Brexit means new legislation, but not everyone wants to warm their hands on a bonfire of EU rules
After Article 50, the deluge. The sheer volume of domestic legislation that will be spawned by Brexit is now becoming clear, after the government produced a user guide to the so-called great repeal bill. Research by the House of Commons library suggests that ministers could import up to 19,000 EU rules and regulations to the British statute book. Not all of it, as a government white paper made clear, is a cut and paste job.
Ministers are to seek “Henry VIII powers” allowing them to tweak legislation when the terms of Brexit are clear without the usual parliamentary scrutiny, including filling in some potentially big regulatory gaps.
The CBI employers’ organisation has estimated that Britain may need to set up domestic versions of as many as 34 EU regulatory agencies, covering areas such as agriculture, energy, transport and communications.
All of this has its source in the 1972 European Communities Act, which gives direct effect to EU law in Britain and is to be repealed. The legislative exercise to be undertaken by parliamentarians is a reminder of just how much British law has been made in Brussels in the last 45 years.
This was memorably described thus by Lord Denning: “When we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.”
On the face of it, this should be a great opportunity for MPs to set about getting rid of some of the EU legislation that has vexed business and Daily Mail leader writers for decades. This is, after all, supposed to be a great repeal bill.
They may be disappointed. As my FT colleague and lawyer, David Allen Green has noted: “The bill is not about repeal, at least not primarily. In a wonderful paradox, the bill will, in effect, be the greatest single imposition of EU law in UK legal history.”
Theresa May has already indicated that the great repeal bill is complicated enough without MPs using it as an opportunity to start cutting existing EU rules; she wants to copy the current rulebook across more or less intact.
There are several reasons for this. First, there is not time now for a bonfire of regulations; parliament will be completely bunged up by the great repeal bill and the 10 to 15 pieces of primary legislation covering areas such as customs and immigration that will be needed to implement Brexit.
Second, Mrs May fears that if Britain starts to diverge now from the existing EU rulebook, it will be harder for her to strike the free trade agreement with the 27 remaining member states.
Michel Barnier, the EU lead negotiator, made it clear this month that the EU27 would not allow their single market to be undermined by an offshore centre playing by completely different rules. “We must prevent regulatory dumping,” he said.
There is a third practical reason: business is not altogether sold on the idea of a regulatory bonfire, especially if it then makes it harder for exporters to gain access to the single market.
A CBI report published in December said that while many sectors including chemicals, plastics, food, drink and financial services lamented some costly EU regulations, they had all been incorporated already into business models.
“The view emerging in every sector is that these costs are largely sunk for current regulation and seamless access to EU markets is a prize worth paying for,” the report concluded.
Parliament may wish to strip away excessive regulations at a future date – not least those EU rules which were “gold plated” in Whitehall. But to use Theresa May’s words in another context: “Now is not the time.”