94: Post-Brexit: ‘Brexit Freedoms’ Bill
The Government has announced proposals for a new ‘Brexit Freedoms’ Bill.
This new Bill would ‘end the special status of EU law’ and ‘ensure that it can be more easily amended or removed’. It would also include a ‘major cross-government drive to cut £1 billion of red tape for businesses and improve regulation’. The announcement follows the Prime Minister’s New Year’s Day pledge to go ‘further and faster’ to maximise the benefits of Brexit in 2022.
But, hang on, didn’t we already ‘Get Brexit Done‘? We’ve left the EU. The Withdrawal Agreement and Trade and Cooperation Agreement were signed. The Transition Period ended, and we’ve got blue passports and crowns back on pint glasses. Boris delivered Brexit, as promised in the 2019 General Election. Didn’t he?
Not enough, it would seem! More must be done! All remnants of the malign influence of the UK’s EU membership must be eradicated!
It will have escaped no-one’s notice that this announcement was made the same day Sue Gray published her update report into ‘Partygate’. Call me cynical, but the timing – at least – seems to have been designed to deflect at least some attention from that, and put the focus back on what the PM knows won him the top job and him, and his party, the last election: Getting Brexit Done.
Alongside the announcement, a new policy document ‘The Benefits of Brexit: how the UK is taking advantage of leaving the EU’ sets out how the government is ‘using new freedoms in different sectors to transform the UK into the best regulated economy in the world’.
It’s not clear how long these policy proposals have been in gestation, but The Guardian reported that Welsh, Scottish and Northern Irish cabinet ministers first learned of the announcement at a hastily-arranged meeting on Saturday 29 January 2022 with Suella Braverman, the attorney general. According to that report, Braverman was unable to provide details about the proposals. ‘There were no meaningful answers at all,’ said one source, describing the meeting as ‘last-minute, fractious, and cack-handed’.
But, as this is now Government policy, let’s have a look at what we can expect the Bill to do.
Preserving Henry VIII?
The announcement states that the Bill will make it easier to amend or remove outdated ‘retained EU law’, that is, legacy EU law kept on the statute book after Brexit as a bridging measure, as part of a ‘major cross-government drive to reform, repeal and replace outdated EU law’.
Of course, that law isn’t EU law anymore. It’s UK law, because it was ‘on shored’ – that is, transposed en masse into UK law – by the EU Withdrawal Act 2018 (EUWA), in order to prevent a ‘black hole’ appearing in the UK’s statute book following the repeal of s.2 of the European Communities Act 1972 (which gave EU law domestic effect). And it doesn’t have ‘special status’, it has the same status as other UK law – it must be amended by Act of Parliament, as the Government has done – see, for example, our discussion of the Government’s proposed replacement of EU state aid law through its new Subsidy Bill.
The Government’s problem, it seems, is that this will all take too long. The announcement continues…
‘… under current rules, reforming and repealing this pipeline of outdated EU law would take several years because of the need for primary legislation for many changes, even if minor and technical. The new legislation will ensure that changes can be made more easily …’
EUWA contained provisions which allowed the Government to deal with ‘deficiencies’ in retained EU law arising from withdrawal’ (ss.8 and 9) in order to ensure the UK had a functioning statute book. These Henry VIII powers – so called because they allow Ministers to amend primary legislation by Order – were controversial, with much time spent in Parliament discussing their legitimacy and the circumstances in which they could be used. So these ‘rectification’ powers were time-limited by a ‘sunset clause’ to two years following ‘exit day’.
‘Exit day’ was 31 January 2020 (as modified by the EU (Withdrawal Agreement) Act 2020), so the powers expired on 31 January 2022, the date of the Government’s announcement. So it seems the Government will now be seeking, through its Brexit Freedoms Bill, a similar power to modify ‘retained EU law’ by statutory instrument, rather than by primary legislation (ie an Act of Parliament), but presumably on a continuous basis.
It remains to be seen how bold the Government is going to be in its proposals, and how far Parliament is willing to accept being side-lined.
Cutting Red Tape?
The Government also promises to cut £1 billion of red tape for UK businesses, ease regulatory burdens and contribute to the government’s mission to unite and level up the country. No detail has yet been given about what regulations will be changed, and the government’s approach is described in extremely general terms in the policy document. The two ‘core ways’ better regulation will be delivered are:
- a renewed regulatory framework, based on five new ‘principles for regulation’ – a sovereign approach, leading from the front, proportionality (ironically, an EU law concept), recognising what works, and setting high standards at home and globally; and
- making it easier to replace EU-derived law, essentially by giving the Executive power to do so, rather than requiring primary legislation.
It would take a clairvoyant to derive what substantive regulatory changes are proposed from platitudes of this kind. And there appears to be no recognition at all that cross-border regulatory alignment removes barriers to trade, promoting economic growth.
The accompanying policy document also contains what can best be described as aspirations for almost every area of the economy:
- Science, data and technology – R&D, quantum technologies, digital economy and technology in trade, online safety, cyber security and product security, life sciences;
- Business & industry – financial services, professional business services, automotive, aerospace, retail and consumer goods, hospitality, food and drink, culture;
- Infrastructure and levelling up – future of transport, aviation, space, rail, roads, maritime, nuclear, housing and construction, local government, education, health;
- Climate, the environment and agriculture – achieving Net Zero, the Environment, farming, fisheries and marine management, animal welfare; and
- Global Britain – The UK border, migration, international trade, international relations and diplomacy.
Those with good memories may recall Eric Pickles leading a bonfire of red tape a decade ago, and then PM David Cameron promising to ‘end health and safety culture’. Allegations that this may have led to shortcuts in building safety regulations and contributed to the Grenfell Tower disaster are to be considered later this year, as part of the ongoing inquiry into that disaster.
One hopes the Government learns lessons from previous failures.