Many of us voted to leave the EU, in part, to get away from all their pesky regulations. The British Chambers of Commerce (BCC), for one, spent years calculating their excessive cost to British business and castigating MPs and Whitehall for failing to obstruct them. Technically on Brexit, all EU Directives would remain, because they are enshrined in British law, whereas Regulations which are the vast majority of EU laws by number, would automatically fall away. Whoopee!
Regulations are like to teeth braces: they straighten things up and once that job is done, they can be thrown away. Brexit is the ideal opportunity to do just that. In those, relatively few, cases where correction is still needed, new British regulations (braces) could be installed to suit the current needs.
HM Government published its Great Repeal Bill White Paper, 2017, on 30th March: “The Government’s approach to preserving EU law is to ensure that all EU laws which are directly applicable in the UK and all laws which have been made in the UK in order to implement our obligations as a member of the EU are converted into domestic law on the day we leave the EU, subject to the exceptions set out in this paper.” (A.1) The “exceptions” are relatively minor, such as those concerning Gibraltar.
The rationale for this is risible: “1.13 If the Great Repeal Bill did not convert existing EU law into domestic law at the same time as repealing the ECA [European Communities Act 1972], the UK’s statute book would contain significant gaps once we left the EU. There are a large number of EU regulations and many other EU-derived laws which form part of our law which, if we were to repeal the ECA without making further provision, would no longer apply, creating large holes in our statute book.” Heaven forfend that we should have gaps in our statute book!
The secondary rationale is no better. Apparently, retaining all EU law would provide “certainty”. Getting rid of it would not only provide certainty but also simplicity and less cost burden on business.
No one seems to know how many regulations there are but 19,000 is the figure bandied about. The White Paper suggests “over 12,000” (2.6) and claims that we need to transpose all EU regulations and European Court of Justice case law into UK law in order to revise, remove or retain each one after Brexit.
Adam Marshall of the BCC rightly sees regulations as “red tape” but takes the superficially responsible view “business communities across the UK always like to see the back of red tape. But they want any change to be considered carefully.” (Daily Telegraph, “Cut the red tape choking Britain after Brexit to set the country free from the shackles of Brussels”, 30th March).
Unfortunately, Dr Marshall and others with that view are ill-informed. As the BCC itself showed in its 2007 report, “Deregulation or Déjà Vu? UK Deregulation Initiatives 1987/2006” such government initiatives, of which there have been many over the last thirty years, are doomed to failure. The largest and most ambitious was set up by Sir John Major in 1992 under Lord Sainsbury. Such candidates for the chop as it found were nickel and dimed away by Whitehall and absolutely nothing of any significance resulted. The only successful government (New Zealand) achieved its aims by the reverse strategy: namely abolishing regulations en bloc and then forcing ministers and the civil service to re-regulate those they really needed. Few were.
In my own discussions with senior civil servants, they agreed that this strategy is the only hope. Brexit gives us the opportunity: all regulations, but not directives, will fall away automatically. The Great Repeal Bill White Paper has it the wrong way round: we should let them all go and invite Whitehall to re-present those we really need.
When it comes to perversity, the House of Commons Constitution Committee takes things further. On 7th March they announced “The ‘Great Repeal Bill’ should not be used as a shortcut by the Government to pick and choose which provisions of EU law it wishes to keep and which to lose. If the Government wants to change the law in areas which currently fall under the authority of EU as, just to give one example, it has said it intends to do on immigration, it should do so via primary legislation which is subject to full Parliamentary scrutiny.” Requiring that for the 19,000 regulations, EU case law and all the directives would pretty much guarantee that we would keep all the EU law we hoped to escape, for ever.
This subject is perhaps too big for a blog but the nub is simple: the so-called “Great Repeal” is no such thing. It is simply re-labeling EU law as UK law.