EU-turn

On Wednesday (10 May) the UK Government announced via a ministerial statement in both Houses of Parliament that, rather than all of the EU legislation retained on the UK statute book disappearing over a cliff at the end of this year as originally proposed, a list of only 600 out of 4829 instruments would be removed. This would be achieved by a Government amendment to the Retained EU Law Bill currently making its way through its final stages in the House of Lords. 

Much uproar in the Brexiteer Tory ranks erupted, with the chief protagonist (Jacob Rees Mogg MP) decrying the Prime Minister on BBC Radio 4 for having U-turned on a personal Conservative Party leadership contest commitment to rid the UK of the (in Rees-Mogg's view at least) irksome EU legislative legacy. 

So what is on the list?

Well, 160 of the measures to be axed are environmental and roughly 16 are health and safety related. The environmental regulations centre on two things: 

(i) instruments relating to operation of the EU Emissions Trading Scheme - particularly with regard to aviation emissions and carbon leakage; and

(ii) decisions with regard to approval of particular biocidal substances. 

Additionally, there are a few concerning genetically modified organisms, habitats, environmental impact assessment, environmental permitting and energy efficiency, but also a handful on air quality, persistent organic pollutants and ozone, timber and fisheries conservation. 

Of the remainder, a large chunk deal with fisheries quotas and regulation and agricultural exports. Some concern shipping and training of seafarers, plus a sprinkling of data protection provisions. (Of note, 500 instruments are separately being revoked through financial services and procurement bills). 

It is, however, more than a numbers game and the substance of the 600 instruments on the list matters. Whilst the list has been made available, there is no accompanying rationale for how it has been drawn up and what (if anything) the impact of the removal of the 600 is likely to be. Neither does it seem to be suggested that the House of Lords should now stop to examine each item in detail, although that is perhaps a possibility.

And the rest?

What is more, the Government is proposing that with regard to the remaining retained EU law instruments, it will have power to issue further decisions on which of them should be removed after the Bill passes, without the need for any Parliamentary scrutiny. By my reckoning, there are at least another 1600 environmental / climate changes pieces of retained EU legislation left to address in this way. 

Make no mistake, this is highly unorthodox under the UK legislative system where Parliament as a whole (and not the Government of the day) has the constitutional right to adopt or revoke legislation. 

Now, it might well be that a proper assessment by Government lawyers has been done with regard to the selection of the 600 instruments to be axed first:

• Measures relating to allowances under the EU Emissions Trading Scheme are for instance likely to be superfluous now that we are no longer a member of it.
• Decisions approving an EU negotiating position for international negotiations will be redundant. 

But detailed justification should be published by the Government before the bill is adopted so that the rationale can be scrutinised by lawmakers, business and the public at large. This should:

1. remove the leap of faith required by Members of Parliament
2. justify the claim in the Ministerial Statement that revoking these 600 items helps provide legal certainty - quite the reverse at present, I would argue! 
3. demonstrate the UK's compliance with the 'level playing field' requirements of the EU Withdrawal Agreement and Northern Ireland Protocol, whereby it was agreed that the UK would not backslide on the level of environmental protection existing as at our exit.

So whilst it is to be welcomed that the Government has pulled back from the brink of an indiscriminate bonfire of legislation come year end, the onus ought now to be on Ministers to at least show how they are abiding by the concept of 'do no harm'.