On 6 February 2023 the House of Lords will hold its Second Reading debate on the principles of policy behind the Retained EU Law (Revocation and Reform) Bill.
Business views of the Bill
Jill Rutter writing about the Bill in the Financial Times on 17 February 2023 wrote that –
“This desperate bid to kick-start Whitehall into action is more likely to blow up in Sunak’s face than bring any benefit”.
Her article identifies the dangers of the Bill widening the regulatory divergence between the government of the UK and England, the governments of Wales and Scotland and the lack of a government in Northern Ireland. It is ironic for a ‘Conservative and Unionist’ government to be taking actions which both undermine the Union and make it harder in practice for business to operate across it.
Both the Welsh and Scottish governments have recommended that their Parliaments withhold legislative consent to the Bill. They have done so on several key grounds. First they do not share the UK government’s assessment of deregulatory priorities and consider that broadly the majority of retained EU law is doing a necessary job and revisions should be selective. Secondly, they are concerned about what they see as unnecessary and unjustified diversion of effort in the civil service from other pressing needs. And thirdly, they strongly object to aspects of the Bill allowing UK Ministers to legislate in devolved areas. In summary, serious and fundamental objections.
Jill Rutter also asks, importantly, whether the Bill will undermine the UK’s commitments in the Trade and Cooperation Agreement with the EU. These are questions that the EU itself is considering, as we know from the minutes of its meetings with UK government representatives, where it has raised questions about the comparability of workers rights and environmental protections if the Bill is passed.
The Bill’s backers claim that this form of deregulation will make the UK more competitive. Business organisations seem to believe that the opposite is the case.
The Institute of Directors has joined trades unions and leading environmental groups in demanding that the Bill be scrapped. Their joint letter said –
“As representatives of trade unions, employers, lawyers, environmental groups and civic society we are concerned that if passed into law, it could cause significant confusion and disruption for businesses, working people and those seeking to protect the environment.
The Bill would automatically sweep away thousands of pieces of legislation and established legal principles.
Even if legislation is retained – and ministers have yet to set out their vision of future workplace, environmental and consumer regulation – decades-worth of case law would be upended. This would make the interpretation of the law highly uncertain and likely lead to greater reliance on the already over-stretched courts and tribunal system.”
The British Chambers of Commerce has said that –
“Large-scale deregulation is not a priority for UK business.”
The Economist has referred to the Bill as “boneheaded”, given the context of the UK’s current financial situation.
And now the Director-General of the Confederation of British Industry, Tony Danker has spoken out against the Bill, saying in a speech on 23 January 2023 –
“The Chancellor has appointed Sir Patrick Vallance to lead a thorough review into securing possible prizes in five high-growth sectors. This is the right approach. Serious reflection and consideration.
“The complete opposite in fact of the Retained EU Law Bill -– which says that at the end of 2023 all retained EU law in the UK expires. It’s creating huge uncertainty for UK firms.
“Companies are asking will we really erode maternity and paternity regulation or health and safety standards like the General Product Safety Directive? Or rapidly change regulations on REACH, which governs the use of chemicals? With billions of pounds of industry costs? Or create the potential for firms being underinsured because it’s harder for analysts – who don’t know what laws will be retained - to effectively price risk into products?
“Do we really want to subject the public – and industry -– to another round of mass confusion and disruption, just when we’re trying to exit recession. Is the Prime Minister really going to undermine his own second pledge of five -– to get the economy growing this year?
“Instead, let’s review, retain, reform and – where appropriate – repeal EU law the Vallance way. Smartly. Not the Retained EU Law Bill’s way. Foolishly.”
Constitutional implications of the Bill
Some of the Devil in this Bill is in the detail. At a recent meeting on its environmental implications convened by the UK Environmental Law Association ‘UKELA’, UCL and Greener UK, both academics and practitioners were hard put to quantify its full effects. Professor Jeff King of UCL commented that “I don’t think we’ve ever seen any other Bill like this before”, drew attention to Clause 15 as “completely unprecedented”, and said that the Bill as a whole created an artificial emergency in the UK’s legal system.
Dr Vivianne Gravey of Queen’s University Belfast outlined the ways in which the Bill pits the UK government against the Devolved Administrations, and the particular problems for Northern Ireland, which has no functioning Executive to take the decisions that the Bill requires.
David Wolfe KC of Matrix Chambers spoke about the Bill’s “fundamental constitutional and democratic deficit”, and its potential breach of the UK’s obligations for public participation in the Aarhus Convention.
A Defra spokesperson described the huge programme of work under way for the Department, and the possibility that the current best estimate of 1,100 environmental laws which are candidates for review, retention, revocation or reform could now be exceeded.
Ned Westaway, barrister of Francis Taylor Buildings spoke about the wide impacts of the Bill on environmental caselaw.
Professor Maria Lee of UCL addressed the machinery of the Bill and the full impacts of its sweeping away existing principles of environmental law.
Jake White, Head of Legal at WWF analysed the impacts of the Bill on revocation, deregulation and the assurances given by the UK on leaving the EU of non-regression from high standards of environmental protection.
In a question to these assembled experts, I gave one example of the regulation of Pesticide Residues in Foods, which is supported by three separate pieces of retained EU law. If these provisions are revoked or replaced, what standards will apply, and by what procedure will they be determined? When more than half of the bread that we eat, more than a third of vegetables and fruit, contain multiple pesticides, who is going to set ‘safe’ levels of pesticide residues, and how, if even the existing laws are revoked?
Yet this is just one of over of over 1,100 areas, of environmental laws alone, where the Bill creates massive uncertainty. While the Devilry is in the detail, the main principles should not remain out of view. The Bill is a massive constitutional attack on the existing checks and balances within the unwritten constitution. It removes meaningful participation by Parliament - the UK Parliament or the Scottish and Welsh Parliaments - it offers no public participation at all, and it puts over 4,000 laws at jeopardy of being revoked on 31 December 2023, or re-written or retained in whatever way Ministers and the Executive deem appropriate.
Earlier coverage of these proposals:
BREXIT FREEDOMS BILL, PARLIAMENT AND A BONFIRE OF ENVIRONMENTAL LAWS
1 June 2022
UK GOVERNMENT PROPOSES REVOCATION OF 570 ENVIRONMENTAL LAWS
5.10.2022
https://www.wyesideconsulting.com/news/uk-government-proposes-revocation-of-570-environmental-laws
RETAINED EU LAW (REVOCATION AND REFORM) BILL PASSES SECOND READING
7.11.2022
RETAINED EU LAW (REVOCATION AND REFORM) BILL IN COMMITTEE – AND IT NOW COVERS 1,100 ENVIRONMENTAL LAWS
6.12.2022
UK GOVERNMENT FORGES AHEAD WITH BILL WHICH COULD REVOKE 1,100 BASIC ENVRIONMENTAL LAWS
19.1.2023
https://www.wyesideconsulting.com/news/uk-government-forges-ahead-with-bill-which-could-revoke-1100-basic-environmental-laws