This week in Brexitland, January 5, 2023

What are the actual dangers involved in eliminating all retained EU law come December 31, 2023?

The worst thing about Brexit is that it has hardened over time into a dogmatic religion, with lots of bits that are taken on faith and when examined for even ten seconds, make no sense. Take the way the sovereignty issue has developed since 2016. It was barely mentioned during the referendum campaign - in fact, it was never explicitly discussed by any Leave group whatsoever at the time. Oh sure, sovereignty and the need for it in order to accomplish the things set out by Vote Leave and Leave.EU as goals was implicitly required (such as getting the EU courts out of all possible UK affairs, for instance - although as the NI Protocol demonstrates, even that wasn’t really possible in the end). Yet the S-word itself, I can’t find anywhere in the campaign propaganda of the period. Strange, given I’m always told by Brexiteers it was the only reason anyone voted to Leave.

Despite not being talked about in 2016 when we had the vote, sovereignty in the purest conceivable sense has become the dark heart of the Brexit religion now. It’s possible that this is because it is all they have left now, given the US trade deal didn’t work out, nor did the whole turning the NHS around thing, nor most of what they promised in 2016 for that matter. The fact that “we must always rule ourselves with no compromise” - except when the markets dictate our behaviour as a country, or when we bump up against any other large force in an unpredictable world, something that happens all the time - has become Commandment One on the stone tablets of Brexit.

The greatest expression of the sovereignty nonsense to date is the Retained EU Law (Revocation and Reform) Bill which is set to go through the House of Commons. The idea of this is to strip out any law derived from the EU during our 47 years of common market then EU membership that “we don’t require”. Or, possibly change these laws to fit the UK better, if that’s the case. I don’t really have a problem with this idea in a post-Brexit Britain; if we have to be out, we can at least make it as easy as possible to carry on. The issue arrives with the sunset clause contained within the bill; the part of the proposed legislation which says that if we haven’t figured out what EU derived laws to keep and which to junk by December 31, 2023, we simply get rid of every single law that is in any way touched by the hand of the EU that hasn’t been reviewed by anyone yet.

What this means in practice is, the government has to actively retain anything that is EU derived on the statute and if they miss something, it disappears entirely. This is one of the many reasons why sunset clauses on laws are usually a terrible idea. If something shouldn’t be there, either amend it or get rid of it via primary legislation; if it’s fine as is, whether it came from the EU or not should be irrelevant. I mean, you can still be die hard on the whole sovereignty thing and see my point here - you may feel like the UK should never have allowed a supranational structure to pass along laws that apply to the United Kingdom, but that doesn’t mean that sometimes, those laws might not have been what was right for the country, then and now.

The sunset clause idiocy has been swirling around on the right for a long time. It has almost always been advanced, in my experience, by very, very, very wealthy individuals who became that way via playing the market and thus they have no idea of how actual businesses selling goods or services function. In fact, that’s unfair - they have less than no idea about how businesses function because they are so convinced that they have first hand knowledge of this when they have none. Anyhow, since they don’t know how regulation works in the real economy, they cannot understand why axing it willy nilly would be a bad idea. It helps that they tend to be libertarians of the most obnoxious type.

We get most of our employment rights via EU-led initiatives. So, mandatory holiday pay, maternity pay, safety in the workplace - I could go on and on and on. Now, one can argue that we joined the Common Market in 1973 and times have changed a lot since then and had we never joined the market, we’d have put in place most if not all of those things without EU prodding. But here’s the thing - even if that is true, if you get rid of retained EU law without saving all of this stuff, the sunset clause blows it all away so that it is no longer law in the UK. Our rights evaporate next New Year’s Day, automatically as a result of the bill.

One could argue that the Tories would never allow employment rights to just get swept away via the sunset clause. They would be paying electorally for a generation if they allowed that to happen. All right, maybe so. But there are many, many less obvious things covered in retained EU derived legislation and it won’t be obvious what some of them are until the sunset clause has removed them. Whole industries could be left in no man’s land. What the libertarian hedge fund managers who advanced the sunset clause theory in the first place fail to appreciate is that good and even absolutely necessary regulation exists. Not just from a left-wing protection of workers angle but from a centre-right, making business easy and doable viewpoint as well. Regulation, when well written, allows the honest to prosper in the market while the cowboys get shut down. Remove stuff for the hell of it - which is what the sunset clause amounts to - and you can end up with all kinds of problems, ones that can seriously damage the British economy.

More than that, I see the Retained EU Law (Revocation and Reform) Bill as just the latest failure of liberal conservatism, a tradition that, if you put what it seeks to achieve down on paper, I’m not only fairly happy with, I could be described as being within its ranks. A belief in personal responsibility, but with the understanding that some people are unlucky and that needs to be considered. A feeling that capitalism has huge benefits, but also large downsides that can be ameliorated via social democracy. A balancing of the freedom of the individual with the need for collective rights (which when done correctly, pays forward and rewards the individual). A belief in the value of institutions.

However, when I look at the actual history of liberal conservatism in action, it seems to be a never-ending tale of crumbling completely to the hard right whenever a conflict occurs within conservatism. There is this constant feeling of “We must keep the headbangers happy somehow”, even though the headbangers are never, ever satisfied, regardless of what the liberal conservatives do to try and appease them. It’s like the liberal conservatives are in an abusive relationship with the hard right that they can’t even admit has its distinct downsides.

That’s what we’ve got now in Rishi Sunak. Someone who is another in a long line of self-serving liberal conservatives who want us to see them as the sane, stable type while they are busy giving big jobs to the looniest of the right-wing loons. That’s exactly how you end up promising to get rid of loads of laws you actually require, just to keep a group of people who are genetically incapable of being happy happy. And further, how you eventually make yourself unelectable.

Thanks for reading and happy new year. If you haven’t subscribed yet, please do and I’ll be back next week with the worst of Brexit.