"Mad Dash" Plan To Scrap Thousands Of EU Laws This Year Called "Bonkers" By Legal Experts
The countdown to Brexit projected on 10 Downing Street (Alamy)
Legal experts have expressed incredulity and concern over the government plan to review thousands of pieces of European Union law by the end of the year, warning that it will put extreme pressure on the civil service, create uncertainty for business, and risk unintended consequences.
Under the Retained EU Law Bill, introduced by former prime minister Liz Truss, the government is committed to repealing or replacing around 4,000 pieces of law derived from the UK's previous membership of the bloc, by a deadline set by ministers: the end of 2023.
Sir Jonathan Jones, the former head of the government legal department, said that the government setting itself an arbitrary deadline, leaving a needlessly short space of time to review such a vast quantity of legislation, was a "terrible way to make law". Philip Rycroft, who was permanent secretary at the now defunct Department for Exiting the EU, said it's "beyond belief" that ministers are sticking to their end-of-2023 sunset clause.
But a No 10 spokesperson this week insisted there were "no plans" to extend the deadline after the Sunday Times quoted a senior government source saying it was "inevitable" that the process would be delayed until as late as 2026.
The source told the paper they believed the House of Lords would amend the bill, forcing the government to compromise on the deadline. The report added that three departments – the Department for Business, Energy and Industrial Strategy, the Department for Transport and the Department for Environment, Food and Rural Affairs – are expected to extend the deadline by three years.
Rishi Sunak doubled down when asked about the legislation during his east London speech on Wednesday, however, telling reporters "we are going to deliver" by the end of 2023.
A government spokesperson told PoliticsHome there were no plans for the sunset clause to be pushed back for "any" department.
The legislation, which the government is under pressure from pro-Brexit MPs to get through parliament as quickly as possible, gives departments until the end of the calendar year to decide which EU-derived laws they would like to bin, alter, or retain in their current form as part of the UK's newfound regulatory freedom.
Sunak has said completing the task by the end of the year would help the government unlock the opportunities of Brexit, by making UK regulations more agile and supportive of innovation.
But Rycroft, who was the Whitehall lead on regulatory reform during his time as chief executive of the Better Regulation Executive, which sits within BEIS, told PoliticsHome ministers were embarking on a "completely mad dash" to meet the arbitrary cut-off point.
"There is absolutely no way that this can be done in good order," he said.
“The volume and significance of the law under consideration is going to completely overwhelm the system. But it’s not just the sheer volume that we're talking about, it's also the huge significance of that law. Environmental law, protection of workers’ rights, civil aviation, product safety, and so on.”
He was echoed by Catherine Barnard, Professor of European law at Cambridge University and Deputy Director at UK In A Changing Europe think tank, who said the plan was not "realistic".
“There are 4,000 pieces of law but in a sense that number is somewhat meaningless, because some of the laws are hundreds of pages, while some are much shorter.
"The more fundamental question is: what do these laws cover? They cover things as fundamental as food safety and airline safety, not to mention workers’ and environmental rights.”
Jones KC, who resigned as a senior government lawyer in September 2020, said the rush by ministers to review thousands of pieces of law by the end of the year would create the risk of "errors or unintended consequences only coming to light after the deadline".
"Ministers are undoubtedly entitled to ask parliament to change the law, but the idea that there is some rush or an artificial deadline for doing so, on this scale, is bonkers," he told PoliticsHome.
All three stressed that affected sectors and stakeholders would have almost no time to prepare for the new regulatory regime on the current timetable. In November, a coalition of trade bodies, environment groups and unions, including the Institute of Directors and Trades Union Congress, wrote to Sunak urging him to scrap the deadline, warning it would “cause significant confusion and disruption for businesses, working people and those seeking to protect the environment”.
"Businesses simply not knowing what regulations will apply at the end of this year, and what they will have to comply with, it is completely crazy," said Rycroft.
“This is not about Brexit, it’s about the way you make good regulation.”
But within Westminster, the Prime Minister is under clear political pressure to get the job done as soon as possible.
Even though Sunak voted to leave the EU in 2016, he has struggled to convince staunchly pro-Brexit factions of Tory MPs that he is truly one of them, partly because of his more cautious approach to the Northern Ireland Protocol impasse compared with former prime ministers Truss and Boris Johnson – despite that fact that Truss herself originally backed Remain.
Jacob Rees Mogg, the leading Brexiteer who spearheaded the legislation during his time as business secretary, has warned ministers that getting the job done is "part of embedding Brexit".
Rees Mogg has expressed a wider frustration among pro-Leave Conservative MPs that successive Tory administrations have failed to unlock what they see as the benefits of the UK's departure from the EU, as well as concern that they will have little to show for Brexit come the next general election.
Tory MP David Jones, deputy chair of the European Research Group, said the group was "concerned" that the "very important" Retained EU Law Bill would not meet the current deadline.
“The opportunities of Brexit depend materially upon having our own freedoms. The original working title was the 'Brexit freedoms bill', and that was the purpose of it," Jones told PoliticsHome.
He dismissed the claim that it would take several years to carefully review around 4,000 pieces of law. "It is suggested that it’s an impossible task, but I don’t believe that’s the case," he said.
"It can easily be achieved provided there is sufficient focus on behalf of ministers and civil servants."
Jones said Sunak would be better-equipped to carry out the task, seen by officials as a highly byzantine by piece of work, if he moved responsibility from BEIS to the Cabinet Office and appointed a new minister who is primarily responsible for its delivery. Business Secretary Grant Shapps is driving calls for the deadline to be pushed back, PoliticsHome understands.
"The government should be putting in place proper machinery to make sure this exercise is carried out swiftly and efficiently," he added.
A government spokesperson said: “The programme to review, revoke and reform retained EU law is underway and there are no plans to change the sunset deadline for any government departments.
“The Retained EU Law Bill will enable us to grasp important opportunities provided by Brexit and move away from outdated EU laws to establish our own rules for how we live and govern our lives in Britain.”
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