No major changes to health and safety and environmental law for the time being but there is still the possibility of future reform.
Summary
After months of controversy and opposition in the House of Lords, the government has now replaced the overarching sunset clause in the Retained EU Law Bill (the 'Bill') with a list of the 600 pieces of retained EU law that it intends to revoke by the end of 2023. Although the Bill is still making its way through Parliament, with amendments to the text still being considered, it now seems that the Bill will not bring any major changes to health and safety or environmental law in the UK.
There had been widespread concern about the potential for the Bill to result in major changes across the UK legislative landscape, including to key areas such as health and safety, environmental protection, employment and consumer rights. Of most concern was the 'sunset' clause in the Bill, which, in the absence of government ministers taking action before the end of 2023, would have resulted in a 'bonfire' of retained EU legislation. This could have resulted in a lacuna of legislation with uncertainty as to the duties businesses needed to comply with and concern around divergence in standards from the EU, which could have had serious implications for trade.
No Major Changes to Health and Safety or Environmental Law
The sunset clause (potentially applicable to 4,000 pieces of retained EU legislation), has now been removed and instead, the government has listed the 600 pieces, which will be revoked. According to the government, a significant number of the 600 pieces of legislation are "defunct and unnecessary now we have left the EU".
Many of the 600 pieces of legislation relate to particular aspects of farming, fishing and international agreements which the government say are no longer relevant. No key health and safety legislation is included on the list. Whilst there is some very specific legislation relating to environmental matters included, the government describes this legislation as relating to requirements, schemes or matters no longer in operation or relevant in the UK.
The government's 'U-Turn' comes following opposition to the Bill in the House of Lords and criticism from special interest and business groups. The changes to the Bill have proved controversial with its Brexiteer proponents, but have been welcomed by others who considered the Bill was not thought through and risked removing important rights and protections without proper scrutiny.
Potential Future Reform
In an interview with the Telegraph explaining the rationale behind the changes to the Bill, Kemi Badenoch argued that the 2023 sunset clause meant that ‘Whitehall departments had focused on which laws should be preserved ahead of the deadline, rather than pursuing the meaningful reform government and businesses want to see’. She also said that removal of the sunset clause meant officials were "freed up to focus on more reform of REUL, and do it faster".
The remainder of retained EU law which is not included on the list of 600, will be assimilated into UK law (and from that point referred to as 'assimilated law'). However, the Bill gives the government significant power to amend the assimilated law in the future with limited parliamentary scrutiny. The comments from Kemi Badenoch indicate that whilst the threat of imminent legislative change has subsided, the message from the government is still that government departments will look to consider what assimilated law should be revoked or reformed.
At this stage, there has been no indication from the relevant government departments as to their intentions with regards to any reform of health and safety or environmental law. Separately to the Bill, the government has issued a policy paper and a consultation setting out changes to employment law, which are aimed at reducing regulatory burdens on employers after Brexit.
At least now, with the exception of the 600 pieces of legislation, the deadline has been removed from the Bill and we would hope that any proposed changes to health and safety and environmental law will be properly considered. As with the proposed changes to employment law, we would hope that industry will be consulted, to ensure the implications of any changes to health and safety or environmental law are identified and scrutinised.
Parliamentary Scrutiny of Legislative Changes?
The House of Lords had suggested the inclusion of a clause requiring additional parliamentary scrutiny, where government ministers sought to make changes to retained EU law or assimilated law concerning environmental protections. This would have required the government to obtain expert opinion to confirm that any changes to legislation did not reduce the level of environmental protection and to publish a report to this effect. However, on 12 June 2023 this clause was removed by the Commons who said it was unnecessary to maintain environmental protections.
The House of Lords had also suggested amendments to the Bill to allow for more parliamentary scrutiny of changes made to legislation by ministers generally, but again, at their latest sitting the Commons removed this.
EU Case Law
It is worth noting that the Bill abolishes the principle of supremacy of EU law and provides that the UK courts will not be bound by EU case law. This means that even where retained EU legislation is assimilated into UK law, it is possible that the interpretation of the legislation could change.
What will happen next?
We await the Bill receiving Royal Assent in order to see the final position, and will continue to monitor any communications from the government, as well as the approach of the UK courts once the Bill is enacted, to inform you of any potential changes to health and safety and environmental law.
If you have any questions about the Bill and what it could mean for your organisation, please do get in touch.
For more information or advice, please contact a member of our Regulatory Team.
