The Brexit nightmare continues sowing uncertainty everywhere. We had learned that the Retained EU Law (Revocation and Reform) Bill (REUL) sought to make major changes to the body of retained EU law that resided within UK domestic law. Within the Bill, a ‘Sunset Clause’ gave an expiry date such that, once it is passed into law, parliament should have the chance to decide on its merits again after a set time. Otherwise, REUL would have automatically deleted every EU law not already reviewed by the government.
The objectives would have involved a rapid divergence from EU laws. The supremacy of EU law over UK legislation would end, with general principles of EU law being abolished as part of UK law and a facilitation of UK courts to depart from retained case law with the status of directly effective EU law will be downgraded.
On 10 May 2023, the government announced it will scrap the Sunset Clause. Instead of potentially abandoning all EU laws in UK legislation at one blow, a list of around 600 pieces of legislation is to be published, and it is aimed to revoke these by the end of 2023. But how significant is the change?
Even the august Law Society has expressed concern about the parliamentary scrutiny of future legislative changes. The Society has asked the government to come clean: to publish an exhaustive list of every piece of legislation being revoked as soon as possible to ensure adequate scrutiny of the affected laws. This is no mean task, given the hundreds of pieces of legislation involved, especially for Civil Service and Law Society experts. In a consultation process, the latter Society will be both meeting with civil society organisations concerned with the bill, and continuing their engagement with parliamentarians as the Bill moves through the House of Lords. But who might be affected? REUL was championed by Jacob Rees -Mogg and it remains a calculated gesture to please Tory right-wingers.
The principles of direct effect, supremacy of EU law and general principles of EU law will be removed. In other words, courts would be encouraged to depart from case law. Maintaining EU laws is not a sop to Remainers. Dispassionately speaking, Tory Eurosceptics may seem more exercised by the source of these laws than their content. If it comes from ‘Brussels’, to them it is an imposition on our legal system – regardless of legal merit. Yet this is a distraction.
The laws involved are many, but let’s look at three for example.
- Workers’ Rights
The TUC states that government want to make it easier for “… upper courts to refuse to consider bids to overturn established case law, which should give a degree of legal certainty”. So-called Henry VIII powers would be gained, enabling ministers to revoke legislation via regulation. It is therefore argued that workers’ rights including holiday pay, parental rights and health and safety protections remain vulnerable to the whims of a Secretary of State!
Given the present distractions, the Sunak government’s apparent volte-face is not altogether surprising and should not pass unremarked upon!
The loss of supra-national workers’ rights legislation would be a blow to working people anyway, ideally like all administrations, UK governments need to be internationally accountable. Even without that, another House of Lords revolt has caused abandonment of REUL, on a kind of ‘baby and bathwater’ principle; opposition arose from business, environmental groups, unions and Brussels. The result: a “scaled-down and less hurried version” of the said Bill.
- Northern Ireland
The Guardian article cited above makes a key point that Sunak’s Windsor Framework Agreement for Northern Ireland might be compromised by REUL which could cause a departure from EU standards. Senior figures in Brussels comment that:
“… if environmental and other standards are allowed to fall in the UK, threatening the so-called ‘level playing field’, this could seriously undermine the UK’s post-Brexit trade deal with the EU and potentially lead to a trade war”.
Areas of concern are air and water pollution regulations and the use of agrochemicals. Curiously, Number 10 is not prepared to sacrifice so much for the Tory right!
- Environmental protection
The loss of EU oversight in environmental matters is already adversely affecting our lives, and in a scandalous and disgusting manner where sewage is concerned. This displays a cosy relationship of the Conservatives with utilities and their investors. For water supply and treatment this is extremely dangerous for our health and that of our flora and fauna. We need look no further than the inability of the regulatory framework to prevent untreated wastewater (aka ‘sewage’) into our rivers, lakes, and coastal waters. Water companies continue to make profits out of what was once a public service, neither the economic regulator Ofwat, nor the Environment Agency seem to have done their jobs with devastating impacts which this newspaper is now tracking. In fact, poor investment in sewage management has been noted for some time.
The shelving of widespread REUL legislative impact highlights the importance of UK aligning itself with established EU good practice, for this is borne of experience over several decades and in countries experiencing some very different economic histories and environmental conditions.
The good news is that a serious veer away from our EU legacy championed but the Tory right wing looks like failing, and so it should – for all our sakes. For ‘UK plc’, emerging stunned into the post-Brexit world, neither the present muddle, nor a vanished vision of the Sunny Uplands of Brexit is good. Maybe this is the turning point for better alignment with our former EU partners? This would be a constructive outcome in the medium-term; many hope it will be so!