In May 2022, the government announced a so-called ‘Brexit freedoms’ bill, now known as the retained EU law (revocation and reform) bill, or REUL bill for short. Since the murmurings of a bill like this began, it has been a priority concern for the environment sector as it became increasingly apparent that hard fought laws protecting the environment, often UK-backed, were at risk of being lost simply because they originated from the EU. The next stage of the bill’s passage through parliament is expected in May after the local elections.
The bill requires ministers to decide whether to retain, amend, revoke or replace all EU-derived laws before December 2023. After this any remaining laws will automatically be dropped from the UK statute book unless a minister chooses to extend that deadline to 2026 (an option not available to devolved authorities). The number and extent of regulations covered by the bill is vast. The Department for Environment, Food and Rural Affairs (Defra) has by far the largest number of regulations of any Whitehall department. It has over 1,700 pieces of REUL in its remit owing to the fact that most UK environmental law was set at EU level when the UK was a member state.
Environmental standards at risk
Laws at risk under this bill include those that protect rivers from pollution, such as the water framework directive which ensures that impacts on water quality are considered by authorities granting certain licenses and permits. The habitats directive legislates for the protection of habitats and species. The nitrates directive requires farmers to take steps to prevent nitrate pollution. There are also regulations that keep the levels of toxins, metals and chemicals in food below a certain level and ensure animals bred for food are not treated with hormones or prohibited substances.
Managing such a large REUL programme will be a huge distraction for a department already struggling to deliver major government policies, with important measures such as a deposit return scheme for plastic bottles, and action on global deforestation seriously delayed.
Environmental law is further antagonised by this bill because it is a devolved competency, which means that each of the UK’s four nations designs and implements the majority of their environmental legislation. It is impossible to predict how the amendment of longstanding UK laws across four different nations will unfold, but one thing is clear: considerable uncertainty will ensue.
Of course, there are areas where EU-derived environmental law could be improved. In some cases, the UK government already has the power to do this, for example the Environment Act 2021 allows it to make changes to the REACH chemicals regulation. Good law making depends on expert input and effective scrutiny, but the bill offers none of this. It should be dropped and needs major amendment if it is to continue.
Lack of accountability
Another major concern is the sweeping powers that the bill will give UK ministers to change laws at will. This creates an enormous void in accountability, and such commitments as “reforms will not come at the expense of our already high standards” (Kemi Badenoch MP, 23 March 2023) and “we will be maintaining and enhancing environmental standards” (Nusrat Ghani MP, 18 January 2023) will depend on goodwill rather than the law.
Ultimately, the bill aims to deregulate rather than protect. Clause 16 will prevent ministers from increasing the regulatory burden, which includes financial cost, administrative inconvenience and profitability. So, it is hard to see how any protections, environmental or otherwise, can be improved with such an explicit constraint on which changes can be made.
On top of being deeply undemocratic, these powers carry enormous policy and legal risks, not least because the full catalogue of ‘at risk’ laws is not complete, meaning neither parliament nor the public know which laws ministers would be empowered to, essentially, “do whatever [they] like” (Hansard Society, 22 September 2022) to. There must be a radical rethink.