Friday 5 May 2023

Damage limitation

It has been a quiet week for Brexit news, but a revealing one too. The main story, if it is a story, is the latest though still not absolutely definitive report (£) that the government will pull back on the scope of scrapping Retained EU Law (REUL), so that it will ‘only’ remove 800 rather than all of the estimated 4000 pieces of legislation. That is still quite a lot of law that is going, and, crucially, there doesn’t as yet seem to be any confirmation of what these 800 laws are. Nor is it even clear whether the new plan is actually to ‘scrap’ all 800 or, as was originally proposed for the whole body of law, for this to be the default outcome but with provision to retain or amend in particular cases. So whilst this would be a sensible scaling back of the original plans, the damaging uncertainty about which parts of REUL will disappear, and when, remains.

As with all Brexit stories, this one has multiple dimensions and reveals much about the incoherence and inconsistency of the entire project.

A new pragmatism?

At one level, it is the latest sign, of which the Windsor Framework was the first, that Rishi Sunak’s government is more ‘pragmatic’ about Brexit than its predecessors. Notably, this decision seems to emanate from Kemi Badenoch, an enthusiastic Brexiter, in her newly expanded brief as Trade and Business Secretary which might suggest either that Sunak hopes that this will blunt the opposition of her fellow Brexiters or that, having to face the realities that they prefer to ignore, she, herself, has become a pragmatist.

Not that Sunak’s hands are clean. The Retained EU Law Bill started life under Boris Johnson as what was going to be the ‘Brexit Freedoms Bill’, and its legislative passage began, under the baleful stewardship of Jacob Rees-Mogg, during Liz Truss’s brief and disastrous premiership. But Sunak, in his ill-fated first bid to become Tory leader, was its enthusiastic champion, saying he would review or replace all REUL within the first 100 days of being Prime Minister. Then, as Prime Minister, he insisted it would go ahead in its original form as recently as this January even as a ‘senior government source’ was leaking that this was “impossible” (£).  

It may well be that in the first case this was purely to appeal to the Conservative membership voting in that leadership election, and in the second case was from fear of the ERG’s anger, something that their failure to derail the Windsor Framework now emboldens him to defy. If so, it serves to illustrate the wretched deformity that a relatively small number of Brexiter ideologues in the Tory Party have inflicted on politics. For without them, even given Brexit had happened, this self-evidently unworkable piece of legislation, which had even been ‘red-rated’ by the government’s independent Regulatory Policy Committee because of the inadequacy of its Impact Assessment process, would never have gone as far as it has. Nor would the retreat from it have had to be made inch-by-inch so as to avoid their tantrums, leaving things in this still indeterminate position.

The Brexiter reaction

Naturally it is all but impossible for Brexiters to recognize that what they had wanted was as impractical as it was undesirable. Ever the blameless victims, it had to be someone else’s fault. Thus, for some, Badenoch joined the list of those who, like Steve Baker, are deemed to have ‘sold out’ the true faith of Brexit purity. More commonly, in line with last week’s post, it was the lazy, incompetent and anti-Brexit civil service that got the blame.

Inevitably it was Rees-Mogg, in full spiteful schoolboy mode, who used his GB News bully pulpit to lead that line of attack, although it could be found across the Brexit bubble. Within that critique, the usual Brexiter simplism was also on display, with one pro-Brexit barrister claiming he could undertake all the work needed to scrap the full 4000 laws on his own in a year, or that a law firm could do so in a month.

Yet it's not entirely clear why this issue has become so totemic for Brexiters. Even in their own terms, to the extent that all these laws were carried over on to the UK statute book by vote of parliament, in the 2018 EU Withdrawal Act, they do not violate the principle of sovereignty. Indeed, if anything, it is the power the REUL Bill’s provisions give the Executive which does so (£).

In any case, when the 2018 legislation, described as the ‘Great Repeal Act’, was passed, let alone before the 2016 referendum, few if any Brexiters said, as Rees-Mogg does now, that passing the REUL Bill is “fundamental to the completion of Brexit”. So it seems to be yet another example of Brexiters making ever-harder demands for ‘true Brexit’ and, in the process, creating new tests to enable themselves to proclaim a “betrayal of Brexit”, in ways which even some Brexit supporters are beginning to see is ridiculous.

If there is no good Brexiter argument for the principle of the Bill, and especially for its original scope and speed, what is their case for its substance? Here, there is a remarkable coyness. There must be more than a suspicion that their desire is significant reduction in, in particular, employment rights, including the provisions of the EU Working Time Directive, although even Truss ruled out Rees-Mogg’s proposals for this as “half-baked”.

Certainly, now, Brexiters, including Rees-Mogg, are insistent that no diminution of employment rights or environmental protections is envisaged, instead talking airily of “pettifogging” product standards which supposedly make the UK less competitive and are “just annoying to people”, giving the example of vacuum cleaner power, apparently a reference to the EU rules introduced in 2017.

REUL and product standards

Reportedly (£), when Badenoch asked ERG members to identify examples of retained EU laws they wanted repealed, it was product standards that they, too, came up with. Although it’s not clear which product standards they were referring to, she rejected this suggestion “as Business Secretary and as a mother”.

That rather curious formulation doesn’t reveal what her specifically maternal concerns are, but perhaps she knows her Brexiter colleagues well enough to suspect they might not baulk at a good pinch of arsenic in baby food, just as they would perhaps regard sending small children up chimneys as a good way of boosting competitiveness, with the added benefit of giving woke and snowflake youths a short, sharp lesson in traditional British values.

However, the significance of Badenoch’s business brief is clear enough. Right across the business world there is substantial concern about the REUL Bill, with Roger Barker of the Institute of Directors criticising its entire approach and saying “ideally, we would like to see this Bill dropped”. Bluntly, those who know anything about product standards are quite happy to see the relevant retained EU law stay retained.

Of course, in the strange new world of Brexiter Conservatism, business and its representative bodies are seen as part of the whole ‘remainer Establishment blob’ but, that aside, this pre-occupation with diverging from EU product standards reveals one of the key ways that Brexiters don’t understand the single market, or the role of regulation in modern trade generally. Nor do they understand why, for both consumers and businesses, harmonized product standards are highly desirable.

For consumers, they offer a reliable guarantee without the need to delve into the technical minutiae of comparing UK and EU standards or worrying about compatibility issues. That guarantee may extend, as in the vacuum cleaner example, to the environmental impact of the product. As for people finding EU regulations annoying, in February last year Rees-Mogg, then the Brexit Opportunities Minister, called for the public to identify laws they wanted scrapped but, although the full results have never been reported, it seems to have yielded only trivial results. Certainly nothing has been heard of it since, rather like yet another absurd Rees-Mogg initiative, the government consultation on the supposedly burning public desire to remove the EU prohibition on selling goods using imperial measures only, which closed last August with the results still unpublished and probably quietly filed in the ‘Brexit stupidity archive’.

For businesses, far from divergence making them more competitive it makes them less so to the extent that it forces them to produce to different standards for the UK (or GB) and EU markets. Indeed, that’s well-illustrated by the fact that, to the relief of all British mothers, UK manufacturers will choose to follow the new EU standards on arsenic in baby foods, even if the British government doesn’t adopt them. It’s true that maintaining product standard alignment doesn’t in itself maintain all the benefits of single market membership, but it does reduce the costs of having given up membership. Clearly the same thing applies to conformity assessment marking, and it is to be hoped that the apparent turn to pragmatism over REUL will be followed by the final scrapping of the long-delayed UKCA mark* and that it, too, will be lodged in the Brexit stupidity archive where even Rees-Mogg seems to realise it belongs.

As I’ve pointed out in previous posts, this is not to deny that, Brexit having happened, there may be some areas where UK divergence makes sense. But that needs to be decided on a case-by-case basis, involving consultation with those who have relevant expertise or legitimate interests, undertaken in a sensible timescale, and with open public and political debate and parliamentary scrutiny. The REUL Bill process meets none of these criteria, even in its slimmed-down form (though the scale is more realistic). They are even more important if what is envisaged is indeed, despite the denials, the downgrading of employment rights or environmental protections.

The legacy of lies

All this would be true anyway, but it is made more true by the persistent dishonesty and bad faith with which Brexiters sold their project, and their long track-record of careless ignorance about what that project entails. This makes it all too easy to believe that the REUL Bill covers malign intent and/or that it will inadvertently create legislative and regulatory blackholes.

There is no better illustration of that mixture of the dishonesty, bad faith and careless ignorance than Boris Johnson. Whilst not exactly a news story, the full horror of Johnson’s premiership is freshly revealed with the publication yesterday of Anthony Seldon and Raymond Newell’s book Johnson at 10. The Inside Story. I haven’t read it yet and I’m not sure I could bear to do so, but the extracts (£) that have already been published, the early reviews, and an interview with Seldon paint an almost unbelievable, but all too easily believable, picture. It’s not just one of incompetence, venality and vanity, but of a person so psychologically and morally empty as to be unfit for even the lowliest position of responsibility, let alone that of Prime Minister.

It's a terrible indictment of the Conservative Party, and perhaps of the whole political system, that he ever came to power. As regards Brexit, specifically, it may be over-reductive to say that it wouldn’t have happened without Johnson, but he must have made a difference and, in such a close vote, even a small difference may have been decisive. It would certainly be untrue to say that he was alone in bringing grotesque dishonesty to the Vote Leave campaign, and for that reason it is hard to feel much sympathy for those ‘principled’ Brexiters who always knew he was ‘not one of them’. For they were happy enough to have him as their front man, just as those ‘liberal Brexiters’ who affect to despise Nigel Farage were happy enough with the votes be brought.

Leaving aside his role in the referendum, Johnson’s impact on how Brexit subsequently played out was utterly malign. Of the many examples that could be given, perhaps the most disgusting was what he did with the Northern Ireland Protocol, about which he lied to the electorate and to his own MPs and as a result of which he deeply damaged the UK’s international reputation and caused long-term harm to UK-EU relations. At the same time, he showed not just carelessness about Northern Ireland and its fragile peace, but reckless contempt.

The politics of damage limitation

Like the Windsor Framework, the tentative retreat from the REUL Bill is an example of repairing the worst of Johnson’s damage, as is the recent news that Sunak is seeking a new deal over passport checks. A report this week from the House of Lords European Affairs Committee points to further ways in which the UK-EU relationship could be improved, and the new EU Envoy to the UK has recognized that, post-Windsor, this is now a possibility.

These are all welcome things, so far as they go, but they amount to no more than damage limitation. And even the damage they are very slowly limiting is that of the way Brexit was done by Johnson and others – amongst whom should certainly be numbered Theresa May, whose early ‘red lines’ so constrained the parameters of how it was done – rather than the damage inherent in Brexit itself.

It is tempting to demand something better than gradual damage limitation from a future Labour government, but the biggest constraint upon that is the massive row that, under that or any government, Brexiter politicians and journalists kick up even at damage limitation, let alone anything bolder. It is they, as the instigators and defenders of Brexit, who bear primary responsibility not just for it having happened but for the political difficulties of addressing its failure now.

It is too much to expect it of Johnson, but if just one of the high-profile advocates of Brexit in 2016 had the honesty and courage to admit they had made a mistake that would help. To the extent that it might lead to more of them doing so it could make a decisive difference. Not one has done so. Until that happens, we seem set to limp on, a nation that has shot itself in one foot and is now trying to compensate by slowly fashioning a rudimentary crutch, all the time shackled and heckled by those who insist that to do so is a betrayal of hopping.




*As always, it’s more complex than this. One possibility is that the UK government decides to continue to recognize CE marking as valid for goods placed on the UK market as a whole (GB and NI). That wouldn’t mean scrapping UKCA marking but in practice, as with the baby food example, businesses would probably choose to use the CE mark. Another possibility is that UKCA marking will be required, but could be used without additional testing/ certification for goods which have been tested/ certified for CE conformity. There are also issues about what the fate of the planned UKNI mark will be. And there are different issues for, specifically medical devices. For an overview (though note it predates the most recent extension) see the briefing from Lexology. Clearly there is an interaction between decisions about product standards made in relation to REUL, and also those about whether to mirror (i.e. align with) subsequent changes in EU law, and if so in which areas, and those about conformity assessment testing, certification and marking. This whole area is a minefield and goes to the heart of the practical complexity of slogans about ‘taking back control’ and ‘sovereignty’, especially given the extensiveness of UK-EU trade and supply chain integration.

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