EU legacy laws: Peers in a pickle as consultation is demanded

This is Blog No 13

I have just watched the Second Reading debate of the Retained EU Law (Revocation and Reform) Bill. For anyone interested in our Parliamentary legislative process, it should be compulsory viewing.

The Conservative majority ensured its passage in the House of Commons despite many misgivings from traditionalists who feel that Jacob Rees-Mogg’s plan to revoke or revise an unknown number (probably over 4,000) of EU regulations gives too much power to Ministers.

The Lords are a different matter. On Monday a procession of peers united in a chorus of disapproval as retired senior civil servants, distinguished lawyers and ex-Ministers from all parties queued up to condemn the Bill. This is because among these laws are a host of regulations that provide for consumer rights, safety regulations environmental protection and, of course, employment rights. 

Civic society, business leaders and constitutional experts all oppose the Bill.

In the words of Labour’s Baroness Chapman, “It is no mean feat to unify the CBI and the TUC, industry and environmentalists, farmers and factory owners, twitchers and anglers, doctors and lawyers, national parks and the National Trust, Scottish Parliament and Welsh Senedd, and many, many more…”

Of 60 Peers who spoke, about 50 expressed their opposition, including large numbers of Conservatives.

Here is a brief taste of what they said:-

• Far from creating new high standards, as has been promised by Minister after Minister, the replacement legislation cannot increase standards: it can only keep them the same or make them lower – Lord Fox (LibDem)
• Never before in my time in either House have a Government brought forth a piece of legislation whose legal scope they are unable to define. The Government’s proposal is that this House should give Ministers the power to remove laws without them being able to say which laws will be removed. That is a nonsensical way to govern. – Baroness Chapman (Labour)
• The body of EU-derived law that we have in this country, which is going to be abolished, has been built up and assimilated with the British legal system over 40 years or longer, in close consultation with businesses and communities affected, environmentally and otherwise. To throw it all out overnight will create a huge void in our legal system. - Lord Wilson (former Cabinet Secretary)
• The explanatory memorandum says that the Bill is intended to return lawmaking powers to Parliament—a travesty of language and logic. The Bill empowers Ministers to make laws while leaving Parliament powerless. Baroness Andrews (Labour)
• When we wanted to get our powers back, we certainly did not say, “We will bring undemocratic edicts from Europe and enhance the power of Ministers and increase the powers of the Executive.” That is not what we are here for and not what we should be voting for. Lord Hamilton (Conservative)
• The overarching soundbite seems to be “regulations must be bad, so we have to get rid of them”, but “regulations” is basically another word for protections. Indeed, regulations can be drivers of growth in themselves; for example, environmental regulations can drive investment in skills, innovation and job creation. They protect every facet of our lives. In the words of the song, “you don’t know what you got ‘til it’s gone”. Baroness Altman (Conservative)
• What we face is a marginalisation of Parliament and an accretion of power to the Executive. - Lord Cormack (Conservative)

And many many more. Click HERE for more quotations from the debate

In short, whilst the Lords will not defeat the Bill, they will fight hard to amend it. They see it as Ministers taking entirely to themselves what should happen to these laws. They all lapse and leave the relevant issues in a form of legal no-mans-land on December 31^st, 2023, unless Ministers have revised them – but in the direction of deregulation or reducing administrative burdens – and without Parliamentary scrutiny. Fervent Brexiteers like Lords Hannan and Frost merely respond that the UK Parliament had very little influence when the EU passed them in the first place; even a few (very few actually) were enacted against the will of the UK.

So here is the nub of the issue.

All their Lordship’s sound and fury Is based on a demand that Parliament – and relevant stakeholders be consulted on any change or abandonment of the myriad laws and regulations on this enormous agenda. Apparently, DEFRA alone has 1781 (the figure increases every week as they ‘discover’ more…) regulations to review, and as many of these are important environmental safeguards, thousands of stakeholder organisations might wish to be consulted.

This all sounds reasonable, except for the fact that Parliament is in a complete mess when it comes to knowing when to expect a consultation and when not. In general, Ministers consult on policy proposals and the High Court will sometimes rule that there is a common law requirement to do so. But, in general, we do not in the UK place a published Bill through a process of pre-legislative consultation and rely loosely on custom and practice as to whether to issue a ‘call for evidence’, conduct a full-scale consultation or merely to have some informal ‘stakeholder engagement’.

We must do better. We need a framework of regulation for consultations – with an independent body to enforce a set of standards. In The Politics of Consultation (2018), Elizabeth Gammell and I proposed an Office of Public Engagement, and the time may be right to revive this idea.

Good luck to those who have opposed the Retained EU Law Bill in the Lords for they are surely right to call for a greater Parliamentary role in determining what happens to the thousands of EU-originated regulations that still lie on the statute-book.

But there is a need to do more than just demand better consultation as if it is a cure-all.

Someone needs to get a grip and for Parliamentarians in both houses to adopt a more coherent process.

Some of us are happy to help

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