“Retained EU law” is something that sounds interesting only to legal geeks. But it matters, and Jacob Rees-Mogg’s plans to sweep aside 47 years’ worth of these laws – set out in a bill due to be debated by the Commons on Tuesday – matter a lot.
Until Brexit, UK law was heavily influenced by our membership of the EU. So when we left, Theresa May’s government drew up legislation – the EU Withdrawal Act – to keep most laws in place until parliament decided to replace them, both to avoid huge gaps and to keep very important rights and protections.
The Rees-Mogg bill does three things. First, it repeals all that law (except for law incorporated into an act of parliament) in one fell swoop on 31 December 2023, unless ministers decide to rescue any of it, or delay the repeal. That means that rights and protections such as (to give only a few examples) caps on your working hours, your rights if your employer is sold, the ban on selling cosmetics tested on animals, protections of environmentally sensitive sites and your rights to compensation if your flight is cancelled all vanish unless ministers decide to keep them – and ministers can decide to let them disappear without any consultation or parliamentary scrutiny whatsoever.
Second, it gives ministers huge powers to replace those rules with new rules, without any need to consult those affected and usually without any vote in parliament – and when there is a vote it will be a yes/no vote, after one short debate, and under the threat that the rules will vanish completely if parliament says “no”. The only limit on ministers’ powers is that the new rules cannot increase “burdens”: which means that they can’t be used to improve rights and protections but only to remove them – and all the rights I listed above, and countless others, will be vulnerable to gutting by ministerial fiat.
Third, even when retained EU law survives that process, the bill deliberately creates uncertainty about what it continues to mean, by ordering the courts to stop interpreting it in the way in which EU law is normally interpreted and nudging them to ignore relevant case law of the European court of justice.
The arguments put forward for the bill should be unconvincing even to Brexiters. Vote Leave was keen to tell voters that rights and protections found in EU law would stay and that any changes to them would be made democratically and by parliament. The real basis for the bill – apart from grabbing power to slash rights and protections without proper scrutiny – is a form of bigotry: the prejudice that because law comes from the EU it is necessarily bad and that it is so important to cleanse it from the UK statute book that normal democratic processes should be suspended; and that replacement rules should be made without taking the time to make sure that they work and do not have unintended consequences. Like all bigotry, that prejudice is unsupported by any coherent analysis.
The bill is grossly undemocratic in its contempt for public and parliamentary scrutiny. But it is also profoundly anti-growth. There is always scope for improving and updating regulation. But getting it right, in a complex world, requires thought, consultation and challenge. What the bill does is to tell business that critical legislation of huge importance to them is subject to arbitrary ministerial repeal or rushed and unscrutinised rewriting, and that what remains will be deliberately thrown into uncertainty.
As the keen Brexiter George Eustice said while attempting to defeat this proposal when he was in government, “messing around” with regulation in this way “costs businesses money and is unlikely to make much difference”. Put more bluntly and more accurately, it is hard to think of any message that could be more calculated to put business off investing in the UK.
Rees-Mogg’s bill is bad for our democracy and bad for our economy. Labour has said it will oppose it, and all MPs – including Conservative MPs who supported Brexit – should vote it down.
George Peretz KC is a barrister at Monckton Chambers, specialising in public, regulatory and competition law
