Real Estate Development Yule Blog - 1 enormous bonfire

In this final post of our 2022 Yule Blog, we contemplate the glow of the 3,800 pieces of EU-derived legislation kept on the UK statute book post-Brexit (retained EU law) to be torched under the EU Retained Law (Revocation and Reform) Bill, otherwise known as the "Brexit Freedoms Bill". This could include most current environmental legislation but also health and safety regulations and employee protections, amongst other things. The potential ramifications if mishandled are enormous.

What is the aim of the Bill?

The Bill seeks "to end the special status" of all retained EU law by 31 December 2023. The government wants to remove "around £1 billion of red tape" and restore UK domestic law as the "highest form of law on the UK’s statute book". To achieve that, all EU retained law will be amended, repealed or replaced. For more information on the Bill, see our Corporate Notes blog here.

This was surely a key point of Brexit, so what sort of response has the Bill received so far?

Feedback during Committee Stage

At Committee Stage, the 98 responses from interested parties to the Committee's call for written evidence expressed some support - for example for the opportunity to streamline and "tailor legislation to better suit GB" (Energy UK) – but also significant concerns.

The Bar Council voiced "profound concerns" and stated that it would prefer the Bill was withdrawn:

"The setting of an arbitrary, and … impractical sunset date, with the consequent and entirely unnecessary risk of the disappearance of rules of critical importance to business, consumers, employees and the environment (some of which, due to their sheer numbers, may only be missed once lost) without adequate consideration or any consultation, and conferring an entirely unfettered and unscrutinised discretion to Ministers to disapply or delay the sunset provision or not; as well as the attendant risk of rushed replacement legislation …"

The Law Society of England and Wales recommended extending the "sunset" deadline to the end of 2026 and requested a "Definitive List" of all instruments to be revoked by the Bill (1,400 pieces of EU legislation were "discovered" on top of the 2,400 pieces originally estimated to be in the cross-hairs).

The Planning & Environment Bar Association (PEBA) were concerned about:

• The lack of any duty on the government to act to "save" or replace any retained EU law or consider whether that would be appropriate. So for example laws might meet their doom purely because time runs out on New Year's Eve 2023 without them having been processed.
• The lack of transitional arrangements to ensure that all plans and projects subject to environmental, strategic environmental or habitats regulations assessments, etc, prior to the date that the Bill comes into force continue to be regulated by retained EU law as it applied immediately prior to that date.
• PEBA also called for clause 15(5) of the Bill to be removed or revised, calling it a "strait-jacket". That provision requires that any retained EU Law that is revised or replaced with domestic legislation as part of the review must "not increase the regulatory burden".
• Finally, PEBA voiced concern about the interaction of the Bill with both section 20 of the Environment Act 2021 and with the Levelling Up and Regeneration Bill currently going through Parliament, in each case because the Bill could side-step existing levels of environmental protection.

Last but not least, the UK Environmental Law Association (UKELA) feared that Parliament would not have time to consider retained EU legislation in the "thorough manner" expected when the European Union (Withdrawal) Act 2018 was passed. It also flagged that the Bill strips away the ability to use the interpretive provisions of EU law when seeking to interpret the meaning of the legislation.

A common theme amongst all of these bodies' responses was that the Bill runs contrary to the interests of legal certainty.

What next?

The Committee Stage is now closed and the Public Bill Committee has published its amendments. It seems that, to date, concerns raised by the organisations above have gone largely unheeded.

We now await the House of Commons Report Stage, where the Bill will again be considered and further amendments can be made. No date for this has yet been set. If the Bill proceeds as currently drafted, then fleet and focussed attention will be needed from all to assess the full raft of implications.

HSF Real Estate Development Yule Blog

We hope that you have enjoyed this festive offering. Subscribe here to Real Estate Development Notes for more from us throughout 2023. We wish you happiness over the festive season and hope that the year ahead brings you peace and prosperity.

Links to the previous posts in our 2022 Yule Blog are below.

• 2 regimes to remember
• 3 construction gateways
• 4 failed deadlines
• 5 housing ministers
• 6 years for silence
• 7 storeys high…
• 8 jolly judgments?
• 9 keys to MEES
• 10 percent more
• 11 metre buildings
• 12 points to ponder 

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