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Government Accused Of "Extreme Ministerial Power Grab" Over EU Law Repeal Process

Baroness Hayter has warned the process to repeal thousands of EU laws could be "potentially dangerous"

5 min read

Labour peer Baroness Hayter has claimed attempts by government to limit parliamentary scrutiny of the repeal of EU laws is "irresponsible and potentially dangerous", as the government prepares to review and scrap or recycle around 4,000 pieces of legislation by the end of this year.

Baroness Hayter said the government's commitment to "sunsetting" EU laws by the end of 2023, rather than set an open-ended deadline to account for the volume of legislation under review, was a "PR exercise" to prove they are still committed to Brexit. But she warned that approaching the process in this way would lead to uncertainty for thousands of businesses.

Under the Retained EU Law Bill, any legislation carried over from the UK's exit must be reviewed by the end of 2023 or be scrapped under a so-called "sunset clause" included in the Bill. A number of legal experts have told PoliticsHome that the "mad dash" to meet the deadline is "bonkers," and a "terrible way to make law".

Hayter says that the government's decision to handle the Bill through secondary legislation – usually reserved for technical issues – has handed ministers power to undergo the process without full parliamentary scrutiny of the laws being scrapped or amended.

Writing for The House, the Labour peer said the move was "perhaps the most extreme example of a ministerial power grab".

Highlighting the legislation covered by the bill, Hayter warned critical decisions ranging from road safety to consumer rights could be altered without proper scrutiny by MPs and peers.

"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," she wrote.

"And to risk losing them – with no parliamentary debate – at the stroke of midnight on 31 December [2023] is irresponsible and potentially dangerous."

Former Business Secretary Jacob Rees-Mogg, who designed the current law, is among a number of staunchly pro-Brexit MPs who are putting pressure on Prime Minister Rishi Sunak to press ahead with the plans. 

"We need to settle this by the 2023 deadline otherwise Labour will use this at the next election and create all sorts of stories about how we intend to scrap workplace rights and environmental regulations," he told the Financial Times in December.

"We need to get on with it."

A Downing Street spokesperson has insisted Sunak is committed to the 2023 deadline, despite pleas for the government to extend the date, a pledge he reiterated during a major speech setting out his vision for the country last week

Hayter told PoliticsHome believed the decision to stick to the deadline was part of a "PR exercise" to prove they were committed to "getting Brexit done", the pledge made by Boris Johnson at the 2019 general election in relation to seeing a final Brexit deal over the line. While the UK officially left the EU on 31 January 2020, a number of details over the UK's future relationship with the bloc were still to be ironed out.  

"We had the vote nearly seven years ago, this government could have done it by primary legislation by now, because the truth is they probably won't want to get rid of 4,000 pieces of legislation," Hayter explained. 

"They might want to get rid of 500, and actually they could have identified and done that by now. So I think this is a PR thing, this is about just showing they're ripping up EU legislation. 

"There's a bit of the government that doesn't like regulation but there's also a bit of the government that just wants to show it's still doing Brexit."

Hayter also expressed surprise at Sunak's decision to stick with the plans which were drawn up under his predecessor Liz Truss, saying he was more of a "detail person".

She added: "I would have thought he would have heard from business that say: 'If you take away our legislation, we don't want to do'."

The decision has also caused anger from business groups and legal experts who have warned the deadline would lead to economic uncertainty.

In November, leading industry groups, including the Institute of Directors and Trades Union Congress, urged Sunak to ditch the red-line, saying it would cause "significant confusion and disruption for businesses, working people and those seeking to protect the environment".

Hayter felt that it was likely the government would still have to create new legislation to cover gaps in standards if they went ahead with the December deadline, but recognised the issue of uncertainty "which business hates".

"The government recognises this and there's a carve out for the finance sector because they realised this was too complicated, which proves they can't do it this way and it's going to lead to massive problems."

Speaking to PoliticsHome last week about the decision to use secondary legislation to pass the bill, Catherine Barnard, professor of European law at Cambridge University, and deputy director at UK in A Changing Europe think tank, said peers were "very concerned" by the plans.

"One of the reasons [former Brexit minister] Lord Frost gave for getting rid of retained EU laws was that it was law undemocratically made by the EU," she said.

"He says we could have been out-voted on some of those laws – which is true, though it virtually never happened."

Barnard said there was an "irony" that ministers could use the powers to "ram through the changes to the law", saying it would be undemocratic. 

She added: "There's an irony in this in that government could use Henry the Eigth powers to ram through changes to the law, which would be almost as undemocratic. If you're going to make significant policy changes, there needs to be an act of parliament and a proper discussion."

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