During its 40-year membership of the EU, the UK incorporated many thousands of pieces of EU legislation (including swathes of employment, workers and environmental protection legislation introduced under the EU’s Social Chapter) into UK law. To ensure a smooth transition when the UK left the EU, that legislation was swept across onto the UK Statute Book as ‘Retained Law’. Since one of the arguments of the Leave campaign had been to ‘take back control’ of the UK’s legislation, it was only to be expected that Retained Law would eventually be inspected for the logic of keeping it in a UK outside the EU – not least since part of the purpose of EU legislation was to ensure legal conformity across a 28-nation trading bloc.
Ideally, each piece of legislation would have been individually assessed to decide on its merit and value to the UK’s international competitivity and its compliance with international norms on climate change, environmental protection, human and employment rights etc. Laws which met those requirements would then have been redrafted to suit the UK specifically: those which did not and which the UK outside the EU did not need would have been jettisoned after due consideration.
Whilst it is widely accepted that a review and redraft of EU legislation is necessary and even logical for a UK outside the EU, concerns have been increasingly focused, not on the changes per se, but on the method that the government is planning to use to make those changes.
The Government published a dashboard outlining the 2,400 pieces of Retained Law it had identified (including 570 laws governing environment, agriculture and food safety; more than 400 laws governing transport; and more than 200 covering work and pensions). However, a recent Financial Times article suggested this may have been a significant underestimate, as researchers at the National Archives have identified a further 1,400 pieces of legislation that might be affected by the Bill – for example, increasing the 570 pieces of Retained Law under review in the environment sector to 835.
Following the realization that the process of evaluation and re-drafting of each individual piece of Retained Law would have taken many years and tied up thousands of hours of civil servants’ time, the Government decided on an alternative approach: the Big Bang. A piece of legislation (‘The Brexit Freedoms Bill’ – real name the EU Law (Revocation and Reform) Bill – the Bill) aims to sunset all retained EU law at the end of 2023. The Bill is at second-reading stage in the Houses of Parliament.
The Bill confers extraordinary powers on Ministers, allowing them to decide what laws to save or discard with minimal (a two hour debate) Parliamentary oversight; no public consultation; and an ability only to reduce standards and protections, not improve them. In addition, the current draft raises the possibility that a law might be ‘accidentally discarded’, since if a piece of Retained Law has not been actively reviewed and saved, it will automatically disappear, creating a legal lacuna.
Government Manpower Constraints Increase the Risks …
The risks of such a ‘gap’ are increased by a lack of dedicated resource in key government departments working on replacing Retained Lwas. For example, there are reportedly fewer than 70 officials working on BEIS’ 318 laws (as against a recommended 400+ officials) and only three officials working on the Department of Health and Social Care’s 137 Retained Laws (against the 150 estimated to be required). To tackle DEFRA’s quota of Retained Law, it has been estimated that officials would be required to consider one piece of legislation every day (including weekends and bank holidays) between now and December 31 to hit the 2023 deadline. To transfer all 2,400 pieces of Retained Law onto the UK Statute book would require at least 1,500 Statutory Instruments.
The Government Was Holding Firm…
Removing Retained Law from the UK Statute Book was one of PM Sunak’s priorities during his Conservative Party leadership pitch – he promised to create a Brexit delivery Unit to oversee the review or repeal of all 2,400 pieces of Retained EU legislation within his first 100 days in office. At the outset of his term, a spokesperson re-affirmed Sunak’s commitment to “to pushing ahead with our retained EU law bill…[to]…end the special legal status of all retained EU law and make it more easily amended, repealed or replaced.”
…but Opposition May Force a Climb-Down …
The Scottish and Welsh Governments have both lodged legislative consent memoranda recommending their respective Parliaments withhold consent for The Bill. The Welsh Counsel General characterized provisions permitting UK ministers to act in devolved policy areas without devolved administration consent as “constitutionally unacceptable” – concerns echoed by the Scottish Constitution Secretary who described the speed at which The Bill is being pushed through Parliament was ‘reckless’. An unlikely coalition of the Trades Union Congress, the RSPB and the Wildlife Trust have urged Sunak to abandon the legislation.
Since the Bill was originally brought before Parliament under the Johnson Government, Sunak has a certain amount of political space to review the Bill. The possibility of the creation of a Brexit Delivery Unit has already been discounted and his team has accepted that the 100 day target of his campaign video would not be met. Some recent reports suggest he is listening to those concerns and may be considering pausing the passage of the Bill; or deprioritising it; or extending the sunset clause to 2026 (the 10th anniversary of the Brexit Referendum).
Risking Tory Resistance …
However, the disunity of the Conservative Party may prove difficult to overcome. A delay would be badly-received by the right-wing groups on the backbenches, with one MP from the European Research Group reminding Sunak that he had assured the group of his commitment to the Retained EU Law Bill (and also to legislation to overturn the Northern Ireland Protocol).
The pace of progress of the Bill through Parliament will give a good indication of whether PM Sunak views the repeal of Retained Law as a priority and if so how he plans to deal with it. But in the meantime, the mix of political and legal uncertainty swirling around the legislation and its potential consequences could significantly increase the risks for companies operating in the UK. The absence of legal assurance with regards to future employment laws, technical standards and other matters could have a chilling effect on investment decisions. And, a battery of new UK legislation with standards distinct from those operating in the EU would create potentially significant compliance costs for companies already struggling with rising operating costs.