Retained EU Law Bill - letter to the UK Government: 8 November 2022

Rt Hon Grant Shapps MP
Secretary of State for Business, Energy and Industrial Strategy
1 Victoria Street
London
SW1H 0ET

Dear Grant,

I write to congratulate you on your latest appointment. I hope that we can find a way to work constructively and respectfully together where our portfolio interests overlap.

The Scottish Government has today lodged a Legislative Consent Memorandum with the Scottish Parliament, in which we recommend the Parliament withhold consent for the UK Government’s Retained EU Law (Reform and Revocation) Bill. I wish to reiterate my deep concern and the fundamental opposition of Scottish Ministers to the Bill, which I expressed to your predecessor, and to restate the changes to the Bill requested by the Scottish Government.

This Bill puts at risk the high standards people in Scotland have rightly come to expect from EU membership. The UK Government appears to want to row back 47 years of protections in a rush to impose a deregulated, race to the bottom, society and economy. This is clearly at odds with the wishes of the vast majority of the people of Scotland who will be dismayed at the direction the UK Government is taking our country.

This Bill also represents a significant further undermining of devolution. By allowing UK Government Ministers to act in policy areas that are devolved, and to do so without the consent of Scottish Ministers or the Scottish Parliament is in direct contradiction to the intent of the devolved settlement. Despite repeated assurances from UK Ministers that the Sewel Convention would be respected, changes to the Bill that would ensure respect for devolution have so far been resisted by UK Government. I know this concern is shared by Welsh Government.

The speed at which the legislation is being pursued is also nothing short of reckless, compounding the recklessness of the propositions themselves. Indeed, one of the most alarming clauses of the Bill is its wholesale ‘sun-setting’ of most of retained EU law by 31 December 2023, whereby these standards and protections, which have served the people and businesses of Scotland so well, would fall away from domestic law and no longer apply. Such a rushed ‘sunset’ date carries an unacceptable risk that vital law, on which the smooth functioning of sectors of the economy and society depends, simply drops off the UK statute book. This includes rights for pregnant women at work and requirements to label food for allergens. It is a matter for deep regret that whilst COP27 is underway environmental groups such as RSPB Scotland and Greener UK are concerned the Bill will ‘derail urgent action to tackle the nature and climate crisis’ and begin ‘ripping up our most important nature protections in Scotland’.

I am grateful for the constructive engagement at official level despite our fundamental concerns regarding this Bill. However, I will again set out to you the amendments we are seeking – which will, at least to some extent, mitigate the damage this bill will cause.

Firstly, on the basis of repeated assurances that it is not the intention for UK Government Ministers to act in areas of devolved competence, the Bill should be amended so that it does not apply to devolved matters in Scotland. That will allow the Scottish Government and Parliament to consider how to handle retained EU Law about devolved matters in Scotland. My officials can work with yours to design an appropriate amendment and arrangements to ensure smooth interaction of the law across the reserved/devolved boundary.

Secondly, the Bill as introduced includes a power for UK Ministers to extend the sunset date to 2026. Mr Rees-Mogg explained to me in our meeting on 28 September that the intention is for the extension power to be exercisable by the Scottish Ministers in relation to devolved matters, although this was subsequently rescinded. I would be grateful for your consideration and input to this important change to the Bill.

Thirdly, we have serious concerns regarding the proposed arrangements for concurrent powers. I would expect any powers conferred on UK Ministers in areas of devolved competence to be subject to a statutory requirement for consent from devolved Ministers for their application to devolved matters. The former Secretary of State, Jacob Rees-Mogg, explained that the intention behind taking concurrent powers is for provision to be made UK-wide on an agreed basis where that is convenient. If that is indeed the intention, then we would not expect a statutory consent requirement to present you with any difficulties.

Lastly, I should note that we have outstanding points with regard to the references to the Scottish Law Officers. I am grateful for the open discussion between officials on that point. It will be essential for the Bill to accurately reflect the roles and functions of Scottish Law Officers within Scotland’s legal system.

The Bill risks the Scottish Parliament and Government being consumed with unnecessary work to save important legislative provisions from being lost, when it should be acting to address pressing issues such as the cost-of-living and energy crisis, judged by real priorities.

I trust you will give your officials support to enable us to work on amendments to reflect these changes to the Bill, but also that you will agree to reconsider the Bill as a whole given the damaging impact it will have.

I am copying this letter to Mick Antoniw MS, Counsel General for Wales and Minister for the Constitution, and to the Head of the Northern Ireland Civil Service. 

Yours sincerely,

Angus Robertson