The Retained EU Law (Revocation and Reform) Bill (“the Bill”) has received approval by the House of Commons and is now proceeding through the House of Lords where it has reached Report stage. Any amendments to the Bill will be considered and debated in the House of Lords on 19 April 2023. This is happening amidst questions raised by MPs and various groups who are concerned that rights previously enshrined in EU Law, will be lost. There are also concerns over the uncertainties, particularly for business, that this proposed legislation is bringing with it.
What is the Legislation?
The purpose of the Bill is to enable the Government to revoke or reform EU Law retained following the departure of the UK from Europe at the end of the Brexit transition period on 31 December 2020. It means that retained EU legislation will either be revoked completely or assimilated into existing or new UK legislation. The Bill seeks to impose a “Sunset Provision” for the majority of EU legislation which will be 31 December 2023, as of which date, retained EU Law will cease to have effect.
“The Sunset Provision”
Section 1 of the Bill provides for all “EU-derived subordinate legislation” and all “retained direct EU legislation” to be revoked at the end of 2023 although ministers are able to extend this deadline until June 2026 for legislation they specify. This will probably include any EU Regulations brought onto the statute's books at the conclusion of the transition period and includes UK GDPR (the General Data Protection Regulation), for example.
Particular legislation that may be lost and that will no doubt cause concern for businesses will include Company Law, Environmental Law, Product Standards and Food Safety Law along with Health and Safety legislation. Many groups and businesses are concerned that there will be a lacuna in the legislative framework, creating uncertainty as to how businesses can operate and ensure safety and environmental standards.
Impact
The Government’s intention is that each relevant department will reflect on the laws to be repealed and consider bringing in new UK-based laws to replace them. However, although estimates vary, there are approximately 4,000 pieces of legislation on the database that would need to be considered in this process. Concerns have been raised about the amount of retained EU law to be reviewed before the sunset deadline and whether some laws may end up being revoked inadvertently.
MPs and others have also expressed concerns about the impact of large-scale and rapid changes to the statute book as a consequence of the bill and have highlighted a lack of clarity about what retained EU law the government intends to keep, particularly in the areas of employment, environmental and consumer protections. There remains the risk that there will be a substantial gap in the legislative framework moving forward which will cause confusion and uncertainty for businesses.
Whilst various groups and MPs have suggested extending the “Sunset Provision” to 2026 to ensure that all retained EU law has been appropriately considered and assimilated, an amendment tabled to effect was object to in the House of Commons and the Bill with its current end date of 31 December 2023, is now being reviewed in the House of Lords.
What does it mean for health and safety law?
Health and safety is the fifth biggest policy area affected, with almost 60 pieces of legislation to be reviewed, most of which fall under the remit of the Department for Work and Pensions (DWP).
The legislation affected includes key health and safety legislation such as:
- Construction (Design and Management) Regulations 2015 (“CDM Regulations”)
- Lifting Operations and Lifting Equipment Regulations 1998
- Management of Health and Safety at Work Regulations 1999
- Provision and Use of Work Equipment Regulations 1998
- Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013
- Work at Height Regulations 2005
The Health and Safety at Work etc. Act 1974 (HSWA) is unaffected because it is domestic rather than EU law, so whatever happens to the regulations, organisations will still need to comply with their duties to ensure the health, safety and wellbeing of employees and non-employees as far as reasonably practicable.
At this stage, it is unclear what the DWP’s approach will be. Repeal or large scale amendment of health and safety regulations sitting under the HSWA would lead to uncertainty for organisations, as the regulations are in many cases more prescriptive than the HSWA. For example, any changes to the CDM Regulations, particularly if implemented quickly, could cause difficulties on large projects which have been planned and run over a number of years in line with the structure of duties set out in the Regulations.
Changes to health and safety legislation are, in the short term, likely to increase the burden on organisations as it would require them to review their systems of work, policies and processes to ensure they are in line with the latest legislative position.
Given the financial challenges currently faced by many organisations, any de-regulation may be seen as a reason to cut spending on health and safety. However, organisations should tread carefully as they will still be subject to the overarching HSWA duties and an increase in accidents could be met by enforcement action.
The British Safety Council, the Royal Society for the Prevention of Accidents and the Institution of Occupational Safety and Health have expressed serious concerns about the Bill and urged the government to rethink its approach, arguing that there is a need for more time and an evidence-based approach to consideration of each piece of legislation.
What does it mean for environmental law?
Environmental charities ClientEarth, WWF (World Wide Fund for Nature), and RSPB (Royal Society for the Protection of Birds) have estimated that the Bill will affect 1,800 pieces of environmental legislation. This includes legislation relating to conservation and the regulation of air quality, waste, water quality and chemicals. Much of the key legislation falls to the Department for Environment, Food & Rural Affairs (Defra) to consider. ClientEarth argue that the threat to environmental protections cannot be overstated and that if passed, the legislation "would fundamentally undermine how democracy functions in the UK" given the power it hands to ministers.
In the House of Lords, amendments have been suggested to temper the effect of the Bill on environmental legislation and to try to ensure that environmental protections are not reduced. We await to see whether these changes will be adopted.
Comment
This approach to legislative review is unprecedented and the possibility of wide scale change will be concerning for organisations. Any major changes to the legislative landscape will require organisations to review the way they manage health and safety and their environmental impact.
If the Bill is passed, it is hoped that in order to avoid judicial review, ministers will consult with industry on any changes to legislation. However, it is unclear if government departments will feel the need to consult if the legislation is to be revoked wholesale under the sunset provision.
What will happen next?
There may be changes made as the Bill makes its way through the House of Lords and we will provide an update following the 19 April debate, which will include further guidance to businesses on the potential impact of these changes.
We can advise on how the Bill may specifically affect your organisation, so please get in touch with our specialist lawyers who will be able to assist.
If you wish to discuss this further, please feel free to get in contact with our Regulatory Team at DAC Beachcroft Claims Limited.
