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Lords Chamber

Volume 828: debated on Monday 6 March 2023

House of Lords

Monday 6 March 2023

Prayers—read by the Lord Bishop of London.

Employment: Disabled People

Question

Asked by

To ask His Majesty’s Government what plans they have for new initiatives to encourage business and industry to employ disabled people.

My Lords, a range of government initiatives are already supporting disabled people to start, stay and succeed in work. The Government are working to improve and better integrate resources for businesses, helping them to support and manage health and disability in the workplace. The Government are looking in detail at workforce participation, including discussions with business and industry, whose role is key to making the most of the talents of disabled people in the workforce.

I thank the Minister for his helpful Answer; I will follow up on some of the points that he just made. Just 5% of adults with a learning disability are in work. One way to change this is by offering more supported internships; the charity Hft tells me that this helps business better understand the benefits of employing someone with a learning disability. However, the problem is that supported internships are available to people only up to the age of 25. Will the Government consider extending this scheme to include learning-disabled people over the age of 25, which would enable many more to get into work?

I appreciate the noble Lord’s question and the work that he does in this area. I can assure him that the Government are committed to reducing the disability employment gap, including in relation to the young and interns. It is important that those who have a disability are given every chance to start on the path to a career. What I cannot do, I am afraid, is commit to the noble Lord’s point about extending the scheme beyond the age of 25, but I have noted it and will take it back to the department.

My Lords, what happened to the Government’s national disability strategy, which was declared illegal by the Court of Appeal a while ago? It does not seem to have been renewed. Moreover, many of the recommendations made by the committee on disability that I chaired have still not been implemented by the Government. When are the Government going to be proactive?

We have a disability action plan, but it is separate from the noble Baroness’s point about the national disability strategy. We are disappointed by, and strongly disagree with, the High Court’s finding that that strategy was unlawful; as the noble Baroness may know, the Secretary of State has been granted permission to appeal the court’s declaration. In order to ensure compliance with the court’s declaration, we are obliged to pause a limited number of policies referred to in the strategy or directly connected with it, which is a disappointment.

My Lords, I declare my interests in this field as set out in the register. What are the Government doing to make sure that businesses, particularly small ones, know that, if they employ a disabled people, they have somebody who is less likely to take time off work and less likely to change jobs frequently—both those things are proven—than a non-disabled person? This sort of information would certainly help to break down perceptual barriers.

Indeed, and this is very much a matter for Jobcentre Plus. Further training is being given to job coaches in jobcentres. It is very important that those with health conditions or disabilities receive the support and advice that they need to move into or to stay in employment.

My Lords, last December, research conducted by the economic and social inclusion unit revealed the huge benefits and the challenges regarding the working conditions, employment and retention of personal assistants for working-age disabled people to allow them to be economically active. This is the third time that I have raised this issue in the House, so hopefully it will be third time lucky. Has the Minister taken account of this useful evidence on service user need and experience? Will it inform improvements and, if so, how and when?

Yes, indeed, I am aware of the question. Although I do not have an answer to that point, I will certainly write to the noble Baroness about it. I am not sure that she has asked it three times, but maybe she did so with my predecessor.

My Lords, employment figures show that a significant number of older people have left the labour market. There is a large differential in healthy life expectancy across the country. Many people in their fifties and sixties are not well. Some may have left work due to ill health or disability but would be able to work part time. What more can the Government do to encourage flexible working to provide more help in this area?

As my noble friend will know, all employees have the legal right to request flexible working provided they have worked for the same employer for at least 26 weeks. As she will know, under the Equality Act, employers must make reasonable adjustments to ensure that workers with disabilities are not substantially disadvantaged when doing their jobs. This could include a flexible working arrangement; for example, a change to the timing, hours or location of work. I assure her that in December 2022 the Government responded to a consultation that considered changes to this legislation to provide employees with better access to flexible working arrangements.

My Lords, given that a major challenge to the UK’s economic recovery is a significant labour shortage, not least because activity rates for the over-50 age group remain low, is it not in everyone’s interest that those labelled as disabled people should be looked upon for their abilities rather than their disabilities, and helped into the active workforce by the availability of every positive assistance that the state can provide?

The noble Lord is right. This is why we have the disability action plan, which, as I said to the noble Baroness, Lady Deech, is distinct from the strategy. A new disability action plan will be consulted on and published this year. It will set out the action that the Government will take this year and in 2024 to improve disabled people’s lives. The noble Lord is right that ensuring that the voice of disabled people is properly heard is a priority for the Government. We will run a fully accessible public consultation on the plan this year.

My Lords, on 12 January, the Disability News Service reported that neither the Secretary of State, Mel Stride, nor Tom Pursglove, the Minister for Disabled People, had signed up to become members of Disability Confident, unlike many previous Ministers. On 23 January, Mel Stride said that

“we have to ensure that employers see disabled people with eyes wide open—their abilities and the contribution they can make. That is why we promote Disability Confident”.—[Official Report, Commons, 23/1/23; col. 735.]

Have the Secretary of State and the Minister for Disabled People now signed up to Disability Confident?

I can certainly confirm that a whole range of departments have signed up to this, including the Department for Work and Pensions. Although I cannot answer the noble Baroness’s question in terms of the individuals concerned, the department at least has signed up.

My Lords, for a number of years, the noble Lord, Lord Touhig, and I have worked together to improve the lives of disabled people. Motability has over 650,000 people. Importantly, what has changed is that now many of them are computer literate. What is more, instead of loneliness, they can work at an office. Many whom I know would love not only to do that but to feel that they can put something back into society, which has helped them over the years. How can we encourage employers to realise that, as was just said, this would help the economy?

I hope that I can help my noble friend by talking about the work that we are doing on communication. It is very important that a digital service is organised for employers and offers tailored guidance on health and disability. This is a key outcome of the “health is everyone’s business” consultation, which was rolled out in 2019. It is very important to use this as a vehicle to allow the people to whom my noble friend referred to move forward in their careers.

My Lords, following the original Question about the low number of adults with learning disabilities in the workforce, what are the Government doing to ensure that schools have adequately funded programmes available, so that young people with learning disabilities can have work experience opportunities and, therefore, develop their aspirations to be part of the future workforce?

The noble Baroness again raises an important point, which would go to the Department for Education, but I will answer on behalf of the Government. I have no doubt that there are some initiatives within that department that would help in this area. As I said earlier to the noble Lord, Lord Touhig, it is very important to ensure that those with disabilities can, as soon as possible, move seamlessly from school into work and can stay in work.

My Lords, several gardening charities do wonderful work with people with disabilities, whether mental or otherwise. Would my noble friend look at the opportunities that are offered in horticulture, which range from simple to degree-level qualifications?

I will certainly look at that. My noble friend raises a very good point and I happen to know somebody with disabilities who works in the gardening sector. I agree that this is a useful area, particularly for young people to start out in.

Carers in England

Question

Asked by

To ask His Majesty’s Government what steps they are taking to recognise the role of carers in England and their contribution to the economy.

Carers play a vital role in our communities and we owe them all a debt of gratitude. The adult social care sector employs 1.5 million people, with Skills for Care estimating that paid carers contribute around £50 billion to the English economy. In 2016, the ONS also estimated that the gross value added of unpaid care in the UK was £59.5 billion. The Government recognise the value of unpaid carers and provide financial recognition, primarily through the carer’s allowance.

Yes, the Government are at last starting to recognise the value of carers. In spite of the excellent work of front-line carers, the paid-for system remains inadequate, even with the adult social care Bill—a Private Member’s Bill. We know that it is inadequate because millions of men and women, and even children, have to step in as part-time carers, limiting their time in work, education or training, at great cost to the economy. When are the Government going to introduce the social and economic reforms to the social care system that would enable these voluntary part-time carers to fully participate in and contribute to the economy?

The Government have set out our long-term plan for the reform of adult social care. In the autumn, we announced that we were making additional funding of up to £2.8 billion available in 2023-24, and £4.7 billion in the following year. Those decisions also involved a delay to rolling out some of the reforms that we had set out, so we will be updating our plan to implement that vision this spring, setting out the path forward.

My Lords, about three years ago, my most reverend friend the Archbishop of York and I commissioned the Reimagining Care Commission, which the Minister is probably familiar with. It published its final report the other day. It sought to reimagine social care for our time, particularly to answer the question of who is responsible for what, given that it is not just the Government. Will the Government consider the commission’s main recommendation—that a national care covenant be created to set out clearly the mutual responsibilities of the Government, communities, families, churches and other organisations around care and support?

The Government welcome all contributions and ideas to this space, and I am sure that we will consider the proposals very carefully. As I have said, the Government set out their own plans in this area last year. We will update those plans, looking to put people at the heart of the social care system, this spring.

My Lords, with over 7 million people in the UK juggling work alongside unpaid care, and continuing to contribute their much-needed skills to the economy at a time of labour shortages, will the Government commit to produce a cross-departmental strategy for unpaid carers? Will the Minister agree to meet me to discuss how this might best be done?

I will happily take the suggestion from the noble Baroness back. I, or perhaps someone else in the Government, could meet her to discuss it. She talked about many people juggling unpaid care with working responsibilities. That is why I am pleased that the Government are backing the Private Member’s Bill on carer’s leave, which will provide one week’s unpaid leave for carers.

My Lords, carer’s allowance is the lowest benefit of its kind. Research by Carers UK found many unpaid carers in poverty and struggling to make ends meet. Why, therefore, do the Government continue to refuse calls from Carers UK and others to raise the real value of carer’s allowance if, as they claim, they genuinely recognise and value the work that carers do?

My Lords, carer’s allowance and the carer’s element of universal credit will be uprated by inflation this April. For those carers on low incomes, the Government’s focused cost of living support will also help. That is worth up to £650 this year and £900 next year. I believe around 60% of low-income working-age carers are also in receipt of universal credit, so may be eligible for that support.

My Lords, I was honoured to be a member of the Adult Social Care Committee over the last year. We produced the report A “Gloriously Ordinary Life’’: Spotlight on Adult Social Care, led by the noble Baroness, Lady Andrews. We are still waiting for the Government to respond. Among the 36 recommendations, we suggested that:

“The Government should establish in the next 12 months a Commissioner for Care and Support to act as a champion for older adults and disabled people and unpaid carers”.

Does the Minister agree?

My Lords, I thank the committee for all the work that it has done. I recognise that there has been a delay in responding to that report. I cannot pre-empt that response, but I reassure the noble Lord and all members of the committee that the Government are looking very carefully at the recommendations and taking them seriously.

My Lords, considering the role of paid carers as well as unpaid, has the Treasury done any modelling of the effects of raising carer salaries above the national minimum wage, where many of them are stuck today? Does the Minister agree that such a move to lift carer salaries could help with recruitment and retention as well as boost local economies, where most carer salaries are spent?

My Lords, the Government have considered a number of aspects for the adult social care workforce, including the support for training that can be provided and proper recognition of the profession. Of course, the noble Lord makes a point about pay as well.

My Lords, the Government have long promised an employment Bill, which would allow Ministers to address some of the specific issues faced by carers, as well as others who face barriers to full economic participation. Given the absence of the Bill from last year’s Queen’s Speech, does it remain the Government’s intention to bring it forward? If so, when will we see it and, if not, how else will these issues be addressed?

My Lords, perhaps I can pick up on the noble Baroness’s final point. The Government are supporting the carer’s leave Private Member’s Bill to provide an entitlement to employees of one week of unpaid leave per year. We also support the flexible working Private Member’s Bill, which will make requesting flexible working an employment right from day 1, also providing more flexibility for those seeking to balance work and care. We are seeking to take forward the policies and proposals that we have set out while we await the arrival of the employment Bill.

My Lords, the Treasury does not seem to understand that by spending more money in one area, you can save even more in another area. If we spend more money in care homes, we can save a lot of money in the health service. As my noble friend Lord Haskel said, if we spend more money on carers, they can go out to work and help the economy. I have great faith in the noble Baroness. She has a lot of experience and is very persuasive. Will she go back to the Treasury and try to persuade it of this truth?

Perhaps I can persuade the noble Lord to have a little more faith in the Treasury’s attitude towards these things. I set out in an earlier answer the additional money that is going into social care this year and next, which was announced alongside healthcare spending. But the amount that we were putting into social care was precisely to acknowledge the role it plays, for example, in reducing delays to discharge that are affecting our health system.

The noble Baroness will know that if a patient has cancer, they are entitled to comprehensive healthcare free at the point of use. If they have dementia, they are subject to a very hard means test with often wholly inadequate care. Does she think this is justifiable, with all the challenges we face, particularly for older people?

My Lords, the noble Lord has set out the difficulties that there can be in drawing the lines between health and social care, but those distinctions are made in our system and removing them could have significant cost implications. The Government have set out their vision for the way forward on social care and will update it later this year. It is about reforms matched with increased funding.

Nuclear Weapons: Failsafe Review

Question

Asked by

To ask His Majesty’s Government what assessment they have made of the plans of the United States of America’s Department of Defense to commission an independent review of the safety, security, and reliability of its (1) nuclear weapons, (2) nuclear command, control and communications (NC3), and (3) integrated tactical warning and attack assessment systems; and whether they intend to carry out a similar failsafe review.

My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I draw attention to my entry in the register of interests.

My Lords, it would not be appropriate for His Majesty’s Government to comment on the United States Government’s plans to commission an independent review into the safety, security and reliability of their nuclear capabilities. We have absolute confidence in the safety, security and reliability of the United Kingdom’s nuclear deterrent, but for the purpose of safeguarding national security, we will not provide detailed comment on arrangements for its assurance.

My Lords, on 27 February, the Minister for Europe, Leo Docherty, addressed the UN Conference on Disarmament. He mentioned emerging threats posed by new technologies, promised transparency, and committed to the continuing development of concrete initiatives in reducing the risk of the use of nuclear weapons. He did not mention the US Administration’s ongoing public and independent review of the safety and reliability of their nuclear weapons, command and control, and warning systems to reduce the chance of a blunder or miscalculation, particularly from cyber threats, as an example of a confidence-building, concrete, risk reduction initiative. Since all nuclear-armed states face the same risks, surely this is a concrete and transparent risk reduction initiative, which the UK and France, at least, as nuclear and NATO allies, should also commission. Will this be on the agenda for the Prime Minister’s meeting with President Macron on Friday?

As I said in my initial response to the noble Lord, there is a very robust system within the United Kingdom, as he will be of aware, for how we deal with the safety of our nuclear weapons—there is a surveillance programme to check that they are continuing to be reliable and safe—their security and the regulatory regime that covers our nuclear activity. We continue to invest in future capabilities to underwrite safety and performance. That includes collaboration with France under the 2010 Teutates treaty; we are jointly building and operating a hydrodynamic trials facility—EPURE—in France and a complementary capability, AWE. It is interesting that the United States last carried out a review in 1991, I think. I am aware of the noble Lord’s organisation and I pay tribute to his knowledge. His interest in this matter has been encouraging the US to carry out a review, but I reassure noble Lords that there are very robust structures within the United Kingdom.

My Lords, are not the issues addressed by this Question highly sensitive and probably better dealt with privately rather than on the Floor of your Lordships’ House?

I thank my noble friend for his observation. I understand the interest of your Lordships in the general frameworks which apply, and that is something that I am happy to comment on.

Should the Government’s focus not be on maintaining continuous at-sea deterrence, which has been unbroken since 1969, but which the Minister and many others know is under increasing strain given the longevity of the Vanguard submarines and the delays in the Dreadnought class? Does not the whole focus of the Government need to be on ensuring that Dreadnought can come in in time to take the strain?

Indeed. I reassure your Lordships that the Government are fully committed to maintaining that independent minimum credible nuclear deterrent based on a continuous at-sea deterrence posture. We do not anticipate any challenge to the transition from Vanguard to Dreadnought.

My Lords, I do not expect the Minister to comment in detail, as she mentioned—of course not—but, in general, she will be aware that on several occasions in the past, human override has averted potentially catastrophic nuclear weapons use. The point that has been made is not about the safety of those systems themselves, in engineering terms, but, given the encroaching autonomy of decision- making throughout industry, including in the military, the complexity of the interrelationship between them, and the increasing reliance on artificial intelligence, the dangers of averting that by human override are constantly being eroded. So, while the Minister cannot comment in detail, will she accept that very great danger and assure us that the highest priority is being given to seeing that that human override—the decision by human beings—is not being undermined by the complexity and the increasing use of autonomous, digital-based systems when it comes to nuclear weapons?

The noble Lord asks a very important question. We are cognisant of—we are certainly not complacent about—the swiftly changing picture of threat or the swiftly changing and challenging situation of artificial intelligence. With reference to the core of the noble Lord’s question, we will ensure that, regardless of any use of AI in our strategic systems, human political control of our nuclear weapons is maintained at all times, and we strongly encourage other nuclear states to make a similar commitment. While I cannot go into detail, the noble Lord will be aware that there are a number of very robust procedures that would stop either an unauthorised intervention or a state intervention.

I am sure many noble Lords understand my noble friend the Minister’s reluctance to share any detailed information but, in general terms, given that the United States has commissioned this review, what plans are there for the UK Government to learn from any suggestions or recommendations of that review in the United States?

I thank my noble friend. As I said to the noble Lord, Lord Reid, a moment ago, we encourage other nations to be vigilant about the risk and we share information and intelligence. We are always willing to look at what other nations do.

My Lords, is not the most dangerous situation in the world currently presented by both Iran and North Korea? Given that Iran has now produced enough enriched uranium to build several nuclear weapons and that, in 2022, North Korea launched at least 95 ballistic and other weapons, some of which have an intercontinental capability, can the Minister tell the House what response we have received from our colleagues, international partners and, indeed, those who would be our adversaries on the United Nations Security Council?

These are matters of profound concern, as the noble Lord rightly indicates. We deploy whatever influence we can in the appropriate fora, whether at the United Nations or in other diplomatic or bilateral defence discussions. We deplore what Iran and North Korea are doing. There is a consistent call upon them to desist but, as the noble Lord will be aware, these are two covert, secretive and independent states. It is difficult to influence or leverage any positive response to the entreaties that the international community makes.

My Lords, will the Minister tell the House what recent conversations the MoD has had with NATO and other key defence allies about this important review? Is it our intention to follow suit with our failsafe review, as outlined in the Question, and what would be the proposed timescale?

At the risk of being tedious, I simply reiterate to the noble Baroness what I have been saying: we have a very robust structure within the United Kingdom. It is not only inherently robust in terms of the MoD construct but monitored and regulated both within the MoD and externally. We are satisfied that we have due regard to all possible risks or vulnerability. It is for other states to make their decision as to how they deal with the presence of nuclear weaponry, but I indicated earlier the partnership we have with France. I think that is an interesting example of where there is knowledge sharing.

My Lords, of course, we support the nuclear deterrent but the US has said that the failsafe review of its nuclear posture

“offers an historic opportunity to reduce the risk of nuclear use today and for generations to come.”

It says:

“The failsafe review must result in concrete actions”

to make both the US and the world safer. So, notwithstanding her earlier comments, can the Minister say what discussions or, indeed, involvement we have had on such an important review, which is ultimately about the security of the world, particularly given the current uncertainties?

As I have indicated to the House, we have in place an array of safeguards, checks and structures to ensure that we are responsive to any identified vulnerability or potential area of risk, however that risk might arise. As I said earlier, it is for individual sovereign states to make their own decisions about how they deal with these matters. It would be wrong to suggest that the United States, for example, regularly does this. I pointed out that the last review was in 1991—it is for the United States to make its decision upon that and absolutely right that it does so. It is also right for the United Kingdom to make its own determination. But I reassure the House that we constantly liaise and speak with allies, we share intelligence and we always want to learn from good practice.

Workers’ Rights

Question

Asked by

To ask His Majesty’s Government what steps they are taking to legislate to ensure high standards of workers’ rights.

Over the past year, we have proven our commitment to supporting workers across the UK by raising the national living wage to its highest rate yet. The Government are supporting six Private Members’ Bills to increase workers’ rights. These deliver enhanced protections for new parents, unpaid carers and hospitality workers. They also give all employees easy access to flexible working and workers the right to request a more predictable contract.

My Lords, the Tories won the last election by promising improvements to employment rights, but we have seen completely the opposite. I am sick and tired of posing the same questions to the Minister time and again concerning the protection of TUPE legislation. We never get a straight answer, and I believe that it is disrespectful to this House. The Minister’s attitude to date has always been, “Let’s just wait and see.” That cannot possibly be right when we have employers and employees wondering what is coming round the corner—if, indeed, there are any fundamental changes to the Government’s thoughts on employment legislation. So, for the fourth time of asking: will the Minister confirm that TUPE will remain to protect workers’ wages and terms and conditions? Or, failing that, will he finally admit that the British people were hoodwinked at the 2019 election?

I thank the noble Lord for raising this matter, and I think it right that we look at employment rights. He asks what is coming round the corner, and I will tell him: the Neonatal Care (Leave and Pay) Bill, the Employment (Allocation of Tips) Bill, the protection from redundancy Bill, the Carer’s Leave Bill, the employment relations Bill and the Workers (Predictable Terms and Conditions) Bill, all supported by the Government. Three of those Bills were brought into this House on Friday with the wonderful cross-party support of everyone here who believes in actually doing something for workers and giving them the protections this Government will afford them.

My Lords, do not workers’ rights apply equally to all our school leavers this summer, regardless of whether they were educated in the independent or public sectors? If those rights do apply, why has the Bank of England announced that independent sector pupils, including those on bursaries, will be excluded from its education presentations and group talks? Surely this is social discrimination. Will my noble friend approach the Bank and ask it to think again?

I thank my noble friend for that question. I saw that article myself and I was surprised by it. It is not for me to comment on the tour practices of the Old Lady of Threadneedle Street, but this is certainly worth further inquiry.

I want to come back to the issue of paid care workers. Care workers are skilled workers who are often subject to low wages and poor working conditions. Without urgent reform, this sector will continue to suffer from high vacancies that jeopardise the quality of care. Currently there are 165,000 vacancies, an increase of 55,000 from last year. Is not the answer that if more money is provided to these skilled workers, many of the problems the care sector faces will no longer exist?

I appreciate the noble Lord’s point. It is an incredibly important sector, and the approximately 1.5 million people who work in it are to be cherished and celebrated. The Government have put £7 billion into the sector over the last two years, which clearly is a follow-on from the crisis we faced during Covid. I will be pleased this afternoon to place a statutory instrument before this House to raise the national living wage and the minimum wage by a substantial 9.7%. All these things will help, but I am always aware that we must do all we can to support that important and vital sector.

My Lords, I think the Minister mentioned hospitality work. Freelance work has been a long-term and growing aspect of the economy, with 1.77 million freelancers contributing £125 billion to the economy. What attention are the Government going to give to those insecure workers’ rights?

I thank the noble Earl for that point. Hospitality has been an important focus for this Government, which is why we are introducing the Employment (Allocation of Tips) Bill, an important measure to ensure that, when you tip, the money actually goes to the service staff who have supported you. To my surprise, and probably that of many other Members of this House, in many instances it did not. These are the sort of Acts we absolutely need to focus on, and I am always delighted to have further conversations about how we can do more to protect this vital sector.

My Lords, the employment Bill that was promised back in 2019 has been promised time and again; in fact, on 20 different occasions we have been promised a comprehensive Bill that would deal with workers’ real concerns. Millions of workers in this country are on zero-hours contracts, false self-employment or other forms of temporary work, or stuck in low-paid employment, and now with the prospect of real fears and concerns about what will happen to their rights. Can the Minister explain why there has apparently not been time to bring forward a Bill that would give workers much-needed and urgent protection on everything from TUPE to sexual harassment to insecure contracts, yet the Government have found time to bring forward two red-rated Bills, on retained EU law and strikes, that will make it harder for workers to stand up for their rights?

I enjoyed that question because it bites into my time for answering questions, so I thank the noble Baroness. It is very relevant to realise that this Government have invested a huge amount of time in focusing exactly on this, and I would like to go through a few quick points. Apart from increasing pay by raising minimum wage levels, we have extended the ban on exclusivity clauses, which is vital for allowing flexibility in the workforce; we have introduced legislation to ensure that an equivalent to the minimum wage is paid to thousands of seafarers, who are in a sector that is very important to this country and needs protecting; we have closed loopholes that allowed agency workers to be employed on cheaper rates than permanent workers; and we have quadrupled the maximum fines for employers who treat their workers badly. I have mentioned the list of employment legislation that we are bringing in, and we continue to try to do more. If you look at it in the round, better than having one huge, complicated piece of legislation is getting these measures through in their own way and actually making a difference to the workers in this country. That is how I would prefer it.

My Lords, the disability work gap remains stubbornly wide. Can the Minister update the House on the workforce review being conducted by the DWP, which is examining proposals for subsidies for occupational health services that could close that gap?

I am grateful to my noble friend for that question. I am afraid this is not my department, but I would be delighted to come back to her with a Written Answer.

My Lords, both the Minister and I founded and ran our own businesses before coming to this place. I hope he will agree not just with me but with many business leaders and trade unionists, such as my noble friend Lord Woodley, that decent working conditions for employees’ security, health and well-being directly lead to improvements in productivity. Will he remind his government colleagues that a surefire way to make UK plc more productive would be to enshrine the highest standards of workers’ rights in legislation and not to seek to weaken or remove them through the Retained EU Law (Revocation and Reform) Bill or the Strikes (Minimum Service Levels) Bill going through both Houses?

I thank the noble Lord for that point and for the extraordinarily high level of collaboration we engaged in last week when we were doing exactly this: bringing in protections for workers—in this case, the Carer’s Leave Bill, which will allow carers the flexibility to have a much-needed one week of unpaid leave. Ultimately, the best way to strengthen the workforce in this country and to enable businesses to give pay rises is to encourage the sorts of policies this Conservative Administration have brought into play, which have resulted in nearly 4 million new people in work, the average and minimum wages going up by over £8,000 and—

This is important, because if you do not have a strong economy, you cannot deliver the sorts of benefits this country needs and the strength of pay, which is the most important thing in a proper workforce.

My Lords, I am sure the catalogue the Minister read out is welcome to many people. I was here last Friday when we brought some of those laws forward, but the fact of the matter is that the wealth generators of this country who go to work every day feel that the Government do not particularly see them as colleagues. May I ask the Minister to do his best to get the social partners back together again and, in particular, to meet with the TUC and other people who want to improve the benefits and productivity of this country so we can all work together as a team?

I thank my noble friend for raising that point. It is important that we work collaboratively, and my department does meet regularly with the unions in terms of trade advisory groups. We will continue to do so, and to collaborate to ensure that we have the best framework for employment, employment rights and business in this country.

Child Support Collection (Domestic Abuse) Bill

First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Supported Housing (Regulatory Oversight) Bill

First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Equipment Theft (Prevention) Bill

First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Offenders (Day of Release from Detention) Bill

First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Trade (Australia and New Zealand) Bill

Order of Consideration Motion

Moved by

That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 and 2, Schedules 1 and 2, Clauses 3 and 4, Title.

Motion agreed.

Retained EU Law (Revocation and Reform) Bill

Committee (4th Day)

Relevant documents: 28th Report from the Secondary Legislation Scrutiny Committee, 25th Report from the Delegated Powers Committee, 13th Report from the Constitution Committee. Scottish Legislative Consent withheld, Welsh and Northern Ireland Legislative Consent sought.

Motion

Moved by

Tabled by

At end insert “and that it be an instruction to the Committee that no new amendment shall be considered today after 10.00pm”.

My Lords, following the tabling of my amendment on Friday, there has been positive discussion in the usual channels, and I am pleased to say: not moved.

Amendment to the Motion not moved.

Motion agreed.

Amendment 68

Moved by

68: After Clause 5, insert the following new Clause—

“Conditions for bringing section 3, 4 or 5 into force(1) None of sections 3, 4 or 5 may be brought into force unless all the following conditions have been satisfied.(2) The first condition is that a Minister of the Crown has, after consulting organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, that section on a draft of a report, laid that report before Parliament setting out, with reasons, the Minister’s view as to the likely advantages and disadvantages of bringing that section into force, setting out in particular the effect of that section on –(a) the rights of and protections for consumers, workers and businesses, and protections of the environment and animal welfare, (b) legal certainty, and the clarity and predictability of the law,(c) the operation of the Trade and Cooperation Agreement between the United Kingdom and the EU, and UK exports of goods and services to the European Economic Area, and(d) the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.(3) In relation to section 4, the report must take into account any regulation made or likely to be made by a relevant national authority under section 8(1).(4) The second condition is that a period of 60 days has passed since the report was laid before Parliament, with no account taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.(5) The third condition is that, after the end of that period, both Houses of Parliament have approved a resolution that that section come into force.(6) If both Houses of Parliament have approved a resolution that that section should not come into force unless it is amended in a way set out in that resolution, then the Minister may by regulations amend that section accordingly, and that section may not be brought into force until that amendment has been made.”Member’s explanatory statement

This new Clause requires Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles. It also includes opportunity for Parliamentary approval and timeframes for laying reports before both Houses.

My Lords, in moving Amendment 68 I will speak to Amendments 69 and 69A in the name of the noble Baroness, Lady Chapman. I will take a little while; I know we want to make progress today, but these amendments are on legally very significant issues in relation to Clauses 3 to 5. Last Thursday, we discussed the fact that, unlike the sunset under Clause 1, there is no saving provision for Clauses 3 to 5, such as appears in Clauses 1(2). We moved an amendment to try to change that, and perhaps the Government will accept it.

I heard a Conservative MP on “Any Questions?” this weekend assert that Brexit meant bringing democracy back. I think that noble Lords across the Committee who have taken part in the four days of proceedings so far on the Bill would agree that it does not bring democracy back. Instead, it reinforces the executive diktat that, unfortunately, we have become rather used to.

The effect of these amendments, beginning with Amendment 68, would be to require

“Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles”

of EU law. I presume that the Government have conducted such an analysis before bringing into force such wide-ranging changes. In the words of the Bar Council,

“it would be extraordinarily irresponsible were that not done”.

We would like to see a sharing of that analysis; it needs to

“be consulted on, made public, and put before Parliament. The new clause … gives Parliament the chance, in the light of such an analysis, to prevent the bringing into force of those sections or to propose amendments”.

The fact is that the effect and scope of Clauses 3 to 5 are extremely unclear.

On legal certainty, the principles of the interpretation of EU law are ones with which UK lawyers and courts are, by now, very familiar; they are well settled as principles of the interpretation of UK statues as well. Removing those principles is likely to generate uncertainty and unintended consequences, in particular because quite a lot of those topics will have been the subject of considerable EU case law and removing them will create instability. The Government have not explained what the consequences of the removal of those principles will be on the various rules and protections concerned. I am very grateful to the Bar Council for its briefing, and, again, in its words:

“It is not a good idea to legislate when you have no idea what the consequence of that legislation will be.”

However, I am afraid that that is where we seem to be.

Under these clauses, there will be a retrospective effect to alter the position of domestic legislation, which could not have been foreseen by the domestic legislator at the time. That appears to be a very dubious thing to do. The rationale for retaining, for instance, the principle of the supremacy of EU law—a much misunderstood term; lawyers describe it better as a hierarchical rule—is legal certainty, because individuals and businesses will have taken decisions, sometimes far-reaching and involving significant investment, based on the law as it was. Removing that principle to give priority to any subsequent domestic legislation would mean that it would be impossible to say whether the consequence of removing the principle in any particular case would reduce the clarity of the law or change its effect. Even if it does not do those things, it will at least reduce certainty and lead to unpredicted—and perhaps undesirable or unjust—consequences.

Our Constitution Committee stressed that the abolition of general principles of EU law may give rise to inconsistency, with some legal provisions interpreted in line with general principles of EU law and others in line with domestic law. How on earth anybody is going to find their way through that maze we will have to wait and see, but I hope not. If the Committee was to favour Amendment 68 or something like it, perhaps in the analysis that the amendment calls for it would become clearer what the relationship is between Clauses 3, 4 and 5 and Clause 7, which we will come on to later. Clause 7 requires courts to interpret retained EU case law in deciding whether to depart from it. However, if the underpinning of retained rights, principles and supremacy of EU law has been pulled away, what is there left to assist that interpretation?

When he replies, can the Minister explain the effect of Clause 22(6)? It reads:

“Sections 3, 4 and 5”—

the clauses we are discussing at the moment—

“do not apply in relation to anything”,

and I emphasise “anything”,

“occurring before the end of 2023.”

Perhaps he could explain what “anything” covers. Any government analysis, as called for in Amendment 68, needs to explain the effect of Clause 22(6).

These Benches have also tabled Amendment 69A, which focuses especially on the crucial topic of legal certainly, whereas Amendment 68 covers a range of effects in its call for reasoned analysis. Amendment 69A would require the Government to request a report from the Law Commission, which would then be laid before Parliament. Parliament would be called on to approve a resolution before any of Clauses 3, 4 and 5 came into effect.

I will quote from the briefing on the Bill from the Employment Lawyers Association—I am grateful to it and to everybody else who has briefed us:

“The Bill will create, on 1 January 2024, a raft of EU employment rights whose application, scope and meaning is unclear. Lawyers will no longer be able reasonably accurately to predict the effect of workers’ rights or employers’ obligations. Businesses will no longer be able reasonably accurately to predict their obligations. Workers will be uncertain as to the scope, meaning, application or entitlement to their working rights”.

It continues, I think with reason, that:

“Fertile ground for litigation will be seeded—litigation begets the triplets of cost, delay and uncertainty: that deters investment.”

I think even the lawyers must be quaking at this prospect of litigation.

The Employment Lawyers Association says we face:

“hundreds of domestic cases that are based on European principles … erased from the record and the edifice of 50 years of incremental understanding of the regulations … torn down and replaced by a void.”

There is no phasing out of the old as new decisions supersede them. There is no transition period. There is no gradual introduction of new principles. Until new decisions emerge—over the next few years, decades or 50 years—there will be a vacuum which will be filled by litigation and appeals. I suspect that, given current delays, the employment tribunal system is going to get rapidly clogged up.

Finally, I draw attention to one of the principles that is proposed to be lost: the precautionary principle. This has potentially far-reaching consequences for a broad sweep of environmental law, including nature protection, animal health, water quality and pesticide regulation. We have discussed the environment and we are going to be discussing environmental issues again, but the general principles are interpretative principles. Even if regulations that embed a precautionary approach are saved, such as the habitats regulations, as those regulations are currently interpreted in accordance with the precautionary principle, if that principle is swept aside we will be left with no clear idea of the regulations’ meaning. No doubt the Minister is going to refer me to Section 17 of the Environment Act, which lists the five former EU environmental principles, but the problem is that there is a difference between that and the EU principles. The Environment Act merely requires policymakers to have “due regard” to a policy statement on environmental principles and it does not have the same impact as the current principles under EU law.

I believe that these are important amendments. The Government need to explain to us what the legal consequences will be and to seek, if they can, to reassure us that there is not going to be a legal mess which somebody—the courts, lawyers and all of us—will have to try to sort out. In their enthusiasm for the provisions of the Bill the Government seem to have cast aside, as we have said constantly in the four days of proceedings, the principles of good governance, good policy-making, consultation and reasoned analysis. That is what these amendments call for.

My Lords, I have not contributed at all in this Committee and I am going to say only a very few words, which I hope I can keep as simple as possible. I very much support Amendment 69A here, because I think it is particularly relevant. I hope it is of help to my noble friend the Minister, who last week dismissed out of hand Amendment 44, to which I had added my name. I hope he will understand that I am trying to be helpful in supporting this. With the legal uncertainty that we seem to have here, it is terribly important that the Government, and indeed Ministers, protect themselves in some way.

The suggestion last week was that we should have a commission set up for the purposes of looking at these proposals and at what effect they might have, and move them to parliamentary scrutiny in the appropriate manner. Now we have a proposal in subsection 2 of the proposed new clause introduced by Amendment 69A that would make it a condition that

“a Minister of the Crown has asked the Law Commission”,

as it is presently constituted,

“to report on the effect of … this Act on legal certainty, and the clarity and predictability of the law.”

I am sure I do not need to remind my noble friend of the importance of certainty, and how important it is in the law to have that. We do not have so many comparisons here. I use the term “void for uncertainty” in relation to legislation. For instance, in the United States, all legislation that is “void for vagueness”, as is the term, cannot proceed. In the European Union, it is quite clear that there has to be clear certainty in the imposition of laws on the people who have to obey and follow them. Here we have a situation where we have nothing of the sort. It is important, therefore, that the Government find a way in which they can, if necessary, protect themselves; otherwise, we are going to get in due course a considerable amount of legal interest, as the noble Baroness, Lady Ludford, just referred to. Whether that is through judicial review or other means, it will be so complex and convoluted that, while it might please some lawyers, other lawyers such as myself, of a rather more modest disposition, would find it quite appalling to see this happen. I ask my noble friend perhaps not to dismiss this amendment quite as easily as he dismissed Amendment 44.

Throughout the proceedings I have watched so far in Committee, there have been many references to the democracy which is necessary—and that the Government wish to pursue—compared with the lack of democracy that the Government allege in the European Union. As a Member of the European Parliament—as my noble friend the Minister was too, although for a shorter period—I think it is very difficult to make out a good case for a lack of democracy in the work that was done by me and my other colleagues from Britain in the European Parliament. This is particularly the case in recent years where the European Parliament has had co-decision and a right to block legislation from the Commission. The proposals of the Government at the moment—if they are not put to some form of independent assessment—would leave us with a situation where the secondary legislation lacks every single shred of evidence of democracy. Therefore, I ask my noble friend to seriously consider conceding Amendment 69A when he comes to respond.

My Lords, I will speak briefly to both Amendments 68 and 69. This Bill, as others have said, creates huge uncertainty for business at a time when business is struggling to cope with so many uncertainties that are outside the control of the Government. But the Government do have control of this. Both amendments require the Government to report on the likely advantages and disadvantages of taking the action they propose. What could be more reasonable? What member of society would expect the Government not to have weighed up the advantages and disadvantages of taking any particular action? How on earth can it be justified to go ahead and do away with protections and rights bestowed by European law, without actually having done some consultation as to what the results are likely to be? There might be disadvantages but, unless the work is done, who knows what advantages will be thrown away. What justification can there possibly be for taking such rash and foolhardy action?

Amendment 68 also requires a resolution in Parliament as to whether such action should go ahead. It is all about bringing back control to Parliament. Why would the Government—who are so keen on bringing back control to the UK—not wish to give Parliament the say on whether EU retained rights and protections should remain? Why should consumers not have the protection of a vote in Parliament? Perhaps the Minister could tell us why he does not want to know what the advantages and disadvantages of legislating would be and does not want consumers to have their rights taken into account.

My Lords, I support the three amendments, but I do not intend to speak on them. I just wanted to support and admire what the noble Lord, Lord Kirkhope, had said about the European Parliament. It was about time it was said.

My Lords, I will add one very brief point as well—following on from my noble friend Lady Ludford when she introduced Amendment 68 and 69A—which is the background in the report of the Delegated Powers and Regulatory Reform Committee, which has been referred to consistently during the preceding three days of Committee. It makes the important point:

“The approach taken in the Bill gives rise to significant legal uncertainty … There is no certainty about the sunset provision itself because Ministers can extend it under the delegated power in clause 2.”

The point about these two amendments is that they set out a framework including, at the end, a very high bar that both Houses of Parliament must agree the same recommendation to go back to the Minister, which would then ensure that the Minister acted on it. It is not just for debate in Parliament, as usually happens with secondary legislation; it is making sure that there is the evidence about the background—which other noble Lords have spoken about—but then both Houses must approve the same recommendations.

I echo the questions that other noble Lords have asked. I hope that the Minister can explain to us why this safety net, as set out by the various stages in these amendments, would not be enough to reassure Ministers that we are helping them to do the job they need to do in this extremely complex matter.

I am not a lawyer—that will become very apparent from what I am going to say—but I support Amendments 68, 69 and 69A. I am puzzled that the Government say that their aim is to introduce legal clarity. I think back to 50 years ago and Lord Denning’s great speech about EU law coming inextricably up the estuaries and rivers. He did not think that we should join the European Community. He made a remarkable speech, which was correct: over 50 years, EU law has come up the rivers and estuaries. How do you desalinate the common law of England? It grows organically. Which bits do you prune? How do you know which nutrients were of European origin and which were of domestic origin? How do you go about this task? Fortunately, it seems that we are not going to be allowed any role in this, because it is going to be done by a Minister with the stroke of a pen. Surely that cannot be right.

The wonderful letter we got from the Minister at noon today explains what we are doing now in the following terms:

“Retained case law is not being sunset”—

I would have said “sunsetted”, but still.

“However, the repeal of section 4, and the removal of supremacy and general principles by clauses 3 to 5 will mean that after the end of 2023 the effects of these features of EU law would not be expected to be read in to relevant retained case law, when our domestic courts are interpreting and applying assimilated law. However, where there is a restatement of case law concerning the application of principles being removed by clauses 3 to 5 of the Bill … it would be expected that courts would continue to consider relevant case law where it is clear from the restatement that that is the intention.”

If I were the court, I would have no idea how to interpret that. What am I supposed to do? I am supposed to work out what the Minister’s intention was from his restatement. Did he intend that I should still look at that EU law, or not? If I am not to look at it, what am I supposed to look at? Fifty years have passed. Does all that salinated law—all these precedents—have to be ignored? I find it quite hard to believe.

The letter explains:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … when they are interpreting and applying assimilated law. Instead, we expect them to apply domestic principles of interpretation.”

What are “domestic principles of interpretation”? We have 50 years of precedent and case law. Is that domestic? I say, yes, it is—but, of course, it is salinated. EU law did affect the development of UK law. So, the reports that are called for in these amendments are absolutely necessary. I feel reluctant to impose on the Law Commission the heavy load that Amendment 69A would place on it. I have great sympathy with the noble Lord, Lord Kirkhope, and I would have preferred his solution to the matter.

I have one other mild grievance with the letter that arrived at noon from Lord Gobbledy of Gook—sorry, the noble Lord, Lord Callanan. It answered a lot of points raised in this debate over the past three days, but not mine. I have now asked four times what the procedure is for getting rid of pieces of EU law—our law—that are to be disapplied and abolished altogether. What we get in reply are examples: we hear about olives, lemons, and navigation in the Skagerrak. I agree with that; no doubt there are several pieces of law that have never been relevant and have no relevance now, and that none of us will miss much. However, there could be others that a Secretary of State might wish to abolish but some of us might take a different view on. For example, if Mr Rees-Mogg were still in charge of this exercise, one could imagine that his might be quite a liberal interpretation of the power to extinguish. What procedure is to be followed? People have to know whether or not laws exist, so there must be some sort of publication. The Minister cannot do this absolutely in private.

Secondly, I would have thought that there would have to be some sort of legal instrument. I do not see how you can pare the statute book without doing so in a clearly legally established and recognisable way. Thirdly, it seems to me that there must be some role for Parliament in that exercise. I cannot see what it is and we have not been told. My questions for the Minister are these: what procedure is going to be used; how will the users of the law know that it has been used; and what role will Parliament have in making the decision?

My Lords, I too am extremely grateful to the Minister for his letter; I actually got it on Friday. I certainly welcome it. One of the sentences in the letter that struck me—it hit me in the face, as it were—was in the paragraph at the bottom of the second page:

“The Government is intent on bringing clarity to the statute book, and for citizens and businesses so that they are clear as to the rights that they rely on”.

That is the fundamental issue here; it is certainly the one that I want to concentrate on in our debate on this group. By the way, I am not going to repeat the points about the potential impact as we have had lots of discussion about that.

We are dealing here with known unknowns, if you like. As the noble Lord, Lord Kerr, just said, it is about the idea that we do not know quite what impact the case law and common law that has developed over 50 years has had. Of course we had a very detailed discussion on Clause 1, but Clause 3 is potentially even more serious because it deals not with specific regulations that might be identified on the dashboard—it is now approaching 4,000 pieces of legislation—but with areas where we are not sure whether the legislation is EU-derived, are not sure about the impact of EU law on them, and where decisions will undoubtedly have a huge impact.

These amendments are trying to assist the Government in how to ensure a proper process for identifying these things before anything falls off a cliff edge ahead of this date, and how to ensure proper parliamentary scrutiny. It is a reasonable question in relation to process. This is not about trying to frustrate the Government, as noble Lords have already commented. It is about how we assist the Government in avoiding chaos.

Certainly, this clause requires more than simply cataloguing instruments. It requires us to look into how courts have interpreted decisions and what impacts that will have. Whether it is the Law Commission or another body, the Government must ensure that proper time is allocated to research this so that, coming back to the letter, we have certainty, because businesses require certainty. We have had that debate. Workers require certainty as to their rights. Consumers require certainty. All those things have been impacted by decisions through common law.

Nobody disputes that there may be EU rights, powers, liabilities, obligations, restrictions, remedies and procedures that we could do better without. There is no doubt about that, but let us have a proper procedure for determining it. It cannot be right that we simply have a cliff edge with a dashboard that the Minister repeatedly refers to that does not even quantify them. I think there are 28 in the dashboard that you can consider impacted by Clause 3 out of the 4,000. There are clearly lots more examples.

I am attracted to Amendment 69A signed by my noble friend Lady Chapman, the noble Baroness, Lady Ludford, and the noble Lord, Lord Fox. It provides a clear structure and timetable for us to work through that will ensure a transparent way of dealing with people’s rights. That is the most important element of these groups of amendments. Let us not frustrate what the Government want, but let us do this in a proper way that does not lead to the confusion and chaos which undoubtedly Clause 3 would.

I thank all Peers who have contributed to the debate. I was getting a bit concerned about the subject of my famous correspondence with the House, but I took on board the observations of the noble Baroness, Lady Chapman, at the end of the last day in Committee, about wanting to see the letter in advance. I am pleased that the noble Lord, Lord Collins, got his on Friday afternoon; I approved it in draft on Friday afternoon. I am sorry that the noble Lord, Lord Kerr, did not get his until noon today. I received it on my parliamentary email at 10 am, so perhaps his email is a bit slow. I did attempt to get it out as early as possible because I suspected that it might come up and I knew that noble Lords would want to read it before the debate. I am sorry that the noble Lord thinks that it is gobbledegook, but that is lawyers for you.

The amendments in this group are Amendment 68 tabled by the noble Baroness, Lady Ludford, and the noble Lord, Lord Fox, Amendment 69 tabled by the noble Baroness, Lady Chapman, and Amendment 69A tabled by all three noble Lords. These would set unnecessary conditions on the commencement of Clauses 3, 4 and 5. Let me start by drawing noble Lords’ attention to why we are making the changes in these clauses. Each of the clauses is vital to the Government’s programme of reforming retained EU law.

The approach taken in the European Union (Withdrawal) Act 2018—noble Lords will recall that we debated this extensively at the time—was to retain these principles, rights and obligations to ensure legal continuity at the end of the transition period, but it is constitutionally novel and inappropriate to leave them on the statute book indefinitely. That there are still circumstances where retained EU law takes precedence over UK law is not consistent with our status as an independent nation now. The principle of EU supremacy must be ended as soon as it can be.

Amendments 68 and 69 are very similar and require a Minister of the Crown to consult with relevant persons or organisations before laying a report before both Houses of Parliament setting out the specific effects of bringing Clauses 3, 4 and 5 into force. Amendment 68 would require Parliament to approve a resolution to bring those clauses into force. Requiring Ministers to write a report on matters to which the Government had already committed would, in our view, add unnecessary complexity and delay to these reforms. The proposal in Amendment 69A, which is supported by my noble friend Lord Kirkhope, for the Law Commission to produce such a report would inappropriately involve that organisation in the implementation of key government policy.

I say to my noble friend Lord Kirkhope and to the noble and learned Baroness, Lady Butler-Sloss, that, as my noble friend observed, I know the procedures of the European Parliament very well, but the debates last week were about the extent of this Parliament’s involvement in the law that became retained EU law. My point in those extensive debates was that this Parliament had no say in those rules when they came into law, by the various means that they did. I was not decrying the EU’s democratic procedures. We all have some criticisms of them but, of course, elected MEPs are involved, to a certain extent, in most of those procedures. With respect, I do not agree with my noble friend on this occasion.

The Bill will also not lead to legal uncertainty, as suggested by these amendments. Our approach will improve accessibility and legal clarity by, where necessary, codifying rights and principles expressly in domestic statute. In my view, it is an important constitutional objective that citizens be able to rely on what they read in domestic statute without having to check obscure cross-references in general retained EU rights.

In response to the specific question from the noble Baroness, Lady Ludford, Clause 22(6) simply means that Clauses 3 to 5 do not have effect before the end of 2023. As such, Section 4 of the 2018 Act, the principle of supremacy and general principles of EU law will continue to apply so far as they relate to anything that takes place before the end of 2023, even if litigated after 2023.

The Government are committed to ensuring robust scrutiny of secondary legislation made under the delegated powers in the Bill, while at the same time ensuring the best and most effective use of parliamentary time. This means that legislation made using the delegated powers in the Bill will be subject to either the negative or draft affirmative procedure, depending on the legislation that is being amended and the power used. We are going to debate this later, but a sifting procedure will also apply to regulations proposed to be made under the powers to restate and to revoke or replace, which again will afford additional scrutiny to Parliament on the use of these powers.

As already set out, the Government have committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations. This includes maintaining the UK’s obligations under the trade and co-operation agreement and the Northern Ireland protocol. I hope that reassures the noble Baroness, Lady Ludford, who raised the question of our international obligations.

In conclusion, this new clause would add unnecessary complexity to the important steps that the Bill is taking to ensure that the UK’s statute book meets the needs of the British people. I therefore hope that the noble Baroness, Lady Ludford, withdraws her amendment.

I am grateful to the Minister for giving way. Before he sits down, I refer him to the second paragraph on page 2 of his letter—for which I was grateful, joking apart:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … Instead, we expect them to apply domestic principles of interpretation”.

What are these domestic principles?

They are the domestic principles of interpretation that have been used by the courts since time immemorial: the normal procedures they use to apply their scrutiny of UK law. That is the point we are making. It is important that the general principles of EU law, which were introduced into UK law with our accession and which have applied to retained—[Interruption.] Will the noble Lord let me finish making my point before he intervenes again?

In time immemorial, we were not members of the European Union. Is the Minister saying that we all should go back to pre-1972, and that anything that happened when Denning salt water was coming up the estuaries—anything that happened in the last 50 years—is to be ignored by the courts?

No, I am not saying that at all. Case law is not abolished: courts will still be able to take case law into account. We will use the power of restatement where necessary. Departments will look at whether the general principle of EU law, which we are abolishing with this legislation, affects the particular statutes that they are retaining, and they will adjust them accordingly so that the same policy effect is maintained. Of course I am not suggesting that we go back on what was agreed. The principles of case law will remain.

We are talking about the courts and cases. Surely the courts will have to look at the domestic principles of interpretation which they are going to apply. Will they be given any guidance?

The courts will use the same principles they have used for the interpretation of UK statute for many hundreds of years.

Workers will want to know precisely which of their rights will be impacted by this clause. Of the current numbers, can the Minister identify how many regulations in the dashboard will be impacted by Clauses 3 to 5?

We will keep the dashboard updated as work progresses. As the noble Lord knows, we had this debate in the first grouping on workers’ rights. We are proud of our record and have given a commitment that the UK will not go back on our excellent principle of workers’ rights, which are far in excess of that guaranteed by European law. I see that the noble Baroness, Lady O’Grady, is smiling.

We have had this debate on the issue of the dashboard, which noble Lords have raised on many occasions, but let me restate the Government’s position. We are happy that departments know what legislation they are responsible for. Their lawyers are still going through it to determine which is or is not retained EU law, but we have introduced technical amendments to make it clear that, by default, if they are not sure, they should retain that law. No detriment or challenge could be made if they did that.

I have just realised that my noble friend referred a moment ago to this Parliament’s lack of involvement in EU matters or legislation. He and others here are always putting forward that Ministers of this Government are accountable to Parliament—although, we sometimes argue, not sufficiently. Of course, they make up the Council of Ministers, which they attend in order to approve all European legislation. He surely therefore recognises that Parliament is almost directly linked to European legislation, but he says that there is no UK parliamentary input. I just wanted to correct that point.

It is slightly off the point, but I hope the noble Lord is not trying to argue that the UK Parliament is President in the Council of Ministers.

My Lords, the point that I want to probe a bit more is the known unknowns. We do not really know what will be impacted. I will read from the noble Lord’s letter:

“A comprehensive review of all retained EU law on the UK statute book began in September 2021, and work is well underway by departments to assess line by line, the desired policy intent and effects of retained EU law on the statute book and to ensure that REUL that needs to be preserved, is preserved”.

What and who decides the policy intent? The Bill does not tell us anything. That is the biggest concern and why these amendments try to assist the Government by providing a process where we can have greater transparency. The noble Lord is unable to give an answer at this stage of the game, and we are not far away from the cliff edge that we have all been talking about. He cannot tell me what the dashboard numbers are. Can he tell us the policy intent identified in his letter?

The reference in that is to the policy intent of the particular piece of retained EU law. The point we are making is that if the abolition of the principles of EU law, the supremacy and interpretive effects, changes the policy intent of that particular piece that is worth retaining then of course it will be changed using the powers in the Bill—the powers of restatement, which we will debate later—to preserve the original policy intent, as would have been approved by Parliament, if Parliament had any role in approving that in the first place.

This takes us back to the Delegated Powers and Regulatory Reform Committee report, which specifically made the point that there is not,

“an indication of which legal or policy areas the Government think should be retained, amended or revoked”.

It says absolutely specifically:

“The Government need to explain how they propose to use the powers in the Bill. They also need to explain what is behind the headlong rush and the impending and arbitrary end-of-year deadline”.

With the greatest of respect to the noble Lord, the letter does not say that. I think noble Lords would agree that we have not had that explanation over the last three days in Committee either.

I am sorry if the noble Baroness believes that. We have debated the principle of the sunset. I accept that she presumably has a different position from mine, but I have stated the Government’s position on numerous occasions. The dashboard will continue to be updated as departments come to decisions on what they want to do with their stock of retained EU law.

My Lords, while it is in my mind, I am not sure the Minister answered my noble friend Lady Brinton’s question, which was, in citing the Delegated Powers Committee report, to ask what was the policy intention and to point out that the Bill is a blank sheet of paper as far as that is concerned. That is what is completely worrying us, because of its effect on the real world and the lack of any parliamentary grip on this process.

For him to say that Amendment 69A would involve the Law Commission in Government policy misrepresents the amendment—no doubt inadvertently—which talks about asking the Law Commission to report on,

“the effect of sections 3, 4 and 5 … on legal certainty, and the clarity and predictability of the law.”

That is surely within the purview of the Law Commission. That would not involve the Law Commission in policy. I fear that the Minister misrepresented Amendment 69A, perhaps in his enthusiasm.

The Minister also claimed that Amendment 68 would introduce unnecessary complexity. I am afraid I find that a little cheeky, because the whole Bill will result in extreme complexity. Every commentator with no particular party-political axe to grind points that out. It will make life very complex for businesses, unions, individuals and consumers trying to understand their rights. The Government are creating the complexity. In Amendments 68, 69 and 69A, as in the amendments we debated in the first three days in Committee, there is a consistent theme calling for analysis, reasons, a report to Parliament and for Parliament to be able to make decisions. We are trying to pull back from the Government’s creation of a void. If there is anything more legally uncertain than a void, I do not know what it is. The noble and learned Baroness, Lady Butler-Sloss, whispered to me, and gave me permission to repeat her whisper, “I’m glad I’m not a judge anymore.” She is feeling sorry for the judges who will attempt to sort out this void and this mess, and that is not a reasonable thing for a Government to do. As I keep saying, it is not good governance.

The noble Lord, Lord Kirkhope, will recall that he, I and the Minister were in the European Parliament at the same time. The noble Lord, Lord Kirkhope, drew attention to the fact that Ministers keep saying to us that there was no parliamentary involvement in EU lawmaking, that it was not democratic, et cetera, but, as he pointed out, there are two Chambers of the EU legislature. The lower Chamber is the directly elected European Parliament, which we were in, and the upper Chamber, although it fails the transparency and accountability test, is the Council of Ministers, which included UK Ministers. It once had a veto and later had very strong influence, particularly from British Ministers, it must be said.

I am not sure whether this refrain from Ministers that the way this law was originally made was not democratic and so now we are making it democratic is the assertion. That is easy is to refute because there is nothing democratic about the way the Government are going about it now—the Bill simply gives powers to the Executive. Or are they saying that it was not democratic when it was done in the EU and that is their justification for it not being democratic now—so there will be a consistent lack of democracy? I am not sure which way round it is.

I will finish off by recalling, as I did in moving the amendment, that Conservative MPs have clearly been briefed to say, in the Brexiters’ consistent refrain, that this is taking back control and bringing back democracy. The Government are gaslighting us, frankly, because this Bill is the opposite of doing that. I would have thought that self-respecting MPs would at least not say that given this Bill, which they, certainly on the Conservative Benches, waved through the Commons. I do not know whether they ever read it, but if they had they would have seen that Parliament is carved out completely, so how they can keep a straight face when they say that democracy is being brought back is beyond me. That said, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

Amendments 69 and 69A not moved.

Clause 6: “Assimilated law”

Amendments 70 to 72 not moved.

Amendment 73

Moved by

73: Clause 6, page 4, line 15, at end insert—

“Retained EU law governing the CAP direct payment schemes

Retained direct EU CAP legislation

Assimilated law governing the CAP direct payment schemes

Assimilated direct CAP legislation”

Member’s explanatory statement

This amendment renames bodies of law relating to direct payments to farmers as regards times after the end of 2023.

Amendment 73 agreed.

Amendments 74 to 76 not moved.

Amendment 77

Moved by

77: Clause 6, page 5, line 7, at end insert—

““retained EU law governing the CAP direct payment schemes” and “retained direct EU CAP legislation” have the meaning given by section 2 of the Direct Payments to Farmers (Legislative Continuity) Act 2020 (as it has effect on the day on which this Act is passed).”Member’s explanatory statement

This amendment is consequential on the Minister’s amendment to Clause 6, page 4, line 15 .

Amendment 77 agreed.

Clause 6, as amended, agreed.

Schedule 1: “Assimilated law”: consequential amendments

Amendments 78 to 80 agreed.

Schedule 1, as amended, agreed.

Clause 7: Role of courts

Amendment 81

Moved by

81: Clause 7, page 5, line 30, leave out “must” and insert “may”

Member's explanatory statement

This amendment restores discretion to the higher court.

I thank my noble friend the Minister for the letter which we received during the course of this morning. I am slightly concerned that he did not reply to the question on the fact that the Scottish Parliament has withheld its consent, or tell us the Government’s response to that, nor to the amendments that the Scottish Parliament has laid on the table. I would be grateful if at some point that could be addressed.

In speaking to the amendments in my name in this group, I will speak also to those tabled by the noble and learned Lord, Lord Hope, which I have also signed. I would like to say a general word about Clause 7, on the role of the courts. I am grateful to the Law Society of Scotland for preparing me on the amendments that I have tabled today. This clause deals with Section 6 of the European Union (Withdrawal) Act, which dealt with the interpretation of REUL and the application of retained case law by domestic courts.

The amendments tabled to Clause 7 are quite complicated and convoluted. I would hazard to say that it is difficult to understand the effect of the amended provisions. Therefore, the amendments that I have put forward should make it clearer that, if Clause 7 simply substituted a new Section 6 of the European Union (Withdrawal) Act, the new Section 6B, which Clause 7(8) proposes to insert into the European Union (Withdrawal) Act, would provide that UK or devolved law officers could make a reference to the Supreme Court, the High Court of Justiciary or the appropriate relevant appeal court, as defined by proposed new Section 6A and the circumstances set out therein.

Even though new Section 6B(7) provides that any decision by the court to which reference is made does not affect the outcome of the proceedings, the view of the Law Society of Scotland, which I share, is that it is contrary to the interests of justice that the law officers can be empowered to make a reference in a civil case that has been concluded and where there has been either no appeal or the appeal itself has been concluded. This contravention of the principle of finality and interference by the state in civil litigation needs to be explained and justified by the Government; I urge my noble friend the Minister in summing up to take the opportunity to do so.

I understand that the innovation would apply only on a point of law on retained case law, thus diluting the unity of civil law. Further, any such power of reference would not be comparable, for instance, to the role of the Attorney-General or the Lord Advocate in criminal proceedings. Such law officers have a direct interest and an integral role to play in all such proceedings, including instituting appeals or references on points of law. Law officers do not currently have that role in civil proceedings and it remains to be seen why they should have it in respect of one particular category of civil case law. Again, I seek clarification from my noble friend.

New Section 6B(2) identifies the law officers who can make a reference. The Lord Advocate’s power to make a reference is limited to where the point of law relates to the meaning or effect of relevant Scotland legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or a matter of law on reserved matters. Again, the Law Society questions whether it is appropriate that any UK law officer other than the Advocate-General for Scotland should be able to make a reference to the High Court of Justiciary or a relevant appeal court, which is the Scottish court, on a matter of legislation. I refer to Taylor Clark Leisure plc v the Commissioners for Her Majesty’s Revenue in 2015.

New Section 6C provides that each UK law officer and devolved law officer is entitled to notice of proceedings. The Lord Advocate’s power to intervene is limited to where the argument relates to the meaning or effect of relevant Scottish legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or to the law on reserved matters. Again, I question whether it is appropriate that any UK law officer other than the Advocate-General for Scotland will be able to intervene on a matter of Scottish legislation before the High Court of Justiciary or a relevant court of appeal, which is the Scottish court. I hope the Minister will take the opportunity to clarify those points.

On Amendment 81, Clause 7(3) as currently drafted introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors when deciding whether to depart from any retained EU case law. It is the view of the Law Society of Scotland, and I share that view, that the courts must be able to exercise discretion when deciding such matters, and that a statutory obligation to consider these matters is an unjustifiable intrusion on judicial independence. I therefore hope the Minister and the Government will accept leaving out “must” and replacing it with “may” in Clause 7 in that regard.

Amendment 82 would delete new subsection (5)(a) that Clause 7 currently inserts into Section 6 of the European Union (Withdrawal) Act. Again, as currently drafted, Clause 7(3) introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors in deciding whether to depart from any retained EU case law. One of those factors is contained in new subsection (5)(a):

“the fact that decisions of a foreign court are not (unless otherwise provided) binding”.

In the view of the Law Society of Scotland, judges are well aware that decisions of foreign courts are not, unless otherwise provided, binding. Therefore, in the society’s view, and I share that view, it is unnecessary to prescribe that the judiciary take the matter into account, and I recommend on behalf of the Law Society of Scotland that this provision be deleted from Clause 7.

Amendment 84 would delete “proper”. The reason for that is that the courts must be able to exercise discretion in deciding such matters as set out in Clause 7(3) when deciding to have regard to certain factors to depart from any retained EU case law. Creating a statutory obligation on the courts to consider how retained EU law constrains the proper development of domestic law imposes an unachievable objective on the judiciary by requiring judges to assess what the development of the law might be and to determine whether that development will be “proper”. That is essentially a matter of policy, which is the province of government rather than the judiciary.

I would like to briefly refer to the points raised in Amendments 95 to 99 in this group from the noble and learned Lord, Lord Hope of Craighead, as well as Amendment 99A, which go to the heart of the role and function of the Lord Advocate and the particular arrangement that pertains to what Scots law should be in this regard. I omitted Amendment 94, which, again, is a consequential and probing amendment seeking to delete new Section 6B. I look forward to hearing from other noble Lords who will speak to amendments in the group, but with those few remarks, I beg to move Amendment 81.

My Lords, I agree with what has just been said by the noble Baroness, Lady McIntosh, and I speak only with reference to the Court of Appeal of England and Wales, of which I was a member for about nine years. We regularly considered cases from all over the world—the High Court of Australia, the Supreme Court of the United States, the Hong Kong Court of Final Appeal, or any court that had similar law to the law of England and Wales. We considered them, but none of them was, or is today, binding. It is absolutely unnecessary to put this in, and I have to say I find it offensive to judges who have treated these cases in the way I have just explained for many years. I was on the Bench for 35 years, and I looked at these cases many times. I would be offended to be told I could not apply them as part of English law, because I knew that from my childhood, for goodness’ sake.

My Lords, I am going to speak briefly about Amendments 83, 84, 87, 87A and 87B. I do so as a jobbing barrister, with some diffidence, because I note that the noble and learned Lords who have put their names to these amendments have not yet spoken. Indeed, I do not think they are in the Chamber. I am against the provisions in the Bill, and I am going to outline my reasons.

When drafting legislation, we need to ensure clarity. Laws need to be clear, unambiguous and capable of being understood by members of the public, otherwise compliance is impossible. Furthermore, to ensure justice, advisers need a degree of certainty and predictability as to what the law is or is likely to be when they have to advise on it, otherwise, as I say, justice will not happen. When one applies those criteria to the provisions in the Bill, one becomes profoundly uneasy. The phrase found in new paragraph (b) in Clause 7(3), “any changes of circumstances”, is astonishingly broad. It would apply to any change of circumstance without any regard to degree or nature.

The same sort of criticism applies to new paragraph (c), on

“the extent to which the retained EU case law restricts the proper development of domestic law.”

But what do we mean by “proper development” of domestic law? Who is to judge what is proper? Are we to contemplate judge-made or statute law, which are extraordinarily different? Does this concept not drag judges into political and perhaps partisan areas? A determination by a judge on what the law ought to be is, in many senses, to intrude into a political decision that judges would be well advised to avoid.

Precisely the same criticisms apply to the word “influenced” in new paragraph (a) in Clause 7(4), to which Amendment 87 applies. They also apply to the phrase “would depart”, to which Amendment 87A applies. Giving practical interpretation or advice on the meaning of these words is almost impossible, which inevitably impacts on compliance by individuals and the doing of justice by the courts. For the reasons that I have briefly outlined, these proposed provisions, as presently incorporated in the Bill, are profoundly objectionable and should not feature in this legislation—but, in conclusion, I say that this applies to the entirety of the Bill.

My Lords, as a result of the lack of time to address the amendments to Clause 7 last Thursday, the noble and learned Lords, Lord Judge, Lord Hope and Lord Thomas of Cwmgiedd, are not able to speak to the amendments to Clause 7 in their names. As your Lordships will see, I have been asked to do so on their behalf. These are Amendments 83, 87, 87A, 87B, 90, 91 and 93. I will also support Amendments 85 and 88 in the name of the noble Baroness, Lady Ludford. A number of these amendments are quite technical so, rather than weary the House with detailed observations on each of them, I will take a broad approach, in the hope that the Minister will permit a meeting when the others can be elaborated further.

Broadly speaking, the amendments fall into two parts, the first of which comprises amendments to the provisions in Clause 7(3) and (4), about the circumstances in which the court may depart from retained EU case law and retained domestic case law—these are Amendments 83 to 89. The second group concerns the procedure on references of points of law arising from retained law in lower courts or tribunals—this is in Clause 7(8). Like many of the earlier provisions of the Bill that were discussed, the issue of legal certainty runs through the first group of amendments. They either involve removing provisions that create uncertainty, or invite the insertion of new provisions to bolster certainty and predictability. The noble Viscount, Lord Hailsham, referred to one of the most egregious of these tests: that of

“any changes of circumstances which are relevant to the retained EU … law”—

this is in Clause 7(3), which inserts new Section 6(5)(b) into the 2018 Act. I also cite another test:

“any changes of circumstances which are relevant to the retained domestic case law”—

this is in Clause 7(4), which inserts new Section 6(5ZA)(b) into the 2018 Act. These are too wide, too uncertain and, above all, subjective.

Looking at the issue from a slightly different perspective from those that have been debated in the past, I will concentrate, in broad terms, on the position of UK plc. Legal certainty is critical to the position of the courts of this country as one of the most important litigation centres in the world. The United Kingdom attracts international disputes of huge value and complexity because of the intellectual standard of the judges in our higher courts, the absence of corruption in the judiciary and, critically, the predictability and certainty of our legal principles.

This is true not only of general business cases but of particular specialist areas, such as intellectual property. These cases contribute very large amounts to our GDP through the engagement of lawyers, bankers, accountants, experts and other relevant disciplines. In its report, published on 7 December 2022, TheCityUK stated:

“Legal services contributed £30.7 billion to the UK economy in 2021”,

posting a trade surplus of £5.4 billion, and:

“Parties from 75 countries used the Commercial Courts in 2021/22”.

It continued:

“The UK is the largest legal services market in Europe (valued at £41 billion in 2021) and is second only to the US globally.”

Unpredictability and uncertainty in the law and dispute resolution put this pre-eminence at risk. As a country, we cannot afford to allow that to happen.

In large international cases, the claimants usually have a choice of places in which to litigate. The idea that existing law can be departed from because of any changes in circumstances which the court may consider relevant—which could include, for example, the political manifesto or aspirations of the Government of the day or some new government policy—would greatly undermine the attractiveness of this jurisdiction.

I will illustrate this briefly by reference to what, in the case of many major businesses, is one of their most important assets: their intellectual property. Our trademark law is derived entirely from EU law. Our Trade Marks Act 1994 gives effect to an EU directive. Since its enactment, the case law has been determined partly by EU case law, especially where there has been a preliminary reference to the Court of Justice of the European Union or an appeal to the Court of Justice of the European Union from the EU Intellectual Property Office, and partly by our domestic law in interpreting and applying the 1994 Act. In fact, there is a huge body of EU law relevant to trademarks; it therefore falls squarely within Clause 7 of the Bill and the amendments to the 2018 Act introducing the “any change of circumstances” test.

Large international companies, such as Sony, Nokia, Eli Lilly or Pfizer, to name but a few, which conduct their business in many countries across the world, generally have a choice as to the country in which they wish to bring their proceedings. Although, strictly speaking, each country can only make decisions limited to its territorial boundaries, a decision in any one of the major IP litigation centres, such as France, Germany, the Netherlands or the United Kingdom, will be accepted as determinative everywhere. The fact is that, if there is a broad, unlimited “change of circumstances” principle for departing from the existing law, one of the parties to the litigation will almost always invoke it. If they do so, and do so successfully, there is absolutely no certainty as to what would replace the existing law. All this would fatally undermine the certainty of our law and be a huge disincentive to litigating in this country when another is available.

The same is equally true of design law and registered designs. In this country, that law, set out in the Registered Designs Act 1949, has been substantially rewritten, particularly in relation to what is a registrable design, to give effect to an EU directive. This is also true of large parts of our law relating to copyright. The word “influenced” in the proposed new Section 6(5ZA)(a)—see Amendment 87—has been referred to earlier in today’s debates. It would, in some trademark, design and copyright cases, be difficult now to disentangle which parts of the law have been influenced by EU law and which are purely domestic in origin.

In the area of patent law, the same position applies in relation to supplementary protection certificates, which operate to extend the patent in certain circumstances. Litigation in these areas of the law can be of huge value and economic significance.

Finally, on this group of amendments, I refer to the statement in paragraph 114 of the Explanatory Notes that the new test for departing from retained EU case law mentioned in Clause 7(3) reflects

“some of the factors which the Court of Appeal in England and Wales took into account in deciding whether to depart from retained EU case law in the case of TuneIn Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441.”

That is, at best, a rather misleading comment. That case concerned a breach of copyright, which turned on the meaning and application of the restriction on a person under Section 20 of the Copyright, Designs and Patents Act 1988 regarding “communication to the public” of such things as a musical work, sound recording or broadcast in which the copyright, or an exclusive licence to the copyright, was held by another person. The expression “communication to the public” derived from an EU directive. The issue arose as to whether the court should depart from retained EU law on that restriction. Contrary to the impression given by the Explanatory Notes, there was no statement in any of the three judgments of the Court of Appeal to suggest a broad and unlimited “change of circumstances test” as is now proposed. In fact, the argument for departing from the existing case law was almost summarily dismissed, with all three judges agreeing that to depart from retained EU law would create legal uncertainty for no good reason.

I turn to the second group of amendments, which concern references on retained law by the lower courts or tribunals. Clause 7(8) specifies two situations in which the Supreme Court or some other appropriate appellate court must accept the reference—I emphasise “must”. I am afraid that these provisions were not drafted by a person with any litigation, let alone judicial, experience. The courts have always had the ability to manage cases and try a preliminary point of law. No court, however, has ever been compelled to do so. Compulsion on an appeal court to hear part of a case, whether it be a preliminary point of law or some other issue in trial, is fraught with danger. There may be all kinds of matters which make it unsuitable for the Appeal Court to hear that issue at that time. Experience shows that where the point is not dispositive of the whole case, an appeal on a preliminary issue—a point of law—can simply prolong a case and increase expense.

By way of further illustration, a higher appeal court may be about to consider a similar issue. There is no good reason to treat a preliminary point of law relating to retained case law differently from any other. The overriding objective under the court rules requires courts to manage cases efficiently and justly. The appeal courts can do so only if they have a discretion as to how to deal with matters such as applications for references of points of law arising on retained case law.

As I have said, I hope the Minister will agree to a meeting in which these and other related points can be further explained and explored.

The Committee will be aware that I am not a fan of this Bill because it marginalises Parliament. Therefore, I was pleased to be able to put my name to and speak to the group of amendments beginning with Amendment 32, moved by the noble and learned Lord, Lord Judge, and also spoken to by the noble Lord, Lord Lisvane.

I have to say, as I said the other evening, that I sometimes find that we seem to be facing in all directions. I mentioned before about how one group of people were concerned to get clarity as soon as possible and therefore wanted to foreshorten the sunset clause. There were others who wanted to have time for consultation to bring people along and therefore lengthen the sunset clause. I never quite heard a serious reconciliation of those points of view.

I have to say that on this group of amendments, I have the same concern. I recognise that I am putting my head into not one legal lion’s mouth but several simultaneously, and I do so with due care, not being a lawyer. First, I note the emphasis on the importance attributed to certainty, clarity and predictability. That comes up in Amendment 85, in the names of the noble Lord, Lord Anderson, the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Ludford. It is referred to again in Amendments 86, 88 and 89. I get that: even I, as a non-lawyer, can see that certainty, clarity and predictability are quite important.

Then I look at some of the other amendments—Amendments 81, 90 and 92—and I see that we are changing “must” to “may”. As a non-lawyer, I feel that “must” to “may” does not increase predictability and clarity. Then, in Amendment 91, we have

“ought to be considered at that time”.

That seems to me, from the point of view of clarity and predictability, to run in completely the opposite direction. Where we had, in paragraph 4, on page 7, “a court must”, it is now “a court may”, and to the end of that is added

“and ought to be considered at that time”.

I am happy to be corrected because I am not a lawyer, but as a non-lawyer this seems to me to be running in both directions, and not to have the sort of clarity, predictability and certainty that I can quite understand. It seems to muddy waters that a previous series of amendments had sought to clarify.

My Lords, I shall speak to Amendments 85 and 88, as a co-signatory of both those amendments, led by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot be here today. He has been kind enough to share his thinking with me.

And his notes, indeed, although any use I make of them is entirely down to me.

I want to start by reflecting that in the last group, the noble Lord, Lord Callanan, who is no longer in his place, rather airily dismissed a question from the noble Lord, Lord Kerr, who was seeking to find out what “domestic principles of interpretation” means. The noble Lord, Lord Callanan, said, “Oh, it is quite clear: the courts know what ‘domestic principles of interpretation’ means”. Fine, we rely on the courts, as we do. I think it is an answer to the noble Lord, Lord Hodgson: the courts know what they are doing, so if we use the word “may”, that is predictability, because the courts generally follow precedent and know what they are doing. If we tell them they “must” do something, that actually constrains them in a rather awkward and unpredictable way. That is my understanding, anyway. I found the contribution of the noble and learned Lord, Lord Etherton, masterful.

The Minister told us in discussing the last group that the courts know what they are doing, but in Clause 7 they are told what to do by the Government. As I think the noble and learned Lord, Lord Etherton, said, the drafting appeared to lack any litigation or judicial experience. The noble and learned Baroness, Lady Butler-Sloss, pointed out—I cannot remember her exact words, but I interpret what she said—that she found it rather impertinent of the Government. I may be over-reading what I heard, but the courts know what they are doing and the Government come along and are prescriptive about what they are allowed to do. Arguably, Clause 7 is unnecessary, but the amendments seek at least to improve it. By the way, I am grateful to the Law Society of Scotland for pointing out that the amendments to Clause 7 are pretty complicated and convoluted, and it might have been better just to provide an alternative text to substitute a new Section 6 of the EU withdrawal Act, rather than making pages of amendments.

The fact is that the higher appeal courts are already not bound by retained EU case law and can depart from it if it is right to do so. This test is well established, having been set out in the House of Lords Practice Statement in 1966. As the noble and learned Lord, Lord Etherton, said, the Court of Appeal comprehensively considered the power to depart from retained EU case law in the case of TuneIn Inc v Warner Music UK. It considered various factors but decided not to depart from retained EU case law. You would get another impression from government explanations and commentary.

The courts in this case, and in other scenarios, have made comprehensive analyses and have given balanced reasons why and when the courts should or should not overturn settled case law. One of the things cited in that Court of Appeal case was the need to balance the need not to

“unduly restrict the proper development of the law”

with

“too rigid adherence to precedent.”

They are conducting that balancing exercise, but they drew particular attention to the special need for certainty in the law. Therefore, they gave legal certainty a particular value which must not be overlooked.

I am listening carefully to what the noble Baroness is saying, but it has nothing to do with “predictable”. Everything she is saying about the way the law works is unpredictable because it depends on how the courts interpret it at the time. The idea that we are putting the emphasis on predictability in these amendments seems to me to be inaccurate.

I trust the courts; clearly, the noble Lord does not. I believe that the courts do know what they are doing, and that we have an extremely experienced and valuable judiciary. That is why, as the noble and learned Lord, Lord Etherton, pointed out, lots of people come here to use the UK courts, particularly in London. The Government do not seem to have given any consideration to the fact that they are undermining the extremely valuable legal services that London sells to the world. They did not give consideration to service industries during Brexit generally, but this one brings in a lot of money for the UK economy and is being totally undermined, not least by this Bill.

Legal certainty was given a particular value by the Court of Appeal, but the Bill overlooks it, as many noble Lords have said, and detracts from the courts’ ability to do their job. In the notes from the noble Lord, Lord Anderson—which, as the noble Viscount, Lord Hailsham, pointed out, I do have—he points out that Amendments 85 and 88 in his name are very moderate. Amendment 85 leaves intact the power of the courts to depart from retained EU case law, and Amendment 88 would retain domestic case law. They even leave intact the three factors the Government wish them to have regard to. The noble Lord says that he is persuaded, having seen Amendments 83, 84 and 87, that those factors—if they are to be kept—really need to be amended, as suggested by the noble Baroness, Lady McIntosh, and the noble and learned Lords, Lord Hope, Lord Judge and Lord Thomas. The factors specified in the clause at present each militate in favour of departing from existing law. It seems to have been concluded that the judges require a powerful shove in the direction of the unknown. That is another seam of this Bill: we are jumping off a cliff edge and into a void.

All this is the antithesis, as has been said several times—the noble Lord, Lord Deben, who was interrupted at one point by the Government Front Bench, said how un-Conservative this Bill is. It requires leaps into voids and unknowns and off cliffs—

The noble Baroness is entirely right about the leap into the unknown. Does this not emphasise the point that members of the public cannot understand what the law is? That prejudices compliance and the ability of advisers to give good advice.

The noble Viscount is absolutely right, and I agreed with every word of his earlier contribution.

What the amendments do, instead having of a one-way impetus to the judges, is to introduce some balance to the exercise. Both these amendments would introduce two factors—they are repeated for the two scenarios—which might incline the judge in favour of caution:

“the consequences of disturbing a settled understanding of the law”

and

“the importance of legal certainty, clarity and predictability”.

The amendments give the judges more space for their judgment, which is—I am quoting the notes of the noble Lord, Lord Anderson—“after all what judges are for”. What is the point of having judges if all they have to do is read the Retained EU Law (Revocation and Reform) Bill? Good luck with that.

Then the noble Lord, Lord Anderson, says of the quotation and reference in the Explanatory Notes to the Court of Appeal case of TuneIn Inc v Warner Music Ltd that “this, I am afraid, is disingenuous and I do hope the Minister will not repeat it from the Dispatch Box”. I am looking at the Minister—the noble and learned Lord, Lord Bellamy—and hoping that he does not do that, because TuneIn was a case in which the Court of Appeal decided not to depart from the jurisprudence of the CJEU for a number of reasons which were carefully enumerated. One decisive factor was that to

“return to the drawing board and start all over again … would create considerable legal uncertainty”.

So, the judges are stressing continuity, predictability, being able to weigh up factors and not being constrained. I say to the noble Lord, Lord Hodgson, with respect, that he has got this wrong: if you say that the judges must do something and allow them to take into account only certain factors, it does not allow them to exercise their training and judgment. That is what we pay them for: to continue the law to provide the predictability that we need.

I finish by conveying that the noble Lord, Lord Anderson, wanted to register his strong support for Amendments 90 to 93 in the names of the noble and learned Lords, Lord Hope, Lord Judge and Lord Thomas. The noble Lord, Lord Anderson, said: “They know a thing or two about the pressures of business in the highest courts, and this Bill is going to create a tsunami of business for lawyers. A sturdy floodgate is needed if those courts are not to be swamped, and these amendments provide one.” I respectfully recommend these amendments to the Committee.

My Lords, your Lordships may have noticed that there is a rather cruder amendment in my name towards the end of this group: Amendment 99A. I am not a lawyer, but much of my life in politics and trade unionism and as a consumer champion has been defined by decisions of the British courts—some of the most important of which have been influenced by European law or by the judgments of the European courts. The advances we have made on equalities, employment rights, a number of consumer items and the environment, and indeed on issues such as intellectual property and digital protection and so forth, have been in large part—not entirely; I will not overstate the case—affected by European law, now called retained EU law, or the European courts’ own judgments which have been followed by the British courts.

In the exchange between the noble Lord, Lord Callanan—he is not here at the moment; I welcome the noble and learned Lord, Lord Bellamy—and the noble Lord, Lord Krebs, the noble Lord, Lord Callanan, said that the courts will go on interpreting cases as they have done from time immemorial. However, from time immemorial, the courts have interpreted the law on the basis of what is on the statute book at that time. They continue to do so until that law is changed by this Parliament. The implications of parts of Clause 7 are that that will no longer be the case; that the courts will need to have less regard to the types of cases that arose because they were influenced, at least in part, by European law; and that European decisions will not need to be held in the same regard in future. That is the purpose of Clause 7, which is why my amendment would delete it.

I largely agree with the noble Baroness, Lady Ludford, that it could be rewritten—we do need some guidance on case law—but this is taking it in entirely the wrong direction and destabilising what has, from time immemorial, been the basic role of the British courts in interpreting legislation. If the Government and Parliament change the law, that changes it; some of those cases no longer have the same effect as they do at the moment. However, if we take Clause 7 as it stands, we are undermining a number of improvements in the conditions of our people and, at the same time, undermining the credibility, consistency and historical role of our courts. I therefore suggest to the Government that they should remove this clause. If the Bill proceeds—noble Lords know that I am not in favour of it—the Government could come back with a rather more sensible Clause 7. However, as it presently stands, it is one that we ought to oppose root and branch.

The role of our legal system is being undermined by a political doctrine that has yet to find its way into the legislation and the statutory law of our land. That is a dangerous road that we should not go down; I therefore suggest that we remove Clause 7 and think again.

My Lords, I have no legal training, so I going to rely on noble and learned Lords to tell me whether I have understood this whole section properly. It seems a bit odd.

In contrast to the first clauses of this Bill, which have been designed by the Government to take power away from Parliament—all the decision-making process and scrutiny—Clause 7 seems designed to outsource the task of making sense of the huge legal mess in the Bill. It is wrong on many levels but, in particular, it calls on judges to make political decisions that Parliament ought to take instead. The Bill is potentially going to create a huge legal mess; it does not seem fair for the Government to outsource this issue. That is worrying enough on its own, but it is all the more worrying because of the way in which this Government have demonised lawyers and judges over the past two or three years. They have been scapegoated at every twist and turn of the Brexit process. It has been a nightmare to see people who clearly have our best interests at heart being demonised in this way.

Clause 7 seems to have a very specific purpose. Forgive me if my language is oversimplified but, quite honestly, the Government are making a huge legal mess and are going to ask other people—judges, lawyers and the courts—to sort it out for them so that those people will take the blame when it all falls apart. Can the Minister explain whether I have understood it properly?

My Lords, I have been looking forward to this group of amendments because I thought that this might be the moment when we got to the nuts and bolts of how this is all going to work. It is a real pleasure to see the noble and learned Lord, Lord Bellamy, in his place for this group. We welcome him and hope that he can provide some clarity on the Government’s intentions here. I have tabled a couple of amendments but all the amendments in this group attempt a similar thing, which is to neuter Clause 7 to some extent and, should Clause 7 persist, to balance out some of the instruction to courts.

There are some very helpful amendments, particularly those tabled by the noble Lord, Lord Anderson, which have been referred to by others. What troubles me most about this is that we are endangering the legal certainty, clarity and predictability that are so important. The problem is that retained law will now be reinterpreted. Law can now be given a fresh interpretation so that laws which are still in force as of 31 December 2023 might mean something different from what they meant when they were passed and from how courts have interpreted them if they have been considered by the courts previously. They will mean something else after the end of this year.

From the citizen’s point of view, a major requirement of law is that they know what the law means. If we pass this Bill, that requirement no longer applies to this section of law—in respect of huge swathes of important regulations, from environment and employment to product safety and consumer protections. I will not go into all the examples that we have been talking about on previous days, but the Minister will know what I am trying to get across to him. We just do not know what the effect of this will be. It is impossible to tell from the Bill as it is drafted. The Government cannot possibly know either. They cannot know today, when they are asking us to consider this legislation, the effect that applying different canons of construction will have on thousands of pages of regulation. No Government could think that the best way to remove EU law is to replace it with law the meaning of which is yet unknown. That was my understanding of this, and I am grateful to my noble and learned friend Lord Falconer of Thoroton, who took time yesterday to talk to me about this, to ensure that I was getting this right. This is the situation as he sees it as well. It is quite extraordinary.

I note the remarks of the noble Baroness, Lady McIntosh, on the coherence of civil law, which no one else has referred to. I had not considered this before listening to her speech. She made an important point there. Her points about Clause 7 in relation to the operation in Scotland are also important and it would be very useful if the Minister could respond to those specifically.

We have had some great experience brought to this group, not least by the noble and learned Baroness, Lady Butler-Sloss. It would be wise of the Minister to respect that contribution, which I am sure he will. The noble Viscount, Lord Hailsham, asked: who will judge what is proper? This gets to the heart of this clause and why we are concerned about it. Who will decide, and by what criteria? Clause 7(4) says:

“A higher court may depart from its own retained domestic case law if it considers it right to do so having regard to”,

before going on to list other things.

We are concerned about this because of the vagaries of how a court would be expected to understand what is meant by it. Courts are asked to have mind to

“any changes of circumstances which are relevant to the retained domestic case law”.

But I do not understand what courts are meant to do with that. How are they going to decide what is relevant and what is not, and the extent to which retained domestic case law restricts the proper development of domestic law? Again, I am not sure what the Government mean by that and how a court is expected to make a decision on the back of it.

That is why noble Lords who have amendments in this group have attempted to insert additional criteria, to make sure that a court is required to look at what we have expressed as

“the undesirability of disturbing settled understandings of the law”.

This is all about getting back to clarity. As I have said before, it is about making sure that citizens and those giving advice know what the law is.

It is regrettable that some noble and learned Lords, who I know wanted to take part in this debate, in particular, have not been able to. It is one of the problems with the Government underestimating how much time we would need for the Bill. On reflection, it was probably a little unwise to allow us three days. I understand that the next day we have been given to debate the Bill is Wednesday, so will the Minister make sure that we have all the information we need, particularly on the search process for retained EU law that was referred to in the letter we received last week from the noble Baroness, Lady Bloomfield, and committed to by the noble Lord, Lord Callanan, in the letter we received from him on Friday? He made a commitment that we would receive the information we need about how retained EU law is to be identified and included in the dashboard, but we have not had that yet. Wednesday may be our last opportunity to ask the Minister questions on that so it is quite important that we have that information before we next meet.

As the noble Baroness, Lady Ludford, and somebody else—forgive me for not noting who—said, it is a problem if cases have been inaccurately referred to in the Explanatory Notes. That is a concern, so it would help if the Minister could comment on this and perhaps take the opportunity to correct it or, if we have misunderstood, to justify the inclusion of the case referred to. That would be helpful.

I thank all noble Lords who have tabled amendments in this group. I will start with some general comments and observations on Clause 7 and thereby deal also with Amendment 99A, tabled by the noble Lord, Lord Whitty, which would remove Clause 7 altogether.

In short, Clause 7 gives higher UK courts greater flexibility to depart from retained EU case law than is currently the case. I emphasise first that we are talking about appeal decisions. First-instance courts continue to be bound and that is an important part of any answer to the points raised about legal certainty. Currently, the Supreme Court or the High Court of Justiciary in Scotland, and other higher courts, must apply the same tests that they would apply if departing from their own previous case law.

Clause 7 lowers the bar somewhat. It provides that, in deciding whether to depart, the court must have regard to, among other things, the principle that decisions of a foreign court are not, generally speaking, binding in UK courts; any change of circumstances relevant; and the extent to which retained EU case law restricts the proper development of domestic law. I will come to the point made by the noble and learned Baroness, Lady Butler-Sloss, and to the questions of change of circumstances and the word “proper”, in a moment.

That is a lower bar than is currently the case. It does not necessarily imply a cliff edge or any floodgates; it is looking ahead. We do not know what circumstances will arise as the next 20 or 30 years pass, how things will change and whether existing retained EU case law should be followed. The clause essentially says that it is for the higher UK courts to determine how that case law should develop and that it is not the case that previous EU case law can be changed only if the ECJ says yes. Without such a mechanism it is difficult to credibly say that one has withdrawn from the EU, so, in the Government’s view, some such mechanism is needed.

That is the first and general point. The second is that much, but not all, retained EU law is highly influenced by a context that is no longer relevant to the UK: for example, the need to promote among the 27—previously 28—member states the free movement of persons, goods, services and capital, and to protect the single market. All of that is reflected in the case law. There is also the common agricultural policy; the quite different institutional structures of the EU, notably the role of the Commission; the, if I may say so, laconic nature of much EU legislation; and the inevitable challenge of finding a common denominator among so many different legal traditions, languages and national backgrounds while, internally, working entirely in French.

One can pay the highest tribute to the way that the CJEU has navigated these difficulties over the years, and I readily do. But it does not follow that case law developed in those circumstances is necessarily suitable for the UK in the future, particularly in a fast-changing world with such things as the digital economy, artificial intelligence, climate change, genetic science, data protection and so forth. These present novel challenges all the time. In the Government’s view, the UK’s higher courts should be fully equipped to deal with them without being constrained by EU jurisprudence if they feel that they should depart therefrom.

Thirdly, if your Lordships will forgive me saying so, we have in this country a pearl beyond price: the common law. It has nurtured and protected us for centuries and has successfully taken root all over the world. By some measures, it is the world’s most widely used legal system. I was asked whether I would refer to the Warner Music case, which is referred to in the Explanatory Notes. The only reference I will make to that case is that made by the Master of the Rolls, the right honourable Sir Geoffrey Vos, who observed that the CJEU is “very far” from being a common law court. In other words, it is a quite different animal from the courts that we traditionally have in this country. We could spend much time philosophising but, in my humble experience, the continental legal tradition places emphasis on identifying abstract legal principles from which a solution may be deduced, while the common law starts from the other end, as it were, with the facts of a particular case and how those facts relate to other decided cases and the legislation in question. The art of distinguishing cases and building a legal system via a mosaic of interrelated cases has been perfected over the centuries by the judges of this country and other common law jurisdictions.

A very experienced solicitor working in a deprived part of north London said to me, when he heard that I had some previous association with the EU, “Don’t let them weaken the common law.” The common law is a people’s law. It comes up from the bottom; it does not come down from the top. In the Government’s view, it is very important that we never underestimate, underplay or weaken the great common law tradition that we have in this country.

That forms an essential part of the background to this clause, which is essentially to enable our judges to use the best of the common law traditions to take us forward. The Government are not saying that any one approach is better than another, only that the common law is in our DNA. Clause 7 will reinforce the common law tradition and allow it to flourish.

That being the essential rationale, I turn to the various amendments suggested to modify the new tests as set out in the Bill. I will first comment on the theme of legal certainty. The common law, as it has developed, has always been fully aware of the need to preserve legal certainty, but that has not inhibited the proper development of the law as the needs arise—I will come to that in a moment. It is always a question of balance. If one bakes in or gives priority to legal certainty one would never change anything. Legal certainty will of course remain an important circumstance, as it was in the Warner Music case—no doubt judges will have regard to it; it will be up to them—but we cannot say that legal certainty means that we have to slavishly follow old EU jurisprudence until the cows come home just because of legal certainty. We have to find a balance. That is one factor among others, but not necessarily a dominant factor.

I turn to the specific amendments. Amendment 81 was moved by my noble friend Lady McIntosh. I am not completely sure that we have in this group all the amendments to which she originally referred in her speech, but we will sort that out through the usual channels, if we may. Amendment 81 would reduce the “must” have regard to “may” have regard. In the Government’s view, this would again tend to bake in the existing situation and enable the courts to ignore changes of circumstances, and to not allow or to continue in a state of undue deference to the Court of Justice in Luxembourg.

I say “undue”, by which I mean that some deference is clearly highly necessary. In particular, as the noble and learned Lord, Lord Etherton, said, parts of our law where the statute is essentially an EU creation may well be different situations from other parts of the law. I agree, although I am bound to say, on the legal certainty and accessibility of case law to the general public points, that I very much doubt whether any member of the public, having fought through the 25 often conflicting decisions of the Court of Justice of the European Union on the question of communication to the public, which is the subject matter of the Warner Music case, would be much the wiser when it came to working out what the law was. However, that is another matter.

The Government do not support reducing “must” to “may” because that would tend to bake in the influence of the European courts on the judgments of our domestic courts as the years pass. I should point out in passing that even in the common-law family, whether in Australia, the US, Canada or this country, great divergences have emerged over the years. They should be allowed to emerge. We should not be in a mindset where legal certainty stops development.

That takes me to Amendment 82, which suggests omitting the words

“the fact that decisions of a foreign court are not (unless otherwise provided) binding”.

I say at once to the noble and learned Baroness, Lady Butler-Sloss, that the Government had no intention of any form of impertinence to the Court of Appeal or other experienced judges who will know that the judgments of foreign courts are not binding. What this does is emphasise exactly what she was saying: you look at cases in Australia, Canada, US and the EU, and you come to a view. All we are saying in the Bill is that this is the process we expect to happen, not any knee-jerk reaction to the extent that we must follow Luxembourg. We are not preserving in aspic all the existing case law of the EU. Therefore, we feel in relation to Amendment 82 that the judgments of the European Court of Justice, although very possibly highly persuasive and possibly even in some cases decisive, should be in principle treated as the judgments of other relevant jurisdictions.

That takes me to Amendment 84, which is essentially to omit “proper” from,

“the proper development of domestic law.”

This is, if I may say so, a term of art. It has been used in case law ever since the House of Lords decided in 1966 to diverge from its previous decisions. It was referred to by Lord Reid. That is not the present noble and learned Lord, Lord Reed, but James Reid, the brilliant Scottish judge; possibly interestingly for Scotland, the best common lawyer we had in the previous century was Scottish. “The proper development of the law” means what the courts feel is the right way to take the law at that particular moment. If you say “restricts any development of domestic law”, you are back where you started because any existing case law in a sense restricts development, so it is necessary to have the word “proper” in the statute.

It also clearly extends to statute-based law. Is that not a case for bringing the courts into expressing a view as to what is essentially the function of Parliament?

My Lords, the courts are always astute. They sort of intuitively know where they have to stop and where Parliament has to take over. That is a process that has been honed and refined for the past 100 years at least, but it does not prevent the courts moulding, refining and developing the common law. There comes a point where you cannot go further, but quite often in a court you can, especially when you have existing jurisprudence. It is quite early on in the development of a new technology. In the Warner case, we were talking about hyperlinks, graphic interfaces and all sorts of high-technology things with which I am sure your Lordships are extremely familiar, but it is a new area of law, and the courts, generally speaking, work with that until they find that they have gone as far as they can as a court and then Parliament takes over. With respect, I would not completely accept the observation of my noble friend Lord Hailsham that this is usurping Parliament.

I think I understand the Minister’s argument about “proper” in new paragraph (c) in Clause 7(3), but is the wording of this not prejudicial because it assumes that retained EU law restricts the proper development of domestic law? It does not say that the court should consider whether and to what extent retained EU law restricts the proper development of domestic law. It says that it should consider the extent to which it does, assuming that it does. Would it not be better to go for non-prejudicial language, as well as, I hope, including the balancing language in Amendments 83, 85 and 88?

As far as I know, this is not intended to be prejudicial, but it presupposes a case where there is a tenable argument and it is put to the court that a retained EU law has that effect. Then the court will decide whether it does and what would be the proper development going forward. Taking that intervention on the hoof as it were, I am not sure at first sight that one is convinced that it would be better to change the wording. Let me reflect further.

I am looking at the same clause as the noble Lord, Lord Kerr. He asked about new subsection (5) (c). I shall ask the Minister about new subsection (5ZA)(a), in which the courts are being asked to consider

“the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart.”

If we are not encouraging courts to depart, why would we be asking them to consider the extent? That seems to raise a question, given what the Minister has just said.

If I may say so to the noble Baroness, I think this is just a drafting point. The extent may well be nil. There is no particular reason to suppose that the retained EU case law in a particular case is restricting the proper development of domestic law. That was the situation, as it turned out, in the Warner music case, although at least one learned justice in that case very pointedly left open the possibility of further developments in a fast-moving technology.

I was not referring to the proper development of domestic law on this occasion. At the top of page 6, we seem to be asking courts to consider the extent to which EU case law “determined or influenced” in and of itself rather than about the “proper development” which is in new subjection (5)(c). I wonder whether that is, to use the language used by the noble Lord, Lord Kerr, prejudicial or leading the court.

I think I can take it not much further than the answer that I have just given—that the extent may well turn out to be nil.

The answer is that the courts will not raise these questions of their own motion. These points will be raised by a party to the proceedings. Then the party to the proceedings will argue that this retained domestic law is influenced by EU case law and is now having—or may have in five or 10 years’ time—a restrictive effect that is holding up the common law. Those are the kinds of circumstances that it envisages, I think.

I think the Minister was about to sit down, but he kindly invited me to respond so I will. I think that is the problem. He must surely understand that we anticipate this leading to an enormous amount of uncertainty—if that alone is something a party in the court is able to point judges towards and say that, because the case law came from the EU, in and of itself that is a reason to ask for a decision to be made in a different way.

Respectfully, as I said a moment ago, I do not accept that this will lead to a great deal of uncertainty. It is binding on the courts of first instance. No one is going to take this to appeal unless there is a real point to be argued. If there is a real point to be argued, it is right that that our courts of appeal and higher courts should consider that point.

Perhaps we have had sufficient exchanges on this topic and I ought to move on as best I can. Finding my place in the notes, I think I have not answered the concerns raised about what we mean by “changes of circumstances” and how we manage that. Again, this is a matter that the common-law courts are very well equipped to deal with and they can decide for themselves whether there has been any relevant change of circumstances or, in particular, whether the change of circumstance is relevant.

I would not have thought that a change of government or a change in the political wind is a relevant change of circumstance. What you need is some circumstance that makes it either difficult to operate, or less than ideal to be bound by, a particular judgment of the European Court of Justice that may have been made many years ago. It may now be completely out of date or may have failed to take account of various factors that the court feels should be taken account of. Very often in a common-law system, when you look at a case and at previous decisions, you see that the particular point had not in fact been decided and you are therefore free to decide it yourself. That is much more difficult to do in a European system, which purports to lay down perfectly general principles.

If I may trespass on your Lordships’ kindness for a moment, it is often quite interesting to look at the summary of a European Court judgment, which in English terms would be referred to as the “headnote” of the case. It extracts principles from the judgment. The equivalent headnote in an English case says: these are the facts, and this is what the decision was on these facts. That encapsulates a difference of approach, thought and philosophy as to how you develop the legal system.

As I said a moment ago, I am not saying that it is better or worse; it is just different. Historically, we in this country belong to a huge family across the world that uses this technique, whether in the United States, Canada, Australia, India—very prominently—or otherwise. The Government are simply saying that we should not forget that we have a great legal tradition and we do not have to, as it were, slavishly follow the latest emanation from those very hard-working, very able, but not necessarily relevant to us, judgments and judges in Luxembourg.

I have listened very carefully, and there is a fundamental flaw in my noble friend’s argument as it relates to Scotland. Scotland has a mixed legal system. I am a non-practising member of the Faculty of Advocates. I chose to go and practise EU law because every reference was either passed down to London or you could practise EU law in Brussels; there were very few opportunities to practise at the Scottish Bar. But my noble friend must accept that the Scottish system—which, I would hazard a guess, has many advantages over the English system—is based on Roman law. It is based on a system of codified law, and what distinguishes it fundamentally from what he has just described about the common-law system is that it is a mixed legal system. I wonder whether he would like to address this in his remarks, given the comments that I made in relation to the amendments that I spoke to—Amendments 81, 82, 84 and 94—and mindful of the fact that I am approaching this from a mixed civil and common-law system.

I thank my noble friend Lady McIntosh for that intervention, and I stand corrected. She is completely right that Scotland is a mixed system, although I venture to suggest much influenced—if I may use that controversial word for a moment—by the common law. As I said a moment ago, Scottish judges have been, frankly, the best common lawyers anyone has ever known. They happen all to be called Reid but that is a coincidence.

Of course, I accept the comment, although I beg to differ as to whether any different conclusion follows. Essentially, the “may”, “must” and other amendments that the noble Baroness has proposed are independent of the exact legal approach one is talking about. It may well be that, in a Scottish situation, there would be a greater willingness not to disturb retained case law than in an English situation. I do not know; maybe these things will come up to the Supreme Court and someone will say “That is what we are going to do”. Maybe the Scottish tradition will prevail; that is perfectly likely. With respect, the Government do not feel that that changes the general thrust of Clause 7.

That was changes of circumstances. The next question is on this word “influence”—whether it has been influenced or determined by European law. I think “influenced” is included simply to give a sufficient degree of flexibility and to avoid deciding what might be quite a difficult point: whether European law was in fact determinative of a particular point or just part of the general context. Very often, it is part of the general context and the influence of the European element on the final outcome.

On that point—I am not sure we picked it up entirely; I may be speaking out of turn—I shall, if I may, at least attempt a reply to the noble Lord, Lord Kerr, on the question of principles of interpretation. I think it is relevant to the influence point. It arises in the context of legislation. Many here will know better than me, but the essential difference, as I understand it, is that traditional common law, including the Scottish approach, is a highly textual interpretation: what the meaning of the words is. The European Court’s general approach is a teleological interpretation of the general idea of where the statute is going. Very often, because of the laconic and sometimes completely deficient nature of European legislation, that court is much more prepared to fill in the gaps in the legislation than an English court would be. It is along those general lines; I am sure we can elaborate further as necessary later in these proceedings. So that is the influence point.

I think I have dealt with adding in the factors of settled understanding, legal certainty and so forth. The Government do not support that approach because it would simply bake in the status quo; that is the Government’s essential position. Legal certainty is inevitably something the courts will consider. They considered it in the Warner Music case because they were dealing with an international treaty and there was a desire not to disturb the law—albeit that the law was a right old muddle, as far as one can see, if I may put it colloquially just for a moment. In that case, it was not actually very seriously argued that we should depart from EU law; it was a perfunctory argument that took place in a few minutes at the end of the day, so it was a bit of a non-event.

I apologise if I am interrupting the Minister before he has finished; I think he is replying to Amendments 85 and 88, although he did not specifically refer to them. He dismisses the need for the factors introduced in those amendments because he says the courts can have regard to them anyway. Why have the Government prescribed several elements themselves if the courts can have regard to them? Our whole argument is that the courts can have regard to factors they want to have regard to. The impetus behind Amendments 85 and 88 was that the Government were being partial and pushing in a certain direction for the three elements they will allow the courts to consider—the argument for adding the extra elements, the consequences of disturbing the settled understanding of the law and the importance of legal certainty, clarity and predictability—and to try to re-establish the balance that the authors of the amendments felt was lacking.

If I may say so, I find the Minister’s reply so far extremely puzzling. He has, correctly, given a paean of praise to our courts and the common law, saying that they have perfected the art of creating this mosaic—

Yes, I am getting to it. I want an explanation. I said the Minister’s reply was “puzzling” but, if I may say so, I want to say “contradictory” and “does not add up”. I want to press the Minister to clarify what he has said. I find it really quite irritating that Ministers keep interrupting us when we are trying to say something. The fact is that the Minister has praised our common-law courts and said they have not been inhibited in the proper development of the law and so on, but now he wants—

My Lords, at the previous stage I reminded the House, I thought courteously, of chapter 4.29 of the Companion, where it is made perfectly clear that lengthy and frequent interventions are not desirable, whether or not the Minister accepts them. This is Committee. The noble Baroness can return with a reasoned response to what the Minister has said, but I think it is to the advantage of the House generally in our debates to hear the Minister’s arguments and then respond in a proper Committee manner. If I may, the noble Baroness’s intervention seemed to me to be getting into the category of “lengthy”.

Before the Leader of the House sits down, perhaps he could just clarify that point. I have always understood that Committee stage in this House is about having a conversation so that the House as a whole can understand the nature of the arguments. With all due respect to the noble Baroness, Lady Ludford, with whom I often disagree, I think she is trying to get some elucidation, and I am sure that the noble Lord, Lord Bellamy, will answer fully in a moment.

I say to the noble Lord that the answer is precisely so; it is a conversation, but that conversation is conducted politely one to another. It is perfectly correct and reasonable for the House to ask a question for elucidation in the course of a Minister’s remarks, but a lengthier intervention criticising the Minister’s argument follows naturally in the Committee conversation afterwards.

If I may be permitted to finish, I have now had three interventions from the Government Front Bench, which of course have lengthened this intervention. I ask the Minister please to explain how his paean of praise to our courts and their ability to develop the common law without inhibition accords with the constraints and straitjackets the Bill is putting on the courts he is praising.

My Lords, the Government’s position is that this is not a straitjacket. The courts are required to look at three things: the fact that the retained EU case law is made by a different court, whether there has been a relevant change of circumstances, and how the proper development of the common law should continue in future.

As to why we have not included other considerations—notably, legal certainty—the Government’s position, which noble Lords may or may not agree with but this is the explanation, is that once you write down the importance of legal certainty, that is potentially a recipe for passively doing nothing and continuing to be a rule taker for 20 years to come. That is not the consequence of withdrawing from the EU. The courts can continue to look at it, but that is the reason why the Government have drafted Clause 7 as it is.

I hope I have dealt with most of the issues raised about Clause 7 one way or another. There is the reference procedure, and noble Lords, and noble and learned Lords, have made the point that higher courts always have the discretion whether to take a case, and they should be able to decline it. I completely understand that point. The Government had thought that the ability of those superior courts—the higher courts or the Supreme Court—to decide whether what they were being asked to do was relevant and whether the point raised was of general public importance was sufficient protection and would enable them to decline to hear the case if that were so. I must say that the circumstances in which a lower court actually gets as far as making a reference and identifying a point of public importance that a superior court feels it should not hear seem to me, if I may say so, somewhat remote, but we can have another look at the drafting if there is a need for further reassurance. I cannot commit to changing it, but I can commit to looking at it and discussing it with the relevant persons.

My Lords, will the Minister please reply to the point I made? The situation may be such, as we know from bitter experience, that you can identify an important point of law in a case but, unless it is dispositive of the whole of it, it will lead to further expense and time. That may apply equally to this point of law as to any other. There is no special feature regarding points of law relating to retained law, as opposed to points of law in any case.

That might raise the question of whether indeed it was relevant. You could say, “That’s not relevant here because it’s not dispositive”, or “It’s only one point among several”. However, I say to the noble and learned Lord that the Government will have another look at this. There is no point in having provisions that are not satisfactory in this regard.

That takes me to the law officer reference and intervention powers. On the essential points made by my noble friend Lady McIntosh about the position of the Lord Advocate, I hope she will bear with me. My understanding of the exact position of the Lord Advocate is probably not as good as hers and that of other noble Lords in the Committee. Essentially, the law officer reference power provides another mechanism for resolving these various points, and it gives the UK law officers and the relevant officers of the devolved Governments a statutory right to be considered and so forth. It does not extend the Lord Advocate’s powers to anything outside the devolved competence of the Scottish Government, any more than it does for the Counsel General for Wales or the Attorney-General for Northern Ireland. The Government’s view on this point is that the other law officers in the devolved Governments should be involved in matters that affect the devolved Governments and not matters that are retained UK law. That is the Government’s position.

The Government see the Lord Advocate’s continuing functions, which I understand to be largely prosecution-based, as specific to the Lord Advocate. We are not giving this reference power to other officers who also have prosecutorial functions in other parts of the United Kingdom, such as the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland.

I am sorry. Does a noble Lord wish to intervene?

I am sorry. I am rather nervous when noble Lords come at me from all directions, especially the noble Viscount, Lord Hailsham.

That is quite all right.

This is the logic of the approach. It is a cross-UK approach and not a Scotland-specific approach. It does not seem appropriate that the previous functions of the Lord Advocate, so far as they have been retained, should change.

I am sorry. I was saying that this is a structure that gives the UK law officers power in relation to UK competence and the devolved Governments power in relation to their competence. That is the structure of it all.

Amendment 101, on the question of incompatibility orders, is described as a probing amendment. Again, this has precedence in other parts of the statute book. The Judicial Review and Courts Act 2022 has a similar power. If there is a point of incompatibility, the courts are given a power to manage that; it would probably mean deferring making an order for six months until the Government could fix it, as did the Court of Appeal in the Open Rights Group v The Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport: we have found a problem, and we are going to give you time to come up with solution, whether it is legislative or otherwise. In that particular case, the power was said by the Court of Appeal to derive from EU powers, but this is giving the court power under domestic legislation. I hope it is a sensible process for making the compatibility mechanisms work properly if incompatibility is found, which is likely to be a fairly rare event. I hope I have covered most points, if not all.

I am very grateful to the Minister for the skill with which he is trying to explain to a layman like me abstruse points of law. Could he give us a worked example, please? I was struck by what the noble and learned Lord, Lord Etherton, said about the potential cost to the country of a loss of clarity. Take his example of the copyright law of the United Kingdom, which, he said, was virtually exclusively based on EU law. What changes of circumstances do the Government envisage that the courts should be considering when they consider cases that are tried under the present British copyright law? The only change of circumstances I can think of is if the Government were to pass new legislation on copyright. I do not think that is the plan, but if they do not, what are the courts supposed to do? What change of circumstances would they have to consider?

My Lords, fortunately, I think I was asked by the noble Lord, Lord Kerr, for only one example, and so I will just give one because it is getting quite late. The example is changes in technology, which are moving very quickly. The Warner case, which has now been mentioned several times, was a case in which a radio station in the US put some music in a hyperlink on its website. Consumers in the UK could click on the link on that website, and the question was whether the UK copyright holders could get a royalty on that even though the UK user was accessing it in the United States—it does not matter if it is the United States, Taiwan or anywhere else. In that kind of area, the technology is moving very quickly. The existing EU decisions are not entirely consistent, and it can be easily envisaged that in some future situation, where some technology that we do not yet understand or know of has come into being, a UK court might take a different view and distinguish previous EU jurisprudence. That sort of situation is more than likely to happen at some stage.

My Lords, it has been a lengthy and thorough debate, and I fear it has not gone quite as smoothly as my noble and learned friend the Minister would have wished. I am pleased he has conceded that Scots rule approaches this from a different angle. The noble and learned Lord, Lord Hope, has not been able to be present today, and I do not think my noble and learned friend has entirely answered the concerns of either the Royal Society of Scotland or the noble and learned Lord. In particular, my noble and learned friend has not addressed the question of why there is no corresponding restraint on the powers of any other UK law officer—for example, the England or Wales law officer—but only on the Scotland law officer. I would like to understand, perhaps at a meeting before Report, why that is the case. It is quite serious.

My noble and learned friend spoke at length about why retained EU law is historic now, but we are in a situation where court cases may arise. For example, the chemical industry here is going to be covered by the fledgling UK REACH programme, but the industry would also hope to export to the EU and so will have to meet the terms of the EU REACH programme. Does my noble and learned friend not accept that there will be cases that relate to this?

I fear that Clause 7 is an exam question seeking to show that, on appeal, there will be no reliance on retained EU law going forward. I think that was the wrong question to put, as has been adequately set out to such an extent that a distinguished former President of the Family Division, the noble and learned Baroness, Lady Butler-Sloss, said it is offensive to treat judges in this way, as did my noble friend Lord Hailsham, in slightly less graphic language.

I am grateful to the noble and learned Lord, Lord Etherton, for speaking to the amendments in the name of the noble and learned Lord, Lord Hope. I believe that work is not complete on this chapter but, with the promise of a meeting before Report, I beg leave to withdraw my amendment.

Amendment 81 withdrawn.

Amendments 82 to 99A not moved.

Clause 7 agreed.

Clause 8: Compatibility

Amendment 100 not moved.

Clause 8 agreed.

Clause 9: Incompatibility orders

Amendment 101 not moved.

Clause 9 agreed.

Clause 10: Scope of powers

Debate on whether Clause 10 should stand part of the Bill.

Member’s explanatory statement

This is based on a recommendation from the Delegated Powers and Regulatory Reform Committee’s report on the Bill.

My Lords, I will move the Motion, in the name of my noble friend Lord Fox, that Clause 10 do not stand part of the Bill. I am relying on the persuasive report of the Delegated Powers and Regulatory Reform Committee, which points out that the powers in Clause 10 to amend retained direct EU legislation affect over 50% of retained EU law, because 50% is retained direct EU legislation. At present, much of this can be amended only by primary legislation or Henry VIII powers. So Clause 10 in fact downgrades the status of retained direct EU legislation.

The DPRRC quotes the delegated powers memorandum from the Government, which says that they are doing this so that such law

“can be amended by ordinary powers to amend secondary legislation”

to “save parliamentary time”. As the committee remarks, perhaps somewhat caustically,

“the argument based on saving parliamentary time is unpersuasive. It should be for Parliament to say what is the best use of its time.”

So it seems a little forward of the Government to make that assertion on behalf of Parliament.

However, as the committee points out, retained direct EU legislation

“has a special status because much of it is of considerable significance in policy terms”.

Therefore, it is necessary for Parliament to keep control of which elements of the law to keep, amend or repeal. The committee says:

“Clause 10 … is an unacceptable interference with the position in the European Union (Withdrawal) Act 2018 that substantial policy changes should be for Parliament to decide in primary legislation rather than for Ministers to decide in secondary legislation.”

We have made that point repeatedly during the proceedings on the Bill. The Government broke a pledge. When the EU withdrawal Act went through, we were repeatedly assured that it would be for Parliament to make decisions about what retained EU law to amend and how to do so. But then the Bill comes along, and they do not even admit that this is a complete switch of approach and a grabbing back of powers for the Executive—but that is what it is.

Amendment 128, in my name and that of my noble friend Lord Fox, inserts a clause that will be pretty familiar: it is on the model of amendments we have tabled to previous clauses, on the requirement for consultation and a report to the relevant parliamentary House—either this Parliament, the Scottish Parliament, the Senedd or the Northern Ireland Assembly—with an analysis of the advantages and disadvantages of the proposed regulations. This would include the effect on the different stakeholders, any supposed or expected benefits, representations received, and so on. It would also cover the compatibility of the revocation, modification or replacement with obligations in the trade and co-operation agreement and the Protocol on Ireland/Northern Ireland. Again, this is on the pattern of previous amendments.

We are trying to do for the Government that which they will not do for themselves: to fulfil their promises—first, those in the EU withdrawal Act 2018, and, secondly, those associated with the Brexit referendum—that Parliament would be in the driving seat. This is the great con of our times: Parliament is being written out of the picture. It is so obvious, and it is amazing that more people have not cottoned on to what is happening; namely, that this is a huge power-grab by the Government, and they really should not be allowed to get away with it.

My Lords, I will speak to Amendments 104, 115, 116, 122, 124 and 125 in my name, and in support of Amendment 141 in the name of the noble and learned Lord, Lord Hope. Amendment 104 again substitutes the end of 31 December 2028 in place of 2023, as the statutory deadline, to enable more means for the Government or any of the devolved Administrations to consult, to analyse the results of such a consultation and to prepare legislation. This would also enable Parliament or the devolved legislatures to consider and pass the legislation. By the time the Bill receives Royal Assent, there simply would not be enough time, given the parliamentary recesses in place, to conclude such an exercise. So, in my humble submission, the deadline needs to be extended to allow time for proper legislative practice to be completed.

Amendment 115—

Before my noble friend proceeds to the next amendment, she has gone on about the uncertainty created by revising this legislation, but surely the longer the period you create to consider all of that, the more uncertainty you cause.

I would agree with my noble friend if we knew which bits of REUL were being repealed, which were being revoked and which were being reformed—but, as we speak, we do not. As we know, many devolved measures are simply not on the dashboard at the moment, which makes that time even more unacceptable.

Amendment 115 requires a “relevant national authority” or “Minister of the Crown” to consult those who may be affected by regulations under Clause 15(2) before making them. All relevant national authorities will be required to publish the results of this consultation. The idea is to oblige the Minister of the Crown to consult the devolved Administrations before making regulations that concern them.

Amendment 116 makes similar provisions under Clause 15(3), so the same comments apply there. Amendment 122 also extends the statutory deadline from 23 June 2026 to a similar deadline of 31 December 2028, allowing more time than permitted under the present deadline to ensure that all legislation which will be encapsulated will be covered through a consultation, and to allow time for consulting and analysing the results of such a provision. Amendments 124 and 125 are simply consequential to that.

I do not know if the noble Baroness, Lady Meacher, will speak to Amendment 141 in the name of the noble and learned Lord, Lord Hope, but I conclude by saying that I support his amendment, to which the noble Baroness, Lady Humphreys, has added her name. I welcome the fact that the

“amendment modifies the powers conferred on Ministers of the Crown when making regulations in devolved areas under this Schedule so that the power may only be exercised with the consent of the Scottish or Welsh Ministers.”

I hope that my noble friend the Minister, when summing up, will look favourably on those amendments in this group.

My Lords, I will follow the words of the noble Baroness, Lady Ludford. I have added my name to the question on whether Clause 10 should stand part of the Bill. As noble Lords know, my view is that the Government really have a responsibility to withdraw the entire Bill; they should take it away and have civil servants work up all the policy developments that are assumed in it. As it stands, decisions on all these policy areas will simply be left to Ministers to make through delegated legislation; that is not acceptable at all. I was strongly supported by my noble friends Lord Wilson and Lord Lisvane and many others when I made this point in an earlier debate.

Clause 10 transfers powers wholesale from the EU to Ministers, who will then decide which regulations to propose. It includes extensive amendments to Part 1 of Schedule 8 to the European Union (Withdrawal) Act 2018. In omitting sub-paragraphs (1) to (5) of paragraph 4, the Government are further reducing the power of the UK Parliament with respect to retained EU legislation, and, as the noble Baroness, Lady Ludford, said, with particular respect to retained direct EU law. The Government justify that on the basis that retained direct EU law did not have as much parliamentary scrutiny as other parts of retained EU law, but that was because the UK was bound to comply with retained direct EU law under the treaty of Rome. We are now not in the EU—we are in an entirely different situation—and the UK Parliament needs to take over responsibility for this area of law, which represents at least 50% of retained EU law.

As noble Lords know, we parliamentarians cannot amend secondary legislation. It would be extremely difficult in this context for Parliament to reject the secondary legislation involved, and therefore Parliament will have no option, in my view, but to accept the delegated powers we are talking about here. Surely this is entirely unacceptable. Ministers’ regulations across a vast range of policies will affect the entire UK population very considerably.

Clause 10 radically changes the European Union (Withdrawal) Act 2018, affecting a huge transfer of powers from Parliament to Ministers. This is in conflict with stated government policy and the Government’s Explanatory Memorandum to the Bill. Clause 10 should not stand part of the Bill.

My Lords, it is an honour to follow the noble Baroness, Lady Meacher; I agree with everything she said. I also very much agree with the previous speakers, including my noble friend Lady Ludford.

I will make a point in response to the points made by the noble Lord, Lord Hamilton, when he questioned the noble Baroness, Lady McIntosh, on whether her amendments would delay the process and whether that would be a problem. The fundamental problem we have is set out very clearly by the Delegated Powers and Regulatory Reform Committee in paragraph 35 of its 25th report, which quotes from the RDEUL memorandum:

“Overall, the change in status will make it possible to amend or repeal a greater amount of RDEUL using secondary legislation, which will enhance the ability for amending RDEUL more quickly without the need for primary legislation. This is a more proportionate status for RDEUL, as when made it was not subject to the same degree of UK Parliamentary scrutiny as an Act of Parliament or even domestic secondary legislation.”

However, the committee goes on to say that

“RDEUL has a special status because much of it is of considerable significance in policy terms.”

Once again, we have spent most of the last three Committee days discussing issues relating to policy and asking for clarification on when that will be nailed down and understood and when Parliament can look at it before final decisions about the Bill are made.

I return to the question I asked on the first day of Committee: at what point will the dashboard be frozen? After it is frozen, how long will it be before it comes into law? Will it be 31 July, October or 30 December? How do Ministers respond to the issue that Parliament will have to give up a significant role in key policy terms, which is normally part of primary legislation, and which would be moved into secondary legislation under this clause? At the moment, we still do not have an answer as to when Parliament will be able to look at the detail of the dashboard to make decisions on it.

Before the noble Baroness finishes her remarks, I would be grateful if she could answer my question: if you delay the implementation of considering this legislation, do you not create greater uncertainty?

It is fairly straightforward. Those of us with extreme concerns about the Bill do not want a Bill passed where time after time people, especially the wider public, realise that regulations have been sunsetted without their understanding of the consequences—and without our own Parliament’s understanding of the consequences. Frankly, that is the one delay that really should be put in place, because we do not know what is going to happen.

My Lords, I have tried to follow and to listen to as much of the discussions on the Bill as possible, and I confess that some of the legal arguments happening earlier were beyond me. I will raise a couple of points, the first of which is in relation to the delay. I said at Second Reading, and I maintain the point now, that the Bill has been a long time coming. The public perceive the debate about how we deal with taking control of our own laws, as the UK having left the EU, not in the sense that it has been rushed through, but rather that it has been sluggish and blocked, and that any attempts to try to force through that break from the European Union have been obstructed by people who did not approve of the decision taken in 2016.

I am very sensitive to the perfectly reasonable criticisms made throughout the arguments I have heard. The Minister must give some reassurance that there are no unintended consequences of the Bill and that important laws are not lost that the Government do not intend to lose—those they will lose by accident, as it has been described. That is of some concern. Reassurances that they are in control are not that reassuring when we look at the parlous state of the way everything else is falling apart at the moment. So I have reservations myself; I wanted to clarify that. But saying that we should delay things until 2028 will be seen, understandably, as quite simply putting off the task, and that does not work at all.

I also want to address the point that the noble Baroness, Lady Ludford, made when she rightly noted that when we were in the European Union much of the law that was not looked over by Parliament was indeed put forward by UK Ministers. It is true that many politicians in the UK felt much happier dealing with getting laws through Brussels and Strasbourg than being answerable to the UK public—to the electorate in this country. They quite liked taking their laws over there and coming back to the UK and saying, “What can we do about it? It is just being imposed on us by the EU.” I have always been critical of that.

There is no doubt that there was less fuss made in both Houses about the fact that laws were not scrutinised by Parliament at that time. I want there to be more scrutiny by Parliament now. I think the reason why people outside Parliament, Westminster and Whitehall are suspicious of opposition to this Bill, which you cannot blame them for, is that over the years they have not seen the same enthusiasm for scrutinising law that was imposed on the UK. I agree it was often under the auspices of UK Ministers having agreed it over in Brussels. There is a certain amount of speaking with forked tongue going on here. There is no doubt about it.

Whereas I want to hold the Government to account for the problems with the Bill, my nervousness is that it feels mired in politics. So I cannot get away from the feeling that any delays or tactics that say, “Can we not just wait a bit longer?”, let the Government off the hook. The Government should have got on with this a lot longer ago rather than having to rush it through now. But I think any delays are likely to cause real cynicism outside this place. But the Government do need to reassure me—

I just wanted to say to the noble Baroness—and I probably will not go into lawmaking in the EU, as the noble Baroness was an MEP herself—that to say that lawmaking in Brussels is not democratic is, to my mind, ridiculous.

I particularly want to address her assertion that objections to this Bill are mired in politics. Had she been here, as I have, through the entire four days—now nearly four and a half—on this Bill, she would know that across the House the objections have been because it is an Executive power grab. Almost no reference has been made to the Brexit referendum or the policy of Brexit. It is about the way that the Bill is constructed and the power that the Government are concentrating in themselves. It is a question of the rights of Parliament and the type of governance we are objecting to. It is not political in that sense. The objections to this Bill are constitutional.

I appreciate that I have not been in the Chamber for all of that time, although I have been here a fair few hours, one way and another, and I have read everything that was said in previous discussions. I do not feel as though I am just wandering in to make this point.

I have also talked to people outside this House about their understanding of this discussion and I am trying to draw attention to that—

I am very grateful to the noble Baroness, Lady Meacher, for giving way for my question to the noble Baroness, Lady Fox. If the noble Baroness, Lady Fox, is not concerned about Clause 10, does that mean that she disagrees with the very clear comments from the Delegated Powers Committee? It sees it as a power grab and thinks it is a completely inappropriate use of secondary legislation.

I am concerned about aspects of this Bill from a delegated powers point of view, as I have been on a range of Bills that we have had in this House. Maybe it is because, as in the previous intervention, it was made clear to me that there is a disagreement about what democracy is. I do not think that while we were in the European Union that was a democratic, accountable form of lawmaking. I did not make that point. That point has just been made back to me. I am saying that although I understand that the arguments put forward say that they are not replaying a lot of discussions from the past, I think that argument has been implicit in a lot of the discussions. That was certainly what I heard at Second Reading and I have picked it up.

I am also making the point that if there was a genuine enthusiasm from this House about how we can take the opportunity of having left the European Union to now study and look at all of those laws, there might be less cynicism outside this House. That was my point.

I also was making a different point about timing. I have not heard from this House, either while I have been in it or before I got in it and was watching it from the outside, an enthusiasm to rush things through, as soon as we voted in 2016, to say, “Let’s take all the laws. Let’s look at the EU retained laws. Let’s now make a decision about what we do with these laws.” People did not want to do that because they did not accept the decision. Now, people are saying that it is too rushed and that there is a danger that this will come over—as it is doing—as an attempt at blocking taking back control.

As to the delegated powers and the power grab, I am afraid that that is something I have broadly been worried about from this Government, not just with this Bill. I have spoken on it many a time.

My Lords, I will speak to Amendments 129 and 131 in this group in my name and those of the noble Lord, Lord Rooker, and my noble friend Lady Boycott, who, I am sorry to say, are not in their places. These two amendments are about transparency, accountability, and scrutiny, so, in a way, they follow neatly from some of the points the noble Baroness, Lady Fox, was making a few moments ago.

Transparency, accountability and scrutiny are surely not contentious concepts so I hope that the Government would agree and therefore sign up to these amendments. Amendment 129, very simply, would require the Government to seek advice from the Food Standards Agency and Food Standards Scotland as to whether any proposed changes to the regulations will reduce food safety or other consumer protections in relation to food.

Noble Lords will recall that the Food Standards Agency is the non-ministerial department in England, Wales and Northern Ireland with responsibility for food safety and consumer protection in relation to food. It would surely be bizarre beyond belief not to consult the relevant department and its Scottish counterpart before making any changes to retained EU law. The importance of this underlined by referring back to a previous debate in Committee. I quote from Hansard. I said on 23 February that

“I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:

‘In the FSA, we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health’.”

I then said:

“According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.”—[Official Report, 23/2/23; col. 1832.]

I will now quote the Minister’s reply because she did indeed deny it by saying:

“Let me assure noble Lords that any decision on REUL reform will not come at the expense of our high standards.”

She added that

“our commitment to not reducing consumer protection remains in place.”—[Official Report, 23/2/23; cols. 1856-57.]

Here you have it in black and white. The head of the relevant government department, Professor Susan Jebb, says that we cannot sunset EU-derived laws without sacrificing consumer safety and other protections. The Minister told this House on 23 February that, in effect, that is a load of rubbish. Who would you believe? I know where my trust lies. It is with the department that has the responsibility and accountability for and expertise in protecting consumers’ interests in relation to food. There could not be a clearer demonstration of why Amendment 129 is essential

Lest this be thought to be some sort of political point, I want to say that when I was chairman of the Food Standards Agency, with a Government of a different political complexion, Ministers were keen to rush to reassure the public on issues to do with food safety, whether it was BSE or foot and mouth disease, and I really had to stand up against pressure from Ministers and say, “No, we can’t provide reassurance on safety”. If this amendment is accepted, it will ensure that the proper expertise, lines of accountability and scrutiny are in place to review any proposed changes in food law.

I turn now to Amendment 131, which is about transparency. As the noble Lord, Lord Rooker, reminded noble Lords earlier in Committee, the Food Standards Agency and Food Standards Scotland published their first annual report on food safety and standards across the UK, entitled Our Food 2021, in June. Here is a quotation from the introduction:

“At a time when the UK is taking on new responsibilities for food following our departure from the European Union … consumers need strong watchdogs looking out for whether standards are being protected. This report—the first in a series to be published annually—will help us do so by providing an objective, data-driven assessment of the safety and standards of food over time.

Why us? Because the Food Standards Agency … and Food Standards Scotland … are together responsible for food standards across the whole of the UK—this is an important, long-term collaboration between our two organisations that should provide greater transparency and accountability for food quality across the four nations. This, in turn, will help us work with food businesses, local authorities and other partners to address any emerging threats or vulnerabilities.”

Amendment 131 simply seeks to put this annual report, or a slightly modified version of it, on a statutory basis. It will tell the public, businesses, the Government and others whether, as result of changes to our laws, food standards and safety are being compromised. How on earth could one object to this transparency?

As the noble Lord, Lord Rooker, reminded us the other day in Committee, transparency is one of the keys to trust. It has taken years of work by the Food Standards Agency to rebuild public trust in the UK food system after the disasters of the 1990s, including BSE and salmonella in eggs. Indeed, that is why all parties supported the creation of the Food Standards Agency, so it could be a department that puts consumers’ interests first and rebuilds trust in our food system. Why would the Government wish to squander those gains now? I therefore look forward to the Minister warmly welcoming both my amendments, and to assuring us that the FSA and FSS will have the necessary resources to fulfil the duties that are implied by them. These are very modest changes to the Bill, aimed at improving it, and I hope that, if the Minister does not welcome them, he will at least agree to meet me and others to discuss the implications of not accepting them.

Will the noble Lord explain why the Government would want to compromise the health of the consuming public of this country and undermine our food exports abroad?

That is an extremely good question and I thank the noble Lord for asking it. That is precisely what I would say too. Therefore, if the Government do not want to risk undermining public safety or public confidence in our food businesses, and therefore our food exports, they should accept these amendments. After all, the chairman of the FSA could not have said it more clearly, and I shall just repeat it once more:

“we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health.”

It is not me who is saying this; it is the head of the government department with this responsibility.

My Lords, I will not detain the Committee for long. Obviously, my noble friend and the Front Bench team oppose Clause 10 standing part of the Bill, for very good reasons, as outlined by the Delegated Powers Committee. I shall just address the noble Lord, Lord Hamilton, on this point: no one disputes that what the country and the Government wanted was a transition. They voted for a transition, returning to Parliament the powers to make laws. That was actually what was contained in the 2018 withdrawal Act, and we now have a policy change: it will no longer be the responsibility of Parliament to revoke, retain or advise; it will be a government Minister.

We have heard extracts from the committee’s report. These pieces of EU legislation are normally about very significant policy issues; it is not as if they are irrelevant regulations that we no longer need and can therefore be put in the bin. They tend to be on very important policy issues. Therefore, as the committee says, it is not about where they originate, it is what they are about. Parliament should therefore have the say about whether they are revoked, retained or revised.

Of course, saving parliamentary time, which is what the memorandum says, means that we are going to have these direct laws immediately put into the secondary legislation category so that we end up not being able to consider any amendments or revisions—we either accept or reject. What does that mean? If there is a desperate need to improve things, we cannot do that; we have to reject, and we end up with nothing. I have repeatedly said that this is not how we should be making laws. We should be reasserting the policy outlined in the 2018 Act.

Nobody is disputing the need to examine these things. I am not even disputing the concern of the noble Lord, Lord Hamilton, about the timescale. We should move as speedily as we can, but it should not be on the basis of areas where a sunset clause will cause things to fall off, or of simply saying, “We need to speed up Parliament, and therefore to consider whether to accept or reject a Minister’s decision on important policy areas”. That is not what this Parliament is about. I hope the Minister will consider the views not only of the Committee but of the Delegated Powers Committee: is Clause 10 seriously necessary? It undermines exactly what I suspect people who voted for Brexit really wanted: for this Parliament to decide the UK’s laws.