Revoking EU laws - a labour of hate

I confess I've always been puzzled about which laws Brexiteers want to get rid of. I used to ask exactly this question at street stalls of people who voted to leave and not once did I get an answer. The government has struggled for six years to identify any specific law, even Jacob Rees Mogg, who was Brexit minister for six months failed to come up with a definitive list and was reduced to asking readers of The Sun for ideas. The main one they came up with was to permit incandescent light bulbs again, although I'm not sure they were ever banned anyway and with energy prices nowadays, who would want that? 

To get around the embarrassment, JRM set up a 'dashboard' of Retained EU law with a request for members of the public to suggest laws that are unnecessary or too burdensome or need reforming in one way or another. The dashboard shows 2,417 laws some of which (196) have been repealed already. These are without exception trivial and technical.

For example, Commission Delegated Regulation (EU) No 666/2014 establishing substantive requirements for a Union inventory system and taking into account changes in the global warming potentials and internationally agreed inventory guidelines - has been repealed. Does it make any difference to the man on the Clapham Omnibus?  No, and there are plenty more like that.

Did anyone vote in 2016 to ditch Commission Implementing Regulation (EU) No 749/2014 on structure, format, submission processes, and review of information reported by Member States?  Probably not.

Rees-Mogg's latest wheeze comes in clause 1(1) of The Retained EU law (revocation and reform) bill which underwent its second reading in the House recently. If it finds its way into law then all 2,417 EU-related laws are at risk.  At the end of 2023 all EU-derived subordinate legislation and retained direct EU legislation (REUL) will automatically be revoked by the use of a so-called ‘sunset’ clause. 

It is the legislative equivalent of upsetting the monopoly board when you're losing badly. Pure vandalism, a scorched-earth policy driven by a desire to make a return to the EU as hard as possible more than anything else. It's a labour of hate.

There are huge fears that the civil service simply does not have the capacity to review each piece of EU legislation, often involving external legal advice and consultation with business groups, to see if ministers want to keep it or not.  It is total insanity.

There are provisions for extending the deadline until the end of 2026 but only if ministers choose to do so.  The other fear is that the bill gives massive power to ministers to replace any of these laws with whatever they like, only provided the new laws don't increase the overall regulatory burden - a somewhat nebulous concept anyway.  

Yesterday, the Commons General Committee heard evidence from lawyers, trade unionists and various interested parties about the bill. You can watch the two proceedings HERE and HERE.

One of the lawyers, Jack Williams, who practices Competition Law at Monckton Chambers, described the sunset clause as akin to setting a train off towards a cliff edge with no brakes. The legal types all thought the bill would result in an increase in litigation as minister's 'Henry VIII' decisions were later challenged in court.

To make matters even worse, the FT is reporting that a further 1,400 additional pieces of legislation have suddenly been uncovered so that instead of 2,400 EU laws to review or repeal, officials may have to trawl through 3,800 in about a year, that's about 15 every working day.

The committee heard from two types of witnesses. Those who thought the tasks set out in the bill were opaque, risky, possibly unworkable and essentially impossible in the time available even if it was extended, and those who thought it was reasonable and doable.

The latter group was basically just one man as far as I could see, Barnabus Reynolds of Shearman & Sterling and Global Head of the Financial Services Industry Group. All the others were urging caution.

George Peretz, KC described the sunset clause as "very undesirable" and like having a "gun pointed to everybody's head saying  'unless you've done all of this analysis within a very restricted time, your rules will fall. It just [creates] endless room for mistakes."

Eleonor Duhs, an ex-government lawyer who designed the concept of Retained EU law, told the committee that it took two and a half years to make changes to EU law for Brexit day - just replacing terms such as EC to Sec of state. She said, "The end of 2023 is simply not a realistic timeframe for this process" of replacing EU law.

Barnabus Reynolds by the way writes for The Telegraph: Our markets must be freed from the stifling remnants of Brussels red tape, sub-titled, Next prime minister should curtail power of regulators and allow the City to thrive. This is just one of many articles and I should say, typical of Mr. Reynolds' journalistic efforts. He is clearly a raving Brexiteer.

The committee was split the same way. Brexiteers David Jones, Marcus Fysh and Nusrat Ghani were all quite supportive and couldn't see any insurmountable problems. All the others couldn't see anything other than insurmountable problems. The SNP was particularly unhappy about devolved powers being returned to Westminster and the fact that the UK government still couldn't say which devolved laws would be impacted. 

David Jones got quite upset at one of the TUC lawyers because they suggested workers' rights were at risk. He asked why they hadn’t "sought assurances" from ministers and he claimed it would be impossible for any government to water down employment laws. The obvious question was: in that case why pass a bill that expressly dumps all EU-related employment rights? 

As for assurances from ministers, they’re worth nothing. They don’t even stick to written manifesto commitments.

David Allen Green, a legal blogger, says six years on from the referendum we still don’t know for sure how many UK laws are based on EU law. That’s because it’s very complicated and nobody ever thought we would need to untangle everything so there is no record.

It is not, he says, simply a question of simply going to a database and using the right search terms – say to find all the regulations made under section 2 of the European Communities Act 1972. Many regulations revoked or amended other regulations –  so that, without considerable time, "you would never know the full extent of the entanglement."

Green thinks it might take a political generation and may never be finished at all. If it's not done by the end of 2024, it means the work of repealing, replacing or amending an unknown number of EU laws would almost certainly have to be done by a Labour government.  What would their attitude be toward the work?  I suspect not as diligent as JRM. We could still be at this in 2050, assuming we haven't given up and rejoined by then.

The whole exercise will be expensive, take years, occupy thousands of civil servants and absorb a lot of political effort and may not even result in a single substantial law being scrapped. 

It is the insanity to which Brexit has led us.