Retained EU Law (Revocation and Reform) Bill

Written evidence submitted by Professor Jo Hunt, Cardiff School of Law and Politics, Wales Governance Centre (REULB87)

Please find my written evidence on the Retained EU Law (Revocation and Reform) Bill. In these brief comments, I focus in particular on the constitutional consequences of the Bill and its impact on devolved competence.

The Bill’s Significance for Devolution:

1. The Retained EU Law (Revocation and Reform) Bill (hereinafter REUL Bill) is the most recent in a line of Westminster legislation dealing with the domestic legal and constitutional consequences of the UK’s withdrawal from the European Union. The Bill follows in the same vein as the EU (Withdrawal) Act 2018, and the UK Internal Market Act 2020 in that it provides new challenges to the effective operation of devolved competence, in part in the apparent pursuit of ensuring cross-UK regulatory consistency following the end of EU membership which brought with it a large body of common, harmonised (though not necessarily identical) regulation.

2. The Bill provides for concurrent powers for UK and devolved government Ministers to restate, revoke or replace the law within areas of devolved competence. The absence of any requirement to seek consent from Ministers from the devolved Governments before UK Government Ministers can exercise powers in areas of devolved competence is out of line with previous Brexit legislation, and appears anomalous, and without clear justification.

The Bill should be amended to provide either for the removal of UK Government ministerial powers within areas of devolved competence, or for a consent requirement by the devolved Governments for the exercise of these powers (if not devolved Parliamentary consent).

3. An additional aim appears to be to facilitate the pursuit of a deregulatory agenda, on which there may be different views across the Governments of the UK. Further, under clause 15(5) the Bill provides that replacement regulation should not increase the regulatory burden. The definition of regulatory burden provided in 15(10) includes an obstacle to trade (my emphasis). This formulation of regulatory burden differs from the definition of burden in the Legislative and Regulatory Reform Act 2006, where ‘an obstacle to trade’ is not found. The meaning of this term needs to be clarified – and made explicit whether this refers to the emergence of regulatory divergence that may impact on intra-UK trade flows. Importantly, if it is interpreted in this way, this would go further than the already problematic UK Internal Market Act, which impacts the effects but not legal capacity to regulate in the interests of promoting free movement of goods and services across the UK.

The ‘impact on trade’ provision in clause 15(10) should be removed, or more broadly the requirement that the regulatory burden is not increased should be excluded from applying to law making by the devolved legislatures and ministers, within devolved competence.

4. The approach of the proposed legislation does nothing to support the more collaborative and cooperative intergovernmental modes of governance that might operate across the UK, i.e. through the common frameworks process. The frameworks process was introduced as a means of managing (which includes, where appropriate, accommodating) regulatory divergence. There is no acknowledgement in the Bill of the fact that the existing regulations that fall within the scope of the powers to restate, revoke or replace, may form part of an existing framework. Under the agreed process for the operation of frameworks however, any proposed change in policy and amendment to the law should be raised with the other governments. None of the powers under the Bill come with a trigger for the frameworks process to be engaged. The approach of the Bill risks undermining the frameworks process.

The Bill should be amended to include a requirement for ministers to give consideration to the Common Frameworks process when exercising their powers.

5. With the imposition of the sunset clause, the Bill ties the devolved governments to an agenda that has been set elsewhere, cutting into the operation of devolved competence, regardless of policy commitments these governments might have made. The initial deadline for action before the operation of the sunset revoking existing retained (and subsequently, assimilated) EU law is set at ‘the end of 2023’ (Clause 1(1)). This may be extended, to the end of 2026, but the Bill only gives this power to extend to a UK Minister (Clause 2). There is no clear justification why that power is not also given, for law within devolved competence, to Ministers from the devolved Governments.

The date selected for the operation of the sunset does not appear to have been reached on the basis of the feasibility of the task at hand. The true extent of retained EU law within the UK legal order is a live question, and there is further a lack of detail about measures falling within devolved competence. Against this background, there is an understandable concern that legislation may be sunsetted inadvertently, due to a lack of knowledge.

If a sunset clause is to be incorporated, then it should reflect a more realistic time scale, and should also apply only to positively identified measures, to avoid unforeseen gaps with possible unexpected consequences. The power to extend the sunset should also be granted to devolved Government Ministers.

November 2022

 

Prepared 25th November 2022