Retained EU Law (Revocation and Reform) Bill

Written evidence submitted by Harold Shupak (REULB18)

SUBMISSION TO THE PUBLIC BILL COMMITTEE OF THE HOUSE OF COMMONS

RE THE RETAINED EU LAW (REVOCATION AND REFORM) BILL

Introduction

1. This submission contains my comments on two particular aspects of the Retained EU Law (Revocation and Reform) Bill ("the Bill") to which I object. I hope that the Committee considering the Bill will take the submission into account as part of its consideration of the Bill.

2. The two aspects of the Bill to which I object are:

2.1 the sunset provisions which the Bill will, if passed, apply in relation to retained EU law, and

2.2 the powers which the Bill will give to Ministers of the Crown and devolved administrations to restate, revoke, replace and update retained EU law and assimilated law.

3. This submission is made solely in relation to those aspects. It naturally reflects the fact that the United Kingdom is no longer a member state of the European Union. The submission is not intended to address the questions of whether Brexit was or wasn’t a good idea or was or wasn’t in the best interests of the United Kingdom and its citizens.

4. Terms defined in the Bill have the same meaning when used in this submission.

The sunset provisions of the Bill

5. Whilst I naturally appreciate that it may from time to time be sensible for legislative provisions to be repealed or amended, in whole or in part, I believe, as a matter of principle, that a legislative provision should only be repealed or amended after proper, careful Parliamentary scrutiny and consideration of the provision in question and its proposed repeal or amendment has taken place, including of the possible effects of the proposed repeal or amendment.

6. I strongly object to the sunset provisions contained in clauses 1 to 3 of the Bill, both in concept and as to timing.

7. I consider that the fact that a legislative provision is either a piece of EU derived UK subordinate legislation or a piece of retained direct EU legislation does not of itself mean that its repeal is justified. Accordingly, automatic repeal, which is what retention of the sunset provisions would entail, should be removed from the Bill by deleting clauses 1 to 3.

8. Many of the pieces of UK subordinate legislation which are EU derived contain important provisions conferring valuable rights and protections for UK citizens, such as, for example, the Transfer of Undertakings (Protection of Employment) Regulations. They should not be repealed or reduced.

9. Despite EU Regulations, which are retained EU direct legislation, being called Regulations (and thus, perhaps regarded by some as less important than Acts of Parliament), they can provide important valuable protections and rights for UK citizens, such as, for example, the General Data Protection Regulation. The continued application to the United Kingdom of the provisions of such EU Regulations should not be lightly cast aside.

The powers which the Bill proposes to give to Ministers of the Crown and devolved administrations to restate, revoke, replace and update retained EU law and assimilated law ("Revocation Powers")

10. I strongly object to these Revocation Powers being exercisable merely by Statutory Instrument in relation to retained EU law or assimilated law, in whatever form the retained EU law or assimilated law may be.

11. In my opinion just because in many instances Parliament has previously decided that a piece of retained EU law should be contained in pieces of UK subordinate legislation does not justify such EU derived subordinate legislation being restated, revoked, replaced or updated merely by Statutory Instrument in exercise of the Revocation Powers.

12. I have thought for some time that the amount of Parliamentary scrutiny of Statutory Instruments is far too little, especially where a proposed Statutory Instrument contains major provisions. The affirmative resolution procedure provides insufficient scrutiny especially as it is impossible to seek to amend an affirmative resolution and the resolution is either passed as proposed or not passed. In my view it is probably necessary to review and perhaps substantially modify the procedure regarding Statutory Instruments generally, but that is a separate question which this submission is not intended to address in detail.

13. In order to secure sufficient Parliamentary scrutiny of any Statutory Instrument proposed to be made under the Revocation Powers, I consider that, the Bill should be amended to provide for the procedure set out in paragraphs 13.1 to 13.5 below to be followed in all cases where a Minister of the Crown or a devolved administration wishes any part of retained EU law or assimilated law, in whatever form such retained EU law or assimilated law may be, to be restated, revoked, replaced or updated by the making of a Statutory Instrument.

13.1 All Statutory Instruments intended to be made in exercise of any of the Revocation Powers should have to be approved by an affirmative resolution

13.2 Within a specified number of days (perhaps 20 days) after a draft Statutory Instrument proposed to be made in exercise of any of the Revocation Powers has been laid before the House of Commons (together with an explanatory memorandum setting out the intention and implications of the proposed restatement, revocation, replacement or updating of the relevant part of retained EU law  or assimilated law) and in any event before any affirmative resolution is tabled or passed in relation to the draft Statutory Instrument, it should be mandatory that a motion is tabled and debated in the House of Commons requiring a bill to be proposed for the restatement, revocation, replacement or updating in place of an affirmative resolution being passed in relation to the draft Statutory Instrument.

13.3 If at the conclusion of the debate at least a minimum threshold of MPs (say, 20%) vote in favour of that motion, the draft Statutory Instrument shall be deemed null and void and, if the UK Government wishes the proposed restatement, revocation, replacement or updating to take place, it should be mandatory for the Government to table a bill in Parliament for such restatement, revocation, replacement or updating to be effected. That bill would, of course, have to be passed by a majority in each House of Parliament and would, like any other bill, be capable of being amended.

13.4 If less than the minimum threshold of MPs vote in favour of the motion, then, subject to the point mentioned in paragraph 13.5, the normal affirmative resolution Statutory Instrument procedure would be followed in relation to that draft Statutory Instrument.

13.5 In contrast to the normal position the Joint Committee on Statutory Instruments should have the power to take evidence from the public in relation to any proposed Statutory Instrument for the restatement, revocation, replacement or updating of the relevant part of retained EU law or assimilated law, and the public’s ability to make submissions should not be confined to matters of law.

14. In my view the adoption of a procedure along the lines outlined in paragraphs 13.1 to 13.5 above would enable the House of Commons to identify proposals for the restatement, revocation, replacement or updating of parts of retained EU law or assimilated law which raise important and/or substantial issues that could only be properly addressed by the tabling of a bill, entailing its going through its various stages rather than by being effected merely by the making of a Statutory Instrument. In such an instance the restatement, revocation, replacement or updating would only take place if the bill was enacted, and in that case, subject to the terms of the bill, as enacted.

7th November 2022