This extended blogpost considers the substantial changes made to the Retained EU Law (Revocation and Reform) Bill (“the Bill”) at Report Stage in the House of Lords.
The Bill was introduced in the House of Commons on 22 September 2022. The Bill is still subject to further change during the remainder of its passage through the UK Parliament. This includes third reading in the House of Lords, consideration of the Lords amendments by the Commons and possibly ‘ping-pong’ should the Commons make further changes.
A previous SPICe blog explains what retained EU law (“REUL”) is. A SPICe briefing is available on the Bill and a previous blog also looks at the Scottish Government’s legislative consent memorandum for the Bill.
It may be helpful to remember that REUL is domestic law applicable in the UK at present. It began as a copy of the EU law and rights that applied when the UK was a member of the EU (at the end of the implementation period on 31 December 2020).
This is a longer blogpost than normal, and so we’ve added a contents popout here for ease of navigation:
The Bill as introduced
As introduced the Bill put a ‘sunset’ (an expiry date) of 31 December 2023 on the majority of REUL. This meant that most REUL would be revoked (removed from the statute book) at the end of the year. There was an option of extending the expiry date beyond the end of the year, but the power to do so was given only to UK Ministers.
At report stage in the House of Lords (15 and 17 May 2023), the UK Government tabled amendments (and their Lordships agreed them) which changed the Bill’s approach to the sunset significantly.
The sunset of 31 December 2023 for the majority of REUL was removed. Instead, only the REUL specified in a schedule (Schedule 1) attached to the Bill will be revoked at the end of the year. REUL not specified in Schedule 1 will remain on the statute book. In other words, the default position that all REUL would be revoked except pieces which were expressly saved has changed to a default position that all REUL remains on the statute book unless it is on the specified list (Schedule 1 to the Bill) of REUL that will be revoked.
In its response to the House of Lords Delegated Powers and Regulatory Reform Committee’s report on the Bill, the UK Government explained the amendments as follows:
the current scope of the sunset in clause 1, which proposed the revocation of a broad category of retained EU law, will be replaced with a new Schedule to the Bill. This schedule will contain retained EU law (REUL) that departments have identified for removal and this will be revoked on 31 December 2023…REUL not listed in the Schedule would still be stripped of its special status and become assimilated law at the end of the year, but would not sunset.
As the sunset is no longer in the Bill, the power for UK Ministers to extend the sunset beyond the end of this year was also removed at report stage in the House of Lords.
What REUL will be revoked on 31 December 2023?
Schedule 1 to the Bill (as Inserted by the House of Lords) lists the REUL which will be removed from the UK statute book at the end of this year.
Schedule 1 is in two parts, which revoke two different types of REUL: “subordinate legislation” and “retained direct EU legislation”.
Part 1 of Schedule 1 lists individual pieces of subordinate legislation which fall into the REUL category. Every entry in part 1 is a Statutory Instrument which was made in the UK Parliament. These instruments are REUL because they implemented or related to EU obligations.
Part 2 of Schedule 1 lists individual pieces of retained direct EU law. Retained direct EU law is a category of REUL which is made up of the UK versions of EU Regulations, EU Decisions and EU tertiary legislation which were copied over into domestic law at the end of 2020.
Schedule 1 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. This power was also added by amendment in the House of Lords (see section below on the power to preserve REUL).
On 15 May 2023 the UK Government published information on the REUL contained in Schedule 1. On the webpage dedicated to information on the REUL listed in Schedule 1 it explains:
“The list covers each piece of legislation being revoked and the reason it is being removed from the statute book at the end of 2023.”
The information available on the REUL listed in Schedule 1 is additional to the information made available in the UK Government’s REUL dashboard. The latter does not, for example, indicate whether REUL is operable or non-operable (i.e., whether it is actually in use in the UK).
The power to preserve REUL
In the Bill as introduced, Ministers of both the UK Government and devolved authorities in Scotland, Wales and Northern Ireland were given a power to preserve (i.e., keep on the statute book) specific pieces of REUL. This meant that Ministers could make secondary legislation to save certain pieces of REUL from sunsetting on 31 December 2023.
UK Government Ministers could make such regulations for both reserved and devolved REUL and Ministers of the devolved authorities could make such regulations for REUL which fell within their devolved competence.
Given the change in approach put in place by the House of Lords amendments (the sunset for all REUL being removed as explained above), now Ministers do not need to specify in secondary legislation REUL which they want to preserve (i.e., REUL which they wish to keep on the statute book after 31 December 2023).
Nevertheless, the Bill as amended does still grant UK Ministers and Ministers in Scotland, Wales and Northern Ireland, a time-limited (until 31 October 2023) preservation power. It is intended only to be used where Ministers realise after Royal Assent that something listed in Schedule 1 and therefore set to revoke on 31 December 2023 should, in fact, remain in force (i.e., continue to be the law after 31 December 2023). The UK Government has described when the power should be used as follows:
This power is only intended to be used subsequent to Royal Assent in the case of technical errors where REUL may have been wrongly included on the revocation schedule.
The power can be used by UK Ministers or (within devolved competence) by the Scottish Ministers and the other devolved authorities. It would be exercised by the Ministers making regulations which are laid in the relevant legislature.
Powers to revoke, restate, replace and update REUL
What hasn’t changed is the powers the Bill gives to UK Ministers, Scottish Ministers and the other devolved authorities (Ministers in Wales and Northern Ireland) to enable them to restate, revoke, replace and update pieces of REUL (which the Bill renames ‘assimilated law’ after 31 December 2023).
In the Bill as amended, all powers are granted to UK Ministers and devolved Ministers concurrently and jointly. ‘Concurrently’ means that they can be used either by a UK Minister or a devolved administration independently of each other in devolved areas. ‘Jointly’ means a UK Minister and a devolved administration acting together.
These powers generally allow Ministers to change REUL or assimilated law by secondary legislation and are available until 23 June 2026. The exception is the power to “update”, which does not have an expiry date. The SPICe briefing ‘Retained EU Law and the Retained EU Law (Revocation and Reform) Bill’ explains all of the powers given to Ministers to amend REUL and assimilated law in more detail.
In practice, these powers mean that Ministers can continue to make changes to REUL (or assimilated law after 31 December 2023) for some time.
The Bill provides three ways in which these powers can be exercised to change REUL (or assimilated law after 31 December 2023) within Scottish devolved competence.
Where Scottish Ministers wish to use one of these powers on their own, they must do so by laying a Scottish Statutory Instrument (SSI) in the Scottish Parliament in the usual way. The Delegated Powers and Law Reform Committee webpage gives details of the scrutiny process for SSIs.
Second, Scottish Ministers and UK Ministers could exercise the powers “jointly”. This would involve the Statutory Instrument being laid in, and subject to approval or annulment by, both the Scottish Parliament and the UK Parliament.
Third, UK Ministers could use the powers to change REUL (or assimilated law) in devolved areas. Where UK Ministers wish to do this, there is no consent or consultation requirement. This means that UK Ministers could use the powers given to them in the Bill to change the law in devolved areas in Scotland without the consent of, and without consulting, Scottish Ministers or the Scottish Parliament.
Consent when UK Ministers exercise powers in devolved areas
The Parliament’s Constitution, Europe, External Affairs and Culture Committee has noted that since 2016 there has been a marked increase in the number of new delegated powers conferred on UK Ministers to make legislation in devolved areas. The result is that an increasing amount of secondary legislation which is within the Scottish Parliament’s competence may be made in the UK Parliament rather than in the Scottish Parliament.
“the extent of UK Ministers’ new delegated powers in devolved areas amounts to a significant constitutional change. We have considerable concerns that this has happened and is continuing to happen on an ad hoc and iterative basis without any overarching consideration of the impact on how devolution works.”
There is a protocol – Statutory Instrument Protocol Two – between the Scottish Government and Scottish Parliament which gives the Scottish Parliament a voice in relation to proposals for some of the secondary legislation being made by UK Ministers in devolved areas. This is limited, however, to scrutinising the Scottish Government’s decision to consent to such legislation, not scrutinising the legislation itself.
Lord Hope tabled a number of amendments (35,37 and 39) at report stage in the House of Lords which would have written into the Bill a statutory consent requirement where UK Ministers planned to restate, revoke or replace REUL in devolved areas. These amendments would have prevented UK Ministers making the regulations unless the devolved legislatures passed a legislative consent motion (i.e., a motion in which the Parliament agrees that the UK Parliament should legislate in an area of devolved competence). The legislative consent motion process under the Sewel Convention is designed for primary rather than secondary legislation. As such, this approach would have been novel.
Lord Hope’s amendment 75 proposed changes to Schedule 4 of the Bill to require that any regulations made by UK Ministers under sections 1-20 of the Bill be subject to the consent of the relevant devolved Ministers. This would have meant that before UK Ministers could make changes to REUL or assimilated law devolved areas, they would first have needed to obtain the consent of the Scottish Ministers, Welsh Ministers or Ministers of the Northern Ireland Assembly as applicable.
During the debate on this group of amendments, Lord Hope indicated that he would not press them (i.e., withdraw or not move as appropriate) saying:
“I will not press the amendments, but I hope that the message is still powerfully in the mind of the Government that continued co-operation and easing of the pressures round about to achieve a consensus across the board is the way to proceed if we possibly can.”
Their Lordships were content with the response of the UK Government Minister, Baroness Neville-Rolfe, to the points raised in the debate. The Minister saying that:
“The UK Government are committed to ensuring that the provisions in the Bill, including its powers, are consistent with the devolution settlements and work for all parts of the UK…It is not necessary to limit the use of the powers within areas of devolved legislative competence by requiring UK Ministers to obtain legislative consent. Rest assured, the concurrent nature of the powers is not intended to affect the devolution settlements, nor to influence decision-making in devolved Governments. Rather, it is intended to reduce additional resource pressure on the devolved Governments by enabling the UK Government to legislate on behalf of a devolved Government where they do not intend to take a different position.”
What happens next?
The Lords is still to have its third reading of the Bill, scheduled for 22 May 2023, where further changes can be made (although normally only of a minor nature to ‘tidy up’ the Bill). The Bill will then return to the House of Commons for MPs to consider the amendments made by the Lords.
In the Scottish Parliament, given the amendments that have been made to the Bill, it is likely that a supplementary legislative consent memorandum will require to be lodged by the Scottish Government. Under Standing Orders, this should be lodged by 24 May 2023 (being two weeks after the amendments were published). This memorandum will then need to be considered by the Parliament.
Once the Bill receives Royal Assent, Ministers may use the powers given to them in the Bill. This means that Committees of the Scottish Parliament may need to consider:
Scottish Statutory Instruments
- Any Scottish Statutory Instruments where Scottish Ministers want to exercise the power to preserve REUL that is listed for revocation in Schedule 1 before the end of October 2023.
- Any Scottish Statutory Instruments where Scottish Government Ministers want to use the powers given to them in the Bill to make changes to REUL (assimilated law after 31 December 2023) within devolved competence.
Statutory Instrument notifications
- Any statutory instrument notifications where Scottish Ministers agree to UK Ministers using the power to preserve REUL within devolved competence that is listed for revocation in Schedule 1 before the end of October 2023.
- Any statutory instrument notifications where Scottish Ministers agree to UK Ministers making changes to REUL (assimilated law after 31 December 2023) in devolved areas.
Sarah McKay, SPICe research