This blog provides an overview of the Retained EU Law (Revocation and Reform) Act 2023 (“the Act”). It considers the main powers given to UK and Scottish Ministers as well as reporting requirements.
Previous SPICe blogs have considered what Retained EU Law is; the legislative consent memorandum to the Bill; key changes at Report Stage in the House of Lords and what REUL will be revoked at the end of the year. SPICe also published a briefing on the Retained EU Law (Revocation and Reform) Bill when it was introduced.
The Retained EU Law (Revocation and Reform) Bill was introduced in the UK Parliament on 22 September 2022 and received Royal Assent on 29 June 2023.
What is retained EU law?
Retained EU law (“REUL”) is a category of domestic law applicable in the UK at present. REUL was created by taking a “snapshot” of EU law and rights that applied in the UK at the end of the implementation period on 31 December 2020.
REUL was not fixed in time at 31 December 2020. As such, the REUL that is in force today is that snapshot (taken on 31 December 2020) as it has been amended by other domestic legislation since then.
What is the purpose of the Act?
The explanatory notes to the Act state its purpose as:
to enable the amendment of retained EU law (REUL) and to remove the special features it has in the UK legal system.
A SPICe briefing gives full background to the introduction of the legislation.
What does the Act do?
The Act has four main effects:
- “Sunsets” REUL listed in Schedule 1 on 31 December 2023 (i.e., the pieces of REUL listed in Schedule 1 will cease to be in force at the end of the year).
- Gives powers to UK Ministers and Ministers in Scotland, Wales and Northern Ireland to enable them to amend, revoke and/or replace, and update pieces of REUL.
- Changes the rules on how REUL is to be interpreted, by removing the principle of supremacy of EU law and other retained general principles of EU law by the end of December 2023, increasing the scope for UK courts to depart from retained EU case law, and downgrades the status of retained “direct” EU legislation, making it easier to amend and requiring it to be interpreted and applied consistently with domestic legislation.
- Renames REUL which remains on the statute book after 31 December 2023 as “assimilated law”.
What REUL is sunsetting at the end of the year?
REUL listed in Schedule 1 will sunset on 31 December 2023. UK and Scottish Ministers have a limited preservation power which can be exercised until the end of October 2023. This means that Ministers can save individual pieces of REUL listed on Schedule 1.
The preservation power is intended only to be used where Ministers realise 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). Scottish Ministers can only exercise this power in relation to REUL in devolved areas.
A previous SPICe blog considers what is in Schedule 1 in more detail.
Ministerial powers
The Act gives UK Ministers, Scottish Ministers and Ministers of the other devolved governments, extensive powers to make changes to REUL and assimilated law. UK Ministers are able to make changes to any REUL or assimilated law, including that within devolved areas. Scottish Ministers are only able to make changes to REUL within devolved areas.
These 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. The 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 (see section below on the power to update), which does not have an expiry date.
The main powers are explained below.
The power to restate REUL or assimilated law
The Act gives UK Ministers and Scottish Ministers the power to restate (i.e., replicate) most REUL or assimilated law by regulation (secondary legislation). This power is provided for by sections 11 and 12 of the Act. The power is available in relation to REUL until the 31 December 2023 and for assimilated law until 23 June 2026.
The power to restate cannot be used to make substantive changes to policy. Nevertheless, a restatement can use different wording or concepts to the REUL or assimilated law it is restating. Section 13(3) of the Act also allows Ministers to make changes where they consider that to do so may:
- resolve ambiguities
- remove doubts or anomalies
- facilitate improvement in the clarity or accessibility of the law (including by omitting anything which is legally unnecessary).
UK Ministers could use the power to restate REUL in devolved areas. There is no consent or consultation requirement in such circumstances (see section below on consent).
Regulations made under the exercise of the power are subject to the negative procedure, or the draft affirmative procedure where an instrument amends primary legislation. Where the power to restate is used, the restated legislation is no longer REUL or assimilated law. This means, amongst other things, that the powers in the Act (other than the updating power – see section on the power to update) cannot be used on the legislation in future. For example, Ministers cannot later revoke and replace (using the powers in this Act) legislation which was restated.
The power to revoke or revoke and replace
UK Ministers and Scottish Ministers are given the power to revoke or revoke and replace REUL or assimilated law under section 14 of the Act.
Ministers are able to:
- revoke REUL or assimilated law without replacing it
- revoke REUL or assimilated law and replace it with legislation which aims to achieve the same or similar objectives
- revoke REUL or assimilated law and replace it with such other law as Ministers consider appropriate.
Revocation and replacement may lead to significant change as it allows Ministers to change the law to implement different policy objectives.
An important limit on the use of the power is that any new legislation cannot increase the regulatory burden. “Burden” is defined as including “amongst other things”:
- a financial cost
- an administrative inconvenience
- an obstacle to trade or innovation
- an obstacle to efficiency, productivity or profitability
- a sanction (criminal or otherwise) which affects the carrying on of any lawful activity.
As with the power to restate, where the power to replace is used, the new legislation is not REUL or assimilated law.
Like the power to restate, this power expires on 23 June 2026.
The power to update
Ministers (both UK and Scottish) have the power under section 15 of the Act to update REUL or assimilated law to reflect changes in technology or scientific developments.
The power is exercisable in relation to REUL (up until the 31 December 2023) and then in relation to assimilated law. It can also be exercised in relation to any legislation made under the power to restate and the power to revoke and replace in the Act.
In effect, this is a rolling power for Ministers to make ‘technical’ updates. Unlike the powers above, this power does not have an expiry date.
How are the powers exercised?
The Bill provides three ways in which these powers can be exercised to change REUL or assimilated law 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.
- 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.
- 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
There is no requirement in the Act for UK Ministers to seek the consent of, or consult, Scottish Ministers or the Scottish Parliament where they plan to exercise powers in devolved areas.
Nevertheless, the UK Government has indicated, in a letter to the Scottish Government dated 17 May 2023, that UK Ministers “do not intend normally to use the powers under the Bill in devolved areas without the agreement of the relevant devolved administration”, and that, where a UK Minister intends to exercise the powers in devolved areas, they “will seek agreement on an SI-by-SI basis”. Accordingly, the process in Statutory Instrument Protocol Two may apply.
This is a protocol between the Scottish Government and Scottish Parliament which gives the Scottish Parliament a voice in relation to proposals for some 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.
What does the Act mean for the work of the Scottish Parliament?
Committees of the Scottish Parliament will be required to scrutinise Scottish Statutory Instruments (SSIs) 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.
- Scottish Ministers want to use the powers given to them in the Bill to make changes to REUL or assimilated law within devolved competence.
Committees may also scrutinise any Statutory Instrument notifications where:
- Scottish Ministers intend to 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.
- Scottish Ministers intend to agree to UK Ministers making changes to REUL or assimilated law in devolved areas.
Reporting requirements
Under section 17 of the Act, the UK Government must report to the UK Parliament every 6 months on the progress it has made, and its forward plans for, the revocation and reform of REUL. The UK Government must also publish a first report for the period ending 23 December 2023. The last reporting period ends 23 June 2026.
The UK Government must, at the same time as it reports, update the REUL dashboard.
The reporting requirements do not distinguish between reserved and devolved REUL.
Sarah McKay, SPICe research