Few things illustrate the absurdity and irresponsibility of Brexit better than the Retained EU Law (Revocation and Reform) Bill (REUL). Like much of the Brexit project, it promised to do things which are impossible, and if achieved, were likely to be hugely damaging. It proposed to replace or abolish all the laws and regulations made with our European partners over 47 years, and to do this in less than a year, without even knowing how many such laws there are. It was probably the most irresponsible thing that this government could do, in what looks like its dying days.
Will she, won’t she?
Despite the obvious dangers and impracticalities, the government used its Commons majority to force the Bill through the House of Commons. The plan was to get it into law before the summer, and in March, the Bill appeared in the House of Lords timetable. A month ago, it looked as if the government was having cold feet, and it disappeared from the timetable. However, ten days ago, it was then rescheduled for debate on 15 May, and the government announced a £4 million contract with a private law firm to help cope with the workload. Preparing for next Monday’s debate, Peers proposed 50 amendments, some of which would delay its implementation, probably beyond the next general election.
Now, only three days before that debate, the Minister, Kemi Badenoch, announced in an article in the Daily Telegraph that there will be major changes. She has now been formally reprimanded by the Speaker for announcing the changes before she had reported them to Parliament.
How many ‘European’ laws do we have?
For 47 years, British politicians, lawyers and civil servants worked with their counterparts in the other member states to formulate laws and regulations on a multitude of issues, large and small. All were agreed by the elected European Parliament, by the Ministers of the Member States, and by the UK Parliament. Because they were the product of careful scrutiny and negotiation, almost none (under 2%) were opposed by the British government and they became as integral to British law as anything created by our own government.
Despite this, the Brexit advocates promised to free us from this ‘European law’. But, because nobody ever imagined that we would need to know, it was nobody’s job to keep a list of such laws: they were simply British laws. So, we don’t know how many there are. When the government decided to remove them, it reported that there were 2,400, involving 300 policy areas, and 21 sectors of the economy. Reviewing that many would have been a huge task, but since then, it has become clear that thousands had been overlooked. The latest count is over 4,000, and it is very likely that there are more.
It is not clear how these latest changes will take place. At the time of writing, the House of Lords debate is still scheduled for 15 May. Whatever happens, major concerns remain about the powers which the government is seizing for Ministers, about standards and safety, and legal uncertainty.
Because removing EU laws from the UK statute book was a key Brexit pledge, the government was desperate to complete the process before the next general election. But because it would be impossible to consider 4000 laws individually, the Bill had a ‘sunset clause’. This meant that all ‘EU derived law’ would simply cease to exist on 1 January next year, unless a Minister has decided to keep it, modify it, or extend the deadline date. So, many of our laws would simply disappear, without any opportunity for Parliament to debate them. Since nobody knows how many there are, some would vanish without anyone knowing, until an issue comes before the courts, and we discover that there is no law.
A second set of concerns were constitutional. The government argued that, because of the volume of work, Ministers should have the power to decide what happens to specific laws. In practice, much of this would be done by (overstretched) civil servants. Most of the changes would be made by Ministers ‘laying them’ before Parliament, for approval, but without scrutiny or debate.
A similar issue arose in respect of the powers devolved to the Scottish, Welsh and Northern Irish administrations. Again, because of the urgency, the Bill would have given Ministers powers to change the law in areas which are explicitly the responsibility of those administrations, in defiance of the devolution settlements.
Standards and safety
A major area of EU activity over the decades has been protecting the environment, and creating high common standards of safety, food, medicines, workplace safety and animal welfare. Afraid that some of these laws might lapse, either for ideological reasons or by accident, Lords amendments aimed to limit Ministers’ powers to act in some of these fields without Parliamentary approval. Given the current public concern about water quality, it is interesting that there was one specific amendment to ensure that the regulations which control Bathing Waters and the Water Environment would not be changed.
A fundamental principle of law is that people should be able to know what is, and is not, legal. The Law Society expressed serious concerns that the Bill will make many laws much less certain, creating confusion for the courts (and work for lawyers), and risking the courts being dragged into political issues.
Retreat, but the danger is not over
For the government, timing is critical. Removing EU law from the UK statute book was a central promise of Brexit, and the government wants to be able to claim that they have achieved that before next year’s general election. So, any delay is potentially fatal to the Conservatives, and the Brexit project which swept them to power in 2019.
No doubt one of the reasons for the latest announcement is the prospect of government defeat in the Lords, where they do not have a majority. Some Peers have very strong views on these issues, and given the seriousness of the issues and recent events, they might well feel that the government has no mandate for these plans.
However, the government is not in full retreat. The blanket sunset procedure is abandoned, and they now intend to concentrate on revising or abolishing 600 specific pieces of law, including major areas of employment law. They also claim that 1000 laws have already been repealed or altered, though it is not clear what these are, and how this was done.
Presumably the government plans to make the new changes by amendments to the current Bill, although it would be unusual to make such major changes in that way, since the Bill has already passed the Commons. Whatever the strategy, the main concerns raised in the Lords will remain: will it transfer too much power from Parliament and the Devolved Administrations to UK Ministers; will it create legal confusion; and will it undermine protections for citizens. When the list of 600 target laws are published, a whole new set of debates are bound to begin. Trades Unions have already expressed alarm at the potential erosion of employee rights..
This was always a dangerous and impractical piece of legislation, proposed by a government in its dying days, with a Parliamentary majority but clearly little public support. The battle is far from over.