31 January 2022

If Boris really wants to get rid of EU red tape, there’s a very simple way to do so

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For a project that was so often dressed up as about freeing Britain from red tape, the Government took a decidedly unambitious approach to dealing with EU regulations when we finally left.

In fact, Boris Johnson ended up rolling over so many regulations that his legislation ended up being unofficially dubbed the ‘Continuity Bill’.

This time last year, he then tasked Rishi Sunak with delivering a ‘bonfire of EU red tape’. We can gauge roughly how well this ‘ambitious programme of regulatory reform’ went by the fact that it seems to have been re-announced today.

According to the BBC, a new ‘Brexit Freedoms Bill’ is going to make it easier for ministers to change the thousands of EU-era regulations which remain in force.

We’re currently light on details of how this legislation will work, but further reporting doesn’t exactly fill one with confidence. The Guardian reports:

‘The plans claim to cut £1bn in red tape expenses for businesses, but Johnson gave no firm details on which regulations are intended to be repealed or enhanced, instead stating five principles that would be applied, including the value of sovereignty and creating new markets.’

The obvious question which springs to mind is how has the Government reached that £1bn figure if it hasn’t actually done the detailed work of deciding what it’s going to do with which regulations?

But the absence of detail also poses more serious questions about how this is going to work. If the changes aren’t going to be put into the primary legislation, does this mean that ministers are going to be granted a sweeping set of powers to amend regulations, in accordance with five rather broadly worded principles?

If so, this approach has several potential downsides. It would expose any energetic programme of repeal or replacement to a larger risk of challenge in the courts or the House of Lords. 

Worse, given the way the Government seems to be lurching from one bit of ‘red meat’ to the next, there is seems a real possibility that the Prime Minister simply banks the media sugar rush from passing the bill and then doesn’t do anything with it, just as the UK Internal Market Act (UKIMA) has not been followed up with a sustained programme of new HM Government initiatives in the devolved nations.

(On the constitutional side, it is also worth noting that the Union strategy seems still to be all over the place. Is the Government really preparing for a straight-up showdown with the devolved administrations over the Brexit Freedoms Bill just a week after it folded to them over the Health and Care Bill? Or will it fold on the Brexit Freedoms Bill as well?)

Perhaps the single surest sign of Johnson’s lack of boldness on the question of EU regulations, however, is the fact that he still refrains from doing the one ‘big bang’ initiative which might really start to get them off the statute book: subject them to a sunset clause.

This was Grant Shapps’ proposal all the way back in 2016, and it remains by far the best way to ensure things get done. It would place the power of inertia on the side of repeal, with ministers and civil servants having to stir themselves to identify and advocate for regulations they actually wanted to keep, rather than make a desultory effort to find a few burnt offerings to appease the Prime Minister.

When the Chancellor was tasked last year with mounting a series of ‘systematic deep dives’ into legacy EU regulations (which one might have thought ought to have provided, after 12 months, the basis for a detailed repeal bill) I suggested he revive Shapps’ proposal and take it further.

Even outside the EU context, it would be a big step towards better regulations if new domestic regulations were automatically subject to sunset clauses, with departments having to provide clear criteria for failure when proposing them which MPs could use to assess them on the second vote. No more regulate-and-forget!

Alas, no such legislation seems to be in the offing. Instead, two years after the EU and a year after Johnson first tasked Sunak to start doing detailed work on the question of regulation, we seem only to be getting a very vague, headline grabbing bill, with no clear plan for how it will be implemented or where the alleged billion pounds’ worth of benefits is coming from.

This is the danger of a government fighting week-to-week to save its own skin. The new crowd-pleasing tone is doubtless welcome to many who disliked Johnson’s regression towards this country’s high-tax, nannying mean. But beneath the noise, there could well be less actual signal than ever.

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Henry Hill is Deputy Editor of ConservativeHome.

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