Kemi Badenoch’s Brexit bonfire of EU laws could turn into a bin fire

The zealous Brexiteer has been handed a poisoned chalice by Rishi Sunak, as Sean O’Grady explains

Kemi Badenoch broke some bad news to the ERG (PA Wire)

Kemi Badenoch, the business and trade secretary, has said a plan to scrap some 4,000 ‘retained EU laws’ on the statute book is being scaled back to around 800. This has dismayed Eurosceptics everywhere, and there are accusations of a “Brexit betrayal”. Under the Retained EU Law (Revocation and Reform) Bill – the brainchild of Jacob Rees-Mogg when he was business secretary – laws not actively protected or updated by ministers or parliament would automatically be repealed by 31 December 2023 in a controversial sunset clause.

The scaling back of this plan is the latest in a series of corrections to the Brexit flight path engineered by Rishi Sunak.

Where did Badenoch announce this?

There’s nothing about it in Hansard and there was no news conference. In a telling sign of how much influence the rightist European Research Group (ERG) still wields in the party, Badenoch chose to break the bad news first, and exclusively, to a closed meeting of the ERG. Other MPs, let alone the public, have only learned about it through press reports.

As is fashionable, Badenoch blamed civil servants who had told her that the timeframe was unviable. The sheer volume of legislation, covering vast areas of former EU competence, was one obstacle, but the concentration of laws in sensitive areas such as workers’ rights, the environment and agriculture meant ministers were warned they’d be faced with some powerful resistance.

How did it go down?

To quote one ERG member, “like a lead balloon”. In the words of another backbencher: “You need a tough minister, but she is a lame minister who is having rings run around her by Remainer officials. We needed a tough minister. Kemi is proving to be a huge disappointment.”

Zealous Brexiteer Badenoch has been handed something of a poisoned chalice by Sunak, which has left her providing cover and an alibi for one of his pragmatic U-turns. Badenoch’s leadership chances have taken a corresponding knock.

Are there any other problems with the REUL Bill?

Plenty. Something that has arisen since the Windsor Framework was agreed is that Northern Ireland’s special status inside the EU single market means that certain existing UK laws derived from EU rules would have to be retained for Northern Ireland even if they were revoked for the rest of the UK.

Another thing, which should have been noticed earlier, is that some of the laws may have to be kept because of the Brexit deal, which requires both parties to maintain a “level playing field”.

If changes are made to UK employment law that have a material effect on trade and investment or reduce employment rights, then Britain may be fined by the EU. The government should therefore be cautious about implementing changes that reduce the level of protection for workers, or fail to enforce employment rights, in a manner that has an effect on trade.

Thus the UK law enshrining the EU working time directive will be saved, no doubt to the frustration of Badenoch and her colleagues. (It lays down an average 48-hour working week restriction over a reference period of 17 weeks. If it were to be abolished, with no replacement, there would be no limit on the hours worked in a working week.)

Crucial areas of legislation, such as taxation, have already been taken out of the scope of the REUL Bill. Neither does the REUL Bill entirely remove European Court case law, which will still apply to the retained laws, for example on the definition of "worker" in employment law and court cases. The actual number of EU-derived laws seems impossible to determine.

Why are the changes being made now?

Because the REUL Bill faces imminent collapse, and because we are approaching the local elections. The reality is that the REUL is due to go to the House of Lords for scrutiny on 15 May, where it will probably get shredded and delayed, adding to the prospect of chaos. A powerful cross-party alliance of peers is determined to prevent what they see as a bad bill and an abuse of ministerial power on an unprecedented scale. The prospect of such a disaster has forced the government to think again.

Is this embarrassing for the prime minister?

Certainly. During his first leadership campaign last year, Sunak produced a witty short video of a paper-shredder destroying EU laws. It made a powerful point. Sunak vowed to repeal or replace more than 2,000 laws before the next general election, and to have “scrapped or reformed all of the EU law, red tape and bureaucracy that is still on our statute book and slowing economic growth”.

It was all part of a manic anti-Brussels arms race with his rival Liz Truss, who promised to ditch or replace all the regulations even faster, by the end of 2023, despite warnings from business leaders and lawyers that this would result in disruption and chaos. It turns out the process is a little more complicated – and politically hazardous – than either Sunak or Truss assumed.

Which laws are affected?

They include legislation on such emotive issues as animal testing for cosmetics, compensation for delayed flights, equal pay for men and women, and pension rights for widows of same-sex marriages. Some 25 groups concerned about safety standards, including the TUC and the British Safety Council and the Royal Society for the Prevention of Accidents, have warned of unintended consequences from the REUL Bill. Ministers would be accused of facilitating cruelty to animals and robbing widowers, in an election year.

When the Tories want to project an image of fairness and competence, well, Labour’s script writes itself. Such a bungled “bonfire” of regulations would look more like a bin fire. Far better to frame some vague commitments in the manifesto, before doing some proper policy work and allowing realistic parliamentary scrutiny after the next election. After all, they did promise to “take back control” for the UK’s sovereign parliament.