by William Wilson, Barrister, Wyeside Consulting
UK government proposals to dispense with all remaining EU “retained law” carried over from Brexit include plans to revoke 570 pieces of environmental legislation by the end of 2023. Every aspect of environmental legislation (water, air quality, waste, chemicals, pesticides), and laws on agriculture, fisheries and much else will be affected.
The plans include a sunset clause at the end of 2023 for 2,400 EU-derived laws, and revoking them is the default position. There are then complex provisions allowing Ministers, and Devolved Administrations, at their discretion, to extend the deadline, revoke or re-enact the laws, or to substitute whatever alternative provisions seem to them to be appropriate, with minimal Parliamentary debate or scrutiny, and with no public consultation.
If the proposal was a programme of work to bring retained EU law before Parliament for proper scrutiny and consideration of whether or not its provisions should be retained, re-enacted, amended or revoked, it could at least be properly argued that this was the logic of Brexit. However, the key features of this Bill are the compressed timetable, and the extent of the power grab by the Executive at the expense of Parliament.
The Retained EU Law (Revocation and Reform) Bill 2022, (formerly known as the Brexit Freedoms Bill) introduced by Business Secretary Jacob Rees-Mogg on 22 September 2022 proposes that all 2,400 pieces of EU-derived subordinate legislation and retained direct EU legislation should be revoked at the end of 2023. Of these 2,400 laws, 570 are within the remit of the Department of the Environment, Food & Rural Affairs, Defra.
Photo by Ivan Samkov / pexels.com
These proposals include revocation, re-enactment, or amendment at Ministerial discretion, of key implementing measures including those affecting –
- Drinking Water
- Bathing Waters
- Air Quality
- Habitats
- Water Quality, and the basis of the Water Framework Directive
- Urban Waste Water
- Waste / Hazardous Waste / Landfill
- Plant Products
- Countryside Stewardship
- Environmentally Sensitive Areas
- Chemicals
- Genetically Modified Organisms
- Animal welfare
- Pesticides, and Maximum Residue Levels for Pesticides in Foods
- Persistent Organic Pollutants
- Mercury contamination
- Sewage Sludge in Agriculture
- Nitrate pollution
- Packaging… and so on.
Ministers, and the Devolved Administrations, would be given powers under the Bill to extend the sunset deadlines to 2026; to revoke any of these pieces of legislation; to re-enact them in the form of ‘UK’ legislation; or to replace them with such alternative provision as they consider appropriate. They could do this by means of secondary legislation, with little or no reference to Parliament, apart from a yes/no choice with no scope for amendment.
The Bill as drafted has the potential to do lasting damage to environmental law in the UK. The Bill will have to pass through Parliament and be enacted before the mass of secondary legislation can be made. There is no time, and insufficient capacity within the civil service, to do a proper job of re-enacting legislation on this scale, and no time to consult, or to consider any responses to consultation. Expertise in each of these areas will therefore be ignored. Four decades and more of careful work on environmental law and standards within the EU will be unravelled, and whatever today’s Ministers say, the UK always participated in, and often led, the work of enacting these laws in the first place.
The Bill when enacted almost certainly constitutes such a serious divergence from EU environmental laws as to guarantee future trade disputes under the mechanisms agreed at the time of the UK’s withdrawal from the EU.
It will also place further strain on the Union of the United Kingdom, with both the Welsh and Scottish governments already expressing deep concern that 2,400 pieces of important legislation protecting the environment, food standards and workers rights could simply fall off a cliff. Wales’ General Counsel has expressed concern that it gives UK Ministers “unfettered authority” to legislate in devolved areas. Scotland’s Cabinet Secretary for Constitution has written to the UK to express the …”deep concern and fundamental opposition of Scottish Ministers” to the legislation. Even if Scotland or Wales legislated to re-enact these laws for their own jurisdictions, the UK government could scrap them in England and then invoke the Internal Markets Act to deliver the same effect throughout the UK.
Lastly, the Bill is profoundly undemocratic. Making these changes against an artificial deadline by means of secondary legislation signed off within government departments excludes public comment and participation altogether, and denies Parliamentary scrutiny.
For any Minister to propose that laws should simply be replaced at will by whatever seems appropriate to them on the day is like letting Humpty Dumpty loose on the Statute Book – “When I make a law, it will mean whatever I choose it to mean, nothing more, and nothing less.”
William Wilson is a barrister and environmental and energy lawyer, working through www.wyesideconsulting.com He has worked with the UK government, with each of the devolved governments within the UK, at EU level, and internationally on legislative drafting projects, and in private practice and consultancy. He also runs a website and blog with ideas and resources for young climate activists at www.COP26andbeyond.com
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