Amid strikes, an imploding NHS and spiralling cost of living, the very last thing Britain needs in 2023 is another self-inflicted crisis. Prime Minister Rishi Sunak told us last week that he wants to make this country “a beacon of science, technology and enterprise and lift our productivity, raise our growth rate [and] create jobs in the decades to come.” But in parallel last week, we learned that Number 10 intends to proceed with the Brexit Freedoms Bill, more dryly known as the Retained EU Law (Revocation and Reform) Bill, which was sponsored by the Department for Business, Energy and Industrial Strategy when Jacob Rees-Mogg was at its helm. The very premise of this legislation is a costly uncertainty that simultaneously undermines Sunak’s aspirations and Britain’s rule of law.
The grandstanding claims which surround the bill do not survive careful examination. Rees-Mogg’s department announced last year that it would enable the UK government “to remove years of burdensome EU regulation in favour of a more agile, home-grown regulatory approach”, and that “as a result of the Bill, around £1bn worth of red tape will be removed, giving business the confidence to invest and create jobs.” This is hard to square with what the legislation would actually do. It provides for the automatic expiry of an entire domestic category of law, retained EU law, at the end of 2023 unless the government actively does something before then to preserve the legal position. Putting aside for a moment any objections on the substance, the timeframe alone is impossibly tight and threatens to throw UK businesses into disarray.
It is worth examining, first, the question of “burdensome EU regulation”. Like it or not, over the course of several decades, Britain has implemented regulations across a range of complex areas which provide critical parameters for how we do business. These regulations serve as safety nets across our lives—from employment and environmental protections to animal welfare standards, consumer rights and the regulation of our drinking water and rivers. Caricaturing these laws wholesale as “burdensome”, based on their EU provenance rather than a detailed assessment of their content, betrays a simplistic and sloganeering approach to serious issues of governance with little regard for consequence.
Some quarters have asserted that EU law lacks legitimacy compared to legislation passed by parliament or made by UK ministers. However, the Bar Council of England and Wales, in its written evidence to the House of Commons Public Bill Committee, said that such claims “need to be taken with a pinch of salt. Whatever view may be taken as to the UK’s membership of the EU, the EU legislative process, whilst certainly capable of much improvement, contains a number of democratic checks and balances”. Much EU law and policy was influenced, supported and even promoted by the UK. “Assertions to the effect that the United Kingdom was in anything other than a small minority of cases ‘outvoted’, or abstained because it would lose, are wide of the mark,” said the Bar Council.
Put another way, this wasn’t law “done to us”. The UK strongly participated in the making of EU laws through its politicians, civil service, civil society, lawyers and judges. That does not mean the government of the day agreed with every such law, and the EU (Withdrawal) Act 2018 expressly provides for parliament to be able to amend Retained EU law (REUL) in the ordinary legislative way. There may be a case for considered amendments, updates or even removal of some regulation. But this bill provokes an emergency race to the finish on the basis of abstract objectives like “taking advantage of the benefits of Brexit.” The well-settled basis of large swathes of our law, created over decades and infused into our understanding of how modern Britain functions, is now subject to the ticking clock of a sunset clause of 31st December 2023.
The category of REUL reflects that many of the building blocks of our domestic law are based on or derived from EU law, case law from the European Court of Justice and European principles and concepts. Disentangling what is “pure” REUL from what is domestic creation is a complex task. Those principles, and the associated case law, have provided a settled understanding of the application and interpretation of the categories of regulation threatened by the bill’s sunset clause, and also for primary legislation which does not come under the bill’s axe. There are numerous statutes, such as the Modern Slavery Act of 2015 or the Equality Act of 2010, which contain law derived from EU Directives. Parts of those statutes now also face uncertainty because those interpretative principles are set to be simply erased. This leads to a very real likelihood of swathes of domestic law being swept away without scrutiny or design, and potentially unintentionally. Any breezy suggestion that such a massive exercise in legislative repeal is a straightforward task simply fails to understand the layers of complexity in the fields which these laws govern.
Law must be rational as well as capable of being understood and acted upon. Retained EU law, as part of our domestic law, has been understood and acted upon for decades. Generations of our lawyers and judges have grown up with it. But ultimately, when deciding upon making changes to our laws and regulations, the origins of the law are and should be immaterial. What matters are its consequences. And the consequences of this undertaking could be a collapse in legal certainty, with grave consequences for individuals, business and public authorities but also—and self-evidently—investment and growth.
Taking just one area, employment law, gives an insight. The bill effectively places all rights and regulations in a position of precarity that could see them repealed overnight. So, all sorts of rights, varying from holiday pay to limits on working hours, are at risk of falling into a vacuum with nothing to fill it, and no provision for remedying errors. Settled principles, by which lawyers and the courts understand and interpret laws—including primary legislation, which is otherwise outside the ambit of this bill—would also disappear at the end of this year. Nobody knows what that means in practice. Equal pay law, which is provided by primary legislation, the Equality Act 2010, has been developed through interpretative provisions and now well-settled case law which has ensured equal pay for countless women in Britain over the years. Even now, there are thousands of such claims currently going through the courts which are affected by these principles of interpretation.
The politically independent Employment Lawyers Association has explained the implications of such change. “By wiping the slate clean of all the decisions on which our courts have relied to build up a settled interpretation of EU law that runs through British employment law like a stick of rock, the Bill will create, on 1st January 2024, a raft of EU employment rights whose application, scope and meaning is unclear. Lawyers will no longer be able reasonably accurately to predict the effect of workers’ rights or employers’ obligations. Businesses will no longer be able reasonably accurately to predict their obligations. Workers will be uncertain as to the scope, meaning, application or entitlement to their working rights.” That all points to extensive litigation, which means costs and delays alongside the uncertainty—and in a legal system that is already overburdened.
Now multiply those practical effects across all the sectors on which the bill impinges. Hard-won protections and safeguards in environmental law could be lost in one fell swoop—either because there is a conscious unilateral decision to deregulate, or by accident in the bonfire of legislation that is lit by the bill. As Water UK, a membership organisation made up of water companies, points out, “something like 80 per cent of water legislation exists as a legacy of our previous membership of the European Union”, which means many legal protections for rivers, seas and drinking water could be jeopardised, as could projects and investments currently being planned. A similar percentage of animal welfare laws are estimated to be derived from REUL. Food safety laws, including the level of pesticide use, are at risk. So are a plethora of consumer rights and transport regulations which affect our day-to-day living. The UK government’s “REUL dashboard” cites over 2,400 pieces of legislation in play, across 300 policy areas and 21 sectors. Another 1,400 appear to have been uncovered at the National Archives, as reported by the Financial Times.
If it accedes to this bill, parliament is writing itself out of its own primary function in respect of critical areas of law
Those in government might not have liked our former EU membership, but it is a practical reality that the daily regulation required for the functioning of a modern society has taken place under the auspices of the EU, with Britain contributing to the process. If those are now to be dismantled, there needs to be a rational and evidence-based justification. That requires time, careful scrutiny and assessment. None of those are provided for by this bill, which if passed in its current form effectively will replace democratic checks and balances with ministerial diktat. If it accedes to this legislation, parliament is writing itself out of its own primary function in respect of critical areas of law and regulation which impact all of our lives.
The bill hands sweeping powers to the executive to revoke, replace or restate legislation without proper parliamentary oversight. The Hansard Society has called Clause 15 of the bill, which is the provision to replace or revoke secondary REUL, a “do anything we want” power for ministers. Nor is there any provision for consultation, or any detail of the decision-making criteria which ministers will employ to determine what should be revoked, replaced or amended, or why. So if parliament does vote to retain this bill in its current form, MPs and peers simply do not know what ministers intend to do with those laws. It gets worse. The bill hands ministers the power to be able to make modifications that they consider “appropriate to take account of changes in technology or developments in scientific understanding.” Not only is that an extraordinary amount of discretion handed to a minister, but it is also an indefinite power, which is not subject to the sunset provision. Serious harm could be done, for example, in the fields of artificial intelligence or climate or genetically modified food by an ill-considered ministerial intervention. Considering the pivotal role of science and AI in our modern world, these areas of government policy, and major national interest, ought to be the subject of primary legislation, and properly debated as such.
In its press release accompanying the bill, the government asserts that it gives the UK “the opportunity to be bolder and go further than the EU” in areas such as workers’ rights and the environment. But this is flatly contradicted by the bill’s provision that the overall effect of any replacement provisions should “not increase the regulatory burden.” This means that the bill operates as a regulatory ceiling rather than a floor. For example, the bill could not be used to improve animal welfare, or introduce a workplace right to disconnect from digital devices after hours. Meanwhile, ill-considered changes to REUL could trigger the “level playing field” provisions within the Trade and Cooperation Agreement which regulates UK-EU trade post-Brexit, and contains a “non-regression” clause on standards for employment and the environment, among others, with potentially significant ramifications. Changes to retained EU laws in these areas, or even accidental changes, could lead to accusations that the UK is in breach of its obligations. UK businesses already struggling with the impact of Brexit are unlikely to thank the government for changes that deregulate for the sake of it.
The constitutional and rule of law issues provoked by this bill compound all the concerns over its practical effect. The judiciary are already caught in the firing line thanks to a series of governments accusing judges of overstepping their constitutional role. And judges will be required to plug the gaps created by this bill. That consequence will unsettle the fragile balance between government and judiciary, where the legislature has cut itself out of the process by handing such vast power to the executive.
The government should ask what the purpose of law actually is. Although law may pursue ideological objectives at a macro level, it also must perform at a micro level of regulation, providing certainty of operation and interpretation to people and business who rely on it and seek to operate within its confines. In a week where alarm bells are being sounded over fundamental crises across the NHS, where concerns continue to mount over the rising cost of living, and workers’ rights and working conditions remain a fundamental concern, carelessly provoking a crisis of legal uncertainty—with knock-on implications for those very issues—is deeply irresponsible.
Sunak has pledged to be honest about the challenges Britain now faces. He recognised his predecessors made economic mistakes that he needed to fix. He needs to be honest about this profoundly flawed and anti-democratic bill. The government should put a stop to this unnecessary and harmful legal vandalism.
