Contribution
My Lords, I rise to speak in favour of my Amendments 21 and 59, and to support the amendments, to which I have added my name, from the noble Lord, Lord Frost.
Amendment 21 is designed to prohibit ambulatory provisions and dynamic alignment with any foreign law, including that of the EU, which is specifically mentioned in the Bill. Amendment 59 would introduce a sunset clause for regulations under subsections (1) and (2) of Clause 1 for using foreign laws under subsection (7), so that they expire after four years. As explained throughout all the proceedings on this Bill, this is an open-ended measure; it gives sweeping powers to the Minister to make law by decree, including to import and mirror EU laws. That is a very different matter from updating and making safe our own laws. I would like to thank the Minister for his constant courtesy and willingness to discuss these issues, and for making it a pleasure to work on this Bill, though the subject is not to my liking.
The Government justify this approach by referring to the highly technical nature of the Bill and the sheer number of regulations. They seek to reassure us by saying that they will use these powers only when in the best interests of the country. There are good reasons for prohibiting dynamic alignment with any foreign laws, as well as for not allowing ambulatory provisions. I will speak about those first. Not only should we do so to temper the use of the open-ended power proposed for the Executive, which is the subject of constant discussions and of my noble friend Lord Hunt’s eloquent and persuasive amendment today; there are also good economic and trade reasons to prohibit dynamic alignment with foreign laws, including those of the EU, which the Bill specifically mentions.
I would like to mention a few of those reasons. UK law is well tested and brings certainty to businesses in developing goods for market and competing overseas. Here, the Minister is on very strong territory in saying that many of us would be happy with such laws having gone through such a process, without having to go through parliamentary process every time. Our processes operate under a legal system that is celebrated for its expertise, experience and independence. It follows well-understood process systems: evidence-based testing, some scientific assessment, and consultation with consumers and producers alike. So, by the time the goods get to market and are approved, everyone understands what is at stake. They know the laws and they have been consulted on them; they trust the science and the evidence base.
However, laws and regulations made elsewhere under a code-based system—I refer particularly to the EU’s—are often based on input from officials who are remote from the area of law they are making. With the EU, there is the danger that we are importing anticompetitive laws because, as has been pointed out—including by one of the current President’s economic advisers—EU laws are protectionist. The EU has a different economic system, which was designed by the French to lock in, for very good reasons, the German economic growth that was expected after the Second World War. I can understand the French’s reasoning. They have a centralised command-system economy, which may work for France. So there are very good reasons not to import, on a dynamic basis, laws which are protectionist.
In Committee, I gave examples of where these laws add cost, drawn up by EU economists. They would also mitigate—some economic law lawyers will corroborate this—against our free trade treaties with other trading partners, such as the CPTPP. These are reached on the basis of mutual agreement over standards, which are subject to conformity assessment and independent dispute arbitration and regulation. If we are going to mirror—and mirror dynamically—one set of laws, particularly those of the EU, we may be increasing costs and changing standards, and be in breach of our agreement with the CPTPP.
I turn briefly to why we want a sunset clause. There are very good reasons for having sunset clauses. They bring benefits to legislation, and they give Parliament the chance to consider its merits after a fixed period, which is especially needed for a law imported by statutory instrument. They involve the user in the regulatory plan: for instance, they know that the law in question is going to be introduced on condition that it will be assessed, and that involvement can institute behavioural changes. A sunset clause helps to safeguard democracy and bring legal certainty. It makes clear in legislation what is subject to expiry, when, and under what conditions. Professor Helen Xanthaki, at UCL, has pointed out that sunset clauses improve the quality of legislation and they
“serve as tools of clarity, precision and unambiguity; and as tools for efficacy”.
For these reasons, I ask the Minister to consider my amendments and the others in this group. They open up this measure, and require any Government to be more open, broadly, to foreign laws, ensuring that any laws we do import are subject to a sunset clause and that there will not be dynamic alignment, which goes very much against the transparency and clarity that are the hallmarks of good legislation.