The Daily Telegraph report that Kemi Badenoch is abandoning plans to review, junk, or retain all 4,000 pieces of retained EU law by the end of the year has drawn the ire of my fellow Brexiteers. The Business Secretary’s suggestion that only a likely 800 would be scrapped by the deadline of this year’s end appears to be a surrender in the face of unwilling civil servants and trade union lobbying.
It “just rubs further salt in the wounds” post-Windsor Framework, one European Research Group (ERG) source told GB News. Badenoch is “a lame minister” who is “having rings run round her by ‘Remainer’ officials” another Conservative MP. And then the coup de grace: Badenoch “is proving to be a huge disappointment”. Has the former Eurosceptic darling betrayed the Brexit cause?
Readers may be surprised to know that I was something of a Badenoch-sceptic. When I saw commentators jumping on her bandwagon during last summer’s leadership election, my natural instinct was to run in the opposite direction. I saw little sense in making someone with no Cabinet experience Prime Minister in the middle of a national crisis just because she was playing some of the Tory right’s favourite tunes.
Yet I have been quietly impressed (and happy proven wrong) by how she has got on with the job so far. Her decision on the Retained EU Law (REUL) Bill should not be seen as Badenoch backsliding but as an attempt to save a piece of legislation that was becoming increasingly unworkable. By stripping back the bill, she hopes to get it Royal Assent as soon as possible, rather than seeing it bogged down in the House of Lords.
A quick reminder of what the Bill is and what it seeks to do. Last summer, Rishi Sunak and Liz Truss tried to out-compete each other will increasingly outlandish promises as to how quickly they would scrap “retained EU Law” – the category of law bestowed by EU Membership and transferred into domestic legislation by Theresa May’s 2018 EU Withdrawal Act.
The original timetable was the end of 2026. Truss promised 2023, and Sunak one-upped her by suggesting “within 100 days” of becoming Prime Minister. Since the former won, 2023 it became – even if the REUL Bill was only actually introduced to the Commons on the day Sunak replaced her as Prime Minister. Badenoch is now the custodian of Jacob Rees-Mogg’s passion project.
The Bill, as originally planned, would revoke almost all EU-derived legislation by the end of 2023 via “sunset provisions”: Cinderella-like, if it was not retained by midnight on December 31st, it would disappear. The legislation would also abolish the principle of the supremacy of EU law, remove the principles of EU law from the UK’s domestic law, and give courts power to diverge from EU case law.
Controversy arose for a variety of reasons. Originally, the Government thought there were 2,400 retained EU laws, until the National Archives found 1,400 down the back of the sofa. Businesses, trade unions, and lobby groups complained they would not know which laws were set to disappear until perilously close to the New Year’s deadline.
Most importantly, the Bill would enable ministers to revoke any secondary retained EU law and “replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same of similar objectives”. In short, it would hand the executive vast powers to change laws without parliamentary scrutiny – exactly the sort of thing we used to moan about Brussels doing.
All this meant the Bill was set for significant opposition in the House of Lords. With a busy legislative timetable and a clock ticking down towards both the December deadline and the next election, this was a delay best avoided for those of us who would like the supremacy of EU law to finally fully end, and the process of deregulation to begin.
As such, it is time to not let the perfect be the enemy of the good – and avoid the melancholy, long, withdrawing roar of the ERG. We are approaching halfway through the year. Badenoch revealed to MPs that civil servants have yet to analyse all the 4,000 pieces of legislation. Even if the Bill could pass the Lords unamended, that raises the question of whether it is practically deliverable.
From what I hear, parts of Whitehall turned an exercise in repealing legislation into one of retaining it. Under the nose of ministers, statutory instruments have been used to ensure as little change occurs as possible. Brexiteer fears of a civil service hostile to their aims are not unfounded, which raises the obvious question of why they would trust them with such an important task.
Eurosceptics also need to be clear as to which regulations they want repealed. The Government has already committed to retaining some of the most important EU-derived laws, including prominent pieces of environmental legislation and working-time directive. Before one blames Sunak for being socialist, I’d point out that scrapping the latter was kiboshed by Truss’s Number 10.
What Badenoch reportedly now intends to do is draw up a list of 800 undesirable EU laws to show to the Lords to grease the Bill’s passage. When asked for further bad laws they would like to see gone, ERG members could reportedly only come up with “product standards” – something Badenoch, as Business Secretary, was not wholly pleased to hear.
One should note that the REUL Bill is not the sum of the Government’s deregulatory efforts. A consultation is being held on data protection laws. On financial services, a consultation was held, and the Government is now proceeding with primary legislation, providing the scrutiny the REUL Bill lacks. You can also track the reform of EU laws via the nifty Retained EU Law dashboard.
Badenoch inherited a REUL Bill that was being undermined by Whitehall, that was loathed by the groups it was supposed to help, and that faced being scuppered by the House of Lords. As one figure involved in the legislation put it me, the midnight deadline had created a “perverse incentive” by forcing civil servants to rush to retain, rather than repeal, rules. To “inject energy”, the whole process needed a “re-think”.
In the two or so months that Badenoch has overseen this Bill, that is exactly what she has done. It may not be the Big Bang that some Brexiteers were hoping for. But it will end the supremacy of EU law and begin the process of deregulation in a way that doesn’t alienate businesses. If this is “betraying Brexit”, then what on Earth isn’t?