Brexit Wildfire by Marcia Hyde

BREXIT WILDFIRE

The Retained EU Law (Revocation and Reform) Bill

Potential impact on animal welfare and wildlife

The Retained EU law (Revocation and Reform) Bill (‘the Bill’) is currently in Committee Stage after the Second Reading in the House of Commons in October. The concerns about the potential impact of the Bill were it to be enacted are growing on a daily basis from all sectors of society. On 23 November 2022, the Financial Times reported that a usually disparate alliance made up of business groups, legal professionals, Trade Unions and environmentalists had written to the Business Secretary expressing concerns that the Bill may lead to the loss of a swathe of legislation seen to benefit and protect all sectors of society. This is because of the growing recognition and concern that the Government will simply not be able to execute effectively implement the Bill because of the sheer scale of the task. This has resulted in fears that many of the protections that individuals currently enjoy will be lost in confused haste. This is also a real concern across all animal welfare, wildlife and environmental groups concerned about the protections for animal welfare, wildlife and the environment.

What does it do?

The Bill makes provision to revoke, amend or assimilate all of the European Law which was retained in English law following the end of the transition period (31 December 2020) under the European Union (Withdrawal) Act 2018. The retention of this law (known as ‘REUL’) was always seen as a temporary measure to avoid legal uncertainty and business uncertainty post Brexit. Under the ‘sunset’ clause of the Bill any REUL not expressly preserved and assimilated into UK domestic law will automatically expire on 31 December 2023 unless extended by ministerial exception. Any ministerial extension cannot go beyond 23 June 2026.

The Bill aims to reassert the supremacy of UK domestic law over European legislation. Consequently the general principles of EU law, and directly effective EU rights will also end on 31st December 2023. Currently, REUL legislation takes priority over domestic UK legislation passed prior to the end of the transition period. The Bill reverses this order of priority and reinstates domestic law as supreme. Where it is necessary to preserve the current hierarchy between domestic and EU legislation in specific circumstances, the Bill provides a power to amend the new order of priority to retain particular legislative effects. On 31st December 2023, any retained EU law that is expressly preserved will become “assimilated law” so that EU interpretive features, for example ‘proportionality’, no longer apply.

The Bill creates wide powers to amend REUL by statutory instrument rather than repeal. This means less Parliamentary scrutiny. The Bill also provides for domestic courts to have greater discretion to depart from retained case law. It will also provide new court procedures and for devolved law officers to refer or intervene in cases.

Which laws?

The Government isn’t sure yet.

The retained EU law dashboard, is a published catalogue of over 2,400 pieces of REUL across 300 policy areas and 21 sectors of the economy. It was published by the Government on the 22nd of June 2022 and last updated in September 2022. It is designed to list all of the REUL which were to be placed on the Government’s ‘Brexit Bonfire’ of European red tape. It is made public so we can all check to ensure that Brexit is “getting done.”

The current dashboard shows 470 pieces of REUL for which the Department for Environment, Food and Rural Affairs (DEFRA) is responsible. However, DEFRA itself has privately indicated it is more likely that over 835 pieces of legislation are involved.

In the UK currently there are 44 pieces of animal welfare legislation. The evidence taken at the committee stage indicates sixteen of these are not on the dashboard. Not on the dashboard is the Conservation of Habitats and Species Regulations 2017. These Regulations do what they say on the tin.

It is plainly a huge task to scrutinise so much legislation in such a short period of time and the growing recognition of this leads many to be concerned that laws designed to protect the environment, animal welfare and wildlife will simply disappear without replacement on 31 December 2023.

Impact generally?

The Government doesn’t know yet.

The Impact Assessment relating to the Retained EU Law (Revocation and Reform) Bill dated 26 September and published on 22 November 2002 states:

“The main impact of the Bill will not occur until departments make use of the powers contained within to amend, assimilate and sunset REUL. As departments are currently undertaking a process of establishing how they will reform their REUL - and have largely not yet made firm decisions on what REUL will be changed - it is not possible to form an expectation of what these changes will be for the purposes of this impact assessment. However, going forward following passage of the Bill, as departments assess their stock of REUL and decide whether to amend, restate as domestic law, preserve as “assimilated law” or sunset it, it is expected that departments will carry out proportionate cost benefit analysis on all substantive changes to REUL. In line with Better Regulation Framework, IAs may be required wherever there are material policy changes brought about through legislation. We are also exploring a range of approaches for handling sunset REUL, which may include a summary IA.”

In their report of 18 November 2022 this Impact Assessment was found to be ‘not fit for purpose’ by the Government’s own Regulatory and Policy Committee.

Impact on Animal Welfare and Wildlife

The policy behind the Bill is designed to promote investment and growth defined in terms of the economics of business by revoking or amending and assimilating legislation which is seen as ‘red tape’ which ‘holds back’ businesses and economic growth. The Bill is concerned with ‘regulatory costs’ only in terms of the costs of regulation to businesses. The aim of the Bill is deregulation to promote growth, not to make improvement in laws. This is made clear in Clause 15 of the Bill for example, which allows for authorities when revoking or replacing REUL to make provisions by way of regulations to achieve the same or similar objectives which had been behind the revoked legislation, but specifies at:

“(15)(5) No provision may be made by a relevant national authority under this section in relation to a particular subject area unless the relevant national authority considers that the overall effect of the changes made by it under this section (including changes made previously) in relation to that subject area does not increase the regulatory burden” and;

“(15)(10) In this section—

            “burden” includes (among other things)—

(a) a financial cost;

(b) an administrative inconvenience;

(c) an obstacle to trade or innovation;

(d) an obstacle to efficiency, productivity or profitability;

(e) a sanction (criminal or otherwise) which affects the carrying on of any lawful activity;.”

The tension between this clause, (which is wide-ranging in its definition of ‘burden’ and yet also very narrow because the criteria include only matters of costs and profitability), and that of statements by DEFRA Ministers who claim their intention in reviewing the legislation is to improve environmental outcomes, is plain and obvious. There is no provision in the Bill which provides specifically for measures which will protect animal welfare or wildlife from the impact of the ‘Brexit Bonfire.’

How does any of this sit with the recently enacted Animal Sentience Act 2022? Under this Act the Secretary of State must set up and maintain an Animal Welfare Committee which is enabled to report on any government policy which may have an adverse impact on animal welfare in order for the government to have ‘due regard’ to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings. The clear policies behind the Animal Sentience Act 2022 were a commitment to raising animal welfare standards and to ensuring that animals do not lose any recognitions or protections post Brexit. The Act was designed  to ensure that animal sentience is explicitly recognised in domestic law post Brexit and to enhance scrutiny of major policy decisions taken by UK Ministers which impact on the welfare of sentient animals.

Unfortunately the Animal Sentience Act 2022 has not yet come into force – the various Secretaries of State since 22 April 2022 not yet having made Regulations to trigger commencement. It appears the winds of political change are stoking a Brexit wildfire of animal and wildlife legal protections.

Update on the passage of the Bill

The report dated 22 November 2022 from the first four sittings of the House of Commons Committee Stage of the 2nd reading of the Bill includes the evidence taken from Ruth Chambers Senior Fellow, Green Alliance; Dr Richard Benwell, CEO Wildlife & Countryside Link; David Bowles, Head of Public Affairs and Campaigns, RSPCA, and Phoebe Clay, Co-director Unchecked UK. These groups are umbrella groups for many more animal and wildlife charities and environmental groups – including for example the RSPB. Following this evidence (and that of others), an amendment to the Bill which would have excluded from the sunset clause, (thereby giving more time for scrutiny), a wide range of REUL which currently provides for significant environmental and animal welfare protection was put to a vote. It was heavily defeated. The legislation which had been included in the amendment was inter alia:

 (a) The REACH Regulation and the REACH Enforcement Regulations 2008, (which regulate and control the use of over 200 chemicals in order to protect human health and the environment);

(b) The Conservation of Habitats and Species Regulations 2017,

(c) The Conservation of Offshore Marine Habitats and Species Regulations 2017,

(d) The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010,

(e) The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (also known as the Farming Rules for Water),

(f) The Marine Strategy Regulations 2010,

(g) The Marine Works (Environmental Impact Assessment) Regulations 2007,

(h) The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017,

(i) The Plant Protection Products Regulations 1107/2009,

(j) Invasive Alien Species (Enforcement and Permitting) Order (2019),

(k) Directive 2010/63 on the protection of animals used for scientific purposes,

(l) Directive 1999/74 laying down minimum standards for the protection of laying hens,

(m) Regulation 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof, and

(n) The Welfare of Animals (Transport) (England) Order 2006.”

Were any of these pieces of legislation to sail into the sunset, there would be a profoundly negative impact on animal welfare. The above legislation represents just 2.98% of the legislation that DEFRA is formally responsible for but only 1.67% of what DEFRA fears it is responsible for. There are 13 months to sunset.

'Brexit Wildfire’ is the first in an occasional series of Articles where Marica Hyde considers the impact of the Retained EU Law (Revocation and Reform Bill) on animal welfare. 

Marcia Hyde

28 November 2022

Marcia Hyde

Call 1992