Brexit Freedoms Bill is a laughable distortion of recent history

Under Boris Johnson, the UK Government has long been eager to promote the supposed benefits of Brexit. Such efforts have proven challenging, however – mainly because preciously few benefits of consequence have materialised from leaving the EU.

The ideology of Johnson’s Brexit is based on two elements: distancing the UK from the EU (and the current Trade and Cooperation Agreement is a minimal relationship compared to EU membership) and pretending that its relations with the EU are not vital to the UK’s own future.

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Given that context, it is hardly surprising that the UK Government is now bringing forward legislation to make it easier to change retained EU law, preserved in the UK before leaving the EU, with its so-called “Brexit Freedoms Bill”. The only surprise can be that it was not done sooner.

Nevertheless, the UK Government’s latest rationale for new divergence from the EU – that EU law did not have democratic legitimacy in the UK – is a laughable distortion of recent history.

The UK was an EU member state – and a large and powerful one, when it was not isolating itself. The UK Government shaped every decision in the EU Council. The UK had 73 seats in the European Parliament at the time of departure. In short, the UK had a major role in defining EU law.

If the UK parliament did not express itself on various pieces of EU legislation at the time, it was because the vast majority of its members were not interested. Before the EU referendum, MPs had to be cajoled to join the European Scrutiny Committee because few cared enough.

The desire to change retained EU law stems from Brexiteer zeal rather than actual absence of say in making EU law before Brexit. The fact that the UK Government feels compelled to search for EU laws to symbolically strike for effect demonstrates its lack of genuine positive motivation.

For Scottish businesses and for all of us, it is challenging to assess the impact of this new bill at this point. The legislation is intended to be a facilitator for future change, potentially affecting many areas of policy.

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We already know of the UK Government’s Brexit ideology. Instead, we collectively require clarity on the specific measures of divergence from EU law which it intends to pursue.

Johnson’s mantra of “cutting red tape” is not encouraging. “Red tape” often means workers’ rights, environmental protections and quality standards. The prospect of massive deregulation will delight some Brexiteers, but it probably has little public support throughout the UK.

In any event, a future deregulatory drive by the UK Government would face at least one significant obstacle: the Trade and Cooperation Agreement (TCA). The UK made substantial commitments to maintaining a “level-playing field” with the EU in exchange for some access to the EU single market. If it broke those commitments, the EU would respond.

Divergence from the EU acquis (the EU’s body of laws and policies), whether by changing retained EU law or not matching future EU law – and even if compatible with the TCA – would make it more difficult for the UK to have a closer relationship with the EU in the future.

If the UK continued to distance itself from the acquis, the chances of expanding the TCA for an enhanced EU-UK relationship some day would fade. It is already clear that, among the main political parties, the debate on EU membership is considered over in England. Divergence would also affect future Scottish EU accession.

Potential divergence under the “Brexit Freedoms Bill” could well look different, and be more complex, compared to the process of Brexit to date. Many measures could fall under the scope of the UK Internal Market Act.

In such cases, the UK Parliament would often not have to change the powers of the Scottish Parliament or Government, or the content of Scottish legislation, to achieve its purpose where Scottish policy were different. Generally speaking, relevant Scottish legislation could simply be ignored, in most instances, by those not based in Scotland – even when they were offering their goods or service in or to Scotland.

With Brexit realised, Scottish businesses which aim to sell goods or services both within the UK and to the EU already face the potential of two sets of substantially different regulations and standards. The greater the UK’s divergence from the EU, the greater that potential will manifest.

They will face added complexity when the UK Internal Market Act starts to have real-world impacts. In relevant areas, companies based in Scotland will have to follow Scottish policy and legislation while those established anywhere else but operating in Scotland can discard them.

As we know, the Scottish Government has pledged to move in the opposite direction, under its commitment to maintain future alignment with the EU acquis – where possible, practical or desirable.

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Yet, at the end of last year, the Scottish Government confirmed to the Scottish Parliament that it had to date never used the powers under the Scottish EU Continuity Act. We need a much fuller debate on the challenges and consequences of separate Scottish alignment with EU law – something never done before by part of a third country to the EU.

It is true that policy-making can be faster in a state of one than in a union of 27 (formerly 28). Faster does not mean better. The deliberative nature of EU policy-making, while a perennial source of frustration and sometimes indeed unnecessary, often results in better law.

Regardless of how much Johnson seeks to deny it, the UK needs a close, positive and productive relationship with the EU. On this second anniversary of Brexit, it should be beyond any doubt that pretending that the EU does not matter that much to the UK is a losing strategy.

Anthony Salamone is managing director of European Merchants, the political analysis firm in Edinburgh