The Conservatives’ decision to scrap proposed legislation to remove 4,000 EU laws from the statute books is still a “reckless” and “irresponsible” project, leading barristers have said.
While the secretary of business, Kemi Badenoch, was accused of “a huge increase”, the lawyers said that the continuation of the sweep of “undemocratic” ministerial powers and the removal of the “translation effect” of EU law will explode decades of legal precedent set by British courts and make for laws like those found in authoritarian states.
“The change in the government’s approach to reducing the number of laws has grabbed the headlines,” said Eleonar Duhs, partner at Bates Wells and one of the lawyers working on maintaining EU law in the Brexit department. “It is welcome, but there is a fence for rights, obligations and powers.
“It was a no-nonsense piece of legislation from the beginning and it’s still a no-nonsense piece of legislation,” he added.
Duhs, who specializes in data laws, previously worked with Dominic Raab to maintain EU law in the wake of Brexit. “We do that to provide reassurance,” he said. “Now all of a sudden they’re throwing that out the window and basic rights are going to be taken away by this law.”
At stake is the concept of “interpretive effect”, something the government calls the “supremacy of EU law”.
The government has announced it will reduce the number of laws it will remove from the statute books but also said it will scrap the rule that sets out how laws are interpreted, effectively removing precedents set by courts and tribunals. up and down the country. for the past 47 years.
“Maybe you know the laws left on the statute books but you don’t know how to interpret them,” said George Peretz KC, an expert on the issue.
He said it would have a wide-ranging impact on consumers, commercial interests and environmental protection, which campaign groups are fighting to save in the face of hard Brexit legislation.
If Badenoch’s version of the retained EU law (REUL) makes it onto the statute books, employees will no longer be guaranteed their right to not be discriminated against because of gender or race, for example, he said.
An unscrupulous employer may simply say “’We’re sorry that’s not how the law is interpreted, because no lawyer can say they know how to interpret the law’. You can hire a lawyer but they just come back with a very expensive and elegant ‘we don’t know how to interpret this,’” added Peretz.
This will mean “starting the clock again” in courts and tribunals up and down the country.
With certainty bypassed, commercial interests can have a free-for-all, rejecting obligations to protect farmland, wildlife, hedgerows and freedom of information rules, experts say.
Airlines, for example, feeling the pinch, may decide to waive current compensation guarantees for delayed or canceled flights. They may argue that the disruption is beyond their control and is therefore covered by force majeure rules, which are currently limited to exceptional events such as terrorism.
“They can argue that the staff illness or industrial action is out of their control and they shouldn’t have to pay compensation,” he said. “When rights are uncertain like the weather it is also bad for business, because what business wants is certainty,” Peretz said.
The two barristers, who gave expert evidence to a parliamentary committee on REUL, also pointed out that the government retains “ministerial sweeping powers” to change, remove or save laws without the usual parliamentary scrutiny.
Nowhere in the current legislation is there any obligation on the government to consult on future reforms, making it difficult for lobby groups to push their points.
“It’s still an undemocratic piece of legislation,” Duhs said. “I’m sure the civilians should have warned Badenoch about this. This is a government problem and they should address it themselves.
“This is an irresponsible law,” he added. “The point about the legislation is that it is supposed to achieve a policy objective and make life easier. All it does is add complexity to lawyers.”