This week, after a last minute U-turn by the government, the House of Lords debated the government’s Retained EU Law (Revocation and Reform) bill, designed to remove vast swathes of EU derived law from the statue book. Behind the courteous conventions, it was clear that many peers were very angry, and they inflicted a series of critical defeats on the government.
Peers queued up to express their anger. Lord Wilson (a former Cabinet Secretary) said,
“It is the most terrible experiment with government and an enormous learning experience for the Government. It will not be done quickly, and what will slow it down is not the Civil Service but the huge volume of work involved in it. We are dealing with 50 years of complex, detailed regulation that has been put together in consultation with vested interests and public authorities and reaches into every household in the country. I tell Ministers on the Front Bench that there are things buried in these 500-and-whatever-it-is regulations that will embarrass them, will have unforeseen consequences and will go wrong. We are in an impossible position.”
Taking back control of our laws
Last September, the government announced its plan to “take back control of our laws”. It would do so with the biggest ever single change to British law. Its first, “sunset” clause, laid down that every British law or regulation which derived from our membership of the EU should cease to exist at the end of 2023, unless a minister had decided to confirm or amend it. This would enable the government to claim that they had successfully honoured the manifesto commitment which got the Conservatives elected in 2019.
Presenting the bill, Jacob Rees-Mogg told the Commons that there were 2,400 UK laws derived from EU legislation. Since then, the figure has risen to 4,918 (at 17th May) and the number continues to rise.
The government was planning to abolish laws that it was not even aware of, creating great uncertainty for lawyers, courts and business.
With the benefit of its large majority, the government got the bill through the Commons. But in the House of Lords it met substantial opposition, and there was growing evidence that the task of reviewing all the laws by December would be impossible (and hugely expensive in civil servants’ time). There was a serious risk that important laws might simply vanish under the “sunset” provision. In March, the government hesitated, and cancelled the bill’s final (report) stage in the Lords. Later they restored it, and it came to the Lords for its final Report Stage on 15th/16th May.
Two days before the Lords debate, Kemi Badenoch, the Secretary of State for Business, launched a bombshell. In an article in the Daily Telegraph, she announced that the government was removing the central element of the bill, the “sunset clause”. She was summoned to the Commons to make a statement, and severely reprimanded by the Speaker for making a legislative announcement in the press before telling parliament.
The changes were fundamental. In place of the sunsetting of all laws, the government would publish a list of the 600 laws it proposed to repeal or change. The rest would remain part of UK law.
The bill comes to the House of Lords
On 15th May, there was general welcome in the House of Lords for the government’s climbdown. However, many peers remained unhappy. They believed that the changes to the bill were insufficient, and had been announced without enough time for proper consideration (the list of laws for repeal or amendment was only published with the day’s agenda on the day of the debate).
They also pointed out that the schedule included significantly more than the 600 laws announced in the Commons. Individual peers who had investigated areas of special interest disputed the government’s claims that the listed laws were redundant or inoperative. Examples quoted included the labelling of gluten-free foods, and environmental impact assessments of agricultural water extraction. Peers suggested that proper scrutiny would find many more such examples, but by then parliament would have passed the bill, and handed control to the government.
Key government defeats
Peers argued that, because of the volume and complexity of the work, the proposed process meant that most decisions would be taken not by the elected Parliament but by civil servants, with little oversight by ministers.
To remedy this, they proposed that a joint committee of both Houses should be created to consider proposed changes. Where that committee decided there was a significant change to UK law, it would have to be presented for debate and approval by both Houses. Three amendments to the bill were proposed to do this. The government opposed all three, but on a vote, all three were agreed with majorities of more than 60. The consequence would, of course, be a major delay in carrying out the plan, and a large new commitment of Parliamentary time.
Amendments were also proposed on specific areas of law. An amendment to require the government to maintain current levels of environmental and food standards protection, and consult relevant environmental and safety bodies on any change to relevant laws was agreed by a majority of 20 votes. But a similar amendment to protect workers’ rights was defeated by a single vote.
When the amended bill returns to the Commons, they may reject these amendments. In that case, a process of negotiation (known as ping pong because the bill is batted back and forth between the Houses) will begin.
But these changes are concerned with fundamental constitutional issues, and the Lords clearly feel strongly on these issues. There is a simple solution. The government could simply withdraw the bill, and leave these laws, which it claims are redundant or unnecessary anyway, unchanged. But the battered Brexit wing of the Party will at least want a symbolic victory on this issue.
The vanity of bonfires
Brexit promised to free British business with a bonfire of burdensome European regulation. An army of civil servants has spent months searching for and reviewing EU derived law. And Parliament has spent long hours debating the bill.
But seven years after the vote, hardly any EU regulations have gone. The bill is now quite different from the one which the House of Commons approved, and most of the regulations which it will remove are irrelevant or trivial.
No British business will benefit from the removal of regulations on reindeer herding in Lapland, or the rights of Venezuelan fishermen to fish off the coast of Guiana. But every firm which exports to or imports from the EU faces new paperwork, regulations and costs as a result of Brexit. And the full new rules are not yet all in force.
But the real battle is about the government’s attempt to take power from parliament and the devolved administrations. Ironically, the unelected House has fought to defend the rights of the elected one. If the Lords succeed in stopping that power grab, they will have demonstrated why we need them.
But what a waste of time, money and political capital: and for what?