Retained EU Law Bill concerns - letter to the UK Government: 10 February 2023

To: Rt Hon Kemi Badenoch MP, Secretary of State for Business and Trade

From: Angus Robertson, Cabinet Secretary for Constitution, External Affairs and Culture

I write to congratulate you on your appointment as Secretary of State for Business and Trade.  I hope we can establish a constructive working relationship where our portfolio interests overlap.

I understand that you will now be responsible for the UK Government’s Retained EU Law (Reform and Revocation) Bill.  Scottish Ministers are of the view that the Bill should be withdrawn. We remain concerned that the Bill will be hugely damaging to people and businesses in Scotland and have repeatedly raised our concerns with the two previous Secretaries of State responsible for the Bill.  The Welsh Government, numerous environmental and business groups, trades union, food standards bodies and the vast majority of expert witnesses called to give evidence during the Bill’s first House of Commons stages have done the same. Despite this, the Bill remains largely unamended since its introduction.

I previously wrote to your predecessor outlining a range of amendments intended to limit the negative impact of the Bill on Scotland.  It is deeply disappointing that the UK Government did not consider these amendments during the committee stages in the House of Commons.

In advance of the committee stages in the House of Lords, the Scottish Government is re-publishing these amendments.  We are also publishing two additional amendments relating to the powers in the Bill given to UK Ministers which would enable them to make changes to the devolved statute book: any such changes should be made by Scottish Ministers.  These amendments are annexed to this letter, and include an explanatory statement. I would of course be very happy to discuss these with you.

I am copying this letter to Mick Antoniw MS, Counsel General for Wales and Minister for the Constitution, and to the Head of the Northern Ireland Civil Service. 

Annex A Retained EU Law (Revocation and Reform) Bill: Note on Scottish Government proposed amendments

The Scottish Government remains opposed to the Retained EU Law (Revocation and Reform) Bill (“the Bill”) and urges the UK Government to reconsider progressing with it given the damaging impact it will have on people and businesses across the UK. The Bill’s deregulatory agenda poses risks to important protections and high standards, for example in relation to environmental protection, food standards, animal and human welfare, and worker’s rights. The Bill would also significantly undermine devolution and the blanket “sunsetting” approach would impose unrealistic burdens on government and Parliamentary resources and create huge regulatory uncertainty for businesses.

The Scottish Government has lodged a Legislative Consent Memorandum in the Scottish Parliament recommending that the Parliament withholds its consent to the Bill. If the Scottish Parliament does not provide consent, then the Scottish Government will expect the UK Government, in line with the Sewel Convention, either to withdraw the Bill entirely or to amend it so that it does not apply in devolved areas, modify the legislative competence of the Scottish Parliament or modify the executive competence of the Scottish Ministers.

The Scottish Government is ready to discuss amendments to the Bill that would reduce the risk of harm to law in devolved areas and respects the roles and responsibilities of the Scottish Government and the Scottish Parliament. The Scottish Government is therefore publishing a package of options for amendments that could be made to those ends.

The amendments are set out in an Annex to this Note and explained below. The package includes several alternative options for how the Bill could be improved and in those cases the specific amendments that are relevant to each option are set out below.

These amendments have been prepared by the Scottish Government to reflect the Scottish devolution settlement. However, they could be adjusted to modify the Bill in respect of the other devolved legislatures and governments in the United Kingdom.

Sunset of retained EU law

Clause 1 of the Bill provides that EU-derived subordinate legislation and retained direct EU legislation (as those terms are used in the Bill) will be revoked at the end of 2023 unless they are specifically preserved by the power conferred by clause 1(2) of the Bill, and subject to the possibility for the sunset date to be extended by UK Ministers under clause 2 of the Bill (the latest extension date is 23 June 2026). Clause 3 of the Bill provides that rights retained under section 4 of the European Union (Withdrawal) Act 2018 (“EUWA”) will be sunsetted at the end of 2023 with no possibility for preservation or extension.

The Scottish Government has expressed its concern that the automatic sunset of retained EU law puts at risk important protections and high standards which the people of Scotland benefitted from as a result of EU membership. If instruments are not identified in advance of the sunset date they will automatically fall away.

Option 1: Remove the sunset in clause 1 from the Bill entirely

It is the Scottish Government’s view that the sunset of retained EU law in clause 1 (sunset of EU-derived subordinate legislation and retained direct EU legislation) and clause 3 (sunset of retained EU rights, powers liabilities etc) of the Bill should be removed.

This option would delete clauses 1 and 3 of the Bill so that retained EU law would remain on the statute book for the whole of the UK without needing to be specifically preserved. This would be the simplest way to ensure that important parts of the statute book are not lost on the sunset date.

For this option to be given effect the following amendments should be made:

• Amendment 2
• Amendment 3
• Amendment 4

Option 2: Remove devolved areas from the sunset in clause 1 from the Bill

If the UK Government (and ultimately the UK Parliament) wishes to maintain its proposal that the sunset in clause 1 should apply to areas within its remit, then it should be dis-applied in areas which are within devolved competence. This option would modify clause 1 so that it would not apply to retained EU law which could be contained in an Act of the Scottish Parliament or a Scottish Statutory Instrument.

For this option to be given effect, the following amendment should be made:

• Amendment 1

Option 3: Keep the sunset but move it to a later date and enable the Scottish Ministers to extend it

If the sunset in clause 1 is to remain in the Bill, the sunset date should be sufficiently far away as to enable people, businesses and regulators sufficient time to prepare. The currently proposed sunset date will put pressure on governments and parliaments across the UK to undertake a massive exercise in assessment, modification, preservation or restatement of 47 years of accumulated retained EU law at a time when focus should be on other matters. The proposed amendment would modify the sunset date in clause 1 to the end of 2026 with the possibility of extending it to the end of 2029.

Currently, it is only UK Ministers who may exercise the power to extend the sunset. In accordance with the devolution settlement established following the referendum in 1997, this power should be exercisable by the Scottish Ministers in respect of retained EU law which is within devolved competence. This option therefore modifies clause 2 to extend the power to the Scottish Ministers.

For this option to be given effect, the following amendments should be made:

• Amendment 5
• Amendment 6
• Amendment 7
• Amendment 9

Option 4: Enable the Scottish Ministers to extend the sunset date in clause 1

The options above have set out a number of way that the risks posed by the sunset in clauses 1 and 3 could be lessened. The package includes an alternative whereby the existing extension power (which provides for a delay to 2026) to be exerciseable in devolved areas by the Scottish Ministers as well as by UK Ministers.

For this option to be given effect the following amendment should be made:

• Amendment 8

Powers conferred on UK Ministers

The Scottish Government is concerned that the Bill confers powers on UK Ministers in devolved areas without requiring the consent of the Scottish Ministers for the exercise of those powers. Under the Scotland Act 1998, enacted after the approval of devolution by the people of Scotland in the referendum of 1996, it is Scottish Ministers rather than UK Ministers who have ministerial responsibility for the law in devolved areas.  Their decisions and are scrutinised by the Scottish Parliament. It is therefore vital to ensure democratic oversight and good governance that delegated powers cannot be exercised in devolved areas by UK Ministers without the agreement of the Scottish Ministers who are accountable to the Scottish Parliament.

The Scottish Government has prepared an amendment that would provide that UK Ministers could exercise powers under the Bill in devolved areas only if they have first received the consent of the Scottish Ministers.

For this change to be given effect the following amendment should be made:

• Amendment 10

Scope of powers

The Scottish Government is concerned by the breadth of powers which the Bill confers on Ministers. In particular, clause 15 of the Bill would enable ministers to make wholescale changes to subject areas currently governed by retained EU law by secondary legislation. The Scottish Government has prepared and amendment which would remove clause 15 from the Bill.

For this change to be given effect the following amendment should be made:

• Amendment 11

Law Officer functions

Clause 7 of the Bill (role of courts) introduces new sections 6A, 6B and 6C into EUWA. These sections will create a new route for questions about departing from retained case law (as defined in EUWA). Section 6B will enable Law Officers, including the Lord Advocate, to make references to superior courts and section 6C will enable Law Officers, including the Lord Advocate, to intervene in references made by lower courts or other Law Officers. Clause 7 of the Bill confers these functions on the Lord Advocate in respect of “relevant Scotland legislation” meaning provisions which are within the legislative competence of the Scottish Parliament (for the full definition of relevant Scotland legislation see the new section 6B(8) which is inserted into EUWA by clause 7 of the Bill).

The view of the Scottish Government is that the conferral of these functions must properly respect the roles and responsibilities of the Lord Advocate within the Scottish legal system.

Option 1: Confer these functions on the Lord Advocate with parity with UK Law Officers

The Lord Advocate is the senior Law Officer in the Scottish Government and the head of the system of prosecutions and investigations of deaths in Scotland. The office of Lord Advocate is longstanding and predates devolution, before which the Lord Advocate was a Minister of the Crown. Accordingly, it is the Scottish Government’s view that the Lord Advocate’s reference and intervention powers should not be limited to relevant Scotland legislation outlined above. The Scottish Government has prepared an amendment which would enable the Lord Advocate to make references and intervene in cases on the same basis that UK Law Officers may do so. 

For this option to be given effect the following amendments should be made:

• Amendment 12
• Amendment 13
• Amendment 14
• Amendment 15

Option 2: Confer these functions on the Lord Advocate in relation to retained functions

The Lord Advocate has a number of functions which are specifically functions of the holder of that office, and which are not functions of the Scottish Ministers. These are known as the Lord Advocate’s “retained functions” (see section 52(6) of the Scotland Act 1998). Some of those functions/responsibilities relate to legal matters which are not within devolved competence. For example the prosecution of offences under counter-terrorism legislation.

The Scottish Government’s view is that the Lord Advocate should be able to exercise the functions conferred by the Bill in proceedings that relate to retained functions.

For this option to be given effect the following amendments should be made::

• Amendment 16
• Amendment 17

Conferring consequential amendment powers on the Scottish Ministers

The Bill will make sweeping changes to the statute book including in areas of devolved competence. It is recognised that there will be a need for consequential provision to be made to manage these changes (including transitional, transitory and saving provision). However, the Bill’s consequential amendment powers are conferred on UK Ministers only (although the exercise of other powers in the Bill by the Scottish Ministers may include consequential provision).

Clause 6 of the Bill renames “retained EU law” as “assimilated law” and gives UK Minister a power to amend legislation in consequence of this change, including in devolved areas. As a general point of principle, the Scottish Government would expect any changes to the devolved statute book to be made by the Scottish Ministers and not by UK Ministers.

Therefore the Scottish Government has prepared amendment 18, which would give the Scottish Ministers a consequential amendment power relating to the change in terminology.

Clause 22(4) of the Bill enables Ministers of the Crown to make "transitional, transitory or saving provision” in connection with the coming into force of any provision of the Bill or the sunset of retained EU law under clauses 1 and 3. Consequential provision may be required should any devolved retained EU law be revoked by clauses 1 or 3.  The view of the Scottish Government is that the Scottish Ministers should be empowered to make such provision in order to respect the roles of the Scottish Ministers and the Scottish Parliament in relation to the devolved statute book.

The Scottish Government has prepared amendment 19 which would confer this power on the Scottish Ministers. 

For this change to be given effect the following amendments should be made:

• Amendment 18
• Amendment 19

Proposed Scottish Government Amendments to the Retained EU Law (Revocation and Reform) Bill

LORD SPONSOR 1

Clause 1, page 1, line 6, at end insert—

              “(1A) Subsection (1) does not apply to an instrument, or a provision of an instrument, that—

                             (a) would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament, or

                             (b) could be made in subordinate legislation by the Scottish Ministers, the First Minister or the Lord Advocate acting alone.”

Explanatory statement

This amendment restricts the automatic revocation or “sunsetting” of EU-derived subordinate legislation and retained direct EU legislation under clause 1 of the Bill so that it does not apply to legislation that is within the legislative competence of the Scottish Parliament.

____

LORD SPONSOR 2

Leave out Clause 1

Explanatory statement

This amendment, together with amendment 3, leaves out the automatic revocation or “sunsetting” of EU-derived subordinate legislation and retained direct EU legislation.

____

LORD SPONSOR 3

Leave out Clause 2

Explanatory statement

This amendment, together with amendment 2, leaves out the automatic revocation or “sunsetting” of EU-derived subordinate legislation and retained direct EU legislation.

____

LORD SPONSOR 4

Leave out Clause 3

Explanatory statement

This amendment leaves out the automatic repeal or “sunsetting” of  EU rights, powers liabilities etc retained under section 4 of the European Union (Withdrawal) Act 2018.

____

LORD SPONSOR 5

Clause 1, page 1, line 4, leave out “2023” and insert “2026”

Explanatory statement

This amendment, together with amendment 6, changes the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation would take effect to the end of 2026.

____

 LORD SPONSOR 6

Clause 2, page 2, line 12, leave out “2023” and insert “2026”

Explanatory statement

This amendment, together with amendment 5, changes the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation would take effect to the end of 2026.

____

LORD SPONSOR  7

Clause 2, page 2, line 19, leave out “2026” and insert “2029”

Explanatory statement

This amendment changes the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation may be extended to, up to a final deadline of 23 June 2029.

____

LORD SPONSOR 8

To move the following clause—

              “Extension of sunset under section 1 by Scottish Ministers

              (1) The Scottish Ministers may by regulations provide that section 1, as it applies in relation   to a specified instrument or a specified description of legislation within section 1(1)(a) or (b), has effect as if the reference in section 1(1) to the end of 2023 were a reference to a later specified time.

              (2) In subsection (1) “specified” means specified in the regulations.

              (3) Regulations under subsection (1) may not specify a time later than the end of 23 June 2026.”

Explanatory statement

This amendment would give the Scottish Ministers a power to extend the sunset date for devolved retained EU law equivalent to that conferred on a Minister of the Crown by Clause 2 of the Bill. It confers a power on the Scottish Ministers to modify the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation may take effect, to a date no later than 23 June 2026.  As a result of Schedule 2 this power is exercisable only within devolved competence. 

____

LORD SPONSOR 9

To move the following clause—

              “Extension of sunset under section 1 by Scottish Ministers

              (1) The Scottish Ministers may by regulations provide that section 1, as it applies in relation   to a specified instrument or a specified description of legislation within section 1(1)(a) or (b), has effect as if the reference in section 1(1) to the end of 2026 were a reference to a later specified time.

              (2) In subsection (1) “specified” means specified in the regulations.

              (3) Regulations under subsection (1) may not specify a time later than the end of 23 June 2029.”

Explanatory statement

This amendment is similar to amendment 8 except that it permits the extension of the sunset to 2029 rather than 2026. It confers a power on the Scottish Ministers to modify the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation may take effect, to a date no later than 23 June 2029. As a result of Schedule 2 this power is exercisable only within devolved competence. 

____

LORD SPONSOR   10

Schedule 4, page 39, line 38, at end insert—

“Consent of Scottish Ministers

8A          Before making regulations to which this Part of this Schedule applies, a Minister of the Crown must obtain the consent of the Scottish Ministers.”

Explanatory statement

This amendment modifies the powers which are conferred on Ministers of the Crown in devolved areas so that they may only be exercised with the consent of the Scottish Ministers.

____

                           

LORD SPONSOR 11

Leave out Clause 15

Explanatory statement

This amendment leaves out clause 15 of the Bill, on powers to revoke and replace secondary retained EU law, in its entirety.

____

LORD SPONSOR 12

Clause 7, page 8, line 14, leave out “, if the point of law relates to the meaning or effect of relevant Scotland legislation”

Explanatory statement

This amendment, together with amendment 13, modifies the points of law on which the Lord Advocate may make a reference under the new section 6B of the European Union (Withdrawal) Act 2018 so that it is not restricted to points of law which relate to the meaning or effect of relevant Scotland legislation.

____

LORD SPONSOR 13

Clause 7, page 9, leave out lines 15 to 28

Explanatory statement

This amendment, which is consequential to amendment 12, modifies the points of law on which the Lord Advocate may make a reference under the new section 6B of the European Union (Withdrawal) Act 2018, omitting the definition of “relevant Scotland legislation” from section 6B.

____

 LORD SPONSOR  14

Clause 7, page 10, line 18, leave out “, if the argument relates to the meaning or effect of relevant Scotland legislation”

Explanatory statement

This amendment, together with amendment 15, modifies the arguments in legal proceedings on which the Lord Advocate may intervene under the new section 6C of the European Union (Withdrawal) Act 2018 so that that section is not restricted to arguments which relate to the meaning or effect of relevant Scotland legislation.

____

LORD SPONSOR 15

Clause 7, page 10, line 27, leave out “relevant Scotland legislation,”

Explanatory statement

This amendment, which is consequential to amendment 14, modifies the arguments in legal proceedings on which the Lord Advocate may intervene under the new section 6C of the European Union (Withdrawal) Act 2018, omitting the definition of “relevant Scotland legislation” from section 6C.

____

LORD SPONSOR 16

Clause 7, page 8, line 15, after “legislation” insert “, or to the retained functions of the Lord Advocate (within the meaning of section 52(6) of the Scotland Act 1998)”

Explanatory statement

This amendment modifies the points of law on which the Lord Advocate may intervene under the new section 6B of the European Union (Withdrawal) Act 2018 so that the power to intervene may be exercised in relation to points of law which concern the retained functions of the Lord Advocate.

____

LORD SPONSOR 17

Clause 7, page 10, line 19, after “legislation” insert “, or to the retained functions of the Lord Advocate (within the meaning of section 52(6) of the Scotland Act 1998)”

Explanatory statement

This amendment modifies the arguments in legal proceedings on which the Lord Advocate may intervene under the new section 6C of the European Union (Withdrawal) Act 2018 so that the power to intervene may be exercised in relation to points of law which concern the retained functions of the Lord Advocate.

____

LORD SPONSOR 18

Clause 6, page 4, line 34, at end insert—

“(6A) The Scottish Ministers may by regulations make provision amending an enactment in consequence of the name of a thing being changed by subsection (1) (iincluding by virtue of regulations under section 19.”

Explanatory statement

This amendment would give the Scottish Ministers a power to make regulations to amend legislation in consequence of the change in terminology from “retained EU law” to “assimilated law” made by clause 6. This would be equivalent to the existing power for Ministers of the Crown in clause 6(6).

____

LORD SPONSOR 19

Clause 22, page 23, line 39, at end insert—

“(4A) The Scottish Ministers may by regulations make such transitional, transitory or saving provision as they consider appropriate in connection with—

1. the coming into force of any provision of this Act,
2. the revocation of anything by section 1, or
3. anything ceasing to be recognised or available in domestic law (and, accordingly, ceasing to be enforced, allowed or followed) as a result of section 3.”

Explanatory statement

This amendment would give the Scottish Ministers a power to make transitional, transitory or saving provision in consequence of the coming into force of the Bill: including in consequence of the revocation of retained EU law provided for in clause 1 of the Bill, and any gaps in domestic law within the Scottish Minister’s devolved competencies that occur as a result. This would be equivalent to the power for UK Ministers in clause 22(4) of the Bill.