Back in 2016, when the world of Brexit was yet young, Grant Shapps proposed to add a sunset clause to what was then called, with some little irony, the Great Repeal Bill:
“His plan would give ministers five years to decide which laws they wanted to keep and draw up appropriate legislation. Mr Shapps said he was concerned that Mrs May’s bill would in reality be the “Great Continuity Bill” because it would draft all of the EU’s measures into British law.”
As we noted at the time, Shapps was quite correct; the May Government’s proposals did mean simply rolling European legislation into domestic law, with no guarantee that any of it would ever be reviewed and, perhaps, repealed.
Including a sunset clause (an under-utilised device in British legislating) would put “the forces of inertia on the side of repeal… We’d have to focus on identifying and keeping the laws we really like, rather than just hunting down a few of the most irritating.”
However, we wondered whether or not the five-year expiration date Shapps proposed to put on what we would now call retained EU law was practicable:
“Leaving the EU is going to be a formidably complex business. The Government has a limited bandwidth and Brexit is almost certainly going to completely dominate this Parliament, notwithstanding the Prime Minister’s determination to carve out a domestic agenda.”
“Five years is not enough time for Parliament to sift through the great mass of European legislation and take a considered approach to what we keep, not with everything else it has to deal with.”
Instead, we suggested that the Government should negotiate with Shapps and his supporters to extend the sunset clause to ten years.
This was not just because the process of sifting through all the legislation would be difficult on a technical level – although this thread is a useful primer on how complex it would be – but also to ensure proper political oversight of the process, given that Whitehall attitudes towards EU law and regulation in general were unlikely to line up with that of the Brexiteers.
Shapps indicated he was prepared to negotiate on the timing. But Theresa May did not take him up on it. (In a twist of fate, it was when he was in large of the current legislation that reports of the need for a more “sensible” approach to the sunset clause first appeared.)
In the end, the Retained EU Law (REUL) Bill was only tabled in September. With a wary eye on the polls, it traded Shapps’ difficult timetable for an impossible one, as I argued at the time:
“Even if that weren’t the case, the legislation sets such an absurdly tight deadline for reviewing thousands of regulations – the end of 2023 – that it would almost certainly end up being a rubber-stamping exercise”.
Kemi Badenoch has reached the same conclusion; the REUL Bill will now scrap only about 600 laws by the end of this year, rather than the 4,000 which had been promised. “You campaign in poetry, but govern in prose”, she explained to TalkTV.
Responding to critics who claim she has had “rings run round her by Remain officials”, the Secretary of State was scathing, telling TalkTV that: “I asked MPs who had been in that meeting what they wanted to remove, and they couldn’t say anything.”
EXCLUSIVE: Trade Secretary Kemi Badenoch hits back hard against Tory MP critics over EU laws row.— TalkTV (@TalkTV) May 11, 2023
"There are a lot of people who talk but can't do... there are many across Parliament who make noise... I need to do the thinking and the doing."
In full on First Edition at 10pm.
Critics of the decision argue that the timetable would be practicable if the Government had sufficient will. They also highlight the dangers of delay: writing on this site Fred de Fossard, a former special adviser to Jacob Rees-Mogg, argued that there was “a clear political imperative” to get EU law off the statute book before the issue dominated a general election.
Rishi Sunak clearly doesn’t intend it to overshadow the election anyway. As with the Windsor Framework, another far from perfect arrangement, his objective seems to be to avoid running battles over Brexit.
(And if carrying the can for a u-turn on retained EU law puts a potential leadership contender and locus for discontent in a difficult spot, well. That’s politics.)
In truth, the real political imperative for the Brexiteers is trying to lock things in before Labour return to office. The more EU law remains on the statute book, and the more our wider relationship with Brussels is unresolved, the greater is the scope for Sir Keir Starmer to take the UK into higher alignment.
That’s why, in terms of Brexit, 2024 was always going to be a crucial election. If the Conservatives win, Labour won’t take office until about 2029. By that point, our new relationship will be more or less settled, the rows over departure ancient history, and Labour led by a new generation focused on other things.
Given what current polling says about the likelihood of such a victory, the scramble to try and get everything done by the end of this year is understandable. And De Fossard and others are not wrong that the Government’s soft-pedalling on retained EU law risks being a missed opportunity.
But if they’re honest with themselves, they should concede that the real culprit for missing that opportunity was the Johnson Government.
Had scrapping European legislation been a top priority, there were years in which Boris Johnson could have tasked his ministers with undertaking it, whilst there was yet time to do the job passably well. Yet we had to wait until Liz Truss’s ill-fated premiership for the REUL Bill.
Yes, in theory the Government could simply tear all European directives out of the statute book and hope for the best. But the political risk of that – not just to the Government, but to Brexit – is higher than perhaps some advocates of that approach realise.
Whilst we would be well rid of much Brussels red tape, even outside the EU we would surely have legislated in the areas we outsourced to Europe, and some of that legislation would have been important.
Any high-profile negative stories resulting from repealing some or other worthwhile bit of legislation in the general scramble would have played into the caricature of Brexit as an unworkable, libertarian project. Starmer would have been delighted.
So pour one out, then, for the REUL Bill. Badenoch’s decision – and she insists it was hers – does probably mean that we will end up keeping much more European legislation than we might have.
But even her staunchest critics should accept that she is only arguing that it is impossible to do properly in one year a job which Johnson did not attempt in three.