The Retained EU Law (Revocation and Reform) Bill (“the Bill”) is passing through the UK Parliament. It is currently moving between the House of Commons and House of Lords for considerations of amendments. The Scottish Government lodged a supplementary legislative consent memorandum on the Bill on 24 May 2023.
SPICe has produced a blog explaining what retained EU law (REUL) is, a briefing on the Bill, and a blog explaining key amendments made to it in the House of Lords. This blog focuses on what REUL is listed in Schedule 1 to the Bill as amended and therefore what will be revoked (i.e., removed from the statute book) at the end of 2023.
What is Schedule 1?
As introduced, the Bill contained a sunset clause which applied to the majority of REUL. As a result, most REUL would have been revoked (i.e., would cease to be law by the end of 2023) unless Ministers had taken action to preserve it.
During consideration in the House of Lords, the Bill was amended to remove the sunset and instead list REUL to be revoked at the end of 2023 in a schedule (Schedule 1 to the Bill).
What REUL is listed in Schedule 1?
SPICe has collated a table with information on REUL listed in Schedule 1 of the Bill. This table only relates to REUL listed on Schedule 1 which the Scottish Government has identified in its supplementary legislative consent memorandum as relating to devolved matters. Information in the table is drawn from four sources:
- Amendment papers to the Bill from 10 May 2023 list the REUL in Schedule 1 and the extent to which it will be revoked.
- The REUL Dashboard lists REUL identified by the UK Government, including legislation listed in Schedule 1. Last updated on 12 May 2023, it gives descriptions of REUL and further information including on policy area, territorial extent, and related new legislation.
- Additional information on REUL listed in Schedule 1 published by the UK Government on 17 May 2023 provides information on the purpose of REUL listed on Schedule 1 as well as UK Government reasons for revocation.
- The supplementary legislative consent memorandum by the Scottish Government, lodged on 24 May 2023, provides a list of 148 pieces of REUL the Scottish Government considers to relate to devolved matters. It also provides a breakdown of which REUL from the list the Scottish Government considers obsolete and which it does not. A summary of this is provided below.
Why does the UK Government believe the REUL in Schedule 1 can be revoked?
Information provided by the UK Government on REUL in Schedule 1 sets out its reasons for revocation. The UK Government published this information initially on 15 May and updated it on 17 May 2023. Updates are listed in the table provided above.
Most REUL listed is classed by the UK Government as ‘inoperable’, ‘unnecessary’ or ‘redundant’ for example where the REUL in question:
- amended legislation that has been revoked in the meantime or no longer applies to the UK as a result of EU exit
- has been superseded by other legislation or is a duplicate of existing legislation
- relates to a requirement/scheme/agreement which is no longer in operation or is no longer relevant to the UK
- constituted temporary measures which have expired.
Response from the Scottish Government
The Scottish Government lodged a supplementary legislative consent memorandum (LCM) on 24 May 2023. The Scottish Parliament had previously considered an LCM on the Bill as introduced and withheld consent.
The Scottish Government’s supplementary LCM recommends that the Scottish Parliament withhold consent again, stating:
the SG and Scottish Parliament were not consulted on the list of 587 REUL instruments in the Schedule, nor our consent sought for items of REUL to be included in it. Officials were given no advance sight of the full Schedule before it was tabled as an amendment on 10 May by the UKG ahead of the House of Lords Report stage. REUL affecting devolved areas is in the Schedule for sunsetting but the UKG have given no indication of their assessment of the impact of the Schedule on devolved law. […]
Based on information from the UK Government REUL dashboard, the policy areas to which the largest proportion of REUL listed in Schedule 1 (and identified by the Scottish Government as containing devolved provision) belong appear to be environment and agriculture, including agri-foods.
Of the 148 pieces of REUL listed in Schedule 1 that the Scottish Government considers to relate to devolved matters, the Scottish Government agrees that 139 are obsolete. It does not state whether this is for the same reasons as those provided by the UK Government. In addition, the Scottish Government suggests that one of the pieces of REUL listed on Schedule 1 is already revoked in Scotland, England, and Wales.
The Scottish Government objects to the inclusion in Schedule 1 of 9 of the 148 pieces of REUL it considers to engage some devolved provisions. According to the UK Government’s REUL Dashboard, two of these sit within energy and renewables, three within agri-foods, two within maritime, and one within air quality. One additional piece of REUL does not have a policy area listed on the dashboard but relates to air pollution.
The Scottish Government states that four of the pieces of REUL not identified as obsolete require further consideration. For the remaining five, reasons given by the Scottish Government against their revocation include:
- that REUL relating to genetically modified organisms is referred to in other regulations and is therefore not obsolete
- that it “is not persuaded that the provisions of the two instruments [concerning air pollution] can be revoked without greater clarity as to the future of the Air Quality: Revised UK National Air Pollution Control Programme and assurance that there would be no legislative gaps.”
The Delegated Powers and Law Reform Committee considered the Scottish Government’s supplementary LCM and published its report on 30 May 2023. The Constitution, Europe, External Affairs and Culture Committee considered the LCM on 1 June 2023.
Annie Bosse, SPICe Research