The Brexit Freedoms Bill
One of the many problems facing Britain when it left the European Union was the potential for a radical shake-up of the law. Not in the sense of ‘taking back power’ from the EU but just the business continuity of everyday life. After all, following nearly 50 years as part of the club, the UK and EU’s legal systems had become intertwined.
The solution was to use ‘retained EU law’ as a pretty smart legal workaround. Thousands of EU regulations would essentially become part of UK law so that business could continue as normal but Westminster would have the power to amend or repeal regulations that it did not like. The government’s own legislation service even has its own section of the website dedicated to retained EU law.
This continues to work effectively but is due for a radical change thanks to the Retained EU Law (Revocation and Reform) Bill (aka the Brexit Freedoms Bill) that was introduced to Parliament yesterday. Section 1(1) immediately sets out the intention very succinctly:
“The following are revoked at the end of 2023—
(a) EU-derived subordinate legislation;
(b) retained direct EU legislation.”
Yes, all of that retained EU law will vanish at the end of next year although there is provision for instruments to be saved by a relevant national authority or for that 2023 date to be extended.
Jacob Rees-Mogg will be hoping that this saving power does not have to be used very much but that will mean a very busy 15 months for the Government Legal Service as they seek to transpose that retained EU law.
Furthermore this power to repeal, amend and replace EU law will be vested in ministers. These sweeping powers are like nothing that the executive branch of government has seen before and is further evidence that ‘taking back control’ does not mean Parliament exercising a greater democratic function but instead power being centralised in Downing Street and across Whitehall.
The government believes this will save around £1 billion in red tape. It is true that less bureaucracy will help to promote certain industries and small businesses but the figure should be viewed with scepticism because the price that the UK has paid for this power is far less access to the European market.
The Bill also plans to abolish the principle of supremacy of EU law and other general principles of EU law. It also emphasises the role that will be played by the UK Supreme Court as the final arbiter.
I haven’t lent a full critical eye to the whole Bill yet but those points seem to re-state what is already the case. The proposals that might attract more debate are the idea that references can be made by the lower courts to the higher courts on points of law which arise in relation to retained EU case law. It is possible that in many instances the law will be settled on such questions and references will not be needed but when there is also such disruption planned for the statute book, we may see a lot of parties trying their luck with a reference.
Clause 9 also creates provision for a new breed of incompatibility order where retained EU law does not marry up with domestic legislation. On the one hand the use of the phrase “must make an order” appears to fetter the discretion of the courts but these orders do also appear to give the courts a lot more power as they can “remove or limit any effect of the operation of the relevant provision before the coming into force of the order”.
Overall this is a controversial Bill and will be the first real test for Liz Truss as she seeks to consolidate the Brexit of her predecessors. It will be subject to a lot of debate in Parliament because of the way that it centralises legislative power. Even if the Bill does become enacted, the mammoth task of replacing retained EU law will have only just begun.