Taking exception to the REUL

On Monday, the House of Lords will debate a bill that its progenitor described last month as a ‘tidying-up law’ and of ‘great constitutional importance’. It cannot be both and is almost certainly neither. What, then, would it be constitutionally proper for the Lords to do with it?

We are speaking of Jacob Rees-Mogg’s Retained EU Law (Revocation and Reform) Bill, better known the REUL bill. The acronym rhymes with gruel and is pronounced ‘rule’ – not as in ‘rule of law’ but in ‘rule by ministers’.

Although Rees-Mogg himself (pictured) was sacked by Rishi Sunak on 25 October, MPs gave his bill a second reading later that day at the behest of a very temporary junior minister at his former department. MPs subsequently approved a number of drafting amendments but all opposition attempts at reform were defeated in the Commons.

Peers may try again. Before we consider their options, we need to understand why the bill is so dangerous.

Retained EU law – REUL – is the body of law that was kept by the UK when the Brexit transition period ended on 31 December 2020. The European Union (Withdrawal) Act 2018 took a ‘screenshot’ of REUL and uploaded it to the UK’s statute book. That ensured there would be no gaps – consumers would not lose valuable rights – while ministers decided which EU-derived laws to keep. Around 670 pieces of REUL have been repealed or amended over the past two years.

If passed in its current form, the REUL bill would automatically revoke almost all remaining REUL in less than 11 months from now. There is an exception for anything included in primary legislation. There is also an exception for any EU law that ministers or the devolved authorities decide to keep in the meantime – ‘assimilated law’, as it will then be called.

How many laws will be ‘sunsetted’ in December? Nobody knows. Until the beginning of this week, 2,417 pieces of legislation were listed on a ‘dashboard’ – a public website – with a short summary of what each one does and what might happen to it. Last month, the government said it had identified 3,200 items of EU law – but it expected the total to be 4,000. The dashboard currently identifies and summarises 3,745 laws, but it won’t be updated for another three months.

Don’t worry, says the government: UK ministers (but not devolved authorities) will be able to delay the sunset for specific types of REUL until 23 June 2026, an apparently arbitrary cut-off that happens to mark the 10th anniversary of the Brexit referendum.

According to the dashboard, less than 18% of REUL has so far been amended, repealed or replaced. The biggest challenge is faced by the environment department, which has more than 1,750 laws awaiting attention. ‘Currently, some data on Defra’s retained EU law is not available,’ the dashboard says ominously.

Clauses 12 to 14 of the bill allow ministers from the UK government and the devolved administrations to ‘restate’ REUL. But clause 15 is the real shocker. It would allow any minister to revoke or replace ‘secondary’ REUL – not created by primary legislation – until June 2026. This REUL could be replaced with any law that the minister ‘considers to be appropriate and to achieve the same or similar objectives’. It could even be replaced with ‘such alternative provision’ as the minister considers appropriate. Under the clause, a minister could create a new criminal offence ‘similar to’ an offence under secondary REUL, punishable with similar fines. And what is meant by ‘alternative provision’? The bill is silent. Little wonder this has been called the ‘do what you like’ clause.

Is that what the House of Lords should do with the bill? Not quite: deferring to the Commons and in line with convention, it should give the bill a second reading on Monday. But the Lords should then amend it in committee, tightening up clause 15 and much else besides.

Labour MPs wanted the sunset date in clause 1 extended for three years. But, as speakers at a 39 Essex Chambers webinar explained last week, delay would lead to further uncertainty.

If the government can list laws on a dashboard, then it can do so in legislation. As Stella Creasy MP argued from the Labour benches, clause 1 should be amended so that it applies only to REUL that is listed by name. That is precisely what the government is doing in its Financial Services and Markets Bill.

It would be perfectly reasonable for ministers to add more REUL to a schedule after the bill is passed. But it cannot be acceptable for regulations to be revoked without first identifying them and giving parliament a chance to decide whether they are still needed. Who knows how many more laws will be repealed while they are still hidden down the back of the sofa?

joshua@rozenberg.net