Retained EU Law Bill and Devolution: reigniting tensions in post-Brexit intergovernmental relations
From retained to reformed, repealed or ‘assimilated’: the future of what was EU law in the UK is at the heart of the new Truss Government’s Brexit agenda and sees the different governments across the UK once more at odds. While the Prime Minister proclaims the Retained EU Law (Revocation and Reform) Bill will deliver the ‘end of EU red tape’ by the end of 2023, Ministers in Scotland and Wales decry yet another ‘power grab’ and, alongside environmental groups throughout the UK, warn of a profound ‘attack on nature’ which could see dramatic lowering of environmental standards across the UK.
This blog post builds on Prof Maria Lee’s first look at the REUL Bill – which sets out how the Bill works, and critical questions in terms of accountability and transparency in decision-making in Westminster. Here we consider the impact on devolution, both the devolution settlements and the exercise of devolved competence in the environment, of the Bill, focusing on Wales and Scotland. As Northern Ireland is between the rock of no functioning Executive, and the hard place of the NI Protocol, a forthcoming post will discuss what the Bill means for NI devolution and the NI environment.
This blog argues that the Bill raises profound concerns for regulatory certainty, regulatory divergence, administrative capacity, environmental ambition and devolved consent. The new Bill calls in doubt both this UK government’s commitment to working closely with the devolved administrations and its appetite to deliver on the 2019 election Conservatives’ manifesto to ‘achieve net zero by 2050’, ‘raise standards’ and develop ‘the most ambitious environmental programme of any country on earth.’
To what extent will devolved competences be affected?
A first concern is the sheer uncertainty of the process. It is difficult, if not impossible, to fully gauge what the impact of the Bill will be on devolved competences as the scope of Retained EU Law itself is unclear. The UK Government published a Dashboard of retained EU law in June – but not only is it incomplete (notably for DEFRA – no REUL type data held), it does not list which rules are reserved, or devolved, and only allows to search per UK Department, hereby not listing devolved instruments. Devolved demands to amend the Dashboard to provide this clarity and list their instruments were ignored. This means the 2400 REUL list is just an estimate, and that in addition to dealing with the instruments listed on the dashboard, the different UK administrations will have to keep looking for unlisted instruments to ensure no instruments are ‘sunseted’ (i.e. repealed) by mistake.
The Dashboard further obscures the complexity and diversity of REUL in the UK. Whether an environmental rule will fall under the scope of the REUL Bill depends on the history of devolved implementation of EU law and most notably on how EU directives were transposed in the four administrations: using primary or secondary legislation? As one, or individually? And were the same choices made? Thus we have (at least) four options:
- EU law was implemented through UK-wide SI. This puts this instrument squarely within the scope of the REUL bill and at risk of reform/repeal. Crown Ministers acting alone, or jointly with devolved ministers may reform, repeal or let it fall.
- EU law was implemented through UK-wide primary legislation. This puts it outside of scope of REUL Bill.
- EU law was implemented through a devolved SI
- Implemented through devolved primary legislation. This puts it outside scope of REUL bill.
To make things more complex, the same EU directive may have been transposed using different instruments across the UK. For example, the Strategic Environmental Assessment directive was transposed via primary legislation in Scotland (thus not concerned by REUL bill) but via secondary legislation elsewhere (Environmental Assessment (Scotland) Act 2005 (replacing interim SSI 2004/258), and SI 2004/1633 (England), SI 2004/1656 (Wales), SRO 2004/280 (NI)), hereby opening the door to unplanned regulatory divergence.
Our second concern is thus how the REUL Bill deals with divergence. While regulatory divergence is not necessarily bad (it is not only common in devolved systems but can lead to policies more targeted to local needs etc.) the REUL Bill’s casual disregard for divergence is at odds with previous Brexit legislation. Under the UK Internal Market Act 2020 and through the Common Frameworks process such intra-UK divergence is supposed to be flagged to the other governments and mitigated against – but no such warning system or reflection on the impact on the UK internal market are mentioned here. This raises concerns about how well the REUL Bill fits with the rest of the post-Brexit legislative architecture.
The end of Green Brexit?
Our third concern is administrative capacity. Participating in the REUL Bill process – If only to try to maintain regulatory certainty – will put huge (and unwanted) pressure on the devolved administrations and divert civil service time from other priorities. 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.
But maintaining the status quo may not be an option. Our fourth concern is that the REUL Bill goes beyond ‘performative divergence’ – its purpose is not only to rid the UK statute book of any whiff of EU law, it also in effect puts a ceiling on environmental ambition. The Bill has a strong pro-deregulation slant. In order to ensure an instrument stay in the statute book, it needs to be restated. As it is restated, it can be revoked or replaced or indeed updated.
But revoking and replacing can only be done if this diminishes or maintain the regulatory burden – the REUL Bill allows for reduced burden, but not greater burden. It defines burden in a very expansive manner: cost, administrative inconvenience, obstacles to trade or innovation, to efficiency, productivity or to profitability. It is very unlikely that any instrument reformed to increase environmental ambition would escape this burdensome definition of burden. This means in effect not only that devolved administrations are asked to put on hold their own domestic agenda to work on REUL in 2023, but they won’t be able to use REUL powers to deliver on their environmental priorities – such as keeping pace with EU development in Scotland, or raising standards post-Brexit in Wales.
Consent and SIs: one step forward, two steps backward
Our fifth and final concern is consent. The Sewel convention, which states that the UK Parliament would not normally legislate in areas of devolved competence without the consent of the devolved parliaments, has been much battered by the Brexit process, with repeated refusals of consent ignored. But critically it applies to primary legislation, not SIs. How can consent be sought on UK SIs in areas of devolved competence is becoming increasingly important as Brexit Bills are making repeated, and growing, use of SIs. This issue was at the heart of the Scottish refusal to consent to EUWA 2018 – and the then Welsh Assembly only consented to it due to an agreement between the Welsh and UK government that UK SIs in areas of Welsh competence would be sent to the Welsh government for consent. This was not a perfect solution from an accountability and transparency perspective as it saw only limited scope for the Senedd to participate, but it at least ensured that affected parties could react and block SIs in time.
Schedules 2 and 3 of the REUL Bill discuss consent in depth. The focus, though, is on areas where consent from a Minister of the Crown is required before the devolved authorities exercise their competence, and also on ensuring that when the devolved authorities singly (or jointly with UK ministers) exercise their powers under REUL they follow the rules for parliamentary approval of SIs in their respective jurisdictions. What is missing – and what is particularly aggravating devolved ministers – is any type of consent from the devolved authorities (be it through intergovernmental discussions, or in their parliaments) when UK ministers act alone and restate, reform or repeal REUL in areas of devolved competence. There is no formal route for the devolved governments or parliaments to contribute to the process of approving SIs within the UK Parliament and considering the limited capacity there to deal with SIs and the rarity of SIs being voted down or annulled, it is very unlikely the UK Parliament would so intervene decisively in response to concerns from a devolved administration. At a time where UK intergovernmental relations are not good, and when devolved regulatory agendas, especially in Wales and Scotland, are sharply at odds with those in England, this absence of consent can only fuel discontent.