The purpose of this contribution is to explain the recent controversy regarding removing EU law from the UK statute book, and to set out why it should be seen as a somewhat absurd distraction.
UK Control of Retained EU Laws
In an analysis adopted by the United Kingdom Supreme Court in the first of the two cases brought by Gina Miller, the European Communities Act was a conduit through which EU law became “an independent and overriding source of domestic law.”
The first aim of Brexit was to severe the conduit so that no more EU law into the United Kingdom by virtue of a European legislature of superior status to the UK’s own national and devolved legislature.
The second aim was that the United Kingdom legislatures should exercise their authority in the areas that were previously fields occupied by European law.
It is all very well setting a target to remove EU law from the statute book as a Brexit target, but this forgets that reclaiming sovereignty is inherently neutral about how that sovereignty is to be exercised. All European regulations exist for a reason. With many regulations there will be those who like the idea, and those who object. That support or opposition will not always come from the same sides of the political spectrum. Some regulations will have universal support, and others may have universal indifference. Brexit does not have anything to say as to what should stay or go.
Nor, it must be said, does the logic of Brexit have anything to say about legislative priorities. Governments and parliaments always have to choose what law reform they wish to prioritise, as it is impossible to find the time to everything all at once.
This is why recent headlines such as “Whitehall ‘blob’ thwarts bonfire of Brexit laws” should be a matter of deep frustration for supporters of Brexit, but not for the obvious reason. It is rather an unnecessary demand to eliminate all sign of EU membership from the statute book has led to an entire self-inflicted bad-news story for Brexit. The extirpation of all signs of EU legislation was always apt to look petty and even spiteful; and to declare this goal and fail as served to make Brexit look weak and failing.
A more modest and accurate approach
The truth is that it was enough that the conduit pipe for new EU law was cut.
Having removed the supreme EU legislature from creating new laws in Britain – subject to the Northern Irish Protocol, unfortunately – reform form of the pre-existing EU law is now no different to any matter of law reform. It is not an end in itself, but a question of whether changes are important enough to give departmental, ministerial and Parliamentary time. So when the Business Secretary, Kemi Badenoch, talks of focusing on prioritising reform, this only looks like a defeat because of the foolhardy declarations that EU law would be repealed or replaced in its entirety.
The new position is to treat the reform of pre-existing EU law as it should be – a decision as to what in our statute book needs to change, and which changes deserve priority.
Example of Ireland
It is instructive that the Irish statute book still contains a very significant amount of pre-Independence legislation. The Irish Free State and the later Irish Republic did not rush to remove the laws of what they saw as an illegitimate and colonialist Westminster Parliament. It was only with the Statute Law Revision Act 2007 that Ireland enacted a law that repealed all pre-Independence statutes save those listed in that Act, and thus made absolutely explicit that the authority of that legislation came from the post-independence Irish legislature.
If the Irish could take such a long time about de-Anglicising its statute book, then supporters of Brexit can be more relaxed about de-Europeanising the statute book of the United Kingdom.
A country that is comfortable that it is in control of its own laws does not need a symbolic purge of the ancient regime from its statute books in order to prove it.
The only actual defeat would be if the Opposition were to have their way. Just as it is foolish to remove retained EU laws for the sake of it, it is an abdication of the control given by Brexit if we retained EU laws for no better reason than a desire keep our statute books aligned in order to make re-joining simpler and faster.
By Titus, a junior academic who wishes to remain anonymous