The Retained EU Law (Revocation and Repeal) Bill is a dreadful Bill in both form and content. As to form, the Bill is largely skeleton legislation which sets out no detail on its face but confers powers on ministers to alter existing law by statutory instruments.
The Retained EU Law (Revocation and Repeal) Bill threatens to strip away vital health and safety rights and protections
Such regulations largely evade the scrutiny of Parliament, are not capable of being amended, and, by convention, are rarely voted down (the last to have been so was 44 years ago). The Bill also contains a ‘Henry VIII’ clause giving the minister power to repeal primary Acts of Parliament by statutory instrument.
The House of Lords Committees: Delegated Powers and Regulatory Reform (on which I sit) and Secondary Legislation Scrutiny both delivered excoriating reports on the form of the Bill, pointing out how it violated long established principles which both Committees had reiterated only last year in major reports: Democracy Denied? and Government by Diktat. These titles reflect the Committees’ concern. The Delegated Powers Committee, in its report on the Bill, stated: “We have recommended that, of the six most important provisions containing delegated powers in this Bill, five should be removed from the Bill altogether. The shortcomings of this hyper-skeletal Bill justify our approach.”
The Bill also makes a mockery of the argument advanced for Brexit that it would return legislative power to Parliament. Instead, this Bill overrides Parliament and gives all power to the executive. We fought a civil war over this very issue 500 years ago!
Form apart, there is, of course, enormous controversy over the content of the Bill, promising to rid the statute book of some 3,700 pieces of UK law (so far identified) which owe their origin to the European Union (EU). They span almost every conceivable subject and most have been working satisfactorily for years giving UK citizens protections in respect of the environment, food safety, animal welfare, employment rights and many other subjects.
The Bill, if passed, puts at risk all these rights and protections. At present ministers cannot say which ones are to be saved and which to be scrapped. Indeed, the full list of the relevant laws has not yet been finalised.
As if all this was not remarkable enough, there is an even more extraordinary feature of the Bill. This is the ‘sunset clause’ which facilitates the removal of our rights and protections without any parliamentary scrutiny whatsoever, as the laws will lapse without the introduction of any repealing legislation! Some seemed to have thought that the sunset clause would not apply to health and safety law since some of it was not introduced by regulations made under the European Communities Act 1972, a principal target of the Bill (under Clause 1(4)(a)).
However, the statutory source of these regulations is not the sole defining criterion for identifying them for the sunset chop. There is a second identifying criterion (Clause 1(4)(b)) and that is any and all regulations made to implement EU law, whatever their statutory foundation.
In the field of health and safety at work there are few protections which are purely of UK origin. To give an example, the right to a safe place of work, system of work, safe equipment and competent colleagues is a homegrown common law right (originating in Priestley v Fowler in 1837 and articulated in the case of Wilsons & Clyde Coal v English in 1938).
The Safety Representatives and Safety Committees Regulations were made under our domestic Health and Safety at Work etc. Act 1974. Their provenance was solely the UK; implementing one of the recommendations of the Piper Alpha Disaster Inquiry. However, the Health and Safety (Consultation with Employees) Regulations, which make similar provisions about safety representatives and safety committees where no union is recognised, were introduced to implement EU law.
Those familiar with the law on health and safety at work will appreciate the extent of the scope of the laws in this area introduced to implement EU law. These include the regulations on: management of health and safety, workplace health and safety, work equipment, personal protective equipment (PPE), manual handling, display screen equipment, carcinogens, biological agents, construction, safety signs, pregnant women, drilling, mining, chemical agents, dangerous substances, explosive atmospheres, fishing vessels, ionising radiation, lifts, machinery, biocidal products, major hazards, transport, diving, working time, work at height, temporary and mobile worksites, explosive atmospheres, young persons, physical agents, noise, vibration, offshore installations and many others.
The fact that these regulations were made under the Health and Safety at Work Act rather than the European Communities Act will not therefore save them. All the minister has to do is to sit on his hands and all these vital protections hitherto enjoyed by our 30 million workforce will disappear in a puff of smoke on 31st December this year without any parliamentary scrutiny whatever.
This is already producing uncertainty and will produce chaos, if the ministerial team (and thousands of civil servants have been diverted from their normal jobs to deal with this self-imposed crisis), decides to let them go or simply runs out of time.
Potential breach of international law
If these regulations are swept away it is likely also to constitute a breach of international law since in 2021, the UK entered the Trade and Co-operation Agreement with the EU. Under this Treaty we undertook to maintain existing health and safety (and other international) standards (under Articles 386 to 388) and to implement those standards (under Article 399).
This Bill gives all the appearance of yet another Liz Truss moment for this weary government.
Lord John Hendy KC is a Labour peer and an honorary professor in the Law Faculty of University College London (UCL). Follow him at: @JohnHendyQC
Follow the progress of the Retained EU Law (Revocation and Repeal) Bill:
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