there is no sign from the UK Government that they will be accepted; they don't seen to be open to making significant changes. Without changing direction entirely, I can't see any version of this Bill that the Welsh Government could recommend that the Senedd consent to it. Therefore, Llywydd, I ask Members to reject consent for this Bill.  

Photo of Mick Antoniw Mick Antoniw Labour 7:04, 28 March 2023

I therefore ask Members to withhold consent for this Bill. Diolch. 

Photo of Elin Jones Elin Jones Plaid Cymru

(Translated)

The proposal is to agree the motion. Does any Member object? [Objection.] Yes, there is an objection, therefore I will defer voting under this item until voting time.

(Translated)

Voting deferred until voting time.