Retained EU Law (Revocation and Reform) Bill (Second sitting)

Nusrat Ghani Excerpts

Committee stage
Tuesday 8th November 2022 Public Bill Committees

[Justin Madders]

Q As an aside, when I quoted Hansard when I was in practice, I usually felt that that was because I did not have much else to go on. I go back to what Sir Richard said about the cost to parties of litigating these references. A lot of the EU regulations are consumer or employment rights-based. Unless you are a member of a trade union or have legal expenses insurance, you are not likely to have the resources to litigate cases upwards. Will that create an issue regarding access to justice if some of these issues get taken up?

Sir Richard Aikens: It is difficult to say. I cannot give you express examples, of course, and I am concerned only with the process, rather than any particular provisions that might be tested. Here, after all, we are looking at the issue of what the case law says, and how the case law has interpreted any particular EU regulation, directive and so on. It may be rather more limited, but as soon as you get into litigation, there are costs. We cannot get away from that.

[The Minister for Science and Investment Security (Ms Nusrat Ghani)]

Q I apologise for my phone ringing; I have switched it off. Mr Reynolds, the evidence in front of me suggests that you know a lot about business, and you have commented on the issue for a while. As someone who works with business all the time on regulatory affairs, do you think the Bill will add unnecessary additional costs and uncertainty, as others have claimed, or do you consider any such risks to be manageable or even beneficial?

Barney Reynolds: I think it will be beneficial as soon as we get through the process. Our system delivers greater legal certainty, which business craves, than the code-based method that we are coming out of, which has swept through our law in a number of areas, including my practice area, financial services law, which is almost all from the EU. I see it day to day. When we come out the other side—how quickly we get through is up to us—I think we will get those benefits.

The transition will probably involve some element of uncertainty arising from that, inasmuch as reinterpreting provisions interpreted using these EU techniques under our system, or wondering whether a judge is going to retain some of that element of interpretation or move completely to our own method, is unclear at the very beginning. I think that very quickly, after a few early court cases, we will get certainty on that. In fact—it is very interesting to hear Sir Richard talk—I think that the judges themselves will do their absolute utmost to make sure that legal certainty is there through the transition, and I would trust that process to work well. I have no real concerns even about the transition. Yes, there could be things that go wrong. If we try to craft it so that there is no conceivable possibility of something turning out in an unexpected way, we will deny ourselves the benefits that I have mentioned.

[Ms Ghani]

Q Thank you. I have a question for Sir Richard Aikens. The Government have made it clear—although I do not think it helps when the Government “make it clear”, because everyone assumes we are doing the opposite—that the intention of the Bill is not to remove rights and protections but to safeguard them by assimilating them into UK law and to sunset the laws that are unnecessary. Does the Bill deliver in that aim?

Sir Richard Aikens: May I start a bit further back? We are now in a situation where there is no EU law as such that affects this state, the UK. Everything we have here is, by definition, UK law. The question that has to be addressed is how you deal with that UK law, given its origin and the way it was treated and the way it was interpreted by the EU court, in particular. The whole of this Bill is an attempt to produce a process that enables what is now UK law to be dealt with, as I understand it, in a manner that is consistent with all other aspects of UK law.

Having set that as the objective, it is inevitable that you are going to have some problems on the way. The way in which this has been done means that the timescale is very short. To my mind, it is an almost impossible task to have the whole process done by the end of 2023. Frankly—you will say that I am pessimistic, perhaps too much so—I doubt whether it could be done by the end of 2026.

Given all that, it is inevitable that, because the process is almost entirely by secondary legislation, you are going to get challenges because people will think, rightly or wrongly, “That is a political matter, not a legal one”, or that the changes are not in accordance with the law or not in accordance with due process. I think that the way this has been fashioned is actually an invitation to litigation and an invitation to controversy. It may well mean that there are going to be challenges, because people feel that they have lost rights and that they are disadvantaged, and the manner in which it will have been done is through a short form of secondary legislation, which is not what you might imagine is the normal way of dealing with some of the big issues that have to be dealt with, such as workers’ rights, environmental issues and so on. This is a very difficult process.

Jack Williams: In response to that question, may I add that the outcome of the Bill may well be to preserve rights, but it is an absolute “may” and is entirely in the gift of Ministers. The Bill does not preserve rights or give any safeguards for that outcome to be achieved. That may be the outcome, but that is in the gift of Ministers. That is because the Bill sets one on an irreversible train track that leads to a cliff edge, and Parliament has not built in any breaks or stops on the train track to save or preserve those rights.

I have full faith in Ministers. I am sure that they want to do good for their constituents and to maintain rights. I love the fact that they are coming out and saying those words, but they are only words—it is not in the legislation. There is no legal protection for those rights in the Bill.

Barney Reynolds: I am not sure what the alternative would be. The Bill gives the system as a whole, as it were, the opportunity to execute on a shift that cannot be prescribed in advance, given the unprecedented volume and complexity. I have some limited relevant experience—I mentioned creating a system in Abu Dhabi—but one can go quickly. The main work there took 18 months, and I think that with the right size team we could go even quicker.

I note that in the Bill, the deadline is not in truth the end of 2023, because there are various ways under the switching back on powers in clause 13(6), (7) and (8), to allow even sunsetted provisions to be reinstated before mid-2026. In effect, there is a quick rush to do the main job, and an ability to tidy up things before mid-2026, which seems to be sensible.

You can choose different deadlines; you can debate all of these things. My basic point is that I am not sure quite how else one could do it if you actually want to get it done in any realistic timetable. Obviously, behind and above all that, Parliament will itself need to decide how, through a joint Committee, your Committee, or some other Committee, it wishes to oversee the process. That is a completely separate matter from the Bill.

[The Chair]

I call Stella Creasy.

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[Justin Madders]

Q Could you set out what would make a proper scrutiny process for this legislation?

Dr Fox: You are inviting me to give away the Hansard Society’s review proposals before we have published them! We all know that the delegated legislation scrutiny process is, at various points, inadequate for everybody concerned. Ministers spend a lot of time attending delegated legislation Committees, carving out significant time in their diaries. You all spend time in those Committees and feel that they are not necessarily a constructive form of scrutiny and oversight. There are lots of problems with the process.

The triage system applied to European Union (Withdrawal) Act orders was a technical sifting of instruments. Those who participated in European statutory instrument Committees found that it was a useful exercise but a very technical and legal process. We feel that that could be widened and expanded. There is no reason why sifting could not apply to all the instruments laid under the Bill rather than just to those laid under three specific clauses. That would have implications for parliamentary time and management, but it could be a way of improving scrutiny. We would certainly extend sifting to clause 16, for example, which is quite an extensive power that is not sunsetted. Those are possible ways to improve scrutiny.

[Ms Ghani]

Q I feel that this is the right time to correct the record, because I am sure that Dr Fox would not want to say anything inaccurate on the record. Earlier, you referenced a National Archives story in the press, Dr Fox. We do not often talk about leaks, but I think you said either that it was “uncovered” or that it was “discovered”. For the record and for the Opposition’s understanding, the Government commissioned the National Archives to investigate whether anything else needed to be explored, and the number of the laws still in force has not been verified. I do not think it is appropriate to continue to use misleading language about a story that has not yet been verified, or to leave people in doubt about where the work came from.

Dr Fox and Sir Jonathan, you are not comfortable with what the Bill proposes, but I get the feeling that you are probably just not comfortable that we are trying stop EU law continuing to sit on the UK statute books for ever without us having any power to amend it. Is that the case, or do you see a time in the future when it would be appropriate to move EU laws off the UK statute books? I will come to you first, Dr Fox.

Dr Fox: I reject that. I am up for change and quite embrace it. This was the purpose of Brexit, was it not? We should therefore get on with it. I do not object to your objectives; I object to the particular nature of the process and procedure by which you are proposing to achieve them, which is unduly risky.

If, for example, you do not find a regulation or a piece of retained EU law and so do not deal with it by next December, it will fall away. You cannot know the implications of that if you do not know about, and have not dealt with, the existence of the regulation—that is my concern. As I set out in our written evidence, I think you could achieve your objectives, and indeed my objectives, in a different way.

Sir Jonathan Jones: I agree with that. Plainly, I have no objection to Parliament changing any law it wants, be it former EU law or any other law. I am sure that the EU law that we inherited when we left the EU is a mixed bag, and that some of it is ripe for review and change.

Like Dr Fox, the difficulty I have with the Bill is twofold. First, it creates a huge amount of uncertainty as to what the law will actually be by the end of 2023 or thereafter, because there are no policy parameters on what might change, what might stay or what might fall away. That is quite aside from the risk you have heard about—that some law might fall away simply by accident, because it has been missed, which creates a huge amount of uncertainty for users of the law.

The second issue that I have difficulty with is the lack of scrutiny—an issue that I know you keep coming back to and that Dr Fox touched on—by Parliament itself of the process. In the Bill, Parliament is not being invited to consider particular policy areas or particular changes to the law; it is simply signing off on a principle and a process, and I would say that the principle and process carry with them all that legal risk as to what the outcome will be. Those are the difficulties that I have. It is not a difficulty with Parliament being able to change any law it wants, including former EU law, whenever it wants to; it is the process being followed that I have difficulty with.

[Stella Creasy]

Q Another question we could ask is whether it is reasonable for Parliament to ensure that Ministers know the consequences of their legislation. What the National Archives work shows is that that is possibly not the case with the Bill.

I say that as someone who this week received something I had never, ever received before—I wonder, Dr Fox, whether you can advise me if this is common: a ministerial correction to an answer to a written question. The written question was to the Department for Environment, Food and Rural Affairs about the application of the legislation to the Avian Influenza and Influenza of Avian Origin in Mammals (England) (No 2) Order 2006. Originally, Ministers told me that the order was not made under section 2 of the European Communities Act 1972 and therefore did not fall within the scope of clause 1 of the Bill, but they issued me with a ministerial correction to admit that it did. Have there been other instances of Ministers not knowing the consequences of their legislation? What impact do you think that has on our ability to scrutinise legislation as parliamentarians?

Dr Fox: I cannot give you a number, but I am sure that there have been corrections of that kind. We also see that in respect of statutory instruments, where instruments have to be withdrawn and re-laid because of errors.

Clearly, one of our problems is that the complexity of law now, and the layering of regulations on regulations, coupled with inadequate scrutiny procedures, makes the whole scrutiny process incredibly difficult. Another problem is that the breadth of the powers in Bills which enable Ministers to take action, but do not define on the face of the Bill the limits and scope of that action, are very broadly drawn. That makes scrutiny incredibly difficult.

We also have amendment of legislation going through both Houses, and that adds layers of complexity. Particularly in the House of Lords, Members seek to introduce scrutiny constraints of the kind we have talked about in respect of the European Union (Withdrawal) Act. That is just additional complexity, which then hits civil servants trying to work out which powers they should be laying instruments under, and which scrutiny measures apply. For people who have to interpret and implement the law, it becomes ever more difficult.

I hope that one aspect of the review process would be to simplify some of those areas, with things like consolidation and so on, to help the process. However, given the scope and scale, I do not think that can be done by December of next year.

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[The Chair]

That is not a point of order for the Chair. I know the Minister—a very helpful Minister—will have heard the point, and I am sure something positive will be forthcoming.

[Ms Ghani]

indicated assent.

[The Chair]

Nodding is going on. I thank the witnesses for their expertise and advice.

Examination of Witnesses

Tim Sharp and Shantha David gave evidence.

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[The Chair]

It is a good time to turn to the Minister.

[Ms Ghani]

Q Ms David, did you mention eight bank holidays?

Shantha David: Yes.

[Ms Ghani]

Q So we are going to lose our bank holidays. Are we going to lose the one we get for the coronation of the King?

Shantha David: I would not know. That is down to the Government.

[Ms Ghani]

Q But you are speculating that we are. I am anxious about this constant speculation and the fear that it is creating. People on the Government side, and in the Opposition as well, have done a huge amount of work to ensure that women and vulnerable people are protected at work, so I have struggled with your evidence today and references to us falling back to the 1970s and 1980s.

The UK is leading in a number of these aspects. We were the first to introduce two weeks’ paid paternity leave in 2003; the EU has only just legislated for this. We have the highest minimum wage if you compare us to France, Germany and Japan. We are leading on paid bereavement as well. We have far more maternity leave with over a year; the EU has just 14 weeks. In April 2019 we quadrupled the maximum fine for aggravated breaches of workers’ rights, so the assumption that we are somehow going to fall into the 1970s, creating an atmosphere of insecurity, is not healthy.

I am sorry; I will get to the point and ask my question. The Government have stated many times in the past few years that we will not reduce rights and protections as we leave the EU, and the Bill contains powers that enable the Government to preserve and codify the REUL in a way that will incorporate it fully into UK law. What basis is there to be fearful of those rights diminishing? I do not want to hear speculation—we do not have enough time. I want to understand what basis there is.

Shantha David: I do not think this is speculation because, unfortunately, the Tableau does not provide a full list of legislation that is due to go. Without knowing what that is, it is impossible to know what will stay and what will go. It is imperative that the Government produce a list. The Tableau is the most incomprehensible piece of equipment. You have to put in random words to try and identify whether certain pieces of legislation will remain or go. The working time regulations contain the provision for the eight bank holidays. Whether they stay or go will be down to the Government, of course, but at the moment we do not know, and that is the biggest problem. It is the lack of clarity that is causing us the biggest headache.

Also, we are talking about 2,400 or 3,800—whatever the number is—pieces of legislation that are due to be sunsetted within a year. I understand they will simply go away at the end of next year unless something positive is done to replace them. If that is the case, yes, we will lose our rights to the 20 days of minimum annual leave entitlement. Women, who tend to be part-time workers, will not have the protections against dismissal and parity of treatment. And fixed-term workers, who also tend to be female, will not have their protections. Women who want to go back to the workplace and have the same employment and protection will not have that protection. You might think that is conjecture, but without knowing anything else, what else is there?

We need to have a comprehensive list of the legislation that is due to be affected. Once we know that, perhaps then we can be consulted as trade unions, as individuals and as members of the public so that we can have our say on what we want to keep. I do not think the Government intend to simply remove all legislation that assists workers and employees. I cannot imagine that that must be what the Government wish to do, so it would be helpful to have that information in front of us so that we can respond.

[The Chair]

Minister?

[Ms Ghani]

That is all.

[The Chair]

I call Stella Creasy.

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[The Chair]

Thank you. We turn to the Minister now.

[Ms Ghani]

Q It was good to hear recognition of the UK’s long legacy of environmental and animal welfare protections. Often we have higher standards here than the EU does, so I struggle to understand the argument that we need to keep environmental laws that were introduced by the EU just because it was the EU, and that we cannot trust the UK Government, which introduced the Environment Act 2021. I cannot understand why you cannot trust your own elected officials here in the UK, who are accountable day in, day out.

My question is for Ruth Chambers. The review of the substance of retained EU law has uncovered more than 500 pieces of retained EU law owned by DEFRA. Many of those pieces of legislation relate to environmental regulations and protections dating back 20 years. Surely there is merit in reviewing the totality of those regulations, as the Bill provides for, to see whether they can be consolidated. Do you agree or disagree?

Ruth Chambers: It is certainly true that the body of retained EU law is ripe for being improved. That is what we would hope the processes of the Bill, or anything else, would lead to. Our concern is that the Bill would, either accidentally or if powers were misused in the future, not lead to those sorts of outcomes. Instead of the processes in the Bill, we would prefer a much more targeted approach that looks at retained EU law, and that picks the areas where the benefits to business are the greatest and environmental outcomes could be maximised, which Minister Trudy Harrison said, in answer to a written question, is DEFRA’s aim for reviewing retained EU law.

We are not opposed to reviewing the law, and we are definitely not opposed to improving it; we just do not think that the processes in the Bill will naturally lead to that outcome, especially when you look at clause 15, which we might have time to talk about. It basically makes the direction of travel of the Bill about deregulation rather than anything else.

[Ms Ghani]

Q It is good that you agree with most of what the Bill is trying to achieve, compared with Dr Richard, who does not want the Bill at all, because it provides us with an opportunity to enhance the protections that we have. You shake your head, Dr Richard, but you are very clear that you do not want the Bill to be around at all. I love the way that you are representing a coalition, as it were, but fundamentally you are also an active Lib Demmer who campaigns to get elected all the time, so the neutrality of your evidence should be taken into account.

Ms Phoebe Clay, previously your organisation has accused the Bill of threatening to interrupt the Government’s target to halt the decline of nature in England by 2030. Can you set out how you consider that the Bill could interrupt a legally binding target that has been established by the Environment Act? We have a lot of lawyers this morning, and we want to contrast their evidence with yours.

Phoebe Clay: I think that is an ambitious target, and regulation has to be part of the pursuit of it. As Ruth has just said, the intent in the way that it is expressed at the moment is deregulatory. Our view is that, if that intent is pursued, we will struggle to stay on course with those broader objectives. It is worth stressing that is not just my organisation. Like Richard, we are a coalition. We represent a whole series of organisations across the spectrum, ranging from the Royal Society for the Protection of Birds to women’s institutes and a number of organisations working on worker protections. I guess it is worth underlining that this is not our position as a small coalition, but the position of all the other organisations that have signed up to that.

[The Chair]

I think it is only fair to give Dr Benwell a chance to come back on the issue of neutrality, very briefly.

[Ms Ghani]

May I respond to the response that was given a moment ago, to get clarity?

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[The Chair]

Minister, you wanted to come back to Phoebe Clay.

[Ms Ghani]

Q Dr Benwell, earlier you said you wanted the Bill to stop—I am sure the transcript will provide that evidence. Ms Phoebe Clay, your organisation accused the Bill of threatening to interrupt the Government’s target to halt the decline of nature in England by 2030. You used the term “I guess”, but I do not want you to guess; I want you to tell me how we will interrupt the legally binding target of the Environment Act.

Phoebe Clay: I guess that we just want the guarantee that those environmental protections will remain in UK statute. At the moment, we do not think that the other providers—

[Ms Ghani]

Q But you have no evidence for that statement at the moment.

Phoebe Clay: We have the evidence that—

[Ms Ghani]

What is the evidence?

Phoebe Clay: That these rules are not protected. We need to ensure that they will be.

[Ms Ghani]

Thank you.

[Dr Luke Evans (Bosworth) (Con)]

Q My question is to Dr Benwell. Does your organisation have a position on the supremacy of EU law over UK law?

Dr Benwell: No.

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[The Chair]

We have until 4.33 pm, slightly to my surprise, so we have another 11 minutes to go. Minister, did you want to come in?

[Ms Ghani]

Q We have spoken a lot about the word “burden”, and how it is creating anxiety. Obviously, you are having meetings and trying to get as much clarification as possible. I was just going through the transcript of the evidence provided by Professor Alison Young this morning—I am not sure whether you heard it at all. She noted that clause 15 specifies that no replacement legislation can increase the burden on business. That does not mean—I refer again to her evidence—that you can take a number of earlier burdens and just remove legislation. We can bundle legislation together, which could also reduce the burden, but it also means amending legislation so that we have a higher standard, too. We have to accept that there is an opportunity to increase standards. All we are saying is that we want to make sure that by increasing standards, we are not necessarily increasing the burden on business. Those two aims are not conflicting. Do you not agree that there is an opportunity here to make things even better?

David Bowles: indicated assent.

[The Chair]

Some nodding from the panel, which is excellent news. I call Saqib Bhatti.

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[Justin Madders]

Q I have one final question. Have your officials done an analysis and come up with a figure on the numbers of regulations covered by the Bill?

Angus Robertson: We have begun to do that. I should say that when I asked Jacob Rees-Mogg—as the proposing Minister, you would have thought he might have known—how many pieces of legislation would impact directly on the UK Government but then also on devolved policy areas, he was not able to tell me. We have still not been told the scale of the legislative impact, but it will be very considerable. Consider what is devolved—environment, rural affairs, transport and a whole series of other things. It will necessitate the legal services of the Scottish Government and the Scottish Parliament spending a lot of time dealing with the consequences of this Bill.

The problem could quite easily be solved by the UK Government simply acknowledging that there is no demand for this to happen from either the Scottish or Welsh Governments and simply carving out devolved areas. It would remain on the statute book here. If colleagues down south want to go ahead with that, I leave that up to them. We did not vote for this, and we certainly do not want it to happen, yet our parliamentary process and the way in which Government operates here is going to be deluged by trying to deal with this proposal, to which little to no thought has been given as to how it impacts on the devolved institutions of the United Kingdom.

[Ms Ghani]

Q Mr Robertson, you have been crystal clear that you do not support any aspect of the Bill. The Bill provides for broad powers that the devolved Administrations will be able to use concurrently to preserve retained EU law. Will these powers not make it easier for Scotland to align its REUL more closely to the EU if it wants to?

Angus Robertson: The Bill confers significant powers on Scottish Ministers and UK Ministers in devolved areas. Where the powers are exercised by the UK Ministers, no role is afforded to the Scottish Ministers or the Scottish Parliament. In devolved areas, it is the Scottish Parliament that has a democratic mandate to hold Government to account. That is why we have consistently argued that where the UK Government have powers in devolved areas under this Bill, they should need the consent of the Scottish Government, which is of course scrutinised by the Scottish Parliament, in order to exercise those powers.

As it stands, the powers you highlight would allow the UK Government to make broad changes in retained EU law in devolved areas, including revoking and entirely replacing standards that we have inherited from the European Union. This Bill will introduce a massive democratic disconnect. I would hope that colleagues across the parties would realise that this is a huge challenge to the basic understanding of how devolution works.

I would be interested to know, Sir Gary, because we have not yet heard, how this will work now that the Scottish and Welsh Governments have both withheld consent for this legislation. We have the ability through the Sewel convention to say that this, as it stands, is not workable, practical, proportionate, and I could go on—

[Ms Ghani]

Please don’t; I think the point is crystal clear. So much of this is caught up in legal language. You made it clear that there are some powers that would allow you easily to align yourself to retained EU law. This Bill does not limit the powers given to Scottish Ministers in the European Union (Continuity) (Scotland) Act 2021 to align with EU law in areas of devolved competence. Rather, the Bill will give Scottish Government Ministers further powers to more easily preserve or sunset retained EU law within a devolved competence. These new powers sit alongside those given to Scottish Government Ministers in the 2021 Act. I can fully understand that you have perhaps had some unsatisfactory conversations with Secretaries of State, or not had the assurances you are constantly seeking, but the reality is that you would have far more authority than you are alluding to with regards to control of legislation with this Bill. [Interruption.] Let’s move the conversation on, because we are very short of time. If we follow your argument, there is a concern that the Bill will cause greater divergence between retained EU law in England and Wales and retained EU law in Scotland. Is that conflict a concern for you?

Angus Robertson: With the greatest respect, the point about devolution is that we are able to do things differently in different parts of the United Kingdom. That is the point.

There are two significant problems that I really hope colleagues understand the scale of. We do not wish the proposal to go forward, yet if it does, we are a Government who already have a legislative programme which is going to come under massive pressure over the next years, depending on when the sunsetting arrangements are finalised for, and we are going to have to legislate through primary and secondary legislation to retain alignment with the European Union. That is the first point. I would hope there is an understanding of that.

The second point that I have tried to underline is the ability of UK Government Ministers to, in effect, override the concerns of the Scottish Government. That is much more than a democratic deficit; it is an undermining of the devolution settlement in its entirety. I am sure that some colleagues on the Committee will have looked closely at the workings of the United Kingdom Internal Market Act 2020 and the common frameworks. In effect, they mean that decisions made in the UK Parliament in relation to England are then applied throughout the UK regardless of the view taken by Parliaments in Scotland, Wales or Northern Ireland. I hope colleagues understand the seriousness of the territory we are getting into.

[Ms Ghani]

Q I want to understand exactly which laws you think will be returned to Westminster. Instead of being broad, can you say exactly which laws you believe will be returned to Westminster? I can then try to respond to the points raised.

Angus Robertson: I am not talking about any laws returning to Westminster; I am talking about UK Government Ministers having the ability, in effect, to legislate in areas that are devolved. That is a totally different thing—

[Ms Ghani]

Q Which particular area that is devolved will they be taking control of?

Angus Robertson: They can in any area they like—that is the problem. That is the concurrent nature of the powers for UK Ministers and devolved authorities. It is clear to be read: it is a power that can be used. I cannot foresee exactly which Minister would seek to use such a power or for what purpose, but they would have that power. That should surely be a concern for everybody. Is it not?

[Peter Grant (Glenrothes) (SNP)]

Q Good afternoon, Angus. To be clear, the Scottish Government have a fundamental objection in principle to the fact that this Bill, as past Acts of Parliament have, creates the possibility of a UK Government Minister ruling in devolved areas. That is your objection, yes?

Angus Robertson: Yes.

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[The Chair]

That is very helpful. Thank you.

[Ms Ghani]

Q Mr Clancy, we heard earlier that the EU legislates very differently from the UK, and that creates tensions between retained EU law and other domestic law. Is that a concern with regard to Scottish law?

Michael Clancy: In terms of the EU legislating differently from Scotland, it all depends on what was meant by that phrase, Minister. I am therefore kind of in the dark about what you are asking me to comment on. Certainly, the EU is a completely different legislative creature from legislatures within the UK. It operates in the field of supranational law, rather than national law, and has a different mechanism in the relationship between the Parliament, the Commission and the Council. Those are significant differences constitutionally from the way in which we operate, but I am not really sure what your fundamental objective is?

[Ms Ghani]

Q You have actually answered the question, more than you think. Some people said that creation of retained EU law under the EU (Withdrawal) Act created a second statute book, but is legal certainty not improved by fully assimilating retained EU law into UK statute?

Michael Clancy: As you might have seen from our evidence, we took a lead from the comments made by Theresa May when she was Prime Minister about the creation of retained EU law as a route to certainty following the UK’s withdrawal from the European Union. Of course, it is always in the gift of Governments to change tack. To change to a different legislative structure, following the creation of retained EU law, is certainly possible, and the Bill seeks to do that, but I suppose the question is whether it is wise to do that in the time of the current economic crisis in which we are living.

Is it wise to do that with what could be described as a doctrinaire approach to time limits? The symbolic element of the later time by which changes can take place terminating 10 years after the referendum is all very well in terms of the political discourse, but will it be practicable to get to that point? Will there be adequate time for consultation with relevant individuals and businesses before that date arrives? Those are real issues embedded in the Bill.

There is then of course the issue that Mr Robertson and others talked about: the way in which all that interacts with the devolved Administrations and legislatures, and how they can deal with that approach to changing REUL. That is where one would want to criticise the Bill and ensure that we get it right if the changes are to proceed.

[Ms Ghani]

Q I am conscious of time, so I will be as quick as I can. I hope we get some quick answers. I have a question for you, Dr Gravey. A blog of 10 October that you co-authored on Brexit & Environment was brought to my attention. You noted:

“The UK government is in effect telling the devolved administrations to put on hold a lot of their priorities if they want to keep the status quo in any areas such as the environment where REUL plays a significant role.”

The compatibility and preservation powers in the Bill have been drafted as concurrent powers allowing either the devolved Administrations or UK Ministers to use them in devolved areas, or acting jointly. Those concurrent powers mean that devolved Administrations do not necessarily have to put on hold their priorities or allocate significant resources if they wish to maintain the status quo. Do you not agree?

Dr Gravey: Thank you so much, first of all for having read the blog—

[Ms Ghani]

I will never get those hours of my life back. That is fine. Please carry on.

Dr Gravey: Just the fact of the need to map all retained EU law in the devolved sphere is something that the devolved Administrations had not planned to do, and are being asked to do. Whether we can restate everything or not, there is one thing that as a Minister you might be able to help us with. Through transposition back in the ’90s or 2000s, a single SI might have been taken for the whole of the UK, even though it is an area of devolved competence. Can the different Administrations now each retain or amend that same SI differently? Can we have that kind of restatement of devolution powers?

There is a potential issue there. We are not sure what will happen when there was only one Brexit SI or one SI that was transposed back in the ’90s. For example, in some cases, transposition has been done by primary legislation in Scotland but secondary legislation in the rest of the UK.

We have all these things that have to be mapped. The mapping itself will take a lot of time, as we know from past SIs work. On the devolved Administration point, a lot of the worry is just going through and potentially making the case that at this point they need to have the right to retain something, although it is perhaps revoked in England. The impression that I have from my engagement with the Administrations is that there are some concerns there. If the UK Government are willing to say, “Don’t worry, even if it is the same SI, you can retain it while we revoke it”, that will reassure the devolved Administrations a lot.

Michael Clancy: May I say that I do not think that concurrent and joint are the same thing? We talk about powers granted to devolved Administrations being conferred concurrently and jointly. Concurrently means that they are used either by a UK Minister or by a devolved Administration independently of each another in devolved areas, whereas jointly means that a UK Minister and a devolved Administration are acting together. It is useful to get that kind of distinction on the record.

[The Chair]

Thank you, that is very helpful.

Charles Whitmore: While we are on the concurrency of the powers, I think this is a significant concern. It is a constitutional anomaly within our legislation that the UK Government can use concurrent powers in the Bill to legislate in areas of devolved competence without any form of seeking consent from relevant devolved Ministers. It is egregiously out of keeping not only with the Sewel convention, which is already under significant strain but with other EU withdrawal-related pieces of legislation.

Sections 6(7), (8), (9) and section 10(9) of the United Kingdom Internal Market Act 2020 require the UK Government to seek the consent of devolved authorities before making regulations and to publish a statement as to—if this is the case—why they are going ahead with that, despite potential devolved refusal. We have mechanisms in the European Union (Withdrawal) Act itself, and an intergovernmental agreement alongside, which provide a consent mechanism so that there is a recognition that this is a jointly shared space. It is quite odd that there is no consent mechanism of that nature in this Bill.