Examination of Witnesses

Retained EU Law (Revocation and Reform) Bill – in a Public Bill Committee am 9:50 am ar 8 Tachwedd 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Martin Howe KC and Tom Sharpe KC gave evidence.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon 10:24, 8 Tachwedd 2022

We are now moving on to hear more evidence in person, from Martin Howe KC of 8 New Square chambers and Tom Sharpe KC of 1 Essex Court chambers. In this session, we have until 10.55. Please introduce yourselves for the record; Martin, would you like to go first?

Martin Howe:

I am a practising King’s Counsel, principally in the field of intellectual property law, and formerly European Union law, mainly in the field of free movement of goods and services—cross-border freedom to trade. That is my professional background. I became chairman of a group called Lawyers for Britain, which was set up during the referendum campaign to campaign among the legal profession for a leave vote. I wish we had been able to wind it all up—job done—but we still exist and I am still the chairman.

Tom Sharpe:

I am Tom Sharpe, King’s Counsel. I spent too long as an Oxford don, but I have been in practice for quite a long time. The nature of my teaching at Oxford and my practice was heavily European law, which I now put in the semi-past tense. I have appeared in the European Court quite a few times. The central core of my practice has always been the regulatory area—competition law and state aids—but I have done quite a lot of judicial review work, attempting to overturn EU regulations and misapplied and misadopted directives. I, too, am a member of the Lawyers for Britain group, and Martin and I made submissions in Miller 1 and Miller 2.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Thank you very much. We will turn first to Justin Madders.

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy)

Q Good morning, gentlemen. May I ask a rather specific question? I am presuming that you have read the Bill. Under clause 4, there is a reference to removing references to sections 183A to 186 of the Data Protection Act 2018. If you do not know why it is there, that is fine, but are you able to provide an explanation?

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Are you seeking free legal advice, Justin?

Tom Sharpe:

The honest answer is no. However, your excellent House of Commons research paper does indeed advert to this and describes the justification, which I have forgotten.

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy)

Q That is fine. I will refer back to that. I seek some free legal advice in relation to subsections (3) and (4) of clause 7, which are about the criteria for departing from retained law. The criteria are slightly different. Could you set out your understanding of the rationale for why that is the case?

Tom Sharpe:

Slightly different between case law and—

Tom Sharpe:

Shall I kick off? I know that Martin has some fairly strong views on this. What the Department is trying to do here is to provide some illustrative guidance as to the reasons why people can depart. They could have done nothing and left it open to the court, which would have been unsatisfactory. By and large, judges, like all of us, need some help and guidance. As to the differences, the justification is the TuneIn case, Martin, is it not?

Martin Howe:

Warner against TuneIn, yes.

Tom Sharpe:

Why don’t you pick this up? It is your area.

Martin Howe:

One feature of the 2018 Act, as you know, is that it made European Court judgments continue to be binding after exit in the interpretation of retained EU law. I would have preferred to see them just as persuasive authority from the beginning, but that is what the Act said. It gave only a very tiny exception, allowing the Supreme Court and the High Court of Justiciary in Scotland to depart, but only in circumstances where they would depart from their own previous decisions. It was extremely narrow. That was slightly widened by a statutory instrument under the 2020 Act, which expanded that to the Court of Appeal, the Inner House of the Court of Session in Scotland and the Court of Appeal of Northern Ireland, but it still had a very narrow test. I do not think, even if you got rid of all these restrictions, that the judiciary would actually make very many changes to or departures from legislation.

That comes out from the TuneIn case, in which the Court of Appeal considered a very unsatisfactory area of jurisprudence by the Court of Justice—a very technical area on communication to the public in copyright cases—and did not feel that it wanted to depart from that law, basically because it thought that to do that you have to almost legislate to fill in what you are replacing the judgments with. Judges are naturally reluctant to do that. My view of these provisions is that they are helpful. They slightly widen the circumstances in which there can be a departure, but are unlikely to make much practical difference. They will mean very few cases that see actual departures.

Tom Sharpe:

May I add a supplementary? In answer to your specific question, clearly, the case law, which is the second provision in clause 4, is much broader. All sorts of case law is affected, and some would say infected, by European principles. What this is simply doing is inviting Parliament to say that the breadth of review can be triggered by any impact or any influence. It is really very broad—“determined or influenced by”. I think that is the justification for it, and I think it is sound. What is the point of having an imperfect means by which higher courts can be seized of these matters if they are important enough to go up to the higher courts?

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

Q Good morning. There has been a lot of discussion about whether the Bill should be happening now and whether it should happen at all. My question is this: is now the right time for Government to reduce the influence of retained EU law in the UK statute books, as the Bill intends? I will turn to Mr Sharpe first.

Tom Sharpe:

It is not the right time at all. This should have been started in 2016, and certainly the dashboard—the process of creation—should have happened then. When—or if and when—this is enacted, it will be, what, six years since the referendum? That is a very long time; it will probably be seven years when the Lords get hold of it. It seems to me that the promises that were made in the referendum and the obligations owed to those who voted for Brexit, which in turn, of course, were repeated in the 2019 election, have to be redeemed. It seems to me that it is appropriate for that to be done, and to be done by a means whereby good faith can be applied—that is to say, a balance between speed and comprehension, balancing the requirements of Government in order to get the legislation on the statute book with the interests of Parliament and the interests of stakeholders. It seems to me, as a general rule, that this is actually what it does.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

Q Mr Howe, I will ask a supplementary, because I know you are eager to answer the question as well. We have heard a lot, especially from the critics, saying that the Bill is not needed because the European Union (Withdrawal) Act 2018 saved all the relevant EU law, and it has been suggested that the Act took a maximalist view on retaining EU law as, at the time, our future relationship with the EU was not yet known. What is your view on whether the Bill is necessary, and why?

Martin Howe:

I think the Bill is desperately needed. The flaw with the 2018 Act is that it was clearly necessary to preserve what is now retained EU law on an interim basis until it could be reviewed and either kept or replaced or modified, but what was not necessary was making it impossible to change most of it except by Act of Parliament, which is what the 2018 Act did, and also to import a whole load of EU law doctrines on top of the legislation. It was all said to be for the purposes of legal certainty. In my view, it does not add to legal certainty; it generates legal uncertainties and allows vague things to be argued.

I have had a look to see what progress has so far been made in changing the vast body of EU retained law. There is one important Bill going through the Commons now, the Financial Services and Markets Bill, which would deal with that field, where we put in place our domestic policy choices.

There are also two further Bills that I have identified. One dealt with the Vnuk case, which was a case in the European Court that interpreted the motor insurance directive—in my view, misinterpreted it—to say that it applied to off-road vehicles, so things such as farm tractors would be compulsorily insured. That has now been corrected in our law, but only via a private Member’s Bill, which became an Act in April when the Government lent parliamentary time to the Bill. I think that the Government estimates are that it would have cost £2 billion per year—mainly to farmers, I suppose.

The other Bill, which is actually more important, is on the gene editing matter, where the European Court, in the case between the French peasants collective and the French Government, decided that the genetically modified organisms directive covered gene editing. Now, gene editing is a different technique from genetic modification. There is a lot of criticism of that judgment. It was completely unexpected and had very damaging effects, particularly on the life sciences industry in this country. That is subject to correction by a Bill that has just finished its Commons stages and has gone to the Lords.

Those are just two interpretations of two bits of EU law. That shows the complete impossibility of performing this exercise by primary legislation, and therefore how essential it is to have the statutory instrument power in the Bill. It is important to appreciate that the statutory instrument power does not apply to primary legislation, so Acts of Parliament that were passed in compliance with EU obligations are not within scope; only the secondary legislation is covered.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

Q I assume, then, that you agree that the Bill allows for sufficient opportunity for parliamentary scrutiny.

Martin Howe:

Well, it does. It is comparable to the parliamentary scrutiny that section 2(2) of the European Communities Act 1972 allowed when most of these measures were introduced.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

Q Thank you. Returning to Mr Sharpe, does the Bill, as drafted, strike the right balance between providing safeguards and enabling the removal of outdated retained EU law from our statute books?

Tom Sharpe:

I see the Bill as a framework Bill. Of course, it gives Ministers and Departments very considerable powers—powers of proposal, as you know, to amend, revoke or replace existing legislation.

As Martin has just said, an Act of Parliament, which was probably passed—if I may say so respectfully—before many of you were born, provided an enabling power to enact legislation of some quite sweeping character. Despite all the things that law students learned about how Parliament needed to approve legislation, not one single regulation—this is one of the bits we are discussing—has ever been debated, approved or amended by the House of Commons or Parliament. That is a striking statement, but it is absolutely true. We were forbidden, in law, to debate or amend such legislation. I suspect you all know that, but it does not hurt to be reminded.

As for the directives, of course they, too, were approved by Parliament—or, more accurately, not disapproved—but the power of Parliament was utterly residual because the objective of a directive had to be observed. If it was not, the UK would be subject to proceedings from Brussels—and it was, on occasion, but not as often as many other countries.

We are now debating a system of revocation, amendment and replacement, and giving it far more formality than we gave the creation of the laws themselves. That ought to give us pause for thought. That is the background. As far as parliamentary scrutiny is concerned, yes, most of it will be subject to negative resolution, and it is easy to make what I will disrespectfully call a good debating point about the times when statutory instruments have fallen under the negative procedure. But here, we are dealing with a sea change. We are dealing with masses of legislation, as we know, all of which will be subject to significant scrutiny within the House of Commons by parliamentarians and by the press. It seems to me that those issues have to be given notice. There is also the sifting procedure that we adverted to earlier, which I think could be quite a powerful brake on Ministers’ discretion.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Deputy Spokesperson (Treasury - Chief Secretary)

Q The evidence submitted by the Bar Council, which I assume you are familiar with, says very firmly that it has profound concerns about the Bill, and that its preference would be for the Bill to be withdrawn in its present form. Why has the Bar Council got it so wrong?

Tom Sharpe:

Where do we start?

Martin Howe:

I am concerned by the attitude taken by the Bar Council. As a subscribing member, I fear that it is trespassing rather too far into political issues. Unfortunately, I think there is a sort of small “c” conservative lawyer’s mentality, which has led over time to various things, such as counsel saying in the “Lady Chatterley’s Lover” trial, “Members of the jury, would you allow your wives or your servants to read this book?” Since so many members of the Bar are imbued with the system of working with European Union law—it is all part of their practice and the way they operate—there is a natural mental attitude towards keeping it. I do not think that reflects the necessities of the democratic process following the referendum result.

Tom Sharpe:

It is our trade union, and it does not speak on my behalf on this political matter, very obviously, and it should not have done that. I think there is a broad issue here. If you look at the criticism of the Bill by the Bar Council and by members working with it—the Hansard Society, which got a mention, and various leading members of the Bar whom I know very well; they are my friends and I respect them—the dominant theme is one of extreme pessimism. That is to say that if we have a mendacious Government, a supine Parliament and a lazy and ignorant press, all sorts of things can happen. Now, I do not think that is true. I have far more respect for this House, and even for Ministers and the press. If Ministers are getting out of hand, they will be put in check. If they are not, the judiciary has a role in reviewing the exercise of these powers. We can ignore the judiciary in this context, but it has an important residual role.

We can call it benign or naive, but I do not think that is right. I think that by and large the House of Commons does a pretty good job, and I see no reason at all why it will not continue to do so in relation to this important Bill.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Deputy Spokesperson (Treasury - Chief Secretary)

Q You suggested that if a Minister gets out of hand, Parliament can act. You will recall, though, that quite recently a Secretary of State was found by an inquiry to have been guilty of severe bullying of civil servants, and nothing happened to her because a Prime Minister did not want her to lose her job.

To go back to the comments you made earlier about the difference between primary and secondary legislation, when was the last time Parliament amended a piece of secondary legislation?

Martin Howe:

It does not. The procedure is a yes/no procedure either by affirmative resolution, in which case there has to be a positive vote or it fails; or by negative resolution, in which case, unless it is prayed against and there is a vote against it, it stands.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Deputy Spokesperson (Treasury - Chief Secretary)

Q Does that not mean there is significantly less opportunity for parliamentary scrutiny if all that Parliament is allowed is: we do this or we do not do it? Does that not mean that, almost by definition, there is less opportunity for parliamentary scrutiny with secondary legislation than there would be with a Bill?

Martin Howe:

Indeed. By its nature, there is much less opportunity than with a Bill, which you go through line by line, but all the legislation that is within the scope of the Bill to be potentially corrected, changed or left out by secondary legislation was introduced by secondary legislation. The primary legislation is not covered by the powers.

Tom Sharpe:

Remember what we are discussing. I think it is very unlikely that there will be a wholesale slash and burn—to use the academic term that we heard earlier—of all EU retained legislation or assimilated legislation; a good deal of it will remain. I do not recognise the gloomy picture of businesspeople clawing their way to the bottom. I understand the theory, but in the course of a year I advise dozens of CEOs and chairmen, and not one has said: “We have a terrific opportunity to make extra money out of the consumer.”

What is missing here is public scrutiny and reputation, and we have to be balanced and less shrill about this: not everything will change; not everything will change at once; and some things will be changed—in particular under clause 15(3) where, respectfully, the real issues arise for parliamentary scrutiny. There, as you heard, some will be determined by affirmative resolution and others will go through the sifting procedure, which requires the Minister to come to Parliament to justify the choice of a negative procedure. You will have an opportunity to deal with that.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q Martin, I was interested to hear you talk about how you were happy with the scrutiny mechanism in the Bill, because I note that in your evidence to the European Scrutiny Committee you argued for the need to have a delegated power to revise retained law and then suggested a commission to propose what should be done. That would be much more scrutiny than you are talking about now. What made you change your mind about the requirement for scrutiny that you previously advocated? I thought that the argument you made before was compelling.

Martin Howe:

The argument I was putting forward was for a practical way to speed up the process. Frankly, it was a suggestion that I floated, a possible—

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q Are you disappointed that there is no scrutiny mechanism in the legislation, as you floated?

Martin Howe:

What I was then proposing was not so much a scrutiny mechanism as a sort of motor to get the process going—

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q You made quite a strong argument, did you not, that there was a case for being able to look? You were advocating the superfluity of some of this legislation, but now the Bill contains none of that. Are you disappointed?

Martin Howe:

No, because the main thing—the important thing—is to get the job done. What I am disappointed about is that I published a paper in July 2016, a month after the referendum, arguing that we should start a systematic process of review of European Union laws. I naively suggested that that would be with a view to revising what we needed to revise by the time of exit two and a half years later—

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q You felt it was naive to know what we were revising.

Martin Howe:

No. I was naive to think that the process of revision would be started. I share Tom’s view that it would have been better had this process been started earlier, but it does need to be done.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q You also said that there were limited respects—and gave two examples from your own practice—where you thought it was a good idea to retain EU law over pre-Brexit legislation. Do you accept that there might be other areas of law where it might be a good idea to retain some of those laws? In which case, would that not be helpful to us as parliamentarians? Your colleague dismissed the idea that the Bill will lead to slash and burn, but it has slash-and-burn powers within it. Surely it would be good practice—as you have argued—to know what it is that we are slashing and burning, and to have some process of exploring that as parliamentarians, if we are to be taking back control for this House?

Martin Howe:

Well, it is a matter for Parliament as to what you press Ministers on with regards to their plans and intentions.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q But we do not have powers to press them; we only have a negative resolution procedure. You made such a compelling case and argued in your previous evidence for several areas of law where you think we should retain. What has changed now?

Martin Howe:

To be clear, I was not suggesting that they be retained in the long term. Those areas need revising and converting into coherent UK-based law. Elements of EU law should not be retained into the indefinite future.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

You make a case for being able to change your mind yourself and having a process for changing your view on this legislation. Would it not be beneficial for this place to have powers to change the minds of Ministers? Like you, Ministers may make decisions that they come to regret.Q

Martin Howe:

Sorry, I have not changed my mind on the relationship between retained EU treaty law and other EU law. The point is that that should be converted into domestic law, but our domestic legal system can cope with the question of precedence of one law over the other. I have never been in favour of indefinite retention.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Apologies, but you did propose—

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Stella, you have asked a lot of questions. We are moving on, and we will come back to you if there is time.

Photo of Marcus Fysh Marcus Fysh Ceidwadwyr, Yeovil

Would it be a good idea to have, within each Department, where there might be cross-cutting issues between them, particular taskforces established by Ministers, including practitioners in the area, to look at how things can be made more competitive within those areas by this process of assessing what retained EU law is out there and how it might be replaced? Should regulators be involved in that process, given that it might be necessary to take a practical approach to getting these things done, and to get expertise from outside the Government and the civil service to accelerate the process and get it done in the time availableQ ?

Tom Sharpe:

The general point is very well made, if I may say so. It seems to me that that type of exercise—that kind of inclusive thinking about making the country more efficient and getting rid of silly regulations—would be valid even if we were not dealing with the Bill.

One of the problems with the Bill is that it is a framework Bill, and I can see a quite compelling case for eliminating some of the opacity that surrounds the Government’s intentions. It is early days, and the Bill is just a Bill. I do not think it would be enhanced by Ministers detailing in fine print exactly what is to be done, but there is a case for some ministerial guidance as to where the priorities should lie.

As for doing away with dud regulation, I find it amusing to read the submissions to Government. This is an important point about consultation. My understanding is that there have been thousands of responses to the dashboard—I think I am right in that. That is an element of public consultation. It is amusing to me to see that so many bodies that campaigned remorselessly against some of the EU legislation that we had no control over now resolutely do their best to try to preserve it. With a little more honesty, they would have been more compelling, I think.

Photo of Marcus Fysh Marcus Fysh Ceidwadwyr, Yeovil

Q This is a follow-up question to Martin Howe. Would it be possible for those taskforce processes also to involve parliamentary scrutiny through the various Committees in the Lords and the Commons, which might help to look at this prioritisation and emphasis?

Martin Howe:

That is helpful and it sounds like a good idea. Whether it ought to be spelled out in the Bill is a different question, because there needs to be a certain amount of flexibility over these processes. Certainly, involving outsiders in looking at these issues, as opposed to doing it as a purely internal measure within Departments, strikes me as beneficial.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Gentlemen, thank you for your evidence. Our time is now up. Thank you once again for being with us.