108: The ‘Brexit Freedoms Bill’ – the end of EU legacy?

The Retained EU Law (Revocation and Reform) Bill – better known as the ‘Brexit Freedoms Bill’ – began Committee Stage this month.

We previously discussed that the Bill, as proposed, would make it easier to amend or remove outdated ‘retained EU law’, that is, legacy EU law kept on the statute book after Brexit as a bridging measure, as part of a ‘major cross-government drive to reform, repeal and replace outdated EU law’. The announcement of the Bill was accompanied by much rhetoric from the last-Prime-Minister-but-one and Jacob Rees-Mogg, then the sponsoring Minister (now on the back benches), about going ‘further and faster’ to maximise the benefits of Brexit.

While the title of the Bill, as introduced, is rather more neutral than its colloquial title, the content of the Bill aligns with the rhetoric – moving away from the EU Withdrawal Act 2018, which sought to avoid statutory gaps appearing post-Brexit by ‘on-shoring’ EU-derived law, towards removing that law entirely.

Groups like the Hansard Society and the Public Law Project, along with the Treasury and even some historical Brexit supporters, have voiced varied concerns about the proposals set out in the Bill. And so, last week, hearings got underway before a Public Bill Committee, which will examine the Bill closely with a view to agreeing, changing or removing each provision. Evidence will be taken on the Bill by the Committee, with Committee members then voting on potential amendments. Evidence has already been given by environmental groups; eminent lawyers including a former Treasury Solicitor; and Unison’s Head of Legal Services.

The Committee is anticipated to deliver its report on the Bill late in November.

What does the Bill do?

The Bill’s headline ‘sunset’ provisions provide that most retained EU law (ie, EU-derived domestic legislation and direct EU legislation, now forming part of domestic law) will automatically expire at the end of 2023. However, the Bill also provides that date can be postponed up to 23 June 2026 – the 10^th anniversary of the Brexit referendum – and probably will be in many cases, given the volume of affected legislation.

This ensures that the majority of retained EU law will cease to exist in the UK after 2023 (or 2026), unless Ministers take positive steps in the interim. Some retained EU laws can be exempted from the sunset provisions, although post-2023 these will instead be known as ‘assimilated laws’. The fact they are to be separately identified suggests, perhaps, that further legislative steps would be taken later.

As mentioned, the Bill is quite far-reaching. The provisions also:

• make it much easier for Ministers to modify, replace and revoke retained EU law, without using primary legislation;
• reduce the parliamentary scrutiny of any such delegated legislation; and
• do away with principles like the supremacy of EU law, its interpretation and its interaction with domestic legislation, including the ability to depart from existing CJEU case law.

What does this mean?

The sunset provisions would take effect to extinguish by default both EU-derived subordinate legislation and retained direct EU legislation, ie UK legislation made under the European Communities Act 1972, or to comply with its obligations. This will happen either at the end of 2023 or, if extended with a statutory instrument, up to mid-2026.

Ministers wishing to exempt specific legislative instruments from expiry, or to amend them, would have to take positive action before the sunset date, again by statutory instrument. Ministers would also be able to revoke and replace these laws with statutory instruments. This is controversial, because either option largely removes parliament from the legislative process, and would allow significant (and seemingly unknown numbers of) retained EU laws to be modified without proper scrutiny as to what, if anything, is to replace them.

Although Ministers must lay statutory instruments before parliament, enabling them to amend or repeal primary legislation in this way has constitutional implications. Parliament’s existing SI-approval processes have been criticised in the past, and the level of scrutiny would be further weakened in this Bill for statutory instruments aimed at modifying or revoking retained EU law.

The Bill would also remove EU concepts from domestic law. By default, after 2023, EU law will not have supremacy in the UK, nor will its general principles persist (although statutory instruments can sometimes partly reinstate these too). As a result, UK courts will not be bound by EU case law; and higher courts can depart from retained domestic case law that it influenced. This risks introducing legal uncertainty within the UK, as previously settled points of law may be revisited. This would have a particular impact on areas with a significant quantity of EU-derived law, such as environmental law.

To give a practical example of the potential significance of this, the proposals in the Bill could lead to uncertainty as to the relevant legal tests to be applied in respect of habitats or environmental assessment in the context of promoting, or granting consent for, major infrastructure projects. The lack of fixity is further compounded by Ministers being able to influence the legal framework governing how judges must reconcile legal inconsistencies involving EU law, again using statutory instruments.

What UK laws would it apply to?

There are practical concerns about how the process envisioned by the Bill will be implemented, due to uncertainty about the scope of UK law to which it would apply. As such, the Bill’s additional and longer-term impacts remain unidentified because a significant amount of preparation remains to be done.

Until recently, the proposals were estimated to affect 2,400 laws – which concerned even MPs who supported Brexit – and now a further 1,400 laws have since been ‘found’ by National Archives researchers.

Civil service staff are completing an ‘immense’ amount of work on a short timeline, trying to identify and review the EU retained legislation at the possible expense of other, arguably more important, work. This is not necessarily a realistic goal – with its fixed timeframes and default position, the Bill risks marching the UK toward legal uncertainty.

As a BEIS spokesperson admitted that the:

‘…process of identifying and recording EU-derived legislation is an ongoing process and an essential exercise in accelerating regulatory reform and reclaiming the UK statute book. The government’s record of legislation will be refined over time, as more retained EU legislation is repealed, replaced, or identified.’

Completing that exercise satisfactorily is essential: the Bill’s ‘sunset clause’ would apply indiscriminately to retained EU legislation because it is based on a law’s origin rather than its content. It is therefore possible that the ‘sunset clause’ may lead to the unintended revocation of law with EU origins, notwithstanding it was not identified as such prior to the deadline. That would create the very ‘black hole’ which the EU Withdrawal Act 2018 was designed to avoid.

The Public Law Project has made several recommendations to restrain some of the dramatic powers in the Bill. These revolve around narrowing ministerial legislative powers; mandating consultation and debate on the measures, rather than forging ahead with the current ‘complex and opaque provisions’; and not placing some rather important laws on equal footing with statutory instruments, simply because of their EU origins.

It remains to be seen whether the Committee will mirror such recommendations when reporting on the Bill.

If you have any questions about the information contained in this blog please contact Joanna Purkis or Meagan Parent.