Bonfire of Insanity: The unwelcome return of the Retained EU Law bill

The Ready for Rishi video, released last August at the height of that endless summer of Tory tussling, is both a travesty and a trap because in it Sunak promises that if elected prime minister, he would review or repeal EU laws in his first 100 days to “Keep Brexit Safe”, and presumably placate increasingly frustrated Brexiteers with a deregulatory big bang. 

If you’re counting, that’s by February 2. Otherwise known as Not Gonna Happen day. 

What is actually happening is nonetheless worrying. The Retained EU Law (Revocation and Reform) bill – is back in the House of Commons for the final time on Wednesday next week to potentially “sunset” or scrap thousands of pieces of EU legislation by the end of this year.

This bill is a parting gift from Rees-Mogg, which Sunak has no choice but to keep going with given Boris Johnson has now made it “getting Brexit done”. It wipes all legislation from the UK statute book which originated in the EU. 

At stake are at least 4,000 pieces of EU legislation that were moved onto the UK’s statute books as part of the Withdrawal Act of 2018. According to Rees-Mogg, these laws are “mouldering on the statute book” but, in fact, they cover everything from electrical safety, food standards, and water purity to fundamental workers’ rights and environment protections. Lawyers say the bill directly affects every employment regulation passed as a result of EU laws since 1972 either under the European Communities Act 1972 or in order to comply with an EU obligation.

Once the bill is passed, the clock will start ticking down to December with the danger being that key laws or regulations will slip through the cracks – although there is every chance this bill could start a trade war then too. The Trade and Cooperation Agreement stated that the UK would maintain a level playing field of employment, environmental and consumer protections – all of which this bill wipes out in one go. 

Some estimates say 20,000 civil servants could be needed to carry out the necessary painstaking reviews, and critics argue there is simply not enough time for a thorough examination of all the laws, meaning there is a risk some could be scrapped almost by accident. Indeed, the National Archives has had to step in to do a separate assessment of how many laws are affected after Rees-Mogg’s dashboard was found to have more holes in it than Swiss cheese. 

This also means next week when they are asking MPs to vote for it, not even the Government Ministers presenting it can truthfully tell parliament every law that is included. 

Departments have the option to push back the deadline until 2026 for any regulations which they oversee and The Times has reported that three departments – the Department for Business, Energy and Industrial Strategy (BEIS), the Department for Transport and the Department for Environment, Food and Rural Affairs – are expected to use this power.

However, in response to a query from The New European, a BEIS spokesperson said: “The programme to review, revoke and reform retained EU law is underway and there are no plans to change the sunset deadline for any government departments.”

For Brexiteers, the prospect of a delay to their pet project is unconscionable: taking back control of the UK’s laws may perhaps be the only Brexit “benefit” (discounting blue passports and dubious trade deals with Australia and New Zealand) that they will be able to brandish at the next election. If the bill is delayed, they fear the only thing being flourished will be the white flag of surrender, as they would have it, to those determined to scupper the great Brexit project. Rees-Mogg has said that the Retained EU law bill will help embed Brexit and make it more difficult for future governments to try to rejoin the EU. 

Writing recently in the Telegraph, he said the government’s “Rolls Royce” departments should be well able to sort the needed rules from the chaff before the end of the year – he described reports to the contrary as “obstructionism dressed up as idleness” and he railed against House of Lords peers who would stand in the bill’s way. 

“What type of defeatism is it that would have a Bill passed by the democratically elected House emasculated by Europhile peers? What type of idleness is it that besets senior civil servants, allegedly working from home, who are murmuring that this is all too difficult? What type of government would it be that fails to deliver on its cornerstone promise?” he wrote.

The answer may be: “a responsible one”. Nearly everyone agrees that the bill, as it stands, is fatally flawed and it is no wonder that trade unions, business groups and environmentalists have all joined forces to urge a rethink, with some calling for its outright withdrawal. 

Tim Sharp, senior policy officer for employment rights at the Trades Union Congress (TUC), described the end-of-year deadline as absolutely fanciful. 

“The roles that we are concerned about are things like maternity rights, protections for part-time workers, protections for those whose jobs have been transferred, outsourced workers like cleaners and security guards. Some of those most likely to be affected by these rules are some of the most vulnerable workers in the country and there’s a real risk they could fall victim to either deliberate or inadvertent deregulation …It’s an astonishing way to make policy,” he told The New European. 

In a November response to a House of Commons call for written evidence, the Employment Lawyers Association (ELA) said the bill set a default that would “turn off” employment rights covering holiday pay, agency workers, part-time and fixed-term workers, maximum working weeks for office workers, HGV drivers and fisherman, as well as regulations governing maximum annual hours for commercial pilots, and preserving the employment contracts of workers when their business is bought by another, among other rights. 

It also said the bill could also erase the interpretive principles and settled decisions which the courts have relied upon to give a settled and predictable meaning to tens of employment law rights and obligations which are derived from EU law. This could include removing rights such as a facet of equal pay law which is being used by tens of thousands of women to claim equality with better paid men. Another criticism revolves around the fact that the bill gives government ministers wide powers, known as Henry VIII powers, to revoke, restate and rewrite laws. 

The ELA said this would create legal uncertainty, undermine growth and affect investment decisions. 

“If passed the Bill would mean that swathes of well understood, settled employment law and the principles to interpret them are put on a doomsday clock by the end of 2023 if government does not act,” the ELA said. “The Bill would then give government wide powers to revoke, amend and change legislation. We note that those wide powers include de facto maintaining the effect of the status quo. However, once passed the government would have to take positive steps to make this so.”

Hundreds of environmental laws covering water quality, sewage pollution, clean air, habitat protections and the use of pesticides are also threatened. Environmentalists say 570 laws could be revoked in a deregulatory free-for-all that could do untold damage to nature. 

“The majority of environmental law in the UK is retained from our time in the European Union, and potentially all of that is on the chopping block with this bill. That includes regulations protecting natural habitats, ensuring water and air quality, managing the use of agricultural chemicals and maintaining food standards,” said Angus Eames, a lawyer for the environmental law charity ClientEarth.

“A key concern we have is that party political pressure may influence the government to sweep away protections that it views as hindering business. That outcome would, in fact, be at odds with what many businesses want.”

Catherine Barnard, professor of EU law and employment law at Cambridge University, and Senior Fellow at UK in a Changing Europe, says the bill is totemic for free-trading, neo-liberal Brexiteers who want to get rid of any form of regulation. 

“For some of them, it’s ideological. They’ve always been against a big state or lots of regulation but the world is very different now. It’s  no longer a 19th century world we live in; we live in a highly complex, highly regulated world. Just look at the airline industry. Most people want it to be highly regulated because they want to get into a plane that is safe.”

In the end, she believes most of the laws will be saved, just because there is no time to do anything else despite the desires of extreme Brexiteers. 

“They haven’t got time to come up with a regime. The very hardcore Brexiteers will say, ‘but we want rid of all these rules, these rules are a burden on business’. The more moderate observers say, ‘actually, this goes to fundamental issues of safety, food safety, gas safety and airline safety and we need to have these rules in place’. And so I think it will probably go through eventually because it’s become totemic but the the get-out-of-jail free cards will then have to be used quite a lot.”

MPs have their last chance to change this Bill next week when it comes back to parliament for a final time. If they don’t intervene it will be a case of turkeys voting for Christmas, as it takes away their ability to do their job of representing their constituents.

Not only does the Bill delete thousands of laws – it explicitly hands the power to ministers and not MPs to decide what, if anything, replaces them. Ministers cannot even opt to use this power to improve standards – legally this bill will only weaken them. So much for Brexit restoring parliamentary sovereignty, the only control this will take back is to secretaries of state who will not have the inconvenience of having to account to the House why they are destroying your rights. 

If your MP won’t do anything about this, the next best hope will be the House of Lords, where several peers have said they will seek to slow or halt its progress partly because they fear it gives ministers, not MPs,  too much power over which legislation will be retained, amended or scrapped. 

Chris Fox, the Liberal Democrats business spokesman in the Lords, told the Guardian there “simply isn’t the legislative horsepower to come close to meeting the government’s deadline on this.”

ClientEarth’s Eames worries that any Lords’ amendments may not address the fundamental problem of the sunset deadline.

“Even if the House of Lords spends time making positive adjustments to the bill, unless the government agrees to amend the sunset clause, civil servants and ministers will still only have to the end of this year to assess thousands of pieces of retained EU law – all at a time when their capacity is stretched by a cost-of-living crisis.”

And even if decisions on certain laws are delayed until 2026, this will not address concerns about excessive ministerial powers. 

“The bill would give ministers almost unlimited discretion with no effective oversight from parliament. That means they would be free to do as they wish with retained EU law that provides vital protections – whether that be to amend, replace or revoke,” Eames said.

TUC’s Sharp would like the “utterly flawed” legislation to be withdrawn.

“If the government wants to reform any of this legislation that has its roots in EU law, they can do that; they can take a bill to parliament, they can pass it, MPs can discuss it, there’s nothing to stop them. What they seem intent on is this bizarre shortcut that will suddenly make anything with a tinge of the EU on it automatically disappear,” he said.

“And what does the government want to achieve at the end of it?” he wondered. “Does it have a grand plan about how it wants to reform employment laws? Has it talked to businesses or workers? It hasn’t done any of that work. It’s a project without a vision behind it as far as we can tell.”

The fate of the bill is also linked to Sunak’s shaky political fortunes and his unwillingness to do anything that might upset the ultras of European Research Group, or ERG. Already, Brexiteers angered by possible delays have accused him of seeking to reverse Brexit. Conservative Peer Lord Cruddas recently tweeted that Sunak was “showing his true colours – back under EU control, democracy be damned!” As Sunak, unlike his predecessor Liz Truss, did actually vote for Brexit, this is more proof, if proof be needed, that a revolution, like Saturn, always devours its own.

Sunak told the House of Commons liaison committee last month that he wanted to complete the review of EU laws “as quickly as possible”, adding he would like to target areas like life sciences, digital and data, financial and professional services in order to take advantage of “the new flexibilities and sovereignty that we have to do things differently”.

The prime minister noted that there were provisions in the bill for flexibility, but asked directly if that flexibility applied to the time limit, he said: “No, but it is about making sure that we can do this properly, which is what we are going to do … I think that is really important in demonstrating some of the benefits of the freedoms that we have from Brexit. I believe we need to do it quickly to provide the certainty that … people should expect.”

For Barnard, the internal Tory wrangling means the bill will be passed in some form, and she makes a direct link to the ongoing uncertainty surrounding the Northern Ireland Protocol Bill, which gives the government sweeping powers to unilaterally alter the protocol that governs trade in Northern Ireland. Tory backing for the protocol bill is a block to progress in talks with Brussels to end a long-standing row that has paralysed Northern Ireland’s Stormont Assembly because of the opposition of the main unionist DUP to the protocol. 

“If Rishi Sunak makes concessions over the Northern Ireland Protocol Bill, which I think he will have to do, that will aggravate the ERG, not to mention the DUP and therefore he’s going to have to offer them something in return – the Retained EU Law bill,” Barnard said.

“The question is will the Lords really fight to the end on this and have to get the government to use the Parliament Acts (to pass the legislation), or will the Lords eventually cave in or, as some argue, will the Lords not fight too hard because they’ll say the government has got to take responsibility for this and all the issues that will arise from it. I think it’s somewhat uncertain,” she said.

The only thing that does seem certain at this stage is that this is an ill-conceived, fatally flawed bill that seeks to sacrifice decades of hard-won rights on the altar of an ideology that has already paralysed UK politics for over six years, shrunk the economy and impoverished the very people it says it is supposedly liberating from the tyranny of an undemocratic system. 

Given the size of Sunak’s majority and his lack of grip on it, it is imperative every MP is challenged to justify their stance on this bill and what they are doing to stop it. As well as the damage it will do through a bonfire of rights, it also sets a dangerous precedent by giving a divided Government sweeping powers and removing any parliamentary accountability for how they are used. 

There is still time to do something about this madness. Write to your MP before Wednesday  January 18 and ask them if they know what they are voting for and every laws this bill could delete. If they don’t then urge them not to vote for it – not to hit delete over 4,000 times and in the process give away rights we have taken for granted for generations.