EU Referendum

Brexit: regulatory space


Foreign Secretary Johnson, it seems, is having a little difficulty coming to terms with the fact that he is a cabinet minister, bound by the doctrine of collective responsibility. In a distinctly un-cabinet-like move, Mr Johnson has fronted the launch video for a new campaign group on Brexit, extolling the virtues of gaining control over "laws, borders, money and trade".

Like most mantras, this is almost completely meaningless but, of all the ideas associated with Brexit, perhaps the least helpful is the assumption that, on leaving the EU, we will be able to "restore UK control over our laws".

Leaving the EU, it has been asserted, would restore parliamentary sovereignty, returning power from Brussels to Westminster so that the decisions that affect our lives are made by politicians who we can hold to account by kicking them out at a general election.

Without even the intervention of Brussels, though, this represents a somewhat rosy view of the role of parliament and elected politicians. By far the bulk of legislation is passed into UK law via the Statutory Instrument (SI) route. For instance, in 2015, there were 2,058 SIs added to the statute book, compared with 37 UK Public General Acts.

Most of these SIs are approved by negative resolution, which means they become law automatically, without a vote or debate, unless there is a majority vote against them. Such votes are extremely rare, the whole SI system representing a massive increase in power for the executive and a commensurate weakening of parliament.

As to the original sources of the legislation, these can be many and varied. They might start as recommendations or policy decisions made by home departments, made to implement aspects of domestic administration – anything from modifications to free school meals entitlement, to road closures and pension arrangements for firefighters.

On the other hand, they may be implementing EU requirements, although this is not always evident, especially as many of the SIs are hybrids, covering EU and domestic matters, with none of the origins identified.

But even if they are dealing with issues which come from Brussels, that does not necessarily mean that the law is of EU origin. In many instances, Brussels may be acting as an intermediary, implementing recommendations from global or regional bodies, very often agreed upon by treaties.

As interdependence becomes the norm, with nations binding themselves to certain courses of action by way of treaties, more and more of the legislative programme is determined by the need to honour treaty obligations. In theory, parliament can block the ratification of treaties, but rarely does. It is thus ceding power to international bodies.

Some of the more pressing issues of the day, such as tax avoidance by multinational corporations, or the regulation of global industries such as financial services, can only be dealt with by cooperative action between nations (and blocs such as the EU), even without the benefit of treaties. Thus, while parliament might be free to legislate in such areas – or block action taken by the executive – to do so could be against the national interest. Thus, it rarely intervenes. 

At several levels, therefore, parliamentary sovereignty is a chimera. Much of the sovereignty, in terms of routine lawmaking, has been usurped by the executive – to which MPs seem largely indifferent. And those that come to us via Brussels do not necessarily originate with the EU. Where they are treaty based, they would have to be implemented anyway, regardless of EU membership.

Then, where the exigencies of the day require cooperative action, with agreements made between national executives, parliaments are often relegated to impotent observers, often unaware of events until after action has been taken.

By and large, MPs often do not even know the origins of the laws of which they complain. This is typified by the absurd posturing over the so-called "banana directive" and the "straight cucumber" law. Although attributed to the EU, the one originates from the Codex Alimentarius Commission and the other from the United Nations Economic Commission Europe (UNECE).

Even were some powers to be recovered from "Europe", the actual changes would be slight because, despite the perception to the contrary, the "regulatory space" occupied by the EU is relatively modest. Much of the law apparently originating from the EU actually stems from "higher" global bodies.

On that basis, it would appear somewhat over-optimistic to expect withdrawal from the European Union to resolve the issues relating to the loss of parliamentary sovereignty. If anything, the limited regulatory space remaining to the EU confers on withdrawal only a symbolic element.

Parliament, over many years and in many diverse ways, has allowed its powers to ebb away, to the extent that it has become a weak institution, with very little power and little relevance to the concerns of ordinary people.

Even where there remained some degree of regulatory autonomy, the need to ensure regulatory convergence between trading partners and to avoid two-tier codes suggests that voluntary harmonisation would drive much of the regulatory programme.

The pursuit of a greater degree of parliamentary sovereignty, directed exclusively at recovering powers from the EU, therefore, is likely to yield slim pickings. And, inasmuch as UK legislation can be as unsatisfactory as some EU law, there is no particular guarantee that the regulatory environment will be noticeably improved.

Nevertheless, the likes of Mr Johnson and his cronies will continue to trot out their mantras, selling the bankrupt idea that the "restoration of parliamentary sovereignty" will bring us anything worth having.

But, like the non-existent £350 million a week "Brexit dividend", in due course we will find that Brexit brings with it very little relief from regulation – burdensome or otherwise. What we then might realise is that something else is needed.

That, though, is another story.