12 May 2023

Brexiteer fury is understandable, but Kemi Badenoch has done the right thing


Brexiteers were predictably fed up when Kemi Badenoch told the press on Wednesday that she had had to abandon the plan to eliminate all but a small proportion of the EU law mountain by the end of this year. This was quite understandable: the Retained EU Law Bill had been seen as a concrete demonstration of the Government’s determination to free us from the toils of Brussels, and this partial emasculation is an obvious blow to its credibility.

Nevertheless, we need a sense of proportion. Cutting through the emotional hype, Badenoch – not to mention Sunak, who clearly will have pre-approved her course of action – have actually played a difficult hand rather well. Although his instincts on EU law are absolutely sound, Jacob Rees-Mogg’s reference to the Government’s behaviour as Borgia-like is hyperbolic and unhelpful; and even Iain Duncan-Smith’s more measured reference to the climbdown being ‘weak and panicky’ is a little unfair.

Here’s why.

First, there is a point about method. The Government is absolutely right to say we must take a long hard look at the 50-year agglomeration of EU laws which were never adequately approved by our own elected representatives. The sunset provision introduced by the Act, under which such legislation would automatically disappear unless the Government could be persuaded to keep it, was also a good safeguard against the effect of inertia. But proper scrutiny still matters and a number of people, myself included, had doubts about the practicality of the short cut-off date at the end of this year.

There is a great deal of retained EU legislation, some of it of eye-watering in its technicality. (Fancy checking over Commission Regulation (EC) No 1266/2007 of 26 October 2007 on implementing rules for Council Directive 2000/75/EC as regards the control, monitoring, surveillance and restrictions on movements of certain animals of susceptible species in relation to bluetongue? Me neither.) You do not have to be a Remainer, or a leftish legal academic who sees Euro-law as an antidote to ‘populism’, to think that we do actually need rather more time.

Secondly, while Badenoch has been outwardly and commendably loyal to her mandarins (whom she has described as ‘working feverishly’ to her orders), there remains room for doubt about the enthusiasm of civil servants long habituated to technocratic government and, in many cases, unhappy about the Brexit process.

Of course it is outrageous when the Civil Service sets itself up as a kind of de facto opposition to a government whose ministers’ style is too abrasive for them (witness the tantrum thrown yesterday by the FDA under its appropriately named leader Dave Penman). But as a matter of practical politics, there is a limit to what a minister can do in such a case. However right in principle Badenoch might be were she to bawl out her officials, both Sunak and Rees-Mogg need to recognise that watering down the bill is better than Badenoch sharing the fate of Dominic Raab. Reculer pour mieux sauter can be quite a good political maxim.

And that is the clue to what the Government should now do. The programme of scrapping unwanted EU law must go on. It must be made clear that even if recalcitrant civil servants have succeeded in postponing this democratically necessary operation, they have not succeeded in defeating it.

How should the Government do that?

The removal of the 2023 sunset from the Bill was sensible, but Badenoch needs to think again about abandoning the sunset clause altogether. Some pressure of time, and some presumption of repeal of retained EU law, remains essential to stop the Blob from defeating the whole exercise through inertia. The end of 2025 or 2026 would seem a good compromise.

Secondly, the Government must supplement the efforts of the mandarins. That means setting up a high-powered committee of sympathetic politicians, academics and others to go, methodically, through the turgid mass of EU law and present conclusions to ministers. Once that is complete, details of the legislation set for the chop need to be sent to the Office of the Parliamentary Counsel with clear instructions to get the job done thoroughly and quickly. With proper democratic backing there will be no excuse for foot-dragging: nor, if there is an eventual sunset clause, will there be anything to be gained by it.

Kemi Badenoch is an excellent minister and has every chance of regaining the initiative, if the Government will let her. It’s now up to the Prime Minister to get behind this scheme and let her put this part of his house in order.

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Andrew Tettenborn is a professor of law at Swansea Law School.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.