The Retained EU Law (Revocation and Reform) Bill exits the House of Lords, improved but still flawed

When the Retained EU Law (Revocation and Reform) Bill (REUL) arrived in the House of Lords, it aimed to automatically extinguish all EU derived laws on the stroke of midnight 31 December this year. The only exceptions to this revocation would be laws specifically nominated by the relevant Secretary of State. And the same Secretaries of State would have untrammelled powers to change primary legislation with little meaningful recourse to Parliament.

But after months of debate and three bouts of “ping pong” it is now a much-changed document. So what is it all about and what has changed?

When the UK left the EU, all the laws that had been created as a result of our membership were ported across into the body of UK laws as “Retained EU Law”. This was automatic and no-one needed to know what the laws were. Similarly, the REUL Bill aimed to automatically revoke these laws unless they were positively removed from the revocation process to become “Assimilated law”.

The Bill was first introduced in September 2022, initially including a ‘sunset’ clause that would cause all Retained EU Law to automatically expire by 31 December 2023. At first the Government estimated there would be around 2000 such laws and by the time the Bill was completing its stages this estimate had been lifted to approximately 4000. In addition, some 500 retained EU law on financial services have been exempted from the deadline, as being repealed by the separate Financial Services Bill.

Had the REUL Bill remained as it was drafted most of these 4000 laws could (and possibly would) be revoked, some without our ever knowing what they actually were. Somewhat belatedly a dashboard was hastily created and populated with Retained EU Laws as they were discovered by departments. Of course, this huge effort sadly diverted capacity from more pressing matters such as the cost of living crisis, the need to spark growth and environmental challenges. It still does

The Bill passed through the Commons essentially unchanged and arrived in the Lords with Government ministers facing a long and grueling Committee stage. During this time the ministers were confronted by dozens of amendments highlighting the sorts of laws the REUL Bill could revoke or change. These included Environmental Protection, Workers’ Rights and Equal Pay, and Product Safety. At the same time, we picked at the skeletal nature of the bill that handed all powers to Ministers using secondary legislation.

With Peers due to start the crucial Report stage in April, the government put it on hold. And then, out of the blue, on 10 May 2023, the Government announced a complete change of direction for the bill.

The Bill no longer included the ‘sunset’ clause, revoking all retained EU law by December 2023. This had been replaced by a significantly reduced number of 600 laws to be revoked, down from the previous 4000. The Bill retained powers for Ministers to revoke or reform further laws without involving Parliament, but it was still a much improved bill.

This reversal announced by Business and Trade Secretary of State Kemi Badenoch MP was met with great dismay by the original proposer of the bill Jacob Rees-Mogg MP and some of his like-minded pals.

Despite the welcome changes the government proceeded to suffer defeats at Report with much attention focusing on gaining a greater role for Parliament over which laws will be ditched. Another recurring theme was the desire by the Lords to prevent regulatory regression. In other words regulations could not be made less effective. It was clear that the original thesis of the Bill had been a form of unconscious deregulation. The amendments at Report sought to avoid this.

With the Bill further amended it was sent back to Commons and although there was some support there, the major amendments were not approved and the Bill was sent back for the first of three bouts of “ping pong” (where the Lords and the Commons exchange the Bill inserting and removing amendments respectively).

During these three attempts by the Lords to assert parliamentary control there was a gradual shift by the Government to offer some scrutiny via a now enhanced version of the dashboard. The process of sifting was also clarified. However, attempts to insert non regression into the Bill failed, and whilst the minister gave despatch box undertakings that HMG was not in the business of watering down environmental legislation, we will see.

Very soon this Bill will be enacted. Over the past months it has been substantially improved thanks to the work of Peers from all sides of the House. It has been a pleasure working on it with many excellent collagues. This is also an example where the Lords employed a series of legislative speedbumps, slowing the progress of a bill so that in the end the main reason it changed so completely was that the Government changed its mind.

?Chris Fox (with additional research by David Gibber)

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