8th November 2022
Back in August 2016, a month-or-two after the Brexit referendum, I wrote the following at the Evening Standard:
“So extensive are the EU ties which bind the UK that they take at least a political generation to untangle. Gus O’Donnell, the former head of the UK civil service, has pointed out that it took Greenland, with a population less than Croydon and with only the issue of fish, three years to leave the old EEC. And in the Eighties the EEC was a far less complicated entity than the modern EU.
“Thousands of UK laws — nobody knows exactly how many — are based on EU law. Many of these laws only have effect because of the European Communities Act, which would need repeal or substantial amendment. Some of the laws have effect without any UK-implementing measure.”
The phrase I want to emphasise here is “nobody knows how many”.
Six years later, still nobody knows how many laws of the United Kingdom are based on the law of the European Union.
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This situation has to come to prominence because of the daft notion of the current government that somehow all the laws of the United Kingdom are based on the law of the European Union can be identified and replaced at speed.
The entire exercise is ludicrous, as well as probably impossible.
The idea can only have been conceived by someone with no real idea of how entangled domestic and European Union law was by 2016 (or 2019-2020, when we actually departed in practice).
It is not a question of simply going to a database and using the right search terms – say to find all the regulations made under section 2 of the European Communities Act 1972.
Even with those regulations many were revoked or amended other regulations – so that, without considerable time, you would never know the full extent of the entanglement.
Regulations were also made under other statutes, and much European Union law took effect without needing any local enactment at all.
And the important thing to note is that at the time – 1973 to 2016 – nobody ever thought the whole thing would need to disentangled, and so nobody thought to keep any track of it.
This is why, with the hurried departure of the United Kingdom after the referendum, the whole problem was kicked into the the future with the notion of “retained European Union law”.
Such a disentanglement could not be done at speed before departure, and for the same reason the disentanglement cannot be quickly done now.
It matters not that some politician confidently asserts that “something needs to be done” by some artificial “sunset” date.
And to the surprise of nobody who knows about European Union law, entire tranches of European Union law are still being found:
New – Bonfire of 2,400 old EU laws suffers new setback, as 1,400 more found by the National Archives. The 2023 “sunset clause” on death row (to relief of Whitehall and biz). Sunak’s promise to review or shred them all within 100 days already gone https://t.co/sBmRCBDKK0
— George Parker (@GeorgeWParker) November 8, 2022
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It will take a long time – perhaps decades, perhaps never – to unwind all the European Union law that had effect in the United Kingdom and replace or revoke it.
That is not a pro- or anti- Brexit statement, but the simple fact of the matter.
Some of these laws were championed by the United Kingdom when a member state of the European Union.
Some of the laws were hard-fought triumphs by United Kingdom ministers and officials.
Some of the laws are good and beneficial, and some are not good and need removing.
But this can only be done on a slow, methodical law-by-law basis.
As I averred back in August 2016: it may take at least a political generation.
The moment this is realised and accepted by the current government then we may be moving into a practical rather than an ideological understanding of our post-Brexit predicament.
That realisation, however, may itself take a political generation.
It is even likely to be a process on which the sun will never set.
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This reminds me of:
There was a young man from Capri
Who decided to empty the sea.
He dug for a while,
Then said with a smile:
“I’ll finish it off after tea”
However, that was a relatively harmless activity by comparison.
As a pragmatic Brexiteer, I couldn’t agree more with this post.
As DAG remarks, we were in the EEC/EU for 45 years – necessarily disentangling all those laws will take decades.
A number of other key points arise.
1. Not all EU Regulation is/was bad – indeed much of it is good & on sobre reflection we’d actually want to keep
2. Much of the Single Market Regulation is actually driven by ‘higher’ intergovernmental organisations at a global level such as WTO, WCO, ICAO, UNECE et al
3. This makes the EU a rule taker/maker in much the same way that UK is now a rule maker/taker from these self same bodies
4. The good news is that we now have a say /&veto in our own right on these global bodies – equally we the UK & EU are in their regulatory ambit whether we or the EU like it or not
5. Satisfaction ought to be had, knowing that the UK can now speak/vote for itself as opposed to being a compromise of 27 other member states. A rather nice by-product is the paradox that UK still has influence,in its own right on many emerging Single Market rules especially on WTO & UNECE ( viz, motor vehicle Standards & food safety (codex alimentarious))
6. Most remainers & Brexiteers fail to recognise this global regulatory framework generally helps/facilitates Global trade.
7. Getting out of the EU coffin is one thing – the second or double coffin lining will always be with us.
So,in summary – we ought not to diverge from global standards or from good EU Standards – over time ( decades) we can shape Global regulations in various fora that most suit the UK going forward.
Makes one wonder what/how Germany itself will change with its avowed new policy of Germany First.
John Jones sets out why remaining would have been the better option. ‘Will take decades’ and ‘the second or double coffin lining will always be with us’ sum up his 7 points nicely.
Oh Simon, it it were so simple life would be wonderful. It ain’t.
The EU dominated by the Eurozone was always more of a political façade than a trade facade. The EZ rightly had to put itself ahead of non EZ members & create EZ /EU policy accordingly – it was ( since Maastricht) always going be the stick that broke the camel’s back.
Combine the Single Market with unfettered Freedom of Movement (FoM) and 6m EU citizens who have pretty much the right to reside in the UK I can see others points of view.
Had the EU stuck to trade ( per EFTA/EEA) I suspect we the UK could have accepted the democratic deficit – unfortunately with the EZ and the overt political nature of ‘ le project ‘ the over-reach became to overt and burdensome.
“we the UK could have accepted the democratic deficit”
If the UK population had decent control of its domestic politicians, their representation of UK interests in supranational organisations would be democratically supervised. They don’t and it isn’t and there lies the democratic deficit. Look closer to home for the problem.
The straw and the beam, isn’t it?
I’ve met few people who think that a) the EU and its institutions are particularly democratic b) who understand, even partially the interplay between the Commission , The Parliament and The Council of Ministers.
The European Parliament must be one of the few Parliament’s in the world that cannot even propose legislation. It can only ratify that which it’s been given.
Most MEP’s are chosen from what are called Party Lists – this is the antithesis of representative democracy , the EC commission president is chosen in smoke filled rooms and they are usually compromise candidates and re-treads as failed national politicians.
An MEP has a constituency size of c. 670,000.
You can’t vote the Commission out.
Most key votes in the EU parliament and Council of Ministers are made by Qualified Majority Voting – this is gerrymandering of a high order to ensure that decisions are made – not that it is particularly democratic.
I’d be impressed if you could shed light on any processes that don’t have a democratic deficit.
“You can’t vote the Commission out.”
In 1999 the Commission had to resign en masse: https://researchbriefings.files.parliament.uk/documents/RP99-32/RP99-32.pdf
You don’t seem to be aware of this.
You also do not mention the European Council – of all elected heads of government/state, that sets strategic direction – at all. They are from elected governments and responsible to their own legislatures and electorates.
And you call the Council, the “Council of Ministers”, which is very old school – and you do not mention they too are from elected governments and responsible to their own legislatures and electorates.
Most key decisions are not made by QMV – indeed few votes are taken, as things tend to be done by consensus.
And like you, I have met few “who understand, even partially the interplay between the Commission, The Parliament and The Council of Ministers” – and I don’t think I have encountered another one today ;-)
I would say most people’s understanding of democracy in the EU, remainers and leavers alike, comes from Eurosceptic assertions about it. Few probably bother to check the claims made by the ERG and Vote Leave. In other words it’s misunderstood and completely underestimated.
Contrary to general belief, the EU is democratic. For example, the Commission is the executive and proposes legislation but that doesn’t become law until it is approved by the Parliament and the Council. Appointments to the Commission must be approved by the EU Parliament. EU member states remain sovereign.
In reply to john jones below:
You write as if the EU is a country. It isn’t. It is the construct and the instrument of 27 sovereign countries. Were the EU to have powerful democratic mechanisms of its own, it would inevitably come into conflict with the sovereign authority of its member countries.
All power ultimately lies with the individual countries. Some decisions are made by the Council on an ongoing basis, some have been permanently made by treaty (the decision to allow majority voting on matters deemed acceptable for such a mechanism being one of those).
I suspect your issue with the EU – and the issue of other Brexiteers – is you see international treaties as undemocratic because they cannot be revisited.
HMG is currently pushing legislation through parliament to renege on the Trade and Co-operation Agreement that was signed by the same government less than two years ago. HMG is currently also taking a Humpty Dumpty view of what the words of the Good Friday Agreement mean and indeed their favoured DUP has just introduced a bill in Parliament to override the simple majority provisions of the GFA by requiring a supermajority for any change.
And yet the UK would be outraged if Spain were to renege on the Treaty of Utrecht of 1713 ceding Gibraltar to Britain in perpetuity.
International treaties are for other countries to keep apparently. Buccaneers don’t do commitments. No wonder you found the EU such a bore.
Thank you and all others for taking the trouble to respond to Mr Jones. It’s much appreciated here.
The trade benefits of the single market and customs union were very real. As we weren’t part of the Eurozone we only saw the benefits of dealing with a single currency and none of the downsides of it.
Trouble is that whenever there is a disagreement between pragmatic Brexiters and the hardliners the hardliners win.
“1. Not all EU Regulation is/was bad – indeed much of it is good & on sober reflection we’d actually want to keep”
I invite you to identify any “EU” regulations which are self-evident candidates for the axe, John – from the point of view of the Man In The Street, rather than from the perspective of the special interest groups who are vested in this supposed “bonfire of EU red tape”.
Your point 5 is misguided. The EU is one of the big 3 political bodies for the purpose of international regulation (the other two being the US and China). Having influence over the EU position from inside is far more powerful than (as a single much smaller entity) trying to argue them out of their position once they have decided it. The global trade treaties tend to be a carve-up between the major blocs and other interests quite frankly don’t get much of a look-in.
And so where UK Trade Remedies Authority does make a change — on anti dumping measures, reducing the EU penalty by half to 10% – major protests from UK aluminium industry as per FT https://www.ft.com/content/d64fceb0-4475-4ade-8712-2a42135a860c
Hi David,
No ulterior motive in the following question and honestly not trying to cause a fight, more trying to test my assumptions as someone who voted Remain
From your pov, what’s the worst of the not good laws you reference above?
On which the sun will never set …
Perhaps the real brexiteer British imperial delusion?
“The day thou gravest Lord is ended, The darkness falls at thy behest…”
I agree with points 1, 2 and 3. We must be cautious about automatically discarding laws which are actually beneficial. The arch deregulators want everything gone ASAP because it suits them and their benefactors, not because it benefits the UK.
(4) We may have our own voice (or will have eventually) but being part of the world’s largest trading bloc gave us much more influence than we now have as an independent but declining economic power.
(5) Do we actually have an independent voice at the WTO yet? As I understand it we have simply rolled over what we agreed as part of the EU. In the fullness of time we will have an independent voice of course.
(6) I think most remainers were aware of this. Most Brexiteers still fail to acknowledge that the UK always could trade globally as an EU member. No UK trade deal signed since Brexit has given us more trade freedom than we had previously. The idea that we couldn’t trade globally was a chimera created by Euro-sceptics and the Leave campaign.
(7) Describing the EU as a coffin are hardly the words of a pragmatist.
Points 4. and 5. are valid – it’s part of the ( my) homework.
We do have a voice & we have a vote ( it’s soft- hard power in action) – why do you think the EU wishes to become part of the UN permanent security council & move from observer status at the IMF?
Point 6 – you’re conflating the EU Customs Union – in the EU CU we couldn’t strike what are called Free Trade Agreements because of the EU Customs Commercial Policy.
As we became aware of the EUs growing political power and need to keep the euro project alive, it was ever more evident via the Eurozone caucusing and vastly increased use of Qualified Majority Voting that were always going to be out of step with the remorseless integrative EU.
Brexit was last chance saloon – time to make it work even within the double coffin lid.
The current Government has trashed our soft power. We are a joke these days, and no one will trust our word on any future agreement.
We have a voice, we’ve always had a voice, but our WTO terms are no different than they were previously. We can change them but will we bother.
All this for utterly futile aims which only benefit the rich and powerful by permitting drastic deregulation. A travesty of the false claims that the EU was the reason our economy was failing when the true reason was austerity.
Please explain the point about the IMF – the UK always had a vote as do the 27 EU member states. So the UK’s soft power hasn’t changed here (if anything one could argue that it stands a smaller chance now of convincing the 27 to vote its way).
In Luxembourg, income tax is still levied on the basis of German law which was extended to Luxembourg during the occupation in WW2. That was about 80 years ago …. The successive Finance Ministers from different parties have never seen the need to wake that particular sleeping dog.
Don’t the fantasists know that in any case our current laws evolved from those brought from foreign parts in Normandy back in 1066?
It’s hardly surprising this undemocratic and damaging process hasn’t been thought through. Nothing about Brexit has been. Yet on it must go, driven by the urgent need to find the benefits Brexiteers promised the voters in 2016. Benefits proving to be as elusive as unicorn droppings.
We only left the EU, proper, after an 11 month transition ( rightly so if it was longer as pushed for by the euphiles Benn/Cooper/Letwin we’d have still been subject to EU law, no vote/no veto for another 12 months).
We effectively left the EU on 1st Jan 2021, barely 19 month’s ago.
The realistic/pragmatic Brexiteer’s thought the political & economic benefits would come into play 5-10 years down the line – just got to have patience & a level of fortitude.
Live in hope and die in frustration – is that a policy?
Rees-Mogg said it could take decades to see the benefits. Ten years sounds very optimistic. And to see net benefits we will need to replace what has been lost in trade with the EU with something better. The best Brexiteers can come up with is joining a trading group in the Pacific region. 12,000 miles away. Fine for large exporters but the small companies who’ve stopped exporting to the EU won’t benefit. Oh and we will need to lose sovereignty to join the group.
What makes you think the UK can do better with more distant trading partners, many of whom have much lower labour costs?
Meanwhile we will have had at least ten years of losses. Why go through all that because some people thought the EU was a coffin? Most of us now want to rejoin.
I don’t recall any mention of ‘10 years’ for the benefits of Brexit to materialise.
In fact 50 years! See Huffington Post and Guardian July 2018:
“Jacob Rees-Mogg Says It Could Take 50 Years To Reap The Benefits Of Brexit
‘We won’t know the full economic consequences for a very long time,’ says leading Brexiteer. … Rees-Mogg: “The overwhelming opportunity for Brexit is over the next 50 years.”
and
“According to one of the most prominent Brexiters, Conservative MP Jacob Rees-Mogg, we should see the benefits of Brexit in about half a century. “We won’t know the full economic consequences for a very long time,” he said. “The overwhelming opportunity for Brexit is over the next 50 years.”
The ten years was mentioned by John Jones in comments under this blog.
I know! I must have replied in error to you not him.
There wasn’t and JRM only mentioned “decades” aftrer the referendum. John Jones mentioned his estimate of ten years in his comment that I was replying to.
“……entire tranches of European law are still being found” over six years since you voted to leave !
“It will take a long time -perhaps decades…….to unwind all the European Union law…….”. Some of the laws too might “perhaps never “ be unwound !
Having shown your post to some Europeans tonight it is a source of some ribaldry . One has even opined that if you wish to continue using Eu laws for the foreseeable future then perhaps you should be paying some sort of licence fee ! The use of the word “tranche” also caused amusement.
When I suggested he was being “ludicrous”he laughed even more.
This is how the UK is viewed by many over here.
This is not an isolated incident.
Ireland, despite having independence since 1922, still hasn’t replaced all its British and English derived laws. Here’s the 2007 statute law repeal act, which preserves all sorts of historic legislation, including multiple Magna Chartas.
https://www.irishstatutebook.ie/eli/2007/act/28/enacted/en/html
And that is just the legislation. There are other sources of law in a common law country.
The USA declared its independence in 1776, but still the US Supreme Court refers to UK laws, cases, and legal commentaries. Henry de Bracton, Coke, Hale, Blackstone, and Magna Carta, all made appearances in the Dodds decision.
Even if the UK manages to restate, replace, amend or abolish all retained EU law by 2023 or some later date, domesticating it entirely, the UK courts would still be looking at how laws derived from EU rules were interpreted by the CJEU, even if those court decisions are not strictly binding.
In much the same way as UK courts will continue to have regard to rulings of the ECtHR, whatever happens with the Bill of Rights Bill.
Brexiteers are like a retreating army; unable to win, they leave land mines behind to ensure that their scorched earth policy thwarts any possibility of a peaceful life.
How’s Steve Baker going on with ‘softening’ the asbestos laws?
I feel we should not waste time looking in dusty corners for EU remnants. An ad hoc approach if we must.
More widely I suspect we are into diminishing returns territory. We have most of the good things on offer, keeping them is the problem. The more we mess about the more likely we are to muck things up. As they say in the building trade, measure twice – cut once.
To John Jones. At last a brexiteer who doesn’t use vacuous ”sunny uplands” motherhood and apple pie language to describe the benefits of brexit. Since you have given much thought and consideration to the tangible and measurable political benefits of Brexit, I (we) would be grateful if you could spell out the tangible and measurable nett economic benefits of Brexit, which you believe will transpire in the next 5 to 10 years. Nett of course implying that benefits gained are also at a cost of benefits lost ( OBR forecast of 4% loss of GDP being at least an initial cost hurdle). I would also like to know your thoughts on the economic consequences of the counter factual that had we not been in the EU then there wouldn’t have been 6mio EU citizens settling in the U.K.
Agreed. Indecent haste so they can say that Brexit is finally done and dusted. There is no sense in our politics anymore.
Would it not be better to forget the history (as Trump would say, the referendum was a fraud) and merely consider each law on its moral and practical merits?
I signed up for a new accounts package yesterday and going through the terms and conditions it stated that the terms were governed by English Law. I’m in Ireland so where does that leave my company regarding GDPR if they decide to throw away protections?
The idea that all EU-based law is bad and therefore instantly discardable was always stupid and impractical, designed to appeal to those to believe in the existence of simplistic solutions to complex problems.
Many EU-based laws (on asbestos, to take an example I’ve seen on twitter lately) are a response to a real issue, and had there not been an EU law we would have had to write something similar for ourselves. It’s clearly not a good idea to abandon all regulations for the safe handling of asbestos just because the law was written by the EU.