112: Retained EU Law: An update

The Government has announced that significant modifications will be made to the Retained EU Law (Revocation and Reform) Bill.

Sunset for sunset clause

Last week, Kemi Badenoch, Secretary of State for the Department for Business and Trade, announced that the Government was dropping plans for the controversial ‘sunset clause’ in the Bill. That clause, as discussed previously, would have automatically repealed, at the end of 2023, any EU-derived legislation not expressly identified being saved under the Bill. Instead, the Bill will now provide for the repeal of only a limited amount of EU-derived legislation specifically identified in it. All other EU-derived legislation will be retained. The Secretary of State argued that this change was justified on the basis that it will ‘provide certainty for business by making it clear which regulations will be removed from our statute book, instead of highlighting only the REUL that would be saved’.

The next day, Badenoch was called to the House to respond to the urgent question tabled by Sir William Cash, the Chair of the European Scrutiny Committee (‘ESC’). He questioned her on her failure to make an oral statement to the House before the written statement and before her article in The Telegraph that day. Badenoch defended her actions by professing not to realise the ‘excitement’ the announcement would cause, this was simply a technical change, the aim of the Bill was unchanged, and it had simply been approached in a new way.

Sir William remained disgruntled at the ESC’s role, to examine the ‘legal and political consequences of EU legislation’, being disregarded. Further, since February, Badenoch had been asked to appear before the House and had failed to do so on three occasions. Sir William called for the report stage in the House of Lords to be postponed until Badenoch had been before the ESC to answer the questions on the change of policy. Badenoch maintained it was not a change of policy, but a change of approach.

The U-turn has been broadly welcomed. The Law Society welcome the removal of the sunset clause, though they remain concerned about the Bill in other ways, especially regarding parliamentary scrutiny of future legislative changes. The Institute for Government (IfG) similarly welcomed the change as avoiding the ‘immediate risk of oversights and mistakes’ and that it ‘gives a degree of certainty’.

As we discussed previously, there was widespread concern about the legal uncertainty to be caused by the sunsetting process, how it would be implemented, and the scope of UK law to which it would apply. Not least, because the proposals were estimated to affect around 3,800 laws, particularly in the environmental sphere. As the Secretary of State conceded, the sheer amount of law involved meant that the civil service, faced with an inflexible deadline, had focused on identifying the EU-retained legislation to be saved, rather than on what should replace it. In explaining the change, the Secretary of State argued that, with this modification, attention could instead be focused on reforming retained EU law in a more efficient way, stating that it made sense to work out what EU-derived law would be replaced with before repealing it. That does rather amount to a concession that the Government’s approach was fundamentally flawed from the outset. Badenoch’s statement hopefully suggests a much more sensible approach to regulatory reform, and her references to a ‘proper assessment and consultation’ are also reassuring.

Controversial, even for a U-turn

The manner of the Government’s U-turn was also controversial.

Aside from the Secretary of State’s failure to appear before the House of Commons before making her announcement, for which she was scolded by the Speaker Lindsay Hoyle among others, the change also came at the eleventh hour in the Bill’s passage. By way of reminder, the Bill completed its House of Commons’ stages in January of this year and has now completed Committee stage in the House of Lords. At the time of the announcement, only Report stage, from 15 May 2023, and third reading, 22 May 2023, remained. That clearly reduces the potential for Parliamentary scrutiny of the Government’s new approach, particularly by the Commons (the Bill’s substantive Commons’ stages having concluded).

Additionally, the Commons already approved the principle of the Bill at Second Reading. This led to some angry exchanges in the House of Commons when the Secretary of State appeared to explain the change. Various backbench Tories, including leading members of the European Reform Group, asked the Secretary of State to explain why it was necessary / justified to drop such a central concept in the Bill at this late stage when the Commons had already approved sunsetting in principle. Former minister, Mark Francois, asked why there has been a ‘massive climbdown’ on the Bill despite having ‘such strong support’ from its own backbenches and Jacob Rees-Mogg, the former Brexit opportunities minister, accused the Prime Minister of ‘behaving like a Borgia’ after promising a complete ‘post-Brexit bonfire’ of remaining EU-era laws. Badenoch took care to stress that this was not the Prime Minister’s decision – which seems rather contrary to the convention of collective Cabinet responsibility.

The change does however reflect the Prime Minister’s direction of travel in respect of Brexit-related matters, prioritising pragmatic governance and stability over what might be termed ideological purity. A comparable compromise was also reached in respect of Northern Ireland Protocol under the Windsor Framework. The Prime Minister would argue, no doubt, that such pragmatism does not prevent the Government from departing from EU-derived orthodoxies: the Government is already pursuing reforms to a number of areas previously governed by EU-derived law, eg financial regulation, data protection, life sciences, and is forging its own path on new issues like artificial intelligence, ensuring Government visions of ‘building a pro-growth, high-standards framework that gives business the capacity and the confidence to innovate, invest and create jobs’ can materialise. Whether he is able to bring the Brexiteers with him is another matter.

Concerns remain

Concerns remain, more generally, about other measures in the Bill, eg to allow Ministers to more easily modify, replace and revoke retained EU law (‘REUL’) without using primary legislation, to reduce parliamentary scrutiny of delegated legislation, to do away with the supremacy of EU law, to protect devolution settlements. The Government is still giving itself the power, permanently, to amend REUL, with no commitment to consultation or proper parliamentary scrutiny on the face of the Bill.

The House of Lords broadly welcomed Badenoch’s announcement and the Government’s U-turn when it debated the Bill further on 16 May 2023 and 17 May 2023. Lord Hope of Craighead described the new amendments as ‘a victory for common sense’ and rejected the idea that the change was ‘because of a failure of effort by civil servants’. He did note the mounting concern, though, that ‘taking back control over our laws – which is what Brexit was all about – has resulted in handing back this control to Ministers and civil servants, and not to Parliament’.

The Lords continued to modify the Bill to address these concerns, amending the Bill to grant devolved administrations in Scotland, Wales, and Northern Ireland the final decision as to whether to keep any direct EU legislation that is proposed to be scrapped under the Bill. This is unsurprising, particularly in relation to the other significant changes made, since several of the proposed amendments, as planned to be considered in the House of Lords before Badenoch’s announcement, dealt with the devolved administrations and ensured there would be sufficient parliamentary scrutiny. These amendments, namely, Amendments 117–119, strived to maintain a Bill that would be accurate, workable, and, above all, democratic.

It remains to be seen whether the Commons will undo the Lords changes, or if the Sunak’s Government really is intent on steering a less ideological course through post-Brexit waters.

If you have any queries about the information in this blog or the Retained EU Law Bill, please contact Aaron Nelson or Rebecca Bridson.