Retained EU Law (Revocation and Reform) Bill

Supplementary written evidence submitted by Charles Whitmore, Research Associate, Cardiff University – Wales Governance Centre & Wales Council for Voluntary Action (REULB53)

Written Evidence for the House of Commons

Retained EU Law (Revocation and Reform)

Public Bill Committee

About this evidence

1. This evidence has been written by Charles Whitmore as a part of the Wales Civil Society Forum project (Forum). This is a partnership between Wales Council for Voluntary Action (WCVA) and Cardiff University’s Wales Governance Centre (WGC) funded by The Legal Education Foundation. Its aim is to provide a civic society space for information sharing, informed discussion and coordination in areas subject to legal, administrative and constitutional change stemming from the UK’s withdrawal from the European Union.

2. WCVA is the national membership organisation for the voluntary sector in Wales.

3. The WGC is a research unit sponsored and supported in the School of Law and Politics, Cardiff University.

4. I am responding the Committee’s call for evidence because civil society organisations involved in our project have expressed significant concerns about the REUL Bill’s potential consequences for rights and regulatory standards, as well as regarding its constitutional and devolved implications. Furthermore, the Bill would enable policy change in a context where impact assessment, consultation and engagement with civic society around potentially significant policy change would be impossible. This is because the sunset clause provides a mechanism by which policy change can be achieved by inaction or omission and establishes a timeframe and process which preclude any meaningful scrutiny. Finally, the Bill and its documents have not sufficiently considered its devolved implications which I will now focus on by answering the questions provided to me by the Committee for the oral evidence session on 8 November 2022.

Question 1 - Is there sufficient capacity within the devolved authorities to identify all the retained EU laws which are within the scope of the Bill and whether they fall within areas of devolved competence?

5. Given that the sunset clause creates an entirely unnecessary and tight deadline and yet the consequences for the statute book of not successfully identifying all devolved REUL are very serious, the capacity will have to be found. However, the limited capacity in Wales generally within the Welsh Government, Senedd and civic society will mean that there is a risk of omission and legislative mistakes. In addition, other urgent work will have to be unnecessarily paused while the consequences of the REUL Bill are dealt with.

6. There are significant concerns around this issue in both the Senedd and the Welsh Government as Wales is likely behind the other parts of the UK in identifying all REUL. The Counsel General has previously written to the Senedd indicating that the Welsh Government is of the opinion that it should not have to undertake this exercise at all. [1] Indeed the sentiment in Wales is that REUL is providing certainty and continuity and that it is unreasonable to ask the devolved authorities to set aside their own work, with no further resourcing, to review this entire body of law to an incredibly tight deadline. There is some recognition that over time changes will be needed, but that the exercise required by the REUL Bill as introduced is entirely unnecessary on this scale and timeframe.

7. There is equally little capacity in Welsh civic society to engage with a mapping, preservation, repeal and replacement exercise of this scale. This is concerning because engagement and consultation is an important part of identifying unexpected issues and complexities in legislative change. In the case of replacing REUL this is likely to be a significant concern owing to interactions with devolution, interdependencies between instruments and potential interactions with the UK Internal Market Act (UKIMA). Devolved considerations have not been sufficiently assessed in the Bill documents and will likely increase the risk of omissions and mistakes where devolved REUL is concerned. For example the potential repeal or replacement of parent UK level act might compromise a devolved instrument and it is unclear how these risks will be identified and managed comprehensively in the timeframe provided and given the limited intergovernmental mechanisms for addressing these types of concern. These risks are amplified by the highly minimalist approach taken in the Bill to the scrutiny of the new ministerial powers.

Possible recommendations:

· The sunset mechanism should be withdrawn to enable sufficient time for central and devolved authorities to arrive at a comprehensive map of devolved REUL made at the devolved level and devolved REUL made at the central level with the consent of devolved authorities; devolved REUL could be carved out of the legislation entirely;

· A positive obligation could be introduced so that specific pieces of REUL must be identified to be included within the scope of the sunset.

· A consultation mechanism should be introduced so that a decision to allow a piece of REUL to sunset, or the decision used the powers in clauses 12-16 can be subject to public and parliamentary scrutiny at the devolved and central levels.

Question 2 - Should the retained EU law Dashboard identify whether retained EU laws which are within the scope of the Bill are devolved or reserved? 

8. The Welsh Government has requested that the Dashboard make clear which pieces of REUL are in areas of devolved competence. [2] Given the immensity of the work and the timeframe required under the Bill as introduced, if the Dashboard were intended to be used as a policy tool to guide the use of the ministerial powers in the Bill – this is a striking omission. However, the dashboard is designed as a consumer product, not a tool to support detailed policy making.

9. Even if it were to highlight which pieces of REUL are devolved or reserved, it still does not go into the level of detail that is arguably necessary to support the complete and comprehensive assimilation of REUL. It isn’t up to date, isn’t comprehensive, it doesn’t breakdown current activities at the devolved and central levels and the devolved authorities cannot edit or add to it.

10. It is also important to note that the dashboard and the REUL Bill generally do not seem to acknowledge the complexity of landscape. For example, the dashboard largely does not include devolved REUL made at the devolved level – a significant omission. Nor does it make clear where there is devolved REUL made at the UK but with the consent of the devolved authorities. On a practical level, it would also be desirable to highlight where you have REUL in reserved areas but with significant policy implications for devolved policy making if changes are made centrally. Another layer of complexity is added by the UKIMA, as changes to REUL in areas covered by the market access principles in one part of the UK will have, in practice, extra-territorial policy implications and limitations in the other parts of the UK – especially where the changes take place in England.

Question 3 - Should the devolved authorities also have the power to extend the sunset for pieces of retained EU law which are devolved?

11. It is important that powers granted under the bill which will have an impact in areas of devolved competence should first rest with devolved authorities – including the power to extend sunset. The arrangements in the Bill as introduced are constitutionally anomalous and quite difficult to understand. The devolved authorities would need to request that the UK Government extend the sunset on a piece of Welsh legislation, which could be denied. Subsequently it would be within the mechanisms of the Bill for the central authorities to use the ministerial powers provided to repeal or replace the piece of devolved REUL in question without seeking consent. Yet the Bill also gives devolved authorities powers under clause 1(2) to preserve devolved REUL. It is unclear from the Bill and its documents how the mechanisms in clauses 1(2) and 2 will work in practice or indeed what the substantive differences are between two mechanisms.

12. The time constraints imposed by the sunset mechanism will not be conducive to good law making and scrutiny – they should ideally be removed. If this is not the case then the extension mechanism will likely be necessary. However this comes with its own set of problems as the very nature of the Bill’s intention to restate, repeal or replace such a massive body of law in such a short time, in a context of no consultation or policy direction being provided by the Government - can only lend itself to significant legal uncertainty. This will also push back other work longer, produce backlogs, prolong uncertainty over time and introduce potentially multiple future cliff edges.

13. The use of clause 1(2) to preserve from sunset is not ideal either owing to the use of the negative procedure. This may result in a situation where the Senedd will have 40 days to decide whether to annul an instrument that might seek to preserve devolved REUL en masse without appropriate scrutiny. However, the consequence of doing so would be entire swaths of law being sunsetted which is not meaningful parliamentary scrutiny.

Recommendations:

· Remove the sunset;

· Require that specific pieces of REUL be explicitly named in order to be subject to the sunset;

· Give the power to extend the sunset deadline to devolved authorities as opposed to being limited to Ministers of the Crown.

Question 4 - Might there be a need for new specific structures to ensure effective channels of communication and coordination between the Government and the devolved authorities? 

14. Yes, or new or expanded use of existing structures would be needed. Broadly speaking the mechanisms proposed by REUL Bill would require significant intergovernmental coordination and collaboration to mitigate the uncertainty created by the Bill’s various mechanisms. However even if new structures were introduced, there would need to be a genuine commitment to intergovernmental working and an acknowledgement of the Bill’s significant and challenging implications for devolution. The Bill’s provisions, if considered necessary at all, should provide sufficient time for a cooperative approach the reform of REUL where legislative interactions and complexities can be jointly identified and addressed. The fact that this is not the case and that the Bill provides neither structures and certainly not the time feeds into concerns that it has been drafted without sufficient consideration for its devolved implications.

15. Indeed public records show that there has been insufficient communication around the Bill’s policy with the devolved governments prior to its introduction, and the Welsh and Scottish Government’s have both recommended against legislative consent. This suggests that if passed, the bill is likely to further damage trust between central and devolved authorities and will also further call into question the UK Government’s commitment to the Sewell Convention.

16. The Bill is entering a challenging intergovernmental space with a long-standing need for more genuinely cooperative mechanisms for intergovernmental relations. Yet trust between central and devolved authorities is tenuous as more and more legislation has been passed despite refusals to give devolved legislative consent. This is only compounded by the lack of a devolved consent mechanism and the restriction of the power to extend the sunset to ministers of the crown in the Bill.

17. The Bill provides no feasible timeframe to arrive at new means of managing the communications, joint working and significant potential tensions that could arise from this Bill between central and devolved authorities. Yet this is necessary as the Bill presents many uncertainties in the devolved context arising from:

· Different territorial uses of the powers in clauses 12-16

· The need to manage reserved areas of REUL which have territorial impacts across the whole of the UK but could be relevant for devolved policy.

· The need to manage the impact of UKIMA which could give significant extra-territorial impact to uses of the ministerial powers in the Bill.

· Different interpretations of key aspects in the Bill, such as the definition of a regulatory burden in clause 15. What one authority might call a regulatory burden, another might consider a higher regulatory standard.

18. Where central authorities seek to use (without consent as this is permitted under the Bill) the clause 15 powers in areas of devolved competence, this could lead to downward regulatory pressure as these powers are clearly drafted in a deregulatory tone. While this regulatory ceiling could be overcome via ordinary legislative procedures at the devolved level, limited capacity, parliamentary time and the fact that businesses may rapidly adjust to any new standard could lead to policy becoming embedded in a direction of travel that devolved authorities would not otherwise have chosen.

Recommendations:

· Write an intergovernmental and public consultation mechanism into the bill that would condition the triggering of the sunset clause and the use of the powers in clauses 12-16 on prior consultation and prior intergovernmental consideration of interactions with the UKIMA and Common Frameworks.

Question 5 - Would the Bill allow devolved authorities to preserve all or as much retained EU law as they wish in areas of policy which are devolved?

19. In theory the mechanism in clause 1(2) would allow the devolved authorities to preserve EU retained law in devolved policy areas. They can regulate to specify which pieces of devolved REUL they wish to preserve from the sunset. This could for example be a single instrument which enumerates several pieces of REUL. This is far from ideal because it uses the negative procedure and is likely to result in a cliff edge at which point the Senedd will be asked to preserve en masse, a large amount of devolved REUL with no meaningful scrutiny or the ability to refuse given the consequences.

20. However in practice this will still require that all pieces of devolved REUL (those created at the devolved level and at the UK level with devolved consent) be identified prior to the sunset deadline. As there has been no effort to map this as a part of the Dashboard and the impossibly huge demands this will place on capacity, the complexity of the landscape and how tight the deadline is - it is unlikely this could be done without omission. This level of capacity drain would also unnecessarily derail other crucial legislative work at the devolved level against the consent of the devolved executives and legislatures.

21. There are also significant concerns about the level of legislative scrutiny over ministerial decision making under the bill. At the central and devolved level – the Bill will enable policy change, either intentionally or by omission, by inaction – an alarming transfer of power from the legislative to the executive regardless of the level of governance at which it takes places. This is particularly problematic where the choice may be made to allow devolved or reserved REUL to sunset. It is unclear how, or even if this would communicated at the policy level beforehand and indeed how it would be scrutinised, impact assessed or challenged.

Recommendations:

· Remove the sunset;

· Reverse the sunset to create a positive obligation to bring specific pieces of REUL within scope;

· Include a devolution carve out (though it would also be necessary to address the issue of interdependencies between parent UK and devolved acts);

· allow clause 1(2) to more easily preserve entire bodies of REUL as opposed to individual instruments.

Question 6 - If different approaches are taken in different parts of the UK, what would the implications be under the Internal Market Act? Would Common Frameworks provide an adequate mechanism for resolving any divergence?

22. The very purpose of devolution is to facilitate divergence – this is perceived as a positive as it allows policy to be locally tailored and provides an opportunity for policy experimentation, with significant examples having previously led to policy innovation. It is crucial to recognise that under the devolution settlements - policy divergence is not something to ‘resolve’. However, this Bill could result in divergence on a scale and in a context which our intergovernmental structures, including the common frameworks, are not set up to handle. There is significant scope for the outcome of the processes and powers under this bill to trigger the UKIMA market access principles. These are largely untested and a significant source of tension and challenge for devolution. As a result, any potential to trigger these could have quite significant unwelcome impacts on the different parts of the UK.

23. For example, REUL is common in the areas of food composition, food safety and labelling requirements and these also typically fall within the market access principles. One part of the UK might decide to let a particular regulatory standard sunset, or chose to use the powers in clause 15 (as the drafting clearly signals they are intended) to lower a regulatory standard. Interaction with the UKIMA would mean that this new standard would become enforceable in the other parts of the UK even though the relevant devolved REUL there may have been preserved, replaced or restated differently.

24. The result is that there could be significant and unforeseen extra-territorial policy impacts arising from the use of the delegated powers in the Bill, meaning that each government will need to be hyper aware the uses being made in the different parts of the UK. The Bill’s documents seem to suggest this is the intended mechanism for managing the divergence that could result from the Bill, but that should not be the default over meaningful intergovernmental cooperation. Instead use of the ordinary legislative mechanisms where there is necessity and substantive merit in reforming pieces of REUL would be more appropriate – not least as this allows proper intergovernmental discourse to take place and time and where necessary for the Office for the Internal Market to be consulted. Under the proposed Bill it is unlikely to be possible for the CMA to fully consider the scale of potential regulatory divergence that could intersect with the UKIMA if full and variegated use is made of the Bill’s delegated powers.

25. This underscores the challenge of the deadline created by the sunset clause because makes it very important for the different parts of the UK to both make clear their policy intentions around the use of clauses 12-16 to the public and each other. The level of divergence could in theory be very high, going far beyond what the UKIMA would have been expected to manage in such a short time and going beyond the capacity of the intergovernmental relations frameworks that we have.

26. The Common frameworks (CFs) have shown that a model of regulatory cooperation that relies on joint working, trust and consensus works well. [3] Conversely, they have shown that tension between devolved and central authorities is greater in areas where there are no common frameworks and instead the UKIMA is the main vehicle for managing regulatory divergence. [4] It may therefore be that one option available under the REUL Bill would be to put the Common Frameworks on a further statutory footing in the text of the Bill as was done in the UKIMA. However, this is likely to be an inadequate response because:

· While the CFs have helped to address some of the tensions surrounding the market access principles by providing a mechanism to expand exceptions – these processes are not equitable as devolved authorities must ultimately request exclusions of the UK Government.

· There are gaps in the form policy areas that don’t have a common framework yet have devolved REUL. The initial and revised framework analysis which established a list of areas of EU law that intersected with devolved competence, identified only a minority that, at that time, were considered as requiring a framework. [5] Additional mechanisms for intergovernmental relations would therefore be needed to manage those areas. Ideally, this could be a broader intergovernmental system drawing on the cooperative, consensus based principles of the CF’s. Yet the Bill does not provide the time, or the trust for these to be established.

· The mechanisms of the CFs were developed with a level of cooperation in mind tailored to the level and nature of divergence that was expected from repatriating competencies to the central and devolved levels. They aren’t necessarily suited to the significant level of uncertainty, tension and divergence that this Bill could induce.

· They are fragmented, lack transparency, are incomplete and many are provisional yet in force.

· Very different teams within the civil service work on the CFs and REUL. As a result there will likely be very practical challenges to ensure the level of communication within and across governments necessary for the CFs to manage the challenges of the REUL Bill, especially to the timeframe provided by the sunset clause. Given the already immense capacity challenges for the central and devolved civil services the Bill will create, this is likely to be a significant issue.

· The CFs are unlikely to be suited to the scale and potentially extreme nature of the divergence that could result from this Bill. This might include for example different approaches to the restatement powers, supremacy and the general principles, as well as different uses of the sunset clause and the revoke and replace powers - including potentially asymmetrical instances of omissions.

Recommendations:

· Limit the potential scope for divergence by carving out specific policy areas and/or introduce a mechanism to carve out policy areas where there is devolved REUL;

· Restrict the scope of the delegated powers in clause 15. For example by making their use conditional on consultation and impact assessment, and by changing the word ‘appropriate’ to ‘necessary’.

· Withdraw the Bill and allow proper intergovernmental and legislature procedures to take place to reform REUL;

· Write an intergovernmental mechanism into the Bill and remove the sunset deadline.

Question 8 - In the context of this Bill and the scope for non-technical changes to retained EU law, do you have any concerns about the concurrent nature of the powers for UK Ministers and devolved authorities in clauses 12-16?

27. Yes this is a significant concern. It is a further constitutional anomaly in the legislation that the UK Government can use the powers in the Bill to legislate in areas of devolved competence without seeking the consent of relevant Welsh ministers. This is not only egregiously out of keeping with Sewell convention, which is already under significant strain, but also with other EU Withdrawal related pieces of legislation, including for example:

· Sections 6(7), 8(9), 10(9) of the UKIMA, which require the UK Government seek the consent of devolved authorities before making regulations and must publish a statement as to why refusal is being disregarded if that is the case.

· A constitutionally more robust mechanism can be found in the Withdrawal Act and its associated intergovernmental agreement. This involves the consent of devolved legislatures where regulatory powers in the act were to be used to freeze some areas of devolved competence. Under the system, if consent was not forthcoming – the reasons for this were to be laid before the UK parliament by both UK and devolved ministers thereby giving the UK parliament a role in approving the regulations in the absence of devolved consent.

28. None of these are ideal solutions – as it is inherently problematic to arrive at a situation where the UK Government is in a position to overrule devolved law making and consent. It would be preferable from the perspective of the devolution settlements to carve out areas of devolved REUL as much as possible and allow ordinary legislative procedures to be used to reform the law where there is merit in doing so. Alternatively, there should be consensus-based mechanisms for intergovernmental relations founded on cooperation and trust in place to navigate and discuss these differences and tensions. Either way if the Bill were to be introduced, it would be essential that a consent mechanism be added to the face of the bill.

29. The Welsh Government has laid the Legislative Consent Memorandum – it makes clear that where powers are to amend devolved legislation they should rest solely with Welsh ministers, and where they are held concurrently, there should be a consent mechanism on the face of the bill. Illustrating the constitutionally odd situation the Bill could lead to – the clause 16 power to update doesn’t sunset in 2026. As a result, the UK Government would be able to indefinitely use delegated powers to update assimilated devolved law without consent.

Recommendations:

· Write a consent mechanism onto the face of the legislation mirroring the system found in the Withdrawal Act.

November 2022