Over recent months Link has joined business leaders, lawyers, trade unions, health groups and environmental colleagues to raise serious concerns about the Retained EU Law Bill. Hours of evidence to the Public Bill Committee, postbags of letters to decision makers, detailed briefing after detailed briefing – all have set out how the Bill creates unnecessary uncertainty about the future of regulations that we all rely on.
Ministers insist that opponents of the Bill, from the Institute of Directors to the TUC, Chartered Trading Standards Institute to Greenpeace, are collectively mistaken about the impact it will have. This blog explores the Government’s response to concerns about the Bill, ahead of its second reading in the House of Lords on 06.02.23.
Environmental regression – misinformation or likely outcome?
On the environment, the Government position is simple. As stated by Bill Minister Nusrat Ghani MP at Commons report stage of the Bill on 18.01.23: ‘‘The Department for Environment, Food and Rural Affairs has committed to maintain or enhance standards.’’ As such, any concerns about environmental regulation being weakened represent ‘‘misinformation’’.
These words, and the statements from Defra Ministers they refer to, are welcome - but they clash with the content of the Bill itself. The mechanics of the Bill are such that Defra can maintain standards but cannot enhance them overall. The Department is also required to work to a such a tight timetable that standards could be easily lost in the scramble.
All of the retained EU law on Defra’s books (1,781 as of this week) will, as a result of the Bill, face three possible outcomes. The first outcome, ‘assimilation’, is the most benign, seeing EU derived regulations transferred into UK Law. This the ‘maintained’ option referred to by the Bill Minister.
The second option is for regulations to be ‘reformed’, and it is here that the Government arguments run into trouble. Clause 15 of the Bill appears to rule out overall environmental enhancement. The clause prevents reform of regulation which increases the overall ‘‘regulatory burden’’ in an area, even if that burden amounts only to ‘‘administrative inconvenience’’ or an obstacle to ‘‘profitability’’. It is difficult to read this as anything other than a requirement for any strengthening of a regulation to be accompanied by weakening of another in the same area, to keep the overall regulatory burden the same. Clause 15 appears to dictate that overall level of environmental regulation will have to be the same or weaker than it is now, not higher. This caps ambition for the environment at the status quo and points a directional arm lower than that.
The third option is the starkest. ‘Repeal’ would see regulations dropped from statute book, without replacement. It seems unlikely that the Government would seek to do this to key environment regulations, however the sunset clause risks an equivalent outcome taking place. If laws aren’t specifically ‘saved’ by Ministers for assimilation or reform, they will not apply after 31 December 2023. In the words of the Bar Council: “The setting of an arbitrary, and in all the circumstances, impractical sunset date, with the consequent and entirely unnecessary risk of the disappearance of rules of critical importance to businesses, consumers, employees and the environment.’’ This frantic, unnecessary timetable could see the full detail of regulations overlooked and the consequences of their loss not fully understood, until it is too late. The discovery of over 1,000 pieces of Defra REUL not previously included in Government figures, added to the REUL dashboard just this week, raises the even more concerning prospect of REUL being missed entirely and automatically sunsetted out of law.
In sum then, it is possible that environmental standards are maintained through the Bill – but only if Defra assimilates environmental regulations lock, stock and barrel. This seems unlikely, especially given stated Ministerial plans to ‘reform’ a raft of environmental regulations, including the Habitats Regulations and the Water Framework Directive. The reform and repeal/sunset routes for environmental regulations lead not to enhancement, but in a different, more damaging direction.
Environmental organisations have listened closely to Government assurances on the impact of the Bill and appreciate that they are made in good faith. However, the current content of the Bill makes these assurances very difficult to deliver.
Sovereign powers - A fulfilment of Brexit or a Ministerial power grab?
The Government has a fall-back argument. Conceding that civil society and business may not like what the Bill does, the Bill Minister at report stage pointed to a reason why the Bill had to proceed none the less – to fufill ‘‘the promise that we would free ourselves from EU law and make UK law sovereign’’.
Regardless of anyone’s views on Brexit, it is important to note where sovereignty is to be vested by the Bill. It gives the power to decide the future of huge chunks of our laws to Ministers, as the executive. The role it gives to the legislature, to MPs as elected representatives of the people, is marginal. Some ‘reformed’ regulations may go through the affirmative process, allowing MPs to simply vote them down if they wish (the last time this occurred was in 1978), but that is it. Ministers’ powers under the Bill are so wide sweeping that they can choose replace regulations with voluntary schemes, without even the most cursory involvement of Parliament.
In the words of key Conservative Brexit campaigner David Davis MP, speaking at the Bill’s report stage: ‘‘I voted and campaigned to improve democracy; I wanted to take back control in order to give it to Westminster, not to Whitehall. However, that is what we have here.’’
Ministers have also suggested that the nature sector shouldn’t be worried about the possible weakening EU derived regulations, as we have new environmental laws passed since Brexit, including the Environment Act. These post-Brexit laws were and are welcome legislation – however they complement regulation, they do not replace it. The Environment Act was designed to coordinate nature’s recovery, within the structure provided by a robust regulatory framework. Weakening the latter makes the goals of the former much harder to reach.
The Bill could take us towards a diminished environmental landscape, with Ministers given near complete control of the route taken.
With Government assurances failing to convince, it is essential that members of the House of Lords address the threat the Bill presents. Particularly essential are amendments to remove the ambition-capping clause 15 and to give Parliament a meaningful say in regulation reform.
Link will continue to work with peers, and with colleagues from across civil society and business, to prevent the harm that will result from the Bill’s passage into law in its current form. We will continue to argue for post-Brexit environmental enhancement through parliamentary scrutiny, rather than post-Brexit regression by Ministerial fiat.
In the words of one (Conservative) MP at report stage: ‘‘We are in danger of losing sight of what should be our ultimate objective: to put better arrangements in place than we had when we were in the EU…in its present form the Bill puts that aim at risk.’’
Not all views expressed in this blog represent the views of all Link members.
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