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.
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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.