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Rishi’s road to Realignment: removing the sunset clause

the sunset clause
Written by FreddeFossard

The government has made a pre-emptive concession and has amended the Retained EU Law Bill to remove its fundamental policy, a sunset clause on all remaining EU law for the end of 2023.

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As things stand, it seems that over three-quarters of EU laws will remain in force forever, in direct contradiction to the original intentions of the bill, as developed by Jacob Rees-Mogg and Lord Frost. This is the first sign that the Windsor Framework is trapping the UK into the EU’s regulatory orbit, as many predicted.

How the sunset worked

The sunset clause was the essential component of the bill to drive reform. It allowed thousands of obsolete and pointless EU laws to fall away, many of which were so out of use and irrelevant that they were unearthed in the National Archives.

The sunset clause meant that all Retained EU Laws on our books would expire at the end of 2023 and fall away, ending once and for all the huge regulatory burdens created by the EU.

The intention behind this was to use the default option of letting unimportant laws to sunset, to allow departments and ministers to focus on ambitious reforms. Sadly, this has not happened.

It even had significant mitigations to allow for some exceptions:

  • First, no EU laws which were introduced via primary legislation, i.e. an Act of Parliament (like GDPR in the Data Protection Act 2018, for example) would be removed by this mechanism, as Jacob Rees-Mogg, who developed the policy, felt it constitutionally improper to remove huge pieces of legislation in this way.
  • Second, the Bill included a power to extend the sunset for specific pieces of legislation, for up to three years, if ministers wished to conduct long-term reforms to these and did not want to risk removing the regulation outright before this time.

The plan was to use this sunset as the inevitable motivating deadline for a programme of reform throughout Whitehall, led by the Cabinet Office, which would rapidly overhaul our statute book and remove thousands of pieces of EU law which were obsolete, damaging, and/or against British interests, with comparative ease.

Without doubt, this would have been a significant administrative and political task, which required all ministers to drive their departments to deliver these reforms. This was originally planned by Boris Johnson and then Liz Truss.

Its replacement

The sunset is now likely to be removed and replaced with a list in the Bill, known as a “schedule”, of all the EU laws that the government has decided to repeal, but leaving the remaining EU laws in effect by default, as the vast majority of EU laws will be assimilated automatically instead of removed.

  • The regulations included in the schedule are almost all minor and administrative, or obsolete entirely, with the exception of the Ports Services Regulation, which the UK has long wanted to repeal.
  • They are made up of countless EU laws which became obsolete the moment we left the EU, like the EU’s recognition of the qualifications of different countries’ seafarers, or export levies on olive oil, which the UK neither creates nor exports.
  • The point of the sunset was to allow these to fall away by default, so the Government could focus on fast-paced reforms to important laws.

This is a reversal of the process. Instead, the government is legislating to repeal these with the Bill, and then de facto leaving all other pieces of REUL – some 3,000 regulations – in force in perpetuity.

Why the sunset was important

The great value of the sunset clause was that it provided a firm deadline which the civil service would have to meet. Anyone with experience of the way Whitehall operates will know that deadlines are one of the most effective ways for ministers to see effective results in their departments. The tendency towards drift, distraction, and focusing on daily fire-fighting means long-term reform is almost always neglected.

Ultimately, without a hard deadline before the general election, it was highly likely that the Whitehall machine would attempt to delay, and refuse to work effectively without clear and firm direction from ministers.

  • When an original sunset of 2026 was chosen in mid-2022, many departments claimed that this was far too early, and demanded it be moved back to 2028 or even 2030.
  • Liz Truss made the radical decision to push this to 2023, believing that if there was not a deadline significantly before the general election, very little reform would actually happen.

Under pressure, and with clear direction from a Prime Minister, the Whitehall machine can work quickly and under pressure. The way in which decisions were made during the Covid-19 pandemic and in the 2020 Transition Period before our departure from the EU are testament to this.

However, ministers were frequently advised by their departments that the 2023 deadline was impossible, and few of them questioned the advice they were given, or gave strong enough instructions to complete reforms, indeed many Conservative Ministers are not in favour of lifting regulatory burdens or diverging from the EU.

What happened?

The original sunset was used by some ministers and civil servants who did not support the policy as a reason to attempt to normalise – i.e. preserve in law forever – all Retained EU Law under their responsibility, supposedly because it was impossible to do serious reform in time, or because a radical approach to a sunset might leave dangerous “legal gaps” in the statute book.

Regarding so-called legal gaps, this idea does not stand up to scrutiny. Each department completed a thorough questionnaire designed by the Brexit Opportunities Unit to assess the strengths and weaknesses of each piece of REUL on their books, and it is unlikely that any consequential regulations would have vanished with no replacement.

Ministers could have tasked policy officials to come up with reforms to existing regulations to take advantage of divergence, while allowing obsolete laws to fall away. These could have included reforms to:

  • Intellectual property, where the UK could gain a serious competitive advantage over the EU, by strengthening pharmaceutical IP rights while the EU is making them weaker, to attract more investment into the life sciences sector in the UK; or by reforming copying laws to ensure the new wave of Artificial Intelligence (AI) models can thrive in the UK.
  • Clinical trials through the repeal of the Medicines for Human Use (Clinical Trials) Regulations 2004, while keeping in line with international obligations, to develop a competitive clinical trials regime which will reduce the cost of recruiting patients to trials and bringing new drugs to market.
  • Labour regulations, like the working time directive and European Court Judgements on medical working hours, which causes a serious drag on the training of new doctors, and even considers time spent asleep while on call as working time in law, harming NHS and public sector productivity.
  • The EU’s Habitats Regulations, to reduce the cost and burdens of the impact assessments which make building new roads, bridges, and houses increasingly difficult and expensive.
  • Product regulations and eco-design labels, to allow British consumers greater access to consumer goods without the EU’s restrictions of power usage, which was a long-term piece of EU protectionism, driven by German and Italian white-goods manufacturers.
  • The EU’s anti-industry Emissions Trading Scheme (ETS) which imposes huge costs on the British steel industry and which has been gold-plated by the British government, helping create for the UK the highest industrial energy costs in the world, according to the International Energy Agency.
  • Food regulations, by repealing the EU’s Novel Foods Directive to end the use the precautionary principle when approving novel foods already consumed elsewhere in the world to allow the flourishing of the cultivated meat sector before businesses and investors leave the UK.
  • Weights and measures regulations, to allow for greater innovation into the packaging and sale of wine, and for traders to sell in imperial measurements if they so wish.
  • Regulations which damage British auction houses, like Artists Resale Rights – also known as droit de suite – which took away London’s competitive edge in the art market.

Furthermore, allowing the Devolved Administrations to remove specific REUL repeals from the schedule makes it even more likely that the pro-EU local governments in Scotland and Wales will try and stick as closely with EU standards as possible, in the hope of future realignment.

What next?

The Government has made this concession preemptively in the House of Lords, to try and avoid a defeat on the sunset clause next week. They think that this will allow the Bill to become law more easily.

This is potentially very dangerous, as it likely emboldens the opposition who will be able to capitalise on this early retreat and focus on other parts of the Bill that they might not like, such as the end to supremacy of EU law, or the deregulatory powers. The Labour leader has announced his intention to renegotiate the UK’s trade agreement with the EU, bringing us into closer alignment with Europe. The government’s concession on REUL makes this even more likely.

It looks likely that the government will attempt to complete the Bill’s passage in the Lords in the week commencing Monday 22nd May, and begin ping-pong with the Commons soon after. If MPs and Peers are unable to restore the sunset, it is essential that other means are found to ensure pressure remains on the government to deliver significant REUL reform before the next general election. So far, an amendment tabled by Baroness Noakes, supported by Lord Frost, offers one such way of committing the government to delivering more reform, but it remains to be seen if it will be sufficiently robust.

The Windsor Framework

Since the government and the EU signed the Windsor Framework, the ERG has warned that the rules surrounding the “Green Lane” will lock the rest of the UK into shadow-alignment with the EU forever, in order to maintain trade-flows between GB and NI.

Many believe that this means that anything that could threaten the EU’s single market would lead to the EU killing the agreement altogether. This potentially rules out any regulatory reforms to product or food regulations, as the EU has refused to agree to a Mutual Recognition Agreement (MRA) with the UK on standards.

This REUL Bill U-turn indicates that the Windsor Framework is already harming the United Kingdom’s ability to diverge from EU law, and therefore to restore economic growth. The Windsor Framework has failed to restore power-sharing in Northern Ireland, and it appears now to be ending serious regulatory reform in the UK, with the REUL Bill its latest casualty.

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