The Retained EU Law (Revocation and Reform) Bill is controversial for many reasons – not least the sweeping powers it grants the executive to change a swathe of laws. Lisa James and Alan Renwick discuss recent Constitution Unit survey results, which suggest that members of the public instinctively favour a central role for parliament in law making.
The Retained EU Law (Revocation and Reform) Bill – or REUL Bill – is a complex and controversial piece of legislation. Its focus is the law which arose from the UK’s membership of the European Union. This ‘retained EU law’ is significant in both scale and scope: the government currently lists over 3700 pieces of such legislation, much of it implementing regulatory regimes across a number of major policy domains. Areas such as environmental protection, consumer rights and employment law are particularly affected.
The REUL Bill would automatically repeal most retained EU law at the end of 2023, and make it much easier for ministers to amend or replace. This approach has proved controversial in a number of ways. Business groups have raised concerns that previously settled areas of law could be disrupted at short notice, creating legal uncertainty. Environmental groups and trade unions, among others, have raised concerns about rights protections being lost. And some have questioned whether Whitehall really has the capacity to conduct a thorough and careful review of such a huge body of law by the end of the year.
Alongside this, experts have warned that the bill as currently drafted would greatly empower the government at the expense of parliament, handing ministers sweeping powers to decide what law is repealed or preserved, and how it is amended. Such process-related concerns – regarding how legal change is enacted – are sometimes considered of interest only to experts. But recent Constitution Unit research shows that the public have clear instincts on how such processes should work – and express widespread support for parliament’s role in law-making.
The REUL Bill and parliamentary scrutiny
As currently drafted, the bill places significant powers and discretion in the hands of ministers. If passed in its current form, the clock would begin ticking on the sunset clause which would repeal most retained EU law at the end of 2023; from this point, parliament would have little say over what happens to retained EU law.
Instead, the bill would grant substantial delegated powers to ministers. These would allow ministers – among other things – to choose whether to preserve items of retained EU law, delay their repeal, modify them, or replace them with ‘such alternate provision’ as the executive ‘considers appropriate’. There is no obvious mechanism for parliament to choose to save particular pieces of retained EU law, absent a ministerial proposal to do so. As the independent watchdog the Regulatory Policy Committee has pointed out, the government has provided little detail on how it plans to use these powers, making it impossible for parliamentarians to judge what the bill’s ultimate impact will be on the various important policy areas covered by retained EU law. These problems are exacerbated by the risk of a legislative ‘cliff-edge’ at the end of 2023, which could see parliament asked to sign off on a large volume of ministerial decisions in short order, or risk regulatory ‘gaps’ emerging at the sunset date. This would allow only the most cursory scrutiny, increasing the risk that muddled or inconsistent legislation reaches the statute book.
For these reasons, key parliamentary committees have sharply criticised the bill. The Secondary Legislation Scrutiny Committee concluded that in various ways ‘the Bill runs directly counter to the principles of parliamentary democracy’, and ‘would lead to a significant shift of power not to Parliament but to ministers’. Similarly, the Delegated Powers and Regulatory Reform Committee has characterised the bill as ‘a blank cheque placed in the hands of Ministers’ – pointing out also that it ‘contradicts pledges by the Government since 2018 that Parliament would be the agent of substantive policy change in these areas’.
Such concerns are sometimes dismissed as being out of step with public opinion. Politicians may argue that, so long as a broadly popular policy is being delivered, the public has no particular view on the balance of power between government and parliament. But the results of a recent survey by the Constitution Unit suggest that this would be mistaken.
These findings form part of the Unit’s ‘Democracy in the UK after Brexit’ project, which uses surveys and a citizens’ assembly to understand public attitudes on democracy. One question in the most recent survey, fielded in summer 2022 and with over 4000 respondents, asked people for their views on the respective roles that government and parliament should have in changing the law – which is of clear relevance to the debates on the REUL Bill.
Respondents were offered the choice between two statements. The most general phrasing, seen by one third of respondents, asked them to consider whether ‘government should be able to change the law without full parliamentary scrutiny’, or ‘parliament should always need to consider and approve changes in the law’. A sizeable majority – 77% – supported a full role for parliament. Other respondents saw one of two more specific variants of the question, asking for their views on scrutiny of ‘urgent matters’ or ‘minor matters’. Here respondents might have been more likely to feel either that a swift and flexible response was important, or that scrutiny had relatively little to add. But, while the proportion of people believing that government should be able to act without full scrutiny in these cases rose, from 4% to 11% and 14% respectively, clear majorities still felt that changes to the law should always require parliamentary approval.
An obvious question is how far party support and Brexit stance affected this response: were the results driven by opponents of the current government? On the general question the effects were visible but relatively minor: only 6% of 2019 Conservative voters and 7% of Leave voters believed the government should be able to change the law without full scrutiny, compared to a vanishing 1% of 2019 Labour voters and Remain voters. Leave voters were also slightly less likely to support a strong role for parliament – at 72% compared to an overall 77% – but there was no effect among 2019 Conservative voters. In all cases, substantial majorities of respondents supported parliament’s role in considering and approving changes to the law.
The effects of party and Brexit stance were somewhat bigger for the questions which asked respondents about urgent or minor matters. Here, Conservative or Leave voters were markedly more likely than Labour or Remain voters to believe that the government would be justified in changing the law without full parliamentary scrutiny: 23% of 2019 Conservative voters and 21% of Leave voters supported this option for urgent matters, compared to just 3% of 2019 Labour voters and 6% of Remain voters.
The results of the question on scrutiny of minor matters followed a very similar pattern.
But, overall, respondents’ consistent approval of parliament’s role in scrutinising and approving proposed legal change was striking. Support for this role was lower among Conservative and Leave voters than among their Labour and Remain counterparts. But even in the group least supportive of parliament’s role – 2019 Conservative voters considering what should be done in urgent circumstances – 53% wanted parliament to exercise full scrutiny. Across all three questions, and across all groups, a majority of respondents (often a large majority) said that parliament should always need to consider and approve changes in the law.
Most people do not know how delegated legislation is dealt with at present. Respondents to the survey did not on the whole answer these questions based on detailed understanding of the role that parliament currently plays. But the survey indicates where people’s basic instincts lie on these issues. For the most part, they do not believe that ministers should be able to act alone in creating law. Rather, they want proposals to be scrutinised openly by their elected representatives in parliament.
Debates over the appropriate balance of government flexibility and parliamentary scrutiny are set to continue as the REUL Bill heads into committee stage in the House of Lords later this month. Our findings suggest that those who seek a more meaningful role for parliament may have public opinion on their side.
About the authors
Lisa James is a Research Fellow in the Constitution Unit.
Alan Renwick is Professor of Democratic Politics at UCL and Deputy Director of the Constitution Unit.
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