Retained EU Law (Revocation and Reform) Bill Consideration of Lords
message After Clause 16 Environmental protection 3.39pm The
Solicitor General (Michael Tomlinson) I beg to move, That this
House disagrees with Lords amendment 15B. Mr Speaker With this it
will be convenient to discuss the following: Government motion not
to insist on amendment 16A, and Lords amendment 16C in lieu. Lords
amendment 42B, and Government motion to disagree....Request free trial
Retained EU Law
(Revocation and Reform) Bill
Consideration of Lords message
After Clause 16
Environmental protection
3.39pm
The Solicitor General ()
I beg to move, That this House disagrees with Lords amendment
15B.
Mr Speaker
With this it will be convenient to discuss the following:
Government motion not to insist on amendment 16A, and Lords
amendment 16C in lieu.
Lords amendment 42B, and Government motion to disagree.
The Solicitor General
It is an honour once again to open a debate on this landmark
legislation, which we are now very close to passing. We are fully
taking back control of our laws, and we are ending the supremacy
and special status afforded to retained EU law.
As you explained so clearly a few moments ago, Mr Speaker, there
are three motions before the House this afternoon. Let me first
speak briefly about the reporting requirements in Lords amendment
16C—and let me also be the first to congratulate from the
Dispatch Box my hon. Friend the Member for Stone ( ) on being made a Companion of
Honour. I thank him for the work that he did on this amendment,
alongside . It is, of course,
important that we continue to update Parliament on our progress
in reforming retained EU law, and that is exactly what we as a
Government are committed to doing with clause 16. I can reassure
my hon. Friend that Lords amendment 16C is only a drafting tweak
and the substance is exactly the same as what was tabled by him
and supported by so many other Conservative Members, and I ask
the House to agree to this final tweak.
Let me now turn to the parts of the Bill on which we have not
managed to reach agreement with those in the other place. I will
begin with Lords Amendment 42B. I am sure that many Members
present will have followed their lordships’ debate closely.
However, the Government have not just followed the debate;
leading from the front, my right hon. Friend the Secretary of
State for Business and Trade has worked to find solutions on the
sunset provision to resolve concerns about references to higher
courts. As I have already mentioned, we are committed to updating
Parliament regularly on the progress of reforms.
It is clear that we have accommodated many of their lordships’
wishes, but I respectfully suggest that now is not the time for
their lordships to insist on a novel and untested method of
parliamentary scrutiny on the reform powers in the Bill. It has
been asserted that the Lords amendment has a precedent in the
Civil Contingencies Act 2004, but in fact those powers have never
been used. Let me be clear: it is not the Government’s intention
for the powers in the Bill to languish on the statute book. My
right hon. Friend the Secretary of State has already made the
first announcement on regulatory reform and how we intend to
reduce burdens for businesses and spur economic growth, and that
is only the beginning of our ambition.
(Brighton, Pavilion)
(Green)
Will the Solicitor General give way?
The Solicitor General
I should be delighted.
Mr Speaker
Order. May I just say that I was very sorry to hear the news that
the hon. Lady will not be standing in the next general
election?
Thank you very much, Mr Speaker.
May I put it to the Minister that it is a bit odd to object to
something simply because it will be a novel procedure? Everything
is novel once. If we are to improve the effectiveness of
Parliament, surely some novel procedures are precisely what we
need.
The Solicitor General
May I express exactly the same sentiments as you, Mr Speaker? I
know that the hon. Lady’s campaigns will continue outside the
Chamber, and I know that she will have plenty to offer between
now and the election in any event, not least during this debate.
However, I disagree with what she has said, not just because the
procedures are novel, although they are. I followed the debate in
the Lords very closely, and it is fair to say that it is accepted
that these are new measures, but they are also unnecessary, and
this is why.
The amendment would unreasonably and unnecessarily delay our
important reforms. It would introduce what my right hon. and
learned Friend the Member for Kenilworth and Southam (Sir ) termed “extra friction”
during our previous consideration of Lords amendments. He was
right to say that, and right to say that the amendment would
delay the meaningful reforms that can now be achieved as a result
of Brexit. I do not believe that the public would accept those
delays, and nor, in my view, should we.
(Walthamstow) (Lab/Co-op)
Will the Solicitor General give way?
The Solicitor General
I will give way to the hon. Lady, because that will give her an
opportunity to apologise for getting the Government’s position on
pension reforms so wrong.
I hope that the Solicitor General will speak to his colleagues in
the Department for Business and Trade, who made it clear in
Committee on, I believe, 22 November that they were intending to
abolish the Bauer and Hampshire judgments. Perhaps he will ask
his colleagues to amend that, rather than suggest that I was
misleading the House.
I also note—and it is welcome—that the Solicitor General now
accepts that there is a parliamentary precedent for amendable
statutory instruments. He talks about “friction”. Another way of
describing that would be Members of Parliament holding the
Government to account if they come up with proposals that their
constituents do not like. When Ministers were in front of the
European Scrutiny Committee, they seemed to think that it was an
impertinence for MPs to have concerns and questions about what
might be on the list of measures to be deleted. Is this another
name for what we are calling parliamentary sovereignty?
The Solicitor General
No, not at all; the hon. Lady is wrong, I am afraid. I will come
in a moment to the detail of the parliamentary scrutiny that is
already inbuilt in the Bill and the schedule to the Bill. The
hon. Lady’s comments over the weekend about pension reform were
also wrong, and that is important because people will have been
scared by what she said. The Hampshire case clarified that all
scheme members should receive at least 50% of their expected
benefits in the event of the employer’s insolvency. The Secretary
of State has been crystal clear on this and we have announced our
intention to retain the Hampshire judgment beyond the sunset
clause. The hon. Lady was wrong on that and she is wrong on the
provisions in the Bill. I will explain why in a few moments.
3.45pm
As has been pointed out countless times by hon. Members on the
Government Benches, when we were members of the EU, as a
democratically elected House we could neither amend this
legislation nor reject it. Demanding additional scrutiny now does
not appear to be a consistent or comfortable position to hold.
Where was Members’ concern about the lack of scrutiny during our
EU membership?
(Chesterfield) (Lab)
I am one of the relatively few Labour Members of Parliament whose
constituents voted by a majority to leave, and the issue of
parliamentary scrutiny was often raised during the referendum. I
have had a number of them get in touch to tell me how
disappointed they are that we are now not going to be getting the
parliamentary scrutiny that we were promised as one of the
benefits of Brexit.
The Solicitor General
I am sorry to say that the hon. Gentleman is wrong, and I will
explain why in a few moments, but I am grateful for his
intervention because it means that I can re-emphasise the point
that demanding this additional scrutiny is not a comfortable
position for Labour Members to hold because they had no concerns
about the lack of scrutiny during our EU membership.
This amendment is not only novel and untested; it is unnecessary
because there are already measures within the Bill. We have
already made provision for a sifting Committee and Members will
recall the speech from my hon. Friend the Member for Harrogate
and Knaresborough (), the Chairman of the European
Union Statutory Instruments Committee, who clearly set out the
important work that he and his Committee do. He described it as
dry, but it is important work that he and his Committee do
upstairs to scrutinise this legislation. That provision continues
in the body of this Bill.
This will allow a specified Committee in each House to recommend
the affirmative procedure for the more substantive powers in the
Bill. In this way, either House will be able to ensure that there
are active votes on the reforms that this Government bring
forward under the Bill. This is significantly more scrutiny than
the EU law had when it was first introduced. It is tried and
tested. My hon. Friend the Member for Harrogate and Knaresborough
chairs that Committee ably and I would like to thank him and all
hon. Members who serve on the Committee for their work.
Mr Perkins
With the greatest respect, under the previous arrangement we had
Members of the European Parliament doing that scrutiny. It is not
really comparable to say that nothing has changed and this is
somehow more. Because we have got rid of our representatives in
the European Parliament, it is all the more important that these
matters are considered, but for the Minister to say, “There is a
Committee that deals with this. None of you will hear about it,
but none the less its work is important” sounds exactly like the
sort of thing that my constituents thought we were getting away
from.
The Solicitor General
I am sorry that the hon. Gentleman was not in the Chamber for the
exchange when my hon. Friend the Member for Harrogate and
Knaresborough gently pointed out that Labour Members had not
taken up their places on the EUSI Committee. As Chairman of the
Committee, he rightly encouraged Labour Members to take up their
places on that Committee and I would add to that
encouragement.
(Stone) (Con)
Will the Minister give way?
The Solicitor General
I will give way but I am conscious that a number people want to
speak, so I will then make some progress.
Mr Speaker
indicated assent.
With the greatest respect, I just want to say through the
Minister to the hon. Member for Chesterfield (Mr Perkins) that,
although the European Parliament does its job, the laws are
actually made by the Council of Ministers behind closed doors, by
qualified majority vote and without even a transcript in Hansard.
That is not a basis on which one could make any assumption that
we would ever agree to them. It was always done by consensus.
The Solicitor General
Mr Speaker, you were absolutely right to encourage me to take
that intervention, and I am grateful to my hon. Friend the Member
for Stone ( ). I pay tribute to him for
all his work in this House. His announcement over the weekend
came as a great sadness, shock and surprise. I know that he has a
lot of work to do between now and the next election, and I look
forward to these debates in the future. Thank you for encouraging
me to take his intervention, Mr Speaker.
Lords amendment 42B is both unnecessary and potentially
detrimental to this country’s environmental standards. We have
made a commitment at every stage of this Bill that we will not
lower environmental protections, and that we will ensure the
continued implementation of our international obligations.
Indeed, I am reminded of the rare moment of agreement between my
hon. Friend the Member for North Dorset () and the right hon. Member for
East Antrim () during our last outing. They
found common accord, and they are both right that there is simply
no reason or incentive for the Government not to uphold our high
environmental standards, of which we are rightly proud. It is
simply not necessary for this commitment to be on the face of the
Bill, especially not in a way that would make it more difficult
to achieve any meaningful reforms that benefit the UK.
I will not try your patience, Mr Speaker, by listing all the
Government’s post-Brexit achievements, but some of the steps we
are taking go above and beyond EU law. [Hon. Members: “What are
they?”] The Opposition are encouraging me to do so, and who am I
to say no?
Mr Speaker
No, but I might.
The Solicitor General
I am keeping a very careful eye on timings and on your
indication, Mr Speaker. I will not abuse your patience, but let
me list some of the important measures passed by this Government.
Our environmental standards are now world leading, thanks to the
Agriculture Act 2020, the Fisheries Act 2020 and the landmark
Environment Act 2021, which will deliver the most ambitious
environmental programme anywhere.
Furthermore, Lords amendment 42B is not just unnecessary but may
even endanger our environmental standards. The amendment would
make it harder to retain the effect of existing regulations, as
it applies to restatements of retained EU law. [Interruption.] It
is very timely that the Secretary of State for Environment, Food
and Rural Affairs arrives in the Chamber just as I am championing
all the steps that she and her predecessors have taken to protect
and lead the world through our environmental standards.
Lords amendment 42B would add friction. It is unnecessary and
potentially self-defeating. The Government want to ensure that we
capitalise on the UK’s competitive advantages now that we are no
longer restrained by our membership of the EU. I invite the House
to support the motions in the name of the Secretary of State for
Business and Trade.
Mr Speaker
I call the shadow Minister.
(Ellesmere Port and Neston)
(Lab)
Here we are again. It has been nearly nine months since the Bill
was introduced, during which time five different members of the
Government have spoken in support of the Bill from the Front
Bench, most of them making one appearance before never being seen
again. I congratulate the Solicitor General on making it back for
a second appearance.
Although, of course, the question of retained EU law needs to be
addressed, our main contention is that the way in which the Bill
attempted to do that was reckless, unnecessary and undemocratic.
To some extent, we have seen an end to that kamikaze approach,
which is of course welcome, although it does not mean that all
our concerns have been dealt with.
Mr Perkins
The point that my hon. Friend makes light-heartedly is actually
very relevant. The truth is that we have seen chaos on the
Government Benches. We have seen Ministers speak extremely boldly
about the Bill’s powers, only to water them down when they come
face to face with reality. Does not the farcical way in which
this Government have conducted their affairs give people real
concern, including about what is in this Bill?
I am grateful for that intervention. I note that, again, the
Secretary of State for Business and Trade is not here to defend
the Bill in its current form. We have consistently been told by
businesses throughout the Bill’s passage that it is so chaotic
that nobody can possibly plan ahead. How can any business prepare
for the future if it cannot understand what the rules will be six
months hence, never mind 12 or 18 months into the future.
(Slough) (Lab)
Many of my Slough constituents are concerned, because they feel
that non-regression, upholding international treaties and
consulting experts should be wholly uncontroversial. Does my hon.
Friend feel that, with the Government’s approach, we will merely
have more watering down of our high environmental standards, and
that such watering down must be blocked at every opportunity?
I thank my hon. Friend for that intervention, as he sets out what
this amendment is attempting to secure, which is a bit of
security.
I shall make some progress, as I am aware that a number of people
wish to speak. As we have heard, Lords amendment 15B seeks to
introduce conditions on some of the powers in sections 12, 13,15
and 16 relating to the environment. As my hon. Friend says, it
stipulates that any regulations made may not
“reduce the level of environmental protections”
or
“conflict with any…international environmental agreements to
which the United Kingdom is party”.
It also sets requirements on consultation. Given that the
Government are supposedly committed to maintaining the highest
environmental standards, one might think that those conditions
are uncontroversial; they are the actions I would expect any
Government committed to maintaining high standards would want to
undertake. That view is shared by a range of experts, including,
but certainly not limited to, the Government’s own watchdog, the
Office for Environmental Protection. Its written evidence
submission endorsed all three of those suggested conditions, with
its chair, Glenys Stacey, remarking:
“Worryingly, the Bill does not offer any safety net, there is no
requirement to maintain existing levels of environmental
protection.”
The Government are not listening to their own watchdog and have
instead chosen to refer to those conditions as “burdensome” and
“unnecessary”. I have yet to hear any rational explanation as to
how the conditions in the Lords amendment can be both of those
things at the same time; if these steps are, as the Government
tell us, things that they would be doing in any event, how can
they possibly be an additional burden as well? When we are met
with illogical and unconvincing arguments such as that, we are
right to be concerned. I note the assurances given at the
Dispatch Box on this and previous occasions, but, as we have seen
with this Bill in particular, Ministers come and go, and if we
were to rely on everything said at the Dispatch Box as having the
same weight as actual legislation, Acts of Parliament might be
half the length that they are. There is a reason we do not do
that.
Of course, we can all imagine what might be said by the public if
the worst was to happen and environmental standards were to slip
as a result of this Bill. We would say to our constituents, “But
we were promised this wouldn’t happen” and our constituents could
point to the 40 hospitals not having been built, Northern
Powerhouse Rail not having been started, the ditching of the
Animal Welfare (Kept Animals) Bill or any number of other broken
promises, and they would call us naive at best. So we are right
to insist that these protections stay in the Bill.
Lords amendment 42B tackles one of the most controversial
clauses, the one that the Hansard Society referred to in its
written evidence as the “do anything we want” powers for
Ministers. The Hansard Society is not prone to exaggeration and
its comments have merit. As we know, clause 15 empowers Ministers
to revoke regulations and not replace them; replace them with
another measure which they consider appropriate
“to achieve the same or similar objectives”;
or
“make such alternative provision as the…national authority
considers appropriate”.
In the face of such untrammelled concentrations of power in the
Executive, Lords amendment 42B seeks to put a democratic check on
the use of those powers. Actually requiring a Minister who wishes
to use these powers to set out their proposals before each House
is entry-level transparency that should have been part of the
procedure to start with. Allowing a Committee of this House to
consider them seems a fairly uncontroversial suggestion, even if
some people now think that Committees cannot act in a bipartisan
way. Of course, giving a Committee the power to request a debate
on the Floor of the House will be reliant on its making the
judgment that such a debate is necessary, but this does secure a
degree of scrutiny over ministerial decisions. It also hands at
least some power back to Parliament, which was, of course, for
some, what Brexit was all about.
Does the debate about the Bauer and Hampshire judgments not make
the case that my hon. Friend is making? I hope Mr Speaker will
forgive me here, but the Minister said that I was wrong and that
is perhaps unparliamentary. Let me read into the record what the
shadow Minister and I heard in Committee. The Minister of State,
Department for Business and Trade, the hon. Member for Wealden
(Ms Ghani) said:
“the Department for Work and Pensions does not intend to
implement the Bauer judgment through the benefits system…The
Hampshire judgment is a clear example of where an EU judgment
conflicts with the United Kingdom Government’s policies. Removing
the effects of the judgment will help to restore the system to
the way it was intended to be.”––[Official Report, Retained EU
Law (Revocation and Reform) Public Bill Committee, 22 November
2022; c. 168-69.]
If Ministers are changing their minds now about using the powers
in this Bill to revoke these protections for the pensions of our
constituents, it is only because they have been caught out doing
it and using the powers in this Bill. Does this not make the
case—
Mr Speaker
Order. I am not going to have this private debate carrying on.
You have put it on the record and the Minister has put it on the
record, but people can be accidentally wrong. I do not need a
lecture on what is wrong and what is not. In the end, you have
put the case, and we have a lot of people who want to speak in
the debate, including yourself.
4.00pm
I remember that exchange very well, not least because it was on
my 50th birthday. It certainly shows the importance of having
proper scrutiny and transparency about ministerial decisions,
which has been one of our main critiques of this bill throughout.
I remind hon. Members that it was said in 2016 that we needed to
reassert parliamentary sovereignty and that that was what taking
back control was all about. However, I said in Committee, “we”
does not mean
“Ministers sitting in rooms on their own, answerable to nobody,
and under no requirement to explain their actions”.––[Official
Report, Retained EU Law (Revocation and Reform) Public Bill
Committee, 22 November 2022; c. 126.]
“We” means this place.
I know that the oft-repeated and erroneous argument, which we
have heard again today, that those laws were passed without
proper democratic involvement in the first place has been offered
as a reason why we should not follow such a process now. To make
a pithy comment on that, two wrongs do not make a right. I would
have expected those who were shouting the loudest about our
sovereignty back in 2016 to be with us today.
The lack of transparency and desire to bypass scrutiny that are
the hallmark of this Bill demonstrate a lack of confidence from
the Government in their own programme. It is clear that either
they do not know, or they do not want to tell us what they intend
to do with the powers conferred by the Bill. Even the addition of
a schedule listing regulations to be revoked does not really
offer any clues about how the Government plan to approach the
bulk of retained EU law.
In her recent appearance before the European Scrutiny Committee,
the Secretary of State for Business and Trade referred to that
list as merely containing regulations
“that are redundant, rather than things that are holding us
back”,
meaning that we still do not know what the substantive changes
will be. Maybe one day we will find out what exactly it is that
has been holding us back.
If the Government cannot tell us what they intend to do with the
powers they hand themselves under this Bill, and they clearly do
not want the light of scrutiny shone on their intentions, it is
even more important that this amendment is passed. It also
suggests that this Government are not confident about what the
public or indeed Parliament will have to say when their
intentions become clear. That is why as many safeguards and as
much transparency as possible should be injected into this
Bill.
In closing, I refer again to the evidence given by the Secretary
of State to the European Scrutiny Committee, because if anything
sums up the shambolic approach to this Bill by the Government it
is her comment:
“The retained EU law Bill became a process of retaining EU law.
That is not what we wanted.”
I do not know whether to laugh or cry at such comments. What I
can say for sure is that, if anything sums up just what a tired,
out-of-touch and broken Government we have, that is it.
I have a strange sense of déjà vu about the speech I have just
heard from the hon. Member for Ellesmere Port and Neston (). I am afraid that he does
not quite get it. I have made the same point with regard to the
hon. Member for Chesterfield (Mr Perkins); the fact that I happen
to rather like him, and always have done—I come from
Sheffield—does not alter the fact that I fundamentally disagree
with him.
The way the House of Lords has dealt with these amendments
demonstrates that the Lords are determined to try, by hook or by
crook, to obstruct the House of Commons, which is the democratic
Chamber in these matters as far as the electorate is concerned,
in pursuance not only of the referendum on leaving the European
Union, but also of the Bill as a whole—which I do support, as it
has moved forward. I had some reservations in the past, but we
have made a lot of progress.
I congratulate the Minister very much on his calm common sense
and the way he has approached the subject. I also agree with the
tweet he referred to. Parliamentary counsel are rather like holy
priests, if I may say so, and they have their own particular way
of wanting to deal with something. I would not want in any way to
criticise the way they have gone about this, because it comes to
exactly the same thing that I proposed when the Government
adopted my own amendment.
Coming to the question of parliamentary scrutiny, the new clause
introduced by Lords amendment 42B places a prohibition on the
making of regulations under section 15, unless
“a document containing a proposal for those regulations has been
laid before each House of Parliament”.
It goes on to say that the document is to be
“referred to, and considered by, a Committee of the House of
Commons”.
That sounds suspiciously as if it might fall within the remit of
the European Scrutiny Committee. If it does not, that creates a
problem with our Standing Orders for a start. It is not defined,
so what on earth that Committee will do, and how it relates to
the functions of the European Scrutiny Committee and/or to any
other Committee of the House of Commons, is so completely vague
and impossible to understand. That, in itself, condemns that new
clause.
The amendment goes on to say:
“a period of at least 30 days has elapsed after that
referral”.
When it turns to the next question, it says:
“If the Committee—
the Committee of the House of Commons—
determines that special attention should be drawn to the
regulations in question, a Minister of the Crown must arrange for
the instrument to be debated on the floor of each House”.
They “must”; there is no option on that.
Suddenly, we move into a completely new dimension for each House.
If the Committee—my own Committee, were it to be the Committee in
question—makes a decision about special attention, that is then
thrown to the mercy of each House of Parliament. We know from
everything that we have heard over the last few weeks on the Bill
that there is an intransigence—a stubbornness, if I may say so
politely—from our noble Friends in the House of Lords in the face
of any attempt to get rid of retained EU law in the way in which
we are proposing, through revoking or reforming it.
By taking that particular course in the clause, all the Lords are
doing is saying, “We want to take back control. We want to put
this whole procedure into a cul-de-sac that will be effectively
controlled.” I would go so far as to say that, by the sounds of
it, the House of Lords will try, to use that hallowed expression,
to “take back control.” They will try to take back control of
this to the House of Lords. That is what this is all about, and
we are not so stupid that we will fall for this one, let me
assure the House.
Let me come to the question of regulations and statutory
instruments, and the way in which they areb made. I have spent a
lot of time on that, as I have said before. I am most grateful to
you and others, Mr Speaker, for referring to the fact that I will
retire from the House of Commons at the next election, but I have
a lot of work to do between now and then. This debate is part of
that, by seeing the Bill brought to a conclusion through its
elimination of the supremacy of EU law and the opportunity to
diverge and create economic growth and competitiveness. All these
matters are part of that.
I find it really astonishing that the Lords do not seem to
understand—it is as if they are trying to take us for fools,
which I can assure the House we are not. I have sat on the
European Scrutiny Committee since way back in 1985. Day in, day
out, every single week, regulations and statutory instruments
were brought in to implement decisions made behind closed doors
in the Council of Ministers, as I said to the hon. Member for
Chesterfield. Those decisions were made by majority vote of the
other countries—there used to be fewer but then the number went
up to 27—and without even a transcript. I challenge any Labour or
SNP Member to get up and say that they think that is a very good
idea, and that they would love to tell their constituents that
they should be governed in that way, with all their laws for made
for 50 years by that method of completely closet operation and
without a transcript. It is unbelievable.
What are we doing here other than having a debate in this
Chamber? I challenge Opposition Members to go out and say to
their constituents: “We want to have you governed in that manner,
behind closed doors and without a transcript.”
indicated dissent.
It is no good the shadow Minister shaking his head, because he
will not ask that question and nor will the hon. Member for
Chesterfield, because their constituents would very quickly turn
around and tell them to get lost.
I just point out to the hon. Gentleman that my constituents would
wonder why we are rehashing the arguments from 2016 when we have
this Bill before us today.
I am so delighted that the hon. Gentleman asks that question. It
is very simple: we had a general election that gave us a massive
majority on the basis of getting Brexit done—and this gets Brexit
done. We are doing exactly what so many of his constituents voted
for, even though, I am sure, he got a reasonable majority. There
are people who are now not in this House and were driven out
because they did not respect the views of the people in that
referendum. That is a very simple and straightforward answer to
his point.
(Arfon) (PC)
The hon. Gentleman is referring to processes in the past in
Brussels, but the Lords amendment suggests that a Committee
should examine such matters. I believe that in this place
Committees meet in public.
With respect to the question of how the laws are made in the
first place, that is what I am saying. The reason the Bill is so
important is the need to overtake and, effectively, deal with the
mistakes made in the past, over that 40 or 50-year period,
whereby the laws were made in the way that I have described—and
they were. They were done by consensus, because everybody knew
before they walked into the room that the majority vote would
work against them. I have spent a lot of time scrutinising such
things—I was going to say a lifetime, and I almost have—and all
that I can say is that nobody would seriously doubt that that is
how the system operated at that time.
We are talking about these laws because we want to revoke or
modify them. We are not going to get rid of all of them—we will
modify some and revoke others, and that will be by a simple test.
That test will not be whether or not it was decided by 27 other
countries to which we were subjugated by law—[Interruption.] We
did that in the European Communities Act 1972, which was a great
mistake. We have moved to a situation as the result of a general
election in this country, the result of which is that we are
allowed to make our own laws here in this House on behalf of our
constituents. I think that is a very reasonable position. It is
not only reasonable but absolutely essential, because it is about
democracy and sovereignty and self-government. That is what the
people decided in the referendum.
rose—
I always give way to the hon. Lady.
And I thank the hon. Gentleman for it. I note his comments,
although I also note that the legislation already provides for a
Committee to look at the statutory instruments generated by the
Bill. That is not a novel procedure. He says that it will be this
House that determines matters, but it will only be this House
reflecting what Ministers bring to us in a Delegated Legislation
Committee, will it not? Unless Lords amendment 42B is passed, MPs
will not be able to influence the content of an SI. The hon.
Gentleman says that he did not like that in the European
Parliament, so why does he want to take back control to Downing
Street rather than to this Chamber with a process whereby, when
changes are substantial, MPs have influence over them?
First, I did not say the European Parliament; I actually said the
European Council of Ministers. There is a big difference and I am
sure that she understands that, because that is where the law
making is done. Secondly, with great respect, it is a bit
disingenuous to suggest that this will all be decided by the
Committee. I think it would be my Committee that would do this,
but if we leave that aside the real point is that the amendment
goes on to say that even if that Committee
“determines that special attention should be drawn to the
regulations in question, a Minister of the Crown must arrange for
the instrument to be debated on the floor of each House and voted
on”.
That is the point. In other words, the lock is created by the
House of Lords—
No, it is not.
Of course it is. If I may say so to the hon. Lady, with the
greatest of respect, that is the intention that lies behind it. I
know that she is quite obsessive about this point, but, with the
greatest respect, she does not seem to quite understand how it
is— [Interruption.] I am trying to be factual about this. The
fact is that when the original regulations were made, they were
made as statutory instruments implementing the laws made in the
way I have just described, behind closed doors and so on.
Those regulations came in that way and it is perfectly
legitimate, in the light of the fact that those laws were not
made in the manner in which we would traditionally expect them to
be made and, constitutionally, should be required to have them
made, which is by this House, these Members of
Parliament—including current Opposition Members of Parliament if
they are in government—and for those decisions to be taken
democratically on behalf of our electorate, who happened to say
that they wanted to leave the European Union and endorsed it with
a general election in 2019. The position is perfectly clear: what
we are doing in this Bill is not only completely legitimate, but
constitutionally correct. That is a big difference. Robin Cook
once said to me, “Legitimacy is one thing, Bill;
constitutionally, it is quite another matter.” That is not a
constitutional way of doing things. What came into this
Parliament and affected the voters of this country for 40 or 50
years was done in a manner that was completely, totally and
utterly objectionable in democratic terms, because those laws
were not made by our voters and our Members of Parliament
representing those electors in this House.
I will simply say that I am not going to buy into this at all. I
think I have probably made myself pretty clear but, having said
that, I recognise the way in which the Minister has handled the
Bill. I am extremely impressed and grateful to him for not only
his comments, but the fact that he has handled the Bill so
well.
4.15pm
Mr Deputy Speaker ( )
Congratulations on your latest recognition, Sir Bill.
The debate finishes at 4.39 pm, and Members can see how much
interest there is. is next, and I have to put the
question at 4.39 pm, irrespective. All I would ask now is for
some time discipline, in order to get as many views in as we
possibly can. I call .
(Stirling) (SNP)
Thank you, Mr Deputy Speaker. I would be perfectly happy to
summarise the Bill in one word, if you would allow me some
unparliamentary language, but I will be brief.
The SNP’s position on the Bill is well rehearsed. We regret this
piece of legislation. We do not think it is necessary. We do not
like what it is trying to achieve, because we think targeting
laws on the basis of where they came from, rather than what they
do or how effective they are, is a poor way of doing it. We also
are not interested in fighting old battles, but the Bill is all
about fighting old battles—that is where it has come from.
I will focus only on amendments 15B, 16C and 42B. During the
Bill’s passage, we of course saw the gutting of its major
provision—the sunset clause—so it is not as bad as it might have
been, but we think it remains a significant blank cheque for
Ministers, with insufficient scrutiny. Ministers want as much
power as possible, with as little scrutiny as possible. Ministers
in any Parliament want that, but I think it is perfectly
legitimate for the House here to demand greater scrutiny than we
have seen.
We on the SNP Benches are particularly concerned—it staggers me
that this has not been mentioned throughout the debate—that the
Scottish Parliament and the Welsh Senedd have not consented to
the Bill. I have much respect for a number of people on the
Government Benches, but I would gently say that, if one wants to
talk about a precious Union, it is quite important to observe it.
We have yet to hear a proper answer to that point. We have had
various reassurances, but we are not going to see sufficient
protection in the Bill. We are concerned that this Bill, when it
becomes an Act, is going to be used to undermine the devolution
settlement that was endorsed by the people of Scotland and the
people of Wales. We think that is a poor way of making law.
On amendment 15B, which deals with environmental standards, I
found much to agree with in how the Labour spokesperson, the hon.
Member for Ellesmere Port and Neston (), presented it. We are
taking the Ministers at face value that we do not want to see a
regression from international standards—the standards that we
have. Let us put that in the Bill. We think that is a
proportionate and workable thing to do, and I do not see how it
would fetter the Government to any great extent. We are glad to
see a bit of a compromise on amendment 16C, although I have to
say that it is pretty weak beer when it comes to clarity on the
EU law dashboard and its operation. We will not stand in its
way.
On amendment 42B, which would provide for greater parliamentary
scrutiny of future revocations of EU law, I think it is workable.
I urge Members on the Government Benches to think hard about the
fact that enough people in the House of Lords and in this place
think it is necessary, as part of the Bill, which gives Ministers
a lot of power, to find a new way of scrutiny. I accept the point
that it is a novel way of doing things, but we think that is
proportionate, and I think history will vindicate us on that
view.
Mr Deputy Speaker, we regret the Bill. We are not about fighting
old battles, but we do not think this is the way to go. Sadly, I
think we will see that the Bill is a bad piece of legislation.
There are ways of making it better, which we will support, but
the Scottish Parliament have not consented to the Bill.
Government Members should be in no doubt that the Bill will be
passed against the interests of Scotland.
Mr Deputy Speaker ( )
Alyn, thank you for your co-operation—I appreciate it. Whoever is
on their feet at 4.37 pm I will ask to resume their seat, because
I am going to give the Minister two minutes to respond to
contributions.
Sir (South Swindon) (Con)
It is a pleasure to follow the hon. Member for Stirling (). His remarks are always
couched in a pithy and clear way, but I disagree fundamentally
with his point about a legislative consent motion. It is entirely
within the rights of the devolved Administrations and their
Parliaments to consent or not, but the very fact that a consent
has not been granted should not be regarded as either legally or
politically fatal to a Bill that clearly deals with the
competences that lie here at Westminster.
I am afraid that the characterisation of the hon. Gentleman and
the nationalists—the SNP and nationalist parties elsewhere—that
this is a power grab away from Cardiff and Edinburgh in favour of
Westminster is a complete misreading of the situation. These
powers lay in Brussels, at the European level, and they are
coming back to the next level of Government. That is not in any
way some sort of reverse grab away from the devolved
Administrations. It cannot be, and it does not follow. I speak
not only using my experience as a lawyer, but as a former
territorial Secretary of State. That characterisation has to be
resisted at every turn.
I will now deal with the three particular issues that we have
before us today.
(North East Hertfordshire)
(Con)
Before my right hon. and learned Friend departs from his remarks
in response to the hon. Member for Stirling () about Scotland, does he agree
that, if laws are passed in Europe, they are a compromise
representing the interests of 27 different countries? There is an
opportunity for some smart deregulation, and that would be as
beneficial to Scotland as to any other part of the UK.
Sir
I entirely agree with my right hon. and learned Friend. At the
risk of invoking the ire of my hon. Friend the Member for Stone
( ), the new Companion of
Honour, it is right to say that, although consensus was indeed
the means by which regulations were agreed by the Council of
Ministers, it usually involved the UK and its assent to that
consensus. I know that is not quite the narrative that he agrees
with, but we risk fighting the old battles that he and I were on
either side of.
Not today!
Sir
No, we are not going to do that today, but I will end on this
basis: my hon. Friend knows I am right.
In my next breath, I want to violently agree with my hon. Friend
about his work on the dashboard and the amendment that we now
have to make a particular tweak to Lords amendment 16. I entirely
support the new clause under Lords amendment 16. The dashboard
has been a source of much concern in recent months, which was
then reflected by the Secretary of State’s wise decision to
change course. That dashboard has to be authoritative, so I am
glad to see it in law, but it now needs to work. We need to make
sure that it is populated, that the National Archives is very
much part of it, that we are not given any more surprises and—my
hon. and learned Friend the Minister will get this—that we do not
end up with repeal by accident, which is bad for the rule of law,
bad for certainty and bad for investment. We all agree on
that.
To deal in short order with Lords amendment 15, with the best
will in the world, on one level, it seems to be a sincere attempt
to reflect the legitimate aspirations of the British people about
food and environmental standards. Frankly, they are the
aspirations of the British Government, too. It is not right to
say that at any time, any Minister on the Treasury Bench under
this Government has said that they want to use the Bill as an
attempt to railroad the undermining of strict environmental
protection and food standards. One therefore has to ask: what is
the purpose of this particular amendment? Some of its purpose I
am afraid is nakedly political. It seeks to make a political
point that imputes to this Government a motive that they just do
not have. In addition, it is beset by problems. The particular
way in which it is structured, and the requirements for
consultation in particular, seem to me to be a litigator’s
paradise.
(Strangford) (DUP)
On the point about the environment and how important it is, the
right hon. and learned Gentleman will have got the same circular
as the rest of us. It states:
“Many of the laws that could be weakened using the powers
contained in the Bill as currently drafted are vital to nature’s
recovery. They help improve the quality of our rivers and coasts,
keep dangerous chemical use at bay, and protect some of our
rarest and most important habitats and species.”
Does he believe that the Minister is going to deliver on that? I
think he will, but does the right hon. and learned Gentleman
think that as well?
Sir
Well, answer that! I entirely agree with the hon. Member. There
is no evidence at all that this Government seek to take a
different course from their stated aim of protecting
world-leading environmental protection and food standards.
Therefore, we have to ask what the purpose of Lords amendment 15
is. It seems to me that many parts to the amendment would give
rise to a significant amount of litigation. I do not think that
is at all what the drafters of the amendment want, and it
certainly does not help with regard to clarity of the law.
That brings me to new Lords amendment 16C, which, with absolute
candour, seems to me to be a step back by their lordships from
the previous iteration of that amendment. It is now narrowed down
just to clause 15. I understand the concerns that the noble Lords
have about the use of the power in clause 15 because it is, on
the face of it, a dramatic power that the Government would have.
On one level, the power of revocation seems to me to be welcome.
I note within it particular caveats about the creation of new
functions, particularly the creation of criminal offences. There
has been a long-established convention about the use of such
powers, and we all have a concern about the creation of criminal
offences that are more serious than ones they seek to replace or,
indeed, are serious new offences. I note the taxation and public
authority restrictions as well, so a lot of the normal
restrictions are built into the provision, which are welcome.
What the noble Lords are asking for is more reassurance about the
process. I do not criticise them at all for that, because it does
not seem unreasonable to me that there should be at least some
process, particularly when new regulations are being created. I
would gently press the Minister to consider that discrete point.
It may well be, in response to anything that I or other hon.
Members say, that he has an opportunity to enlarge on that. It
does seem to me not unreasonable to ask for that further check
and balance. I do not think it is the sort of unwelcome
additional bureaucracy that perhaps he and others are concerned
about. Fundamentally, we have a duty as parliamentarians to
protect the role of this place in particular in the scrutiny of
the passage of important new regulations, whatever form they may
take.
If we take Brexit out of this and take the temperature right
down, I do not think that is an unreasonable point at all. I do
not accept the characterisation that a number of noble Lords are
embarking upon some mission here to frustrate the approach that
the Government are taking in the Bill. It is a Bill I have
supported, and a Bill I have said is absolutely necessary as a
special mechanism to deal with retained EU law. We all agreed
that this was a particular area of law that needed to be held in
suspense and then looked at carefully in its individual parts.
Lords amendment 16C does seem to me to reflect that and respect
that. The other two matters I have dealt with, and I am more than
satisfied with the Minister’s response to that, but I do press
him on that particular aspect and that particular amendment. I
will not trouble the House any further.
Getting any detail out of this Government about what they intend
to use the powers in the Bill for has been like pulling hens’
teeth. Even now, with the Bill before us today, about to be
passed imminently, we still do not know the full effect it will
have. I will make a few brief comments.
The right hon. and learned Member for South Swindon (Sir ) talked about the
Government’s recognition that we need to know not just the
regulations but the direct effect cases that are being deleted.
In the other place last week, the Government said they
“will add Section 4 rights to the dashboard as identified at
least as frequently as every six months, as per the reporting
requirement clause that is already in the Bill.”—[Official
Report, House of Lords, 6 June 2023; Vol. 830, c. 1263.]
Nothing has changed since last week, so we still do not know what
legal judgments the Government intend to delete—legal judgments
that cover multiple rights including employment rights and
environmental standards.
4.30pm
We know there are developers champing at the bit to use this
legislation to overturn decisions on planning applications that
were denied on the basis of the habitats agreement—these are live
issues in all our constituencies. That is exactly why their
lordships have taken action: they recognise this is nothing to do
with Brexit; this is a Bill that gives the Government power over
thousands of areas of law without accountability. [Interruption.]
The hon. Member for Stone ( ) is laughing; I just wish he
would bother to be honest about what is happening right now and
open about—[Interruption.] Well, I have been told that I have
been wrong, so let us talk about this language, because the truth
is we can talk all we want about an institution we left—
Mr Deputy Speaker ( )
Order. I am sure the hon. Lady knows what she did; please
withdraw any accusation of dishonesty.
Of course I withdraw that; I meant to say “open”. I want the hon.
Member for Stone to be open, but he has not even bothered to have
the courtesy to read Lords amendment 42B. If he had, his
objection to the idea of a Statutory Instrument Committee looking
at these amendments—[Interruption.] Well, I am sure he has made
complaints to the Government, who have already written to the
other European statutory instruments scrutiny Committee to say
they will be doing exactly that. He opposes the idea of a report
about what impact a statutory instrument might have. In any other
language that is called an impact assessment; we get them on all
sorts of pieces of legislation, but not on this.
Will the hon. Lady give way?
I have listened to the hon. Gentleman. I listened to him tell us
at length about the European Union, but he has failed to tell us
why he is opposing an amendment that gives this Chamber primacy
over what happens when legislation changes. As the right hon. and
learned Member for South Swindon says, it matters.
The hon. Member for Stone opposes the Lords being able to come
back with SI amendments. Actually, this House would be able to
override them under Lords amendment 42B. If he had bothered to
have the courtesy to look at what the Lords had said, and
bothered to listen to a former parliamentary Clerk of the House
who helped draft it—not a great remainer by any means, but
somebody who cares passionately about parliamentary democracy—he
would recognise that this is about trying to make the process
better. He would recognise that our constituents deserve better
than a simple email saying, “We have no idea what’s being deleted
and we could not stop it anyway,” because that is the point about
SI Committees.
I am done with being lectured that this is somehow about Brexit
and that those of us who have concerns about parliamentary
democracy in 2023 should look at the 1972 Act, because I can see
what could happen in 2024 and 2025, and my constituents deserve
better than this. We cannot have a legislative process that
simply says we have to trust the chaps and chapesses who are
Ministers and in Downing Street to do the decent thing. If the
hon. Gentleman had sat in his own Committee and listened to
Ministers dismiss his own concerns, he would know the folly of
such a position.
Conservative Members will vote down these amendments yet again,
and they will go back to their constituents and tell them not to
worry, but the truth is that they should be worried because we do
not know what rights will be affected. As far as I can see, given
that Ministers committed to abolishing them, the only reason why
the Bauer and Hampshire judgments are now being kept is because
they have been caught red-handed using a Bill to override
something they know our constituents would want us as MPs to
speak up about. We must never let anybody on the Conservative
Benches or who said they were speaking up for democracy through
Brexit tell us ever again that Brexit was about taking back
control. It is taking back control to Downing Street, not this
place, and our constituents deserve to know that truth.
Several hon. Members rose—
Mr Deputy Speaker ( )
We will squeeze one more in, but please resume your seat at 4.37
pm. I call .
(Richmond Park) (LD)
We welcome these amendments. Despite the Government’s screeching
U-turn, the Liberal Democrats are still extremely concerned that
this legislation could see around 600 EU-era laws slated for
removal by the end of this year alone, with a further 4,000
potentially being scrapped by 2026, each removed without any
consultation or vote in Parliament. This brazen attitude poses
risks to hard-fought gains in workers’ rights such as holiday
pay, agency worker rights, data protection rights, and protection
from downgraded terms and conditions when businesses are
transferred.
Further, my Liberal Democrat colleagues and I are extremely
concerned about the risk that environmental protections for our
rivers and natural habitats could be softened should the
Government choose to block Lords amendment 15B. The amendment
seeks to ensure that the Government could not reduce levels of
environmental protection. As the hon. Member for Stirling () said, if that is the
Government’s intention, why not say so in the Bill? The amendment
also seeks to ensure that UK law cannot conflict with relevant
international environmental agreements to which we are party.
That is extremely concerning to my constituents in Richmond
Park.
Thames Water has proposed an extraction scheme to replace water
from the river near Ham and Petersham with treated sewage
effluent. Should environmental protections that govern water
quality be weakened in any way—that may happen should Lords
amendment 15B not be agreed to—such schemes would be subject to
less scrutiny, which could lead to irreversible damage to the
waterways that we all enjoy.
I also speak in favour of Lords amendment 42B, which, if
supported by the House, would ensure a debate on the Floor of
both Houses on any change proposed by the Government to any
legislation under the Bill. That solution would prevent any
undemocratic power grab by the Government by ensuring that no
arbitrary and binding decisions over the laws that affect us all
can be made without following a proper and thorough legislative
process.
I urge all colleagues across the House to join the Liberal
Democrats in supporting both amendments that we will vote on. In
doing so, we will be voting to protect thousands of crucial
protections for our environment, food standards and working
conditions and to prevent an undemocratic power grab by this
Conservative Government.
Mr Deputy Speaker
, you have one minute.
Thank you, Mr Deputy Speaker.
Lords amendment 42B is a critical amendment to rein in what is
quite simply an Executive power grab, with the Bill handing
Ministers enormous powers to review legislation with little to no
scrutiny and replace it with provisions that they consider to be
“appropriate”. I think we can all agree that that word is open to
wildly different interpretations.
Government Members should remember that the Bill will give powers
not just to this Government but to any future Government, which
they may not agree with. Indeed, a legal opinion on the likely
constitutional, legal and practical effects of the Bill found
that Ministers would be given
“largely unfettered…discretion for…substantive policy
changes.”
Lords amendment 42B really matters.
Lords amendment 15B is about ensuring that we have safeguards for
environmental protections. If the Government really are serious
about saying that they want to protect the environment, why would
they not put that into statute and on the face of the Bill?
Mr Deputy Speaker
Minister, I will interrupt you at 4.39 pm.
The Solicitor General
Thank you, Mr Deputy Speaker. With the leave of the House, it is
a pleasure to respond, not least to the warm welcome afforded to
me by the shadow Minister, the hon. Member for Ellesmere Port and
Neston (). He missed the previous
exchange when my right hon. and learned Friend the Member for
South Swindon (Sir ) noted that Solicitors
General both took us into Europe with the 1972 Act and took us
out of Europe with the 2018 Act, so there is a certain symmetry
to a Solicitor General being at the Dispatch Box for the close of
these proceedings.
May I reassure my right hon. and learned Friend on some of his
remarks? Not least, he is right that his name was on the Bill
when he was Secretary of State for Wales. I am grateful to him
for his contributions. I hope to reassure him that parliamentary
scrutiny is already well provided for and that the existing
sifting procedure is there and set out in schedule 5.
I am sorry to say that the hon. Member for Walthamstow () is wrong. The Secretary of
State has been clear and explicit that we are retaining those 50%
protections. I am grateful to my hon. Friend the Member for Stone
( ), and I agree with him. He
was absolutely right in his comments about the Office of the
Parliamentary Counsel, and about parliamentary counsel being the
high priests of parliamentary drafting. He was also right that
the Bill will eliminate the supremacy of EU law.
There have been repeated comments about our commitments to the
environment and the world-leading standards and environmental
protections that we have. It is crucial that we bring this most
important Bill to Royal Assent as quickly as possible. We must
capitalise on our competitive advantages now that we are no
longer restrained by membership of the EU.
I add my thanks to the members of the Bill Committee, who, as has
been mentioned, were certainly the finest. We must make the view
of the House as clear as possible and avoid any further
delay.
Mr Deputy Speaker
Just to direct the House, I am anticipating two Divisions. I hope
to be helpful in indicating which amendments are being voted
on—we will see.
4.39pm
One hour having elapsed since the commencement of proceedings on
the Lords
message, the debate was interrupted (Programme Order, 24
May).
The Deputy Speaker put forthwith the Question already proposed
from the Chair (Standing Order No. 83F), That this House
disagrees with Lords amendment 15B.
[Division 249
The House divided:
Ayes
269
Noes
204
Question accordingly agreed to.
Held on 12 June 2023 at
4.39pm](/Commons/2023-06-12/division/DF7CEEA3-7031-4D5D-9170-098BB836E5C0/CommonsChamber?outputType=Names)
Lords amendment 15B disagreed to.
The Deputy Speaker then put forthwith the Questions necessary for
the
disposal of the business to be concluded at that time (Standing
Order No. 83F). Amendment 16A not insisted upon.
Lords amendment 16C agreed to.
Clause 15
Parliamentary scrutiny
Motion made, and Question put, That this House disagrees with
Lords amendment 42B.
[Division 250
The House divided:
Ayes
269
Noes
202
Question accordingly agreed to.
Held on 12 June 2023 at
4.54pm](/Commons/2023-06-12/division/472F51C7-9FBC-4840-81E9-C62DCD9386D0/CommonsChamber?outputType=Names)
Lords amendment 42B disagreed to.
Motion made, and Question put forthwith (Standing Order No.
83H(2)), That a Committee be appointed to draw up Reasons to be
assigned to the Lords for disagreeing with their amendments 15B
and 42B;
That , , , , , and be members of the
Committee;
That be the Chair of the
Committee;
That three be the quorum of the Committee.
That the Committee do withdraw immediately.—(.)
Question agreed to.
Committee to withdraw immediately; reasons to be reported and
communicated to the Lords.
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