What is the Welsh Government’s approach to retained EU law?

Published 26/01/2023   |   Reading Time minutes

The Welsh Government has recommended that the Senedd withholds consent for the UK Government’s Retained EU Law (Revocation and Reform) Bill (“the Bill”).

The Bill is the UK Government’s plan for EU laws that are still in place after Brexit, as explained in our introductory article.

It aims to remove the majority of retained EU law (REUL) from the UK statute book by the tenth anniversary of the Brexit referendum at the latest (23 June 2026). It would provide Welsh Ministers with many routes to save, reform or remove devolved REUL before it automatically expires on 31 December 2023.

This article explains what we know about the Welsh Government’s approach so far. A briefing, interactive tool and infographic are also available.

On scrapping the Bill…

The Counsel General and the Scottish Government’s Cabinet Secretary for Constitution, External Affairs and Culture, Angus Robertson, wrote a joint letter in the Financial Times calling for the Bill to be withdrawan.

The Counsel General explained this unusual public step was taken because:

The best thing that could happen is for the Bill to be shelved […] we felt it was important that that point was made as clearly as possible to set out our positions.

On reviewing REUL...

In devolved areas, REUL has been made by Welsh or UK Ministers.

The Welsh Government is preparing a list of Welsh-made REUL and is jointly reviewing “thousands of pieces” of UK-made REUL according to spreadsheets prepared by Whitehall departments.

The Scottish Government and some departments of the Northern Ireland Executive are reviewing REUL independently of the UK Government to ascertain, among other things, their view on what is reserved or devolved. The Counsel General believes that this is “pretty much the same as what [the Welsh Government is] doing”.

On uncertainty…

Stakeholders are concerned about the uncertainty of the Welsh Government’s approach to reviewing REUL. The RSPCA said the decision not to review REUL independently from the UK Government “fuels the uncertainty”. The Counsel General attributes this to the Bill rather than to the Welsh Government’s approach, and says he shares the uncertainty of stakeholders.

On its approach…

The Counsel General outlined the Welsh Government’s approach to the Legislation, Justice and Constitution Committee (“the Committee”) on 5 December and provided an update on 19 January. The Welsh Government’s priorities are to:

  1. analyse and retain REUL made in Wales; and
  2. to press the UK Government to carry out tasks the Welsh Government thinks it needs to do, for example, ascertaining which REUL is reserved/devolved.

The Welsh Government is:

  • looking at “the least resource-intensive option” to save REUL, and prioritising “the most important issues, rather than technical issues”;
  • not analysing the Bill’s impact on Wales, even though an independent watchdog says the UK Government’s impact assessment is “not fit for purpose”;
  • not planning to “shelve anything” from its legislative programme, despite the Counsel General saying this would be “overwhelmed”. The First Minister said that capacity would need to be diverted from elsewhere to cope with the Bill.

The Counsel General later said that the Welsh Government is waiting for clarity from the UK Government before taking action, including in devolved areas.

On solutions...

In addition to calling for the Bill to be withdrawn, the Counsel General said the Welsh Government had set out “a whole number” of changes which it has encouraged the UK Government to make. These have not been published or shared with the Senedd.

The Welsh Government’s Legislative Consent Memorandum (LCM) explains that it requested one amendment to grant the Welsh Ministers powers to extend the automatic sunset from 31 December 2023 up to 23 June 2026 for devolved REUL. Only UK Ministers have this power in the Bill.

The Counsel General told the Committee that amendments could also be put forward by “others” to resolve its concerns, including in the House of Lords.

In its Supplementary LCM, the Welsh Government says that the UK Government has not addressed “any” of its concerns and its position remains unchanged.

On standards….

The Counsel General said that standards are a “big area” for the Welsh Government, which wants to improve pre-Brexit standards. Stakeholders are concerned about lower standards for the environment, animal health, food, farming and public health.

If Ministers want to change REUL, the Bill prohibits them from increasing what it calls “regulatory burdens”, such as financial costs, trade obstacles or administrative inconveniences. The Counsel General said this is a “totally unacceptable” constraint which the Welsh Ministers would need to introduce separate legislation to get around.

On engagement with stakeholders and the Senedd…

The Counsel General said that it would involve stakeholders but that:

it's not completely clear who we will be engaging with, to what extent, and within what framework.

He said close co-operation will also be needed with the Senedd.

On bypassing the Welsh Government and Senedd…

In devolved areas, the Bill would grant powers to Welsh Ministers to legislate with the Senedd’s approval. But UK Ministers could do the same for Wales with the UK Parliament’s approval, effectively bypassing the Welsh Government and the Senedd.

The Counsel General acknowledges that this is “a risk” that the Welsh and Scottish governments have raised with the UK Government but that they’ve:

not seen any amendments to the legislation or indications there would be changes.

However, he did not confirm when asked whether the Welsh Government has recommended strengthening the Senedd’s powers in the Bill.

On concurrent powers…

The Bill would allow Welsh or UK Ministers to legislate for Wales. These are called ‘concurrent powers’.

There’s another option, whereby UK Ministers could legislate for Wales but only with the consent of the Welsh Ministers. These are called ‘concurrent plus powers’.

The Counsel General believes that the Bill’s concurrent powers should “at the very least” be concurrent powers should “at the very least” be concurrent plus powers”.

On interdependencies…

The Bill makes it possible for each government in the UK to change or remove REUL separately or together. The Counsel General warns that this could impact Wales, for example, if REUL is revoked for England but Wales relies on it somehow. For this reason, it is important that:

each piece of legislation has to be looked at very carefully, to have an understanding of that.

This could lead to divergence in rules between the four UK nations and between the UK and EU, as explained in another article.

The UK and the EU have agreed to a ‘level playing field’ for trade and investment to keep competition between them open and fair. One way they decided to do this was to agree that either party could take rebalancing measures where divergence has a “material impact” on UK-EU trade or investment. This could include introducing tariffs on otherwise tariff-free goods.

On the Internal Market Act 2020 and common frameworks…

The Counsel General said that the combined effects of the Bill alongside the Internal Market Act 2020 and common frameworks would have important repercussions for standards.

He expects further discussions to take place via common frameworks, including for disputes, but also noted that not all REUL is covered by a common framework.

On human rights…

The First Minister says the Bill has “potential to do harm” to human rights because EU-derived rights, such as workers’ rights, would expire on 31 December 2023 with no option to extend this date. EU-derived rights could be replicated in domestic law using other powers in the Bill but this must be done before they expire.

The Counsel General later said that the automatic expiration of REUL could cause unidentified issues and potential negative impacts, “for example on protected groups”.

The Bill would also abolish general principles of EU law on 31 December 2023, including equal treatment and respect for fundamental rights. Domestic law will no longer be read in accordance with these from 2024.

Next steps

The Committee has published the latest exchange with the Counsel General, dated 19 January.

The Bill has reached the House of Lords, where amendments are expected. The Welsh Government is preparing a second Supplementary LCM to reflect developments at Westminster.

Senedd committees are considering stakeholder evidence and must report on the Welsh Government's LCMs by 2 March.

A Senedd vote on whether or not to grant consent will follow but a date has not yet been confirmed.

Article by Sara Moran, Senedd Research, Welsh Parliament