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Retained European Union Law

Volume 817: debated on Thursday 16 December 2021


Asked by

To ask the Minister of State at the Cabinet Office (Lord Frost), further to his Written Statement on 9 December (HLWS445), how Her Majesty’s Government will consult Parliament in their reviews of (1) the substance of retained European Union law, and (2) the status of retained European Union law in United Kingdom law.

My Lords, the Written Ministerial Statement referred to sets out full details of the two reviews of retained EU law. I and other responsible Ministers are of course ready to engage with Parliament in an appropriate way—for example, directly with this House, with interested Select Committees and with noble and learned Lords who have a particular interest in this question. Of course, we wish to establish proposals which are likely to be acceptable to the largest possible number of parliamentarians while achieving our policy aims.

My Lords, Parliament agreed with the Government that a snapshot of EU law at the point of exit should be onshored into UK law in the 2018 and 2020 withdrawal Acts. This was for the sake of continuity, certainty and stability for manufacturers and service providers, and thus the economy, throughout the UK, including Northern Ireland, beyond the protocol. A mere nine months on, the Minister expressed his desire—in what seems a highly ideological and unnecessary move when all the practical issues of financial services, Horizon, and so on are unresolved—not only to take a wrecking ball to the settlement but to do so in a way which takes back control for the Executive such as to represent, in the words of EU law expert Professor Catherine Barnard,

“a full takeover by Whitehall of Westminster”.

The announced intention is only to “incorporate Parliament’s views”, which is not good enough. I thus ask the Minister now for a commitment not only to involve Parliament fully in the review but then to make any changes via primary legislation and not Henry VIII powers.

My Lords, the noble Baroness is of course right in saying that retained EU law was brought on to our statute book for reasons of convenience and a smooth transition. It does not mean that it can never change; indeed, it must change, because that is how we get the benefits of reform and change after leaving the European Union. That is the process we intend to begin. As I have said before, I do not think that it makes sense for rules which never had proper scrutiny in this House to require full dress processes to remove them. The way they were incorporated was not normal in terms of parliamentary procedure, and therefore we should look at other ways of dealing with the consequences.

My Lords, in the spirit of good will, could I wish the Minister a very happy Christmas? When he reads A Christmas Carol, who does he like most? Is it the ghost of Christmas past, when he was a huge enthusiast for the European Union? Is it the ghost of Christmas present, when, like Mr Scrooge, he carries his own low temperature always about with him? Or is it—I hope—the ghost of Christmas future, when we rejoin the European Union and he can buy all his nieces and nephews glorious presents in the single market and customs union?

My Lords, I thank the noble Lord for his good will, and I extend good will to all Members of this House. If I am forced into a false choice, it will be Christmas future, because I believe that our future outside the European Union is a great one. I must say that I have not noticed any difficulty in access to products from the European Union, and our exports to the European Union are continuing well. I am sure we will prosper on that basis.

My Lords, does my noble friend agree as a matter of principle that in this pandemic, government support for business should be distributed equitably throughout the United Kingdom, and that it really is not appropriate that the Government should need to go off and ask a foreign power for permission to do that with regard to Northern Ireland?

I very much agree with my noble friend. It is of course a problem that, even though we have agreed new subsidy control provisions in the TCA—and of course we are bringing our own Subsidy Control Bill through Parliament—we are still working with the arrangements that were agreed in 2019 as regards state aid in Northern Ireland. It is excessively complex and difficult for companies in Northern Ireland to deal with these two regimes, and it does not make sense for us not to be able to support businesses in Northern Ireland in the recovery from Covid as we can everywhere else in the UK. I hope we can find solutions as we take forward the discussions on the protocol.

My Lords, central to this question is the principle of democracy. The Minister is having ongoing discussions and negotiations with the European Union. Maybe he would like to tell the House today about those discussions in terms of addressing the democratic deficit in the protocol and how Members of the Northern Ireland Assembly will be able to have decision-making authority in relation to EU legislation and all other matters.

My Lords, obviously we are in the middle of a negotiation that continues to cover a wide range of issues, including the democratic deficit that the noble Baroness mentions. Unfortunately, we are not likely to complete those discussions this year; I expect that they will run into next year. However, it would not be a good solution to give the Northern Ireland Assembly or Executive decision-making roles in the European Union. The UK is not a member of the European Union, and therefore it would not be right or appropriate to try to resolve these questions in that way.

My Lords, the Minister may remember that one of the studies in preparation for the single market demonstrated that the UK, before the single market, tended to take US regulations as the standard for British regulations under a sort of extraterritorial jurisdiction. The business media now tells us that the world is moving towards three focuses of regulation: American, Chinese and European. Do we intend to add a fourth, which would be purely national, to the great disadvantage of exporters within Britain, or do we intend to return to incorporating American regulations as British, perhaps without fully consulting Parliament on the unsatisfactory compromises we have to make?

My Lords, regulatory freedom is one of the advantages of Brexit, not one of the disadvantages. We now have a choice as to whether we proceed nationally in regulations and standards, if we wish to get ahead of other international bodies and organisations, or whether we wish to track other organisations’ rules. US regulations, European Union regulations, others’ regulations or national ones may be the best ones for this country in future, but we have the ability to make that choice now, and that is one of the advantages of Brexit.

My Lords, it is fair to say that the relationship between the EU and the UK has become very complicated, and that has been added to by the arrangements with the protocol. Would my noble friend be prepared to publish an organogram that would set out for us what all these committees are and who populates them, so that we have some grasp of the relationships between the EU and the UK, including the very complicated committee structure under the protocol?

My Lords, I would be very happy to publish such an organogram—I think we will need an A2 or maybe an A1 piece of paper to get it all on. But it is still a lot less complicated than it was when we were a member of the European Union, and the arrangements still fit within the norms of a trade agreement. I appreciate that they are complex, and I am happy to try to make that as clear as we can in public.

On the crucial issue of democratic accountability and proper scrutiny of legislation and the legislative process, which I am sure we all want to see enhanced, will the Minister, with his experience, care to compare the degree of scrutiny and democratic accountability that exists in respect of laws that were made in Brussels and the degree of scrutiny and democratic accountability that exists in respect of legislative processes in this Parliament?

The noble Lord makes an extremely good point. It is obviously possible and has been the case for a regulation with direct effect to be agreed in Brussels, perhaps despite us having voted against it, and for that regulation then to become the law of this country without further ado, despite the best efforts of the scrutiny committees in both this House and the other place. There is no ability to amend such rules. It is right in a democracy that Parliament should be able to set the rules by which we live, and that is a principle that we will try to take forward.