Why the Retained EU Law Bill is so controversial for construction

The most prominent of these is of course the Building Safety Act, with more new regulations coming before the Summer parliamentary recess and milestones set to test the reaction times of industry for the next year and beyond, sometimes with what seems like barely a heads-up.

In the last few months, we’ve also had to address new policy on the National Planning Policy Framework and Infrastructure Levy, not to mention new proposals and consultations on Embodied Carbon, Biodiversity Net Gain, sustainable drainage systems (SuDS) and plenty, plenty more besides.

A particularly controversial topic has been the Retained EU Law (Revocation and Reform) Bill through which government had tried to set a sunset date for all retained EU law to be automatically revoked on 31 December 2023.

What is the controversy about?

The media attention with this Bill has mostly been on the lobby groups seeking to retain the existing environmental protections and workers’ rights embedded in these retained laws. However, this shouldn’t disguise the fact that business has been gravely concerned about the deregulatory impacts of the Bill. These concerns have led high-profile construction industry players to refer to the original plans as “catastrophic” and “a disaster for our industry” with worries raised across the board, not least on issues such as costly and unnecessary divergence from product standards and uncertainty over the replacement of key Health & Safety rules.

You need vision, understanding and dialogue to make good policy. The issue here is that the original plan to scrap thousands of retained EU laws at once was hugely impractical and conceived as something of a stunt policy. Now behind the headlines and Twitter feeds, Conservative ministers are often more pragmatic than they get credit for – with some notable exceptions - but many will feel that Bill sponsor Jacob Rees-Mogg’s previous reckless comments on deregulation and crass remarks in the wake of the Grenfell tragedy showed the measure of the man.

It is worth noting that deregulation can work if it there is an appropriate target to be found and clear benefits to be made. Back in 2011, the Löfstedt report helped move health and safety to a risk-based approach and cut some genuinely unnecessary burdens for low-risk businesses, fostering accountability through intervention fees in higher risk sectors such as construction. The new regime wasn’t perfect by any stretch, but it engaged with industry and simplified a lot of what was there before.

Unfortunately, everything Löfstedt did right is being done wrong here and having seen the tragic cost of unaccountable deregulation measures in the Grenfell tragedy – not to mention the corresponding financial cost to the construction industry of addressing its flaws - it amazes me that there are still those that champion an arbitrary and harmful ‘one in, two out’ approach to legislation.

Now there is some nuance in terms of how the original EU laws covered in the Bill are being interpreted and whether they have a shelf life – some have already gone – but ultimately there was too little time and too little detailed analysis on what we could lose and how it could be adequately replaced in a non-disruptive way. The cross-departmental nature of the list of revoked laws would mean a heavy strain across the civil service in what is a packed legislative calendar, with further interventions potentially needed to deal with the fallout. Construction has already witnessed the cost of regulatory uncertainty with the botched switch from CE Marking to UKCA Marking. Although government has shown that it can act on more reasoned advice from our sector via the migration advisory committee, the UKCA Marking farce gives reason to be sceptical as to how the changes set out in the original bill would be handled.

So where are we now?

After pressure from the Lords and campaign groups, Kemi Badenoch moved in the right direction by shifting away from the chaos of the original Bill, replacing the generalised sunset clause which would cover up to 4000 laws with a defined list of around 600 laws that would be revoked on the original deadline. Consultations on the retained EU Laws are already beginning in earnest.

Good news? Perhaps. But although the Bill has been partially defanged, and the construction industry partially placated, Civil society groups have also picked up that government's intention is still to retain powers for Ministers to be able to amend retained EU law in any way they consider to be appropriate, something that they consider as negating democratic checks and balances. And despite proposals to ensure that there will be no regression in Health & Safety and environmental standards, the new list still includes laws from habitats to architecture to employment to biocidal products which still need scrutiny and feedback on how they can be built on if revoked.

Politics moves pretty fast at times, and the Bill is being discussed at the ‘consideration of amendments’ phase almost as I write, so it won’t be long until we get an idea of the final form that the Act– assuming the Bill gets Royal Assent - may take.