Clause 16 - Power to update

Retained EU Law (Revocation and Reform) Bill – in a Public Bill Committee am 9:25 am ar 29 Tachwedd 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Brendan O'Hara Brendan O'Hara Shadow SNP Spokesperson (International Human Rights and Conflict Resolution), Shadow SNP Deputy Spokesperson (Cabinet Office) 9:25, 29 Tachwedd 2022

I beg to move amendment 70, in clause 16, page 18, line 25, at end insert—

“(1A) Before the power in subsection (1) may be exercised, the relevant national authority must publish a written statement on any societal and economic changes relevant to the intended modifications.”

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

With this it will be convenient to discuss clause stand part.

Photo of Brendan O'Hara Brendan O'Hara Shadow SNP Spokesperson (International Human Rights and Conflict Resolution), Shadow SNP Deputy Spokesperson (Cabinet Office)

It is a pleasure to see you in the Chair, Sir Gary, for our final day of scrutiny of the Bill. The amendment was tabled in my name and that of my hon. Friend the Member for Glenrothes. It will be a relief to the Committee that I will be as brief as I can, as I know we have an awful lot to get through.

Clause 16 allows a relevant national authority to make modifications to secondary legislation that it considers appropriate, taking into account

“changes in technology, or…scientific understanding.”

We do not disagree with that. Our amendment simply seeks to widen the scope of the clause by allowing relevant national authorities not just to consider changes in technology and developments in scientific understanding, but to take into account societal and economic changes that may be pertinent when making modifications to retained EU law.

It is the narrowness of the clause that concerns us the most. It has been highlighted as a potential problem by the Law Society of Scotland, which in its excellent briefing paper suggested widening the scope to reflect other factors and include economic or societal changes. It seems eminently sensible to include factors that go beyond science and technology. Whether we like it or not, things happen in society that we cannot reasonably predict. It would therefore be unwise for the legislation to be so completely straitjacketed that we could not react appropriately to unpredicted societal events.

Similarly, giving relevant national authorities the ability to pivot when changes to the economic circumstances dictate also seems logical. Imagine we had been examining the Bill before the summer, and I had tabled an amendment that would have allowed relevant national authorities the flexibility to consider changes in economic circumstances when considering retained EU law. Had I based my argument around a Conservative Prime Minister resigning and forcing a lengthy leadership election, and the arrival of a new Prime Minister who promptly tanked the economy and then resigned six weeks later, everyone on the Government Benches would have howled with derision, but that is precisely what happened.

As much as we like to think we know what is around the corner in terms of society and the economy, the truth is that we simply do not. That is why, again in the spirit of trying to be helpful and improve what is a thoroughly dreadful piece of legislation, I commend amendment 70 to the Government.

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

It is a pleasure to see you in the Chair, Sir Gary. I was sorry to read that you may not be seeking re-election. I know that social media is not always truthful on such things, but what I read appeared to be legitimate, and I will be sorry to see you go. I welcome the Minister in the Jack Grealish role, coming in late in the day to retrieve a seemingly lost position for the Government.

I understand that we are dealing with clause 16 stand part as well as amendment 70. I thank the hon. Member for Argyll and Bute for moving the amendment, which is very similar to some of ours. It will be no surprise that we are sympathetic to and supportive of it, but to avoid repeating what we have said previously I will try to keep my statements brief. Government Members will be tired of hearing this, but those who are tired of scrutiny are tired of democracy itself, so I will yet again refer to the lack of scrutiny and consultation that are the hallmarks of the Bill.

Amendment 70 offers a means to address that problem in the specific and possibly limited circumstances in which clause 16 will apply. We know how often the Government like to use the phrase “specific and limited circumstances”. The amendment contains the guiding principle of our new clause 9, which was previously debated: the Government and relevant national authorities need to address the impact of changes made by the use of the Bill’s powers. Having Ministers of the Crown produce written statements about intended modifications will ensure not only that the societal and economic impacts of changes are considered, but that they are justified, which, as we have discussed, ought to provide a greater level of accountability. Despite the fact that the amendment could benefit from extra conditions—for example, mandating a programme of consultation with relevant stakeholders—it serves the purpose of demanding greater scrutiny. Given that the Government rejected our new clause, which previously requested that, I suspect we will not find favour with this one.

Throughout the sittings of this Committee, we have highlighted that the Bill is merely a framework that can give an alarming amount of power to the Executive. A similar concern applies to clause 16. That is not to say that the clause is unnecessary; it has similarities to previous clauses designed to deal with the fact that retained EU law is not a dynamic body of law anymore, but a snapshot of the law as it stood in December 2020. We therefore agree it is right that, in areas where there are technological improvements and breakthroughs in science, the law is adapted to reflect those changes. I am afraid, though, that the way in which Government propose to carry that out—not just in this clause but throughout the Bill—reflects their entire approach. There is a considerable lack of oversight of

“changes in technology, or…developments in scientific understanding.”

There is no definition in the Bill of what those terms mean. That is made more striking by the fact that the Bill includes a stringent and comprehensive definition of what constitutes a burden, as we have debated previously.

It seems that the Government are keen to say what they believe in when it comes to watering down rights and regulations, but to leave gaping holes and ambiguities in relation to powers that transfer to Ministers. Our new clause would have addressed that, and stipulated that the relevant stakeholders were consulted and reports about modifications laid before the House. That would have gone a long way to resolve the problems and our concerns. Instead, we are again left with a clause that hands power directly to the relevant Minister, with approval made under the negative procedure.

We need to get to the bottom of who will decide what “changes” and “developments” are. Who will decide when the clause operates? Is this all in the eye of the Minister, once again? How will there be transparency about that decision-making process? Will there be published and clear criteria about the use of powers under the clause and what will the position be if the Minister—inadvertently of course—exceeds the powers under the clause? I would be grateful if the Minister could address those questions when he responds.

It is worth pointing out that, for all the advances in science and technology that have benefited billions of people across the globe, not every technological advance is a positive experience, and they can need more than just a technical tweak to legislation. For example, take the expansion of homeworking in recent years. The former Secretary of State, Mr Rees-Mogg, did not see that as a great leap forward, despite the fact that technology enabled many more people to work far more flexibly. With those changes came important questions about how we deal with the increased monitoring of employees in their own homes. What is the Government’s view on the limits of that? Where do questions of privacy and work-life balance fit in?

That is just one example of a seemingly innocuous development in technology having far-reaching societal impacts. The use of artificial intelligence in decision making is another. There have been a number of high-profile examples of AI having led to outcomes that have been classed as discriminatory. These questions are important. They are not just technical changes that require a bit of tweaking; they deserve greater scrutiny, not less. That is why is it so important that we understand the thresholds for ministerial involvement.

Another concerning pattern that appears to confirm that it was not just carelessness that allowed these powers into the Bill is the potential abuse—that the entire Bill will not be sunsetted. Under this clause, Ministers will have the power to make changes to retained and assimilated legislation indefinitely, in contrast to the powers available under rest of the Bill. Why the exception? If it is necessary to retain that power long term, is it not more appropriate for it to be subject to the tighter restrictions set out in clause 15?

Photo of Graham Stuart Graham Stuart Minister of State (Minister for Climate) 9:30, 29 Tachwedd 2022

It is a pleasure to serve under your chairmanship, Sir Gary.

I thank the hon. Member for Argyll and Bute for tabling the amendment, but I urge the Committee to reject it. The power under clause 16 is intended as an updating power to make modifications to retained EU law that take account of a change in technology or developments in scientific understanding. The scope of that power has been deliberately restricted so that it can only be exercised to bring about such modifications.

It is critical that that power operates in that manner to ensure that legislation that sits on the UK’s statute book is able to keep pace with scientific and technological developments, so that we continue to uphold our high standards as well as ensure laws remain tailored to best suit the UK’s needs. Without that power, it would take a significant amount of parliamentary time for the Government to bring forward bespoke proposals and consider each amendment on a sector by sector basis.

I consider the requirement for Ministers to produce a written ministerial statement on the societal and economic changes relevant to the proposed changes under the clause to be neither relevant nor appropriate. The UK Government are committed to the appraisal of any regulatory changes relating to retained EU law, and the nature of that appraisal will depend on the types of changes that Departments make and the expected significance of their impact. We assess that current scrutiny procedure for legislation made under the clause is sufficient. Further scrutiny would be inappropriate for that type of power and would place additional pressure on parliamentary time. The power is circumscribed and, in answer to an earlier question, it is for Ministers to make those decisions. Further scrutiny could hinder the UK’s ability to keep pace with new scientific and technological developments, and I am sure that no member of the Committee would want that.

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

Will there be a standard threshold across Departments to trigger when Ministers may use the power? If so, can the Minister share it with us?

Photo of Graham Stuart Graham Stuart Minister of State (Minister for Climate)

In so far as I understood the hon. Gentleman’s question, the powers are circumscribed. They are designed to deliver the technical changes necessary and are certainly not meant to lead to substantive changes in policy. That would absolutely not be within the scope of the clause.

On that basis, I ask the hon. Member for Argyll and Bute to withdraw his amendment.

Photo of Brendan O'Hara Brendan O'Hara Shadow SNP Spokesperson (International Human Rights and Conflict Resolution), Shadow SNP Deputy Spokesperson (Cabinet Office)

I thank the Minister for his response. I also thank the hon. Member for Ellesmere Port and Neston for his support. I still do not quite understand why the Government have been so deliberately restrictive in the scope of clause 16. In common with much of the Bill, the Government’s complete refusal to accept any reasonable amendments is worrying. The amendment is not party political, but arose directly from a suggestion from the Law Society of Scotland. I will not pursue it to a vote, however, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 ordered to stand part of the Bill.