Liz Truss has promised to “consign to history” all EU red tape within the next year, axing to up to 2,400 laws on British statute books.
It was not just party conference rhetoric. Her government is planning to pass legislation to give itself the power to simply switch off 40 years of EU harmonisation legislation at the stroke of midnight 31 December 2023. No list of laws targeted has been published.
Yet arguably the retained EU law (revocation and reform) bill is one of the most significant bills ever to come before MPs, with powers to expunge laws ranging from workers rights to regulatory protection for the environment without even a debate in parliament.
Professor of EU law Catherine Barnard and Hansard Society’s researchers Brigid Fowler and Tom West, which held a seminar on the matter on Wednesday to raise awareness, help wade through the complicated plans behind the government rhetoric.
What has the government said?
The government’s bid to “take back control” includes extinguishing up to 2,400 laws flowing from EU treaties, directives and regulations by the end of next year through the retained EU law (revocation and reform) bill.
A government dashboard shows they cover 300 policy areas across 21 sectors, therefore affecting most areas of law.
What are the main concerns?
The timetable is so dramatically telescoped – Jacob Rees-Mogg wanted a five-year timeline – many have raised concerns about the lack of parliamentary scrutiny.
The environmental lobby is already hotly contesting plans for deregulation. Even Boris Johnson’s father, Stanley, has said Jacob Rees must perform a “screeching U-turn” on countryside aspects.
Laws may be saved or updated under the rules, but it will only happen if someone makes a successful argument in their favour.
But there will be areas of law where there are no powerful campaign groups, and there are questions as to how an MP or member of the public can find out what is coming down the line.
Which laws are in ministers’ sights?
The government dashboard gives no sense of its priorities but points out the highest number of EU retained laws, 570, is in the area of agriculture, farming and the environment. Transport, as well as the banking and financial services sector, also have high numbers of EU laws – 424 and 374 respectively.
Fears the government will gut legislation derived from the EU habitats directive, which aims to protect biodiversity, as well as areas of special scientific interest and water quality are already heightened.
High profile campaign groups are already questioning plans to release land from regulation to create 38 investment zones in Truss’s dash for economic growth.
Environmentalist Chris Packham says he is “very worried”. Of government reassurances on the subject, he told BBC Two’s Newsnight: “When it comes to environmental regulation, should we believe them? Our rivers are filled with sewage and far more pollutants. We’ve seen that this summer, so the trust on the environment is not there”.
In a 13-post Twitter thread the Royal Society for the Protection of Birds said wildlife was “facing one of the biggest threats in decades” on account of the government desire for investment zones.
If they carry out their plans nowhere will be safe. This map shows legally protected areas in purple and orange (the SACs and SPAs) mapped on to districts, in green, that want investment zones. Places where anything could be built anywhere. And these are just the start. 4/13 pic.twitter.com/hFaY77SXBb
— RSPB England 🌍 (@RSPBEngland) September 23, 2022
Since then, it has joined forces with other groups – including the National Trust, Wildlife and Countryside Link and the Wildlife Trusts – to fight prospective policy. Between them, the coalition has about 15 million members.
What about workers’ rights?
Unions have already expressed concern that workers’ rights laws deriving from the EU’s working time directive are at risk.
Opposition parties fought hard during the Brexit process to keep the legislation.
In January 2021, the government considered an early repeal for certain aspects of the working time regulations, including the 48-hour working week, the inclusion of overtime in holiday pay entitlements and other elements.
What stage is the bill at?
The first reading of the retained EU law (revocation and reform) Bill to parliament took place on 22 September but largely went unnoticed, coming between the Queen’s funeral and the ill-fated mini budget.
“This is obviously a massive bureaucratic and legal task, with a sunset at the end of 2023. From this perspective, and all other things being equal, the more time they have between the bill passing and that deadline, the better,” said Fowler.
She also says it is “a point worth making that the government has chosen to put civil service resource into this task over the next 15 months” at a time when civil servants may have a heavy workload dealing with other challenges.
Can ministers just refuse to amend or update laws, and wait for time to run out?
The Institute for Public Policy Research warns: “Clause 15 of the Retained EU Law bill gives ministers the freedom to make major changes to EU-derived secondary legislation without the need for an act of parliament. In practice, this gives the government free rein to change laws as it likes – not least because, if ministers decide to sit on their hands, the sunset clause threatens the complete repeal of these laws by the end of 2023.”
Are there repercussions if the UK goes too far diverging from EU law?
Yes. If the government goes too far, for example, in removing workers of rights it risks a trade war with the EU.
Under the level playing field agreements in the Brexit trade and cooperation (TCA) deal sealed by Lord Frost, the UK is permitted to deviate from rules in the bloc but not diverge to such an extent that it gives the UK a competitive advantage over business rivals on the continent and Ireland.
“The [deal] allows the UK to diverge from EU rules on workers’ rights but if the divergence affects trade and investment then the EU can start the non-regression’ procedure against the UK,” says Barnard. “This involves consultation, followed by the establishment of a special panel of experts and ultimately retaliation against the UK if the UK is found to be in breach. This means tariffs.”
How can laws be saved?
Tom West outlines the options for MPs or ministers.
Clause 1.2 of the bill would allow a minister or a devolved minister to “carve out”, or put a protective shield around, a chunk of laws it wanted to protect from the extinguishing powers of the sunset laws.
Or under clause 2.1 of the bill they could extend the sunsets up to “a date or dates up to June 2026”, or possibly beyond. They could opt for a series of dates, not just one new expiry date.
How can the laws be changed to British versions?
Paragraph 47 of the government’s explanatory notes confirms that it is not a total bonfire, and some EU laws may be “restated or updated or removed and amended”. In other words reworked in some cases and rebranded in all cases as domestic law.
Clauses 15.2 and 15.3 allow replacement laws while clauses 12 and 13 give restatement powers, says West.
