Written in the stars

There is a common thought experiment parents try on their children. The child is asked: if you had one wish, what would it be? A common response is a wish of deep complexity – designed, in fact, to deliver more than one desired outcome, it seeks to nullify negative consequences of the wish. And, more than likely, their answer tries to leave open the possibility of a further wish being granted in the future.

As currently drafted, the Retained EU Law (Revocation and Reform) Bill, introduced to parliament on 22 September, has much in common with the result of that thought exercise.

The bill was presented by business secretary Jacob Rees-Mogg as a piece of one-wish legislation – called on to do many things. The government having identified 2,400 EU ‘retained laws’, said Rees-Mogg: ‘The bill will sunset the majority of retained EU law so that it expires on 31 December 2023. All retained EU law contained in domestic secondary legislation and retained direct EU legislation will expire on this date, unless otherwise preserved.

‘Any retained EU law that remains in force after the sunset date will be assimilated in the domestic statute book, by the removal of the special EU law features previously attached to it. This means that the principle of the supremacy of EU law, general principles of EU law, and directly effective EU rights will also end on 31 December 2023. There will no longer be a place for EU law concepts in our statute book.’

He continued: ‘Before that date, government departments and the devolved administrations will determine which retained EU law can be reformed to benefit the UK, which can expire, and which needs to be preserved and incorporated into domestic law in modified form.’

In case such a cliff edge proves practically impossible in some areas of law, the bill includes an ‘extension mechanism for the sunset of specified pieces of retained EU law until 2026’.

Clearly concerned by the common law’s attachment to useful precedents, the bill will ‘provide domestic courts with greater discretion to depart from the body of retained case law’. This will prevent precedent results in EU laws becoming ‘baked in’.

What else? Notably, Rees-Mogg said, ‘the bill will also create powers to make secondary legislation so that retained EU law or assimilated law can be amended, repealed and replaced more easily’. This avoids the need, across swathes of the law, for primary legislation, and in the process vests greater power in the executive and less in parliament.

It can be argued that the ambition of the bill reflects the mandate of the 2016 referendum result, and the general election results of 2017 and 2019. The underpinning work on the bill’s structure and provisions did not begin with Liz Truss’ appointment as prime minister days before its publication, but months before.

What is more, any government attempting to act on that mandate would be frustrated if law reform was required to happen piecemeal – perhaps even occurring at the same pace that EU law had developed in a UK context.

Parliamentary sovereignty

Yet, as Law Society president I. Stephanie Boyce puts it: ‘The draft Retained EU Law Bill raises uncomfortable questions for parliamentary sovereignty, legal certainty and the rule of law in the UK. Provisions in the draft bill would enable government to effectively bypass the parliamentary scrutiny and stakeholder consultation that is inherent in good law-making.’

So when MPs and peers come to debate, amend or vote on the bill, they face an unenviable choice. Should they act to protect the conventions and processes of the UK’s unwritten constitution, and in doing so break trust with members of the public who, when asked, provided a mandate for change? Or follow the apparent mandate?

As drafted the bill goes too far in such insistence on speed, argues the former head of the Government Legal Department, Sir Jonathan Jones KC. Jones tells the Gazette that although the EU (Withdrawal) Act 2018 retained EU laws in order to smooth transition, the mechanisms for introducing successor legislation exist. ‘If the government wants to change any aspect of that law, it can do so in the usual way – by bringing forward a bill which parliament can debate and amend, and to which the courts would give effect once enacted,’ he says.

Jones also highlights the ‘extremely wide powers’ the bill confers on government ministers ‘to change the law by regulations – to restate former EU law with changes; to revoke it without replacing it; to replace it with whatever alternative provision ministers “consider appropriate”; or to “update” it to reflect scientific or technological changes’.

Parliament, he points out, ‘will have minimal input into those regulations – at most a short debate, often not even that, with no power to amend.

‘Indeed,’ Jones adds, ‘the “sunset” provision in clause 1 means those whole areas of law can automatically fall away, with all the policy change inherent in that, with no further parliamentary input at all.’

The intention to introduce such legislation was publicly mooted on 31 January, in Rees-Mogg’s words, ‘to mark the two-year anniversary of getting Brexit done’. As Pinsent Masons legal director David Thorneloe, a former government lawyer, explains on the firm’s website, the bill represents ‘a break from the continuity approach taken to date for maintaining retained EU law on the UK statute book after Brexit. Instead, it will end most of the special features of EU law, so that it is treated more like other domestic legislation’.

‘This new bill tells us nothing more about which rules will be assimilated or abandoned, or when,’ Hogan Lovells partner Charles Brasted tells the Gazette. ‘But what – aside from some superficial rebranding – it does do is to reverse much of Theresa May’s approach to EU retained law. The bill reverses the presumption that retained EU law will remain in force until repealed or amended by setting a sunset date for those laws to expire.’

Brasted says the bill also ‘turns on its head the legacy hierarchy of laws arising from EU law supremacy, making retained EU law… now subject to, and required to be read in a way compatible with, all domestic enactments, even those which came before the retained EU law in question’. The result, he says, will be ‘a material impact in litigation over coming years’.

This aspect has also caught Jones’ attention. ‘The bill also changes the way in which retained EU law is to be interpreted by the UK courts – to disapply EU law principles and give the courts wider discretion to depart from prior case law,’ he says. ‘These are obscure provisions and no one knows for sure what the effect will be in particular areas of law or factual situations.’

‘Because it is a political, rather than a rational bill,’ Red Lion Chambers barrister Sailesh Mehta says, ‘the reality is that rather than lots of entirely new legislation, most of the replacement legislation will be identical to what we already have.’

But not all of it will be identical. Attention is closely focused on certain areas of law where members of the government, and those close to them, have indicated they would like to see changes. Some of those changes will also bring the UK government into conflict with the devolved governments, especially Wales and Scotland.

Rowing back protections

On publication of the bill, Angus Robertson MSP, the Scottish government’s cabinet secretary, wrote to Rees-Mogg, outlining his opposition to the bill. ‘This bill,’ Robertson said, ‘puts at risk the high standards people in Scotland have rightly come to expect from EU membership. You appear to want to row back 47 years of protections in a rush to impose a deregulated, race-to-the-bottom, society and economy.’

Robertson listed areas of law where the government’s suspected intentions have stoked controversy – what he phrases ‘the important standards and practices which are woven into our society’. These include ‘holiday pay, safe limits on working hours and parental leave’, food and food labelling standards, and environmental protections.

This is also Mehta’s assessment. ‘Watch out,’ he says, ‘for the scrapping of TUPE regulations, paid annual holiday rules, the 48-hour working week, agency worker regulations and part-time and fixed-term worker rules. All these could be in the government’s sights. And also dumbing down food hygiene regulations, possibly in anticipation of a US trade deal.’

Unions and their advisers also fear for employment rights as an obvious target for ‘deregulation’. Writing in the Gazette earlier this week, Richard Arthur, head of trade union law at Thompsons Solicitors, insisted: ‘The bill takes a hatchet to employment rights derived from the EU, which have provided much-needed protection for the last 50 years.’

Robertson also raised the prospect of a stress on the UK’s constitutional arrangements. ‘I am greatly concerned by the attitude of the UK government in respect of devolved power,’ he wrote.

While Robertson’s letter makes many party-political points, the impact on devolved power is also a concern for more objective voices. The Law Society’s Boyce says: ‘If laws were to be changed through delegated powers – by ministers without the usual parliamentary scrutiny – this would run the risk of upsetting the devolution settlements with Wales, Scotland and Northern Ireland.’

Constitutional tension could also come from a particular part of the bill identified by Brasted. ‘It is notable,’ he says, ‘that the bill expressly provides for some laws to continue to have supremacy where a “relevant national authority” specifies in regulations that this reversal should not apply. This gives extraordinary power to such authorities to alter the constitutional treatment of legislative hierarchy.’

'This has nothing to do with the merits of Brexit. It’s about how we make law in the UK. The bill is a recipe for legal uncertainty and, not for the first time, concentrates vast powers in the hands of ministers with less opportunity for democratic input'

Sir Jonathan Jones KC

Coming true

There is, though, no certainty around the areas of law which the bill, if enacted, will actually be significantly amended. As Thorneloe, who still advises the Government Legal Department on some matters, says: ‘The bill contains broad powers allowing the UK and devolved governments to reform retained EU law. These can be used in different ways for different sectors, so they could pave the way for reforms giving effect to new policy agendas, or they could be used to preserve the existing law where continuity is considered desirable.’

But perhaps there is more at stake than ‘policy agendas’.

‘This has nothing to do with the merits of Brexit,’ is Jones’ overall assessment. ‘It’s about how we make law in the UK. The bill is a recipe for legal uncertainty and, not for the first time, concentrates vast powers in the hands of ministers with less opportunity for democratic input than the EU laws it’s designed to replace.’

 

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