As is increasingly common, government policy was leaked to the Times this week by a ‘senior government source’. The source stated that the government’s plan to remove Retained EU Law (REUL) from the British statute book by the end of the year must now be put off for another four years (meaning ten years after the Brexit vote).
REUL is not all the laws the EU ever made which apply in Britain. Lots of EU law was made by our own parliament becoming our own law. REUL just covers the laws made directly here by the EU, or by our ministers if the EU told them to. Theresa May decided it was too risky and the government too busy to remove all of these laws five years ago. So we kept it all ‘just in case’.
There are now apparently two reasons this REUL cannot be removed by the end of the year: that the House of Lords won’t allow it, and that there is not enough time to review these 4,000 laws.
The first argument is patently silly. The House of Lords can delay legislation, but it can’t stop a determined government and it certainly can’t stop a government from fulfilling one of its manifesto pledges to ‘take back control of our laws’.
The second argument uses a refrain that has become common since the referendum debate started: ‘it’s too hard’. This is why we now need four years to review these laws instead of one. As a professional lawyer this argument is extremely annoying. Can you imagine what would happen to me if I told a client ‘it’s too hard’?
Let’s break it down.
The first thing is to remember is that this is only a review of these laws. A one-year deadline to go through these alleged 4,000 laws and put them into one of three categories – 1) completely worthless 2) Minister might think is important to save 3) we recommend the Minister saves. That’s all there is to it – going through a pile of law and putting on a red/amber/green sticky note.
Any law the minister thinks worth saving would automatically get a three-year extension to 2026 under current plans.
And this isn’t a new job either. The Cabinet Office began it in 2020. That produced an online spreadsheet anyone can see. The government found only 2,500 odd laws. In November the government announced it had found 1,400 more – losing laws you then say are super important hardly instils confidence. The government’s initial review said at least 229 EU laws (nearly 10 per cent of the 2,500) did not need to be reviewed – they’d already been deleted – job done, nobody died.
It’s important to note this task is split between at least 16 government departments. It’s not a war, it’s a pretty bureaucratic review, yet we are told it takes four years at least? The easiest job is for the Cabinet Office, which has five laws to review at present. Can it not take a single year to ruminate on whether the Pensions Regulator should be treated like every other regulator? A truly grave and weighty matter with a cryptic and unknowable outcome (the answer, by the way, is yes).
Once you understand this, you can see why the briefing has given birth to a renewed belief that there is a conspiracy at the heart of government to stop the UK diverging from EU law. Because whether you want the UK to benefit from Brexit (or not), the simple fact is the UK can’t benefit until it stops using EU law and starts using its own.
Just look at the detail. Two of the laws the Department for Education needs an extra three years to review provide a legal framework for UK membership of EU institutions, Cedefop and the European Training Foundation. We left those institutions. Why do you need to preserve the mechanism for re-joining them until after the next election? Does someone think we might re-join them?
Of course, the more likely explanation in any conspiracy theory is incompetence. It is usually ‘cock-up not conspiracy’. Yet that is hardly an edifying conclusion now our Civil Service is no longer a simple conduit for Brussels. We need it to be competent.
And the job is fundamentally simple. The Department for Business Energy and Industrial Strategy has to consider ten laws on Carbon Capture and Storage and decide whether we need to preserve the (optimistic) EU written law in 2009 or write our own. One might think the fact that Carbon Capture and Storage doesn’t actually work might make that an easy morning at the office. And if Civil Servants remain concerned they can always flag it to the minister.
It is easy to see how the idea of a conspiracy arises instead. How much more comforting is it to think the current government secretly hates Brexit and plans to sell out the UK to EU rule? The alternative is to face the current ability level of our Civil Service. You may shudder to think which one is the real reason.
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