The government has announced a fundamental change to its much-criticised Retained EU Law (Revocation and Reform) Bill.
Retained EU law is the body of law that the UK kept when the Brexit transition period ended on 31 December 2020. The European Union (Withdrawal) Act 2018 had taken a screenshot of this law and uploaded it to the UK’s statute book. That ensured there would be no gaps — and consumers would not lose valuable rights — while ministers decided which EU-derived laws they wanted to keep.
The Retained EU Law (Revocation and Reform) Bill was drafted by Jacob Rees-Mogg while he was Boris Johnson’s Brexit opportunities minister. Rees-Mogg kept responsibility for the bill when he became business secretary under Liz Truss. But hours before the bill had its second reading on 25 October last year, he was consigned to the back benches by the incoming prime minister Rishi Sunak.
Rees-Mogg’s REUL bill — the acronym rhymes with gruel and is pronounced “rule”, not as in “rule of law” but in “rule by ministers” — would have repealed all EU-derived subordinate legislation and all retained direct EU legislation at the end of this year, with the exception of any EU law that ministers or the devolved authorities identified and decided to keep in the meantime. There was also an exception for anything included in primary legislation.
The flaws in that approach should have been obvious. There are now thought to be more than 4,800 such laws, covering 400 unique policy areas. The figure has been growing steadily since officials started looking for them.
Nobody knew which laws would have been revoked on 31 December. Whitehall simply did not have the resources to identify them in time. So far, only 20 per cent have been reformed.
As I wrote in a column for the Law Society Gazette in February,
clause 1 should be amended so that it applies only to REUL that is listed by name. That is precisely what the government is doing in its Financial Services and Markets Bill.
It would be perfectly reasonable for ministers to add more REUL to a schedule after the bill is passed. But it cannot be acceptable for regulations to be revoked without first identifying them and giving parliament a chance to decide whether they are still needed.
Who knows how many more laws will be repealed while they are still hidden down the back of the sofa?
The government has now acknowledged the dangers of uncertainty. It will specify the laws it decides to revoke.
Kemi Badenoch, who became business secretary in February, has inherited the REUL bill and with it the responsibility of putting things right. As far as I can see, the only public announcement of her plans was made in a piece published yesterday afternoon by the Telegraph.
This week, we are publishing a list of the retained EU laws that will be scrapped by the end of 2023. This provides certainty for business in making it clear which regulations will disappear, instead of only what REUL would be saved.
Update: a reader has kindly alerted me to a written statement Badenoch made to parliament yesterday. In it, she said:
Today the government is tabling an amendment for Lords Report, which will replace the current sunset in the bill with a list of the retained EU laws that we intend to revoke under the Bill at the end of 2023. This provides certainty for business by making it clear which regulations will be removed from our statue book, instead of highlighting only the REUL that would be saved.
Badenoch is right: this is what business leaders have been arguing for since Johnson’s government adopted a kamikaze approach to law-making. She — and Rishi Sunak — must now handle the political opprobrium that comes with putting certainty ahead of ideology.
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The Commons speaker Sir Lindsay Hoyle was furious with Badenoch when she was called to assert an urgent question the following day. “I remind the government that we are elected to hear it first, not to hear it in the Telegraph, and a written ministerial statement is certainly not satisfactory for such an important matter, he said.
When Badenoch said she was sorry “the sequencing that we chose was not to your satisfaction”, he hit the roof.
“I am not going to be spoken to by a secretary of state who is absolutely not accepting my ruling,” Hoyle told her. “Take it with good grace and accept it that members should hear it first, not through a written ministerial statement or what you decide.”
This government? Amateurs; ideologues devoid of foresight and vision.