The writer is a senior fellow at the Institute for Government
Brexit supporters have a point on EU regulation. Rules negotiated between 20-plus member states, from tiny Malta to the industrial powerhouse of Germany, promoted by a European Commission which has used the internal market in expansive ways and then subject to bargaining with an assertive European parliament, are unlikely to be a precise match for what the UK government — or its devolved counterparts — would have chosen given a free hand.
Brexit has provided an opportunity to make, or remake, regulation more in line with British preferences and circumstances. And Brexiters are probably also right that few departments see reviewing the back catalogue of 50 years of accreted EU laws as a top civil service or, indeed, ministerial priority.
Hence the desperate bid to kick-start Whitehall into action through the retained EU law (revocation and reform) bill with its ultimatum that huge areas of secondary legislation, transferred over from the EU, will fall by the end of year deadline unless ministers act to save or rewrite it. The hope is that this primal scream of legislation will finally flush the missing Brexit dividends out from the cover of bureaucratic inertia in time to revive the UK economy and convince increasingly sceptical Leave voters that the whole thing was worth it.
The problem for Rishi Sunak is that the bill as conceived by David Frost/Boris Johnson and turbocharged by Liz Truss/Jacob Rees-Mogg is much more likely to blow up in his government’s face than deliver noticeable benefits.
To be done properly, the bill requires mountains of detailed work by civil servants — policy advisers and legal teams — and regulators who are already hit by vacancies and the need to get on top of their post-Brexit responsibilities. Then ministers need to decide the fate of the around 4,000 pieces of law (and many more pages) that have been identified as being within scope. An obstructive permanent secretary would be hard pressed to find a better way to ensure that an entire ministerial policy agenda was put in deep freeze for a year as the process gobbles up time and resources in painstaking decisions about whether to retain, reform, delay or discard each regulation.
Short cuts are inevitable. A year of uncertainty will end with the overwhelming majority of laws in the retain or delay trays as time, and options, run out. Even reforms which are sensible in principle may backfire without adequate time for scrutiny. There will be mistakes of both omission and commission — which ministers will then need more legislation to correct. Potentially it will be very much ado about very little. The Brexiter worry should be that, having promised a silver bullet, the bill ends up firing a series of blanks.
Even where there is time to work out a better way of regulating, there are other tests government needs to apply. Will any change deepen the Irish Sea border as England, Scotland and Wales diverge away from a Northern Ireland still obliged to follow EU rules under even a renegotiated protocol? Will it exacerbate tensions with the devolved governments? Will it undermine commitments the UK has made in the Trade and Cooperation Agreement? And will it do anything to make UK firms more competitive and help offset the extra costs those who export to the EU now face?
In the Autumn Statement, the chancellor set out a more sensible approach to reform: targeted reviews of five “growth” areas led by chief scientific adviser Sir Patrick Vallance: digital technology, life sciences, green industries, financial services and advanced manufacturing. These are much more likely to yield results than spending a year reviewing reams of inherited air safety or food standards legislation. That is where the government should focus.
But first Sunak needs to convince his fellow Brexit supporters to turn their backs on their misconceived bill.
