European Scrutiny Committee
Oral evidence: Retained EU law: the progress and mechanics of reform, HC 376
Wednesday 21 February 2024
Ordered by the House of Commons to be published on 21 February 2024.
Watch the meeting
Members present: Sir William Cash (Chair); Richard Drax; Dame Andrea Jenkyns; Mr David Jones; Gavin Robinson; Greg Smith.
Questions 33 - 63
Witnesses
I: Professor Kenneth Armstrong, Professor of European Law, University of Cambridge; 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; Martin Howe KC, Barrister, 8 New Square Chambers.
Witnesses: Professor Armstrong, Dr Garner and Martin Howe.
Q33 Chair: Good afternoon, everybody. Thank you very much for coming to give evidence. Today we are considering the Retained EU Law (Revocation and Reform) Act and, in particular, the Government’s recent report on the first six months of its operation. We are interested in the reforms the Government have or have not undertaken and your assessment of the programme of retained EU law reform.
Before we get started, for those watching at home, would you mind briefly introducing yourselves? I will start, first of all, with Martin Howe and Dr Garner, and then I will go to Professor Armstrong because you are appearing remotely.
Martin Howe: I am a practising KC working primarily in the field of intellectual property law but also European Union law, particularly the free movement of goods and services. That aspect of my practice changed somewhat on exit from the European Union. Before we exited the European Union, I made fairly frequent appearances at the court in Luxembourg on matters of EU law.
I am also chairman of Lawyers for Britain, which was a lawyers’ group formed to support the leave vote in the referendum campaign. We should have been able to wind ourselves up as it was job done, but we continue to feel there is a need to move from the formal leaving of the European Union to the actual implementation of the freedoms the country gets as a result of that move.
Chair: It affects retained EU law on that basis.
Dr Garner: I am Dr Oliver Garner. I am a research leader in European rule of law at the Bingham Centre for the Rule of Law. I am also a research fellow at the Central European University Democracy Institute.
Professor Armstrong: I am Kenneth Armstrong. I am professor of European law at the University of Cambridge and a fellow of Sidney Sussex College in Cambridge.
Q34 Chair: Thank you very much indeed. I will ask the first question. The Government have recently published a report for Parliament on the reform of retained EU law. Are you able to draw out any themes or trends from the retained EU law that has been repealed, reformed or replaced so far?
Dr Garner: I would go back to the evidence that I gave to this Committee in December. There is a marked difference between that report and the 26 pieces of delegated legislation that we have seen issued in the first six months. We have started to see policy decisions being made and justifications being given on the basis of growth and efficiency. That was lacking in the primary legislation.
In the Retained EU Law (Revocation and Reform) Act, there was a schedule that revoked up to nearly 600 pieces of retained EU law. As I argued in December, a lot of this was superfluous. There were very few policy decisions being made.
We are now starting to see choices being made about the UK regulatory environment and how the Government, the Department for Business and Trade and other Departments involved would like to see that differ from the EU’s regulatory environment.
Q35 Chair: On that point, you may or may not know that I regarded that schedule as junk. I said there were only three provisions in it that made any sense at all. It amounted to something like 0.85% of the entirety of the schedule. For practical purposes, as you said, it was superfluous. However, we are now moving to the next report. That is really what we will be looking at today.
Martin Howe: I share the view that there has been some movement towards some changes, but overall my reaction is one of disappointment at how limited the progress has been so far. That is coupled with the fact that in the report there are retrograde steps, in particular under the section 4 restatement of direct effect provisions. I get the impression that almost the entire Government machine is opposed to the process that the 2023 Act has set in train and a few fairly modest changes are being made against a huge amount of inertia.
Q36 Chair: Before I ask Professor Armstrong to comment, I will just put this in context. Under the arrangements that were eventually passed in the Retained EU Law Act, on ping pong, there was a statutory obligation imposed upon the Government to produce a report at six-monthly intervals. Looking at the progress that was made in the most recent report, many people might regard it as disappointing to say the very least. The opportunity was there, but it was also buttressed by a statutory duty to report and to make progress. I am interested to know what your thoughts are on that aspect of it.
Martin Howe: I am looking at the first six-month report that covers the period June to December 2023. I have a couple of concerns about stasis, first of all. There has been stasis in areas where, in my view, there could and should have been movement. On stasis, right at the back of the report, in the schedule on page 53, an item that is accredited to DSIT relates to—
Q37 Chair: Could you explain to our viewers what DSIT means?
Martin Howe: It is the Department for Science, Innovation and Technology. This relates to the subject of parallel imports and exhaustion of rights. To give you a little bit of background, that field formed quite a significant part of my practice when we were in the EU. Under our law before we joined the European Union, in general, if a manufacturer put branded goods on the market anywhere in the world, under the trademark, they could then be imported into the United Kingdom without restriction. That was the general rule.
After we joined the European Union and following harmonisation of trademark law, the EU rule was that, effectively, the same rules applied inside the internal market. As regards imports from outside the European Union bearing genuine trademarks, they could be prohibited by the trademark owner, however. The result of this is there are many fields where branded goods became significantly more expensive inside the European Union than outside. There is a well-known case called Levi Strauss and Co v Tesco, where they successfully blocked Tesco from importing genuine goods from North America on trademark grounds.
Whatever the merits of that when we were in the European Union, it is completely illogical to distinguish between imports from the EU and from other states now we have left, but that is still what our law does many years after leaving. This near-final item in the schedule indicates a statutory instrument that has just preserved the current completely illogical position.
The problem is delay on this sort of subject costs money for consumers in the UK. I do not know what is causing this inaction. Perhaps it is an over-susceptibility of the Government machine to vested interests. It costs the country money.
Q38 Chair: It could just be a complete failure by Government lawyers, for example, to do the job that is expected of them in light of the requirements under the Act and the decision to leave the European Union.
Martin Howe: I cannot comment further on the internal reasons within the Government machine.
Chair: I can.
Martin Howe: I regard it as deeply disappointing. The other area of stasis is not covered by the report. It is in the Finance Bill. I looked at the status of it. It is still a Bill, although it has completed all stages in the Commons and so will go straight to Royal Assent without consideration in the Lords.
Clause 28 of the Finance Bill is about the interpretation of VAT and excise law. It keeps alive all the EU case law on the interpretation of VAT. As far as I can see, it retains the general principles of EU law in this field. Again, this seems to be a retrograde step.
One thing that I noticed about the report is that it treats the Treasury as a separate entity rather than as part of the Government machinery responsible for implementing what the Act lays down. The problem with this is that we have a field of law where we are indefinitely preserving the case law of the European Court of Justice, with all the problems that entails.
Professor Armstrong: There are a number of important themes. The first one is the wider policy context. It has become clear that what were previously Brexit opportunities are now being merged together with smarter regulation within the Department for Business and Trade. That raises some questions about how well those two policy environments fit together and how much of change is driven by a smarter regulation agenda or not.
The second theme that I might draw out is perhaps contrary to what Mr Howe has just said. When we look across to financial services and the changes to the legislation that are happening, it feels like that is an area where there is more of a driver for change. It feels as though there is a set of interests that come together across the Treasury, the Financial Conduct Authority and the industry itself in producing change. In fact, some of the recent statutory instruments, such as the securitisation statutory instrument, try to shift the regime more fundamentally on to a domestic legal footing and make a bigger transformation away from the system that existed under EU law.
The third theme, which echoes some of Mr Howe’s points, would be around the use of the restatement power. This is the power to restate what was retained EU law, to restate assimilated EU law and the way in which that can have the effect of codifying past interpretations of retained EU law. Those are some of the things that we see.
To echo Dr Garner’s point about the other statutory instruments we have seen under the 2023 Act, yes, there are new instruments coming through. Yes, there may be some indication of policy changes. When I look at those what really strikes me—I would be very interested to hear what Dr Garner thinks about this—is how heterogeneous they are. They are very different in terms of how much or how little they are changing and how much they want to change or indeed restate what the position was under retained EU law.
We should compare that to financial services, where I feel there is more of a driving philosophy. When it comes to action under the retained EU law Act itself, we see very heterogeneous responses coming out from different Departments and other bits of Government that are moving at different paces. On the financial services side, there is a clearer steer from the Treasury, the Financial Conduct Authority and indeed the sector itself as to its desire for change.
Q39 Chair: What you have just said includes quite a number of very important questions, not least of which is about the field of financial services and the whole question of the City of London. For example, I have seen it reported in the press that the City of London Corporation has recently stated that we have, if not indefinitely, temporarily overtaken New York since we left the European Union. That is contrary to project fear, which in my opinion was a load of rubbish.
The evidence that has emerged since the Acts of Parliament in this context or, for that matter, the statutory instruments, in terms of the City of London have demonstrated that leaving the European Union has been highly beneficial to the City, contrary to what some people expected and said.
The other thing that intrigued me with your remarks was the extent to which there were certain Departments that clearly were lagging behind as compared to others. You gave the impression—I hope I am not misunderstanding you—that some Departments were more proactive, but ultimately some were just simply not prepared to make the changes that might otherwise have been expected. In that context, does that reluctance come from an intrinsic desire not to do it or are they simply not up to the job?
Professor Armstrong: It is a very difficult question to answer in the way in which you present it. There are a couple of things that we might want to explore. One is something that you will probably have heard previously in evidence from other people. We see some of this reported in the Office for the Internal Market’s annual report, for example. Businesses often just want certainty. They do not really care what the rules are, as long as they know what they are and can then adapt accordingly.
It may be that Government Departments have the feeling, rightly or wrongly—that is an important question to ask—that the businesses they are interacting with are not necessarily pushing for big changes. Maybe that is different in financial services, for example.
The other thing that is interesting is about the relocation of this under the smarter regulation umbrella into the Department for Business and Trade. The question becomes, “How does one Department manage its relationship with other Departments when it may want to push for certain types of regulatory change?” so taking it out of the Cabinet Office, where it sat across Departments, and putting it into the Department for Business and Trade itself.
The issue there is about how successful it can be in promoting its smarter regulation policy, making sense of what that means in terms of retained EU law as well as aspects of law that were not regulated under European law, and then to be able to push that agenda out and across other Departments, and to have the authority to do that with other Departments to create the sorts of cultures of change that, Chair, you were interested in seeing.
Q40 Chair: I find that answer extremely interesting. I was going to ask one supplementary, but you have answered it for me in a way. Why should the whole question of EU retained law be resident in the Business Department when quite clearly EU retained law affects the whole range of law? Therefore, one would perhaps hope that the Cabinet Office would be very proactive in making sure there was proper co-ordination and an equal impetus from other Departments as well, which, as you have indicated—many of us believe the same—has been somewhat lacking.
The further point is that you used the word “umbrella”. If you do not have a Minister with sufficient authority within the framework of the Cabinet itself and you get a lack of response or a spasmodic response in some Departments but not from others, you lack the homogeneity required to achieve the objectives that are set. In a nutshell, therefore, the Government would appear to need to have some other Minister—these days we call him a tsar—with the responsibility and the authority to drive this forward.
Whatever one thinks about the merits of it, at any rate there is a logic to that position because coherence is a virtue of stability of Government. A degree of homogeneity is a good idea. You have more or less volunteered that just now.
Professor Armstrong: Just as a quick follow-up to that, it is a truism of better regulation in every single system that I know of that it is always hard to deal with the tension between mainstreaming an activity or building it into the work of individual Government Departments and having an entity that stands apart from them trying to mark their homework. If those entities do stand apart to mark Departments’ homework, they very often do not have the same political clout as particular Departments.
In fairness to the Department for Business and Trade, there is an inherent tension between doing the smarter regulation agenda and having the sufficient political clout to make it really matter for Departments.
Q41 Mr Fysh: In discussion of the rule process, quite a lot has been made of the distinction between what is termed substantive change and technical change. I was just wondering whether the panel could give us some examples of each and the difference between them. Could you comment on whether it is fair to say that so far there has been much more of a technical nature than a substantive nature? Would you like to go first?
Dr Garner: Yes, I would be happy to start. Picking up on what the Chair talked about at the start, we can look at changes that are technical but can also be seen as being quite superfluous. They are not necessary for the goals that go all the way back to the White Paper around improving economic growth, improving regulatory efficiency and improving clarity and accessibility in the law.
It is probably worth bringing to the attention of the Committee that in the plans for reform that are upcoming there are probably examples, again, of what could be seen as quite superfluous change. On page 32 of the report, for example, there is a mass revocation of statutory instruments in relation to Defra.
The question here is, “Why is this being brought forward? What are the substantive benefits? What are the clarity and usability gains?” Tidying up the statute book is not enough on its own as an independent reason for regulatory reform. Otherwise, we could look at everything that has become outdated in the last 1,000 years. It feels almost like organising one’s computer files and deleting folders because you are procrastinating from doing real work.
In terms of the distinction from substantive reform, one that has come up, which was mentioned in the letter from the Chair to the Secretary of State, was on the Port Services Regulation. The reason we can say it is substantive is because it is made clear why this is not appropriate for the United Kingdom, on the basis of distinctions in the economy and regulation from the European Union mainstream, which is about ports being privately owned in the United Kingdom whereas they are mainly publicly owned in the European Union.
Even where there are examples in the report about changes that are being made—you see similar reference to points such as imposing burdens—I would really like to see the Government state why this is imposing burdens and why it arises from the United Kingdom’s differences from the European Union’s regulatory environment. Then we are seeing actual substantive change and a reason behind that.
Martin Howe: I agree with Dr Garner on the subject of simply repealing regulations that no longer have any real-life effect. It should be done. We should clear the rubbish off the statute book.
Mr Fysh: We should prune it.
Martin Howe: We should prune it off, but it is not a big deal. On the other hand, there is another very important aspect to what could be called the technical changes. It strikes me that there are really two purposes in reforming retained EU law. The first purpose is, if you like, the policy purpose. Given that the United Kingdom is now free to depart from the body of retained EU law, it seems to me inevitable that we ought to look at the content of the rules that previously were binding on us, whether their origin was legislation or court decisions in Luxembourg, and then take our own view as to whether we want to follow them, reform them, repeal them or whatever.
There is also a second reason, which I believe is important for clearing up retained EU law. That is the issue of the nature of the law. I have made this point before, but the legal education authorities—I checked the latest position under the SQE, the Solicitors Qualifying Examination—have kept EU law as a compulsory core subject for all law students who want to progress on either the SQE or the Bar, starting from today. We are educating new entrants to the profession in a system of law that we left a number of years ago in order to ensure that, when they come into practice, they are able to handle it.
My first reaction—it is perhaps not everyone’s—to this might have been, “This is just the innate pro-EU conservatism of the legal education establishment wanting to keep hold of the past”. The logic of it is that, while we have so much retained EU law still part of our domestic law, it is necessary for lawyers to have an understanding of the principles of EU law in order to be able to advise clients properly and practise in that field.
In a past evidence session of this Committee, I made a prediction that, unless something is done, in 35 years’ time EU law will still be a core subject in lawyers’ education despite having left so many years ago.
The point is this: if you have legislation that is framed in the European Union manner, with European drafting techniques, interpretation to a large extent by case law and materials that are not quite familiar with the interpretation of domestic legislation, such as the legislative history of a directive that gave rise to the measures and so on, you have to retain legal skills in order to interpret and apply that law.
It becomes increasingly incoherent over time. As time goes past, the law you are looking back at is the historical law of the European Union, not the law today, although for some purposes one might look at post-exit cases.
Therefore, it seems to me an important part of the purpose of the reform of retained EU law should be to rebase it so it no longer requires reference back to European Union legal sources for its interpretation and application. If that is achieved alongside the process of substantive reform, that is good. It is best only to do the job once. Even if you are not substantively reforming it, in my view there is significant value in the process of restating in a way that does not require looking back to case law and other European Union legal sources.
Q42 Chair: On that question, if I may, Francis Bennion was quite a distinguished and well-known commentator on statute law. He wrote a book on it in 1983, when we were in the European Union completely. He had some very interesting analysis with regard to the question of the interpretation of law by comparison with what he had been brought up with in the years preceding our entry in 1972.
I put that, as it were, on the record because what you have just said is incredibly important. If you are going to move into a new era of legislation-making, surely you should not be applying the old systems of interpretation for the purposes of continuing something that has been abandoned by Act of Parliament and referendum. Is that not, in simple terms, what really is at stake?
Martin Howe: I would agree with that, Sir Bill, yes.
Professor Armstrong: In terms of the distinction between what is technical and what is substantive, the substantive changes involve making different policy choices. In terms of the technical changes, when you look at the schedule 1 Acts that were repealed, almost all of them were non-legislative Acts in the EU Parliaments. Maybe about a dozen were legislative Acts. Of course, legislative Acts are things that we think of as involving making policy decisions and policy choices. It is clear that what was repealed under the Act was largely not to make changes in policy.
On the wider question that you have been exploring about interpretation, the Act tells us that in the future there should in fact be more ability to come up with different interpretations that are not rooted in the general principles of EU law or previous EU law or case law. In that respect, it is interesting to see the way in which a couple of the recent statutory instruments under the Act restate interpretations and make them part of domestic law. I will give you two examples.
The first example is the well-known EU 261 compensation regime if your flight is delayed. A couple of years ago, the then Transport Secretary Grant Shapps announced that there was going to be a fundamental change to the regime and it would be aligned with the domestic rules on rail and ferry delays. The regulation, which has been adopted recently, not only does not change it but in fact restates the much litigated EU 261 regime and some of the case law around it.
The other instrument is the Equality Act 2010 (Amendment). Importantly, the restatement will change the primary law itself. Whereas the aviation one is a change to secondary legislation, the Equality Act regulations will change the Equality Act itself to restate elements of the interpretation of the law there.
In some ways, there is a tension between the intention of the Act to create space and discretion for interpretive change and the use of statutory instruments to restate the law and, in fact, to codify and formalise those interpretations as a matter of our law.
Chair: As you may have noticed, I was one of those who voted against that change when we had it in front of the Delegated Legislation Committee and then a deferred Division. I entirely agree with the sentiment that you have expressed. You were explaining it as something that has been happening. The question of whether it should happen is another subject.
Q43 Mr Fysh: We looked at the latest report into the progress on REUL and thought that perhaps only two of the 26 things in there were worthy of note, which is not a particularly good ratio. One of those was on whether we could have our wine in pints rather than other measures. It is arguable how practically relevant to the reform of the UK that is.
Professor Armstrong, it sounds like you think it might be even worse than that, in terms of some of the gold-plating through statutory instrument. Is it fair to say that what they are doing is worse than irrelevant?
Professor Armstrong: I was thinking about this today. In a sense, there is almost a second wave of the withdrawal Act. There has been a realisation in some Departments that, once we got into 2024, there was a possibility of some degree of legal uncertainty as to the interpretation of certain provisions. Therefore, there has been a desire to remove that uncertainty and put it on a legislative footing rather than leaving it in case law, which might then be litigated.
Mr Howe might have views on this from the point of view of a litigator. There is something different about a court interpreting the Equality Act or a statutory instrument that has codified those interpretations rather than those remaining as aspects of assimilated case law and the restrictions that then apply to how those may be changed by the courts.
I would just pull back a little bit. When we look across those statutory instruments—I would repeat the point I made earlier—they are very different in qualities. It is quite hard to draw out very clear conclusions as to what degree of policy change there is. There are some elements of change and some elements of restatement.
Perhaps to go back to the examples that Mr Howe was giving earlier about intellectual property, that may be an area where you can contrast it quite strongly with the instruments that have been adopted under the Financial Services and Markets Act. You have a big regime with lots of different instruments that existed under EU law. You have two statutory instruments at the moment. You could reasonably conclude that there does not seem to be a strong desire to change the regime.
You might want to ask, “What are the push and pull factors that explain that?” It is partly because some of these norms and rules derive from bigger international commitments. Those are things that bind the EU as well as the UK because they are commitments that we have entered into. It is striking. If you take the two intellectual property instruments, think about the policy environment around them in terms of regulatory reform and regulatory change. Does it feel as though there is a desire to make change in those areas?
Q44 Greg Smith: Good afternoon, gentlemen. The Government are applying the principles of what they call their smarter regulation programme to the reform of retained EU law and assimilated law. First up, are those suitable principles to follow in this debate? Coming off the back of the Chair’s earlier question about it all being focused in the Business Department at the moment, are those principles too narrowly focused to bring about any meaningful reform of retained EU law and assimilated law, which covers all areas of life?
Martin Howe: I am sorry to sound slightly cynical, but better regulation has been a recurring theme of successive Governments. It has always proved extremely difficult to translate very admirable better regulation principles into practice. There are always difficulties, either political difficulties or difficulties with the affected industry and so on.
If you are looking at changing the existing body of retained EU law, changing it in a way that regulates better and smarter is a very good principle, but that is not the only reason for making changes. There are broader considerations. It may not be appropriate to have regulation in that field at all or there may be strong reasons for improving competitiveness that are not embraced by doing the regulation smarter. I would agree that it is fine as far as it goes, but it may well be too narrow.
Dr Garner: Looking at the three pillars of smarter regulation that are outlined in the report, ensuring a well-functioning landscape of regulators can be seen as appropriate insofar as regulatory duties have been transferred from EU bodies to UK bodies. We saw, as discussed in financial services, how that will be focused. The justification about minimising the regulatory burden was given in the recent statutory instruments relating to reporting requirements.
One particular point of concern on whether this is appropriate for retained EU law and assimilated law is the second pillar of making regulation a last resort, not a first choice. The problem we have is that the regulation is already in place. It has been there for 40 years. How do you apply that pillar? Something will have to be done to replace this. Is that pillar applied in such a way that it says, “This should not have been regulated in the past, so we are going to simply repeal it”? That is more proactive. That is looking forward to new policy areas. That is not entirely appropriate when we are looking back 40 years.
Another point that I would make more broadly is that the European Union is not just about economic regulation. It evolved from the European Economic Community into a union based on values, as the European Union and the court state today. We can see this in the report. In this final section on the section 4 rights, we can see the considerations of principle that may be balanced against the policies of smarter regulation. Page 40 states that a consideration for the Government is upholding high standards on equalities and rights and taking steps to ensure that the necessary rights are preserved after the end of 2023.
Going back to what Professor Armstrong said earlier, this might explain some of the heterogeneity, insofar as certain Departments will be looking not at what the regulatory or economic efficiency gains could be but what rights could be affected and even what litigation could occur.
This programme can be useful for the Department for Business and Trade’s own policy ideas in this area—they have issued statutory instruments—but it is too narrow to deal with the broad ambit of exactly what EU law did in our legal system for the last four decades.
Professor Armstrong: I fear there is a simple lack of clarity as to what the relevant principles are. Dr Garner rightly highlights the three pillars that are noted in the report. If you step back and look at the May 2023 Department for Business and Trade policy paper that launched smarter regulation, Smarter Regulation to Grow the Economy, it talks about the five principles of Brexit opportunities. In a sense, it was applying Brexit opportunities principles to smarter regulation rather than applying smarter regulation principles to regulatory reform.
To go back to a comment I made to the Chair at the outset, in this melding together of smarter regulation and Brexit opportunities, it feels like there is a slippage between these two policy frameworks, Brexit as a policy framework and regulatory reform as a policy framework, and what should be driving what. We do not yet have the clarity as to what the relevant principles should be, let alone how they are able to be deployed to make fundamental change.
To echo Martin Howe’s points at the beginning, I have been around long enough to know that every single Government I can think of have launched some form of better, smarter, leaner or more agile regulation. It was ever thus. In a sense, this is not new ground in terms of whether we can articulate principles of better regulation that can really drive a process of change and evolution in the regulatory landscape.
The important point that Dr Garner also brings out—it might be something to think about for the future—is to move away slightly from looking at the instruments and to think about the regulators themselves, the powers of regulators and what regulators are doing in their interpretation and application of these inherited legal frameworks.
Q45 David Jones: Dr Garner, I was struck by your reference to the practice that some of us have of procrastinating by assembling large numbers of files on our computer, deleting them and feeling like we have achieved something. The Government’s report appears to measure success by the number of pieces of REUL that have been amended or revoked. Is that the right measurement of success? If not, what other metric could be used?
Dr Garner: Yes, you are right to say that it is a very hard quantitative approach that is being taken. On page 5 of the report, there is the goal to have over half of all retained EU law either revoked or reformed by June 2026.
One point I would make to the Committee is that very specific numbers are given for both of these. That is something that you might want to pry at, as it were, in future reporting periods. It would be good to know whether the Department for Business and Trade has an idea about what these pieces of retained EU law will be or whether it has just set a number and they are looking to fit the agenda to it.
I do not think a quantitative approach is appropriate. A qualitative approach is necessary. This goes back to the evidence that was given by Joël Reland at our last session about how one piece of assimilated law as it is now could be more important than hundreds of pieces.
An example that was given by the Chair in his letter to the Secretary of State pertained to retained EU law that was being discussed during the Rwanda Supreme Court judgment. A key point was whether this retained EU law had been revoked or not. That pertained to the legality of probably the key Government policy at the moment.
I would take a qualitative policy salience approach. This could have been taken to identifying retained EU law in the first place. Criteria of upstream considerations and downstream considerations could be proposed. One upstream consideration could be whether the UK Government resisted this policy during voting in the Council of Ministers before it became implemented in the UK as retained EU law. You could look at Parliament’s role. Did Parliament express disapproval during the implementation of this EU law as it was then? Were there Committee reports that expressed reservations? If that were given to each Department as a goal, they could assess whether these were upstream considerations where there were problems.
The downstream considerations could include the identification of whether a piece of assimilated law is restricting Government policy plans or would be in conflict with them or whether it is demonstrably restricting growth or efficiency.
These upstream and downstream considerations could be presented as democratic and economic rationales. We would be able to identify the salience of the law we have on our statute book. If each Department were given a very clear instruction to identify the retained EU law that is on the dashboard now and were to present to the Department for Business and Trade or the Cabinet Office which of these pieces of assimilated law fulfil these criteria, the Government could think about what we can do to address this.
Professor Armstrong: I very much agree with Dr Garner’s remarks. I would not add anything to that.
Martin Howe: I too am in agreement. Counting the number of instruments is a very crude broad-brush approach. I am not able to come up with an alternative metric. No doubt your computer, Mr Jones, would be able to count the number of words inside each instrument if so instructed. I am not sure that type of quantitative exercise would shed any further light on this.
To Dr Garner’s point about the utility of looking back to the origins of some of these measures, inside the Government machine there should be the resources to find out what the British Government’s policy perspective was when various EU directives were adopted and what the United Kingdom’s position was when it made submissions on European court cases.
Again, it would be a useful exercise to look back at those. The fact we opposed a particular interpretation back in 2009 does not necessarily mean we want to get rid of it as part of our law in the current conditions, but it strikes me that that is something that ought to be looked at as part of the exercise.
Q46 Chair: On that very question, you may be familiar with the work of Simon Hix and VoteWatch, which has been and, I understand, still continues to be a resource for working out exactly what was taken into account at a given point in time. There is some oversimplification. The manner in which laws were made by the Council of Ministers behind closed doors by majority vote, without even a transcript, as we have with our daily Hansard, is an undemocratic process in itself. As you may know, I have raised this on many occasions. There is a serious contrast between that and the way we legislate in this country.
In this VoteWatch operation that is being conducted, it is very interesting to see the number of cases where decisions were taken by consensus. When they are taken by consensus, it is not real consensus. You know you are over a barrel because, before you even go in the room, you know the decision is going to be by majority vote. That is a question of democracy as well.
Many of these laws, which were passed under that regime in the last 40 years, as Dr Griffiths said, were made in a context where we had abdicated our ability to make our own laws on our own terms and surrendered to the idea of subjugation by majority vote.
If you take immigration law, for example, there are people in the European Union who are extremely angry about the fact they are having compulsory quotas and fines imposed upon them by a system that takes these decisions behind closed doors when in practice they do not want them and their voters are voting with their feet against them. Dr Garner was not asked a question about this, but, in his usual manner, he came forward with a very interesting and important point. It is about democracy as well.
All three of you together have contributed to this. It is very helpful to the Committee to highlight the fact that we are now in a different regime. We are supposed to have gotten rid of the supremacy of EU law under these arrangements. Whether it is within domestic law or whether it was extraneous to our own domestic law, as it was in that 40-year period, does not really matter. The real questions are about how you interpret the law and what kind of law you make in your own Parliament. Is this not the greatest expression of a democratic sovereign nation operating in an independent manner because it has regained its right to do so?
Martin Howe: Sir Bill, I would agree fully with one particular point that you raise. In the majority of cases, it is not possible to work out from the public record what the position of the United Kingdom Government was in the Council of Ministers when a directive or other regulation was passed.
It is very rare to have an overt dissenting vote or a measure passed by majority vote because the process is almost always that there is a negotiation and it becomes clear that the majority will pass a certain provision whether you like it or not. One then negotiates for perhaps a softening of it in some way or a way of presenting it that is more acceptable.
Now that we are free of that process, how do we look at the laws that we have inherited from that process? It does seem to me that the internal resources of the Government machine, in finding out the internal position of the Government of the day on a measure at the time, are likely to be a valuable resource over and above public resources in deciding whether it was really sensible for us to have adopted a particular measure as part of EU law.
Q47 Chair: That is very helpful. That pretty well summarises that part of the equation. I am now going to move on to another question related to primary legislation. In some cases, the Government have used primary legislation other than the Retained EU Law Act procedure to amend, replace or revoke retained EU law. As we have touched on already, there is the question of the Financial Services and Markets Act 2023, but there are others as well.
It also brings up the matters that Dr Garner referred to briefly on the question of the Rwanda judgment and the immigration laws. It strikes me that there is something really peculiar about where we are at the moment. I will ask you this question. Going back to our previous discussion, pretty much all the witnesses were agreed that there was an emphasis on what was going on in the Business Department.
Immigration is such a focal issue at the moment. In the context of what Dr Garner referred to, which is the Rwanda judgment, is it not really quite extraordinary that there has been a reluctance to get involved in immigration law? Forgive me; I am going to refer to a paragraph in that very judgment that is engraved on my heart and mind. The case of one of the claimants, ASM, who is an Iraqi—I mentioned this in a debate on an amendment in the House of Commons the other day—was dismissed. In paragraph 144, Lord Reed, the President of the Court, said the interaction between the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 and retained EU law created a circumstance in which the case could no longer be sustained. ASM’s case was the only one that was dismissed by the Court.
That is an example of a really important Supreme Court judgment, where they are saying that, if the appropriate measures are taken by our domestic law in a primary Act of Parliament, we end up in a situation in which retained EU law is removed and the supremacy of Parliament, in a new enactment, in a new form, is the basis on which the Supreme Court makes its own judgment.
I would be grateful if you could perhaps think about that and comment on it. It seems to me that it goes to the heart of what is happening at the moment on the immigration question. At the moment, immigration has a vast range of competencies. If anyone looks at the consolidated treaties, you will see there are many of them.
Why should the issue of seeking to amend or replace EU retained law be so confined to business opportunities when one of the equally, if not more, important questions is the issue of immigration, which itself is embedded in the last 40 years of accumulated law on that subject? I would be very interested to hear the three of you offering an opinion on that because it would be helpful to our Committee. In other words, why does this not apply to immigration law, first of all, and other laws as well?
Martin Howe: In effect, this leads to a broader question. Outside the scope of the 2023 Act, the other route by which retained EU law can be removed or changed is via primary legislation. In that aspect of the Rwanda Supreme Court judgment, it was primary legislation that in effect disapplied the asylum directive from continuing to form part of UK domestic law.
You have raised the broader question of whether in, say, the immigration field there are measures that fall within the scope of the 2023 Act, in other words secondary laws, i.e. EU regulations that have been transposed post Brexit, or statutory instruments. I confess I have not done a study of that to see to what extent that is the case.
Q48 Chair: The Home Office should be doing that. We are not asking you to do the entire job. The Home Office’s job surely is to go through all the legal migration matters, look at them in the context of the legislation and how it was initiated under the pre-2020 regime and then say, “Should we not be dealing with this too?”
Martin Howe: There is a limitation on the scope of the 2023 Act in terms of the measures that were repealed and the measures that can be revoked under the Act. By and large, it is secondary legislation. There are many important pieces of primary legislation that implement EU law obligations. The Data Protection Act, which implements the GDPR, is one example. There are many others. The Civil Jurisdiction and Judgments Act, perversely, continues to implement EU law in intra-UK allocation of judgments, even though we have ceased to be part of the wider European system. There are many other examples.
What one might argue is that, although the Act itself, for constitutional reasons, extends not to repealing Acts of Parliament but to secondary legislation, the process of review that is being undertaken should be broader than just the measures that fall within the scope of this Act, and should encompass also EU law measures that were passed by Parliament, because there is really no reason for distinguishing them from a policy point of view.
There is an example from my own field of practice. The Trade Marks Act 1994 is an Act of Parliament, primary legislation, passed to give effect to the Trade Marks Directive. The Registered Designs Act 1949 was completely transformed and heavily amended by a statutory instrument in order to give effect to the Designs Directive. Just by pure random chance—it is a different route—they both reflect EU law obligations. Parliament was not acting freely when they were passed or put into effect. Similar principles should apply to reviewing them, and possibly altering them.
I would argue that maybe your Committee might ask for a broader look in the next report at the process of reporting, although of course it is a statutory report under the 2023 Act, because they do raise in the report, of course, the subject of changes made by primary legislation.
Q49 Chair: The Secretary of State is coming in front of us, and that would be a good opportunity to ask that very question. Dr Garner, would you be kind enough to comment on this discussion?
Dr Garner: In the specific area of immigration, being sensitive to historical context is really important here. On the dashboard at the moment, I believe there are only 71 pieces of assimilated law that are under the banner of the Home Office.
We have to look at the fact that the United Kingdom had an opt-out from what was known as justice and home affairs and then became the area of freedom, security and justice and the Schengen zone, but it also had a flexible opt-in regime, which really allowed a tailormade approach. Every piece of law that was in force in that area is something that the Executive had chosen to be part of. That really affects whether they wish this retained EU law to still be in force or not.
On the specific question of the Rwanda regime now, I would say this is an example where the reform of assimilated law can come through the new positive policy agendas being brought forward proactively in primary legislation. I am not an immigration law expert, but I believe it was regulations in 2004 that implemented the EU law on the Dublin system of transfers. Obviously, with a new system being instituted to a third country, Rwanda, that is superseded by the new system, so you do not need the secondary powers under the Act to do this. It is very clear on the face of the new legislation.
This goes to a point I would like to make that this is really how assimilated law should be reformed from now on. Precisely because of that terminology, it is now being assimilated. It is being shorn of these legacy features from EU law of primacy and general principles, and so it should be down to the Department in charge of positive and proactive policy agendas to determine what pre-existing assimilated law needs to be repealed, in the way it would do in any area of the domestic legal system. It is about normalisation of what used to be EU law in terms of the processes of the UK legal system.
Professor Armstrong: Maybe to try to connect back to the discussion we had at the outset about what explains, if you like, the modesty of change, in a system where you create an Act of Parliament that itself removes a chunk of rules and then creates power for Ministers to revoke or reform other Acts, those are secondary Acts. You might expect them to be modest in the types of change they make, precisely for the reasons that we expect. Big policy decisions and choices should be fully debated by Parliament and find their way into what is primary law.
Of course, we know the reality of the experience not least of the period since the UK’s referendum on EU membership is one in which those boundary lines between what is appropriate to do through secondary legislation and what is appropriate to do through primary legislation have become very blurred. We find lots of examples of secondary legislation making changes to primary legislation, so we do not exist in a system where we have that clear kind of hierarchy of norms in the way that ought to map on to the democratic concerns that we have also discussed in this evidence session today.
In a sense, if there is concern about a lack of movement and change, perhaps that is also then driven by the sense that perhaps those are things that ought not to be best done through secondary legislation, and that there should be a clearer policy agenda, complete with primary legislation, that allows Parliament to exercise its rights, and for this Committee and other committees to exercise the appropriate scrutiny that comes with proper policy change at a primary law level.
Chair: That sounds like a very good proposal until one asks the question about how long all this would take. There is another factor. Having been on this Committee since 1985, I can only say that I did at one stage propose that all secondary legislation should have a little “E” put against the list on a given day when it went before the Joint Committee on Statutory Instruments so that people could identify whether it came from spontaneous UK legislation or whether it was based on the provisions of the European Communities Act 1972. They did adopt that idea for a period of time—I think it has been discontinued—but to apply that to an Act of Parliament is much more difficult, because it is a mixture or a melange of a whole lot of other things.
Your point is well taken. All I can say is that efforts need to be made to make sure that those parts of legislation that are intrinsically contradictory or inconsistent with our democratic processes, to the manner in which we are now legislating in a Parliament that is not constrained by the European Communities Act 1972, would seem to me to be a positive objective that should be followed, because if you do not do that, you do not comply with the outcome of the legislation that was passed in 2020.
Q50 Mr Jones: The Government have given an overview in their report of their plans for reform of assimilated law over the next six months, which they describe as an ambitious programme. Would you agree that it is ambitious? To revert to our earlier discussion, how much would you say is technical rather than substantive?
Professor Armstrong: Again, it takes us back to the conversations we have just been having about the metrics of success and how we would measure that. One answer I did not give to Mr Jones as a better answer than the one I gave to his previous question is that, of course, if you are thinking about what the ambition and the metrics are here, then obviously, if this policy is being reframed as one dealing with economic growth and competitiveness, then in a sense, that should be the thing that then drives the ambition, looking for those sorts of changes that you think would create the maximum level of change in terms of reducing regulatory burdens, increasing competitiveness and increasing productivity, while also maintaining high standards of regulation, which we want to ensure, because that is the point of regulation.
The rather obscure answer to your very precise question is that the measure of ambition needs also then to be matched with the policy framework of smarter regulation. It needs to be one where it is looking at those areas and those instruments where you think you would achieve the maximum level of economic benefit.
Martin Howe: On this subject, I found table 2 on page 15 of the report of some interest. Again, we come back to questions of metrics. It proposes what looks like quite an ambitious forward programme, in that in the first part of the table, they say they propose to revoke 389 measures in 2024. We come back to the metrics of what exactly that means. There are another 162 in the following year, 2025-26, with a total of 777. I would be interested to know more about the substantive content of what is proposed to be revoked, in order to get a grip on how extensive this reform is in reality. That still leaves a very large number of measures, 3,012, which are assimilated permanently. That is what is kept or not changed.
Then on the subject of reform, they propose to reform 197 measures this year and 785 measures next year. Whatever the outcome of the general election, it will be a new Parliament next year. Again, a slight cynicism descends upon me. Is this a promise of jam tomorrow as far as progress is concerned?
Dr Garner: In terms of ambition, I suppose I take a more tailored approach and look at certain reform proposals where we do see the kind of justifications being given that we have been discussing as positive and representing a qualitative approach. Perhaps one of these is on clinical trials. The objective is to grow the thriving clinical research environment in the UK. You see that there is a clear justification being given, which is about a sector of the economy and wanting to boost that because of the new regulatory freedom.
On the other hand, to go back to what I said about procrastination, there are numerous examples here of what is, I would argue, superfluous. An example is about invasive alien species of special concern. Ten species will be delisted because of their inability to establish in GB under foreseeable climate conditions. This brings me back to the discussions we had in the last session about the fishing treaty, with retained EU law being revoked because the UK does not fish in those waters. It is a point where the factual context means that surely this is simply not inhibiting growth. It is not imposing restrictive burdens.
Also, there is another example near the end on Euratom about revocation of six pieces of assimilated law, which are rendered obsolete as the UK is no longer a member of Euratom. One of these is just about something that was deemed inoperable because it makes amendments to the promotion of the use of energy from renewable sources of regulations, which was revoked by the schedule.
I would not say this is ambitious in any way. This is not a new policy. This is simply tidying up based on what was done in the schedule already. If I were in the position of the Committee, I would really want to push the Government to provide, in these justifications, what the growth and efficiency benefits would be, or what the clarity and usability effects would be. Why is this making the law either more difficult for end users or inhibiting growth and efficiency?
Q51 Mr Jones: In terms of future reports, how do you think they could be improved? Is there any analysis that is not contained in this report that you think should be incorporated in future reports? Everybody is nodding furiously.
Professor Armstrong: I do have a view on that.
Mr Jones: Would you like to start, Dr Garner?
Dr Garner: One point I would make is about the interpretation of the statute, because it is stated in section 17 that it is about the future plans for reporting periods. It is not entirely clear exactly what the periods are. These plans are outlined as being throughout 2024, so there is a question there. Is this covering both periods of December 2023 to June 2024 and June 2024 to December 2024? It is important to clarify that, because you want to avoid duplication in the next report you receive in June.
Also, it might be a way of pushing the Government. If you can say, “Section 17 says future reporting periods”, you could try to push the Government to say, “This means all the way to 2026. You have outlined the number here, so please give us the idea of what this will be”.
In terms of what could be included, something that would be really useful is perhaps if there were a quick summary of impact assessments, and also the responses in consultations, so the opinions of stakeholders on the previous reporting period, because the explanatory notes to the statutory instruments so far have been really useful because they have outlined where there has been consultation response to the opinions of business.
That will be really useful so that the Committee and Parliament see the driving debate behind this policy decision, and whether this statutory instrument is fulfilling what business stakeholders would like it to do, especially if those responses maybe identify different areas where businesses felt changes could be made. That could be useful in future.
Q52 Mr Jones: Mr Howe, how do you think it could be improved?
Martin Howe: The best way to improve it is probably to focus on specifics. I am in agreement with Dr Garner that the metrics of X instruments leads to possibly not very useful exercises in culling the things that do not make much difference. Therefore, getting on top of a key series of proposed areas of reform and then, if you like, asking the Secretary of State, for the next report, to report on each of those fields and what progress has been made, strikes me as a much more productive approach and more useful for the Committee than just looking at the numerical totals in Table 2.
Professor Armstrong: My response is a bit of a thought experiment. If you think about two different kinds of report that will be out, one is the second report on the operation of the Act. The other report that will come out next month is the report of the Office for the Internal Market under the Competition and Markets Authority. That is a body that has a wide overview of the health of the UK internal market, particularly where there may be internal regulatory divergence between the different jurisdictions of the UK, but that is in circumstances in which there is relatively limited internal divergence.
If you think about what the Department for Business and Trade is pushing at in bringing this within the realm of smarter regulation, we are thinking there about the health and competitiveness of the UK market as a whole. I am pretty sure the Office for the Internal Market would not thank me for suggesting this, but I just wonder whether there is a need to try to bring in that kind of analytical approach that is thinking about regulatory divergence in the context of divergence within the UK, but could also bring that analytical approach to bear on what the possibilities would be for regulatory reform in the UK that is allied and aligned with this idea of promoting the health, competitiveness and productivity of the UK internal market.
Chair: There is one further point that might be useful to consider in this context. Since we have left the European Union—I am taking 30 January 2020 as the point of departure—one of the most extraordinary things is the accumulated list of all the legislation that is still passed in the EU, which is all available on EUR-Lex. There are slightly different ways of modelling it, but in practice, it is a minimum of 6,000-plus EU laws, and it could be as many as 7,500 EU laws that have been passed by the EU since we left but do not apply to us at all except, of course, in the context of the single market with respect to Northern Ireland, which is a very important bit of unfinished business.
The question is surely that, if that is the case, then this is one of the reinforcements of the idea that we have now retained and restored to ourselves the right to be able to govern ourselves in accordance with the decisions that are taken by the voters, and also by Government within the framework of our constitutional arrangements, as renewed since we left. The fact that we have escaped from something of the order of 7,000 EU laws is a highly significant part of the progress that has been made, and it sometimes gets ignored because it is a big number of laws.
I do not know who the chap was who worked this out. Somebody said that if you put all the pieces of A4 together to demonstrate how long that is—I have no idea whether this is true or not—the pieces of paper would extend all the way from Somerset to Scunthorpe and back again. It sounds rather an extravagant idea, and I am not sure that I would put my name to that, but it is obviously a significant number of laws that had been made by the EU that do not apply to us. I will leave it at that.
Q53 Jon Cruddas: Can I go back to one of the Chair’s supplementary points he made earlier on? Professor Armstrong did touch on this in one of his replies, but I would like to invite the other guests to touch on the machinery of Government question.
Assimilated law has bounced around Whitehall. There was DExEU, the Cabinet Office and the Department for Business, Energy and Industrial Strategy. Now it is with the Department for Business and Trade. It begs two questions. Firstly, is it clear what the Department for Business and Trade’s role is in terms of a cross-party strategy? Secondly, would the Cabinet Office be a better fit in terms of co-ordinating and directing an overarching strategy that is mainlined into a Government agenda? I know Professor Armstrong did respond initially. He might want to come back to it. Dr Garner, can I ask you to start?
Dr Garner: I would probably go back to what I said earlier about how the Department for Business and Trade will be, as we have seen from the report, looking at its particular programme for better regulation. That will necessarily inform how it sees the reform plans.
If this policy salience approach were taken and it were co-ordinated from the Cabinet Office, you would have a situation where maybe the exercise would be seen as less onerous within the Department. If each Department were given a clear instruction that, “We need you to find the most salient assimilated law, the assimilated law that the UK resisted at the time, or the assimilated law that you believe could impede your plans”, it then stops being quite a nebulous exercise of identification, which, as the Chair’s letter to Kemi Badenoch points out, involved subcontracting to law firms. That has been opaque, so it all feels quite disparate and disconnected. There have been different methodologies for determining this.
If you did have a very clear steer that said, “These are the criteria”—be they democratic or economic—“come back with a list of the most important and what your ideas are of what could be done”, that would be far more cross-cutting. It would go beyond just the questions of growth and efficiency. It would allow also, for example, things to be balanced, as is done in the report, about rights of individuals, and you would see the different interests of different Departments more clearly.
Martin Howe: With deference, I do not necessarily have particular expertise in the machinery of Government.
Q54 Jon Cruddas: Given your earlier statement about your frustrations with lining it into the centre of Government, would that be a—
Martin Howe: I would have thought that this is a cross-Government policy, and undoubtedly there will be inertial resistance to it. Individual Departments are busy. They may not have any particular impetus to change anything or even to look at it. It is just easier to let things stay as they are. You do need some form of central driving force in the Government machine to make it be taken seriously.
Q55 Chair: Would you regard the Prime Minister as that driving force and the last resort?
Martin Howe: At the end of the day, if the Prime Minister is not enthusiastically behind a central Government policy, it will run into the sand, because individual Ministers will go with their Department and not bother. They need to be pushed to get it to work, indeed. An impetus was provided by the 2023 Act in the form in which it left the House of Commons, in which, of course, there was a cut-off date so that the job had to be done.
In terms of my preference on that, the process should have been started earlier to give more time before the sunset date to allow things to be done in a less rushed and more considered way, but with the abandonment of that cut-off date, the danger is that there just is no real impetus to get the job done.
Q56 Chair: In fairness to the Prime Minister in this context, you may or may not recall—you probably do not, generally—that the day upon which the second reading took place of the Retained EU Law Bill was within one hour of the Prime Minister becoming Prime Minister by visiting Buckingham Palace and the new King.
It did have its second reading that afternoon, and since then he has taken significant steps to try to make the process work, but perhaps too confined to the question of business and the stuff we have talked about this afternoon, rather than some of the equally important matters like immigration and other things that go with it.
Martin Howe: I do not want to sound too negative, because I do not believe that nothing has been done, and I do not believe that what has been done is insignificant.
Q57 Chair: It is just not enough.
Martin Howe: In a sense, a lot that has been done is presentational rather than substantive, like repealing large numbers of measures. Not as much has been done as I would have liked to have seen, just from the point of view of needing to look at things systematically.
I have never been a slash-and-burn merchant on inherited EU law, because you cannot just abolish all laws relating to the environment overnight or anything like that, but it is a great frustration. In a sense, time and speed are important when you are talking about business affairs, or indeed any other affairs. Just leaving the state of the law there not for any good reason, but just because you have not got around to doing the job of looking at it critically, does strike me as a failure of the Government machine.
Q58 Jon Cruddas: I was just going to invite Professor Armstrong to add some points to his earlier point.
Professor Armstrong: Just to build on the point I raised earlier, and having listened to my colleagues, one thing we need to grapple with is how much politicisation of this we want. You could say that when it was within the Cabinet Office, and when you had particular Ministers in the Cabinet Office who saw this as an important political priority, the domain of Brexit opportunities was politicised.
Having moved it out of that into the Department for Business and Trade and transformed it into a realm of reform of regulatory policy, regulatory policy is something we often think of, rightly or wrongly, as a depoliticised domain, because what we are looking for is the credibility of the regulation, its efficacy outside of the tussle of domestic politics, and swings between right and left. That then creates this tension about how politicised it can be from the point of view of drawing in the political energy that is required to drive forward the EU reform agenda.
While we can see the arguments for having a cross-cutting approach, so something that is neutral and outside of the departmental structures, there may be an argument that simply says it is better that it is within a Department, and that that Department takes responsibility for it and leads on it, but they also then have to politicise it and make it feel like it is part of the policy structure of the Department, with clear priorities and a clear agenda. I can see it in both ways.
Q59 Greg Smith: This is not a straightforward question, but it is one that hopefully, given the debate we have had this afternoon, we can just try to put, without wanting to reopen the metrics debate, some element of a number on. I am sure the witnesses will be familiar with the 2021 report known as the TIGRR report—the Taskforce on Innovation, Growth and Regulatory Reform. It said that, “Having left the European Union, unnecessary rules need to be removed, and those that remain should be rewritten using common law methods and clear, simple English”. As I say, it is not necessarily a metrics debate, but put a number on it. How much of that has happened?
Martin Howe: I am just trying to recall all the subjects. The TIGRR report covered a lot of subjects. It did not cover, for example, employment law. It deliberately steered clear of that, but I am not sure that many, if any, have been carried forward. I know for certain that its recommendation on parallel imports, the subject I raised earlier, has not been carried forward. The crisis of indecision carries on, now three years after the TIGRR report.
On the second aspect of your question about it being rewritten in simple English, clear language and common law principles, that is a very good thought. It is easier said than done when it comes to regulations in complex areas, but it certainly is something that should be aimed for. That couples with the answer I gave earlier, which is that it is important that new replacement laws are not subject to having to interpret them by reference to a background of European law cases or previous European law instruments. They should be freestanding so that they can be interpreted without recourse to that.
With all respect for Professor Armstrong and his teaching of EU law principles to his students, we might get to the stage where it does not need to be a core subject in the education of all lawyers.
Chair: I am sure Professor Armstrong would like to comment on that.
Greg Smith: Maybe you have a right of reply to that, Professor Armstrong.
Q60 Chair: Of course, Barney Reynolds, who is well known in these circles, has produced through Politeia, which is a very distinguished thinktank, a whole paper on the arguments for introducing this concept of common law, and getting us into a position of understanding the nature of what that would do in terms of our legislative statute book, but also to reintroduce the concept of common law. I thought it might be helpful just to mention that at this stage,
Professor Armstrong, what do you think about what has just been said by Mr Smith and Mr Howe?
Professor Armstrong: Were I not retiring from my chair at the end of the academic year, I may be prepared to mount a more robust defence of the teaching of European law.
Chair: We are very grateful to you, by the way, for coming today.
Professor Armstrong: As it turns out, this is a completely personal note, but I would be in favour of EU law not being a compulsory part of the foundational subjects for the law degree. It can stand on its own merits as a phenomenon worthy of study in and of itself without it being compulsory, but that is by the by.
Chair: It is a bit like Roman law.
Professor Armstrong: On the wider question of the common law, we need to deal with something quite fundamental and quite important, and that is that the regulatory state is a phenomenon that is not peculiar to Europe. It is a phenomenon that is global. Regarding legislation, rule making and regulatory decision-making by independent regulators, it is a global phenomenon and something that is not about to change.
One reason why there may be some sense of frustration about the lack of fundamental change is that those basic architectures are architectures that are being reproduced across the world, and the UK will not be different. The idea that regulation in the future will be done by well-meaning but non-expert judges simply applying basic principles is frankly delusional. That is not going to happen.
What does make a big difference, though, is the kinds of culture of regulation that you want to build in a country, and how you do things. The example I would take from the Financial Services and Markets Act and what it is doing in terms of changing the broader regulatory landscape for financial services is using techniques and approaches that were familiar to the UK in terms of having a handbook, technical standards, and a strong relationship between a regulator and its regulated industries. That is what will define the regulatory environment way more than any notion of common law principles or judges applying general principles of the English legal system.
The regulatory state was Europeanised during our membership, but it has been repatriated after our membership, and it still exists. That then means that it has particular features that we should imagine will persist for some considerable period of time to come.
Q61 Chair: On that issue, Professor Armstrong, on reading the Politeia paper that I referred to, you may find that there are instances where other countries, somewhat unusually, have started to approach the issue, as Barnabas Reynolds says, in terms of a common law approach. In other words, elsewhere in the world, people are also examining the common law approach and adopting it, for some reason, because they wish to do so. I just put that on the record.
Is there anybody who would like to comment, finally, on the session we have had so far? I will start with Dr Garner. Just in summary, I have found this a very interesting session. We have covered a lot of ground, and I am extremely grateful to all three of you for coming and giving us a very interesting analysis. Dr Garner, do you have a final thought?
Dr Garner: My final thought, and the point I would want to leave the Committee with, is that Government really should be pushed to take a qualitative approach to reform. The House of Commons Library research briefing on this points out that it is a very different phase now. Retained EU law has been fully assimilated in how it operates in terms of primacy and general principles being removed. There needs to be reflection and consideration on what is now wrong about this body of law based on its origin.
I have pointed out perhaps some of those factors that could be used. That will make the exercise salient in terms of policy, and not something that is just about checking boxes with no real benefit for end users of the law.
Martin Howe: I agree with that, but by leaving assimilated law in place, although general principles of EU law cease to apply, of course, we would still have the issue that I have adverted to before of the need to interpret by reference to European case law. It seems to me that continuing to make reasonable but steady progress on replacing the need for reference back to European sources is an objective that should still be pursued.
Q62 Chair: Section 3 of the European Communities Act 1972, which imposed the requirement to have regard to the primacy of EU case law, proves the point, because if you have left the European Union and you have repealed that provision, you would not expect the principles of EU law or its interpretation to be continued.
Martin Howe: This is the problem that was created by the 2018 Act. It did not need to continue to make European court judges—
Chair: It was a great mistake.
Martin Howe: There we are. It has been somewhat mitigated by the 2023 Act’s reference procedure, but it is still there, and it would be better to remove it.
Might I also, with your leave, Sir Bill, just make a brief comment on Professor Armstrong’s comment about the regulatory state? I am in total agreement with him that we have a model of regulation that has come, to a large extent, through our membership of the European Union, where you have so-called independent regulators that not only regulate individual cases independently, but seem to be capable of making up the rules.
This is not a unique European phenomenon, because it is well known that Justice Gorsuch, a member of the US Supreme Court, has almost a crusade against the American version of the regulatory state, or these federal agencies that have rulebooks that they themselves make up, apply and interpret.
It is not so much about traditional common law principles here. We need to have principles that are rule-making and should be subject to proper democratic control, ultimately by Parliament, rather than regulators simply making up the rules they feel, and changing them as they see fit. The exercise of regulatory judgments in individual cases should be subject to review by an independent court or tribunal.
The traditional judicial review or that sort of fallback is not adequate, because it does not allow the court to review the merits of regulatory decisions. In order to tame the regulatory state, I believe we have to have a greater emphasis on providing adequate processes of review by courts or tribunals who have the expertise to look at the merits of decisions.
Q63 Chair: Lastly, Professor Armstrong, I must say that I want to thank you very much for coming, as well as the others. I understand that at this present time it was easier for you to come through Zoom from Cambridge, and we understand why. Would you like to finally make your comment on the proceedings?
Professor Armstrong: I was very disappointed not to be able to be with you in person today. It would have been a pleasure to be before you and your Committee again. No, I simply want to thank the members for their very interesting questions, and of course to thank your Clerks for their usual professionalism in organising today’s session.
Chair: Thank you very much for an interesting session.