On 25 October 2022, the same day that Rishi Sunak became Prime Minister, the Retained EU Law (Revocation and Reform) Bill was given its Second Reading in the House of Commons, and will now go for consideration in a Public Bill Committee. The Bill contains a sunset date of 31 December 2022 for 2,400 pieces of “retained EU law”, including 570 pieces of environmental law. By this date these laws will be revoked, unless they are re-enacted or replaced by whatever alternative Ministers or the Devolved Administrations consider appropriate.
This article considers the background and context to the Bill, especially as it concerns environmental law, and gives some extracts from the Second Reading debate. The new government’s conduct of this legislation will be one important indicator of the extent to which it intends to adopt and take forward the radical deregulatory agenda of its immediate predecessor. That is not yet clear, with some press reports hinting that Prime Minister Sunak could shelve this Bill, while others indicate that it will be ‘full steam ahead’. However the new government is so far pressing on with this legislation, which was given a Second Reading on 25 October 2022 by 280 votes to 225 and will now proceed to a Public Bill Committee on 8 November 2022.
The Minister for Climate, Graham Stuart, insisted in winding up the debate that environmental protections would be enhanced not diminished by the Bill. Like so much else about environmental law and policy at the moment, it is absolutely unclear how this could be the case. Enhancements which added to the regulatory burden would be specifically ruled out by Clause 15(5) of the Bill, and no detail was given in the Second Reading debate of the proposed replacement of any one of the 570 environmental laws affected, be it habitats, waste, water, air quality, pesticides, chemicals or anything else.
Commentary on the context of the Bill
In my first post in June 2022 on what was then the Brexit Freedoms Bill introduced by Prime Minister Boris Johnson, I pointed out the likely impact of the proposed legislation on environmental laws, which would be at risk of being amended or repealed without significant scrutiny by Parliament –
The phrase “Take Back Control” has a visceral, nationalist force that is really important when applied to the way in which laws are made. It answers a sense of powerlessness with laws being made elsewhere in Europe. But what the politicians who use that phrase do not explain is that UK government Ministers, and officials, were party to all the negotiations that resulted in EU laws being applied to the UK. They simply did not take enough time or trouble to engage with their own people to explain the merits of the laws they were making, and nor did the UK Parliament.
As I noted in a book on Making Environmental Laws Work published in 1998 –
“It is scarcely ever part of a British civil servant’s job to travel round his own country explaining the effect of forthcoming regulations to town meetings of citizens affected by them.”
Other EU Member States took that obligation much more seriously and discharged it much more effectively. The UK Parliament was also deficient in its scrutiny of EU law making, particularly in the House of Commons: the House of Lords Scrutiny Committee reports were more effective. House of Commons “scrutiny debates” on major EU Directives barely scratched the surface. As the legislative expert Vernon Bogdanor remarked -
“Europe was seen as a discrete and separate issue which could be tacked onto Parliament’s traditional business as a kind of optional extra.”
I do not therefore argue that EU law making or its oversight was in any way perfect, but I do believe that any democratic deficit in the way it was conducted can be laid at the door of successive UK governments and the UK Parliament, rather than what one UK Cabinet Minister described this summer as “Brussels Bonapartes”.
What EU law making did do was achieve a European consensus on agreed standards in a number of key areas, including particularly environmental standards, and to deliver a framework of laws to deliver and enforce those standards. That framework would have been removed altogether by Brexit without the Environment Act 2021. What this Retained EU Law (Revocation and Reform) Bill proposes is to set a sunset date of 31 December 2023 for 2,400 laws which are “retained EU law”, by which time they will be revoked unless they have been in some way re-enacted: and this process is to be driven by Ministers with almost no significant scrutiny by Parliament. As George Peretz K.C. has written in Prospect Magazine –
“The Brexit Freedoms Bill will allow Ministers to take back control – from Parliament”.
In a later post on 5 October 2022 I pointed out how the Bill as introduced would involve the revocation, or re-enactment in any way that seems appropriate to Ministers and with almost no participation by Parliament, of 570 environmental laws affecting every single area from drinking water, chemicals, habitats, air quality, waste and so on –
https://www.wyesideconsulting.com/news/uk-government-proposes-revocation-of-570-environmental-laws
To take one example. Three pieces of “retained EU law” govern the Maximum Residue Levels for pesticides in food. Even with this legislation, as Pesticide Action News – UK points out, a third of vegetables, two thirds of all fruit and over half of all bread contain “multiple pesticides”. Nobody seems to be quite sure what the effect of that may be on public health. But under the Bill, the three pieces of retained EU law could simply be revoked altogether; or perhaps they may be re-enacted to say whatever Ministers want them to say.
One test for the government, in pursuing this legislation, will be whether the public understands and supports the basic laws delivering environmental protections that are affected by this Bill. One difficulty for the government is that the signs are that the public knows what it wants in terms of clean air, clean rivers, and the protection of nature.
Extracts from the Second Reading Debate on 25 October 2022
With that background and context, these are extracts from the House of Commons Second Reading debate on the Retained EU Law (Revocation and Reform) Bill on 25 October 2022, the same day that Rishi Sunak became Prime Minister.
Dean Russell, (Conservative) Parliamentary Under Secretary, BEIS
“The premise of the Bill is to ensure that we do what we have always done, which is to be the best place in the world to live, and that includes our environment. It is an absolute priority of this Government that the United Kingdom will be the best place to start and grow a business, to live, and to ensure that our environment around us is supported at all times. Within the Bill are powers that will allow us to make good on that promise....
...We will use the powers in the Bill to ensure that our environmental law is functioning and able to drive improved environmental outcomes, with the UK continuing to be a world leader in environmental protection.
... Together, we have identified where retained EU law must be excised from our statute book. Now, using this Bill, we will go further and faster to capitalise on the opportunities of Brexit. We will achieve that by addressing the substance of retained EU law through a sunset which means retained EU law will fall away on 31 December 2023 unless there is further action by Government and Parliament to preserve it. A sunset is the most effective way to accelerate reform across over 300 policy areas and will incentivise the rapid reform and repeal of retained EU law.”
Jonathan Reynolds (Labour/Co-op)
“... The use of negative statutory instruments, so that MPs have to actively object to prevent something from becoming law, is very poor practice indeed. When it comes to future proposals, the use of a sunset clause to cover such a large and complex body of law effectively puts a gun to Parliament’s head. Anyone who wishes to scrutinise or object to any future legislation replacing retained law will be taking a gamble, because unless that legislation is passed in time, the current law in its entirety will simply fall away. That is not conducive to good laws being made.
The obvious question is “Why not proceed on a policy-by-policy basis or, if appropriate, a sector-by-sector basis?” As we have already discovered, the Financial Services and Markets Bill does exactly that. Why not bring forward positive replacement proposals where the law needs to change or where something can be done better?
The fact is that this Government are out of ideas. ... the Bill is not just wide of the mark, but wantonly destructive...”
Jacob Rees Mogg (Conservative)
“...There are all sorts of minor and unimportant things that need to be dealt with. As for those that are of major significance, it was said clearly at the Dispatch Box that environmental protections would be maintained. That is fundamentally important. It is a commitment from His Majesty’s Government to this House. The Bill will allow those protections to become UK law—which I use as shorthand to cover the three different types of law in the United Kingdom—to ensure that they can be enforced logically and sensibly by our courts in accordance with our legal maxims. That must be a right and certain means of proceeding.
It is interesting that people, having been told this, are still opposing the Bill. I come back to the conclusion that those who are opposing it actually do not like Brexit altogether.”
Hilary Benn (Lab)
“This is a shocking Bill...
...Part of the problem is that we have no idea, and I do not think the Government have any idea, which bits of EU law the Government want to scrap, which bits they want to amend and retain and which bits they want to keep in their entirety...
...The next thing that is objectionable about the Bill is that, for the first time I can recall, it allows Ministers to change the law of this country by doing nothing—by simply watching the clock move and the pages of the calendar fall until December 2023 comes around. Even if Government Members agree with the aim of reviewing these laws—and there is an argument to be had for that—it is extraordinary that Ministers are asking the House to give them this power...
...What is more, are Ministers seriously arguing that, given all the pressures and the things that the new Prime Minister no doubt wants to do, civil servants should spend time going through 2,417 pieces of legislation? I say good luck to the new Secretary of State for Environment, Food and Rural Affairs, whose Department has 570 pieces of legislation—the Department for Transport has 424 and the Treasury has 374—and who will have between now and next Christmas to decide what on earth to do about them. While they are valiantly trying to do that, there is absolutely no provision in the Bill for public consultation and there will be no impact assessment on any changes that they are proposing to make. It takes a particular type of genius to make an enemy of worthy organisations such as the Wildlife and Countryside Link, the Green Alliance and others by threatening that which we and they value in pursuit of a headline...”
Rebecca Pow (Con)
.”..I want to thank the Minister for meeting a group of us earlier to discuss how there are quite clearly concerns and to have open discussions. I, too, have met many outside organisations on these issues—the Green Alliance, the Wildlife and Countryside Link, the Better Planning Coalition, Greener UK—but also many businesses and farmers, because these issues affect all those categories. All of those people and, I believe, Conservative Members as well—particularly those of us from the Conservative Environment Network, which is doing really good work in this sphere—are just seeking assurances that the Bill will not weaken the UK’s environmental protections.
I was reassured by what the Minister did say at the Dispatch Box, because he openly commented that environmental protections will be maintained. I take that as a signal that he means it and, indeed, that the door is open to work on this—and maybe our Green party Member, the hon. Member for Brighton, Pavilion (Caroline Lucas), will be working on it, too—so that we get to a place that everyone is happy with....”
Brendan O’Hara (SNP)
..”.This Bill gives UK Ministers unprecedented power to rewrite and replace almost 2,500 pieces of domestic law covering matters including environment and nature, consumer protection, water rights, product safety and agriculture, and to do so with the bare minimum of parliamentary scrutiny. Taken in conjunction with the United Kingdom Internal Market Act 2020, this Bill threatens to undermine and alter the devolution settlement by giving primacy to the law of the United Kingdom in areas that are wholly devolved, such as environmental health, food standards and animal welfare. This means that legislation passed by the Scottish Parliament to keep us in lockstep with EU regulations could be overruled by a Government here in Westminster that we have never elected.
... This Bill is the starting whistle on a deregulatory race to the bottom... “
Caroline Lucas (Green)
...”it is hard to imagine how the Secretary of State can possibly think that launching this deeply complex and totally unnecessary programme makes any sense at all. As other hon. Members have said, the Government’s retained EU law dashboard contains more than 2,400 pieces of law across 300 distinct policy areas and 21 sectors of the economy. This is an enormous piece of work that will take a herculean effort to deliver. The Government seem to be relying on a “trust us” mantra, but giving huge powers to Ministers on a “trust us” basis is a bad way to legislate.”
The Minister for Climate Graham Stuart (Conservative)
...“It is a great pleasure to wind up this debate, and to see how much this legislation has wound up Opposition Members. The way they tell it, there seems to be almost no area of our life that this enabling piece of framework legislation will not negatively affect. Exaggeration, hyperbole—collectively, they have managed not to use any form of understatement whatever. The only thing stinkier than the arguments coming from the Opposition would be the hon. Gentleman’s socks, if he really does wait that long to change them.
As my hon. Friend the Minister for Enterprise and Markets said, the Bill is a crucial part of the Government’s growth agenda. This is at the heart of the opposition to the Bill. The good thing about the separatists is that they do not hide their detestation of the fact that British people take part in referenda, and they do not like the results. They never like the results when the people have their say, do they? They just cannot accept it. The Bill will enable us to reassert the legislative sovereignty of the United Kingdom—a country that they do not approve of—and to improve the nimbleness and competitiveness of the UK economy. That is what the Bill is all about.
I thank Members for their contributions regarding the constitutional importance of the Bill. Ending the supremacy of EU law and restoring an Act of Parliament as the highest law in the land is of paramount importance. I am proud that the Bill will build upon the European Union (Withdrawal) Act and ensure that no Act of Parliament is subordinated by retained EU law, which we heard again and again that Opposition Members detest—they hate the idea that we should be a sovereign Parliament, and they detest the fact that British people voted to leave the European Union.
Let me deal with some of the arguments that have been made. I would like to reassure you, Mr Deputy Speaker, and Members that environmental protections will be enhanced, not diminished. It is worth saying that again: environmental protections will be enhanced, not diminished.”...
NEXT STEPS
The Bill was given a Second Reading on 25 October 2022 by 280 votes to 225. It will now go to a Public Bill Committee stage in the House of Commons, between 8 and 22 November. The Public Bill Committee is inviting written submissions here –
A good summary with Recommendations, which could be taken forward in the form of Amendments, is set out in the Public Law Project’s second reading briefing on the Bill written by Samuel Willis, Research Fellow, which is set out here –