Motion A Moved by Lord Callanan That this House do agree with the
Commons in their Amendment 1A. 1A: Leave out subsections (1B) to
(1D) The Parliamentary Under-Secretary of State, Department for
Energy Security and Net Zero (Lord Callanan) (Con) 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...Request free trial
Motion A
Moved by
That this House do agree with the Commons in their Amendment
1A.
1A: Leave out subsections (1B) to (1D)
The Parliamentary Under-Secretary of State, Department for Energy
Security and Net Zero () (Con)
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.
The Government will ensure that any significant retained EU law
reforms will receive the appropriate level of scrutiny by the
relevant legislatures and are subject to all the usual processes
for consultation and impact assessment. However, it is important
that we ensure that the limited amount of parliamentary time
available is used appropriately and effectively.
The existing sifting procedures in the Bill have been purposely
drafted as a safeguarding measure for these powers and already
contain adequate scrutiny. They allow for additional scrutiny for
the exercise of the power to revoke or replace, while retaining
the flexibility of using the negative procedure where there are
good reasons to do so—for example, in repealing redundant rules
that no longer have any purpose on the UK statute book.
In addition, in certain situations, notably the use of subsection
(3), the affirmative procedure continues to be required. The
existing procedure will give the UK Parliament the opportunity to
take an active role in the development of this legislation. It is
a tried and tested method of parliamentary scrutiny which, in my
view, delivers good results for everyone and draws on the
experience of our parliamentary committees. We will, of course,
respect the judgment of the sifting committees relevant to the
Bill, in the same way as we did for the EU withdrawal Act.
Therefore, I do not consider the proposed amendments to be
necessary. I hope this provides the House with sufficient
reassurance on this matter.
(CB)
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 affected
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 affected 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:
“A relevant national authority may by regulations revoke any
secondary retained EU law and make such alternative provision as
the relevant national authority considers appropriate”.
That power will last until June 2026, which even we in the ivory
tower of these Benches understand is some time after the next
general election. It allows the Government to make regulations
that Parliament cannot amend or, in practice, block, even when
those regulations have quite different objectives from the laws
that they replace, as the Bill makes clear.
3.30pm
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, of Craighead, and signed by me
and the noble Lords, and , 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, . 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.
(Con)
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.
(CB)
My Lords, I too strongly support what the noble Lord, Lord
Anderson, and the noble Viscount, , said. I cannot resist
telling the House that I am chairman of the Ecclesiastical
Committee, and some years ago the most reverend Primate the
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, , 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, , 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.
(LD)
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?
(CB)
My Lords, I am delighted to support Motion E1 in the name of my
noble friend . 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.
Whatever one’s views on the issue, it is very important to keep a
sense of proportion. I cannot imagine the heavy weaponry that is
implied by some in this Motion being deployed at all often. The
Government, if they had any sense, would want to reach agreement
with a sifting committee rather than seeking the adversarial
outcome of a vote on the Floor of the House. In any event, what
would be so wrong about accepting the view of an all-party
committee which had identified in a government proposal hazards
for business, the environment, civil liberties or any of the
other fields in which Parliament is supposed to be the guardian
of our citizens’ interests?
The Minister criticised the proposal on the basis that it was
novel and untested. If one is going to improve the effectiveness
of Parliament, there will from time to time be procedures that
are novel. If it were not the case, we would be living the rest
of our lives encased in a sort of parliamentary aspic. He also
said that it was untested. In a parliamentary environment, you
cannot have a novel procedure unless it is untested so, with
great respect to the Minister, I would dismiss that
criticism.
I conclude with a short look ahead, as the noble Lord, Lord
Anderson, invited your Lordships to do, to the further stages
that might ensue. There is an urban myth to the effect that two
exchanges is the limit. I had some involvement with the Corporate
Manslaughter and Corporate Homicide Bill in 2007, and on that
occasion there were seven exchanges between the two Houses. Other
Bills have demonstrated more than two exchanges on a number of
occasions. On something that raises an issue of constitutional
principle—and I borrow the description of the noble Lord, Lord
Anderson, in speaking to his Motion—it would be right if the
Commons were invited on several occasions to consider whether it
had got this right after all.
(Con)
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.
3.45pm
(GP)
My Lords, I strongly support this Motion and I disagree with the
noble Lord who has just spoken, because it is our job not to let
things through that are actually dangerous or damaging for our
constitution and for the British people. I think the Bill has a
huge number of flaws. I know the Minister to be an honourable man
and I am sure he believes what he is saying, but the point is
that he cannot tell us that this Motion is not necessary and he
cannot say he gives us all the reassurance: how do we know he is
going to be in post within a few weeks?
And of course, then we have the next Government. One of the
things that staggers me about the Bill is just how much power the
current Government are giving into the hands of the next
Government, which could of course be a Labour Government. Surely,
when the next Government come into power, those opposite will
bitterly resent the powers they have put into the Bill.
Personally, I think it is a dereliction of MPs’ duties as
legislators to allow this to happen, so I thoroughly support the
Motion in the name of the noble Lord, Lord Anderson. I think we
have to be very responsible here and say, no, we will not let
this pass.
(Con)
My Lords, “Do not take to yourself powers that you would not wish
your opponents to have” is the substance of the noble Baroness’s
speech, and I agree with that. I greatly admired the speech made
by my noble friend Lord Hamilton at Second Reading. I admired his
courage in putting his name to the amendment and I totally
respect his view that one has to consider and judge how long
ping-pong should go on. So, there is no disagreement between us
on this issue, even though we were on opposite sides in the
Brexit argument.
But I come down very strongly in favour of the points made by the
noble Lord, , who, remember, is a very
distinguished former clerk of the House of Commons and
understands these procedural matters perhaps more than any of us.
The noble Lord, Lord Anderson, called in aid the noble and
learned Lord, , and we do indeed all miss his
presence today and wish him a speedy return to full health and to
vigorous debating in this Chamber. He has, perhaps above all of
us, talked of the danger of Parliament becoming the creature of
the Executive. That is to turn our constitution on its head, and
it is something that none of us should be complicit in.
We do have a duty in this House, if we think the other place has
got it wrong, to say, “Please reconsider”, and it is not in any
way an aggressive use of our limited powers if we think their
rethink, which did not take very long, has not been adequate.
Therefore, I believe it would be entirely consistent with our
relationship with the other place, and with our duty to
Parliament, of which we are the second House, to say to our
friends and neighbours along the Corridor, “We think you have got
this wrong: you are giving power to the Executive which no
Executive, be it Labour or Conservative, should have”. I do not
want them to have it if they come into government, and I do not
think it is right that we should have it. For those reasons, I
shall support the noble Lord, Lord Anderson.
(Con)
My Lords, I oppose the Motion in the name of the noble Lord,
. For what it is
worth, I support the new iteration of Amendment 16, to which I
put my name on Report, in Motion D.
I very much respect the noble Lord, , and indeed my noble friend
, but I think we are missing
the bigger picture here. We are effectively asking the other
place to invalidate a Bill, for reasons I will develop shortly,
which it passed by 53 votes when the will of that House was last
tested. As I have said before in this House, I think there is a
danger of legislative overreach—of assuming powers and of
imposing responsibilities and obligations on the elected House,
fettering its discretion and, by so doing, interfering in its
rights and obligations. Notwithstanding what my noble friend
said, yes, it is our duty and
responsibility to ask the other place to think again, but we have
already done that. It has thought again and debated the issue. I
have to agree with my noble friend the Minister. He is far too
polite to describe the approach outlined by the noble Lord as it
truly is: extremely radical. He described it as a “novel”
approach.
Let us think about what this Motion would mean in practice. If we
are in the business of improving governance by scrutiny and
oversight, unless we vote for a fatal Motion to kill the
Bill—which is very unlikely, because the Opposition Front Bench
would not support such a move—surely the logical corollary is
that we want to improve it. The perverse application of the noble
Lord’s amendment would result in quite the opposite. The
opportunities to revoke and, importantly, to reform the caucus of
EU retained legislation would be slowed. There would be a process
of delay and obfuscation, and it would not be effective
government. In fact, it would be a betrayal of the
responsibilities and duties we have as the upper House in
scrutiny and oversight. Indeed, even above that, the Motion would
invalidate the very raison d’être of the Bill, which has to
exist. The noble Lord’s amendment is too rigid. It is
instructive, and it would assume the powers of Ministers. In some
respects, it would make this House itself part of the Executive
in a way that Amendment 16 did not, which was much more
permissive, declaratory and flexible in seeking to get to the
same objectives.
For those reasons of legislative overreach, inadequate scrutiny
and oversight, and delay and obfuscation if we were to go down
the path of this Motion, I respectfully ask your Lordships’ House
to reject it and support the Government.
(Non-Afl)
My Lords, having sat quietly listening to the debate, which has
focused on all kinds of minutiae over the past few weeks, I
cannot help but conclude, taking an overview, that if we look at
the history of Parliament we see that for hundreds of years it
has had a tense relationship with the Executive. Over that
period, it has developed a framework within which, in the
interests of the British people as a whole, the Executive
exercise their powers. We have had civil wars over it; people
have died in that cause. Now we are being asked, it seems to me,
to put that process into reverse. We are being asked that
Parliament should move in the opposite direction and return to a
system of governance where the Executive have ever more
increasing control over everyone’s lives. I do not think that is
the way we in this Parliament should respond to those kinds of
circumstances, and it is my personal view that to do so is
craven.
(Con)
My Lords, from my perspective, the way in which the noble Lord,
Lord Anderson, moved and explained his Motion was extraordinarily
powerful. My summation is that this is an existential issue—we
are way down a slippery slope. I respect the views of the elected
Chamber. Had we been subject to a general election or a
referendum which asked the British people whether they wanted
control given to an Executive, consisting of a number of
Ministers, or to each of their elected Members of Parliament
equally, and the British people had supported the idea that we
become an elected dictatorship of some kind, that would be a
different matter. However, I do not believe that that has been
put to the British people. I believe that the constitutional
safeguards which this House represents, and which are there to
protect ordinary citizens, need to be better safeguarded. I will
therefore support Motion B1.
(Lab)
My Lords, I was not intending to speak so I shall be brief. This
House is not elected—we know that—but that is not to say that it
does not have a role, which it does. We heard a speech just a
moment ago suggesting that ping-pong, the stage in which we are
at the moment, is a game that should have just one exchange and
leave it at that. There is no urgency about the time that it
might take to ask the elected Chamber to think again. I am in
favour of allowing the other place to think again. When you
consider the wider history—we have just had reference made to it,
quite rightly—we are going to allow a Bill of such magnitude to
go through, shifting the balance of power between the Executive
and the legislature in such a way, that people later on will look
back and wonder why on earth the House did not express some
degree of steadfastness in its view that the Government should
think again. I shall vote for the amendment for that reason.
(LD)
My Lords, this has been a fascinating debate, and I will not
prolong it much. On Motion B1, the noble Lord, Lord Anderson, and
indeed the noble and learned Lord, , who is unable to be here today,
deserve, as they have already received, great congratulations.
The Minister also should be commended on his flexibility in
assuring and reassuring us that we will get the information we
need. I hope the Minister can either talk to my noble friend’s
question as to the timing and mechanics of keeping the dashboard
up to date or give us a detailed letter at some point to let us
know how that would happen; that would be helpful.
The substantive debate is around Motion E1. Again, the noble
Lord, Lord Anderson, outlined with great detail and clarity the
mechanics of how his amendment would work. He made it very clear
that the debate in the Commons on the previous amendment has been
taken on board very thoroughly in the formulation of this further
amendment.
The noble Lord, Lord Jackson, used the word “invalidate” twice,
but if he looks at this amendment again he will find that it does
not invalidate anything around the purpose and intent of the
Bill. What it would do is bring Parliament back into the frame,
which is what the majority of your Lordships have been talking
about today. That is important. Clause 15 takes very wide powers
to revoke and replace retained EU regulation, and as the noble
Lord, Lord Anderson, said, the level of this regulation is not
normal bits-and-pieces regulation but is essentially primary law.
It is not appropriate for statutory instruments to be used to not
just change but completely replace primary law without a
substantial role for Parliament.
The Minister talked about parliamentary scrutiny being at an
appropriate level. It is clear that your Lordships have set out
that we do not consider the current level to be appropriate,
which is why this amendment is very important. The Government see
it as a slippery slope, and will use that argument, but clearly,
the exceptional nature of this situation means that it is not
so.
4.00pm
Through this debate, I have come genuinely to respect the
consistency and thoroughness of the view of the noble Lord, Lord
Hamilton. He has been absolutely right about where the power
should be in this argument. He talked about endless ping-pong,
and I respectfully suggest that we are not proposing that; we are
proposing one more ping and one more pong, and that is what we
are debating now. That is why I side very much with the argument
of the noble Lords, , and , and others, and that is why
we on these Benches will be supporting the amendment.
of Darlington (Lab)
My Lords, I want to speak briefly to Motion E1 and to start by
thanking the noble Lord, Lord Anderson, for his work on this
amendment and throughout consideration of the Bill. Noble Lords
will be aware that the amendment differs from the one we debated
in Committee and on Report. They will also know that, since the
Bill was first published, we have been concerned that it gives
Ministers far too much power without reference to Parliament.
Clause 15 was especially difficult for parliamentarians to
accept, given the extraordinarily wide-ranging powers to rewrite
regulations which, in effect, could have similar power to primary
legislation. This point was made by the noble Lord, Lord
Anderson, but it is worth repeating.
Motion E1 allows for a committee to consider regulations when
they are rewritten by Ministers and, where necessary, to refer
them to the House for consideration. This is a more modest
suggestion than that proposed and agreed by this House at Report.
As we have heard, a not dissimilar process was used for the Civil
Contingencies Act 2004 and, as the noble Lord, , informed us, the Census
Act.
Our view is that this approach is proportionate, not obstructive
of the Government’s intentions and should be acceptable to them.
We are concerned that the Commons has so far continued to push
back on parliamentary scrutiny and views the procedure proposed
by this House as inappropriate, but we hope that the newly
constructed amendment proposed by the noble Lord, Lord Anderson,
will be welcomed by the Government and the other place.
The Commons has expressed a view, but we are returning to it a
compromise. We on these Benches consider it to be the
appropriate, reasonable and responsible thing to do. Following
the question of the noble Lord, Lord Jackson, about whether we
are imposing ourselves on the other place, I note that it
adjourned a couple of hours ago and seems to have adequate time
in its schedule to consider a rather modest suggestion from this
House.
(Con)
My Lords, once again, we have had a full, worthy debate on the
Bill. I will keep my response brief, as many of these points are
well worn and we have largely covered them in opening the
debate.
I say to the House that this is not just an ordinary legislative
amendment; it is about the procedures of Parliament. It is not
even about the procedures of this House; it is about the
procedures of the other place. The amendment seeks for this House
to say to the House of Commons, “We think that you should set up
by legislation an entirely untested and novel way of conducting
your scrutiny of secondary legislation”, when the House of
Commons has already said it does not wish to do that and does not
think it appropriate. It is entirely inappropriate for us to do
that when we have already heard the answer once.
The Bill is vital, and now that we have taken back control of our
statute book, it is essential to update and modernise by
amending, repealing or replacing those rules and regulations that
are no longer fit or were never fit for the UK. This will allow
us to create a new pro-growth, high-standards regulatory
framework to give businesses the confidence to innovate, invest
and create jobs. It will provide legal certainty and clarity
across the statute book, ensuring we have consistent rules of
interpretation across the UK body of law.
Let me mention briefly some of the points raised in the debate.
On Motions B and B1, I thank the noble Lord, Lord Anderson, for
his speech. I hope that the House will move forward with Motion
B.
Let me reply briefly to the question from the noble Baroness,
Lady Ludford, on the timescale for this work. We 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.
With regards to Motion E1, as I have already said, the Government
listened to the views of this House on a number of issues in the
Bill. We have already modified the schedule massively to take
account of the many concerns that were addressed. I have to say,
I consider it an unfair characterisation that the Government have
ignored this House—far from it. It is much to the contrary.
On the Motion itself, I can only stress to the House that we
believe this proposed novel scrutiny procedure to be unnecessary.
The House of Commons has said that it also believes it to be
unnecessary. With the reporting requirements already in the Bill
and the proven sifting committee procedure that we have already
agreed, Parliament will have strong provisions to scrutinise any
legislation that is brought forward under this Bill. In the
Government’s view, the appropriate balance between the need for
scrutiny and the need for reform has been struck. I therefore
hope that noble Lords will not push forward this amendment.
Motion A agreed.
Motion B1 not moved.
Motion B
Moved by
That this House do not insist on its Amendment 6, to which the
Commons have disagreed for their Reason 6A.
6A:Because the retention of anything which is retained EU law by
virtue of section 4 of the European Union (Withdrawal) Act 2018
would be inconsistent with the abolition of the principle of
supremacy of EU law.
Motion B agreed.
Motion C
Moved by
That this House do not insist on its Amendment 15, to which the
Commons have disagreed for their Reason 15A.
15A: Because the Commons do not consider the Lords Amendment
necessary in order to maintain environmental protection or food
standards.
(Con)
My Lords, in moving Motion C, I will also speak to Motion C1,
both of which relate to Lords Amendment 15.
We have had myriad discussions on environmental protections
during the passage of the REUL Bill. I can only stress once again
that the Government have no intention of lowering environmental
standards, nor of breaching their international obligations. This
not only makes the restrictions that this amendment places on the
usage of the reforming powers with regard to the environment
unnecessary; it also risks delaying or even preventing reform
where it would be beneficial to do so. Indeed, as drafted, this
amendment may in fact also make it more difficult for departments
to ensure that the policy effect of environmental regulations can
be maintained at the end of the year through exercising the
restatement power. By doing so, it could actively undermine the
purpose that it seeks to achieve.
As I and Ministers in the other place have set out previously,
the Government are fully committed to upholding environmental
standards. Defra has already reformed retained EU law in a number
of key areas through flagship legislation, such as the Fisheries
Act 2020 and the Agriculture Act 2020. In addition, since leaving
the EU, the Government have also passed the landmark Environment
Act 2021 and published strategies including the Environmental
Improvement Plan 2023. Any changes to legislation will need to
support these ambitions as well as be consistent with our
international obligations. Furthermore, Defra has in many areas
already reformed its retained EU law to streamline and update it
without diminishing—in fact, strengthening in some cases—our
levels of environmental protection.
We are very clear that this sets a direction of travel on
environmental regulation that makes this amendment unnecessary
and, as I said, the amendment may make it more difficult to reach
the ambition on environmental protections that I am sure is
shared widely across the House. I therefore ask the House to
support Motion C and the noble Lord, , to withdraw his Motion C1.
Motion C1 (as an amendment to Motion C)
Moved by
At end insert “, and do propose Amendment 15B in lieu—
15B: After Clause 16, insert the following new Clause—
“Environmental protection (1) Regulations may not be made by a
relevant national authority under section 12, 13, 15 or 16 unless
the relevant national authority is satisfied that the regulations
do not— (a) reduce the level of environmental protection arising
from the retained EU law to which the provision relates; (b)
conflict with any relevant international environmental agreements
to which the United Kingdom is party. (2) Prior to making any
provision to which this section applies, the relevant national
authority must— (a) seek advice from persons who are independent
of the authority and have relevant expertise, and (b) publish a
report setting out— (i) how the provision does not reduce the
level of environmental protection in accordance with subsection
(1), and (ii) how the authority has taken into account the advice
from the persons referred to in paragraph (a) of this subsection.
(3) In this section “relevant international environmental
agreements” includes but is not limited to— (a) the UNECE
Convention on access to information, public participation in
decision-making and access to justice in environmental matters
(Aarhus, 25 June 1998); (b) the Council of Europe’s Convention on
the Conservation of European Wildlife and Natural Habitats (Bern,
1979); (c) the UN Convention on Biological Diversity (Rio, 1992);
(d) the Convention on the Conservation of Migratory Species of
Wild Animals (Bonn, 1979); (e) the Convention for the Protection
of the Marine Environment of the North-East Atlantic (OSPAR,
1992); (f) the Convention on Wetlands of International Importance
especially as Waterfowl Habitat (Ramsar, 1971).””
(CB)
My Lords, my proposed new clause represents a simplified and
shortened version of the amendment passed by your Lordships’
House on Report on 15 May. Before I explain the simplification, I
want to thank the noble Baroness, Lady Neville-Rolfe, and
officials from the Bill team for their helpful
discussion—although I am disappointed that we did not manage to
reach a compromise, which I had hoped we would be able to do.
I will briefly recap the purpose of the amendment and explain the
differences between my new proposal and the previous version. The
core purpose remains the same: to ensure that any changes to EU
laws do not dilute environmental protection or contravene
relevant international environmental agreements, to ensure that
expert advice is sought and to ensure transparency by requiring
the publication of an explanation of how any changes do not
reduce environmental protection and how expert advice supports
this assertion.
The principles embodied in the amendment—non-regression, expert
advice and transparency—are so non-controversial that I am at a
loss to understand why the Government find them unacceptable. The
new amendment differs from the version on Report in three
principal ways. First, it leaves out food standards and is
concerned exclusively with environmental protection. I would have
preferred to leave food in, but the chair of the Food Standards
Agency said it was unnecessary, and I defer to her advice.
Secondly, the requirement to consult experts is less prescriptive
than in the earlier version and is modelled on the wording in
Sections 112(7) and 4(1) of the Environment Act 2021. Thirdly,
acknowledging a point made on Report by the noble Lord, , the new version of the
amendment recognises that the list of international environmental
agreements is not exhaustive; they are simply examples.
What are the Government’s arguments against the amendments? On
Report the noble Lord, , for whom I have the highest
regard, said that my amendment was “burdensome” and
“unnecessary”. As my noble friend pointed out to me,
it is difficult for the amendment to be both at once. If it is
unnecessary because it happens anyway, it cannot be burdensome.
If it is imposing an extra burden on Ministers by introducing
further steps required before changing the law, that may well be
a good and necessary thing.
In explaining in the other place why the amendment should be
rejected, the Solicitor-General said:
“Ministers have made it clear repeatedly at every stage of this
Bill’s passage in both Houses that we will not lower
environmental protections or standards”.—[Official Report,
Commons, 24/5/23; col. 328.]
The Minister made essentially the same point a few moments ago.
The question for me is whether the assertions that Ministers have
made are matched by the reality. If they are not, surely there is
a case for securing an extra layer of guarantee in the Bill.
What does the Government’s own statutory watchdog, the Office for
Environmental Protection, say about current environmental
standards? Are the Government living up to their promises? The
2023 statutory report from the Office for Environmental
Protection, Progress in Improving the Natural Environment in
England, 2021/2022, makes for grim reading. It says:
“We have little good news to report … We assessed 32 trends
across the breadth of the natural environment; nine trends were
improving, eleven were static, and eight were deteriorating … We
assessed 23 environmental targets and found none where
Government’s progress was demonstrably on track … Overall, we do
not think the current pace and scale of action will deliver the
changes necessary to improve the environment in England
significantly, as required by the Environment Act 2021”.
It is no use saying, “We already have an Environment Act, and
therefore the amendment is unnecessary”, because the Government’s
own watchdog is saying that action is not matching the rhetoric.
We are not on track to meet the targets in the Environment Act.
While I have the highest confidence in the noble Lord, , as an Environment Minister and
in his commitment to the environment, the OEP’s report shows
that, more widely, the Government are failing miserably to
protect our environment.
Furthermore, this is about the longer term. As was said in a
previous debate, even if present Ministers may be committed to
not diluting environmental standards, how do we know what future
Administrations might decide to do? In its briefing for this
debate, the Law Society said:
“It is imperative that business and the public can be certain
that following the revocation of the EU laws, environmental
protections and standards are upheld. Uncertainty is not only
detrimental to the UK’s transition to net zero but also this
country’s status as an attractive place to do business. Unless
these standards are protected in law, we are concerned that
future administrations could roll back on our commitments, thus
creating uncertainty”.
In my view, there is thus an indisputable case to add a clause
that would help to ensure that future changes to retained EU law
do not further harm our already badly damaged natural
environment. I will listen carefully to the Minister’s reply but,
at the moment, my intention is to test the opinion of the House.
I beg to move.
4.15pm
(GP)
I support Motion C1. It is interesting, because all the
constitutional arguments we heard earlier apply equally to this
Motion. It gives Ministers the powers to delete or rewrite
thousands of laws almost without any parliamentary scrutiny.
There is a vast ecosystem of about 1,600 environmental laws that
are threatened by this Bill. These laws protect humans, animals
and the broader environment. The Minister stood up and—forgive me
for using this word —boasted about the Government’s credentials
on environmental issues. I am sorry to inform him that, among the
environmental lobby within the UK and worldwide, this Government
have zero credibility on environmental issues. I am very happy to
list them if necessary.
I accept that some of these laws are probably defunct or could be
improved; that would be acceptable. What would be unacceptable is
for the Government to weaken or delete laws that we need and that
protect us and our environment. Although this is a constitutional
issue, it is also about life. Forgive me if I am a bit emotional
about this, but this is about the health of people and the
planet. Without the planet, we do not exist. If we do not support
our bees, we do not exist. If we do not think about our food
standards, we will cease to exist. So it is incredibly important
that this Motion is agreed to. We have to say to the Commons that
it has got this dreadfully wrong.
(Con)
My Lords, on Report I had a bit of a spat with the noble Lord,
, on this issue. It strikes me
that it would be very odd if the Government wanted to put the
health of their citizens at risk by not adopting these measures,
so I am sure that they will. On top of that, not adhering to high
food standards would completely undermine our exports to other
countries. I do not quite see the point of this amendment and I
will certainly vote against it.
(LD)
My Lords, the debate on this amendment has been somewhat shorter.
It would be easier to support the amendment from the noble Lord,
, were it not for the very
explicit reference to regulatory burden. It is very clear in the
Bill as it is now that the regulatory burden cannot increase. It
is not clear how it is measured, whether as a particular
regulation, a range of regulations or an entire statute book of
regulations. But, in total, financial costs cannot go up;
administrative inconvenience cannot go up; obstacles to trade or
innovation cannot go up; obstacles to efficiency, productivity or
profitability cannot go up; and a sanction that affects the
carrying out of a lawful activity cannot go up.
It is in that context—the context of the Bill—that those of us
who have heard the very reassuring words of the noble Lord,
, whom we all respect in this
House, are caused to be suspicious. When the Government kick back
so hard and so thoroughly on what I think the noble Lord, , very rightly characterised as a
modest amendment, we become more suspicious yet. The very fact
that the Government are resisting this amendment is the reason we
need it.
(Con)
My Lords, I wonder whether we could reflect on the House of
Commons Select Committee’s report on the state of things at the
moment in Defra. One of my worries is whether the Government are
in a position, frankly, to understand just where we are on this.
After all, it turns out from that very powerful Select Committee
report that Defra actually transacted 14 million transactions
manually because its systems do not actually cover what needs to
be done. In those circumstances, I am not sure that any of us can
be sure that the Government can assess where they are on these
matters, because of the difficulties which they have with not
funding satisfactorily the department which is supposed to deal
with this, or any of its agencies such as the Environment Agency
and Natural England. In those circumstances, I very much hope
that the Minister will be kind enough to help me on this, in his
usual charming way—
Noble Lords
Oh!
(Con)
I say that to try to make sure it continues to be a good-natured
debate. There is no doubt that many people who are not
antagonistic to the Government do not want to rely on the
excellence of the present Minister, but want to make sure that
future Ministers do this job as he, I am sure, would hope to do
it himself. Therefore, the question here is: given that we have
doubts about the efficacy of the department most responsible for
it—not because of our own concerns but because of the House of
Commons Select Committee—and given that he will surely want other
Ministers to follow him in the attitudes which he has displayed,
would it not be more sensible to put this into the law, as indeed
the Law Society itself has suggested? I think I am right in
saying that every exterior independent body, including the
Government’s own watchdog on this matter, agrees. I remind the
House of my own interests, as declared in the register of
interests: not only the things I do outside but also my
chairmanship of the Climate Change Committee. I just feel that
the world would be more assured that the kind of attitudes which
we have heard from the noble Lord, , for example, will be the
attitudes enforced in the future. That is all we are asking, and
I do not quite understand why that is unreasonable.
(Con)
My Lords, I listened with great interest throughout Committee to
the noble Lord, , and his very reasonable and
constructive proposals for protecting our environment. But it is
time to move on to UK law, which is more transparent and will
save the taxpayer the cost of having to pay for a dual system of
EU and UK law. Yes, we are already committed by international
obligation to our international treaties, but it is ironic that
many of the problems which we hear considered have arisen under
this dual system of arrangements. I am afraid that I will not
support the noble Lord’s amendment. I hope the Government will
get on with it, and we will move to restoring UK law over this
vital environmental sector so we can all have the protections we
need for the environment and hold the Government to account.
of Ullock (Lab)
I thank the noble Lord, , for bringing this amendment
forward and assure him of our full support. We heard from him
that, in response to comments made by Ministers on Report, the
amendment has been altered to focus on enshrining a legal
commitment to maintain existing levels of environmental
protection, and that he has taken into account much of what was
said during that debate.
One of the things that we debated is how much of the Bill has
significant implications for environmental law and for many
regulations of significant public interest protecting our natural
environment and many aspects of our health so, as the noble Lord,
, said in his introduction, and
others have said, it has been pretty disconcerting to hear the
Government describe commitments to maintain existing levels of
environmental protection as burdensome. I find that quite
shocking. We know that there is wide-ranging support for an
environmental non-regression principle. Amendment 15 would give
legal substance to what Ministers have been saying they want to
achieve. In fact, in his introduction, the Minister said that the
Government are committed to maintaining high environmental
standards; the noble Lord, , said that; and the Minister in
the other place, , said that. However, as a
matter of law, just because somebody says something provides no
assurances or protections and, however welcome it is, it cannot
bind the hands of any future Ministers, as the noble Lord, , has just said.
The noble Baroness, Lady Jones, mentioned concerns that some
regulations that we need may well be lost. I want very briefly to
give an example, which is the intention to remove some items
relating to the national air pollution control programme—the
NAPCP. Removing the obligation to draw up and implement the
programme strips away any clear duty on the Government to show
how they will reduce emissions in line with their legally binding
emissions targets. The Government say that by repealing this item
they can better focus on what will help clear the air, such as
delivering on the targets set in the Environment Act. In this
debate, the Government repeatedly cite the existence of the
Environment Act as the reason why such amendments are not
necessary, and no doubt the Minister will repeat that shortly.
However, if we look at Regulation 10 of the National Emissions
Ceilings Regulations 2018 and the associated implementing
decision, we see that the Government are clearly required to
consult the public as part of the process of preparing and
revising the NAPCP. This is in stark contrast with the approach
they took with the revised environmental improvement plan earlier
this year where there was no public consultation, very limited
stakeholder engagement and limited transparency over which
stakeholders were contacted—yet the Minister in his introduction
held the EIP up as something to which we should aspire. Given
that there is currently no provision in the Environment Act to
require any public consultation in relation to future revisions
of the EIP, how will the Government ensure that the public do not
lose their ability to contribute and to have their say?
I also want to look at some of the powers in the Environment Act
and how they are constructed. For example, it includes a
non-regression commitment in respect of one piece of REUL, the
habitats regulations. This empowers the Secretary of State to
make regulations to amend part of the habitats regulations
“only if satisfied that the regulations do not reduce the level
of environmental protection provided by the Habitats
Regulations”.
So I consider it relevant in today’s debate to look at why the
Government opted to include this non-regression safeguard in
law.
4.30pm
During the passage of the Environment Act, the Minister, at that
time the noble Lord, , explained that
“the clause includes a number of safeguards that are designed to
retain our existing protections”,
recognising the importance of underpinning commitments in law. He
went on:
“Ministers will have to be satisfied and explain to Parliament
that any change would not reduce our existing environmental
protections, and Parliament will have a vote on any use of the
powers”.
He also explained that consultation on any proposals would be
comprehensive and that there would be
“a full impact assessment of any regulations made under the
powers, when bringing them forward”.—[Official Report, 12/7/21;
cols. 1620-21.]
If the Government were committed to such a safeguard in the
Environment Act, which was brought in only in 2021, why are they
so against making a similar non-regression commitment on
maintaining existing levels of environmental protection in law in
this Bill?
As the noble Lord, , said, this is very
uncontroversial. I await the Minister’s response with interest,
but if the noble Lord, , wishes to test the opinion of
the House, he will have our strong support.
(Con)
My Lords, I can keep my response brief. I have lost track of the
number of times during the passage of the Bill that we have had
this debate. We had it in Committee, on Report and we are having
it now—and of course it was repeated in the House of Commons. The
House of Commons has heard the assurances of the Government. I
suspect that nothing else I can say will change most Members’
minds but, for the benefit of the noble Lord, , I will repeat the arguments
again.
The noble Lord’s Motion proposes to insert additional measures
into the Bill on environmental protections. I appreciate the
sentiment, and we recognise the importance of maintaining our
environmental standards, but the Government do not believe this
amendment to be necessary. The UK is a world leader in
environmental protection, despite what the noble Baroness, Lady
Jones, wants to tell us, and we will continue to uphold our
environmental protections. Furthermore, in a debate in the other
place, the House of Commons rejected essentially a similar
amendment by a majority of 77.
We are committed to our environmental protections. Nothing in
this Bill changes that commitment. As I referenced in my opening
speech, we have substantive concerns that this amendment, in the
way that it is worded, would actually make it more difficult to
uphold those environmental commitments. I hope that, if the
Motion is moved to a vote, the House will reject it.
(CB)
I thank all noble Lords who have taken part in this short debate,
and I thank the Minister for his response. I will not speak for
very long but I want to make three specific comments in response
to particular points that have been made.
The noble Lord, Lord Hamilton, referred to food standards. I
remind noble Lords that this version of the amendment does not
include food, so the noble Lord can relax in his seat and not
worry about food.
The noble Baroness, Lady Lawlor, seemed to imply that the
amendment would somehow fossilise existing regulations in
relation to the environment. It is not about fossilising existing
regulations; it is about allowing change and improvement as long
as they do not dilute environmental protection and as long as
they are made in consultation with, and on the advice of,
experts, and that that advice is published. This is not trying to
freeze things in 2023 at all. I hope that provides
reassurance.
As a final point, in response to the Minister, who repeated the
oft-quoted mantra that the UK is “world-leading” in environmental
protection, I remind him of what I read out less than half an
hour ago from the Government’s own watchdog. It makes grim
reading. We are failing on all the targets that the OEP looked
at. We are not world-leading; we are struggling. This simple and
modest amendment aims to put further legal protections around
what the Government claim they are doing anyway; it is simple,
modest and straight- forward.
I would not like to be the one going home to explain to my
children and grandchildren that I stood up and voted against
protecting our environment. I hope that other noble Lords feel
the same—that those who have children or grandchildren and are
thinking of the future would want to protect the environment on
their behalf. Therefore, I wish to ask the House to agree to
Motion C1.
[Division 1
Division on Motion C1
Content
244
Not Content
190
Motion C1 agreed.
Held on 6 June 2023 at
4.34pm](/Lords/2023-06-06/division/1159A556-5E6C-4C79-B1E9-B7BFAE7B28C5/LordsChamber?outputType=Names)
4.46pm
Motion D
Moved by
That this House do disagree with the Commons in their Amendment
16A, do agree with the Commons in their Amendment 16B, and do
propose Amendment 16C as an amendment to Lords Amendment 16 in
lieu of Commons Amendment 16A—
16A: In subsection (2)(c), at end insert “including specifying in
a list such provisions of retained EU law as is intended to be
revoked or reformed”
16B: Leave out paragraphs (3)(b) to (3)(d) and insert—
“(b) each subsequent period of 6 months, subject to subsection
(3A). (3A) The last reporting period ends with 23 June 2026.”
16C: After subsection (2) insert—
“(2A) The plans that must be set out under subsection (2)(c) must
include a list of the provisions of retained EU law which His
Majesty’s Government intends to revoke or reform.”
Motion D agreed.
Motion E
Moved by
That this House do not insist on its Amendment 42, to which the
Commons have disagreed for their Reason 42A.
42A: Because the Commons consider the scrutiny procedure imposed
by the Lords Amendment to be inappropriate.
Motion E1 (as an amendment to Motion E)
Moved by
At end insert “, and do propose Amendment 42B in lieu—
42B: After Clause 15, insert the following new Clause—
“Parliamentary scrutiny (1) A Minister of the Crown may not make
regulations under section 15 unless— (a) a document containing a
proposal for those regulations has been laid before each House of
Parliament, (b) the document has been referred to, and considered
by, a Committee of the House of Commons (‘the Committee’), and
(c) a period of at least 30 days has elapsed after that referral,
not including any period during which Parliament is dissolved or
prorogued or either House is adjourned for more than four days.
(2) If the 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 before the period in subsection (1)(c)
elapses. (3) If any amendments to the regulations, whether or not
proposed by the Committee, are agreed by both Houses of
Parliament, the regulations must be made in the form so
amended.(4) If one House agrees amendments to the regulations
under subsection (3), the regulations may not be made until the
other House has debated and voted on a motion to agree or
disagree with those amendments.””
(CB)
My Lords, it has all been said. This is a Motion on parliamentary
scrutiny. I beg to move Motion E1.
[Division 2
Division on Motion E1
Content
257
Not Content
182
Motion E1 agreed.
Held on 6 June 2023 at
4.46pm](/Lords/2023-06-06/division/BFBEBC38-44E4-4831-AF9F-BAA89D6FEB7D/LordsChamber?outputType=Names)
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