Retained EU Law (Revocation and Reform) Bill

Committee (3rd Day) (Continued)

Amendment 32

32: Clause 1, page 1, line 7, leave out subsection (2) and insert— “(2) Subsection (1) does not apply—(a) to an instrument, or a provision of an instrument, that is specified in regulations made by a relevant national authority,(b) where an instrument, or a provision of an instrument, is being replaced, restated or reproduced, until one month after the replacement instrument has been laid before both Houses of Parliament, or(c) where an instrument, or a provision of an instrument, is not being replaced, restated or reproduced, until one month after a Minister of the Crown has made a statement to that effect in each House of Parliament.(2A) Where subsection (2)(b) or (c) applies to an instrument, or a provision of an instrument, and both Houses of Parliament resolve prior to the date in subsection (1) that the instrument be retained, then the Government must make regulations under subsection (2)(a) specifying that instrument.”Member's explanatory statement This amendment would require the Government to set out in advance what they propose will happen to each instrument covered by the sunset Clause, giving Parliament the ability to scrutinise these decisions. It would also allow Parliament to overrule the Executive and choose to retain specified instruments if both Houses agree.

My Lords, I feel like Henry V before the siege of Harfleur. Looking around, I see:

“greyhounds in the slips,

Straining upon the start”.

Just like those poor chaps outside Harfleur, I suspect your Lordships all want it to be over quickly, and that is my intention.

This amendment is very simple. It is my answer to the letter I received from the Government about the Bill which I read out to the Chamber at Second Reading. It does not seek to preserve a single law, in any of the 4,000 pieces of material we are looking at, which Parliament wishes to revoke. Equally, it does not seek to revoke a single law which Parliament wishes to retain. It has nothing to do with that. Its objective is to ask that Parliament has a chance to look at what is proposed and to examine those proposals, not for a very long time, so that Parliament and not the Executive can decide.

If this amendment, or any of the amendments in this group, had reflected the statute in draft—the Bill, in other words—most of the arguments we have had over however long it has been would have been quite unnecessary. Maybe an amendment of this kind would have achieved that; I am not particularly supporting my own but all the amendments in this group.

Let us just go back. Probably the most persuasive argument against joining the Common Market in 1972 was that it gifted power over our legislative processes to an institution which was not wholly elected here and was not answerable exclusively to the electorate in the United Kingdom. That argument was rejected and lost, and the result is that, through the processes which we supported, we have been subject to laws directly enforceable here in the United Kingdom, created by a system of directions from the Common Market—now the European Union—which were converted into unchallengeable statutory instruments. As we now know, there are something like 4,000 still extant.

Given the time available, I will not explain what a pernicious effect all that had on the way in which statutory instruments have taken over primary legislation. But, importantly—I am stating the obvious, yet it is overlooked from time to time—what we call EU retained law is British law. It is our law; it came from an outside source and was introduced here to be enforced here, through our statutory and parliamentary system, but it is our law.

I cannot begin to imagine how the country as a whole would react if, instead of being able to dismiss it as EU retained law, we were able to look at this problem: we are going to give the Government the power to revoke all the laws relating to the environment and to employment—all the issues argued about in this House. Having done that, we will give them the power to bring in new ones, changing the way in which they operate. If we did not have this disguise of “EU retained”, I venture to suggest that no Government would be doing what this Government are doing about this particular group of laws. Until we appreciate that we are dealing with our law, which is subject to this Bill, we are not facing the reality of it.

My Lords, I will speak to Amendment 141A in my name, which has cross-party support, for which I am most grateful. Noble Lords in all parts of the Committee have been fiercely critical of the cut-off date. However, even if the present draconian date is replaced with something a little saner, the task of assessing and taking decisions on so many instruments will be huge.

My amendment, like several others in this group, as the noble and learned Lord, Lord Judge, has remarked, is designed to give Parliament a say in that process. As many noble Lords on both sides of the issue acknowledge, some of these instruments will be of no great significance. But there will be many of much greater weight, whose survival, whether in their original or an amended form, will be of huge importance to our fellow citizens. There will of course be instruments, as the noble Lord, Lord Deben, pointed out in his lapidary intervention on the first day of Committee, whose survival unamended will be almost a matter of course because we would not want to get rid of them—nobody would.

In this group, Amendments 43, 50, 62A and of course the amendment we are now specifically debating seek to give an active role to Parliament in an otherwise Executive-dominated process. My amendment goes a little further in providing for a substantial parliamentary assessment—including whether there has been adequate consultation—and for a process of suggested amendment, as part of what one might call this triaging activity. It does not deal with the unannounced repeal, which is a real problem. It could easily be adapted to do precisely that on Report, if that were acceptable. Of course, the amendment of the noble and learned Lord, Lord Judge, does that.

I have long felt that attempting to regulate proceedings in Parliament by the vehicle of statute ends in tears, and I am grateful to the Public Bill Office for keeping me on the straight and narrow in this case. But noble Lords will see that the amendment bites only if the two Houses wish to set up a Joint Committee to undertake the sifting process, leaving that to exclusively parliamentary decision. The operational details are also left to Parliament. I happen to think that you would need a very big Joint Committee because, in the time available, whether it is longer or as expected now, you would need sub-committees to deal with subject areas or particular parts of the activity.

If the committee were set up, it would judge whether there had been a substantive change to preceding EU law and whether there has been sufficient public consultation upon the instrument containing the change. This triaging process has much to do with the recent recommendations of the Hansard Society in its report on delegated legislation—I declare that I am a member of its panel on delegated legislation.

I will mention one further feature of the amendment, which relates to the handling of amendments proposed to an instrument. I would expect such amendments to come from the Joint Committee, but there is absolutely no fundamental reason why they should. There are some points of contact with the legislative reform procedure, which is typically very lengthy. But I note that there are time limits in Amendment 50 that seek to address that problem.

It is important to recognise that this amendment does not provide for amendable SIs, as they are generally known. I have no wish to establish a category of quasi-Bills, subject to all the apparatus of reaching agreement between the two Houses. In Committee, I make no apology for now saying that the amendment is somewhat rough-hewn, and I hope that Ministers will address its policy aim, rather than focusing on any drafting issues. If the amendment returns on Report, whether or not elements of it might be combined with amendments tabled by other noble Lords, it will reflect the wisdom of noble Lords expressed in this debate.

My Lords, as well as producing a helpful amendment, the noble Lord, Lord Lisvane, produced a helpful phrase: “unannounced repeal”. That neatly gives a focus to what we are talking about: the washing down the plughole of things that have not been announced or discussed, without the involvement of any parliamentary process specific to them, beyond the Bill itself.

I support the amendment of the noble and learned Lord, Lord Judge. In all the discussions when he and I were members of the Constitution Committee of this House and we considered the EU withdrawal Bill, I do not remember anyone saying, “What will happen is that we’ll set a very short timetable, and everything will have to be dealt with by extra-parliamentary processes during that short period”. We had many discussions with senior judges and others, and the assumption was that law would be moved over—or assimilated, to use the Government’s preferred phrase—into UK law and then dealt with as time and necessity required. Some things would be changed quite quickly because they needed to be updated, but others were doing no harm and could be dealt with later. My feeling was that obsolete or irrelevant things would best be dealt with by something like the Law Commission process, which goes through legislation, identifies what does not need to be on the statute book any more and brings in legislation that deals with it. There were perfectly good procedures available to us by which we could have done that. Instead, we have this fierce timetable.

I therefore support the aims of Amendment 141A, which would create a sifting process, just as I support the aims of Amendment 32. As I said, Amendment 32 is significant because it deals with the unannounced repeals. It is bad enough having inadequate parliamentary processes to discuss those measures which will replace or modify retained European law; I think we all know how limited and inadequate the processes are. Although I agree with the noble Lord, Lord Lisvane, that amendable statutory instruments are a difficult route to go down, there are a few occasions when it happens—but it is really quite difficult. That suggests again that primary legislation should be the vehicle for making significant changes which we probably would never have made by secondary legislation if we had been doing it ourselves rather than being part of a European process. I say in passing, however, that occasionally discussions about how this European legislation was created slightly ignore co-decision in the work of the European Parliament, which is surprising given that the Minister was himself a Member of the European Parliament.

It was Tuesday.

Was it Tuesday? The dates of this Bill are becoming a blur in my mind.

The noble Lord, Lord Benyon, said:

“Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it”.—[Official Report, 28/2/23; col. 205.]

He repeated that later in the proceedings, and I think we were all pleased to hear it, particularly as it related to environmental legislation, public health and other important things. It was a very significant thing he said, but it is not how the Bill is constructed; the Bill is constructed to make it so easy to repeal the legislation that a Minister does not really have to do anything other than not put it in the box marked “reform” or “reintroduce”. I would like to feel that the attitude taken by one Defra Minister will not only be supported and reinforced by the Leader of the House and others on the Front Bench but might start to colour the attitude of other government departments as they see how undesirable it is for law to be removed or dispensed with at the whim of Ministers or simply because everything goes that way unless selected otherwise. This is not an acceptable way to proceed.

My Lords, I will speak to my Amendment 44. I am grateful for the explicit support of the noble Lord, Lord Kirkhope, who apologises for having had to leave for an engagement in the north.

About three weeks ago, I stepped from the golden sands of the Cross Benches into my first meeting of the Delegated Powers and Regulatory Reform Committee. I pay tribute to the noble Lord, Lord McLoughlin, for his objective and clear chairing of that committee, which I found very helpful as a newcomer. The first meeting that I attended took me straight into constitutional quicksand, rather than golden sands, in which I was looking at provisions which seemed to do the exact opposite of what we were told was the purpose of Brexit. The report of the Select Committee, which I recommend strongly to noble Lords, is clear that much of the Bill is nothing else than a dilution of parliamentary scrutiny and, therefore, a dilution of parliamentary democracy itself.

I hope that this debate will not develop into a discussion about whether we should have Brexited or whether we should remain, because that is not my intention at all. For me, this is a debate about what Brexit is intended to achieve and whether we are achieving it in a way that is consistent with parliamentary practice—a key part of our constitution. As I recall, the slogans of Brexit were undeniable. I overheard one about “bringing our democracy home”. However, the Bill actually sends our democracy from this building to the intellectual suburbs, where it will not be part of our law-making process. My Amendment 44, which is a probing amendment, is an attempt to show how easily a solution can be reached which does not dilute our democracy. To devise Amendment 44, I reached into my metaphorical bathroom cupboard and pulled from it the sharpest, but non-existent, instrument: what somebody else called Occam’s razor. That is the principle by which you look at a complicated problem and see if there is a series of simple solutions; you usually find that they are much the best way of solving that problem.

My Lords, I have two amendments in this group, of which Amendment 62A is the key one. It covers much the same ground as that of the noble Lord, Lord Lisvane. It would bring this whole process back under parliamentary scrutiny by establishing a Joint Committee of both Houses which would do the review that we understand is currently taking a lot of the time of civil servants in Whitehall: their work would be absolutely germane to the work of this committee. My Joint Committee is similar to that proposed by the noble Lord, Lord Lisvane; the only substantive difference is that my amendments in this group are actually remnants of a rather more ambitious original intention—namely, to delete all the first three clauses of the Bill and establish, right from the beginning, that this was a parliamentary process, not a process by the Executive alone. I still think there is merit in attaching this concept right at the beginning, before we go into more detail.

The other amendments in this group all attempt to bring some control back to Parliament. My noble friend Lady Chapman and the noble and learned Lord, Lord Judge, wish to clarify what laws fall into which groups; then we would have a process for dealing with them systematically—through the Joint Committee, in my view, in the first instance, and then being brought back, with that Joint Committee’s recommendations, to Parliament. Of course, it is not intended that that would preclude any other initiative by the Government. If the Government wish to do this more urgently, they have every right to bring legislation, either in the form of an Act or a statutory instrument, in the normal way. The Government have raised the issue of reviewing the totality of anything that has any smell of Europe about it but, if that is what they intend, let us do it in a parliamentary way.

I just want to recall two episodes of history which might perhaps remind those who oppose departing from the Government’s view of this. The first is relatively recent. In 2018, when we were still in bitter post-Brexit arguments, many of us nevertheless accepted that we had to clarify the position of European-derived law in this House and in Parliament as a whole. We accepted the suggestion of the Government that they would make clear that EU law that had been accepted during the 50 years of our membership of the European Union and its predecessors would be part of UK law. We did not realise at the time that it was not quite the same as the rest of EU law. The reasons we accepted it were, first, that we needed some stability, for business and other elements of society, immediately following the completion of Brexit; and, secondly, that the Government needed a bit of time to consider how they would deal with that law—whether they wanted to change it, amend it or revoke it. We never contemplated, at that time, that we would have a process that completely departed from normal practice in Parliament and effectively put so much power into the hands of Ministers. That power, if it were through a statutory instrument, would be subject to only minimal scrutiny—but perhaps more importantly, and equally or rather more worryingly to parties outside, is that a whole chunk of what was European law, and is now deemed to be retained EU law, could actually fall in less than 10 months’ time, without any discussion whatever in this House or another place. That also needs to be dealt with at this stage. We need to delete the sunset clause for the end of this year and, if people think it is necessary to have an eventual sunset clause, then let us accept what the noble Baroness, Lady McIntosh, was arguing in our last sitting.

My Lords, I have put my name to two amendments in this group: Amendment 32 tabled by the noble and learned Lord, Lord Judge, and Amendment 141A tabled by the noble Lord, Lord Lisvane. I have done so because, if the Government were to accept them, they would significantly enhance the ability of Parliament to scrutinise the legislation arising out of this Bill more effectively. They would do so by introducing for the first time the beginnings of a triaging system, which would enable the House to focus its efforts on those probably relatively fewer bits of legislation that really matter and ignore the rather larger number that do not.

My noble friend on the Front Bench has taken a lot of “incoming” over the past couple of days. I have some sympathy with the conflicting advice he has been given. If I were to distil what he has been criticised for, I would say that the concerns about the Bill relate to uncertainty about the Government’s approach to specific policy areas on the one hand, and the lack of parliamentary involvement on the other. These two amendments—and indeed some others in this group—would go a long way to answering those criticisms and concerns. I hope my noble friend will listen carefully to the arguments being put forward, because he might catch the sound of the cavalry arriving to bring some help to his rather beleaguered post.

We have heard a magisterial speech from the noble and learned Lord, Lord Judge, on Amendment 32. I am not a lawyer, and in such circumstances, to try to add to a speech made by a past Lord Chief Justice would indeed invite an accusation of hubris. Therefore I hope that Members of the Committee will come with me, if not into the weeds then into the grass—the long grass—and explore on a more practical level what I believe these amendments will achieve, how important they are in ensuring that Parliament is not taken for granted, and how they will lead to a greater level of public acceptance of the implications of particular policy choices, so reducing disconnect between the governors and the governed. Finally, in consequence of all this, I will explain why I hope my noble friend on the Front Bench and the Government will give very serious consideration to what the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, have proposed.