Jonathan Jones / Jan 2023
It’s difficult to think of anything good to say about the Retained EU Law (Revocation and Reform) Bill. This is the Bill that provides for most British laws which derive from our membership of the EU to lapse automatically on 31 December 2023, unless Ministers decide to keep them, amend them or replace them. I’ve described the Bill as “bonkers” and “a terrible way to govern”. I’m not alone. A wide range of organisations including the Institute of Directors, the TUC, the Employment Lawyers Association and various environmental bodies have called on the government to drop the Bill, saying it would “automatically sweep away thousands of pieces of legislation and established legal principles”, potentially causing “significant confusion and disruption for businesses, working people and those seeking to protect the environment”. The Director General of the CBI has similarly said that the Bill is “creating huge uncertainty for UK firms”.
What’s so bad about the Bill? Well here are four things.
- It reflects no discernible policy thinking. It provides for the removal of a vast body of law just because it originates from the EU. Nobody would claim all ex-EU law is perfect, but the Bill doesn’t identify which substantive problems it’s designed to solve. Certainly it doesn’t contain any indication of how the law might be improved – for citizens, businesses, the economy or society. On the contrary, the default position is that important existing protections will automatically fall away altogether, unless Ministers positively decide to keep them.
- It creates huge legal and practical uncertainty. As things stand no-one can know which particular laws will lapse at the end of 2023, which laws Ministers will decide to keep beyond that deadline, or which they will decide to replace or amend (and if so, how). The Bill also makes changes to the way that ex-EU law is to be interpreted by the courts, to remove or dilute former EU-related elements of the law. But again there is no indication of what difference in practice these changes are intended to make, or whether the outcome will make life better for anyone (except perhaps the lawyers who will get to handle the resultant litigation). It’s a recipe for legal chaos.
- The timescale is absurd. The end of 2023 is only 11 months away. We can assume that the civil service has been diligently doing its best to identify the laws which will be affected, and provide advice to Ministers on what should happen to them. But even if the fruits of that work were all published tomorrow, it would not allow time for meaningful consultation with affected bodies and sectors, for the secondary legislation to be drafted and properly scrutinised by Parliament, or for businesses and everyone else to prepare for the changes which will result.
- The Bill represents a massive power grab by Ministers. It is Ministers who get to decide whether a particular law survives the cull, whether the end-2023 deadline should be extended in any particular case, or whether any given law should be amended or replaced. This will all be done by statutory instruments made by Ministers. There is no way that Parliament can meaningfully consider those instruments. In most cases there will be no debate at all. So much for Parliament “taking back control”.
Despite all these concerns, the House of Commons has approved the Bill. Perhaps MPs were persuaded by rhetoric from the likes of Jacob Rees-Mogg, who in his former Ministerial capacity was an architect of the Bill. He described it as merely a “tidying-up Bill”, “restoring British law, with the common law replacing European law”.
With respect, this is bunkum. Any Bill which removes, or allows major changes to, thousands of laws, governing vast areas of our national life, is doing more than “tidying up”. Nor is this anything to do with the "common law". This is about the standards of regulation and protection set out in legislation. There is no question that the government and Parliament can make choices about those standards, including choices about what should change now we have left the EU. This is not just an administrative chore for civil servants, ticking a box “repeal” or “retain”. These are important policy decisions for democratically accountable politicians. Those decisions should be taken by a proper process of policy formulation, consultation and parliamentary scrutiny. The Bill provides for none of that.
The Bill is now before the House of Lords. I hope they will ask the government to think again, and at the very least give the Bill a good going-over, for example removing the end-2023 deadline and imposing some proper requirements for consultation and parliamentary consideration. This would take time, well beyond 2023. But it might just result in better law, maybe even some Brexit benefits.