The retained EU law (revocation and reform) bill underwent its second reading in the House yesterday. Anyone anxious to discover exactly which ‘burdensome’ EU laws have been dragging Britain down and need to be binned, will find an answer of sorts in section 1(1).
Potentially, all 2,417 of them are at risk.
At the end of 2023 all EU-derived subordinate legislation and retained direct EU legislation (REUL) will automatically be revoked by the use of a so-called ‘sunset’ clause, although some will see it perhaps as a reference to the sun going down on civilised life in Britain.
If you are not entirely sure what laws it applies to, the EU retained law dashboard (click the REUL Explorer tab) lists 2,417 pieces of EU legislation that the government has set its sights on, although it admits the list is not complete and even regulations it is not aware of could go by accident.
The removal of business minister Jacob Rees-Mogg is unlikely to change anything. Rishi Sunak committed himself to exactly the same course in July when he pledged to review all the 2,400 laws with the first set of recommendations coming within his first 100 days.
What sort of laws are we talking about?
The Scottish Food Standards Agency (FSS) has already made its concerns clear, warning of “major risks and impacts” in relation to food safety and standards if the bill becomes law. Among the FSS’s fears are the potential loss of business obligations to maintain minimum levels of hygiene or recall unsafe food, and ensure the safety and composition of baby foods.
Other regulations at risk are those that lay down employment rights, animal and public health and veterinary certification conditions for meat imports, ban cancer-causing agents in cosmetics, or transpose key EU directives into UK law setting minimum standards for water quality and sewage management, aviation and maritime safety and the secure transport of dangerous goods. All could be revoked suddenly overnight on 31 December 2023.
A Commons briefing note says if enacted and nothing is done legislatively thereafter [my emphasis] “vast reams” of REUL would fall, “creating precisely the ‘gaps’ in domestic law the EU (Withdrawal) Act 2018 was designed to avoid”.
One might think ‘gaps’ is a bit of an understatement.
Departments ‘incentivised’ to restate, revoke or repeal EU
The note adds that that is a very unlikely outcome however because it’s “more plausible” that ministers will use powers in the bill, to preserve, restate, replicate, revoke, replace and update parts of the REUL. Ministers can also extend the sunset clause until the end of June 2026 but no later.
Having spent the best part of ten years repeatedly trying to find excessive red tape without success, the government seems to have given up in frustration and saddled future ministers with the thankless task.
The MP for Watford, a junior minister at the Business department, Dean Russell, who spoke with such speed he appeared to be high on some sort of illegal substance, led for the government in place of Jacob Rees-Mogg who had resigned earlier. Russell said the sunset clause would “incentivise” ministers – in the way that stupidly setting a hard deletion date for all your computer files might ‘incentivise’ you to save a few.
Organisations including the Hansard Society and Public Law Project have expressed concerns that parliament is being marginalised because the bill empowers ministers and devolved executives, rather than MPs. Where parliament is still involved, there will be less oversight than at the moment.
A huge workload only creating ‘deep uncertainty’
The government has claimed that the main purpose of the bill is to “firmly re-establish our parliament as the principal source of law in the UK”. However, a former government lawyer who helped design the concept of retained EU law, Eleonor Duhs, a partner at the City law firm Bates Wells, said the government’s plans were completely at odds with Theresa May’s vision to remove EU laws with “full scrutiny and proper debate”.
“This bill gives ministers powers to repeal and replace a vast body of what is now domestic law at speed and without proper scrutiny. This is unprecedented, reckless and undemocratic.”
Eleonor Duhs, Bates Wells
She also raised questions about the use of precious legal drafting resources within Whitehall.
Jonathan Jones, a former head of the government’s legal service has warned that the bill will create deep uncertainty for businesses and many other organisations. “I think it is absolutely ideological and symbolic rather than about real policy”, he said.
Both the Welsh and Scottish governments have reservations, about a Westminster ‘power-grab,’ the accidental loss of important regulations and the extra workload imposed on civil servants in the devolved administrations.
There are for instance apparently 570 regulations which affect Defra alone and officials will need to consult and assess them at the rate of more than two a day if they are to meet the December 2023 deadline.
Could Britain really make ‘better’ regulation for itself?
Several Conservative members, including Theresa Villiers, argued that Britain could make ‘better’ regulations for itself, something that 27 members of the EU might also argue for themselves, thereby making it impossible for the single market to work at all in any meaningful sense and taking us back 30 years. Compromising a little on your own ‘perfect’ regulation opens up a vastly bigger market for all, something the former minister didn’t appear to understand.
Either any changes will be so minuscule as to have little impact beyond the raising of new barriers to EU trade, or be so transformational that they risk breaching the terms of the trade and cooperation agreement – which talks in several places about “a level playing field for open and fair competition” – provoking EU retaliation through tariffs.
The only ‘benefits’ of Brexit seems to be to double the regulatory burden on our manufacturers with the government determined to cripple as much as possible of UK industry.
Race to the bottom
Opposition MPs worried about a ‘race to the bottom’ also pointed to clause 15(5) which prevents any new provision from increasing the regulatory burden. And to make sure there is no misunderstanding, clause 15(10) explains that means no regulation can add (a) a financial cost; (b) an administrative inconvenience; (c) an obstacle to trade or innovation; (d) an obstacle to efficiency, productivity or profitability; (e) a sanction (criminal or otherwise) which affects the carrying on of any lawful activity.
Avoiding an increase in the regulatory burden is now elevated above all else in the name of sovereignty. The bill is a ratchet that works only to cut regulations even if they might result in economic growth or increase the rights, safety, security, health, well-being, wealth, or prosperity of UK citizens.
No investor, business owner, farmer, environmentalist or citizen can be sure of what regulations may or may not be repealed, amended or replaced or when. We have now learned HOW the government intends to deal with EU laws but WHICH laws might be scrapped remains a mystery.
The new prime minister is said to be desperate for economic growth. This bill will not help. It is a recipe for further decline.
