ClientEarth Communications
16 November 2022
The UK Government is pushing ahead with a bill that could rip up thousands of legal protections that preserve wildlife, limit air and water pollution and regulate chemicals and food.
The Retained EU Law (Revocation and Reform) Bill, or what the Government optimistically refers to as the Brexit Freedoms Bill, could undo decades of progress and render the Government’s own environmental commitments useless.
Lawyers are concerned that if the bill becomes law, the UK could fall into legal chaos and its climate and biodiversity targets could be blunted – at exactly the time when urgent action is needed most.
This is why ClientEarth is calling for the bill to be abandoned entirely.
Following Brexit, the UK carried over into its domestic law a range of European laws that regulate things like the environment, employment rights and consumer protection. This became known as ‘retained EU law’. To date, 3,800 pieces of such legislation have been identified but the Government is continuing to find more as its departments assess the statute books.
In September, the Government signaled that it wants to get rid of all of these retained laws in a remarkably short timeframe.
Under the REUL Bill, ministers would be able to revoke, replace, restate or update retained EU law without proper parliamentary oversight – and any retained law that isn’t specifically addressed by the end of 2023 would automatically expire under a ‘sunset clause’.
The bill had its first reading in Parliament in September 2022 and its second reading went ahead a month after.
This bill poses a number of risks and challenges that would have serious negative impacts across the board in the UK. Here are our top three:
Under the proposed bill, there would be no obligation for the Government to save any retained EU law. The bill does not provide any details on the decision-making criteria used to determine which retained laws will be kept or discarded, nor does it allow the public to take part in the process.
That means that in the midst of our biodiversity crisis, regulations that protect species and habitats could be gone, as well as limits on outside air pollution. Rules governing drinking water as well as water quality in rivers are also threatened. Also at risk are food safety laws as well as legal restraints around chemical use and those governing pollution from agriculture.
And at time same time, the Government has stalled in setting new targets that were set to replace environmental protections in the wake of Brexit under the 2021 Environment Act. The Government was required by the act to set new targets for air, water and biodiversity protection – but that deadline was missed in October 2022.
That leaves the UK in a precarious position. The Government is at risk of losing existing protections on one-hand with this REUL Bill while it leaves domestic environmental protections suspended and delayed in a moment of planetary emergency.
And the effects of lost protections don’t stop at the environment.
Under REUL employment rights will be at risk in the UK, such as the hours employees are demanded to work, paternity and maternity leave and principles of equal pay for male and female workers.
Consumer rights and regulations governing health and safety are also in the firing line.
Even if the bill is passed as quickly as possible, the Government will have little more than a year to review and make decisions in relation to thousands of laws. This process would take up almost all the working hours of the hundreds of civil servants tasked with the review. That timeframe is unworkable for a country facing a cost-of-living crisis and will almost certainly lead to protections falling through the cracks, with potentially significant unforeseen consequences.
Businesses will have to run knowing that rules and regulations by which they operate could change dramatically within the next 14 months – without knowing how extensive the changes might be or when they might occur.
The bill would allow Ministers to revoke and replace retained law at their discretion and without proper parliamentary oversight, which opens up the possibility that less effective regulation will take its place (if anything is replaced at all).
This outcome looks even more likely in light of the ‘regulatory burden’ clause in the bill, which states that any regulation introduced to replace retained EU law cannot increase the regulatory burden, which appears to bake-in deregulation and risks removing protections.
That means there will be fewer tools available to the Government to help it achieve its own legally binding goals and targets. This is not only bad for nature and the environment but also opens up the Government to expensive and time-consuming litigation when it fails to accomplish what it has promised to.
A legal analysis issued in February confirmed our concerns: by leaving the process of retaining, replacing or amending EU law entirely to Government ministers, this bill would have serious consequences for the UK’s democracy.
Hosting scrutiny and debate around potential laws is a key function of parliament – a centuries-old function that would vanish when it comes to retained EU law if the bill were to pass.
Voters, their elected members of Parliament and devolved legislatures would have no say when it comes to laws that have been in place for years or, in some cases, decades.
The bill is now at committee stage in the Commons, with experts and interest groups weighing in as the committee propose amendments.
These amendments and any others are then discussed in Parliament at report stage and then the bill will have its third reading in the Commons. Once that finishes, Parliament will vote whether or not to pass it.
The bill then goes to the House of Lords, where amendments can also be added, before going back to the House of Commons. Both houses need to agree on the exact wording of the bill before it can become law.
Any post-Brexit review of the laws retained from the EU to see what works, what doesn’t and what can be improved must be undertaken with great care and in sufficient time to avoid negative consequences for the environment and other matters important public interest.
However, we are concerned that the REUL Bill will instead lead to a chaotic and inefficient review that creates red-tape for the Government while threatening a whole host of fundamental protections. For these reasons, we believe the bill should be abandoned immediately.