UKMA’s response to the REUL Bill Select Committee

Yesterday, in the House of Lords, the Delegated Powers & Regulatory Reform Committee published its report on the Government’s Retained EU Law (Revocation and Reform) Bill.

The Bill, which is due to have its second reading in the House of Lords on Monday 6 February, is designed to hand power from Parliament to Government Ministers, who will then decide the fate of up to 4000 laws.

Without subsequent express action by relevant Ministers, every law that has in any part implemented a previously agreed EU Directive will be set to automatically be revoked on 31 December 2023. All such laws have been designated as Retained EU Law (REUL). Included within Retained EU laws are laws that were already in existence long before our membership of the EU, such as the Weights and Measures Act.

Other affected laws include those that guarantee rights to paid holidays and maternity leave, environmental and food standards, air safety regulations, and consumer protection laws.

Even though the scope of this Bill is so huge, only a dozen or so MPs bothered to attend much of the earlier debates in the House of Commons at the second and third readings of the Bill.

The Select Committee’s report can only be described as scathing. It demolishes the Government’s argument that the REUL Bill will re-establish Parliament as the principal source of law in the UK. The report points out that, on the contrary, the Bill undermines Parliament by granting Ministers “extraodinary powers” to dispose of, retain, or re-write laws including powers that involve significant and contentious policy issues, and that “The Bill contradicts pledges by the Government since 2018 that Parliament would be the agent of substantive policy change in these areas.”

Of the six most important provisions containing delegated powers in the Bill, the Committee Report recommends that five should be removed from the Bill altogether:

• Clause 1(2) gives Ministers a power to make regulations (subject only to the negative procedure) to save any instrument or provision of an instrument from automatic revocation under clause 1(1). The matter will be decided by statutory instruments made by Ministers rather than primary legislation made by Parliament. … The powers conferred by clause 1(2), when read with clause 1(1), are inappropriate and should be removed from the Bill.
• Clause 2(1) allows Ministers by regulations to postpone the date (the end of 2023) when any REUL covered by clause 1 will (unless expressly saved) be automatically revoked. Use of this power is apt to be highly significant but is subject only to the negative procedure. … Given the importance of the power, we consider that its use merits affirmative procedure scrutiny.
• Clause 10, which effects a significant transfer of power to Ministers, should be removed from the Bill. It is an unacceptable interference with the position in the European Union (Withdrawal) Act 2018 that substantial policy changes should be for Parliament to decide in primary legislation rather than for Ministers to decide in secondary legislation.
• Clause 12 should be removed from the Bill because it inappropriately delegates legislative power. It gives Ministers powers to legislate to achieve effects that ought instead to belong to Parliament and be achieved in subject-specific primary legislation.
• Clause 15 contains an inappropriate delegation of legislative power and should be removed from the Bill.

The REUL Bill is of direct concern to UKMA on account of its potential effects on weights and measures legislation. Under the Bill, many regulations governing weights and measures are scheduled to be revoked, unless Ministers take express action to retain or re-write them. If enacted, the Bill will remove all of the Parliamentary scrutiny and public consultation that would normally be expected to accompany such legislative change.

In what may have been our last democratic consultative opportunity to prevent potential regressive changes being made to weights and measures legislation, and in a pre-emptive statement in advance of any reckless reversal of metrication attempted by the diktat of Ministers, UKMA submitted the following response to the Select Committee in response to its call for written evidence during the Committee Stage of the REUL Bill:

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Written evidence submitted by the UK Metric Association

The Retained EU Law (Revocation and Reform) Bill

I am writing on behalf of the UK Metric Association in response to the call for evidence concerning the Committee Stage of the Retained EU Law (Revocation and Reform) Bill. Our organisation takes the view that this Bill is not fit for purpose and should be withdrawn forthwith.

As I’m sure you are aware, in the UK, Parliament is sovereign. MPs are elected by the public as their representatives to scrutinise any change to the laws of the land that are proposed by the Government. If this Bill is enacted, it may come to be called “The Surrender Act” – it will in all probability be seen by future generations as the moment Parliament surrendered its sovereignty.

On passing this Bill, Parliament will relinquish all power to scrutinise changes that are being proposed for nearly 4000 UK laws made over a period of 47 years – changes that have not even been presented in any detail to Parliament, changes that Parliament will likely not even get to see before they become law.

More seriously, the default change that MPs will be approving, if this Bill becomes law, is that all these laws will be deleted without public consultation or any further Parliamentary scrutiny, by the end of 2023. The fate of each of nearly 4000 laws will be subject only to the whims of a single Government Minister, without even an official impact assessment to guide them.

We find it difficult to conceive of a more shocking proposal for the abdication of Parliamentary duty in a modern democracy.

The removal of stakeholder scrutiny

Whilst Parliament may be willing to voluntarily surrender its powers of scrutiny in the process of law reform, it should not be assumed that other stakeholders are equally willing to do so.

One of the prime activities of our campaign organisation, is to present our case when we respond to Government public consultations that have, until now, accompanied proposed changes in laws that concern us. This Bill stands to remove completely the right to be consulted on all the changes that are being proposed, many of which are of direct concern to our organisation. Our already limited voice in the process of law making will be completely silenced for these wide-ranging reforms.

The laws set for deletion are described by the BEIS as “EU laws”. This is a misnomer, especially as we are no longer in the EU. These laws are, and always have been, UK laws. It seems that the affected laws have been selected for deletion purely on the grounds that they have been involved in the UK’s compliance with EU Directives made during the time of our membership of the European Union.

A bureaucratic tidying exercise?

If the object of this Bill is to remove an unwanted bureaucratic categorisation of laws being either purely “UK laws”, or UK laws described as being “EU retained laws”, then surely this could be done at a stroke without the need to delete or reform any laws.

Remarkably, this Bill actually fails to remove any needless bureaucratic categorisation. Indeed, Section 6 of the Bill makes it clear that even after being selected for further retention beyond 2023, all so-called “Retained EU laws” would be reclassified as “assimilated laws”. This opens up the possibility of yet another similar exercise in the future regarding all “assimilated laws”.

“Section 6: Assimilated law:
(1) As regards all times after the end of 2023, retained EU law is to be known as “assimilated law”.”

A false need for urgency

The assumption behind this Bill seems to be that, if any law contains even a single paragraph implementing an EU Directive, then that law must be assumed to be against the interests of this country and needs to be deleted urgently. This assumption would be quite wrong, as the UK was not only in agreement with the vast majority of EU Directives, but also played a major role in the wording design and implementation of many of them.

Of course UK laws should always be subject to reform where appropriate, but the Government has not presented any evidence for the need for any urgency to reform these particular 3800 laws. Yet the reality is that under this Bill, they would rather have them be deleted by 31 December 2023, should no suitable replacements be enacted before that date.

Ministers and civil servants are under no obligation to review every single law. If they do not manage to review some laws by the deadline, they will disappear from the statute book by default. Ministers are free to do nothing and can decide not to save any laws on a whim. This is all it takes for these laws to disappear from the statute book without any influence or role for Parliament or important stakeholders.

An example of a law threatened with deletion

Each of these 3800 laws received due scrutiny from Parliament at the time they were made law, over a period of 47 years. As an example of the enormity, dare we say impossibility, of the task of reforming all 3800 laws in the few months that will be available after the Bill’s assent, it is worth considering the example of just one of them. (We are particularly concerned that Ministers might make regressive modifications to this law, which is central to our organisation’s cause. This could be our only chance to comment before that happens):

The Weights and Measures Act 1985 (as currently amended)

Clearly the country needs a Weights and Measures Act. For hundreds of years, there has always been some form of regulation regarding weights and measures. Without such regulation, traders would be free to invent their own measures, and customers would have to carry their own measuring devices wherever they went, in order to compare prices between different traders.

The optimal Weights and Measures Act, is one which authorises for all official purposes, a single system of units only. The use of a single system of units, by definition, also carries the least legislative burden. To a large extent, this is what we currently have. A single system of units for all official purposes, both domestic and for export, maximising consumer protection, minimising the number of different sizes needed for trade, and consequently minimising manufacturing costs. These features all fall within our organisation’s campaign goals.

Under the REUL Bill, the 1985 Act faces 3 possible outcomes:

1. Wholly retained – Depending solely on the decision of the relevant Minister at the time, the 1985 Act could be retained unamended.

2. Deletion at the end of 2023 – This is the default outcome. It would probably result in a chaotic total absence of all weights and measures regulation. However, the 1985 Act itself revoked the previous 1963 Act. So in revoking the 1985 Act, without any other ancillary provisions being made, it is not clear to us whether the previous 1963 Act will become “unrevoked”. There is also the added complication of what happens to other legislation, not affected by this Bill, but which refers to the 1985 W&M Act. The absence of any form of official impact assessment means that MPs are blind to the consequences of their votes on this Bill.

3. The 1985 Act could be modified in some way – For populist purposes, the Minister in charge at the time might seek to re-introduce imperial units into the list of authorised units. This would be a retrograde step for consumer protection, and would confuse a large section of the population who have never used imperial units.

An erroneous assumption seems to have been made by the authors of the Bill, namely, that the deletion of any of these laws will result in a reduction of legislative burden. Section 15 of the Bill even goes on to state that no provision may be made that will result in an “increase in regulatory burden”.

But, for example, if the Weights and Measures Act 1985 is revoked, or rolled back to its previous 1963 incarnation, this would clearly result in an increase in regulatory burden. By definition, the number of regulated units of weights and measures would increase. Any attempt to re-introduce imperial units to the list of regulated units would clearly increase the legislative burden, as described in items a, b, c, and d of Section 15 Subsection 5 of the Bill:

“”burden” includes (among other things)-
(a) a financial cost;
(b) an administrative inconvenience;
(c) an obstacle to trade or innovation;
(d) an obstacle to efficiency, productivity or profitability;”

Re-introducing imperial units would result in:
a) financial costs for trading standards authorities – who would need to purchase new testing equipment; manufacturers – who would need to make changes for revised packaging requirements.
b) an administrative inconvenience – trading standards would need to have to deal with an additional system of measurement units.
c) an obstacle to trade – the introduction of measurement units not used by a our international trading partners would be problematic for existing trade arrangements. And please bear in mind that imperial units are in routine use in no other country in the world – not even the USA, which instead uses ‘US customary units’.

These are just a few of the issues and contradictions that barely scratch the surface of all the ramifications of enacting this Bill into law.

By the time this Bill becomes law, there will be only a few months for Ministers and their civil servants to address similar issues for all 3800+ laws.

Past mistakes

During the EU withdrawal process, Parliament voted to relinquish all ability to scrutinise, amend and approve post-Brexit trade deals – preferring instead to handover all responsibility to Government Ministers. Subsequent events have proved that was an unwise decision.

Having initially hailed the UK-Australia trade deal as a success, on 14 November 2022, George Eustice, the Environment Secretary at the time of the negotiations, admitted in the House of Commons that, “The first step is to recognise that the Australia trade deal is not actually a very good deal for the UK”.

We hope that this lesson will be learned when, yet again, MPs are asked to consider voting away their powers to scrutinise the reform of 3800 laws referenced in this Bill. MPs might want to consider that, if the reform or deletion by Ministers of any one of 3800 laws subsequently turns out to be a disaster for their constituents, it is MPs that will have to deal with the fallout.

The way forward

We would argue strongly that the proposed changes are unevidenced and unnecessary, and that nothing will be lost by putting them, on hold. If they must proceed it should be borne in mind that a great deal of care must be taken over the process. There is little spare capacity in the Civil Service, especially at a time of major cutbacks in staffing. The laws in question were passed over the 47 year period of our membership of the European Union. It may take a similar period of time to undo them. An appropriate sunset date, therefore, would be approx. 31 December 2070.

UK Metric Association, November 2022

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Further reading:

UKMA’s written evidence submitted to the Select Committee can be viewed on the Parliamentary website at this link:
https://publications.parliament.uk/pa/cm5803/cmpublic/RetainedEULawRevocationReform/memo/REULB67.htm

Delegated Powers and Regulatory Reform Select Committee
Retained EU Law (Revocation and Reform) Bill
https://publications.parliament.uk/pa/ld5803/ldselect/lddelreg/147/14703.htm

Retained EU Law Bill will damage UK’s reputation, says Bar Council
https://www.politicshome.com/members/article/retained-eu-law-bill-will-damage-uks-reputation-says-bar-council

HOUSE OF LORDS – Secondary Legislation Scrutiny Committee
Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill
https://committees.parliament.uk/publications/33847/documents/184833/default

Retained EU Law (Revocation and Reform) Bill
https://bills.parliament.uk/bills/3340/stages