Will we, at last, begin to see some regulatory divergence from the EU?
Continuity Remainers view a law made in Brussels, even through a murky cross-national process with ample lobbying from vested interests, as inherently superior. They were comfortable with thousands of EU rules and court judgements being incorporated into UK law without domestic debate or parliamentary oversight, over many decades. With breathtaking hypocrisy, they now screech about the ‘end of democracy’ because rules that were foisted on Britain are being removed.
The offending piece of legislation is the Government’s Retained EU Law Bill. The shrillest voices have been tweeting furiously about the forthcoming loss of entitlements to paid annual leave, health and safety protections, and the 48-hour working week. Others have raised concerns about excessive ministerial discretion, dubbed ‘Henry VIII powers on steroids’, or the legal uncertainties being created for business.
The background to this bill should assuage any concerns. In the name of minimising disruption, the UK opted to retain EU law in our domestic statute book at the end of the transition period. This means at least 2,400 pieces of laws, and other EU legal obligations, continue to apply today (worryingly, there are reports that the Government discovered a further 1,400 retained EU laws late in the process).
Bear in mind that these retained EU laws were only ever meant to be temporary. But, as it stands, changing them is difficult and time-consuming, often taking primary legislation even to make small technical modifications. If you have heard a Brexiteer complain that the UK is not taking advantage of Brexit, they are referring to the failure to diverge from EU laws, to fulfil the promise to ‘take back control’.
Bear in mind too that these laws touch on pretty much every area of modern life. This includes a driving licence directive that states licences may not be issued for some diabetics, or misleading energy labelling regulations that were biased against Dyson’s bagless vacuum cleaners. But perhaps more so than anything else, the quantum of regulation on everything from toothbrushes to food imposes costs for businesses, which are passed on to consumers and create bureaucratic barriers for innovative start-ups.
The Retained EU Law Bill ends the supremacy of EU law over UK law, nullifies the general principles of EU law in UK law (including the precautionary principle), and gives UK courts greater freedom to depart from retained EU case law. Most controversially, it will also ‘sunset’ all EU rules at the end of 2023. This means the government must decide whether to amend, repeal or replace retained EU law – or extend the sunset review date till June 2026. This is designed to kick-start the review of accumulated law.
It does not, however, mean that the Government is about to abolish workers’ rights, environmental protection or health and safety (even if, in many ways, they should diverge more radically). The Government has shown no interest in, for example, liberalising onerous labour regulation. There is no guarantee that the UK will diverge on any particular issue, and to suggest otherwise is political scaremongering.
Nor does it spell the end of democracy, or anything like it. The level of ministerial discretion in the Retained EU Law bill may not represent Athenian democratic perfection – in an ideal world, each retained EU law and regulation would be individually scrutinised and reformed by parliamentarians. In the real world, however, there will never be enough parliamentary time for such an exercise. This means that, in practice, the only alternative to sunsetting is inertia and inaction – leaving in place EU laws that were introduced without parliamentary oversight.
We should remember that ministers are elected and accountable to Parliament. They are implementing the mandate of the 2019 election. Parliament can always overwrite ministerial action, through new legislation or a ‘negative resolution procedure’. The Bill’s sunsetting provision will also not apply to retained EU law necessary to maintain international treaty obligations, financial services or primary legislation (such as the Equality Act or the Health and Safety at Work Act).
American founding father Thomas Jefferson thought that the Constitution should be rewritten every 19 years – so each generation would have the opportunity to write its own founding document. This level of constitutional upheaval would be chaotic. But it does raise the further thought that perhaps all legislation and regulation should sunset, so each generation can reassess what is (and is not) necessary – rather than allowing the past to imprison the future.
This is not to say that the Retained EU Law Bill should be uncritically accepted. The plan to sunset at the end of 2023 may not provide anywhere near enough time to undertake the necessary analysis. In response, ministers and civil servants may just take the easy route: copy-and-pasting the retained EU law into domestic UK law and calling it mission accomplished. In this scenario, reforming or repealing EU law would never actually happen. There is also no guarantee that UK-made legislation will improve EU-derived law (just see the disastrous Online Safety Bill or the Glue Traps Act of 2022).
Away from the overblown pronouncements on social media, the real risk of the Retained EU Law Bill may be a failure to be anywhere near as radical as is necessary.
This article was first published on CapX.