It’s ironic that the government’s Retained EU Law Bill, hailed at its introduction as a vehicle to remove “needless bureaucracy”, is itself engulfing precious parliamentary and civil servant time, and creating a quagmire of legal uncertainty, putting supply chains, businesses and the public at risk.
This bill has won few friends. It has provoked outrage from parliamentarians who see it as a blatant power grab by the executive, part of a worrying direction of travel. Trade unions, businesses and civil society and consumer protection groups have all voiced their serious concerns, as have legal practitioners, think tanks and devolved administrations.
The costs of implementing the bill have not been declared. The independent Regulatory Policy Committee concluded that the impact assessment of the bill – the mechanism used to assess its costs and benefits to businesses and civil society – was not fit for purpose and gave it a red rating.
Reports over the weekend revealed the existence of a £4 million legal contract to support government lawyers in delivering the bill. This, we suspect, is the tip of the iceberg, with civil servant time likely to be diverted away from other policy implementation for many months to come, and particularly acute impact on the ability of devolved administrations to fulfil their law making priorities. This is of major concern in Northern Ireland where the lack of a functioning government and sitting assembly are an insurmountable hurdle to delivering the government’s retained EU law goals. But it is also of specific concern in Wales where the Welsh government’s limited legal capacity should be focused on legislation to establish a permanent environmental governance body and enshrine nature targets in law.
The bill emerged as part of the so called Attack on Nature, and carries considerable risks for environmental protections. At the most recent count, the Department for Environment, Food and Rural Affairs (Defra) has responsibility for nearly half of all retained EU law across government. These laws set a legal bedrock for the environment, providing protections and standards for a vast array of matters, including wildlife protection, air and water quality, food safety, chemicals and pesticides pollution, animal welfare and the control of invasive species.
When the bill returns to the House of Lords on 15 May, it will continue to meet with trenchant opposition unless the government addresses concerns, which so far it has been unwilling to do. Here are three changes that must be made for it to be able to claim its Brexit brownie points and ensure its commitment to parliamentary democracy and stable government is not further endangered.
The government should swap secrecy for transparency
The process of identifying which laws are in the bill’s scope has been shrouded in secrecy, with the retained EU law dashboard the only publicly available source of data. It is not clear whether the additional 1,400 laws, identified by the National Archives, are included, nor when all of the retained EU law held by devolved administrations will be added.
Departments have been charged with cataloguing and deciding the fate of the retained EU laws they’re responsible for, an exercise which has involved no public consultation or dialogue. On 8 March, the minister Lord Benyon promised parliament that the government “…will shortly publish a list for noble Lords, so they will have plenty of time and opportunity to review the regulations we intend to allow to expire at the end of the year and those we wish to retain.” Two months on, and there has been no sign of the list.
Defra ministers have sought to reassure parliamentarians that their approach will be to retain laws by default, while removing redundant legislation or that which is superfluous to the UK. If this is the case, there should be no difficulty in publishing the list so that those familiar with the affected laws can check for accidental errors or unintended consequences. Not to do so perpetuates an atmosphere of secrecy that has shrouded the retained EU law programme from its outset and prompts concerns that the government has more sinister plans to scrap our important environmental laws.
Parliaments are friends not foes
If the government insists on its 2023 deadline, by which time all retained EU laws must either be retained, reviewed or deleted, there will be monumental pressure on the capacity of all the parliaments and assemblies in the UK. Even the relatively straightforward task of retaining laws will need to be done by drafting and agreeing hordes of statutory instruments in each of the nation’s parliaments. While laws could be retained in lists rather than individually, there would still need to be hundreds of instruments if this exercise is not to be impenetrable to stakeholders and scrutineers. The government will, therefore, need to work collaboratively with parliamentary authorities to manage the challenge.
To do this will require a reset of the relationship between the government and parliaments across the UK, in which the concerns that have been expressed are acknowledged and dealt with. For example, the UK government should agree only to legislate on laws which are the responsibility of the devolved administrations with their express consent.
In Westminster, as crossbench peer Lord Judge argued during the bill’s second reading, the meaning of “take back control” in a Brexit context reflects the constitutional principle that legislative processes should be returned to parliament not to the executive. Cross party amendments to restore this balance should be adopted.
Clause 16’s ‘blank cheque’ power is a problem
One of the strongest objections to the bill is that it would give the government unprecedented power to replace, amend or abolish existing laws without proper parliamentary oversight. This is particularly concerning given that many of these laws are designed to protect environmental standards.
Clause 16 of the bill exacerbates this. Described by expert commentators as a ‘blank cheque’ power, it would point law making in a wholly regressive direction, preventing ministers from adding so called regulatory ‘burdens’ when drawing up replacement laws. These include administrative inconvenience, financial cost and impacts on profitability. Given the crisis facing our rivers, it is difficult to see how the regulation of water quality could be improved without substantial investment, for example, which would fall foul of this restriction.
There is another way. Crossbench Peer Lord Krebs has proposed an amendment which would require ministers to maintain existing levels of environmental protection and food standards, and respect international environmental agreements when they use the bill’s powers. This common sense addition would merely add what ministers claim is their intent to the text of the bill, ensuring that future governments cannot misuse these powers to undo important protections.