Brexit ‘Freedoms’, Risks and Opportunities? Certainty and uncertainty in the revision of retained EU Law

This piece was first published on the blog of the UK Constitutional Law Association, on 17 February 2022.

On 31 January 2022, the second anniversary of the UK’s withdrawal from the European Union, the UK government proposed a new ‘Brexit Freedoms Bill’. The ‘Benefits of Brexit’ Policy Paper outlines the objectives of this Bill as ‘reviewing retained EU law to meet the UK’s priorities’ and ‘allowing changes to be made to retained EU law more easily’. The Government proposes making these changes via delegated legislation, raising constitutional concerns about the undermining of Parliament’s legislative authority.

The Bill would represent the culmination of the ‘Review of Retained EU Law’ first announced in September 2021. Although the Policy Paper contains elements that pose constitutional risks, as outlined below, other elements may represent opportunities for the Rule of Law. In particular, there may be an opportunity for further clarification, rather than just simplification, of the complex statutory definition of the status of retained EU law (REUL) (and the implications of that status). Furthermore, the proposed catalogue of retained EU law (REUL) could improve accessibility of the law.

A stated central pillar of the Policy Paper is a revision of the status of ‘certain types’ of REUL. This reopens a two-part question which was much debated on this blog (and elsewhere) during the passage of the EU (Withdrawal) Act 2018 (EUWA) through Parliament: what status(es) should REUL have in UK law, and why does this status matter? For the latter question, there are at least two good reasons: supremacy and amendability. In this blog, we focus on amendability. Our concern is that the approach taken will be too blunt or too pejorative towards REUL, enabling it to be altered by Ministers with limited or no parliamentary scrutiny. Our argument is that REUL’s status ought to reflect its pedigree and content, and that a uniform approach would fail to reflect the intricacies and demands of both legal categorisation and parliamentary scrutiny.

If changes need to be made to how REUL can be modified in order to pursue the Government’s policy objectives in relevant areas, these must take into account (a) the prior status of REUL as a matter of both UK and EU law, (b) the policy significance of the content of the law, (c) the need for improved parliamentary scrutiny of delegated legislation, and (d) clarity and consistency in how REUL will be treated in the future. The Policy Paper provides scant information on all four points, creating risks for parliamentary democracy and the Rule of Law that we explore below.

While the Policy Paper is somewhat unclear as to what exactly is entailed by a revision of the status of ‘certain types’ of REUL, it is clear that the Government is considering creating a new power that will allow the modification of REUL ‘for certain purposes’. While the Policy Paper describes this power as ‘targeted’, it is entirely unclear what its target (the ‘certain types’ of REUL that can be modified and the ‘certain purposes’ for which it can be exercised) will be. These are two rather fundamental questions for its design. The Government’s stated objective is to “provide a mechanism to allow retained EU law to be amended in a more sustainable way to deliver the UK’s regulatory, economic and environmental priorities”. But this language is far removed from the precision of legislative drafting. The creation of an expansive power for Ministers to change all REUL via secondary legislation poses significant constitutional risks.

Existing powers in section 8 of EUWA do bite on all REUL, but are limited to ‘correcting deficiencies’, and have a time-limit of expiry of two years on from the date of ‘IP completion day’ (31 December 2022). But these simply allowed the necessary carpentry of tidying-up the statute book; they were not designed to enact substantive policy decisions. The powers proposed in the Brexit Freedoms Bill would need to be of a different kind entirely: considerably broader, and unfettered by the limited condition of deficiency correction. There is also no indication from the Government that such powers would be sunsetted.

Given the paucity of detail in the Policy Paper over the legal purpose, scope, and confines of this proposed new power, we consider below four preliminary issues that its design must engage with.

The current amendability status of REUL depends on how it came to form part of both UK and EU law as per section 7 of EUWA. In an attempt to summarise these ‘migraine-inducing’ provisions, anything that already formed part of domestic law (either by virtue of s2(2) of the European Communities Act (ECA), or by being enacted via an Act of Parliament) did not have its status altered. For directly effective law previously found in EU regulations (retained direct EU legislation), a distinction is drawn depending on the procedure by which it was adopted at EU level (delegated acts under Article 290 TFEU and implementing acts under Article 291(2) TFEU can be more easily amended than acts adopted under the ordinary and special legislative procedures defined by Article 289 TFEU and its predecessors. The former received less democratic oversight from the European Parliament than the latter).

The Government’s stated aim to “simplify the complex status provisions that apply to retained EU law” contains a Rule of Law opportunity to improve clarity of the law. However, the objective must be clarification rather than mere simplification. Amendments to the text of EUWA could make it explicitly clear why the different categories of retained direct EU legislation are treated differently on the basis of their origin as either primary, secondary, or tertiary EU law (similarly to proposals made by Paul Craig in 2018).

The current situation may be imperfect, but it recognises an important point: REUL is not itself uniform. Any change in its status (or, perhaps equivalently, new powers to amend it), must take into account its legislative origin. This has implications not only for those aspects of REUL upon which the operative elements of s7 EUWA bite, but also REUL that was already on the domestic statute book. The Policy Paper is silent on whether new amendment powers will apply to all REUL, including EU derived domestic legislation incorporated via section 2 EUWA, or only direct EU legislation and other norms retained via sections 3 and 4 of EUWA, which were not previously incorporated in domestic law. For example, should important laws relating to working hours and air quality be easier to modify because the UK chose pre-2016 to implement them under s2(2) ECA rather than Acts of Parliament? And, in a similar vein though in a different direction, should some Acts of Parliament be more readily amendable than others simply because they happen to contain REUL? Whether or not a policy area was an EU competence does not itself seem a sufficient basis on which to determine the procedure by which UK law is made. The risk arises that an over-extensive power to amend REUL would enable the Government to undo significant aspects of existing law and policy with minimal involvement of MPs. This leads to the second factor of how such determinations should be made.

The Policy Paper draws a distinction between REUL that contains ‘technical detail’ and that concerning ‘substantial policy questions’. It implies (though does not state) that the power under consideration will be ‘targeted’ on the former but not the latter, drawing a parallel to the purely domestic situation where ‘amending technical details … would more usually sit in domestic secondary legislation’.

Powers to make delegated legislation may well be appropriate for uncontroversial changes or updates to administrative detail, but they are inappropriate for making important decisions on substance and policy. The problem is that such a line is hard to draw in practice, not least since ‘technical’ matters can have a major impact on people’s lives. Beyond a vague reference to energy performance certificates, the Policy Paper does not provide clear indication of the ‘certain purposes’ or ‘technical’ changes for which it will be seeking to create a power. The consequence is the all-too-familiar risk of a widely drawn power open to abuse by both current and future Ministers.

It is worth recalling that there is no clearcut constitutional position as to what can and cannot be delegated to secondary (or tertiary, or disguised) legislation. The Cabinet Office’s non-binding Guide to Making Legislation has been recently revised to acknowledge that measures being technical in nature is not itself sufficient reason to delegate powers, and the Delegated Power and Regulatory Reform Committee does sterling work poring over the details of the many powers in each Bill that comes before Parliament. The House of Lords Constitution Committee has also reported on this issue, finding it “essential that primary legislation is used to legislate for policy and other major objectives”, but that “it would be hard to design a prescriptive list to cater for the variety of circumstances in which delegation is sought”. The Committee’s report cites written evidence from the Bingham Centre for the Rule of Law proposing a “code of constitutional standards” to underpin the assessment of the validity of delegated power clauses. In any case, in the ultimate analysis, Parliament is sovereign and can delegate its legislative authority if it so wishes. If proper balance between the executive and the legislature is to be achieved, then the growing precedent of Ministers being conferred ever-wider powers must not continue in this Bill.

The crux of our concern thus arises: Parliament has become too accustomed to delegating considerable law-making discretion to the executive. There is a pincer movement created by wide legislative powers for Government Ministers and weak parliamentary oversight of their use. The Hansard Society has long shone a light on the weaknesses in the system in this area that raise considerable questions over constitutional propriety and democratic accountability. Its ongoing ‘Delegated Legislation Review’ is developing alternatives to the current model, seeking to reverse the current trend whereby Parliament is being undermined by an expansion in the powers of the Executive.

This is not to say that delegated legislation cannot or should not be used to modify REUL. We support judicious use of delegated powers that are accompanied by meaningful parliamentary scrutiny and public engagement. But this Bill will be caught between the hard place of relying on the current inadequate approach and the rock of devising yet another bespoke mechanism to add to an already over-complicated field. Whether you look at it from the point of view of the balance of powers, Brexit opportunities, democracy and transparency, or modern regulatory needs, a reset of the entire delegated legislation system is needed.

The Policy Paper also contemplates giving new powers to regulators. This may include new rule-making powers, as also proposed in recent Government consultations (including one which this Policy Paper constitutes a response to). There may be good reason to expand regulators’ powers in this way, but it must not come at the expense of transparency, accountability, and the Rule of Law.

The Policy Paper argues that a mechanism to amend retained EU law through secondary rather than primary legislation is justified on efficiency grounds: the Government argues that it would not be “a good use of finite Parliamentary time to require primary legislation to amend all of these rules”. Regulatory efficacy is a perfectly acceptable governance objective, and new processes may be needed in the many areas where competences have been returned from the EU.

However, it is unclear that an abstract general power of amendment divorced from specific policy contexts is the best way to achieve the Government’s aims. The goal is to prevent REUL prohibiting delivery of the “UK’s regulatory, economic and environmental priorities”, yet this suggests policy goals of such importance that they befit further primary legislation. In this situation, any such legislation would be the best place to enact new powers targeted at achieving those policy objectives. This would allow for the creation of more targeted powers: if there is currently a lack of powers to modify existing REUL via delegated legislation, then that does not mean the answer is a ‘one-size-fits-all’ approach to do so.

The Government in fact has already pursued this approach through making provision for modification of retained EU law in recent legislation, such as the Fisheries Act, the Trade Act, the Environment Act, and the Nationality and Borders Bill which all regulate post-Brexit priority areas. However, these examples do demonstrate the danger of inconsistency arising from a contextual case-by-case approach. Whereas the Fisheries Act engages in the best practice for the Rule of Law of explicit repeal or amendment of defined REUL, the Trade Act and the Environment Act create delegated powers empowering Ministers to do the modification (albeit with a scope limited to certain defined pieces of REUL in the latter case). By contrast, the Nationality and Borders Bill proposes the constitutionally undesirable mechanism of disapplication of the EUWA in cases of conflict between provisions of the putative Act and any provisions found in the REUL of the Trafficking Directive. Therefore, there is an opportunity for greater clarity over the practice for modifying REUL in the future that promotes clarity, consistency, coherence, and generality across sectors.

A key Rule of Law opportunity within the Policy Paper is the proposal for a public catalogue of retained EU law and any subsequent changes thereto. This results from an exercise in legal excavation: “the review into the substance of retained EU law is working with departments to deliver an authoritative assessment of where retained EU law is concentrated on the statute book and across sectors of our economy”. The Policy Paper also notes that the results of this should see the light of day: “The public has a right to know where EU-derived law is still on the UK statute book”.

A publicly accessible catalogue of retained EU law could enhance accessibility of the law for members of the public, legislators, and practitioners. The catalogue would build upon the current situation on legislation.gov.uk and the National Archives EU Exit Web Archive, where all EU law as it applied to the UK up to the end of the transition period is collected. The commitment to include amendments on the catalogue of retained EU law could mean that lawyers will be able to advise their clients in real-time about proposed changes to regulation in their sectors of business, regardless of how quickly such changes may be executed through the new delegated powers. The ability to see the ‘tracked changes’ versions of legislation following their amendment is hugely valuable to all who engage with the law and further steps could be taken on this front. Initiatives that better communicate proposed changes to the law, and wider use of Keeling Schedules when any law, including REUL, is amended are to be welcomed.

Retained EU law will of course need to be modified in ways, and for years, beyond what is permitted by the sunsetted deficiency correction power of section 8 EUWA. As outlined above, this is already being done via a range of different mechanisms and increasing certainty over how this will take place in future is not without merit. However, it is hard to see how the Government’s desires to ‘simplify the complex status provisions that apply to retained EU law’ in order to make changes to REUL more easily in pursuit of the Government’s policy priorities can be done in a way that properly reflects the history and nature of that law and embodies the demands of democracy and parliamentary sovereignty. Categorisation of law is not simple.

Wholesale attempts to ‘downgrade’ this law and facilitate its repeal should be guarded against. Efforts to find ways to better match the mechanisms by which both Parliament and the public can scrutinise proposed laws to the actual content and impact of those laws should be encouraged. And criticism of REUL’s democratic pedigree – due to it being created within the now ‘foreign’ forum of the EU institutions with the input of representatives from other countries, rather than purely through the UK Parliament – must be treated with caution: after all, two perceived wrongs don’t make a right.

O. Garner and T. West, ‘Brexit ‘Freedoms’, Risks, and Opportunities? Certainty and uncertainty in the revision of retained EU law’, U.K. Const. L. Blog (17th February 2022) (available at https://ukconstitutionallaw.org/)