A bonfire of EU legislation

Neil Howe takes an in-depth look at the potential impact of the Retained EU Law Bill

Towards the end of 2022, the government ignited a ‘Brexit bonfire’ with plans to revoke or reform all EU law that still has effect in the UK after Brexit. The contentious Retained EU Law (Revocation and Reform) Bill was introduced into the House of Commons on 22 September 2022 to a fanfare of removing the ‘special status’ given to EU law that had been retained when we left the EU, enabling it to be replaced with new domestic legislation more easily.

Under the Bill, all law derived from the UK’s 40-year membership of the European Union must be reviewed and either transferred into UK law or scrapped by the end of 2023. According to the government, these laws were never intended to sit on the statute book indefinitely.

What’s affected?

The potential effects aren’t pretty. The Bill covers retained EU law, which makes up the EU Regulations and Decisions that transferred directly into UK law. They were adopted into the UK statute book exactly as they stood the moment we left the EU on 31 December 2021.

More worryingly, it also applies to EU-derived domestic legislation that implemented EU law, such as directives. This means virtually all environmental legislation could be scrapped – from water quality, sewage pollution, clean air, habitat protections and the use of pesticides – alongside rules and regulation that affect everyday businesses. Policies created to reduce energy consumption and costs under the ESOS Regulations and requirements for EPCs, DECs and air-con inspections under the Energy Performance of Buildings Regulations are all in the firing line.

The Cabinet Office has established a public dashboard for retained EU law, which provides a comprehensive catalogue of the laws affected. The government says the plan is to update it on a quarterly basis as legislation is repealed or replaced, which will empower the public to hold the government to account and scrutinise EU-derived laws that will remain on the UK statute book.

The Bill’s key proposal is that the majority of retained EU law and EU-derived legislation will simply expire on 31 December 2023, unless action is taken. In other words, legislation needs to be produced to specifically save it. Any retained EU law that remains in force after the sunset date will be “assimilated” in the domestic statute book, by the removal of the special EU law features previously attached to it. This essentially removes any link back to the EU, and provisions exist in the Bill to rename such assimilated law accordingly. The sunset date can also be extended until 2026, for “more complex” reforms.

Implications

Official government figures indicate that 2,400 pieces of legislation, across 300 policy areas and 21 sectors, are affected. But it has been noted that other Whitehall sources report the figure to be closer to 4,000, along with an estimate that around 1,500 statutory instruments would be needed to convert any retained EU law that was deemed necessary into the UK statute book. Defra is the worst affected department, with 570 documents to work their way through by the end of the year, each one subject to 25 detailed questions about its use, along with multiple sub-questions. Greener UK, a coalition of conservation groups, said Defra officials would be able to spend just one day on each piece of legislation to hit the 2023 deadline. Even then, that would mean working all bank holidays and weekends.

There is therefore an obvious constraint on departmental and parliamentary time and resources, with a real risk of unintended harmful consequences if pieces of legislation are amended or removed without proper review. In an ideal world, everything would be carefully considered by the relevant government department and revoked or amended in line with the UK’s best interests. However, it feels unlikely that that is what’s going to happen. Anything not dealt with or looked at before 31 December 2023 will just automatically fall away.

“Anything not dealt with before 31 December 2023 will automatically fall away”

At a time when departmental and civil service budgets are being cut, there are genuine concerns that departments do not have the time or resources to consider the implications of the Bill on their sector appropriately, or to liaise with other government departments or agencies in areas where there may be overlap.

Another concern is how unfavourably the Bill’s impact assessment was received by the Regulatory Policy Committee (RPC). The RPC “red-rated” it, meaning it was not fi t for purpose. The quality of its different analytical areas was rated as either weak or very weak, meaning they provide inadequate support for decision-making. The RPC was also critical of the assessment of the impact of the Bill on small and micro businesses. It pointed out that no impacts for changes to individual pieces of retained EU law had been assessed.

Deregulatory free-for-all

Perhaps the biggest concerns are around the potential ‘deregulatory free-for-all’ where vital environmental protections could be ripped up, disappear overnight and public health is put at risk. Many criticisms of the Bill have described it as “legislative vandalism”.

“Many criticisms of the [Retained EU Law] Bill have described it as ‘legislative vandalism’”

The current Conservative manifesto promised “the most ambitious environmental programme of any country on Earth”. Speaking when the Bill was launched, the government reiterated it was committed to keeping high standards in areas such as the environment, emphasising that the plans could even allow the UK to be bolder and go further than the EU in these areas .However, given this government’s track record in recent years, it’s difficult to see the Bill as anything other than the latest publicly lauded return of our sovereignty post-Brexit and yet another attempt to evade full parliamentary scrutiny.

The prime minister has strongly downplayed any suggestion of deviating from the current timescales. This means ministers only have until the end of the year to complete their review of the biggest law-scrapping exercise ever carried out and unpick over 40 years of legislation and principles embedded into UK law. However, several government departments have suggested a three-year delay to the 2023 sunset clause. They already have the option to push back the deadline until 2026 for any legislation which they oversee, and it has been reported that three departments, including Defra, are all expected to use this power.

What next?

At the time of writing, the Bill was at the parliamentary report stage in December 2022. The Lords stages were due to begin in January 2023, and, if current timelines are maintained, the Bill would receive Royal Assent in April/May 2023. However, the Bill is looking extremely likely to run into protracted negotiation in the Lords, with both Labour and Lib Dem peers preparing to launch a catalogue of amendments amid concerns that there isn’t the “legislative horsepower” to meet the government’s current deadline. If that transpires, there could be little chance of the Bill passing by the end of the year.

Neil Howe, PIEMA, is a senior writer at Cedrec Information Systems