Retained EU Law: Where next? Government response to the committee’s fifth report
From our colleagues at Barbour EHS.
The European Scrutiny Committee published its report, Retained EU Law: Where next? (HC 122), on 21 July 2022. The government has issued this response.
The government mostly agrees with the recommendations of the Committee and has sought to implement them via the Retained EU (Revocation and Reform) Bill. This response document notes where the Government has addressed the recommendations via the Retained EU Law (Revocation and Reform) Bill.
In summary, the responses on the given areas include:
• Supremacy of retained EU law: removing the principle of supremacy of EU law from the UK statute book is a key aspect of restoring the sovereignty of Parliament. The government agrees with the Committee that retained EU Law should not be supreme over any UK law, and the Bill legislates for this to come into effect on 31 December 2023. After this date, new default rule established by the Bill in Clause 4 mean that UK law – regardless of when it was made – will take precedence over retained direct EU legislation where there is a conflict. The government will have the ability to specify the legislative hierarchy between specific pieces of legislation and retained direct EU legislation to ensure that policy continues to function as intended, without using EU law principles of interpretation.
• Changing retained EU law and parliamentary scrutiny: the government agrees with the Committee’s view that retained direct EU legislation should be amendable as secondary legislation. On which retained EU law will be prioritised for reform, this will remain a matter for departments. The Department for Business, Energy and Industrial Strategy will be leading and coordinating a crossWhitehall retained EU law reform programme.
• Role of the courts: in line with the Committees’ recommendations, the effect of General Principles on relevant UK legislation will be ended on 31st December 2023 as per Clause 5 of the Bill. The government agrees that their maintenance would be incongruous within the domestic legal context, and as such the Bill does not allow for their direct preservation. If a department wishes to maintain the policy effect that a general principle provides, they would need to write in the policy effect they wish to preserve into legislation.
• Devolution: the government says it has consulted extensively at official and ministerial level with the Devolved Administrations on retained EU law and the provisions in the Bill. Further engagement and discussions will be held during the Bill’s passage and as part of continuing retained EU law reform. In reference to the Committee’s concerns around Northern Ireland, the government will maintain and uphold all international obligations to which it is a party, it says.
• Transparency – accessibility of retained EU law and consultation.
“ The decision to leave the EU has now reached health and safety workplace legislation so it will be important to track this Bill and to offer comments and opinions by taking part in the forthcoming government consultations.“
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