Retained EU Law (Revocation and Reform) Bill

Commons Amendments and Reasons

Motion A

That this House do agree with the Commons in their Amendment 1A.

1A: Leave out subsections (1B) to (1D)

My Lords, in moving Motion A, I will also speak to the other Motions in this group. It feels very recent that we had Third Reading on the Bill, as the other place has returned it remarkably quickly.

Motion A covers this House’s Amendment 1. The original amendment was to require a Joint Committee to consider the revocation list and to arrange debates in both Houses with respect to anything that represented a change to the law before the legislation on it could be revoked. I thank the noble Lords who sponsored this amendment for not pushing it again today.

Motions B and B1 cover the Commons disagreement to Lords Amendment 6. I sympathise with the amendment proposed by the noble Lord, Lord Anderson, in lieu of Amendment 6 on its intent to help establish legal clarity. Indeed, one of the main purposes of the Bill is to simplify the statute book. However, in my view, such an amendment is not necessary. The amendment seeks to clarify that the new clause “Retained EU law dashboard and report”, inserted by Lords Amendment 16, will include those rights, powers and liabilities referred to in Section 4 of the European Union (Withdrawal) Act 2018. I am happy to reassure the noble Lord, Lord Anderson, today that the Government intend to ensure that rights, powers, and liabilities referred to in Section 4 of the 2018 Act will be included in future dashboard updates and accompanying reporting. The Government will include those rights, powers and liabilities that they have explicitly codified or intend to codify, as well as those they have decided not to codify because they are no longer fit for purpose. I hope that this provides the necessary clarity around which matters, originally retained under Section 4 of the 2018 Act, will be codified into domestic law. I thank the noble Lord for his valuable and collegiate engagement on this matter. I hope that this commitment provides him with the reassurance he is looking for and that he therefore will not press his Motion.

Turning to the Motion to amend the drafting of what was Amendment 16, I know that many noble Lords have strong views on Amendment 16 and the Motions concerning it. The other place inserted further measures to strengthen the reporting requirements and to ensure that the Government inform Parliament of their progress on using the powers in the Bill and their forthcoming plans on a more frequent basis. The Motion in my name therefore simply tidies that drafting and, on that basis, I hope that the House is able to support it.

Finally, I call on the House to reject the amendment proposed by the noble Lord, Lord Anderson. The Government recognise the significant role that Parliament has played in scrutinising instruments and are committed to ensuring the appropriate scrutiny under the delegated powers in the Bill, including any instruments made under the powers to revoke or replace. This amendment would impose a novel and untested scrutiny procedure on regulations proposed to be made using the powers to revoke or replace. This novel approach is, in our view, simply unnecessary.

My Lords, I will speak to Motions B1 and E1 in my name in this group. Having heard the Minister, I can be brief on Motion B1, which concerns a sometimes-neglected part of the Bill. Clause 3 is headed “Revocation of retained EU rights, powers, liabilities etc”. That clause is unaffected by the Government’s concession on the sunset and continues to provide for all directly effective provisions of EU law—whether they are found in the treaty, in directives, or in international agreements—to be revoked at the end of the year. My concern in tabling this amendment has been to know precisely what is being revoked and what will be proposed by way of replacement.

To that end, Motion B1, which builds on the helpful amendment originally proposed by the noble Baroness, Lady Noakes, seeks a guarantee that the directly effective provisions will be fully included in dashboard updates, as they have not been to date, and that the Government will give us clear warning in advance of those which they intend to carry over into our law and those which they may have decided not to carry over.

Unpicking provisions so deeply embedded in our law will not be a simple business. I declare an interest as a lawyer who sometimes needs to advise in this area. Such a commitment will be helpful to anyone who needs to understand what our law provides and how it is intended to be changed. I am grateful to the Minister and the Bill team for their constructive engagement on this issue, and for the clear commitments that he has just offered. In the circumstances, I am confident that I do not need to trouble the House with a Division on this issue.

Motion E1 is of a constitutional nature and concerns what, to some of us, has always been the most troubling feature of the Bill. It is nothing to do with the dashboard, direct effect or even the end-of-year sunset. It is rather the delegated superpower, headed “Powers to revoke or replace”, which currently appears as Clause 14. I remind the House of its most remarkable feature, subsection (3), which states:

I say “laws” because the measures whose replacement is authorised by this clause are no ordinary regulations concerned only with matters of detail. They include major instruments of policy, often arrived at by codecision between the Parliament and Council of the European Union—the equivalent in our system of primary legislation. They take the form of regulations only because of Section 2(2) of the European Communities Act, which was itself a prime target of Brexit, ironically, because it stripped sovereignty from our Parliament. The seriousness of what is proposed—permission to amend by statutory instrument numerous laws, in many fields, with the quality of primary legislation—is no doubt why, today, organisations from the RSPB to the TUC and the Law Society have come out in favour of this amendment.

The amendment contains an exceptional power, as the Minister said, but it is designed for exceptional circumstances. A Commons sifting committee would have the power to identify proposed regulations that are particularly deserving of parliamentary attention—perhaps because they are so substantially different from what went before, or because consultation or an impact assessment is lacking. Both Houses of Parliament could then agree on amendments—not an unprecedented power but one modelled on Section 27 of the Civil Contingencies Act 2004. This power would not be a precedent for the routine amendment of statutory instruments, any more than the Civil Contingencies Act has proved to be. Both these laws are in the same wholly exceptional category because both confer the power to make regulations on subjects that would normally be appropriate only for primary legislation—emergency powers in one case, and the unique circumstances of our departure from the EU in the other.

The precursor to this amendment, tabled by the noble and learned Lord, Lord Hope of Craighead, and signed by me and the noble Lords, Lord McLoughlin and Lord Hamilton of Epsom, was carried by a majority of 64. It did not meet with favour in the Commons, although there were some interesting speeches from the Conservative Benches there. We have listened and come up with something more modest. Its scope is limited to the one clause I have identified—not three clauses, as previously—and the sifting committee will be of the Commons only, not a Joint Committee. There is ample reason, I suggest, to ask the Commons to think again about what we meant when we took back control and whether the Commons is really willing to write itself out of the script, as the Bill would allow.

I only wish that this speech could have been made by the noble and learned Lord, Lord Judge. It would have been half as long, twice as amusing and four times as persuasive. So I end by recalling that, at the last Queen’s Speech, the noble and learned Lord asked, on his favourite subject of delegated powers,

“what is the point of us being here if, when we identify a serious constitutional problem, we never do anything about it except talk?”—[Official Report, 12/5/22; col. 130.]

It is time to act, and I propose to do so by testing the opinion of the House.

My Lords, I will very briefly support what the noble Lord, Lord Anderson, said. I agree with all of his detailed arguments, which were extraordinarily well put.

I will focus on two general points. First, in principle, I am very much in favour of increasing the control of Parliament over the legislative powers exercised by the Government. That is increasingly the case because Governments of all stripes are increasingly using secondary legislation to make very substantial changes to our laws. I want to see much greater parliamentary control.

Secondly, and differently, this issue goes to the amending power included in subsection (3) of the proposed new clause—I am very much in favour of that. For the many years I have been in Parliament, I have been deeply troubled by our inability to amend secondary legislation. What is being proposed by the noble Lord, Lord Anderson, is a mechanism; it may be rather a tricky one to use, but I hope it will be a precedent. It is one that I strongly support, because it is important for this House and the House of Commons to be able to amend statutory instruments. So if the noble Lord moves his amendment to a Division, I shall support it.

My Lords, I too strongly support what the noble Lord, Lord Anderson, and the noble Viscount, Lord Hailsham, said. I cannot resist telling the House that I am chairman of the Ecclesiastical Committee, and some years ago the most reverend Primate the Archbishop of Canterbury was discussing a measure that was coming through our hands before going to Parliament, which had a clause that would allow the General Synod to make almost any changes to any law in England. We pointed out gently that it would not get through Parliament. Dear, oh dear, what are we talking about today? I would not have been quite as gung-ho about what could not happen in Parliament if I had come across this Bill and, I have to say, the Illegal Migration Bill.

The point that the noble and learned Lord, Lord Judge, was making about delegated powers—I remember that speech very well—is one that I am delighted the noble Lord, Lord Anderson, has taken up. The noble and learned Lord, Lord Judge, was saying that there will come a point when we will actually vote against secondary legislation—and maybe the time is just beginning to come. If we end up with having no power in Parliament, in either House, to decide whether laws that are different from those we have can be argued in either Chamber, what is the point of us being here? Consequently, I do feel that the House should support the noble Lord, Lord Anderson.

My Lords, I thank the noble Lord, Lord Anderson, for the work he has done on Motion B1 with the listing of powers, rights and liabilities. I note that he will not press his amendment because he has got it to the point of getting a pledge from the Government.

Perhaps I might ask the Minister what the timescale is for putting these on the dashboard, because they are not currently on the dashboard. The last time they were searchable on the dashboard, only 28 rights, powers and liabilities were listed. They did not include, for instance, Article 157 of the Treaty on the Functioning of the European Union, which, as all noble Lords know, concerns the right to equal pay for equal work; it goes further than the Equality Act 2010 and is an absolutely crucial instrument for equal pay. They also did not include Article 6.2 of the habitats directive, which imposes an obligation to take appropriate steps to avoid the deterioration of habitats. Those are two examples of key rights and powers that need to be on the dashboard, and there must be many more. Can the Minister tell us how many he thinks will be listed and by when?

My Lords, I am delighted to support Motion E1 in the name of my noble friend Lord Anderson of Ipswich. At a time when there is increasing concern about the balance between Parliament and the Executive, I was rather surprised that the elected House rejected the idea of a Joint Committee to sift proposals, which might well be of disadvantage to their constituents. I was also surprised—perhaps “saddened” might be the better word—that the Government saw fit to take that view of the amendment in the Commons. This Motion, as my noble friend outlined, returns to the charge, but provides a Commons-only Select Committee—a sifting committee—rather than a Joint Committee.

There has been much talk about amendable SIs. It may be part of the Government’s case, or be seen by the Government as strengthening their case, to portray them as a whole new category of legislative procedure, where SIs become like mini-Bills, with all the complications that would ensue.

Much as I appreciate the noble Viscount’s wish that these would be broad, sunlit uplands, I do not think that this is the case in this instance. As far as I am aware, there are only two examples of statute providing for amendable SIs, via Section 1(2) of the Census Act 1920 and Section 27(3) of the Civil Contingencies Act 2004. SIs under either of those Acts are truly amendable because, if an amendment is approved, it becomes immediately effective.

What this Motion proposes is a little different; it is much closer to the super-affirmative procedure applied to legislative reform and regulatory reform orders, which does not seem to have frightened the horses in either House. There is a difference, yes, because in that super-affirmative procedure it is a matter of discretion as to whether the Minister accepts the advice of the sifting committee as to amendments that might be made. Commons Standing Orders 141 and 142 provide for that difference of opinion between the Minister and the sifting committee. The Motion before your Lordships would remove that ministerial discretion—but I find it hard to see how allowing the two Houses to take the decision would be such a dreadful thing, unless of course the Government see it as infringing upon the prerogative of the Executive, which would confirm the worst fears of many.

I congratulate the noble Lord, Lord Anderson, as did the noble Baroness, Lady Ludford, on the work that he has put into this. As he knows, I supported the original amendment and put my name to it, and I congratulate him on all the work that he has done since. I totally sympathise with all the sentiments that everybody has expressed. It is most regrettable—and I say this as somebody who campaigned to leave the EU—that we took the very undemocratically imposed EU law given to both Houses of Parliament, which we could neither amend nor reject, and now we are replacing that by giving that power to the Executive through statutory instruments under the negative procedure, which means that we cannot amend them or do anything about them at all. I do not think that that was what people voted for when they voted to leave the EU; I think that they wanted to restore parliamentary sovereignty, and this does not do it.

Having said all that, we are a revising Chamber; we asked the Commons to think again; they have thought again. It is a matter of regret to me that I have not even persuaded my leave colleagues in this House to support the amendment, let alone in the other place, and I do not think it is our job to play endless ping-pong. The House of Commons is elected; it has spoken, and I think we should go along with what it says.