UK reforms on retained EU law move towards final phase

The Retained EU Law (Reform and Revocation) Bill passed through the report stage in the House of Lords on Wednesday and is set for a third reading before the Lords on Monday 22 May. The Bill is then expected to enter a process known as parliamentary ‘ping pong’ during which the Bill will pass between the House of Commons and the House of Lords until a consensus is reached on the final text.

In the latest stage of the parliamentary process, government amendments concerning the ‘sunsetting’ of retained EU law in UK law were adopted, while further amendments not supported by the government were adopted by the Lords too – including provisions which, if enacted, would give parliament unprecedented power to amend secondary legislation made by the government.

The major government amendment adopted was trailed by business and trade secretary Kemi Badenoch last week. It removes the so-called ‘sunset clause’ contained in the original version of the Bill and replaces it with a new sunset schedule listing around 600 different pieces of retained EU law to be revoked under the operation of the revised provisions at the end of 2023. Under the original sunset clause, all retained EU law not otherwise preserved or replaced in UK law before the end of 2023 would have been automatically repealed at the year’s end.

Four other sets of amendments to the Bill, not supported by the government, were also adopted.

Under the first set of amendments, each legislative instrument listed in the new sunset schedule would need to be referred to a Joint Committee of the Commons and the Lords for consideration for a period of 30 days. The amendments also make provision for each instrument to be referred for debate in each house if the Committee considers that it makes a substantive change to the law. An instrument referred for debate could then only be revoked if approved by both Houses.

The second set of amendments places two qualifications on provisions that will otherwise see the revocation of all directly effective EU law rights in UK law at the end of 2023. The first is a discretionary qualification, which appears to be intended as an obligation, which envisages that a government minister lays a statement before parliament setting out those rights which they intend to revoke. The second is a procedure providing that if both the Commons and the Lords pass resolutions that the rights specified in the resolutions are to be retained, those resolutions are binding. Similar procedures are envisaged to apply in the devolved legislatures to account for EU law rights applicable in devolved areas.

A third amendment adopted by the Lords imposes restrictions on how the government’s broad powers to reform retained EU law by secondary legislation may be used. Regulations would only be made under those powers if the relevant national authority was satisfied that they did not reduce environmental protection, reduce consumer protection in relation to food standards, or breach of the UK’s international obligations on environmental protection. Before making such regulations, the authority would be obliged to “seek advice” from certain named regulators and from “independent persons with relevant expertise” and publish a report setting out how it has taken that advice into account and how the regulations do not reduce environmental protection or consumer protection in relation to food standards.

The fourth amendment imposes procedural requirements in relation to regulations made in exercise of the government’s broad powers to reform retained EU law by secondary legislation.

Before such regulations are made by a government minister, a “proposal” for the regulations would have to be laid before parliament and referred to a Joint Committee of both Houses for a period of 40 days. If the Joint Committee considered that the proposal makes a “substantial change” to retained EU law, or that there has been insufficient consultation on the proposal, it would refer the proposal for debate on the floor of both Houses. If amendments to the proposal are “agreed by both Houses”, the government would be obliged to amend the relevant statutory instrument. This change, if enacted when the Bill becomes law, would represent the first time in the UK’s history that parliament has had any power or procedure to amend secondary legislation made by the government.

The government is currently considering its position on whether or not to seek to reverse these four amendments when the Bill returns to the Commons.

David Thorneloe of Pinsent Masons, who specialises in public law and legislation, said: “It is not unusual for a government Bill to be amended in the House of Lords. The final stage of a Bill’s passage through parliament is the so-called ‘ping pong’ of back and forth between the House of Commons and the House of Lords, as they must both agree on any amendments made before the Bill can become law. Often a Bill will emerge from this process on a middle ground that both Commons and Lords are content with.”

“The Bill appears to be on track to be settled in a final form in the coming weeks and become law, with its reforms taking effect at the end of 2023,” he said.