Today, a broad group of businesses and charities has called for the Retained EU Law (Revocation and Reform) Bill to be scrapped. There are three fundamental problems with the bill that have united Wildlife and Countryside Link members large and small in calling for the bill to be withdrawn.
The sunset provisions (clauses 1-3), the extent of delegated powers (clauses 12-17), and the deregulatory “lock in” (clause 15) are so much a part of the bill that there would be little left if they were removed.
Yet all three must go. Individually, they pose serious threats to environmental law. Together, they jeopardise nature’s recovery and could undermine the Government’s environmental programme.
This is not an ideological point about EU-derived law. In common with every corner of the statute book, there is no doubt that some aspects of EU-derived law can be strengthened. It is the mechanism that is at fault, rushing through change without evidence or consultation, with huge scope for error.
The Government should withdraw the bill and focus instead on delivery of the positive promise to halt the decline of nature by 2030—which may require some changes to Retained EU Law, following proper analysis and consultation, but is much more likely to require new protection and investment in nature.
The sunset provisions in Clauses 1 and 3 would “turn off” retained EU law at the end of 2023, unless laws are specifically saved by Ministers. There is the option to extend the deadline for specific laws or categories of law until 2026.
This is an extraordinary use of sunset powers, which the House of Commons library has described as typically being used in “emergency scenarios”, where time for debate is short in Parliament.
In this case, thousands of legal protections that are currently part of UK law could cease to have effect unless they are specially saved by Ministers. These include many hundreds of environmental laws, including keystone laws like the Habitats Regulations, the Water Framework Directive Regulations, the Marine Strategy Regulations and rules to govern chemicals and pesticide use, and set limits on air pollution.
When Ministers choose to save a retained EU law, the bill gives them extraordinary leeway to chop, change and cherry pick.
Under Clause 15, individual aspects of the law could be “revoked or replaced”. Ministers can choose to use different legal mechanisms intended for a similar purpose. Alternatively, under the astonishingly laissez-faire clause 15(3), Ministers could simply make “alternative provision as the relevant national authority considers appropriate”.
There is no tether here to the original purposes of the legislation. There is no test of effectiveness. There is no requirement for expert advice or public consultation. Ministers could simply take aspects of retained EU environmental law such as water quality regulations and replace them with voluntary schemes, for example—or not replace them at all.
The only smidgeon of safeguard included here is that regulations are required to be laid before Parliament, via secondary legislation. It is widely recognised that even the most stringent procedure for secondary legislation hardly amounts to scrutiny. There is no opportunity for Parliamentarians to amend and improve proposals. Sometimes there is not even an opportunity for debate. As the UK Parliament website notes, votes rejecting statutory instruments in Parliament are a rarity.
This is especially egregious as it relies on a legal levelling-down of retained EU legislation to the status of secondary law. This relies on the fiction that EU-derived law constitutes nothing more than technical detail, or that it has not received proper democratic scrutiny. In fact, the body of retained EU environmental law includes many vital protections that would surely have been made through primary law, had they not arrived on the statute book as EU-derived law. Laws concerning animal welfare, basic planning protection for nature, or controls on toxic chemical use should not simply be downgraded to secondary status, subject to Ministerial whim.
The deregulatory “lock in”
Clause 15 also betrays another ideological misconception hiding behind the bill. Clause 15(5) stipulates that no alternative regulations may be made that would “increase the regulatory burden”.
This plays on a false narrative that EU laws were somehow nothing more than bureaucratic gold-plating, sitting on top of perfectly effective UK laws. This is a story that has been peddled before, even in the Nature Recovery Green Paper, which misrepresented the Habitats Regulations as a regulatory burden, ignoring all the ways they provide better protection for nature that alternative designations.
There follows in the bill an extraordinary definition of “regulatory burden”, including anything that might include (a) financial cost; (b) an administrative inconvenience; (c) an obstacle to trade or innovation; or (d) an obstacle to efficiency, productivity or profitability. This is an absolutely antiquated view of regulation, focusing entirely on the costs to business, and ignoring entirely the reduced costs of environmental damage, or the real world benefits that could be delivered.
The effect of these clauses is that—even if they were in a position to—Ministers could not practically rely on the processes in the bill to improve or strengthen environmental law. The only way is down for environmental protection under the REUL bill.
How might it play out?
Only the most irresponsible government would intentionally allow large portions of the environmental statute book to hit the cliff edge of the sunset clause. No credible argument could be made to let rules like the REACH regulations on chemicals simply fall by the wayside. The costs to the environment and the public would be phenomenal. Nevertheless, some significant regulations and directives, such as the Water Framework Directive regulations, have already appeared in the firing line.
Much more likely than blanket sunsetting is a situation where Ministers use the opportunity to target individual laws or elements of the law that they do not like. Long-standing grudges (against newts, against nitrate vulnerable zones, against river pollution rules, against Habitats Regulation Assessment) could be played out in the process of secondary legislation. Regardless of the evidence of their efficacy, Ministers could carve out their own pet peeves in the law of the land.
Even in the most benign scenario, though, where the Government tries to shift across the body of law in its entirety, the costs are great. BEIS has suggested that 77FTE civil servants will be needed to process its retained EU law. DEFRA has many times the volume of retained EU legislation to handle.
There is huge scope for error. During the EU Withdrawal Act process, DEFRA’s case load of wash up statutory instruments needed to fix mistakes in their own legislation sky rocketed. The Cabinet Office dashboard supposed to log retained EU law is hopelessly incomplete, missing out key environmental laws. An additional 1,400 retained EU laws were suddenly “found” this month.
There is a bitter irony in the fact that a bill intended to benefit business is likely to do the opposite, by throwing away legal certainty, and by filling a familiar legal level playing field with craters of our own making.
The cost to nature
Perhaps the most serious cost of all is the opportunity cost.
If this process goes ahead, DEFRA’s time for the next year or more will be dominated by reviewing (or in many cases re-reviewing) laws, purely on the basis of their provenance. The Department is already massively behind in its environmental programme: it missed its first environmental deadline under the Environment Act (the target for targets). It is delayed on River Basin Management, its pesticides plan, chemicals policy, waste and resources management, animal welfare reform and more.
The awful reality is that if Government were to spend the next year simply implementing the Retained EU Law Bill, it would lose any hope of succeeding on the vital mission to halt the decline of nature by 2030.
Of course retained EU laws could be changed for the better. The Habitats Regulations could be strengthened and broadened to tackle intensive land management. The Water Framework Regulations could be enhanced with catchment goals. The REACH chemicals regulations could finally tackle the toxic cocktail effect. These are all important agendas that the Government should consider properly and pursue. But sadly, they are all agendas that are likely to be specifically excluded from the Retained EU Law Bill process and pushed aside as it dominates government time and spending.
If the Government is serious about its promise to pass on nature in better condition, the Retained EU Law Bill should be withdrawn.
Richard Benwell is CEO at Wildlife and Countryside Link.
Hear more on Wild LIVE with @WildlifeTrusts here: https://www.youtube.com/watch?v=u_sDuIH5Qz4
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