Debate on Retained EU Law (Revocation and Reform) Bill
I believe very strongly in analysis, reason and persuasion, which has been something I have had to call on a lot over the last few months, first during the Online Safety Bill, and then the Illegal Migration Bill, for which I was congratulated by the team in No.10 for my constructive engagement. It made an enormous difference in making the Illegal Migration Bill much more workable than had previously been the case. It took several weeks of almost continuous work with a team of expert lawyers, including Harry Gillow, well known in the constituency, who helped enormously as a distinguished lawyer and became part of our team with former First Parliamentary Counsel, Sir Stephen Laws. Enormous progress has been made to improve the Bill, and I am glad we could work with the Government constructively to achieve this.
On the Online Safety Bill, I worked closely with Miriam Cates (Conservative MP for Penistone and Stocksbridge) and the NSPCC to strengthen the Bill in relation to the protection of children from online harm. The Government recognised the significant support from other Conservative MPs, and as a result, committed to tabling a Government amendment at a later stage. We have ensured the personal criminal liability of directors when they have consented or connived to ignore enforceable requirements, putting our children and grandchildren in harms way, with our amendment introducing the penalty of imprisonment for up to two years, or a fine (or both).
Following both of these successes, my attention turned to the Retained EU Law (Revocation and Reform) Bill (REUL). It has been an enormously hard and arduous task to get this right. It involved a vast number of conversations with the Prime Minister’s top team, the Chief Whip and the Solicitor General, to whom I pay great tribute, and who was on my Committee for several years. Eventually, everything was resolved, and a great deal of progress made.
Many changes were made to the REUL Bill in the House of Lords, and these changes came back to the Commons for scrutiny on Wednesday. I proposed an amendment to a Lords amendment, requiring the Government not only to report on their plan to revoke and reform retained EU laws, but with my amendment requiring for that report to include a list of EU provisions to be revoked or reformed. This list provides the lever and information to enable the public, the House of Commons and the European Scrutiny Committee to be able to identify not mere plans, but identify specifically what is intended, which will be set out in a public list, providing people with more certainty about what will be revoked or reformed.
I was glad that the Government decided to adopt my amendment after it gained considerable support from fellow Conservative MPs, enabling the Commons to debate and pass it, something which almost certainly would not have happened had it remained a backbench amendment. I am grateful that my backbench and Government colleagues recognised the importance of this amendment for ensuring the revocation and reform of Retained EU Law. These European laws were passed by the European Council of Ministers by majority vote behind closed doors without even so much as a transcript, a topic on which the former Attorney General, Sir Jeremy Wright (Conservative MP for Kenilworth and Southam), even went so far as to call me “the world expert”!
This list of intended retained EU law to be revoked or reformed, which now will become a legal duty on the Government, will enable businesses, voters and Members of Parliament to identify what is intended to be revoked and reformed, and by implication, having looked at the archives, what is also available for reform or revocation, which will be an enormous step forward. This will now form part of the forward planning on a transparent basis so that thousands of laws can be removed or modified in a coherent and transparent manner, providing more clarity and certainty for the British people.
My amendment went through, and has contributed to a very good outcome in creating the circumstances in which we can get these European laws scrapped. This is necessary for us to harness the benefits that Brexit brings, increasing our competitiveness and reducing the burden on small businesses. As I said in my speech, and the Solicitor General also emphasised, the job done has to be done properly. The Government and the Conservative Members of the House all concluded that this was a great step forward.
Please see below my speech and other key extracts from the proceedings in the Retained EU Law Bill in the House of Commons on Wednesday 24th May:
I simply ask the Solicitor General whether he would be good enough to give an assurance to the European Scrutiny Committee, in the light of recent events, on its interaction with the Bill and its outcome and operation.
My hon. Friend pre-empts me, because I will be turning to the important role of the European Scrutiny Committee. I know he will forgive me, because it is important to take this in the proper order and so I will come to that point in due course.
We want to expand both the scrutiny and the breadth of experience that we are drawing on when it comes to revocation and reform. My hon. Friend the Member for Stone (Sir William Cash) anticipated this point, and I thank him for the work done by him and his Committee, a number of whose members are in the Chamber today. Indeed, I used to be a member of that Committee and the Government look forward to engaging with it. I am pleased to give him a commitment that we will present a report to the European Scrutiny Committee on a six-monthly basis on the progress and plans the Government are making on the repeal of retained EU law. Any retained EU law not included in the schedule will be stripped of EU interpretative effects after 31 December 2023. I repeat that it is important to expand both the scrutiny and breadth of experience, as the Secretary of State for Business and Trade has said from this Dispatch Box and elsewhere. This is vital, and it means that we will still be removing the effects of general principles of EU law as an aid to interpretation, ceasing the application of supremacy and repealing directly effective EU rights so that they no longer have any effect in relation to those provisions.
I will speak to my very short amendment to the very short new clause in Lords amendment 16, on the retained EU law dashboard and report. The new clause requires the Government to report on their plan to revoke and reform, while my amendment seeks for that report to include a list of EU provisions to be revoked or reformed. In other words, it adds to the benefits of the new clause and to the Government’s proposals. The new clause was adopted as a Government amendment in the House of Lords a couple of days ago.
I am very grateful to colleagues who signed my amendment, and I know that many more want to do so. I am also glad that the Secretary of State has agreed—no doubt having received some good advice from my hon. and learned Friend the Solicitor General and others, unnamed—to put her name to the amendment. That means, I am glad to say, that it is now Government amendment (a). Procedurally, that is a very great prize, because if the amendment had not received Government support it would almost certainly not have been selected for debate and we would not have been able to vote on it. I mention that as a matter of significance. I am deeply grateful to my hon. and learned Friend for attending meetings with me and for the dedicated way in which he goes about his job.
We need to make sure that this new structure actually works so that we can put the painful recent past behind us and get on with the job in hand of getting rid of EU supremacy and insisting on the freedom to deregulate. We also need to get to the bottom of which laws should be reformed or revoked. That process is in hand, but it is moving far too slowly and not being done with the degree of experience and skill that needs to be applied to it.
I am also very glad to report that, after a few refusals—but I do not want to dwell on that—the Secretary of State will appear before the European Scrutiny Committee in the week beginning 5 June. That is a very important step forward.
I am grateful to my hon. Friend for all the work he does, and I am glad that the Secretary of State will at last appear before Parliament on this crucial change of policy. Has he had any assurances that the many ideas that I and others have put to the Government on repeal and improvement of EU law will be not only read but implemented? What is the delay?
I agree very much with and share the sentiment expressed by my right hon. Friend. We need to move forward and have a proper list and the opportunity to examine the manner in which that list is prepared. The important matters to which he specifically refers include economic freedoms and the ability to reduce taxation where necessary. If they are not on that new list, there will be a lot of people asking for them to be included. That is the next step. It has unfortunately taken a long time to get to this point, but I think that we are now beginning to get there.
The new clause prescribes arrangements for Parliament to be properly informed as to the need for a full and hopefully, at last, accurate and relevant list of retained EU law along the lines of economic freedom and competitiveness and many other things. I and many colleagues, including those on the European Scrutiny Committee, have been severely pressing, for a long time, for a full and accurate list. We have invited the Secretary of State to come before our Committee many times without success, but she is now coming, and we are glad of it. We asked for progress in relation to all EU retained law. We did not get it, but we are now going to.
I also proposed to the Secretary of State that there needs to be an experienced tsar, or commander in chief, of the operations, because by the sound of it there has been something of a problem inside the civil service and it has led to difficulty in getting the job done. This person would need to know and understand the process of European scrutiny, what to do and how to go about it. I have written to other Ministers as well, and explained to them that there are archives in Kew that will be part of the list, not to mention individual Government departmental archives, parliamentary counsel office archives and, of course, our own very special European Scrutiny Committee archives, which date back to 1973 and are extremely comprehensive, including the explanatory notes that were produced to my Committee as individual regulations and laws were being negotiated. They also explained the Government’s position on particular points, but I will come on to that in a moment.
When I hear people suggest that they have not had the time to do all this and get the job done properly, I despair at their lack of drive, energy, commitment and, perhaps, unawareness of the Conservative manifesto. The new clause will provide an obligatory framework for the completion of the task.
It was profoundly disturbing to look at the schedule attached to the new Bill. It restructures the Bill in radical ways, but this debate is not the time to go into the history of all that. We have had a lot of discussion about it, so I am not going to do so. This Bill, as it has come from the House of Lords, is a mixture of the good, the bad and the ugly. The good is the ending of the supremacy of EU law and methods of interpretation, and also the provisions relating to deregulation. The ugly lies in the reformed structure and the manner in which we only heard about that at very short notice on 10 May. But, as I have said, we now have to move on. The bad lies in the amendments by the House of Lords, which if passed would have profound consequences undermining our national interest. We also need a coherent statute book. We cannot have two statute books, with one dealing with laws passed during our time in the European Union, pre Brexit, and the other dealing with laws passed afterwards. That would be most peculiar, and it would not work. It would be incoherent and create great legal uncertainty.
The new clause that the Government have adopted requires the Secretary of State to update, within specified periods, the EU law dashboard and publish a report on the revocation and reform of retained EU law. This report must provide a summary of the dashboard, set out progress already made in revoking and reforming, and set out the Government’s plans to revoke and reform those laws. In effect, it sets obligations and a timetable.
It is always interesting to know what people’s “plans” are, but having a plan does not mean that we know what is in it before we see it, and nor does it mean that it will ever happen. What does matter is that it is listed, and that is the point of my amendment. The list can be examined to see what modifications or revocations are required under clause 14. Only then can we decide their relevance in the national interest. It also makes the Secretary of State properly accountable to do the job properly within the framework of our parliamentary and scrutiny procedures, including my Committee; I am grateful to my hon. and learned Friend the Solicitor General for the assurance he has given on the Floor of the House to work with my Committee. It also creates a deadline and pressure to get on with the job.
I have written separately to the Government not only about the tsar but about the efficient delivery by external sources, in a comprehensive manner, by May next year. That is doable, but it requires political will, and diligence on the part of the civil service. That is why my amendment states that the plan must specifically include in a list those provisions of retained EU law that the Government intend to revoke or reform. On the face of it, this is a simple amendment, but it carries with it the need to do the job properly. I assure the House that the European Scrutiny Committee will examine the content of that list and its implications with an eagle eye. It is an enormous shame—in fact, I would almost call it a disgrace—that the current schedule to the Bill consists of what could politely be described as junk, with very few exceptions. I have been through the list; actually, I did so during the Eurovision song contest. I turned to my wife and said, “I really cannot tell which is worse: this schedule or the Eurovision song contest.”
Having been through the schedule, my research and that of others, including other experienced advisers—I do hope the House will take on board what I am about to say; this work has been done not just by me, but by really experienced people in the House of Commons whose job it is to examine the extent of the retained EU law—indicates that there are only five pieces of retained EU law in the schedule that are of any use or relevance to our national interest, and which were enacted at the time for substantive policy reasons. Only five pieces out of 687: that is the conclusion by the experts, and by myself, if I may say so. Our Committee goes through all European documents and has done for decades, and each Wednesday, we categorise the documents according to whether they are legally or politically important and publish that categorisation. Only those of importance would have gone to the European Scrutiny Committee for debate while we were in the European Union.
Of the remaining 99.15% of provisions in the schedule, one of the worst examples—just to inform the House of how bad they are—is the working hours regulations during the 2001 foot and mouth outbreak, which I believe is over now. Another is quota rules for the import of wheat bran in the French colony of Réunion. I could give many more examples, but my last one is roughly 200 rules on the allocation of fishing between the EU and countries such as São Tomé and Príncipe and the Cook Islands in the south Pacific, not to mention other such distant lands as Madagascar, Mauritania, Senegal and Gambia. Those rules are nothing to do with the UK: they are between the EU and those countries.
As such, the object of the amendment is to make as certain as possible a legal obligation that enables us to see that what is to be revoked and reformed is of real relevance and in our national interest; will improve our competitiveness and economic reform; and will make the statute book consistent with UK law—as my hon. and learned Friend the Solicitor General said so well—and its interpretation by the courts in line with our own unparalleled national common-law system.
I defer to my hon. Friend’s knowledge and judgment on what he is speaking about, but may I press him on this particular aspect of the Bill? Of course, a lot of regulations may seem redundant or trivial, and he has named a couple, but part of an improved regulatory system is cleaning up regulations that may be redundant or trivial, in addition to doing the work properly of making sure that when we do get rid of things and reform them, we do so for the right reasons for the entire regulatory system. The Secretary of State has proposed that by the end of this year, we are likely to have removed roughly 2,000 of the total 5,000 regulations; the remaining 3,000 will be done in a proper way, looking strategically at our whole regulatory system. Does my hon. Friend not accept that that is a reasonable approach for the Government to take, bearing in mind the position that we are in at this time?
I think it is perfectly reasonable to do it now, because it has not been done before: that is where the problem lies. I would also slightly correct my hon. Friend regarding the relevance of, for example, fishery arrangements between the EU and the Government of the Cook Islands—they are administered by New Zealand, I believe. Such arrangements have nothing at all to do with us, and could not conceivably be included in a list that was intended to demonstrate relevant revocation and reform of these laws.
Expunging EU laws from our statute book frees our voters, our businesses, our Parliament, our sovereignty and our democracy from their subjugation to the EU for 50 years. Those laws were made and engineered by the European Union, the European Commission and the Council of Ministers behind closed doors by qualified majority voting—without even a transcript, as I have said so many times—but usually came about by way of consensus. The veto was promised and guaranteed in the 1971 White Paper, which hon. Members can look up for themselves, but it was whittled away. When EU laws came to be discussed behind those doors, we generally ended up with consensus; they certainly were not our own laws passed by our own Parliament. That operation has been described by a famous economist as “regulatory collusion”.
The making of all those laws, as I said earlier, was accompanied by an explanatory memorandum, which is a useful reference point for determining what mattered at the time. Not one single piece of EU legislation was ever rejected or amended during the entire course of our membership. Interestingly, one of the five provisions that I have mentioned that are relevant to this debate is the port services directive, which was opposed by every single one of the port employers, by every single one of the trade unions, and by the Government. What could they do about it? Nothing. That is the point, and that almost summarises the reasons for the exercise that has been conducted under the Bill.
Does my hon. Friend recall that—certainly when I was single market Minister some years ago—quite often we did not want the regulation or law at all, but the Government then decided that it did not look good because we did not have a veto to enforce our wish, and we ended up trying to negotiate the version that was least damaging? Why is it that collective memory has forgotten all this, and why do people only recall the laws they want to keep? Why can they not recall the laws we never wanted?
Fortunately, the collective memory includes me, because I was first put on the European Scrutiny Committee in 1985. I have been on it ever since, and I have been Chair for 10 years. However, I totally agree with my right hon. Friend. The question of whether these laws mattered and whether they were going to go by consensus was driven by the fact that the people sitting around the table knew beforehand whether there was going to be a majority vote, and whether they would lose. As it was a dead certainty that the UK was going to lose, they entered into that consensus.
The real objective of the European Union in all this was to harmonise laws across Europe, creating a fundamental shift to European integration. That is one of the reasons why I tabled a sovereignty clause to the Single European Act 1986, which eventually found its way on to the statute book in 2020. Essentially, all these laws lack the kind of democratic legitimacy that we would expect in our traditional, constitutional, common-law system. We must therefore judge the laws that are now in the list, as set out in my amendment. Where they are capable of being modified, let them be modified, but as I have said, many of them were passed by majority vote and were certainly not in the UK’s national interest. Indeed, the chief negotiator for our entry to the EU under Edward Heath, Sir Con O’Neill, stated of his own failure to understand the system that
“I am sorry to say we probably also thought that it was not fundamentally important.”
Tragically, it was important, and the thousands of laws that now need to be reformed and revoked were the product of his and the then Government’s failure, and those who persisted in it until we left the European Union.
Sadly, for decades after our entry to the EU, the passing of laws in the European Council of Ministers continued to churn out thousands that did not have democratic legitimacy, and which we now have to modify or revoke. I am glad that the noble Lord, Lord Callanan, said on Monday that
“it is crucial that Parliament and the public are able to hold the Government’s feet to the fire and ensure that our momentum continues”.—[Official Report, House of Lords, 22 May 2023; Vol. 830, c. 609.] It is also important that the Brexit Opportunities Unit has discussions with the European Scrutiny Committee about methods and co-ordination, including the tsar I have mentioned alongside a team of external experts. Resources will be needed, yes, but the need is absolutely vital. I am therefore glad that the Government and the Secretary of State have agreed to adopt the amendment that stands in my name and those of many colleagues. I believe that the clause, when amended by this and other amendments, will be one of the main levers for making a success of this entire operation.
With that tension in the Tory tribe, we have been battling in recent years about the fulfilment and implementation of the Brexit dream. The fact is that whichever side of the tension we are on, we believe that it should be this Parliament that sets the direction for our country and delivers the sort of country we want to be, post our membership of the European Union. We should determine policy in these areas. That is why the Bill is so good and so right.
The fact is that the elected Government are responsible for scheduling the measures that will be revoked or reformed—there will be that democratic oversight, unlike there was in the process by which those measures were brought into this place. My right hon. Friend the Member for Camborne and Redruth (George Eustice) explained clearly how this House had no opportunity to challenge EU law as it was introduced. The laws came into Parliament by sneaky means, rather like the rats coming up through the drains, but they will go out in the proper way: briskly and fairly.
I am pleased that we are doing this and, crucially, that we are making the profound change given effect by the Bill, which is to restore the supremacy of UK law. I honour the Government for their efforts to get the process of extirpation, or revocation, right, and to remove the problem that there are two systems of law in operation in this country. We should have one system of law, made in this place.
Nevertheless, since then the Government have engaged constructively with Members. I pay tribute to my hon. Friend the Member for Stone, who is not in his place. I think every Bill needs an hon. Member for Stone stage, and if that was not done through the European Scrutiny Committee, it was done behind the scenes and it was very effective—[Interruption.] I see my right hon. and learned Friend the Member for South Swindon agreeing with me about the value of that stage of legislation.
I respect the Government’s intention and I accept their assurances that they intend to revoke at scale, because we need to recognise that the new schedule as it stands is very weak. My hon. Friend the Member for Stone said that only five of the measures in the schedule reflect significant laws. He said he was watching Eurovision while doing that work, so it must have been a very painful exercise—gloriously awful. Britain did very badly in Eurovision, and I am afraid Britain has not done brilliantly in this exercise either. It reflects poorly on Whitehall that we have only managed to identify those five substantial measures for revocation.
I am grateful to my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones) for what he does in his Committee. He is right that, in many ways, his Committee and that of my hon. Friend the Member for Stone (Sir William Cash) do similar things: detailed, painstaking and incredibly valuable work that is done unseen, upstairs in the Committee corridors.
Does my hon. and learned Friend agree that under section 2, they all came in almost entirely? There was some primary legislation, but it was almost entirely done through statutory instrument, and against the background of the undemocratic process that took place at the Council of Ministers.
I am very grateful to my hon. Friend, the Chairman of the European Scrutiny Committee, for that point. I believe he has been a member of the Committee since 1985 and has chaired it for almost as long, but not quite. I served on his Committee, and he has seen thousands of regulations pass through, unseen apart from his work and that of his Committee. Once again, I pay tribute to him for that work.
See below for the link to the full debate:
https://hansard.parliament.uk/commons/2023-05-24
