EU law repeal process is irresponsible and potentially dangerous
Baroness Hayter has said the EU repeal process is a "ministerial power grab"
4 min read
On Thursday, the Lords will have a major debate on two outstanding Committee Reports, whose titles themselves tell a tale.
“Democracy denied? The urgent need to rebalance power between Parliament and the executive”, and “Government by diktat: A call to return power to parliament”. These arose from concern over this government’s growing use of secondary legislation (normally reserved for technical issues and updating) over which Parliament has effectively no control.
This tendency is not confined to legislation. My International Agreements Committee has railed against the government’s use of a mere Memorandum of Understanding – not being a Treaty, it is excluded from the parliamentary scrutiny mandated under the Constitutional Reform and Governance Act – for the agreement with Rwanda to ship asylum seekers there. Given the impact on people’s rights (and the costs involved), this major policy issue – to say nothing of the obligations agreed upon by Ministers – should have come before Parliament for decision.
Now we have the Retained EU Law – perhaps the most extreme example of a ministerial power grab, which even have put Henry Vlll to shame. We normally have a practice that laws are repealed by primary legislation (Acts of Parliament) not by ministerial say-so. Yet this Bill, without even enumerating the 4,000 or so bits of legislation affected, would allow government to simply repeal the “brought over” retained former European law which we put onto the Statute book in the Withdrawal Act – at which time we were assured that any subsequent repeal or amendment would be by primary legislation.
It is not simply our (Conservative chaired) Committees quoted, nor my (Labour chaired) Committee, nor even just business worried by legal uncertainty and the lack of an implementation period who are protesting.
In the most devastating attack on a Government’s Impact Assessment I have read, the Regulatory Committee judges the assessment “Not fit for Purpose”, with no consideration of the Bill’s impact on SMEs, figures incorrectly interpreted, inadequate consideration of the effect on major sectors and – vitally – says the government has failed to make “a sufficient case to support regulatory intervention in the form of sunsetting REUL”. It calls for a stronger argument as to why sunsetting is necessary and complains that the government has not undertaking any substantive Cost-Benefit analysis to support the Bill.
Needless to say, there was little or no prior information or consultation before the Bill, one which would have major consequences across swathes of businesses, the environment, workers’ and consumer rights.
Indeed, the implication of the Bill is that Regulation is of itself a bad thing – despite it being the way we create safety on the roads, in our homes, in buildings and in shops, how we “stand in the shoes” of consumers by providing standards or rights which they can’t negotiate for themselves, how we ensue other people’s cars are maintained and safe which protects us as passengers, pedestrians or cyclists, how noise is minimised and beaches kept clean.
Simply because some of these rules were made, with our involvement, over the 50 years we were in the EU does not make them bad. And to risk losing them – with no parliamentary debate – at the stroke of midnight on 31 December is irresponsible and potentially dangerous. Often insurance is granted provided a business keeps to the law, but if that law disappears or is unclear, what then of the insurance – and what will be needed to replace the rules?
Leaving Europe was, for many, all about “taking back control”. I imagined that was to Parliament not to Ministers. Annulling 4,000 bits of law just to prove we have left the EU is as senseless as it is unnecessary. Ministerial fiat is no way to make law. This Bill must be changed.
Baroness Hayter of Kentish Town is a Labour peer and chair of the International Agreements Committee
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