My Lords, Amendment 26 is a paving amendment, so I will speak mainly to the substantive Amendment 48. Much reference was made in the previous two groups to the need for consultation and consideration of various factors and elements before there can be sunsetting. This theme will be taken up; it links to later groups, particularly the fifth group.
Many of us think that this Bill is pretty hopeless. It has been described as revolutionary and, in my case, anarchic, but we are trying to bring some rationalisation and order to the Bill, which is at the moment completely disordered. I referred earlier to it as putting the cart before the horse, in that we have had this Bill in Parliament for several months but no one can say when we are going to get the famous comprehensive list. We understand that officials are still trying to trawl through the regulations so far and decide, with Ministers presumably, into what bucket they should go. You would have thought that all that work on bucket filling would have gone on before the Bill was ever introduced, because surely that is the right way round: you have the policy before you seek the legislative powers to do anything about it. Unfortunately—we all know it is a piece of ideological gesture politics—we have not had that sensible approach. Some of us hope that we will get a sensible approach once the Northern Ireland deal is successfully approved.
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What we have at the moment in Clause 1 is an arbitrary and impractical sunset date with the consequent and avoidable, but not avoided, risk of the disappearance of rules of critical importance to business, consumers, employers and the environment—as we were just discussing—without any adequate consideration or consultation; then conferring an entirely unfettered and unscrutinised discretion to Ministers to disapply or delay the sunset provision, or not. Then there are the wide-ranging powers for Ministers to legislate at will to replace or update retained EU law without any requirement to consult on all these matters.
As was said in the previous group, these matters are of enormous importance to real people out there; people having to work to do what the Government and all of us want them to do—to produce, to try to grow the economy and so on. They do not have a clue what kind of legislative context they will be facing at the end of this year. That creates legal uncertainty and instability, which is the antithesis of what good governance represents, and it will deter foreign investment, as well as domestic economic efforts to grow the economy. What is difficult, even impossible, to find is any policy rationale for all these changes. No assessment has been done of the legal effect of the proposed changes on the regulations concerned.
One problem I alluded to in the first group is that we are not even sure of the scope of Clause 1, and therefore the effect of the sunsetting. The choice of whether EU law was implemented through regulations under Section 2(2) of the European Communities Act, or by amending existing primary legislation, or by creating stand-alone legislation, seems—I will not call it whimsical—not to have been governed by any particular considerations.
We had a little bit of an exchange earlier around that fact that, sometimes, one suspected that there was a Whitehall effort either to promote some domestic project and hide it in the midst of an EU measure or to hide an EU measure that might have been considered unpopular—the Government might have voted for it in Brussels and not wanted to admit as much or whatever. We have a mish-mash of retained EU law, which may or may not have been done under Section 2(2) of the European Communities Act or could have been put in through primary legislation. We do not know whether there was any reasoned consideration as to how this was done. What we have now is a picture that is quite unclear regarding the scope of the sunset in Clause 1.
I think a lot of the amendments that we will be looking at from now on are about trying to bring some order, reasonableness and good governance into a Bill that lacks all those things. Clause 48—sorry, Amendment 48, I am getting ahead of myself; I wish it were Clause 48 —says:
“A relevant national authority must consult … organisations … and … persons, as appear to it to be representative of interests substantially affected by the revocation of”
the instrument concerned, which of course requires the identification of the instrument concerned. There must be at least 12 weeks for consultation. After the responses are considered, the Government—or national authority, because it could be the Scottish Parliament, the Senedd or the Northern Ireland Assembly—should lay a report before Parliament. Then the Government would have to lay out the reasons, what benefits they were claiming from the proposal to revoke the instrument, what representations they had received to the consultation, how the revocation would affect the trade and co-operation agreement and UK exports to the EEA, the effect on the Ireland/Northern Ireland protocol and so on. Also, relevant to the previous two groups, they would have to say whether the instrument afforded any protection for consumers, workers, business, the environment and animal welfare and, if so, how that protection was proposed to be continued if the EU measure was revoked. So there is a list of important factors that the Government would have to lay out to Parliament as to why they were taking the course of action they were proposing.
The last factor that I will highlight is
“a summary of the objectives and effect in law of the instrument and the legal consequences of its revocation”.
Perhaps that would also bring in something that we are going to discuss in a future group: the question of keeping an instrument but without the underpinning of the general principles of EU law, case law and directly effective EU treaty articles such as Article 157 on the Treaty on the Functioning of the European Union. That article is crucial for equal pay claims because it is the one that requires claims to be on work of equal value. The famous Tesco case transformed the ability of women to win equal pay claims. The Minister—the noble Baroness, Lady Neville-Rolfe—in a sedentary position is smiling at me choosing that example, as she used to work for Tesco. Shop staff were often told, “You’ve got no equal pay claim because there isn’t a comparator who is also working in a shop”, but of course the men were working in the
warehouse. It has transformed equal pay claims, and it is crucial to keep Article 157 of the treaty with direct effect. I have digressed slightly.
The legal impact will of course depend on various cross-cutting issues such as whether we are going to keep all this underpinning of EU case law and legal premises, including the supremacy of EU law. I heard a lawyer point out last week that the “supremacy of EU law” is a much-misunderstood term that those who do not like EU law are put off by; it just means a hierarchy of law.
Anyway, I hope I have sufficiently explained why this is an excellent amendment. It is trying to bring some sense into what is, at the moment, quite a chaotic Bill. I hope that it can be supported across the House and by the Government. I look forward to the Minister telling me what a wonderful amendment it is and how he is going to adopt it wholesale. I beg to move.