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Rishi Sunak is facing mounting opposition to his government’s plans to “review or revoke” some 4,000 pieces of EU-origin legislation that have roots in the UK’s membership of the EU by the end of this year.
Legislation to enact the plans — the Retained EU Law Bill — returns to the Commons on Wednesday but is attracting a growing chorus of complaints from business groups, legal experts, civil servants, trade unions and conservation groups.
However leading Conservative Brexiters such as Jacob Rees-Mogg say the bill is essential in order to purge the UK statute book of unwanted EU regulations in the wake of the 2016 Brexit referendum.
Below the FT looks at why the REUL bill causing such widespread concern.
What does the legislation say?
The Bill requires that all EU-derived “secondary” legislation be reviewed by Whitehall departments by the end of 2023. This covers a huge number of rules and regulations, from the Working Time Directive, which regulates employment conditions, to rules governing chemical usage and conservation areas.
But ministers still cannot say exactly how many EU laws are covered by the legislation — to the consternation of MPs. Originally they thought there were 2,400 retained EU laws but the National Archives recently found 1,400 more.
EU-derived primary legislation, such as the Equality Act 2010, is not covered by the Bill, nor are financial services and markets, which will be tackled in separate legislation.
The bill also includes a “sunset clause” which means that any legislation not converted into UK law or revoked by the end of 2023, will automatically drop off the statute book. For very complex laws, this deadline can be extended to 2026, but Brexiters want this facility used very sparingly.
The legislation also abolishes the principle of the supremacy of EU Law, which requires UK courts to interpret EU-derived laws in line with rulings of the European Court of Justice. Legal experts say this will create uncertainty about how UK courts will interpret existing case law in the future.
Why has it attracted so many objections?
Because of the speed at which the government wants to proceed with the bill, it will create massive uncertainty for industry, employers, regulators and investors.
EU-derived laws cover myriad areas including data protection, cyber security, consumer rights, intellectual property, tax, public procurement, insolvency, agency workers, working time and equal pay, construction and real estate, commercial agents.
The British Chambers of Commerce has called for the deadline for the review of the laws to be pushed back to 2026 after a survey of members found half of firms said deregulation was either “a low priority, or not a priority at all”. Only 4 per cent said they fully understood the REUL bill.
Peter McGettrick, chair of the British Safety Council, the UK health and safety organisation, said the REUL bill was “ill-conceived” and could leave a “legal black hole” in the statute book.
Why is the bill being called undemocratic?
Clause 15 of the bill enables ministers or devolved authorities to revoke any secondary retained EU law and “replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives”.
Ruth Fox of the Hansard Society, a think-tank specialising in legislative affairs, described this as handing ministers a “do anything we want power”, and diminishing the role of parliament in scrutinising legislation.
By Tuesday afternoon seven Tory MPs had signed an amendment tabled by Labour’s Stella Creasy that would require ministers to produce a list of all the EU legislation to be purged, three months before it happened.
David Davis, former Brexit secretary, and Sir Robert Buckland, former justice secretary, were among those backing the amendment, that would give parliament a say in approving the list of EU laws to be scrapped.
Buckland told the FT that the amendment was “a pretty nifty” way of ensuring that laws were not “scrapped by mistake”.
Can the government’s 2023 deadline be met?
Senior civil servants in Whitehall departments that have large amounts of retained EU law, such as the Department for Environment, Food and Rural affairs (Defra) or the Department for Business, Energy and Industrial Strategy (BEIS) say that “reviewing or revoking” so many laws is a Herculean labour.
BEIS recently admitted that in just two months last year it had spent £600,000 reviewing EU-retained law. Other Whitehall departments have declined to share their costs, but senior officials concede that it will require significant staffing and financial resources.
Even those, such as the National Farmers’ Union, who support a review of EU laws warn that the REUL bill moves too far, too fast.
Nick von Westenholz, the NFU’s director of trade, said the legislation risked unintentionally removing important regulatory safeguards, because even the government’s “dashboard” of affected laws was not exhaustive.
“This has the potential to eat up a huge amount of resource, both within Whitehall and the wider economy, as civil servants and businesses try to manage the rushed process imposed unnecessarily by this Bill,” he added.
Will the government proceed in spite of the objections?
Downing Street cannot afford to be seen backpedalling on this totemic Brexit bill and remains committed to the 2023 “sunset clause”, for now at least.
With sensitive negotiations under way with Brussels over the Northern Ireland protocol governing post-Brexit trading arrangements in the region, government insiders admit they cannot fight a battle with Tory Eurosceptic MPs on two fronts.
Sunak is keen for ministers to start delivering early reforms to EU legislation — the matter was discussed in cabinet on Tuesday — particularly in areas such as digital tech, farming and the creative sector.
However some senior government figures admit that the House of Lords could insert amendments to slow down the process and delay the 2023 deadline, and that could be a convenient excuse to put on the brakes.
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