Date Legislation considered: 28 February 2023
Date Legislation in Force: Not yet in force
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment/ Workers/ Social Security
What does the legislation do?
The Retained EU Law (Revocation and Reform) Bill (“the Bill”) was introduced to the House of Commons on 22 September 2022. The Explanatory Notes that accompanied the Bill state that its purpose is “to provide the Government with all the required provisions that allow for the amendment of retained EU law (REUL) and remove the special features it has in the UK legal systems.” The Explanatory Notes further state that “the Bill will give effect to policies that were set out in the Benefits of Brexit Report published in January 2022 and the Government’s announcement of the review into the substance and status of REUL in September 2021”.
The IMA published an interim report setting out its concerns that the Bill and accompanying documentation failed to make it clear how “relevant separation agreement law” will be affected by the sunset provisions. This is unsatisfactory for EU and EEA EFTA citizens or indeed anyone who may have to navigate such law, and there is clearly potential for confusion.
Update since the IMA’s interim report
The Bill is currently at report stage within the House of Lords.
During second reading of the Bill on 25 October 2022, the former Parliamentary Under- Secretary to the Department for Business, Energy and Industrial Strategy stated that “some retained EU law in the scope of the sunset is required to continue to operate our international obligations, including the trade and co-operation agreement, the withdrawal agreement and the Northern Ireland protocol. Therefore, I am very happy to make a commitment today that the Government will, as a priority, take the necessary action to safeguard the substance of any retained EU law and legal effects required to operate international obligations within domestic law. We will set out where retained EU law is required to maintain international obligations through the dashboard, so that the public can scrutinise it [our emphasis].”
At report stage in the Commons on 18 January 2023, the Minister for Industry and Investment Security reiterated that the Government accept that “some retained EU law in scope of the sunset is required to continue to operate our international obligations, including the trade and co-operation agreement, the withdrawal agreement and the Northern Ireland protocol. Therefore, I am happy to make a commitment here today that the Government will, as a priority, take the action required to ensure that the necessary legislation is in place to uphold the UK’s international obligations. In the near future, we will set out where retained EU law is required [our emphasis].”
Whilst the Retained EU law dashboard was updated on 30th January 2023, it is the IMA’s view that it does not include a complete list of “relevant separation agreement law” which will be affected by the sunset provisions.
On 17th February 2023, the House of Lords Constitution Committee published a report on the Bill. Referring to the commitments the Government gave as detailed above. The report states that “the House may wish to seek specific assurances from the Government about the action it proposes to take to ensure that the UK upholds its obligations in international law in the context of the automatic sunsetting”.
Position in Scotland and Wales[1]
There is a constitutional understanding in place between the UK Parliament and the devolved Parliaments whereby the UK Parliament does not normally legislate with regard to matters within their competence without the consent of the relevant legislature. Consent is expressed by means of a Legislative Consent Motion.
On 23 February 2023 the Scottish Government announced that the Scottish Parliament has voted to withhold its consent for the Bill.
The Welsh Government has published a legislative consent memorandum recommending that the Senedd withhold consent for the Bill. The Senedd are due to vote on whether they consent or not to the Bill on 14 March 2023.
Comments
Whilst Ministers have given various commitments during the passage of the Bill as to the preservation of legislation which is necessary for the purpose of ensuring compliance with the Citizens’ Rights Agreements, the IMA remains concerned.
Officials at the UK Government have previously confirmed that they will use the powers in the Bill (Clause 1(2)) to ensure that the necessary “relevant separation agreement law” is in place to maintain international obligations, however the IMA is yet to see a complete list of the legislation which is intended to be saved.
Any saving legislation will need to be made between the Bill obtaining Royal Assent and the 31 December 2023, during which period, the UK Parliament will be in recess for several months.
Should saving legislation a) not be made or b) not include all relevant legislation, the consequence is that it will disappear completely on 31December 2023. Whilst citizens within scope of the Citizen’s Rights Agreements will still be able to rely directly on their rights as set out in the Agreements, this is unsatisfactory and is likely to lead to confusion.
[1] Northern Ireland does not currently have a Government and the NI Assembly is not sitting