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The ‘Brexit Freedoms’ Bill, which will presumably receive a more prosaic title when it is put before parliament, was always going to be a controversial measure.
Formally announced on Monday, it has been expected since December, when former Cabinet Office minister Lord Frost said that draft legislation to facilitate the implementation of a review of retained EU law would emerge this spring. It also feeds off the so-called TIGRR report into regulation more generally, handed to the prime minister in the summer.
Writing in the Telegraph yesterday, attorney general Suella Braverman defended the government’s plans, which would remove “the special status and supremacy of EU law” in the UK statute book.
The bill will make it easier to remove or amend EU law, “reflecting the sheer volume of law that needs to be changed, and the underlying lack of democratic legitimacy in the way these came onto the UK statute book. We will work with parliament on how to frame such a power and ensure its use has the appropriate levels of parliamentary scrutiny,” she wrote.
It would deliver “rules right for us” she insisted.
Numerous people have concluded that the bill is little more than an attempt to distract from Downing Street’s ‘partygate’ scandal, which is now under police investigation. But there is clearly more to it than that.
Reading between the lines, it would enable primary legislation – or EU law with the same status – to be amended through issuing regulations, avoiding much of the close parliamentary scrutiny that would be required otherwise.
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“These reforms will be controversial among those who have built their careers around EU laws and institutions. Some may be convinced that retained EU law should remain forever – or indeed align to match EU rules as they evolve. It is surely uncontroversial to ask the question: are these rules right for us? Taking back control of our statute book means that we are finally free to answer as we wish,” wrote Braverman.
Just as she predicted, academics and environmental professionals have warned of the law’s potentially dire consequences.
Writing on Twitter, European law professor Michael Dougan, of the University of Liverpool, said that the bill, which remains unpublished, presents two serious threats: “making it easier for ministers to change the law of the land under their own authority” and the potential scope of such powers.
“Apparently ‘taking back control’ is very boring: imagine have to wait for parliament to make the rules!” he wrote, adding that, “What Johnson snidely dismisses as ‘red tape’ is capable of covering our individual rights & regulatory standards across every imaginable field: employment, environment, consumers, oversight in fields from finance to chemicals.” He concluded that the bill is “a power grab”, while dismissing the minister’s claims about the democratic legitimacy of EU law.
It was “adopted under a system explicitly and repeatedly endorsed by parliament itself. But then, Johnson doesn't hold parliament in much regard,” Dougan wrote. He also questioned how the government could arrive at an exact figure (£1bn) before its review has finished, and before any concrete proposals have been made.
Doug Parr, Greenpeace UK’s chief scientist and policy guru, expressed similar views, arguing that the bill presents “real environmental risks”.
“EU law was subject to lots of debate between nations, often going through the EU parliament (where we elected MEPs to debate it!) So the idea that EU law is not democratic isn’t right and it doesn’t justify anti-democratic means of getting rid of it,” he tweeted.
“The fast-tracking being announced carries serious risks. Instead of open debate it means that those with access to law-makers can get the changes they want without much scrutiny,” Parr warned. He referenced how ministerial meetings with fossil fuel firms greatly outweigh those with the clean energy sector, and how the chemicals industry has successfully lobbied for UK REACH to be watered down.
Phoebe Clay, interim director of Unchecked UK, had more moderate views.
Although the bill’s announcement sounds like “red meat for the deregulators”, and “boosterism” to shore up support from within the Conservative Party, she said that it appeared to be quite narrowly focused. There is “unlikely to be anything significant in relation to the labour market or the environment,” she concluded, with no “overt conspiracy to deregulate everything”.
“Newfound freedoms should be an opportunity for us to set higher standards,” she told ENDS.
Sarah Williams, head of the Greener UK coalition, said that how exactly the government intends to use the bill remains unknown but putting it in place before the review completes “seems a bit cart before horse”.
She added that, despite the government’s rhetoric, business is “not particularly enamoured” by deregulation and red tape challenges, preferring a stable regulatory environment instead.
Martin Baxter, the director of policy and external affairs at the Institute of Environmental Management and Assessment, observed that the bill is likely to circumvent section 20 of the Environment Act 2021, which provides safeguards against reducing environmental protection. Regulations to put the measure into force have not been published, and in any case the bill would not be considered to be specifically environmental law.
Labour’s Emily Thornberry, the shadow attorney general, underlined that, “for all this talk from the government about the potential legislative freedom we have outside the EU,” the government has still not exercised one right it now has: to remove VAT on rapidly-rising energy bills.