Successive UK Governments have promised to regulate less, better or smarter to promote economic growth and competitiveness while protecting consumers, workers and the environment. Relatively low visibility reviews and reports – recast and relaunched over time – have belied the public politics of ‘burning red tape’. But as the fireworks faded over Westminster as 2024 began, you could be forgiven for thinking that the lingering smoke was from the incineration of swathes of regulation produced during EU membership and revoked by the Retained EU Law (Revocation and Reform) Act 2023. Quite how big this bonfire really is, and how much is smoke and mirrors, is quantified in the first six-monthly statutory report to Parliament under section 17 of the Act and published on 22 January 2024. This post examines what we do and do not learn from this report about what is really changing in UK regulatory policy.
How Big is the Bonfire?
Readers of this blog will be familiar with the Truss Government’s September 2022 plan to ‘sunset’ retained EU law (REUL) by the end of 2023 (unless a specific instrument was saved or the sunset delayed). But with a change of Prime Minister and a change of approach, by May 2023 the aim was for the Act to revoke only those instruments specified in a chunky Schedule 1. The Report (prepared by the Department for Business and Trade) indicates that 576 REUL measures were revoked by Schedule 1 of the Act. This is not a small number, but its significance is a function of how much REUL is out there.
When a REUL ‘Dashboard’ was first published by the Government in June 2022, it listed 2417 individual pieces of law. Subsequent departmental reviews, however, have seen that number increase substantially to stand at 6757 instruments at the start of 2024. So while the REUL Act may have torched close to 600 retained EU laws, the size of the potential bonfire has increased significantly. That depends, however, on what the Government plans to do with the over 6000 retained EU laws – known from 1 January 2024 as ‘assimilated’ law – that did not go up in smoke as a result of Schedule 1 of the REUL Act 2023.
From ‘Brexit Opportunities’ to ‘Smarter Regulation’
Before looking at the fate of this augmented body of REUL, it is worth reflecting on the wider policy context in which the review of REUL is taking place. The statutory report under the REUL Act is produced by the Department for Business and Trade (DBT). This brings the review of REUL into the ‘regulatory reform’ policy space of the DBT and links it to the DBT’s ‘Smarter Regulation’ initiatives launched in May 2023 as the REUL Bill was in its final legislative stages. Intended to replace the ‘Better Regulation’ policy framework, the focus of Smarter Regulation is on the ‘proportionality’ of regulation. As the REUL parliamentary report identifies, smarter regulation is to be built on three pillars:
- Minimising regulatory burdens and future-proofing regulation;
- Making regulation a last resort and not a first policy choice; and
- Ensuring a well-functioning landscape of regulation.
The review of REUL is not only a product of this new regulatory reform policy framework but also a pretext for, and driver of, a new approach to regulatory reform. This is echoed in organisational terms with the review of REUL moving from the now defunct bespoke position of Minister of State for Brexit Opportunities in the Cabinet Office to forming part of the wider portfolio of the Secretary of State for Business and Trade, Kemi Badenoch.
In short, the ‘assimilation’ of REUL into domestic law is mirrored by the policy assimilation of Brexit into the regulatory reform work of DBT.
Revoke, Reform, Retain – the REUL Roadmap
So, in quantitative terms, what else is happening to REUL? As of 1 January, 2/3rds of REUL remains unchanged (4524 REULs). 11% of REULs (758 measures) have been amended. 20% of REULs are revoked by, or under, the REUL Act or other primary legislation (for financial services, the Financial Services and Markets Act 2023 mirrors the REUL Act by using primary legislation to revoke hundreds of financial services REUL listed in Schedule 1).
The REUL Report sets out the Government’s ‘roadmap’ for future changes to REUL with an ambition to revoke or reform more than half of assimilated law by June 2026 (to coincide with the tenth anniversary of the UK’s referendum on EU membership). More specifically, the REUL Report anticipates that 355 measures will be revoked and 15% will be reformed. 44% – 3012 measures – will be assimilated permanently; this is a higher number than the total amount of REUL that the Government first thought constituted the entire body of REUL.
Beyond Numbers
The publication of a Dashboard and a statutory report offers some welcome transparency to the scale of retained EU law, and offers some insights into how that body of law is changing. What is less clear is how Parliament will engage with this information. Section 17 does not mandate a debate on the Report; only if the Secretary of State fails to report by the end of a reporting period must a written statement be made. Nor does the Report cover the actions of the devolved administrations.
If what is driving this agenda is a desire for ‘smarter’ regulation, then more granular qualitative analysis is needed of what is happening to UK regulatory policy and why. Which is what I am exploring in my divergence.blog posts. One method is to examine the statutory instruments which have been made pursuant to the REUL Act (or other primary legislation) that make changes to REUL following departmental consultation exercises. Some of these changes – like allowing wine to be sold in ‘pints’ or for fizzy wine to dispense with traditional mushroom-shaped corks and wire cages – have attracted public attention. Other changes – to employment regulation or consumer or environmental protection – offer us more significant insights into what else is (or is not) changing in the regulatory landscape, why and how. This month, the blog examines why – despite the Government’s desire to change the system for compensating airline passengers for disrupted journeys – a recent statutory instrument restates the EU regime in domestic law (including interpretations elaborated in the case law of the Court of Justice of the EU). The task for researchers is to make sense of the dynamics of divergence and their implications for our changing regulatory and constitutional landscape.
Kenneth Armstrong is Professor of European Law, University of Cambridge and a Fellow of Sidney Sussex College. He blogs at divergence.blog and on ‘X’ @profkaarmstrong.
(Suggested citation: K. Armstrong, ‘The First Statutory Report on Retained EU Law’, U.K. Const. L. Blog (29th January 2024) (available at https://ukconstitutionallaw.org/))
