Consequences of the proposed changes
The Bill is unprecedented in its scope. The sunset clause means that without Ministers acting to prevent it, at least 3,800 UK laws would automatically lapse after the end of 2023.6 Such an approach to policy development or law reform has never been tried before in this country. Part of the reason there is such concern is that there is no definitive list of all the laws affected and so there is a considerable risk of the accidental repeal of an important piece of law without replacement. The proposed timescale would not leave time for proper consultation and debate on what could be major developments in policy or approach. Prolonged uncertainty for businesses in particular seems inevitable.
The approach taken by the Bill – that all EU law will lapse unless it is expressly retained – runs directly counter to what Parliament agreed during the passage of the 2018 Withdrawal Act. That Act made provision for the repeal or reform of REUL and placed safeguards to ensure that Ministers did not abuse the extensive powers the Act granted them, safeguards the current Bill seeks to overturn.7
It is not just the scope of the law that concerns critics but the importance and complexity of it too. REUL covers large areas relating to the operation of the economy and therefore of critical importance to businesses, employees and consumers. Policy areas that would be affected, such as food safety, consumer protection and product safety are very important to ordinary people as are, for example, the right to paid holidays, to maternity and paternity leave and to the protection of your rights if your job is outsourced (TUPE). Environmental protections laid down in REUL matter to everybody.
In addition, the Bill applies not just to delegated legislation but also to rights directly conferred by EU Treaties (for example, equal pay between men and women). As there is no database of treaty rights, the Bill’s impact on this aspect of REUL cannot be quantified.
Although the Bill excludes primary legislation it does in fact include REUL made by amending primary legislation via secondary legislation. For example, the Working Time Directive was implemented in the UK through the Working Time Regulations 1998 which in turn amended the Employment Rights Act 1996. Should parts of statutes be allowed to lapse in this way?
There are major implications for the civil service and the delivery of Government policy because of the volume of work involved. Critics have pointed out that DEFRA would have to bring forward a new law every day in 2023 to meet the deadline at a time when departments are being asked to reduce their staffing. In total, to repeal, reform or extend all the 3,800 pieces of REUL would require the production of at least three times the amount of delegated legislation that would normally be considered by Parliament in any one year.
It could prove particularly difficult for Ministers in the present Government to propose to extend parts of REUL because of objections from within their own party.
The Government’s advisory body on deregulation, the Regulatory Policy Committee, said that the impact assessment published by Ministers was not fit for purpose. In particular, the Committee noted that Ministers had not quantified the benefits from the abolition of REUL and had not even attempted to assess the impact of each of the individual REULs subject to sun setting. Furthermore, the Bill was creating uncertainty because it was not clear which of the current REULs would be retained and which would be repealed.
One of the features of the Bill is that it enables a major reduction in Parliamentary scrutiny by switching from positive to negative resolution procedure for the delegated legislation that will revoke, replace or reform REUL. An aspect of this which has attracted particular criticism is the striking absence of consultation provisions in the Bill. The powers granted to Ministers are of the type known as “Henry VIII clauses” because they give Ministers wide power to change the law by regulation.
The sheer volume of law affected will in any case mean it will be impractical for Parliament to scrutinise what is being done in the time available. A problem made worse by the absence of a complete record of the law affected. The Government admits that its EU law dashboard, which shows 2417 laws as REUL, is incomplete. Indeed, a further 1,400 laws were identified by National Archives research. This means that Parliament being asked to agree to repeal laws that have not been identified. This creates legal uncertainty when the Bill is said by its supporters to ensure certainty.
Clause 15 is of particular importance as it allows not just the restatement of REUL but the modification of it in ways which amounts to policy making without consultation and by delegated legislation. Critics argue that this is more than amendment for the purposes of legal certainty and has constitutional implications.
It is legally true that Parliament can reject delegated legislation to which it objects but in practice this rarely happens. The Commons last did so in 1979 during a hung parliament; the House of Lords rejected a regulation in 2000 but has not done so since. Debates on delegated legislation usually last just 90 minutes and no amendments can be made.
Interpretation of EU law
The dropping of the supremacy of EU law and other general principles is a more understandable development as the UK has now left EU, including the transitional period. But there is a danger of legal uncertainty if REUL is subject to new tests, not least because the Government has not issued any guidance as how they think it should be interpreted in the courts in future except in very general ways.
The Bill has major implications for the devolved administrations. While they have the same powers in the Bill to repeal, restate or reform REUL as the UK Government (provided it is within their competence), it will be difficult for them to do so by the end of 2023 because of capacity issues. There also could be disputes as to competence between HMG and the devolved administrations, for example in relation to environmental law where the Scottish and Welsh Governments are likely to adopt different approaches to Westminster. Both the Welsh and Scottish administrations have made clear their unhappiness with the Bill and neither the Senedd nor the Scottish Parliament have given their consent to the Bill.
Impact on external trade
The passing of the Bill would create some uncertainty for existing and potential trade partners with the UK. This is because we do not know which parts of REUL will be revoked or reformed. Some free trade agreements have been negotiated on the basis of the existing REUL (e.g. the parts on food and product safety) and might unravel if REUL was dropped or substantially amended.
There are also questions about the Bill’s potential impact on the UK-EU Trade & Co-operation Agreement. The EU has always made it clear that if the UK moved substantially away from Single Market law in important areas it would regard that as grounds for reducing trade and other co-operation with the UK.
The statement on REUL in the 2019 Conservative manifesto did not foreshadow a Bill of this scope and implication but implied a far narrower change. To the Bill’s critics, its radical approach goes beyond any mandate contained within the manifesto.
The changes to employment and environment law, in particular, which would follow REUL being allowed to lapse, would be immense. Ministers have been keen to reassure that no such radical moves are intended but it is the absence of any procedure for Parliament to be able to guarantee that which concerns their opponents. There are big questions too about the principle of allowing such big changes by secondary legislation rather than by primary legislation. To critics of the Bill, this is far from the notion of “taking back control” advocated by supporters of the Leave campaign in 2016. Far from parliament being in charge, the Bill puts ministers in a position to make radical changes to the law without consultation or effective scrutiny.
The presence of a large quantity of retained EU law on the UK statute book raises important questions. There was a recognition that what to do with it was an issue that could not be ignored. But the Government’s Bill has attracted unusually wide opposition because of the approach taken; criticism of it has come from a larger group than those who opposed Brexit. It was striking that the Institute of Directors should have chosen to join with the Trades Union Congress to object to the Bill, alongside environmental groups and others. The risk of the Government’s approach putting the UK in breach of the TCA and triggering a dispute with the EU particularly worries the business community.
There are some signs that the Sunak Government is having second thoughts about the scope of the Bill, if not its methodology. The lack of capacity to bring forward the large amount of new legislation needed has raised concern across government. The approach of HM Treasury in pursuing financial services regulatory reform through a more narrowly focused Bill, would be one way forward in other sectors, rather than using an omnibus Bill.
If the Bill remains unamended it will face major opposition in the Lords and delegated legislation issued under Clause 15 (in particular) could trigger a constitutional crisis in the future.
There is a general consensus that the Bill in its current form is deeply flawed and could cause a great deal of damage and dislocation if passed unamended. It will be hard for the Government to ignore that consensus.
This is an edited/pruned version of a paper published here by European & International Analysts Group