The Retained EU Law (Revocation and Reform) Act 2023 gave UK and Scottish Ministers extensive powers to change the body of domestic law known as assimilated law (previously retained EU law).
This blog summarises reporting requirements under the Retained EU Law (Revocation and Reform) Act 2023 and considers the first update from the Scottish Government. The update was provided to the Constitution, Europe, External Affairs and Culture Committee on 8 February 2024.
Background
The Retained EU Law (Revocation and Reform) Act 2023 (“the REUL Act”) gives UK and Scottish Ministers the power to restate (i.e., replicate), revoke or replace most assimilated law (previously known as retained EU law) by secondary legislation until 23 June 2026. Ministers (both UK and Scottish) also have a continuing power to update assimilated law to reflect changes in technology or scientific developments. SPICe has written extensively on this issue in previous blogs.
Reporting requirements on the UK Government under the REUL Act
Section 17 of the Retained EU Law (Revocation and Reform) Act 2023 (“the REUL Act”) creates a duty on the UK Government to report on the reform of assimilated law. Reporting periods are provided for in the REUL Act and are:
- first report: Royal Assent to 23 December 2023
- subsequent reports: each subsequent period of 6 months
- final report: the period of 6 months from 24 December 2025 to 23 June 2026
The Secretary of State is required to, within 30 days of the end of each reporting period:
- update the REUL dashboard (the dashboard contains details of all assimilated law but does not contain details of wholly devolved assimilated law)
- lay before the UK Parliament a report on the revocation and reform of assimilated law.
Each report of the UK Government must:
- provide a summary of the data on the dashboard (as updated)
- set out the progress that has been made in revoking and reforming assimilated law during the reporting period
- set out the UK Government’s plans to revoke and reform assimilated law in subsequent reporting periods (this must include a list of the provisions the UK Government intends to revoke or reform).
The UK Government website also provides details of all REUL SIs (i.e., those laid and made under the REUL Act).
Reporting by Scottish Ministers
The REUL Act does not place any reporting requirements on Scottish Ministers. The Scottish Government has, however, agreed to update the Parliament on a biannual basis. The updates will be provided following publication of the UK Government’s statutory reports on the REUL Act, meaning that they will be provided to the Parliament prior to February recess and shortly after summer recess.
These reporting arrangements were agreed by the Constitution, Europe, External Affairs and Culture Committee which wrote to the Parliament’s subject committees on 30 January 2024 to confirm the arrangements.
The biannual updates will cover three main areas:
- Scottish Statutory Instruments (SSIs) made under the REUL Act by Scottish Ministers and SIs which Scottish Ministers have given their consent to UK Ministers making in devolved areas (such Statutory Instruments (SIs) are notified under Statutory Instrument Protocol Two)
- SSIs made by Scottish Ministers or SIs made by UK Ministers under other powers but with the primary purpose of directly handling REUL Act changes that took effect on 1 January 2024
- a forward look providing information on the Scottish Ministers’ policy towards assimilated law which is to include highlighting primary legislation which may be introduced in the next review period which includes delegated powers which are ‘recognisable’ to those powers in the REUL Act.
First UK Government report
The UK Government published its first statutory report on 22 January 2024. It shows that as at 1 January 2024, 4524 pieces of assimilated law remain unchanged. Prior to 1 January 2024, 1369 pieces of REUL had been repealed, 759 pieces had been amended and 39 pieces had been replaced.
The report indicates that 26 SIs were made by the end of 2023 under REUL Act powers and other domestic legislation. A briefing by the House of Commons Library on the report shows that, based on explanatory memorandums accompanying the SIs, the majority were not anticipated to lead to significant policy changes with the exception of two SIs relating to wine production/marketing and employment rights.
Beyond the REUL Act, the report also states that primary legislation was passed in 2023 which affects assimilated law:
The Procurement Act 2023 will replace a number of existing procurement regulations. The Financial Services and Markets Act 2023 and the Procurement Act 2023 will together revoke some 600 pieces of REUL
The report further sets out a roadmap for future assimilated law reform:
[…]in 2024 the Government’s roadmap for REUL includes a further 500 reforms and revocations. Beyond that we are on track to repeal or reform over half of the entire stock of REUL accrued in the more than 40 years that the UK was a member of the EU by June 2026. […]
Departments are continuing to review the remaining assimilated law on the statute book. In some instances, departments have determined that assimilated law is already optimised to meet the needs of the UK economy and in line with the principles of the Smarter Regulation programme. In other instances, assimilated law is necessary to ensure the UK continues to meet its international obligations.
The report also lists a number of proposed reforms of assimilated law that it anticipates will be brought forward in 2024, including in relation to clinical trials, the wine sector, invasive alien species of special concern, and veterinary medicines.
First Scottish Government report
The Scottish Government provided its first update to the Constitution, Europe, External Affairs and Culture Committee on 8 February 2024.
With regards to the overall approach taken to reform of assimilated law, the update notes:
The Scottish Government confirms that it has no ambition to revoke or reform assimilated law simply because it is the law that was retained from the period of the UK’s membership of the EU. It follows that the Scottish Government has no REUL Act Revocation and Reform Programme, and this update has been shaped accordingly.
The Scottish Government recognises that there may be particular cases for reforming particular assimilated law and in the medium to longer term devolved assimilated law will need to be reformed and updated so that there is alignment with new EU standards.
This statement refers to the Scottish Government’s commitment to align with EU law where appropriate. See a SPICe blog on the background to this commitment.
The Scottish Government’s update covers the period June to December 2023. It lists the following changes made by secondary legislation to REUL during the reporting period:
- two Scottish Statutory Instruments (SSIs) updated terminology and clarified the application of assimilated law affected by changes made by the REUL Act.
- eight UK Statutory Instruments (SIs) made under REUL Act powers about which the Scottish Parliament was notified under Statutory Instrument Protocol Two.
In terms of plans for future assimilated law reform, the update states that “the Scottish Government has no plans to use REUL Act powers to alter policy” but that it may “consider making further technical, consequential amendments to those made by SSI (i) [which ‘replaced references to retained EU law terminology with assimilated law terminology in the devolved statute book’][…].”
The update sets out three assimilated law proposals subject to consultation exercises (jointly with the UK Government):
- Consultation on removing the 16-week derogation period in egg marketing standards legislation in England and Scotland […]
- Call for evidence on reforming the producer responsibility system for waste electricals 2023 […]
- Consultation on reforming the producer responsibility system for waste electrical and electronic equipment 2023 […]
All three consultations closed in early March 2024.
The update further notes that the Agriculture and Rural Communities (Scotland) Bill, currently under consideration at the Scottish Parliament, would amend existing powers in the Agriculture (Retained EU Law and Data) (Scotland) Act 2020 to modify assimilated CAP legislation. SPICe has published a briefing on the Bill that provides more information on these powers.
Conclusion
The first report by the UK Government on reform of assimilated law shows that most Statutory Instruments made under REUL powers during the reporting period were not expected to lead to significant policy changes. However, the UK Government’s roadmap for assimilated law reform sets out that it intends to repeal or reform over half of assimilated law by 2026.
According to the Scottish Government’s update, its use of REUL powers was limited to updating terminology and clarifying the application of assimilated law during the reporting period through two Scottish Statutory Instruments. In addition, Scottish Ministers consented to eight UK Statutory Instruments made by UK Ministers. In contrast to the UK Government, the Scottish Government states that it has no programme for reform of assimilated law but that decisions to reform particular pieces of assimilated law will be taken on a case-by-case basis and may be required to ensure alignment with new EU standards.
Sarah McKay and Annie Bosse, SPICe Research