I think Brexit was a serious mistake. But I don’t think it was stupid. I’ve never thought that. I only wish I felt the same way about the government’s plans for revoking all EU legislation during the course of this year.
There seemed to me broadly two arguments for leaving the European Union. The first was economic. The idea that Brexit would make us more prosperous was indeed monumentally foolish. It involved believing the improvement in growth from deregulation and new trade deals would be greater than the advantages of being in the single market.
This was always highly implausible. Withholding the word “stupid” is only a matter of politeness.
The other argument for Brexit, the political argument, had more to it — that the EU was (and remains) on the path to becoming a state. Labour’s Hugh Gaitskell was right when he said of membership: “We must be clear about this; it does mean, if this is the idea, the end of Britain as an independent European state. I make no apology for repeating it. It means the end of a thousand years of history.”
The disadvantage of this, the argument proceeded, was loss of national control. And a greater say in European policy didn’t compensate for this because European institutions aren’t democratic. So the political case for leaving the EU was that it would allow us to restore democracy through parliamentary sovereignty.
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I do not accept this political case but I do not think it stupid. My opposition to Brexit was more that, whatever force the democratic point might have had, it promised only abstract advantages. The economic loss would be concrete.
The government’s proposals for revoking EU regulation have chosen to advance the weak economic argument for Brexit at the expense of the stronger political one. They are trying to move quickly to “take advantage of our Brexit freedoms” even if that means bypassing parliament and democratic decision- making. This measure, if it passes, will I think reduce growth rather than increase it. And it will make a mockery of the political case for leaving the EU.
In 2018, when legislating to enable our departure, the government appreciated it had a problem. For decades EU law has had primacy over British law and there were thousands of regulations that would fall away at the moment of leaving. In order to avoid confusion and lawlessness, the government proposed that existing EU law be retained until, in each case, parliament had a chance to review it and either replace, reform or simply replicate it.
This was clearly sensible but it required something the modern Conservative Party appears often to lack: a combination of patience and common sense.
Most proposals made by the rash and inglorious Liz Truss government were quickly reversed. The same fate has not yet befallen those of its business secretary, Jacob Rees-Mogg, to speed up the replacement of EU laws. It should. But instead his Retained EU Law (Revocation and Reform) Bill continues its way through parliament, heading towards the House of Lords and trouble.
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The central proposal Rees-Mogg’s bill makes is that most, if not all, EU law will simply expire at the end of 2023. In other words, in less than 12 months. If that sounds a remarkably cavalier way of dealing with decades of regulation covering thousands of issues, that is because it is.
There are a couple of ways the government hopes to avoid total chaos and large holes in the statute book. One is to allow the expiry of some EU law to be postponed until 2026. It is already obvious the government will be under intense pressure from some of its MPs to use this flexibility sparingly.
So it will more often make use of a different method — the executive, whether in England or in the devolved governments, will fill in the legal gaps.
In other words laws will not be made in Europe without parliamentary involvement, but in Britain without parliamentary involvement. This makes a farce of the idea that we left the EU to restore democratic control over law. It is almost the definition of irony that only the unelected Lords may now prevent the Commons from giving away its democratic powers in this fashion.
It is not open, really, for the sponsors of this legislation to argue that it covers mainly technical and politically uncontroversial matters in environmental and consumer protection. Not only is that not true (it includes matters such as paternity leave and air quality), it also runs directly against the democratic argument for leaving the EU, the very one advanced by people such as Rees-Mogg. How can it possibly be a democratic outrage for the single market regulations to be determined by EU bodies, but not matter much if they are introduced without parliamentary scrutiny. Either democratic consideration of these issues matters or it does not.
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But even if this democratic argument were not to be accepted, allow me to try another. It is absurd — actually let me go further, it is impossible — to carefully review thousands of laws in a few months. It is inevitable the result will be unsatisfactory.
And the people in business who this re-regulation is supposed to help, people such as the Institute of Directors, are as a result deeply concerned. Replacing one set of regulations with another is by itself burdensome for business. So is uncertainty about the meaning and application of new measures. Doing it in a hurry and without time for proper discussion risks making things worse.
This is not an argument for retaining EU regulations for ever. In time we will wish to change some of them, either to reduce burdens or to tailor them to British needs, although the need to sell products abroad, and the commitments we have made in the withdrawal agreement, will naturally limit such changes.
Yet there is no need to do all this in a year. The only possible argument for doing so is that it might thwart an incoming Labour government, or — and this was raised directly by Rees-Mogg — help the Tories to kill Labour scare stories about regulation before an election campaign. These are disreputable reasons for pursuing an irresponsible policy.
And they won’t even work. To the extent that this will be an election issue, the Tories need to show they are proceeding to repatriate regulations in an orderly and sensible way. And their response to the charge that they may prove overzealous should be that they no longer have Rees-Mogg as business secretary.
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It should be possible to trust that the government will not do something monumentally impractical just to show off. We learnt last year that it isn’t.
daniel.finkelstein@thetimes.co.uk
