The Retained EU Law (Revocation and Reform) Bill (REUL Bill) has now completed its report stage in the House of Lords and is due to have its 3rd Reading on 22 May, after which it will return to the Commons.  A reprint of the REUL Bill showing the substantial amendments made at this stage will be published shortly.

All the Government amendments to the REUL Bill have been passed, so that the REUL Bill, as it now stands, provides for the repeal of some 600 specified pieces of retained EU law at end of 2023 and lays down processes to be followed for the future replacement by purely domestic legislation of other retained EU law (to be renamed “assimilated law”) still in force.  These processes can be used for any retained EU law, except for financial services measures listed in the Financial Services and Markets Bill (also making its way through Parliament), to which a somewhat different replacement process with apply.  This does not exclude the use of primary legislation to replace retained EU law, where this is appropriate, as, for example by the Procurement Bill (also before the House of Lords at present).

In addition, the REUL Bill continues to contain provisions which effectively give domestic law supremacy over retained EU law, except where otherwise required to comply with international obligations (eg under the Withdrawal Agreement or the Trade and Cooperation Agreement with the EU). UK Courts will also have wider powers to diverge from judgments of the Court of Justice of the EU related to EU law which is, or is reflected in, retained EU law/assimilated law that still applies in the UK.

Four non-government amendments of substance were passed, three related to the repeal processes and one related to environmental legislation:

  • The environmental amendment provides for processes to ensure that any replacements for retained EU law relating to the environment or food standards maintain at least the same standards of protection as the retained EU law measures that they replace and comply with relevant international environmental agreements to which the UK is a party. This responds to concerns that the Government will use replacement of retained EU law to weaken environmental protections. A similar amendment related to employment law was defeated, perhaps because Ministers have given repeated assurances on the preservation of workers’ rights.
  • The first procedural amendment provides a process for debate in relation to any of the laws specified in schedule 1 for repeal at the end of 2023, should a Joint Committee of Parliament be concerned that the repeal constitutes a significant change to UK law. The Government amendments already contemplated the possibility of saving parts of this legislation by passing an SI to that effect. It remains to be seen if the Government will let this provision stand when the REUL Bill returns to the Commons.
  • The second procedural amendment relates to the repeal of section 4 of the European Union (Withdrawal) Act 2018 (Withdrawal Act), which preserved a wide range of rights, powers, liabilities, obligations, restrictions, remedies and procedures created by the application of section 2(1) of the European Communities Act 1972 even though not contained in either domestic law implementing EU law or directly applicable EU measures. This amendment replaces Clause 4 of the REUL Bill with a provision intended to ensure that there is a process available that could allow for the preservation of specified rights etc. after the end of 2023.  This requires a report or reports by a relevant Minister by end October 2023 and a vote in the relevant Parliament/Assembly on any rights etc proposed for preservation.

During the debate no examples were given of rights etc, that should be preserved, but Lord Hope (who proposed the amendment) said that it was unclear what would be lost by this repeal and there should be an opportunity to consider whether any rights etc. preserved by section 4 of the Withdrawal Act should continue to apply beyond end 2023. The rights etc affected are not exhaustively catalogued.

It would seem that the proposed process could produce different results in different parts of the UK in relation to the same legal rights and it may be that the Government will look to reverse or amend this provision on the return of the REUL Bill to the Commons.

  • The second procedural change is to introduce a provision which would give Parliament greater control over the replacement of retained EU law after the end of 2023, so that Parliament can be satisfied that the changes have been appropriately consulted on and considered. In certain circumstances a Joint Parliamentary Committee can propose amendments, which, if approved by Parliament, must be included in the replacement law. This is an important change, which is responsive to the criticism by several MPs and Lords of most political parties that the REUL Bill did not provide for sufficient Parliamentary oversight and left too much to ministers and civil servants.

It remains to be seen whether the Government will seek to remove this provision when the Bill returns to the Commons.  It seems effective to deal with the criticism of the Bill and workable, although it is novel to allow Parliament to propose amendments to a statutory instrument (SI) laid before it. To date, a cumbersome process, involving withdrawal and relaying of an SI has been used where the need for amendment to an SI becomes apparent after the SI has been laid before Parliament by a Minister.

Whilst it is unclear to what extent the final legislation will reflect these various amendments, the Lords have sent a strong signal of their concerns over the Bill, many of which were shared by businesses and other stakeholders. All will hope that the Retained EU Law Act, once it is finalised, provides a welcome example of the Parliamentary process working well to restrain the Executive.

Dorothy Livingston
Dorothy Livingston
+44 20 7466 2061