Retained EU Law (Revocation and Reform) Bill

Written evidence submitted by Equally Ours (REULB03)

S ubmission to the Retained EU Law (Revocation and Reform) public bill committee  

1. Equally Ours, (formerly the Equality and Diversity Forum) is the national network of organisations committed to making a reality of equality and human rights in people’s lives. Our members include Mind, End Violence Against Women Campaign, Stonewall, the TUC, the Runnymede Trust, Child Poverty Action Group, the Traveller Movement, the Fawcett Society, Law Centres Network and Disability Rights UK.  

2. It took ordinary people a very long time to win the protections we now have in British and European law.  Not only do we want to keep them all – we want the chance to make them better.

3. Now we have left the European Union, we want to make sure that we can build on our proud record on equality and human rights. We want to keep our hard-earned rights to protect workers, businesses, consumers, the environment and nature. 

4. However, the Retained EU Law (Revocation and Reform) Bill represents a real threat to preserving existing UK rights and protections including around equality law. The Bill puts people’s existing rights at risk. 

5. We are very concerned that advances in equality legislation that are relied on day in, day out, including the right to equal pay for men and women, are under threat.   The Bill also represents a huge transfer of power from parliament to government ministers and undermines our parliamentary traditions for scrutiny and accountability. 

6. It is a Bill of extraordinary legal complexity and experts conclude that it will lead to legal uncertainty for all level of courts in the UK, not least in the devolved administrations. 

7. Threats to equality legislation  

8. The Bill’s own Impact Assessment recognises that it contains threats to equality, specifically in Paragraphs 11, 25 and 41: 

9. Para 11: If these rights were to sunset, even though GB flagship legislation on equalities will remain, a sunset of these retained rights could, theoretically, lead to a loss of protection against discrimination if no action is taken by departments to address that loss. 

10. Para 25: There is retained case law relevant to the rights of protected groups. In principle, the provisions facilitating easier departure by the courts from this case law, may have an impact on such rights.  

11. Para 41: However, the EU law concepts that will be removed by the Bill underpin substantive rights in equality law. While GB equalities legislation is extensive, there is a possibility that the removal of the principle of supremacy of EU law and the sunset of EU-derived legislation may lead to a lowering of protection against discrimination, in the unlikely event that specific rights related to the protected characteristics aren’t retained in any form. 

12. While the impact assessment states that there is no intention to reduce protections, there is cause for concern in a number of areas. 

13. One example where equality rights are at risk, is the right to equal pay for men and women which is derived from Article 157 of the Treaty on the Functioning of the EU. While it is true that the Equality Act provides protection for equal pay between men and women, it is in more restrictive circumstances than Article 157 which is broader in its interpretation. 

14. Multiple labour rights are at risk too, including working hours in the Working Time Regulations, part-time workers’ rights and agency workers' rights. Part-time worker and agency worker jobs are overwhelming held by women. 

15. The Bill will directly affect rights relating to case law from the European Union in Clause 7. This has been described as a ‘nudge’ from the Executive to the courts to depart from EU case law more freely. The Impact Assessment stated that ‘there is retained case law relevant to the rights of protected groups’ and that ‘the provisions facilitating easier departure by the courts from case law, may have an impact on such rights.’ 

16. In its plea to mitigation of this situation, the Impact Assessment states: ‘The Bill expands the routes through which points of law may be put to the Higher Courts and will make it easier for the Higher Courts to depart from retained case law. However, the Courts will still be required to uphold other requirements which may be relevant to case law in this area such as those under the section 3 of the Human Rights Act (HRA) to interpret legislation consistently so far as possible with, rights in European Convention on Human Rights (ECHR).’ 

17. There is one major flaw with this case for mitigation and that is that the government planned to remove all section 3 rights of the Human Rights Act in its new Bill of Rights Bill. 

18. Legal uncertainty - Clause 1, the sunset clause

19. The most fundamental provision of the bill is that it enacts a basic political decision to apply the sunset at the end of December 2023. The government has calculated that it will apply to 2400 pieces of legislation, but experts believe there are more. Unless a minister directly identifies legislation to be retained, it will automatically fall off the statute book at that date. 

20. However, there is not even any certainty about this date as the Bill also allows provision for the sunset clause to be extended by ministers up to 23 June 2026. 

21. There is no indication in the Bill as to what areas of policy ministers intend to keep or ‘to amend or replace’. So when parliament passes this law, neither parliament, businesses, employers, employees or anyone will have any idea how the statute book will change by the end of 2023. There is no provision for any consultation on what could be momentous changes to our rights and protections. 

22. In practical terms, the Bill is unlikely to conclude until some time in early 2023. That will leave a matter of months for departments to go through the statute book to determine what will be affected and give guidance to ministers on what course of action should be taken. This will take considerable time and resources for officials in departments. There is considerable scope for mistakes to be made and relevant legislation being overlooked.  

23. There is also the possibility that great tranches of Statutory Instruments could arrive in parliament at the end of the year in November and December providing replacement legislation. There would be insufficient time for any real scrutiny of them and parliament would simply have to approve or reject them as SIs are not subject to amendment.  

24. This Bill will cause legal uncertainty for anyone who has used legal protections which are under threat and will more likely result in legal chaos. 

25. Democratic oversight, accountability and scrutiny 

26. The Bill  represents a huge transfer of power from parliament to government ministers and undermines our parliamentary traditions for scrutiny and accountability. It effectively gives ministers cliff-edge powers, with MPs and peers not knowing what they will be used on. It gives sweeping powers to the Executive to make changes to existing legislation without any meaningful parliamentary scrutiny. 

27. There is no compunction on ministers to provide replacement legislation if they revoke existing legislation. This power is explicitly set out in Clause 15 (1): ‘A relevant national authority may by regulations revoke any secondary retained EU law without replacing it.’  

28. The broadest power given to ministers is in Clause 15 (3):   ‘A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate.’ 

29. This clause gives ministers unfettered power to replace EU law with literally anything they like. It has been described as the ‘do anything you want clause’. It could also mean that ministers decide not to offer any replacement legislation if ‘they’ consider it ‘appropriate’. Clause 15 undermines our unwritten constitution in that laws made by the democratic process will be preplaced by those that are not. 

30. Devolution 

31. In terms of scrutiny, the extremely complicated implications for devolution of this Bill have not been sufficiently considered. Both the Scottish and Welsh governments have stated that the Bill undermines the devolution settlement.  

32. The Bill risks creating legal asymmetry within the UK which the Impact Assessment notes can be managed by the Internal Market Act. However, this is an extremely controversial and untested piece of legislation which was rejected by the devolved administrations. With regard to devolution, it mirrors other sections of the Bill in that it increases the prospect of legal uncertainty.  

33. Conclusion 

34. The Bill puts people’s existing rights at risk. It represents a huge transfer of power from parliament to the Executive and undermines our parliamentary traditions for scrutiny and accountability. 

35. It is a Bill of extraordinary legal complexity and it will lead to legal uncertainty for all level of courts in the UK, not least in the devolved administrations. 

36. If enacted in its current form, the Bill risks undermining the UK’s standards in a host of areas: equality protections, environmental protections, workers’ rights, consumer rights, food standards and public health. Far from being a ‘bonfire of red tape’, this Bill will be a bonfire of rights and protections people in the UK have fought for over years and decades.

 3 November 2022