There is a decision that a Conservative minister – one that is well acquainted with both the responsibilities of office and the realities of our relationship with the EU – will eventually face.
Some parliamentary colleagues, voices in the media and Nigel Farage will demand a particular course of action that you know is not in the national interest. But objecting vociferously is not in your personal interests (there are precedents that spring to mind). You might be able to fudge the issue by either sitting out this particular battle or giving the impression of having been thwarted. Yes, yes, of course you are right, Sir Bill and I would have done exactly as you suggest but for the civil service/parliament/the Remainer blob (delete as applicable).
This brings us to Kemi Badenoch and the evidence she gave to the European Scrutiny Committee earlier this week. The Business and Trade Secretary was questioned about the abandonment of the sunset clause within the Retained EU Law (Revocation and Reform) Bill – which no longer guaranteed that every aspect of remaining EU law would be scrapped by the end of the year (unless specifically exempted or amended).
Businesses and lawyers and (we can be confident in claiming) officials all thought this was a terrible idea. More than 4,000 items of legislation had been identified as requiring review and to consider all of them properly would take years of work. Everyone familiar with the realities knew this but no senior minister wanted to admit it in public.
Then the newly-promoted Badenoch came along and said the whole approach was mistaken.
The Brexiteers were astonished. “I thought Kemi Badenoch was one of us, on the Brexit side of the argument,” complained Nigel Farage on GB News. The cause of the astonishment was not just her decision but her tone towards her critics. When questioned by David Jones, the deputy chairman of the European Research Group (ERG), as to why she was not delivering a bonfire of regulations, Badenoch replied by stating that she was “not an arsonist, I am a Conservative”. As Farage put it to John Redwood “she is basically saying that people like you are arsonists, which means, well, ‘highly irresponsible’ would be a nice way of putting it”. Yes, I think that would be a nice way of putting it.
Only a few weeks ago, Badenoch was well-placed to become the next Conservative leader by virtue of being on the right and not being Suella Braverman. Now, she is out of favour and appears to lack the useful political skill of being able to suffer fools gladly.
[See also: Britain’s Brexit divisions are re-emerging]
This may not help her prospects, but there was something rather magnificent about her performance in front of the European Scrutiny Committee. It might be that it was all the product of political calculation: has she concluded that the ERG is in decline and that the Conservatives have had enough of their fantasies? But this feels unduly optimistic. I suspect she simply could not help herself, even if it might do her political harm. How refreshing.
This should not distract us, however, from the fact the bill remains objectionable even though the sunset clause has been erased.
It continues to be the government’s intention that EU legislation, which are often major instruments of policy created by the European Council of Ministers and the European Parliament, can now be replaced by regulations produced solely by ministers. Parliament will be left with no ability to amend these regulations, even if they are substantially different to the regulations that are being replaced, but will simply have to endorse them or block them (the latter often not being a practical option).
This is a significant strengthening of the position of the executive at the expense of MPs. For those who long argued that membership of the EU had diminished parliamentary sovereignty, this is a curious way to take back control. Like Oliver Cromwell, who fought a civil war to defend parliamentary liberties only to spend many of the following years preventing MPs from sitting, most Brexiteers are content to allow power to be concentrated in the hands of the executive provided it is used in a manner of which they approve.
On the same day that Badenoch appeared before the European Scrutiny Committee, the House of Lords comfortably approved a compromise motion that would allow parliament to amend regulations made under the bill. It is a pragmatic way forward. The Commons will have the chance to endorse this approach next week but it is likely that this compromise will be rejected by the Tory majority.
Badenoch was right to abandon the sunset clause. She should now agree to a compromise that protects parliament’s abilities to scrutinise legislation properly. This would be right in principle but she should also bear in mind another consideration. The Conservatives will not necessarily be forming the executive forever.