Clause 12: Power to restate retained EU law

Debate on Amendment 102 resumed.

My Lords, I will speak to the proposal that Clause 12 should not stand part, which is in my name and those of my noble friend Lord Fox and the noble Baroness, Lady Chapman. I will also speak to the proposal that Clause 13 should not stand part, and to Amendment 111, which would require consultation, reasoning, et cetera for proposed restatement regulations.

My noble friend Lady Humphreys quoted the powerful view of the Delegated Powers Committee that Clauses 12 and 13 should be removed from the Bill because they inappropriately delegate legislative powers and appropriate powers that ought to belong to Parliament and be achieved subject to specific primary legislation. That committee brought to our attention, or reminded us of, the delegated powers memorandum, which says:

“This power cannot substantively change the policy effect of legislation.”

The DPRRC says:

“We doubt whether this is correct. Where there is ambiguity— allowing Ministers to make changes to resolve ambiguities is one of three factors that a restatement is supposedly able to address—

“as to whether policy A or policy B is intended and the legislative restatement emphatically resolves in favour of policy A, the restatement has … made a firm policy choice”.

That view of our committee makes sense. It invited us to ask the Government to explain why none of the law that can be restated under the powers in Clause 12 would instead merit being restated in primary legislation. I hope the Minister will do so in his response.

The committee also draws attention to the powers that Ministers have, I think in Clause 14(6), to reproduce the effects of the supremacy of EU law, the retained general principles of EU law and retained EU case law, to ensure that the restatement has the same practical outcome that existed previously. These three elements are the ones that are otherwise abolished by the Bill; we debated that today in relation to Clauses 3 to 5. So the Government want to bring back, under Clause 14(6), the power for Ministers to reproduce the effects of the things they are abolishing, to ensure that the restatement has the same practical outcome that existed previously.

The DPRRC comments:

“This power may give rise to significant policy questions”,

but they are given to Ministers to answer rather than Parliament. I add to that a suggestion that it will also create legal confusion, because, on the one hand, you have abolished these three elements—supremacy, general principles and retained rights—yet, on the other, Ministers can bring them back. I have not quite worked out how that is supposed to work.

My noble friend Lady Humphreys quoted the fact that the powers in Clause 12 are completely “open-ended”, with

“no requirement for consultation … criteria … or … pre-conditions”.

That explains our Amendment 111, which again seeks to repeat the elements we constantly introduce.

The other thing that Clauses 12 and 13 give to Ministers, in restating REUL in secondary legislation, is the power to use different words or concepts from the original instrument and to make any change considered appropriate. That is rather worrying, and requires the Minister to explain what is meant by “restatement” if the restated law will be different in concept from the original law. To what extent can different words be used before the restatement changes into a new and distinct law? It is no longer a restatement; because different words and concepts have been used, it becomes, in effect, a new and distinct law. When does it morph into a new law, having started off as a restatement? There is quite some confusion on that.

Finally, if I have understood correctly the email from, and blog of, the distinguished legal commentator Joshua Rozenberg, it appears that he has been highlighting the fact that the pensions of some 11,000 serving or former part-time judges were going to be abolished because they relied on EU law. But apparently the Deputy Prime Minister, the Secretary of State for Justice, announced that he was going to save these pensions and that there was no intention to grab them back from affected judges.

I presume that this is the first announcement we have had of what is to be preserved under the Bill. Perhaps the Minister could confirm that. Obviously, I think it is a good thing. I do not think that judges’ pensions, any more than former MEPs’ pensions, should be whipped away. I suspect the Minister might agree on that point. That is a good thing, but we are still fighting for confirmation on things such as water safety, air quality, product safety, employment rights and everything else. When are we going to hear about what is going to be preserved from those other areas of deep concern? I am very pleased for judges, and indeed gratified, but it seems quite odd that we have had an announcement about that but we do not know whether anything else is going to be preserved. Perhaps the Minister could enlighten us in his reply.

My Lords, I support Clauses 12 and 13 no longer standing part of the Bill. Opposition to those clauses has been led by the noble Lord, Lord Fox, and the noble Baroness, Lady Ludford. I support them on the very simple premise that the Government are attempting to sweep under the carpet all legislation, including primary legislation which creeps up on secondary legislation; in other words, the secondary legislation has been adopted as primary legislation.

Before I go further—and I think I have attempted to do this already—I would like to put right the misconception that the EU law coming into our country was all under the carpet, that it was not considered and endorsed by Parliament. I suppose the Government have not put it quite so colourfully, but they could well say, on that basis, “What’s all the fuss about? The EU legislation arrived under the parliamentary carpet, why are you making all this fuss now?”

I want to correct that misconception. I sat for a number of years on the EC Committee and then the EU Committee in the 1980s and 1990s. I must have had about 10 to 12 years sitting on those committees—it was the same committee but it was renamed when the EC renamed itself the European Union. When I was on that committee, we had very alert clerks and very good relations with Brussels. The result was that when a regulation that caused concern was being considered by the Commission, with great co-operation from the Commission we were shown the draft of that regulation, really in its final form, before it was introduced as a regulation. We would examine it. It happened on a number of occasions; I cannot count the number. Your Lordships’ European Committee considered in detail the regulation, took evidence, wrote a report and sent that report back to Brussels.

I do not want to fancy ourselves too much, but the House of Lords European Committee had a great reputation in Brussels. Of all the parliaments in the union, we were the most constructive. I suppose I have to include whatever the other place was doing. With our good relationship with the Commission, when the Commission read our report it was influenced and changed the drafting of that particular regulation.

Of course, of the many regulations that were brought through when we were in the European Union, I am referring to only a few, but it is an example of how we were involved in the creation of regulations in an influential way.

Before I turn to the clause stand part notices, I shall just add one extra thing to the case I was making for the Government earlier. I failed to add a further point the Government could legitimately argue: this time, Ministers will at least be looking at this legislation and, therefore, something is happening now that did not happen during the days when we were in the European Union. I concede that extra point to the Ministers, because I think it is fair to do so. But to go back, it is quite plain from the way Clauses 12 and 13 are drafted, relating not just to secondary legislation but to secondary legislation that has become assimilated into primary legislation, that this is just sweeping everything under the carpet. This is not satisfactory and that is why I suggest that we oppose the continued existence of Clauses 12 and 13.

My Lords, I am grateful to the noble Baroness, Lady Ludford, in particular, for her speech. She said a lot of the things that I was going to say, and noble Lords should all be grateful to her, because she has saved them listening to me. We agree that we have real problems with Clauses 12 to 14. Our concerns about Clauses 12 and 13 are mainly about the extent of the powers that are going to be held by Ministers for national authorities, and the lack of consultation. I also want to mention Amendment 103 in the name of the noble Baroness, Lady Humphreys, because it seems appropriate, on the face of it, for the devolved Administrations to have rather more involvement than these clauses, as currently drafted, seem to allow for.

In Clause 12, it would be good to get a bit more clarity from Ministers on this issue of restatement. I am not entirely clear what is meant by restatement. It is rewriting, I think, because if it were not some sort of rewriting, it would just be “retain”; we would not be having another category called “restate”. Can the Minister define what is meant by “restate”? Obviously, it means that the language can be changed, which could change the meaning, the scope, the power of the law. It could be altered, maybe inadvertently or perhaps intentionally; so who is going to check that the restatement has the effect that Ministers would want, that the devolved Administration would want, that those who are subject to the law would want, or that Parliament would want? I understand if it is about wanting to bring different pieces of law together, perhaps, or to resolve some sort of ambiguity, but how is the Minister going to determine that something is ambiguous? If it is ambiguous, by definition that must mean that there is more than one way of interpreting this piece of law; if there was not, it would not be ambiguous. So how are they going to determine what the right answer to that should be?

The DPRRC is very helpful and clear about this. Apart from anything else, it says that both Clause 12 and Clause 13 should be removed from the Bill—we think it is completely right—because they “inappropriately” delegate legislative power and give

“Ministers powers to legislate to achieve effects that ought instead to belong to Parliament and be achieved in … primary legislation.”

But they also refer to restatement, as the noble Baroness, Lady Ludford, drew to our attention. We are concerned that that could take the Government somewhere they perhaps do not intend to go. Given the pressures on time, which we have already discussed at length—do not worry, Minister, I am not going to go through all of that again—restatement could have a different outcome from that intended. That is before we even get to the powers to revoke, which in some ways might be more concerning. That is a real problem for the Government, and it would be good to know whether they have recognised that potential issue and if so, what measures they have put in place to help prevent any undesirable outcomes that may arise.

I will leave it at that because we will probably come on to similar arguments in the next group. We are very concerned. We do not generally have clause stand part debates, but we are very worried about these two clauses in particular.

I thank all noble Lords who have spoken, and I will do my best to assuage the concerns of the noble Baroness, Lady Chapman. The main objective of this Bill is to end REUL as a legal category, as we have said many times. We view the powers to restate as critical to ensuring that the Bill delivers this vital objective, while at the same time ensuring that UK legislation is clear, accessible and improves legal certainty.

I will start by addressing the amendment in the name of the noble Lord, Lord Fox, which the noble Baroness, Lady Ludford, spoke to. Clause 12 is critical in ensuring that the UK and, crucially for the noble Baroness, Lady Humphreys, who I do not think is in the Chamber any more, devolved Ministers—

Noble Lords:

She is over there.

Oh, she is! I apologise to the noble Baroness. She was sat somewhere else earlier.

My point is that devolved Ministers would also have this power and are able to clarify, consolidate, codify and restate any secondary retained EU law to preserve the effect of the current law, while removing it from the category of retained EU law. Removing this power will remove the ability of departments to restate retained EU law to preserve the effects of retained EU-derived principles of interpretation in order to maintain the existing policy effect where it is considered appropriate for the UK in a post-Brexit setting.

The noble Baroness, Lady Ludford, queried whether restatements were just bringing back principles removed by the Bill. I can understand why she might think that, but other parts of the Bill are clear that supremacy and general principles are being abolished and Section 4 of the EU withdrawal Act is being reprieved. These principles or rights will not be recreated in general terms; rather, this power is limited to restating specific individual effects of these principles in particular case law. Indeed, this power will, I submit, provide greater legal certainty to the UK statute book by enabling Ministers—both UK and devolved Ministers—to restate REUL and codify the effects of retained EU case law or EU-derived interpretive effects in a clear and more accessible way.

On the query from the noble Baroness, Lady Chapman, the general legal definition of “restate” is to articulate the principles of REUL for a specific area of law—which is in fact what these powers do. I submit that there is no need to remove this clause from the Bill.

Turning to Amendment 102, tabled by my noble friend Lady McIntosh, I assure her that we have sought to ensure that the Bill contains robust scrutiny mechanisms, including for the power to restate under Clause 12. The noble Baroness, Lady Ludford, cited the comments from the Delegated Powers and Regulatory Reform Committee. I reassure her that the restatement power—I think this also goes to the heart of the query from the noble Baroness, Lady Chapman—can be used only to retain a current policy effect of specific individual implications of interpretive effects or retained case law; that is, it maintains the policy status quo, so there would be no changes to the underlying policy.

Regarding consultations, our expectation is that departments will follow the standard procedures with the devolved Governments during policy development. The UK Government are, as always, committed to respecting the devolution settlements and the Sewel convention. Indeed, as I said earlier, the majority of the powers in the Bill—including the powers to restate under Clauses 12 and 13—are indeed conferred concurrently on the devolved Governments. We will of course continue discussions with the devolved Governments moving forward to ensure that the most efficient and appropriate approach to REUL can be taken in a way that provides certainty for all parts of our nation. Therefore, we do not consider that adding a requirement to consult on the face of the Bill is necessary.

Amendment 103 would prevent the power to restate from being able to operate fully on devolved REUL. It is pivotal that there are no impediments or delays in delivering this much-needed REUL reform. I recognise the points that the noble Baroness, Lady Humphreys, made. Indeed, she may have concerns about the potential impacts of the power to restate within areas of devolved competence. However, I will endeavour to convince her that her concerns are unfounded. None of the provisions in the Bill, including the power to restate REUL, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments.

I turn now to amendments relating to Clause 13 and the powers to restate assimilated law, starting with the Clause 13 stand part notice; the noble Lord, Lord Fox, cannot be here, so the noble Baroness, Lady Ludford, spoke to it. Clause 13 is critical to ensuring that the Government are able to reproduce the effects of retained case law and EU-derived principles on the body of law that was REUL and becomes assimilated law at the end of 2023. This is essential to ensure that a consistent approach to the UK statute book can be taken following the sunset by enabling Ministers to exercise this power on former retained EU law that has not been revoked by the sunset and which remains on the UK statute book as assimilated law.

On Amendment 105, I reiterate that this Government recognise the importance of ensuring that legislation undergoes the appropriate level of scrutiny and consultation, and we are committed to working collaboratively and constructively with the devolved Administrations. Therefore, we do not consider it appropriate or necessary to add a requirement to consult to the Bill, because doing so would limit the ability of departments to use the power before it sunsets on 26 June 2026.

Amendment 106, tabled by the noble Baroness, Lady Humphreys, would require legislative consent to be sought from the devolved legislatures before a UK Minister makes regulations under the power to restate assimilated law in areas of devolved competence. I reassure the House again that none of the provisions in the Bill, including the power to restate assimilated law, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments. The majority of the powers in the Bill, as I have said, will be conferred concurrently on the devolved Governments. This will enable them to make active decisions regarding their retained EU law or assimilated law within their areas of devolved competence, and it will provide them with greater flexibility to decide how to regulate those areas currently governed by REUL within their competence.

I will move on to Amendment 107. As I have said, we are committed to devolution and to working collaboratively and constructively. We are committed to continuing discussions with the devolved Governments moving forward to ensure that the most efficient and appropriate REUL can be taken to every situation in a way that provides certainty for all parts of the UK.

Amendment 108 in the name of my noble friend Lady McIntosh would change the expiry date of the power contained in Clause 13 from 23 June 2026 to 31 December 2028. I recognise that many noble Lords have concerns around the timelines in the Bill but we are confident that the power to restate assimilated law can be exercised on all the necessary legislation by 23 June 2026. We therefore do not see it as necessary to limit this power and for it to cease to be available on this date.

Amendment 109 again seeks to change the reference date within the definition in Clause 13 of

“retained general principles of EU law” to align with the proposed new sunset date of 31 December 2028 in accompanying Amendments 70, 74 and 75. This amendment would prevent general principles being preserved, given that Clause 5 establishes that remaining effects of general principles of EU law are removed from the UK statute book at the end of 2023 so that there would be no remaining general principles to preserve at the end of 2028.

Secondly, extending the assimilation date to the end of 2028 would be irrelevant given that, should Amendments 70, 74 and 75 be approved, there would be no assimilated law until after 2028, upon which the power within Clause 13 can act. Therefore, amending the definition of

“retained general principles of EU law” within Clause 13 is simply unnecessary.

I turn now to the amendments relating to Clause 14, starting with Amendment 110. Clause 14 outlines the general parameters and limitations of how the restatement powers may be used. This includes enabling restatements to be placed in primary legislation where it is appropriate. Clause 14(7) makes that expressly clear by stating that regulations may be made by “modifying any enactment”. Let me be clear to the Committee: the powers are not capable of restating any REUL or assimilated law that is primary legislation. However, we recognise that it may be appropriate in a limited number of circumstances for a restatement of secondary retained EU law or assimilated law to be placed in primary legislation.

For example, when codifying retained case law that relates to REUL in primary legislation, it is more appropriate to place such a codification alongside the law it relates to. Furthermore, although the powers to restate can be used to make changes to REUL or assimilated law, they cannot be used to change the function of the legislation, nor will they be able to introduce substantive policy change; that goes to the heart of the concerns of the noble Baroness, Lady Chapman. In addition to this, where the powers in Clauses 12 and 13 are used to amend primary legislation, they will of course be subject to the affirmative procedure.

On Amendment 111, it is right that we ensure that any amendments to retained EU law or assimilated law will follow the standard procedures for consultation and impact assessment where it is undertaken. This is why we have sought to ensure that this Bill contains robust scrutiny mechanisms, including for the powers to restate under Clauses 12 and 13. First, the draft affirmative procedure will be applied where the powers to restate are being used to amend primary legislation. Secondly, the sifting procedure will apply to Clauses 12 and 13 for those regulations that are proposed to be made under the negative procedure. This sifting procedure will provide an additional level of scrutiny to the legislation being made. It will give Parliament the opportunity to scrutinise instruments and make active decisions regarding this legislation. As I have said before, work is already ongoing across Whitehall on a REUL statutory instrument programme.

I hope that this provides noble Lords with clarity for the reasons behind taking the powers provided for in Clauses 12 to 14 and the scrutiny procedures that would be applied. I therefore hope that noble Lords will feel able to withdraw or not press their amendments.

My Lords, this has been a good debate. There is a body of opinion which is strongly opposed to the three clauses subject to the clause stand part notices, two of which are in this group.

I will express my personal disappointment. I am grateful to my noble friend for the replies that he gave, as far as they went, but I was told earlier by my noble friend Lady Bloomfield sotto voce that I could expect a reply on what the Government’s response is to the Scottish Parliament having withheld its consent. I thought that this was the group in which we would hear that. It echoes entirely the concerns about legislative consent Motions from the Welsh Assembly expressed by the noble Baroness, Lady Humphreys. Both the Scottish Parliament and the Welsh Assembly are concerned that their views are not being heard. I place that on the record.

I have no reason to doubt that my noble friend is right that there will be consultations. One of the Law Society of Scotland’s concerns, which I share, is that it is becoming an increasing habit of this Government to hold consultations over sometimes a 12-week period, and sometimes substantially less, and not publish the results in detail. For legislation such as this it is extremely helpful to know a little more detail. They would be published online anyway, so it is not as though people have to print it off at vast expense. The Government should not be afraid of publishing the results.

For the moment, without prejudicing what might happen at a later stage of the Bill, I beg leave to withdraw my amendment.

Amendment 102 withdrawn.

Amendments 103 and 104 not moved.

Clause 12 agreed.

Clause 13: Power to restate assimilated law or reproduce sunsetted retained EU rights, powers, liabilities etc

Amendments 105 to 109 not moved.

Clause 13 agreed.

Clause 14: Powers to restate or reproduce: general

Amendment 110 not moved.

Clause 14 agreed.

Amendment 111 not moved.

Clause 15: Powers to revoke or replace