16
Examination of witnesses
Lord Callanan, Beatrice Kilroy-Nolan and Chris Carr.
Q1 The Chair: This is a formal evidence-taking session that is on the record and is being webcast live. We will send you a copy of the transcript of the session for the amendment of any errors, and it will be put on the public record in printed form and on the parliamentary website. The session is scheduled to last for an hour, and we may wish to ask for further supplementary evidence in due course. Do you want to make any introductory statements, or are you happy to skip on to the questions?
Lord Callanan: I will just introduce the two Cabinet Office officials who are with me. Beatrice Kilroy-Nolan is director-general of trade and Brexit opportunities, and Chris Carr is director of the Brexit Opportunities Unit.
The Chair: Welcome. We are looking forward to hearing your evidence. We will focus, as before, on the relationship between Parliament and the Executive, and on the scrutiny of this particular piece of legislation. I will open with a general question.
The Bill has been suffering some wide-ranging criticism both in Parliament and outside in informed academic circles. We produced a report, which I am sure you will have seen—you may not have read it, but you will have seen it—about government by diktat. In the debate, your colleague Lord True rejected our recommendations about skeleton Bills and said in the debate that the Government bring forward legislation following rigorous internal scrutiny. It would be helpful if you began by telling us what rigorous internal scrutiny was undertaken in relation to the Retained EU (Revocation and Reform) Law Bill.
Lord Callanan: I can talk about both internal and external scrutiny, if that is helpful. We announced on 16 September 2021, with further detail on 9 December, reviews of both the substance and the status of retained EU law. Those reviews concluded with the need for this legislation to reform it. The Bill team, as you would have expected, have conducted an extensive programme of legal engagement internally, including engagement with legal experts from the House of Commons Library, the House of Commons legal counsel for European and international law[1] and, of course, the National Archives.
Externally, the Bill team has engaged with various constitutional and retained EU law legal experts, think tanks, external legal firms and others, and there has been lots of other engagement too, as you can imagine. Clearly, we have also spoken extensively to the devolved Administrations on their role. This has been the result of that engagement.
The Chair: If internal scrutiny was as thorough and as far-reaching as you suggest, why did the Regulatory Policy Committee red-rate the Bill?
Lord Callanan: It did so, because it is very difficult to put an overall impact cost on the legislation, given that it covers so many different areas. Clearly, if there are extensive policy changes coming from some of the delegated powers that are taken in this Bill, the Regulatory Policy Committee will look again at those changes and produce a more detailed estimate. However, given the powers in this Bill, it is quite hard for it to do that. It is standard practice, therefore, to produce a red rating.
The Chair: Just to be clear about that, you are saying now that if there are policy changes—we will come back to what we mean by “policy changes” in a minute—that have significant extent, they will be accompanied by an impact assessment at the time they are brought forward.
Lord Callanan: Yes, indeed.
Q2 Viscount Hanworth: The Delegated Powers and Regulatory Reform Committee has expressed significant alarm about the shift of power from Parliament to the Executive. There are also these sunset provisions that seem to be exacerbating the situation. Do you understand the cause for concern? In particular, we understand that by the end of 2023 a lot of clauses will drop away, and there seems to be no guarantee that the redundant law will have been scrutinised. There will be considerable danger of laws dropping away. How do you answer that?
Lord Callanan: Of course there are a number of provisions of retained EU law that are no longer operable or no longer adequate. If they drop away, that would be a good thing for the body of law in the UK.
Viscount Hanworth: How has that judgment been made?
Lord Callanan: Every department is now looking at those provisions, looking at their body of retained EU law and drawing up a plan. As I said, there are some bits of it that are now legally inoperable. It was given a special status on Brexit and we no longer think it is appropriate that it should have that status. It is indeed proper to conduct a rigorous analysis of that legislation and see whether it requires changing, modifying, repealing or whatever. If we produce substantial policy changes, of course there will be an impact assessment of that, and any changes will come to Parliament, in a similar way to the way the original imposition of EU directives came through to Parliament, of course.
Viscount Hanworth: It is entirely in the purview of the department as to whether there should be an impact assessment.
Lord Callanan: No, it is not a decision of the department as to whether there should be an impact assessment. Chris is director of the unit, so he will correct me if I am wrong, but the decision is that if there are substantial policy changes producing an impact on business in the outside world, we will ask the RPC to scrutinise the impact assessment associated with the legislation. If they are effectively just replacing the legislation with something broadly similar and no impact is identified, there would be no point in producing an impact assessment.
Viscount Hanworth: The legislature has no means of identifying the issues or the laws that it imagines are important. It is entirely your judgment.
Lord Callanan: It is the judgment of Ministers.
Viscount Hanworth: Okay. That is what concerns us.
Lord Callanan: It is not my personal judgment.
The Chair: Has it finished proceeding in the Commons now?
Lord Callanan: We have gone through Committee and it still has go through Report.
The Chair: What changes, if any, have the Government taken on board as a result of criticisms made in Committee?
Lord Callanan: Looking at the list of amendments, a number of government amendments were passed, but none of the opposition amendments were accepted by the House of Commons.
The Chair: Perhaps your official could just tell us what changes have been made to critical areas of the Bill, to inform our discussion. I mean significant ones, as opposed to just drafting.
Lord Callanan: So far, there have been only technical changes to the Bill. There have been no significant changes.
The Chair: There have been no substantive changes. We are sailing on as before, unchanged.
Lord Callanan: Yes, so far, but we have not got to Report yet.
Q3 Viscount Hanworth: What will happen to things that evade your attention? There are things that can drop away without anybody being aware of them in the first instance. What is the fallback mechanism when something has been ignored that ought to have been fielded?
Lord Callanan: The answer is not to ignore something that ought to have been fielded. We are conducting an extensive programme of work internally with every department, with the help of the National Archives, to identify every piece of retained EU law. We have published a dashboard containing something like 2,500 pieces of law. We think we are just about there but, of course, we are continuing to work to make sure that every last piece is uncovered.
Viscount Hanworth: In spite of the magnitude of the task and the limited resources, you are nevertheless confident that you can take charge of it all.
Lord Callanan: It will clearly be a challenging task, but it is one that we are prepared for.
Q4 Lord Lisvane: Minister, can I continue on the sunsetting provisions? This is a very odd way to handle repeals; Professor Barnard talked about “slash and burn” in front of the Commons PBC. Whose bright idea was it?
Lord Callanan: It was a collective government decision.
Lord Lisvane: Yes, but you and I know that these things do not just spring fully formed into the minds of Ministers. Somebody must have thought this was a good way of solving this particular technical problem.
Lord Callanan: Given your vast experience, you will know that when legislation is dreamt up, normally one particular department will come up with it, No. 10 will have its say, the Treasury will have its say. There is a write-round process. It is an iterative process as legislation is developed within the Government, and it then becomes the collective responsibility of the whole Government. There is not necessarily one individual I want to finger as being the genesis of this.
Lord Lisvane: Mr Rees-Mogg escapes on this particular occasion, does he?
Lord Callanan: At one stage, Jacob Rees-Mogg, when he was a Minister, had responsibility for this legislation, both in his role in the Cabinet Office and in his role in my department. He is no longer a member of the Government, but the legislation continues.
Lord Lisvane: This is not about policy. This is about the technical utility of proceeding in the way you are. Did Parliamentary Counsel express a view on this?
Lord Callanan: Parliamentary Counsel have drafted the legislation, as they draft all legislation.
Lord Lisvane: They draft according to instructions, but they respond to views or express views about the vehicle that is used to achieve ministerial aims.
Lord Callanan: I have not seen any correspondence from them to that extent. I do not know whether Beatrice or Chris know of any internally. It is a long-standing government convention, of course, that we do not publish internal legal advice, but in legislation that I have been closely involved with, normally the views of the OPC, as an expert body of drafters, are taken extremely seriously.
Lord Lisvane: Picking up on Lord Hanworth’s questions, at the end of 2023, if that is still the date—
Lord Callanan: That is the date in the legislation at the moment.
Lord Lisvane: —two things might happen that could be of concern. One is that something falls off Professor Barnard’s cliff edge and there is no opportunity for Parliament to take a view on whether that was a good thing to happen. You answered that in response to Lord Hanworth.
Lord Callanan: The only additional point I would make on that is that, again, as you will know through your experience, if Parliament wishes to have its say on any piece of government business or legislation, there are many ways and devices for it to do so.
Lord Lisvane: Yes, indeed.
Lord Callanan: I am sure that if there is a significant piece of legislation that Parliament does not want to see fall away, it will make its position very clear, both in the House of Commons and, as I know to my cost, certainly in this House as well.
Lord Lisvane: Of course, you need the basis of information in order to be able to take that view. The difficulty is that you have so many pieces of legislation that will run into the buffers or fall off a cliff—whatever metaphor you want to use.
Lord Callanan: That is why they are in the form of the dashboard that we published in June. That is being constantly updated.
Lord Lisvane: The other fate, as it were, of a piece of legislation might be that it falls off the edge by accident and that, on this occasion, the dashboard does not get it right. What would you do? Would you remake that instrument? Let us hear a plan B for some of this.
Lord Callanan: Our intention is to make plan A work and not to have a piece of legislation sunset accidentally, as it were. In the unlikely event of such a thing occurring, if the power exists in the original primary legislation, which is a big question mark, we could certainly revisit it. As much of this is, by the very nature, EU-derived legislation, sometimes there are no equivalent primary Acts in the UK that allow us to legislate in that respect, unless the powers of this Bill would still carry on after the sunsetting date.
Lord Lisvane: Unless it was originally made under 2(2), presumably.
Lord Callanan: If it was made under 2(2), it is adopted in this country under secondary legislation.
Lord Lisvane: Something done under 2(2), which falls off—
Lord Callanan: It would depend on whether a primary power exists in another piece of legislation in order to revisit that particular subject area.
Lord Lisvane: This Bill does not provide that primary power if there is, as it were, a gap between the floorboards.
Lord Callanan: No, not after the sunset expires.
Lord Lisvane: It is a huge undertaking to have all this legislation, right across all the responsibilities of government. Did you think about doing individual sectoral pieces of legislation? The business managers might not have been very happy about that, but was that an option that you thought about?
Lord Callanan: Do you mean sectoral primary legislation?
Lord Lisvane: Yes.
Lord Callanan: We discarded that, as it would have been a mammoth undertaking. Given parliamentary time, it could have taken potentially decades to do that, and in the meantime we would have ended up with this anachronistic body of law that remains from our time in the EU.
Lord Lisvane: I would not argue with that. In the Commons, the Minister produced this wonderful line in front of the PBC. She talked about a “cross-varietal substance review of retained EU law”. Leaving aside whether somebody ought to be severely punished for writing a sentence like that to begin with, what does it mean?
Lord Callanan: I do not know who said that.
Lord Lisvane: It was the Minister.
Lord Callanan: Which one? It does not matter really. It means precisely what we are doing, which is producing the dashboard and working with every department to make sure that every piece of legislation is identified. Then, in the normal process of legislation being developed, of course, if there is a substantial policy change, there will be a write-round, supervised by PBL, and every variety of government department will have its say on the preservation, change or modification of every piece.
Lord Lisvane: Our ever-efficient staff tell me that Nusrat Ghani was the Minister who said that. A cross-varietal substance review is simply a comprehensive review, is that so?
Lord Callanan: I assume so.
Q5 Viscount Hanworth: When will you be able to present a full and definitive list of all the European Union legislation that will be subject to a sunset clause? Presumably, at the moment, you do not know fully.
Lord Callanan: We are fairly confident that the dashboard, as it exists at the moment, is pretty comprehensive, but obviously we are continuing to trawl through the archives, the various departmental records, et cetera, to make sure that the list is complete and comprehensive.
Viscount Hanworth: Can you give us a date?
Lord Callanan: I do not know if there is a specific date I would want to give the committee, but we are pretty confident that the list we have now is the vast, vast majority.
Viscount Hanworth: Do you have an estimate or an indication as to when it might be completed?
Lord Callanan: I do not want to go as far as giving a specific date, because if a week after that date another piece is identified, we have not met our own deadline, as it were. We think that we have the list pretty much complete now, but it is always possible that some other stray piece of small case law will originate that we have not come across previously.
Q6 Lord German: At the outset, you said there are about 2,500 pieces of legislation in your dashboard. Perhaps you would like to comment on the comments of the National Archives, which found more. If so, how many more?
Coupled with that, could you give us an estimate of the Government’s estimate of the number of instruments that you intend to lay before Parliament between Royal Assent and the sunset date, which we presume is December 2023?
Lord Callanan: I do not think the National Archives have not found more. Beatrice can correct me here. We are obviously working with the National Archives to correctly identify the right number of instruments, the right number of case law judgments, et cetera.
Lord German: They have found more, have they not?
Lord Callanan: I will let Beatrice or Chris come in in a second. I understand that, for the programme so far, the estimates are that it will require about 1,000 pieces of secondary legislation to implement. Does somebody want to comment on the work with the National Archives?
Chris Carr: Yes. I am very happy to confirm that our proactive engagement with the National Archives was precisely to cross-check the reviews we had undertaken with departments against its more comprehensive database. It is correct that its database contains tens of thousands of pieces of European legislation and judgment, but not all those are captured by the definition of retained EU law. It has found some additional pieces of retained EU law—for example, some of those that were made by departments of state that no longer exist—and we have been working with it and departments to update the dashboard.
We originally intended to update the dashboard quarterly, but our first update was delayed by some political events in the early autumn. We are still waiting to update the dashboard and intend to update it quarterly as that work concludes.
Lord German: Just to be clear, the 2,500 figure is where you are at the moment.
Chris Carr: No. The 2,500 figure is what was published on 22 June, with the first version of the dashboard. We now have more pieces than that and we are intending to update the dashboard shortly.
Lord German: You have just said that you have more. How many more do you have?
Chris Carr: We do not have a final number, because we are not ready to publish.
Lord German: It could be 3,000.
Chris Carr: It could be, yes.
Lord German: It could be 3,500.
Chris Carr: I do not think it is that high.
Lord German: This exercise is still going on.
Chris Carr: Yes, and it will continue to go on throughout the next year.
Lord German: In terms of the 1,000 instruments that the Minister just mentioned, there is only one direction the number will go in. It will get bigger rather than smaller because of the number of new pieces of legislation that you are finding. How much bigger? I am not asking you to justify that.
Lord Callanan: It will depend on what areas the additional measures are in. By the very nature of the fact that there are 2,500 pieces that we think translate into a number of about 1,000 SIs, when work commences on producing those SIs, the number might well fall. I recall that during the European Union (Withdrawal) Act’s SI process, the number fell quite substantially from the initial estimates.
Lord German: I am just trying to get hold of the workload there will be in the coming year, with the number of pieces of legislation not yet completed and the amount of work that you are expecting Parliament to have to deal with. The issue that would help that, of course, is if the power to preserve was used extensively by Ministers. However, the power to preserve requires you to know what it is you are preserving. If you are continuing to find pieces of legislation, the powers to preserve will be very tricky to apply. Is the problem with helping Parliament to deal with it all therefore that you are actually dealing in the unknown of the unknowns?
Lord Callanan: As Chris said, we are endeavouring to produce a substantial, definitive list as soon as we can, and that work is continuing. In parallel, we are continuing to draw up a programme of secondary legislation in the individual departments to implement any changes that they think are desirable. That will come to Parliament for decision.
The Chair: What Lord German is driving at is that there is a work programme going on to identify these. At some point, we will know how many and what portion is retained. What date is the eagle likely to land? When will the work programme come to an end to say, “We’ve done the work programme and this is what we think it is. We’re not committing to it, but we have a broad idea that this is the number and this is what we are retaining”?
Lord Callanan: Work is already starting to implement some of the changes that are required. There are a number of pieces of legislation already in front of Parliament—the Procurement Bill, the Financial Services and Markets Bill, et cetera—to implement many of these provisions.
Two things could happen in parallel. We will continue with the process of identifying the last few pieces of retained EU legislation that are caught by the definition, but the departments are already commencing work on producing the required instruments.
The Chair: There is no date in mind.
Lord German: Forgive me. As we just heard, 500 is not an exceptional figure, and it looks like it could be exceeded. The percentage of 500 out of 2,500 is more than just a few.
Lord Callanan: Yes, but look at the differences of scale. Many of these are quite obscure and relatively small pieces of case law or judgments.
Lord German: We are going back to the unknown of the unknowns. If you do not know what they are, you cannot say that they are miniscule. We just do not know. We are hearing so far that you are not able to tell us what the programme will be, because there is no definitive list as yet, because there may be more and we do not have the preservation work done completely. Parliament will really just be at the mercy of huge amounts of work, and the danger, of course, is that it will try to fast-track it as much as possible, but I leave that to the next question.
Q7 Lord Rowlands: Good afternoon. What assessment have departments made of how much retained EU law will simply be revoked, how much will be revoked and replaced, and how much will be replaced with what is called an alternative provision?
Lord Callanan: That is the process that is going on at the moment, as every department is assessing the pieces of retained EU law that fall within its jurisdiction. When they have done that, they will be able to produce information for Parliament and the public about how many pieces of secondary legislation they think will fall out from that to repeal, revoke, renew, et cetera.
Lord Rowlands: Will we have any idea what this assessment is before this Bill is carried through? Will there be some opportunity before the Bill is passed, so that we will know what assessments have been made?
Lord Callanan: The Bill will come to Parliament in the normal course of events, when it is passed from the House of Commons. I would guess that that will be in the first few months of next year. I do not have a definitive date for that yet. The work in the departments will not be completed by then.
Lord Rowlands: We will not even know how much significant European law, for example, such as on working rights, environmental law and food and safety law, will be kept, changed or altered before the Bill is passed.
Lord Callanan: No.
Lord Rowlands: You are asking for a blank cheque.
Lord Callanan: We will not have a definitive list of measures, but as departments conclude their work we will keep Parliament updated as regularly as we can on the progress of those discussions.
Lord Rowlands: Ministers have repeatedly said that they do not intend to change fundamentally the working rights legislation or the environmental law legislation. How will that be assured in this Bill? How will you assure the House, through this legislation, that these fundamental changes, which Ministers say they are not going to make, will not be made?
Lord Callanan: I am sure we will have these debates when it comes to the legislation, but a broad-brush statement is not the same as confirming the policy on an individual area. We certainly do not intend any diminishing of standards in these areas, but it is for the individual policy Ministers and the individual departments to make their individual decisions on that.
Lord Rowlands: In these major areas, whatever else we might condemn about the way European law was made, all of us can remember huge consultation processes before the legislation was brought before both Houses. In this Bill, there is not a single reference to any formal consultation. If you want to alter any significant area of European law, do you intend to consult with those who are affected by it?
Lord Callanan: I would disagree with your statement that there were huge areas of consultation when EU law was brought before these Houses. As someone who was involved in the EU side of making EU law for a number of years, most of it was presented to Parliament as a fait accompli, with very little ability to influence the changes.
Lord Rowlands: That is the other point I made. We realised the peremptory nature of the way European law was passed through Parliament, but before that happened, before that law came before Parliament, there were enormous amounts of consultation on the issues of working rights or environmental law, before the law was drafted. Will you have any form of consultation if you alter or amend significant areas of European law, such as working rights, environmental law, or food and safety?
Lord Callanan: My point was that I do not agree that there were enormous amounts of consultation before those laws were presented to Parliament.
Anyway, going on to the second part of your question, yes, of course. In many of the pieces of primary legislation in this area, there are already provisions requiring a department to consult before changing, modifying, repealing, et cetera, these pieces of retained EU law. It is normal practice across a whole range of departments for them to consult stakeholders in any case. I would expect that in most cases there will be extensive consultation with various stakeholders.
Q8 Lord Lisvane: As this process proceeds and the various fates are allotted to individual instruments or individual provisions—revoke, revoke and replace, or alternative provision—I heard you say a moment ago that Parliament would be kept informed. What vehicle did you have in mind for doing that?
Lord Callanan: The vehicle, of course, is that the legislation will be published on the dashboard. As individual departments and Ministers are looking at their particular policy areas, I have no doubt that they will want to update Parliament in the normal course of events, when Ministers are answering questions, et cetera, about the course of their discussions. The previous question already referred to some broad-brush commitments that have been made on certain pieces of legislation by Ministers.
Lord Lisvane: The main vehicle will be the dashboard. Anything more than that will be subject to ministerial discretion.
Lord Callanan: Yes, inasmuch as everything that the Government say is always subject to ministerial discretion. In relation to my policy areas, I answer questions regularly in this House. Commons Ministers will do the same in their own House as well.
Lord Lisvane: I am thinking of information that is offered rather than which is provided in answer to questions, but I take the generality of what you are saying.
The Chair: Giving particular powers for scrutiny of alternative provision is based on the phrase “that it may change the arching objective of a policy”. Does that not mean that the Government have to accept that they are making primary legislation, which should go through the normal scrutiny, by secondary legislation?
Lord Callanan: If the secondary legislation as introduced on retained EU law in the first place had an effect on primary legislation, further modifying or changing would do so too. That would be my stab at that.
Chris Carr: If I have understood the question correctly, the power to replace retained EU law with a new UK instrument is not applicable to primary legislation. It can be used only to replace secondary legislation. That is the only power that allows a change in policy. The power to restate, which is operable on primary legislation, does not allow for a change in policy.
Q9 Lord De Mauley: Sir Stephen Laws suggested to the Commons committee that the Bill simply included conventional methods of scrutiny and that it was for Parliament to decide how to use those methods effectively, referring to Parliament needing a really rigorous triaging system so the most politically salient instruments could be identified. Do you agree, and if so, what do you think that system might look like?
Lord Callanan: Ultimately, how Parliament chooses to exercise its power is of course a matter for Parliament, but in the legislation we are suggesting a similar method to the triaging system that was produced for the European Union (Withdrawal) Act, with parliamentary scrutiny of particular pieces of negative statutory instruments, for instance, suggesting that they be upgraded to positive if the committee thinks that. That system worked quite well for the large volume of SIs that we introduced under the European Union (Withdrawal) Act.
Lord De Mauley: The Hansard Society has suggested that application of a sifting procedure on the Bill will be more challenging than the application of the same procedure under the withdrawal Act. Do you have any response to that?
Lord Callanan: It would be more challenging on the basis that there are probably more instruments and they would be more detailed than under the withdrawal Act, but it is still a system that could be valuable to aid Members in their consideration.
Lord De Mauley: Do you think that is likely to generate a satisfactory level of scrutiny?
Lord Callanan: Yes, it would.
Q10 The Chair: Just back on triage for a moment, I hope the Government are not going to resort to the idea that discussion of the statutory instruments arising under this Bill would lead to everything being gummed up. Every week, we see a huge chunk of SIs that are completely uncontroversial. If you asked our brilliant staff, they would say that about two-thirds of the stuff is uncontroversial. Nobody is suggesting that the triage will be tougher than it is now. It is merely that a lot of the stuff could be swept through quite quickly.
This afternoon we are trying to get at those that are not like that. What about those that really have much more serious implications for the country? How are we going to identify them, and how will you make sure that Parliament is informed about them? That is what we are trying to get at with triage. We are not saying, “We’re going to try to gum up everything”, because we are not going to do that. That is not our baby.
Lord Callanan: That is a fair point. Some sort of triaging or sifting mechanism, as we are suggesting, would be sensible. Ultimately, of course, it is for Parliament to determine its own procedures. I would hesitate to instruct it on what it wishes to do, but we have suggested a mechanism within the Bill.
Q11 Lord German: To follow on from this very point about the way in which Parliament can be helped to deal with these matters, the Hansard Society, as you just heard, told us that what you are proposing would be more difficult than the current system of sifting, triaging or whatever. It said, “If we are delving into matters of labour relations, environment law or citizens’ rights, the backdrop of campaign activity which the committees would likely face around this would be much, much greater”. There will be pressure, because we are dealing with fundamental, big parts of our policy framework. The issues themselves will be of great political salience, and I expect you would agree that some of them will fall in that direction.
How much more information and documentation will you be able to provide Parliament in order for it to judge what it will hear externally, as well as internally, about the Government’s position on that matter? What will you be doing to ensure that the Government’s position is well understood? You say that it is 1,000, but it may be more. We do not know how many of those will be politically salient, but it could be 300 or 400. What more will you be able to do to assist us to understand the Government’s position?
Lord Callanan: The normal procedures with any statutory instrument are that extensive explainers are produced alongside it and along with any impact assessments that are required. As I said, if there is a significant policy change, in the vast majority of cases I would expect there to be full consultation with various stakeholders. Our internal team here in my department, in BEIS, is working with PBL, the Whips and others to make sure that there is a constant flow of legislation coming to Parliament, rather than it all arriving in one big lump. We will endeavour to smooth the process out as much as we can, but it will clearly be a challenge on such a relatively short timescale.
Lord German: The impact assessments are a matter of concern to this committee, because they have been known to appear not at all or even after the piece of legislation has been dealt with by Parliament. That is very concerning, because as we are dealing with political issues, political saliency and big policy shifting, we need to know the Government’s position. Can you give us a guarantee that, where these things occur, there will be an impact assessment alongside the instrument itself that we are discussing, so that people will know exactly what the impact will be?
Lord Callanan: As I said, if major or significant policy changes are involved, we would expect an impact assessment to be produced alongside that. We would expect it to be scrutinised by the RPC.
Lord German: Could you say that it will be on time and that it will occur with the legislation itself rather than later or not at all?
Lord Callanan: I cannot give a guarantee on behalf of every department, because I am sure you will have some examples in front of you of where departments did not produce impact assessments. As Ministers, we used to be responsible for RPCs, and Chris is also responsible. We were very clear with the department all the time that they needed to produce impact assessments. It is a basic principle of better regulation that they should, but clearly some Ministers have the right not to produce one if they wish and to explain that decision. Certainly, some Ministers chose to do that. That is bad regulatory policy, but some did choose to do that.
Lord German: I presume there is a Minister replacing the duty that you previously had. Do you know who that is at the moment?
Lord Callanan: It is Nus Ghani.
The Chair: At the moment, the Bill has no requirement for impact assessments, so we are riding on good will.
Lord Callanan: We never state in primary legislation a requirement for impact assessments. You are into your previous inquiry about the need for better regulation. I am saying that, as a principle of good regulation, where there is significant policy change involved, departments should produce an impact assessment and it should be scrutinised.
The Chair: You have seen our report, Losing Impact, which we have just produced. It gives your officials 30 pages of where it has not happened, where stuff has been introduced and the impact assessment arrives six months later. How should we have confidence in that?
Lord Callanan: I agree with you that, where that has happened, that is bad practice. I am not saying that we are perfect in all this, but in general we get it right and departments produce impact assessments that are usually very good pieces of work that aid parliamentary scrutiny. It does not happen in every case, but, as a general principle, it should happen.
Q12 Lord De Mauley: I am not sure we entirely agree with what you have just said. Perhaps you could explain more generally how departments will support parliamentary scrutiny of the exercise of any of the powers in the Bill.
Lord Callanan: I am sorry, but I am not sure what you mean by that.
Lord De Mauley: You might, for example, have produced impact assessments alongside each instrument, but you have already implied that you are not going to do that.
Lord Callanan: We are not going to produce impact assessments alongside measures that do not substantially change the policy from where it is now, because there would be no impact. There is a de minimis provision in the better regulation framework.
Lord De Mauley: Each instrument that makes a material change will have an impact assessment.
Lord Callanan: As long as it is above the de minimis level, yes.
Lord De Mauley: The Bill abolishes the published draft procedure on the ground that no tangible benefit has been identified as a result of imposing this extra opportunity for scrutiny. On what evidence was that conclusion reached?
Lord Callanan: Which provision do you mean?
Lord De Mauley: It is the published draft procedure.
Lord Callanan: I do not know what you mean, sorry. My experts are looking quizzical as well.
Lord De Mauley: We will move on.
Q13 The Chair: The Hansard Society, in their evidence to us a couple of weeks ago, talked about legislative reform orders as a way of improving scrutiny on certain key aspects. Would you like to tell us whether these form any part of the Government’s thinking?
Lord Callanan: I am sorry. I am not familiar with the Hansard Society’s evidence. I have not seen a summary of that. What were they referring to?
The Chair: This is what the Hansard Society said about this: “Although it takes away on that side, it does include sifting in respect of three of the powers of the Bill. It also makes provision for legislative reform orders, which are essentially the super-affirmative process. It is the most stringent of enhanced scrutiny procedures that Parliament has available and is, of course, drawn from the Legislative and Regulatory Reform Act 2006”. I just wondered where that fitted into the government thinking, if at all, having been triggered by the Hansard Society, which has forgotten more about this than I will ever know.
Beatrice Kilroy-Nolan: I am sorry. I am still not entirely clear what the question is.
The Chair: The Hansard Society, in their evidence to us two weeks ago, said, as we discussed scrutiny as part of the triaging discussion, that legislative reform orders offer an enhanced procedure for scrutiny and suggested that there were opportunities in the Bill to use legislative reform orders. That could be a way of bridging the gap that we feel exists between the importance of what is being done and the scrutiny that Parliament is able to give it.
Chris Carr: Our experience is that legislative reform orders have not been used very often, but the Bill contains a provision to allow them to be used on retained EU law. I think that is what you were referring to. The provision is there. It is a matter for Ministers to choose whether to use them as part of the reform programme.
The Chair: It is a ministerial decision.
Chris Carr: It will be, yes.
The Chair: Thank you. That does exist.
Chris Carr: Yes.
The Chair: You understand that we are concerned by how much Parliament will have to take on trust in this Bill because of the fact that we are sailing into the unknown. Clause 16 enables technical updates, but subject to the negative procedure only, because the Explanatory Notes to the Bill say that this will not be used for significant policy changes. How are we going to enforce that?
Lord Callanan: The power to update has been drafted to ensure that it is as narrow as possible, while upholding the policy intent of the Bill. Clearly, what is considered an appropriate amendment for the purpose of changes in technology or developments in scientific understanding, et cetera, will be at the discretion of UK and devolved Ministers. However, this is not intended to allow for broad application of this power. It can be exercised only where a change in technology or development in scientific understanding has occurred.
The Chair: It is, “Trust us”. There is no ability to challenge and say, “Hang on. This isn’t technical”. We have had some examples of where things that might appear technical might not become technical further down the road.
Lord Callanan: It would be at the discretion of relevant national authorities to ensure that they are satisfied with the way the power is used in those particular cases. The power is intended only for technical updates.
The Chair: You will understand that we are nervous about this Bill and what it represents: a further mission creep, on the part of the Government, that we have been commenting on for the past year. We will be watching with interest how things develop in the last stages in the Commons. Clearly, from the evidence we took a couple of weeks ago, the sunset clause is the area that has caused the most concern, in the sense that stuff could just drop off the edge of the cliff never to be seen again.
Thank you very much for trying to answer our questions. We are grateful to you and your officials for coming along this afternoon to talk to us.
Lord Callanan: Thank you. I hope it has been helpful.
