Tag Archives: Retained EU Law (Revocation and Reform) Bill

The 2019 Conservative Party manifesto: were its pledges on the constitution delivered? 

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The 2019 Conservative Party manifesto contained a number of constitutional policy commitments – on Brexit, UK institutions, elections, civil liberties, and devolution. As the manifestos for this year’s general election emerge, Lisa James assesses the delivery record of the 2019–24 Conservative governments against the pledges made in 2019. 

The 2019 Conservative Party manifesto contained a wide-ranging set of constitutional commitments. Since its publication much has changed – the UK has left the EU, experienced a global pandemic, and had three Prime Ministers and five Chancellors of the Exchequer. But delivery against manifesto commitments still matters, so with the 2019–24 parliament dissolved, now is the time to reassess the pledges that were made. 

Getting Brexit done 

The single highest profile – and titular – pledge of the manifesto was of course the promise to ‘get Brexit done’. The election followed a period of parliamentary deadlock, and the negotiation of Boris Johnson’s Brexit deal. The manifesto pledged to pass this deal, limit the length of the ‘transition period’ for negotiating new trade arrangements, end the jurisdiction of the European Court of Justice (ECJ) over the UK, and end the supremacy of EU law. 

The Brexit deal was rapidly passed following the Conservative general election victory, and the UK left the EU on 31 January 2020. The pledge not to extend the transition period beyond the end of 2020 was also kept. The deal largely removed ECJ jurisdiction from the UK, but the court retained a continuing role in relation to Northern Ireland as a result of its treatment under Johnson’s Brexit deal (discussed further below). The supremacy of retained EU law (a special category of legislation derived from the UK’s EU membership) was ended by the Retained EU Law (Revocation and Reform) Act 2023. 

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Scrutinising delegated legislation: what can Westminster learn from other parliaments?

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Recent years have seen increasing expressions of concern about whether the UK Parliament has adequate procedures for scrutinising delegated legislation. In a recent article in Political Quarterly, Tom Fleming and Tasneem Ghazi explore the lessons which might be learned from how other parliaments approach that challenge. This blog summarises those lessons.

There is wide concern about the increasing use of delegated legislation in the UK. Delegated legislation is normally made by ministers, rather than parliament. Historically, it has been used to fill in the details of broader policy frameworks set out in primary legislation. But recent years have seen a growing trend of ministers using delegated legislation to implement major policy decisions. This was highlighted as an issue during the Brexit process and Covid-19 pandemic. It has continued under the Sunak government, as shown by the recent bills on industrial action and retained EU law both containing significant delegated powers.

This trend has led to renewed attention being paid to the UK parliament’s system for scrutinising delegated legislation (which mostly takes the form of ‘statutory instruments’). By its nature, this legislation receives less extensive scrutiny than primary legislation. But especially when these statutory instruments (SIs) contain significant policy content, it is important that MPs and peers have sufficient opportunities and means to scrutinise them. That scrutiny may confer greater legitimacy and further government accountability to parliament. It may also highlight technical and policy flaws and ensure that a range of voices are heard in the policy-making process.

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The parliamentary battle over Brexit and the constitution

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Today sees the publication of a new book by the Unit’s Meg Russell and Lisa James, The Parliamentary Battle over Brexit. Here the authors summarise some of its key findings about why parliament was drawn into such controversy over the implementation of Brexit. They reflect on what these events teach us about our constitution, as well as what may need to change in order to avoid repeating such problems, and to mend the damage done.

The UK’s arguments over what became known as Brexit began long before the June 2016 referendum, and continued with increasing bitterness afterwards. Parliament was often central, both as a venue for such arguments, and in terms of disputes about its proper role. It and its members frequently faced criticism and blame. Our new book, published today, charts The Parliamentary Battle over Brexit, from the early pressures for a referendum, through disputes about the triggering of Article 50 and control of the House of Commons agenda, the repeated defeats of Theresa May’s deal, and Boris Johnson’s unlawful parliamentary prorogation, to the UK’s eventual departure from the EU following his deal. The book charts what happened, but also asks what went wrong and whether things could have been handled differently. It reflects on what these events teach us about the functioning of our constitution, and what if anything might need to change.

The book includes a wealth of detail about key political moments, and the roles of different individuals and groups. Here we focus on some of the bigger questions about the lasting legacy of the battles over Brexit for the culture and institutions of UK politics, and particularly for the place of parliament itself. A fuller version of this analysis appears in the final chapter of the book.

Referendums and public participation

The referendum of 23 June 2016 was only the third ever such UK-wide vote (the first being on European Community membership in 1975, and the second in 2011 on changing the House of Commons voting system). The handling of the referendum was the single biggest error of the Brexit process, from which many other difficulties flowed.

Unlike the 2011 referendum, which was underpinned by legislation setting out the detail of the proposed new voting system, no clear prospectus was offered to the voters for Brexit. Prime Minister David Cameron hoped to use the vote – described disapprovingly by the House of Commons Public Administration and Constitutional Affairs Committee as a ‘bluff call’ referendum – to make the question of Brexit go away. Parliament never debated the substance of the question, the government did not detail the options, and civil servants were forbidden from preparing for a Leave vote. Leave campaigners argued at the level of principle, rather than on a specific plan. As one Brexit-supporting interviewee told us, ‘it was only [after the referendum] that different types of Brexit started coming to the fore. Soft Brexit and hard Brexit had never been canvassed before the referendum; the expressions were coined afterwards’. Issues that would soon come to dominate the agenda, such as membership of the Customs Union or Single Market, and crucially the Northern Ireland border, were barely mentioned during the campaign. This left the government – and parliament – in a very difficult position. The different options for Brexit had to be established only after the vote had taken place, and on this the voters had conveyed no clear instruction.

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The public wants parliament to have a central role in legislation, so why does the Retained EU Law Bill enhance the legislative power of ministers?

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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.

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