Introduction
We have discussed concerns raised by the business community with the Retained EU Law Bill in earlier Insights and at our recent Brexit Revisited event. These concerns were reflected in the UK Business Secretary's announcement that the UK Government was dropping plans for the controversial "sunset clause" in the Bill. The Secretary of State, Kemi Badenoch, justified this dramatic volte-face on the basis that it would provide certainty for business. The upshot is that the original default position in which all Retained EU Law (REUL) was to be revoked, except pieces which were to be expressly saved, has changed.
The new default position is that all REUL remains on the statute book unless it is on the specified list of REUL to be revoked. This list is to be found in Schedule 1 to the Bill. As things stand, only the REUL specified in Schedule 1 will be revoked on 31 December 2023. REUL not specified in Schedule 1 will remain on the statute book and will become assimilated law.
Schedule 1 is in two parts. Part 1 lists individual pieces of subordinate legislation, including identifying whether they are operable or non-operable or redundant. Every entry is a Statutory Instrument which was made in the UK Parliament. Part 2 of Schedule 1 lists individual pieces of retained direct EU law. It is not a definite list of what will be revoked. This is because the Bill gives power to Ministers to specify that entries in the list should not be revoked.
In brief, the recent legislative history of the Bill is that it was considered by the House of Lords on 15 and 17 May at the Report Stage and it passed the Third Reading stage on 22 May. The Lords amended the Bill, crucially in relation to the repeal and replacement processes. Although these amendments went some distance towards allaying concerns as to the extensive powers afforded to the Executive, the most significant amendments proposed were neutralised when the Bill returned to the Commons on 24 May and not fully restored by the Lords on 7 June.
Key amendments in the House of Lords
Five non-governmental amendments of substance made in the House of Lords were addressed directly when the Bill returned to the Commons. Four were related to the repeal and replacement process, while the fifth proposed to insert a new clause into the Bill placing obligations on the Secretary of State in relation to the upkeep of the dashboard.
- Ministerial Order - v- Parliament Debate: The first amendment provided for a process for debate in relation to any of the laws specified in Schedule 1 for repeal at the end of 2023, should a Joint Committee of Parliament be concerned that the repeal constitutes a significant change to UK law. The Government amendments already contemplated the possibility of saving parts of this legislation by passing a Statutory Instrument to that effect.
- Preservation of Rights: The second amendment related to the repeal of section 4 of the European Union (Withdrawal) Act 2018 which preserved a wide range of rights, powers, liabilities, obligations, restrictions, remedies and procedures created by the application of section 2(1) of the European Communities Act 1972 even though not contained in either domestic law implementing EU law or directly applicable EU measures. This amendment replaces Clause 4 of the REUL Bill with a provision intended to ensure that there is a process available that could allow for the preservation of specified rights etc after the end of 2023. This requires a report or reports by a relevant Minister by the end of October 2023 and a vote in the relevant Parliament / Assembly on any rights proposed for preservation. Lord Hope proposed the amendment on the basis that it was unclear what would be lost by this repeal and that there should be an opportunity to consider whether any rights etc preserved by section 4 of the Withdrawal Act should continue to apply beyond the end of 2023. The rights affected are not exhaustively catalogued and the process had the potential to produce different results in different parts of the UK.
- Replacement Laws: The third amendment was designed to introduce a provision which would give Parliament greater control over the replacement of retained EU law after the end of 2023, so that Parliament can be satisfied that the changes have been appropriately consulted on and considered. The proposal was that, in certain circumstances, a Joint Parliamentary Committee could propose amendments which, if approved by Parliament, had to be included in the replacement law. This is an important change, which is responsive to the criticism by several MPs and Lords of most political parties that the REUL Bill did not provide for sufficient Parliamentary oversight and left too much to ministers and civil servants.
- Environment and Food Standards: Fourth, there was a proposal specifically in relation to the future development of retained EU law as it relates to environmental protection and food standards. This provided for processes to ensure that any replacements for retained EU law relating to the environment or food standards maintain at least the same standards of protection as the retained EU law measures that they replace and that they comply with relevant international environmental agreements to which the UK is a party. This responded to concerns that the Government might use replacement of retained EU law to weaken environmental protections.
- Dashboard Updates: Finally there was a proposal to update the retained EU law dashboard and to report on the revocation and reform of retained EU law in periods up to 23 June 2026. This latter amendment was approved, subject to minor amendments, when the Bill returned to the Commons on 24 May 2023.
However, despite the best efforts of the Lords to signal their concerns over the Bill, many of which were shared by businesses and other stakeholders, they were largely objected to by the Commons. When the Bill returned to the Lords on 7 June, the House revisited three areas of contention, namely the proposals;
- to introduce a provision which would give Parliament greater control over the replacement of retained EU law after the end of 2023;
- in relation to environmental protection and food standards, and;
- to update the retained EU law dashboard and report.
The overall effect of this ping pong process is that the original proposals of the House of Lords are diluted and limited, while on the proposal in relation to the dashboard and reporting, the Lords insisted on its amendment requiring a list of the provisions of retained EU law which the government intends to revoke or reform. This process will conclude when the exact working of the Bill has been agreed by the Commons and the Lords. The Bill will then be ready for Royal Assent.
In a separate seam of dissent, both the Scottish Parliament and the Senedd Cymru voted to withhold consent for the REUL Bill. In a debate in the Scottish Parliament, Angus Robertson MSP described the Bill as "reckless" and argued that the UK government did not properly seek the agreement of the Scottish government. MSPs voted to withhold the Scottish Parliament's consent to the Bill demonstrating a lack of respect for the Scottish Parliament and recommended that the Bill be withdrawn.
Conclusion
While the controversy surrounding the REUL Bill continues, perhaps the most positive result of this episode is that the UK government's change of approach - from a default position of revocation to a default position of retention - is a welcome turn of events.