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‘Not fit for purpose’: The Retained EU Law Bill and its wide-reaching implications

Back in September, the former Secretary of State for Business, Energy, and Industrial Strategy, and staunch Brexiteer, Jacob Rees-Mogg, tabled Brexit legislation that would see thousands of individual pieces of EU legislation eradicated. Many had hoped, in vain, that in the wake of his resignation, the bill, too, would get the chop. Legal experts have criticized the deeply controversial bill from the beginning, arguing that it awards ministers “​​undemocratic powers” to ditch laws without consultation. Rees-Mogg, however, hit back at these criticisms, especially from those within his own party, by saying that they simply never accepted the vote on Brexit.

While it was initially estimated that the bill would impact 2,400 pieces of individual pieces of EU legislation, government researchers recently found another 1,400 laws that will be wiped off the statute books. This means the impact will be even more far-reaching than first thought, affecting everything from workers’ rights and health and safety to pollution and animal rights.

Commenting on what this legislation means for the UK, Prof Maria Lee said that while the REUL Bill “need not be de-regulatory,” it’s not unreasonable to “fear that it will be.” Ruth Chambers, a senior fellow at Greener UK, meanwhile, said the bill was indeed: “A deregulatory free-for-all.”

As the government makes another power grab, charities and unions are urging the government to rethink, however, it appears to be advancing with the bonfire bill full steam ahead.

Rees-Mogg and “restoring parliamentary sovereignty”

Jacob Rees-Mogg was only in his role as Secretary of State for Business, Energy and Industrial Strategy for less than two months, but if the REUL Bill passes, the impact of his short tenure will be long-lasting. When Rees-Mogg introduced the Bill, he told MPs that the proposals were aimed at “restoring and helping remove rules and regulations that supposedly put business under pressure.” He argued that the Bill was not about the process of lawmaking but about “restoring parliamentary sovereignty”: “This bill is first of all of fundamental constitutional importance because it is removing the supremacy of EU law,” he said. However, Rees-Mogg did not detail the full power that the bill holds, considering that a sunset provision means that any piece of REUL will be revoked by default by the end of December 2023 unless Ministers actively decide to save it, effectively sidelining Parliament.

The bill, which has been estimated to impact 2,400 pieces of individual pieces of EU legislation, includes the following provisions to:

  • Revoke certain retained EU law,
  • Make provision relating to the interpretation of retained EU law and to its relationship with other law,
  • Make provision relating to powers to modify retained EU law,
  • Enable the restatement, replacement, or updating of certain retained EU law, and
  • Enable the updating of restatements and replacement provisions.

Plan said to “cripple Whitehall”

Considering the sheer volume of legislation that needs to be reviewed before the December deadline, legal experts have expressed serious concern at the chaos that is likely to ensue. Jonathan Jones, for example, former head of the government legal service, said changing the law on such a scale via the REUL Bill is a “very, very bad way to change and make law.” He added that the process by which the government is taking this is unnecessary, creating “great uncertainty within a very tight, and completely self-imposed timescale.” Jones explained that there is “nothing inherent in Brexit”, stipulating that the law must be changed within a particular period after the UK has left the EU and that the decision is, instead, “driven by the usual suspects wing of the Tory party.”

Of course, this self-imposed deadline of December 31st, 2023, means that there is a huge amount of work to be done and the likelihood that things will be overlooked, missed, or disregarded is deeply concerning. Theresa Villiers, a Brexiter and former Secretary of State for Environment, Food, and Rural Affairs, has voiced concerns about the deadline, stating: “That is an immense amount of work to do, and my fear is that the work may not be completed by either the 2023 or 2026 deadline.” This has been echoed by former cabinet minister Damian Green, who expressed that his fear is a practical one. “These regulations will need to be replaced in a very short space of time otherwise there will be laws with big holes in them. I hope someone in government has thought through the practicalities of this,” said Green.

Wide-reaching implications

Legal and political experts have noted that the Bill, in its current form, presents a huge risk to the democratic process and endangers workers’ rights and environmental protections. Dr Ruth Fox, Director at the Hansard Society, for example, highlighted a number of flaws in the current provisions including that it abdicates Parliament’s scrutiny and oversight role, introduces unnecessary uncertainty from a legal, economic and political into the REUL review process and that its “broad, ambiguous wording of powers” will confer excessive discretion on Ministers. Further to this, Fox noted that parliamentary scrutiny of the exercise of the powers will be limited; and beyond this, there are “potentially serious implications” for devolution and the future of the Union.

Likewise, Labour has voiced its opposition to the Bill, arguing that the bill gives the government the ability to scrap many key EU-derived employment laws, including:

  • Holiday pay,
  • TUPE,
  • Parental leave,
  • Equal treatment for part-time workers and other workers’ protections.

This is something that has been echoed by UNISON, the union that represents 1.3 million workers in the UK. UNISON general secretary Christina McAnea accused the government of putting “ideological principles above the lived, practical needs of the UK,” and subsequently, wrote to new Prime Minister Rishi Sunak demanding that he protect workers’ rights. In her letter, she wrote: “The public is left to assume that all the following rights will disappear overnight: the right to an entitlement of 20 days’ annual leave, family friendly rights, protections from dismissal where employment is transferred/ outsourced, maternity, pregnancy, part-time and fixed term worker protections, as well as other core employment law protections including health and safety in the workplace for pregnant women.”

Adding: “Workers and employers rely on these rights day in, day out. They are not luxuries, but the very foundation on which their working lives and their family time is built.”

She went on to urge the government to:

  • Remove workplace rights from the scope of the bill altogether;
  • Ensure reviews take place to identify all relevant legislation, for example, the European Working Time Directive, and the government takes expert advice to ensure no dangerous mistakes are made; and,
  • Amend the bill to change the 2023 sunset deadline to 2033 in order to give government departments due time for the review process to take place.

Aside from endangering workers’ rights and handing over more unchecked power to ministers, Sandy Luk, CEO of the Marine Conservation Society Environment, said that the announcements pose a threat to the health of our climate, land, sea, and by extension, “to our own health and wellbeing too.” Former environment secretary Theresa Villiers, who voted for Brexit, highlighted this, too, noting: “We don’t even know exactly how many laws there are relating to the environment that would be impacted by the bill, but groups have counted up to 570 that need to be looked at in what is a relatively short period of time.” Luk said that these 570 are just the “tip of the iceberg,” and went on to explain that just down to the sheer number of EU-derived laws, by default, that we could end up “without effective regulations for chemicals, water quality standards, conservation and many other areas of law.” Some of those pieces not covered found by Luk included:

  • The Conservation of Habitats and Species Regulations 2017 (the Habitats Regulation),
  • The Conservation of Offshore Marine Habitats and Species Regulations 2017,
  • The Marine Strategy Regulations 2010, the Environmental Damage (Prevention and Remediation)(England) Regulations 2015, and
  • The REACH Test Methods Regulation 2008.

Last month, the Trades Union Congress, the RSPB, the Civil Society Alliance, and Wildlife Trusts came together to submit a joint statement to the PM, wherein they urged him to abandon proposals. They wrote of their concerns that if passed into law, the bill could cause “significant confusion and disruption for businesses, working people and those seeking to protect the natural environment” while also upending decades’ worth of case law, in effect risking putting the UK in breach of the trade and co-operation agreement with the EU. They added: “Ministers have yet to explain which laws they intend to retain, to amend or allow to expire. Nor have they explained how government and parliament will cope with the vast amount of legislation this will involve being rushed through before the end of next year.”

The Public Law Project, a national legal charity which aims to improve access to public law remedies for those whose access to justice is restricted, has outlined that it believes the entire bill should be scrapped. However, while this is its primary recommendation, it has also urged the government to make a number of amendments, including to:

  • Remove clauses 10 to 16,
  • Include provision for meaningful consultation and debate on the proposed exercises of ministerial powers,
  • Amend the condition for the exercise of delegated powers,
  • Limit the power of UK ministers to legislate in areas of devolved competence without the consent of devolved authorities,
  • Prevent EU-derived legislation that is equivalent to Acts of Parliament from being amended as if it were a technical statutory instrument,
  • Provide that nothing shall be allowed to disappear at the sunset without consultations, impact reports, and parliamentary approval,
  • Amend clause 7 to protect legal certainty.

Will it go ahead?

With so much strong opposition to the Bill, as outlined above, many are calling for the legislation to be scrapped entirely. Scottish National party spokesperson Brendan O’Hara, for example, called the Bill the “unwanted puppy that no one would particularly want in the first place that no one really cares for” presented by a man who has been “flounced” out the door.

Now, as the deadline creeps closer, the regulatory policy committee (RPC), after looking at the impact assessment used to justify the retained EU law (revocation and reform) bill, has described it as “not fit for purpose”. In its analysis, it said: “The bill proposes sunsetting more than 2,400 pieces of retained EU legislation (REUL) on 31 December 2023, unless, before then, a departmental review proposes retention of, or changes to, the legislation, or delays the sunset until 2026. No impacts for changes to individual pieces of REUL have been assessed at this stage. We asked the [business] department to commit to assessing the impact of changed and sunsetted legislation, for RPC scrutiny in the future, but the Department has not made a firm commitment to do so.”

“As the independent better regulation watchdog, it is our view that those affected by regulatory change should reasonably expect the government to properly consider the impacts of such changes. We are not assured that the impact of changing or sunsetting each piece of REUL will be calculated or understood under proposals currently in place – particularly where no related secondary legislation is required.”

Further to this, it said that the government needed to provide a “stronger argument” for why the sunsetting of REUL is necessary, “as opposed to merely setting a deadline to complete the review and change of REUL, including appropriate and robust evidence to support this position.” However, the government has seemed dismissive of these criticisms, instead responding by saying that the watchdog’s assessment was “disappointing.”

In an attempt to delay the bill, opposition parties are planning to table a number of amendments. The Scottish National party, for example, is planning to table about 50 amendments to the bill. One important amendment, which many are in support of, is extending the date for deletion from the end of 2023 to 2026. Labour is also planning a series of amendments to the bill.

A government spokesperson said: “The regulatory policy committee’s rating of our impact assessment for the retained EU laws bill is disappointing but keeps with ratings of many other enabling bills. Naturally with the immense scope of the freedoms this bill will enable and the various sectors and departments it involves, it is difficult to quantify impacts in the impact assessment at this time.

“The government is committed to taking full advantage of the benefits of Brexit, which is why we are pushing ahead with our retained EU law bill, which will end the special legal status of all retained EU law. This will allow us to ensure our laws and regulations best fit the needs of the country, removing needless bureaucracy in order to support jobs, whilst keeping important protections and safeguards.”

Article Created By Madaline Dunn

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