This post is by Georgina Holmes-Skelton, head of government affairs at the National Trust and former House of Commons clerk.
Much has been written about the risks posed to environmental protection by the Retained EU Law Bill (REUL Bill). But are the politicians listening? It sadly appears from the parliamentary debate so far that our concerns are frequently dismissed as overblown.
I have a theory: one of the biggest challenges for NGOs is getting MPs and the public interested. For most, the content of the REUL Bill is abstract and rather dull.
I say that not as someone who finds environmental protection dull,. Quite the opposite. And I’m not the only one. Polling consistently shows that the public cares more deeply about nature than our politicians perhaps appreciate.
This bill has unknown consequences
But this bill does not propose specific, damaging changes to environmental law. If it did we might find ourselves on firmer campaigning ground and flicking through the pages of the familiar playbook of how to bring to life the likely impact on the environment and nature.
Rather, the problem with this bill is that we don’t know precisely what its consequences will be.
We do know that it creates a legal framework for ministers to repeal or replace large sections of law inherited from our historic membership of the EU. This includes some of our most fundamental laws protecting nature, and those with wider potential impact for landscape and heritage, like environmental impact assessment.
This process is framed in a deeply problematic way. First, it establishes a sunset clause. This ticking timebomb, requires government departments and ministers to review, understand and make decisions about the future of thousands of pieces of law across a wide range of policy, or face their automatic repeal at the end of 2023. This is an enormous task which creates a completely unnecessary call on Whitehall’s resources, especially at a time when departments are being asked to make even more savings. And it will distract from taking real action to address the climate and nature crises, which has significant economic implications for the UK.
What’s proposed will remove the right of scrutiny
Second, the bill grants current and future ministers the powers to replace existing legislation through secondary legislation. This is unfortunately where many eyes start to glaze over. What on earth is secondary legislation, and why is it so bad?
Put simply, secondary legislation is a way of making law which doesn’t involve going through the same, full rigorous parliamentary process that bills must go through. There are various forms of it. Some, known as affirmative statutory instruments, require a reasonable degree of parliamentary scrutiny and a vote in both Houses of Parliament. But the most common are negative statutory instruments. These do not require either a debate or a vote to become law. Neither form can be amended, and it’s vanishingly rare for parliament to intervene against them.
The use of secondary legislation is not automatically problematic. But the power created by the REUL Bill allows ministers to “replace [retained EU law] with such provisions as [they] consider appropriate and to achieve the same or similar objectives” or even simply “make such alternative provision as [they] consider appropriate”. Ministers would, therefore, have very wide discretion to replace existing laws with something completely new and with potentially very different objectives.
The bill also sets out that any changes to existing secondary legislation could be done through negative statutory instruments. This means that major legal frameworks such as the Habitats Regulations could be replaced without any parliamentary scrutiny or consent. Well established legal frameworks which have helped to protect people and the natural and historic environment from damage for many years could be transformed or lost without any opportunity for meaningful input from parliament. This cannot be the right way to achieve positive, democratic change to vital, well established protections.
It’s very easy for ministers to say they intend no harm to our environmental protections. But we haven’t seen any of their plans. And remember that their powers apply regardless of who is in charge and, once set in law, tend to be difficult to remove. In the context of a volatile political environment, we should all be wary of the unintended consequences of broad powers and limited parliamentary oversight.
It’s legitimate for government to want to review inherited legislation, but not like this. We would welcome consultation on considered proposals to reform existing environmental law. There are clearly areas where improvements can be made. However, this bill, as drafted, is inadequate and does not create a credible path to achieving positive change.