A core objective of the Civil Society Alliance is for a high standards UK. The 2019 Conservative Party manifesto also committed to raising standards for workers’ rights, environmental protections, and protecting consumers.[i]
The Retained EU Law (Revocation and Reform) Act (REUL), which entered into force on 30 June 2023, is an excellent opportunity for the Government to implement those commitments.
Politics of REUL
The Government’s original plan was to ‘make a bonfire’ of all REUL through a sunset clause that would have seen everything not marked for retention automatically fall away on 31 December 2023. It is reasonable to conclude this was a politically motivated approach. Liz Truss launched her leadership run off campaign by promising a “sunset” for all EU-derived laws by the end of 2023. Rishi Sunak’s response was a campaign video showing him putting all EU laws through the shredder and pledging a review in his first 100 days in office.
It is disappointing that politics got in the way of proper debate and meaningful consultation. Exchanges in both Houses were diminished by rhetoric accusing “Remainers” of resisting changes. This to the visible frustration of those MPs and Peers who wanted their legitimate concerns about the legislation to be addressed – particularly around the cliff edge of the initial sunset clause. It was a missed opportunity to develop a vision for a high standards UK and to “restore Parliamentary control.”[ii]
Introducing a more pragmatic approach
Kemi Badenoch, Secretary of State for Business and Trade’s decision to remove the automatic sunset clause from the bill[iii] and her assurances that REUL “is not a bonfire of regulations. We are not arsonists,” was a welcome and significant turning point. Nevertheless, serious questions remain around the process the Government will use “to get rid of laws that we don’t want”[iv] particularly as there is no provision to include civil society in “the proper assessment and consultation to be carried out.[v]
Openness and transparency
Given the absence of provision in the Act for public consultation, what are the arrangements for ensuring there will be effective Parliamentary scrutiny, particularly as the Commons repeatedly voted down Lords amendments designed to do just that? Section 17 of the Act requires only that the REUL dashboard be kept up to date, and that between now and 23 June 2026 six monthly reports of revoked and reformed REUL must be laid before Parliament, alongside plans for the next reporting period.
In May 2023, Civil Society Alliance wrote an open letter to the Secretary of State for Business and Trade calling for the Government to demonstrate its commitment to transparency and a high standards UK. We asked the Government to publish details of further aspects of REUL that it does not intend to retain, alongside the rationale for their decision-making. Given its expertise on how different elements of REUL impact individuals and communities, civil society is well placed to help inform those decisions.
Should they stay or should they go?
Throughout the Parliamentary process, Ministers repeatedly gave assurances of the Government’s commitments to ensure there would be no lowering of environmental protections or standards[vi], with a better focus on renewables[vii]. There was no intention to abandon our strong record on workers’ rights[viii] . Ministers repeated their commitment to maintain the UK’s leading role in the promotion and protection of human rights, equality, and the rule of law[ix]. Consumers would be protected from unsafe products and would benefit from the promotion of robust food standards both nationally and internationally[x]. Moreover, the devolved Governments could rest assured that the concurrent nature of the powers in the Act was not intended to affect the devolution settlements, nor to influence decision-making in devolved Governments[xi].
Accountability for any backtracking
So how are those assurances playing out so far? Over the summer recess, the Government published several consultations under its ‘smarter regulation’ banner. These include the long awaited consultation on product safety, which advocates a more “agile framework”. Proposals include categorisation of products by hazard and the introduction of voluntary e-labelling. It also includes the proposal to establish a derogation process, building on the COVID-19 emergency response measures for the supply of PPE, that would enable businesses to apply for temporary regulatory easements to speed up supply of essential products in emergencies.
The Office for Environmental Protection (OEP), the independent body established under the Environment Act 2021, continues to challenge Environment Secretary, Therese Coffey, over her stance on the National Emission Ceilings Regulations (NECR). The NECR include national emission reduction targets, which are set for five key pollutants. Whilst committing to keeping “most” of the regulations during the passage of the REUL bill[xii], the Environment Secretary insists that regulations 9 and 10 must go to “reduce administrative burdens and aid transparency regarding air quality emissions policy.” The regulations require consultation, preparation, and implementation of a national air pollution control programme to reduce pollutants including nitrogen oxides and ammonia.
At Report stage of the Levelling up and Regeneration bill in the House of Lords, without prior public consultation, the Government introduced a series of amendments for a new Schedule, which if passed would have potentially “disapplied nature protection laws to allow pollution without mitigation in England’s most sensitive nature sites”.
The current nutrient neutrality scheme requires developers to improve local habitats or pay for “credits” to offset the nitrate and phosphate pollution of rivers caused by run-off from new construction in protected areas. The Government argued the changes were needed to encourage housebuilders to build an additional 100k homes, promising to double Natural England’s wetland funding to £280m (funded from the public purse) to meet the Environment Act’s requirements.
Caroline Lucas MP raised an urgent question in the House of Commons asking the Secretary of State for Levelling up, Housing and Communities why the Government were using the Levelling-up and Regeneration Bill to scrap environmental protections on nutrient neutrality - thereby “backtracking on commitments made during the passage of the REUL bill that leaving the EU would not lead to a weakening of environmental standards”. In the event the proposed amendments were rejected by the Lords by 203 votes to 156[xiii].
Open and accountable lawmaking
Despite rhetoric to the contrary, the REUL Act has the potential to enable Ministers to make policy changes using mechanisms that were not headlined as such. It is difficult for Parliamentarians, let alone civil society to keep track of the changes and understand their impacts.
For example, on the first day of the new Parliamentary session, the Business and Trade Minister Nusrat Ghani, published a written statement announcing a further 93 revocations of REUL through the Revocation and Sunset Disapplication Regulations 2023. These were described as “redundant pieces of legislation that do not reflect policy changes.” No full impact assessment would be needed because "no, or no significant, impact on the private, voluntary, or public sector is foreseen.”[xiv] Working with other civil society organisations we were eventually able to identify the list of REUL to be revoked and reasonably satisfy ourselves that this was the case.
This however begs the question of what happens when there are potential policy changes being made without consultation and Parliamentary scrutiny? The Government may claim not to be arsonists in their drive to remove EU laws that it considers redundant. Given their failure to provide proper accountability, transparency, or parliamentary oversight in this process, it may still prove necessary to stand poised at the fire alarm for some time to come.
Rosalind Stevens, Civil Society Alliance, September 2023
[i] See pages 5 and 33.
[ii] Reference by Lord Hope, House of Lords 15 May 2023, Hansard col. 18 referring to letter from Executive sent to Peers by special messenger on 6 February 2023 (Lord Judge refers, Hansard col 1001.
[iii] Announced in her Regulatory Reform Update statement to the House on 10 May 2023.
[iv] Evidence to the European Scrutiny Committee, 6 June 2023
[v] As set out in the response from Nusrat Ghani MP, Minister for Industry and Economic Security, dated 21 June 2023, to the Civil Society Alliance open letter of 17 May 2023.
[vi] “I can simply repeat the assurances that Ministers have given—ad nauseam, dare I say—that our environmental standards are world leading and will continue to be so” – quote from Solicitor General, Consideration of Lords amendments, 24 May 2023, Hansard col.329
[vii] Nusrat Ghani, Minister for Industry and Economic Security, 3rd reading, 18 January 2023, Hansard, col. 399
[viii] Ibid, Hansard col. 400. Commitments reiterated by the Minister for Industry and Security, in response to Civil Society open letter.
[ix] Baroness Neville-Rolfe, Lords Report Stage, 15 May 2023, Hansard column 74
[x] Solicitor General, Consideration of Lords amendments, House of Commons, 24 May 2023, Hansard col. 328
[xi] Baroness Neville-Rolfe, Lords Report stage, 15 May 2023, Hansard col. 74
[xii] Lord Callanan, Lords Report Stage, 17 May 2023, Hansard, col.321
[xiii] Including by Conservative Peer, Lord Deben, commenting on what the proposed amendments would mean if passed “That means that the British people are now less protected from government mistakes than any country in the rest of Europe. I make no comment about Brexit, but that is where this House and the other place have left the people of Britain” Wednesday, 13 September 2023 Hansard col. 1045.
[xiv] Explanatory memorandum, para 12 accompanied by line by line explainer