The Retained EU Law Bill will give ministers a blank cheque to bypass Parliament
3 min read
The government’s Retained EU Law Bill will be debated today in the House of Lords and I anticipate it being met with opposition from across our House.
As explained by then-prime minister Theresa May, the decision to place existing European Union law on the United Kingdom statute book was taken to provide “maximum certainty” and for any changes to that law to be decided after “full scrutiny and proper debate”. However, this bill removes certainty, scrutiny and debate.
I acknowledge that there are areas of the law that need improving but this must be done in a better considered manner, with Parliament playing a full role and a proper review process in place and certainly without a self-imposed arbitrary “cliff edge”.
As a lawyer, I am concerned about the legal confusion and uncertainty that the bill will cause
The “sunset clauses” will cause most retained EU law to automatically expire at the end of this year unless it has been specifically restated, revoked, replaced or updated by ministers. The scale of the task is enormous and all of us who have worked on detailed legislation know that this is an inadequate time frame.
It will undoubtedly be a distraction from other, more vital, work that the government should be focusing on such as on-going Russia aggression against Ukraine and the cost of living crisis.
The online dashboard has revealed over 3,700 retained EU laws but the government has acknowledged the list is not exhaustive. Only last Monday another 1,000 laws were added – and goodness knows how many more there might be.
An arbitrary deadline of less than 11 months creates a danger that, as the default position, swathes of retained EU law will unknowingly expire, leading to gaps in the law and important protections inadvertently dropping off the statute book and other unintended consequences.
The bill places too much power in the hands of ministers and Whitehall. Provisions will again allow the government to amend or revoke law by means of secondary legislation – so called Henry VIII powers. Very little guidance has been provided about how or to what extent these powers might be exercised but we do know that this is a move to bypass Parliament and remove any form of scrutiny.
Supporting the bill in its current form is akin to signing a blank cheque; we do not know how many pieces of legislation will be affected nor what they are. The bill is not “taking back control”. It places power in Whitehall and establishes government effectively through executive diktat.
As a lawyer, I am concerned about the legal confusion and uncertainty – and consequential impact on the integrity of the Union – that the bill will cause. The proposed legislation can result in varying interpretations of the law by different courts and the application of different regulations across the constituent nations of the United Kingdom. This will not only upset the delicate balance of the devolution settlements but will also result in difficulties under the UK Internal Market Act 2020.
A vast majority of retained EU law, which the UK – and myself as a former MEP – helped to shape, is actually working well and plays a vital role for consumer protections including: food and product safety, aviation safety, preventing the trafficking of illegal weapons and many others. Surely the right approach would be to look at the small proportion of retained EU law that the government believes is not working and rewrite it under primary legislation, and not what the government now proposes.
If the government wishes for the Bill to pass in our House of Lords, surely it must produce an exhaustive list of all retained EU law where the “sunset clause” is applicable and remove or extend the 2023 deadline that it has imposed.
Lord Kirkhope is a Conservative peer.
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