Retained EU Law (Revocation and Reform) Bill

Written evidence submitted by the Hansard Society (REULB16)

House of Commons Public Bill Committee on the Retained EU Law (Revocation and Reform) Bill

SUMMARY

This submission covers:

· The automatic expiry (sunset) of REUL;

· The broad, ambiguous wording of powers in Clauses 15 and 16 that confer excessive discretion on Ministers;

· The parliamentary scrutiny of the exercise of the powers .

We recommend:

· The redrafting and re-committal of the Bill to facilitate the removal of the 2023 cliff-edge sunset provision . Failing this, extension of the sunset provision to 2026 or preferably 2028.

· Tightening the wording and scope of Clauses 15 and 16 to reduce the extent of ministerial discretion .

· Extending the parliamentary sifting procedure to at least Clause 16, and preferably to all regulations made under the Bill (except for Commencement Regulations).

INTRODUCTION

1. The Retained EU Law (Revocation and Reform) Bill is a framework or skeleton Bill which provides extensive powers to Ministers to decide whether to amend, retain or revoke any of the at- least 2,417 [1] pieces of Retained EU Law (REUL). The Bill itself does not specify the Government’s intended policy changes in respect of any area or piece of REUL.

2. The Bill is constitutionally significant. The EU (Withdrawal) Act 2018 made provision for EU law to continue to have effect in the UK until such time as Parliament decided to change it. The Government states that the main purpose of this Bill is to ‘firmly re-establish our Parliament as the principal source of law in the UK’. [2] However, under the Bill, all REUL will be repealed unless Ministers decide to exercise a power in the Bill to preserve it by 31 December 2023, and Ministers will then have wide discretion to make any law that replaces it.

3. Everything that is not actively saved by Ministers will automatically be revoked on expiry of the sunset deadline. The choice to do nothing and let REUL provisions fall away will not be subject to further parliamentary scrutiny. If the Bill is passed in its current form, Parliament will thus have no further say in whether a piece of REUL is repealed: that will be a matter solely for ministerial decision. The powers in the Bill thus transfer future democratic oversight of any changes to REUL away from Parliament.

4. Skeleton or framework Bills like this inhibit parliamentary scrutiny because the real operation of the Bill and the implementation of its policy objectives will be entirely at the discretion of Ministers once the Bill receives Royal Assent. The powers in the Bill are so broadly drawn that it is difficult to say, other than in the abstract, what the implications of the Bill will be. It depends on how, and how extensively, Ministers choose to use the powers. However, if the Bill is not amended no-one will be able to say with certainty what the law will be at the end of 2023 in any area covered by REUL until such time as Ministers decide to tell us. [3]

5. At a practical level the approach enshrined in the automatic sunset provision is therefore fundamentally flawed, for it introduces an unacceptable level of legal, policy and political uncertainty into the legislative process and diminishes Parliament’s role in determining the future of REUL.

6. The policy objective of reviewing, amending, updating, or revoking REUL is important to the UK’s future regulatory and economic development, as is constitutional clarity about the future status of REUL as part of domestic UK law. However, in our view the policy objectives could be achieved more effectively – and at much less political and legal risk – by the adoption of a different approach to the Bill which prioritises rather than downgrades parliamentary oversight.

1/ T HE AUTOMATIC EXPIRY (SUNSET) OF REUL

7. The automatic expiry provision in Clause 1 is an unusual use of a sunset requirement in legislation. Sunset provisions are typically used:

i) to insert democratic safeguards – including enhanced parliamentary scrutiny – particularly for emergency legislation;

ii) when legislative provisions are needed temporarily, including where the exact length of time for which they are needed is unclear and a review mechanism is therefore required;

iii) when legislative solutions are being trialled and tested or where they may rapidly be overtaken by events.

8. In recent years, as Ministers have sought increasingly broad delegated powers in Bills – particularly in relation to Brexit and Covid-19 - sunset provisions have also been utilised to help secure parliamentary passage of a Bill, particularly through the House of Lords, by inserting a restriction on how long a power can be used for or requiring parliamentary oversight of ministerial action in constitutionally and politically controversial areas through a mandatory review process.

9. However, the sunset provision in this Bill deviates from these approaches as it will not facilitate parliamentary oversight of decisions to revoke pieces of REUL, regardless of the policy implications and policy salience of such decisions.

10. An effective sunset clause should provide clarity about (i) what law will expire (ii) when it will expire and (iii) the process by which it will expire. The sunset clause in this Bill provides clarity in none of these areas.

i) It is not possible to discern from the Bill what the Government intends to do with any of the 2,417 pieces of REUL departments have thus far identified. Which pieces of REUL the Government intends should disappear from the statute book on 31 December 2023 is unknown.

ii) The Clause 2 power to extend the sunset date further undermines certainty about the expiry process. This gives Ministers an extension power to set different sunset dates for specified bits of REUL up to 23 June 2026. The result could therefore be a patchwork quilt of sunset dates across different policy areas, resulting in even greater legal complexity. The Delegated Powers Memorandum states that this power is ‘not intended for wide usage’ and ‘is meant as a fail-safe in case REUL reform is delayed by the parliamentary process or extenuating circumstances’. [4] However, there is nothing on the face of the Bill that will prevent the power being widely used by Ministers if they wish to do so.

iii) The Bill and supporting documentation does not set out what internal review process(es) will be adopted by the Government to assess at least 2,417 pieces of REUL and then decide whether to let a piece fall away, or whether to amend or save it. Nor is there a deadline by which Ministers must make clear their intentions for each piece of REUL. These plans/decisions may have highly divergent impacts: they may intend to buy more time to continue reviewing policy, or to let pieces of REUL fall away on sunset day, or to restate REUL or amend the legislation. Ministers will be able – or obliged – to make late decisions which will leave Parliament facing a glut of Statutory Instruments in Autumn 2023 and leave little time for planning and preparation by affected bodies to ensure implementation and compliance with any resulting regulatory changes.

11. This sunset provision will thus have the perverse effect of introducing rather than eliminating ambiguity and uncertainty in the law. Sunsetting will transform REUL into ‘transient law’ from the moment that Royal Assent is granted until such time as the prospects for each individual piece of REUL are known. As the Bill and other arrangements currently stand, Parliament, and the public, will be in the dark as to Ministers' plans for REUL during this time, despite the highly divergent array of possible outcomes for it.

12. The arbitrary December 2023 sunset deadline also carries significant risk if errors are made – directly through the loss of a piece of REUL which creates an unintended or undesirable regulatory lacuna, or indirectly through a failure to identify linked and consequential effects in other legislation.

How might the Bill be amended to address these concerns?

13. The concept of the automatic expiry date is so central to the Bill and yet so fundamentally flawed that the Bill should be redrafted to remove the sunset and then recommitted to the House for further scrutiny.

14. If the Government believes that statutory measures are needed to address concerns about bureaucratic inertia in Whitehall then this could be achieved by re-structuring the Bill around statutory review provisions. Government could engage Parliament as an ally by requiring Departments to report to Parliament setting out their progress in reviewing REUL, stating their intentions – whether to preserve/restate or revoke, amend or consolidate – and their implementation timetable for doing so. These could then be reviewed by the relevant departmental Select Committees with senior civil servants as well as Ministers subject to scrutiny of the progress being made in their policy area(s).

15. If Ministers resist removing the sunset provisions, then the date for the automatic expiry of REUL should be extended from 31 December 2023 to:

i) at least 23 June 2026, which was the date originally under discussion during the inter-departmental clearance (or ‘write-round’) process; or

ii) preferably 31 December 2028 – as it is believed that during the clearance process a number of Whitehall departments expressed concern about whether the burden of a proposed earlier sunset of 2026 was deliverable. [5]

2/ C LAUSE 15

16. Clause 15 (provision to replace or revoke secondary REUL) includes, with just a few caveats, ‘do anything we want’ powers for Ministers.

17. The blank-cheque power permits UK Ministers (and devolved Ministers in areas of devolved competence) to replace a piece of REUL with provisions that they consider ‘to achieve the same or similar objectives’, or even to ‘make such alternative provisions’ as they ‘consider appropriate’.

18. When doing so, Ministers do not have to observe the same oversight provisions – for example, a requirement to consult – that were required with respect to the piece of REUL that is being replaced.

19. The clause also permits sub-delegation, creation of a criminal offence or imposition of a monetary penalty providing that any new regulations ‘correspond’ or are ‘similar to’ the original REUL provisions. But what terms such as ‘appropriate’, ‘correspond’ and ‘similar’ mean in practice is left entirely to ministerial discretion.

20. There is one caveat: Clause 15 cannot be used to increase regulatory burdens, impose obstacles to trade or innovation, financial costs and administrative inconveniences, and obstacles to efficiency, productivity or profitability, or sanctions that affect the carrying on of lawful activity. The clause thus imposes what amounts to a regulatory ceiling. This is contrary to previous claims from Ministers that in some areas REUL might be amended to improve regulatory requirements (eg in the field of animal welfare, particularly farm animals). [6]

How might the Bill be amended to address these concerns?

21. Clause 15 might be amended by:

a. tightening the requirement so that new legislation may achieve ‘the same’ but not ‘similar’ objectives or ‘alternative provision’ ;

b. restoring any requirement to consult or provide evidence ( eg an impact assessment) that existed in respect of the piece of REUL that is being replaced;

c. setting out areas where changes to REUL should not be made by regulations such as:

i. where they relate to constitutional matters; and

ii. where they affect human rights.

3/ CLAUSE 16

22. Clause 16 states that Ministers may make modifications to secondary REUL that they consider ‘appropriate to take account of changes in technology or developments in scientific understanding’.

23. This is an open-ended power. It is left to Ministerial discretion to decide whether a change in technology or a development in scientific understanding has occurred and thus whether changes via delegated legislation (rather than primary) are merited by those developments. Additionally, changes to the law would only have to "take account" of those technological/scientific developments, further bolstering Ministerial discretion. Clause 16 can also be exercised indefinitely on REUL and any new regulations that replace it – unlike other powers in the Bill, it is not sunsetted.

24. The use of this power is subject only to the negative scrutiny procedure and so changes made under it will not require active parliamentary approval. For an SI made under this power to be scrutinised, MPs would have to ‘pray’ against it and Ministers would have to grant time for it to be debated.

How might the Bill be amended to address these concerns?

25. Clause 16 might be amended by:

a. Providing clarification/greater definition on the face of the Bill regarding the terms ‘changes in technology’ and ‘developments in scientific understanding’:

i. Specifically, who decides whether there have been ‘changes’ and ‘developments’? Is the Government free to make this assessment or are they expected to have regard to, for example, expert advisory bodies or international standards? What if there are scientific developments that the Minister does not want to take into account?

ii. Should Ministers have to ‘follow’ or ‘incorporate’ developments rather then merely ‘take them into account’?

b. Extending the parliamentary sifting procedure (that applies to clauses 12,13 and 15 in some circumstances ) to regulations made under this power so that a parliamentary committee can upgrade the scrutiny procedure f rom the negative to the affirmative if they believe the SI is sufficiently important to warrant active parliamentary debate and approval.

c. Imposing a requirement to consult or carry out an Impact Assessment;

d. As with Clause 15, s etting out areas where changes to REUL should not be made by regulations , such as:

i. where they concern the creation of criminal offences or the imposition of taxation, charges and fees above a specified threshold;

ii. where they relate to constitutional matters; and

iii. where they affect human rights.

4/ PARLIAMENTARY SCRUTINY OF THE EXERCISE OF THE POWERS

26. The Bill does three things in respect of parliamentary scrutiny of REUL:

i) it removes or downgrades existing forms of parliamentary scrutiny of SIs when they would modify or revoke REUL;

ii) in Schedule 3, it extends the ‘sifting’ system for SIs, as set out in the EU (Withdrawal) Act 2018 (Schedule 7) and the EU (Future Relationship) Act 2020 (Schedule 5), to the exercise of three powers in this Bill, namely clause 12 (the power to restate REUL), clause 13 (the power to restate assimilated law or sunsetted EU rights) and some uses of clause 15 (the power to replace or revoke secondary REUL);

iii) it expands the scope of Legislative Reform Orders to include all REUL.

27. With respect to the extension of the SI ‘sifting’ procedure, if the EUWA system for sifting SIs is extended to SIs made under some of the powers in the current Bill, a decision will need to be made about which Committee will undertake the ‘sifting’ work in the House of Commons (we assume it will be the Secondary Legislation Scrutiny Committee in the House of Lords).

28. One option that has been mooted is for the ‘sifting’ role to be taken on by the European Scrutiny Committee (ESC). If so, this will be a matter of considerable concern, given that the ESC’s role is to sift EU documents; it has never undertaken sifting of UK Statutory Instruments. Furthermore, the ESC is not currently operating as a fully cross-party committee with a long-term near-absence of Labour participation. [7]

29. An alternative option is for the European Statutory Instruments Committee (ESIC), which sifts EUWA SIs, to take on the role. However, sifting SIs under this REUL Bill would also mark a significant change in role and approach for ESIC. The Committee primarily sifts all SIs laid before Parliament under powers in the EU (Withdrawal) Act 2018 to correct ‘deficiencies’ that are subject to the negative scrutiny procedure. Thus, its sift and scrutiny function has largely been focused on what are primarily quite dry and technical matters. In contrast, changes made to REUL under this Bill will deal with much more sensitive and politically salient areas of policy interest – amending or replacing existing legislation, but in a de-regulatory direction.

30. If MPs want to express a view on any legislative changes to REUL that the Government proposes to make using the powers conferred in clauses 12, 13 and 15, it is therefore imperative that they take an early interest in the identity and remit of the sifting committee mechanism.

31. The Government has proposed not only the inclusion of the sifting mechanism but also an extension of the Legislative Reform Order (LRO) procedure, as set out in Clause 17.

32. The Legislative and Regulatory Reform Act 2006 provides powers for Ministers to remove or reduce legislative burdens through LROs. The powers in that 2006 Act are among the broadest ever to reach the UK statute book. The LRO process thus provides for the highest level of parliamentary scrutiny that can be applied to Statutory Instruments, via the super-affirmative procedure. An SI laid in the form of an LRO requires consultation, the normal scrutiny period can be extended, and the relevant scrutiny committee can propose changes to an Order and even veto it. Consequently, the LRO procedure is time-consuming. It can take 10-14 months from the start of the consultation for an LRO to reach the statute book and can absorb as much resource as a Bill. LROs are thus relatively rare: fewer than 40 have been laid since the Act was passed in 2006, significantly fewer than was originally anticipated. [8]

33. In our view, the LRO procedure in this REUL Bill is therefore unlikely to be much used: only if amendments to primary legislation are needed, and there are no other suitable powers available, would it make sense to do so, and even then, primary legislation might be quicker.

How might the Bill be amended to address these concerns?

34. Given the skeleton nature of this Bill, the absence of detail about the implementation of the Government’s policy objectives, and the extent to which it grants Ministers extraordinary levels of discretion, all regulations made under the Bill (with the exception of Commencement Regulations) could be made subject to the parliamentary sifting procedure (that applies to the exercise of powers in clauses 12, 13 and 15 in certain circumstances).

November 2022