The hidden-away bill charting a course back to Europe

No-one wants you to look at the product safety and metrology bill. And there's a really good reason for that.

Photo by Kristina Flour on Unsplash

This is the story of a bill. You probably won't have heard of it. No-one wants you to look at it. The government has tried to bury it in terminological obscurity. The press largely hasn't noticed it. But it is arguably the most important piece of legislation in Westminster.

First, it demonstrates the government's European strategy, which is far more ambitious than people have given it credit for. And second, it demonstrates the extent to which the government is betraying its promises on restoring democratic processes. It raises the spectre of our entire regulatory system being run with barely any democratic or parliamentary input at all.

It is a story of something very good happening without anyone noticing. And it is the story of something very bad happening with barely a flicker of interest. It’s therefore the perfect piece of legislation for an era in which holding two thoughts in your head at the same time is a radical act.

It's called the product safety and metrology bill. It has a very boring title because they don't want you to pay attention to it. In Westminster, you need to pay attention to all the most boring bits because that’s where they keep the good stuff.

This bill basically takes the whole of our regulatory approach to goods and hands it to ministers to do as they please. There are a few exceptions - food, military equipment, medicine - but it basically takes the regulatory landscape and puts it at the whim of a minister. Everything from the rules around the button batteries in car key fobs to the noise levels of lawnmowers.

Section 2(7) is the most important. Indeed, it's arguably the most important sentence of any bill since we left the EU. "Product regulations," it says, "may provide that a product requirement is to be treated as met if a requirement of relevant EU law specified in product regulations is met".

Yep. You read that right. This bill hands ministers the power to align with EU law. And not just regulations or directives either. This would likely apply to European Court of Justice rulings. The bill's definition of "relevant EU law" includes parliament and council decisions, but also "other EU law that has the purpose of harmonising the conditions for the marketing or use of products in the European Union". Given that the European Court of Justice decides on what EU law is, that naturally includes its rulings.

This bill therefore threatens to undermine some of the talismanic Brexit victories. In 2016, shortly after the referendum, Theresa May said: "We are not leaving only to return to the jurisdiction of the European Court of Justice." Well it turns out we kind of are. We might not be under its formal jurisdiction, but we will effectively be subject to its rulings.

If you raise this with the government, they will likely tell you that the bill could just as easily allow the government to diverge from EU rules. Nothing to see here. Don't worry your pretty heads about it. These are just powers for ministers to use as they see fit.

That's technically true. There's a bunch of EU law lying around on our statute book which ministers would now have the power to change. And of course, this is what the Brexiters told us would happen after we left the EU. We would finally have shaken off the European yoke. The great tyranny of small-sized condoms, straight bananas and 750ml champagne bottles would be over. We would be able to create our own bespoke regulatory system, becoming more efficient than our unwieldy neighbours.

This did not happen, of course, and was in fact bullshit. You can sense the falsity of the argument in the explanatory notes of the bill. The EU, it says, has adopted a 'common charger directive' which requires USB-C chargers for all phones and portable electronic devices. It's a good idea. It reduces waste and is convenient for consumers - no more pointless nightmares at a friend's house as you try to work out if anyone has your exact charger. The UK government, the document says, is considering a similar rule and "whether this should be based on USB-C, as adopted by the EU".

Yes, I wonder which way that's going to go. On the one hand, we could use a completely different charging system to our nearest neighbour - micro-USB anyone? - and create a pointless inconvenience to businesses and consumers. Or we could do what they're doing. This is the fundamental reality of trade. You can gain all the powers you want. But if your massive neighbouring trading block is going to produce to a certain standard, you will eventually accommodate it.

If the government was intent on divergence, it probably wouldn't even bother passing this bill and it certainly wouldn’t be passing it in this form. You really don't need any powers to diverge from the EU. You just need to sit on your arse and do nothing.

At the point we left the EU, we copied and pasted most of their laws onto our own books. But after that, they kept on legislating. The EU typically passes over 1,000 regulations a year. Unless you keep up, you start to drift away. And then your companies find it harder to trade, because they're no longer in regulatory compliance. This is called passive divergence.

As the bill's explanatory notes say: "Many of these EU requirements are now being updated. If we do not respond to these changes, the UK will continue to recognise outdated EU requirements, causing confusion for business."

The alignment powers in this bill are very specific. They are a serious business. They are full-fat, no-bullshit tracking powers. They allow for a form of dynamic alignment with Europe - not just keeping up to date with where it is now, but staying up to date with what it does next, whether it's by regulation, directive or court judgement. It is a conduit bringing EU law into our system.

Does this mean we are returning to the EU, or even the single market and customs union? Absolutely not. It doesn’t even mean that we will align in every area of goods. Perhaps there will be some areas where we do want to diverge, although God knows what they are. What it means is that Labour means what it says. It has repeatedly stated that it would align with the EU. This is no small thing, It is a de-facto return to the EU’s legislative ecosystem.

There is a political effect to all this. First, there is the effect on negotiations. Europeans often complain that Starmer has not outlined what his new relationship entails. Well this might not make it much clearer, but it certainly functions as a statement of intent. It says: Look at what we are prepared to do. We have put in the domestic legislative groundwork for a very intimate relationship. We're preparing to work together very closely.

Second, the conduit will, in and of itself, bring the UK and EU closer together. If you're basically injecting EU law directly into your own regulatory framework, you're going to want to pay close attention to what the hell is going on over there. You're going to want British officials who will be able to warn ministers about what's coming down the track. Will this potential regulation have an impact on British steel production processes? Will that possible directive affect the marketing of children's toys? That means you need a good set of people in Brussels, who are politically and legally astute about what's going on. It starts firming up the day-to-day relationship.

This is exactly how we always imagined the dynamic would operate. Trade reality influences legal reality. Legal reality influences political reality.

If you are a Remainer, this is really rather encouraging news. We are returning to the EU's orbit. Slowly, and without much drama or flamboyant, but returning nonetheless.

But there is a problem. The problem is that this is being done in a way that massively expands government powers. It is being conducted in a decidedly illiberal way.

The products bill is a piece of skeleton legislation. It has no real legal content. It does not actually say what it is going to do. Instead, it is a very short document which effectively just hands decision-making power to ministers and excludes parliament from decision-making.

It does this through statutory instruments. These are tiny little powers which allow ministers to pass law themselves. There are technically ways that the Commons and the Lords can stop them, but they are not meaningful. The last time the House of Commons successfully fought back against a negative statutory instrument was in 1979.

Think back to when we were in the EU. The Brexiters describe this as an age of tyranny. In fact we enjoyed an extremely complex system of input and scrutiny. For a start, Britain had a seat at the table. It was involved in all those talks about the rules and proved highly influential in changing them where necessary.

The rules were passed down into British law under section 2(1) of the European Communities Act. We then had British structures to evaluate them once that happened. The European Scrutiny Committee assessed legislation and considered European policy in general, in granular bone-crunching detail. It was chaired by Bill Cash. At the start, this was really rather effective, but as the years passed Cash's mind cascaded downwards and the committee became a kind of hysteric's chorus. Labour support broke off. It turned into a Brexiter's talking shop, occasionally interrupted by Cash's jumpers-for-goalposts reminiscences about Magna Carta.

But still, it was a good vehicle for scrutiny. We need it now more than ever. There was also European Statutory Instruments Committee. We need that too. The government is handing itself the power to dictate our regulatory system on goods without parliamentary approval, on the basis of decisions taken in Europe, where we do not even elect MEPs. We require those committees, at the very minimum, to assess what’s happening.

Instead, the government has closed them down.

In the Commons, both sides of the Brexit divide reacted with alarm. Reform MP Richard Tice told the Chamber: "We have talked about scrutiny all afternoon. Of the 27 committees referred to on the order paper, the European scrutiny committee is the only one that includes the word 'scrutiny', yet it is the one committee that the Leader of the House wants to do away with." He was supported by Labour Movement for Europe chair Stella Creasy. "The honourable gentleman and I will take a different view on the benefits of what the government are doing to reset our relationship with Europe," she said. But where would they even be able to have that fight? "People may question where such a debate will happen and what role parliamentarians may play in it".

The management of the new UK/EU relationship will instead fall to the Cabinet Office. The Public Administration and Constitutional Affairs Committee is expected to handle much of the load. This is a mistake. It's already overstretched. The government wants other select committees to pick up relevant issues where they arise. This is also a mistake. The regulations will involve trade-offs between policy areas, the kind of thing departmental select committees, stuck in their silos, are very bad at evaluating.

The real work of scrutiny will be left, as it so often is, to the House of Lords. The Lords' Delegated Powers and Regulatory Reform Committee is an absolute powerhouse of scrutiny. It is one of the only institutions in Westminster which has recognised the danger of statutory instruments and the way they have gradually come to almost replace parliamentary decision-making. Unsurprisingly, they are deeply unimpressed with this bill.

"In our view, the delegation to ministers of law-making powers in this bill involves legislative power shifting to an unacceptable extent from the democratically appointed legislature to the executive," they said. "The government have failed to provide a convincing justification for the inclusion of skeleton clauses".

As ever, the Lords are all we have left: a last bastion of people prepared to do the work of scrutinising the government when everyone else decides it's boring or inconvenient.

It's truly extraordinary to consider how much we've lost. We used to have elected politicians sitting in the European parliament and its committees, helping to form regulations that covered an entire continent. We used to operate at the council blocking or softening the worst ideas and encouraging the best ones. Now we have no voice. Now we have no influence.

The reality of trade and comparative size - the kind of thing a child understands but Brexiters have found too challenging - means that we are rule takers not rule makers. So we will now begin to replicate whatever Europe does, despite having no hand in it, and along the way just go ahead and dismantle even our domestic scrutiny arrangements.

We are drifting back towards Europe, by dint of trading reality. But we are doing so without any of the power and influence we once wielded, or the domestic scrutiny we once deployed.

It’s a good thing and a bad thing at the same time. In times like these, maybe that’s the best we can expect.

Odds and Sods

I wanted to mention here just how good the Wolf Hall TV series is and just how appalling Labour's refugee citizenship ban is, but I have literally written this piece feeling myself getting more and more ill by the second. The lurgy is coming upon me. I must to bed.

However, before I go, I want to quickly thank two people for helping me with this piece. One of them was Ruth Fox of the Hansard Society, who you can follow here on BlueSky. They have the most impressive proposals for how to replace our existing system of statutory instruments with something more democratic. Another was Oliver Garner at the Bingham Centre for the Rule of Law. They were both invaluable. Anything I got wrong is my error and not theirs, nor do they necessarily agree with anything I've written. Thanks as well to the two other figures I spoke to, who didn't want to be named.

See you next week. I'm going to read superhero comics in bed, drink a hot toddy and groan softly to myself.