Analysis: the Retained EU Law Bill

For someone who used to be a lawyer and is therefore naturally cautious in making claims that seem exaggerated and over-dramatic, this is an extreme statement. Yet, I can’t reach any other conclusion.

It’s hard to see how the Retained EU Law (Revocation and Reform) Bill (REUL Bill) - which puts an expiry date on all EU-derived laws in the UK for the end of 2023 - can be implemented without significantly weakening or even wiping out whole regulatory safety nets. These regulations, alongside protecting the environment, are important to businesses and industry, providing the stability and certainty needed to plan and trade effectively and be internationally competitive.

The UK Government has set itself the overarching goal to cut EU red tape and reduce the burden of environmental regulation. The REUL Bill only allows regulations to revoke and replace secondary retained EU law if they do not increase the regulatory burden.

On 22nd and 23rd September, the combination of the UK Government’s introduction to Parliament of the REUL Bill, and announcement of its Plan for Growth led to an immediate and unprecedented outpouring of concern, opposition and anger from the environmental conservation community, with widespread public support for action.

Clarifying statements made by the UK Government since haven’t done much to alleviate concerns. Very general reassurances on the importance still placed on environmental protection are not reflected by the complete absence of detail showing any such intention, or by the many statements that focus on cutting EU red tape and reducing the ‘burden’ and bureaucracy of environmental regulation. The Secretary of State for Environment, Food and Rural Affairs has even said that instead of being a regulatory department DEFRA is now ‘an economic growth department'.

The REUL Bill doesn’t just revoke EU law ‘that is not right for the UK’, it automatically revokes all EU-derived laws at the end of 2023 unless they’re specifically extended, reinstated or replaced. 

The REUL Bill does not set out to ‘amend, replace, or repeal all the retained EU law that is not right for the UK’ (emphasis added), as initially announced in January 2022 in the UK Government’s ‘The Benefits of Brexit’ paper. Instead, it puts an expiry date on ALL ‘retained’ EU laws that we still have on our statute books for the end of 2023, whether this is right for the UK or not.

This includes ‘retained direct EU legislation’, such as the 2006 EU Regulation for the Registration, Evaluation, Authorisation and Restriction of Chemicals (the REACH Regulation) – an important piece of law that's crucial to how we deal with harmful chemicals, and to the chemical industry’s ability to trade and ensure that we are kept safe from hazardous chemicals.

It also covers ‘EU-derived subordinate legislation’, including many of our most important environmental laws on nature conservation, marine and freshwater quality and pollution and many others (as well as all provisions that amend those laws).

Of course, this also affects many other areas of law, including employment rights, data protection, food safety and much more, so this analysis should be seen in that wider context too.

According to the UK Government’s own website, there are 159,759 pieces of legislation originating from the EU (excluding the 5 Treaties).

The official REUL Dashboard identifies just over 2,400 pieces of legislation as being covered by the Bill, for which a decision will be made whether they remain unchanged, are amended, repealed or replaced. 570 are under the responsibility of DEFRA. This cannot possibly be right.

Even accepting that thousands of the almost 160,000 EU laws did/do not apply in the UK, it just doesn’t seem possible that the discrepancy in these numbers can be explained away to this degree – that just 1.5% of all EU laws remain as retained EU law in the UK. How many key laws are missing from the Dashboard? How can they possibly all be identified, let alone addressed before the end of 2023?

My quick and preliminary scan of the key EU-derived laws for environment and ocean conservation immediately showed some key laws are missing from the REUL Dashboard: the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulation), the Conservation of Offshore Marine Habitats and Species Regulations 2017, the Marine Strategy Regulations 2010, the Environmental Damage (Prevention and Remediation)(England) Regulations 2015, and the REACH Test Methods Regulation 2008,11 as well as the many instruments that amend these.

Without access to paid-for legal databases, I’ve tried and failed to find an easy way of identifying all EU-derived environmental laws in the UK. However, it’s abundantly clear that the 570 laws currently listed are the tip of the iceberg.

Even working day and night between now and the end of 2023, it’s just not feasible for UK Government departments to identify all relevant laws and decide what is to happen with them – and then pass the relevant regulations.

National conservation legislation will become hollowed out and meaningless without the foundations of EU-derived conservation legislation.

Many of our key domestic nature, marine and conservation laws amend, refer directly to or depend indirectly on the rules and frameworks established by key EU-derived conservation legislation.

Because all these laws are so closely interwoven and intrinsically connected with EU-derived environmental regulations they simply will not be functional without the EU-derived laws they depend on. Our nature and conservation laws will not work.

If the REUL Bill leads to the revocation of the Habitats Regulations at the end of 2023, what will happen to all those hard fought inshore and offshore byelaws that prevent bottom-trawling in certain EU-designated marine protected areas? How could crucial management measures stay in place if the underlying protection framework is suddenly withdrawn?

Add to that the fact that the environment is a devolved matter, and there is little clarity and much disagreement and challenge from the devolved nations in relation to the Bill. In the marine environment this causes immediate issues. The UK legislates for Scotland’s offshore water, but some aspects have been executively devolved. Who will be responsible for enforcing marine conservation laws in the offshore area, and what laws will apply?

Moreover, how will conflicts between the REUL Bill’s plans for less burdensome environmental laws and devolved laws be resolved? Will the Bill be in breach of Wales’ ground-breaking Wellbeing of Future Generations (Wales) Act 2015? How will devolved powers be respected?

Where there are plans to replace retained EU legislation with UK instruments, too often those replacements are not going to be made through binding legislation, but instead via plans, strategies or policies that carry minimal legal weight, are not legally binding and are likely to be subordinated to economic and costs argument in future.

In EU law, general principles like the precautionary and polluter pays principles, and the principles of prevention and of rectifying damage at source, are binding law. They are  fundamental to the way that we’ve been able to use the Habitats Regulations, for example, to insist on stopping damaging activities from happening.

The future equivalent, at least in England, is set to be a Policy Statement, which will never allow these principles the priority the environment needs them to have. They'll be more likely to come second to economic considerations.

The Environment Act 2021 sets many goals for delivering a whole host of plans and strategies for conservation and environmental protection. Of course, all of them are important, but none of them are intended to create binding obligations. They'll become meaningless in the absence of strong underlying conservation laws that require effective assessments of potential impacts to be carried out before activities can be permitted.

All power, no duty – the REUL Bill provides Ministers of the Crown, and to a lesser extent, devolved authorities, total discretion. Crucial laws can be restated or amended, but there is no obligation to do so before deciding what happens to them, and minimal parliamentary scrutiny.

It's true that the Bill gives Ministers of the Crown – and equivalent devolved authorities in some circumstances – sweeping powers to do whatever they want with retained EU laws. They can extend retained EU laws until 23rd June 2026, and they can restate, update, reproduce, modify or replace them. However, because of the automatic 'sunset clause' (which puts an expiry date on legislation), this is only effective if specific regulations are passed to this effect, and there is no corresponding duty on Ministers to ensure that this happens.

If it is allowed to continue, there are changes that could allow for a better planned, more effective transition. 

The following should be considered, as a very minimum:

• A potential increase in regulatory burden mustn't be allowed to be a reason not to restate or replace existing EU-derived environmental laws if that's what is needed to strengthen and improve environmental laws.
• The REUL Bill should only allow laws to be revoked or changed if they've been specifically identified by UK Government departments and devolved authorities as needing revision, and if a decision has been made on how they should be dealt with in future. EU derived laws that are not identified and listed for specific action should continue without automatic revocation at the end of 2023 until they can be properly reviewed and a decision made on their future.
• The deadline for reviewing all EU-derived laws and making proposals for extension, reinstatement, reproduction, revocation or replacement should be extended to avoid rushed, botched jobs with unintended and unanticipated consequences for our regulatory frameworks.
• Provision needs to be made for impact assessments to be carried out in relation to any changes that are proposed to reinstate, reproduce, revoke or replace current EU-derived legislation.
• Restated and replacement domestic legislation needs to be secondary legislation at least, and for key environmental provisions primary legislation should be considered, possibly even by levelling up existing domestic, primary legislation, like the Wildlife & Countryside Act or the Marine & Coastal Access Act. Otherwise, we will have hollowed out domestic conservation laws without any binding provisions that can hold their own when confronted with short-term economic drivers. The escalation of non-binding plans, strategies and policies must be replaced by robust and reliable, binding laws, so that our ocean and our natural environment have a fighting chance to meet the UK Government’s own nature recovery targets by 2030.
• The purpose of environment departments and laws must be to guarantee environmental sustainability, not economic growth. It is the only way that we will be able to deliver long-term economic growth overall.
• The new environment watchdog that has been introduced to fulfil some of the monitoring and supervisory functions of the European Court of Justice, the Office for Environmental Protection, could be asked to consider exercising its discretion to advise the UK Government on environmental law, in this case the REUL Bill and other legislative proposals that are threatening to undermine our environmental regulatory frameworks.

References:

• Clause 15(5) and 15(10), REUL Bill
• The Growth Plan p. 21 at 3.34 – 3.35
• ‘The Benefits of Brexit’, HM Government, January 2022, p. 20, final bullet point
• REUL Bill, Clause 1
• https://www.legislation.gov.uk/eu-origin: 124,854 Regulations, 30,737 Decisions and 4168 Directives.
• REUL Bill, clauses 2(3), 6, 12-16
• Under section 30(3) Environment Act 2021