George Peretz KC sets out the Bar Council’s view on the latest moves on the Retained EU Law Bill in Parliament.
Last week the Government announced major revisions to the EU Law (Revocation and Reform) Bill (REUL Bill), reversing plans for a ‘sunset clause’ that would have set an arbitrary date for thousands of EU-derived laws (REUL) to be deleted from the statute.
The Bar Council, amongst many other organisations, had strongly opposed the sunset clause and provided detailed evidence to parliamentarians on the unnecessary risks associated with the disappearance of rules critical to business, consumers, employees and the environment without adequate consideration or any consultation.
So the Bar Council very much welcomes the Government’s decision to amend the REUL Bill to remove the provisions for this automatic repeal, which would have created enormous legal uncertainty. In our briefings to MPs and Peers, we had labelled these provisions anti-democratic as they would have given ministers greater powers to repeal important rights and protections without Parliament having any opportunity to vote to keep them.
Instead, the Government proposes to repeal a long list of specific rules, which we believe is a much better approach, and the Bar Council is currently reviewing the long list.
But even though our major concern has been addressed by the changes, other equally important and damaging aspects of the Bill remain unchanged. Ahead of the Report Stage debate in the House of Lords today (Monday) the Bar Council has briefed Peers and advised on further amendments to the Bill. Our main outstanding concerns are outlined below.
Ministerial powers to repeal
As noted in our briefing for Peers at Second Reading, we have deep concerns about the provisions that give ministers wide-ranging powers to replace or update REUL. The power given to UK and devolved ministers in Clause 16(1) to revoke REUL without replacing it becomes even more significant now that the sunset clause has been removed, and – worryingly, this power will be subject only to the negative resolution procedure (which means very little parliamentary scrutiny).
The Secretary of State asserts in her written statement that the Government will use its Clause 16 powers only ‘after proper assessment and consultation’. However, the current text of the Bill provides no requirement for it at all. In the Bar Council’s view, the Bill should be amended to require consultation before any exercise of ministerial powers under Clause 16 (or any other relevant clauses) as well as a requirement to disclose to Parliament the assessment of the reasons for the proposed measure.
Interpretation and legal uncertainty
Clauses 4 to 6 of the current Bill cover ‘Sunset of retained EU rights, powers, liabilities etc’, ‘Abolition of supremacy of EU law’, and ‘Abolition of general principles of EU law’. These provisions amount to the deliberate creation of legal uncertainty since those Clauses remove the established principles by which REUL, and EU law more generally, has been interpreted, in many cases over decades of case law.
Even after the extensive debates on the Bill in both Houses, we detect no sign that any assessment has been made as to the legal effect of those changes on the REUL concerned, despite their importance. The Bar Council can identify no policy rationale for those changes and is urging the Government to consider an amendment to require ministers to analyse and explain the effect of removal of REUL rights, the principle of supremacy of EU law, and of general principles. In addition, Parliament should consider retaining as a general presumption that all domestic legislation that came into force before 31 December 2020 was intended to be consistent with REUL, unless legislative texts make it clear that another result was intended.
In summary, as we have briefed parliamentarians, the Bar Council supports the deletion of the sunset clause but remains concerned about the provisions for unchecked ministerial powers to repeal REUL and, importantly, the creation of legal uncertainty through the loss of interpretation through case law. We will continue to press for these areas of the Bill to be amended as it continues through the parliamentary process.
George Peretz KC is a barrister at Monckton Chambers. He is a member of the Bar Council Law Reform Committee and Chair of the Bar Council’s REUL Working Group and leads on the Bar Council’s response to the Retained EU Law Bill.