On Monday 6th February the Retained EU Law (REUL) Bill was presented to the House of Lords. This follows its passage through the House of Commons, where a cross party campaign led by the Labour Movement for Europe gained Conservative support for amending the Bill including from David Davis, Bob Neill, and Robert Buckland MP. This briefing provides a background update on this legislation and what the LME is doing to ensure that Parliamentary sovereignty is not a casualty of Brexit.
What is the REUL Bill?
Following Brexit, there is a body of UK law that originated in our membership of the European Union that requires review to ensure it remains legally stable. However, in its current form the proposed REUL Bill from the Conservative Government deletes via a sunset clause all of this legislation at the end of 2023, and then proposes that Ministers may decide if it should be replaced in UK law, amended or simply deleted.
Currently, this amounts to 4000 pieces of legislation. However, this is still an estimate, as the Government has admitted it does not know how many laws fall into this category and so could be deleted by this legislation. An example of the uncertainty within of this process can be seen by tracking the Government’s assessment of the impact this Bill will have on DEFRA. When their 'dashboard' of the laws affected was first published there were around 800 regulations which fell under DEFRA’s purview to review. The figure then increased to around 1,100 as stated by the Secretary of State to the House of Lords Environment, Food and Rural affairs Committee on 5th December 2022. The Dashboard, updated at the start of February 2023, now states that there are 1,798 regulations to be reviewed by this single Government Department, with the possibility of more to come.
If nearly 4,000 laws are affected, this currently requires that a decision would have to be made on sixteen pieces of legislation every working day between now and the 31st of December for them all to be considered before the sunset clause kicks in – and that’s before time is allowed for replacements to be drafted and implemented. Not only does this set a completely unreasonable and near impossible task for already over stretched civil servants, it also relies on identifying the legislation affected.
The Bill also requires that any replacement regulation cannot “increase the burden” of current regulations, meaning if a Minister decides to replace a law affected they can only either retain an existing standard or deregulate. As the bill requires that Ministers undertake this through the practice of 'Statutory Instruments' which are secondary legislation, MPs would not be able to amend proposals to water down key environmental, employment or consumer standards- they could only vote either to keep what the Government suggest or to have no rights or regulations at all. You can find more details of the range of rights that could be deleted or watered down here. Democracy requires citizens to be able to make representations to those who they can hold directly to account on the matters that concern them- this Bill therefore represents an unprecedented power grab by Ministers under
the cover of Brexit.
Multiple sources from the European Union have now warned that, if this Bill is implemented without changes, it could put the United Kingdom in breach of the Trade and Cooperation Agreement because of decisions made with no democratic oversight. With barriers to trade already causing economic problems, this would be incredibly damaging.
What Happened in the House of Commons?
In the House of Commons when MPs debated these proposals, LME representatives worked across all political parties to table amendments to this legislation to require the Government to produce a list of the laws affected- giving legal certainty to the laws that could be deleted and ensuring no laws would be accidentally removed without scrutiny. You can read the full debate on this issue in Hansard here. The amendment was defeated, and secured the support of twelve Conservative MPs.
What is Happening in February 2023?
As the Bill now moves to the House of Lords, a coalition of Peers from across all parties including the Government benches have publicly stated their plans to work together to reform the process in the Bill and protect Parliamentary sovereignty. Their focus is on four areas:
The current process requires the work of considering 4,000 pieces of legislation to be done at an unreasonable speed which will lead to mistakes and things being missed and remove any realistic prospect of meaningful Parliamentary scrutiny – as the schedule and other demands on Parliamentary time will not allow it. By extending the date of the sunset clause, a more measured approach to considering the status and future of any retained EU law would be possible.
The current proposals would see Ministers given unilateral powers over a broad range of areas of policy without clarity as to the scope of this bill. Ministers are also the only individuals who can retain specific regulations, with everything else falling away including those regulations and case law which has yet to be identified in the dashboard or publicly listed. Parliament would have no power in this process. An alternative approach could see Ministers setting out exactly which retained EU law this bill covers in the form of a comprehensive list required within a certain time frame of the Bill receiving Royal Assent, with everything not specified in this list being retained by default.
The Government is proposing a ‘sifting committee’, whose composition is not specified, in the Bill to consider whether an Statutory Instrument should be upgraded to the affirmative procedure which means it would be subject to a vote in Parliament. It can only recommend this – it cannot require it, nor can it propose that an SI be amendable and so enable MPs to intervene where the Government is proposing substantive changes to the rights these regulations confer, denying parliamentary sovereignty on thousands of areas of policy. An alternative approach seeks to ensure that the sifting committee is representative of the make-up of Parliament including the two houses and cross-party representation. Where Sis related to matters that are considered to be a replacement, the committee could confirm these should be managed under the negative SI procedure. This process could include requiring Ministers to put forward an equality impact assessment, to have consulted with stakeholders on the proposals and to confirm their intention to replace without substantial change the previous regulations. Where the Committee considers the SIs does not meet these tests or does present substantial change it would then refer them for further scrutiny in the House of Commons. This follows the precedent in the Civil Contingencies Act 2004 and elsewhere for regulations to be subject to amendment by Parliament. By extending this to regulations made under this Bill which could change the regulatory landscape, Parliament can regain substantive control over the shape of future law.
The current Bill states that changes to regulation made under its powers cannot increase the regulatory burden. This has been criticised as a ‘ratchet clause’ which allows Ministers to remove rights or protections by executive decree, but not increase them in the same way. An alternative would be to remove the power of Ministers to vary the regulatory burden altogether, so that they cannot either increase or decrease it using the delegated powers contained in this Bill.
What are others saying about this Bill?
The REUL Bill covers a wide variety of sectors and many organisations have spoken about the impact this will have on their area of expertise, ranging from the Confederation of British Industry and the Trade Union Congress, to the Women’s Institute and Battersea Dogs and Cats Home.
Greener UK, Wildlife and Countryside LINK
“The REUL Bill puts at risk thousands of laws that are crucial not only to conserving, and restoring the natural environment, but also to protecting public health, and creating a sustainable economy. It represents an attempt to deliver the single biggest modification of environmental law in the UK in recent history”
British Chamber of Commerce (BCC)
“The BCC seeks amendment of the sunset clause in clause 1 of the Bill to allow for more time for a comprehensive list of retained EU law affected to be produced, considered, and consulted upon.”
“The BCC runs the UK’s leading independent research programme – we have seen no clear signal from businesses that mass-deregulation is a priority at present, nor that there is a clear desire to remove categories of regulations”