Publications

NIHRC and ECNI Briefing on the Retained EU Law (Revocation and Reform) Bill

Date produced January 2023.

Below is a summary of the recommendations. You can also download the full document through the links provided.

The Commissions recommend:

• The Commissions recommend that the Bill be amended to include a Clause confirming that the provisions of the Bill are without prejudice to section 7A of the EU Withdrawal Act 2018.

• The Commissions recommend that the Minister establish a comprehensive notification process in terms of law that is going to be sunsetted, extended or preserved.

• The Commissions advise that failure to preserve and/or restate all relevant EU-derived subordinate legislation in NI within scope of Protocol Article 2, within set deadlines would result in a breach of Protocol.

• The Commission advise that failure to identify and preserve or re-enact relevant Retained Direct EU Legislation within scope of Protocol Article 2, by the end of 2023 – or by 23 June 2026, if extended – will result in breach of Protocol Article 2.

• The Commissions recommend that Clause 1(5) be amended to exclude all legislation insofar as it is effective in Northern Ireland and relates to human rights and/or equality, including all legislation that falls within the scope of Protocol Article 2. If this is not practicable, we recommend that that Clause 1(5) be amended to exclude all legislation insofar as it is effective in Northern Ireland.

• The Commissions advise that if the Bill is passed as drafted, a breach of international law, in relation to Protocol Article 2, could arise from inaction on the part of devolved authorities or Ministers of the Crown, which may not come to the attention of Parliament in time to be remedied via primary legislation.

• The Commissions recommend that, if Clause 1(5) is not amended to exclude all human rights and equality legislation insofar as it is effective in Northern Ireland, the sunset date in Clause 1(1) should be extended to provide adequate time for consultation and appropriate parliamentary scrutiny, in line with constitutional convention.

• The Commissions recommend that amendment or repeal of Retained EU Law, affecting human rights and/or equality protections in Northern Ireland, should be progressed on the basis of continuing adherence to the UK constitutional convention of providing for policy change via the primary legislative process, with technical and operational detail addressed in subordinate legislation. This applies to legislation that emanates from either Westminster or from the NI Assembly.

• The Commissions recommend that the Bill is amended to remove Clause 3, or that Clause 3 is amended to retain Section 4 of the EU (Withdrawal) Act 2018 to the extent that it preserves retained EU law which gives effect to human rights and equality protections in NI law, including all legislation that falls within the scope of Protocol Article 2.

• The Commissions recommend that, for the avoidance of doubt, Clauses 4 and 5 be amended to insert a clarification into the amended Section 5 of the EU (Withdrawal) Act 2018, that it is subject to the obligations arising under Section 7A of that Act.

• The Commissions recommend that compliance with Protocol Article 2 be considered in advance of amendment, repeal or revocation of assimilated law and fully explained in associated Explanatory Memoranda/Notes or Human Rights Impact Assessments.

• The Commissions recommend that the Minister provide a written assurance that it remains the Government’s view that CJEU case-law regarding Protocol Article 2 should be adhered to by domestic courts on an ongoing basis, in line with Protocol Article 13, and that this obligation will not be diminished by the Bill.

• The Commissions recommend that, unless Clause 1 is amended to remove all legislation effective in NI from automatic repeal/revocation, the deadline for restating secondary REUL be extended.

• The Commissions recommend that Clause 15 be amended to curtail powers to revoke or replace secondary retained EU Law, affecting human rights and/or equality protections in Northern Ireland, to ensure continuing adherence to the UK constitutional convention of providing for policy change via the primary legislative process, with technical and operational detail addressed in subordinate legislation.

• The Commissions recommend that Ministers engage with stakeholders including the Commissions and human rights and equality organisations before using delegated powers to replace REUL.

• The Commissions recommend that Clause 16 be amended to ensure that the delegated power to modify legislation may be used for the purposes of dealing with minor and technical matters only.

• The Commissions recommend that compliance with Protocol Article 2 be considered from the earliest stages in the development of policy and legislation.

• The Commissions recommend that the UK Government and NI Executive ensure that Explanatory Memoranda on draft UK and NI legislative proposals that are likely to engage Protocol Article 2 set out what consideration has been given to ensuring conformity with Protocol Article 2.

• The Commissions recommend that the Committee ask the Secretary of State to set out, in detail, what consideration was given to compliance with Protocol Article 2 in the development of the Bill and what plans are in place to avoid breach of the commitment.