Government sees some sense at last on the Retained EU Law Bill

Policy reality has finally prevailed over political rhetoric with the admission from the government that it cannot proceed with the Retained EU Law (REUL) Bill in its current form.

Business and trade secretary Kemi Badenoch, who has inherited the poisoned brief from her gung ho predecessors – most notably Jacob Rees-Mogg and Lord Frost – has agreed to ditch the sunset from the bill and instead provide parliament with a list of all REUL the government intends to repeal. Given that no one knows how much REUL there is (the numbers have gone up from 2,400 to nearly 5,000), the change avoids the immediate risk of oversights and mistakes, and gives a degree of certainty. However, MPs will still find it hard to engage substantively with the long list of rules to be scrapped which Badenoch has just unveiled. Many may be nugatory – but some may have wider implications. The race will be on for the massed ranks of lobby groups to work out where the dangers lie before parliament passes the bill.

Badenoch claimed to parliament – where she was forced to answer an urgent question from the European Scrutiny Committee chair – that this was just a technical change; the aim of the bill was unchanged but the government was achieving its aims in a different way. Her backbench critics have sought to pin the blame on foot-dragging civil servants. Badenoch claimed the reverse was true – that the deadline was inducing a rush to retain/preserve law as risk averse civil servants (and possibly also their risk averse political bosses) dumped swathes of EU law in the ‘keep’ box. But, in truth, the Badenoch decision was a consequence of facing up to the administrative consequences of ludicrous deadlines set in the heat of a political battle. Badenoch's decision is victory for less bad government, not for the 'blob'.

A targeted approach to reform makes much more sense

The Badenoch statement also suggests a much more sensible approach to regulatory reform – with words such as “proper assessment and consultation” making a welcome appearance. That provides a degree of comfort over concerns that a rush to meet the arbitrary deadline would allow for neither. Badenoch also highlights the approach taken in the Financial Services and Markets Bill where the government has introduced primary legislation to implement its reforms. It would be good if that approach, with the opportunity for proper parliamentary involvement, was the approach adopted in other areas.

There are still further improvements for the Lords to make

However, while the Lords have forced government to address the unrealism and risks of its self-imposed deadline, there are still big question marks over the amended approach. Badenoch was at pains to point out that the bill still stuck to the original intention of “sunsetting” EU law supremacy and EU interpretive principles on 31 December 31 2023.

In the original legislation, only the Supreme Court could depart from established EU case law, but the bill now effectively opens the way for any court to do it. That unsettles all the REUL left on the statute book and risks opening a licence to litigate for anyone who did not like a decision under EU law. For a government which has been sceptical about judicial law-making, it is odd to be handing over the ability to change the meaning of EU law through the back door.

Moreover, the government is giving itself a permanent power to amend REUL under the bill – and is not putting any commitment to consultation or indeed proper parliamentary scrutiny on the face of the bill. That means that, notwithstanding the “climbdown”, any future government could use these powers to water down protections (the bill does not allow reform to mean raising standards). These are areas where the Lords should still seek to amend the bill.

The process of the bill highlights the importance of the Lords role

A number of Conservative MPs in the urgent question discussion asked the secretary of state why she was backing down given that the bill had passed the Commons with no Conservative MP opposing. A better question would have been why no Conservative MP opposed what was always a madly impractical piece of legislation, which cut out so much opportunity for parliamentary scrutiny. But yet again it has been left to the Lords – of all political persuasions and none – to stand up for parliament’s right to have more say on legislation, and to force the government to change its position.

The end result may be less performative but more substantive divergence than under the initial Rees-Mogg bill. But, hopefully, parliament will insist that it is divergence that makes sense.