The Brexiters are getting their bonfire of EU law – and democracy will lie in the ashes | Rafael Behr

The sign on the door says “Brexit delivery department”. Inside, an official fetches boxes overflowing with documents labelled EU red tape and EU legislation. A pause; a grunt of consternation; a cracking of knuckles. Then, to the exultant strains of Beethoven’s Ode To Joy, the papers are fed into a shredder.

The video wasn’t subtle, but subtlety isn’t the field where Tory leadership races are run. Rishi Sunak was losing and he felt his campaign lacked the happy clap of Brexit evangelism. So he pledged to review or repeal every bit of retained European law lurking in British statutes within 100 days of taking office.

No one who has thought seriously about that task thinks it can be done safely at that rate. It is easy to do recklessly, without caring whether the old rules served any purpose – environmental and consumer protection, for example; workers’ rights; the provision of legislative certainty for anyone wanting to do business on both sides of the Channel.

The job could be done in just a few months only by someone who believed that all laws with a trace of continental provenance are mutant deformities on Britain’s indigenous constitution; that total eradication is the only remedy; also that parliament should not bother itself with the detail. Ministers, armed with sharpened statutory instruments, could gouge out the bad stuff and fill in the gaps with whatever better suited their taste.

If Sunak doesn’t believe those things, he is running out of time to say so. The 100-day pledge was abandoned, along with the rest of his failed leadership manifesto, but the purge will happen anyway under the retained EU law (REUL) bill, which is being debated in the Commons on Wednesday.

The plan was conceived when Boris Johnson was still in Downing Street and advertised as a “Brexit freedoms” bill. The branding expressed a dogma. The law would complete the nation’s revolutionary emancipation from foreign vassalage, break the shackles of bureaucracy, releasing the captive spirit of national enterprise.

For adherents to that creed, the task became more urgent as the Conservative poll ratings tumbled. Dread of a Labour government made it vital that legal bridges to Europe be burned. Liz Truss gave the matches to Jacob Rees-Mogg, appointing him business secretary, thereby ensuring that the task would be handled with pyromaniac disregard for consequence. As soon as Sunak was confirmed as Truss’s successor, Rees-Mogg quit the cabinet. By then the tinder was already lit.

There is consensus across Westminster that something like the REUL bill is needed to update the legal edifice amassed over decades of EU membership. But only fanatical Europhobes and acolytes of deposed Tory leaders believe that speed, unaccountability and contempt for detail are the essential requisites for the job.

Even business leaders who are supposed to benefit from deregulation say they would prefer continuity under a government that understands the rules to yet another spasm of ideological caprice.

The bill sets the end of this year as a deadline for revising or erasing EU law. Anything that isn’t dealt with in time is expunged automatically. The government has counted 2,400 affected pieces of legislation, but the national archive has unearthed another 1,400. No one knows the exact total, nor what or who might fall into the legal sinkholes that would open when some of these statues vanish.

On Wednesday, MPs will also get to vote on a cross-party amendment that would require the government to publish an audit, so the Commons might know which laws are being changed before the change happens. It isn’t a lot to ask given that Brexit was sold as a restoration of sovereignty to parliament and not – as conceived in the REUL bill – a waiver of parliamentary scrutiny, short-circuiting the legislature so governments can rule by decree.

A minister (or in some cases, a devolved administration), could “by regulations” dictate into law something that “corresponds” or “is similar to” the European rule being supplanted. The nature of that similarity is a matter for ministerial discretion. MPs could only object by way of the tiniest and most labyrinthine of all parliamentary procedures. Effective scrutiny is zilch.

There would be some limit to the magic in the ministerial pen. It could not be used to write anything that increased the “regulatory burden”. This is defined as anything imposing a cost or bringing an obstacle to “trade, innovation, efficiency, productivity or profitability”. The road away from Europe must be one-way, and paved to the lowest possible standard.

Some of this stuff will be knocked out in the Lords. By a now familiar quirk of British constitutional process, the unelected chamber will take up cudgels in defence of representative democracy because the Commons is stuffed with people who haven’t noticed the assault or are too frightened of being called remainers to fight back.

Partisans of the bill are relying on that fear to cow their critics. They want the battle to feel like a re-enactment of old Brexit campaigns. Any objection will be construed as a treasonous manoeuvre to restore the deposed Europhile ancien regime.

The ultras will invoke the will of the people, brandishing the referendum result and Boris Johnson’s landslide election victory as the ace and king of trumps. And they will know that Sunak feels vulnerable on that front because the mandate on his shoulders is a hand-me-down from leaders who won their elections. They know that he dreads being called a Brexit betrayer, and that the charge would stick if the prime minister appeared to be dragging his feet in the deregulatory freedom parade.

To keep the revolutionary fire burning, the hardliners must mine Sunak’s discomfort. They must prey on his dread of being called a heretic, because the evidence of recent years makes too strong a case for doing the opposite of whatever they propose. The idea that Jacob Rees-Mogg still has a useful contribution to make to national policymaking can be refuted by pointing to his endorsement of Liz Truss.

That isn’t a move Sunak will play. In the summer of 2022 he was all for feeding laws indiscriminately into the shredder. Or rather, he was all for saying whatever he thought the high priests of Euroscepticism wanted to hear from a man whose piety was in doubt.

Now he is prime minister the stakes are higher. The bridges are burning. If the flames are not doused the damage could be incalculable, literally, in the sense that no one knows what will be lost in the conflagration. Except for one thing that is sure. The claim that Brexit was ever about parliamentary sovereignty or democracy will be a charred, smouldering ruin.


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