Pouring cold water on the Tory bonfire of EU laws

A lot of legislative work lies ahead of the much-vaunted ‘Brexit opportunities’, says Sean O’Grady

Hilary Benn is among opponents of the bill (Getty)

A dry subject at first sight, but the government’s post-Brexit assault on various EU laws threatens important workers’ rights such as the universal right to paid leave (including for part-timers), environmental safeguards and other safeguards such as airline compensation, toy safety and transporting animals.

In extremis, accidentally getting rid of an EU law without substitution of a new British one could leave some areas of life literally lawless – an interesting experiment. Now a cross-party coalition is seeking to slow down the pace at which inherited European law is to be scrapped, amended or retained. The government wants the process to be completed by the end of the year.

What’s the hurry to scrap EU law?

It’s now almost seven years since the EU referendum, three years since the UK left the EU (at 11pm on 31 January 2020, to be precise) and more than two years since the end of the transition period; but comparatively little progress has been made on reforming the EU-derived laws still in force in Britain.

Brexiteers, frustrated by the lack of action, now want to force the pace with a fresh deadline: 31 December 2023. As well as a matter of impatience, it also stems from a belief that the UK can be more efficiently governed with laws designed “at home”. Changing these laws is one way of unleashing those much-vaunted “Brexit opportunities”.

What exactly will the new law do?

If passed, the Retained EU Law (Revocation and Reform Bill) says it will “revoke certain retained EU law; to make provision relating to the interpretation of retained EU law and to its relationship with other law; to make provision relating to powers to modify retained EU law; to enable the restatement, replacement or updating of certain retained EU law; to enable the updating of restatements and replacement provision; to abolish the business impact target; and for connected purposes.” Perhaps 1,000 new laws will be required – approximately 20 a week, or even more allowing for parliamentary recesses.

EU laws on financial services are exempt from the deadline and are subject to their own shake-up. The same is expected for EU legislation affecting VAT and customs. That still leaves quite the bundle. So, lots to do then.

How much work will be needed?

Britain was a member of the EU for almost 50 years, which means an awful lot of laws and rules are still kicking around. About 3,800 are still in force, plus another unspecified volume of EU “case law” - not actual statutes, but Court of Justice of the European Union judgments that reformers will need to take into account as they have operated in the UK as law.

How long will it take?

Some say a competent firm of solicitors could polish it off in a month. Even if true, that omits any political scrutiny.

As minister for “Brexit opportunities”, Jacob Rees-Mogg was confident it could all be completed within the timeframe. He has now gone, but his bill lives on. Sunak, when running for the leadership, said it could be done in 100 days. In any case, at present any laws that haven’t been examined by the start of 2025 will simply disappear. On the face of it, the tight timetable and the hard deadline raises the risk of accidents and failure.

What do the amendments say?

One would simply push the deadline back to December 2026 in certain areas. Another would require the government to state which laws are going to be changed.

Are the opponents simply peeved Remoaners?

Not at all. Dedicated anti-Brexit campaigners such as Labour’s Stella Creasy and Hilary Benn have put their names to the amendment in the hope of a less rushed and more considered approach. Benn told MPs in Wednesday night’s debate that the bill “certainly hasn't improved with age”, adding: “It is irresponsible to propose this legislation which could cause laws to disappear simply by neglect when ministers cannot even produce a list of the so-called outdated laws.”

But there are Tory sponsors of the amendment too, including arch-Leavers such as David Davis and Iain Duncan Smith. They think the bill gives far too much arbitrary power to ministers, and too little to the Commons. They wanted ministers to draw up a list of laws they want to abolish by the end of September. MPs would then be able to add or remove legislation from the list after a vote. However, an amendment put forward by Davis was rejected on Wednesday night by 295 to 242.

Are there any other problems?

Potentially one very large one, which is that the process will result in the UK having lower environmental standards and inferior workers’ rights compared to the EU. This would violate the “level playing field” and non-reversion clauses in the EU-UK Trade and Cooperation Agreement, and threaten legal and political action and, as a last resort, tariffs and trade barriers as the EU sees fit. Any competitive advantage gained by lighter, smarter law-making would be partially obliterated by further loss of EU export markets.

Anything else?

Every single piece of EU legislation being altered or scrapped carries some political risk and potential lobby group opposition – a few examples being water quality, air pollution standards and protections for wildlife, mollusc farming, border checks on imported salamanders, and rules for importing hay. In addition, the Scottish and Welsh governments may claim authority over matters covered by EU law but devolved to them. Turf battles are inevitable. The prime minister may decide his team has better things to do than argue with Nicola Sturgeon about the welfare of oysters. It’s a Truss-era bill, so might well be quietly relaxed if not dropped.

What happens next?

Even if the bill survives its passage in the Commons it will face further tough examination in the Lords, and then again when it returns to the Commons for consideration of any changes. Even if it is passed, time is very much against its implementation.