Last week Jacob Rees-Mogg, the new business secretary, tweeted: “Having regained our independence from the EU, we should be able to do away with outdated European regulation. Today’s Brexit Freedoms Bill will allow us to set our own laws for our own people—helping UK businesses innovate and grow the economy.”
That statement is right only if you read “we” and “us” as meaning ministers, acting on their own. In truth, the Retained EU Law (Revocation and Reform) Bill (to give it its proper name) grants ministers unprecedented power to rewrite and replace huge swathes of law covering matters such as environmental protection, consumer and workers’ rights and product safety, with hardly any reference to parliament or any requirement to consult those affected. Indeed, the Department for Business, sponsoring the legislation, admitted in a press release that “By giving the government new secondary powers to amend, replace or repeal any retained EU law, the amount of parliamentary time [translation: “scrutiny”] that is required has been dramatically reduced.”
The Bill applies to any bit of EU law that automatically became part of UK law when we were a member (usually after UK agreement and scrutiny by the European Parliament) or which, after being passed at EU level, entered the UK statute book through secondary legislation. An example of the former is the regulations currently in force governing the safety of cosmetic products and banning the sale of those tested on animals; an example of the latter is the regulations that protect sites of importance for threatened habitats and species. Under the EU (Withdrawal) Act 2018, these laws were left on the statute book to maintain legal continuity until parliament had had time to consider whether they should be replaced and, if so, with what.
But, to ministers contemplating the reality of a general election within the next two years, the normal process of legislating is an obstacle. So, instead, the Bill gives ministers a free hand in deciding what to do about any of these regulations. They will have six options.
- They can do nothing. Under a “sunset” clause, that will mean that the existing regulations will cease to be law on 31st December 2023. Parliament will have no control whatsoever over that.
- They can keep the existing regulations exactly as they are, either permanently or until 26th June 2026 (the only purpose of this date seems to be to make it look as if there is an important deadline 10 years after the referendum).
- They can “restate” the existing regulations, which essentially means writing them out again in UK, rather than EU, statutory language, making sure that existing EU interpretations and European Court of Justice case law carry over into the new text—so that it means essentially the same as the old text did. If you are wondering what is the point of that, and why Rees-Mogg (the former minister for government efficiency) thinks that it is an efficient use of civil service time, you are asking good questions.
- They can use existing powers in other statutes to rewrite or replace the existing regulations. The effect of that will vary from area to area, but many of these powers involve very little parliamentary or other scrutiny.
- They can replace the existing regulations with new regulations that ministers think “meet the same or similar objectives”. A possible example: ministers might decide that, rather than ban the sale of cosmetics tested on animals, it would meet the “similar” objective of discouraging such testing for the replacement law simply to require there to be a small label on such products indicating that they had been tested on animals. Parliament will have very limited scrutiny in these cases: the presumption—that ministers can always insist on—will be against debate, and unless parliament positively votes those new regulations down, they will come into force (note that ministers can always use their control of the Commons timetable to avoid debate).
- Most startlingly, ministers can replace the existing regulations with whatever they think is “appropriate”, even if the new regulations bear no resemblance at all to those they are replacing. So, for example, the replacement regulations on habitats could be made to apply to far fewer sites than do the current regulations, or gut the protections that the sites currently enjoy. Parliament does get a vote there—but the vote will be a crude “yes/no” choice after a brief debate, with no possibility of making amendments. The government claims that the UK will “have the opportunity to be bolder and go further than the EU” in passing new rights and protections. This is hard to square with the clauses which prevent ministers from imposing any new “regulatory burden” on anyone, including any “administrative inconvenience”. The ratchet is strictly one-way—towards deregulation.
Nowhere does the Bill require any consultation with people who might be affected, despite the importance and complexity of the areas it will apply to. Legislation produced in a rush to meet an artificial deadline, and without proper consultation or scrutiny, is unlikely to be good or sustainable law capable of making significant improvement to the UK’s economic position. On the contrary, there is an enormous risk that new regulations leaping fully-formed out of ministers’ heads will not work well—and that, intentionally or by accident, they seriously reduce rights and protections for the environment, consumers or workers. Moreover, even where (limited) scrutiny is required, it is likely that the government will come to parliament at the back end of 2023, just as the sunset clause is about to bite, with a pile of new regulations replacing existing EU ones—and the threat that if parliament dares to block or delay them, the existing regulations will fall, leaving huge gaps in the law.
It is hard to say what the Bill will mean for the future of environmental, health and safety, consumer and employment legislation, or for the future of our relationship with the EU (bearing in mind the level-playing-field commitments on environmental and labour standards in the Brexit deal, which commit us to uphold certain protections). This uncertainty is because, in the end, what happens will be up to ministers to decide, on their own and with no consultation. It is much easier to say what the Bill will mean for our parliamentary democracy and indeed for the UK economy: it is toxic for both.