In one of his last acts as Brexit Secretary, Lord Frost gave a statement on ‘retained EU law’ (REUL). REUL refers to EU law which has become part of UK law via the EU (Withdrawal) Act 2018 (EUWA 2018). It has a special status under UK law: EUWA 2018 gives pre-Brexit EU law supremacy (i.e. precedence) over conflicting pre-Brexit law. However, since Brexit, if Parliament does not like the outcome, it can now reverse by law any court’s decisions giving supremacy to EU law.
EUWA 2018 also makes some EU rules, specifically EU Regulations (labelled ‘retained direct principal’ regulations), somewhat more difficult to repeal than other EU acts. So, for example, the EU Passenger Rights Regulation, which allows passengers to make claims for compensation when their flights are delayed, is a ‘retained direct principal Regulation’.
EUWA 2018 requires an Act of Parliament (primary legislation) or, in some carefully defined cases where there is already a suitable Henry VIII power introduced by an earlier UK Act (including EUWA 2018 itself), secondary legislation, to reverse the retained direct principal regulations. A Henry VIII power is sometimes included in Acts of Parliament to allow ministers to make changes not only to secondary legislation but also to primary legislation, without having to go through the full process that an Act of Parliament would normally require.
In its Benefits of Brexit policy document, the government reiterated Lord Frost’s ambition to review ‘retained EU law to meet the UK’s priorities’ and to allow ‘changes to be made to retained EU law more easily’. Their objection to REUL is that it is ‘foreign-derived’ and that it was ‘often agreed as a result of compromise between the different regulatory approaches from 28 countries, with UK ambitions often levelled down and simplified to reach agreement’.
So while the UK often had quite an influence on the shape of the original EU legislation (something the government does not refer to), it may not be exactly what a UK government acting alone would have chosen to do.
There seem to be two issues of concern to the government. First, it notes, correctly, that ‘a large number of EU laws were implemented using the powers in section 2(2)’ of the European Communities Act (ECA) 1972. This enabled EU Directives to be implemented by secondary law. So, for example, the Working Time Directive was implemented in the UK via the Working Time Regulations (a statutory instrument) adopted under s.2(2) ECA. As secondary law, Regulations like the Working Time Regulations, can be repealed by other secondary law; an Act of Parliament is not needed.
However, the government may be concerned that every time new regulations are needed to amend or repeal, for example, the Working Time Regulations, a ‘parent’ Act of Parliament is required to provide the power for the government to enact such regulations. Thus, the government would need to see if the power given to the Secretary of State in, say, s.209 Employment Rights Act 1996, is wide enough to cover amending the Working Time Regulations. If it is not, what other provision can be used?
There are many such ‘parent’ powers in existing Acts already on the statute book and it now appears common practice to put a broad clause into new legislation relating to REUL, giving the government power to amend REUL (see Schedule 11, paras 21 and 23 of the Building Safety Bill).
However, it may be that the government is looking to give itself a broad superpower – a Henry VIII clause on steroids (dare we call it a ‘Johnson clause’?) –- so it can remove swathes of REUL secondary law where it has failed to already give itself the necessary power. This would operate a bit like the reverse equivalent of s.2(2) ECA
Second, the government is concerned that some REUL has the status of primary legislation and does not consider it a good use of ‘finite parliamentary time to require primary legislation to amend all of these rules’. As shown above, this is not entirely correct because in some circumstances Henry VIII powers can be used to amend such legislation. The only parliamentary time engaged would be to approve secondary legislation enacted under a Henry VIII clause.
However, the government argues ‘[a] targeted power would provide a mechanism to allow retained EU law to be amended in a more sustainable way’. So presumably the government would like to deploy a Johnson clause here too. Perhaps there is also a desire to replace the affirmative resolution procedure for adopting secondary legislation with the negative resolution procedure which means that there may be a vote if an MP objects to the proposal and time allows. This happens vanishingly rarely.
Why the concern? Secondary legislation gets appallingly little scrutiny by Parliament. The last time the Commons rejected a statutory instrument (SI) was in 1979 (and 1969 for an SI under the affirmative procedure). For all of the talk of taking back control to Parliament, the prevailing approach is, in fact, taking back control by the executive.
Although the government says ‘[w]e will work with Parliament on how to frame such a power and ensure its use has the appropriate levels of parliamentary scrutiny,’ no parliamentary mechanism yet has been developed which ensures adequate, line by line scrutiny of secondary legislation. Moreover, unlike primary legislation, it cannot be amended – leaving parliamentarians with the binary choice of accept or reject.
The government is also looking at how to remove the continued effect of supremacy of EU law over domestic law: ‘We are considering what might be the most appropriate relationship between these two bodies of law in light of the need to promote legal certainty and whether any ancillary powers will be required for the courts for these purposes.’ This is a more nuanced approach than advocated by Lord Frost.
The government will consider ‘creating a bespoke rule that would address cases where retained EU law came into conflict with domestic law’. It notes that this rule would have ‘the benefit of specific authorisation by Parliament’ which is odd, because the supremacy rule already has specific authorisation by EUWA 2018.
It is clear that the government plans to repeal a significant volume of REUL. But this will inevitably bring it into conflict with Scotland which wants to continue to map not just existing but also future EU law in key areas, and Northern Ireland which is obliged to comply with existing and future EU law in the areas covered by the Northern Ireland Protocol.
The government believes its common framework programme, the UK’s version of harmonisation, can paper over the cracks: ‘The government is committed to the proper use of Common Frameworks and will not seek to make changes to retained EU law within Common Frameworks’ without following the ministerially-agreed processes in each framework. However, progress on these common frameworks is painfully slow. Twenty or so have been published in draft but only one has been adopted.
So what have we learned about the future of REUL? That changes are going to happen, that the guts may be removed from EUWA 2018 but, as with common frameworks, it is easier to talk about action rather than deliver.
By Catherine Barnard, Deputy Director at UK in a Changing Europe and Professor of EU law and Employment Law at the University of Cambridge.