One of my jobs in the then Foreign and Commonwealth Office’s European Parliamentary and Communications Department was EU scrutiny. I wrote about this role which ensured EU decisions were scrutinised by the UK parliament (see link below). All draft decisions were sent to me to be analysed by the relevant government departments depending on subject matter. These exploratory memorandums, ie reports, were then sent to the two UK European parliamentary committees for scrutiny. My team was also involved in the compilation of the Balance of Competences Review which I will describe in this article.
UK planning to scrap thousands of EU laws
According to UK in a Changing Europe, fellows Sara Hagemann and Simon Hix, the British government has only voted ‘No’ to laws passed at EU level on 56 occasions, abstained 70 times, and voted ‘Yes’ 2,466 times since 1999. That means that the UK was on the winning side 95% of the time.
This is just counting votes in the EU Council of Ministers, which passes most EU laws jointly with the European Parliament. In fact, a large number of laws were actually proposed by us in working groups.
Now, the government is planning to scrap thousands of EU laws, despite the fact that they often had been proposed to the EU by the UK and all have been scrutinised by the UK parliament. In his article in The Times on 4 January 2023, Daniel Finkelstein argues that “Scrapping thousands of laws this year, as Jacob Rees Mogg is trying to do, would be foolish and deeply anti-democratic”.
Lord Finkelstein is talking of the retained EU law bill (REUL), criticised by several expert lawyers and by various environmental organisations such as the RSPB who write,
“We are extremely concerned that the Retained EU Law Bill threatens the UK Government’s ambitions – especially its target to halt the decline of nature in England by 2030, as clearly set out in the Environment Act.
“We are also concerned that thousands of pieces of vital legislation could face repeal by the end of December 2023, not because they are “bad” but solely because they are derived from the EU. This makes no sense, regardless of how people voted on Brexit.”
Dominic Grieve QC writes,
“The Bill, which is currently going through Parliament, gives ministers the power to scrap or amend up to 4000 pieces of legislation which the UK helped to create as a member of the EU, and to do this with minimal parliamentary scrutiny.
Yet these laws help give structure to our society, protect us in the workplace, the safety and quality of our food as well as nature and our environment.”
Apart from my own experience of scrutiny of EU laws by the UK parliament, what do we know of what competences the UK gave to the EU? Did EU membership really mean we were dictated to by Brussels?
Balance of Competences Review
Not many people are aware of the fact that, before the 2016 referendum, the government initiated a massive and high quality research study called the ‘Balance of Competences Review’. This thorough, independent enquiry into the workings of the EU consisted of 1,500 submissions of evidence, ending up with 32 volumes and 3,000 pages of analysis with the findings. This exercise was meant to foster evidence-based policy-making regarding our future with the EU.
The Centre for European Studies (CEPS) with a group of researchers has done an analysis of the first publication of the enquiry. The essential finding was that the scope for renegotiation with the EU was very limited because of the UK’s opt-outs from the Eurozone and Schengen, and our special deals, notably for the budget rebate.
“…And the evidence came up with not one EU competence for which there was a case for its repatriation, because many of these powers are actually ‘shared’ with the member states, and the actual balance of shares was found to be mostly ‘about right’.”
In their second report, a new publication by CEPS, they found that
“the case for repatriating competences from the EU back to national governments is not supported. Moreover, this sample of eight reports illustrates how the UK’s interests have been positively served by EU policies that it prioritises, while the UK has in other cases profited from the EU’s exceptional flexibility in agreeing to various opt-out and opt-in arrangements tailored to British demands.”
CEPS stressed that:
“Mrs Thatcher’s nominee to the Commission, Lord Cockfield, was principally responsible for reforming single market policy, by introducing the principle of mutual recognition of standards for traded goods, allowing for less reliance on harmonising legislation, and thus serving as a model case of decentralisation…
“Agriculture and fisheries have long been the staple diet of critics of the EU. But agricultural policy has been substantially reformed since the 1990s, with a categorical shift away from production support to income support, such that ‘butter mountains’ are a thing of the past. The fisheries policy was drastically reformed in 2013, such that ‘fish discards’ are now also a thing of the past. In all of these three cases (single market, agriculture and fisheries), UK negotiators were clearly punching above their weight.”
In environment and research, the Balance of Competences Review found that in both areas the UK has a leading and positive role, either as a driver of policy development (environment), or as a major beneficiary of EU programmes (research). There is therefore a good fit between UK interests and EU activity in these fields.
The report debated the alternatives to EU membership in the external trade area in meticulous detail. The review found the options to be unattractive.
Impact of secession on British business
Most importantly, CEPS said,
“There was one further question that was not addressed in the Balance of Competences Review, but which is of cardinal importance. What would the consequences of secession be for British business? Polls of business leaders show overwhelming majorities that fear negative consequences…
“In addition, the CEPS study adds to the evidence on this topic by looking at the legal consequences of secession like the REUL is planning. In a nutshell it would be a huge legal mess as thousands of laws on the UK statute book that are at present implementing EU legislation would be instantly repealed on the day, unless the government chose to reinstate them without delay to avoid a legal void.”
REUL is based on simplistic populism
The REUL is based on the huge chasm of mutual incomprehension between informed stakeholders and leaders of Eurosceptic populism. The current government are making extremely simple arguments that the EU has taken too many powers. However, this argument on EU competences relies more on uninformed arguments and myths, rather than the realities which the Balance of Competence reviews have painstakingly documented.
Burying the result of the Balance of Competences Review
The European Union Committee of the House of Lords in 2015 accused the government of attempting to “bury” the results of a report on the UK’s relationship with the EU after it found no evidence of excessive interference from Brussels.
Speaking to the Observer, the chair of the committee, Lord Boswell, said none of the 32 chapters “demonstrated that too much power resided in Brussels”.
“There is no point spending up to 5 million pounds of public money on an excellent review, and then burying it. People need to know the facts about the UK–EU relationship”, said Boswell.
Peter Wilding, of the pro-EU campaign group British Influence, also criticised the lack of visibility for the report. “There has been to date no publicity exercise promoting a public debate about the findings. It’s as if it hadn’t happened. Businesses, amongst many other organisations, spent time and money on contributing to the review only to find that all their work and £5 million of taxpayer’s money were effectively binned.”
Speaking to the committee later, the UK Minister for Europe, David Lidington confirmed the government had spent no money publicising the report, except for the cost of printing.
One has to wonder whether the referendum vote would have been very different, if the government had published the evidence of this review more. If people knew that EU laws underwent thorough scrutiny in the UK parliament, would it now be so easy for the current government to plan to scrap 4,000 laws by the end of this year?
A scattergun approach
Evidence submitted to the European Parliamentary committee by UK in a Changing EU warns that:
“[The government] plans to introduce sunset clauses for up to 2,400 pieces of inherited EU legislation, imposing an expiry date by which point ministers must decide whether to keep, amend or remove said law. This is a scattergun approach which prioritises breadth and speed over precision and strategy. It will incentivise officials to repeal legislation without the time to consider fully the consequences or to design a viable replacement, and create huge administrative challenges for business who will have to adapt to a swathe of new regimes at very short notice. This risks making the disruption created by the new UKCA regime look insignificant.
“On top of this, it is a major demand on civil service time. Brexit has already created a wide range of new responsibilities for the civil service – from servicing the TCA, to managing more policy areas and taking greater regulatory responsibility for everything from medicines to manufactured goods and the environment. Given the wider intention to cut 20% of civil service jobs, pursuing such a wide- ranging review of EU regulation will mean significantly diminished government capacity to focus on other issues.”
Fight back to REUL
An article in The Guardian reports that there is a fight back to the REUL plans by cross-party MPs, tabling amendments to ensure that MPs and not ministers would take decisions on which laws to retain. “Conservative MPs backing the amendment include David Davis, a leading Brexiter, Robert Buckland, a former justice secretary, Dan Poulter, a former health minister, and Caroline Nokes, chair of the women and equalities committee. Other MPs include Hilary Benn, the Labour MP and former shadow Brexit secretary, Sarah Olney of the Lib Dems and Brendan O’Hara of the Scottish National party.”
Was the whole argument for Brexit not based on wanting the UK parliament to have a stronger say?