The government’s increasingly bizarre attempts to scrub all traces of retained EU law from the UK statute book opened up a new front on Monday when the retained EU law (revocation and reform) bill hit the House of Lords. It immediately came under fire.
In a packed field, the award for the strangest comment in the entire debate must go appropriately enough to Lord Frost, on whose shoulders rests much of the blame for the whole Brexit debacle.
He told the assembled peers that when all existing EU law was automatically rolled over on exit day 31 January 2020, by virtue of clause 4 of the original 2018 Withdrawal Act, it was “not even clear” what EU legislation had been retained.
That clause, he claimed, “simply enables lawyers to say, ‘Whatever the law was before, it now is afterwards’ and we can’t live with that sort of uncertainty on our statute book” [our emphasis]. His words come at the end of this short clip.
The uncertainty of certainty?
Frost is clearly not a man for stability or the tyranny of routine. He also uses the word ‘uncertainty’ in a different way to most people. What was law yesterday may not necessarily be the same tomorrow afternoon, and why should it? How could we tolerate such a thing?
The capricious unpredictability of ministers’ whims and diktats are much to be preferred, at least that’s what I understood him to say. Nobody in the chamber batted an eyelid. For a moment, it was like being a fly on the wall of a dementia ward where utterly surreal statements are so commonplace they pass unnoticed.
For information, that clause 4 provided legal continuity after exit day for all EU-derived laws that are “recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972”, and “are enforced, allowed and followed accordingly”. There was no definitive list because there didn’t need to be one. Everything just remained as it was.
Elsewhere, there were many excellent speeches. Baroness Chapman of Darlington (Jenny Chapman, Labour) reminded us that when the EU (withdrawal) bill was introduced in September 2017, ensuring all EU-derived law was incorporated into UK law, David Davis said, “The key point of this bill is to avoid significant and serious gaps in our statute book. It ensures that consumers can be clear about their protection, employees can be clear about their rights, and businesses can be clear about the rules that regulate their trade”.
Having avoided one cliff edge, the government has now created another and pointed the Brexit charabanc at it.
Nobody knows if any of the 3,745 laws on the government’s dashboard currently (it was 2,417 a few weeks ago) will survive the year. Even the number of laws is only approximate since they haven’t all been identified and some could go without being identified first, with indeterminate consequences. The Baroness called it “legislative Jenga”.
Regulations separate us from the “law of the jungle”
Lord Fox summed it all up in one short statement. He said the bill was wrong, “because it weakens the scrutiny role of parliament and gives unparalleled delegated powers to ministers. It is wrong because it does not respect the constitutional role of the devolved administrations. It is wrong because it sets an arbitrary deadline for the repeal of numerous laws that protect the UK’s environmental standards, safety standards, employment rights and consumer rights, and it is wrong because it creates uncertainty for businesses and individuals”.
When Britain was preparing to enter the single market, there were grumblings of discontent and Lord (Michael) Heseltine said he was tasked by John Major at the time with looking at “the real effect of all these wealth-destroying, uncivilised, burdensome regulations”.
For transparency, he published 3,000 regulations and wrote to every trade association, asking them to send him any regulation which as drafted was holding their members back and undermining the country, and to send an alternative draft. He did not get any replies. Then, as now, industry welcomed regulations because they oiled the wheels of trade.
The bill to revoke all those EU laws, Lord Hesletine said, demonstrated “beyond peradventure that [Brexiters] did not know what they were doing. Six years on, they did not know what they were doing. They have now actually created a giant question mark over a whole realm of regulations that are the custodian that separates us from the law of the jungle”. He begged the noble Lords “not to let this legislation leave this place unscathed”.
A leaver regrets
The contribution of Baroness Jones of Moulsecoomb (Jenny Jones, a member of The Green Party) was fascinating for this at the end:
“There will soon be a public debate about our relationship with the European Union, and the Green Party has decided that the relationship should be as close as possible until the political circumstances are right for us to rejoin. I say that as someone who voted for Brexit. What I have seen is destruction by this government, and they are not delivering on all their promises.
“My feeling is that the only sensible thing now is to cut our losses and rejoin the EU, and I think many others, some inside this building but many outside, will agree with me.”
The ‘uncertainty’ of keeping all EU laws has now been replaced with the ‘certainty’ of scrapping some of them, maybe all, even if we don’t quite know where they are or what they do.
What can possibly go wrong?