The government has brought forward the Retained EU Law (Revocation and Reform) Bill, which it calls the Brexit Freedoms Bill in more polemical communications. The intention is that passes into law by Christmas.
The Bill will allow for amending, repealing or replacing most of these retained laws through the quick and easy mechanism of statutory instrument (SI), rather than primary legislation. It will also enable changes to be made by the devolved governments and it will “provide domestic courts with greater discretion to depart from retained case law”.
Gov.uk says the Bill “will enable the UK government to remove years of burdensome EU regulation in favour of a more agile, home-grown regulatory approach that benefits people and businesses across the UK”. But there is nothing to hinder the UK developing new laws at present. It will just be easier to change the retained rules from the EU.
The Bill is championed by new BEIS secretary Jacob Rees-Mogg, who has brought the Brexit Opportunities Unit with him from the Cabinet Office. This unit has developed a Retained EU Law Dashboard of 2,400 pieces of law.
Rees-Mogg invited the public to suggest rules that should be “amended, repealed or replaced” last year – much as he did in an article in The Sun when he became Brexit Opportunities minister. Gov.uk says reforms will ensure the UK’s “high standards in areas such as workers’ rights and the environment are kept, also giving the UK the opportunity to be bolder and go further than the EU in these areas”.
The government says it will consult business groups and others on any proposed regulatory changes, a process is expected to be case-by-case. It is also keen to hear proposals for change, on the basis that regulation can be improved, to some extent, in every sector.
Jack Semple, Secretary of the Engineering & Machinery Alliance (EAMA) of which MTA is a member comments that the main criticism of the Bill is that it will allow the government to make changes with insufficient scrutiny. Rees-Mogg has said that 90% of EU retained law can be scrapped by SI.
Critics are sceptical about the commitments on workers’ rights and the environment. They note that the EU was no block to higher standards in most areas and fear for bio-diversity progress credited to Michael Gove when he was at Defra. High levels of sewage discharge into rivers point to ineffective regulatory enforcement, they say.
The Working Time Directive may well be among the first EU labour laws to be scrapped, along with its equivalent on mobile workers. One wonders how relevant these directives are in the UK, and in much of the EU for that matter. Also targeted may be the requirement to link holiday pay with the employee’s averaged earnings, which comes from a controversial judgement of the European Court of Justice a decade ago.
In machinery and other engineering regulations, there will be a similar debate about whether to keep, amend or remove EU rules. A gradual process of reform seems likely, rather than a rush scrapping EU rules, for which there seems to be little appetite.
The government is likely to want regulations that accelerate the introduction of new technology, faster than the EU. There will likely be a greater appetite for risk – the government does not like the EU’s emphasis on “the precautionary principle”.
The commitment to consultation is welcome. Business needs detailed engagement, not least on proposals for more technical changes – some of which may well come from industry. It is important to define and measure both the costs and benefits of regulations as this is a complex process.
We can also expect a new consultation on product safety regulations in the next few weeks. Around 10% of retained EU law for which BEIS is responsible is product legislation. Issues about UKCA remain to be resolved and it will be interesting to see how Rees-Mogg approaches minimising burdens on business, now that he is the responsible cabinet minister.
Another priority will be the UK’s approach to rapidly-growing internet-based trade, by-passing traditional channels. The UK decided against adopting recent EU checks in this area but there is a clear gap in product safety rules.
The Net Zero review, announced by Liz Truss and due to report by Christmas, will increase focus on how the UK can regulate more productively than the EU, not least in the terms of the specification and use of machinery and equipment. Some sectors are keen on having better (therefore different) regulations from the EU, more focused on sustainability outcomes.
Market surveillance and enforcement will be at least as important as the rules but there is a question mark as to whether ministers have the will to resource regulators sufficiently. The government has been researching what are levels compliance and how much it matters for different products and sectors.
Meanwhile, firms have not been slow to point out that the regulatory burden on trade has increased due to our new relationship with the EU, and new regulations from the UK government, such as UKCA marking.
Rhetoric on reform remains rooted in Brexit polemic. Global Britain would benefit from moving away from defining regulatory reform as being about scrapping retained EU rules and focusing on what works best for the UK economy in a global market – whether or not it derives from the EU.
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