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Chamber and committees

Constitution, Europe, External Affairs and Culture Committee

Meeting date: Thursday, June 30, 2022

Agenda: Implementation of the Ireland/Northern Ireland Protocol, Retained European Union Law


Contents


Retained European Union Law

The Convener

Item 2 is consideration of the subject of retained EU law. This is the fifth and final session in a series of meetings focusing on post-EU constitutional issues.

I welcome Professor Kenneth Armstrong, professor of European law at the University of Cambridge, and Michael Clancy OBE, director of law reform, Law Society of Scotland, both of whom are joining us online. In the room, we have Dr Tom West, researcher with the Hansard Society; Dr Emily Hancox, lecturer in law at the University of Bristol school of law; and Kirsty Hood QC from the Faculty of Advocates. You are all very welcome. I hope that we can manage a panel with this number of people online. Our colleague Mark Ruskell is also joining us online.

We have four themes to cover. Our first theme is how best to understand retained EU law as a category of domestic law and the significance of the status that is attached to it. I will invite Professor Armstrong to start us off.

10:30  

Professor Kenneth Armstrong (University of Cambridge)

I have not submitted any written evidence thus far—I hope to get you something by the end of today.

When we think about what retained EU law is, one thing that is important for us to keep in mind is the substance of what that is. I think that we will talk a lot today about the status of it constitutionally and maybe the processes for its change and modification, but the substance of it is quite important. It embodies a particular European model of the regulatory state, which grew up post-war and accelerated through the 1980s with the EU single market programme. It is a model of regulation that says that trade between states should be free but also fair in the sense that the market is regulated.

The UK domesticated a large body of law, extending way beyond just the internal market to include all sorts of other aspects of EU law. Of particular interest to the Parliament are the regulated market aspects of that and the regulatory powers that are involved in that. That model of the regulatory state was retained—that is, the idea that we have free trade but under regulatory conditions to protect consumers, the environment, animal and human health and so on. Therefore, one of the key questions that the committee might want to explore is: what happens when that body of rules is then changed? What type of regulated economy will we move to, and who has control over that? We can begin to see divergences between the position being taken by the UK Government and its a desire to diverge and move away from that European model of the regulatory state and the Scottish Government’s keeping pace power and desire to remain closer to and aligned with that model of the regulatory state.

Given the conversation that I think that we will have this morning, I do not want us to lose sight of the substance—that is, that there are substantive rules to protect individuals and consumers, and to provide fair competition. We need to have a conversation about how that body of rules will evolve and change for the economy not only of the UK but of Scotland.

The Convener

Thank you. Before we move on, I offer my apologies for not mentioning that Professor Tobias Lock, who is a committee adviser, has also joined us and may take part in the discussion.

I ask Kirsty Hood to comment.

Kirsty Hood QC (Faculty of Advocates)

I am coming at the topic very much from the point of view of a lawyer. I think it important to understand and see it from that perspective. When the UK was an EU member state it was subject to EU regulation and legislation, and it was necessary to have a way of deciding what took priority over what. Supremacy of EU law is, perhaps increasingly in some quarters, used in quite an emotive sense. That is very unfortunate, because some of the written evidence brings out that that is purely a way of trying to arrange and prioritise rules from different sources. While we were an EU member state, the UK and all the various parts of the UK, including Scotland, were subject to EU law that took effect in a variety of ways. Sometimes, that was because the United Kingdom or parts of it legislated to give effect to that. Sometimes, if the EU legal instrument took a particular form, that would take effect directly without the need for any of the Parliaments in the UK to take any action.

At the time when the decision was taken to come out of the EU, we had a situation in which, among the tapestry of law in the UK and all its parts, we had EU laws as various threads of that tapestry. That raised an issue in the legal system as to what was to be done about that.

As is quite normal with constitutional change, it is not necessary to have a complete reset of the law. It is not necessary and, indeed, I think that it would be quite unusual when there is constitutional change, however far reaching, for laws to be simply repealed or revoked. Unsurprisingly, as has happened on many occasions before, and particularly to avoid any cliff-edge change or vacuum, it was provided for that the various strands of the tapestry of the law that had been derived from the EU would remain part of the law in the UK. That would allow the various Parliaments, depending on their powers in the areas, to decide, at leisure, whether to retain, amend and make that law fit better perhaps with a new situation, or to revoke it altogether.

Of course, even at the end of the transition period, it was immediately apparent that some pieces of EU law would not be suitable for retention. Some of them, for example, relied on reciprocity. For example, on judgment recognition, the idea that there should be a free flow of legal judgments between EU member states, relies on everybody recognising each other’s judgments. A consequence of coming out of the EU and not making a new judgment recognition arrangement with the EU was that those things could not be given effect to unilaterally; they would stop working.

There were some things that immediately were not retained as at the end of the transition period or implementation period, depending on the particular text description of that period. Other things were simply retained in the system, allowing the various Parliaments the leisure to decide whether they want to alter that law or retain it.

I suppose that alteration could mean a number of things. That could mean altering the law because, in a new situation or reality, it perhaps seems inappropriate. It could also be that, when we think about retained EU law, we are thinking about EU law roughly as it was at the end of the transition period. Of course, given the keeping pace agenda, that could also mean changing retained EU law to keep pace. Obviously, EU law is not preserved in aspic; it will change as we go through the years.

From a lawyer’s point of view, it is important to try to remove some of the emotion and just to see EU law as part of our membership. We were in the EU for a long time. There are a great many different laws—sometimes, those are very detailed and technical—across many areas of our legal system, and various legal devices were used to keep that in the system. Those can be kept or changed.

This will be my final comment on the issue. On the supremacy of EU law—the idea that you had to try to prioritise if, on the face of it, there seemed to be a conflict between a domestic statute and the pan-European—that concept is woven firmly into the tapestry. If courts have to look back at what the law was while we were in the EU and look at how the law operated at that time, it seems to me that it would be quite normal and necessary for a court to consider how those particular phrases in EU legislation were interpreted and to approach the way in which they interacted with domestic legislation while we were a member state in the way that they always did. That gives some certainty to litigants and general members of the public.

Dr Emily Hancox (University of Bristol)

I want to make two points on my thinking about retained EU law. The first is about what retained EU law is and why we retained EU law. That is really about legal continuity and legal certainty. In that way, although I would say that retained EU law is a category or source of domestic law, it is quite a disparate source. We find retained EU law not only in statutory instruments and in acts of Parliament; we also have the new converted categories, such as direct EU legislation, which cover, for example, EU regulations that previously took effect by virtue of the European Communities Act 1972, and other converted rights such as treaty rights. If you look at the retained EU law dashboard, you can also see some case law and general principles in that residual category.

In some ways, retained EU law as a category was necessary to convert legislation or EU regulations where otherwise the conduit pipe of the European Communities Act 1972 would have been cut off. Retained EU law also reflects the fact, as has already been mentioned, of the principle of supremacy or primacy of EU law, and the various requirements in interpretation of EU law and domestic law. There are various legal consequences that attach to a measure falling in the category of retained EU law. That all reflects a desire to maintain legal certainty and continuity following the UK’s departure from the EU.

Another important point to make—this perhaps reflects some of Professor Armstrong’s comments—is that retained EU law was never intended to be permanent. The idea—this was always the intention—was to provide a springboard for introducing new policy choices. That has been done in Scotland and by the UK Parliament. Although there is provision for amending deficiencies in retained EU law in section 8 of the European Union (Withdrawal) Act 2018, retained EU law does not benefit from the principle of supremacy going forward. New acts of Parliament, and new statutory instruments, where they have the power to amend acts of Parliament or other sources of law, can amend retained EU law.

It is important to think about the issue in those two ways. One is a way of ensuring continuity and legal certainty; the other is allowing for change. I think that one of the things we will come on to is how change might best happen, but I will leave my remarks there for now.

Dr Tom West (Hansard Society)

We have ended up with the category of retained EU law because of the events of the past few years. On the one hand it is an integral part of domestic law—it is part of the tapestry and is very much part of the law, how it works, how we regulate and so on. On the other hand, it is a distinguishable and identifiable category: there is a thing called “retained EU law”. For the most part, if someone was to ask the question, “Is this retained EU law or not?” we would be able to say yes or no, although there will be some edge cases for which that is difficult.

The question whether something is or is not retained EU law by no means tells the whole story about what retained EU law is. As we have already heard, it is a very diverse body of law; it is not a uniform set that you can look at and say that it is all the same, because it goes from EU treaties, directives and regulations down to some very technical implementing regulations. There is a swathe of it. The first point that I want to get across is that although we can say that there is a thing called “retained EU law”, that is only part of the answer to the question that we need to ask. We also need to think about what else we need to know.

10:45  

The particular reason why I want to draw attention to that is the question of the status of that law. In particular, our interest and concern at the Hansard Society is what that means for the law’s future amendability and for parliamentary involvement in that. I know that we will talk in some detail about that later, but just as a starting point I will say that a result of the non-uniformity and diversity of retained EU law is that it is unlikely that there will in the future be a one-size-fits-all approach to amending it, updating it, replacing it, repealing it and so on that will be appropriate for all parts of retained EU law. Some of the very technical implementing regulations from the European Commission, which are perhaps analogous to secondary legislation here in the UK, might warrant a relatively light touch way of amending them, but there will also be quite significant overarching legal rules and principles that might warrant greater oversight and scrutiny by Parliaments across the UK.

That is crucial, because if that oversight is not there—in our wider work on delegated legislation, our research focuses on the Westminster Parliament—the processes for scrutiny by Parliament are not up to scratch and too often allow important changes to be made to the law without enough oversight by Parliament. A mismatch with retained EU law is of concern, from our point of view.

Michael Clancy OBE (Law Society of Scotland)

Good morning, everyone. It is tempting to offer a critique of what we have already heard and I probably should forbear from that, but let me pick out some of the themes that have come out of the discussion so far.

On the reason for retained EU law, as I mentioned in the Law Society’s submission—I apologise for its arriving rather late yesterday—when Theresa May discussed the UK’s withdrawal from the European Union in a white paper, she spoke about requiring certainty after the UK left the European Union. One of the main things that the Law Society of Scotland was advocating for when the build-up to the referendum was taking place was that if the UK was to leave the European Union there should be certainty about the law. No matter what that law was, it should at least be certain, after the day, because people require certainty and knowledge about the law.

I hear what Dr West said about the diversity in retained EU law. Of course, there was diversity in EU law too, so sometimes we have to realise that it was not always absolutely certain what was applicable at a particular point. We had access to the European Court of Justice to determine on points on which there might have been doubt about the applicability or interpretation of the law that was in place.

Obtaining certainty was important; retained EU law is the legislative mechanism for trying to get that certainty. Of course, it is not certainty as it was with the EU law that existed before, because it is not EU law as it was before. I can go into great detail, as everyone around the table can, about the various categories of retained EU law, EU-derived domestic legislation, direct EU legislation and other rights and obligations, and those parts of EU law that have been left behind, such as the Charter of Fundamental Rights of the European Union.

Retained EU law is not the same as EU law was because of those exceptions and because of the mechanisms in which it has come into being, through acts of Parliament in the UK Parliament and the Scottish Parliament, and through subordinate legislation. As we accept that it was never intended to be a permanent state of affairs to have retained EU law in all its manifestations—as we see under the European Union (Withdrawal) Act 2018—it is fair to say that the question of when and how retained EU law is changed is what confronts us today. As we have heard already from some of the participants in the conversation, the UK Government has stated its intention to introduce a bill and to use Mr Rees-Mogg’s preferred nomenclature for that bill, which is “the retained EU law bill”. We need to await the introduction of that bill to see what it contains, what the timetable is for removing retained EU law from the policy and legal landscape, how that removal will take place and what further elements of domestication will be needed.

I will leave off on discussion of that point just now, convener, because I know that we have run into time that is precious for us all.

The Convener

Thank you. I will turn briefly to Dr West on his comments about scrutiny and consent, and how the Sewel convention is being interpreted at the moment. Where will it leave the Scottish Parliament and this committee, which are responsible for scrutinising the Scottish Government, if EU law in devolved areas is amended through that process?

Dr West

Of course, if the UK Government introduces a bill in the UK Parliament that is seeking to touch on devolved areas, that will go through the normal Sewel process. The bit that we do a lot of work in and in which we are interested is the question of what happens when there are UK Government powers to make delegated legislation that will affect retained EU law in devolved areas? That does not just apply to retained EU law, but might be particularly felt within that area.

There is not a clear process that has to be gone through for the UK Government to lay UK statutory instruments that might affect devolved areas. The powers will often—in fact, normally—have requirements to consult or, rather, to require the consent of Scottish ministers, and one would expect that to be part of what you would see happening in respect of any such powers. There is then a question about the involvement of the Scottish Parliament. There is a protocol in place, which was first put in place as a result of the European Union (Withdrawal) Act 2018, to make sure that the Scottish Parliament is involved in the giving of consent by Scottish ministers to such statutory instruments. That has been expanded to include other areas related to EU law, which look to me as though they would probably be co-extensive to retained EU law. However, again, you might find some edge cases that would not. That appears to be the case.

This is all within the context, as I said earlier, of the Hansard Society’s research and on-going projects, through which we find that scrutiny of UK statutory instruments in Westminster does not, in our view, provide for adequate oversight by the legislature of Executive action to make regulations. It is all plugging in to an overall system that we think does not give enough democratic accountability. There are clear constitutional democratic risks to that when there are important changes. This relates to what has been said about the diversity of retained EU law and the fact that potentially quite significant and long-standing aspects of the domestic legal framework are contained within retained EU law. There is the potential for powers to change those aspects through a mechanism that does not give the democratic oversight that we think is commensurate with changes such as might be made.

Of course, as we have heard, we need to wait to see what the bill says, what it looks like, how it is designed and other important questions, but our concern is that it is not designed correctly to include the appropriate scrutiny.

Michael Clancy

Dr West is correct that there is an issue about subordinate legislation; under the devolution arrangements, the Sewel convention—or legislative consent convention—does not apply to subordinate legislation. Devolution guidance note 10 makes that pretty clear and has made that clear since the earliest days, when the guidance note was produced.

What we are left with is that UK legislation can contain a power for UK ministers, as Dr West described, to make subordinate legislation that can apply in Scotland. I do not need to remind the committee of the trials and tribulations that it faced in consideration of the United Kingdom Internal Market Bill, now the United Kingdom Internal Market Act 2020, or the Professional Qualifications Act 2022, which contained pretty similar provisions for UK ministers to be able to make subordinate legislation. That subordinate legislation is then put to the Scottish ministers for consultation and for their consent, but if Scottish ministers do not consent within the specified period of time, the UK Government can proceed with the legislation, setting out a statement that clarifies why it has decided to proceed without the consent of Scottish ministers.

That is a specific arrangement and is not the arrangement that applies more generally. If UK ministers have, within an act of Parliament, been loaned the powers to make regulations, they may do so. If the act does not prescribe procedures, there might be no interaction with the Scottish Government or, indeed, the other devolved Administrations, necessary.

That is important. The lack of, at the very least, a proper consultation arrangement is one of the things that the Law Society has been very concerned about, not only in terms of connectivity in respect of UK ministers enacting subordinate legislation that might apply in devolved areas, but in terms of the actions of Scottish ministers in making regulations on which they, too, should consult relevant interests.

It would be fair to say that in circumstances under UK legislation such as the Professional Qualifications Act 2022 or the United Kingdom Internal Market Act 2020, the requirement on seeking consent but then being able to make a statement on consent not being obtained and the need to proceed, needs substantial consideration of whether it is sufficient for purpose.

Alasdair Allan

Good morning, Mr Clancy. It is good to see you again at the committee. The Law Society made a written submission, which you alluded to there, that made some interesting historical comparisons with 1560, 1707 and 1999 as dates when bodies of law were retained. It is a bit more complicated this time, is it not? The question as to who gets to amend the body of preserved legislation is perhaps subject to more contention and more questions. Can you see that being a contentious issue in future?

Michael Clancy

That depends on the parties involved and whether they intend to be contentious. Let us remember, for example, that the provisions of the European Union (Withdrawal) Act 2018—originally in clause 11 of the bill and then in section 12 of the act—that related to the removal of the competence constraint on the Scottish Parliament and the other devolved legislatures of compliance with EU law and established a position where UK ministers could essentially freeze any attempt by the devolved legislatures to enact legislation that would affect retained EU law, have all been done away with. The relevant statutory instrument that was passed earlier this year essentially allowed section 12 to slip into memory rather than be anything that bit on the competence of the Scottish Parliament to legislate. It is open to the Scottish Parliament to legislate on such orders as they applied within devolved areas.

11:00  

I think that the element of contention that you refer to in that sense has been quietly forgotten about. There was a lot of concern when the European Union (Withdrawal) Bill was going through, but there was hardly a mention of the removal of the freezing powers by UK ministers. Maybe that indicates that the nature of the debate has moved on.

Do others want to come in on the question about the potential for contention over which Parliament amends these laws in future? Professor Armstrong is volunteering. You are muted, I think.

The connection might be a bit sticky. Can we persevere for a few moments?

Professor Armstrong

Sorry, can you hear me?

Yes, we can. Can we switch the video feed off? That might help. We can hear you, but the video connection is sticky.

Professor Armstrong

As they say, I have a good face for radio.

I will go to Kirsty Hood first and then we will try to come back to Professor Armstrong.

Kirsty Hood

To some extent, the potential for contention, apart from on one particular aspect, need not particularly come from the status as retained EU law but might arise simply because it holds a mirror up to the potential for contention more generally, for example over issues to do with the Sewel convention and the extent to which that is enforceable, and the way in which that is given effect to technically. These are matters that apply more generally.

To some extent, the potential for contention is perhaps just what is always there, subject only to the one particular additional aspect, which is not so much to do with the strict, narrow retained EU law idea but comes from the generality of the situation. The pan-European apparatus, in which there is a need for consensus and flexibility among a number of states of different sizes with very disparate interests, is perhaps quite a different space for the Scottish Parliament to operate in from a much tighter internal market comprising only four different systems—England, Wales, Scotland and Northern Ireland—in which one particular part is, in geography and population, a great deal larger than the other three. That brings quite a different situation. Other than that, this issue may emphasise themes, but they are probably themes that are already there.

Dr Hancox

I want to echo what has already been said. We do not know what form this new bill will take or what the power to amend retained EU law is, but even if it does not include powers to amend retained EU law in devolved areas, we have to think about the different levels of governance now. In particular, we have to think that, if there is a wide-ranging power even just to amend retained EU law, particularly through statutory instruments in England, say, or in areas that do not touch on devolved matters, that will still have to interact with the Scottish policy of dynamic alignment with EU law in some areas and with common frameworks. Even if it is just change within England, I think that there is still quite a lot to be concerned about from a Scottish perspective. I suppose that it does not go to the contention point, but I think that it is contentious regardless.

Professor Armstrong

I want to recall the importance of the common frameworks programme. The common frameworks were deliberately a mechanism for dealing with modifications to retained EU law, to deal with the kinds of issues that have been discussed already about how we have mechanisms for co-operation and co-ordination between different levels of Government—between Westminster and Holyrood. Those are there as a way of trying to provide the channel of conversation about the kinds of policy changes that may happen, but of course a number of questions arise. One is about policy difference where there are very clear differences between what the UK Government wants to do in changing that model of regulation and what the devolved Administrations may want to do.

There is also then the question about parliamentary scrutiny. Those intergovernmental mechanisms are good in the sense that they provide that channel of co-operation and adjudication, but it may be very hard for Parliaments to get a handle on what kinds of agreements emerge out of those types of processes. For example, you talked about gene editing in an earlier discussion. At what point do we find compromises there and what sort of parliamentary oversight is there on when rules will remain aligned internally within the UK and when they will diverge?

I thought that it was important to remind us that the common frameworks programme is there. It is intended to be a structure for co-operation and communication, but in and of itself it raises some of the same types of challenge that Dr West was talking about in the scrutiny of secondary legislation.

Alasdair Allan

Dr West and Ms Hood touched on the Sewel convention. I will not speak for too long about the Sewel convention, but I am interested to know your views about whether you feel that it will be a real thing in the future, or whether you feel that it has been tested to breaking point already. This week, the Parliament has made pretty clear what it is likely to do with the Northern Ireland Protocol Bill in terms of consent. Is the Sewel convention a real factor in how these relationships are played out in future, or do we use the past tense about the Sewel convention?

Dr West

That is a very good question and I am afraid not one that I will be able to say much on, other than to say that, obviously, it has to date been a very important part of the devolution settlements. If, as you suggested, it may be becoming a thing of the past, there would need to be serious consideration about what happens next.

Kirsty Hood

If one thinks back to when the Sewel convention first came to life, it was thought to be quite powerful, if not in its legal status in how it would operate. When it was given the particular altered legislative form, that was thought to have strengthened it further. I think that “tested to breaking point” is quite a good phrase, because it appears from the Supreme Court decision that the position on legal enforceability is as we know now. Therefore, it comes very much to how the various Parliaments and Governments work together. The withdrawal from the EU and the very different popular votes in the various parts of the United Kingdom on such a large issue have put the Sewel convention very much into the fire on such a controversial and far-reaching issue.

Donald Cameron

I refer to my entry in the register of members’ interests as a member of the Faculty of Advocates. I enjoyed the historical references in the faculty’s and the Law Society’s submissions. Unlike Alasdair Allan, I seem to recall the reformation being fairly contentious, too, but that aside, I will ask about the issue of EU supremacy.

As we know, the principle is that, if there is inconsistency between EU legislation and domestic legislation, EU legislation has primacy. Retained EU law effectively operated as a kind of copy and paste on to the statute book and yet maintained supremacy prior to completion day. That seems to me to create quite a unique situation, because it basically creates a kind of hierarchy within law that has the same status. It is all domestic legislation now, yet there is a hierarchy within it. There are also two different approaches of statutory interpretation to law that has the same status. That may be negligible in the amount of law that it affects, but do people have reflections on that and, perhaps more importantly, given the UK Government’s stated intention to end supremacy, how is that done practically in the situation that we now find ourselves in? I will start with Dr Hancox, because I think that she has written about this.

Dr Hancox

Thank you very much for your question. In a sense, I agree that, now that retained EU law is simply domestic law, it might seem a bit unusual to give it supremacy or primacy. I think that it is a smaller issue than it might seem at first glance, in part because the principle of supremacy does not attach to any new acts of Parliament. It is a sort of conflict rule that is dealing with historical acts. It is not that it is not still important: there have been two recent cases in which, for instance, the Court of Appeal and the High Court have disapplied aspects of, in particular, the Investigatory Powers Act 2016 for being incompatible with the UK general data protection regulation. The issue that arises is that, if we remove the principle of supremacy, that might then interact with existing policy frameworks. For example, if we remove the principle of supremacy, we have to think about the fact that the UK might then be acting incompatibly with the GDPR and about what that means potentially for the UK’s adequacy decision. I wonder whether this is a question that courts should be answering rather than it being part of legislative policy.

On different approaches to interpretation, it is unclear to me, at least, that removing the principle of supremacy from retained EU law would change how it is interpreted. In the recent Allied Wallet case, the court said that the Marleasing principle of interpretation—the principle that we should interpret domestic law as far as possible compatibly with EU law—is part of retained case law. I think that there are a lot of different issues bound up here. It is easy to remove the language of supremacy to say simply perhaps that all retained EU law should be taken as enacted in 2018 or something like that; in that way, you keep the legal continuity and legal certainty. What you do about interpretation is perhaps more complicated, because I think that it is separable from the principle of supremacy, and it might not make sense before there have been more wide-ranging policy changes to necessarily change how retained EU law is interpreted. I will end there. Thank you for the question.

11:15  

Professor Armstrong

I want to remind everyone again that retained EU law is not only the substantive legacy of EU membership, but the constitutional legacy. The principle of primacy performed a particular function in EU constitutional order: it ensured the effectiveness and uniformity of the operation of EU law across 27 member states. Domesticating that in UK law does not necessarily make a whole heap of sense going forward.

As Dr Hancox identified, the use of the term “supremacy” is a distraction. It is a priority rule that says, between two different rules, which norm should prevail in the event of a conflict. You might want to have rules about that that relate to different types of sources of law, but I think that it extends more widely than the question whether it has its origins in EU law. In an odd way, I think it overconstitutionalises an awful lot of bits and pieces of rules and regulations that are not particularly significant and would not necessarily need to have any particular kind of constitutional protection against implied repeal.

In other words, we need to think about under what circumstances we would want to have constitutional rules about implied repeal of rules rather than simply holding on to the primacy of EU law in and of itself as a concept. In a way, I think that this is an area where we need to have a grown-up conversation about what exactly has been retained and why that principle is there, and whether it performs any useful function in our constitutional order and as a way of dealing with the operation of the body of retained EU law as it evolves and changes in the future.

Professor Tobias Lock (Committee Adviser)

Briefly, if I remember correctly, the House of Lords committee at the time objected to supremacy being in the European Union (Withdrawal) Bill and proposed that everything should have the status of primary legislation instead, which of course would have overconstitutionalised things even more. If the supremacy principle falls away—for which perhaps there are good reasons in the long term—it might be good to think very clearly about which pieces of what was retained EU law, which will be retained under a different name, should be protected in a certain way, whether that is by putting it on a primary legislation footing or by introducing some form of protection, perhaps in those individual pieces of legislation. That would be difficult, of course, because you would have to go through the entire statute book of retained EU law and prioritise certain policy decisions or elements over others. However, I think that that might be a way of resolving the situation in a less sweeping manner.

Unfortunately Thursday morning committees do not have any flexibility to run on, and I am very conscious that we have about 10 minutes left.

Sarah Boyack

I want to follow up the answer that we have just had. From a devolved perspective, what specific issues could arise from changing the status of, and basis for amending, retained EU law that should be taken into account in the future? I am thinking particularly of our job as a committee. We have already heard comments about scrutiny and the challenges in that regard. What areas do you suggest we start focusing on? Scrutiny has been mentioned by a couple of our witnesses, such as Dr West, but I will continue with Professor Lock. What topics should we be focusing on and prioritising?

Professor Lock

We have to distinguish. On the one hand, we will have scrutiny of things that happen at UK level, and I think that probably the greatest danger is that there might be a black hole there. If a policy decision is taken by the UK Government, how do you ensure that there is devolved input? If a decision is taken at Westminster in primary legislation, you could say that we have Scottish MPs in the room and all of that, so there is some potential for devolved input, but there is less of that potential if it is Government legislation. I identify that as probably the biggest issue.

In Scotland, I think that it will be important for the committee to continue what it has started to do already in holding the Government to account and for proper scrutiny to happen in this house if the Government is given powers of amendment or replacement of retained EU law.

Sarah Boyack

That is very clear.

We have talked about cross-parliamentary liaison before. For example, we have the parliamentary focus with UK parliamentarians talking to the European Parliament—we are in the room, but we do not have speaking rights. Should committees in different UK Parliaments have such conversations among themselves, given the sheer weight of potential legislation, to share best practice or concerns?

Professor Lock

It makes sense to share experience and expertise because there is a danger of being overwhelmed with the sheer volume. The dashboard is a very helpful thing. It has been slagged off a lot on Twitter and all of that, but I think that it is a very good resource because it gives an idea of what is there. There is a danger of being overwhelmed and of different policy approaches being taken in Wales, Northern Ireland—if they get back to having a sitting Assembly—and here. It might be a good idea to try to co-ordinate, including on the internal market act, which also has repercussions.

Dr West

I am aware of time so I will try to be as quick as possible.

In addition to what has been said, I think that scrutiny of UK statutory instruments is very important. I know that the Delegated Powers and Law Reform Committee is interested in the operation of the protocol between the Scottish Parliament and the Scottish Government. It is certainly something to focus on. However, there is an issue with timing. What information should the Scottish Government and the Scottish Parliament receive from the UK Government and the UK Parliament, and at what point? It is not straightforward to work out the right sequencing to allow meaningful scrutiny to take place here while respecting the fact that these are UK Government instruments to be scrutinised by the UK Parliament.

There are three other issues that I think are worth thinking about. One is that there are ways in which retained EU law may now be amended through delegated powers that existed pre-Brexit. A number of statutory instruments are retained EU law. Many of them are made under the section 2(2) European Communities Act 1972 power, but many are made concurrently with other powers, and some of those still exist. Previously, they could be exercised only within the confines of EU law but, of course, that is no longer the case. To some extent, the scope of those powers has altered almost indirectly as a result of Brexit. I think that what happens with those is an interesting thing to consider.

On new powers, whether in the Brexit freedoms bill or in other bills, there is also a question about how long the new powers will last. There is some uncertainty about whether those powers will be one-off or sunsetted powers that will allow a decision to be made to repeal or do a one-off update and then, in a certain amount of time, they will go, or whether they are to be indefinite powers. If it is the latter, that potentially gives on-going policymaking power to the Executives. That is another area that is worth thinking about.

Finally, something that we look at in our general work on Parliament—as I said, our work is focused on the Westminster Parliament, but similar principles may apply—is the idea of sifting statutory instruments. Many are technical, uncontroversial and do not require significant amounts of time to be spent looking at them, but some are not. We think that mechanisms that allow Parliament to be able to identify those that are worthy of greater attention and those that do not necessarily need that attention are valuable. A number of those have come into play through Brexit; in Westminster they come under the 2018 act, but there are also sifting-style functions related to powers under the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. I think that it is worth the committee looking at that in terms of retained EU law but also in terms of delegated legislation more widely.

Michael Clancy

I agree entirely with Dr West’s analysis of sifting. It was quite clear that a great deal of work had to be done to put retained EU law in place and, therefore, one can with some confidence state that to unwind retained EU law will require a great deal of work also. That requires legislatures—not just the Scottish Parliament, but the UK Parliament and the others—to make sure that the processes are robust, that they engage with those who will be affected by potential changes and that that engagement is real.

That takes us back to the idea of supremacy. An issue that I suppose one would want to raise is that supremacy applies to pre-exit legislation, not post-exit legislation. I am trying to figure out in my head what kind of conflict there is with having supremacy in pre-exit legislation and how that works with the declaration of the sovereignty of the UK Parliament, which we find in the European Union (Withdrawal Agreement) Act 2018. I think that that is part of the key as to why supremacy will also be targeted in the retained EU law bill.

Kirsty Hood and Professor Armstrong want to comment. We are very tight for time, so please be succinct. The last word will go to Professor Armstrong.

Kirsty Hood

I echo what has been said on the importance of scrutiny. It is important to remember that legislation that was passed through the European Union involved scrutiny, and that that scrutiny involved the United Kingdom and many other countries.

I will be very brief, but I have two other points to stress. My first point picks up on what Michael Clancy has just said and is about certainty and continuity. We must remember that, where we are preserving hierarchies that were in place in terms of how we understood, applied and interpreted the law prior to withdrawal, it provides certainty and continuity for members of the public to maintain that apparatus in a sensible way.

Finally, when you are thinking about these topics in future, I want to stress again something that many people have said. It is important that we do not think of EU law and retained EU law as some sort of monolith. It covers such a wide subject area and there is a very wide range of different sources and ways in which that legislation came into being.

Professor Armstrong

I have one very quick point. Kirsty Hood spoke earlier about legislatures being able to make modifications at their leisure as circumstances evolve. In the retained EU law bill, I think that we will need to look out for more automaticity in relation to the sunsetting of retained EU law, which would mean that legislatures at different levels would have to think very carefully about what they want to put in place to replace any of the retained EU law rules. I do not know whether that will be a feature of the bill, but if it is, it will require action by legislatures and, therefore, engagement by committees in what would replace those rules in the future.

The Convener

Thank you very much. I thank Professor Lock for joining us as our adviser this morning and everyone else who has contributed to our panels. We will consider a draft report covering all five of our round tables on these areas—the report will be available after summer recess.

Before we close, I thank members for their constructive and consensual approach to the committee’s work over the past year. It has been demanding, productive and rewarding. I thank our parliamentary staff and our advisers for their support. I wish everyone a good recess and send special good wishes and congratulations to our colleague Maurice Golden, who is not with us today. Enjoy the summer. On that note, I close the meeting.

Meeting closed at 11:30.