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Twenty Fifth Report Contents

Twenty Fifth Report

Retained EU Law (Revocation and Reform) Bill

1.The Retained EU Law (Revocation and Reform) Bill was brought from the House of Commons on 19 January 2023. The second reading debate in the House of Lords is scheduled for 6 February. The Cabinet Office has provided us with a delegated powers memorandum (“the Memorandum”). Our report draws on ideas raised in a helpful webinar hosted on 12 October 2022 by the Hansard Society and featuring Lord Anderson of Ipswich KBE KC, Dr Ruth Fox and Sir Jonathan Jones KCB KC.

The Bill’s purpose

2.According to the Memorandum (page 1) the main purpose of the Bill is two-fold:

“to remove the precedence given to retained EU law (“REUL”) in the UK statute book and to firmly re-establish our Parliament as the principal source of law in the UK, restoring the primacy of Acts of Parliament in UK statute.”

3.The second purpose has not been achieved by this Bill. Far from Parliament being restored to a place of primacy in relation to REUL, the Bill gives Ministers extraordinary powers exercised by statutory instrument to dispose of, retain or rewrite REUL–including powers that involve significant and contentious policy issues. The Bill contradicts pledges by the Government since 2018 that Parliament would be the agent of substantive policy change in these areas. After all, the principal constitutional argument for Brexit was that Parliament in primary legislation would make laws rather than the institutions of the EU. Instead, the Bill is full of law-making powers in relation to REUL that are given to Ministers to exercise by statutory instrument.

4.In November 2021, we published our report Democracy Denied? The urgent need to rebalance power between Parliament and the Executive.1At the same time, the Secondary Legislation Scrutiny Committee published its report Government by Diktat: A call to return power to Parliament.2 The purpose of the two reports was to highlight, as a matter of urgency, a growing concern that the delegation of substantial legislative powers to Ministers had, over time, led to a significant shift in power from Parliament to the executive, and that that shift was continuing and needed to be reversed. On 12 January 2023, the two reports were debated and the contributions by members of the House to that debate clearly demonstrated that the concern highlighted was shared by many others.3 It is regrettable, therefore, that this Bill–which we describe below as hyper-skeletal–serves only to accentuate that concern.

General criticisms

Significant departure

5.The Government’s approach in this Bill is a significant departure from the position taken by successive governments since the EU Referendum in 2016. The previous position was summarised in the Explanatory Notes to the European Union (Withdrawal) Act 2018 (“the 2018 Act”):

“The principal purpose of the Act is to provide a functioning statute book on the day the UK leaves the EU. As a general rule, the same rules and laws will apply on the day after exit as on the day before. It will then be for Parliament and, where appropriate, the devolved legislatures to make any future changes.” (paragraph 10)

“The Act does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are appropriate to ensure the law continues to function properly from exit day. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks.” (paragraph 14)

“Parliament (and, within devolved competence, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once the UK has left the EU.” (paragraph 23)

6.This Bill provides instead that Ministers, rather than Parliament, will decide which elements of REUL to revoke, restate or otherwise amend.

7.We were highly critical of the 2018 Act, which we characterised as giving Ministers a range of powers, unique in peace-time, to alter 60 years of EU law. But the powers conferred by the current Bill are even more significant. The 2018 Act created a mechanism designed to preserve the status quo but with changes to make the law work and to ensure legal certainty and continuity (and therefore minimal legal disruption to businesses, consumers and others). By contrast, the powers in the current Bill create a mechanism that allows REUL to be revoked, restated or amended by Ministers in secondary legislation rather than (as the Government committed in 2018) by Parliament in primary legislation.

All powers, no policy

8.REUL—a very large body of law—will be placed in the hands of Ministers. What becomes of it will depend on how Ministers choose to exercise the regulation-making powers in the Bill.

9.The Bill is sufficiently lacking in substance not even to be described as “skeletal”. It is a mechanism that gives Ministers the power to decide what becomes of whole swathes of UK law deriving from our membership of the EU. Ministers, not Parliament, will be responsible for determining what stays, what goes and what, if anything, is to replace what goes.

10.We criticise wide regulation-making powers in Bills covering just one policy area. Here we have very wide powers to make provision across multiple policy areas. If we were considering an open-ended delegated power in, say, an Employment Bill allowing Ministers to re-write the law on working time, we would express concern. This Bill is tantamount to creating scores of such powers.

Bypassing Parliament

11.The Bill gives to Ministers (rather than Parliament) the power to decide, in relation to a considerable amount of REUL, what is to be:

(a)revoked and not replaced,

(b)revoked and replaced with something broadly similar,

(c)revoked and replaced with something very different, or

(d)retained.

12.The principal question raised by the Bill is: “what is to be done with the very substantial body of REUL?” The answer is: it is for Ministers to decide, rather than Parliament. Parliament will not know, at the time it grants the powers, what the Government intend to do with those powers.

13.The normal way of changing the law to deliver significant policy change is by Act of Parliament, following consultation, debate, amendments and (if at all) with targeted and proportionate delegated powers. This Bill takes a radically different approach. Under clause 1, considerable swathes of REUL will automatically expire at the end of 2023 unless Ministers decide otherwise. The Bill gives the widest powers to Ministers to amend or replace it. It is a blank cheque placed in the hands of Ministers.

14.The combination of (a) the cliff-edge sunset clause in clause 1, and (b) the extraordinary amount of legislation that may be produced in exercise of the powers in the Bill, risks such a deluge of subordinate legislation in a relatively short period of time (less than 12 months) that Parliament’s limited powers to scrutinise the changes are likely to be wholly compromised.

Level of scrutiny

15.Delegated powers in the Bill are, in general, subject to the negative procedure unless they are used to amend or repeal primary legislation (paragraph 7(2) of Schedule 4) albeit subject to a sifting procedure (paragraph 8 of Schedule 4).

Uncertainty

16.The approach taken in the Bill gives rise to significant legal uncertainty. By the end of this calendar year, EU-derived subordinate legislation and retained direct EU legislation will automatically expire unless expressly saved by Ministers. There is no certainty about the sunset provision itself because Ministers can extend it under the delegated power in clause 2. There is no certainty about which policy areas will be affected. And there is no certainty about what will replace revoked REUL.

17.The Bill, the Explanatory Notes and the Memorandum refer only to types of law (such as direct REUL and secondary REUL). No attempt appears to have been made in those documents to inform Parliament how Ministers propose to exercise the powers given to them. Neither do they contain an indication of which legal or policy areas the Government think should be retained, amended or revoked. A very considerable amount of work will need to be done before the end of this year if the cliff-edge of total repeal is to be avoided. The Government need to explain how they propose to use the powers in the Bill. They also need to explain what is behind the headlong rush and the impending and arbitrary end-of-year deadline.

Lack of justification for the powers

18.The Government have failed to provide the exceptional justification that exceptional powers demand. Neither the Explanatory Notes nor the Memorandum acknowledges the importance of the powers conferred by the Bill. According to the Memorandum (page 26) “a significant amount of REUL is technical in nature” and, for REUL that is technical in nature, “primary legislation is clearly inappropriate”. The Memorandum argues that replacing REUL purely through sector-specific primary legislation would take decades.

19.This presents a false choice between replacing all such legislation with primary legislation and replacing all of it with regulations made by Ministers. Moreover, the 2018 settlement entailed that major policy changes to REUL would be achieved by primary legislation.

20.The Memorandum argues that, because much REUL originally came into our legal system through secondary legislation made under section 2(2) of the European Communities Act 1972, it is appropriate that changes can be achieved through secondary legislation. Requiring that these policy areas should now be subject to primary legislation when they were not created using primary legislation would, the Government argue, be “a marked reduction in the UK’s legislative dynamism” (Memorandum, page 27).

21.But the section 2(2) power was subject to a critical constraint. Ministers were under an obligation to implement EU law. Many EU-derived laws were as important as Acts of Parliament and, had we not been in the EU, would have been for Acts of Parliament rather than regulations. The fact that the existing provisions are contained in subordinate legislation is not in itself a good reason for replacement provisions to be contained in subordinate legislation. Under this Bill, Ministers have power to make laws because they think it is “appropriate” to do so. The proposal to confer regulation-making powers needs to be justified on its own merits, particularly where Ministers can amend laws (not because of legal obligation, as when the UK was a member of the EU) but because Ministers merely regard it as appropriate.

Clause 1(2)—power to override automatic revocation

22.Clause 1(1) contains a stark proposition of law: the revocation, at the end of 2023, of all EU-derived subordinate legislation and all retained direct EU legislation. We are not talking about antiquated or redundant law but functioning law that is central to our everyday life. This includes laws concerning employment, health and safety, food safety, food labelling, animal welfare, consumer protection, habitats, environmental regulation, water and air pollution, tobacco, TUPE, working time, competition and many others.

23.Clause 1(2) gives Ministers a power to make regulations (subject only to the negative procedure) to save any instrument or provision of an instrument from automatic revocation under clause 1(1). The matter will be decided by statutory instruments made by Ministers rather than primary legislation made by Parliament.

24.The power in clause 1(2) gives rise to considerable uncertainty:

(a)all of it is revoked,

(b)most of it is revoked,

(c)some of it is revoked, or

(d)none of it is revoked.

The only one of these outcomes that the Bill itself can deliver is (a). The rest are matters for Ministers to decide rather than Parliament.

25.Before the power in clause 1(2) can be exercised there is no requirement for consultation, for criteria to be met or for pre-conditions to be satisfied. The Government have given no indication as to how they propose to exercise the power. The Memorandum (page 17) says that, without the power in clause 1(2), significant parliamentary and government time would be employed in copying across REUL into statutory instruments. But without the mammoth repeal effected by clause 1(1), there would be no corresponding need for the wide power in clause 1(2). Nor would any copy-out be needed via regulations if the Bill itself identified precisely which laws were to be preserved.

26.Furthermore, the default proposition in clause 1(1)—that all REUL covered by clause 1 is revoked on the sunset date—is unrealistic given the regulatory gap that would appear if this law were to be revoked in its entirety.

27.The powers conferred by clause 1(2), when read with clause 1(1), are inappropriate and should be removed from the Bill. Each specific piece of REUL should continue to have effect on and after the sunset date unless the Bill contains express provision for that specific piece of legislation to be revoked from that date.

28.For information, we have not taken any position on the extraordinary revocation effected by clause 1(1). Our remit is confined to inappropriate delegations of legislative power and inappropriate degrees of parliamentary scrutiny. Clause 1(1) does not take the form of a delegated power. It contains a simple proposition of law. Others can argue against clause 1(1) on policy grounds.

Clause 2(1)—power to delay sunsetting under clause 1

29.Clause 2(1) allows Ministers by regulations to postpone the date (the end of 2023) when any REUL covered by clause 1 will (unless expressly saved) be automatically revoked. Use of this power is apt to be highly significant but is subject only to the negative procedure.

30.There is a further date beyond which such postponement may not go: 23rd June 2026, the tenth anniversary of the EU Referendum.

31.The power in clause 2(1) to extend the sunset beyond the end of 2023 is not constrained by any requirement for consultation, for criteria to be met or for pre-conditions to be satisfied. The postponement can be exceptional or the general rule, the Bill giving no indication either way.

32.The Memorandum (page 18) states that “the power is not intended for wide usage.” It also says (page 19) that “Ministers have confirmed that they do not intend on allowing the usage of this power without collective agreement”. But this is merely a statement of the doctrine of collective ministerial responsibility rather than an effective constraint on the power contained in clause 2(1).

33.The power in clause 2(1)—combined with the scale of the task of determining which pieces of REUL are to be retained, revoked or amended - gives rise to significant uncertainty as to what the sunset date will be. Given the importance of the power, we consider that its use merits affirmative procedure scrutiny.

Clause 10—modification of REUL

34.Clause 10 confers new powers to amend retained direct EU legislation (including EU Regulations). According to the Memorandum (page 36) over 50% of REUL is retained direct EU legislation (RDEUL). At present, much of this can only be amended by primary legislation or Henry VIII powers.

35.According to the Memorandum (pages 36–37), downgrading the status of RDEUL so that it can be amended by ordinary powers to amend secondary legislation (including the proposed powers in the Bill) will save parliamentary time:

“Overall, the change in status will make it possible to amend or repeal a greater amount of RDEUL using secondary legislation, which will enhance the ability for amending RDEUL more quickly without the need for primary legislation. This is a more proportionate status for RDEUL, as when made it was not subject to the same degree of UK Parliamentary scrutiny as an Act of Parliament or even domestic secondary legislation.”

36.However, RDEUL has a special status because much of it is of considerable significance in policy terms. The reason that this body of law was not subject to the same level of scrutiny by Parliament as primary legislation was nothing to do with its significance in policy terms. It was because the UK was bound by it as an EU member State.

37.In any event, the argument based on saving parliamentary time is unpersuasive. It should be for Parliament to say what is the best use of its time. The basis of the withdrawal settlement since 2018 has been that (outside of technical changes needed to make REUL work from day one) Parliament would be able to decide which elements of that law to keep, amend or repeal once the UK had left the EU.

38.Clause 10, which effects a significant transfer of power to Ministers, should be removed from the Bill. It is an unacceptable interference with the position in the European Union (Withdrawal) Act 2018 that substantial policy changes should be for Parliament to decide in primary legislation rather than for Ministers to decide in secondary legislation.

Clauses 12 & 13—power to restate REUL and assimilated law

39.The purpose of clause 12 (Memorandum, page 20) is to “clarify, consolidate and restate secondary REUL to preserve the effect of the current law while removing it from the category of REUL”. The power is only exercisable before the end of 2023, the point at which secondary retained EU law becomes “assimilated law”.

40.Clause 14(3) says that a restatement may make any change that Ministers consider appropriate to:

41.The Memorandum (page 21) adds that this power “cannot substantively change the policy effect of legislation”. We doubt whether this is correct. Where there is ambiguity as to whether policy A or policy B is intended and the legislative restatement emphatically resolves in favour of policy A, the restatement has to that extent made a firm policy choice.

42.The Government should explain why none of the law that can be restated under the powers in clause 12 would instead merit being restated in primary legislation.

43.Furthermore, when restating REUL, Ministers have the power to reproduce the effects of the supremacy of EU law, retained general principles of EU law or retained EU case law in order to ensure that the restatement has the same practical outcome that existed previously. This power may give rise to significant policy questions–though for Ministers to answer rather than for Parliament.

44.The powers conferred by clause 12 are open-ended, there being no requirement for consultation, for criteria to be met or for pre-conditions to be satisfied.

45.Clause 12 should be removed from the Bill because it inappropriately delegates legislative power. It gives Ministers powers to legislate to achieve effects that ought instead to belong to Parliament and be achieved in subject-specific primary legislation.

46.The power in clause 13—to restate assimilated law—is only exercisable from 1 January 2024, the point at which secondary REUL becomes “assimilated law”. The points made above in relation to clause 12 apply equally to clause 13. Clause 13 should be removed from the Bill because it inappropriately delegates legislative power. It gives Ministers powers to legislate to achieve effects that ought instead to belong to Parliament and be achieved in subject-specific primary legislation.

Clause 15—powers to revoke or replace secondary REUL

47.Clause 15 is the most arresting clause in the Bill for its width, novelty and uncertainty. It allows Ministers by regulations to:

(1)revoke any secondary REUL without replacing it;

(2)revoke any secondary REUL and replace it with anything Ministers consider to be appropriate to achieve the same or similar objectives;

(3)revoke any secondary REUL and make such alternative provision as Ministers consider appropriate, including with completely different objectives.

48.All these options give Ministers an extraordinarily wide discretion in relation to thousands of pieces of secondary REUL.

49.The second option is wider than it might appear because the “same or similar objectives” test relates not to effects but to objectives. A Minister might replace law A (a consumer safety law) with law B. The laws might have the same or similar objectives (protecting consumers) but achieve the objectives in ways that are controversially different. The second option enables changes of a kind that would give rise to significant policy issues.

50.The third option is the widest of the three: a power to do anything Ministers wish to do. It envisages cases involving a complete rip-up of law A and its replacement by law B with completely different objectives and methods.

51.Clause 15(4) contains some constraints, including a prohibition on imposing taxation or establishing public authorities. Clause 15(5) prevents the imposition of any increase in the regulatory burden, though there is no restriction on deregulation. The powers in clause 15 cannot be used after 23 June 2026: see clause 15(9).

52.The Memorandum (pages 25–27) offers several reasons for the powers in clause 15.

53.First, the Government are keen to make changes to REUL to make it more fit for purpose now that the UK has left the EU.

54.But the question is how such changes are to be made. Clause 15 represents a very significant departure from the approach defended by the Government in, and since, the 2018 Act. The principal purpose of that Act was to provide a functioning statute book on the day the UK left the EU. After that, it was to be for Parliament (and the devolved legislatures) to make any future policy changes of substance. Clause 15 dramatically alters this position, allocating the task of making future changes to Ministers in secondary legislation rather than to Parliament in sector-specific primary legislation.

55.Secondly, the Memorandum says it would be inappropriate to amend thousands of pieces of secondary REUL by primary legislation because a significant amount of REUL is technical in nature and would take up a significant amount of parliamentary time.

56.There are several answers to this:

57.Thirdly, the Memorandum (page 26) justifies clause 15 because the Government otherwise lack power to remove REUL from the UK statute book.

58.But this lack of power was fundamental to the European Union (Withdrawal) Act 2018 and has been consistent Government policy until now. The lack of power for Ministers in secondary legislation to change the policy effect of REUL was a corollary of the repatriation of powers from Brussels to Parliament. It cannot therefore have come as any surprise to the Government that Ministers currently lack the power to make changes to REUL that only Parliament can make. The Memorandum (page 26) mentions the political commitment made during the passage of the 2018 Act that - once technical deficiencies had been corrected - primary legislation would be needed to make significant policy changes. Until this Bill was introduced, that commitment was observed by the Government.

59.Finally, the Government argue that, because so much REUL was not created by primary legislation, it would entail a “marked reduction in the UK’s legislative dynamism” (Memorandum, page 27) if REUL required changing by primary legislation.

60.As mentioned above (paragraph 21), the reason why so much REUL was not originally created by primary legislation made by Parliament—but was instead created by secondary legislation made by Ministers—was that the UK was legally obliged under the Treaty of Rome to implement it. It was considered more appropriate that it be implemented by secondary legislation precisely because Parliament’s ability to object (and do something different) was constrained so long as we were members of the EU. But it was generally agreed that the practical importance of many of these statutory instruments implementing EU law was equal if not greater than that of many Acts of Parliament. Now that Parliament is in full possession of its powers, there is no reason why important REUL law that is thought to require amendment should not be the subject matter of primary legislation, just as the Government pledged in the European Union (Withdrawal) Act 2018.

61.The Memorandum points to the limits contained in clause 15(4), (5) and (9), including the fact that regulations under clause 15 cannot be made after 23 June 2026. But this itself is an arbitrary date - the tenth anniversary of the 2016 referendum. Given that the Government are openly resiling from the 2018 settlement, there can be no guarantee that the Government will not extend the 2026 date in future legislation.

62.Clause 15 contains an inappropriate delegation of legislative power and should be removed from the Bill.

Conclusion

63.We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether. The shortcomings of this hyper-skeletal Bill justify our approach.

1 Delegated Powers and Regulatory Reform Committee, Democracy Denied? The urgent need to rebalance power between Parliament, (12th Report, Session 2021–22, HL Paper 106).

2 Secondary Legislation Scrutiny Committee, Government by Diktat: A call to return power to Parliament (20th Report, Session 2021–22, HL Paper 105).

3 HL Deb, 12 January 2023, cols 1532–1591 (Lords Chamber).



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