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Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023

Volume 833: debated on Tuesday 17 October 2023

Motion to Approve

Moved by

That the draft Regulations laid before the House on 4 September be approved.

Relevant document: 52nd Report from the Secondary Legislation Scrutiny Committee. Special attention drawn to the instrument.

As Minister for the Department for Business and Trade, I am glad to be leading this debate. As my noble friend Lord Callanan promised several times, we are committed to ensuring that the appropriate level of parliamentary scrutiny is applied to all SIs utilising the powers in the retained EU law Act. I am pleased to commence today’s debate just as we commence our ambitious REUL reform programme.

I thank the SLSC for its report on this instrument. We have acknowledged the committee’s recommendations and have now revised the Explanatory Memorandum, adding a link to the line-by-line explainer into the document.

This instrument will revoke a further 93 pieces of retained EU law found to be obsolete or inoperable. This continues the work already begun by the retained EU law Act in tidying up and bringing further clarity to the statute book. Indeed, one of the key purposes of the retained EU law Act was to bring legislative clarity. Redundant retained EU law remaining on the statute book only causes unnecessary complication and confusion.

It is the duty of all responsible Governments to make our law as clear and accessible as possible, and therefore we must continue to identify REUL that is redundant or inoperable and ensure its removal from the statute book. This instrument is another step forward in that work.

These regulations will also preserve seven pieces of retained EU law that are on the REUL Act’s schedule for revocation at the end of 2023. Further analysis of the legislation listed in Schedule 1 to the REUL Act by UK government departments has established that these seven pieces of REUL must be preserved to maintain the current policy position for one of a number of reasons.

There are, for instance, plans to reform legislation in the area of merchant shipping, but until that reform process has been completed, there is a need for legislative continuity, for which reason one piece of REUL is being preserved. Three pieces of legislation have been identified by the Northern Ireland Civil Service as requiring preservation because their revocation would represent a policy change that cannot be agreed in the regrettable ongoing absence of an Executive. These three instruments are preserved for Northern Ireland only, while the four instruments identified by UK government departments will be preserved to the extent that they apply across the United Kingdom.

This SI represents a further step in the Government’s programme of retained EU law reform. We have already set out a range of ambitious reform plans, including on working time reporting requirements and streamlining the rulebook for wine. We will continue to use the powers in the retained EU law Act between now and June 2026 to reform and replace unnecessary regulations, providing regular updates to Parliament on our progress. The reform agenda is a crucial part of this Government’s agenda. We are committed to ensuring that REUL is reformed to be fit for the UK, reducing unnecessary burdens on businesses and helping them grow, while also reducing costs for businesses and consumers. I assure the House that this SI is just the beginning. I commend the regulations to the House.

My Lords, the Minister has said that the work is just beginning, and I understand that there is an enormous amount of work still to do. Can he give us any impression of the amount of work that has been done by the devolved Administrations, who have obligations to perform under this statute as well as the UK Government?

Contemplating Part 1, I wonder whether there is anything else that needs to be attended to, bearing in mind that the power being exercised in Part 1 expires at the end of this month. Time is short and the pieces of legislation listed are the product of oversight. It is nice to see that being corrected, but is there a risk that something else may be discovered, and is there time to unravel the situation enough to cure the problems that might emerge?

Otherwise, I think the work done is to be commended. It is good to see that the Act is being put into operation in the way the Minister has described.

My Lords, are your Lordships not being given a quite impossible task today? I have made a rough count, and in Part 2 of Schedule 2 there are 56 Council decisions or regulations that are sought to be revoked. The Minister describes it in general terms, saying they are to be revoked because they are redundant, obsolete or inoperable, but we do not know the reasons behind these revocations; we have not had the opportunity properly to examine whether we agree that they should take place.

I will ask the Minister one simple question, referring to Part 1 of Schedule 2. The first measure to be revoked in its entirety is the Alcoholic Liquor (Amendment of Units of Measurement) Order 1992. The restriction on the use of alcohol seems to be something of importance. Will the Minister kindly tell us precisely why that particular legislation is sought to be revoked?

My Lords, I thank the Minister for his explanation of these regulations. I agree with the Secondary Legislation Scrutiny Committee when it said in its short report that these regulations are an “eclectic” list of items to be reinstated and revoked. As the noble Lord, Lord Hacking, just said, it includes all sorts of things, including alcohol regulations. It covers a variety of departments, including the Northern Ireland Office; as the Minister said, it is deeply to be regretted that the Northern Ireland Civil Service, rather than a functioning Executive, had to make the decision to reinstate the three pieces of legislation relevant to Northern Ireland.

I also agree with the Secondary Legislation Scrutiny Committee and the noble Lord, Lord Hacking, that the Explanatory Memorandum is insufficiently detailed, stating merely, as it does, that the laws in question are either redundant or no longer effective. It is to be welcomed that, as the Minister said, there is now a direct link in the Explanatory Memorandum to the more detailed analysis, but it is important that these things are clear and easily accessible to the public, as well as to parliamentarians in this House and the other place.

The Government promised consultation and expert input on REUL reforms. Can the Minister update us on how departments are taking that commitment forward, including in the regulations we are looking at? The Minister will know that there are particular concerns regarding lack of consultation and progress on nutrient pollution and air quality. Can he update us on possible timescales and consultation processes for these two areas? Can he also say how the Government intend to approach assessing and mitigating the risks of changes to case law, which is so important for environmental protection?

My final comment is perhaps more for your Lordships’ House than for the Minister, but this secondary legislation from the original Retained EU Law (Revocation and Reform) Act is a very good example of where there should be post-legislative scrutiny within the usual framework for carrying out a PLS inquiry. There are important lessons to be learned for the future about the provision of effective parliamentary scrutiny and consultation with experts, which did not happen in the case of the original Act in the haste to get Brexit done and to get it on the statute book.

My Lords, I thank the Minister for the overview and explanation of this statutory instrument. In this first use of the powers in the retained EU law Act, the tidying-up exercise involves the exercise of the Section 1 power to disapply the sunset and the Section 14 power to revoke 93 pieces of retained EU law that no longer have any legal effect for whatever reason.

First, on the use of the Section 1 power, the Government have identified four pieces of legislation that never should have been included in the revocation schedule. This is extremely concerning. These instruments —two concerning the use of copper, one concerning merchant shipping regulations and one providing the legal vires to inform Northern Ireland and Gibraltar counterparts of the outcome of roadworthiness inspections —may not be the most significant pieces of legislation we have but they each play an important legal role.

Without the cross-party efforts of the House in improving the Act, these instruments would almost certainly have been lost at the end of the year, given that the further analysis required to spot these errors would have needed to take place on thousands, not hundreds, of instruments. Do the Government now accept that their initial unnecessarily reckless approach, borne out of internal party politics, was undoubtedly the wrong one?

Schedule 1 to the Act contained 587 instruments to be revoked at the end of 2023, to the extent specified there. I am sure the Government were 100% confident in this list when it was first drafted. We are now much closer to the end of the year and its looming deadline. Does the Minister seriously expect us to believe that now he really is confident that the revocation of the instruments on that list will not have any legal impact? Is the analysis that found the four errors I mentioned still ongoing or has it concluded?

The instrument also retains three pieces of legislation for Northern Ireland only relating to information provision and promotion measures concerning agricultural products. This again sounds somewhat minor, but their revocation would have represented a policy change, which would require agreement by Ministers in a non-functioning Executive. I am sure the whole House can see the constitutional risk, so is there any risk that proceeding as we are now will lead to such a situation? I assume that the Northern Ireland Civil Service will be examining this legislation continuously until and probably after it is revoked. If the Minister could share what he has been told by it on this matter, it would be very much appreciated.

Lastly, a further 93 pieces of retained EU law will be revoked using Section 14 powers. With the end of the year in sight, this is a remarkably small number, standing in stark contrast to how much would have been revoked by default under the Government’s initial approach. Does the Minister envisage that there will be further additions before the end of the year? Could he possibly enlighten us further on the general process that has taken place to identify this legislation? Given the lack of legal impact, can the Minister share any assessment that has been made on the wider impact, such as easier understanding for businesses and consumers? Has any assessment been made of how this adds up against the resources being put towards this exercise?

I turn to divergence. To avoid the economic costs of divergence, we should continue to stay close to EU regulatory standards. We co-created many of these club rules through negotiation processes where we could put the case for British businesses during the decades we were full members of the club. Now that we are no longer members, we of course no longer have a say in any regulations that are introduced and will come into effect in the future. However, British businesses will still need to abide by these new rules if they wish to trade within the EU. Uncertainty and ambivalence do not encourage investment and lack of investment in turn reduces capacity for economic growth. With public investment well below the G7 average and business investment at the bottom of the league, what assessments have the Government made to reverse this trend?

Sadly, we are not really surveying sunlit uplands. Instead, we find ourselves caught between a rock and a hard place, trying to square the circle, crossing our fingers and hoping for the best no matter how much we tinker around the edges.

To return to the legislation, I suspect there will be many more instances of tidying up as we adjust to our new surroundings and relationship. I am looking forward to being issued with a new broom.

I thank noble Lords for their contributions to this debate, which has obviously had a lot of airtime in this House. I turn to some of the points raised. The noble and learned Lord, Lord Hope of Craighead, made many contributions to the Act. The point about the devolved Administrations is well made, in particular in relation to the Scottish and Welsh consents that are required for this, both of which have now been received. The timing of this is that it has to be through these Houses by 31 October, with limited time to seek agreement with the devolved Governments, but these agreements have now been sought and given by the Welsh Government and the Scottish Government. This completes the suite of amendments in this parliamentary time, so this is going on the statute book. We will then go forward in the new Session of Parliament as the need arises, as and when reform is required and as and when revocation is required. As far as this process is concerned, the devolved Governments have been consulted properly.

In relation to some of the specifics, and there are a lot of specifics with 93 Bills being dealt with here, I take the very specific point raised by the noble Lord, Lord Hacking, on alcohol, as one point of many. With all these laws one can access the GOV.UK website where there is a line-by-line explainer for each one. This particular one is the Alcoholic Liquor Duties Act 1979. It restricts the carrying on of certain other trades by a distiller or rectifier within three kilometres of a distillery or rectifying house. Prior to August 1992 that restriction was within two miles. This legislation is now inoperative as it amends provisions that were revoked in 1979.

It is an example of quite a lot of Acts that were on the statute book and have indeed been updated, not least the Companies Act, revoking previous Acts. This is literally a tidying-up exercise. It falls within the remit of REUL, and is one of the benefits of the wider process that we are going through.

I turn to the general principle on which the noble Baroness, Lady Suttie, has requested further detail. It is clearly to do with the fact that this comes across all departments, and all departments are required to give their views. In fact, taking the 93 revocations, we already have 11 departments contributing to that. The Government have already reformed or revoked over 1,000 pieces of REUL. In addition to the list of 587 in the REUL Act, we have the Financial Services and Markets Act 2023 and the Procurement Bill, which will repeal around 500. All told, this comes to more than 2,000 revocations and reforms already completed or under way, of the original estimate of 6,000—this work is well under way.

I thank the Minister for giving way. He highlights an issue that was absolutely centre stage during the REUL Bill discussions: that this is a very complicated situation with a lot of pieces of legislation. It is very heavily dependent on individual departments spotting the right things and not forgetting things that should be retained or got rid of. The original dashboard is not much help in that, quite frankly; it should be the common hymn sheet that we are all singing from.

With that in mind, would it not be advisable in future, if further statutory instruments come forward, that there is more general consultation in advance of the statutory instrument being laid, because by that time it is too late? Apart from that, most people could not find the explainer; it was not terrifically visible—you had to work hard to get your hands on it. I just think it is too risky.

With this vast range of legislation—which has to be scrutinised and decisions made on whether it is “snog, marry, avoid”, as I typified it in the last debate—it would be better to have lots of eyes focusing on it in the form of a public consultation; it could be very brief, just to make sure that we do not drop any balls as this goes through. It is very nice for the Government to say that they have looked at all this and it is undoable, no longer required or obsolete, but, if we cannot have proper scrutiny, we have only their word for that.

I thank the noble Baroness for her contribution. This is a complicated area—there is no question about it. The dashboard is continually updated and has just been updated again. There is, therefore, full transparency on this matter, but, as was referenced by the noble Lord, Lord Hacking, one can go through each one of these and their detail each time, and there is no question that it is a complicated process. However, we have embarked upon the process and it is under way, and I think the revision that we came to is sensible and pragmatic.

I point out that, at the end of the day, with these revisions, we are talking about the preservation of four out of 587. I would say that that is a pretty good result, looking back to see that the original assessment was correct. During the debate—and in particular regarding the amendment in the name of the noble and learned Lord, Lord Hope of Craighead—assurances were given that this process would be done in full consultation with the House. Within those protections, we now have a road map.

I turn to the final point raised by the noble Lord, Lord Leong, in relation to the overall process around the issue of leaving the EU. There were two points in particular. First, on the Northern Ireland Civil Service, we all regret the fact that there is no Executive in place at the moment, but, again, this is referring to only three situations. There is constant dialogue with the Northern Ireland Civil Service, and that is working well, so we can continue the process as is. However, we all hope that the Executive will come back into being as soon as possible.

Secondly, on the issue of divergence, there is no concept of divergence for its own sake. There is to be no diminution in our trading standards, our employment law standards or how we feel about the environment and so on within these rules, but we have the opportunity to modernise, revoke, get rid and tidy up, and that major process is going ahead. On the face of it, with the Brexit deal that we did, we have a free trade agreement with Europe and we continue to trade strongly with Europe. There is no diminution in our business ability effectively to trade with Europe, and I do not envisage that that will be the case. This is part of an ongoing process that will now run through in the normal course of business through each parliamentary Session, where government departments will, as a matter of the ordinary course of business, review these laws and regulations and, when required, they will come back to the House by means of the SI process.

With that, I believe I have addressed all the questions posed by noble Lords. I hope I can look forward to the House’s commendation of the regulations.

Motion agreed.