As the controversial Retained EU Law Bill approaches its final days in parliament, two outstanding issues remain. Despite being of significant public interest, they have so far been batted away by a government which seems unable to look beyond the present to see the risks the future might bring.
The first is at the heart of our democracy: the role we expect our elected representatives to play in holding the executive to account. The bill will give ministers unprecedented power to chop or change over 4,000 laws covering areas that touch every part of our lives: from our rights in the workplace and safeguarding our children from harmful chemicals, to protecting air and water quality and cherished wildlife and green spaces.
The government is giving itself free rein to do what it likes
The power has been described by expert parliamentarians as “hyper-skeletal” and a “blank cheque”, meaning ministers can do pretty much what they like. While changes to laws will come to parliament, they will do so in the form of secondary, not primary, legislation. Only this week, the government used this method to change the law on protest in ways which parliament had already rejected in amendments to what is now the Public Order Act 2023.
While MPs are usually whipped to toe the party line, in theory the House of Lords, where the government does not have a majority, can reject such changes. In this case, Labour, whose support is needed to carry votes in the Upper Chamber, chose instead to table a toothless regret motion, instead of opposing what it called an “absolute, fundamental constitutional outrage”. It is, therefore, difficult to conceive any opposition voting down such changes for fear of retaliation from its future opponents, whichever party is in power.
Crossbench peers have painstakingly put options before the government to strengthen parliament’s role and to give MPs more of a say on changing or scrapping retained EU laws. But the government has remained incalcitrant, arguing that the current system of scrutinising secondary legislation is sufficient when its fatal flaws are obvious to many. The Hansard Society has been working up alternatives and even a former head of the government legal service is calling for change, but these will not be ready by the time the bill passes.
Why has the environment been a mainstay of debate on a constitutional bill? Because it is disproportionately affected, as more than half the laws in scope of the bill are environmental, covering fisheries, farming, chemicals, water, air, nature protection, animal welfare and many other environmental issues.
Words don’t guarantee future environmental protection, laws do
The government maintains it will not lower environmental standards through the bill and appears increasingly irritated that we and parliamentarians will not simply accept its words and abandon our campaign.
The simple fact is that words are not enough to guarantee environmental protection in the future and do not trump the law, as eminent constitutional law expert Sir Jeffrey Jowell KC explains in paragraph 44 of his legal opinion.
With an election looming, no minister can profess to have a crystal ball which predicts who their successor will be and how they will exercise the bill’s wide powers. Politicians have previously put economic growth above environmental protection, rather than adopting the holistic approach recommended by independent experts. Last autumn, the short lived administration led by Liz Truss showed how rapidly political winds can change, when it launched an attack on nature, prompting an extraordinary public backlash. There is no guarantee that this will not happen again.
The “usual” consultation procedures have been promised by ministers during bill debates. There is little clarity on what this will mean in practice as, increasingly, public consultations are either not conducted or are done so in very limited ways. For instance, there was no consultation ahead of the publication of the 600 laws the government proposed should be culled at the end of this year, including plans to revoke central parts of air quality regulations which have raised major alarm bells.
No consultation is becoming a habit
Important policies are increasingly thrust out without consultation, including the government’s flagship environmental improvement plan. This contains interim milestones which will guide collective action towards meeting statutory targets on improving air and water quality, wildlife protection and waste management. Those expected to drive this action were not even asked for their views.
When Michael Gove, as environment minister, set the wheels in motion for our new system of post Brexit environmental governance, he recognised that “Nature is, by definition, voiceless”. The government had the vision then to establish a new independent body to “give the environment a voice and hold the powerful to account…independent of government, able to speak its mind freely”. This body has now spoken and recommended, along with the Climate Change Committee, environmental advisers in Wales and the Scottish government, that the Retained EU Law Bill should include an environmental safeguard. Before it returns to parliament next Tuesday, government ministers have a final chance to end their myopia and embrace long termism, by adding this commitment into the bill.
If you would like to take action by writing to your MP, visit Friends of the Earth’s website.