Rishi Sunak would be right to ditch the Retained EU Law Bill

Last summer the then top two candidates for the Conservative leadership vied for members’ votes with increasingly rash promises on how quickly they would rid the UK statute book of “retained EU Law” – the category of law derived from EU membership, transferred under Theresa May’s 2018 EU Withdrawal Act – through the briefly and wrongly dubbed “Great Repeal Bill”.

The original timetable proposed was to sunset all outstanding EU law by the end of 2026. Liz Truss upped that to 2023. Rishi Sunak released a naff video with a shredder and trumped her with a promise of a full scale review in 100 days. But Truss won, and the 2023 deadline appeared in the bill when it was finally introduced – on the day that Sunak replaced Truss as prime minister. 

The bill passed its Commons stages but ran into a barrage of attacks in the Lords, and the government now seems to be shifting towards a rather more pragmatic approach. It would be right to do so.

There are three different sorts of objection to the bill

The first set of objections are procedural – that the speed allowed minimal scope for parliamentary scrutiny; that ministers could let EU law lapse with no parliamentary say at all; that there was no obligation to consult either affected parties outside government, or the devolved governments. Proponents of the bill argued that the provisions passed with minimal scrutiny in the first place, so it was perfectly acceptable to amend them without much process. 

The second set of objections are administrative: that reviewing all 3,800 pieces of retained EU law at breakneck speed was a big diversion of ministerial and civil service time and effort; that mistakes would be bound to be made; that the position was even more stretched in the devolved governments where there was less capacity and no scope to use the get-out delay clause; and that not all laws in scope would be identified before the deadline. Under the bill, there would be no powers to make later corrections – primary legislation would be needed.  

The third set of objections are substantive – to how ministers would use the powers. During the Lords stages ministers were forced to reassure on areas where they would not lower standards, but fears remain. Further, there was a risk that ill-thought through change might have consequences for the UK internal market, the Windsor Framework or risk triggering the level playing field clauses in the Trade and Cooperation Agreement and opening the UK up to the risk of retaliation from the EU and reduced market access. 

Meanwhile the general uncertainty created by the bill was seen by many as a deterrent to business investment and a drag on business confidence.  

The government seems to be adopting a more practical approach

The Retained EU Law Bill was due back for report stage in the Lords after the Easter recess but suddenly disappeared from the order paper. It was rescheduled for mid-May, but may now be delayed further. It was likely that the barrage of criticism would have turned into a barrage of amendments from the Lords, so the government seems to be making a tactical retreat ahead of that clash

The secretary of state now responsible for the bill is Kemi Badenoch, who has reportedly been breaking the news to Conservative Brexit hardliners that the bill will be changed substantially. Instead of defaulting to repeal by a sunset date, with all the attendant risks, the government appears to have decided to focus on producing a list of the laws to be repealed – and Badenoch is reported to have asked the European Research Group (ERG) to suggest additions if it has identified otiose EU law that is not on the list. The rest stay on the statute book. Reports suggest that 800 regulations have been identified – it’s not clear that all will go or whether some will be amended. That would be quite a major change in any normal assault on red tape: the impact on businesses will depend on whether this is just an exercise in decluttering or whether there is substantive streamlining. But this positive listing approach removes the risk of inadvertent error and will enable parliament at least to look at what is in scope. So far, so much better. 

By far the better approach is the one adopted on financial services, where the government consulted and is now proceeding with proper primary legislation – with the scope for better legislative scrutiny and amendments. Targeted change in substantial areas with potential genuine benefits, but also opportunity for proper scrutiny, is a much better use of time and effort than a blanket or scattershot approach. 

It is not clear whether the government is proceeding with other elements of the bill – not least disapplying EU legal principles and removing the supremacy of EU law. But, as with the Windsor Framework, Rishi Sunak seems to be aligning himself with the Brexit-supporting practical pragmatists, rather than with the impractical ideologues. He may have counted how the numbers in the latter camp, who tried to vote down his Windsor framework, appear to be a diminishing force