Examination of Witnesses

Retained EU Law (Revocation and Reform) Bill – in a Public Bill Committee am 4:31 pm ar 8 Tachwedd 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Michael Clancy OBE, Charles Whitmore and Dr Viviane Gravey gave evidence.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon 4:53, 8 Tachwedd 2022

I thank our final set of witnesses for being patient—we have run slightly over time because of the Division in the House of Commons. We will now hear oral evidence from Michael Clancy, director of law reform at the Law Society of Scotland; Charles Whitmore, research associate at the School of Law and Politics at Cardiff University; and Dr Viviane Gravey of the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast. All three witnesses are appearing via Zoom. We have until 5.23 pm.

Would the witnesses introduce themselves for the record, please? Let us start with Mr Clancy—[Interruption.] We cannot hear you at the moment—[Interruption.] Okay, we are having technical problems. We will suspend briefly and someone will do something with a hammer.

Sitting suspended.

On resuming—

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

I hope that we have got it right this time. Would our witnesses like to try introducing themselves again, please?

Michael Clancy:

Thank you, Sir Gary. My name is Michael Clancy. I am director of law reform at the Law Society of Scotland.

Dr Gravey:

I am Viviane Gravey, a senior lecturer in European politics at Queen’s University Belfast. I am also co-chair of Brexit & Environment, a network of academics looking at the impact of Brexit on the environment.

Charles Whitmore:

My name is Charles Whitmore. I am a research associate with Cardiff University’s Wales Governance Centre, where I lead on its joint work with the Wales Council for Voluntary Action, which is the national membership body for charities in Wales, on the constitutional and legal changes arising from, in this case, withdrawal from the EU.

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy)

Q This is a question for Dr Gravey. The evidence so far has not touched very much on the effect on Northern Ireland. I understand that there are some concerns, particularly, around the protocol and the United Kingdom Internal Market Act 2020. If you have those concerns, could you talk to the Committee about them?

Dr Gravey:

Thank you very much for the question. It is true that, in any case, there will be many more concerns for Northern Ireland. We have two different types of concern. First, it will be more complex for Northern Ireland, and secondly, in the absence of an Assembly or Executive, it will be harder for Northern Ireland to either participate in the retained EU law powers or to give any kind of oversight.

In terms of how it is more complex for Northern Ireland, there were some mistakes in the discussion this morning around the scope of the Bill when it comes to Northern Ireland, in clause 1(5). That is basically just about excluding, as with the rest of the UK, a primary role from the scope of the Bill. Basically, that is there because we sometimes have direct rule in Northern Ireland. There are Orders in Council, and they are not secondary legislation, but there are statutory instruments and statutory rules in Northern Ireland that will fall within the scope of the Bill.

The protocol comes in in two different ways. First, because of the protocol, we have retained EU law in Northern Ireland, but we also have a different type of EU-inspired legislation, which is directly applicable EU law, through the annex to the protocol. There is some question about the overlap between those two groups, and what will happen, for example, if we start removing or adding protocol laws that do different things from retained EU law. We have a very complex system in Northern Ireland right now. That is one of the issues.

The other issue is, as I think you have heard, about the primacy of EU law. That will be removed by the Bill, but it is maintained and reaffirmed in the Northern Ireland Protocol Bill, which is also in front of the Commons. How those two Bills will work together is one of the big questions, and I do not think anyone has an answer. Civil society and Government—Ministers and civil servants—in Northern Ireland have a lot of questions, and there are concerns that we are not getting answers or clarity from the UK Government on this.

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy)

Q I have one supplementary question. You touched on this briefly. What impact will the Assembly not sitting have on the operation of the Bill?

Dr Gravey:

Again, there are two different impacts. There is the impact on deciding on REUL, and what happens on the revoking end impacts on oversight. Before we lost our Ministers at the end of last month, some of the Departments had started work on mapping REUL. We know that the Department of Agriculture, Environment and Rural Affairs has identified around 600. The Department for Infrastructure has identified around 500. But the other Departments have not yet told us how many. It looks like the Northern Ireland Office is pushing the Departments to do something, but there is very little clarity. On a NI dashboard, for example, it is very unclear what we are going to get —if anything.

The other point is on consent and oversight for REUL. Through the UK Brexit SIs, we experienced that best efforts at involving the devolved Administrations were very limited in practice. On the environment and agriculture, for example, the experience in Northern Ireland has been that, even when the Assembly returned in 2020, the Committee for Agriculture, Environment and Rural Affairs and DAERA were getting only parts of the Brexit SIs, and they got them very late, with very little time to engage at all with stakeholders or to provide consent. That was when we had an Assembly. When we did not have an Assembly—for most of the Brexit process—there was no formal process for stakeholder engagement and involvement in the massive change that has already happened for the creation of retained EU law.

The fact that this Bill creates even more of an opportunity to change a vast amount of legislation even more deeply, and the lack of an Assembly, leads to the concern—the Scottish Minister said this earlier—that decisions will be made without the involvement of devolved citizens. That is even more the case in Northern Ireland because we do not have the mechanism for normal consent through the Assembly and the Executive.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Q We have experts here from Scotland and Wales, so let us have a quick view from Mr Clancy and then your colleague about the likely impact of the Bill on Scotland and Wales.

Michael Clancy:

The Law Society of Scotland’s principal concerns are about the potential for confusion and the lack of clarity about what the law is, what law applies and when it applies. In particular, we think that the sunset provisions are unduly short. We are told that the sunset will operate from the end of 2023—a phrase that lacks some statutory precision, I might say, so we will be preparing amendments to deal with that.

There is also a lack of clarity about what comes afterwards. It will be difficult for citizens and businesses to deal with even the provisions about replacement, restatement and the creation of the new category of assimilated law in a short—apparently very compressed—period of time, and without the adequate consultation that one would expect when this sort of law is changed. I hope that is helpful.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

That is very helpful. Mr Whitmore?

Charles Whitmore:

It is important to emphasise as a starting point just how significant the Bill is from a devolved perspective. There has not as yet been sufficient consideration of the implications at the governmental level. It is not evident to me, from the Bill and the Bill documents, that sufficient consideration has been given to that.

For instance, there is a lack of a consent mechanism, despite that being contrary to practice in recent legislation. The clause 2 extension power is not being granted to devolved authorities. There is significant uncertainty about how the legislation might interact with different levels of governance and the different levels of inter-dependence therein. Crucially, we do not know much yet about what mechanisms relating to institutions for intergovernmental relations we might need, have or lack so that we can ensure co-operation in what is fundamentally a shared policy space.

It is important that those issues are given due consideration, ideally prior to the introduction of the legislation. Not having an understanding of them could amplify the significant risks of omissions and accidents arising from the sunset mechanism.

A second core concern for us is the legal uncertainty, which I am sure the previous panels spoke to you about. There is significant scope for the Bill to lead to legal uncertainty, and that is compounded at the devolved level because our capacity constraints are probably more acute, so the time sensitivity is even greater, and because there is uncertainty around how you address the tensions in the Bill at an intergovernmental level.

For instance, we do not know how different parts of the UK will make use of the powers in the Bill. Which will fall within the market access principles of the United Kingdom Internal Market Act 2020? Will they fall within or without an area covered by a common framework? If you start thinking about the different uses that might be made of the restatement powers, and which parts of the UK might take different approaches to supremacy and the general principles, the level of uncertainty really does start to get quite extreme.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

That is very helpful. Thank you.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

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?

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

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.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

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—

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

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.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

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.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Thank you, that is very helpful. I call Justin Madders.

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy)

Q Do you think it would be helpful if there was some kind of protocol set out in the Bill to get legislative consent?

Michael Clancy:

It might be difficult to get a protocol into the Bill, but if one recollects, in the United Kingdom Internal Market Act it was a long tussle between the Government and the other parliamentary participants in making reference to common frameworks in that measure.

One can say that under the EUWA arrangements for making retained EU law that had to be made by UK Ministers, a protocol was established between the Scottish Government and the Scottish Parliament where Scottish Ministers would indicate to the Parliament certain UK measures that would affect devolved matters. The Parliament would consider them and rank them according to whether they were significant or less so. Something like 83 separate orders were dealt with in that way, in terms of creating retained European Union law at that time over the period from 2018 to 2021.

Dr Gravey:

If I can just add to that, of course a consent mechanism would be welcome, although we have seen some issues. What has been put in place for REUL around the withdrawal Act has been inter-governmental, so we are removing oversight in Parliament—both in Westminster and in the devolved Administrations—from the equation. They only come in because it is in the gift of the Scottish Government and Welsh Government to involve them, and because they have decided to involve them, but the agreement is between the UK Government and, for example, the Welsh Government.

Secondly, the absence of an Executive in Northern Ireland raises the question of how we can get consent. Can we have some kind of role for the civil service in Northern Ireland to grant consent? Can we have some role for the Northern Ireland Affairs Committee in the House of Commons to review some of this work? We do not know, but we need to think about it, because the absence of an Executive in Northern Ireland will be a rolling issue, and consent has to be rethought around that.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Thank you very much—a final word from Mr Clancy.

Michael Clancy:

That is a very important point about the role of intergovernmental relations in all this. We had a long period of reflection on intergovernmental relations, which resulted in the new structure being created earlier this year. One of its key aspects is that the relations should facilitate effective collaboration and regular engagement in the context of increased interaction between devolved and reserved competences in our new relationship with the EU and other global partners. The issue of intergovernmental relations has already anticipated that, and we should not necessarily want to reinvent the wheel. Instead, I suggest that we need to reflect on the structure of intergovernmental relations and see whether there is anything that can be developed or, alternatively, refocused on the issues that arise from the Bill.

Photo of Gary Streeter Gary Streeter Ceidwadwyr, South West Devon

Thank you very much. There are no further questions, but you have given us a lot to think about. I am sorry for the technical glitch and the delay at the beginning, but thank you for your expert and excellent evidence. We will take it into account as we take forward our Committee proceedings.

Colleagues, I am afraid that brings us to the end of the time allotted—I know you will be upset—for the Committee to ask questions in this sitting. On behalf of the Committee, I thank the witnesses for their evidence. The Whip is about to prepare to move the adjournment, and the Committee will next meet on Tuesday 22 November for line-by-line consideration of the Bill. I cannot wait.

Ordered, That further consideration be now adjourned. —(Joy Morrissey).

Adjourned till Tuesday 22 November at twenty-five minutes past Nine o’clock.

Written evidence reported to the House

REULB 01 Professor Charlotte Villiers, Professor of Company Law and Corporate Governance, University of Bristol Law School

REULB 02 Law Society of Scotland

REULB03 Equally Ours

REULB04 Employment Lawyers Association

REULB05 Bar Council

REULB06 Royal Society for the Prevention of Cruelty to Animals

REULB07 National Farmers Union

REULB08 New Forest National Park Authority

REULB09 Dr Martin Brenncke

REULB10 Civil Society Alliance

REULB11 Professor Maria Lee

REULB12 British Retail Consortium

REULB13 Consumer Scotland

REULB14 Lewis Silkin LLP

REULB15 Wildlife Trusts

REULB16 Hansard Society

REULB17 PETRA Network

REULB18 Harold Shupak

REULB19 Suffolk Coastal Port Health Authority

REULB20 A working mother from Cambridge

REULB21 Catherine Barnard, Professor of Law, University of Cambridge, and Deputy Director, UK in a Changing Europe; and Dr Joelle Grogan, senior researcher, UK in a Changing Europe