EU law: the leftovers  

While we were members of the EU, we were subject to EU law. In the course of the almost 50 years of EU membership, many laws had taken on a distinctly European tinge. Some of these European laws were incorporated into our law as primary legislation (Acts of Parliament) or secondary legislation ("Statutory Instruments"), but many European directives had direct effect and thus were not incorporated into our legal system in the traditional way.

Regardless of how European law became part of British law, many saw it as undemocratically imposed. This, despite our membership of all the European bodies, such as the Council of Ministers and our seats in the European Parliament. Those same people regard the continuance of that body of law to be an affront to our Britishness and they want to put British laws in its place – without delay.

On leaving the EU, much of that law would have become automatically unenforceable and so, as a holding measure, an Act was passed confirming the status quo: we would continue to be subject to the same laws as when we were in the EU until Parliament decided otherwise.

It is that which is now subject to an attempt by the Brexiteers to purify our law, casting off the last vestiges of foreignness so that we can revert to singing ‘Rule Britannia’ with gusto. A bill has been passed by the Commons which would have just this effect. Fortunately, it is now being considered by the Lords. The Lords are revolting. I’m pleased to say.

My latest email to my friend and Brexiteer, Craig, is as follows:

Dear Mr Tracey

I see that you were briefly, in early November, a member of the ‘Retained EU Law (Revocation and Reform Bill) Committee’. Quite why you joined and left such a snappily-named committee in less than a week, I don’t know, but you appear to have voted for the bill itself, the REUL bill, in October of last year. I understand that the bill is to start its journey in the House of Lords on Monday with, so far, 63 of its members having put their names down to take part in the debate.

Jacob Rees-Mogg, the since-sacked minister who was the originator of the bill, described it last month both as a `tidying-up law' and of `great constitutional importance'. It is rather difficult to see how it can be both. Having voted for the bill, I am sure you must be very aware of its detailed provisions, but you seem not to have understood why the bill is so dangerous. So then let me try to explain my very considerable concerns. They can be summarised by noting that, as the legal commentator and journalist, Joshua Rozenberg has pointed out: “the acronym is pronounced ‘rule' - not as in `rule of law', but as in 'rule by ministers'.”

Retained EU law – REUL - is the body of law that was kept by the UK when the Brexit transition period ended on 31 December 2020. The European Union (Withdrawal) Act 2018 in effect took a ‘screenshot' of REUL and incorporated it into the UK's statute book. That ensured there would be time for ministers to decide which EU-derived laws they wanted the UK to keep and which to dispense with.

Around 670 pieces of REUL have already been repealed or amended by Parliament over the past two years. However, if passed in its current form, the REUL bill would automatically revoke almost all remaining REUL in less than 11 months from now - without Parliamentary debate.

Most commentators say that it would be impossible to consider each provision properly within the time available under this bill. I know that people such as Rees-Mogg file such things under the heading of ‘red tape’, with the implication that it can be disposed of without any serious thought. Quite how such a conclusion can be arrived at without first considering the provision in detail is though something of a mystery to me. It is quite obvious to me that such a time limit is ideologically driven or perhaps an example of magical thinking.

The way the bill is structured means that it makes an exception for anything included in primary legislation and then there is also the exception for any EU law which, prior to that cut-off point, the end of December, ministers or the devolved authorities decide to keep. It will be called `assimilated law'.

How many laws will be assimilated and how many 'sunsetted' in December? Nobody knows. Until the beginning of this week, 2,417 pieces of legislation were listed publicly on the government's `dashboard', with a short summary of what each one does and what might happen to it. Last month, the government said it had found 3,200 items of EU law,  but it expected the total to be 4,000 - a suspiciously round figure. So we, the electors and you the MPs are, at best, only just over half way there in even knowing what laws are subject to this bill.

Regardless, however, of whether so far unidentified laws are actually identified prior to the end of the year, they would nonetheless be revoked. At the very least therefore, Clause 1 should be amended so that it applies only to specifically identified REUL Who knows how many laws might otherwise be repealed while still hidden down the back of the sofa?

Clauses 12 to 14 of the bill allow ministers from the UK government and the devolved administrations to `restate' REUL. In other words, they will be able to redefine the laws which apply to us without Parliament having its normal role in that process. Do you not find that shocking?

Clause 15 is even worse. It would allow any minister to revoke or replace `secondary' REUL - i.e that not created by primary legislation - until June 2026. Secondary REUL could be replaced with any law that the minister `considers to be appropriate and to achieve the same or similar objectives'. This would include much environmental law and provisions defining criminal offences.

But the clause goes further and allows this secondary REUL to be replaced with `such alternative provision' as the minister considers ‘appropriate’. But what is meant by ‘such alternative provision' as the minister considers ‘appropriate’? The bill does not tell us. No wonder this has been called the 'do as you like' clause.

And of course you, as a Brexiteer, campaigned for Britain to ‘take back control’. I don’t seem to recall you or anyone-else saying that it meant that control would instead be in the hands of Ministers rather than Parliament. But that is the effect of the bill you have so far voted for.

Perhaps you could explain to me why you took a decision which is in clear contravention of the rule of law.

Kind regards,

Paul Buckingham

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