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A bonfire of regulations – why would we want that?

‘A bonfire of EU Law’. The Retained EU Law (Revocation and Reform) Bill – sometimes called REUL Bill – is perhaps the most nefarious and dangerous of the many ill-conceived pieces of legislation being brought forward by this government. You may not know this, because the mainstream media are not giving it much airtime, but there is a consultation period which ends on 22^nd November – or possibly sooner. Please respond if you possibly can.

The reason why it is important is that this bill threatens to upend a vast body of British law, and in the considered opinion of most independent legal authorities to create a legal vacuum across many areas of daily life. As currently formulated it sets a ‘sunset date’ of 31 December 2023, at which time all “Retained EU laws” will cease to be operative in the UK unless action is taken.

These are OUR laws

The term ‘Retained EU laws’ is misleading. These are British laws which became part of our legislative framework as a result of EU membership during the 47 years between EU accession and departure. In many cases they replaced existing UK law which was already well out of date. Indeed in many cases they were laws initiated by the UK itself – in saner times this country was seen as a leader in international jurisprudence. There are major uncertainties about the definition of such laws, and even about how many they are: we were told initially that there were 2400, and now the number appears to be close to 4000.

During the years when the UK government was attempting somewhat ham-fistedly to legislate for its departure from the EU, it was obvious that something had to be done to avoid a cliff edge. The solution was the EU Withdrawal Agreement Act (EUWAA) 2020, which provided for all existing EU derived laws to be incorporated into British law, as failure to do this would create a vacuum. The intention was that over many years changes could be made as required on a case-by-case basis. During the ill-conceived race for the hearts and minds of the Tory party membership, both Liz Truss and Rishi Sunak gave undertakings that all EU law would be removed from the statute books within a specified time. The Bill was launched on 22 September by Jacob Rees Mogg, minister for ‘Brexit opportunities’ and then briefly Business Secretary. Despite his departure for the backbenches, the bill is still in progress towards the statute books.

Workers’ rights at risk

Areas covered by the laws in question are too numerous to mention but they include workers’ rights, weights and measures, food standards, aviation safety, environmental protections and, my particular area, healthcare. Their simple abolition would mean – to give one example – the loss of the right to statutory paid holidays or maternity leave. The onus is in each case on the department concerned to retain or replace laws considered appropriate, as without such intervention they would simply disappear. The guidance is that there should be a presumption in favour of deregulation, ie more rights for employers, fewer for workers. An estimated 300+ laws do not fall under the heading of any one department and therefore would disappear by default. And remember, until recently the Conservatives claimed to be the party of law and order.

Departments responsible (original list from gov.uk)

If this bill becomes law the only way in which chaos can be prevented is by active intervention of civil servants across many departments. This at a time when most are already overstretched with other work, when many have chosen to leave or indeed been dismissed and – let’s remember – at a time when the government is still threatening to cut the civil service establishment by about 90,000. Remarkably, Parliament is wholly excluded from the process. And, surprise surprise, the Government has refused to carry out any impact assessments.

The bill has no support in the legal profession and has been roundly condemned by many who are in a position to know, including the authors of the original concept of ‘Retained EU Law’. It does not even pretend to bring any benefits other than being an ‘expression of sovereignty’, i.e. divergence for divergence’s sake, a sop to the extreme right wing of the Conservative party. It is entirely possible that the choice of 31 December 2023 is deliberate, as it means the whole wretched process will be completed in advance of the next likely general election, and Labour, coming into government, will find it almost impossible to undo the damage.

Poisoning relations and causing trouble in Northern Ireland

The REUL Bill, if enacted, is likely to increase friction between the UK and EU, damage relations, inhibit trade, and make any future realignment more difficult. Furthermore, it would not be enforceable in Northern Ireland unless the terms of the Northern Ireland Protocol are broken, something which even the Government claims to want to avoid. It can therefore only serve either to give the DUP yet another grievance, or to bring closer the possibility of EU sanctions because of a substantial breach of the law.

Jacob Rees Mogg is mercifully gone from government. Rishi Sunak, in spite of his promises during the campaign and in spite of his pro-Brexit credentials, is believed to be a pragmatist. So, for example, today we learned that the implementation of the UKCA has been postponed by another two years. We can hope that – though inevitable – this is a positive portent. It is still possible that the REUL Bill will be pulled, despite now being at the committee stage in the Commons. Even if it is not, it is possible for the sunset date to be postponed. Given the complexity of the changes required, and that they would be undoing 47 years of legal progress, it would be perfectly sensible to allow a further 47 years. Perhaps a sunset date of 31 December 2069 would make more sense. Or indeed, to be on the safe side, 31 December 2269.

You can access the Government interactive dashboard here, and this will give you a sense of the huge task which is proposed. You can see a list of (some of) the organisations objecting here. You can read the Hansard Society’s comments on the bill here.

You can respond to the consultation by following this link or by emailing scrutiny@parliament.uk. Please do so as soon as you can.

From the Government: