My Lords, I am grateful for the comments that have been made. It might make sense if I start with Amendment 45, tabled by the noble Lord, Lord Fox, which would remove this clause from the Bill altogether. I am very glad that he will not move it; I think that is the right approach.
The powers to revoke or replace are needed to enable the Government to overhaul EU laws in secondary legislation across different sectors of the economy. We know that some of them are outdated or unduly burdensome. Better and simpler regulation, perhaps with less complex bureaucracy, can increase productivity growth, which has been slow and a huge problem for our economy. It can also help enterprise and assist SMEs, which suffer more than anyone else from red tape.
We worked together in this House on the Procurement Bill, which was an important step in getting rid of retained EU law and helping small business. We can do so much more without losing necessary protections. I speak as someone who has worked in business; businesses are always being blamed for liking regulation, but there are changes that we can make.
The REUL dashboard has identified over 4,800 pieces of retained EU law across 16 departments. Some will be repealed by the revocation schedule, as we have heard today; others reflect—I think this is important—international obligations, which will remain in place. There are many areas where reform can be beneficial and bring about the post-Brexit boost that we have promised. However, the Government’s retained EU law substance review in 2021 highlighted a distinct lack of subordinate legislation-making powers to remove retained EU law from the UK statute book, because in the past we have relied on Brussels for regulatory powers to drive change. It is now vital that we have a power capable of acting on wide-ranging retained EU law across different policy areas.
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Had the UK never been a member of the EU, many areas that the substance review identified would already have had similar powers, comparable to those that exist in non-EU policy areas. The lack of powers is an oddity resulting from our former EU membership, and it is essential that we take a power which plugs the gap. Without the necessary powers for retained EU law reform, this legislation risks becoming an immutable category of law on our statute book, adversely affecting the UK’s economy and competitiveness. Removing Clause 16 from the Bill would be irresponsible. It would significantly damage the UK’s legislative dynamism and potentially hinder the UK’s ability to regulate adequately.
I move on to Amendment 40, tabled by the noble and learned Lord, Lord Hope of Craighead, who has, to add to comments made earlier, done so much to contribute to the debate on this Bill. This amendment would insert a new subsection into Clause 16, which, when read with the noble and learned Lord’s other amendments, would require Clause 16(1), (2) and (3)
to be subject to novel scrutiny provisions under Part 3 of Schedule 4. These take the form, as we know, of an enhanced sifting procedure. That is not dissimilar to the super-affirmative procedure. We have already debated some of these issues in the first and third groups of amendments, but perhaps I could make a couple of brief points.
The sifting procedure has been drafted as a safe-guarding measure for these powers. It allows for additional scrutiny of the exercise of the powers within Clause 16 while retaining the flexibility of using the negative procedure where there are good reasons for doing so. There are a lot of SIs that can be negative. To confirm, the sifting procedure will apply to instruments that Ministers propose to make under the negative procedure and the draft affirmative procedure where regulations confer a power to make subordinate legislation or create a criminal offence—for example, under Clause 16(2) —or where alternate provision is being made under Clause 16(3).
The sifting procedure, I would say from recent experience, is a tried and tested method of parliamentary scrutiny which delivers good results for everyone and draws on the expertise of our parliamentary committees. The procedure will correspond with the sifting procedure under the EU withdrawal Act and the European Union (Future Relationship) Act 2020. Requiring that all such legislation be subject to novel and onerous scrutiny would not be a good use of parliamentary time and would result in delaying departments delivering their REUL reform plans. My noble friend Lady Noakes made a good point when she said that, whatever we do, we need to be careful about embarking on novel procedures, bearing in mind the position of the two Houses of Parliament.
Amendment 41 in the name of my noble friend Lord Lucas seeks to remove subsections (5) and (6) from Clause 16 altogether. We have sought to ensure that the powers to revoke or replace are appropriately limited and cannot be used to add to the overall regulatory burden for that particular area. I was asked by the noble Lord, Lord Fox, how we define “regulatory burden”, and we had a discussion about this in Committee. In practice, this means that the replacement legislation cannot add additional regulation over and above that which is already imposed by legislation in that particular subject area.
The Bill contains a non-exhaustive list of what a regulatory burden is, and therefore the factors the Minister should consider, or have regard to, in judging whether regulations add to the overall regulatory burden. They include financial costs and administrative inconveniences. It will be for the relevant Minister or devolved Government to decide whether they are satisfied that the use of the power does not increase the overall burden. It may therefore be possible for additional regulation and higher standards to be introduced through the powers to revoke or replace, as long as the package of reforms does not increase the overall regulatory burden—remember what I said at the beginning about the benefits of better, simpler regulation. I think that this is also easier to enforce; I say that as someone who has worked in a number of sectors where that is very important.
Although removing the regulations that are deemed unnecessary or unsuitable, or consolidating multiple regulations into one, will make life simpler for those affected, it will also be possible, as I said, to add new regulations which are more appropriate to the circumstances of the current time.
My noble friend Lord Lucas said that regulations made under Clause 16(5) and 16(6), which his amendment questions, could be challenged by the courts. That is of course correct, and, like any delegated legislation, I think that it is an entirely appropriate check. We recognise that it will not always be a scientific test to establish precisely what the value of regulatory burdens is or to balance one burden against another. That is why we sought to ensure an appropriate level of discretion for Ministers in the interpretation of Clause 16(5) and 16(6). When doing so, the Minister is required to act reasonably and to take into account relevant factors. That strikes the right balance between limiting the scope of the powers and providing Ministers with a pragmatic degree of discretion in deciding whether the regulatory burden test has been met.
As has been set out in Clause 16(6), the creation of a voluntary scheme, which my noble friend’s amendment also queries, is not regarded as increasing the regulatory burden. The truth is that the restrictions to the powers to revoke or replace in subsections (5) and (6) will help the UK to establish a more nimble, innovative and UK-specific regulatory approach to get on and seize the opportunities of Brexit. Those of us, right across the House, who worked in Brussels were often frustrated; now is the time for us to look in a considered way at our legislative almanac, to make sure that we are moving forward sensibly. To get rid of those subsections would be to open us up to complex and burdensome changes, which might hamper growth and competitiveness and go against other comments that noble Lords have been making on Report. The whole debate has been good, but, for all those reasons, I ask that the amendments are not pressed.