A new bill about to make its way through parliament is going to test the government’s mettle and indeed its ability to govern. The retained EU law (revocation and reform) bill, published in September of this year, sees the first sitting of the committee stage taking place this week.
Retained EU law
Retained European Union (EU) law is a unique concept in UK domestic law and is a direct product of our decision to leave the EU back in 2016. Legally binding EU legislation was carried over until the government found the parliamentary time to review, reform, amend or in some cases abolish them.
Under this bill most of the ‘retained’ EU law in policy areas including the environment, aviation safety and employment protection, would automatically drop off a legislative cliff at the end of 2023 unless the government chooses to step in.
And it is going to bring all the Brexit tensions to the fore.
Former Brexit opportunities minister Jacob Rees-Mogg created something of a stir when he announced plans back in June to axe all remaining EU laws in under four years. He may be consigned to the backbenches, but this sort of ideological drive is in danger of becoming a millstone around the government’s neck.
This body of law includes things like health and safety measures at work, habitats regulations and nitrates directive, ensuring things like the standards for water and air quality. Scrapping them will potentially jeopardise hard-won workers’ rights on holiday pay, safe limits on working hours and parental leave. They all have a significant impact on how we live our lives.
Opposition to the government’s plans
When the bill was introduced Angus Robertson MSP, cabinet secretary for constitution, external affairs and culture, articulated his concerns in an open letter to Rees-Mogg (then secretary of state for business, energy and industrial strategy):
“You appear to want to row back 47 years of protections in a rush to impose a deregulated, race to the bottom, society and economy.”
A major law firm, Shoosmiths, recently said “The potential regulatory effect of the Bill is seismic”.
The cracks are beginning to appear as the government contemplates the sheer scale of what’s now in front of them.
Thousands of retained EU laws yet to be reviewed
Following a review into the substance of EU retained law by Lord Frost, the government developed a dashboard showing that there are over 2,400 pieces of legislation across 300 unique policy areas and 21 different sectors of the UK economy.
The dashboard highlights the broad sweep of policy areas that will be affected by the bill’s reforms – employment rights, indirect taxation, aviation safety, consumer protection, data protection, environmental protection, energy regulation and health and safety. More worryingly, the dashboard also shows that, to date, more than 2,000 pieces of retained EU law have not yet been amended, repealed or replaced.
In June, the Guardian reported that, “Senior Whitehall sources said it would be ‘literally impossible’ for departments to wade through hundreds of retained EU laws and come up with plans to retain, amend or drop them with no extra resources”.
The clock is ticking. Clause 5 of the bill provides that general principles of EU law will cease to form part of domestic law on 31 December 2023 (the sunset clause). With less than 14 months to go to this sunset date, it is hard to see how the various government departments will be able to determine what is suitable to keep, what needs amending and what needs throwing out.
Popular EU laws are tricky to scrap
Former environment secretary Theresa Villiers has waded in, with the Observer reporting her saying that “the proposals would take up vast amounts of civil service time and would involve undoing legislation that, in many cases, was broadly popular and good for the country”.
Who would have thought it – people actually like food standards, clean water and their holidays protecting.
This, as the Observer says, is in danger of becoming an ideological millstone. Why on earth let the practicalities of good governance get in the way of the Brexiters’ obsession with so-called freedoms and rolling back the state?
You probably remember the Red Tape challenge, and then there was the promise of the bonfire of EU regulations from former prime minister Boris Johnson, announced like a Brucie bonus. It’s a classic populist card to play – the reality is very different.
There is something quite out of step with some members of this government and their understanding of what ‘freedoms’ actually means to the great British public. Sounds great. Totally meaningless.
Unpopular libertarian ideology
Take for example the recent outcry when Thérèse Coffey showed her libertarian hand by not pressing ahead with anti-smoking and curbing-obesity measures. If this wing of the Tory party goes down that road, then you may as well scrap speed limits and motorway restrictions at the same time.
Rishi Sunak now seems to be backtracking somewhat. As Anthony Robinson wrote recently in Yorkshire Bylines, it’s “as if reality has also managed to sneak into No 10 amid all the recent comings and goings”.
There are other pressures. The ‘level playing field’ provisions in the UK-EU trade agreement that the government signed up to ensure legal protection in things like employment rights, social protection, and environmental law. These provisions protect the status quo that existed at the end of the transition period in December 2020 and are there to ensure competition is open and fair between trading partners. A diminution of these provisions could potentially affect trade or investment between the UK and EU.
Opposition to the bill is mounting, including from some government ministers. As it runs its course through parliament it will expose everything that was flawed about the way the Conservatives have handled Brexit. No wonder Rees-Mogg made a hasty departure. He knows deep down that his claimed ‘Brexit Bonuses’ have run out of road.
As Robinson notes in his article, some have commented that Sunak will face a “Brexiteer meltdown” if he fails to implement plans in this bill. But this bill will have to be substantially amended to be workable. Agh, the benefits of Brexit.