The Conservatives’ decision to water down proposed legislation to remove 4,000 EU laws from the statute books is still a “reckless” and “irresponsible” project, leading barristers have said.
While the business secretary, Kemi Badenoch, was accused of “a massive climbdown”, barristers say the retention of sweeping “undemocratic” ministerial powers and the removal of the “interpretive effect” of EU law will blow up decades of legal precedent set by courts in Britain and makes for legislation like that found in authoritarian states.
“The government’s change of approach reducing the number of laws is catching the headlines,” said Eleonar Duhs, partner at Bates Wells and one of the lawyers who worked on retaining EU law in the Brexit department. “It is welcome, but there is still a precipice for rights, liabilities and powers.
“It was a reckless piece of legislation from the start and it is still a reckless piece of legislation,” she added.
Duhs, who specialises in data laws, previously worked with Dominic Raab to retain EU law when Brexit happened. “We did that to provide certainty,” she said. “Now all of a sudden they are throwing that out the window and fundamental rights are going to be deleted by this law.”
At stake is the concept of “interpretive effect”, something the government refers to as the “supremacy of EU law”.
The government announced it will reduce the number of laws it was going to remove from the statute books but also said it will be scrapping the rule that sets out how laws are interpreted, effectively voiding precedents set by courts and tribunals up and down the country over the past 47 years.
“You might know the laws that remain on the statute books but you won’t know how to interpret them,” said George Peretz KC, an expert on the issue.
He said it would have widespread impact on consumers, commercial interests and environmental protections, which campaign groups have been fighting to save in the face of the hard Brexiter legislation.
If Badenoch’s version of the retained EU law bill (REUL) makes it to the statute books, employees will no longer be guaranteed their right not to be discriminated against on grounds of gender or race, for example, he said.
An unscrupulous employer might simply say “‘sorry we don’t think that is the way that law should be interpreted, because no lawyer will be able to say they know how the law is interpreted’. You might hire a lawyer but they will just come back with a very expensive and elegant ‘we don’t know how this interpreted either,’” Peretz added.
It will mean “the clock starts again” in courts and tribunals up and down the country.
With certainty bypassed, commercial interests could have a free-for- all, reneging on obligations to protect farmland, wildlife, hedgerows and freedom of information rules, experts said.
Airlines, for instance, feeling the pinch, could decide to renege on the current guarantee of compensation for delayed or cancelled flights. They could argue that the disruption was outside their control and therefore covered by force majeure rules, which are currently restricted to exceptional events such as terrorism.
“They might argue that staff illness or industrial action is outside their control and they no longer have to pay the compensation,” he said. “If rights are as uncertain as the weather this is also really bad for business, because what business likes is certainty,” said Peretz.
Both barristers, who gave expert evidence to a parliamentary committee on the REUL, also pointed out that the government has retained “sweeping ministerial powers” to reform, delete or save laws without the usual parliamentary scrutiny.
Nowhere in the current legislation is there any obligation on the government to consult on future reforms, making it difficult for lobby groups to press their points.
“It is still an undemocratic piece of legislation,” said Duhs. “I am sure civil servants would have warned Badenoch about this. This is a problem of the government’s own making and they should own up to it.
“This is irresponsible legislation,” she added. “The point about legislation is that it is supposed to achieve a policy goal and make life easier. All this does is add layers of complexity.”
