Retained EU Law (Revocation and Reform) Bill

Written evidence submitted by Friends of the Earth England, Wales and Northern Ireland (REULB63)

Committee submission - Retained EU Law (Revocation and Reform) Bill

About us

1. Friends of the Earth England, Wales and Northern Ireland was established in 1971. We have local groups in around 130 neighbourhoods, and support more than 260 Climate Action groups. We are part of an international network of 75 national groups, counting over 2 million members and supporters globally. Friends of the Earth supports strong environmental standards and alternative approaches to trade, which put the needs of local communities and our environment at the forefront.  We are a member of the Greener UK coalition, through which we have worked since 2016 to ensure that the UKs exit from the EU does not diminish environmental protections.

Summary

2. The Retained EU Law (Revocation and Reform) Bill puts at risk thousands of laws that are crucial not only to protecting and restoring the natural environment, but also to supporting public health, and creating a sustainable economy. It represents an attempt to deliver the single biggest modification of environmental law in the UK in recent history and will have major implications for laws that protect our rights as citizens, consumers and workers. It is both welcome and inevitable that the law changes and develops to support ever more beneficial outcomes. Yet Friends of the Earth is concerned that the way the revocation and reform of Retained EU Law (REUL) has been approached through the bill is deeply flawed in three key ways, which mitigate against beneficial outcomes:

i. A potential wholesale lowering and loss of protections: The UK government now has the power to amend or delete laws adopted during the period when the UK was a member of the EU. However, it does not follow that all, or indeed, necessarily any of these laws require reform or revocation, nor that any change to an imperfect law is of equal value. Yet this is not the approach offered by the bill, which requires a wholesale review of legislation without appropriate safeguards to ensure any replacement text achieves desired outcomes and that overall levels of protection do not diminish. In fact, rather than use REUL as a baseline from which the UK can build, the bill presents it as a ceiling beyond which burdens must not be increased, and under which ministers have significant freedom to pursue a deregulatory agenda. This government has made repeated commitments to retaining and improving upon existing standards – this bill can only move us in the other direction.

ii. Administrative burden and potential for error: This bill sets a ‘sunset’ date of December 31st, 2023 for everything defined as REUL. By this date, each part of government must have decided if each law in its purview should be kept as it is, changed in some way or scrapped. If a law is overlooked, it will be automatically revoked. This could leave holes in laws which protect people and nature which won’t be noticed until it is too late. This is going to be a huge amount of work for all parts of government, not least the Department for the Environment, Food and Rural Affairs (Defra), who have already identified 570 laws to review and expect a final REUL list that is significantly larger. Defra is already underfunded and overstretched, yet this bill will redirect funding, capacity and focus from other priorities.

iii. Inadequate scrutiny and an undermining of democracy: The REUL bill gives ministers a very broad power to change retained EU law. This includes options to ‘update’, ‘reduce burdens’, and even to ‘revoke … and make such alternative provision as … appropriate’. While some scrutiny mechanisms are outlined, it will be very easy for this government and future governments to entirely rewrite or undermine protections for people and nature with only limited debate.

3. Friend of the Earth urges the government to withdraw the REUL Bill – we have no objection to a sensible, consultative process that examines, updates and improves environmental laws, but that is not what this bill offers.  Instead, the REUL bill presents at best, huge and unnecessary uncertainty, and an acute risk of errors with long term consequences, and, at worst, the potential for a massive downgrading of sensible legal protections, unfettered by public participation and parliamentary scrutiny.

Further detail

Wholesale lowering and loss of protections

4. The REUL Bill risks undermining the UK’s environmental protections, worker and consumer rights, food standards and public health safeguards. This runs counter to commitments made during the EU referendum campaign that rights and standards found in EU law would be protected and that any changes to them would be made democratically, with full Parliamentary scrutiny.

5. Clause 15 gives ministers extremely wide powers to revoke or replace REUL and to lay replacement legislation either with ‘such provision as the relevant national authority considers to be appropriate to achieve the same or similar objectives’ or with ’such alternative provision as the relevant national authority considers appropriate’. This subjective judgement of appropriateness, accompanied by such a limited link to the objectives of the original legislation, leaves clear potential for sensible, longstanding protections to be replaced by regulations with entirely divergent aims and outcomes. It also lists restrictive conditions that any replacement legislation should meet, including that it should not ‘increase the regulatory burden’ or impact profitability. This provides for a clearly deregulatory direction of travel and will make it impossible to quickly replace legislation with higher environmental ambition.

6. Clause 16 provides an ongoing power for REUL, and legislation brought in to replace REUL, to be amended in light of changes to science and technological understanding, but provides no clarity as to the expertise, objectivity or scrutiny of such judgements.

7. REUL is a broad and diverse category of law. The Defra body of REUL contains many regulations of significant public interest, including legislation which aims to protect important habitats and species, maintain pesticide and chemicals standards, and set out food standards. These set out to protect every element of our natural environment and many aspects of people’s health, by setting requirements on issues such as water quality and bathing waters. The loss or restatement of environmental REUL would impede the UK’s ability to meet the legally binding targets set out in the Environment Act 2021, including the commitment to halt the decline in the abundance of species in England by 2030.

Administrative burden and potential for error

8. Far from removing red tape, the REUL Bill is set to create extra work and uncertainty for both industry, conservation organisations, and Whitehall. Capacity is already stretched across government, with delay besetting many environmental programmes. The Environmental Principles Policy Statement, first promised to Parliament in 2017, is yet to be finalised. The Office for Environmental Protection has found ‘slow progress’ in implementing the 25 year Environment Plan, while government action to implement the recommendations of the Glover review of national landscapes is long overdue. And Defra failed to meet its recent legal deadline for publishing targets under the Environment Act due to the ‘significant public response’ to the accompanying consultation outstripping capacity. Against this backdrop, a thorough Defra assessment of the 570 pieces of REUL identified on the dashboard prior to the sunset deadline of 31st December 2023 seems like an impossible ask – particularly given the department has indicated hundreds more pieces of REUL are likely to be added to this list.

9. Moreover, due to the sheer number of REUL instruments, there is a real practical danger that important laws will fall automatically at the end of 2023, simply because they have not been identified and/or restated or amended in time. The government dashboard currently lists 2,417 pieces of law, albeit with varying levels of accompanying detail provided by each department. Recent media reports suggest another 1,400 pieces of legislation may be added to the dashboard imminently. This means at least 3,800 legal safeguards require active restatement or review, while an unknown additional number may still require identification. Unintended omissions or rushed law-making could lead to significant gaps in our environmental law framework that could have knock-on effects on other domestic and assimilated laws, or indeed on the UK’s compliance with the terms of the UK-EU Trade and Cooperation agreement.

10. The tight timescale means that important legislation is likely to be overlooked or lost by default. Whilst some laws will be given a later sunset of 2026, there is no clarity on which legislation will be given this extension or how this decision is made. We risk seeing hastily drafted replacement legislation, leading to lack of clarity, uncertainty in interpretation or application, and consequent legal challenges.

11. It would be reckless for the government to prioritise this wholesale review of existing, functioning law at any time. But at a time when the UK also faces a cost of living and economic crisis, and action is needed more than ever to tackle climate change and the depletion of nature, it is a senseless diversion of resources and funds away from where they are needed, and an invitation for inadvertent error.

Inadequate scrutiny and an undermining of democracy

12. As a framework bill, the REUL bill itself presents a challenge to parliamentary scrutiny because the implementation of its policy objectives will be entirely at the discretion of Ministers following Royal Assent. The Bill also undermines democratic processes, proposing a wholesale change to the statute book with little to no accompanying parliamentary scrutiny. The process(es) to be adopted by the government to assess the body of REUL and decide which pieces may be subject to the sunset, which will be rewritten and which may be retained are not detailed in either the Bill itself, nor supporting documentation. By enabling ministers to repeal, revoke, replace or amend any REUL without explanation (under Clause 15), the bill makes the fundamental role of Parliament in repealing secondary legislation essentially discretionary. If government chooses to do nothing, legislation simply falls.

13. With an automatic sunset date looming, the opportunities for meaningful parliamentary engagement in the ‘reform’ of laws will be dramatically diminished. There is no deadline by which Ministers must make clear their intentions to review, restate, repeal or indeed delay the sunsetting of each piece of legislation. Ministers will therefore be able – or forced – to make late decisions. This is likely to prevent effective public consultation on any changes, impede proper parliamentary scrutiny, and offer little time for the planning and preparation needed to ensure full implementation.

November 2022