European Scrutiny Committee
Oral evidence: Retained EU law: the progress and mechanics of reform, HC 376
Wednesday 6 December 2023
Ordered by the House of Commons to be published on 6 December 2023.
Members present: Sir William Cash (Chair); Jon Cruddas; Mr Marcus Fysh; Mr David Jones; Dame Andrea Jenkyns; Gavin Robinson; Greg Smith.
Questions 1 - 32
Witnesses
I: Dr Oliver Garner, Maurice Wohl Research Leader in European Rule of Law, Bingham Centre for the Rule of Law and British Institute of International and Comparative Law; Joël Reland, Research Associate, UK in a Changing Europe; Professor Adelyn Wilson, Head of Strathclyde Law School and Professor of Law, University of Strathclyde, Glasgow; Dr Robert Taylor, Senior Lecturer in Public Law, University of Aberdeen.
Witnesses: Dr Oliver Garner, Joël Reland, Professor Adelyn Wilson and Dr Robert Taylor.
Q1 Chair: Good afternoon, and thank you for appearing to give evidence today. I believe we have heard from you all before as part of different inquiries, and it is very good to see you again. Today, we will be considering the Retained EU Law (Revocation and Reform) Act and, in particular, the type of legal reforms it envisages and the progress the Government is making. Today we will cover the policy background to the Act, the envisaged reforms in historical and contemporary context, and the changes that have been made to retain EU law under the Act so far Before we get started, and for those watching at home, would you mind briefly introducing yourselves? I will start with Joël Reland, if I may. Would you introduce yourself, please?
Joël Reland: I am a researcher at UK in a Changing Europe, and I focus in particular on UK/EU regulatory divergence.
Professor Wilson: I am the head of Strathclyde Law School.
Dr Taylor: Good afternoon. I am a senior lecturer in public law at the University of Aberdeen.
Dr Garner: I am a research leader in European rule of law at the Bingham Centre for the Rule of Law and a research fellow at the Central European University Democracy Institute.
Q2 Chair: Welcome to all of you. I will ask the first question. As a useful starting point, could you explain what we mean when we talk about reform in the context of the Retained EU Law (Revocation and Reform) Act, and what that reform may entail? What is your take on that? I will start with Joël Reland.
Joël Reland: In the context of remaking regulation outside the EU, it is important to distinguish analytically between what we might call reform and what we might call rebuilding. For me, rebuilding is the business-critical process you have to implement after Brexit, where the UK has left an EU regime and has to implement its replacement regime. Examples would be the CAP being replaced with an agricultural payment scheme, the new state aid regime, also systems for managing borders, chemicals, and so forth.
Then you have, on top of that, what I see is a secondary element, which is reform, which is stuff where there is continuity from the EU because regulation and laws have been copied over. However, there are opportunities, if you so wish, to amend or repeal them for the interests of UK policymaking domestically.
It is my view that the Government has prioritised this reform agenda over the rebuilding agenda and that this has sometimes created contradictions and undermined the Brexit transition process. To give you some examples, heavy stock was put into the Brexit Opportunities Unit and the retained EU law Bill, now Act, which had the sunset clause to repeal a large amount of EU law all at once. This took up a large proportion of Government capacity at a time when the rebuilding, the replacement aspect, had not been fully implemented and in my view undermined that process.
To give some examples, DEFRA, I think, had the most retained EU law that it had to review as part of the Bill, now the Act, but at the same time is responsible for implementing some quite significant post-Brexit regimes that have to be put into place; the environmental land management scheme most obviously but also elements of the border control regime. Neither of those elements is up and running completely yet. I would say that civil servants having to spend a large amount of their time focusing on this reform and repeal element sometimes got in the way of that and took focus away from those more business-critical elements.
Taking a step back, we have the rebuilding and the reform element and it would be more effective to get the rebuilding done and in place first, Government systems properly functioning, and then you would have a bit more time and space to focus on reform. At the moment, I think they are slightly overlapping and contradictory in terms of what Government departmental attention is focused on.
Chair: Professor Wilson.
Professor Wilson: I think my colleague, Dr Taylor, will be able to answer this question.
Dr Taylor: One way to try to understand what reform might mean under the Act is to look at the provisions and to get a sense of what it empowers Ministers to do. Putting aside sections 1 and 2, which I know we may go into some detail later, where you have a list of retained EU law being revoked and you also have the removal of an entire category of retained EU law, what we see under sections 11 and 12 with these restatement powers concerning retained EU law before the end of the year and assimilated law next year onwards, is a power that is quite technical in nature. It is about restating a law and making very minor changes to the actual text.
If you contrast that a bit with section 14, where you have a power to revoke or a power to revoke and replace with something with a similar objective to the retained EU law—secondary retained EU law—that might be seen as potentially only facilitating technical changes but has the potential under 14(2) for a bit more than that. We see that quite clearly.
And 14(3), especially in terms of allowing an alternative provision, suggests there is potential for greater policy change on that, so it is not simply about the restatement powers.
What is quite interesting, when we are looking at it from that perspective, is that these powers are mutually exclusive because they only apply to retained EU law or assimilated law. Once you restate a piece of retained EU law, you cannot use the same provision to change it again because it falls outside of that category. That is where I think section 15 is quite important. This is often referred to as the update power, where essentially you can update any provision that you pass under sections 11 to 14, in light of, as we can see, taking into account scientific developments and changes in technology. However, this can also apply to retained EU law or the body of retained EU law, assimilated law, itself.
This suggests that these changes have to be very carefully thought out because you can only effectively use them once per piece of legislation. Repeat use does not seem to be its intention. Repeat changes would have to come under section 15, and only for scientific and technological updates.
That narrows down future development of that element and, importantly, envisages a future where you have both this corrected or amended law under sections 11, 12 and 14, but also that the body of assimilated law will continue, and that itself may need to develop in line with scientific developments.
Dr Garner: I would distinguish between what can be seen as more substantive or policy goals of reform of retained EU law, which is what Joël was talking about there—the reform and rebuild—and what can be seen as more formal or technical objectives, which I think are relevant to the rule of law. The former is about economic growth, efficiency, regulatory reform and tailoring the UK’s regulatory environment and its economy to a post-EU membership context.
But I think the latter, and you see this mentioned in the benefits of Brexit White Paper but also explanatory notes and impact assessments, is about improving the clarity of the UK statute book. It is about ensuring accessibility—I think this is a big goal of the dashboard—removing duplications and effectively improving the usability of the law for end users. I think these are all admirable rule-of-law goals.
In practice, however, what we have seen in schedule 1 to the Retained EU Law (Revocation and Reform) Act is quite superfluous repeal. We have seen revocations of retained EU law that is not functional in the United Kingdom for various reasons. It may be expired programmes; it might be EU law that was already repealed. I do not think that this will contribute to economic growth as it is no longer relevant, but also it will not necessarily help the clarity of the statute book either if it is no longer relevant to the United Kingdom legal system.
Q3 Chair: Do you see this operation on that broad front that you have just described as being something that can be changed in the immediate future? The policy that seems to drive this or the lack of competence and policy that drives this is something that suggests to me perhaps that they are not focusing on the wood for the trees. Is that the way you would put it?
Dr Garner: I think the issue might have arisen from the fact that there was a U-turn during the passage of the Bill where the architecture was reversed. We went from the sunsetting of all secondary retained EU law to the specific revocation of 600 pieces of retained EU law. There probably was not enough time for Parliament to scrutinise exactly what was being included.
If there was just a target number of 600, I would say if this was for political optics rather than for a particular defined reason, this was not good policymaking. This was to be seen to be doing the revocations. However, I think perhaps we can see something more encouraging in the regulations that have been issued under the Act where you see more substantive goals being pursued. You see more references to the justifications we saw in the White Paper. I think it was probably a function of the parliamentary context at that point with the Bill.
Q4 Chair: What appeared in the Act itself when it came out was rubbish, wasn’t it, with the exception of about three items? It was all about the Pacific islands and very weird references to legislation that, I think you have indicated, had no relevance to our day-to-day lives, our economic growth, or indeed anything else. It was all about fishing elsewhere in the world.
Dr Garner: I think that is a point I picked out. These were agreements with, I think, the Mauritius, Solomon Islands, lots of examples, but the fact that justification says the UK does not fish here, shows the factual context. That cannot be blocking policymaking because it is simply not geographically relevant.
I think it would have been better if the Government had made very clear the reasons why the repeals were being made and linked that to the aims that we have talked about of economic growth efficiency and also the clarity of the statute.
Q5 Chair: Lastly, going back to your point about economic growth and things like that, which are meaningful to business and to our economy, would you say that if they did this properly they could greatly improve our competitiveness and reduce the amount of in-built lack of competitiveness as a result of legislation, which was passed by a majority vote of other countries before we regained our sovereignty and self-governance?
Dr Garner: There is a difference now. Whereas in the impact assessment and explanatory notes to the Act itself, there were no economic justifications for why these repeals would be made under the schedule we do now see references in regulations being made to the savings. I think the White Paper said there would be savings of £1 billion for UK businesses. Just in regulations recently reforming reporting obligations for businesses on working time regulations there is a claim that this will save £1.2 billion for UK businesses. I think there is more effort being made now in regulations to show that.
Chair: It seems to be improving.
Dr Garner: A claimed improvement.
Q6 Dame Andrea Jenkyns: Thinking of the scale and the scope of the reforms possible under the retained EU law Act, are there any historical or more modern legal reforms with which useful parallels can be drawn?
Professor Wilson: History would lend us all manner of examples about recodification, codification, and the legislative reform process. In terms of a direct parallel, in some ways history will judge this based on the eventual scope and scale of this project, and we will not have that for some time, partly because of the changes that were made to the Act during the legislative process that have already been mentioned.
I think probably the most useful comparison will be with the process of correction of retained EU law under the 2018 Act. There is a variety of different lessons that I think can be learned for that, that would be helpful to what is currently going on.
First, is that the legislative reform process under the 2018 Act was very technical.
Dame Andrea Jenkyns: Just for clarity, are you talking about the European Union (Withdrawal) Act?
Professor Wilson: I am, yes, using section 8 and other powers. That process of correcting retained EU law in anticipation of IP completion day highlighted the challenge of making technical changes to such a large and diverse body of law. What we have now is potentially an even greater challenge. We have 5,000 items of legislation that the Government could look at and of course, there are policy considerations to be made as well as technical changes. There is a risk that what happens with that policy consideration might take a back seat to any correcting that is still outstanding from the 2018 exercise.
The second lesson we can probably learn from that earlier process has to do with the mechanisms and the prioritisation of legislative areas. That process previously worked policy area by policy area. There is some suggestion from the draft legislation that we are seeing coming forward that a similar approach will be taken this time.
In addition, one area that might be usefully looked at would be any area where stakeholders who were consulted under the 2018 Act process flagged particular concerns about the impact that corrections might have on business or other areas of industrial and charitable work. One area, for example, would be human tissue and blood products and the movement of those throughout the UK and Great Britain.
Thirdly, the 2018 process provides quite an effective model for collaboration over this exercise with the devolved nations as well. I think there are some useful lessons that could be learned from the process under the 2018 Act.
Dame Andrea Jenkyns: Would anybody else like to add to that?
Dr Taylor: If I may add one brief point, I agree with my colleague there on that. To go back on the previous point about the change in the sunset clause that was well-known, and having outlined already the powers given to Ministers to change retained EU law and assimilated law, in some respects, the parallels with section 8 under the 2018 Act are due to that reversal in policy. Had more retained EU law disappeared then you would assume that a much smaller amount would have been kept and therefore, these powers could probably be used more sparingly to correct what was left.
Now, because of that change, there are as mentioned, a lot more pieces of legislation that may need to be corrected. It is very close to the withdrawal Act process, and it is probably because of that change in focus.
Dame Andrea Jenkyns: Dr Garner, do you want to add anything?
Dr Garner: Yes. I think there are three interesting models from historical and modern examples of legal systems looking to deactivate the ambit of law that was previously binding. The first of these models is the complete retention of the formally binding law, the second model is a complete revocation, and the third model is tailored sector-specific reform.
The first model arises in the post-British colonial environment. The Statute of Westminster in 1931 held that the Colonial Laws Validity Act 1865 would no longer apply, so this meant that no law issued by the Dominions would be void for repugnancy with the law of England. This gave freedom to legislate to the Dominions, but the former law was still retained in force.
I think an interesting specific example of this is in Ireland. Article 73 of the Irish Constitution held that all previous laws would continue in full force but there is a caveat, that this would only be to the extent that it was not inconsistent with Irish law going forward. This could have been an option for the UK Government and for Parliament to simply retain all EU law but then provide this inconsistency provision, which would hold that any law issued afterwards would take priority.
A second model is from Rwanda, which is the opposite extreme. In 2019, Rwanda issued an Act that revoked all laws that were issued before independence in 1962. I think the political symbolism of independence was crucial here. We saw something very similar during the passage of the Retained EU Law (Revocation and Reform) Act.
There was a list of 1,000 laws, which might be slightly arbitrary as it is such a round number. An interesting point here is that Parliament debated safeguards if there were holes in the legal system arising from this and said that the judiciary could solve this because of its discretion to effectively choose a rule that it would have decided if the statute had been revoked, based on precedent, customs, general principles.
Again, this could have been a model for the UK, but this would have relied, I think, on common law on the discretion for the judiciary, and perhaps this would not have fit the current Government’s policies towards judicial power.
The final example, which is a contemporaneous example, which I think is the best practice, is in India where in August 2022 there was an amendment Bill to replace colonial law. Only 42 laws were repealed at that time and Bills were introduced to replace the Indian penal code, the code of criminal procedure under the Indian Evidence Act. I think this shows a sector-specific approach, an approach where revocation will only occur if a replacement is already envisaged and there are no artificial deadlines. It is being taken on a very graduated and incremental basis. Those are three interesting parallels to this process.
Dame Andrea Jenkyns: Joël, do you have anything to add?
Joël Reland: I take a slightly different position, and I think that the use of historical analogy is probably overdrawn in this context because when we are looking at Brexit and opportunities for regulatory reform, the primary barriers are economic. They are not, to my mind, legal or about a lack of historical precedent. The reason why it is so difficult to repeal reform EU regulation is because almost systematically it creates new barriers for business. That is what certainly comes out of my divergence tracking work.
That is a product of the uniquely modern context in which the European Union exists. It is, again, a quite unique post-war construct, which is based on legal homogenisation to create greater security and economic integration. There is no parallel, first, for the European Union in history and, secondly, for a country then pulling itself away from that and effectively raising new barriers to trade between itself and that much larger bloc. There is not much to draw on and I think we are learning on the job.
We see that often, when you try to pursue a particular type of reform and when you consult with business or with other stakeholders, you come up against practical barriers. That is where the attention needs to be drawn rather than looking back into history.
Chair: Would anybody else like to chip in on that point? No.
Q7 Jon Cruddas: You have said some interesting things already. I want to come back to the answer to the first question and the suggestion that change is more apparent than real and the distinction between the scale and the scope of what was promised and the present realities of what is happening. I will go back to the question of the contents and what you think will be the impact of the automatic revocations of the retained EU law as listed in schedule 1, given that the clock is ticking as we come to the end of the year. I will go back to Dr Garner first because you did suggest, I think, that the change at present was superfluous, I think was the word you used.
Dr Garner: The reason for that, as I said, is that a vast amount of the retained EU law being revoked is no longer in operation. You can see a lot of the justifications in an Excel spreadsheet that was issued with the Act.
You see numerous justifications such as the measure has now expired or the measure is no longer in operation or relevant to the United Kingdom. I say these are superfluous because they could not hamper growth, and they would not, I think, contribute to the clarity of the statute books. It is clear to end users that these are not in operation.
The Government outline two examples on their web page of changes that you can see as more substantive or more policy based. The first is on retained EU law on the national emission ceilings, established by the EU on national air pollution control plans for the UK. This is revoked because the Government argue this is long, complicated, resource intensive and duplicative. You see the justifications that were in the White Paper.
The second example is regulations on port services which was about removing unnecessary reporting burdens on a sector, which is largely privately owned in the United Kingdom.
When it comes to these pieces of retained EU law, which are so historical, it is probably more in line with the idea of Brexit being done if they are simply left to the historical record because it is not as if we have a limited bandwidth on the statute book that needs to be freed up. They can simply be left to the historical record, like many other previous examples of co-operation. I think Government capacity can be more usefully directed towards reforms that will pursue the objectives of clarity of the statute book and ensuring that the economy is ready for a post-EU membership context.
Jon Cruddas: Ms Wilson, do you want to comment on the present content, the 560-odd—I think 587 pieces.
Professor Wilson: I think it was 587. One of the interesting things though is that you need to look at schedule 7 in light of the revocation and sunset disapplication regulations that came out thereafter because seven of the various different instruments that are listed are then saved by those regulations. Half of them relate to the devolved nations or have been included in light of requests from the devolved nations. It is very nearly 600, but there has been a degree of consultation on that and a degree of disagreement initially between the UK Government and the Scottish Government about whether all of them are obsolete.
Another thing that those regulations does is abolish another 100 pieces, or very close to 100 pieces, of EU law. Again, however, they are abolishing legislation that is obsolete already or relates to schemes that are no longer applicable to the UK.
What we will see, setting aside from that, is also a variety of different revoking measures that come under different powers and different pieces of legislation, which might prove hard to track in the long run.
Joël Reland: I entirely agree with the characterisation of these 587 pieces as almost entirely superfluous. The reason for that comes back to what I see is the flaw in the original Bill, which is the sunset clause, which created a situation where for civil servants the priority ended up being what is the critical legislation that we have to keep so that things do not absolutely fall apart and create a catastrophe when it all expires at the end of 2023, whether that be to do with aviation safety, environmental food standards, and so forth.
We end up with an area where we cannot identify any meaningful areas for potential reform because we are concerned with making sure nothing disastrous happens. That is why we end up with the stuff that has expired and has no meaningful relevance any more that is on this schedule because that was all the system had the capacity to find. That comes back to the point I was making before, which is that this focus on maximising as much reform and repeal as quickly as possible undermines effective, strategically oriented policymaking. That is the reason why we are in the situation we are in.
I would say that the national air pollution control plan is the one stand-out reform that does have a substantive impact. There is a question about whether it is the kind of reform that the Government intended to make or the people that argued for this intended to make because it is effectively reducing accountability on Government. It is taking away their obligations to report on targets towards meeting emissions of five different pollutants by 2030.
Previously, under this plan, they would have to set out a plan for meeting those, and if they are not on track, they would also have to act upon those. If this plan is revoked at the end of 2023, those accountability obligations will go, and therefore, effectively, Government can have a target in law, but have to do nothing to meet it. Is that an effective reform? There is an open question there.
Jon Cruddas: Dr Taylor, do you want to add anything?
Dr Taylor: No, I have nothing further to add.
Q8 Jon Cruddas: Can I have a follow-up then given the superfluous nature of the content to date? What might we expect in terms of what is being prioritised, the timing and the sequence of what is coming? We have an election coming as well. What more-radical reform can we expect over the next six months? You are implying the first period was necessary, but superfluous. Is more-radical reform what you anticipate is in the pipeline now?
Joël Reland: Can I come in again? The answer, broadly speaking, is nothing in the next six months. Again, coming back to our divergence tracking work, there has been a clear reduction in the amount of what we call “active divergence”—that is the Government trying to move away from retained EU law.
The main conclusion of the analysis is that the political priorities of the Government have changed. Under the Johnson Administration, there was a recognition that divergence may be disruptive, that it may cause short-term damage to business, but there was an argument that it was worth bearing out for long-term benefits. That is contested, but it was an argument.
Nowadays, under Rishi Sunak, the clear priorities of the Government are controlling inflation and boosting growth. Generally, especially in the short term, divergence is inhibitive to that because it creates more bureaucratic procedure for business. I think that is the key reason why we have seen much less active divergence.
To give a concrete example, the implementation of new checks at the GB/EU border has been delayed again, and it was explicitly said that one of the reasons was the risk of inflationary pressures on goods imports if that was implemented. There is a clear correlation between the reform and the economic costs.
Jon Cruddas: The political priorities.
Joël Reland: I would say that is why in the run-up to an election that agenda has more or less dried up. The other side of the election, things could change.
Jon Cruddas: That is fascinating. Do you have anything to add, Professor Wilson, and then we will go back to Dr Garner as well?
Professor Wilson: What we are seeing at the moment is there are half a dozen pieces of correcting legislation—UK SIs that have been made—and they are of a largely technical nature. There are almost another 20 in draft but there is also a conversation going on between the UK Government and the devolved Governments. We are seeing some things that are also being communicated because of the internal processes for consent and approval between the devolved Governments and the devolved Parliaments.
At the moment, it has been principally technical. That is not entirely surprising because the 2018 exercise, powers under section 8 of the 2018 Act, expired. There is still some technical correction that needs to be done and the chances are, for many of the reasons that Joël’s mentioned, that there will be a focus on technical correction and the election in the short term.
Dr Garner: To your point about the next 6 months, I believe it is section 17 that holds that before 23 December, the Secretary of State should be making a statement laying a report on the plan for revocations. Hopefully, Parliament will have that soon.
There was mention there of the secondary legislation. I think there has been more divergence evident in 10 of these regulations than we saw in the schedule. Some examples are the removal of record-keeping requirements on working time that I mentioned before. There has been a removal of the restrictions on sparkling wine requiring foil sheaths and mushroom-shaped stoppers. We see quite technical changes, but they are about changing the regulatory system.
Perhaps the point should be made that we have had the Financial Services and Markets Act, which does revoke the retained EU law in quite a tailored specific way, which I think is interesting and should be noted. You have schedule 1 revoking over 200 pieces of retained EU law, but also part 5 of that is almost a sweeper provision because it states that any EU-derived legislation that is not revoked by those parts explicitly will be revoked if it provides for the imposition of requirements on the provision of financial services or operation of financial markets or exchanges, so there is a tailored system being created.
I mention also the Professional Qualifications Act 2022 has now revoked the EU’s general system of recognition of professional qualifications on the basis of profession and changed that to a tailored system for UK regulators to decide, to assess the knowledge and skills, whether they are substantively the same. We are seeing primary legislation, which is pursuing policy divergence in terms of substantive policy.
Jon Cruddas: It is not a bonfire, is it?
Q9 Chair: I would like to pick you up on this question of economic advantage and competitiveness. The picture that you draw is of a process that is entirely largely—apart from what Dr Garner said now—a technocratic approach, whereas what you were referring to was revocation in certain areas. For example, with regard to the City of London, there has been quite a lot of revocation of very bad European law—let's put it that way around—because there were things that were inhibiting the ability to be competitive, enterprise and things like that.
If we look back at the history over the last 30 years—I have been on this Committee for nearly 40 years—you see how different Governments have approached the law-making process, there was a time when you had competitiveness and enterprise at the heart of our economic recovery. We achieved that very significantly with big bang and all those things. When you introduce European law, which has the effect of subjugating your own economic decision-making to decisions that are taken by qualified majority vote behind closed doors by a Council of Ministers without any transcripts, then you end up with laws that are made by that group of people who hold the majority when those decisions are taken. The real question that lies at the heart of that surely is what is the motivation of that legislation; what is the objective that has been set, and is this type of law that is being generated by the law-making system improving the advantages to business, for example, in a way that helps the country to grow its economy.
What troubles me about the approach that you are taking is that you are saying that, on the one hand, there is a power to do this. But would I be right in thinking that what you are also saying is that the power is there to do it, but there is not the, let’s call it the philosophy, the entrepreneurial approach, which will enable us to achieve the divergence that will be necessary to create a more dynamic economy? Is that what you are saying?
Or are you saying that this is a technical exercise, that they are going through the motions and they are reproducing in English law, as it stands, having got rid of the supremacy of EU law under the retained EU law Act, but they do not have the wit or the ability or the capacity to be able to bring in new laws, the effect of which is to improve the circumstances of the people in this country. Is that what you are saying?
I would like to know because there is a huge opportunity here if you are going to get rid of EU law to improve things. The question is whether there any tangible evidence that anyone is thinking through strategically how you can manage to improve if you get self-government and you can make your own laws in your own Parliament.
Joël Reland: The very short answer to that is no—there is no strategy. That is the critical problem at the heart of Government policymaking since Brexit.
Chair: It is a missed opportunity.
Joël Reland: Say what you like about the EU, but there is a strategy to the way in which the EU makes regulation. It is based on—
Chair: Pretty awful.
Joël Reland: They may be, but they are principles. The precautionary principle would be one. We now have this focus on boosting domestic, green industrial production and so forth. There has not been that level of direction from the UK Government.
Financial services is a rare example of where principles were set out from the start and you then had a series of reviews into different areas, whether that be fintech, green finance, ESG ratings, all that kind of stuff that is working towards the same direction.
Admittedly, we are still mostly in the realm of review rather than delivery, but there is a coherent direction of travel, and that is what is fundamentally missing from other parts of government. You have reforms like the farm payment scheme, which is fundamentally quite statist, quite interventionist towards environmental goals. Then you have things like the subsidy scheme, which are much more hands-off. So you are pushing in different directions, different types of state in different parts.
That is because, broadly, Ministers have been allowed to set policy with very little direction from the centre. A Minister can leave and suddenly the shape of a policy changes. The Online Safety Bill is an example. The environmental payment scheme is another one—implemented by Michael Gove, changed with different Ministers in charge.
It is that central philosophy of regulation that is missing, which would allow the Government to drive towards common goals across different Departments, so you don’t end up contradicting.
Another key element of that, I should add, is thinking about the impacts on the internal UK market, which are often forgotten, and then you end up suddenly realising you are going to bazooka Northern Ireland if you go ahead with something, and you have to take three steps back to make sure you do not do that. Direction setting is needed.
Q10 Chair: There is the opportunity to do things that have not been put into practice, but there is no strategy or philosophy that lies behind it anyway. They are simply going through the motions of making changes and sometimes not making any at all, and there is no specific evidence from what you seem to be saying that there is any tangible improvement coming out of the process.
Joël Reland: Sorry, do others want to come in? Because what you end up with is people scrabbling around looking for opportunities. Again, this comes up in our work. One day it is going to be we are going to reform GDPR. That is DCMS’s big policy, or DCMS as it was then. Two months later, that has been pushed aside because the services sectors say, “No, this is going to cost us hundreds of millions a year.” You have this—something comes up, then it is pushed down, and it is like whack-a-mole with different regulations. What is going to stick? There is no coherence. There is no systematic thinking about how it is all working and what you want your regulatory principles to be? There are a number of different options you could take. You could want to be a lighter-touch regulator outside the EU; we have seen some elements of that. You could be more about really specific sectors, whether that be AI, novel medicines, financial services. Or you could have a shadow EU operation with some tweaking at the edges. These are all different models.
Q11 Chair: It does seem to be something of a mixed bag. There are some areas where you are indicating in your remarks, areas such as AI and competitiveness, batteries, all sorts of things, where we are capable of producing a new outcome. But you are, at the moment, waiting to see what they come up with that represents a coherent philosophy. Is that right?
Joël Reland: I am conscious that I am taking up a lot of space here but, yes. There has been some move towards that. There was the Vallance review of emerging technologies that did, to an extent, set out principles for AI regulation. We can trace a clear difference in philosophy from the EU’s there, but there is a need for that not just to be isolated to a very small part of government policymaking. That needs to be what is coming from the centre, and then everyone is following those principles.
Q12 Chair: Before I move on to the next question, I want to ask about one last point, which is that the situation is greatly improved by leaving the European Union because you are now able to make the right decisions if you have the right economic and legal philosophy that lie behind it. The question therefore is not whether or not the system of leaving the European Union has been a failure, which it has not because it gives you the opportunity, but you are saying that they have not yet come forward with a real strategy. Is that more or less where we are?
Joël Reland: I would not say whether it is better to be inside or outside. That is not my position to judge. I am saying that if you are outside, you need to have a strategy to try and make the best of that specific context.
Q13 Mr David Jones: To continue the discussion, could you tell us what is the impact on the UK of the automatic sunsetting of the REUL directly effective rights, under section 2 of the Act, at the end of the year? Perhaps you could also say, when you answer, how easy it is to ascertain precisely what rights are being sunsetted, and what more the Government could do to attain legal certainty. I will give Joël a rest and maybe start at the other end of the table.
Dr Garner: The clearest impact that I have seen of that automatic sunsetting of these directly effective rights so far has been the necessity for EU regulations issued under the Act to exempt certain directly effective rights and retained EU case law from the sunset in order to allow retained EU law to operate effectively and in the way it should do after Brexit.
Of the 20 regulations that we have discussed, nine continue convergence and seven of these are due to the section 2 sunset, including case law on anti-discrimination norms in the Equality Act 2010 amendment regulations, and judgments on pension calculation rules in the Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023. I say again, we have an issue here where this was not necessary. There was an option open to the Government to simply keep these directly effective rights in force, and then trust the courts to depart from them when it would be necessary under the instructions given in section 6 of the Act.
That is an issue because beyond what could be seen as the wasted capacity of Government and having to identify and retain these directly effective rights, there is this danger of unknown directly effective rights, judgments that might not have been identified, being revoked and then it is only realised when the issue is litigated that the retained EU law we have now is not functioning correctly.
I think this goes to your second question about legal certainty. It is good that we have the dashboard. It is accessible. There is a spreadsheet. But I would raise one concern over methodology. Baroness Neville-Rolfe, in a letter to the House of Lords in March 2023, stated that each Department has been allowed to come up with its own internal methodology for identifying retained EU law. It was left for each Department to decide.
I worry about whether there was the possibility of discrepancies here and how the ascertainment happened. It was mentioned earlier that DEFRA identified 1,697 pieces of retained EU law. The next most is the Department for Transport with 716. There is a big numerical discrepancy there. It would affect legal certainty, I think, if there were different methodologies being used.
We see this in the dashboard where there are some inconsistencies. Of course, the identification of directly effective rights is made more difficult because of the fact they are not found in a textual form. You need legal expertise to go through it to know the case law, as we saw, with the regulations where retained EU case law is needed to be retained afterwards. I think that is a challenge for legal certainty, especially as these are being sunsetted.
Dr Taylor: I think as a useful starting point, when it comes to section 2 of the 2023 Act, which obviously essentially eliminates the entire category of retained EU law—there were three to begin with—this is your catch-all sweeping clause to make sure anything that might have been left over from treaties and so on was found.
But unlike section 1, where you had this list under schedule 1 of various types of legislation that would be revoked, there was under section 1(4) the ability to save some of those things but section 2, there was no equivalent power to do that. However, we have seen, in particular, section 11 being used to save some of that law. We saw that with the European University Institute Regulations, for instance. There has been a bit of creativity there to try to use other provisions to do something that the statute otherwise did not cover.
I think it is important to note that it is, as a category of retained EU law, not as clear as the others. It is incredibly indeterminate in terms of trying to work out what rights or obligations could be forming part of the law thereafter. A good example would be the recent decision of the UK Supreme Court on Rwanda because there was an argument there that essentially articles 25 and 27 of the procedures directive had been saved by virtue of section 4 of the 2018 Act.
Q14 Mr David Jones: Was that ASM? It does not really matter. I am wondering which aspect of the Rwanda case you are talking about now.
Dr Taylor: The argument is in relation to retained EU law.
Mr David Jones: Yes, and this was in relation to ASM, if I remember rightly.
Dr Taylor: Yes, I believe so. Yes, it was a cross-appeal on that, if I remember. So one argument was that because this had been retained, therefore, that might have been relevant. But obviously because you had legislation passed by Parliament that made it very clear that the intention was for that not to be kept. The outcome was pretty clear for the court on that particular point, but it was not argued in the case whether it did or did not form part of that category. In some respects, its elimination as a category brings tremendous clarity because the judges are perhaps going to be less involved in having to work out these very difficult—it has already been said it would be very difficult for the Government to perhaps work it out; a lot of time and effort do that.
In some ways, disappearing could be, on the one hand, not that important because no one has worked out the potential scale of it. Therefore, we just do not know. It is never going to come up. Alternatively, because it could have captured all kinds of additional rights, it could be quite immense. It is very difficult to determine at this stage.
Q15 Mr David Jones: Presumably, it would take a long time. You have to stumble across this problem in an individual case.
Dr Taylor: As you saw in Rwanda, it came up as an argument and, unless someone wishes to make the argument, you may not know what was and was not part of retained EU law under the 2018 Act, under that category. Perhaps case by case is where it would have come up. Being removed means it is less likely to be an issue, and retained EU law is restricted to, obviously, the previous categories as amended as assimilated law, after this year.
Mr David Jones: Professor Wilson, do you want to add anything?
Professor Wilson: Picking up on the dashboard point, the dashboard is quite useful, but it is also limited. An issue has been already raised with the methodology. The dashboard is also silent on a variety of other different things that are quite important to know. The scope of the changes and revisions being made to any piece of EU law is silent.
It is silent on whether or not it affects devolved competence. It picks up whether or not an item has territorial application but not whether or not it is within the devolved competence of that nation. Of course, whether or not it is being amended by primary or secondary legislation is also not included in the dashboard.
We are seeing some limitations in terms of tracking but what is being abolished under section 2 is also a further challenge in terms of making use of that tool to track.
Mr David Jones: Joël, do you want to add anything?
Joël Reland: Not really, no. Thank you.
Q16 Greg Smith: Can we look now at the delegated powers that are in the Act? Can you give your assessment on how much the Government have used those delegated powers so far to affect material policy and legal change within the United Kingdom? I do not want to pre-empt your answer but if such changes have been very limited, why do you think that is? Who wants to start?
Dr Garner: As I mentioned earlier, there are examples of changes being made that were, one could say, quite technical, but there is more policy divergence than we have seen with the schedule to the Act. Of course, these powers were criticised, including by the Bingham Centre, for how widely drawn they were but there are limitations. We do have a limitation, whereby on restatement powers it stated they must be for resolving doubts or anomalies, improving clarity accessibility.
There could be a parallel drawn where these could be seen as a successor to the deficiency correction powers. We have the condition whereby the regulations must pursue a similar or same objective.
I think it is appropriate that the regulations are not pursuing the unleashing of a completely different regulatory agenda that the Chair has been talking about. Another reason for the limitation is we have seen primary legislation now being brought. I think that is the appropriate venue for substantial policy divergence.
Dr Taylor: Building on that, we have seen not a lot of use of the delegated powers in the context of sections 11 to 14. About half a dozen statutory instruments of note were passed and there are more forthcoming in draft form, as you may have seen. From what we have seen so far, I should stress that, as far as we are aware, there are no devolved ones due either—there was a power there but they have not done that—but they have been used for largely technical changes.
If you think about sections 11 and 12 restatements, in some ways that is not surprising. It is trying to replicate the retained EU law with very minor changes. If you wanted to mostly keep it but maybe make some corrections, that would make a lot of sense.
Sections 14(2) and 14(3) potentially allow greater policy change. They are not restricted to simply restating. I should stress, however, that you are not allowed to increase the regulatory burden of any changes that you make, and that is important to note. But we have still seen section 14(2) being used for mostly technical changes; mostly textual changes to retained EU law.
In some respects, that is interesting because some of them are not restating as a result. They are not replacing it fully. They are simply making changes to the retained EU law while, from an accessibility point, you still need to look at that original law to make sense of it when you can see the benefit in completely replicating it as a piece of secondary legislation, because then at least that is all in its entirety.
I should stress that when we have seen these changes they are inherently meant to be slightly more limited. Even though they are allowing policy changes potentially under 14, they are pieces of regulation, secondary legislation, there is an attempt to try and restrict that. Sections 11 and 12 are Henry VIII powers, so they can make changes as to primary legislation to restate retained EU law, but 14 is not. So it can go beyond that in that way.
Earlier we saw that comparison being made with section 8 under the 2018 Act. Even though there is potential for policy change, it is mostly being used for these highly technical changes, a continuation of the correcting process that we saw in the 2018 Act.
There is also a bit of confusion as to the scope of some of these powers in terms of what to do. Section 11 is a restatement. It is not clear from the SIs issued whether or not they imply repeal of the retained EU law. Some explicitly revoke it just for clarity, one would assume. But what is quite interesting and important to note, as I mentioned earlier, they are mutually exclusive because once you use them, whatever you change no longer becomes retained EU law, it is no longer assimilated law, so you cannot then use the same provision to make repeat changes to it, which is what we saw under the withdrawal Act process. It is different on that basis.
Section 15 is obviously what is meant to be used to update the law thereafter, but only in the context of assumedly taking into account scientific necessities and technological changes. That also limits the future changes to it. As I said earlier, it also envisages, I think, this body of assimilated law continuing possibly beyond the June 2026 cut-off because the 15 update power will not disappear, whereas the other delegated powers will disappear in the middle of 2026.
Professor Wilson: I have nothing to add, thank you.
Joël Reland: I do not have much to add. We have had this point about not much being made of it, but we cannot discount the potential, which still applies for delegated powers to be used to revoke or reform potentially quite significant pieces of legislation that you might normally think would go through primary legislative form.
Areas that could be included are, again, GDPR regulation, potentially quite consequential habitats directives and working-time elements as well. These are potentially quite consequential reforms. The obvious issue here is that there is very limited parliamentary scrutiny over amendments if they are made through these powers. There is a question there again, the argument is made, the point is we are bringing legislative control back into Parliament from the EU into the UK, but what role are you giving Parliament in looking at those reforms when they are being made?
From my perspective, it looks like a transfer of power from the legislature into the Executive. There is a question about whether that was the intended effect of the process in the first place.
Q17 Greg Smith: The last question from me. Dr Taylor, you mentioned the powers that were available within the withdrawal Act. To all of you, is it reasonable that technical changes to retained EU law are still being undertaken by the Government given that deficiency-correcting powers had been available under that previous Act until the end of last year? Dr Garner, Dr Taylor, you both alluded to it.
Dr Taylor: I think part of it is we have to remember, firstly, the scale of what had to be done under the withdrawal Act. It was a huge endeavour. It was many pieces of legislation that had to be corrected in time initially for exit day, and then IP completion day. The evidence we see suggests that that is possibly continuing into this one.
In some ways, that is not surprising given the fact that there was a lot that had to changed. Therefore, things may have come over the line on that basis although the speed in which changes were made under section 8 ebbed and flowed considerably depending on what was going on. It is fair to say it probably was not being used as frequently towards the end of its life as it was immediately before IP completion day, for instance.
In some ways, I think it depends on what power you are using. If it is a restatement and you are making minor changes to make the restatement work, then it is a technical change, but it is also a decision to say we do not wish this to continue as retained or assimilated law; we want this to become part of the normal legal system.
I suppose what we should stress is that what the Act does do is change the legal status of retained EU law, eventually assimilated law. It is a reversal, as already mentioned; 3 to 5, supremacy goes, general principles go. In some ways, this is a body of law that domestic law takes priority over.
Using this to correct it, it then becomes, one would assume, part of the ordinary legal system. You are choosing the areas that you want to then be subject to the ordinary rules. On that basis, you are making a conscious decision as to what to keep. If you are making technical changes as a result of it, that seems quite reasonable.
Section 4 being used for mostly actually textual changes, seems a little strange because the power is to revoke, revoke and replace, or to revoke and have an alternative policy, which suggests perhaps something different or at least something more substantially different from what we are seeing. The risk is you could use section 14(2) to change a few words, and then that can technically no longer be changed again using section 14(2). You would have to either use 15 to update it but limited to scientific developments or assumedly another power somewhere or primary legislation. That is a little bit different from what we would have expected.
Greg Smith: That is clear. Dr Garner, do you have anything to add to that?
Dr Garner: The situation demonstrates that the Government underestimated how big a task correcting deficiencies would be. I mentioned the letter earlier from March 2023 to the House of Lords, which stated that the process of identifying retained EU law had not even been completed by that day, and that was three months after the powers had expired to correct deficiencies.
The explanatory notes to the 2018 Act show that a lot of the provisions that should have been targeted by the deficiency correction power are the kinds of things we see in the schedule now. There are references to provisions that have no practical application in the UK after it left the EU.
I think a lot of controversy could have been avoided if the deficiency-correction powers were simply replicated in the 2023 Act because there is a lot of criticism over how wide these powers were, which was correct. But the way they are being used is so limited that if that pre-existing model had been taken across, it would also be easier for Parliament to scrutinise whether the regulations being issued were purely correcting deficiencies or whether they were pursuing policy objectives.
One other point on the section 8 powers is that there is an example of some of the unintended consequences of rushing the correction of deficiencies to be found in the Fluorinated Greenhouse Gases (Amendment) Regulations 2023. These were needed to amend a deficiency arising out of earlier regulations correcting deficiencies. These changed the date for the calculation of quotas on the reduction of use of these greenhouse gases. It changed its IP completion day from 2015 but the effect of this was that the reduction would have to be much quicker for businesses than the Government intended.
The danger here is there may be further examples where deficiency-correction regulations have had these unintended sequences. That shows that it is much better for the Government to consult with experts, consult with stakeholders and do this properly rather than creating a problem for themselves where they then have to issue further regulations now to deal with such problems.
Greg Smith: Thank you. Does anyone else want to come in on that?
Joël Reland: Brexit is a huge and unfinished process, and there are a number of things that still need to be done. As I alluded to in my opening remarks, a lot of those big issues are yet to be completely resolved, whether that is the border regime in terms of controls on imports, whether that is, again, farm payment regimes, financial services reform. There are lots of big ticket items and you need to prioritise. The Government needs to be able to say, “What do we want to do most quickly and put the most resource into?” Technical revisions of rules to me should be pretty near the bottom of the pile in terms of prioritisation. There is limited risk and reward lying there, and therefore probably, to an extent, makes sense that it has not been right at the forefront of the Government’s mind.
Q18 Mr Marcus Fysh: Is it possible to say what sort of proportion of the changes that have been made have been made under the retained EU law Act and what proportion are under other things such as section 8? Is it possible to give some sort of broad indication?
Professor Wilson: In some ways the best tool for tracking this, and for tracking the changes, is the dashboard, subject to some of the comments that have been made before. You are probably going to see six-month lag periods with the dashboard as well and, as I say, it does not tell you the mechanism or the powers that it is using to track.
We have spoken a bit about the section 8 powers under the 2018 Act. Of course they expired at the end of 2022 and so you had a gap of six months, almost exactly, between the expiry of the previous set of powers and the creation of the new powers in the 2023 Act. During that six-month period correction, revocation, amendment of retained EU law did continue but using a suite of other powers. Some of those powers came through from retained EU law, some came through powers in other enabling primary legislation that had been passed by the UK Parliament previously, the Environment Act and the Fisheries Act, for example. What we are seeing even now is the use of the 2023 Act powers in combination with the powers that the Government hold from other legislation. Working time was mentioned earlier. There is draft legislation coming through that works on working time in combination powers with the 2023 Act and the Work and Families Act 2006. We are also probably going to see correcting legislation or revoking or amending legislation under completely different sets of powers even yet.
While we might see more big, long lists of changes in primary legislation what we are very likely to see over time is substantial use of statutory instruments to amend and revoke, using not just the powers under the 2023 Act but a suite of powers provided to the Government under a range of enabling Acts. That is going to make it quite difficult to track and provides an interesting challenge for this Committee in its scrutiny function.
Mr Marcus Fysh: Would anyone else like to say anything about that point of the proportion?
Dr Garner: On proportion I think the dashboard as it stands does not include the schedule 1 revocation, so it states that there are 673 pieces that have been amended, 369 repealed and 17 replaced, so we have 587, which is maybe closer to 600 now with the regulations. We will see a doubling of the amount of retained EU law that was amended.
I echo some of the concerns expressed about the dashboard. When I did some number crunching, 42% of the retained EU law that is included in the database as amended does not specify whether it is by primary or secondary legislation. There are also further inconsistencies in the database that could be problematic.
On your point about section 8, there are references in the justification in the spreadsheet to changes made for operability, so we could assume there that that is under a section 8 power, but it does not state that explicitly in the dashboard.
Q19 Mr Marcus Fysh: We heard before that there may not be some overarching reforming ambition that has been articulated in a coherent way to drive it. To what extent do you think it is fair or right for claims to be made that reform is happening based on the technical amendments that might have been made under section 8 and other types of secondary legislation or whatever? How would we judge whether that truly is reform?
Dr Garner: There is one point that I think is important and it is on the dashboard, so the fact that there is a percentage on reform of retained EU law, which is there on the website. Something that needs to be considered is more a fundamental issue with the dashboard beyond some technical issues whereby it seems that there are some examples where retained EU law is noted as unchanged but then reference is made to it being amended, so these may be technical issues.
I found that some amendments and repeals that were made to EU law before Brexit that have been included as amendments in the database. An example from row 358 in the spreadsheet is changes made in 1996 and 1999 to the Habitats Regulations of 1994 being included as amendments. Another example is that included within the dashboard there are repeals of EU legislation that were done by the European Union itself. There is an example in row 4929 of a Commission decision of 2007 on services of social value. That was amended by a Commission decision of 2009 and that has been included as an amendment as well. These are simply changes to EU law as it stood on Brexit day. They are not changes to retained EU law. They were what constituted retained EU law at that point.
It could be that these examples I have given may have been amended by UK law afterwards, but this information is not included on the dashboard, so they should outline and update it to because the number is being affected. I do not think that can technically be seen as reform of retained EU law because it simply was not retained EU law that was being reformed; it was just EU law proper.
Q20 Mr Marcus Fysh: Yes, it sounds like a “statistics and damned statistics” sort of situation, whereby it is very easy to manipulate a headline around potential reform without it necessarily being such. I am very disappointed what has happened with opportunities from Brexit of being able to amend law. Sure, some things were always going to be changed and be difficult but the whole point is that things needed to be balanced. It was always going to need to be balanced by creative reform of things to balance those things out for business.
What would you think might be a better mode for Government to engage on those issues to have a more truthful conversation about a coherent package of reform and how the people of the UK should see that and judge it?
Joël Reland: I think this conversation about the dashboard is indicative of the heart of the problem of the Government’s approach to reform. You can take a quantitative approach or you can take a qualitative approach and the Government have taken a quantitative approach, which is to say how many pieces of legislation can we get rid of? Can we tally them up? What type of legislation is it? It is about counting and displaying the scale of reform through the number of changes.
To be frank, one change can have a much more significant impact than 100, basically. On the EU side for example, it is the CBAM regulation— Carbon Border Adjustment Mechanism. This is going to impose significant new barriers to trade on several British businesses that are exporting to the EU. That is one regulation, and it is far more consequential than 100 technical changes to elements of retained EU law.
I think the Government’s approach to reform needs to be driven by the qualitative element. It needs to be driven by impact first and understanding where the biggest risks and opportunities lie, and that comes back to what I was saying earlier, which is about having a strategy, about having central principles that you are working towards. If you say, for example, one of our key priorities for reform is we do not want to increase the regulatory barrier in the Irish Sea, that becomes a principle that civil servants look at whenever they are thinking about legislation or when they are monitoring EU legislation. That therefore allows you to limit any barriers that are created.
Another principle could be that we want to optimise opportunities for our AI sector and again you can think about ways to do that across different Departments, but that is not being done. The focus has been on how many little bits we can pick up and put into our dashboard, which then is something that we can easily point to that is not substantively changing people’s lives.
Q21 Chair: Mr Fysh asked the question about the powers given to Ministers to correct deficiencies. Can I ask each of you what you mean by deficiency or what you think the word deficiency means in this context? Is it something that is just simply ineffective or wrong? Is it something that is technical or is it something that, if you put it another way, would enable you to make improvements to the condition of the people, social justice or greater competitiveness or greater economic advantages that come from being out of the European Union or internationally? How do you see the word deficiency? Is there any definition that you are aware of that anyone is applying as a matter of economic or language assessment? What does the word deficiency mean for you?
Dr Taylor: If I may, and turning to the 2023 Act, I mentioned section 11 and 12 before, which are the restatement powers. They say under section 13(3) that the following purposes are required for any such restatement and that includes resolving ambiguities, removing doubts or anomalies, facilitating improvements in clarity or accessibility of law. The previous point that they be seen to be more technical is probably what they mean by deficiency and needs to be clarified.
Q22 Chair: But it is more limited than a vision of the kind of laws that you would hope to have, having changed as you very interestingly suggested when there is a transition from what was the old empire to colonial law, and there were changes that were made by individual countries. Canada went through a similar process when it became detached from Westminster in 1982. I was involved in advising Quebec at that time. What I am trying to get at is whether there is just simply an opportunity to do it, but that it is being more of a technical exercise than one of an opportunity to address the vision that you could have if you wanted to improve things substantially. Is that in line with the kind of thinking that you have collectively or individually?
Professor Wilson: Yes, I think so. What you typically see in terms of the phrasing of deficiency comes back to the section 8 powers under the 2018 Act where the idea was you would be correcting deficiencies in EU law that would be retained. What that was driving at was that there are phrases or the allocation of powers or responsibilities within the EU law that once it became retained would no longer be effective as regulation. That might be references to particular states, it might be that an EU body receives a power and someone else within the UK context is now going to need to receive that power, so very technical changes to make EU law operate effectively after IP completion day. You see that understanding of the deficiencies of EU law in very much the same terms now with the correction of single words and phrases within some of these restatements or replacement legislation.
What we are not seeing so far is that second understanding of what might be a deficiency in terms of a policy or a missed opportunity in substantive terms.
Dr Taylor: If I may add on that, the way I look at this Act is very much that it is about tinkering with bits of retained EU law or assimilated law to make these small changes, to make things work as stipulated. In some ways those sorts of changes are of course better suited to secondary legislation, which is why you have these powers. Any more substantive changes one would perhaps expect to come through primary legislation and that is obviously a separate policy matter for the Government to decide what they wish to do.
The Act itself does not put a duty on the Government to make any major changes. It does not even put a duty to make even some of these smaller changes. These are discretionary powers; they are there to use them and they may use them as much or as little as they wish, up to the point where most of them expire. That is important to note. They are there and there is potential for technical changes; there is potential for some minor policy changes, but it does not otherwise set up a programme of reform.
Joël Reland: I think it is quite clear what the Government meant by deficiency when we had the Brexit Opportunities Unit and the Minister for Brexit Opportunities and Government Efficiency. It was about remaking regulation that was not best suited to the needs of the UK. I think he referred to it as barnacles encrusted upon the British ship of state. The reason why I think there has not been much substantive reform in that area is because this notion of regulation best suited for the UK is an oxymoron, and regulation is primarily about reducing barriers and creating common standards between different jurisdictions so that they can engage with one another as easily as possible. Therefore when you try to remake regulation in the UK context what you do is complicate life for businesses that want to operate in multiple contexts.
To give you a tangible example, in the reform of the medical devices regulations, there was this idea that we were going to be lighter touch, simpler—businesses would have fewer compliance obligations for the UK market than for the EU market. The problem is for a business they now have two sets of compliance that they need to work on, depending on which market they are accessing. Although our rules are simpler, there is still more procedure than if we just followed the same rules as everybody else. The risk from that is that devices then do not come on to the UK market because they are going to prioritise the EU regulations, because although they are more burdensome, the EU is a much larger healthcare spending market than the UK. That I think is the primary reason why reform in this context has not been delivered on.
Then there is the secondary question for British businesses when the EU is their main export market and therefore they want to maintain access to it. What is the point of reforming your vehicle regulations or your GDPR regulations when most businesses want to follow those EU rules so that they can continue to access that market?
A third reason, which I will not go into, is the UK internal market. If you create reform in the UK that often creates divergence with Northern Ireland, which is another disruption. Those three reasons all together are the key reasons why I think not much has happened.
Q23 Chair: There is a paper that you may or may not have come across by Professor Roland Vaubel of Mannheim university where he describes the entire process, as an expert in this field in terms of economic law, as a form of regulatory collusion. When I am talking as I did earlier about QMV, what happens in practice is that you end up with the decision taken by those who run the European Union and that is where the problem lies.
When the London School of Economics was running under I think Simon Hix, we took evidence from him some years ago on this, and you look at the nature of the legislation that has been passed and the number of times that certain countries have taken control of the system with the allies and the money to which they have provided extra benefits so that those countries vote with them. The EU Port Services Regulation was quite a good example of this where countries that had no ports at all were engaged in the process.
What I am driving at is that I think you are underestimating the extent, if I may—and do answer me if you think I am wrong but I do not think you can—that there is a process of harmonisation and political integration that lies at the heart of European law making and that has always been, since the very start of the European Coal and Steel Community, directed at an objective, which was to achieve political answers to questions that came out of the second world war and therefore designed to bring France and Germany together, and that remains still very much at the heart of a lot of the legislative law making. That does not mean to say that it is advantageous to the United Kingdom.
What I am posing is a question, which is, do the Government have the opportunity through the benefits of the Brexit paper and the smarter regulation agenda and through the TIGRR report and things of that kind, which do set out certain policy objectives, to achieve a result that would be divergent and beneficial to the United Kingdom because it would then have escaped from this suffocating qualified majority voting system?
May I give you the example of what took place in Madrid last week in relation to the Pact on Migration and Asylum? The law now appears to be moving towards imposing compulsory fines on countries that are also put under a direction by regulation to take quotas of refugees. There is a huge row in the European Union about that. There is going to be a new law that enables those who want to have refugees distributed according to quotas and fines imposed on countries that are not prepared to do that as compared to, for example, ourselves, who are out of the European Union and if we can get our legislation right we can form our own judgment about how to deal with illegal migration.
I am putting this question to you. Have you thought through individually or collectively if there is such a thing in this context, the advantages that you can get from self-government in your own democracy, doing what your own voters want in your own Parliament, which is inherent in the kind of democracy that most people would expect to get?
Joël Reland: I think what you are getting at is there is a trade-off between sovereignty and economic integration and the UK has moved towards greater sovereignty for less economic integration. It is not about a particular view but certainly this Government have been one that have pushed quite firmly on the sovereignty line. It is quite a hard Brexit that we have had and ultimately so far what we have seen is a limited ability to reform regulation meaningfully outside the EU. The questions as to why that happens are very much up for debate, whether that is about failure of the Government or whether it is about deeper structural factors that constrain sovereignty and is to do with business interests and so forth.
I think there is an unresolved question as to where the balance lies. I think you could see with future Governments the potential that they could be willing to give up a certain degree of sovereignty for closer economic integration. An example would be an SPS deal that would make life easier for meat and dairy exports to the EU. There is a potential economic gain there but of course you must follow a certain degree of EU regulation in exchange for that.
Ultimately the UK is still subject to a lot of EU regulation because it operates as a global economy and the UK is its closest trading partner. We are going to be subject to the CBAM when it comes fully into effect. We are subject to all other EU regulation if we want to export to that market. Would you rather be on the outside effectively having control over your own regulation but having to follow those EU rules or would you rather be inside the tent? Yes, you do not have full control but are able to effect some sort of change on, for example, the CBAM policy or any other EU regulation. These are all questions about where you strike that balance between sovereignty and economic integration and they are not yet resolved.
Q24 Chair: Is there not also a question for example that was raised in 2011 when there was an attempt to get us inside the Stability and Growth Pact that was vetoed at the time by the then Prime Minister, the result of which was that we were no longer going to be entirely embedded in the economic framework of the European Union. You could also look at the question of our defence and procurement in PESCO and things like that, where you have an option, which is higher and greater degrees of co-operation or co-ordination and the same sort of principle applies to economic and monetary union and the fact that we are not in the single currency but there is a euro as well.
For practical purposes there is, underneath the whole of this process, a question of whether you want to be governed by 27 other member states by a qualified majority vote or do you want to make your own laws in your own Parliament. Really is that not the advantage of doing it and is it not demonstrable that you can get yourself as we are in the migration situation outside the compulsory fines and compulsory quotas that are now going to be imposed on the other member states?
Joël Reland: That is a matter of personal judgment. It is quite clear where your opinions lie.
Chair: If I may say, I do not think the voters of this country would take very kindly to having the imposition of quotas for immigrants or, for that matter, fines for non-compliance but I think I will leave it at that for the moment. I now move on to Gavin Williamson—sorry, Gavin Robinson. Good correction.
Q25 Gavin Robinson: I am not going to go there with any analogies, comparisons, or anything else. I am sorry I was not with you for the start of the session. I want to turn to my Celtic cousins, if that is okay, to talk about devolved nations and the impact for devolved nations. Perhaps Professor Wilson could initially give us her view on the extent to which the changes set out in the regulations so far materially impact the devolved nations.
Professor Wilson: Certainly. There are powers that are granted to the devolved nations under the 2023 Act. So far the devolved Governments have not brought forward any SIs to make substantive changes. We have seen draft legislation brought forward by the Scottish Government that are essentially consequential amendments regulations, so correcting primary legislation to take account of the change in terminology from retained EU law to assimilated law. However, the statutory instruments being brought forward by the UK Government are affecting the devolved nations. We have seen that to some extent with the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023. Of the seven items that were saved by the schedule 1, half related to or were at the request of the devolved nations.
The UK Government have made a commitment not to normally use their powers without agreement, and that very much mirrors a commitment that was made during the 2018 process. The UK Government did typically honour that agreement.
The question is then how the process is being effected within the devolved nations. Within Scotland for example the process is very similar to what happened under the 2018 legislation in terms of the Scottish Government are the ones that are consenting but in advance of doing that they are seeking the approval of the Scottish Parliament. The protocol that is currently regulating that we are calling the Protocol 2 or Statutory Instrument Protocol 2, and that is a political rather than a legal process. What essentially happens is that the Scottish Government make a loose agreement with the UK Government as to what will happen. They then write a notification, which is essentially a template pro forma letter outlining the purpose of the planned statutory instrument and they send that to the relevant subject Committee of the Scottish Parliament, which then considers and approves that notification. They have 28 days to do that. That process has been ongoing under the First Protocol before IP completion day and under the second process since.
Indeed, even yesterday, the Scottish Parliament approved the Civil Jurisdiction and Judgments Regulations savings provision regulations which will save references to a particular international convention. The expectation is now that the Scottish Parliamentary Committee have approved the consent being given. They will write formally to the relevant Scottish Minister. The relevant Scottish Minister will then consent and notify that consent to the UK Government. We can anticipate seeing draft legislation coming through Westminster shortly.
The other element of this of course is the Scottish Government’s commitment to keep pace with the EU. One of the things that we are now seeing become routine in the notifications is to highlight the impact that any UK SI will have on that keeping pace.
Q26 Gavin Robinson: Who is doing that?
Professor Wilson: That is the Scottish Government. If there is going to be a difference, and there typically will be if you are reforming in some way, they will flag the keeping pace and the reason for not keeping pace on that particular area. That might be that the legislation that is going to be brought forward by the UK Government has similar aims to what the EU is doing. It might be that there is a similar trajectory and you do see that potential for correlation where the same issues are being raised between the UK and the EU. Sometimes they have flagged the fact that a departure from the EU position is required to ensure that law operates effectively in the UK or Great British context and sometimes it flags that there will be no impact on a potential re-accession of an independent Scotland.
Q27 Gavin Robinson: Thank you. Dr Taylor will have a reflection on this as well, but I will just add in a couple of elements, so feel free to add to what we have just heard from Professor Wilson as well.
You have talked about Protocol 2 and the Scottish Government’s way of doing this. Obviously Northern Ireland’s devolved Administration is not operating at the moment, but we know that ordinarily the legislative consent motion process and the Sewel Convention, great though it is, is a convention and not always followed. So any reflections you may have on any experiences of where the devolved nations have not given consent or consent has not been sought from them and if you have reflections on Wales that would be helpful as well.
Developing that out a little bit more to the machinery of government, Scotland is clearly doing an assessment themselves of the potential for divergence, the impact of divergence or the need to continue assimilation. Do you have any views on whether the UK Government have a role to play in that, highlighting from the get-go whether there is going to be an issue of divergence should Government choose to align closely in Scotland with the European Union. That would be helpful.
We had the Secretary of State before us in the Committee when she was bringing forward the schedules and the changes in approach to retained EU law and I asked her what assessments had been carried out under section 46 of the UK Internal Market Act on trade but specifically she would be providing an element of machinery of government as to how they assess whether there will be an impact, primarily for us in Northern Ireland, but it could apply to Scotland too, so any views you may have on that as well would be appreciated.
Dr Taylor: Yes, I am happy to make a start on that. On the point of keeping pace and EU law divergence, I know the Scottish Parliament now have an EU law tracker. It is a pretty new thing but as far as I understand it, it tracks divergence between specifically Scotland EU law but also divergence within the Union itself. That is something that they are paying a lot of attention to.
In many respects in trying to understand the nature of the changes that the 2023 Act wants, there would certainly be no harm in having an explicit way of tracking it. It would be very different to the dashboard insofar as it is not just what changes have been made, but it might give us a better sense as to the extent of those changes, whether that is greater or lesser regulatory divergence. That may inform any policy on reform of retained EU law or assimilated law moving forward.
In terms of the consent and the Sewel Convention, to build on what Professor Wilson said, the interesting thing about the withdrawal Act process and what we expect to see and what we are seeing now with this process is that a very active approach was taken towards getting the consent of certainly the Scottish Government and then the Scottish Government trying to get the consent of the Scottish Parliament, because the Parliaments otherwise missed out on this. There is an inconsistent approach towards getting consent, you might say. It depends on the individual Act. There is no legal requirement to do it—it is a political one.
The Sewel Convention only applies to primary legislation but when it comes to Sewel fundamentally, certainly in the Scottish context, the Scottish Parliament have not supported any of these pieces of legislation but they have gone ahead anyway. Their view has been particularly in light of the correction process to make the best of that, because fundamentally with that legal cliff edge that was hanging over everyone on exit day and then IP completion day if the changes were not made there was going to be a problem. There has been work done from the Scottish side to ensure that these corrections are made in a way that works because of that.
It will be interesting to see moving forward whether the process of getting consent and this collaborative approach with the Scottish Government and the Parliament is always going to lead to giving consent, which is what mostly happened, and whether because there are not those time constraints you might see Scotland wanting to make very different changes or disagreeing perhaps the Parliament with the Government on certain matters.
Professor Wilson: If I might build on that answer. There are three occasions that jump to mind of where they proceeded without consent. The first relates to the 2023 Act, so that big schedule 1 with its 587 pieces of legislation that were going to be abolished. The Scottish Government initially objected to six of those, two in the end were included in saving, two they eventually agreed were obsolete, and two of them they wanted to be saved. They related to air pollution, but they were not saved. The relevant Scottish Minister wrote a letter to the Scottish Parliament to convey this. The reasons they were not saved were not outlined.
There has been some discussion but again that has not always gone as the devolved nations would want. In the earlier 2018 Act process there were a couple of occasions where again consent was not given in advance of relevant legislation being made to correct retained EU law. One of them was where a particular item of legislation had to go ahead and there simply was not time. Normally there should have been 28 days. Sometimes that was more constrained. On one occasion it could not be given at all.
On another there was an agreement in terms of how something would be done. It was in relation to the payment of funds for cultural institutions, replacing EU funding that had come through. Essentially there was initial agreement on how that would be done, but in the end the UK Government wanted to make those direct to the cultural institution rather than through the devolved body and so the Scottish Government withdrew and refused their consent, withdraw their notification from the Scottish Parliament and no longer sought agreement and approval and ended up using prior legislative mechanisms to effect those payments in a way that it saw as more consistent with a devolved settlement.
There have been some examples where that consent has not been given and things have gone ahead none the less but most of the time approval has been provided.
Q28 Gavin Robinson: On upstream consultation, so far so good or so far room for improvement?
Dr Taylor: So far, fine. One of the things that we learned when we were looking at this process last time was what things are going to help in terms of the scrutiny of it. You have a sense of Governments talking to one another, but what do the Parliaments know about this? What was interesting about Protocol 2 was that the Scottish Government said, “We want the Parliament to be part of this, not just it be about us,” which was really important. It was engaging the Scottish Parliament in essentially the making of secondary legislation by UK Ministers in this place, and that was quite an astonishing and interesting development. What they really wanted was things like more stakeholder engagement, more impact assessments. The Scottish parliamentarians wanted to understand the nature of the changes more and often the Scottish Government could not provide this, because they were dependent on what the UK Government had and what the UK Government had might be broader impact assessments not necessarily specific that they could rely on.
The difference, as I mentioned before, would be the time. Last time everything had to be done quickly as best as they could before IP completion day. Things such as time commitments were not always kept in terms of the scrutiny for Parliament and so on. One would hope that without a pressing external time limit with the exception of course of the expiry of the powers themselves in 2026, that this may lead to even greater consultation, even better upstream negotiation and so on about what works and what does not, and there might be more time to get effective scrutiny.
Q29 Gavin Robinson: To close this aspect, is there anything the other two gentlemen wish to add? If you have any knowledge on Wales, for example—we have a good Scottish representation here—or are you happy with what you have heard?
Joël Reland: On the tracking question, it is quite relevant to my remit because one thing we are essentially thinking about is how are the Government tracking EU law and law changes that are coming down the line, and that is not just UK but also the devolved Governments.
The first thing to say is Westminster is never going to tell Scotland systematically about changes, because that gives Scotland more opportunity to align with the EU and deviate from the rest of the UK internal market. They do not want that. Effectively it is pushing a more independent Scotland, so politically I think that is pretty much a non-starter.
Where there is a question is about the stated intention of Scotland and Wales in particular to align with EU regulation. While that has been an intention, we have not seen very much of it in practice. There was a single-use plastics regulation that has been reflected in Scottish and Welsh statute now. The key challenge here is one of capacity. It is pretty much impossible for an EU member state to track all the EU legislation that is coming down the line. Fortunately a lot of it is done for them, but if you are on the outside, it is totally impossible to keep up with everything. Then not only must you identify the legislation, but you must understand the consequences and, if necessary, design and implement your own replacement legislation. That is impossible for Westminster. For a Government of the size of Scotland and even more so Wales that is just never going to happen. Primarily their jobs in the past have been implementing regulation that is set higher up. They now must design policy from scratch. You might get one or two things off the ground, but you are not going to get much more than that. It is basically an impossible task. It is a capacity issue.
Dr Garner: Extremely briefly, we saw the Welsh Senedd also did not give consent in their legislative consent memorandum for very similar reasons as the Scottish Parliament. On Northern Ireland, we have seen references in the explanatory notes on regulations issued under the Act whereby retained EU law that was necessary to be retained in Northern Ireland as well, we have seen civil servants giving that advice to the UK Government, so there is co-operation there in the absence of course of the Assembly and the Executive.
Q30 Jon Cruddas: I invite your comments on questions of transparency and scrutiny and your experience of it and how that scrutiny could be improved. There is an issue of self-interest here because this Committee has a role there in that it has been recognised as responsible for scrutinising these things. We will receive a six-monthly report until June 2026 on status and planning, but what might also be needed in terms of effective scrutiny? You talked about the lag with the dashboard. How can we get ahead of this and create a more transparent and open system? Maybe Professor Wilson could respond because she raised this issue earlier in her comments.
Professor Wilson: In some ways the dashboard is a big step forward from what the 2018 Act process had in that it exists and that allows a degree of tracking. The six-month reporting period means you will have that lag. We do not yet know what the first report will look like and whether that will be very high level—the level of detail. Of course, you have the retrospective understanding of what has been changed so far and the prospect of this is what we want to do in the next reporting period. Again, those plans may or may not be hugely detailed.
What that reporting will not necessarily give you is a sense of what the separate instruments are also doing, the changes that are being made and the impact of them. Dr Taylor mentioned stakeholder consultation earlier. An awful lot of this is highly scientific, technological, technical, very intricate legislation and industry stakeholder engagement is critical to understanding what the impact will be.
In terms of business efficacy, again for the wider economy understanding the impact of changing the proportion of lead in packaging materials, which is a genuine example, might sound very small, but it could have a very significant financial and economic impact.
Stakeholder engagement will be very important. I think making sure that there is a balance between understanding and a wider programme of reform and ensuring that there is effective scrutiny of individual instruments will be quite critical.
A variety of conversations about transparency will be challenging. We have mentioned the conversations between the Scottish Government and the UK Government. Only the outcome in terms of the notification to the Scottish Parliament is then recorded. The conversation, the tone, the original thinking of the different Governments during those conversations is not recorded. There may be a variety of challenges for understanding the motivation and the process, the different views, and the impact.
Dr Taylor: If I may add to that briefly. I think there are a couple of things. One is that the 2023 Act does not provide much in terms of additional scrutiny. We have the report that has been mentioned and in some ways the usefulness of that will be determined once we start seeing the reports. It is worth knowing that should a Minister not publish this on time they must explain why, so there is a risk of a potential lag on that in terms of any political response is going to have to be required to make sure that it is maintained.
In some respects, the report is meant to give you maybe a bird’s eye view of the state of retained EU law, the nature of the reform policy that the Government are doing, and that is reiterated by the fact that they must explain the updated dashboard. They must also provide I believe a list of what they plan to revoke and replace later. In some respects that is good, because that is going to give everyone a better idea of what their plans are and assuming that the reports come out on time—
Chair: And what they are not doing.
Dr Taylor: Indeed, by implication. If it is a short list, a long list, the nature of the content, all of that is going to help in terms of working that out. The other thing to add for completeness is the fact that there is a sifting process put in place, which is the other reason why this Act has such strong parallels with what happened with the 2018 Act, because that had a sifting process as well for delegated legislation. That is essentially a process to work out if when you have a piece of secondary legislation subject to the negative resolution procedure, whether it should proceed instead as an affirmative. It is about whether the procedure for approval is the correct one. It is less on the merits although it may be shaped by the nature of the policy that has been adopted. In that sense it does not add any additional merit scrutiny to it.
For completeness from a Scottish perspective when we had the 2018 Act process there was a parallel sifting process adopted for any Scottish statutory instruments but that was purely political. That was not a legal requirement. That ended last year in advance of the expiry of the section 8 powers and there is no indication yet as to whether Scotland will take on that sifting process again for any decisions it wants to take in terms of reforms using its concurrent powers. We will have to see if that is the case. It is going to be more required if they decide to pass things themselves rather than give consent to UK Ministers to do it, so we will see what goes on.
In terms of scrutiny, I think that is where we are with that and it will be quite interesting to see how the reports pan out in the end.
Dr Garner: I would make a point building on what was mentioned about the sifting function. I think we have seen an example of this working very effectively. This was in relation to the Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations where that was proposed by the Government as being subject to a negative resolution procedure on 11 September but on 17 October, the Secondary Legislation Scrutiny Committee, the European Statutory Instruments Committee, recommended that should be upgraded to affirmative, because within those regulations there would be a change of the definition of fundamental rights and freedoms from EU law, which has a specific right to data protection in article 8 of the charter to the European convention on human rights, which has a more general right to a private life.
The Committee stated that any changes in sensitive areas may be regarded as politically sensitive and there could be a difference in the level of rights protection and the Minister of State for Data and Digital Infrastructure accepted that recommendation. That is a good example of the sifting having in mind the rights of individuals that could be affected and ensuring that there is a proper level of scrutiny for Parliament to engage in.
On the scrutiny of content, I think the section 17 procedure with the report is very valuable, but of course it does not seem that Parliament would be able to have any input over this. Of course, Parliament would have had input over the section 15 powers if the House of Lords amendment had been adopted. I understand why there was a rejection of this amendment whereby Parliament would have to approve every use of this power, in terms of efficacy, but again it would have been beneficial if there was a clearer distinction between what were simply deficiency-correction powers and what were more substantive. There could have been a process for Parliament to be involved in the content of more substantive regulations and then it could have been clear that deficiency corrections do not need this level of scrutiny. It will be interesting to see what comes out of these reporting stages, and it is good to have transparency on what the plans of the Government are linked to this dashboard.
Joël Reland: I would echo the point about stakeholders. I think that is where there is a lot to be gleaned and it comes back to the point I made before about being qualitative rather than quantitative led. It is about understanding the impacts, rather than the overall body number of pieces of legislation. The reason why stakeholders are so important is because they are the people who are closest to this. They understand it often even better than the Ministers who are pushing it through, because they live this day in, day out and they can see and understand the impacts that are coming down the track in advance.
In my work tracking of divergence, so often when I am made aware of something it is through a media report, and you can see that the fundamental source is an industry person. They are the person who has flagged it to a journalist, and it then becomes a piece of news. If it was not for the industry body, it would never have made headlines in the first place and possibly there would not have been a political conversation about it. These are the people who have the closest understanding and understand where the impacts on people’s lives are going to be. I would speak to as many as possible.
Q31 Chair: We have more or less reached the end. I would just like to pose one last question.
To go back to what Dr Garner was asking right at the beginning, which I thought was very interesting, it was about the changes that take place when you have what is effectively a revolution, when you change from being governed by a particular set of constitutional arrangements as the EU was, before we left, and still is as it exists at the moment. For example, America after the revolution in the late 18th century, and we have had India and so forth. If people want to have their own freedom and democracy, if for example they want to defeat Napoleon or they want to defeat Hitler, they wanted to avoid something being done, so they wanted their own laws and their own democracy.
Professor Ansell in the Reith lectures at the moment is looking at the issue of the future of democracy in this context. Underneath what you are discussing and helping us to look at is some part of the question of what kind of Government you want, what kind of legislative arrangements you want to reflect the views of your voters in a democracy.
Scrutiny is part of that process. It is not just a zero sum gain. It is about what people, to use your expression, can achieve in terms of qualitative advantage as compared to purely quantitative but it is a much deeper question than just simply the technical scrutiny of legislation. It is about what kind of Government you want, what sort of laws you want for the city, for defence, for security, for Northern Ireland, for questions relating to health, medicine and so forth. What laws do you want to be governed by? Would you not agree with me that that is at the heart of this? The question is, have the Government in rejecting or leaving the European Union now given the opportunity to the British people to make up their mind what kind of laws they want?
The next question, which follows from that, is whether you are going to end up with something that gives more freedom, more democracy, more scrutiny, more transparency to be able to achieve a better kind of place for the United Kingdom rather than being governed by other people by qualified majority vote, which is the way in which the European Union functions?
I am going to ask you a final question: do you understand and appreciate, do you want to see, as I put it to Professor Ansell at the end of the Reith lectures, a system inside this country that gives you the right to make your own laws on your own terms repealing those laws that you do not like, even if they came from the European Union in the first place, to be able to have your own body of statute law, your own body of law, or do you want to be governed by a group of 27 people who have the ability through qualified majority voting under the constitutional arrangements of the European Union as in the case of migration, that ends up with compulsory quotas and fines? What kind of future do you envisage? Do you not think that the concept of getting rid of retained EU law does provide you with at least the opportunity to be able to think about that?
Joël Reland: Yes, okay, big question. I do not, just to be very clear, have any particular view on what type of state the UK should be. The main point I would make back is that I think you are presenting something of a false binary in terms of EU supra-state or quasi-Athenian senate-based democracy. The reality is that we are always going to be somewhere in between the two and the point is about where that dial lands. The reality is there are big constraints on sovereignty even outside the EU. Vehicle regulations are largely set at UN level. The WTO significantly constrains what you can do from a trade perspective. Even where there is in theory total sovereignty over how you make your regulation, for example AI, there are practical constraints in the sense that the EU and the US set the global rules of the game. Those are the markets that businesses want access to and therefore those are the rules that they are going to follow, so what is the point in doing things differently if it is just going to mean that most businesses in the world are not following your rules?
These are the very real-world constraints on how you can exercise your sovereignty. It is a question for the Government about where to draw those specific lines, but those are the key nuances.
Q32 Chair: But do you not agree this is also a question of democracy? Within the framework of the existing global arrangements those countries that can define their own laws by the will of their own people enables them to be able to do things that otherwise move further towards global government and that is an issue that we have yet to discuss. I will ask Professor Wilson.
Professor Wilson: In some ways it might be helpful to separate out the prospect of opportunity with the retrospective opportunity. The exit from the EU meant that the UK in effect can legislate and make reform in a variety of policy areas that previously would have sat with the EU, taking the point that there are various international commitments that might continue to limit that. That prospect of opportunity or prospect of freedom, if you want to put it that way, has potentially been realised.
What we see with retained EU law, soon to be assimilated law, is a retrospective question. What we have seen with the 2023 Act is that the UK Government and the devolved Governments have been given the power to reconsider the legislation that we have retained, and they have been given the discretionary power to amend that. They may choose to exercise that in any particular area. They may choose not to. We may find it useful to consider that difference between prospective and retrospective when we think about legislative freedom.
Dr Taylor: I would add is that we have talked in a lot of detail about how much retained EU law is left, whether it will be revoked or replaced, and what is the scrutiny like. In some respects, one of the most significant aspects of the 2023 Act is, as has already been briefly mentioned, the fact that under 3 to 5, supremacy of EU law disappears, general principles disappear, and we are in a position now whereas we had retained EU law and, in many instances, the legal hierarchy that we had during EU membership continued. That has been turned completely on its head. Even though we still have it I think it is quite clear that the underlying principles of parliamentary sovereignty and so on are coming through.
In terms of the future, reform of primary legislation remains an option on all of this. As has already been said the second half of this Act is very much the technical changes to the retained EU law but very much a retained EU law, an assimilated law, that is not of the same standing as it was previously. I think that is perhaps the next step in that more incremental reform.
Dr Garner: I would say that there is nothing about retained EU law that ever restricted the sovereignty of Parliament, ever restricted the self-determination of individuals. From the very start in the 2018 Act it was clear that an Act of Parliament can revoke any retained EU Law. What is instructive from a genuine post-colonial example, not the example of an international organisation that the United Kingdom freely joined and freely withdrew from, using a withdrawal clause, but to use a genuine post-colonial example, the fact that so many of these countries were able to retain the former system and repeal things incrementally I think shows that so long as you can give the choice to individuals, the self-determination to make rules afterwards, as we saw with the Statute of Westminster, previous laws should not restrict that.
I think it would have been better for the United Kingdom to simply convert retained EU law to assimilated law and then present the positive agenda of what will be done. I think it has been a massive distraction to engage in this revocation. As soon as the “Benefits of Brexit” paper came out lawyers just saw fast track powers of amendment and that meant people were worried about instability being caused by revocation, rather than focusing on the future.
Chair: So in fact it is a significant step that is now being implemented by experience. Thank you very much for coming to see us this afternoon because it has been instructive to hear your views. Thank you very much indeed.