The House of Lords may be doomed, so reformers say, but it has a last chance to redeem itself. It is currently being asked to approve a Boris Johnson legacy, the retained EU law (revocation and reform) bill. This bill is so outrageously undemocratic that it would have been flushed down the loo by any parliament before the gutless one that Johnson ushered in after the 2019 election. It blandly states that some 3,000 to 4,000 statutes passed by parliament over half a century of Britain’s EU membership must now be rewritten by ministers, not parliament, or they will lapse at “sunset” on 31 December this year.
This is astonishing. At the time of Brexit, it was agreed that, in general, regulatory harmonisation with the EU would remain for the time being so that trade could continue. Such laws covered swathes of public life: farming, food safety, health standards, travel, animals, employment rights, water and air quality, tax liability, consumer protection, even civil liberties, indeed almost every activity that would benefit from what Margaret Thatcher hailed as the largest market in the world.
Hardline Brexiters, ever desperate to show their muscle, then drummed up the present bill to honour their desire for a bonfire of controls. Its architect was Johnson’s now out-of-office henchman Jacob Rees-Mogg, behaving like a teenager disconnecting a car’s brakes and safety devices before going on a joyride. Any MPs who dared to quarrel were charged as closet remainers. They passed the bill on a nod.
The implications of the bill have already caused chaos in Whitehall. Thousands of civil servants could be involved in a panic rush later this year. The business department spent £600,000 in two months on staffing costs alone to review the bill. The health department needs 100 officials to reform 137 acts. Environment and food is fighting its way through 1,100 acts, governing everything from quarantine rules to salmonella. Millions of pounds in costs are piling up. A few areas, such as finance, have been excluded as just too explosive to London’s now shaky future as Europe’s money market. The new Northern Ireland protocol, keeping open the Irish land border, will still require a regulatory morass somewhere on Belfast docks. You cannot be both inside and outside a market without paperwork.
Committee hearings in the Lords have seen ministers floundering at every turn. In effect, any acts not redrafted this year will be converted into executive decisions – “ministers will decide”. In other words, parliament’s role in scrutinising and passing legislation is passing to Whitehall.
Environment lobbies have been quick to declare this as glaringly undemocratic, not to mention dangerous. A legal opinion from a prominent KC has said the bill would allow ministers to carry out law-making “free of the effective scrutiny of either the electorate or of other members of parliament”. Laws fashioned on their whim behind closed doors cannot be considered “accessible, clear and predicable”. Citizens will not know from day to day if what they do is legal or illegal. This offends the most fundamental rule of law.
A bill that has passed the House of Commons with barely a tweak would now appear to be heading for a barrage of referrals to the supreme court. In that it is like Johnson’s previous attempt illegally to prorogue parliament. Rishi Sunak should clearly have killed it as he killed Johnson’s Northern Ireland protocol override bill.
What should the Lords now do? The answer screams over the rooftops. They should vote the wretched bill down and send it back to the Commons, like they used to do any bill that offended their ancestral self-importance. For 50 years, Britain has traded with its adjacent continent on the basis of these myriad acts of parliament. The most rudimentary self-interest begs them to be left alone.
A more limited proposal is one of desperation. It is for the Lords to postpone the “sunset date” of 31 December, for a fixed period or indefinitely. The bill will then go back to the Commons and almost certainly be delayed. At the extreme, the Lords should stall the bill under the Parliament Act. With luck, ongoing chaos in Whitehall will carry the sunset deadline over the next election and into a change of government.
There the whole Brexit fiasco will fall on the shoulders of Keir Starmer, whose spinelessness on the subject knows no bounds. With every corner of the British economy – not to mention much of public opinion – crying woe over Brexit, he goes into a huddle, mumbling about “red-wall seats”. As the prospective custodian of Britain’s prosperity, not to mention its constitution, he is cutting a pathetic figure.
Tearing up the Brussels rulebook was pure machismo. Those who challenge it are accused as backsliding, remoaning and boring. We now know what that accusation means: an almighty legislative car crash.
Simon Jenkins is a Guardian columnist
