Brexit: an episode of madness

By Richard North - November 1, 2022

There’s a lot to write about today but, following on from yesterday’s article, I can hardly ignore this piece in The Times, headed: “Contaminated food ‘will be a problem if EU rules are ditched’, Food Standards Agency says”.

This is a commentary, as it applies to food safety issues, on the Retained EU Law (Revocation and Reform) Bill which is making its way through parliament.

The Bill was heralded in the May Queen’s Speech, promising that regulations on businesses would be “repealed and reformed” and that a bill would “enable law inherited from the European Union to be more easily amended”.

As the Bill stands, it automatically removes by the end of 2023 some 2,400 pieces of retained EU law and also abolishes the principle of the supremacy of EU law, ensuring that it no longer applies to any domestic legislation.

In principle, this Bill – initiated by the Johnson administration, and surviving two subsequent prime ministers – would seem to be a necessary part of the Brexit process, but the Food Standards Agency is concerned at the speed of the process.

Currently, almost the entire raft of legislation applicable to food safety is of EU origin, comprising multiple, major instruments of some considerable scope and complexity, all of which will be lost should this Bill be approved and take effect.

Rebuilding the entire legislative code is not something that could be done quickly or easily, giving rise to fears that replacement law will not be in place in time, Thus, we have Susan Jebb, chairwoman of the Food Standards Agency, expressing her concerns.

This is translated in The Times story in terms of people being exposed to the risk of eating contaminated food “if Rishi Sunak presses ahead with a deadline for scrapping EU regulations”, with Jebb pressing Sunak to rethink a deadline imposed by his predecessor, “amid signals that the prime minister is having second thoughts about the plan”.

To an extent, Jebb may be pushing at an open door, as it has already been reported that Sunak has toned down his zeal for the speedy axing of EU legislation, amid warnings that such an exercise could tie up hundreds of civil servants at a time of national crisis.

According to the Financial Times, Sunak promised in August, during his first bid for the Conservative leadership, that he would create a new “Brexit delivery unit”, a pledge illustrated by a video of an official shredding EU laws to the strains of “Ode to Joy”, the European anthem.

Now, reality seems to be taking a front seat as Sunak’s aides have admitted that the new unit would not be created. “The time for changes in the machinery of government has passed,” says one anonymous ally, continuing the tradition of using unattributed briefings to enunciate government policy.

Furthermore, although Sunak’s video also stated that: “In his first 100 days as prime minister, Rishi Sunak will review or repeal post-Brexit EU laws. All 2,400 of them”, government officials have confirmed that this target will not be met.

In a clear signal that the Bill has dropped in his order of priorities, Sunak has also decided not to repeat Johnson’s appointment of a dedicated “Brexit opportunities minister”, a post taken up by Jacob Rees-Mogg, who took the title with him when he became business secretary under Miss Trussed.

Now that Rees-Mogg has been sacked, the job of overseeing Brexit “opportunities” is now to be given to another minister in the business department but will not be a “standalone” job.

As to the progress of the Bill, Ministers have been warned that hundreds of civil servants would have to be deployed to assess all 2,400 pieces of retained EU law and to decide whether they should be repealed or transferred into UK legislation.

Before he was so unceremoniously dumped, Rees-Mogg was warned that his business department alone would need to deploy 400 staff to review or repeal the 300 pieces of EU law for which it was responsible. The Department of Health estimated it would need 100 staff to carry out the same exercise.

In all, internal estimates suggest that it could take six years to go through all the European laws on the statute books, hence Jebb’s intervention. “It’s clear we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health”, she tells The Times.

She adds: “ensuring that people have food they can trust remains our No 1 priority”, although she does acknowledge that Brexit is an “opportunity to review and reform these laws so that businesses have the right regulation to enable them to provide safe and trusted food”.

Nevertheless, she warns that laws governing contaminants in food and animal feed as well as food hygiene legislation may not be ready by the end of next year.

That said, within the Bill, there is a clause which, if enacted, permits “a relevant national authority” to restate any secondary retained EU law – which could cover the bulk (if not all) of EU-derived food safety law. By this means, the law could be absorbed into the domestic statute book and lose its identity as “retained” law and can be further amended at leisure.

With Sunak apparently winding down the 2023 timetable, it would seem that Jebb’s immediate concerns are unfounded, and the essence of food safety law will be safeguarded – for good or bad.

But what has not been challenged, at all, is the broad assumption that the “EU law” is amenable to change or that much of it can be repealed. The point here is, of course, that our old friend the “double coffin lid” applies to much of the law, as the EU is implementing international standards promulgated by treaty organisations to which the UK is party.

For instance, embedded in core EU food legislation is the implementation of HACCP (Hazard Analysis and Critical Control Points) principles (specifically Regulations no. 178/2002 – the General Food Law; Reg. no. 882/2004 – on official control; and Reg. no 852/2004 – on hygiene of foodstuffs).

But, while the EU did in fact pioneer the incorporation of HACCP into the legislative code (wrongly in my view), it has since been adopted by Codex Alimentarius, making it an international standard which we would have to adopt, with or without membership of the EU.

Similarly, many of the food additive and pesticide residue standards are of international origin (either through Codex, the IPPC or the OIE) and would, therefore, have to be embedded in our national code, not least to comply with WTO rules. Some other rules, particularly vegetable and fruit marketing standards, are promulgated by UNECE.

Were she on the ball, therefore – or prepared to be honest about the source of much of our technical standards legislation – Jebb could directly challenge the government’s ability to repeal much of the law which carries an EU label, on the grounds that we are still obliged to adopt it under different treaty provisions.

Unravelling precisely which parts are directly and uniquely attributable to the EU, as opposed to those which implement international standards, would be a herculean task, made more complex where UK law has also been used to “gold plate” these provisions, adding unique UK variations.

As such, the whole idea of the Retained EU Law (Revocation and Reform) Bill is fundamentally flawed and, even if it was not, as Jebb rightly observes, the original timetable was unrealistic.

Even then, the headlong rush of the Johnson administration to secure the chimera of “deregulation” was misconceived. Far from being a burden, common legislation agreed at an international level often facilitates trade. It also simplifies production in that manufacturers can work to a single standard and can cut the costs of holding huge inventories of stock made to different standards.

That this Bill has been tabled, therefore, illustrates the slender grasp Johnson and his supporters had on the way trade and regulation interface, and of the often beneficial role of regulation. Sunak thus might be better advised to dismiss the Bill as an episode of madness and dump it altogether, concentrating on home grown stupidity which is causing more than enough grief.

His gifted civil servants should then, on our behalf, rethink how, if at all, business regulation can be improved. Since this, in the main, will require engagement at an international level, it will be neither quick nor cheap.