There has been considerable opposition to the retained EU law (revocation and reform) bill (REUL) which is currently going through its second reading in the House of Commons. This article focuses on how the process and timescales will negatively impact on the UK but, in particular, the devolved nations.
Opposition to the bill
Opposition to the bill has come from three significant groups. There is political opposition to the bill as it removes parliamentary oversight and gives excessive powers to ministers. There is widespread opposition from civil, environmental, and worker, human and animal rights organisations that fear the loss of rights or standards, and there is opposition from businesses and other stakeholders that will be required to implement the changes. The ‘better regulation watchdog’, the regulatory policy committee (RPC) has stated that the bill is “not fit for purpose” (red rated).
The Scottish Parliament and the Welsh Assembly have withheld their consent to the bill and are seeking that both nations are made exceptions to its provisions. Scotland voted against Brexit, and it is Scottish government policy to remain as closely aligned to EU standards and laws as possible. At present, there is no functioning government in Northern Ireland, but the implications of the bill are considerable. Northern Ireland voted against Brexit and the majority of its citizens voted for pro-EU parties which are in favour of the implementation of the Northern Ireland protocol.
The bill’s powers
The bill is a ‘framework’ bill. It provides the framework within which future governments, without returning matters to parliament, can make decisions. Ministers will be able to amend, or revoke retained EU law. They will also be able to retain it, so long as they do so by December 2023. At the end of 2023 all retained EU law will automatically be revoked, the ‘sunset’ clause, unless it has been explicitly retained.
Except for those laws that had to be amended as a legal consequence of, or to enable the UK to (legally) leave the EU, almost all EU law was retained when we left. This decision was a pragmatic one. There was insufficient time to review the legislation and determine which should be revoked or be retained.
The scale of the task for government
There are over 150,000 pieces of EU legislation and regulations that could, potentially, require change. Somewhere between 2,400 and 4,000 pieces of retained EU law have already been identified on which a decision will need to be made and more are being found every day. The difficulty is that it is not always clear which are EU laws, and when or how they were incorporated into UK law.
The UK, in anticipation of being a permanent EU member, did not record the provenance of every new law it enacted or make a list of those laws that derived from EU powers. Put simply, the UK government doesn’t know what it doesn’t know and the only way to find out and ensure every law has been adequately assessed would be to examine the 150,000 EU laws and identify which are likely to have been applied in the UK or examine every UK law passed since joining the common market and checking the powers under which it was made.
To further complicate the task, the government’s intention is not solely to address EU law, or its UK derivation as stated on the statute book but to also include any court (EU or UK) judgments that have a whiff of having been adjudicated according to EU law.
According to the UK government website, “departments would audit the REUL impacting their areas of responsibility, and identify where REUL should be removed, replaced or updated”. Only with extremely knowledgeable staff coupled with a high degree of institutional memory, or expertise specifically brought in to undertake this task, will the government be able to identify the most frequently used EU-derived law or to recognise it as such. Civil servants will need to identify, not just the laws and regulations that have been used but also those that may impact on some future, as yet unknown, activity the UK government or its citizens wish to undertake.
Businesses and public bodies will also have to identify what laws apply to them. Many of them will not know and will lack the resources to undertake a systematic trawl. Most will not know whether the legislation with which they are compliant was EU derived or not. Organisations whose activities are still embedded in the EU, even marginally, will also need to consider what representations they will need to make to the UK government to ensure they are not operating outside the law once the EU legislation falls.
Organisations may find, some years down the line that, through the default mechanism, it has repealed laws or regulations that were essential to the country’s functioning or protection of its citizens. Commercial disputes are inevitable where standards are misaligned.
Implications for the devolved nations
The devolved nations have very different political, institutional and financial settlements. Scotland has more policy sovereignty than Wales and Northern Ireland while Northern Ireland is closely aligned with Ireland with reciprocal arrangements, especially in terms of nationality. The constitutional arrangements of all, to a greater or lesser degree, are embedded within EU as well as UK law.
For example, the regulations relating to UK, national, and local elections were made under European Community Act 1972 powers and so fall within REUL. Exactly which of the regulations to be considered are solely reserved to the UK parliament, or have been incorporated into the law of the devolved nations and will therefore require devolved governments to determine their retention or amendment, has yet to be identified.
Other complex areas will include the environment which is devolved, but energy which is not; health care which is devolved, but equality which is not; justice and policing which are devolved, but drugs and immigration which are not – and so on. The UK government has yet to identify the processes or mechanism for determining how the review of legislation will proceed with the devolved nations let alone what is relevant, or which jurisdiction is responsible (and whether this is jointly shared or requires consent).
The committee hearing on the retained EU law (revocation and reform) bill heard from Angus Robertson commenting on the concerns of the Scottish Government. At this stage the focus is on the impact REUL will have on devolution and sovereignty, and the Scottish and Welsh governments are clear they want to be excepted from the provisions of the bill and they have already voted to deny consent. They have also made it clear that they have their own legislative programme which should be respected and take priority.
As currently drafted, the sunset clause means that laws that have not been retained or amended by the end of 2023 will automatically fall. Amendments to the bill may extend the sunset to 2026 and it is possible that the government could do a bulk extension, although the draft legislation requires the laws to be specified. Any extension will apply only up to the end of 2026 (the absolute maximum date the bill allows for).
The UK government REUL ‘dashboard’ which notes the number of laws for each government department, does not include those for the devolved nations, nor are the various national offices included as departments whose civil servants should be busy auditing EU law.
No dates have yet been set for the second reading of the bill or transition through committee stages and the Lords. If the bill is passed we will be well into 2023 before it becomes law and the real work and negotiations start. The work involved in determining which laws or regulations are reserved, partly reserved or are impacted by the decisions the UK government takes will take some working through. The UK civil service has already told Rishi Sunak that the deadline cannot be met and should be extended by three years.
The lead responsibility for the bill/act and its implementation lies with the UK government, not the devolved nations. The Scotland Act of 1998 does not set out which matters are reserved to the Scottish Parliament. It requires the UK to set out those matters reserved to it, with the remainder automatically devolved.
This is not to say that the UK government can arrogate matters to itself as it chooses or that those areas that have been, devolved to Scotland (by intent or neglect) can be rescinded. What it does mean, however, is that UK government lawyers are responsible for identifying the legislation that the UK government has expressly retained and must work with Scottish government lawyers on understanding where the boundaries lie and the implications of them. It will be a complicated process.
While the UK maintains that “the UK Parliament remains sovereign, but has not knowingly legislated on a devolved matter since devolution without the agreement of the Scottish Parliament” it has, passed legislation on which one or more of the devolved nations have expressly denied their consent (Brexit and the Nationality and Borders Act) and is likely to do so again with this bill. Also, if it fails to allow sufficient time for the devolved governments to work through all the relevant EU legislation and the legislation falls by default, the UK government will have, effectively, legislated on devolved matters.
Destined for failure
Generally, when there is a change in the law, affected businesses and organisations are advised through public information campaigns or targeted government communications. Under this legislation, anything that is not actively retained by ministers, or the ‘sunset’ date pushed back to June 2026, will automatically fall.
If legislation automatically falls at the end of next year, and it is not clear until the eleventh hour which will be retained or lost, no advisory process will have been undertaken to inform stakeholders of the change in the law and how it affects them. At best, they will be operating in a legal vacuum and, more likely, chaos and confusion will ensue with some well-informed parts of the system or supply chains acting on the changes while others are oblivious to them. There is a huge potential for legal challenges.
The way the government is managing this process is very much like its management of Brexit. Concerned only about passing legislation in the quickest possible time to suffocate dissent, scramble rational thought and make a policy reversal impossible, even in the knowledge that it will be damaging and costly. There is almost no hope of this legislation being implemented with any semblance of order or even a reasonable understanding of what is required, leaving a messy patchwork of retained and abandoned law, and overall confusion.
This chaos and poor management is not of the devolved nations’ choosing. They do not have the capacity to do the work this act requires but are to be denied the right to make all devolved legislation remain adherent to EU law until such time as the necessity for change is evident. The UK government has yet to engage with them in any meaningful way and, judging by the questions raised by the commons committee and their responses to Angus Robertson’s evidence, UK parliamentarians and ministers have very little understanding of either the bill or its implications for the UK let alone the devolved nations.
This contempt for the devolved nations will further dissolve their ties to the UK.