Thread by @pmdfoster

My latest #brexit briefing…on the risks of doing away with EU law via @FT.

While everyone scoffed about pint pots and imperial measures last week, ⁦@DavidGHFrost⁩ was making a potentially big move that is worrying legal experts. Stay with me/1 on.ft.com/3EKQCsH

@FT @DavidGHFrost So what's this all about? Well, you'll remember that list of 'freedom' dividends that Frost announced as a follow up to the TIGGR report on deregulation...some trivial stuff, some more substantive bits, but easy fodder for the pro- #Brexit press /2

assets.publishing.service.gov.uk/government/upl…

@FT @DavidGHFrost But Frost's statement to the Lords contained a potentially much more far-reaching and consequential strand that relates to so-called "retained" EU law...and that's the part that's got lawyers like @CSBarnard24 @SirJJQC @GeorgePeretzQC twitching. /3

gov.uk/government/spe…

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC So first. Quick recap. "Retained" EU is that massive body of EU law/regs that was Hoovered onto UK statute books at point of EU exit in order to maintain continuity and avoid legal cliff-edges for business, consumer, the government/4

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC This was an inelegant but necessary course of action because of the speed of UK's departure.

But now we've left the EU, we can start to unpick this 'retained' law, since we no longer need to take diktat from Brussels. So far, so simple /5

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC And to be clear, as @CSBarnard24 tells me, there is nothing to stop Frost or Johnson from repealing any part of that law...they just need to pass legislation to supersede it. Do away with working time rules or EU airline passenger compensation rule...whatever. We are free! /6

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC But two things that Frost said in his statement have rung alarm bells. The first is a bit complicated, but important. The second less so, but even more important. /7

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC The first one is Frost saying the Gov wants to remove the "special status" or "Supremacy" of EU law, which it was granted in the EU Withdrawal Act of 2018 (section 5.2)...now it might seem odd that a Brexity government legislated for this, but it did so for a good reason/8

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC As @GeorgePeretzQC explains to me, the "supremacy" only applied to law BEFORE Jan 1 this year, which was simply a reflection of the status quo ante. It doesn't apply to future laws. It was designed to enable practitioners to give stable advice. Removing is a 'bad idea' he says./9

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC As a matter of logic, it also seems a bit odd, to pass an Act to bring certainty and stability...and then just nine months later say you want to rip it all up and start again in an area that is already taxing legal practitioners, I am told /10

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC But it is the second of Frost's proposals that is far more worrying, which is to create a kind of "fast track" or guillotine mechanism to do away with retained EU law.

He calls it: "a tailored mechanism for accelerating the repeal or amendment" of retained EU law /11

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC Now, recalling above that the UK Govt is perfectly free to "repeal or amend" retained EU law via legislation in Parliament...logically as @SirJJQC points out, this "tailored mechanism" must mean something else...something faster, with less scrutiny and due process./11

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC Given that #Brexit is all about restoring 'democratic accountability' it would seem ironic, to put it mildly, if it led to a mechanism where large chunks of law could be struck down by some fast-track mechanism that didn't give Parliament full scrutiny/12

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC Frost wants to imply that EU law is somehow less democratic than UK law --- even tho elected UK governments and MEPs had a full hand in creating that law -- but even if that were true, it doesn't justify a system where it can be overturned undemocratically. /12

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC As Jones observes: “If this body of retained EU law lacks democratic accountability, because it comes from the EU, it would seem ironic if the government’s process for sorting all this out is a procedure that fast-tracks or even sidesteps democratic scrutiny in the UK.” /13

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC Or as @GeorgePeretzQC puts it rather more colourfully, Frost’s statement looked to be a thinly disguised plan to “alter swaths of important law by ministerial flick of the pen and with no adequate debate or scrutiny”. /14

https://twitter.com/GeorgePeretzQC/status/1438495042755305473?s=20

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC There might be a "housekeeping" element to this -- i.e "we sucked in all this law, but now we need to tidy it up speedily"...but Jones isn't buy it.

Indeed, it was sucked in precisely because UK had no time. But now, post-#Brexit, it does /15

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC So as the UK looks to amend laws in key areas, such as health and safety, data management, fisheries and the environment, a UK parliament — newly freed from accepting diktat from Brussels, as Brexiters see it — would surely expect the right to exert maximum democratic scrutiny/16

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC We will have to wait for details of all this -- not yet forthcoming -- to see if it is anything more than "performative divergence" ...and whether Parliament has the time and appetite to legislate for such a guillotine. /17

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC It would also be surprising, given that this diamond-hard #Brexit we've negotiated was driven by a narrow clique of Tory backbenchers who defined #Brexit around notions of Parliamentary sovereignty, that it would be acceptable to them /18

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC We'll have to wait and see. But as with the government's refusal to allow Parliament a full role in shaping trade agreements, this is a government that isn't entirely consistent when it comes to the joys and benefits of parliamentary sovereignty. /19

@FT @DavidGHFrost @CSBarnard24 @SirJJQC @GeorgePeretzQC As I say, it would indeed be ironic that Brexit, sold as an exercise in restoring democratic accountability, should have the opposite effect. ENDS