The Retained EU Law Bill: the end of the beginning?

Published 22/05/2023   |   Reading Time minutes

The Retained EU Law Bill (“REUL Bill”) was significantly amended during Report Stage in the House of Lords, which concluded on 17 May. Changes introduced by the UK Government reflect “a new approach” announced on the 10 May.

This article looks at key changes between Report Stage and Third Reading on 22 May.

The amendments bring changes to the timeline, including for the Senedd, meaning 2023 will remain a key year for REUL.

The new basics

The automatic sunset that would’ve removed the majority of REUL on 31 December is no more. It’s been replaced by a new Schedule listing REUL to be revoked by 31 December 2023. EU-derived rights will still end on this date, too.

UK and devolved Ministers can exempt REUL from the Schedule before 31 October 2023, thereby saving it. In devolved areas, this can be done by:

  • Welsh Ministers laying regulations in the Senedd; or
  • UK Ministers laying regulations in the UK Parliament, bypassing the Welsh Government and the Senedd.

So all eyes are on the Schedule?

Yes and no.

Yes because the Schedule is important, and no because parts of the Bill, like its broad Ministerial powers, remain unchanged. Its concurrent powers are a particular concern of the Welsh Government and the Legislation, Justice and Constitution (LJC) Committee.

The Schedule lists around 600 pieces of REUL, including in devolved areas like air quality.

The House of Commons’ European Scrutiny Committee has questioned whether removing the REUL listed in the Schedule will deliver the post-Brexit regulatory overhaul UK Ministers’ promised. Their letter to the Prime Minister says that:

…almost without exception, the REUL detailed in the Schedule relates to matters that are trivial, obsolete and are not legally and/or politically important.

An example listed includes rules for fishing anchovy in the Bay of Biscay for 2011-12.

A Joint Committee of both Houses of the UK Parliament will consider the REUL listed in the Schedule. Any substantial changes will be debated and voted on in the UK Parliament.

What about devolution?

Amendments designed to obtain the consent of the devolved Ministers and the Senedd when UK Ministers use their powers in devolved areas were not put forward for debate or a vote, and so were not agreed. 

Three amendments which would’ve made Senedd consent necessary were described as “unnecessary” by the UK Government because it is

… committed to ensuring that the provisions in the Bill ….. are consistent with the devolution settlements and work for all parts of the UK. Indeed, the majority of the powers in the Bill are conferred concurrently on the devolved Governments, which will enable them to make active decisions regarding their retained EU law.

It is not necessary to limit the use of the powers within areas of devolved legislative competence by requiring UK Ministers to obtain legislative consent. Rest assured, the concurrent nature of the powers is not intended to affect the devolution settlements, nor to influence decision-making in devolved Governments.

Rather, it is intended to reduce additional resource pressure on the devolved Governments by enabling the UK Government to legislate on behalf of a devolved Government where they do not intend to take a different position.

Amendments were agreed that extend the Bill’s consequential and transitional, transitory and saving powers to the relevant devolved Ministers.  

What about EU-derived rights?

An amendment was agreed which may enable the Senedd to save EU-derived rights.

These will still expire on 31 December 2023, but UK or devolved Ministers have the option to give a statement in their respective parliaments confirming which rights will expire (i.e. those which they won’t restate).

If the relevant parliament resolves that rights listed in the statement within competence should not expire, they will be saved.

The role of the Senedd therefore depends on:

  1. Welsh Ministers making a statement; and
  2. rights being within competence.

What hasn’t changed?

Parts of the Bill are unchanged.

UK and devolved Ministers will still be given broad powers that the Senedd’s Legislation, Justice and Constitution (LJC) Committee has expressed concern about. The Counsel General described them as

powers that, in normal circumstances, you would not wish to give to governments.

While amendments have led to a greater role for the UK Parliament in sifting the REUL to be revoked, equivalent changes haven’t been made for the devolved legislatures, even in areas within competence. 

Changes to the legal hierarchy, explained in our previous guide, will also go ahead. The Bar Council believes these “amount to the deliberate creation of legal uncertainty”.  

Environmental protections and food standards

A non-regression duty for environmental protection and food standards, including compliance with international agreements, was agreed. This means that protections and standards can’t be rolled back compared to their corresponding REUL.

The Food Standards Agency has identified eight pieces of REUL where they are “confident that removing them will not impact food safety or standards”.

The Guardian reports that “more than half” of the 600 pieces of REUL listed in the Schedule relate to the environment. Its report details the concerns of ClientEarth and Greener UK for REUL listed in the Schedule on water and air quality, including duties to achieve emissions targets.

Regulatory changes

Alongside changes to the Bill, the UK Government published a paper, Smarter Regulation to Grow the Economy. This outlines plans to review the UK’s regulatory landscape, including:

  • that regulation should be a “last resort” after considering non-regulatory approaches;
  • plans to ensure regulators, such as Ofgem, Ofwat and Ofcom, help drive economic growth; and
  • reforms for employment law and “to reduce the cost of living, deliver choice to consumers, turbocharge science and innovation, and drive infrastructure development”.

Next steps

Third Reading will take place on Monday 22 May.

The Welsh Government has said that it will “endeavour to lay any necessary legislative consent memorandum” (LCM) to reflect amendments. LJC Committee has written to the Welsh Government asking it to address specific aspects of the latest changes in any future LCM it may issue.

After refusing consent for the Bill in March, another LCM would mean the Senedd may need to reconsider its decision. The Bill’s new timetable means that it could see increased use of Welsh Ministerial powers before 31 October if the Welsh Government wants to save REUL listed in the Schedule. After this date, REUL can still be saved or removed by UK or Welsh Ministers using different powers in the Bill.

LJC Committee previously said there is a “very high risk” the Senedd will be bypassed if decisions are taken for Wales in devolved areas by UK Ministers and the UK Parliament. This remains a possibility.

Article by Sara Moran, Senedd Research, Welsh Parliament